author: Blair, C. J.

text:
    KILLACKEY v. KILLACKEY.
    1. Appeal and Error — Denial op Motion — Nonprejudicial Eppeot.
    The error, if any, in denying motions to strike a cause from the calendar for reasons affecting the validity and regularity of the notice of trial and the note of issue, in the absence of a showing of prejudice to defendant’s ability to make a full defense upon the merits, does not warrant a reversal.
    2. Marriage — Proop—Supfioibnoy.
    As between the parties and their privies, a certified copy of a decree of divorce is sufficient evidence of their marriage.
    3. Same — Validity—Presumptions.
    In the absence of any evidence as to the date of a prior marriage, or as to the relation of the parties since such marriage, or as to the continuance or termination of such relations, the presumption of legality which attaches to a second marriage is held, not to have been impeached.
    4 Same — Personal Status — Presumptions.
    In the absence of any evidence to the contrary, the presumption arises that from their marriage until the time of filing a bill for a divorce, the parties sustained the usual relations of husband and wife.
    5. Ejectment — Dower—Title—Evidence.
    In an action of ejectment to recover a dower interest in land, proof that both parties claim the same source of title is sufficient evidence thereof without tracing it through a chain of conveyances to the government.
    6. Dower — Antenuptial Agreements — Deeds—Release.
    In an action of ejectment to recover a dower interest in land, it appeared that the husband, prior to a second marriage, conveyed certain land to a son, imposing upon it the burden of an annual payment to the intended wife, in case the marriage occurred and she survived him; that, after the marriage, the husband inherited certain land and conveyed it without the wife’s signature; and that, after the husband’s death, the widow, on the payment of a lump sum, executed a release of the annuity provided in the first deed. Held, that under section 8934, 3 Comp. Laws, the widow was not barred of her dower interest in said inherited lands, it being conveyed without obtaining her signature, nor was it barred by section 8933, 3 Comp. Laws, since she did not assent to the pecuniary provisions made for her benefit prior to the marriage.
    7. Same — Divorce—Separate Maintenance — Effect.
    Where, on a decree for separate maintenance, no provision was made for a division of the property and only a small sum was awarded for the wife’s support, and subsequently the husband inherited lands which he conveyed without the wife’s signature, the widow was not barred of her dower interest in the land so conveyed.
    8. Judgments — Amendments.
    A defect in a judgment in an action of ejectment to recover a dower interest in lands, awarding plaintiff one-third of the rent of the premises from the death of the husband, may be treated as surplusage, leaving such question to be settled in the supplemental proceedings.
    Error to Chippewa; Steere, J.
    Submitted January 31, 1909.
    (Docket No. 68.)
    Decided March 30, 1909.
    Ejectment by Margaret Killackey against Robert Nil-lackey and others. There was judgment for plaintiff,, and defendants bring error.
    Affirmed.

      John W. Shine, for appellants.

      F. T. McDonald and M. M. Larmonth, for appellee.
   Blair, C. J.

This is an action of ejectment for the recovery of dower, tried by the court without a jury. Prior - to the calling of the case, counsel for defendants made an oral motion to strike the case from the docket, for various reasons affecting the validity and regularity of the notice of trial and the note of issue. This motion was overruled, and a like motion, made when the cause was called for trial, was also overruled. At the request of defendants, the court made the following findings:

“Facts.
“1. This action in ejectment is brought to recover dower in .the lands described in plaintiff’s declaration.
“2. Plaintiff and James Killackey, Sr., father of defendant Robert Killackey, were married by Rev. J. J. Connolly, S. J., a Catholic priest, on September 6, A. D. 1897. Both had been previously married. The name of plaintiff’s former husband was Greenwood.
“3. At the time of their marriage she was over 50 years of age, and he (James Killackey, Sr.) was over 75 years of age. He was possessed of some property, and she had but little. Just prior to their marriage he imposed upon some land he conveyed a burden, providing for payment to her of $100 per year, in case he married her and she survived him. She has since released her claim in consideration of $500.
“4. They lived together as husband and wife for a little over a year, when trouble arose, and she filed a bill for divorce from bed and board and separate maintenance. This was contested. Her claim was maintained and a decree granted, as prayed for, allowing her ‘separate maintenance ’ of $6 per month and costs of suit.
“ 5. In June, 1901, after the rendition of said decree, he inherited the property involved in this suit from his son James Killackey, who died intestate and unmarried.
“6. James Killackey, Sr., soon thereafter deeded said property to defendant Robert Killackey.
“7. In September, A. D. 1904, said James Killackey, Sr., died.
“8. No evidence was offered of assignment of dower or demand of possession, and no records were offered to prove chain of title from the government to him, but a deed was put in evidence showing that Robert Killackey, defendant, claims title to said lands from J ames Killackey, Sr., from which source plaintiff also claims title.
“9. Defendant Michael Miller is shown to have been a tenant on the farm lands mentioned in the declaration, and defendant Corriveau to have been occupying one of the city lots for storing wood. No proof is given as to acts of possession, or of the identity of Mary Miller and Catherine Killackey, named as defendants.
“ 10. All files, records, and exhibits in this case are hereby made a part of these findings.
“Conclusions oe Law.
“1. There being no testimony whatever produced on the part of the plaintiff against the defendants Mary Miller and Catherine Killackey, judgment will be entered in their favor, with costs.
“2. It is contended that no legal marriage is proven, because plaintiff is shown to have been previously married to one Greenwood, and no evidence is offered to show that he is dead, or that she has been divorced from him. It is true that both parties are shown to have been previously married, and the record is silent as to what became of their former mates. In the proceedings between them for limited divorce and separate maintenance, which was hotly contested, the records, which are in evidence, show the marriage admitted. The presumption is that the parties would not contract a bigamous marriage and thereby commit a crime. The presumption is that the clerk who issued the marriage license, and the clergyman who performed the ceremony, performed their official duty, and ascertained that no legal impediments existed against a legal marriage. We find as a conclusion of law, under the evidence before us, that the parties were legally married, and
“3. That they bore to each other the legal relation of husband and wife until his death. The partial divorce did not dissolve the marriage tie. A divorce from bed and board is not such a severance as would bar dower. In that proceeding the court made no division of their property interests, only requiring a small contribution from him for her maintenance. The property involved in this suit did not then belong to him, and could not have then been taken into consideration.
“4. Neither demand for possession nor proceedings for assignment of dower are prerequisite to ejectment for recovery of same.
“5. Proof that both parties claim the same source of title is sufficient evidence of title, without tracing it through a chain of conveyances to the government.
“6. Miller and Corriveau, as parties in possession, and Robert Killackey as grantee of James Killackey, Sr., are properly made defendants herein, and shown to be necessary parties, before recovery can be had. ■
“ 7. The evidence establishes, in our opinion, a state of marriage between plaintiff and James Killackey, Sr., seisure by him, during coverture, of the property mentioned in the declaration as an estate of inheritance, and his subsequent death, giving her a right of dower therein, which she is entitled to recover in this action.
‘ ‘ Judgment will he entered accordingly against the three defendants last named.”

Defendants put in no testimony whatever, and bring the record to this court for review upon numerous assignments of error, the principal ones of which we proceed to discuss.

1. The court’s refusal to grant defendants’ motion to strike the cause from the calendar. There is nothing in the record to indicate that the defendants’ ability to make a full defense upon the merits was prejudiced; and, without such a showing, this court must regard the error, if any was committed, as not warranting a reversal, if indeed such error were reviewable upon writ of error. People v. Bacon, 18 Mich. 247; Worth v. Hand, 30 Mich. 264.

2. That there was no competent evidence of plaintiff’s marriage to James Killackey. The plaintiff testified that she was married to Killackey, September 6, 1897, by Father Connolly; that at the time of the marriage her name was Margaret Greenwood, but that her folks always called ber “Lottie, for short.” Against objection and exception a marriage license, authorizing the marriage of James Killackey “and Mrs. Lottie Greenwood,” and the following marriage certificate, were received in evidence:

“Certificate of Marriage
“Between Mr. James Killackey and Mrs. Margaret Greenwood.
“I hereby certify that, in accordance with the above license, the persons herein mentioned were joined in marriage by me, at Sault Ste. Marie, county of Chippewa, Michigan, on the 6th day of September, A. D. 1897, in
the presence of -, of Sault Ste. Marie,-and -, of Sault Ste. Marie.
“ As witnesses.
“ J. J. Connolly, J. F.
“Name of Magistrate or Clergyman.
“Pastor Official Title.”

A certified copy of a decree of divorce from bed and board in favor of Lottie Killackey as complainant, and against James Killackey as defendant, granted by the judge trying this suit on the 16th day of September, 1899, and filed November 13, 1899, was also received in evidence. As between the parties and their privies, the decree was sufficient evidence of the marriage. 24 Am. & Eng. Enc. Law (2d Ed.), p. 717, par. 5, p. 748ci; Carr v. Brick, 113 Mich. 664; Burgess v. Stribling, 134 Mich. 33, 144 Mich. 532; Bechtel v. Barton, 147 Mich. 318.

3. That plaintiff’s marriage to Killackey was void because of a previous marriage. All that appeared with reference to her previous marriage was the bare fact that she had been, at some time previously, married to a man named Greenwood. In the absence of any evidence whatever as to the date.of plaintiff’s marriage to Greenwood, or as to their relations since that marriage, or as to the continuance or termination of such relations, the presumption of legality which attaches to the second marriage must be held not to have been impeached. Wagoner v. Wagoner, 128 Mich. 635; Smith v. Fuller, 138 Iowa, 91; Coal Bun Coal Co. v. Jones, 127 Ill. 379.

4. There was no testimony on which to base the finding that they lived together as husband and wife for “ a little over a year.” The following constitutes the entire testimony on this subject:

“By Mr. Shine: Q. Where have you lived since the fall of 1895 ?
‘A. I lived in the Soo.
“Q. And do you know where Mr. Killackey lived since that time, James Killackey, Sr.?
“A. Where he lived, did you say ?
“Q. Where did he live, James Killackey, Sr., since the fall of 1898?
“A. I don’t know where he lived. He lived all over, I guess, with his folks.
“Q. He didn’t live with you, did he ?
“A. No, sir.”

There being no evidence to the contrary, the presumption is that from their marriage in September, 1897, to the fall of 1898 the parties sustained the usual relations of husband and wife.

5. That there was no sufficient proof that Killackey was seised during marriage of an estate of inheritance in the lands in question. As stated in appellants’ brief:

*' This question arose in the following manner: In the trial plaintiff offered in evidence a deed from James Killackey, Sr., to Robert Killackey, Sr., conveying the land in question, and the files from the probate court in the estate of James Killackey, Jr., in which the real estate was listed as part of the estate, and an order determining James Killackey, Sr., sole heir at law. But plaintiff offered no proof of record or paper title running back to the government, nor proof that James Killackey ever occupied the premises, or that he acquired it from any person who previously occupied it, or that any of them occupied it under warranty deed or made improvements thereon.”

The trial judge correctly held:

“Proof that both parties claim the same source of title is sufficient evidence of title without tracing it through a chain of conveyances to the government.”

See Drake v. Happ, 92 Mich. 580.

6. An antenuptial agreement and settlement barred dower. As stated in appellants’ brief:

“This agreement was made shortly before the time of the alleged marriage. By it James Killackey, Sr., made provision for his widow in case he should marry. A charge was made on certain real estate conveyed to Timothy Killackey, of $100 a year. The plaintiff afterwards settled with the heirs of Timothy Killackey for $500. So far as the record shows, Killackey had no other property. There was evidently an understanding that by arranging for this annuity for plaintiff it was intended to be in lieu of any claim on him or his property, if he had any. Even if not assented to by plaintiff, she has elected to take it, and such election bars dower.”

The plaintiff testified:

“Why he must have been a man in the neighborhood of 80, I suppose; 70 or 80, I suppose. Just before September, 1897, there was an arrangement between him and me relative to the payment of $100 a year.
“Q. Since Mr. Killackey’s death you have been getting that $100 a year, have you ?
“A. Yes; I got that.
Q. And that was made a charge or security in some way on some of the real estate — some farm ?
“A. That was off Tim’s farm. He was a son of old man Killackey’s. Yes; this same Killackey, Sr., referred to in these pleadings. I made a settlement with the owners of the land in full. I got $500 from them for a release of my claim for life against it. * * * Mr. Killackey
was to receive the $100 income off the farm until he died, and I was to get it after.
“Q. Who did get it?
“A. I got $500.
“Q. But during the lifetime of Mr. Killackey who received the $100 a year off the income of the farm ?
“A. I don’t know. He told me once he didn’t get anything. I never got anything off the income of the farm except the $500. On my separation from Mr. Killackey I was allowed $6 a month. That was all paid me but the last month.
“Q■ Did you ever receive from Mr. Killackey either any property, real estate, or money ?
“A. No, sir.
“Q. Anything except the $500 in the settlement you made ?
“A. That is all on the income of the farm, and this $6 a month on my separation from him. At the time I married Mr. Killackey he said he was possessed of considerable property.”
Plaintiff, in consideration of $500, executed a quitclaim deed to the heirs at law of Timothy Killackey, June 23, 1906. The deed contained the following provision:
“This deed is given and the consideration thereof accepted in full satisfaction of any and all claims which said first party may have against the estate of Timothy Killackey, deceased, by way of annuity or otherwise, or against said lands as the widow of the said James Killackey, deceased.”

The deed from James to his son Timothy was made before the marriage, and nearly four years before he inherited the property involved in this suit from his son James. Mrs. Killackey was not a party to the warranty deed by which the lands were conveyed by James, Sr., to his son. The plaintiff’s dower is not barred by section 8934, 3 Comp. Laws, because that section does not relate to lands conveyed by the husband without the wife’s signature, as in this case, during his lifetime. Westbrook v. Vanderburgh, 36 Mich. 30. Her dower is not barred under the provisions of section 8933, because her assent to the pecuniary provision for her benefit was not given, as specifically required by that section.

7. The decree for separate maintenance bars dower in lands thereafter acquired. Such a decree does not bar dower as a general rule. 14 Cyc. p. 934; 9 Am. & Eng. Enc. Law (2d Ed.), p. 852. Under the circumstances of this case, and for the reasons stated by the circuit judge, we concur in his conclusion of law.

8. That the judge had no right to enter judgment for plaintiff for one-third of the rent of the premises from September 30, 1904. Plaintiff’s counsel submit that the provision in the judgment for the recovery of the rent is mere surplusage, and that the whole matter will be open for consideration in the supplemental proceedings, suggesting damages in accordance with the provisions of section 10988 et seq., 3 Comp. Laws. An amendment of the judgment in accordance with this concession will sufficiently protect appellants, if such amendment is deemed necessary.

There are no other questions which, in our opinion, require consideration, and the judgment is affirmed, with costs against the defendant Robert Killackey.

Grant, Montgomery, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    NICHOL v. WARD.
    Appeal and Error — Exceptions—Necessity.
    Where, in a case tried before the court without a jury, no objection was made, nor exception taken, to the admission of testimony,, no request for findings of fact and law, nor exception taken to the rendition of judgment, under Circuit Court Rule 26, there is nothing for an appellate court to review.
    Error to Ionia; Davis, J.
    Submitted January 20, 1909.
    (Docket No. 132.)
    Decided March 30, 1909.
    Assumpsit by John Nichol, receiver of the Citizens’ Mutual Fire Insurance Company of Jackson, against Rachel M. Ward for assessments due upon certain policies of insurance. There was judgment for plaintiff, and defendant brings error. Affirmed.

      D. P. Bagendorph, for appellant.

      George E. Nichols (John Nichol, of counsel), for appellee.
   Moore, J.

The plaintiff sued to recover for two assessments which it was claimed were due from defendant upon two policies of insurance which had been issued in her name. The case was tried before the judge without a jury. He rendered judgment in favor of the plaintiff in the sum of $14.37. The case is brought here by writ of error.

A number of defenses were interposed in the court below, and a good many questions are argued in this court. The disposition of a preliminary question must, however, dispose of the case. No objection was made, and no exception taken, to the admission of testimony. At the conclusion of the testimony a motion was made to dismiss the case. No request was made for special findings of fact and law by the judge. He took the motion under advisement, and later rendered the judgment before stated. No exceptions were taken to the rendition of judgment. No special findings of fact and law; have been made. The record does not comply with Circuit Court Rule 26. There is nothing in this court to review. See the many cases cited in the note to the rule.

Judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.


author: McAlvay, J.

text:
    BROWN v. SPIEGEL.
    1. Attorney and Client — Authority of Attorney to Bind Client — Stipulations—Effect.
    In an action upon promissory notes, plaintiff’s attorney having attached property of defendant, upon an application to dissolve the same, it was stipulated by the respective attorneys that said attachment should be dissolved and held for naught; that defendant might set off and deduct from plaintiff’s olaim all damages and costs to which he was entitled by reason of said attachment and levy under it, the same to be assessed upon the trial; and that defendant might amend his pleadings so as to make the said defense. Held, that the refusal of the trial court to allow proof of such damages was error; since, under the general power of attorneys to bind the client by all acts necessary or incidental to the prosecution or management of a suit which affect the remedy only, and not the cause of action, such stipulation, made with full knowledge of all the facts, permitted an amendment to the pleadings allowing a defense to be set up which would not otherwise be available, is not opposed to public policy, and avoided a multiplicity of suits.
    2. Bills and Notes — Guaranty — Notice of Acceptance — Necessity.
    A debtor made an offer that if the creditor would accept certain notes of third persons, indorsed to him, and credit him on the amount of the debt and draw on him for the balance, he, having indorsed said notes, would guarantee their payment. Held, that the creditor not having notified the debtor of the acceptance of the offer, he was not bound as guarantor of said notes.
    3. Same — Actions—Pleadings—Set-Off and Recoupment.
    Where, in an action upon promissory notes, it appeared from the evidence and a stipulation that plaintiff received certain notes of third persons not then due, indorsed to defendant, and by defendant indorsed to plaintiff, and that plaintiff kept the notes and did not present or protest them when they became due, defendant was entitled to set off the amount un- • paid on said notes against the amount owing to plaintiff.
    Error to Saginaw; Gage (William G.), J.
    Submitted January 21, 1909.
    (Docket No. 67.)
    Decided March 30, 1909.
    Assumpsit by Harry R. Brown against Frederick F. Spiegel upon certain promissory notes. There was judgment for plaintiff, and defendant brings error. Reversed.

      Crane & Crane and A. E. Snow, for appellant.

      Charles W. Cheeney, for appellee.
   McAlvay, J.

Plaintiff commenced suit by writ of attachment, under which a levy was made upon a large amount of personal and real estate belonging to defendant. The suit was brought to recover the amount due on two certain promissory notes given by defendant to plaintiff July 12 and September 10, 1904. On November 21, 1904, after these notes were given, defendant sent plaintiff a letter, inclosing certain notes made and executed by various parties to one J. T. Davis, which were by Davis indorsed to defendant, and by defendant indorsed to plaintiff. These notes were received and kept by plaintiff, and some collections made by him from the makers, which were credited on defendant’s notes in suit. These Davis notes were not protested when due, but were kept by plaintiff without notice to defendant, and are still retained by him after judgment. At the time of the trial the balance due on these Davis notes amounted to $197.77. After the attachment levy was made, steps were taken by defendant to dissolve the same and release the property. On the day for hearing such application the following stipulation in writing was made and signed by the attorneys for plaintiff and defendant, omitting the entitling of court and cause:

“In said court and cause stipulated that the attachment in said cause is dissolved and held for naught, and that defendant may set off and deduct from plaintiff’s claim all damage and costs to which he is entitled by reason of said attachment, and levy under it, same to be assessed upon the trial of said cause. Defendant may amend his pleadings so as to make the said defense.”

Defendant had already pleaded the general issue, and given notice that he would claim, under the facts specifically stated, to set off the amount of the Davis notes. After the stipulation the notice was amended as therein agreed, claiming for all damages, expenses, and costs, particularly itemized, which he had expended and suffered by reason of said attachment and the levy made under it, waiving the tort, if any, and claiming to recover in assumpsit. Another stipulation in writing was made in this case by the attorneys for the parties, as follows:

“In said court and cause stipulated: First. That the execution of the notes declared upon is admitted by defendant, and no payment made thereon except such as may be indorsed upon them by plaintiff. Second. Admitted the notes mentioned in defendant’s plea and notice were not protested by plaintiff, neither was any notice sent by him to indorsers or any one of them concerning same.”

Upon the trial defendant, under the first stipulation and the amended pleading, offered evidence to show the amount of his damages suffered by reason of the attachment and levy under it. Plaintiff’s attorney objected, repudiating the stipulation, except as to costs, claiming that it was made by him without authority, and not binding upon plaintiff. No evidence appears in the record to show that fact. The court sustained the objection, and an exception was taken.' Defendant also offered evidence under his notice to show that he was entitled to set off the amount of the balance of the Davis notes unpaid, to show that the plaintiff received the notes before maturity, and has held them ever since, having taken no steps to hold the indorsers, and gave no notice to any of them. An objection by plaintiff was sustained on the ground that defendant had guaranteed the notes, and an exception taken. The court then charged the jury in accordanee with these rulings, and instructed a verdict for plaintiff for #502.03, the amount of the balance due on the notes sued upon, less $61; the costs in the attachment suit being $441.03. Such verdict was taken, and a judgment entered for that amount. Upon a writ of error the case is before us for review. Errors are assigned upon the rulings of the court above stated.. If the court was correct upon these two rulings, the judgment must stand, as other errors assigned are either immaterial or depend upon those to be considered.

1. The stipulation relative to the dissolution of the attachment on its face warrants the construction defendant claims for it. It was doubtless made, as appears from statements of counsel in the record, after a discussion of the situation, and indicates an abandonment of the attachment, and an acknowledgment that, by reason of the attachment and the levy under it, defendant had suffered damages, and provided “that defendant may set off and deduct from plaintiff’s claim all damage and costs to which he is entitled by reason of said attachment, and levy under it, same to be assessed upon the trial of said cause. Defendant may amend his pleadings so as to make defense.” From this stipulation the plain intent of the parties to include and dispose of in this one suit all their differences appertaining thereto and which had arisen therefrom is apparent. Plaintiff’s attorney of record instituted this suit by attachment, which was levied upon defendant’s personal and real estate, by means of which defendant was damaged. The stipulation provided that the attachment be dissolved, and that all such damages and costs to which defendant should prove himself entitled might be set off and deducted from plaintiff’s claim in this suit, and that the pleadings might be amended to permit such defense. This in no way affected plaintiff’s right of action, It was a stipulation for an amendment of the pleadings and allowing a defense to be set up which would not be otherwise permissible. Floyd v. Mann, 146 Mich. 358; Henderson v. Merritt, 38 Ga. 232. A general authority to commence suits will warrant an attorney in attaching property, and render the client responsible for any damages. Weeks on Attorneys (2d Ed.), § 217; Fairbanks v. Stanley, 18 Me. 296; Kirksey v. Jones, 7 Ala. 622. Defendant’s claim was something incidental to, and arising out of, this attachment suit, and would not have arisen but for the levy made. The stipulation did not deprive plaintiff of any right. It simply admitted defendant’s claim to be prosecuted and defended against as a set-off in the case in the prosecution of which it had originated. This stipulation comes within the general rule that the attorney has power, without express authority, to bind his client by all acts necessary or incidental to the prosecution or management of the suit which affect the remedy only, and not the cause of action. 20 Enc. Pl. & Prac. pp. 645, 646. In Floyd v. Mann, supra, the stipulation was very similar to the one under discussion. The contention was ‘ ‘ that this stipulation should be construed to mean that this right to set off the claim mentioned was to be qualified by an implied proviso that there was a proper pleading to j ustify it. ” The court said:

“We are of the opinion that this stipulation was broad enough to permit the defendant to make a counterclaim of this item, although not otherwise admissible as a defense under any plea and notice that could be devised; it being the plain intent of the plaintiff to consent to the settlement of their differences in this one suit.”

In the case at bar the stipulation covers the question of pleadings, but it is evident in this case that no plea or notice could be devised which in the absence of the stipulation would make the proof of unliquidated damages admissible. The sufficiency of the stipulation in Floyd v. Mann was sustained. The question of the authority to make the stipulation was not raised or discussed. As bearing upon the question of sustaining stipulations of attorneys within the rule already stated, is the fact that the defendant relied in good faith upon it, and that his first knowledge of its repudiation, as far as appears, was upon the trial. He may have lost the opportunity of personal service upon this nonresident plaintiff, and property subject to execution may have been removed from the jurisdiction. These were all material matters for his attorney to consider at the time of making the stipulation. Our conclusion is that stipulation was within the power of plaintiff’s attorney to make, and is binding upon plaintiff. It was not the result of any mistake. It was made with full knowledge of all the facts. It was not against public policy, and it avoided a multiplicity of suits. The court was in error in refusing to allow proof of the damages defendant offered to show under the stipulation.

2. The claim that a guaranty of the Davis notes was made by defendant is based upon a letter written by him to plaintiff when the notes were forwarded. The letter is dated November 21, 1904. The material portions read as follows:

“Dear Sir: * * * I have tried to make a raise for you but couldn’t as the bank here has had a run on it, but passed out all right. It makes money tighter than it was before. As I certainly want to pay you or anyone else every cent I owe, I inclose you four notes which I took for lumber, and they are perfectly good, as this J. T. Davis is a hay buyer here, and I know him to be perfectly good; besides the maker is a good farmer. I wish you would figure up the notes and then figure these up, allowing you interest until due and draw draft upon me for the balance and I will pay at once. I do hate to put you off with these long time notes, but money is simply scarce here. * * * I have indorsed the notes, and I will therefore guarantee the payment of the same.
“Respectfully yours,
jpi jp SpiEGfEXj
“The notes are $42.50, $125.00, $17.68, and $59.50.”'

Reading this letter as a whole, the proposition of defendant to plaintiff is that if plaintiff will take these notes at an amount which will allow him interest, and give defendant credit on his notes for that amount, and draw on him for the balance, he will guarantee the payment of the same, having indorsed them. Plaintiff did not accept the Davis notes, and gave defendant credit for them, and draw for the balance, nor did he notify defendant that he accepted the guaranty. The proposition made in the letter was an offer which required acceptance, without which defendant cannot be held as guarantor. Without accepting and crediting these notes to defendant, there could be no consideration for the guaranty. A sufficient legal consideration is essential to a valid guaranty. 20 Cyc. p. 1418, and cases cited. Where the writing is not a perfect and conclusive guaranty, but only an offer to guarantee, notice of its acceptance is necessary. 1 Brandt on Surety-ship & Guaranty (3d Ed.), § 210, note 5, and cases cited. If the offer made is a proposition to guarantee, as in the case at bar, requiring the guarantee to perform as requested, and is not accepted, the relation of guarantor and guarantee never was created, because no contract was ever completed. The rule is universal in this class of cases that notice of acceptance is necessary. Gardner v. Lloyd, 110 Pa. 278; Acme Manfg. Co. v. Reed, 197 Pa. 359; Davis Sewing Machine Co. v. Richards, 115, U. S. 524; 14 Am. & Eng. Enc. Law (2d Ed.), p. 1147, and cases cited. Plaintiff is not bringing suit upon the claimed guaranty of defendant. The situation is that defendant is asking that the amounts of the Davis notes shall be set off in this suit for the reason that the notes were not protested, and that he was never notified of the default in payment; that Davis at that time was financially responsible, and the notes were collectible; that by the admissions-in the stipulation as to these notes in this case he is entitled to credit for the amount claimed. We agree with this contention. It became the duty of plaintiff, not having accepted defendant’s proposition to credit these notes and take his guaranty, to present and protest these notes when they became due, thereby notifying defendant, who was an indorser thereon, of the default, and the intention to hold him. This letter cannot be construed as putting these notes into the hands of plaintiff as collateral security to the notes he held against defendant. Defendant is entitled to off set these notes against plaintiff’s claim for the amount of the balance thereof. The court was in error in refusing to allow him such set-off.

For the errors pointed out, the judgment is reversed and a new trial ordered.

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


author: Brooke, J.

text:
    STEARNS v. GRAND TRUNK RAILWAY CO.
    Sales — Contracts—Performance—Delivery.
    Plaintiffs contracted for the sale of certain lumber, tobe thereafter cut, at an agreed price per thousand. Under the terms of the contract, when the lumber was cut the purchaser was to go to the mill and make an estimate of the same; that payments were to be made based on such estimates; and that the lumber was to be finally inspected by the purchaser and the payments adjusted according to the final inspection. When the estimates and payments were made, the purchaser wrote the firm name upon the piles of lumber and insured the same in the name of the purchaser with the plaintiffs’ knowledge and consent. Part of the lumber was shipped to the purchaser upon its order, and the last car load plaintiffs shipped to their own order with bill of lading and draft attached. Held, that title to the lumber passed to the purchaser upon the payments made upon the estimates, and that plaintiffs by their action in shipping the last car load in their own name could not maintain an action for the amount of the draft against the carrier for an unlawful delivery to the purchaser.
    Error to Oakland; Smith, J.
    Submitted January 19, 1909.
    (Docket No. 110.)
    Decided March 30, 1909.

      Assumpsit by Charles T. Stearns and Edgar E. Stearns, copartners as Stearns Brothers, against the Grand Trunk Railway Company for the amount of a sight draft attached to a bill of lading. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Trevor & Bumps, for appellant.

      Andrew L. Moore, for appellees.
   Brooke, J.

This case has already been before this court. See Stearns v. Railway Co., 148 Mich. 271. The statement of facts contained therein was sufficient for the determination of the matters raised by that record. It is necessary, however, to supplement it for the purpose of determining the matters in issue now before the court.

Plaintiffs were manufacturers of lumber at Pontiac, Mich., and made a contract with Scranton & Co., of Detroit, for the sale of certain lumber to be thereafter cut, at an agreed price per thousand. The contract between the parties was that, when the lumber was cut, Scranton should go to Pontiac and make an estimate of the same from time to time; that payments were to be made by Scranton & Co. to the plaintiffs upon such estimate; that the lumber was ultimately to be inspected by Scranton & Co., and, if the estimated payment was found to be too little, the balance should be paid by Scranton & Co. to the plaintiffs, and, should it turn out that the estimated payments were too large, the plaintiffs were to return the amount of overpayment to Scranton &; Co. Whether the lumber was to be inspected in Detroit or in Pontiac, is in dispute between the parties. All the lumber to be cut under the contract was finally cut and piled in the plaintiffs’ yard at Pontiac, and estimated from time to time by Scranton, and payment therefor made according to the estimate, to the am.ount of $1,319.51. At the time the estimates were so made, as before stated, Scranton wrote his firm name in various places upon the piles of lumber, and thereafter insured it, with the knowledge and consent of the plaintiffs, in the name of Scranton & Co. No insurance was placed upon the lumber by plaintiffs for their benefit. No final inspection of the lumber was made in Pontiac. Three car loads thereof were shipped by the plaintiffs to Scranton & Co. to Detroit upon their order. The last car load, about which the dispute herein arose, was shipped by plaintiffs to their own order in Detroit, with bill of lading and draft for $116.68 attached. Scranton & Co. refused to pay the draft, but secured the delivery of the car load of lumber to them by the defendant company, and are defending this action on behalf of the defendant.

We quote briefly from the testimony of Andrews, who was a partner in the plaintiffs’ concern at the time of the dealings in question, as follows:

“ When Mr. Scranton estimated the piles he said: ‘ It
was his lumber.’ Mr. Stearns and I agreed to it, and he said that in the event of anything happening to us, that if any trouble would occur, that he claimed that lumber to be his, and we agreed to that; that it was proper, and, when it came to final scaling or inspection, whatever difference was coming to us was to be paid.
“Q. You did not have a right to sell the lumber to anyone else ?
“A. No, sir. He wrote his name on the piles, and I think put the date on the piles. * * * Now, I want the jury to understand that, besides agreeing to it, I went on and made a reservation at the same time. The first time that he went up there to estimate this very first pile he said: ‘ This is my lumber.’
“Q. And wrote his name over it ?
“A. Yes; so he would have perfect title to it if any trouble came up to us. It was his lumber. He made the remark then and there that he was to have the title. I want the jury to understand that there was a reservation. And he said that was all right. I was at three estimates made by Mr. Scranton after the first one, and every time b e made the statement that ‘ this is my lumber, ’ and we agreed to it.
“Q. And, after agreeing to it, you said, ‘But the title does not fully [pass] until you have made the final settlement?’
“A. I do not think we said that on every time at all.
“Q. How many times did you say it ?
“A. The first time when he came out there. I cannot recall that we said it but once. Stearns and I talked the matter over thoroughly.
“Q. Did he, Stearns, say that ‘the title does not pass until complete title, until you have made final settlement ?’
“A. Yes; so did he.”

The plaintiff Stearns testified in part as follows:

“I said, ‘It would overrun his estimate,’ and Mr. Scranton said: ‘ Very well, when the lumber is inspected and if you see it overruns, I will pay the difference, and, if it underruns, you will pay me the difference.’ After Mr. Scranton estimated the lumber, he figured it up, and paid us the price upon the estimated quantity. He wrote his firm name in various places upon the piles of lumber, in my presence, and said: ‘ So there may be no difficulty about this matter in case anything should happen, this is my lumber.’ He did not say he took possession of it, but said it was his lumber, ‘This is my pile of lumber,’ and paid us the estimated price for it. * * *
“Q. And without your objection to it. That is right, is it not ?
“A. No, sir. Not without my objection. I told him it was his lumber when the balance was paid.
“Q. * * * Do you mean to tell this jury that you was saying that to him, that which you have just now stated ?
“A. Ido. That first car load.
“Q. Did you object when Mr. Scranton says, ‘This is my lumber,’ when he said that at the very first pile?
“A. Yes, sir; I did.”

The first question presented by this record is whether or not the title to the lumber passed to Scranton & Co. at the time of the payment of the $1,319.51, the identification of the same by them by writing their name upon the various piles, the conversation which occurred between the parties; and by the subsequent acts of the parties. We are of the opinion that the title did so pass. It is not disputed that the ultimate settlement was to be made upon a final inspection to be made by Scranton & Co. either in Pontiac or Detroit. The fact that the plaintiffs had already shipped three car loads of the lumber without inspection in Pontiac is a circumstance strongly tending to show that the plaintiffs themselves believed that the inspection should take place at Detroit, as claimed by Scranton & Co. It is entirely obvious, from all the testimony contained in the record, that the estimated price paid by Scranton & Co. was intended to be the full value of the lumber sold, as nearly as it could be ascertained by the method used. But, in order that the rights of both the vendees and vendors should be protected, a careful inspection by the vendees was agreed upon. The declaration of the vendees of absolute ownership of the lumber, when estimated and marked in the presence of the vendors and the acquiescence therein by the vendors, seems to us to put this question beyond dispute. The insuring of the lumber by the vendees in their own name, with the knowledge and consent of the vendors, while it was standing in pile in Pontiac, and the failure of the vendors to insure any possible interest which they might have therein, is likewise an important factor. It is to be noted that, at the time the lumber was so estimated by Scranton & Co., paid for by them, marked with the firm name, and insured by that firm, there remained no act to be done by the vendors in connection therewith except to load the same on cars as ordered by the vendees. No inspection thereof was to be made by the vendors at either Pontiac or Detroit thereafter. In piling the lumber, the vendors had assumed to grade it in accordance with the terms of the contract, which was 60 per cent, better than common. : Their act, therefore, in assuming dominion over the last car load, as evidenced by their shipment of the same to their own order after shipment had been directed by Scranton & Co., was an invasion of the vendees’ rights. If the inspection of the lumber by Scranton & Co., whether in Detroit or in Pontiac, was fraudulent or unfair, the plaintiffs had their remedy; but.by their own acts they had parted with the title to the property and their dominion over it. If their contention is now just, they could, of course, have sold the lumber to another person, disregarding the rights of Scranton & Co. in the premises. Upon the facts disclosed by this record, such a conclusion is clearly untenable.

A case much like the case at bar was discussed by Judge Cooley in Whitcomb v. Whitney, 24 Mich. 486. The contract in that case was as follows:

“Detroit, March 16th, 1871.
“Received of D. Whitney, Jr., five hundred dollars on account for all the upper qualities and select common and cutting up or fine common lumber that I make at Rock Falls in town of Sand Beach, Michigan, this season, at fair price, what said Whitney can afford to pay; the lumber is to be delivered on rail of vessel when lumber is ready to ship, or when vessel is ready to send for it.”

While the lumber was piled on dock it was destroyed by fire. Plaintiff sued for its value, and the court said:

“ What is the case here ? The contract is for the purchase of all the lumber of certain grades that plaintiff shall manufacture at Rock Falls during the season. The plaintiff could not have sold a foot of it to any other person without a distinct violation of his contract obligations. From the time of its manufacture nothing would need to be done to determine the right of the defendant in any particular parcel but to have it properly settled that it fell within one of the grades contracted for. An agent duly authorized had determined that as to all the lumber in question, and had done what amounted to an acceptance of it on the part of the defendant. It had then been set apart and stored in a proper place for the defendant, and was subject to his order. Nothing remained to be done by the plaintiff except to deliver it on the rail of the vessel, and that he could not do until the vessel was sent. Everything now depended on the action of the defendant, which might be expedited or delayed as should suit his own convenience. * * * In Olyphant v. Balter, 5 Denio (N. Y.), 882, it is said to be ‘a general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser.’ And of the numerous cases in which the expression is used, that, if anything remains to be done by the seller, the title does not pass, Selden, J., in Terry v. Wheeler, 25 N. Y. 525, said they only go to the length of showing that where something is to be done by the seller to ascertain the identity, quantity or quality of the thing sold, or to put it in the condition which the terms of the contract require, the title does not pass. And he therefore holds with the approval of the whole court that an agreement by the vendor of lumber to transport it to the cars and deliver it free of charge did not prevent the title passing immediately where that was sold and selected and designated.”

See, also, Adams Mining Co. v. Senter, 26 Mich. 73; Webster v. Anderson, 42 Mich. 554. The case at bar is, in our opinion, much stronger than the one we quote from. What was sold here was not only selected and designated, but was marked with the name of the vendee, and was paid for in full as nearly as could be then determined, and was afterwards insured by the vendees in their name.

It follows, therefore, that the learned circuit judge should have given defendant’s sixth request to charge, which was as follows:

‘ ‘ I charge you that it is the undisputed testimony in this case that Stearns Bros, consented to Mr. Scranton placing the name of his firm upon the pile of lumber; that it was held subject to his order of shipment; that it was insured by him in his firm name with the knowledge and consent of Stearns Bros.; that Stearns Bros, had no right to sell it to any person; that it was estimated and the estimated value paid by Scranton & Co.; that as a matter of law these facts constitute a complete bargain and sale to Scranton & Co., and your verdict must be no cause of action.”

The other errors assigned are not discussed.

Reversed, and new trial ordered.

Grant, Montgomery, Moore, and McAlvay JJ., concurred.


text:
    McARTHUR v. CITY OF CHEBOYGAN.
    1. Specific Performance — Contracts—Laches.
    On the 30th of November, complainants made a proposition to defendant to sell certain lots for park purposes, which by resolution of the common council was accepted on the same date. No time for the performance of the contract was specified, and on the 15th of January following the council attempted to rescind the contract. Complainants on March 5th tendered a deed and abstract of title, and on the refusal of the city to accept and pay, filed a bill for specific performance. Held, that complainants were not barred by laches; since the law, the time not being specified, implies a performance within a reasonable time, and, after the attempted rescission, they were only obliged to make a tender as a prerequisite to filing the bill.
    2. Municipal Corporations — Bonds—Purpose of Issuance — Diversion. ■
    Where a city, prior to the time of accepting an offer for the sale of certain lots for park purposes, had raised by the sale of bonds, duly authorized, a sum largely in excess of the amount expended for such purposes, it could not defend a bill for specific performance on the ground that there were no funds available; since, in the contemplation of law, such money was in the fund for which it was authorized.
    Appeal from Cheboygan; Shepherd, J.
    Submitted January 19, 1909.
    (Docket No. 28.)
    Decided March 30, 1909.
    Bill by Clark J. McArthur and others against the city of Cheboygan for the specific performance of a land contract. From a decree for complainants, defendant appeals.
    Affirmed.

      Frost & Sprague, for complainants.

      C. S. Beilley, for defendant.
    The bill of complaint in this case is filed to compel speciñe performance of a contract by which the defendant agreed to purchase certain real estate from the complainants, known as the “Horne property,” located on Main street, in the city of Cheboygan. The contract of purchase was entered into in the following manner: About 75 citizens, among the heaviest taxpayers, petitioned the city council to purchase said property for a public park, which petition was received, and the mayor appointed a committee of three with the city attorney to investigate the matter of making said purchase. November 12, 1906, the special committee reported to the council that the purchase of the “Horne property’’for a park was a necessary public improvement, and recommended such purchase be made. November 20, 1906, the committee submitted to the council a written proposition from the owners of the property in question, complainants herein, for the sale of the property, as follows:
    “To the Common Council of the City of Cheboygan.
    “ Gentlemen: We herewith submit to you a proposition for the purchase by you of lots 29, 30, 31, 31 and 36, in the M. W. Horne’s first and second addition to the village (now city) of Cheboygan for the consideration of $8,000, $500 to be paid down and the balance on or before ' two years. The city to issue its orders for the same. Interest on deferred payments at the rate of 6 per cent, per annum payable annually.
    “We will furnish abstract and give you perfect title to said property.
    “Respectfully submitted,
    “H. McArthur,
    “Mrs. W. S. McArthur, ; “O. M. Clark,
    “By C. J. McArthur, duly authorized.
    “ C. J. McArthur.
    “Dated November 20, 1906.”
    At the same meeting of the city council the foregoing proposition of complainants was accepted by the defendant, as follows:
    “ By Alderman Dargan:
    “Whereas, it appears that this council has made an investigation of the purchase of certain property hereinafter described for park purposes and that the purchase of the same would be a public improvement and also it appearing that the purchase of said property will induce the building of a very large hotel and that it is almost unanimous the request of the heaviest taxpayers in Cheboygan that such purchase be made:
    “Be it resolved, that the city of Cheboygan purchase from the owners the following described land, to wit: Lots 29, 30, 31, 34, and 36, in M. W. Horne’s first and second addition to the village (now city) of Cheboygan, in said city of Cheboygan, Michigan.
    “ Be it further resolved, that the proposition submitted to the council from the property owners that they will sell to the city the above-described property and for the consideration of the sum of $8,000, $500 to be paid on the execution of the papers, the balance to be paid on or before two years from the date thereof at 6 per cent, per annum, interest payable annually, be and the same is hereby accepted, and
    “Be it further resolved, that the city clerk and mayor are hereby authorized and directed to complete said purchase in behalf of said city according to the terms herein-before mentioned and that upon the proper execution of said papers the city clerk is hereby authorized to draw orders in favor of the owners one of $500 payable on presentation, one for $3,750 payable on or before one year from date, interest at 6 per cent, and the other for $3,750 payable on or before two years from date interest at 6 per cent, per annum, interest payable annually.
    “ Be it further resolved, that said property as above described and mentioned shall be used exclusively for park purposes.
    “Adopted by the following vote:
    “Yeas — Aldermen Lundberg, Ash, Gilpin, Dargan, Wheelock, Brackett, Tuttle.
    “Nays — None.
    “Nov. 20.”
    On January 15, 1907, the council took the following action:
    “Whereas, it appears that the council at its meeting held November 20, 1906, passed a resolution for the purchase of certain property hereinafter described for park purposes; and whereas, it appears that the purchase of said property was for the purpose of inducing the building of a new hotel and it appearing that said hotel is not to be built: Be it resolved, that the resolution passed by the council at its meeting held Tuesday evening, November 20, 1906, for the purchase of certain real estate described as lots 29, 30, 31, 34 and 36, in M. W. Horne’s first and second addition to the village (now city) of Cheboygan in said county of Cheboygan, Mich., for the sum of $8,000 to be paid as mentioned in said resolution and authorizing the city clerk and mayor to complete said purchase, be and the same is hereby rescinded.
    “Adopted by the following vote:
    “Yeas — Ash, Lyons, Gilpin, Dargan, Kessler, Ruggs, Tuttle — 7.
    “Nays — None.”
    On March 5, 1907, complainants tendered to the defendant a deed conveying the property in question to the defendant, together with an abstract of title. The mayor and city clerk refused the same upon the ground that the council had rescinded its action in making said purchase. Some time prior to the making of the contract in question the city of Cheboygan had, under proper authority, issued bonds to the amount of $25,000 “for the purpose of making public improvements in and purchasing land for park purposes for the city of Cheboygan.” At the time the contract was made this fund had been depleted as follows: On March 2,1904, $11,173.69 was transferred to the water fund, and on April 29, 1904, $12,151.25 was transferred to the general fund. A small park was purchased and improved at a cost of about $1,000 prior to the foregoing transfers.
    Specific performance was decreed by the court below, from which decree defendant appeals.
   Brooke, J.

(after stating the facts). The defendant urges two grounds of reversal: First, that the complainants are not entitled to a decree by reason of their laches; second, that the contract is void by reason of the fact that the municipality, at the time it entered into the same, had no funds with which to discharge the debt created thereby. It is apparent that the defendant city was anxious to secure the building of a hotel which would tend to induce tourist trade which is common to the northerly cities of the State. A proposal was received by the city to the effect that such an hotel would be built if the land in question in this suit were purchased for a public park. The city thereupon entered into this contract in question. Between November 20, 1906, and January 15, 1907, the hotel proposition, which was the inducing cause for the purchase of the land, was abandoned, and thereupon the common council attempted to rescind its action of November 20th. During this time, nearly two months, the complainants had, so far as the record shows, taken no steps to carry out their part of the contract. They had tendered neither deed nor abstract to the defendant, and the record discloses no reason for their failure to do so. They became aware, through the public press, of the attempted rescission by the council at or about its date, but not until .March 5th did they undertake to perform their part of the contract they now seek to enforce. In the meantime the hotel project which constituted the principal, if not the sole, inducing cause for the purchase, had been abandoned. It is urged on the part of the defendant that it is inequitable, under these circumstances, to compel specific performance. We are unable to agree with the contention of defendant as to laches. It will be noted that the contract, enforcement of which is sought, is silent as to the time of performance. The law would, therefore, imply that the performance was intended by the parties within a reasonable time. We are asked to say that delay on the part of the complainants from November 20th to January 15th is an unreasonable delay. We cannot so hold, particularly in view of the fact that the record fails to show that the delay of the complainants in tendering performance in any way influenced the failure of the hotel project. Of course, the attempted rescission by the council on January 15, 1907, relieved complainants from the necessity of hurried action thereafter. The council by that action notified complainants that defendant would not perform the contract on its part, and they were not obliged to make tender except as a prerequisite to their suit for specific performance.

The second ground for reversal urged by defendant is equally untenable. The city of Cheboygan had raised by the sale of bonds, duly authorized, the sum of $25,000, “for the purpose of making public improvements in and purchasing land for park purposes for the city of Cheboygan.” Less than $1,000 of this fund was expended in the purchase and improvement of land for park purposes. It is unnecessary to determine whether the $11,173.69 transferred from this fund to the water fund on March 2, 1904, was or was not a legal transfer. Conceding its legality, upwards of $12,000 remained in the fund which was afterwards transferred to the general fund, and which was more than sufficient to cover the price of the land purchased. This last transfer was clearly an attempted diversion of the fund in part from the pioper and intended use. In contemplation of law, therefore, the money for this purpose is still in the fund, and the council must return to it so much as is necessary to carry out the contract under discussion. See Mitchell v. City of Negaunee, 113 Mich. 360 (38 L. R. A. 157). It is perhaps unfortunate that the defendant city be obliged to purchase this park at a time when the inducement which moved it to action has ceased to exist. It, however, acted through its proper officers with deliberation and certainty, and we see no good reason upon this record why it should be permitted to escape the consequences of its action.

Decree affirmed.

Grant, Montgomery, Moore, and McAlvay, JJ., concurred.


author: Montgomery, J.

text:
    REESE v. LAMORE.
    Partition — Accounting—Evidence.
    On a bill for the partition between the heirs of a husband and wife of property held by them, and by the wife after the death of the husband, evidence examined, and held, that complainant was not indebted to the estates, requiring an accounting.
    Appeal from Berrien; Coolidge, J.
    Submitted January 21, 1909.
    (Docket No. 73.)
    Decided March 30, 1909.
    Bill by Josephine Reese against Gilbert N. Lamore and others for the partition of certain real estate. From a decree for complainant, defendants appeal.
    Affirmed.

      W. C. Hicks, for complainant.

      James O’Hara, for defendants.
   Montgomery, J.

The bill of complaint is filed for the partition of lands belonging to Louis Lamore, deceased, in his lifetime, and of other lands acquired by Sarah La-more after the decease of her husband, Louis Lamore. The complainant and defendants' are the sole heirs of these parties. Louis Lamore died testate, bequeathing the use of his real estate and control of all of his personal estate to his wife, Sarah Lamore, and certain specific legacies. The bill alleges an effort to secure a partition of the lands by negotiation, and refusal of defendants to consent. The answer admits the joint ownership of the lands, and states that they are desirous of having a partition and division of the premises, and are also desirous of having an accounting with the complainant for personal property belonging to the estate of Louis Lamore and Sarah Lamore, and allege that complainant is indebted to the estate for moneys and property intrusted to her by the mother in the sum of $20,000, and have asked that the complainant be required to account, under the direction of the court, for all she ought to account for concerning her indebtedness to said estates. The circuit judge was of the opinion that the defense had failed to make out that any sums of money had come to the hands of the complainant for which she should account, and entered a decree for partition. From this decree, defendants appeal.

Louis Lamore died on the 24th of January, 1899. His wife, Sarah Lamore, was appointed executrix, and took possession of the real estate and personal property, and continued to manage the same and dispose of it as she would her own, and none of the heirs seem to have made any question about her authority in this regard. She lived until the 6th of October, 1906, dying at the age of 83 years. She retained her mental faculties during all this time, and transacted the business in part personally and partly with the assistance of the complainant, Josephine Reese, and her husband, Reuben W. Reese. It is open to question as to whether the absolute power of disposition of the personal estate was vested in Sarah Lamore by the terms of the will; but no such question as this is raised in the answer or briefs of counsel, the sole claim being that moneys have come to the hands of the complainant for which she should account. The method by which this is sought to be established is to take the estate left by Louis Lamore, credit what is on hand, and show the fact that complainant and her husband lived in the family of Mrs. Lamore, and had much to do with the transaction of the business in collecting moneys due on notes and mortgages, coupled with the attempt to show that Mrs. Lamore had in her own right a considerable sum of money, which is not accounted for. The inference is sought to be drawn that this money must have found its way into the hands of the complainant and her husband.

As to the claim that Mrs. Lamore had a large amount of money of her own, we do not find it supported by the testimony. Undoubtedly, as between herself and her husband, some of the notes and mortgages were regarded as her own, and there is testimony that there was $2,600 in money in the house at the time of Louis Lamore’s death, which he on his deathbed directed his widow to take to make good a mortgage which he had taken in his own name for money which he had loaned belonging to her. Aside from this sum, there is no tangible evidence of any funds belonging to Mrs. Lamore, no showing of mortgages or notes or lands in her own name prior to the death of Mr. Lamore. There is some testimony as to statements that she claimed to have a certain amount of property. If such a claim was ever made, it must have referred to notes and mortgages which were in the name of her husband, and which were inventoried as part of his estate. The estate of Louis Lamore' at his decease inventoried at $43,428.99. Of this there was a specific legacy of a house and lot to the complainant, which was inventoried at $1,400, leaving $42,028.99. There was paid in funeral expenses, attorney’s fees, etc., $4,776.80. When Mrs. Lamore died, her estate consisted of the original land, which came to her possession under the will of Louis Lamore, amounting to $11,080; 157 acres of land which was obtained on foreclosure of mortgage given by one Farmer, $5,495; 320 acres of Oscoda land and a lot in Eau Claire, $800 — making $17,375 in real estate. Upon the appointment of the administrator de bonis non of the estate of Louis Lamore, there came into his hands $1,053.48. There was in Mrs. Lamore’s personal estate $18,716.47, making a total of $37,144.95, or almost identically the net amount of Louis Lamore’s estate after deducting expenses of administration, etc.

It is in evidence that in the meantime Mrs. Lamore had given to a granddaughter, Mrs. Hicks, the equivalent of $1,400, by discharging a mortgage upon a property owned by her husband upon condition that the husband would deed the property to his wife, the granddaughter, which was done. She also gave to each of the children $1,525, or a total of $7,625. She rebated from the Farmer mortgage $500, and from the mortgage of one Rextrew $300. If from this be deducted the $2,600 not inventoried, it would show an increment of $7,225 over and above living expenses. In addition to this, it is in evidence that various other gifts were made to the grandchildren of Mrs. Lamore in her lifetime. She also was under considerable unusual expense for a portion of this time. She made numerous visits to Detroit, taking with her one of her grandchildren for' company, and bearing the expenses. She was for a considerable period of time under á physician’s care, and had the attendance of a nurse. Under these circumstances, we think the evidence not only wholly fails to show that the complainants have received large sums of money, or any sum of money, from Mrs. Lamore, not accounted for, but that the estate has been on the whole fairly well husbanded.

The decree of the circuit court will be affirmed, with costs, and the case remanded for partition under the statute.

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


author: Blair, 0. J.

text:
    HERRON v. RAUPP.
    1. Statute of Frauds — Contracts — Oral Contracts — Performance-Time.
    An oral contract, the performance of which might be demanded, and the performance thereof possible, within a year, is not within the statute of frauds, although in the contemplation of the parties a longer period might be taken.
    2. Contracts — Breach—Damages—Loss of Profits.
    In an action for breach of a logging contract, in view of testimony based on the cost of such work in an ordinary season, and testimony that mill sites selected by the parties were the only suitable ones, and the failure to so locate them was defendant’s refusal to do so, the loss of profits were not so conjectural and speculative as to prevent a recovery.
    3. Same.
    Whether or not the contract declared upon was for .an entire tract of timber was properly submitted to the jury.
    Error to Iosco; Connine, J.
    Submitted January 20, 1909.
    (Docket No. 30.)
    Decided March 30, 1909.
    Assumpsit by William Herron against Gustav A. Raupp, Matthias Raupp, Jr., and John Seavitt, copartners as G. A. Raupp & Co., for breach of a logging contract. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Ignatius J. Salliotte (Ward B. Connine and Charles C. Stewart, of counsel), for appellants.

      William T. Yeo, for appellee.
   Blair, 0. J.

Plaintiff brought this action to recover the profits which he alleged he would have received if defendants, a copartnership, had not prevented his performance of an alleged contract with said firm to peel certain hemlock bark and log certain timber of defendants. The declaration alleges that the parties entered into a verbal contract on the 16th of May, 1906, whereby the defendants agreed that—

“In order to manufacture such timber they would place or cause to be placed on said lands forthwith portable sawmills to be located at suitable mill sites on said lands as follows, to wit: One mill site to be located on said lands on section twelve, one to be located on said lands in section fourteen, one to be located on said lands in section twenty-three, and one to be located near the center of said lands on sections twenty-seven and twenty-eight, all in township twenty-five (25) North, in range four (4) East, in said county of Oscoda,” etc., and that the plaintiff “was thereby induced to and did enter into a certain verbal contract whereby the said plaintiff then and there, in consideration of the payment of certain sums of money to be made by said defendants as herein stated, agreed to cut into sawlogs all the merchantable timber standing, lying and being on said lands, and to skid and haul all the said sawlogs sufficient to keep the sawmills to be placed on said lands forthwith as aforesaid in operation, said sawlogs to be delivered on skid ways without being decked, at the nearest mill sites selected by the said plaintiff and defendants as aforesaid, at the rate of at least two million feet, log scale, each season and as much more as said defendants should at any time order said plaintiff to cut and deliver as aforesaid, to be scaled (by log scale) on skidways at mill sites by some competent scaler to be agreed upon between said plaintiff and defendants, and to peel all merchantable tan bark from the hemlock timber on said lands.”

The testimony on behalf of plaintiff tended to show a contract with reference to peeling the bark and logging the timber. The testimony for defendants tended to show that the agreement related to the bark solely, and that they never made any agreement whatever with reference to logging the timber. Plaintiff testified that they selected two of the mill sites on the day they made the contract.

“ One was to be in 14 where the mill is now, and there was to be another mill in section 23 and 24 and one in 11 and 12 and one in 27 and 28.”

Defendants’ superintendent testified that two sites were talked of to handle the timber on sections 11 and 12, either on 12 close to the Gates branch or in the center between 11 and 12.

“ Q. What was said as to the, mill sites on 23 and 24?
“A. It was to be put on 23, put in the center or a little on the west side of the section.
“ Q. What was said about the mill site on 28 and 27 ?
“JL That was to be placed on what is called the big spring; there is water there, that is why. * * #
# “ Q. Outside of this one mill site, where the mill is now at the present time, was there ever any mill site located, positively decided outside of this one mill site ?
“A. There was other mill sites that we talked of as to where they would be located, where they put or agreed to put a mill in. * * *
“Q. About the mill sites selected in those different bunches of timber was there any other place in that timber that was suitable for mill sites other than you selected ?
“A. No, sir.”

As to the amount of timber to be put in, plaintiff testified:

“Q. What, if anything, was said about the manner in which they desired it put in as to amount?
“A. They wanted2,000,000 a year or more, notlessthan 2,000,000 a year, and more if they wanted it.
“Q. If they wanted more put in, you would have to put it in ?
“A. Yes.”
Defendants’ superintendent testified:
“Q. What was said between Raupp and Herron as to the amount that was to be taken off, how long it was to take ?
“A. He said the bark must be peeled first and then the timber must be cut, 2,000,000 or more, as much as they liked to have cut during the season.”

Plaintiff entered upon the performance of the contract, but was prevented by defendants from completing it as to the logging of the timber. Plaintiff recovered a verdiet, and defendants seek a reversal on various assignments of error; the principal ones being that the court erred in refusing to give defendants’ second and fourth requests to charge, and in charging the jury “that plaintiff could recover damages for the entire timber.”

Defendants’ second request was as follows:

“The evidence in this case conclusively shows that by the terms of the verbal contract the same was not to be performed in one year from the making thereof, and therefore the same is void, and your verdict must be for the defendants.”
Plaintiff testified that defendants informed him that they had four years within which to take the timber off.
“Q. Was it possible for you to carry out that contract with your equipage during that season ?
“A. I would have to if they put mills enough in to cut it all the way we talked.
“Q. Could you have managed to haul the logs to four different mills ? Did you have the men up there to do it ?
“A. We could get them in. * * *
“Q. And he wanted you to take the timber off within the four years ?
“A. Well, he said 2,000,000, or more if they wanted it, a year.
“Q. Did you understand by that, that if they wanted the entire 8,000,000, or 6,000,000 in one year, you could furnish it ?
“A. No; I didn’t figure on that.
“Q. You figured on furnishing about 2,000,000 a season, or a little over, if they wanted it ?
“A. Yes.”

Plaintiff testified as to the bark, as follows:

“Q. Did he state how much tan bark he wanted each year ?
“A. All I could take handy off 14.
“Q. Was it understood that your contract was to cover section 14 that year ? Were you to work upon any other section that season ?
“A. No; we didn’t talk about that.
“Q. You didn’t talk about whether you were to take any tan bark off any other section that season or not ?
“A. No; I wasn’t to take any more off any other place that year.
Q. And you were to start upon the other sections the next season P
“A. Yes, sir; and keep on.
“Q. That was all the work you were to do that year was to be done on section 14 ?
‘A. He did not say that year.
“Q. The season was to be done on section 14 ?
“A. Section 14.
“Q. And the next season you were to take up the next section ? How was that to be arranged ?
“A. Keep on, and wherever they would put the mill.
“ Q. "Was the mill to be changed that season or the next season ?
“A. To be changed whenever they got through. They didn’t know how soon — when they got that cut out. * * *
“Q. How many months were you actually engaged in peeling bark there ?
“A. I went there pretty early that season. I think it was about two months.
“Q. How much of the bark did you peel ?
“A. About 140 cords.
“Q. Did you have any arrangement about how long it was to take you to peel the bark ?
“A. No.
“Q. Did you understand that you were to go on the next season and peel the bark ?
“A. He didn’t say that he wanted it peeled the next season.
UQ. Was there anything said about how much bark you were to peel ?
“A. No, sir; only on 14. Peel what I could on 14 until the mill would start in.
“Q. You were not to peel any more bark that season, were you ? After the mill started, what were you to do ?
“A. I was to put logs into the mill and stock the mill. I let the job of peeling the bark.
“Q. And when were you to peel the bark next ?
“A. We didn’t say anything about that.
“Q. When the contract was made, didn’t he say anything about it then ?
“A. No. * * *
“Q. And it wasn’t possible to finish peeling that bark that season ?
“A. On 14.
“Q. On the other sections, is that right ?
“A. Yes.
“Q. And that was according to the talk you had with Mr. Raupp at the time these negotiations were going on about this contract ?
“A. There was nothing said about peeling bark another season.”

Defendants had paid plaintiff in full for the bark peeled before the suit was started. It was open to the jury to find from the testimony that the contract as to the bark related to section 14 for the season of 1906, and that complete performance of the logging contract within one year might by its terms be demanded, and that such performance was possible. It follows that the court did not err in refusing the request. Barton v. Gray, 57 Mich. 622; Smalley v. Mitchell, 110 Mich. 650.

Defendants’ fourth request was as follows:

“As the profits in this case which might have been made in the performance of the contract are conjectural, speculative, and dependent on chances, such as the location of mill sites, weather, and other conditions, there can be no recovery for them in this case.”

In support of this request defendants’ counsel argue in their brief:

“ Plaintiff testified as regards profit:
‘“Q. Wouldn’t your profits depend on the location of those mill sites ?
‘“A. Yes.’
“ He had also testified that defendants had agreed to have four mill sites, and that two of these had not yet been selected. As the profits of plaintiff would be dependent on the location of these mill sites, we submit there could be no recovery for them in this case under the rule laid down in McKinnon v. McEwan, 48 Mich. 106; Allis v. McLain, 48 Mich. 428; Petrie v. Lane, 67 Mich. 454.”

Mr. Ash, an expert land looker and lumberman, testified that “the timber on the lands was in bunches. There was four bunches of the timber.” He gave an estimate of the timber in each bunch, and a description of the physical and topographical characteristics and conditions, with maps and plats:

“Q. Now, the timber on sections 11 and 12, 23 and 24, and 27 and 28, you have said that it would cost about $1.50 to cut and skid it. What would it cost to put it upon the skids at the mill ?
“A. Well, about a dollar as a rule, some of it less. * * * On 14 the haul was so short it would not make any difference whether there was very much snow or not.
“Q. Then it would make a difference with the others?
“A. Yes; it would make a difference, but if you get a log loaded once you can draw it quite a piece for a dollar. That job could be lumbered at any time, and under any sort of conditions, and with very little added expense the timber could be trucked to the mill site, leaving out section 14 for that matter, for $1 a thousand. In my estimates I figured on an ordinary season.”

In view of this testimony and the testimony of defendants’ superintendent that the sites selected in the different bunches of timber were the only suitable mill sites, and that the failure to specifically locate all of the mill sites was due entirely to the defendants’ failure to keep its agreement to locate them, we do not think that the court erred in refusing to grant- this request. Rayburn v. Comstock, 80 Mich. 448; Lee v. Briggs, 99 Mich. 487; Industrial Works v. Mitchell, 114 Mich. 29.

In support of the assignment that the court erred in charging the jury “that plaintiff could recover damages for the entire timber,” defendants’ counsel contend:

“There was no evidence introduced by plaintiff showing a contract between him and defendants to log this entire tract of timber, and even under his own testimony the defendants could have discharged him at any time without entailing on themselves liability for breach of contract, and it Was error for the court to charge the jury that plaintiff could recover damages for the entire timber.”

We think there was sufficient evidence to the effect that the logging agreement covered the entire tract.

We have considered the other assignments, but think they are sufficiently covered by our previous discussion. The charge of the trial judge was eminently fair towards defendants, and was an able, clear, and correct presentation of the case to the jury.

The judgment is affirmed.

Grant, Montgomery, Moore, and McAdvay, JJ., concurred.


text:
    BETTINGHOUSE v. BETTINGHOUSE.
    1. Evidence — Ex Parte Statements — Admissibility.
    Ex parte statements of a decedent, not made in the presence of claimant, are inadmissible to show payment of a claim against the estate for services rendered decedent in her lifetime.
    2. Same — Claims—Estates of Decedents — Instructions — Question for Jury.
    Where, in such action, there was testimony that the services were rendered without expectations of pecuniary reward, the court could not decide, as a matter of law, that claimant was entitled to a judgment; the question being for the jury.
    Error to Kent; Wolcott, J.
    Submitted January 21, 1909.
    (Docket No. 53.)
    Decided March 30, 1909.
    Henry C. Bettinghouse presented a claim against the estate of Amelia Bettinghouse, deceased, for services rendered. The claim was allowed in the probate court, and defendant appealed to the circuit court. There was judgment for defendant, and claimant brings error. Reversed.

      Taggart & Taggart, for appellant.

      Doyle & McKenna, for appellee.
   Moore, J.

The claimant presented a claim of $1,800 against the estate of his mother for services and board rendered her from 1890 to June, 1902. The case was tried before a jury, which returned a verdict in favor of defendant. The case is brought here by writ of error.

It is the claim of claimant that he had an arrangement with his mother by which he was to board her, and to render services to her when she desired him to do so, and in return therefor she was to compensate him by provisions in her will. The record discloses that trouble arose between them in June, 1902, and that no service or board was rendered after that date, and no claim is made for services or board after that date. By her latest will Mrs. Bettinghouse left claimant but $5 out of a considerable estate. After the verdict of the jury was rendered, a motion was made for a new trial. This motion was overruled. Error is assigned:

(1) Upon the admission of testimony.
(2) Upon the charge of the court.
(3) Upon the remarks and argument of counsel.
(4) Upon the refusal to grant a new trial.
(5) That the judge should have directed a verdict in favor of claimant.

1. Was there error in the admission of testimony ? It will be remembered that no claim is made for what was done after June, 1902. Evidence was permitted of statements made by Mrs. Bettinghouse, not in the presence of the claimant, and also of statements made after June, 1902, as to her trouble with her son. An example is the following:

“I have heard her speak often about her business relations with her son Henry, but never heard her speak of her business relations when he was present. I never heard a conversation between the two nor in his presence.
“Q. Is there any other conversation or statement that you can now recollect that she made or had on her business relations with Henry? (The question was objected to as immaterial, irrelevant, and incompetent, unless claimant was present at the time of the conversation. Objection was overruled, and exception taken.)
(‘A. Why, yes; if I could go on and tell the whole story the way she said it, I could speak of a good many instances.
“Q. Do you remember of any one of them in particular now ? (The question was objected to for the same reason. Objection overruled and exception taken.)
“A. She told me often what she did for them.
“Q. What did she say on that subject ?
“A. She often told me what presents she had bought for Henry’s people.
“Q. What did she say they were, if anything? (The question was objected to on the ground before stated. Objection was overruled and exception taken.)
“A. Why, this gold watch, and she told me very much. They were all very good to her. One was a granddaughter, and she said something about buying a watch for the daughter. Whether it was for Nora or not I don’t know, and then she bought a watch for Nora’s daughter.
“Q. You had but little present knowledge of your own as to what Henry had done for his mother, haven’t you?
“A. I didn’t see him do anything, because I wasn’t there when he did anything; only what she told me he did. I think she detailed all the things he had done for her. She told me a good many things that he did.”

This is as favorable testimony as the record discloses, of any payment.

The judge in his charge used the following language:

“As to the express promise which Mr. Bettinghouse claims his mother made to pay him for his services and her board by giving him the homestead at her death, by will or otherwise, if you find such a promise was made, and if the claimant performed services for his mother, such as the agreement contemplated, and furnished her board under such agreement or understanding (and has not been paid for such services), then he is entitled to maintain a claim against his mother’s estate for such services as you find from the evidence were actually rendered by him for his mother, rendered pursuant to such agreement and for board at what such services and board were reasonably worth.”

We think the ex parte statement of Mrs. Bettinghouse was inadmissible under the following authorities: Van Fleet v. Van Fleet, 50 Mich. 1; Tolbert v. Burke, 89 Mich. 132; Coleman v. McGowan’s Estate, 149 Mich. 624. In view of the charge of the court above quoted, we do not think the claim of counsel that it was harmless error can be sustained.'

5. It is contended the judge should have instructed the jury that claimant was' entitled to recover some amount, and that they should decide the amount thereof under the testimony taken. There was testimony in the case from which the inference might be drawn that the services were rendered, and the board furnished, without the expectation of pecuniary reward. The judge could not decide, as a matter of law, that claimant was entitled to a judgment. The question was one for the jury.

The other assignments of error, which are well taken, grow out of the improper admission of testimony, and are not likely to be repeated.

Judgment is reversed, and new trial ordered.

Blair, C. J., and Grant, Montgomery, and MoAlvay, JJ., concurred.


text:
    PEOPLE v. SMITH.
    Motor Vehicles — Statutes—Construction—Motor Cycles.
    Under Act No. 196, Pub. Acts 1905, a motor cycle is a “motor vehicle, ” and subject to all the provisions and regulations of such act, relative to such vehicles.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted February 11, 1909.
    (Docket No. 153.)
    Decided March 30, 1909.
    Henry G. Smith was convicted of using and operating a motor cycle in violation of Act No. 196, Pub. Acts 1905.
    Affirmed.

      George P. Codd, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was tried and convicted before the police court of the city of Detroit for using and operating, upon the public highways of said city, a motor vehicle, to wit, a motor cycle, without displaying thereon a registration seal, and on the rear thereof a number, as provided by Act No. 196, Pub. Acts 1905. He appealed from such conviction to the recorder’s court of the city of Detroit, where, upon a jury trial, he was convicted. From this conviction he has brought the case to this court upon a writ of error.

It is urged that the court erred in holding that a motor cycle was, within the contemplation of the act relied upon, a motor vehicle. This is the only question presented. This act is entitled:

“An act to provide for the registration and identification of motor vehicles, the registration of chauffeurs, to regulate the use of motor vehicles and the use of public highways by such vehicles and persons passing such vehicles, and to provide penalties for the violation thereof.”

Section 1 of the act begins with the following definition:

“ The term and words ‘ motor vehicles,’used in this act, shall be construed to mean all vehicles propelled by power, other than muscular power, except traction engines and such motor vehicles as run only upon rails or tracks.”

For the present, at least, no further quotation need be made from this statute, which provides for the registration, identification, and regulation of these vehicles, operated or used upon the streets or highways of the State. It is not contended by respondent that a motor cycle is not a vehicle; and, in view of the decisions of this court, such contention could not be successfully maintained. Myers v. Hinds, 110 Mich. 300 (33 L. R. A. 356). Respondent’s contention is, as we understand it, that it is apparent from this statute that the legislature did not have in contemplation motor cycles; that from their size and construction the requirements of the statute are not applicable, particularly in the size and location of the registered number and lamps. If a bicycle is a vehicle, as determined in Myers v. Hinds, supra, then a motor cycle is included in the statutory definition. The distinction between bicycles and motor cycles is that one is propelled by muscular and the other by mechanical power. This court, in Murfin v. Plank-Road Co., 113 Mich. 675 (38 L. R. A. 198) (a case where the defendant sought to take toll from plaintiff, who was riding a bicyle), made this distinction clear, holding that the bicycle was not within the toll road statute. In the course of that opinion the court said:

e ‘ If this question arose with reference to a four-wheeled vehicle propelled by steam or electricity, there would probably be little doubt of the right to charge and collect toll. * * * The use of two wheels instead of four, if propelled by a motor, as they are liable any day to be, would hardly suffice to distinguish them from the heavier and more cumbersome vehicle; and we hesitate to say that the courts could with propriety hold a motor cycle could escape tolls under this statute, notwithstanding the fact that only vehicles drawn by animals are mentioned in the act. We think, however, that a distinction may be made between vehicles propelled by man and those depending upon animal power or mechanical motors for propulsion, and that this would not do violence to the act, which has always been construed to permit the use of highways by persons who did not depend upon some means of conveyance besides their own powers of locomotion.”

It seems clear to us that a motor cycle is a motor vehicle, and has been so defined by this court. By what process of reasoning may we exempt it from the statutory regulations which include “all vehicles propelled by power other than muscular power?” It is argued that from its size and conformation the legislature could not have intended that lamps and large numbers should be placed upon it. This motor vehicle, although not a large machine, can easily run at the rate of 40 miles an hour, and the danger of injury from it to pedestrians and others differs only in degree from that presented by the larger motor vehicles. All of the reasons which would induce and require the legislature to regulate automobiles apply to the regulation of motor cycles. The court is satisfied that they are motor vehicles within the contemplation of this act, and subject to its provisions.

The conviction is affirmed.

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


text:
    TABOR v. BOARD OF SUPERVISORS OF BERRIEN COUNTY.
    Health — Statutes—Compensation op Health Oppioers.
    The performance of, and compensation for, duties clearly specified in sections 4460, 4462, 2 Comp. Laws, preclude the right to a claim for such services under section 4424, 2 Comp. Laws.
    Certiorari to Berrien; Coolidge, J.
    Submitted February 9, 1909.
    (Calendar No. 23,194.)
    Decided March 30, 1909.
    Mandamus by Roland B. Tabor to compel the board of supervisors of Berrien county to audit and allow a claim for medical services rendered in cases of contagious diseases. There was an order denying the writ and relator brings certiorari.
    Affirmed.

      George W. Bridgman, for relator.

      William H. Andrews, Prosecuting Attorney, for respondent.
   Blair, C. J.

Relator was the health officer of the city of Benton Harbor from December 1, 1903, to April 30, 1906. During that period of time relator from time to time disinfected and fumigated houses in which were or had been contagious and dangerous communicable diseases, for which he presented this claim to respondent. The first item charged is under date of December 14, 1903, and the last item, March 12, 1906. The cases necessitating the services charged for were smallpox, 2; typhoid fever, 2; scarlet fever, 9; consumption, 12; diphtheria, 28; measles, 17; pneumonia, 7. The board of supervisors refused to allow relator’s claim, and their action was sustained by the circuit court. The proceedings are before this court on certiorari to review the action of the circuit court in refusing relator’s application for the writ of mandamus.

It is the contention of relator that he is entitled to compensation from the county under the provisions of section 4424, 2 Comp. Laws. Respondent contends that the services rendered were the ordinary services required of a health officer by section 4460, 2 Comp. Laws, and which were compensated by the salary which it is conceded was provided for relator. We are of the opinion that the position of the respondent is well taken. Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 276. Section 4460 is section 1 of Act No. 137, Pub. Acts 1883, entitled :

“An act to specify certain duties of health officers and provide for compensation therefor, in townships, cities and villages where the health officer is not otherwise instructed by the local board of health.”

Section 4460 specifies the duties to be performed, among which is the duty of investigation passed on in the Browne Case. The same section makes it the duty of the health officer “to disinfect rooms, clothing, and premises and all articles likely to be infected before allowing their use by persons other than those in isolation.” Section 4462, 2 Comp. Laws — section 3 of the act — provides that:

“In the fulfillment of the requirements of this act, the health officer, unless other provision shall have been made in accordance with law, shall be entitled to receive from the township, city or village of which he is health officer, compensation at the rate of not less than two dollars per day,” etc.

It was the plainly expressed object of the statute to specify relator’s usual duties as health officer and to provide the compensation for the specified duties. The service performed by relator was in discharge of a clearly specified duty, and the compensation therefor was provided for in section 4462, or in the provision for a salary c{ made in accordance with law.” The decision in Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 276, applies to all of the duties required of the health officer under section 4460, and not to the first alone.

The order of the circuit court is affirmed.

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