text:
    PEOPLE v. BUTTS.
    1. Embezzlement — Officers of Corporations — -Intent.
    Under 3 Comp. Laws, § 11591, providing for the punishment of any officer of an incorporated company who embezzles or fraudulently converts to his own use any money of the company coming to his possession, an officer who designedly appropriates any such funds to his own use is liable, though he may have intended to return them.

      2. Same — Defenses.
    And it is no defense that such misappropriation was with the knowledge and apparent acquiescence of one or more of the directors of the corporation.
    3. Same.
    The secretary of a corporation cannot escape liability under said statute by the fact that; under the by-laws of the company, the treasurer was the custodian of its funds, where such by-laws were disregarded in the conduct of the business, and the funds converted actually came to the possession of the secretary.
    Exceptions before judgment from superior court of Grand Rapids; Newnham, J.
    Submitted March 5, 1901.
    Decided September 25, 1901.
    William M. Butts was convicted of embezzlement.
    Affirmed.

      L. B. Gardner and Me George Bundy, for appellant.

      Horace M. Oren, Attorney General, and Frank A. Rodgers, Prosecuting Attorney, for the people.
   Moore, J.

An information was lodged against the respondent, reading as follows after the formal heading:

“Prank A. Rodgers, prosecuting attorney for the county of Kent, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the May term thereof, A. D. 1900, and gives it here to understand and be informed that one William M. Butts, late of the city of Grand Rapids, of the county of Kent, on, to wit, the 1st day of March, 1899, at the city of Grand Rapids, county of Kent, aforesaid, being then and there an officer, to wit, secretary, of the Worden Grocer Company, an incorporated company organized and existing under and by virtue of the laws of the State of Michigan, and not being then and there an apprentice nor other person under the age of sixteen years, did, by virtue of his said employment, then and there, whilst he was such officer of said incorporated company, as aforesaid, receive and take into his possession certain money to a large amount, to the amount of, to wit, nine thousand (9,000) dollars, and of the value of nine thousand (9,000) dollars, of the property of the said Worden Grocer Company, the incorporated company aforesaid, and which said money came to the possession of the said William M. Butts by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said Worden Grocer Company, the incorporated company aforesaid, his said employer; and the said prosecuting attorney further gives the court to understand and be informed that the said William M. Butts then and there, in manner and form aforesaid, the said money, the property of the said Worden Grocer Company, the incorporated company aforesaid, his said employer, from the said Worden Grocer Company, the corporation aforesaid, feloniously did steal, take, and carry away, contrary to the statute,” etc.

The respondent was tried by a jury, and convicted. The case is brought here on exceptions before sentence.

There are 145 assignments of error.' The case is greatly simplified by the testimony of the respondent, who was a witness in his own behalf. The record discloses that, during the temporary absence in Chicago of the respondent, a large discrepancy was found between the cash account as kept by him and the cash on hand. A telegram was sent to him, asking his return to Grand Rapids, and he came at once. An interview was had between him and the officers of the company, which it is not necessary to detail. Shortly after this, respondent had at least two interviews with Judge Wanty, who was acting as the attorney for the company. Upon the trial Judge Wanty testified as to what was said at the interview of October 19th in part as follows:

“I asked him what the shortage was, and he said that the books now showed something between $38,000 and $39,000; and I asked him if any one took it — any of this money — except himself, and he said ‘No,’ he was responsible for it, but that he was quite sure there would be some errors found that would reduce this amount; and I asked him how much he took, and he said he took, he should think, about $10,000; and then I asked him again what he did with it, and he replied that the money he received for his salary he turned over to his wife every Saturday night; got it in an envelope; and that everything outside of the actual living expenses at the house, for which this was expended, he took the money from the company from time to time to pay; and he said that he had sent his father money enough so that he had practically kept his father’s family, who lived in Ohio, and that money he had taken from the company, and these investments, — his insurance policies. He said that he had had doctors’ bills that had amounted to, some years, as much as $300, which he paid; but he said that the whole amount that he had taken did not amount to as much as the books show. * * * I then asked him what he had done with this money, and he said nothing any further than what he had said; and I said then, 'The impression is that you have been dealing on the Chicago market in margins, in pork or wheat or something of that sort;’ and he said, ‘ No,’ he had not. * * *
“Q. Do you remember, Mr. Wanty, in any of these conversations, of asking Mr. Butts anything in regard to his private account upon the books ?
“A. Yes, sir; and I think that was in the first conversation. I asked Mr. Butts if any of this money had been charged to him. I asked him first if he had an account on the books, and he said, ‘ Yes, I have an account on the books, but it refers only to a lawsuit;’and I said, ‘Was any of this money charged to you on the books ? ’ and he said, ‘ No, we pay by the envelope system, and no money that was paid to me for my salary, or any of those sums that I took, have ever been charged to me on the books.’
“The Court: I would ask if this last reply, ‘None of this money was charged on the book,’ did that have reference to his salary, or what ?
“A. He said that neither his salary nor any other money that he had taken was charged in an account against him on the books.”

Mr. Butts, among other things, testified as follows:

“I was one of the directors and secretary of the Worden Grocer Company from 1895 to the 16th of October, 1899. At the time the company was organized, C. F. Rood, N. F. Avery, W. F. Blake, W. L. Freeman, W. D. Tel-ford, C. W. Garfield, and myself became the directors. A. E. Worden was president, W. D. Telford vice-president, W. L. Freeman treasurer, and myself secretary. * * *
“ Q. I understood you to say that you told Mr. Wanty substantially as he told it here upon the stand ?
A. Yes, sir.
Q. Judge Wanty testified that you told him that you gave your wife your salary, as you drew it weekly, for the current expenses of the house.
“A. Yes, sir.
Q. That was true, wasn’t it?
“A. Yes, sir.
Q. That you paid your coal bills, and your doctors’ bills, and all of your personal expenses out of money that you took from the Worden Grocer Company. That is true, isn’t it ? Now, I am referring to these six months from March 1st to September 1st.
“A. That is substantially right; yes, sir.
“Q. How much money did you spend for insurance from March 1 to September 1, — March 1, 1899? I will state now, whenever I inquire of you about any transaction in this regard, unless I especially mention it, I mean the period covered by this information, from March 1 to September 1, 1899.
“A. Why, I think, about $75 or $80 during that period. ❖ ^ 5l«
“Q. That was $75 or $80 you took from the Worden Grocer Company?
“A. Yes, sir.
“Q. How did you take it?
“A. Currency.
“Q. Out of the drawer ?
“A. I presume I did, or out of the safe.
“Q. You are not able to tell the jury whether you took it out of the drawer or out of the safe ?
“A. I could not say; no, sir. * * *
“Q. Did you buy any coal during that time ?
“A. Yes, sir; I think I did.
“Q. Where did you get the money to pay for that ?
“A. The Worden Grocer Company.
“Q. Did you take that in currency ?
“A. I presume I did; yes, sir.
“Q. How much did you pay for the coal?
“A. Well, I generally paid, I presume, $15 or $25. I generally bought two or three tons at a time.
“Q. You are not able to tell this jury how much money you took during that period for coal for your own private family purposes ?
“A. I say probably $15 or $25. * * *
“Q. You sent your father during that period $315 ?
“A. Yes, sir.
“Q. Where did you get that money ?
“A. The Worden Grocer Company.
“Q. Did you take it in currency ?
“A. Yes, sir.
“Q. Where did that money come from, — from what source ?
“A. Why, it came in the general run of business; from the customers who paid their bills, generally.
“Q. Now, can you tell any other bills that you paid during that period besides the money that you put into the Cycloid Company and the mail-bag business and the air-gun business?
“A.' Yes, sir; I think I paid a doctor’s bill along about July 1st.
“Q. How much?
“A. My recollection is that my bill was about $90.
“ Q. And where did you get that money ?
“A. - The same place.
Q. From the Worden Grocer Company ?
“A. Yes, sir.
“Q. Took it in currency out of their money ?
“A. Yes, sir.
Q. To pay your doctor ?
“A. To pay my doctor.
“Q. Can you tell any other money that you took out of the money of the Worden Grocer Company that you have not mentioned ?
“A. Why, there would probably be no doubt some items like three or four or five or ten dollars for my own personal expenses.
Q. You took that out of the Worden Grocer Company?
“A. Yes, sir.
Q. Now, can you think of any other moneys that you took out ?
“ A. Outside of the investments in these different companies, do you mean ?
D Yp=!
“A. No, sir; I don’t.
Q. Now, as a matter of fact, whenever you wanted any money for your private use, you went to the drawer and took it, didn’t you ?
“A. Yes, sir.
Q. You took whatever you wanted, whether it was-|90 to pay your doctor, or $5 or $10 for your personal expenses, you went and took it ?
“A. Yes, sir.
Q. And you are confident that that amount of money that you took in that way during this six months-amounted to something like $1,500 ?
“A. Yes, sir; about that.”

This testimony discloses, as plainly as words can express, that, while respondent was secretary of the company, funds belonging to the company came into his possession, which he appropriated to his own use; not inadvertently and unintentionally, but designedly and intentionally, knowing the funds belonged to the company, and not to himself. Taking his own version of the transaction, there is not a single element of the offense described by the statute lacking. Act No. 114, Pub. Acts 1897 (3 Comp. Laws, § 11591); People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582). It is true, the respondent says he intended to return the money, but that does not do away with the offense. It is doubtless true that nearly every employe who misappropriates funds intends to return them to his employer, and to do this before the misappropriation is discovered. But this intention does not prevent the act from becoming a crime. The crime consists in the intentional appropriation of the money by the employe of the employer. It is true, too, that respondent claims that one or more of the directors-of the company knew what he was doing, and did not object to it. This is denied by the other officers of the-company, but, whether true or false, it does not excuse the respondent. Two or more of the directors of the company could not appropriate the funds of the company to their own personal use, and be justified in doing so. The judge did not charge the jury that the testimony of the respondent made out a case against him, but left the question of intent to the jury. This was quite as favorable to-the respondent as he had a right to ask. People v. Hawkins, 106 Mich. 479 (64 N. W. 736); People v. Schottey, 116 Mich. 1 (74 N. W. 209).

But one other question calls for discussion. The respondent introduced in evidence sections 14 and 15 of the by-laws of the company, which read as follows:

Seo. 14. The secretary shall keep a record of all proceedings of stockholders’ or directors’ meetings. He shall give all necessary notices. He shall be the custodian of the seal, and affix the same to all documents when necessary. He shall attend to the issuing of the certificates of stock, and shall keep a record of all stockholders, their respective residences, and the number of shares held by each, and shall perform such other duties as may be assigned to him by the board of directors.
“ Sec. 15. The treasurer shall be the custodian of all notes, deeds, and valuable papers belonging to the said corporation; shall collect and receive all money due this corporation. He shall keep proper books of accounts, and a faithful record of all property of this corporation that may come into his possession, and shall cause an annual inventory to be taken, and shall have the same and all other information requisite to the full understanding of the financial condition of said corporation at each annual meeting of the stockholders, and shall perform such other duties as the directors may assign to him.”

It is insisted that the treasurer of the company was the custodian of the funds, and the secretary was not, and the funds misappropriated by the respondent did not come into his possession by virtue of his office as secretary, and therefore he is not guilty. It is true, the by-laws prescribe the duties of the two officers. The record, however, discloses that in the practical management of the business no attention was paid to these by-laws. The treasurer did not in fact collect and receive the moneys due the corporation. They were nearly all of them received by the secretary, and some of them were misappropriated by him.

The other questions raised by counsel have been examined, but we deem a discussion of them unnecessary. The verdict is affirmed, and the case will be remanded to the court below, with instructions to proceed to judgment.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    JOHNSTON v. KING.
    Contracts — Consideration—Patent Eights — Specific Performance.
    Defendants, the owners of certain patents on carpet sweepers, entered into a contract with complainant J., whereby they were to convey to him an interest in the patents, “ and all improvements thereon,” in consideration of his organizing a corporation with sufficient capital to manufacture the sweepers. The assignment was to be placed in escrow, and delivered on satisfactory performance of the contract on his part; and to the corporation, when organized, the parties were to convey the patents and improvements in exchange ' for a specified proportion of its capital stock. A corporation was formed, though on somewhat different lines than contemplated, and J. and defendants assigned to it the existing patents, and stock was issued to them therefor; but the original assignment to J. was never delivered. J. failed to bring any money into the business, and the company soon became involved, and its assets were sold on chattel mortgage. Subsequently a patent issued to defendants for certain improvements, and J., the corporation, and the purchaser at the mortgage sale brought suit to compel a conveyance of the patent according to the original contract. Held, that the bill would not lie, there having been a failure of the consideration for defendants’ agreement.
    Appeal from superior court of Grand Rapids; Newnbam, J.
    Submitted April 4, 1901.
    Decided September 25, 1901.
    Bill by William T. Johnston, James Stewart, and the King Carpet-Sweeper Company against Charles King, Walter E. Moore, and the Automatic Sweeper Company for specific performance of contract. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      L. V. Moulton (Burlingame & Belden, of counsel), for complainants.

      Judkins & Perkins and Stuart & Barker (Charles-E. Ward, of counsel), for defendants.
   Moore, J.

In March, 1899, William T. Johnston,

and James Stewart, for the King Carpet-Sweeper Company, filed a bill in chancery against Charles King and Walter E. Moore in the superior court of Grand Rapids, substantially alleging:

“That on the 30th day of February, A. D. 1897, Charles King and Walter E. Moore entered into a contract with William T. Johnston to organize a joint-stock company, to be known as the King Carpet-Sweeper Company, of the capital stock of which the said Charles King and Walter E. Moore were to receive two-fifths for and in consideration of the assignment to said company of certain American and foreign patents therein named, together with any and all improvements thereon of which they might become possessed, for full particulars of which agreement reference is made to the said contract, a copy thereof being made a part of this bill.
“That the company was duly organized in accordance with said agreement, and the two-fifths of the capital stock of the same turned over and transferred to the said Charles King and Walter E. Moore, and, as your orators are informed and believe, all and every other of the obligations of said contract to-be performed on the part of the said William T. Johnston and the King Carpet-Sweeper Company have been so performed in good faith, and in accordance with the terms and conditions of the same.
“ That the said Charles King,- subsequent to the making of said contract, and acting under the provisions thereof, did claim to invent an improvement in carpet sweepers which is an improvement on the devices shown in the patents enumerated in said contract, and is included in the terms of the said contract under the head of the improvements upon the said patents, which said improvements said Charles King and Walter E. Moore thereby agreed to convey and turn over to the King Carpet-Sweeper Company.
“That on or about the 17th day of May, 1898, the said Charles King made application in due. form for a patent of the United States on said alleged invention and improvement, and assigned one-half of the same to the said Walter E. Moore, and thereupon, after due proceedings had, there was issued a patent of the United States, numbered 616,870, and dated December 37, 1898, to the said Charles King and Walter E. Moore, which said patent describes and claims the said invention and improvement, and which patent, by virtue of the aforesaid contract, they, the said Charles King and Walter E. Moore, are in equity and good conscience in duty bound to assign, set over, and convey to the said King Carpet-Sweeper Company.”

The prayer for relief is that the said defendants may be restrained by an injunction from selling or in any wise disposing of the title to the said patent of the United States, No. 616,870, dated December 27, 1898, granted to-Charles King and Walter E. Moore; also that said defendants and others may be enjoined from granting any license of any nature to any person or persons claimed and granted under and by virtue of said patent, until the further-order of the court.

“That it be decreed that the defendants, and each of them, shall specifically perform the agreement so made and entered into by them as aforesaid with your orators, your orators being ready and willing, and hereby offering, to specifically perform the said agreement in all things on their part and behalf.

“ That it be decreed that the defendants assign, convey, and set over unto the said King Carpet-Sweeper Company the entire right, title, and interest in and to the patent of the United States for improvement in carpet sweepers, numbered 616,870, and dated December 27, 1898, and granted to Charles King and Walter E. Moore.”

The contract referred to in the bill reads as follows:

Whereas, Charles King and Walter E. Moore are the ^ owners of letters patent number 563,388, issued July 7, ’ 1896, and 575,960, issued January 26, 1897, containing improvements in carpet sweepers, the same having been issued from the patent office at Washington, D. C.; and
Whereas, they are also the owners of letters patent number 257,886, issued October 26, 1896, by the French republic, and letters patent number 14,106, dated June 25, 1896, issued by the kingdom of Great Britain; and
Whereas, said Charles King and Walter E. Moore have this day conveyed to William T. Johnston an undivided one-fifth (1-5) interest in and to said letters patent, and all improvements thereon, for the stated consideration of four thousand (4,000) dollars; and
Whereas, the said William T. Johnston, in payment of the consideration aforesaid, makes the agreements hereinafter set forth to be performed on his part:
“It is therefore mutually agreed between the said Charles King and Walter E. Moore and William T. Johnston that the patents aforesaid, and all improvements thereon, shall be transferred and assigned to a corporation hereafter to be organized, to be known as the King Carpet-Sweeper Company, or by such other name as may be hereafter decided upon; and it is further mutually agreed that, by whatever name said corporation shall be organized under, the name of King shall appear upon the sweepers to be manufactured under the patents aforesaid.
“It is further mutually agreed between the parties hereto that, upon the organization of said company, the patents aforesaid shall he assigned thereto for two-fifths (2-5) of the capital stock to be issued by said company, to be divided between the parties as their interest in said patents shall appear.
“And it is further mutually agreed that the assignment and deed aforesaid to said letters patent from the said Charles King and Walter E. Moore to said William T. Johnston shall be placed in escrow until the satisfactory performance of the covenants and agreements herein specified to he performed by the said Johnston.
“ The said William T. Johnston, in consideration of the premises, agrees to organize a joint-stock company under the laws of the State of Michigan, with a capital stock of not less than fifty thousand (50,000) dollars, of which the parties hereto shall hold two-fifths (2-5), and that he will perfect such organization on or before six months from the date hereof; and, further, that all subscriptions for stock in said company shall be bona fide, and the entire amount thereof shall be subscribed by good and responsible parties.
“ The said Charles King and Walter E. Moore agree that, on the organization of said company as aforesaid, they will cause to be delivered to said William T. Johnston the deed deposited in escrow as aforesaid; and it is mutually agreed between the parties hereto that, in case of failure on the part of the said William T. Johnston to perfect said organization, the deed aforesaid shall be redelivered to the said Charles King and Walter E. Moore, and by them destroyed.”

The answer of Mr. Moore was by his guardian, who alleged the insanity of Mr. Moore, and the inability of the guardian to learn from him the facts. Mr. King answered fully to the bill, admitting the making of the contract,—

“But denies that it was a lawful and binding contract, by reason of the fraud practiced upon this defendant by the said William T. Johnston at the time of making the same, as hereinafter more fully set forth. He denies that, by the terms of said agreement, said defendants were to assign to the King Carpet-Sweeper Company, when organized, in addition to the patents mentioned therein, any and all improvements thereon of which they might become possessed, as alleged in said paragraph.
“ He denies that the King Carpet-Sweeper Company was organized in accordance with said contract and agreement, and he denies that the stock turned over to these defendants on such organization was in accordance therewith. He denies that the obligations mentioned in said contract to be performed by the said William T. Johnston, or any of them, were performed by him, and he avers that they never have been performed. He further avers that the organization of said King Carpet-Sweeper Company was perfected by others, who were interested in said business before the making of said contract with said Johnston, and that such other persons, on their own behalf, and without knowledge of said agreement, and without the material assistance of said Johnston, organized said company, and issued stock to said defendants, upon an altogether different basis than mentioned in said agreement. And he further avers that, in consideration of said Johnston’s agreement to secure a certain amount of capital from outside sources to conduct said business, the said Johnston was given a portion of the capital stock issued by said concern, and was made one of the incorporators thereof; but that said Johnston never secured a single dollar of outside capital, nor contributed a single dollar of his own for said stock, or towards the conduct of said business, but, on the contrary, through his manipulation of the affairs of the concern, he became the manager thereof, and from that time forth, and until the winding up of the business of said concern by a sale under chattel mortgage of all its assets, as hereinafter set forth, drew regularly his salary as such manager. He denies that said complainants have in good faith, or in any other way, performed the conditions of said agreement in accordance with the terms and conditions of the same, as alleged in said paragraph two.
“He admits that, subsequent to the making of said contract, he invented an improvement in carpet sweepers, but he denies that he was acting under the terms of said contract in inventing the same, or that the same is enumerated therein; and he denies that said defendants, by-said contract, thereby agreed to turn said invention over to the King Carpet-Sweeper Company, or to any one else, as alleged in paragraph three.
“He admits the filing of an application for a patent on or about May 17, 1898, the assignment of a one-half interest therein to the defendant Walter E. Moore, and the issuing to these defendants of a patent of the United States numbered 616,870, as alleged in the fourth paragraph of said bill; but he denies that said invention belongs to the King Carpet-Sweeper Company, or that these defendants are in equity and good conscience bound to assign, set over, and convey said patent to said concern by virtue of said contract, or for any other reason.
“Pie denies that he has ever been requested to assign said patent to the King Carpet-Sweeper Company, but avers that he would have refused so to do had any such request been made. And he further avers that these defendants are not now the owners of said patent numbered 616.870, and have not been the owners thereof since the 6th day of February, 1899; that on said date the said defendants, for a valuable consideration, to them in hand paid, duly sold, assigned, and set over to the Automatic Sweeper Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, all their right, title, and interest in and to said patent numbered 616.870, and that the said Automatic Sweeper Company is now the absolute owner thereof, and was such owner at the time of the commencement of this suit.
“That, at the time said contract was entered into, the said William T. Johnston represented and claimed to these defendants that he had control of at least $50,000 capital, which he could and would secure towards the organization of a company thereafter to be organized to manufacture carpet sweepers under the patents then owned by these defendants, and mentioned in the contract aforesaid, and that he would procure bona fide subscriptions to the stock of such corporation to the amount of at least $50,000. But he avers that said Johnston did not at said time have control of $50,000, or any sum whatever, and that the representations so made to defendants were false and fraudulent, and were intended to and did mislead defendants into signing said contract; all of which they would not have done had they known the truth, which they did not know, but relied wholly upon the representations so made as aforesaid. That said Johnston never secured a single bona fide subscriber for stock to the organization afterwards formed. Further, that the assignment and deed mentioned in said contract, left in escrow, to be delivered to said Johnston on the satisfactory performance by him of the covenants and agreements mentioned in said contract, was never called for by said Johnston, and was subsequently redelivered to these defendants on account of the éarly abandonment by said Johnston of said contract.
“That the organization of the King Carpet-Sweeper Company took place on the 25th day of February, 1897, that being the day on which the articles of association were signed and filed, which was only five days after the making of said alleged contract with said Johnston; that the capital stock of said company was $60,000, divided into 6,000 shares of $10 each, of which these defendants subscribed for and received 1,260 each, the said Johnston 480, John G. Kalmbach 500, and James Stewart 200,— making in all 3,700 shares; that these defendants, together with said Kalmbach and Stewart, had for some time prior to said organization been manufacturing carpet sweepers under the defendants’ said patents by virtue of ah agreement then existing between them; that by reason of said Johnston’s claims and representations, made to said Kalmbach and Stewart as well as to these defendants, that he had control of a large amount of capital, which he could and would bring into said corporation by subscriptions for stock thereafter to be made, 480 shares of the capital stock of said company were issued to him, for which he never paid a single dollar, nor did he ever secure a single dollar to be subscribed for capital stock in said company.
“That, after its organization as aforesaid, said company commenced doing business, and that these defendants were employed by it, — the said Moore as its secretary, and this defendant as its traveling salesman; that the said Johnston took charge of the office as manager; that on or about the 14th day of December, 1897, these defendants, together with said Kalmbach, Stewart, and Johnston, joined in an assignment of two of the letters patent mentioned in said alleged contract, and an application then pending in the patent office at Washington, to the King Carpet-Sweeper Company, and it then and thereby became the owner thereof; that, soon after such assignment, said King Carpet-Sweeper Company, without the knowledge of this defendant, gave a trust mortgage covering all its assets and property to the said John G. Kalmbach, to secure advances he had made to the company from time to time, which mortgage was subsequently foreclosed, and the entire assets and property of said company sold to the said James Stewart for the sum of $3,600; and this defendant avers, on the statements made by said Stewart subsequent to his alleged purchase, that the said Johnston and Kalmbach became, and are still, joint owners with him of said assets and property.
“.That said King Carpet-Sweeper Company exists only in name; that it has absolutely no property, and has not conducted business since the sale aforesaid, which took place in June, 1898; that it practically ceased doing business several months before said last-named date; and that in the month of April, or thereabouts, and after the giving of said chattel mortgage, the services of this defendant and said Moore were dispensed with, and they were discharged, and from that time they had nothing whatever to do with or to say concerning the management of said company, but the same was managed and conducted by the said Johnston, Stewart, and Kalmbach.
‘ ‘ That the procuring of said assignment December 14, 1897, the giving of said chattel mortgage February 1, 1898, the discharge of these defendants in April, 1898, the filing of said mortgage May 28, 1898, the foreclosure of the same, the. purchase of all the assets and property by said Stewart, the interest therein of said Johnston and Kalmbach, together with the wrongful manipulation of said business by all three of said parties during the time it was a going concern, all constitute an improper and unlawful effort on the part of said parties, and particularly of the complainant herein, William T. Johnston, to fraudulently dispossess these defendants of their interest in said company, in all of which they, and particularly the said Johnston, have succeeded; and defendant therefore avers that on account thereof the said Johnston does not come into this court with clean hands, and is not entitled to any relief whatsoever at the hands of this court.
“That on the 27th day of January, 1899, these defendants filed their bill of complaint in the circuit court of the United States for the Western district of Michigan, Southern division, against the above-named James Stewart and the King Carpet-Sweeper Company for infringement of the patent numbered 616,870, so issued as aforesaid to these defendants December 27, 1898, which suit is still pending; and that on April 1, 1899, defendants in said cause, James Stewart and the King Carpet-Sweeper Company, filed their plea therein, containing substantially the same allegations as to title to said patent being in the King Carpet-Sweeper Company as are set forth in the bill of complaint in this cause; and on the same day this suit was commenced in the superior court of Grand Rapids, and a temporary restraining order was issued on the filing of the bill herein, which last suit was commenced, as this defendant verily believes, and therefore avers, for the express purpose of annoying and harassing these defendants, and causing them unnecessary and additional expense, without any just cause whatsoever. And this defendant prays the benefit of this answer in the nature of a cross-bill, and that said complainants may be required to pay such damages as this court may award, in addition to the taxable costs herein, for the unnecessary and malicious prosecution of this suit, and that this defendant may have such other and such further relief in the premises as may be just and equitable under the circumstances.”

Upon the coming in of this answer an amended bill was filed, in which William T. Johnston, James Stewart, and the King Carpet-Sweeper Company were complainants. It alleged the making of the agreement of February 20th; that the deed was placed in escrow ;• — ■

“That thereupon, and without allowing six months, or any other reasonable time, for the performance on the part of said Johnston of the said agreements, and at the suggestion and urgent solicitation of said King and Moore, on, to wit, the 24th day of February, A. D. 1897, the King Carpet-Sweeper Company was organized, and that then and there the terms and conditions of said contract were modified by mutual agreement and consent, ¿nd without objection on the part of said King and Moore, whereby the said company was capitalized at $60,000, divided into 6,000 shares of $10 each, of which the parties to the said contract (King, Moore, and Johnston) received one-half of the entire capital stock, divided as follows: King and Moore, each, 1,260 shares, and Johnston 480 shares, John G. Kalmbach received 500 shares, and James Stewart received 200 shares; and the remainder of the capital stock, 2,300 shares, was turned over to the said company as treasury stock, to be sold by the said company from time to time, as occasion required, and thereafter was offered for sale by said company as its treasury stock. That at that time, or at any other time, there was never any understanding or agreement to release said King and Moore, or either of them, from any obligation to assign any patent or patents or any invention which they agreed to assign either to said Johnston or to the King Carpet-Sweeper Company.
“ That the consideration on which said stock was issued to the respective parties was as follows: For the interests of said King and Moore, the respective interests in the patents and improvements involved in said contract heretofore referred to; for the interest of said Johnston, the one-fifth interest conveyed by and enumerated in the deed in escrow, referred to in said contract; and your orators further show said interests of King, Moore, and Johnston were eventually conveyed to said company by an assignment in writing, dated on or about the 14th day of December, 1897, and signed by the said Charles King, Walter E. Moore, William T. Johnston, John G. Kalmbach, and James Stewart. The interests of said Stewart and Kalmbach were paid for in part by certain property turned in and sold to said company, and the balance paid in by them in cash.
“That on the 9th day of March, 1897, the organization of said company was perfected by adopting the by-laws, and the election of the following officers: James Stewart, president; William T. Johnston, vice-president and manager; John G. Kalmbach, treasurer; Walter E. Moore, secretary; and the election of a board of directors consisting of the above-named officers, together with Charles King.
“That forthwith, upon perfecting the organization of the King Carpet-Sweeper Company, said Charles King was duly employed, under an agreement made, as salesman and inventor for said company, at the salary of #1,200 per year, and that a part of his duties was to invent and perfect carpet-sweeper devices for the use and benefit of tbe said company; and that he, the said Charles King, continued to act in said capacity as salesman and inventor until on or about the 10th day of February, 1898, when his services were dispensed with.
‘ ‘ That a short time after the said King was thus employed as aforesaid, to wit, on or about April, A. D. 1897, and during the time thus employed as inventor, the said King did invent and make certain alleged improvements in carpet-sweeper devices, which your orators believe are improvements on the devices shown in the patents heretofore and in said contract enumerated, which said improvements were turned over to the King Carpet-Sweeper Company, to be embodied in the goods made by it; and that said King also acknowledged by word and act the ownership of and title to the said invention to be in the King Carpet-Sweeper Company, and from that time forward never questioned the said title or ownership, or made objection to the use of the said invention by said company, until on or about January, A. D. 1899, although fully advised of its use and its claim to ownership thereof; which said improvements are described in the patent to these defendants numbered 616,870, and dated December 27, 1898.
“ That the said King Carpet-Sweeper Company accepted the said invention in good faith as its property, and paid •said King his salary in full as salesman and inventor while in its employ; and that it has since made and sold a considerable quantity of carpet sweepers containing and embodying said alleged invention, and continues to make and sell the same.
“That said King, while in the employ of said company, talked and acted in good faith about taking out a patent on said alleged invention for the use and benefit of the King Carpet-Sweeper Company, and excused delay for the reason that he needed time to perfect other features of alleged novelty to accompany the same in the application for patent, notably an improved ‘pan dump,’ so called.
“ That on or about the 17th day of May, 1898, the said King did make application for letters patent of the United States, and did, in violation of the rights of your orators, assign and transfer an undivided one-half interest in and to the same to said . Walter E. Moore, and that the said Moore took the same with full knowledge of the rights of your orators in the premises. And your orators further show that" the said Charles King, well knowing the premises and your orators’ rights, and acknowledging the same as aforesaid, did neglect to inform your orators, or any of them, of his said application for a patent, or assign the same, as in good conscience bound to do, but caused the patent to issue to himself and the said Moore, the same being No. 616,870, dated December 27, 1898, and thereupon served notice of infringement upon your orators, and brought suit upon the said patent in the United States circuit court for the Western district of Michigan, to the great damage of your orators, and without just cause; and, your orators verily believe, maliciously, and without any right so to do.
“ That, under and by virtue of the contract hereinbefore referred to, it was the duty of the said Charles King and his alleged assignee, the said Walter E. Moore, to transfer and assign to your orator the King Carpet-Sweeper Company the aforesaid patent No. 616,870, hereinbefore described; that your orator the said King Carpet-Sweeper Company duly demanded an assignment of the aforesaid patent to said company according to the terms of said contract, but, notwithstanding their duty in that behalf, the said defendants, King and Moore, refused, neglected, and still continue to refuse and neglect, to transfer and assign said patent to the aforesaid King Carpet-Sweeper Company ; and your orator the King Carpet-Sweeper Company is informed and believes, and therefore expressly charges, the said company is entitled to have said contract specifically enforced against the defendants, King and Moore, and that they be required to assign said patent, and all improvements thereon, to said company.
“That on or about the 1st day of February, A. D. 1898, the said King Carpet-Sweeper Company did make and execute a trust mortgage in good faith, to secure bona fide creditors, to John G. Kalmbach, and that said mortgage covered and included the said alleged invention, with the knowledge and consent of the defendants herein; and your orators further show that said mortgage was duly foreclosed, and the property covered thereby lawfully sold, for a good and valuable consideration, to James Stewart, one of the complainants herein, whereby he became the equitable and lawful owner of the invention in controversy, and the patent thereon; and your orators further show that the making of said mortgage was with the full knowledge and consent and connivance of the said defendants, and in good faith as between all parties concerned.
“Your orators further show, upon information and belief, that the said defendants, further conspiring to defraud your orators of their rights and title in and to said invention, and in and to said letters patent therefor, are conspiring to sell, assign, and convey said patent and improvements, or to make license, to parties unknown to your orators; that they fear,” etc.; and have prayed for the same relief substantially as prayed in the first bill.

The answer of defendant Moore was made by his guardian, and was substantially the same as was made to the first bill. In addition to the allegations contained in his first answer, defendant King set up certain proceedings had in a suit pending in the United States court, and alleged that the defendants, in February, 1899, had assigned patent No. 616,870 to the Automatic Sweeper Company. The Automatic Sweeper Company was made a party defendant. The testimony was taken in open court. It is very voluminous. After hearing it all, the circuit judge dismissed the bill of complaint.

It would not profit any one to recite in detail the testimony. It appears from the record that prior to February 20, 1897, Charles King had- obtained patents for certain improvements in carpet sweepers, and had then pending certain applications for further improvements. He had assigned to Walter E. Moore an interest in these patents and the applications. King and Moore had employed these improvements in the manufacture of some sweepers, under a contract with Mr. Kalmbach and Mr. Stewart. They had first agreed to make a thousand sweepers, and, when these were finished, had decided to buy material, and go on and make another thousand. A short time before February 20, 1897, an item appeared in the papers stating that William T. Johnston was about organizing a stock company for the manufacture of carpet sweepers. Conversations followed between Johnston, King, and Moore, which led to the making of the written contract of February 20, 1897.

It is impossible to read this contract in the light of the circumstances without concluding that, when King and Moore signed it, they supposed 'Johnston could bring into the company that was to be organized $30,000 of bona fide subscriptions, which would enable the business to go on until it should he established. There is nothing in the record which would warrant the inference that King and Moore ever consented to such a modification of this contract as would bind them to make these conveyances, and at the same time release the obligation to bring into the company capital sufficient to enable it to do business. A company was organized, but it was not organized along the lines of the agreement. The contract which was left in escrow was never delivered. A company was organized with a capital of $60,000. Four hundred and eighty shares of stock were assigned to Mr. Johnston, for which he paid nothing. He says it was assigned to him because of his being an experienced man, who had been with the Bissell Carpet-Sweeper Company a good many years. Mr. King says it was assigned to him because he represented that he could bring to the company a large amount of capital stock. The action of King and Moore is inexplainable except upon the theory that the organization of this company would result in obtaining sufficient capital to go on with the business. There was $23,000 of treasury stock. It remained unsold. The company was soon in debt. In January, 1898, while Mr. King was in New York, a trust mortgage was given to Mr. Kalmbach. In February Mr. Moore and Mr. King were discharged from the service of the company. In June the mortgage was foreclosed. The property was bid in by Stewart for $3,600, no part of which he has yet ever paid. And the complainants now ask a decree as prayed, for in the bill. It is not worth while to go more into detail in relation to this transaction. It is sufficient to say that we agree with the circuit judge that, under the proofs in the case, the bill of complaint ought to be dismissed.

The decree of the court below is affirmed, with costs.

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


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    SHAVALIER v. GRAND RAPIDS BARK & LUMBER CO.
    Principal and Agent — Corporations—Acts of Officers.
    Wliere, in an action against a corporation to recover on transactions had with its vice-president, there was no evidence that defendant had ever authorized such officer to engage in any of the transactions out of which the claim grew, or had ever been benefited by them, or, alter knowledge of them, had ever ratified his action, the corporation could not be charged with the indebtedness.
    Error to Newaygo; Palmer, J.
    Submitted April 4, 1901.
    Decided September 25, 1901.

      Assumpsit by James Shavalier against the Grand Rapids Bark & Lumber Company for money had and received. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry B. Fallass (A. G. Day, of counsel), for appellant.

      George Luton, for appellee.
   Moore, J.

The plaintiff lives in Newaygo county, and was engaged in making and selling railroad ties and lumber. The defendant is a corporation, with its office in Grand Rapids, Mich. Its business was buying and selling railroad ties and lumber. Its officers were William A. Phelps, president, Charles P. Young, vice-president, Charles A. Phelps, secretary and treasurer. Josie A. Young, the wife of Charles P. Young, and the sister of William A. Phelps, was a stockholder in the company. Charles P. Young was the active man in looking after the business in Newaygo county. The plaintiff sold and delivered ties and lumber to the defendant to the amount of more than $10,000. The dealings between the parties commenced as early as 1895. It is agreed that a full settl'ement was had in March, 1897, and it is not sought to go into the transactions between the parties prior to that date.

In March, 1899, plaintiff gave the following receipt:’

“Grant, Mich., March 20, 1899.
‘ ‘ This article is my receipt in full to the G. R. Bark & Lumber Co. and C. F. Young to date for all demands of every kind and nature, and I am to deliver on car at Grant, on or before March 22nd, 14; 000 feet of No. 1 tamarack piece stuff; I this day having been paid for the same in the Grand Rapids Bark & Lumber Co.’s settlement with me, this receipt covering the delivery of the same. '
“James Shavalier.”
In May, 1899, he gave the following receipt:
“Grant House. May 2nd, 1899.
“Pay Roll James Shavalier.
“Grant, Mich., May 2nd, 1899.
“James Longcore, amount, $23.90; William Longcore, $11.95; Earl Finchman, amount, $4.26; Ed. Schick, amount, $21.00; T. Ashley, amount, $14.74; C. L. Disart, $5.30; brought down, $81.15.
■ “ The above is amount of labor due in full to date. Received this day from Jorgensen & Hemingsen $17.73, and check 4291, for $63.42, to pay above; total, $81.15, — ■ in payment of labor claims to date. Also check 4290, for $80.00, in full settlement of Rice-Lake job, and all claims of every and any nature to date, including the lumber and ties now at Grant.
“ J. Shavalier.”

There have been no business transactions between the parties since the last receipt was given. It is the claim of plaintiff that, when these receipts were given, he supposed credit had been given him for certain items for which he was entitled to credit, and that he was so informed by Mr. Young, but that the items were not in fact credited to him. It is the claim of defendant that statements were rendered from time to time to Mr. Shavalier, that he was credited with all he was entitled to have credited, that defendant owes him nothing, and the jury should have been so instructed. The judge submitted the case to the jury. A verdict was rendered in favor of the plaintiff.

The case is brought here by writ of error.

The items for which plaintiff makes claim are: Upon the Brower mill, $200; timber sold to Abrahams, $300; Jorgensen & Hemingsen bill, $245.77; goods had by Young in Grand Rapids, $55.03. The defendant claims that these items all relate to transactions about which it had no knowledge whatever; that they were transactions between plaintiff and Charles F. Young as an individual. Mr. Young makes the same claim, and says that, in his individual dealings with the plaintiff, he gave him all proper credits, and that plaintiff has been fully paid.

As to the first item, it is the claim of plaintiff that he sold a portable mill to defendant, which it afterwards sold; and that he should have been credited $200 in the transaction. There was introduced in evidence the following:

“COTTRTRIGHT HOUSE.
“Newaygo, Mich., April 27, ’97.
“C. F. Young,
“Grand Rapids, Mich.:
‘ ‘ Please arrange, ” etc. ‘ ‘ I hereby assign to you all my interest in the sawmill and engine sold to Carl Brower; everything, after paying claim of Chas. Fox & Company, to belong to you.
“James Shavalier.”
“Charles Fox.
“Grand Rapids, Mich., March 8, 1900.
“Received from C. F. Young, May 29th, 1897, $50.00; on January 20, 1898, $37.00; and surrehdered to him notes of Carl W. Brower covering engine and sawmill of James Shavalier.
[ Signed ] ‘ ‘ Charles Fox. ”

It is the claim of defendant that it had nothing to do with this transaction. It is the claim of Mr. Young that he had fully settled the matter with the plaintiff.

As to the $300 claim for timber sold to Abrahams, it is the claim of plaintiff that he bought the timber from a number of 40’s from one Yeenboer for $200; that the contract was made out in his name; that he at once assigned it, as he supposed, to the defendant, as security for any balance he might owe it; and with his consent the timber from part of this land was sold to Abrahams for $500, and he should have been credited $300 in the transaction. The record shows that in October, 1897, Mr. Yeenboer made to the plaintiff a land contract, which, after naming the parties and describing the land, reads as follows:

“ In consideration of the payment to me of $200.00, the receipt of which is hereby acknowledged, I do for myself, my heirs, and all parties interested therein, hereby sell, assign, and transfer to James Shavalier, and to his heirs and assigns, all the timber, standing and down, on the above-described lands, which is over seven (7) inches in diameter, with the right to himself, his heirs and assigns, to go onto said lands, and to manufacture and remove therefrom the said timber, at any time within two (2) years from November 1st, 1897; it being understood and provided that the timber which is removed from section 16 shall be removed within one year from November 1st, 1897.
“Witness my hand and seal this 4th day of October, A. D. 1897.
“M. Yeenboer.”

Indorsed on the back as follows:

“Grant, Mich., Oct. 4th, 1897.
“For a valuable consideration, the receipt of which is hereby acknowledged, I hereby assign all my rights and title to the within timber to Josie A. Young.
“James Shavalier.”

The $200 was paid to Mr. Yeenboer with a check given by Mrs. Young. Mr. Shavalier never put a dollar into the transaction. The record also shows that afterwards Mr. Shavalier negotiated a sale of timber from some of this land to Mr. Abrahams for $500, and represented to him the land belonged to Mr. Young. Shavalier was paid $50 commission for his part in the transaction by Abrahams. It is the claim of defendant that it had nothing to do with this transaction. It is the claim of Mr. Young that he bought the timber of Yeenboer, and sold part of it to Mr. Abrahams. The record shows the defendant paid plaintiff 14 and 15 cents apiece for the ties. Mr. Young-claims that his purpose in buying the timber was partly to supply the timber to enable Shavalier to make ties, and that, while defendant was to pay 14 and 15 cents apiece for the ties, the plaintiff was to receive in fact, by virtue of an agreement between himself and Young, but 11 and 12 cents, and that the other 3 cents was to be paid to Young for the timber which went into each tie, and that defendant company had no knowledge of this arrangement. The plaintiff admits he was to be paid but 11 and 12 cents for the ties originally, but that he was paid more because he could not afford them for that price. As bearing upon the question, the following paper, which Mr. Shavalier testified he executed and delivered to Mr. Young, was introduced in evidence:

“Hotel Butler.
“Newaygo, Mich., May 31, 1898.
“ In connection with my agreement to cut the logs, and manufacture into ties, and deliver at railroad track for the G. R. Bark & Lumber Co., the tamarack timber from swamp land, known as ‘Rice-Lake Job,’ at 11 cents per tie, and to pay $1.00 per thousand feet stumpage for the logs which I remove or have removed from said swámp land and manufactured into lumber, I further agree to take from the stump and lands, manufacture, and deliver in the cross-pile at Grant, the elm and ash standing and down on the northwest quarter of the southwest quarter of section 10, township of Grant, together with the elm and ash known as the ‘ Dr. Yeenboer Lands,’ and to deliver such elm or ash lumber in cross-piles at Grant, at not to exceed $5 per thousand feet, mill culls out, in addition to the cost of saw bill, and delivered in cross-pile in Grant. I am to have one-half of the net profit from the sales of said hardwood lumber.
“James Shavalier.”

Mr. Young claimed this agreement was carried out in full.

As to the item of $245.77, the record shows that, about the time the parties began to deal together, Mr. Young introduced the plaintiff to the firm of Jorgensen & Hemingsen, and arranged that they should sell supplies to the plaintiff at 10 per cent, discount; that monthly statements should be made, and that defendant would pay the bills, and charge the amount paid to the plaintiff. These bills aggregated nearly $4,000. The first monthly statement was sent to the office of the defendant. Mr. Young then requested that no more of them be sent to the office, but that he would call for them. The account had not been opened very long before Mr. Young began to take home with him chickens, butter, eggs, and other family supplies, which amounted in the aggregate to $245.77, which were charged to the plaintiff. After the first month, Mr. Young called for the bills, and his claim is that he and the plaintiff went over them carefully, checking off the items, and that he gave Mr. Shavalier credit on his personal account for all the items which he personally had. Mr. Shavalier admits that many of these statements were shown him, and some of them bear his check marks. As bearing upon the same question, it was shown that Mr. Shavalier opened in his own books an account with “ C. F. Young, Personal,” in which some of these items appear.

The other item was of substantially the same character as that of Jorgensen & Hemingsen. It is the claim of Mr. Young that he gave the plaintiff credit for all these items, and that he has been paid in full.

We do not deem it necessary to discuss all of the many assignments of error. We shall not discuss the effect of giving the two receipts, or whether it was error to allow plaintiff to show by parol that, when he assigned the Yeenboer contract to Mrs. Young absolutely, he supposed he was assigning it to the defendant as security, nor whether he could contradict by parol the written assignment of the mill contract to Young, and show he sold it to defendant. As before stated, Mr. Young testified these items were all his individual dealings with the plaintiff. The other officers of the corporation testified they were not the business of the corporation. The record is entirely barren of any competent testimony that defendant had authorized Mr. Young to engage in any of the transactions out of which these items grew, or that it had ever been benefited by them, or, after knowledge of them, it had ever ratified his action. There is not nearly the proof tending to show authority upon his part to act for defendant that was shown in the case of Bond v. Railroad Co., 62 Mich. 643 (29 N. W. 482, 4 Am. St. Rep. 885), where the court said a verdict should have been directed. If there is any occasion for any litigation in relation to these transactions on the part of Mr. Shavalier, it is not with the defendant. The court should have granted the motion of the attorney for the defendant to direct a verdict in its favor.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    PINKERTON BROS. CO. v. BROMLEY.
    1. Replevin — Fraudulent Purchase of Goods — Burden of Proof.
    Where, in replevin for goods alleged to have been fraudulently purchased, defendant, a subsequent purchaser, admits the fraud in the original transaction, he has the burden of proving his own good faith.
    2. Same — Defenses.
    Where such admission in terms relates to “the goods in question,” an objection that part of the goods originally purchased were paid for, and that there is nothing to distinguish those goods from the others, is not afterwards available to defendant.
    3. Appeal — New Trial — Misconduct of Counsel.
    Defendant moved for a new trial because of the misconduct of counsel during argument. The remarks made did not appear in the record, except in the motion, nor did it appear whether the attention of the court was called thereto, or what was done by him, except in the statement by the court of his reasons for denying the motion, which contained a showing of no prejudice. Held, that the statement of the court was conclusive.
    4 Same — Newly-Discovered Evidence.
    A motion for new trial on the ground of newly-discovered evidence is properly denied, where it appears that all of the witnesses resided in the city where the trial was had, and it is not shown that their testimony could not have been procured by proper diligence.
    Error to Wayne; Carpenter, J.
    Submitted April'19, 1901.
    Decided September 25, 1901.
    Replevin by the Pinkerton Bros. Company against Joseph H. Bromley. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William B. Jackson, for appellant.

      John Miner, for appellee.
   Moore, J.

This case has been here once before, and is reported in 119 Mich. 8 (77 N. W. 307). A reference to the case as there reported will make a long statement of facts unnecessary. Upon the second trial both parties-introduced'testimony at length. The case was tried by a jury, who rendered a verdict in favor of the plaintiff. The case is brought here by writ of error.

It was, the claim of plaintiff, and it introduced testimony tending to show its claim, that the goods were obtained from the plaintiff by Bothwell by means of fraud, and that defendant was not a bona fide good-faith purchaser of the goods. It was the claim of the defendant that he was a good-faith purchaser of the goods without knowledge of any fraud. After the testimony was all in, the following occurred in open court:

“Mr. Atkinson (arguing): The court will tell you in the charge that it is admitted by the defendant in this case that the goods in question were obtained from Pinkerton Bros, by fraud, and that the only question in the case is whether Mr. Bromley acted in good faith, as a prudent business man should have acted, and bought these goods, and paid his money for them—
“Mr. Pound (interrupting): Now, your honor, I ask you to state to this jury whether or not the counsel for the defendant ever agreed that Pinkerton Bros, were not blameworthy in not making any investigation about Mr. Bothwell.
“The Court: I understand the counsel to say simply this: That they would make no question but that Both-well obtained these goods from Pinkerton Bros, by fraud.
“Mr. Pound: That is right.”

Among other requests to charge preferred by the defendant was the following:

“The evidence in this case shows that plaintiffs sold to the firm of L. E. Axford & Co. and W. H. Bothwell goods to the amount of $2,700, upon which they were paid in cash the sum of $1,500. As to the goods paid for, the title passed to them, L. E. Axford & Co., and as to these goods plaintiffs could not bring replevin in any event.”

Other requests involving the same question were also offered. It is now insisted that replevin will not lie for the goods for which the credits paid, and that, as these goods were not distinguished from those for which payment had not been made, the plaintiff has mistaken its remedy, and should either have brought trover or sued in attachment.

The understanding of the effect of the testimony and of the admission of counsel for defendant by the trial judge is indicated by that part of his charge reading as follows:

“Now, respecting those goods, the testimony is undisputed that Bothwell acquired them by fraud. At least, I understand that counsel make no question upon that proposition. It seems that Bothwell formed this partnership known as L. E. Axford &c Co., and bought goods from the plaintiff, and partly paid for those goods with funds embezzled by him from his employer; and it is very obvious from the testimony in this case that his conduct was fraudulent, and he had no intention of paying for the remainder. So it is undisputed that that transaction was fraudulent, and, if these goods had remained in the hands of Bothwell, there would be no question but that the plaintiff would have the right to replevy them. But when these goods were replevied they were in the possession of the defendant in this case, Mr. Bromley, and the sole question for your consideration, so far as relates to these goods, — and that comprises nearly all the goods in this case, — -is whether or not the defendant, Bromley, was a purchaser in good faith and for a valuable consideration; in other words, had he honestly acquired the property in those goods ? If he was a purchaser in good faith and for a valuable consideration, he had a right to hold those goods, notwithstanding any fraud practiced by Bothwell upon the plaintiff in this case. If, on the other hand, he did not purchase in good faith for a valuable consideration, he had no right to hold those goods against the plaintiff. So that is the question upon which the verdict turns: Bid Bromley purchase in good faith and for a valuable consideration ? As bearing upon that proposition, —more, perhaps, to emphasize it than for any other reason, —I read you one of the plaintiff’s requests, and approve it as the law:
‘“When goods are obtained by fraud, they may be reclaimed by the seller; and, if any person claims to have purchased the goods of the person who committed the fraud, the party claiming must establish by a preponderance of proof that he bought the goods in good faith, and paid for them without any knowledge of the fraud, or of such circumstances as would put an ordinarily prudent business man on inquiry so that he might ascertain the truth.’
“And in the same connection I read one of the requests of the defendant:
“ ‘Plaintiff, having sold Axford & Co. and William H. Bothwell goods, and settled therefor by taking notes, cannot reclaim the same against the defendant if the jury believes that the defendant bought in good faith and for a valuable consideration.’
“You will notice both of these requests lead to the same conclusion, and that is, the question of whether Mr. Bromley bought in good faith and for a valuable consideration.”

In view of the testimony and the admission of counsel, we think this feature of the case was properly submitted to the jury. Whitaker Iron Co. v. Preston Nat. Bank, 101 Mich. 146 (59 N. W. 395); Cappon & Bertsch Leather Co. v. Preston Nat. Bank, 114 Mich. 263 (72 N. W, 180); Durrell v. Richardson, 119 Mich. 592 (78 N. W. 650).

A motion was made for a new trial, based upon the conduct of counsel during the argument, and because of newly-discovered evidence. In giving the reasons in the motion for a new trial why a new trial should be granted, statements are made as to what was said by counsel; but it does not anywhere else appear in the record what was said by counsel, or whether the attention of the court was called to what he said, or what disposition was made by the court in relation to his conduct, except as it appears in the reasons given by the trial court for denying the motion for a new trial, wherein the judge says:

“As to the ground of misconduct of counsel: The specifications under this charge relate to improper arguments advanced by plaintiff’s counsel in addressing the jury, and to statements by counsel of matters which are not in testimony. I have looked over the proceedings relating to these arguments, and it seems to me that defendant was not prejudiced by the matters of which he now complains. When the attention of the court was called to statements of counsel not based on testimony, he promptly stated to the jury that there was no testimony of such import. I do not think that, on the whole, counsel exceeded the license which the court is bound to give in cases of this character, and under the circumstances which surrounded this trial.”

In view of the condition of the record, we cannot say this was not entirely true.

As to the newly-discovered evidence, the affidavits show the witnesses all lived in Detroit, and it is not shown their testimony could not have been procured upon the trial by the exercise of proper diligence.

The judgment is affirmed.

The other Justices concurred.


author: Moore' J.

text:
    CASTNER v. DARBY.
    1. Conversion — Value op Property — Evidence.
    In an action to recover the value of chattels converted, evidence of the value placed upon them by the parties in a previous exchange of properties between them is competent to be considered by the jury.
    2. Chattel Mortgages — Foreclosure—Purchase by Mortgagee —Validity.
    3 Comp. Laws, § 9530, provides that, at-any sale of property on foreclosure of a chattel mortgage, the mortgagee may fairly and in good faith purchase the same. A mortgagee in possession posted notices of foreclosure, but gave no direct notice to the mortgagor. On the day of sale no bidders appeared, and the mortgaged property, consisting of the furnishings of a hotel, though not gathered into one place, was sold as a whole to the mortgagee for much less than its value. Held, that the sale was void.
    3. Same — Conversion by Mortgagee — Assumpsit.
    Where a mortgagee of chattels takes possession of the same under his mortgage, and refuses to surrender them to the mortgagor on demand, claiming title under an invalid foreclosure, the mortgagor may maintain assumpsit for their value.
    Error to Ingham; Person, J.
    Submitted April 16, 1901.
    Decided September 25, 1901.

      Assumpsit by Edward P. Castner against Lewis Gr. Darby to recover the value of chattels converted. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Black & Dolan, for appellant.

      L. B. & H. M. Gardner, for appellee.
   Moore' J.

Prior to September 26, 1894, defendant kept a hotel known as the “Tivola House,” now known as the “ Butler House,” in the city of Lansing. He leased the hotel, but owned all the kitchen, dining-room, office, sleeping-room, and other furniture and fixtures in the hotel. In September he made ah exchange of his furniture and fixtures with plaintiff for other property. The hotel furniture and fixtures were valued in the exchange at $1,200. To secure the payment of $239.46 of the pur- ^ chase price, the plaintiff gave defendant a chattel mortgage upon all the hotel fixtures and furniture he had obtained from him. The mortgage contained the following provision:

“ But, if default be made in such payment, the said Lewis G. Darby is hereby authorized to and shall sell at public auction, after the like notice as is required by law for constables’ sales, the goods, chattels, and personal property hereinbefore mentioned, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and to retain the same out of the proceeds of such sale; the overplus or residue, if any, to belong and to be returned to said Edward P. Castner,”

After this exchange was made, the plaintiff kept the hotel for a time. He was not successful as a hotel keeper. He got behind with his rent. He finally arranged with the owner of the hotel to surrender possession, and the owner relinquished the amount due for rent. The defendant demanded possession of the mortgaged property, and, when objection was made to his taking possession, threatened to replevy the property. He was then permitted to take possession. He rented the hotel, and used all the furniture for some weeks, without taking any steps to foreclose his mortgage. He then caused notices of foreclosure to be posted, but did not give notice to the mortgagor of the sale. Upon the day of the sale no bidders appeared. There were several persons in and about the hotel. The officer having charge of the sale, and Mr. Darby, visited a number of the rooms of the hotel, but not all of them. The officer stated he was ready to sell the property in parcels or as a whole, but he did not actually put up any separate article, or the furniture in any particular room, for sale. The property had not been gathered into one place, but was in the several places where it was used during the running of the hotel. The officer then offered all the property covered by the chattel mortgage for sale. The defendant bid $130 for it. There were no other bidders, and it was sold to him for that amount. When the plaintiff learned of the sale, he caused a demand to be made upon the defendant for the property. The defendant refused to comply with the demand. The plaintiff sued him in assumpsit in justice’s court, and obtained a judgment. The case was appealed to the circuit court. Upon the trial in that court the property was valued by the witnesses at from $250, by the defendant, to as high as $800, by another witness. The jury fixed its value at $500" in their verdict. The case is brought here by writ of error.

The court refused to give the following request:

“ In finding the value of the goods in question, the jury are not at liberty to consider what the plaintiff called them worth in the trade he made with the defendant, as the question to be determined is what they in reality were worth at the time they were sold by McKale; and it cannot be said they were worth more than their actual value at that time, because, when the plaintiff traded for them in September before, he estimated them at any particular sum.”

This refusal is said to be error. We cannot agree with counsel. The court told the jury they must be confined to the actual value of the goods. The estimate the parties themselves had put upon the goods was in evidence. It was not conclusive, but it was for the consideration of the jury, in connection with all the other evidence and facts and circumstances developed by the trial.

The court, after calling the attention of the jury to the manner in which the sale was made, said to them:

‘ ‘ Originally, the owner of a mortgage was not permitted to make purchase under the mortgage sale. It was considered a matter of doubtful propriety whether a man should buy at his own sale. The mortgagee makes the sale, and in an early day it was considered a questionable thing that he should buy at his own sale; that it would not be fair; that the incentive to unfairness would defeat the object of the law, which was a fair sale. But a statute was passed in this State in 1877 which reads in this way:
“ ‘ That, at any sale of' property upon foreclosure of a chattel mortgage, the mortgagee or his assigns, or his or their legal representative, may fairly and in good faith purchase the property so offered for sale, or any part thereof.’
‘ ‘ The statute describes the manner in which the mortgagee may purchase. It must be ‘fairly and in good faith.’ Now, that means that there must be sufficient notice before he can purchase. That means that the property must be offered in the right way before he can purchase. And I instruct you in this case, where it appears that the property was sold in one mass, being property of the kind described here, — hotel property, — and being purchased in by the mortgagee, according to his own testimony, at about 50 cents on the dollar of what he considered it fairly worth, that it was not a fair sale, nor such a sale as would be permitted. I instruct you that the sale was void.”
This is said to be error.

Section 9530, 3 Comp. Laws, reads as follows:

The People of the State of Michigan enact, that at any sale of property upon foreclosure of a chattel mort- ’ gage, or of a pledge, the mortgagee or pledgee, or his or their assignees or legal representatives, may fairly and in good faith purchase the property so offered for sale, or any part thereof.”

In Jones, Chat. Mortg. § 808a, it is said:

“A mortgagee purchasing at a grossly inadequate price, or without giving requisite notice, obtains only a colorable title, and is accountable to the owner for the fair value of the property at the time of the appropriation. The owner may disregard the sale, and redeem the property. The burden is upon the mortgagee purchasing at his own sale under a power to show that the sale was fairly and openly made, in strict compliance with the power, and that the price paid was not so clearly and grossly inadequate as to raise a presumption of bad faith.”

In Herm. Chat. Mortg. p. 507, it is said:

“The conduct and fairness of a sale by a mortgagee, and the rights acquired under it, are always open to investigation at the instance of the mortgagor. On this account a sale under judicial sanction is safer, and, where the amount is large, advisable. .Such sales will be jealously watched, and upon the slightest proof of unfair conduct, or a departure from the power, will be set aside. Everything done by the parties to such sale calculated to prevent competition renders it void. A mortgagee selling under a power of sale in his mortgage will be held strictly responsible for any prejudice to the mortgagor arising from any deviation from the provisions governing the exercise of the power and the statute requisitions as to notice.”

Under the facts disclosed by this record, we think the court was right in holding the sale was void.

It is strenuously urged that plaintiff has mistaken his remedy, and that assumpsit will not lie in such a case as this. In considering this branch of the case it is well to remember that defendant came into possession of this property by virtue of a contract, — that is, a chattel mortgage, made to him by the plaintiff; that he had sold the property, as mortgagee, to himself as an individual; and that upon demand he had refused to give the plaintiff possession of the property, and claimed to be the owner of it. The ease comes directly within Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652); Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329).

The other assignments do not call for discussion. The court instructed the jury to deduct from the value of the property the entire amount of the chattel mortgage, and this was done.

Judgment is affirmed.

The other Justices concurred.


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    LOWRY v. SAGINAW SPECIALTY CO.
    1. Notice-Proof of Mailing — Suffioiensy.
    On the question of whether a certain notice was given by defendant to plaintiff, the testimony of defendant’s manager that he felt morally certain of having notified plaintiff by postal card, and that he also wrote him a letter of like import, and deposited it in the office box from which the postman took the mail, there being no evidence of the address on the letter, or that it was postpaid, was inadmissible.
    2. Contracts — Construction—Question f6r Jury.
    Where defendant notified plaintiff, as the result of negotiations between them, that it would accept a 25 car load order for boxes, and to send on contract, and plaintiff forwarded an order for 25 car loads, 5,000 boxes to a car, which was received by defendant without objection, the defendant, in an action on the contract, cannot complain that the question of the number of boxes contracted for was submitted to the jury, their finding not having exceeded the number specified in the order.
    Error to Saginaw; Beach, J.
    Submitted April 19,1901.
    Decided September 25, 1901.

      Assumpsit by Robert C. Lowry against the Saginaw Specialty Company for the breach of a contract to manufacture certain boxes. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Nathan S. Wood and George W. Weadock, for appellant.

      Humphrey & Grant, for appellee.
   Moore, J.

In July, 1899, the parties to this litigation had correspondence in relation to the defendant manufacturing for the plaintiff a quantity of box shooks. The result of the correspondence was that on July 31st defendant telegraphed plaintiff, “Will accept 25 car load order.” On the same day it forwarded plaintiff a letter accepting the contract, and saying, “We ask you to send on contract for us to sign.” On August 1st plaintiff sent the following letter:

“Your telegram and letter of the 31st ult. to hand, accepting order for 25 car loads of style 1 white pine boxes, at 7-Jc. each, f. o. b. Saginaw, W. S., Mich., printed both ends and sides, and we herewith accept the same, and inclose our order No. 5,556 for 25 car loads, to be shipped at the rate of one to two car loads weekly. Terms, etc., as per our letter to you of July 13th. Please send us the diameter of your cylinder, so that we can secure the dies, and send the same to you. Acknowledge receipt of order, and oblige.”

Inclosed in the letter was the order referred to, the material portions of which read as follows:

“ Order for boxes in shooks. No. 5,556. Sound, dry, white pine lumber. No loose knots, rotten, shaky, or worm-eaten boards. 25 car loads, at 7£ cents, f. o. b. cars Saginaw, Mich. Quantity per each car, 5,000 boxes. Box number 16. * * * Both ends and both sides of these boxes to be printed in black as per plates we will send you upon receipt of size of your cylinder, etc. * * * Load each car to fullest capacity. Ship only by cheapest line.”

No objection was made to the contents of this order or its directions, and the subsequent correspondence indicates an intention to fill it. In order to do the printing required by the contract, it was necessary for defendant to get a new press, and, to enable plaintiff to furnish plates or dies for it, it was necessary for him to know the size of the cylinder. It is the claim of the defendant it did not fill the order because plaintiff did not send the plates for printing. September 14th defendant wired plaintiff canceling the contract, and on the same day wrote him, assigning as a reason for canceling the contract that he had not sent the dies. It is the claim of the plaintiff that he repeatedly tried to get the size of the cylinder, and was always- ready to send the dies, and that the real reason for the defendant not completing the contract was that there had been a sharp rise in the value of the boxes. As the defendant refused to go on with the contract, the plaintiff sued, and recovered a judgment. The defendant brings the case here by writ of error.

Upon the trial the testimony offered on the part of the plaintiff was positive that no notice had ever been received by him of the size of the cylinder. The testimony also shows the new press was not received by defendant until the same day it undertook to cancel the contract. For the purpose of showing defendant had notified plaintiff of the size of the cylinder, the manager of the defendant was allowed to testify that he was morally certain he notified plaintiff of its size by postal card. He was also allowed to give in evidence a copy of a letter which he said he wrote plaintiff, and deposited in the office mail box of defendant from which the postman took the mail. This testimony was all objected to. It was practically eliminated from the case by the charge of the court to the jury. This is said to be error, counsel saying evidence that a postpaid notice was put in due course for mailing is competent; citing Abb. Tr. Ev. 434, and other authorities.

The rule is stated in 16 Am. & Eng. Enc. Law, 825, as follows:

“Proof of the mailing of a notice properly addressed and postpaid raises a presumption that the notice was received by the person to whom it was directed.”

The trouble with this case is with the proof. The most that can be said of the testimony of the manager is that he felt morally certain he sent a postal card, while the record is entirely barren of any evidence of what the address upon the letter was, or that it was postpaid. To hold such testimony competent would be to extend the rule further than any authority has done to which our attention has been called.

It is said the court erred in submitting the question to the jury of how many boxes were to be shipped. It is said that, while the contract was for 25 car loads, it did not state how many boxes should constitute a car load; that, as it was known how much each box would weigh, and as the classification by railroad men of 24,000 pounds for a car load was shown, in computing the amount of the damages the computation of boxes should have been made upon that basis. Testimony was given upon both sides as to what was understood as a car load, and the question was left to the jury. Inasmuch as the telegram and letter of July 31st stated defendant would accept a 25 car load order, and to send on the contract, and on August 1st plaintiff accepted the offer, and inclosed an order for 25 car loads, 5,000 boxes to a car load, and no objection was ever made to this order, if there is any one who has just cause for complaint at having the question submitted to the jury it is not the defendant.

Judgment is affirmed.

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


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    O’MEARA v. MERRITT.
    1. Search Warrant — Police Justice — Jurisdiction.
    3 How. Stat. § 6591d, confers upon the judge of the police court of Grand Rapids all the powers and authority of a justice of the peace, except in the trial of civil cases. 3 Comp. Laws, § 11986, gives to any magistrate authorized to issue warrants in criminal cases the power to issue search warrants. Section 11988 requires all search warrants to he directed to the sheriff or any constable of the county. Held, that the judge of such police court has authority to issue a search warrant for property alleged to have been stolen in the city, and to be concealed at a place in the county outside of the city.
    2. Same — Liability of Officer.
    A search warrant in due and legal form, issued by a court of competent jurisdiction, protects an officer from liability for trespass in its execution.

      Error to Kent; Wolcott, J.
    Submitted April 16, 1901.
    Decided September 25, 1901.
    Case by Michael O’Meara against Thomas Merritt for an alleged illegal search of plaintiff’s dwelling-house. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      James A. Lombard and David E. Burns, for appellant.

      William B. Brown (Charles A. Watt, of counsel), for appellee.
   Moore, J.

This is an action of tresspass on the case for an alleged illegal search of .the dwelling-house of the plaintiff. The case was tried by a jury, who returned a verdict in favor of defendant. It is brought here by writ of error.

The defendant is a deputy sheriff of Kent county. His defense was that what he did was done in the discharge of his duty in serving a search warrant issued from the police court of Grand Rapids. It is probable this action would, never have been brought had not the complaint lodged with the police justice and the warrant issued by him become misplaced, so that they were not found until during the progress of the trial. It is the claim of the plaintiff, as set up in his declaration, that the defendant,—

“Without any lawful right or authority whatever, but wrongfully, falsely, and maliciously representing himself to be in possession of a lawful search warrant lawfully directing and commanding. him, the said defendant, as such deputy sheriff, to search said dwelling-house of said plaintiff for the discovery and recovery of a certain bicycle alleged to belong to, and to have been stolen from, one Orville A. Gillette, of the city of Grand Rapids, Kent county, Michigan, knowing the same to be false and unlawful, and then and there, without any lawful right or authority whatever, and with an unlawful, wicked, and malicious purpose of obtaining fees as such deputy sheriff, in a loud, boisterous, and insulting manner, and in the presence of said plaintiff and his aforesaid children and the said Henry W. Strong, accused and charged said plaintiff with secreting the aforesaid bicycle in his said dwelling-house, in knowing the same to have been stolen, and then and there handed to said plaintiff a paper, falsely, willfully, and maliciously claiming and pretending that the same was a legal and valid search warrant as aforesaid, well knowing the same to be false and unlawful, and demanded,” etc.

In making his case the plaintiff produced as witnesses the police justice, and his clerk, both of whom testified they had been unable to find any complaint or search warrant, and were unable to recollect any had been issued out of that court. During the progress of the trial, a complaint and warrant were found by the sheriff, which had become mixed with other papers, and put away by him, which papers were fully identified by the police justice as being in the handwriting of the assistant prosecuting attorney, and bearing the signature of the police justice. These papers will be spoken of more in detail later.

There was a sharp conflict in the testimony of the witnesses. There are a good many assignments of error, which may be divided into four groups:

First. For the purpose of showing malice on the part of defendant, plaintiff claimed the right to show that defendant had put before the board of supervisors of' the county padded bills for fees, and had done so for services rendered in this case. This testimony was excluded.

Second. It is claimed the court erred in refusing to give some of plaintiff’s requests to charge, and in his statement of the law in his general charge.

Third. That defendant was not entitled to take the wheel until he had paid charges to the son of plaintiff. The son had caused a notice to be twice published in a paper, and to be entered in the books of the town clerk, but had not complied with the provisions of the statute.

Fourth. It is claimed the police court was without authority to issue a search warrant to be served outside the city of Grand Rapids.

With our view of the case, it is necessary to discuss only the last proposition, which is conclusive of the case. The record discloses certain things about which there is no dispute. November 16,1899, one Gillette had a bicycle stolen from in front of his place of business in Grand Rapids. The next morning he reported his loss to the police authorities, giving them a full description of the wheel. These descriptions were furnished to the detectives connected with the police department, who soon learned that a strange bicycle was at Byron, in Kent county, and who reported that fact to the undersheriff. He asked one of his deputies to call up the defendant, who was a deputy sheriff at Byron, and requested him to get a description of the wheel. Before this occurred, a son of the plaintiff had found standing before the store in which he was employed, early one morning, a bicycle. He and his witnesses say he found it the morning of November 13th; but they are evidently mistaken in this, as the wheel was fully identified as the wheel of Mr. Gillette, which was not stolen until the evening of the 16th. The defendant saw young O’Meara, and got a partial description of the wheel, but by mistake took the number of the model, instead of the number of the wheel. Upon telephoning to the office of the sheriff the description of the wheel, he was requested to obtain its number. He sought out the boy, and told him the wheel was stolen, and asked to see it again. The parties are not agreed as to what occurred. The boy claims he told the officer if he would pay the charges he could have the wheel, while the officer claims nothing was said about the charges, and that the boy refused to let him see the wheel. Either before or after this conversation, the wheel 'was taken to the house of the plaintiff, and was by him taken to a bedroom, the bed was pulled away from the wall, and the wheel was put back of it.

After this last-mentioned conversation between the defendant and the son, the matter ran along until December 3, 1899, when defendant went to the city of Grand Rapids, to consult with the undersheriff, at his request. On arriving in Grand Rapids he saw the undersheriff, and had a consultation with him, and also with the prosecuting attorney. By their advice he went to the police headquarters, and the description of the wheel on the books at headquarters was shown him, which tallied exactly with the wheel at Byron. Mr. Gillette, from whom the wheel was stolen, came to the office of the prosecuting attorney, and, after consultation between defendant, the prosecutor, two detectives, and Gillette, a complaint and search warrant were drawn up by the prosecuting attorney, who, with Gillette, went to the police court. The complaint was sworn to by Gillette, and a warrant issued by the judge of the police court of Grand Rapids.

It is the claim of plaintiff that defendant did not tell the prosecuting attorney that he could have the wheel by paying the charges. The defendant admits he did not, for the reason that he had never been so informed. The judge left that question fully to the jury. The complaint and warrant issued by the police judge were in due and legal form, and authorized the search of the house of the plaintiff for the bicycle. The warrant was given to the defendant. He returned to Byron, and informed the young man he had the warrant, and with another person they started to go to the house of plaintiff. On the way there the son asked a friend of his to go along, and he did so. When they arrived at the house, the son opened the door, and the parties all went in. The plaintiff was at that time in the house. There is some conflict in the testimony as to what occurred, but the substance of it is the plaintiff asked why the defendant was there, and he said he came to serve a search warrant. It was shown to the plaintiff, to the son, and to the friend of the son, all of whom had an opportunity to read it. The plaintiff demanded that the charges be paid before the wheel was taken. The defendant replied the man in Grand Rapids would pay them. The son got the wheel from back of the bed, and the defendant took it away. He delivered it to the sheriff of Rent county, together with the complaint and warrant. The papers remained with the sheriff until the progress of the trial, as before stated. The wheel was afterwards fully identified as the stolen wheel belonging to Mr. Gillette. Afterwards this suit was brought.

Whenever there was a controverted question of fact, the judge left the question to the jury £or them to determine. The important question in the case is, Was the police judge authorized to issue a search warrant that might be served anywhere in the county of Kent ? The plaintiff says no, but fails to find any authority upon the question. The act creating the police court is silent upon the subject of search warrants. In 3 How. Stat. § 6591d, is found a statement of the power of the police court. Among other powers conferred upon the judge is, 4 4 He shall also have all the powers and authority of a justice of the peace, except in the trial of civil cases.” 3 Comp. Laws, § 11986, confers upon any magistrate authorized to issue" warrants in criminal cases, upon proper complaint being made, authority to issue search warrants. Id. § 11988, requires that all search warrants shall be directed to the sheriff or any constable of the county. That the police judge is a magistrate authorized to issue warrants in criminal cases is not open to question. This being so, he has the authority, upon proper complaint being made, to issue search warrants, which shall be directed as commanded by the statute. The form of the complaint to be made in these cases, found in the fourth edition of Tiffany’s Cr. Law, 357, indicates that the learned author understood that for property stolen in the city of Adrian, and concealed in a dwelling-house outside of said city, a search warrant might be issued, and such has been the understanding of lawyers. In this case the complaint showed the larceny of a wheel in the city of Grand Rapids, and reasonable cause to believe it was concealed in the house of plaintiff in Byron. This gave the magistrate authority to issue the warrant, and the warrant, being in due and legal form, was a complete protection to the officer. The court might very properly have directed a verdict in favor of defendant, but preferred to leave any controverted question of fact, under proper instructions, to the jury.

Judgment is affirmed.

The other Justices concurred.