author: Moore, J. Ostrander, J.

text:
    CITY OF ALMA v. CLOW.
    1. Hawkers and Peddlers — Meaning of Terms — Who Included.
    Under the statutes of Michigan, the terms “hawkers and peddlers” include persons who travel from place to place for the purpose of taking orders for the purchase of goods, wares, or merchandise by sample, lists, or catalogues.
    2. Same — Regulation—Propriety.
    The power to regulate the business of hawking and peddling cannot be questioned.
    8. Same — Municipal Ordinance — Conflict With General Law.
    That the legislature has passed a general law in relation to the business of hawking and peddling is no reason why a city in the exercise of its charter powers may not also impose regulations upon the business.
    Error to Gratiot; Stone, J.
    Submitted April 20, 1906.
    (Docket No. 110.)
    Decided December 3, 1906.
    Frank E. Clow was convicted of peddling without a license, and sentenced to pay a fine of $50 or in default thereof to 40 days’ imprisonment in the county jail.
    Affirmed.

      W. W. Wicker (John G. Donnelly, of counsel), for appellant.

      James Gf. Kress, for appellee.
   Moore, J.

The respondent was convicted of a violation .of a city ordinance, and has brought the case here for review. The facts are substantially the same, so far as the acts of the respondent are concerned, as the case of City of Muskegon v. Zeeryp, 134 Mich. 181. If you substitute the word “ Clow” for the word “ Zeeryp,” the word “Alma”for the word “Muskegon,” and the word 44 Saginaw ” for the words “ Grand Rapids,” in the. Case of Zeeryp, you would have substantially this case.

Alma is a city of the fourth class, incorporated under the provisions of Act No. 215 of the Public Acts of 1895. To such cities, among other powers, is given the following:

4 4 Every city incorporated under the provisions of this act shall, in addition to such other powers as are herein conferred, have the general powers and authority in this chapter mentioned; and the council may pass ordinances in relation thereto, and for the exercise of the same, as they may deem proper, namely:

Eleventh. To license hawkers, peddlers and pawnbrokers, and hawking and peddling, and to regulate, license or prohibit the sale or peddling of goods, wares, merchandise, refreshments or any kind of property or thing by persons going about from place to place in the city for that purpose, or from any stand, cart, vehicle, or other device, in or upon the streets, highways, alleys, sidewalks, or in or upon the wharves, docks, or from boats, open places or spaces, public grounds or buildings in the city.

Fortieth. The council shall further have authority to enact all ordinances, and to make all such regulations, consistent with the laws and Constitution of the State, as they may deem necessary for the safety, order and good government of the city, and the general welfare of the inhabitants thereof. * * * ” Section 3107, 1 Comp. Laws.

. Acting under the powers so conferred, the city passed an ordinance, the material parts of which, so far as relate to this case, are as follows:

44 An ordinance of the city of Alma, Michigan, relative to hawkers, peddlers and itinerant venders, and to regulate the sale or the peddling of goods, wares, merchandise, refreshments, or any kind of property or thing whatsoever, by persons going about from place to place in said city of Alma for that purpose, or from any stand, cart, vehicle, or other device, in or upon the streets, highways, sidewalks or in any open place or places, or space, public grounds or buildings, or in private buildings, in said city, and to provide a punishment or forfeiture for every person, who, without license, or contrary to the terms of any license granted him, shall, within said city of Alma, sell, offer for sale, or solicit orders for any goods, wares, merchandise, refreshments or any kind of property or thing whatsoever.

“Sec. 2. The term and words ‘hawker or peddler,’ for the purpose of and as used in this ordinance, shall be construed to mean and include, any person who shall go about from place to place within the said city, in any manner whatsoever, or who shall, from any stand, cart, vehicle or other device, in or upon any street, highway, sidewalk or in or upon any open place or places, or space or public building or grounds or private building or grounds, within said city, or who shall by sample or otherwise, from any hotel, public building or other place within said city sell, offer for sale, or solicit orders for any goods, wares, merchandise, refreshments or any kind of property or thing whatsoever to any person not a dealer therein.

“ Sec. 4. No hawker or peddler shall sell, offer for sale, or solicit orders for, by sample or otherwise, any goods, wares, merchandise, refreshments, or any kind of property or thing whatsoever, within the city of Alma, without first having paid for and obtained from the city clerk a license to do so.

“ Sec. 5. The rates to be charged and collected by the city clerk for any license issued to a hawker or peddler, shall be as follows:

“(a) Any hawker or peddler, who shall travel from house to house for the purpose of selling, offering for sale, or soliciting orders for, by sample or otherwise, any goods, wares, merchandise, refreshments, or any kind of property or thing whatsoever, shall pay the sum of three ($3.00) dollars per day for each day or fractional part thereof, for any number of days not exceeding ten (10) and for any number of days exceeding ten and not exceeding one year, shall pay the sum of thirty ($30.00) dollars.”

Section 11 provides a penalty for a violation.

Upon the trial counsel for the respondent moved the coúrt to enter a verdict and judgment herein of not guilty, for the reasons:

1. That said ordinance in so far as it attempts to regulate and license the soliciting of orders for the future delivery of goods at retail, is void.

2, Because said ordinance in so far as it requires the payment of a license fee by hawkers or peddlers or persons traveling from house to house for the purpose of selling, offering for sale, or soliciting orders for goods, wares, and merchandise, is void as being contrary to and in conflict with sections 5324 to 5331, inclusive, of the Compiled Laws of the State of Michigan of 1897.

3. Because the common council of the city of Alma have no power to pass any ordinance, license or regulate the soliciting of orders for future delivery by going from house to house for that purpose or for delivering the goods, wares, and merchandise so ordered.

The circuit judge was of the opinion that the case falls within the principles and reasoning of People v. Sawyer, 106 Mich. 428, and City of Muskegon v. Zeeryp, 134 Mich. 181.

Counsel criticise the first of these cases, and think it improperly decided. They suggest that the quotation with approval by Justice Long from Graffty v. City of Rushville, 107 Ind. 506, was not necessary to a decision of the case. They think the other cases cited in the opinion of Justice Long are not in point.

Some light is thrown upon what may be included in the term ‘ ‘ hawking and peddling ” by the legislation in this State. For at least 60 years we have had legislation upon that subject. Act No. 272 of the Laws of 1865 amended the' general statute. The title to the act reads:

‘ ‘ An act to amend sections sixteen, eighteen, twenty-one and twenty-two of chapter eighteen, of the Compiled Laws, relative to hawkers and peddlers.”

Section 16 reads:

“No person shall be authorized to travel from place to place within this State, for the purpose of carrying to sell, or exposing to sale any goods, wares or merchandise, or to take orders for the purchase of goods, wares or merchandise by sample lists or catalogues, unless he shall have obtained a license as a hawker and peddler in the manner hereinafter directed.”

It will be observed that under an act entitled, “An act relative to hawkers and peddlers ” the legislature thought it competent to say that before persons could travel from place to place for the purpose of taking orders for the purchase of goods, wares, or merchandise by sample, lists, or catalogues they must first obtain a license as a hawker or peddler. We think what was said by Justice Long was not foreign to the subject under discussion.

Counsel seek to distinguish this case from City of Muskegon v. Zeeryp, supra, by saying that the city of Muskegon had greater power conferred upon it by its charter than is conferred by the statute upon cities of the fourth class. We think a comparison of the charter with what we have quoted from the statute wfil show the contention is not well taken. As to this feature of the case we think the learned circuit judge was right in holding the case within the case cited by him.

It is' said the ordinance is in conflict with the State law as found in chapter 136, 2 Comp. Laws, and therefore void. We quote from the brief of counsel:

“It would not seem necessary to cite authorities in support of the proposition that a license so granted by the State would be a complete justification for the carrying on of the business mentioned in the license, yet, these inferior municipalities, actuated by selfishness and the desire to swell the volume of business of their local dealers, may wholly prohibit' within the limits of the municipality the transaction of business for which the licensee received the license, and by such local legislation as we have under consideration, limit the scope and effect of the act of the State in granting the license.

“ It will be noted that the provisions of this ordinance are expressly pointed at, and directly result in the defeat of the State license, because it gives to the local person who sells the product of his own factory, or the produce of his own labor, the right to peddle the same without regulation or fee. It is directly aimed at a nonresident. We assert that the legislature .cannot confer upon the municipality the power to prohibit a lawful business.

“ This ordinance is clearly in contradiction of the State law, and therefore is void,” citing Mayor, etc., of New York v. Nichols, 4 Hill (N. Y.), 209; Thompson v. City of Mt. Vernon, 11 Ohio St. 688.

It is not necessary for us to decide whether the legislature could authorize a municipality to prohibit a lawful business. The city of Alma has not so undertaken in the ordinance under discussion. The power to regulate the business of hawking and peddling has long been recognized in this State. Justice Cooley, in speaking for the court in People v. Russell, 49 Mich. 617, said:

“That the regulation of hawkers and peddlers is important if not absolutely essential may be taken as established by the concurring practice of civilized States. They are a class of persons who travel from place to place among strangers, and the business may easily be made a pretense or a convenience to those whose real purpose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense.”

See, also, Boston Beer Co. v. Massachusetts, 97 U. S. 25; People v. Phippin, 70 Mich. 18, and the cases cited in City of Muskegon v. Zeeryp, supra.

It is said that, as the legislature has passed a general law in relation to the business or calling, it is not competent for the municipality to legislate upon the same subject. In 1 Dillon on Municipal Corporations (4th Ed.), p. 485, it is said:

“ Questions of difficulty have arisen in consequence of grants of power to municipal corporations to make ordinances respecting matters and acts already regulated by general statute, and, if criminal in their nature, punishable under the laws of the State. Hence, the same act comes to be forbidden by general statute and by the ordinance of a municipal corporation, each providing a separate and different punishment. The same transaction may, if complex in its nature, be in one part of it an offense against the general law, and in another against the by-law; but such cases present no difficulty. But can the same act be twice punished, once under the ordinance, and once under the statute ? The cases on this subject cannot be reconciled. Some hold that the same act may be a double offense, one against the State and one against the corporation. Others regard the act as constituting a single offense, and hold that it can be punished but once, and may be thus punished by whichever party first acquires jurisdiction.”

See, also, the many cases cited in the note on page 437, including Cooley on Constitutional Limitations, p. 199. For cases having some bearing upon 'the 'question, see Wolf v. City of Lansing, 53 Mich. 367; People v. Hanrahan, 75 Mich. 611 (4 L. R. A. 751); People v. Blom, 120 Mich. 45, and the many cases cited in the last-named case.

The conviction is affirmed.

Carpenter, C. J., and McAlvay and Montgomery, JJ., concurred with Moore, J.

Ostrander, J.

(concurring). Whether one holding a State license, and going from place to place to peddle, could be required to obtain an additional license in each community in which he sold goods, does not seem to me to be a point for decision in this case. Respondent has no State license, and does not sell goods outside of the city of Alma. I concur in holding the case ruled by City of Muskegon v. Zeeryp, 134 Mich. 181.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HOWELL v. LANSING & SUBURBAN TRACTION CO.

    Corporations — Consolidation — What Constitutes — Debts— Liability.
    A corporation haying been organized for the purpose of taking over two existing corporations, one of the old corporations, substantially simultaneously with the acquisition by the new one of the property of the other, entered into an agreement with the new corporation whereby it conveyed all its property to the new corporation on consideration of a certain number of shares of the new company’s stock and the payment of the debts of the old corporation, including its bonded indebtedness. The same men held all the stock in the two companies. Held, that the transaction amounted to a consolidation, making the new corporation liable for the debts of the old.
    Error to Ingham; Wiest, J.
    Submitted June 12,1906.
    (Docket No. 54.)
    Decided December 3, 1906.
    Assumpsit by Sarah E. Howell against the Lansing Sc Suburban Traction Company on a judgment against defendant’s predecessor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Moore, Brown, Miller & Ladd, for appellant.

      Frank L. Dodge and Black & Beasoner, for appellee.

       Rehearing denied March 6, 1907.

   Montgomery, J.

The plaintiff was, on the 9th of March, 1904, the owner of a right of action against the Lansing City Electric Railway Company, which at that date was in judgment. The judgment was afterwards reversed, but on a new trial another judgment was awarded to the plaintiff on January 3,1905, for $6,498.88. This action is brought to recover the amount of that judgment of defendant, as successor to the Lansing City Electric Railway Company. The right of action is based upon proceedings taken by the defendant company, the Lansing City Electric Railway Company, and the Lansing, St. Johns & St. Louis Railway, which action is claimed to amount to a consolidation of the two companies in such sense as to make the defendant liable for the debts and obligations of the Lansing City Electric Railway Company, under the rule laid down by this court, in Shadford v. Railway, 130 Mich. 300. A demurrer to the declaration was the first pleading interposed by defendant. The demurrer was overruled, and defendant then interposed a plea of the general issue. On the trial action was taken which is treated as in effect a direction of a verdict for plaintiff. Defendant brings error, and insists that the declaration states no cause of action, and that the evidence is not sufficient to show a consolidation.

Of the demurrer, it is sufficient to say that the declaration contains a statement of the facts, which plaintiff now asserts as a basis for recovery, and that, if the plaintiff is right in assuming that the defendant’s so-called purchase of the rights and property of the Lansing City Electric Railway constituted a consolidation of two roads, the declaration is sufficient. It is averred and proved that after the organization of defendant for the purpose of taking over the Lansing, St. Johns & St. Louis Railway and the Lansing City Electric Railway, and substantially simultaneously with the acquisition by the defendant of the property of the Lansing, St. Johns & St. Louis Railway, the defendant and the Lansing City Electric Railway entered into an agreement, whereby the latter company conveyed all its property of every description to defendant upon the sole consideration that defendant should issue to the stockholders in the Lansing City Electric Railway 9,000 shares of the capital stock in defendant company, and should assume and pay the debts of the Lansing City Electric Railway Company, including its bonded indebtedness. The same men held all the stock in the two companies. The case can only be distinguished •from Shadford v. Railway in the fact that a new issue of bonds was not provided so far as the evidence shows. This does not affect the result. In the Shadford Case, as in the present, unsecured debts were left to be paid by the new company. It cannot affect the principle that the debts were secured. In all other substantial respects the Shadford Case is on all fours with the present.

It is suggested in the brief of counsel that the record fails to show that the stock of defendant was issued in lieu of stock of the Lansing City Electric Railway Company. This is not only technical, but it is inaccurate in that the statement ignores the inferences which are the only ones to be drawn from the facts. The resolution of the Lansing City Electric board of directors provided for a transfer of all the property of the company in consideration of the issue of stock in the new company. It does appear that the property was all transferred, and is possessed by defendant. And the defendant’s secretary testified that no other consideration passed to the Lansing City Electric Railway Company than that mentioned in the resolution. It is evident that the scheme included a substitution of stock in the new company for that held in the old. The case is not to be distinguished from Shadford’s Case.

Judgment affirmed.

Blair, Ostrander, Hooker, and Moóre, JJ., concurred.


text:
    GUBBINS v. ASHLEY.
    1. Pleading — Issues—Bill of Particulars.
    After filing a declaration containing the common counts and a count for deceit in inducing plaintiff to pay $1,000 for an option to purchase certain property, plaintiff filed a bill of particulars in which he claimed (1) $1,000 paid to defendants, (2) interest on same. Held, that the bill of particulars did not limit plaintiff to the common counts and that he was entitled to show the fraud inducing him to make the contract and part with his money.
    2. Money Received — Fraud—Statutory Action.
    Where plaintiff was induced by fraudulent representations to pay $1,000 for an option to purchase certain property which defendants were not authorized to sell, he could maintain an action of assumpsit for the damages sustained by him under the express provisions of section 10421, 3 Oomp. Laws.
    3. Estoppel — Fraud—Waiver.
    Plaintiff paid $1,000 to defendants for an option to purchase certain property belonging to a corporation which they professed to have authority to sell. On the expiration of the option plaintiff, with knowledge of defendants’ inability to comply, made formal demand for a proper execution of the contract of purchase by the corporation, and on the same occasion a demand for his $1,000. Held, that plaintiff was not estopped from asserting the fraud practiced upon him by his demand for the execution of the contract, defendants not having been misled.
    Error to Calhoun; Hopkins, J.
    Submitted June. 13, 1906.
    (Docket No. 33.)
    Decided December 3, 1906.
    Assumpsit by Robert M. Gubbins against Glover J. Ashley and others for money obtained by fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      D. C. Salisbury , {Henry E. Chase and Thomas Ambrose Lawler, of counsel), for appellant.

      R. J. Kelley, for appellee.
   Montgomery, J.

The plaintiff brought an action of assumpsit and filed a declaration containing a special count and the common money counts. The special count averred: That defendants were officers of the Hibbard Food Company, Limited, and, as an inducement to get plaintiff to enter into a contract for the purchase of the plant of said company, represented to plaintiff that they (the defendants) had obtained full consent and authority from all the stockholders of the company to sell and dispose of all the property and assets of the company, and that they also represented that the property of the company was free and clear of all liens and incumbrances.

That, acting upon these representations, plaintiff entered into what purported to be a contract of option with the Hibbard Food Company, and paid to defendants $1,000. That in truth and fact the defendants were' not authorized by the stockholders of the company to make such a contract or any sale of the property. The property was incumbered by mortgage. That plaintiff, in accordance with the terms of the option agreement, demanded a contract to be duly executed by the food company, and on defendants’ admission that they had not authority from the stockholders, and on learning that the property was incumbered, demanded the $1,000 back.

A bill of particulars was furnished, reading as follows:

“You will please take notice that, the following is a bill of. particulars of the plaintiff’s demand in said cause, for the recovery of which he has brought this suit:

“(1) One thousand dollars ($1,000) paid to defendants.

“(2) Interest on one thousand dollars ($1,000) from July 6, 1903.”

On the trial, objection was made to any talk leading up to the making of the option agreement, when the following colloquy occurred:

“Q. "What was that talk ?

“Mr. Kelley: To that we object. We object to the witness stating any conversation or any negotiation in regard to the transaction between him and the officers of the Hibbard Food Company prior to the execution of the contract in this case on the 6th day of July, 1903. Any negotiation or conversation leading up to the making of that contract we obj.ect to.

“Mr. Chase: This is a suit brought for the recovery of $1,000, upon the common counts in assumpsit, and I believe we have a right to go in and show up the whole transaction. We are not relying wholly upon that option or contract. We want our money back. We claim that these men, the defendants, got our $1,000 under misrepresentation and fraud, and without consideration, and we desire to show the fraudulent misrepresentations in connection with this deal, in order to complete our case, and we believe it is one of the necessary elements of our case.

“Mr. Kelley: The contract entered into bears date July 6th, and is signed by these parties. There is no better and more thoroughly settled rule, perhaps, than when parties deliberately put their transactions in writing in the form of a contract, that excludes all prior negotiations.'

“ I might as well state another- position we shall take: We shall object, under the pleadings in this case, to their offering any evidence as to fraud and deception. We have asked them to furnish a bill of particulars in this case, and they have furnished it, and claimed nothing but for money paid for their use under the common counts in their declaration, and we submit that they cannot be allowed now to introduce proof on special counts, when they have led us to rely upon their common counts for money had and received by these defendants for their use. I simply at this time state this proposition, as it will come up later in the case.

“Mr. Chase: We have more than one count in the declaration. The contract which we introduce in this case is merely introduced as descriptive of the transaction and a part of the evidence showing the whole transaction. We are bringing a suit for a thousand dollars on the common counts, and we have a right to go into the whole transaction. We are not relying upon the contract; we are simply putting it in for what it is worth. * * *

•“ The Court: The objection may be sustained.”

After the testimony was in, the court directed a verdict for the defendants.

The offer of the plaintiff’s counsel was to show fraud and deceit by means of which he was induced to part with his money. The case comes clearly within section 10421, 3 Comp. Laws. The bill of particulars did not purport to limit the plaintiff to the common counts. Under either the common counts or the special count the measure of damages was the same. It cannot be said that the fraud was merged in the option contract. The very wrong complained of was inducing plaintiff by false statements to enter into that contract and part with his money. Rambo v. Patterson, 133 Mich. 655.

It is further contended that the plaintiff is now estopped from asserting the fraud complained of for the reason that, after learningthatthedefendants lacked authority fromthe stockholders, he made a formal demand for the execution of the contract by the Hibbard Food Company. It is said that he should have rescinded his contract at once instead of demanding an execution of a more formal contract. It does not appear that defendants were in any way misled, for, on the same day and occasion, plaintiff did demand the return of his $1,000. On the record as it is presented we are not able to say that there was any waiver of plaintiff’s rights.

The judgment is reversed, and a new trial ordered.

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


text:
    McCLURE v. DETROIT SOUTHERN RAILROAD CO.
    1. Master and Servant — Personal Injuries — Liability op Master — Existence op Relation.
    Where, at the time of an injury to an employé of railroad car shops, the railroad company defendant has, as between itself and its predecessor, assumed full control of the property constituting the railroad and taken upon itself the operation thereof, it occupies the position of an undisclosed principal with respect to the duty it owes to employés not apprised of the change of ownership, and is therefore liáble to such employés for its own negligent acts; the question in such case being not so much a question of contract right as of duty owed.
    2. Same — Scope op Employment.
    An employé of railroad shops, in the woodworking department, who had occasionally been called out of the shops to assist in clearing wrecks and to repair cars, held, not called out of the line of his regular employment by being instructed to assist in raising a loaded car in the yard on jacks for the purpose of repairing it.
    3. Same — Fellow-Servants—Incompetent Foreman.
    A foreman of a car repairing gang in railroad yards is the fellow-servant of an employé of the shops temporarily called out to assist in repairing cars, and the company is not liable for injuries to the servant resulting from such foreman’s ' negligence unless the foreman is incompetent and the company is at fault in employing him.
    4. Same — Notice to Master.’
    Where, immediately preceding an injury to a servant of a.railroad company, there was a change of ownership of the prop- • erty constituting the railroad, but the officers and employés by order continued in their several stations, notice to the master mechanic of the incompetence of a foreman car repairer, received before the change of ownership, continued to be notice thereafter, and bound the succeeding owner.
    5. Same — Assumption of Risk — Obvious Dancer.
    Whether the danger of going under a loaded freight car, one end of which has been raised up on jacks and the trucks removed, the car standing without other supports or braces, is so obvious that the servant so doing pursuant to order assumes the risk thereof, held, a question for the jury, in view of evidence that the foreman giving the order was incompetent.
    Error to Lenawee; Chester, J.
    Submitted June 15, 1906.
    (Docket No. 48.)
    Decided December 3, 1906.
    Case by Lucy A. McClure, administratrix of the estate of Robert J. McClure, deceased, against the Detroit Southern Railroad Company for .the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellant.

      W. J. Ingersoll and John E. Bird, for appellee.
   Montgomery, J.

The plaintiff recovered at the circuit damages under the death act for the death of her husband on the ground that such death was caused by defendant’s negligence. On the 1st day of June, 1901, decedent was employed in defendant’s car shops at Tecumseh, and was directed by the foreman in charge to go into the yards of the company to assist in the repair of a loaded freight car. The repairs consisted of replacing the draw-bar at each end of the car. The work was done under the immediate direction of the foreman of the car department, George Sollers. The men employed were ordered and directed by Sollers, the car foreman, to take the drawbar out of the north end of the car and replace it with a new one. The car stood on a north and south track. The north end of the car was run up by jacks under either corner and wooden horses were placed beneath the car to help sustain its weight. Some difficulty was experienced in getting out the pin which held the car to the trucks, and Sollers, the foreman, ordered that the car be jacked up higher. This was done, but was not followed up by any blocking on top of the horses. The pin was finally released and the trucks were run out from under the car, and, while the end of the car rested alone upon the two jacks, Sobers ordered the men to get in under the car and go to work. McClure obeyed the order and was just in the act of stooping down to get in under the car when the north end of the car slued to the west and fell to the ground, falling upon McClure and killing him instantly. T. M. Downing was the master mechanic and had full charge of the company’s business at the shops, and George Sobers was the foreman of the car department, and Soliera was otherwise known and spoken of as the master car builder. There was testimony tending to show that Downing had knowledge that Sobers was not a competent foreman, and said so to witness Dooley, but excused his retention on the ground that he got lots of work out of the men and that he was all right as a driver, but he was no mechanic.

The grounds of negligence relied on were, briefly, as follows: That McClure was wrongfully ordered out of the department in which he was employed to work into another department to perform other and more dangerous work with which he was unacquainted and did not appreciate without first informing him of the dangers incident to said work and how to avoid them; that the defendant failed to exercise due care in the employment of foreman Sobers, and that he was incompetent to the knowledge of defendant.

It is insisted by defendant’s counsel:

(1) That the relation of master and servant was not shown to exist between McClure and defendant.

(2) That the deceased, at the time of his injury, was acting within the line of his employment.

(3) That there is no competent testimony to show that defendant was guilty of a wrong in the employment of Sobers or his assistants.

(4) That the danger to which McClure was subjected was obvious.

1. It appears that prior to June 1, 1901, the railroad properties and shops connected therewith had been operated by the Detroit & Lima Northern Railway Company. By an order issued on that day the defendant’s president stated that the defendant “ had acquired all the property of the D. & L. N. and that possession is hereby assumed,” adding, “ Officers, agents, and employés are requested to continue in the discharge of their several duties unless otherwise ordered.” The evidence is not clear that notice of this order had been brought home to Mr. McClure before his injury, or that the local agents or employés knew of it. There was, however, testimony tending to show that one of the cars of the Detroit & Lima Northern had, before this date, been relettered in the Tecumseh shops with the name of the defendant. An inference might be open from this that the deceased and other employés knew of the change. However this may be, the defendant evidently had, as between its predecessor and itself, assumed full control of the property and taken upon itself its operation. It thereby, as to the duty it owed to the employés, occupied the position of an undisclosed principal. The court below was right in holding that, if the defendant company was in fact operating the properties at this time, it was liable as master. Smith v. Belshaw, 89 Cal. 427; Crusselle v. Pugh, 67 Gra. 430. The question in such case is not so much a question of contract right as it is of the duty owed. Cases cited, supra.

2. "Was the decedent called out of the regular line of his employment to perform work not contemplated by the employment? This question was submitted to the jury by the circuit judge. The testimony shows that a car repair shop was maintained at Tecumseh, consisting of a woodworking department, paintshop, etc. It is the claim of defendant, and its testimony tended to show, that’ cars were brought to the shop for repair, and. that the employés in the woodworking department assisted in such repairs and in jacking up cars as occasion demanded; that at times they were (including McClure) called out of the shop on the road where wrecks had occurred to perform similar service, and it is insisted that this testimony is uncontradicted and shows that decedent’s employment included such work. Plaintiff called two witnesses to show what decedent’s employment was. Robert Hastings, who was McClure’s boss, and who, referring to the work on the' car on the day in question, testified:

“I had never been engaged in this kind of work before, nor had McClure been engaged in this kind of work, not as I know of.”

On cross-examination he testified as follows:

“Well, to the best of my judgment, I don’t think he [McClure] was out very much. He went out on wrecking gangs two or three times; something like that. I didn’t go with him, and don’t know what he did on those trips. They usually have a derrick, a couple of pairs of trucks, some jacks and blocks, and so on.”

Dooley, who preceded Sobers as foreman, testified that McClure’s duty was assisting Hastings in the woodworking shop. On direct examination he testified as follows:

“His [McClure’s] duty was helping Mr. Hastings. Previous to that he had regular work in the paintshop. After he got into the woodworking shop he used to go out in the yard and bore holes in sills, and put on grabirons, and lift pins, and such things as that, and once in a while carry out timbers and go under the car and cut out a piece that didn’t happen to fit right; he would go under the car and cut it out. He was not engaged in this class of work of car repairing, raising cars, not loaded cars, to my knowledge.”

When this testimony is read in connection with testimony of defendant’s witnesses that McClure, when out of the shop working on wrecks, was one of the crew engaged in jacking up cars, it is manifest that the general scope of his employment included work of this character. It was error to permit the jury to find that he was, on the occasion of his injury, ordered outside the line of his employment.

3. It follows from this that Sollers and McClure were fellow-servants, and that, for the personal acts of negligence of Sollers, the defendant is not responsible to McClure’s representatives,, unless it be found that the defendant was at fault in the employment of an incompetent servant in Mr. Sollers. This was claimed, and that question was also submitted to the jury. There was testimony tending to show that Sollers was incompetent. The method adopted of bringing home notice to the defendant company was to offer in evidence a declaration' of Mr. Downing, the master mechanic of the predecessor company, and who continued in defendant’s employ on June 1st. This was objected to, and it is insisted that any declaration of Downing at that time would be hearsay. It was not competent evidence of the fact of Sollers’ incompetency, but, if such incompetency was otherwise shown, we think such a statement by Downing was as competent to show notice to him of such competency as would have been a communication made to him. The only .doubt which could exist arises out of the change of employers after the declaration was made, but we think this circumstance does not render it incompetent. The testimony was competent to show notice or knowledge on Downing’s part of Sollers’ incompetency. When the change of ownership took place Downing continued in a position in which notice to him was notice to the master. Bailey on Master’s Liability for Injuries to Servant, p. 66; Ohio, etc., R. Co. v. Collarn, 73 Ind. 261. If, at the time of the injury, this superior servant possessed the knowledge, the result is the same as though it were then for the first time communicated to him. Wade on Notice, § 687 et seq.

4. Was the risk so obvious that McClure should be held to have assumed the risk ? The case is near the border line, but we think the fact, if it be the fact, that the deceased was ordered under the car by one in authority who was incompetent, is to be taken into account in determining whether deceased was negligent in not informing himself of the danger. Walker v. Railway Co., 104 Mich. 606.

The other questions presented are not likely to arise on a new trial. For the error pointed out, the judgment is reversed, and a new trial ordered.

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


text:
      In re MORSE’S ESTATE. SIBLEY v. MORSE.
    1. Wills — Contest — Testamentary Capacity — Opinion Evidence — Harmless Error.
    No prejudice arises from allowing the attorney who drafted a will to state whether testator was mentally and physically competent to make his will, where the cross-examination and the instructions show that the jury were not left to infer that the attorney was attempting to testify to the legal conclusion, but that he was merely attempting to speak of the degree of intelligence and understanding of the testator.
    2. Same — Evidence—Remoteness.
    Where a medical witness who witnessed codicils to a will has testified regarding testator’s testamentary capacity, questions on cross-examination regarding his treatment of testator for urethritis some 11 years prior to the execution of the codicils and 8 years prior to the execution of the will are properly excluded as too remote, irrespective of whether the heir, who is contesting, can waive testator’s statutory privilege.
    8. Witnesses — Competency — Religious Beliefs — Harmless Error.
    Questions put to witnesses regarding their religious beliefs and practices held, not prejudicial as in contravention of section 10207, 3 Comp. Laws, it not appearing but that the statements of the witnesses were taken as true, nor that any argument was made to the jury upon the subject of religious belief.
    4. Wills — Contest — Character of Legatee — Evidence — Materiality.
    An offer of evidence in a will contest with respect to the character of a legatee, on the theory that the testator would not be likely to leave a legacy to a person of his character, is properly rejected, where, no offer is made to show that testator had knowledge of the fact, and the question is not confined to the period of testator’s life.
    5. Same — Undue Influence — Evidence—Sufficiency.
    That testator’s business adviser, when spoken to about making a will, advised that it be not postponed too long, and, at testator’s request, took a memorandum of the terms of the will, does not show undue influence, such adviser in no way profiting by the terms of the will, and there being nothing to show that he advised with respect to a single provision.
    6. Same — Insane Delusions.
    Where contestant admits that he advised with several people with respect to having a guardian appointed for testator, and it appears that testator had knowledge of contestant’s views, contestant cannot claim that if testator believed contestant was attempting to have a guardian placed over him such belief was an insane delusion, and if it affected the making of his will the will was void.
    7. Same — Provisions of Will — Natural Justice.
    Instructions respecting the presumptions indulged against a will, the provisions of which are against natural justice, and the likelihood of such a will being the result of undue influence or unsound mind, examined, and held, as favorable to contestant as the law permits.
    8. Trial — Requests to Charge — Necessity of Giving.
    There is no error in refusing requests to charge, the substance of which, so far as they are correct statements of legal principles, are sufficiently covered by the general charge.
    Error to Oakland; Smith, J.
    Submitted June 19, 1906.
    (Docket No. 37.)
    Decided December 3, 1906.
    Judson L. Sibley presented for probate the last will and testament of John W. Morse, deceased. The will was allowed in the probate and circuit courts, and Rollin J. Morse, contestant, brings error.
    'Affirmed.

      James H. Pound and Perry & Stockwell (George E. 'Eckert, of counsel), for appellant.

      Patterson & Patterson, for appellee.

      Morse & Locke, for legatee Porter.
   Montgomery, J.

John W. Morse died on the 19th of March, 1903, at the age of 77 years, leaving an estate consisting of 400 acres of land, stock, tools, and personal property, and notes and mortgages; the aggregate of the inventory being about $31,500. He had but one son, the contestant, Rollin J. Morse. His numerous relatives consisted of brothers, sisters, and nieces. His son, Rollin, was at the time of his death 50 years old, married, and living in the city of Detroit, while the deceased lived on the farm in the township of Novi, Oakland county. Rollin had received a liberal education, and was an attorney at law. It is apparent from the whole record that the relations between the father and son were not cordial. The second wife of deceased died in 1895, and from that time until the death of John W. Morse the son was rarely at the home.

John W. Morse had living with him before the death of his second wife, one Edith Bell, a young woman, who at the time was 22 years of age and upwards. She had been with the family for some years before, acting as domestic and housekeeper, and continued in that relation up to the time of Mr. Morse’s death. The son at the time of the death of his stepmother seems to have conceived the idea — upon what seems to be very slight foundation — that Mrs. Morse had been murdered by Edith Bell, and it is open to inference that his suspicion went so far as to include his father. He also suspected that illicit relations existed between his father and this young woman, and on the trial of his case testifies to circumstances coming within his observation tending to show that fact. A disagreement arose between the father and the son over the question of putting away this housekeeper. An interview was had at the residence of a neighbor, in which the son in effect accused his father of illicit relations- with Edith Bell, and coupled this accusation with the one against Edith Bell, charging her with having been the cause of his stepmother’s death. Whatever justice there may have been in the first charge, the latter, as heretofore stated, was based upon a very flimsy foundation, and from this date the relations between father and son were strained.

In 1898 John W. Morse, after conferring with Judson L. Sibley, who had been his friend and adviser for many years, gave to Sibley a memorandum of the terms of a will which he desired to make. The two then made an appointment with John H. Patterson, an attorney at Pontiac, and on the 25th of October went together from Novi, a distance of about 20 miles, to Pontiac, and went to the office of Mr. Patterson. Mr. Patterson, after a private interview with Mr. Morse, prepared the will in question in this case. It was signed and executed in the presence of these two witnesses and Abiram Parker, president of the First Commercial Bank of Pontiac, and a long time business acquaintance of Mr. Morse.

The will bequeathed to contestant, Rollin J. Morse, for the term of his natural life, the net use and income of 160 acres of land known as the Homestead,” and provided that at his death the homestead should go to his children, if any, and, if no issue survived him, then to his next of kin. He also bequeathed all household goods, stock, tools, harvested grain, and produce on the farm absolutely to contestant, on the condition that he pay to the executor the sum of $200. He gave to his nephew Frank Morse a life estate in 80 acres of land; to his niece, Mary Ackley, a life estate in 80 acres of land; to his nephew, John Porter, a life estate in 80 acres of land, with similar provisions as to the remainder in each case — that is, that at the death of the legatee the estate should vest in the surviving children, if any, and, if no issue survived, then to the next of kin of the legatee. To his sister, Deborah Lowe, he bequeathed a mortgage which he then held against her, and also set apart $4,000 to constitute a trust fund to be kept invested in interest-bearing securities, the net income it should yield to be paid to her, and at the death of Deborah Lowe the trust fund was to go to her children, if any survived, and, if not, then to her. next of kin. He bequeathed to Edith Bell, his housekeeper, the sum of $1,000, and directed that all wages due her be paid in addition to that legacy. He bequeathed to the trustees of the Free Will Baptist Church at Wixom $1,000, and the residue of his estate he gave to the children of his deceased brother, Stillman R. Morse. He directed that the taxes upon the life estate should be paid by the life tenant, and appointed Judson L. Sibley as his executor.

On the 11th of September, 1901, at his home in Novi, a codicil was prepared by Mr. Patterson, who went to the home of deceased for that purpose. This codicil revoked the provision for a trust fund for the benefit of Deborah Lowe, and in lieu thereof gave her $2,000 absolutely, and the house and lot in South Lyon occupied by her, and the mortgage he held against her. He gave to his housekeeper, Edith Bell, the sum of $2,000 in addition to the $1,000 bequeated by the will, making $3,000 in all. Six days later another codicil was prepared, in which he revoked the legacy to the trustees of the Free Will Baptist Church at Wixom.

This will and codicils were filed for probate. Objections were made to their probate by the contestant on the ground of the mental incompetency of the testator and undue influence. On the trial of the case on appeal in the circuit court before a jury the case was submitted upon two grounds — first as to the mental competency of John W. Morse; and second as to the undue influence of Edith Bell. The court declined, to submit the question of undue influence claimed to have been exercised by Judson L. Sibley. The jury found a verdict sustaining the will, but refusing probate to the two codicils. The case is brought here by the contestant for review.

The record contains 575 pages and 166 assignments of error. Any attempt to state the testimony at length or to review and discuss in detail the questions raised by the assignments would extend this opinion to the limit of a volume. Some attempt has been made to group the assignments, and the questions necessary to be discussed may be treated under a few heads.

When the witness Patterson was on the stand and had • stated his acquaintance with deceased, and the circumstances of the execution of the will, he was asked the question whether or not at this time John W. Morse was mentally and physically competent to make and execute this will. This was objected to, the objection was overruled, and this ruling is claimed to be error under the rule laid down in Page v. Beach, 134 Mich. 51. The form of the question is perhaps open to criticism. Technically it might be construed as calling for the opinion of the witness upon a question of law. But, as was stated in Page v. Beach, of similar questions under discussion:

“ The questions might be understood by the jurors as calling merely for the degree of intelligence as bearing upon the understanding, recollection, and will power. In such case no harm would be likely to follow.”

When we take into account the cross-examination in this case and the full instructions of the court as to the degree of intelligence necessary, it is manifest that the jury were not left to infer that- Mr. Patterson had been attempting to state the rule of law, but had been attempting to speak of the degree of intelligence and understanding of the testator. We think no prejudicial error was committed in receiving this testimony.

Dr. Chapman was a witness to the two codicils, and he •was called as a witness for the purpose of showing the mental capacity of the testator at the time these codicils were exequted in 1901. On cross-examination he was asked in regard to having treated the deceased for urethritis in 1890, some 11 years prior to the time he witnessed the codicils, and 8 years prior to the execution of the will itself. This testimony was excluded on objection. Contestant contended that on the authority of Fraser v. Jennison, 42 Mich. 206, the son, Rollin, as heir at law, might waive the statute protecting the patient from the discovery of facts learned by the physician while treating him. In Fraser v. Jennison the legal representatives were those who were permitted to waive the- right. Whether the heir can, against the protest of the legal representatives, waive the right, is a question unnecessary to determine in this case, although there is authority supporting the contention that he may. Thompson v. Ish, 99 Mo. 160. But in any view of the case we think this testimony was too remote to be of any value in determining the mental condition of testator from 8 to 10 years later, and that no error was committed in its exclusion which prejudiced the rights of contestant.

The claim is made that in the course of the trial an appeal was made to religious prejudices in inquiring as to the religious belief of witnesses. It is claimed that the statute (8 Comp. Laws, § 10207) which provides that no person shall be deemed incompetent as a witness in any court, matter, or proceeding on account of his opinions on the subject of religion, nor shall any witness be questioned in relation to his opinions thereon, either before or after he shall be. sworn, was infringed. The witness Alvin Newman was asked on cross-examination if he was an Adventist in religious belief. An answer was given before an objection was interposed; but, on an objection being made, the court said he saw no harm in it. On redirect examination he said he was a Seventh Day Adventist. No comment appears to have been made upon the subject, and, while the inquiry might well have been omitted, no prejudice seems to have been created.

One La Grange was a witness for contestant, and gave testimony tending to show that the contestant, Rollin J. Morse, attended spiritualistic meetings at his house. No objection was made to this testimony. Minnie Adams was sworn for contestant. She testified that she was not a medium, and no objection was made to the testimony. She was asked if she was a spiritualist, and she replied that she was not. After she had answered the question exception was taken to the asking of the question, but it was allowed to stand. The answer certainly could not have prejudiced either her or the contestant’s case before the jury. It is also complained that Dr. Gillette stated that Minnie Adams claimed to him to be a spiritualistic medium. This testimony, however, was taken without objection. Rollin J. Morse was asked if he had written a book on spiritualism, and he answered “ No.” It is diffi-' cult to see how this prejudiced the parties in any way. It does not appear but that the statement of the witnesses were accepted as true, or that any argument was made to the jury upon the subject of the religious belief of either.

Error is assigned upon the refusal to permit an inquiry upon the subject of whether Frank Morse was a drinking man. He was asked on the' stand if decedent did not complain to him about drinking. He replied that he did not. He was then asked if, in fact, he did not indulge in the use of liquor. This was not accompanied by any proposition to bring home knowledge of the fact to John W. Morse, nor was it confined to the period of John W. Morse’s life. It is now urged that, if to the knowledge of. John W. Morse, Frank Morse was a drinking man, it would be less likely that he would have left him a legacy, but the purpose was not made clear to the court, and as it related to the present time, long after John W. Morse’s death, its relevancy would not be apparent.

It is strenuously insisted that the court erred in holding and instructing the jury that there was no evidence that undue influence was exerted over deceased by Judson L. Sibley. It is said that the evidence shows that deceased counseled with Mr. Sibley about his business matters; that he had talked with him about adopting Edith Bell; that Sibley had heard Rollin accuse his father of illegitimate relations with Edith Bell; that he admits having repeatedly urged deceased to make a will, and that, knowing that deceased had but one child and that there could be no occasion to make a will unless he wished to disinherit him, the repeated effort to get him to make a will was an effort to get him to disinherit the son; that the fact that Sibley accompanied Morse to Patterson’s office on the occasion of the will being made shows that Morse was utterly dependent upon Sibley.

We have examined this record with great care and are thoroughly satisfied that there is nothing but bare suspicion upon which to rest any claim of undue influence by Mr. Sibley. It is true that he was Mr. Morse’s confidential adviser. It is also true that, when Mr. Morse stated to him that he intended to make a will, he advised him not to postpone it too long. As a matter of fact, the making of the will was postponed a couple of months. Mr. Sibley’s advice, whenever he was spoken to about it, was that it should be made promptly. This is not undue influence. It is not only a friendly, but a wise suggestion. There is not a scintilla of evidence in the case tending to show that a single provision of this will was advised by Mr. Sibley. He himself in no way profited by the terms of the will. It is true the church of which he is an attendant receives a legacy of $1,000. It is also true that at Mr. Morse’s request Mr. Sibley took down a memorandum of the terms of this will. But this of itself is not enough to show that there was any influence exerted, particularly when the fact appears that this was not the only occasion upon which Sibley had looked after the business affairs of deceased.

The contestant claimed that John W. Morse was laboring under an insane delusion in that he believed that his son Rollin was attempting to have a guardian placed over him. The contestant asked an instruction as follows :

“ There is no evidence in this case that Rollin J. Morse, the contestant, ever took any steps towards having a guardian placed over his father, the testator, John W. Morse. Indeed, the uncontradicted evidence in this case shows the contrary of this, and, if John W. Morse so believed, he had a delusion affecting Rollin J. Morse, and, if it affected the making of this paper offered as a will, the paper is void.”

Contestant himself testified that he had a conversation with one or two people at Wixom upon the subject of having a guardian appointed for his father in the winter of 1896; that he approached that investigation with the view of making a petition for the appointment of a guardian; that he talked with one or two whom he supposed to be his friends to ascertain if it was advisable or practicable to have a guardian appointed; that he was advised that, in view of his father’s position in society, it would not be advisable. There was testimony that John W. Morse said to one Starkweather that his son was trying or was going to place a guardian over him. John E. Morse testified that Rollin said to him that there was no way except to appoint a guardian, that the property was being scattered, and he, John E. Morse, talked with John W. Morse about it. The point seems to be that an attempt to appoint a guardian could not be made without a petition in the probate court. Manifestly, as John W. Morse understood it, an attempt was being made when Rollin was advising with a neighbor of John W. Morse with a view of collecting testimony for that purpose.

The contestant also requested the court to charge the jury as follows:

“ The will offered in this case for probate is as a matter of law against natural justice, and the proponents are called upon to satisfy you that _some good reason must have existed for the practical disinheritance of the testator’s only child, Rollin J. Morse, or else you may find it to be the product of an unsound mind or undue influence. In determining the question of testator’s capacity, the jury are at liberty to consider whether or not the claims of near relationship have been disregarded or overlooked, and, if they find that such claims have been disregarded or overlooked, they may consider that fact in connection with the other circumstances of the case, and give it such weight as in their sound judgment and discretion they think it entitled to.”

The court did charge the jury upon this subject as follows:

“ The fact that a father disinherits an only child for no good cause raises a presumption that he is in fact incompetent. But I add to that, gentlemen, this: That the son in this case is not entirely disinherited by this will and codicils, and I think that I ought to add this that a testator may dispose -of his property as he pleases, and that it does not necessarily follow that there is mental incompetency because he distributed it among certain of his blood relatives, and entirely omits one or more of them. * * *

“ The jury may consider the nature ana character of the will, and if it be contrary to natural justice, with the other facts of the case, may be considered by the jury in the determination of the question whether or not the testator was of sound mind or had been unduly influenced at the time of its execution. The natural object of John W. Morse’s bounty was his son, Rollin J. Morse, because he was his son. With no will, the law would give the estate to the son by inheritance.

“A man owes certain duties to his family, to those he has been instrumental in bringing into the world. He is under certain legal and moral obligations to them, and, if these obligations are overlooked or disregarded, then it is important for you to inquire whether the reasons that are assigned for overlooking and disregarding these duties are such as actually operate upon him, if his mind was sound in so doing; and, if you believe from the facts proven in this case that John W. Morse did not consider or weigh his obligations to his son or was blinded by passion or hatred toward him, then it is your duty to disallow this will.”

These instructions were certainly as favorable to contestant as the law would permit. Spencer v. Terry's Estate, 133 Mich. 39.

Contestant’s counsel presented 84 requests, and error is assigned on the refusal to give certain of these requests. We can only say that, so far as the requests presented were correct statements of legal principles, they were sufficiently covered by the charge. The case was given to the jury in a careful charge which fully presented the issues. No prejudicial error is discovered.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, -Grant, and Ostrander, JJ., concurred.


text:
    BROWN v. HAYES.
    1. Limitation op Actions — Mortgages—Renewal op Period— Payments by Joint Mortgagors.
    Section 9745, 3 Comp. Laws, providing against renewal of the period of limitations as against one joint debtor by payments made by another, being limited in its terms to cases arising under chapter 268, of which it is a part, does not control the effect as to one joint^mortgagor of payments on- the mortgage debt made by another.
    2. Same — Common Law.
    At the common law, a payment by one jointly bound, unless the statute established a contrary rule, was sufficient to prevent the running of the statute of limitations as to all.
    3. Same — Joint Mortgagors.
    A payment by one joint mortgagor within the period of limitations renews the debt as to all, section 9725, 3 Comp. Laws, respecting the limitations as to mortgages, containing no provision to the contrary.
    Appeal from St. Clair; Law, J.
    Submitted June 20, 1906.
    (Docket No. 12.)
    Decided December 3, 1906.

      Bill by Jefferson G. Brown against Mary Hayes and Richard Hayes to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Moore, Brown, Miller & Ladd (.Lincoln Avery, of counsel), for complainant.

      Stevens, Graham & Stevens, for defendants.
   Montgomery, J.

This is a bill filed to foreclose a mortgage given to secure a note, of which defendants (husband and wife) were joint makers,' dated June 19, 1879, due three years after date. The mortgage and note were given to Delemere Brown, who died in May, 1902. The complainant has succeeded to the rights of the mortgagee.

The defense of the statute of limitations is obviously good, unless by payments made and indorsed on the mortgage or note the obligation has been kept alive. Indorsements appear to have been made from time to time, but the evidence to connect the defendants with the payments which the indorsements purport to record is wanting, except in one instance. One indorsement, of November 9, 1894, was as follows: “Received on within 26 sheep, $45.50” — and was, we are convinced, made in the presence of Richard Hayes, and evidences an actual transaction with him. The circuit judge was not satisfied that the evidence was sufficient to show that the payment was made by the authority of Mary Hayes, and on the authority of Curtiss v. Perry, 126 Mich. 600, held that the payment by Mr. -Hayes did not prevent the running of the statute of limitations against Mrs. Hayes. It should be said that the circuit judge was in no way in fault in construing the case of Curtiss v. Perry as he did. An examination of the record and briefs in that case shows that both parties assumed that section 9745, 3 Comp. Laws, was a general provision limiting the effect of the payment by one of two joint debtors, as it should affect the running of the statute of limitations in all cases. The court appears to have adopted this concession. Section 9745 is, however, limited in its terms to cases arising under chapter 268. See Perkins v. Cheney, 114 Mich. 567, where an entirely analogous provision was considered, and it was held that, as to a case not covered by that chapter, the rules of the common law would prevail.

At the common law, according to the weight of authority, a payment by one jointly bound was, unless the statute established a contrary rule, sufficient to prevent the running of the statute. The leading case is Whitcomb v. Whiting, 2 Doug. 652. This was followed in Wyatt v. Hobson, 8 Bing. 309. Which latter case was cited by Mr. Justice Cooley in Mainzinger v. Mohr, 41 Mich. 685, as establishing the common-law rule first enunciated in Whitcomb v. Whiting. These cases were cited as establishing the rule in Cross v. Allen, 141 U. S. 528. The rule, as there stated, is that, where part payment is made before the statute has run, that payment keeps the debt alive, both as against the payor and his co-obligor or surety as well. The statute of limitations as to mortgage foreclosures reads as follows:

“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall become due and payable, or within fifteen years after the last payment was made on said mortgage. ” * * * Section 9725.

Fifteen years have not elapsed since the last payment was made on this mortgage. As this statute contains no provision restricting the effect of a payment by one of two joint debtors or by the principal debtor, the rule in Whitcomb v. Whiting must be applied, and foreclosure decreed.

It is so ordered.

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


author: Hooker, J.

text:
    LONDON GUARANTEE & ACCIDENT CO. v. WAYNE CIRCUIT JUDGE.
    Discovery — Inspection oe Books — Contract Right — Necessity.
    Where an employers’ liability insurance policy, upon which suit is brought,- entitles plaintiff insurance company to inspect defendant’s 4MM|11 to determine the amount of premium payable on the^rolicy, plaintiff is entitled to an order for the inspection of such pay roll under .Circuit Court Rule 50, without showing a necessity for such inspection, or that a subpoena deuces tecum would not compel its production at the trial.
    Mandamus by the London Guarantee & Accident Company, Limited, to compel Morse Rohnert, circuit judge of Wayne county, to set aside an order denying an order for discovery.
    Submitted October 2, 1906.
    (Calendar No. 21,800.)
    Writ granted December 3, 1906.

      Brennan, Donnelly & Van De Mark, for relator.

      D. B. Hayes and W. G. Fitzpatrick, for respondent.
   Hooker, J.

The relator sued Pardridge & Blackwell, copartners, in an action at law, upon a contract; summons being duly served. The defendants appeared, and before filing declaration the plaintiff filed a petition for discovery under Circuit Court Rules 50 to 57 (124 Mich, xxxviii). The subdivision of Rule 50 believed to be particularly applicable to this case is subdivision “a.”

“Rule 50. Application maybe made by petition to any circuit court in term time, or to the judge thereof in vacation, to compel the production and discovery of books, papers, and documents relating to the merits of any suit pending in such court, or of any defense to such suit, in the following cases.

(a) By the plaintiff, to compel the discovery of papers Or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to declare, or answer to any pleading of the defendant.”

The petition states, in substance, that the plaintiff made a contract to insure defendants against loss by reason of accidents to their employes. By the terms of the contract a definite sum was paid down as premium, with the provision that full compensation should consist of a sum to be estimated, at a fixed rate, upon the aggregate of salaries for the year of defendants’ employes, plaintiff to refund or receive the requisite sum, to make its payment comply with such agreement. It was also agreed that plaintiff was to be informed of said aggregate salaries, and to be allowed to inspect defendants’ books, containing evidence in relation thereto.

Before the action was begun, demand for this information, and for opportunity to inspect such books, was made and refused. The petition alleges further that plaintiff is informed and believes that the pay rolls from March 1, 1902, to March 1, 1905, exceed the sum upon which it has so far received payment, and that there is an additional sum due; that plaintiff has no means of ascertaining whether this is true or not, or, if so, the amount its due; that, in order to recover said additional premium, it has sued in assumpsit in this proceeding, and is advised by counsel, and verily believes, that the discovery of the books, papers, and documents containing said amounts of pay rolls is necessary to enable it to declare and prepare for trial. It concludes with an appropriate prayer.

The learned circuit judge denied the application upon the ground that it was not made to appear that there was a necessity for such discovery for the purpose of declaring in the cause. Subsequently a motion to vacate such order of denial was made, which included the further statement that the documents, etc., were in danger of destruction. This was fully denied in an additional answer. The motion was denied, and is before us in mandamus proceedings.

This rule has been before the court before. In Cum mer v. Kent Circuit Judge, 38 Mich. 351, we had occasion to pass upon Rule 40, as it was then numbered. The application was made after the case was at issue, and discovery was sought of the contents of defendant’s books to enable the relator to prepare for trial. In setting such an order aside, we said:

“Such applications rest with great reason upon very strict ground, and they cannot be lawfully granted unless it is shown affirmatively and with great certainty and distinctness that a real necessity exists. Mere convenience or curiosity or surmise of need afford no basis for the proceeding. The authorities are too numerous to be cited here. * * *

“It has also been decided often that it must appear from the application that the production is indispensably necessary, * * * and ability to obtain it, together with the testimony of the party by subpcena duces tecum, must be negatived. * * *

“Now the petition presented to the court below did not establish any strict necessity, or indeed any necessity at all. It did not make out that Butts had not the the requisite information in his own possession, or exclude his having ability to prove the facts, or obtain the knowledge he desired by other available means. Besides, nothing was brought forward or is now suggested to preclude the supposition of ability to obtain an exhibition of the books and the testimony of relators by subpcena.

‘ The order was not a legitimate exercise of jurisdiction and was against relator’s legal right.”

In the case of Preston Nat. Bank v. Wayne Circuit Judge, 137 Mich. 152, we followed the Case of Cummer, distinguishing two cases, viz., Eddy v. Bay Circuit Judge, 114 Mich. 668, and Anti-Kalsomine Co. v. Kent Circuit Judge, 120 Mich. 250, upon the ground that they were cases in which there was a trust relation between the parties, giving a right to the examination of the books. See, also, Ashley v. Calhoun Circuit Judge, 138 Mich. 44, and Douglas v. Mecosta Circuit Judge (Calendar No. 21,754½. No opinion).

A similar right to examine is alleged here based on the terms of the contract, which expressly give it. This is not denied. While we agree with the circuit judge that no indispensable necessity is shown, and it is not alleged that a subpoena duces tecum would not compel the' production • of the information at the trial, as in the Cases of Eddy and the Anti-Kalsomine Co., the existing right justifies the order for discovery.

The writ will issue directing the circuit judge to vacate his orders and to grant the discovery prayed, upon such conditions as shall be consistent with the rights and convenience of the parties.

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


author: Moore, J.

text:
    McGILVRAY v. MANISTEE CIRCUIT JUDGE.
    1. Costs — Attorney Fees — New Trial.
    Where a verdict for plaintiff is set aside on motion and a new trial granted, which results in a verdict and judgment for defendant, defendant is entitled, under sections 11254^11260, 3 Comp. Laws, to tax as costs an attorney fee of $25 for the first trial, though the order granting the new trial made no reference to costs.
    2. Same — Proceedings Before Notice 'of Trial.
    In such case defendant can tax but one fee of $10 for proceedings before notice of trial.
    3. Mandamus — Taxation of Costs — Issuance of Writ — Propriety.
    Mandamus, being a discretionary writ, will be issued to compel the taxation of only such costs as petitioner is legally entitled to, though respondent’s claim as to the items in issue is untenable.

      Mandamus by Jennie McGilvray and Blanch Baker to compel Charles H. Rose, circuit judge of Manistee county, to retax certain costs.
    Submitted October 2, 1906.
    (Calendar No. 21,795.)
    Writ granted December 3, 1906.

      jDovel & Dovel, for relators.

      Frank L. Fowler, for respondent.
   Moore, J.

The facts in this case, as disclosed by the petition and the exhibits annexed thereto, are that the petitioners were sued in the circuit court, by Lauritz S. Franck, in an action of assumpsit, which action resulted in a judgment for the plaintiff, with costs. Defendants moved for a new trial, which was granted. Upon the second trial defendants were rendered a verdict and judgment for costs’.

Defendants thereupon filed and served their bill of costs for the two trials of said cause, to which plaintiff objected, and the clerk of said court duly taxed defendants’ costs for the two trials at the sum of $114.16. Plaintiff thereupon appealed from said taxation to the circuit court for the county of Manistee and the judge of said court retaxéd the costs of defendants at the sum of $89.16, striking out the item of $25 for attorney fees on the first trial of said cause.

Petitioners ask this court for a mandamus to compel the said circuit judge to set aside this order and re tax defendants’ costs at the sum taxed by the said clerk, $114.16.

The only question involved in this proceeding is the right of petitioners to have taxed, together with the other costs set out in their bill of costs, the item of $25 for attorney fee for the first trial. The respondent was of the opinion as stated by him in writing:

“ This brings us to the question whether defendants are entitled to costs on the first trial, which was the

attorney fee taxed at $25. My first impression was that they were entitled to the attorney fee on the first trial as well as on the second, but, on a further consideration of this matter, I have reached the conclusion that they are not.

“ Judgment was rendered for the plaintiff. On motion of the defendants this judgment was set aside and a new trial granted. Costs, on granting a new trial, are in the discretion of the court. In this case nothing was said or no order made regarding costs. The court might have ordered the costs paid by either party but, inasmuch as no order was made, I think it stands as though neither party was to pay costs and, if that be so, it follows that the attorney fee on the first trial was improperly taxed. I think the plaintiff should have been required to pay the costs of the first trial, and, had the court’s attention been called to it on the motion being made for a new trial, no doubt such an order would have been made, but, inasmuch as it was not, and it did not occur to me at the time of making the order setting aside the judgment, and no order was made requiring plaintiff to pay these costs I am of the opinion that he cannot be obliged to do so now. I do not think the Supreme Court has ever passed upon this question, and personally I would be very glad if it might do so.”

The judge was in error in construing the effect of the order he made when he ordered a new trial. It did not affect the question of fees as provided for in 3 Comp. Laws, §§ 11254-11260. This statute has been construed in favor of the contention of relator. Jeffery v. Hursh, 58 Mich. 259; Whiteley v. Ingham Circuit Judge, 122 Mich. 617.

We • think, however, that there should have been included in the taxed bill of costs but one fee of $10 for proceedings before notice of trial, and for that reason the amount taxed for attorney fees by the clerk was $10 too large. The objection to the taxation of the $25 attorney’s fees for the first trial was not upon the ground that an improper item was included, but it was claimed no costs could be recovered for that trial. But, as the writ of mandamus is a discretionary one, we think it right to deduct the $10.

The writ of mandamus will issue, directing the costs td be taxed at the sum of'$104.16, with costs in favor of petitioners.

Carpenter, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred. ■

       See Franck v. McGilvray, 1'44 Mich. 818.—Reporter.


author: Ostrander, J.

text:
    BICKLE v. JAMESON.
    1. Appeal and Error — Assignments—Brief—Sufficiency.
    Where the brief of appellant contains no reference to the exceptions upon which the errors therein mentioned are founded, nor to the pages of the record where they may be found, and neither the index to the record nor the assignments of error afford such information, the record and briefs will be examined only so far as to satisfy the court that the verdict of the jury accords with the merits of the case.
    2. Same — Parties Entitled to Allege Error.
    Assignments of error which concern only a defendant against whom no judgment was taken, and who therefore does not occupy the position of a plaintiff in error, will not be considered.
    Error to Grand Traverse; Mayne, J.
    Submitted October 5,1906.
    (Docket No. 9.)
    Decided December 3, 1906.
    Case by Mary E. Bickle against Ralph K. Jameson and others for fraud in the sale of certain land. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      J. J. Tweddle, for appellants.

      Parm C. Gilbert, for appellee.
   Ostrander, J.

The brief for appellants does not comply with Rule 40 of this court. The brief contains no reference to the exceptions upon which the errors therein mentioned aré founded nor to the pages of the record where they may be found, nor does the index to the record or the assignments of error afford this information. See Reeder v. Moore, 95 Mich. 595; Pease v. Munro, 88 Mich. 475; Supreme Court Rule 36. A portion of the bill of exceptions is not in the printed record, but is found printed in the brief for appellee pursuant to a stipulation of counsel. Twenty-four errors are assigned, eight of them relating to matters with which the plaintiffs in error are in no way concerned, but which concern only the defendant Ellen Gh Jameson, against whom no judgment was taken, and who therefore does not occupy the position of a plaintiff in error. We have examined the record and briefs sufficiently to satisfy ourselves that the verdict of the jury accords with the merits of the case.

The judgment is affirmed.

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


text:
    EDMONDS v. EVARTS.
    Contracts — Performance — Time — Agreement to Purchase Stock.
    Where plaintiff subscribed July 8th for stock in a corporation at defendant’s solicitation and on defendant’s promise to take it of plaintiff at par at the end of the first year, and the stock was issued to defendant September 19th following, and defendant was absent from the State during the months of September, October, and the early part of November of the following year, a demand by plaintiff for performance on defendant’s part within a reasonable time after his return in November was in time.
    Error to Barry; Smith, J.
    Submitted October 9, 1906.
    (Docket No. 33.)
    Decided December 3, 1906.
    Assumpsit by Carey Ú. Edmonds against Emmett Evarts for breach of contract. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Fred W. Walker, for appellant.

      Thomas & Pryor, for appellee.
   Montgomery, J.

The defendant, in July, 1903, was engaged on behalf of the Hastings Industrial Company 'in soliciting subscriptions to stock in a creamery to be established at Dowling. He approached plaintiff who subscribed for $100, par value, of stock, upon defendant’s executing on behalf of the company an agreement to give time on the subscription and an agreement on his own behalf to take the stock at par at the end of the first year. These two agreements read as follows:

“ Dowling, July 8th, 1903.

“ This is to certify that C. U. Edmonds may pay for his creamery stock in one year’s time with interest at three per cent.

“ Hastings Industrial Co.

“ It is hereby agreed that I will take the above stock of C. U. Edmonds at par at the end of the first year.

“Emmett Evarts.”

Subscriptions to the stock continued, and on September 19th plaintiff’s stock was issued to him. In February, 1904, plaintiff saw defendant and offered to let him have the stock at a discount; but defendant stated that he did not care to take the stock until the end of the year. On the 10th of September, 1904, plaintiff wrote defendant, asking whether, in his (defendant’s) view, the year would expire one year from September 19th, when plaintiff received and paid for the stock, or October 5, 1904, one year after the company commenced to do business. There was no answer to this letter; the defendant testifying that he did not remember having received it. Defendant was out of the State during September, October, and the early part of November, 1904. On hearing of .his return, the plaintiff, on November 23, 1904, went to Nashville to see him, and as to what then occurred the court below found the facts as follows:

“That on or about the 23d day of November, 1904, in the postoffice at Nashville, Mich., defendant promised plaintiff that he would come to Dowling within a week or two and fix the matter up with him; that if plaintiff could dispose of the stock in the meantime to any one for $75 to do so, and defendant would pay to him the difference of $25.”

Defendant did not come to Dowling as agreed, and the plaintiff had the stock transferred on the books of the company, a new certificate being issued to the defendant, and this was sent him on the 1st of January. This action is brought to recover the par value of the stock. Plaintiff recovered, and’the defendant brings error. The above facts are gleaned from the findings.

The defendant’s counsel claims that the finding quoted above in extenso is not supported by the testimony. This contention is not justified by the record. The plaintiff testified to the facts so found on his direct examination, and no statement made on his cross-examination is so inconsistent with his direct testimony as to require it to be disregarded. It is contended that the plaintiff should have tendered performance on July 8, 1904,- and that, not having done so, no right existed to insist at a later time that defendant take*the stock. More than one answer can be found to this contention. We do not construe the contract as fixing a limit of one year from its date; but the more reasonable construction, we think, is one year from the issue of the stock. As the defendant was out of the State at this date, so that no formal tender was possible, the plaintiff was in time if he acted with reasonable promptness on his return. This plaintiff did. When, on November 23d, defendant agreed to come to Dowling within a week or two and fix the matter up, the duty of prompt action for the future was shifted to him. • A correct conclusion was reached. No error was committed.

Judgment affirmed.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


text:
    DURYEA v. RAYMOND.
    1. Garnishment — Affidavit—Sufficiency.
    An affidavit in garnishment, made by an attorney, which states that the “plaintiff” (not the affiant) is justly apprehensive of a loss of the debt, unless a writ issues, is insufficient to confer jurisdiction to.issue the writ.
    3. Same — Amendment.
    Such affidavit is not subject to amendment.
    Error to Hillsdale; Chester, J.
    Submitted October 10, 1906.
    (Docket No. 30.)
    Decided December 3, 1906.
    Garnishment proceedings by Anna Duryea against James L. Ash and Amy Ash as garnishees of John W. Raymond. There was judgment for defendants, and plaintiff brings error..
    Affirmed.

      Charles M. Weaver and Merton Fitzpatrick, for appellant.

      Charles A. Shepard and Arthur L. Guernsey, for appellees.
   Montgomery, J.

The question which this record presents is whether an affidavit in garnishment, made by an attorney, which states that the plaintiff (not the affiant) is justly apprehensive of a loss of the debt unless a writ of garnishment issue, is sufficient' to confer jurisdiction to issue the writ, or subject to amendment. These questions must be answered in the negative, on the authority of Weimeister v. Manville, 44 Mich. 408. That case is in point, was decided a quarter of a century ago, and has never been modified, although it was distinguished from the case then under consideration in Williams v. Stock Board, 99 Mich. 80.

The circuit judge followed the ruling in Weimeister v. Manville, and his judgment is affirmed.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


text:
    GURDEN v. STEVENS.
    1. Malicious Prosecution — Malice—Evidence—Admissibility.
    Where, in an action for the malicious prosecution of a charge of maliciously breaking a church window, plaintiff claims that a conspiracy existed between the defendant and .the justice who issued the warrant to extort from him payment for the glass and fees, the question of the good faith of the justice is material, and he may testify in relation thereto, though his opinion of plaintiff’s guilt is thereby disclosed.
    2. Same.
    It is also competent to show, as discrediting his alleged good faith, his efforts to obtain protection for defendant against a possible action for malicious prosecution.
    3. Same.
    Defendant is entitled to show that for months injuries to the church had been serious and frequent, as characterizing the intent and motive of the defendant in instituting the prosecution.
    4. Same — Cross-Examination of Plaintiff.
    It is not error to allow a full cross-examination of plaintiff as to his knowledge of or connection with the injuries to the church both before and after the injury complained of, such questions having a bearing on the question of plaintiffs motives, and the extent.of his injury from the prosecution.

      5. Same — Instructions.
    Instructions in an action for malicious prosecution examined, and held, not open to the criticism that by them the jury were instructed that mere belief that the plaintiff committed the offense charged was sufficient cause to make a defense in the action on trial.
    6. Same — Advice oe Counsel.
    In an action for malicious prosecution, instructions relative to the defense of advice of counsel, and the necessity of bona fides on the part of defendant in procuring and acting upon it, examined, and held, to correctly state the law, and to have been erroneously refused, not having been covered elsewhere in the charge.
    Error to Shiawassee; Smith, J.
    Submitted October 10, 1906.
    (Docket No. 33.)
    Decided December 3, 1906.
    , Case by Willis Gurden, by next friend, against Theron Stevens for malicious prosecution. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Watson & Chapman, for appellant.

      Albert L. Chandler, for appellee.
   Hooker, J.

Willis Gurden, aged 21 years at the time of the trial of this case, was arrested upon a warrant issued on February 9,1905, for maliciously injuring a church by breaking one window glass of the value of $1, etc. He was committed to jail for trial, in default of bail, and on February 11th the justice dismissed the case, and released the prisoner, at the request of the prosecuting attorney. This action for malicious prosecution was commenced against the defendant herein, who made the complaint upon which the warrant was issued. The cause was tried by jury, and the trial resulted in a verdict and judgment for the defendant, upon which the plaintiff has brought error.

The plaintiff’s counsel claimed that the prosecution was sought by the defendant to compel payment for the broken window, that defendant knew the breaking was unintentional, and, upon redirect examination of the justice, they asked him for conversation at the time plaintiff was brought before him. The evidence showed that the complainant’s church had long suffered from vandalism, and that it finally came to the ears of its board that a window had been broken by the plaintiff. This complaint followed. The justice testified to several essential matters and was cross-examined at length, with the apparent purpose of showing that the defendant had nothing to do with the prosecution except to lay the facts before the magistrate, who in turn determined that it was a proper case for a warrant, and that the case was dismissed by request of the prosecuting attorney. Many questions were asked with an apparent view of testing the good faith of the justice in his action, and it is urged that he was improperly allowed to indicate an opinion of plaintiff’s guilt. The opinion of the justice upon the question,' and his opinion of defendant’s statement of facts, were not material to the issue, except as made so by a claim that he and the defendant colluded to extort money; i. e., payment for the glass and fees, when both knew that the admitted breaking of the glass was not malicious. By reason of such .claim it became proper to show his good faith, and the judgment should not be reversed upon the ground stated. Several of the questions resulted in no injury. The fact that the opinions of the justice necessarily appeared from such testimony does not change defendant’s right to negative a claim of conspiracy. On the other hand, it was competent to show, by way of contradiction, or discrediting his alleged good faith, his efforts to obtain protection for the defendant, against a possible action for malicious prosecution. This testimony should have been admitted. The defendant was entitled to show the fact that for months, injuries to the church had been serious and frequent, as characterizing the intent and motive of the defendant. It was not error to allow a full cross-examination of the plaintiff as to his knowledge of or connection with the injuries to the church both before and after the injury complained of. Such questions had a bearing on the question of plaintiff’s motives, and the extent of his injury from the prosecution.

It is contended that the court instructed the jury that mere belief that the plaintiff committed the offense charged was sufficient cause to make a defense in the present action. We think that the charge is- not open to this criticism. The court charged the jury that:'

“ Now as to advice of counsel. Notice has been given here that this defendant acted upon advice of counsel. That will be a question for you to determine. It may perhaps turn out that the complainant instead of relying upon his own judgment has taken the advice of counsel learned in the law and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately,. but because he is capable of judging of the facts in their legal bearings. A prudent man is therefore expected to take such advice; and when he does so and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair and not to have withheld any of the material facts. But the advice must be that of a person accepted and licensed by the courts as one learned in the law and competent to. be adviser to clients and to the courts; and if one chooses to accept and rely upon the opinion and advice of a justice of the peace or other layman, he may do so in aid of his own judgment, but it cannot afford him any protection. You will recall that Esquire Walsh was both an attorney and justice of the peace. Moreover, when he places himself under the guidance of counsel, if-facts subsequently come to his knowledge which seem to be important, it is his duty to communicate these to counsel if he expects to rely upon his advice as a justification in the steps subsequently taken.”

This was all that was said. Counsel for the plaintiff proffered the following requests:

“ In order that advice of counsel should be a protection to the defendant, he must have acted honestly, and, where the facts given are all consistent with the reasonable theory of the innocence of the party, and the prosecutor knows or has good reason to believe that the person is not guilty whom he is prosecuting, and does not. believe him to be guilty, he cannot have a reasonable cause for the prosecution, and he would still be responsible for his actions no matter what some attorney may have told him.

“ The advice of counsel is no protection for a party who acts maliciously and knows that the party whom he is prosecuting is not guilty, and further knows that all of the acts which the party against whom he complains has been guilty of are all consistent with the natural innocence of the accused, and if he proceeds under such circumstances, advice of counsel is no protection, and he would be liable for the damages done.”

These correctly state the law, and should have been given or the substance incorporated in the charge.

The judgment is reversed, and a new trial ordered.

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