text:
    FLOWERS v. REILLY.

    Mortgages — Assignment—Payment—Purchaser oe Premises.
    A purchaser of laud at an execution sale was not entitled to relief against a mortgage which, was held, at the time of his purchase, under an unrecorded assignment, although he was told by the mortgagee’s agent that the mortgage was paid, where he made no inquiry as to the whereabouts of the mortgage and notes, and it appeared from the public records that the mortgage was undischarged, and had been recognized as a subsisting lien in deeds executed subsequent to the time of the alleged payment to the mortgagee.

      Appeal from Wayne; Waite, J.
    Submitted October 3, 1900.
    Decided January 29, 1901.
    Bill by Charles Flowers and John E. Moloney, trustees for Bridget Hill, against Edward F. Eeilly, Nicholas Savage, and Matilda Hill, to quiet title. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Floioers & Moloney, in pro. per.

      Edward McNamara (Brennan, Donnelly & Van De Mark, of counsel), for defendants.

       Rehearing denied July 19, 1901.

   Moore, J.

The bill in this cause was filed in June, 1899, by the complainants as trustees, and recites that on the 6th day of February, 1896, in the circuit court for the county of Wayne, Bridget Hill recovered a judgment against the defendant Matilda Hill, alias Emma Clark, for the sum of $5,063.15; that on the 4th day of April, 1896, under a writ of fieri facias issued out of said court, the sheriff of Wayne county levied upon the property described -in the bill of complaint, which included the property on the corner of Jefferson avenue and the Boulevard, in fchfe city of Detroit, the subject-matter of this suit, and another piece of property; that at the time of the levy the defendant Matilda Hill was the owner of an undivided one-half interest in this property; that on the 27th day of /November, 1896, all proceedings under said execution j were stayed on the filing of a bond by the defendant in the sum of $10,000, with Nicholas Savage and Philip Kling as sureties; that subsequently proceedings were had. to have the case reviewed in the Supreme Court, which were finally dismissed on the 11th of May, 1897; that afterwards, on the 18th day of December, 1897, the interest of Matilda Hill in the property on Jefferson avenue was sold under execution for the sum of $4,000, and the other property for $1,000; that the said properties were bid in by the complainants as trustees, and that their title to the Jefferson-avenue property has become absolute, and a sheriff’s deed on sale of real estate on execution was issued to them, and duly recorded; that on the 26th day of May, 1890, the defendant Nicholas Savage, who was then the owner of the premises, executed a mortgage to the Peninsular Savings Bank for the sum of $7,500; that on the 24th day of January, 1898, there was recorded in the office of the register of deeds, in Liber 44 of Assignments of Mortgages, page 266, an assignment of said mortgage from the said bank to defendant Reilly, which assignment;is dated December 17, 1890; that on the 5th day of March, 1898, the said defendant Reilly instituted proceedings to foreclose said mortgage by advertisement, and on the 2d day of June said premises were sold and bid in by the said Reilly for the amount claimed to be due on the said mortgage, and a sheriff’s certificate of sale given to him, which was recorded in the office of. the register of deeds for Wayne county on the 9th day of June, 1898, and which ripened into án absolute title on the, 9th day of June, 1899. \

The bill further recites that shortly before purchasing the said property, on the 18th day of December, 1897, one of the complainants made inquiry of the Peninsular'Savings Bank of the city of Detroit, the record owner of' said mortgage, and was informed by the acting cashier of ¡j>aid bank that said mortgage was fully paid and satisfied; that, relying upon this information, they bid in the said properfey^ for the sum of $4,000, and satisfied the execution to that 1 extent, and, upon the payment to them of the sum of \ $1,700, released the other piece of property levied upon, and released and canceled the bond given to stay execution in said cause.

Complainants further charge collusion, fraud, and conspiracy between the defendants, Reilly, Savage, and Matilda Hill, and allege that the mortgage has been fully paid, and should be canceled; and the bill prays that the complainants may be decreed to be absolute owners of an undivided one-half interest in the Jefferson-avenue property, free and clear from all liens of said Reilly arising out of the mortgage to the Peninsular Savings Bank. The answers deny specifically all allegations of fraud and conspiracy, and the answer of Reilly alleges that he is the owner in fee of the whole of said property on Jefferson avenue. Replications were filed to the answers, and witnesses were examined in open court. The circuit judge dismissed the bill, and the case is brought here by appeal.

The proofs do not disclose any collusion or conspiracy to defraud. The record discloses that the mortgage held by the Peninsular Savings Bank was not in fact paid, but was assigned by the bank in December, 1890, to the defendant Reilly, and the mortgage and notes delivered to him. His assignment was not placed upon record until January, 1898. It is the claim of complainants that, finding this mortgage upon the record, they, before bidding in the property, caused an inquiry to be made at the bank, and were informed the mortgage had been paid. It is the claim of the cashier that he informed Mr. Moloney that, so far as the bank was concerned, it had been paid, but his recollection was that he did not say the mortgage itself had been paid. At this time the mortgage remained undischarged of record. Mr. Moloney made no effort to learn whether the notes and mortgage had been delivered to the mortgagor. At the time the conversation occurred between him and the cashier, he was shown the book containing the record of loans of the bank, on which there was the following entry:

“No. 152.
“Loan to Nicholas Savage, of Detroit. [Description of property.] Amount loaned, $7,500, May 26, 1890. December 17, 1890, principal paid, $7,500.”

At the time this book was shown, there was upon the records in the office of the register of deeds a deed from Matilda Hill to Nicholas Savage of an undivided one-half of this property, in which it was recited:

“This deed being given subject to a certain mortgage of $7,500 on all of said described property, one-half of which mortgage the said party of the second part hereby assumes and agrees to pay.”

This deed was acknowledged April 27, 1891, and was recorded the same day.

There is no claim there was any other $7,500 mortgage on these premises than the one given by Mr. Savage to the Peninsular Savings Bank; so that at the time Mr. Moloney had his interview with the cashier, in which he claims he was informed this mortgage was paid, the record disclosed, not only that the mortgage was undischarged of record, but it also showed that Mrs. Hill and Mr. Savage both acknowledged the continued existence of this mortgage some months after the entry upon the book of loans, shown to Mr. Moloney by the bank, indicated it had been paid. Taking any possible view of the case, we cannot see how the bill of complaint can be sustained. See Cook v. Foster, 96 Mich. 615 (55 N. W. 1019); Wilson v. Campbell, 110 Mich. 589 (68 N. W. 278, 35 L. R. A. 544); Babcock v. Young, 117 Mich. 155 (75 N. W. 302), and the many cases therein cited.

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

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE v. SMITH.

    1. Criminal Law — Forged Railroad Ticket — Information—Intent — Sufficient Allegation.
    Under 3 Co'mp. Laws 1897, §§ 11630, 11631, declaring it a crime to falsely make, forge, counterfeit, or alter any railroad passenger ticket with intent to injure or defraud, or to sell or offer to sell, or have in possession with intent to sell, any such false, forged, altered, or counterfeit ticket, knowing the same to be false, forged, altered, or counterfeit, an information which charges respondent with having in his possession a certain false, forged, and counterfeit ticket, with intent to injure and defraud, is sufficient, without the specific allega- ' tion that the ticket was falsified, forged, or counterfeited with intent to injure or defraud.
    2. Same — Pleading and Proof — Variance.
    .Where, in a prosecution under 8 Comp. Laws 1897, § 11631, declaring it a crime to sell or offer for sale any false, forged, altered, or counterfeit railroad ticket, knowing it to be such, the proof showed that respondent’s clerk, under his instruction, imitated the dating stamp on the back of the return portion of a ticket, and signed thereon the name of the depot ticket agent, of the railroad company authorized to stamp and issue the same, as stipulated therein, which respondent sold as genuine, it was not error to refuse to strike out the testimony on the ground of a variance, in that the information charged the sale of a forged ticket, while the proofs showed the sale of an altered or changed ticket.
    3. Same — Necessary Averments.
    It was not necessary, in a prosecution under 3 Comp. Laws 1897, § 11631, that the information, which charged the possession and sale, with intent to defraud, of a forged ticket purporting to be issued by a certain railroad company, should allege that the return coupon was good for passage only when stamped and signed by the agent of another company, in order to render admissible the proof of the forgery, consisting in the imitation of such stamp and signature by respondent, who knew that the ticket was good only when so stamped and signed.
    4. Same — Defenses.
    Where respondent in a prosecution under 3 Comp. Laws 1897, § 11631, for having in his possession a false, forged, and counterfeit railroad ticket with intent to injure and defraud, had come into possession of a return ticket required to be stamped and signed by a certain railroad company, the dating stamp of which his clerk imitated, and signed the name of the depot ticket agent of such company thereto, and which respondent sold as genuine, the contention that it was not forged because nothing was charged by the company for signing and stamping tickets for return passage, and therefore the railroad company could not be defrauded by an imitation of such stamp and signature, cannot be sustained.

      Exceptions before judgment from recorder’s court of Detroit; Phelan, J.
    Submitted December 4, 1900.
    Decided January 29, 1901.
    Howard D. Smith was convicted of having in his possession a forged railroad passenger ticket, with intent to defraud.
    Affirmed.

      Arthur D. Prosser, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Bingley B. Fates, Assistant Prosecuting Attorney, for the people.

       Rehearing denied February 27, 1901.

   Long, J.

Respondent was informed against in the recorder’s court of the city of Detroit for having in his possession a certain false, forged, and counterfeit railroad passengerjticket, with intent then and there to injure and defraud. The case was tried before a jury, and the respondent convicted. He assigns error.

It appears that on September 16, 1899, the Cincinnati, Hamilton & Dayton Railroad Company sold at its Cincinnati office a round-trip ticket to Detroit and return on account of an Odd Fellows convention then being held in Detroit. The ticket appears to have been sold to one J. Van, and is what is usually called a signature ticket. Afterwards, and before September 19th, the ticket came to respondent on a rebate from a Cincinnati ticket broker. It was sold at special excursion rates, under certain Conditions which appear upon the face of it; among others, being nontransferable. It was good for return passage only after being properly stamped and signed by the purchaser at the Detroit end of the line. The respondent was engaged in Detroit in the business of a ticket scalper. When received by him it was not stamped or signed for return passage, as stipulated in the conditions thereon. Respondent had in his employ a clerk by the name of Boyd, who, under respondent’s instruction and direction, imitated, by the use of coins of different sizes and a blue pencil, the Michigan Central Railroad Company’s dating stamp on the back of the ticket, and also signed thereon the name of G. "W. F. Chamberlin, the depot ticket agent of the Michigan Central Railroad Company, which was the agency properly authorized to stamp and issue the return portion of said ticket. Respondent then sold it as so prepared by Boyd to one Mrs. Reed for the sum of $6, the regular rare from Detroit to Cincinnati being $7.30.

The conviction was had under section 11631, 3 Comp. Laws 1897, which reads-:

‘ ‘ Every person who shall sell or offer to sell, or who shall have in his possession with intent to sell, any such false, forged, altered, or counterfeit railroad passenger ticket mentioned in the preceding section, knowing the same to be false, forged, altered, or counterfeit, shall be punished, ” etc.

The preceding section referred to reads:

“Every person who shall falsely make, forge, or counterfeit any railroad passenger ticket purporting to be made or issued by any railroad company or companies doing business within or without this State, with intent to injure or defraud, or who shall, with like intent, alter any railroad passenger ticket made or issued by any such railroad company or companies, shall be punished. * * * Any change of any such ticket made or issued by any railroad company or companies, if made with intent to injure or defraud, whether made by writing, printing, stamping, punching, obliteration, or otherwise, shall be deemed an alteration within the meaning of this section.”

It appears from the testimony of the people that respondent had been in the cut-rate ticket business for some 18 years, and for some time, at least, had carried on his business'in defiance of the rights of the railroad companies. He told Boyd, who was called as a witness for the people, as appears by Boyd’s testimony, that it was the practice of his office, when he could not get a ticket properly stamped, dated, and signed by the railroad agents, to do it himself.

The first assignment of error is that- the information charges no offense under the statute, as it does not allege that the ticket was falsified, forged, or counterfeited by some person with intent to injure or defraud; that there is no allegation of intent to injure or defraud in connection with the alleged forgery of the ticket. The information, we think, cannot have the construction contended for. It alleges that the respondent had in his possession a certain false, forged, and counterfeit ticket, with intent to injure and defraud. This was a strict compliance with section 11631 of the statute above'quoted. Haskins v. Ralston, 69 Mich. 63, 67 (37 N. W. 45, 13 Am. St. Rep. 376).

The second assignment of error is based upon the refusal of the court to strike. out the testimony given by the people because of a claimed fatal variance between the proofs and the allegations in the information, in that the information charges the sale of a forged ticket purporting to have been issued by the Cincinnati, Hamilton & Dayton Company, while the proofs show the sale of an altered or changed ticket made and issued by the same company. These objections have no1 force. The proofs show that the respondent himself caused the ticket to be forged after it came into his possession, and then sold it as genuine.

It is also urged as ground of error that the information does not allege the necessity of taking the ticket to the Michigan Central Railroad Company for signing and stamping for return passage, and that such requirement does not appear on the face of the ticket. The information does charge that the ticket was false, forged, and counterfeit, and that respondent knowingly, willfully, and feloniously had it in his possession with intent to injure and defraud. From his acquaintance with railroad business he knew that the ticket would not be good for return passage without stamping and signing by the Michigan Central Railroad Company. He knew that was the custom on such return tickets; that the Cincinnati, Hamilton & Dayton road took its trains over the Michigan Central Railroad to get into the city of Detroit. He himself caused the ticket to be stamped and signed to make it a good ticket over that road.

It is also claimed that the ticket was not forged. The argument is that nothing whatever was charged for signing and stamping it for return passage; that, therefore, it follows that it was impossible to defraud the railroad company by signing and stamping it, no matter who did it. We think this contention cannot be sustained. It was a reasonable regulation made by the railroad company that these tickets were not transferable, and were good only by having them stamped and signed by the railroad officials in Detroit.. Respondent knew this,” and yet willfully and deliberately caused a counterfeit stamp to be placed thereon, and caused the name of the Michigan Central Railroad Company’s agent to be signed thereto. It was not good for return passage until that should be done by the Michigan Central Company’s agent, and, when done, was good only in the hands of the purchaser-. From his long experience in the business, the respondent knew this, and yet caused the same to be fraudulently and feloniously counterfeited.

We think there are no other assignments of error which need discussion.

The conviction must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    WHITCOMB v. DETROIT ELECTRIC RAILWAY.
    Injury to Employe — Negligence—Evidence.

      1. Where it is charged as negligence that a trolley car was delivered to the plaintiff, a conductor, from the defendant’s barn, in a condition unfit for use, it is incumbent upon the plaintiff to establish the negligence; and the mere fact that the trolley pole was found bent after having run a mile without giving any indications of being in an unsafe condition, is not evidence that it was in bad condition when taken from the barn.
    2. The mere fact that an accident occurred is not evidence of negligence.
    Error to Wayne; Carpenter, J.
    Submitted December 4, 1900.
    Decided January 29, 1901.
    Case by Louis J. Whitcomb against the Detroit Electric Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff was a conductor on one of defendant’s cars in the city of Detroit on April 25, 1898. He had been in the employ of the company for several years. He operated the car on the day before until 3 o’clock p. m., and returned it to the barn in good order. Another conductor then took and ran it until 1 o’clock a. m., Monday. That conductor turned it in in good order. Plaintiff took the car at 5:50 a. m., ran about a mile down Kercheval and Mt. Elliott avenues to Mack avenue. The trolley pole there left the wire, a thing not uncommon for these poles to do, for various causes. They are then put in place by a cord hanging from the trolley pole to the rear of the car. He replaced the trolley upon the wire in the usual way, and saw that the pole was somewhat bent. The pole left the wire several times upon the trip, and every time was replaced in the usual manner. There appeared to be no difficulty in making that trip, of about 11 miles, and he arrived in front of the barn without having lost any time. He testified that one Coffee, a car inspector, and others were standing in front of the barn. He stopped on the outside track, and while standing on the car platform called the attention of those standing in front of the barn to the pole. Told them he would like a new car; that he had had trouble with the pole. He testified, further, that some one told him to go to Belle Isle bridge and back again. He then started with his car to make the trip. He went down Concord street to Champlain street; thence to Field avenue and Jefferson. At Field avenue the pole gave a sudden jerk, and left the wire. He then saw that the pole was twisted in such shape that the wheel would not stick to the wire at all, and that he could not replace it by the cord. He then went up on the car, took hold of the trolley pole, had it under his arm, and attempted to straighten it. He could not, and held the pole with his hands to the wire, and started for the barn. In making the curve at the corner of Field and Jefferson avenues, the pole and base by which it was fastened to the top of the car gave way. He was thrown from the car, the pole following, and falling upon him. ' A car immediately following pushed plaintiff’s car into the barn. The trolley pole was 14 feet long, of wrought-iron pipe, tapering slightly at its base, and fitted into a socket of the trolley stand, which was fastened securely to the top of the car. The trolley stand swung on a pivot, so as to adjust the wheel to the curves of the track. The socket holding the trolley pole was cup-shaped, constructed with clamp screws at its sides to tighten or loosen it to the tapering end of the trolley pole. These clamp screw heads were found on the top of the car, showing fresh breaks. He charges that his injury was the result of defendant’s negligence. The negligence charged in the declaration is that the defendant delivered to him the car in an unsafe condition, in that the trolley pole was in a bent and crooked condition, loose at the base, and incapable of running along the overhead wire. The court directed a verdict for the defendant.

      D. Augustus Straicer, for appellant.

      T. T. Leete, Jr., for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The car was properly equipped with the best appliances. It was in good condition when operated by the plaintiff on the day before, and when he returned it to the barn. It was in good condition when plaintiff’s fellow-servant, the next conductor, took it, ran it the usual time, and returned it. Plaintiff received it at 5:50, and discovered no defect in it until the trolley pole left the wire at the crossing of another track at Mack avenue. In plaintiff’s judgment, it was not then in a dangerous condition, and he ran it for about 10 miles farther, safely and without much difficulty. The defendant had performed its duty in providing a well-equipped car. No showing is made that the system of inspection is insufficient, nor is it claimed that competent inspectors were not provided. The theory of the declaration is that this trolley pole was injured in the barn of defendant between 1 o’clock and 5:50. The sole testimony which the learned counsel claims tends to support this theory is that the trolley pole, after having run a mile, left the wire, and was then found to be bent. To sustain this theory, it should appear that the pole was not bent at the time it left the wire, or while running from the barn to the place where the defect was first discovered. The bending of trolley poles is caused by the poles’ leaving the wire, and then catching in some obstruction. It is thus described by one of the witnesses:

“ It sometimes twists in the socket if these bolts are not clamped very tight, because it pulls straight on it. The twist bends are usually made on straight tracks, but on a curve the trolley is more apt to be pulled from the base than it is in a straight wire. When a trolley wheel slips from the wire, the pole stands up vertical, and then, if it comes in contact with a span wire, it gets a bend or twist, .and the faster the speed the worse the bend.”

Under all the testimony, this could have been done at the very time the defect was discovered. There is nothing in the record to justify the inference that it was done while in the barn. If, therefore, a verdict were permitted, it would rest upon pure speculation. The mere fact that the pole was found bent after it left the wire is no evidence that the injury to the pole occurred in the barn. The natural inference is that it bent at the time it left the wire. It follows that no negligence of the defendant was shown.

The main contention on behalf of the plaintiff now is -that the defendant failed to properly inspect the car before it left the barn. ' The failure to inspect is not declared upon, and therefore cannot be any ground for recovery. The pleadings are not such as to justify a consideration of this matter. We therefore express no opinion upon the question of whether plaintiff and the inspectors were fellow-servants.

It is unnecessary to determine the question of contributory negligence of the plaintiff in standing upon the top of the car and attempting to hold the trolley pole against the wire. It is not claimed that there is any rule of the company to require its conductors to engage in an operation so extremely dangerous. The sole claim upon which plaintiff attempts to avoid his contributory negligence in such a dangerous undertaking is that the custom of conductors to do so was so frequent and notorious as to fasten upon the defendant its sanction of such method, and a liability if an accident follows. The testimony on the part of the defendant, and also on the part of some of the witnesses for the plaintiff, is that the usual and safe way is for the following car to push the disabled car to the barn. It is manifest that the plaintiff was thrown when the car made the curve, and that the pole was torn from its socket at that time, and he fell, taking the pole with him. One of plaintiff’s witnesses, who saw the accident, testified that “just as he struck the curve he seemed to be pitched to the ground, and came down with the pole. When the front wheel struck the curve, the car got a little jerk, and he came down off the top.” The turning of the car naturally tended to throw the plaintiff. The force with which he was thrown would depend hpon the speed of the car. The sudden jolt given a car when it reaches a curve is common knowledge. A rule requiring such conduct would shock the common sense of the average man. The evidence must be very clear which would make the defendant responsible for such a dangerous method. If conductors are in the habit of so doing, a rule against it would be very proper for such companies to adopt.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    AUDITOR GENERAL v. SMITH.
    Taxation — Assessment — Description of Property — Uncertainty — Reassessment—Validity.
    Where an assessment described the property as the center 22 feet of a certain lot, and the tax was charged back to the county by the auditor general because of the indefiniteness of the description, a reassessment of the tax pursuant to a resolution of the board of supervisors providing for a levy on the same land on which it was originally assessed was invalid, though containing a definite description, since the description in the first assessment was too indefinite to form the basis of a tax.
    Appeal from Muskegon; Russell, J.
    Submitted December 6, 1900.
    Decided January 29, 1901.

      Petition by Poscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Armenia H. Smith. Prom a decree for petitioner, contestant appeals.
    Reversed.

      Charles B. Cross, Prosecuting Attorney, for petitioner.

      Smith, Nims, Hoyt & Hnvin, for contestant.
   Moore, J.

Mrs. Smith is, and has been since November, 1897, the owner of the following described land:

“Commence at a point on the northerly end of lot two (2) of block eight (8), according to Newell’s enlarged and corrected map of the village (now city) of Muskegon, of record in the office of the register of deeds for said county, at a point which is twenty-one and one-half (21-]-) feet southwesterly from the northeast corner of said lot two (2); run thence southeasterly, and parallel with the easterly side line of said lot two (2), to the alley at the rear end of said lot; thence run southwesterly, along said alley, twenty-two and one-half (22),-) feet; thence northerly, and parallel with said easterly side line of said lot, to the north line of said lot, on Western avenue; thence easterly, along the north end line of said lot, twenty-two and one-half (22|-) feet, to the place and point of beginning of this description.”

A tax history furnished by the office of the auditor general shows that an assessment was made of the center 22-]- feet of lot 2, block 8, and that from 1.840, up to and including 1891, the taxes assessed thereto had been paid. The taxes of 1892 and 1893 were not paid, and were charged back to the county as indefinite by the auditor general. In 1895 the assessment was made “center 22 feet of lot 2.” The taxes were not paid, and the land was returned to the office of the auditor general. Before buying the land, Mrs. Smith caused a letter to be written the auditor general, calling his attention to the situation, and closing by inquiring, “Under these circumstances, shouldn’t the tax of 1895 be rejected, as well as that of 1892 and 1893?” The auditor replied, “If the taxes are not paid, they will be canceled, and charged back to the county for reassessment.” June 30, 1897, the auditor general charged the taxes back to the county because the description was indefinite. In October, 1897, the board of supervisors passed the following resolution:

“Resolved, that all rejected taxes of the city of Muskegon contained in Schedule AA, reported by said committee, be levied on the same land on which they were originally assessed, where so designated on said Schedule AA, —the same not having been rejected for the reason that said lands were not subject to assessment for such tax, nor that the taxes thereof had been paid, nor that there had been a double assessment thereon, — and that the remainder of the State and county rejected taxes contained in said Schedule AA be spread at large upon the taxable property of said county.”

The assessing officer, in reassessing this rejected tax of 1895 upon the assessment roll for 1897, assessed it as follows: “Easterly 22-|- feet of westerly 44-J- feet of lot 2, block 8, Newell’s enlarged and corrected plat.” The taxes of 1897 were paid, except this reassessed tax of 1895, which is contested' on the ground that it is illegal and void.

Upon the trial, against the objection of Mrs. Smith, other portions of the tax roll for 1895 were introduced in evidence, reading as follows:

“ Tax Roll No. 101. Landreth, J. H. Westerly 22 feet lot 2.
“ Tax Roll No. 102. E. B. Mather. Center 22 feet lot 2.
“Tax Roll No. 103. Mather, Mrs. Easterly 2T|- feet lot 2.”

It is insisted by counsel that, taking the three descriptions into consideration, it appears that the center 22 feet of lot 2 is the same as the corrected description made by the assessor upon the roll of 1897, and that there is no trouble in the identification of the property as being the same; citing Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881), and cases cited therein. An examination of those cases shows that the questions involved were as to whether certain abbreviations used were lawfully used. The court held they had a certain and well-understood meaning, so that their use did not make the description of the property indefinite. The case at bar is more like the case of Detroit Young Men’s Soc. v. Mayor, etc., of Detroit, 3 Mich. 172. In that case the society was the owner of a building known as “Young Men’s Hall,” with the land on which it was erected. The property was assessed as follows:

Young Men’s Society — Gov. & J. P. Jeff. Av. N. 45 feet — W. pt. lot 11, Sec. 1, ) t> 0 mo nnn & E. pt. lot 10, Sec. 1, f B- a — - 518’000

The court, in disposing of the case, said:

“The property of the plaintiffs, consisting of parts of two city lots, should have been * described by its boundaries, or in some other way by which it may be known.’ Subdivision 4, § 23, Act No. 86, Laws 1853. It was described in the assessment and tax rolls as 45 feet on Jefferson avenue, ‘W. pt. lot 11, Sec. 1, and E. pt. lot 10, Sec. 1,’ etc., without designating the number of feet on each of said lots. By such a description the property cannot be known. No person could fix its boundaries or determine its locality. It is entirely uncertain, and the assessment of the tax is therefore void.”

A like question was also discussed in Jackson v. Sloman, 117 Mich. 126 (75 N. W. 282), where the court said:

“We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be devested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules. * * *
“Again, in Jones v. Pelham, 84 Ala. 208 (4 South. 22), it was said:
“ ‘In a conveyance between individuals, where the purpose is to explain and give operation to the intention of the parties, certainty may be imparted to the deed by parol evidence that the particular land was designated, and that the grantee was put into possession. But this rule does not apply to tax titles, with which the owner has nothing to do, and there being no intention to which operation can be given. The assessment is the foundation of all subsequent proceedings, and, in order to impart certainty and validity to them, the description of the land in the assessment must be sufficiently definite and certain as not to require resort to extrinsic proof of the character above mentioned.’
“See, also, People v. Mahoney, 55 Cal. 286.
“We are aware that there is great diversity of opinion upon this subject, the decisions of some of the States being very strict, and others liberal, in their constructions of statutes prescribing the descriptions in tax proceedings; but, in our opinion, the rule stated above is a reasonable one, and the action of the auditor general was fully warranted, under the facts stated.”

In this case no one can tell from the description whether the center 22 feet of the lot running east and west is intended, or whether it is the center 22 feet running north and south. The assessment is too indefinite to be the basis of a tax.

The decree is reversed, and a decree will be entered here in favor of appellant.

The other Justices concurred.


text:
    WILLET v. GOETZ.
    1. Animals — 'Vioiousness—Injury by Dog — Evidence.
    Where, in an action for injuries caused by a dog, the testimony to show the dog’s vicious disposition is confined to specific instances, evidence tending to show the general peaceable disposition of the dog is inadmissible in rebuttal, even though defendant denies all knowledge of such instances.
    3. Same — Hearsay—Harmless Error.
    Where there was no dispute but that it was defendant’s dog that caused an injury sued for, it was harmless error to allow plaintiff to state that another told her the dog belonged to' defendant.
    3. Same — Irrelevant Question — Striking Answer.
    Where counsel for the plaintiff in an action for injuries caused by defendant’s dog asked plaintiff if defendant came near her at the time of the accident, and on objection the question and answer were stricken from the record by consent, there was no error.
    4 Same — Error Cured by Charge.
    Whdre, in an action for injuries caused by an alleged attack by defendant’s dog upon a horse driven by plaintiff, the court excluded evidence of the horse’s reputation for skittishness and fear of dogs under one form of question, but admitted it " under another, and charged that if plaintiff, at the time of the accident, was driving an unsafe horse in the habit of being unduly frightened at dogs going about in an ordinary manner, and such habit of the horse was the proximate cause of the injury, then the plaintiff could not recover, the charge cured any error there might have been in the ruling.
    Error to Shiawassee; Smith, J.
    Submitted December 4, 190Ó.
    Decided January 29, 1901.
    Case by Ida E; Willet against Ered Goetz for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      H. H. Pulver and Watson & Chapman, for appellant.

      Selden S. Miner (Norton & Pooling, of counsel), for appellee.
   Long, J.

Plaintiff, a married woman, resided in the township of Sciota, Shiawassee county, about 4£ miles north of Laingsburg. On September 2, 1897, she and her mother-in-law went with a horse and buggy to said village. The plaintiff was driving. She was accustomed to driving horses, and had had considerable experience in the management of them. As the parties were returning from the village, and were within 40 or 50 rods of defendant’s house, and nearly opposite from where defendant was at work with his team, the defendant’s dog jumped over into the road, and with a bark jumped at the horse’s head. The horse whirled around to escape the dog, and threw the plaintiff and her .mother-in-law out upon the ground, rendering the plaintiff unconscious, breaking two ribs, and otherwise severely injuring her. On the trial, plaintiff had verdict and judgment.

It appears from the testimony that this same dog had run out at the plaintiff three times before. There was considerable testimony given by the plaintiff tending to show that the defendant had had actual notice of the disposition of his dog to attack horses going on the highway, and also that this dog belonged to the defendant. There was no testimony offered by the plaintiff to show the general character and disposition of the dog to attack teams upon the highway. All the testimony -was confined to the specific acts and conduct of the dog upon the various occasions mentioned. This was denied by the defendant, who was sworn in his own behalf; and he denied also that he had any knowledge that his dog had actually jumped at teams on the highway. He gave some evidence tending to show that the dog was tied up that day. He attempted to show by one of his witnesses that the actions of the dog as claimed by plaintiff were contrary to his habits and disposition. The court sustained the objection to this evidence. .This is assigned as error. We think the court was not in error in sustaining the objection. In Kennett v. Engle, 105 Mich. 693 (63 N. W. 1009), the question was presented, fully discussed, and determined against the ‘contention of defendant’s counsel here. It was said:

“In two well-considered cases it has been determined that, where the facts concur of previous manifestations of malicious disposition by the dog, and knowledge of this fact in the keeper, the general peaceable disposition of the dog from thence on becomes immaterial;” citing Buckley v. Leonard, 4 Denio, 500, and Mann v. Weiand, *81 Pa. St. 243.

Some question is raised upon the charge of the court. We think the charge as a whole correctly stated the law. It was a full and fair statement of the case to the jury, and we find no error in it.

It is assigned as error that the plaintiff was allowed to state that Mrs. Parchen told her that it was defendant’s dog. Defendant’s counsel moved to strike this testimony out. It appears from the record that this testimony was drawn out by defendant’s counsel when he was inquiring of plaintiff about the knowledge she had as to what dog it was that jumped at her horse. While the testimony was hearsay, we see no prejudicial error in letting it stand. The plaintiff said she knew it was defendant’s dog, and had known him for six years. In fact, there was no dispute but that it was defendant’s dog that caused the injury on that day.

Error is also assigned upon the conduct of counsel for the plaintiff in asking her whether, at the time of the accident, the defendant came near her. When' this question was asked and answered, the same was stricken out by consent of counsel for plaintiff. While the question might not have been a proper one, we think there was no error committed.

Counsel for defendant state in their brief that the court erred in not permitting Mr. Scott to answer the questions covered by the thirteenth, fourteenth, fifteenth, and sixteenth assignments of error. It is claimed that these questions all relate to the habits and disposition of plaintiff’s horse. The question asked of witness in this connection was: “What was the reputation of the horse at that time, in the spring or summer of 1897, as to being skittish and afraid of objects, and especially of dogs?” This was objected to on the ground that nothing had been shown that the witness knew the horse had such reputation, and the objection was sustained. The question was then repeated in another form, and the witness answered: “The horse was skittish. She was particularly afraid of a dog. That was one of the warnings I got when I got her. ” Plaintiff’s counsel asked that this answer be stricken out, and the court remarked, “The warning part may be stricken out.” The objection was subsequently withdrawn, and the answer allowed to stand. The court, in its charge to the jury, instructed them that, if they found the plaintiff, at the time of the accident, was driving an unsafe horse, one that was in the habit of being unduly frightened at objects, and at dogs particularly, when they were going about in an ordinary manner, and , that such habit and disposition of the horse was the proximate cause of the injury, then plaintiff could not recover. If the ruling of the court on the question had been erroneous (a question which we need not determine), certainly the error was cured by the charge of the court.

We find no error in the record. The judgment must be affirmed.

The other Justices concurred.


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    SLEIGHT v. ROE.
    1. Taxation — Sale of Delinquent Lands — Statutes—Prospective Operation.
    The tax law of 1885 (Act No. 153) being confined by its title to a prospective operation, sales for delinquent taxes of previous years could not be made thereunder.
    2. Same — Assessment—Insufficient Description.
    An assessment of numbered lots by reference merely to the section and township in which they are situated is bad, where there are several lots of the same number in such section and township.
    3. Same — Purchase by Tenant in Common.
    A tenant in common cannot, in the absence of statute authority, acquire title as against his co-tenant by purchase of the entire premises at a tax sale for taxes assessed during the period of the co-tenancy.
    4. Adverse Possession — Life Tenant — Remainder-Man—Co-Tenants — Right of Entry.
    Where a widow owned a life estate in certain premises, which she occupied as a homestead, the joint occupancy of one of the remainder-men could not become adverse to his co-tenants until her death gave them a right of entry.
    5. Ejectment — Recovery for Improvements.
    Under 3 Comp.. Laws 1897, § 10995, permitting a defendant ousted in ejectment to recover for improvements, provided he shall have been in actual, peaceable. occupancy for six years before the commencement of the action, or for a less time under color of title and in good faith, the occupancy contemplated is such as would give title by adverse possession; hence, where a part of the period of defendant’s occupancy was during the lifetime of a life tenant, who died within six years of the commencement of suit, he was not entitled, as against other remainder-men who were his co-tenants, to recover for improvements made prior to the death of the life tenant.
    Error to Ionia; Davis, J.
    Submitted December 5, 1900.
    Decided January 29, 1901.

      Ejectment by Victoria Sleight against Franklin Roe and Etta Roe. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      F. C. Miller, for appellants.

      B. A. & W. E. Haivley, for appellee.
   Long, J.

Action of ejectment to recover from defendants the undivided one-fourth interest in lots 163 and 164, village of Portland. The title to the property is conceded to have been in Joseph Roe at the time of his death, in 1880. At his death he left surviving him his widow, Gertrude Roe, and four children, to wit, Victoria Sleight (plaintiff here), Franklin Roe, William Roe, and Emma Jane Collins, all of whom are now living, except Emma Jane Collins, who has since deceased, leaving one child as her sole heir at law. The defendant Franklin Roe is one of the surviving children of Joseph Roe, and Etta Roe is his wife. After Joseph- Roe’s death an administrator of his estate was appointed, and all the property, except the lots in question, divided among the heirs. These lots constituted the homestead, and the widow remained in possession and occupancy of them until the spring of 1892. The defendant lived with his mother until 1883, when he married, and continued to live away from there until early in 1887. It is the claim of defendants that the widow, having a life estate in the property, should have paid the taxes on the same; that she was called upon to do so, and refused to pay them. Defendants paid the taxes for 1882. They then called upon the plaintiff to pay the taxes for 1883, as the widow had refused to pay them, and requested the other heirs to pay them alternately, each in rotation, and promised that when their turn came they would pay them. Plaintiff refused to have anything to do with the matter. Defendants then bid in the property for the taxes of 1883, 1884, and 1885, and also on a sale made by the treasurer of the village of Portland for the village-tax of 1885. Defendants claim under these tax deeds. After Franklin Roe got his first tax deed, which was issued February 1, 1887, he began to improve the property, permitting his mother to live in the house on the premises. It is claimed that these improvements amounted to $322. On January 11, 1892, the widow left the premises and went to live with the defendants, and delivered the keys to them. In April, 1892, the defendants rented the property to one Horton, who paid the rent to them. In the summer of 1893 the defendants moved into the house on the premises, the widow going with them. The widow died in November, 1894. The plaintiff claims title to one-fourth interest as the heir of Joseph Roe, deceased. At the close of the testimony the court below directed a verdict in favor of plaintiff, holding the tax deeds for the years 1883 and 1884 void by reason of the unconstitutionality of the tax law. The court also directed the jury that the tax deed issued for the year 1885 was void because of imperfect description of - the lands; that defendant Franklin Roe was a tenant in common with the plaintiff, and could not gain title by adverse possession; and that defendants were not entitled to claim for their improvements.

It is not strenuously urged before us by defendants’ counsel that the tax deeds made upon sales of taxes for the years 1883 and 1884 are valid. The sales were made under the tax law of 1885. It has several times been held by this court that the tax law of 1885 was confined by its title to a prospective operation only, and that sales for delinquent taxes of previous years could not be made thereunder. Humphrey v. Auditor General, 70 Mich. 292 (38 N. W. 214); Hall v. Perry, 72 Mich. 202 (40 N. W. 324); McNaughton v. Martin, 72 Mich. 276 (40 N. W. 326); Auditor General v. Bay County Sup’rs, 106 Mich. 662 (64 N. W. 570); Norris v. Hall, 124 Mich. 170 (82 N. W. 832).

It is insisted by defendants’ counsel that the deed given for the unpaid tax of 1885, and also the deed given by the treasurer of the village of Portland for the unpaid village tax of 1885, are valid. It is claimed on the other hand that the deed given by the auditor general for the tax of 1885 is void for the reason, among others, that the description of the premises is insufficient. The description in the assessment roll is as follows: “ Lot 163-164, plat; section 33, town 6, range 5.” The tax deed describes the property as “lots 163 and 164 of section 33, village of Portland, according to the plat thereof.” It was shown by the evidence in the case that there were several different lots on section 33 in the township of Portland that were numbered 163 and 164. We think the assessment roll was too indefinite and uncertain in its description to amount to a good assessment. It does not describe or refer to any lots in the township of Portland. Petit v. Railroad Co., 114 Mich. 362 (72 N. W. 238); Jackson v. Sloman, 117 Mich. 126 (75 N. W. 282). See, also, Auditor General v. Smith, ante, 576 (85 N. W. 8). Several other reasons are claimed why the deed should be held void, and which we think are valid reasons, but which we .need not here mention or discuss, as we must hold it void for the first reason assigned.

As to the deed given by the village treasurer of Portland, it appears that there is no provision in the village charter authorizing a tenant in common to purchase the interest of his co-tenant in the premises so held in common at a tax sale; and we think it must be held that these sales by the treasurer conveyed no title to the defendants, and that the payment made by them operated merely as a payment of taxes. It was said in Page v. Webster, 8 Mich. 264 (77 Am. Dec. 446), that:

“The burden was cast upon him and his co-tenants to pay the taxes assessed against the land. This each might have discharged, so far as his own interest ras concerned, by paying his aliquot proportion of the tax, and thus relieve such interest from the lien for the tax which the law imposed upon it. Had Crane done this, and after-wards bid in his co-tenants’ interest sold for their default, perhaps a different rule might obtain, and he have acquired a good title as against them; but such is not this case.”

That case was cited with approval in Butler v. Porter, 13 Mich. 292. It was there' held that one who is a tenant in common of property, whether in possession or not, cannot acquire title against his co-tenant by a purchase of the entire premises at a tax sale. The rule is that, when one tenant in common becomes the purchaser of such, a tax title, he will be held a trustee for the share of his co-tenant. Frentz v. Klotsch, 28 Wis. 312; Chickering v. Faile, 38 Ill. 342; McConnel v. Konepel, 46 Ill. 519. It was also held in Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584), that the devisee of a life estate in remainder could not, if he accepted such devise, obtain title in fee to the land by purchase at a tax sale for taxes assessed during the incumbency of his predecessor in title, and such purchase, at most, only entitled him to reimbursement from the latter, or to contribution from the remainder-men, to whose benefit the purchase inured. It was also said in that case: “ There is abundant authority that a tenant in common, whose duty it is to pay a portion of the taxes, cannot acquire a title as against his co-tenant by purchase at a tax sale for the entire tax;” citing Dubois v. Campau, 24 Mich. 360, and notes.

It is contended that, notwithstanding the tax deeds were held invalid, defendants had acquired title by adverse possession. We think the court below was right in holding that there was not such title shown. The plaintiff had no right of entry until the death of the widow, which occurred November 5, 1894. This suit was commenced on August 2, 1899, less than five years from the death of the widow. The statute provides as follows.:

“The right to recover possession of any land by any person claiming through or under any deed executed by the auditor general by virtue of the provisions of this act shall be forever barred by the actual, open, and continuous possession of any person claiming such land adversely to such tax deed for the period of five years after the execution of such tax deed: Provided, that if the person claiming through or under such tax deed shall have once taken actual and peaceable possession of such land by virtue of his deed, and shall have continued in such actual possession for five years next thereafter, then the provisions of this section shall not apply, but in such case he shall be conclusively deemed the owner in fee simple of such land.” Act No. 153, Pub. Acts 1885, § 115.

The statute also provides:

“No person shall bring or maintain any action for the recovery of any land, or the possession thereof, or make any entry thereupon, unless such action is commenced or entry made within five years after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims, when the defendant claims title under a deed made by the auditor general in pursuance of the provisions of this act.” Id. § 116.

It is apparent, therefore, that whatever possession the defendants had had not ripened into a title at the time of the commencement of this suit.

But defendants claim that even if the deeds are void, and the statute, of limitations has not run against the plaintiff, yet they are entitled to recover one-quarter of the value of all improvements made by them upon the premises. This claim is made under 3 Comp. Laws 1897, § 10995. This statute makes such provision, subject, however, to the following proviso:

“Provided, the defendant or defendants, or the person through whom he or they claim title, shall have been in the actual, peaceable occupation of the premises recovered for six years before the commencement of the action : Or provided, the same shall' have been so occupied for a less time than six years under a color of title and in good faith.”

In Jones v. Merrill, 113 Mich. 433 (71 N. W. 838, 67 Am. St. Rep. 475), it was said: “The occupancy contemplated by this section is such a one as, under the rules of the common law, would entitle one to acquire a title by adverse possession.” It is apparent that, under this construction, the defendants could not recover for any improvements made prior to the time of the death of the widow, to wit, November 5, 1894. There is a stipulation filed in this court in the case that the improvements made since 1894 are not relied upon as a basis for reversal of the judgment. From this stipulation, and from the facts set forth in the record, it is seen that the amount of the improvements since that time is not sufficient to warrant a new trial.

The judgment must be affirmed.

The other Justices concurred.


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    SCHAUB v. WELDED-BARREL CO.
    1. Master and Servant — Wrongful Discharge — Evidence— Res Gestas.
    In an action for the wrongful discharge of an employé, plaintiff’s letter written in answer to the letter of discharge, explaining and contradicting charges of misconduct contained therein, and inquiring as to the scope of the discharge, is admissible as part of the res gestee.

    2. Same — Contract of Hiring — Construction.
    Where, in an action for the wrongful discharge of an employé, it appeared that two corporations, which were officered by the same persons and were under the same management, had made a contract of hiring whereby plaintiff was to act for three years as their general superintendent, giving one-half of his time to each, at a fixed salary, payable one-half by each, and neither to be bound by the covenants of the other, and that plaintiff subsequently, after having some difficulty with the president, wrote to the companies demanding payment of back salary, and in reply received a letter, written by the president on the letter-head of the company for which the president was acting when the difficulty arose, informing him that he had been discharged for incompetence and insubordination, and stating that the treasurer had been directed to pay him a certain sum, which represented past-due salary from both companies to date of discharge, — the court would,
      it seems, have been, warranted in holding, as matter of law, (1) that the contract of hiring was joint, and not several, and (3) that the discharge was effective as to both companies.
    3. Same — Submission of Question to Jury.
    In any event, the company defendant in such suit could not complain because the question of its liability was submitted to the jury under evidence introduced by it to show that a discharge from the service of the other company alone was intended.
    4. Principal and Agent — Agent’s Authority — How Shown.
    The secretary and treasurer of two companies was told by the president of both to discharge the plaintiff, then in their employ, on account of insubordinate conduct towards the president» while acting for one of the companies, and for neglect and incompetence generally. With the assistance of the president, the secretary prepared one letter discharging plaintiff, and another announcing his discharge. . Held, that the question whether he was authorized to bind the companies by a statement that the letter above was intended as a discharge from both companies was one of fact for the jury, since it did not turn on the acts or statements of the agent alone, but on all the circumstances of the transaction as disclosed by the evidence.
    Error to Wayne; Erazer, J.
    Submitted December 5, 1900.
    Decided January 29, 1901.

      Assumpsit by Julius W. Schaub against the Welded-Barrel Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gyrus E. Lothrop and Alfred J. Ducharme, for appellant.

      Wells, Angelí, Boynton & McMillan, for appellee.
   Moore, J.

The plaintiff recovered a judgment against defendant for the breach of. a contract which he entered into with the defendant and with the Arc Welding Company. He also sued the last-named company for a breach of the same contract, and obtained a judgment, which judgment was affirmed in Schaub v. Arc Welding Co., 123 Mich. 487 (82 N. W. 235). A reference to that case will aid in arriving at an understanding of this case. Mr. Coffin was a stockholder, director, and president of the defendant company, as well as of the Arc Welding Company. Mr. Lothrop was also a stockholder, director, and secretary of both companies. He also acted as the legal adviser of both companies. Mr. Coffin had invented and patented processes for welding by the use of electricity. The companies were organized to operate under the same patents, although along different lines of business. The business office of the two companies was in the same rooms. The plaintiff was a civil engineer, and was manager of the Hamilton Bridge Works. In September, 1897, he entered into a contract, the essential portions of which read as follows:

“Memorandum of agreement made and entered into this seventh day of September, in the year of our Lord one thousand eight hundred and ninety-seven, by and between the Arc Welding Company, a corporation organized under and by virtue of the laws of the State of Michigan, and having its principal office and place of business at the city of Detroit, in the county of Wayne, in said State, of the first part, the Welded-Barrel Company, a corporation also organized under and by virtue of the laws of said State, and having its principal office and place of business at said city of Detroit, of the second part, and Julius W. Schaub, of said Detroit, of the third part, Witnesseth: * * *
‘ ‘ Said parties of the first and second parts do hereby hire and employ the said party of the third part for the period of three (3) years from and after September 1, 1897, as general superintendent, upon the terms and. conditions hereinafter mentioned, and do hereby agree to pay to said Schaub the following salaries and compensation for his services, viz.: For the first year of said term, an annual salary of two thousand five hundred dollars ($2,500); for the second year, an annual salary of three thousand seven hundred and fifty ($3,750) dollars; and, for the third year, an annual salary of five thousand dollars ($5,000), — all'payable monthly. * * *
“Said party of the first part and said party of the second part shall pay and be responsible for one-half of the annual salaries and compensation agreed upon to be paid to said party of the third part by the first paragraph hereof. * * * It is understood and agreed that each of said first and second parties shall be answerable and responsible to said party of the third part for the observance and performance by it of the covenants, conditions, and agreements by it hereby entered into on its part to be kept, observed, and performed, only, and not for the observance and performance by the other party of the covenants, conditions, and agreements hereby entered into on its part to be kept, observed, and performed.
“Said party of the third part hereby agrees to and with said parties of the first and second parts that, during said period, he will faithfully serve them in the capacity aforesaid to the best of his ability; that he. will nob engage in any other business or occupation whatsoever during the continuance of said term, without the written consent of said first and second parties; and that he will do all in his power during the continuance of this agreement to further and promote the interests of said parties of the first and second parts.
“It is agreed that the time of said party of the third part shall be equally divided between the business of said parties of the first and second parts, in case each of said parties shall require the full half of his time. * * *
“ In witness whereof, said parties of the first and second parts have caused their corporate seals to be hereunto affixed and these presents to be subscribed by the hands of their respective presidents and secretaries, thereunto duly and lawfully authorized and empowered, and said party of the third part hath hereunto set his hand, the day and year first above written.
“Arc Welding Company.
“Welded-Barrel Company.
“Julius W. Schaub.”

This contract was prepared by Mr. Lothrop under the advice and direction of Mr. Coffin and Mr. Schaub, and was signed on the part of the companies by him.

Mr. Schaub entered into the employ of these companies. He did not receive his pay for the month of December, and consulted attorneys in relation thereto. Acting for him, the following letter was sent:

“Detroit, Mich., Jan. 15th, ’98.
“Arc Welding Company and Welded-Barrel Company,
“24 & 26 Newberry Building, City.
Gentlemen: We inclose you herewith a bill of Julius W. Schaub against you for services for the month of December under a contract made between him and you dated September 7, 1897. Mr. Schaub has instructed us to collect this amount. Will you be good enough to see that a check is sent us at once ?
“Yours truly,
“Wells, Angell, Boynton & McMillan.”

Mr. Angell testified this was the only letter sent upon this subject, and that the letter from Mr. Lothrop of January 17th was a reply to this letter.

The record discloses there was some friction between Mr. Schaub and Mr. Coffin, which resulted in words passing between them, which are referred to in the opinion in Schaub v. Arc Welding Co., supra. Mr. Schaub testified that soon thereafter, and on the same day, he prepared the sketch, and sent it, two hours before he received a letter of the same date from Mr. Coffin, to Mr. Coffin, with the following letter:

“Detroit, Mich., January 17th, 1898.
“C. L. Cofein, Esq.,
“President.
“Dear Sir: I beg to inclose herewith a copy, made from memory, of a sketch made some time ago, previous to January 7th, 1898. "This is, I believe, what you requested me to make this morning. Hoping this is entirely satisfactory, I beg to remain,
“ Yours truly,
“ (Inclosure.) J. W. Schaub.”

Soon after the occurrence between Mr. Schaub and Mr. Coffin, the latter went to the office of Mr. Lothrop and told him what had occurred, and informed him he should “fire” (to express it in Mr. Lothrop’s language) Mr. Schaub. The two following letters were then prepared by Mr. Lothrop; he obtaining his information from Mr. Coffin, and Mr. Coffin being present during their preparation:

“ARC WELDING COMPANY.
“Coffin System.
“ machines for welding metals.
“Detroit, 17th January, 1898.
“ Messrs. Wells, Angell, Boynton & McMillan,
“Union Trust Building, City.
“ Gentlemen : I beg to acknowledge the receipt of your favor of this date, addressed to this company and the Welded-Barrel Company, inclosing bill of Julius W. Schaub for services alleged to have been rendered by him during-the month of December, 1897, and requesting that a check for the amount claimed ($200.61) be sent to you at once. In reply I would state that, while it is not conceded by this company that Mr. Schaub is entitled to receive the sum claimed or any sum whatever from this company for any services rendered by him during the month of December last, and while the officers of this company are of the opinion that Mr. Schaub has forfeited all claims under his contract with this company by utter incompetence and neglect to perform the duties for which he was employed, yet the fact that Mr. Schaub has this day been discharged from the company’s service on account of refusal to comply with the orders of the president, and the use of insubordinate and disrespectful language towards that officer of the corporation, has made the question of his right to receive compensation up to the present time of comparatively little importance, and not worth the trouble and expense of litigation; for which reason I have been directed to pay to Mr. Schaub, upon request, the sum claimed by him as salary for December, 1897, $200.61, and also compensation for the period from January 1, 1898, to January 16, 1898, both dates inclusive, at the same rate, amounting to $107.53. This amount will be paid to Mr. Schaub, or anybo'dy presenting written authority to receive the same in his behalf, upon request, at the company’s office.
“ Very truly yours,
“Cyrus E. Lothrop,
“Secretary & Treasurer.”
“ARC WELDING COMPANY.
“Coffin System.
“machines for welding metals.
“Detroit, 17th January, 1898.
“Julius W. Schaub, Esq.,
‘ ‘ City.
“Dear Sir: This morning I requested you to give me the drawing or tracing of the proposed machine for welding shells, referred to by you in your letter to me of January 5th last, which drawing or tracing was as recently as Saturday last upon the drawing-board in this office, but which has since been removed therefrom. At the time of making this request there was a drawing upon the drawing-board in the office, which, however, you informed me was not the drawing referred to in your letter. In reply to my request for the drawing or tracing referred to in your letter, you replied to me: ‘ That tracing I have given to my attorney. I cannot let you have that tracing. It is my record. I must have it.’ You will remember that some time ago you made another sketch or drawing of a proposed machine for welding shells, in which the furnáce was shown as placed underneath the seam to’be welded, which sketch or drawing remained for some time upon a drawing-board at the company’s factory, but which has disappeared from there. After your reply to me above quoted concerning the sketch or drawing referred to in your letter, I requested you to either give me the sketch or drawing that was on the drawing-board at the factory, or to make another like it, to which request you replied, *1 will see about that.’ * * * [This portion of the letter contains a narrative of the conversation as reported in Schaub v. Arc Welding Do.] I state the conversation between us verbatim and in detail, in order that the reasons for the action taken by me in this letter may be fully understood by you.
‘ ‘ It has been already stated to you that, in the opinion of the officers and directors of the company, you have utterly failed to comply with the terms and conditions of your contract of employment, and have shown yourself to be incompetent to perform the duties for which you were employed. . The question of terminating your contract of employment and discharging you from the service of the company on account of your incompetence and neglect of your duties has been seriously considered by the directors of the company. In the opinion of the directors of the company, also, your absolute failure to attend to your duties for which you were employed has forfeited all claims on your part to compensation for the last month, at least. But your insubordinate and disrespectful language to me as the president of the corporation this morning, and your flat refusal to obey my orders, or to deliver to me the drawings made by you while in the service of the company and for the company’s use, has made the question of whether or not you have heretofore properly performed your duties entirely immaterial. On account of your refusal to promptly comply with my orders, and the insubordináte and disrespectful language employed by you to me this morning, as above stated, the contract of employment between this company and yourself is hereby terminated, and you are discharged from the service of the company, to take effect from the date of this letter. You will deliver all drawings, letters, or other articles belonging to the corporation, and in your possession, to me at the earliest possible moment. Your discharge for the reasons given having made the question of continuance of your salary under your contract of employment immaterial, the treasurer of the corporation, Mr. Lothrop, has been directed to pay you, upon request, the sum of three hundred and eight dollars and fourteen cents, in payment of your services to date, as follows:
Salary for December, 1897, at §2,500 per year_______§208 83
Less deduction for 1 day’s absence during month, as per statement rendered by you.................. 7 72
Balance salary for December--------------- §200 61
Salary from January 1, 1898, to January 16, 1898, both dates inclusive, 16 days, at rate as above stated........................................... 107 53
Total salary to date.............................§308 14
“I desire to state, however, that while the treasurer has been directed to pay you this amount upon request, as I have stated, the company does not admit that you are entitled to receive this sum, and does not intend to waive, by payment to you of the same, any right to withhold payment of your salary or to terminate the contract of employment referred to on account of your incompetence and neglect to perform the duties required of you under your contract.
“ Yery respectfully,
“Charles L. Coeein,
“ President.”

It will be observed that the amount named in these letters includes the salary of Mr. Schaub, for the time stated therein, in both companies; and while one letter is signed by Mr. Lothrop as secretary, and the other by Mr. Coffin as president, it is not stated of what company.

After the two letters were received, Mr. Schaub sent a letter, which was received in evidence over the objection of counsel. We may as well say here, in relation to this objection, we think the letter admissible, in view of all the testimony, as part of the res gestee. The letter reads as follows:

“Detroit, Mich., January 17th, 1898.
“ Charles L. Coeein, Esq.,
“ President,
“Detroit, Mich.
“Dear Sir: I am in receipt of your letter of January 17th, inclosing vouchers for my signature, — one for $200.61, for salary due me for December, 1897, and the other for $107.53, for salary from January 3,-1898, to January 16, 1898,' — and notifying me that my contract of employment is terminated, and that I am discharged from the service of the company. I desire to say to you that the conversation set up in your letter does not correctly state what passed between us. Furthermore, I desire to call your attention to the fact that the sketch you asked for was placed in your hands a very few minutes after you made the demand for it, and I can recall no instance where I have failed to carry out your instructions promptly. In your letter you state that I am discharged from the service of the ‘company.’ Do you mean to say that Í am discharged by you from the service of both companies with whom my contract of September 7th was made ? If such is your intention, I will return to you at once, as you demand, all papers belonging to either company. I desire to say to you that I consider this discharge a willful one on your part, and without cause given by me; and I shall insist that the companies with whom the contract was made, and you as guarantor of that contract, respond to me in such damages as the law allows.
“ Yours, truly,
“Julius W. Schaub.”

This letter was shown by Mr. Coffin to Mr. Lothrop, who testified he advised that it be unanswered. It was unanswered. After a delay of some days, Mr. Angelí testified that, acting as the attorney of Mr. Schaub, he called Mr. Lothrop to the telephone and inquired of him if the letter of January l?th was intended as a discharge of Mr. Schaub from the employ of both companies, and that he was informed by Mr. Lothrop that it was so intended. Mr. Lothrop denied that any such conversation occurred, but, from the verdict it rendered, the jury must have found the conversation occurred.

Certain requests were preferred by counsel for defendant, which were refused by the court, except as embraced in the general charge. Among other things, he charged the jury as follows:

“The question for you to determine is, Was this man discharged from this company? The defendant contends that he was not, and .that he voluntarily left the service of the company. The evidence upon the part of the plaintiff that tends to maintain the proposition of the plaintiff is that he had received a letter, which I have permitted to come in evidence, which is known as the letter of discharge, in which certain reasons were stated, — that he had become insubordinate and that he had become impertinent to the officers of the company, and that he was inefficient in the discharge of his duty, — and that for these reasons they saw fit to discharge him; and this letter that contained that discharge was a letter from the president of the Arc Welding Company, and not a letter from the president of the Welded-Barrel Company, the defendant in this case. While Mr. Coffin was the president of both of these companies, as I understand the testimony, it is claimed here that he acted for each of these companies separately. That would not be inconsistent at all with his duties, and he might be president of both of these companies, and have acted separately for each of these companies, even in the employment of'this plaintiff. I do not think that the letter itself here is sufficient evidence to warrant you in finding that he was discharged from the employment of the defendant in this case, for the reason that this letter was written by the president of the Arc Welding Company, and not written by the president- — in the capacity of president, by Mr. Coffin — of the Welded-Barrel Company.
‘ ‘ But there is other testimony in this case which, as it is claimed, would show you that he was discharged from the service of the defendant, the Welded-Barrel Company; and the testimony that has been brought before you which it is claimed would tend to show this to you was the fac.t that a letter was written by him to Mr. Coffin, who was the president of the defendant company, asking him if he intended that this letter of discharge should apply to both these companies; and that he received no reply to it, and the testimony on this proposition upon the part of the defendant is that Mr. Lothrop, who was the secretary and treasurer of that company, directed the president not to reply to it. Now, this may or may not have, according to the way you shall look at it, some weight in your mind as to whether he was or was not discharged by this company. I deem it my duty to let this testimony go in and submit it to you, and you can give it such consideration as you think the weight of it is entitled to.
‘ ‘ Another thing the plaintiff claims tends to show that he was discharged from the defendant in this case is that Mr. Angelí, counsel for the plaintiff in this suit, claims to have had a telephone communication with Mr. Lothrop, one of the officers of the defendant corporation, the Welded-Barrel Company, and that in that communication he asked Mr. Lothrop if this letter of discharge was intended to operate as a discharge from both these companies, and that, in substance, Mr. Lothrop replied to him that it was. Mr. Lothrop, counsel for the defendant in this case, takes the stand and denies having received this communication, and denies ever having communicated to Mr. Angelí any such information, and states that not only did he not communicate it to him, but that it was not in accordance with his ideas of the situation, because he claims that in- all communications made by Mr. Coffin to the plaintiff in this .suit these communications were dictated by him, or made under his direction, with full knowledge of the facts; and he claims that he intended, particularly that this letter of discharge should not apply to the Welded-Barrel Company, for the reason, as he claims, that the difficulties that had arisen concerning the not giving up of this sketch, or the impertinence used or the acts of insubordination claimed to have been committed on the part of the plaintiff in this suit, were not directed against or in the employment of the defendant in this suit, but that he used this language and did these acts in the employment of, and operating for, the Arc Welding Company, and not for the defendant, the Welded-Barrel Company. This is the reason that he assigns why he did not make any such communication, or could not make any such communication, — because it was against his ideas. This testimony is submitted to you for whatever you shall deem it worth. You are to determine what the real facts are in this case.
“Another proposition comes up here, and that is, Was Mr. Lothrop, as secretary and treasurer, authorized or had he any power to make this discharge, or to bind this company by any such statement? That I conceive to be a question of fact, left for you to determine under the evidence, whether there is anything tending to show that Mr. Lothrop had any authority to bind the company, or to discharge the plaintiff in this suit, or to say anything* that would bind the company as to his discharge.
“In order to find for the plaintiff, you must find that this man was discharged, that there were none of these acts claimed that would justify his discharge, and that not only was he discharged, but that he was discharged by an officer who had authority to discharge him. * * * If he was not discharged, or was not discharged by a person who was competent to discharge him, then it was his duty to have gone there and tendered his services to this company; to have offered to continue his employment with the defendant; and, if he failed to do that, — voluntarily left their employment, — he would not be entitled to recover damages in this suit.”

In addition to the question of the admission of the letter in evidence of which we have already spoken, it is insisted that the so-called letter of discharge was not a discharge from the defendant company, and even though it be conceded the conversation occurred between Mr. Lothrop and Mr. Angelí, as the latter claims, that it also appears affirmatively from the evidence that Mr. Lothrop was not authorized to bind the defendant by any statements he might make, and that plaintiff has failed to make a case.

As to the first of these propositions: While it is not necessary, in the disposition of the case, to pass upon the question, I think that portion of the contract referring to the hiring was a joint contract. It can hardly be believed that plaintiff would have entered into this contract if he had supposed one of the parties thereto could discharge him, thereby cutting off one-half of his salary, and leaving him without employment for one-half of the time, but compelling him to work the other half of his time for the other company, and accept one-half the salary which he had expected to obtain when he entered into the contract. The language of the contract is:

“Said parties of the first and second parts do hereby hire and employ the said party of the third part for the period of - three years * * * upon the terms and conditions hereinafter mentioned,” etc.

Among those conditions is a provision as to what portion of the salary shall be paid by each company; also:

“ It is understood and agreed that each of said first and second parties shall be answerable and responsible to said party of the third part for the observance and performance by it of the covenants, conditions, and agreements by it hereby entered into on its part to be kept, observed, and performed, only, and not for the observance and performance by the other party of the covenants, conditions, and agreements hereby entered into on its part to be kept, observed, and performed.”

These conditions are not inconsistent with the theory of a joint hiring of the plaintiff by the defendants. The interests of the two companies were much alike. Each had the same officers and was under the same management. Mr. Schaub was to give each of them the same amount of time. It is not probable he would have hired or been hired except upon the expectation that he would work for both companies, and that his entire time would be employed, and that he would receive the salary agreed upon. It is undoubtedly true, as stated in Schaub v. Arc Welding Co., 123 Mich. 487 (82 N. W. 235), that, as to the proportion of the salary which was to be paid by each of the companies to the plaintiff, the contract was several, and not joint, but, as to the hiring itself, it was the joint act of the two companies. The circuit judge, however, held the contract was several, so that the defendant was not prejudiced in that respect by his decision.

I am also of the opinion that the correspondence shown by the letter from Mr. Schaub’s attorneys of date January 15th, and Mr. Lothrop’s reply thereto, and the letter of Mr. Coffin dated January 17th, operated as a discharge of the plaintiff from both companies. It is true, the last two letters were written on the letter-heads of the Arc Welding Company; but that is no more conclusive than though they had been written upon the letter-head of some hotel, or upon a sheet of blank paper. Mr. Schaub had not received his salary from either company for the month of December. Because of that fact he consulted a firm of attorneys. They sent a statement of his claim for salary in a letter addressed to both companies. After its receipt the president and secretary of both companies conferred together, and, acting in concert, prepared two letters, one of which is signed by Mr. Lothrop as secretary, and the other by Mr. Coffin as president. The agreement between all these parties was embraced in one contract. Mr. Schaub caused a communication to be sent to both companies, asking that his salary be paid. At the very time in which an answer to that communication is prepared by the secretary of the company, a letter is also prepared, which is signed and sent by the president. In this last-named letter attention is called to what had occurred between Mr. Schaub and Mr. Coffin. A claim was made that Schaub was not only incompetent, but was insubordinate and disrespectful. He is notified he is discharged from the company. It is then said:

“Your discharge for the reasons given having made the question of continuance, of your salary under your contract of employment immaterial, the treasurer of the corporation, Mr. Lothrop, has been directed to pay you, upon request, the sum of three hundred and eight dollars and fourteen cents, in payment of your services to date, as follows.”

The letter then contains a computation of the amount of Mr. Schaub’s salary in both companies up to the day before the letter is written, and concludes by saying:

“I desire to state, however, that while the treasurer has been directed to pay you this amount upon request, as I have stated, the company does not admit that you are entitled to receive this sum, and does not intend to waive, by payment to you of the same, any right to withhold payment of your salary or to terminate the contract of employment referred to on account of your incompetence and neglect to perform the duties required of you under your contract.”

There is no suggestion that Mr. 'Schaub is to continue to work for one of the companies, but he is notified the continuance of his salary under the contract is immaterial. His salary is figured up in both companies. He is told it will be paid, but that by its payment it is not intended to waive the right to terminate the contract of employment. The letter of Mr. Lothrop commences by acknowledging the receipt of the letter from the attorneys of Mr. Schaub addressed to both companies, making a demand for the salary due Mr. Schaub for December from both companies ; states that it is not conceded anything is due him, because of his incompetency and his refusal to obey orders of the president, and that he has been discharged for that reason. He informs the attorneys the question of Mr. Schaub’s right to compensation is not worth the trouble and expense of litigation;

“For which reason I have been directed to pay to Mr. Schaub, upon request, the sum claimed by him as salary for December, 1897, $200.-61, and also compensation for the period from January 1,- 1898, to January 16, 1898, both dates inclusive, at the same rate, amounting to $107.53.”

This amount agrees with the computation made by Mr. Coffin in his letter, and includes the salary of Mr. Schaub in both companies. There is no suggestion in this letter that it is not written on behalf of both companies, and that it is not intended as a full reply to the letter inclosing a claim against both companies. There is no suggestion in the record that, while Mr. Schaub was incompetent to do the work for one company, he was competent to do the work for the other. Nor is it at all probable that what Mr. Coffin called “insubordination and disrespect” shown him as president of the Arc Welding Company would be any less distasteful to him as president of the defendant company. While the argument now made, that Mr. Coffin and Mr. Lothrop in conducting this correspondence were acting only for the Arc Welding Company, is ingenious, it does not appeal to us, under all the testimony, as having much force. The circuit judge, however, charged the jury that the letter from Mr. Coffin did not operate as a discharge of Mr. Schaub, and left it to the jury to say whether, taking into consideration all the other testimony in the case, Mr. Schaub was in fact discharged.

Counsel say it is a well-settled rule of law that agency cannot be proved by the acts or statements of the agent alone; citing Hatch v. Squires, 11 Mich. 185; Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253 (47 N. W. 104); Swanstrom v. Improvement Co., 91 Mich. 369 (51 N. W. 941); Somerville v. Railroad Co., 109 Mich. 295 (67 N. W. 320); and other cases. There is no doubt the rule is as stated, but, applying it to this case, it does not decide it in favor of the contention of defendant. The jury had the right to take into consideration Mr. Lothrop’s relation to the defendant company, as disclosed by the evidence, from its inception to his last act on the part of the company, and all the correspondence, and the circumstances under which it was prepared and sent, for the purpose of deciding whether he was authorized to bind his company by the statements which Mr. Angelí says he made. We think this testimony tended to show he had the authority to bind the company, and made a question of- fact for the jury. Hodges v. Power Co., 109 Mich. 547 (67 N. W. 564).

The other questions have been examined, but will not be discussed.

Judgment is affirmed.

The other Justices concurred.


text:
    MEYERL v. MEYERL.
    Husband and Wife — Separate Maintenance — Contract—Equity Jurisdiction — Demurrer.
    Where a husband and wife entered into a written contract whereby it was agreed that they should live apart, and that the husband should make specified weekly payments to the wife for her support, in which payments the husband, after separation, willfully defaulted, a bill filed by the wife under 3 Comp. Laws 189?, § 8686, for separate maintenance, was not demurrable on the ground that complainant, by entering into the contract, waived her right to resort to equity in the event of defendant’s failure to support her, or that she had, in an action on the contract, an adequate remedy at law.
    Appeal from Kent; Perkins, J.
    Submitted December 5, 1900.
    Decided January 29, 1901.
    Bill by Catharina Meyerl against Ernest G. Meyerl for separate maintenance. From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      Charles E. Ward, for complainant.

      L. E. Carroll, for defendant.
   Long, J.

In April, 1899, the parties, who are husband and wife, entered into a contract by which they agreed to live separate and apart during their natural lives. By the terms of the contract the defendant agreed to pay complainant $7 per week during her natural life, and to convey to her their home in the city of Grand Rapids, the estimated value of which was from $2,500 to $3,000, and also to convey to her the household goods, piano, horse, harness, and carriage, etc., in consideration of which the complainant agreed to release the defendant from all future support and maintenance and all alimony whatsoever. This agreement was carried out and the weekly payments made until the last week in November, 1899. The September, October, and November payments were enforced by suits at law in justice’s court upon the contract. Defendant having failed to make further payments, the bill in the present case was filed under the statute relating to separate maintenance. The bill was filed in the Kent circuit court in chancery. By subdivision “ b ” the bill prays “that this court [circuit court in chancery] make an order or decree herein by which a part' of said defendant’s estate, real or personal, or both, or a portion of his earnings, income, or revenue, as this court may determine in its discretion, shall be allotted, assigned, set apart, and decreed to your oratrix as alimony and for her support, and maintenance.” The defendant demurred to this bill, the grounds of demurrer being (1) that the complainant has an adequate remedy at law; (2) that the complainant, by entering into the agreement, waived her right to apply to a court of chancery for support from her husband when he failed to keep the agreement. No other grounds of demurrer are alleged.

The bill filed in this case alleges, among other things, that the parties were manned in April, 1877; that they continued to live together until April, 1899; that they have three children, — two daughters, aged 20 and 21 years, and a son, aged 18 years. The bill also alleges that the defendant has been guilty of extreme cruelty towards the complainant, and that, being of sufficient ability to provide for her a suitable maintenance, he has grossly, wantonly, and cruelly neglected so to do. The bill also alleges the making of the contract between the parties because of the cruel and immoral conduct of the defendant; that complainant has exhausted her legal remedies in trying to enforce it; that defendant, instead of using his money in payments on the contract, spends it with lewd women, not only to the loss of complainant pecuniarily, but to her humiliation and disgrace and the disgrace of her family; that defendant, for the purpose of preventing her from collecting anything more on the contract, has assigned a large amount of notes and accounts and other evidences of indebtedness, so that there remains little or nothing in his hands liable to execution; that he boasts that he has fixed his affairs so that she will get no more; and that he says he will go to jail, and remain there, rather than pay her anything more.

The statute under which the bill is filed (section 8686, 3 Comp. JLaws 1897) provides :

“Whenever a husband shall, without good and sufficient cause, desert his wife, or shall have hereafter deserted his wife without good and sufficient cause, being of sufficient ability to support her, or shall have become an habitual drunkard since their marriage, or practiced extreme cruelty towards her, or committed the crime of adultery, or any other offense that entitles the wife to a decree of divorce or of separation, and shall refuse and neglect to support his wife, either the wife or husband being a resident of this State, the circuit court in chancery of any county in this State in which said husband or wife shall reside shall, on the application of the wife by petition, allot, assign, set apart, and decree to her as alimony the use of such part of her husband’s real and personal estate, or such proportion of his earnings, income, or revenue, as the court may determine, in its discretion, and during the pending of the proceeding may require the husband to pay such sums to carry on the proceeding, or for her support, as it shall deem necessary, in like manner as provided by section 6235 of Howell’s Statutes, being 4745 of the Complied Laws of 1871, in case of suit for divorce: Provided, that no decree shall be made in favor of the petitioner unless on the heai’ing either such a state of facts shall appear as would entitle her, as far as the husband’s wrongful acts are shown, to a decree for divorce upon the grounds specified in the petition, or unless such a state of facts set out in the petition shall be proven as shall make it appear that the respondent had deserted the petitioner, with intent to leave her without adequate means of support, without good and sufficient cause; and the husband shall be permitted to allege in his answer to the petition any facts which would prevent or bar a divorce upon the grounds alleged in said petition, and to make proof of the same in conformity with such answer. * * * ”

The bill sets up sufficient grounds for divorce prior to the making of the contract, and it is apparent that the bill was properly filed in accordance with the provisions of the statute above quoted. We think, therefore, there is no force in the contention of counsel for defendant set forth in his first ground for demurrer, — that the complainant has an adequate remedy at law. Jurisdiction is conferred upon the circuit court in chancery by this statute.

The only question we need discuss is the one alleged as the second ground for demurrer; that is, whether the making of the contract has deprived the complainant of her right to the remedy now sought by the bill. It is contended by defendant’s counsel that the granting of a decree for separate maintenance would be the granting of an allowance in addition to the sum which the parties had voluntarily and without fraud agreed upon was sufficient for the support of the complainant, and which she covenanted to accept in full for her support and maintenance. It is admitted that the cases are not in harmony on this subject. In Galusha v. Galusha, 116 N. Y. 646 (22 N. E. 1117, 6 L. R. A. 490, 15 Am. St. Rep. 453), it was said by the court:

“ There are a number of cases where, notwithstanding a voluntary settlement by a husband upon his wife, the court has made an additional allowance upon the ground that the settlement was inadequate for her support;” citing 2 Bish. Mar. & Div. § 375, and cases there cited.

In the present case ifiappears by the bill that the defendant absolutely refused to carry out the terms of the agreement. This proceeding is brought under the statute which provides for the filing of a bill for support, maintenance, and alimony, and is very similar to the case of Cram v. Cram, 116 N. C. 288 (21 S. E. 197). The petition in that case was filed under section 1292 of the Code of that State, which contains very similar provisions to our statute. The court said:

“ It is not necessary that we should determine whether this court has aligned itself with those which sustain the exercise of this equitable jurisdiction, or with those holding the opposite view, since, whatever may have been the rule before the enactment of the statute, there is no room for doubt as to the intention of the legislature.”

In that case a written agreement had been entered into between the parties by which the husband agreed to pay the wife $400 in cash at the time of the agreement, and $50 per month during her life; while she agreed on her part to leave the State and never return, from which agreement she claimed to have been absolved by failure of the defendant to keep his promise as to the payment of the monthly allowance. It was held that this agreement could not be set up by the husband to bar the action of the wife for her support under section 1292 of the act, even though he discontinued • payments because she demanded that the allowance be increased.

The contract in the present case provides that the wife should not contract any debt or call upon her husband for further sums except those mentioned in the contract, “on condition that the party of the first part [the husband] keep and perform his said agreement, and pay the sums and amounts hereinbefore stipulated and agreed upon.” The complainant alleges in her bill that the husband has failed to pay the weekly sums, and absolutely refuses to pay-more of them; that he has disposed of his property with intent to evade payment. He now seeks to set up this agreement, which he himself refuses to keep and perform, as a bar to the wife’s claims under this statute. We feel disposed to follow the North Carolina case, and must hold that the demurrers to the bill are not properly taken.

The court below overruled the demurrers. The order made by that court must be affirmed, and the defendant given 20 days in which to answer. The complainant will recover her costs.

The other Justices concurred.