text:
    SPEAR v. PENDILL.
    1. Malicious Prosecution — Abuse of Process — Trespass on the Case.
    The action for abuse of process lies for the wrongful use of the process of a court after its issuance, not for maliciously causing it to issue.

      2. Same — Malice—Process.
    Two elements are necessary to an action for the malicious abuse of legal process: (1) The existence of an ulterior purpose ; (2) an act in the use of the process not proper in the regular prosecution of the proceeding. But its regular and legitimate use, though with a bad intention, is not a malicious abuse thereof.
    3. Same — Malicious Abuse of Process — Criminal Law.
    It is not actionable abuse of criminal process to make complaint against a person for keeping a bucket shop, to which charge the respondent pleaded guilty and was fined, where defendant had done no improper or irregular act in connection with the use of the process, and had no control oyer the warrant or prosecution after making complaint.

      Error to Marquette; Flannigan, J.
    Submitted January 11, 1911.
    (Docket No. 72.)
    Decided March 13, 1911.
    Case by John W. Spear against James Pendill for malicious abuse of process. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      George P. Brown (Waldo T. Potter, of counsel), for appellant.

      W. S. Hill and C. F. Button, for appellee.
   McAlvay, J.

Plaintiff brought suit and recovered a judgment against defendant for the sum of $600, in an action on the case for damages claimed to have been caused by defendant in making a criminal complaint in writing and under oath, charging plaintiff with conducting a bucket shop in the city of Marquette, Mich., contrary to law. From the declaration in the case we presume that, it was intended to charge that this was done by defendant wilfully and maliciously, and not falsely. Issue was joined by a plea, and the question of the sufficiency of the declaration is not raised.

In the declaration plaintiff, alleges as a fact that for 20 years and upwards he was engaged in the city of Marquette “in the business of conducting a bucket shop, so-called;” that defendant was one of his customers and suffered a loss of $700, for which defendant agreed to accept and did accept the sum of $350 in full settlement, which was paid and receipted for; that defendant after-wards brought suit against the plaintiff in assumpsit to recover the money he had lost, and caused a writ of garnishment to issue against a local bank, and thereby impounded $5,000 of money and securities belonging to plaintiff. Plaintiff further alleges that the transactions with defendant were fairly and justly conducted as defendant well knew, but that for the purpose of extorting money from him he threatened to make him trouble if he did not pay all of the money lost in dealing with him, and that he later did make this complaint against him for illegally conducting a bucket shop, upon which complaint a warrant issued, and plaintiff was arrested and bound over for trial in the circuit court; that he gave bail, appeared before the circuit court, entered a plea of guilty to the information filed, and was fined the sum of $500, which he paid, and was discharged. For the purposes of this opinion, this is a sufficient statement of what is contained in the declaration. The bill of exceptions is admirable for its brevity, and, in addition to the facts above stated, shows that defendant, except in making the complaint, had no control over the warrant and the criminal prosecution, and that there was evidence tending to show that plaintiff became sick, distressed, and disordered in his mind, etc., as the result of defendant’s conduct. Defendant seeks a reversal of this judgment upon errors assigned.

In order to make clear the theory of plaintiff upon which a recovery is sought, and his claim in the court below and in this court in defense of such theory, a quotation of the first sentence in his argument will be helpful. He says:

“This is not an action for malicious prosecution, as sought to be demonstrated by appellant, but is an action for malicious abuse of process.”

And further says in his brief:

“The exigencies of the trial were such that there was finally submitted to the jury the sole question of the defendant’s connection with, motive for, and liability under, the criminal prosecution.”

' Defendant, under the facts in the case, requested the court to direct a verdict in his favor. The denial of this request is made the basis of defendant’s main contention. Unless we find that the conduct of the defendant in instituting this criminal proceeding can be held to be a malicious abuse of process, the court must be found to have erred in denying the motion.

No case of malicious prosecution was made out by the proofs; nor is any claim made by plaintiff that it was a case of malicious prosecution. That question, under the facts and the admissions of plaintiff, is entirely eliminated from the discussion.

The only question to determine upon this record is whether defendant was guilty of malicious abuse of process. Abuse of process is the wrongful use of the process of a court.

“This action for the abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue.” 32 Cyc. p. 541.

See Bonney v. King, 201 Ill. 47 (66 N. E. 377); Wood v. Graves, 144 Mass. 365 (11 N. E. 567, 59 Am. Rep. 95); McClerg v. Vielee, 116 App. Div. (N. Y.) 731 (102 N. Y. Supp. 45).

In Wood v. Graves, supra, the court said:

“ In examining the instructions of the learned judge to the jury in the present case, no error is found. He made a careful discrimination between the remedy for a malicious prosecution and that for a malicious abuse of process in the manner of executing it. He instructed them explicitly that no damages should be given for anything which occurred before the process was used at all by the officer, but only for what occurred after it began to be used upon the plaintiff, and after it began to be wrongfully used for the purpose of collecting defendant’s debt.”

This is a leading case, from which Judge Cooley, in the text of his work on Torts, quotes:

“ Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose, and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of. process, though with a bad intention, is not a malicious abuse of process.” 1 Cooley on Torts (3d Ed.), pp. 355, 356.

Wood v. Graves, supra, is in harmony with the weight of the authorities. Appellee relies upon certain cases which, it is claimed, hold that both elements, as above stated, need not be present to support an action for the malicious abuse of legal process, citing 32 Gyc. p. 543, and cases cited. An examination of these cases discloses in each instance personal activity on the part of the individual in the furtherance of his ulterior purpose by the use of the process, and that the reasoning of these cases is not sound in claiming that an ulterior purpose is not necessary. The term, “ malicious abuse of process,” includes the idea of an ulterior purpose.

The Michigan cases relied upon do not support the contention of the appellee. Seiber v. Price, 26 Mich. 518-521, was a suit upon a covenant claimed to have been illegally obtained while under arrest by the abuse of a criminal warrant. Gallaway v. Burr, 32 Mich. 332, is a case of malicious prosecution, where plaintiff had been arrested by criminal warrant charging him with obtaining goods under false pretenses, from which he was discharged by the examining magistrate upon securing the debt. Cases prosecuted for the malicious abuse of process have been rare in the reports of this State. A typical and interesting case, where both elements necessary to support such an action were present, though not discussed, is cited by appellee, although exactly in point as illustrating the doctrine of Bonney v. King: Antcliff v. June, 81 Mich. 477 (45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533).

In the instant case appellant “had no control over said warrant and criminal prosecution after making the complaint.” That is all he did in the matter, and his only connection with it. The appellee, a self-confessed criminal, pleaded guilty to the information filed against him, and paid his fine. Therecitals in his declaration relative to his conduct of this business give no indication of his appreciation of its lack of legality and respectability; nevertheless they contain a confession of criminality and sufficient admissions, taken with one item of proof contained in the bill of exceptions, to defeat a recovery in this suit. It is clear from this record that appellant was not guilty of the malicious abuse of process. The court was in error jn not instructing a verdict for him as requested.

The judgment of the circuit court is reversed, and no new trial granted.

Hooker, Moore, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    ATTORNEY GENERAL, ex rel. RUGGLES, v. BUCKLEY & DOUGLAS LUMBER CO.
    Corporations — Quo Warranto — Ultra Vires Aots — Minino Companies — Salt Manufacture —Validity of Incorporation —Estoppel op State.
    After permitting a lumber company, organized as a manufacturing corporation under 2 Comp. Laws, § 7037 et seq., and numerous other lumber companies, to produce salt in connection with lumbering operations for upwards of fifteen' years, to the knowledge of various State officials who made frequent reports of the facts and after legislating with reference to such industry, the State, by its conduct, has construed the statute to include and authorize the production of salt as a manufacture, and cannot by quo warranto proceedings question the right of such corporation to carry on such business.
    Error to Manistee; Withey, J.
    Submitted January 9, 1911.
    (Docket No. 51.)
    Decided March 13, 1911.
    Information in the nature of quo warranto by John E. Bird, attorney general, on the relation of Charles P. Buggies, against the Buckley & Douglas Lumber Company. A judgment for respondent on a verdict directed by the court is reviewed by relator on writ of error.
    Affirmed.

      Charles McPherson {Franz C. Kuhn, Attorney General, of counsel), for appellant.

      Kleinhans & Knappen and Wilson, Wilson & Bice {Humphrey, Grant & Baker, of counsel), for appellee.
   Moore, J.

The respondent corporation was organized in January, 1898, under Act No. 232, Pub. Acts 1885 (2 Comp. Laws, § 7037 et seq.). Its purposes as expressed in its articles are:

■“Thepurchase and sale of lands and timber; the manufacture, purchase, and sale of timber and lumber, and transacting a general manufacturing and lumber business and everything belonging thereto or connected therewith.”

Ever since its organization it has operated a sawmill at Manistee, and been engaged in the manufacture of lumber. In 1895 it erected a salt block, and engaged in the manufacture of salt in connection with the operation of its sawmill, and from that time on has been producing salt. Its investment in the salt plant is approximately $160,000, and its investment in the lumber business outside of the salt business is approximately $1,400,000.

It is the claim of relator that the respondent has no authority to manufacture salt, for the reason that the production and manufacture of salt, as carried on by respondent, is a mining business, and not a manufacturing business, and that a corporation cannot be organized for or conduct a mining business under Act No. 232, Pub. Acts 1885, but should be organized under Act No. 113, Pub. Acts 1877 (2 Comp. Laws, § 6991 et seq.). The attorney general, on the relation of Charles F. Ruggles, filed an information in the nature of quo warranto, by which the court was informed that the respondent was incorporated under Act No. 232, Pub. Acts 1885, and had been and was at the time of filing the information exercising a franchise or privilege not conferred upon it by law, and asking for a judgment of ouster. The trial judge ruled that a corporation incorporated under Act No. 232, Pub. Acts 1885, and existing under Act No. 333, Pub. Acts 1903, could not lawfully engage in the manufacture of salt, but held that the State, because of the knowledge and acquiescence of the secretary of State and State salt inspector, was estopped to deny respondent’s right to manufacture salt, and was estopped to enforce the law against respondent, and upon that ground he directed a verdict for the respondent.

The contention of relator as stated in the brief of counsel is as follows :

“As there is no disputed fact in the case, we contend not only that the judgment below should be reversed, but that judgment of ouster should be entered in this court. We contend that:
“ (1) The franchise or privilege of producing and selling salt in the manner shown by the information, and admitted by the plea, has never been conferred upon respondent.
“ (3) The State is not estopped by the knowledge and acquiescence of its executive officers from imposing upon respondent the penalties provided by statute for the punishment of a corporation which exercises a franchise or privilege not conferred upon it by law, and diverts its funds to a purpose not specified in its articles of association.
“(3) The knowledge and acquiescence of the private relator and his motive in requesting the attorney general to file the information are immaterial, and constitute no defense to the information.
“ (4) Judgment should be rendered that respondent be dissolved.”

It is the contention of respondent (we quote from the brief )—

That it has a lawful right and authority to engage in and carry on the business of manufacturing salt as it is now organized, for the following reasons:

(1) The production of salt, as carried on by respondent and by other producers of salt in the State of Michigan, is a general manufacturing business, and not a mining business.
(3) The legislature of this State have recognized the business of producing salt in this State, as carried on by respondent, as a general manufacturing business, and not a mining business, and have legislated with reference to it as such.
(3) That the relator, through its executive officers, whose duty it is to execute the laws, has by a practical interpretation of said Act No. 232, Pub. Acts 1885, and said Act No. 232, Pub. Acts 1903, ever since their passage, permitted corporations to be organized for the purpose of engaging in the production and manufacture of salt, and permitted them, including respondent, to conduct and carry on the business under those laws, and such acquiescence now binds relator.
(4) Relator is now estopped by its conduct from denying that respondent, as now organized, has a right to carry on the business of manufacturing salt.

At the trial relator submitted the case upon the admissions made in respondent’s plea. Respondent offered in evidence certified copies of the articles of association of 14 corporations, of which the following two are examples:

(1) Saginaw Lumber & Salt Company, incorporated in 1882, for the purpose of—
“ Carrying on and conducting the business of cutting, hauling, driving and running logs and manufacturing the same into lumber and shingles, and into lath, and also for the purpose of manufacturing salt and salt barrels in connection with said manufacture of lumber, and also buying and selling lands, lumber, and salt, and doing a general lumber and salt business.”
(2) Louis Sands Salt & Lumber Company, of Manistee, incorporated in 1905 under Act No. 232, Pub. Acts 1903, to—
“Conduct and carry on a general timber and salt manufacturing business, including logging operations, manufacturing, buying and selling salt, lumber, shingles, lath, staves, heading, ties, posts, tanbark, wood and other forest products; also the buying and selling of logs, timber, coal and general merchandise, and for the purposes of said business to build, purchase, equip, maintain, own and operate sawmills, shingle mills, stave mills, salt blocks, lumber yards, docks, shops, stores, warehouses, steam and tram logging roads, vessels and water craft and such, other structures, equipment and appliances as may be necessary or convenient in the conduct of said business.”

The others were of like purport. The last one was: Mershon-Bacon Company, incorporated in 1906, under Act No. 232, Pub. Acts 1903, to—

“Manufacture lumber and salt and to manufacture lumber and forest products into various commodities, and to buy, sell and deal in salt, lumber and forest products and various commodities produced therefrom.”

Respondent also offered in evidence a printed copy of a pamphlet compiled by S. S. Garigues, State salt inspector, and printed by a legislative committee on lumber and salt in 1881. Respondent also offered in evidence printed copies of the annual reports of the State salt inspector for the years 1893 to 1909, inclusive. In the report of the State salt inspector for 1896, it is stated that

“Buckley & Douglas, Manistee, have built a very large plant this season, consisting of both grainer and vacuum pan process, estimated capacity of 2,000 barrels per day.”

In the reports for 1897, 1898, 1899, and 1900 Buckley & Douglas are shown as manufacturers of salt at Manistee; and in all subsequent reports the Buckley & Douglas Lumber Company is so reported. The report for 1909 shows the following salt manufacturers in Michigan for that year: District No. 1, Saginaw county, nine firms or corporations. District No. 2, Bay county, four corporations. District No. 3, St. Clair county, seven corporations. District No. 4, Manistee county, Buckley & Douglas Lumber Company and four other manufacturers. District No. 5, Mason county, three manufacturers. District No. 6, Wayne county, eight corporations.

Respondent also offered in evidence certified copies of its annual reports to the secretary of State for the years 1899 to 1909. In each of these reports respondent stated that it was engaged in the manufacture of lumber and salt and dealing in merchandise, and in the reports for the years 1899, 1900, 1901, and 1902 it replied to the question, “Has the corporation during said period been engaged in any line of business not specified in its articles of association? If so, what?” by the answer, “Manufacturing salt.” Thomas J. Elton, respondent’s secretary, testified that he came to Manistee in 1882, and that the only salt that had been manufactured at Manistee had been manufactured in connection with the sawmills. Patrick Noud, a witness for respondent, testified that the first boring for salt at Manistee was done in 1878, and that since then salt has been manufactured continuously at Manistee. He had been connected with the State Lumber Company, which ceased operating shortly before the trial. That company had decided from experiments made by it that it could not manufacture salt profitably with coal as fuel.

Attention has been called to the following statutes as throwing some light upon the question: Act No. 41, Laws 1853 (1 How. Stat. § 4001 et seq.), which is a general mining and manufacturing act; Act No. 42, Laws 1867 (1 How. Stat. §§ 4026-4028), which authorizes associations or combinations of those engaged in the manufacture of salt; Act No. 187, Pub. Acts 1875, which is a general manufacturing act; Act No. 113, Pub. Acts 1877, which is a general mining company act, under which act relator says respondent must organize before it can manufacture salt. Section 1, Act No. 113, Pub. Acts 1877, reads:

“That it shall be lawful for any number of persons, not less than three, by articles of agreement in writing, to organize themselves into a corporation for the purpose of engaging in and carrying on any kind of mining business, or for refining, smelting or manufacturing any and all kinds of ores, minerals or metals, or for both mining, refining, smelting and manufacturing any or all such ores, minerals or metals.”

If salt is referred to in this section, it is embraced in the word “minerals.” Act No. 232, Pub. Acts 1885, is a general manufacturing act, under which respondent organized. Act No. 232, Pub. Acts 1903, is a general manufacturing company act.

Counsel also call attention to some of the history of salt production in the State, as follows:

“By act of March 24, 1838, the State geologist was directed to commence boring for salt as soon as practicable at one or more of the salt springs, employing assistants ‘ well skilled in the practice of salt boring,’ and the sum of $3,000 was appropriated to defray the expenses, to be paid out of the internal improvement fund, and required the State geologist to make report at the next regular session of the legislature. This report was made January 1, 1839, and in that report to the legislature, the State geologist uses this language:
“ ‘ In order to procure water of sufficient strength and purity, it has been found indispensable to penetrate the overlying rocks as well as a portion of the rock from which the salt water flows. The depth to which it has been found necessary to sink varies from 350 to 1,000 feet, the deep boring for the most part furnishing water of a strength superior to the more superficial ones.’
“ This report of the geologist was referred in the senate ‘to the committee of manufactories.’ In the report of this committee to the senate they suggested that the reference to them of this subject indicated that the senate fully anticipates ‘ the manufacture of salt and its transportation, to its destined market.’ On January 28, 1839, the legislature passed an act appropriating the sum of $15,000 and directing the State geologist to continue the improvement» On March 30, 1840, the legislature made a further appropriation of $5,000 ‘ for the improvements at the salt springs on Grand river, and $5,000 for those at the Tittabawassee river.’ Under this act, contracts were made by the State geologist with Lucius Lyon to sink the well on Grand river to a depth of 300 feet from the surface, and with Ira D. Farrand to sink the well at the Tittabawassee river to a depth of 300 feet from the surface, and these contracts were submitted to the legislature by Governor Woodbridge, with a special message, January 9, 1841. In the annual message to the legislature of Governor Barry, January 4, 1842, he calls attention to the fact that the attempt to obtain ‘ water possessing qualities suitable for making salt,’ has thus far proved unsuccessful. The legislature on February 14, 1842, appropriated $15,000 to be expended upon the two wells already commenced. By act of February 16, 1842, the governor was authorized to cause the salt spring lands of the State to be platted into lots, and to lease the right ‘ to manufacture salt,’ providing that every lease should contain a clause requiring at least 14 cents per bushel of 56 pounds to be paid to the State ‘ for the water.’ By Act 200 of the Laws of 1859, the legislature offered a bounty of 10 cents per.bushel on all salt produced, and, as they stated in the act, it is for the purpose of inducing the people of this State to engage in the business of ‘boring for and manufacturing salt.’ This act was followed by Act 186 of the Laws of 1861, which amends and continues this bounty ‘ for manufacturing salt.’ Act 42 of 1867 speaks of the business as a manufacturing business. * * * Act 132 of 1897 * * * provides that ‘ whenever any well shall have been put down for the purpose of exploring for or producing salt or brine, upon the abandoning or ceasing to operate the same, the owner or operator,’ etc., shall fill up and plug the well.”

Counsel calls attention to the provisions of section 32 of Act No. 113, Pub. Acts 1877. This section provides for corporations organized under the act making an annual report to the State, and specifies what that report shall include, among others the following:

“ (8) The number of gross tons of copper obtained. (9) The number of gross tons of 2,240 pounds each of iron ore mined and shipped. (10) The number of gross tons of mineral coal mined. (11) The number of gross tons of pig iron manufactured. (12) The number of tons of any other mineral or ore mined. (13) The amount of slate or stone mined.”

And counsel contend that no mention of reporting the amount of salt produced is contained in that provision, although the manufacture of salt in the State of Michigan was considerable, and argue that it is reasonable to presume that, if the legislature intended the act should apply to salt manufacturing corporations, it would have specifically required a report of salt as well as of copper, iron ore, mineral coal, pig iron, slate, and stone. Attention is also called to Act No. 9, Pub. Acts of 1877 (2 Comp. Laws, § 4630), where provision is made for the appointment by the governor of a commissioner of mineral statistics, and where his duties are determined, and by section 4634 he has a right to demand of a corporation or individual engaged in mining to make reports under oath as to their production and other matters required by him, and blanks are to be furnished to him for that purpose. By section 4635, the commissioner of mines is required to report to the auditor general on or before the 1st day of May in each year the amount of copper, iron, coal, or other mineral produced by each and every corporation or individual engaged in mining in this State during the preceding calendar year, which reports shall be the basis for computing the specific tax chargeable against such corporation or individual on the amount of mineral produced by them, etc.

It is argued that it is a significant fact that no provision was then made for obtaining a report from those corporations engaged in the manufacture of salt in Michigan by such commissioner. Attention is also called to Act No. 29, Laws 1869 (2 Comp. Laws, §§ 4911-4953), “An act to regulate the manufacture and provide for the inspection of salt.” Section 1 of that act contains the following provision:

“That no salt manufactured in this State after this act takes effect, etc. * * * In case any manufacturer of salt shall knowingly sell or transport or permit to be sold or exported, salt contrary to the provisions of this act,” etc.

Section 5 of that act, among other things, contains this clause:

“In case any person, firm, company or corporation shall neglect or refuse to pay such inspection fees on demand at his, their or its office or manufactory, the party so refusing shall be liable to an action therefor, * * * and it shall be lawful for the inspector and his deputies to refuse to inspect salt manufactured at the works so in default until the amount due is paid. * * * The inspector shall keep just and true accounts of all money received under this section, and an account of the amounts received from or paid by each person, firm or corporation engaged in the manufacture of salt,” etc.

In 1905, by Act No. 323, these sections were amended so that the foregoing clauses thereof read as follows, viz.:

“That no salt manufactured or mined in this State after this act takes effect shall be sold within or exported from this State. * * * In case any manufacturer or producer of salt shall knowingly sell or export or permit to be sold or exported, salt,” etc.

The forgoing clauses of section 5 are as follows:

“ In case any person, firm, company or corporation shall neglect or refuse to pay such inspection fees on demand at his, their, or its office, manufactory or mine, the party so refusing shall be liable, in an action therefor, * * * and it shall be lawful for the inspector and his deputy to refuse to inspect salt manufactured at the works, manufactory or mine so in default until the amount due is paid. * * * The inspector shall keep just and true accounts of all money received under this section, and an account of the amounts received from or paid by each person, firm or corporation engaged in the production of salt. * * * ”

It is said this is the first place in the statutes where the mining of salt is mentioned or referred to in specific terms, and that the reason for this amendment is made clear by reference to the report of the State salt inspector for the year 1906 in which the following appears:

“ The Detroit Salt Mining & Manufacturing Company are constructing a mine from which they expect to mine salt in about a year. They are down 360 feet, and making 50 feet a month. They expect to mine salt at a depth of 900 feet.”

Nowhere does he refer to salt mining or to a salt mine except in the paragraph above quoted. This shows that a new method of producing salt was being inaugurated in this State, namely, that of mining it. The company referred to was sinking a shaft for the purpose of reaching the bed of rock salt which they proposed to mine by the same means and in the same manner as other minerals and ores are usually mined.

Counsel also call attention to Act No. 404, Local Acts 1901, as showing that the legislature of the State of Michigan does not regard the manufacture of salt as a mining business (the first section of this act reads: “All corporations organized under the laws of this State for the purpose of owning and operating street railroads in the county of Saginaw by electric motive power are hereby authorized and empowered to sell, dispose of or utilize their surplus or waste steam in the manufacture of salt,” etc.), and argue that this law shows it was the intention of the legislature that salt might be manufactured by the utilization of surplus or waste steam.

Attention is called to the fact that the secretary of State, whose legal adviser is the attorney general, approved the articles of incorporation, not only of the respondent, but also of all the corporations before mentioned, many of which stated the purposes of the corporation were for the conduct of a general manufacturing business, and “also for the purpose of manufacturing salt and salt barrels in connection with said manufacture of lumber, and also buying and selling lands, lumber, and salt, and doing a general lumber and salt business.”

We have not referred to all that is shown by the record and the references therein, but we think they establish the following propositions made by counsel:

“(1) The State of Michigan has in every way encouraged the manufacture of salt since its first discovery in the State. It never was made successfully until the lumber mills took it up, using their refuse to evaporate the brine.
“ (2) Corporations have been organized throughout the State to make salt in connection with manufacturing lumber. The most of them organized under the manufacturing act of 1885. All of them thought they had the right to make salt, and the State, through its various administrative officers, believed the same thing.
“ (3) Every one during all these years has acted on the theory that these companies were legally organized, and were legally making salt.
“(4) The respondent has reported every year to the State that it was making salt.
“ (5) The State salt inspector, when respondent started to build its salt block, reported the facts to the State that respondent was investing large sums of money to manufacture this product, that was beneficial to the people at large. The State knew that it was doing this, claiming the right to do it under its charter.
“ (6) The legislature through the report of its committee knew that it was common for corporations organized to make lumber to also manufacture salt; "that lumber companies all over the State where brine was found were exercising this right. From this report and the annual reports of the State salt inspector, the State knew that the only economical and practical way to make salt was in connection with the sawing of lumber.
“(7) The State, by its salt inspectors, has inspected and put its stamp of approval on every barrel of salt that respondent has ever made, and collected from respondent a tax for doing so.
“(8) Not only respondent but many other companies in the State organized under manufacturing company acts are making salt. They have invested millions of dollars in the enterprise with the knowledge and approval of the State.”

We get back then to the question: Is the pumping of brine, running it into vats, and evaporating the water by the use of exhaust steam, and, when the mill is not running, by live steam made by burning fuel which otherwise would be useless waste, the manufacture of a food product, to be governed by the manufacturers’ act, or is it a mining operation resulting in the production of a mineral within the meaning of. the mining law of the State ? The fact that counsel as able and learned as those engaged in this controversy differ as to which of these acts should control, indicates that the construction of the two statutes bearing upon this controversy is not entirely clear and free from doubt. The construction of a statute was before the court in People v. Railroad Co., 145 Mich. 140 (108 N. W. 772). In the opinion by Justice Montgomery, the following language is used:

“ For the purpose of aiding in the construction of the statute, the court may revert to the history of the times, and ascertain, by such records as courts are authorized generally to take judicial notice of, what construction has been adopted by other departments of government. It appears from these that to the knowledge of the executive department, of the legislative and legal departments of the State, and with the full approval of the latter, the defendant' has for over a century or more reported for taxation only such capital and loans as were employed in constructing a railroad within the State. * * *
“We are of the opinion that the practical construction of the executive and legislative branches of government so long continued should be held decisive of the legislative intent, and upon this question assent to the reasoning of Mr. Justice Grant.”

In the opinion of Mr. Justice Grant he uses this language :

“If, however, there were any doubt about the construction to be placed upon this amendment, and this at least must be conceded, the parties to the contract have, by a uniform course of conduct for nearly fifty years, given it a construction. Where parties by such a uniform course of conduct for a long time have given a contract a particular construction, that construction will be adopted by the courts.”

To the same effect are the following authorities: Cooley’s Constitutional Limitations (6th Ed.), pp. 88, 84; United States v. Finnell, 185 U. S. 236 (22 Sup. Ct. 633); United States v. Johnston, 124 U. S. 236 (8 Sup. Ct. 446); Union Ins. Co. v. Hoge, 21 How. (U. S.) 35; Scanlan v. Childs, 33 Wis. 663; Board of Com’rs of Franklin Co v. Bunting, 111 Ind. 143 (12 N. E. 151); State v. Kelsey, 44 N. J. Law, 1; Board of Street Opening Case, 12 Misc. Rep. 526 (33 N. Y. Supp. 594); Attorney General v Bank of Newbern, 21 N. C 216; Commonwealth v. Mann, 168 Pa. 290 (31 Atl. 1003); Harrington v. Smith, 28 Wis. 43; Westbrook v. Miller, 56 Mich. 148 (22 N. W. 256); City of Detroit v. Chapin, 108 Mich. 136, 142 (66 N. W. 587, 37 L. R. A. 391); City of Muskegon v. County of Muskegon, 123 Mich. 272 (82 N. W. 131); Attorney General v. Glaser, 102 Mich. 409 (61 N. W. 648).

Applying these principles of law to the case before us, we think it clear the judgment of the court ought not to be disturbed. Having reached this conclusion, it is unnecessary to discuss the other questions raised by the record.

Judgment is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J. McAlvay, J.

text:
    ROOT v. ROOT.
    1. Equity — Cross-Bill—Pleading.
    A cross-bill can be sustained only on matters growing out of the original bill and embraced in it.
    2. Same — Husband and Wipe — Divorce — Injunction Against Wife’s Engaging in Competitive Business.
    In a suit by a' husband to restrain his wife from engaging in business in competition with him, wherein the wife filed an answer to the bill and asked by a cross-bill for a divorce on the theory that he had, by extreme cruelty, compelled her to leave him, and she was obliged to compete with his business in order to support herself, the matters averred in the cross-bill were germane to the bill. MoAlvay, J., dissenting. ■
    3. Divoroe — Condonation.
    By a reconciliation and a resumption of marital relations, after the filing of a bill for divorce by the wife on the ground of cruelty, the acts relied on in her bill were condoned.

      4. Same — Extreme Cruelty.
    Evidence that, husband and wife quarreled over business matters, whereupon the wife resolved to leave him, and in an ensuing dispute he struck her, accompanied by proofs tending to show that the difficulty between them originated in the wife’s desire to oóntrol the business of her husband, is insufficient to justify a decree of divorce in her favor on the ground of extreme cruelty.
    5. Same — Clean Hands — Maxims of Equity.
    In divorce, as in other causes in equity, a complaining party must come with clean hands.
    6. Same — Husband’s Eights — Wife’s Services.
    The husband being required by law to afford his wife support reasonably consistent with his means and station, is entitled to her services and society. •
    7. Same — Separate Business of Wife.
    While the wife may, with her husband’s consent, conduct a business upon her own account, she may not compete with him against his consent, if he is willing and able to support her.
    Appeal from Washtenaw; Kinne, J.
    Submitted Janurary 10, 1911.
    (Docket No. 66.)
    Decided March 13, 1911.
    Bill by Frank M. Root against Minnie M. Root for injunction. Defendant filed a cross-bill for divorce. From a decree granting the divorce and awarding alimony, both parties appeal.
    Reversed.

      Frank A. Stivers (B. M. Thompson, of counsel) for complainant.

      M. J. Cavanaugh, for defendant.
    The parties to this cause are husband and wife, having been married in the year 1890. For ten years after the marriage they lived at various places; the husband being engaged a part of the time as a teacher and later as a piano salesman. In the year 1900 they located in the city of Ann Arbor, where with a capital of about $300 they opened a small store in which they handled pianos, sheet music, and musical merchandise. The business seems to have prospered from the start. Both husband and wife were untiring in their labors, and the success which crowned their efforts seems to be attributable to both.
    In January, 1906, the wife filed a bill for divorce, in which she charged extreme cruelty. No personal violence was charged, and the allegations of cruelty were not very specific. Upon the hearing of the application for temporary alimony in that cause, the parties discussed the question of a settlement of their property interests. This conference resulted in a withdrawal by the wife of her bill of complaint and a renewal of the marital relation. The parties continued to live together as man and wife until January, 1909, when the wife again left her husband, and on February 1, 1909, she started a business in the city of Ann Arbor similar in character, and in opposition to that of her husband. Thereupon he filed his bill of complaint in this cause, in which he averred his ability and willingness to properly support his wife, and prayed that she be enjoined from continuing against his will to prosecute the competitive business established by her. To this bill of complaint defendant filed an answer, admitting the establishment of the rival business, but averring that complainant had driven her from her home, and it became necessary for her to do something for her own support. She further filed a cross-bill, in which she again charged complainant with extreme cruelty, and prayed for a divorce. Upon the hearing she testified that her action in going into business upon her own account in competition with her husband was without his consent and against his strenuous protest. The trial court dismissed the bill of complaint, and granted to the defendant a divorce upon her cross-bill, with permanent alimony in the sum of $1,000, besides confirming in her the title to a parcel of real estate which had been partially paid for out of the proceeds of the husband’s business. Both parties have appealed from the decree entered.
   Brooke, J.

(after stating the facts). We are met at the outset by this question: Can the defendant by way of cross-bill ask for a divorce in a cause where the complainant by his original bill seeks injunctive relief only ? In the early case of Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766), Mr. Justice Campbell defined the purpose of a cross-bill as follows:

“A cross-bill for purposes of relief is always designed for the purpose of enabling a defendant to avail himself of some defense which can only be made complete by granting him some affirmative relief against complainant or against some codefendant.”

In Hackley v. Mack, 60 Mich. 591 (27 N. W. 871), it was said:

“A cross-bill can be sustained only on matters growing out of the original bill and embraced in it ” — citing authorities.

See, also, Powers v. Hibbard, 114 Mich. 533 (72 N. W. 339); Union Street-Railway Co. v. City of Saginaw, 115 Mich. 300 (73 N. W. 243); 16 Cyc. p. 324.

In the case here considered, the husband sets out in his bill of complaint the fact that defendant is his wife, and that as such he is entitled to her society and services. He further avers that her act in establishing a competitive business is injurious to his own enterprise, and is without his consent and against his protest. To this bill the wife answers, admitting the existence of the marriage, but by her cross-bill she avers that she is entitled to a severance of the relation because of her husband’s cruelty.

The husband’s sole right to the injunctive relief prayed is predicated upon the existence of a contract which the wife by her cross-bill seeks to annul. If his conduct towards his wife has been such as to warrant her in seeking and securing the relief of a divorce from him, she by establishing this fact, and securing the relief, deprives complainant of the only ground he claims to have which would justify his interference with her business plans. After careful consideration, we have reached the conclusion that the matter set out in the cross-bill is germane to the bill. The fact that complainant went to a full hearing upon the cross-bill and his answer thereto, without objection, would not be without significance if it were necessary to-give it consideration. We must therefore consider the merits of the cause as presented in the record.

The learned circuit judge who heard the case filed a written opinion as follows:

“In January of this year, Mrs. Root felt that her relations with her husband were unendurable, and she endeavored quietly to pass wholly out of his life. She asked and took no assistance whatever at their parting. She engaged in business by herself and for herself. Very shortly thereafter Mr. Root commenced these proceedings, claiming that he was entitled to her services and companionship, and seeking an injunction to restrain her from engaging in or conducting an independent business. It seems to me that one does not often witness a more puerile and cowardly act on the part of the husband towards his wife than this attempt at coercion. During this trial he has frequently declared his great love for this woman. Such conduct on his part may be consistent with chivalry and love, but it does not so impress me. The evidence in this case, however, convinces me that the wrongdoing is not wholly on the side of Mr. Root. There is neither vice nor crime nor immorality on the part of either, but every vestige of the marriage relation, save the bare, naked form thereof, has disappeared. Where mutual respect, confidence, and love should exist, only repulsion and hatred are seen, and, so far as Mrs. Root is concerned, this state of mind is hopeless and apparently eternal. If anything but evil can emanate from such a relation, I am unable to discover it. Ill will, unhappiness, keen misery, and social scandal are the. only present manifestations of this marriage. It must be a mistaken view of public policy which would demand the continuance of this relation. I do not find that Mrs. Root has always been angelic or wholly blameless, or that there is anything bad or vicious in the moral nature of Mr. Root. Physical violence is, however, not the only form of cruelty. There may be a constantly recurring form of refined cruelty that may be less tangible, yet, in its effect, more deadly and extreme. In her bill Mrs. Root asks for a decree of divorce upon the grounds of extreme cruelty. I think she is entitled to such relief.”

We quite agree with the learned circuit judge where he says:

“There may be a constantly recurring form of refined cruelty that may be less tangible, yet, in its effect, more deadly and extreme.”

We have, however, gone over this voluminous record with care, and have failed to discover the evidence which would make the observation pertinent to the facts in this case. The parties lived together for 16 years without any undue friction. The wife then filed her first bill for divorce. The charges she made in that bill, even if supported by due proof and found to be ample to sustain a decree, cannot here be considered. By her dismissal of that proceeding and the resumption of marital relations those alleged acts of cruelty were by her condoned. After the reconciliation, they again lived in perfect amity for nearly three years more, according to the testimony of the wife. Her right to relief must be predicated solely upon the occurrences of the last few weeks during which they lived together. A dispute seems to have arisen between them as to the conduct of the business, many of the important details of which had passed into the hands of the wife. For reasons sound or unsound, but to him sufficient, the husband determined to resume control of those details. This determination incensed the wife, and led to her leaving her husband and establishing the rival business. The single act of personal violence charged by the wife in her bill, as occurring after the dismissal of her first bill, occurred at this time and after she had determined to leave and had so notified her husband. In the light of the husband’s explanation of the incident, we attach but little importance to it. He did not, as charged, turn her out of the home, but did urge her, perhaps with undue insistence, to leave the store in order that he might carry out his plans with reference to the conduct of the business. We are impressed with the fact that the sole difficulty between the parties arises from the fact that the wife desired to actively control the business of her husband, and, failing in this desire, determined to leave him and secure a business which she could control. Her manner of dealing with the lot purchased in part with the moneys from her husband’s business, but standing in her own name, lends color to this view. The learned circuit judge finds “nothing bad or vicious in the moral nature of Mr. Root.” And further says: “ I do not find Mrs. Root has always been angelic or wholly blameless.” . In Hoff v. Hoff, 48 Mich. 281 (12 N. W. 160), Mr. Justice Cooley said:

“ And it is as true of divorce cases as any others, that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not the guilty.”

In Beller v. Beller, 50 Mich. 49 (14 N. W. 696), this, court said:

“When we examine the evidence tending to prove extreme cruelty, we are of opinion that it falls far short of establishing a case in favor of either party. It is undoubtedly true that there was more or less wrangling between these parties growing out of money matters, and that because thereof they did not live as happily together ■ as they should have done, yet still no case of extreme cruelty is made out.”

See, also, Cooper v. Cooper, 17 Mich. 205 (97 Am. Dec. 182); Rose v. Rose, 50 Mich. 92 (14 N. W. 711); Morrison v. Morrison, 64 Mich. 53 (30 N. W. 903); Downey v. Downey, 135 Mich. 265 (97 N. W. 699).

Neither incompatibility of temper nor the ordinary misunderstandings and bickerings which are characteristic of the marriage relation in a considerable percentage of cases, have been made grounds for divorce in this State. The legislature might, if it chose, extend the jurisdiction of courts to grant decrees of divorce upon these grounds. It has not done so, however, and those who are married must bear the real or fancied burdens they have assumed, unless the conduct of one entitles the other, that other being without fault, to a severance of the relation for one or other of the statutory causes.

Is the husband entitled to the relief sought ? The husband, being of sufficient ability, is bound in law to afford to his wife support reasonably consistent with his own means and station. As a necessary corollary to this proposition, it follows that the husband as a matter of law is entitled to the services and society of his wife. This right has been affirmed many times in our own State. Glover v. Alcott, 11 Mich. 470; Randall v. Randall, 37 Mich. 563; Mason v. Dunbar, 43 Mich. 407 (5 N. W. 432, 38 Am. Rep. 201); Harrington v. Gies, 45 Mich. 374 (8 N. W. 87); Sines v. Superintendents of the Poor, 58 Mich. 503 (25 N. W. 485). That the wife may, with the husband’s consent, conduct a business upon her own account, is not open to question (Tillman v. Shackleton, 15 Mich. 447 [93 Am. Dec. 198]; Rankin v. West, 25 Mich. 195), but we have been unable to find any decision (and we are cited to none by counsel) which affirms this right in the wife, where her husband is able and willing to support her and withholds his consent. In the case of Artman v. Ferguson, 73 Mich. 146 (40 N. W. 907, 2 L. R. A. 343, 16 Am. St. Rep. 572), in considering the question of partnership between husband and wife, it was said:

“The important and sacred relations between man and wife, which lie at the very foundation of civilized society, are not to be disturbed and destroyed by contentions which may arise from such a community of property and a joint power of disposal and a mutual liability for the contracts and obligations of each other.”

If a contract of partnership, with its consequent complications, is liable to imperil the marital relation, it should, we think, be obvious that active business competition between husband and wife would, of necessity, utterly annihilate it.

The decree of the court below is reversed, and a decree will be entered in this court dismissing defendant’s cross-bill and granting to complainant a permanent injunction against defendant in accordance with the prayer of his bill The complainant will pay to defendant’s counsel a solicitor’s fee of $100, this to be in full of all costs in the cause.

Moore, Blair, and Stone, JJ., concurred with Brooke, J.

McAlvay, J.

The question of divorce was not germane to the injunctive relief complainant asked, and the cross-bill should never have been considered. Divorce is purely a statutory proceeding. The complainant was entitled to the relief asked under the proofs. I agree in the result.


author: Blair, J.

text:
    LEONARD v. ROTH.
    1. Sales — Payment—Statute of Frauds.
    The deposit of money to be paid over to the owner of stock after he should establish his title thereto by pending litigation, whereupon the shares should belong to the party making such deposit, interest to be payable, and the amount paid over to be returned at his option after six months, unless the title to the stock was first determined, did not constitute a sufficient payment to take the contract out of the statute of frauds.
    2. Same — Statute of Frauds — Personal Property.
    The payment required by the statute of frauds is an unconditional transfer of money or property, from vendee to vendor, and unconditional acceptance of the same by the vendor, in discharge, pro tanto, of the purchase price.

      3. Same — Statute of Frauds — Fraudulent Conveyance — Memorandum.
    A written receipt for the deposit so made, merely stating that it was received for the purchase of the stock, was an insufficient. memorandum to take the transaction out of the statute.
    4. Same — Defense by Third Party.
    It is competent for a third party, who has purchased the subject-matter of the invalid sale, to interpose the invalidity of the transfer in defense of his subsequently acquired interest.
    Appeal from Wayne; Rohnert, J.
    Submitted January 11, 1911.
    (Docket No. 68.)
    Decided March 13, 1911.
    Bill by Asbury O. Leonard against Charles Roth and the Ditzler Color Company, to compel the retransfer of stock pledged to defendant Roth, upon a tender of the amount of the secured indebtedness. Louis J. Goux, claiming rights in the stock under a parol contract, intervened by petition and was substituted in place of complainant. From a decree for intervener, defendant Roth appeals.
    Reversed.
    Corliss, Leete & Joslyn (Thomas T. Leete, of counsel), for intervening petitioner, Goux.

      Bumps & Bishop ( Hunt & Altland, of counsel), for defendant Roth.
   Blair, J.

Complainant, in pursuance of, and to enable him to carry out, an oral agreement with the intervening petitioner, filed this bill of complaint to compel the retransfer to him of 50 shares of stock of the Ditzler Color Company pledged to defendant Roth as security for the payment of complainant’s note.

Complainant did not prosecute his suit in good faith, and Mr. Goux was permitted to intervene and assume the prosecution. The agreement is stated in the intervening petition as follows:

“That on or about October 14, 1905, petitioner was asked by the complainant, Asbury O. Leonard, to buy from said complainant 40 additional shares of the stock of said defendant corporation claimed by said complainant to be owned by him and the title to which 40 shares of stock, and of certain 10 additional shares included in certificate No. 17 of said corporation, was in dispute between the said complainant and the defendant Roth. That said complainant represented to your petitioner that he was about to commence proceedings against the defendant Roth for the purpose of determining said dispute as to the title of said stock and that he needed certain moneys in order to enable him to make tender to said defendant Roth of the amount of the indebtedness of said Leonard to said Roth, for which said 50 shares of stock was held as collateral. That thereupon your petitioner agreed to and did buy from said complainant, Leonard, the said 40 shares included in said certificate No. 17 of the stock of said defendant corporation for the sum of $600, and the said complainant, Leonard, did agree to deliver said stock to your petitioner at once upon his title thereto being perfected, and as soon as he should obtain the said stock from the defendant Charles Roth.
“(2) Petitioner further shows that, in pursuance of said agreement with said complainant Leonard, and to enable said Leonard to make tender as aforesaid, your petitioner did, on the 14th day of October, 1905, pay to Lodge, Trevor & Brown, solicitors for said complainant, As-bury O. Leonard, the sum of $600, being the purchase price of said 40 shares of stock so agreed to be sold to him by said Leonard as aforesaid, and did receive from said Lodge, Trevor & Brown, solicitors mentioned, a written receipt for said money, as follows:
‘"Detroit, October 14, 1905.
•‘ ‘Received of Louis J. Goux, six hundred dollars for the purchase of forty shares Ditzler Color Company stock,
'• ‘Lodge, Trevor & Brown.’
“ * * * That a good and sufficient legal tender was made to redeem said stock from said loan.'
“(3) That thereafter, to wit, on or about the 20th day of December, 1905, your petitioner caused inquiry to be made as to the progress of the suit brought by said complainant to determine the title of said stock, and ascertained that no progress had been made in said suit, and thereupon petitioner became uneasy about the matter, and particularly as to the uncertainty and indefinite terms of the written receipt received by him for the money so deposited as aforesaid, in that no time was fixed for the determination of the title of said stock, and thereupon your petitioner demanded that said money be returned to petitioner to be held by-petitioner to await a decision as to the said litigation, or that the said moneys be placed on deposit for such purpose, and demanded that the time be limited within which title of said stock must be determined, after. the expiration of which petitioner should have the right, if he saw fit so to do, to cancel said agreement to buy said stock. That thereupon, to wit, on or about the 21st day of December, 1905, a further agreement was entered into by your petitioner and the said, complainant Leonard by the terms of which said $600 paid to said Lodge, Trevor & Brown, solicitors as aforesaid, was deposited in the McClellan & Anderson Savings Bank, Detroit, and a certificate of deposit therefor issued to Frank T. Lodge, one of the solicitors for complainant, and it was thereupon agreed between your petitioner and said complainant Leonard and his said solicitors that said money should so remain on deposit in said bank for the payment of the purchase price of said stock so sold to him by said complainant Leonard, and for the purpose of enabling said Leonard to keep his tender good to said defendant Roth in this cause, and that your petitioner should have the right, if he should so elect, at the expiration of six months from said December 21st, to receive a return of his moneys with interest thereon in case the title to said stock had not been determined by that time.”

Mr. G-oux testified, among other things, as follows:

* ‘ He said he would have to prove his title, and, if the litigation was unsuccessful in getting his title, the money was to be returned to me. This was in October, 1905. After that I felt uneasy about the money, and I told Mr. Lodge I thought the money was just as available in my hands as it was in his; that I did not feel comfortable about simply turning the money over to him without any other security. * * * As far as I know, Mr. Leonard has no financial responsibility. * * * When I spoke of the six months, I meant that it was so placed that they could not keep my money indefinitely, that is all, to have the time so fixed. It was fixed by Mr. Lodge.
“Q. For what; that he would get the stock in that time?
“A. That was to be definite; that at the end of the time I should have my money. So they could not keep it 16 years. * * * There was no six months’ arrangement with me; no time limit. The $600 was to be left at the bank no definite length of time. I think the fact that it was a certificate of deposit made it optional with me. The arrangement was made with the United States Savings Bank by Mr. Lodge. * * * Mr. Leonard was present when the money was paid to his attorney. * * *
“Q. Why didn’t you pay it to Mr. Leonard ?
“A. I offered to pay it to Mr. Leonard if he would give me security for it.
“Q. Why did you want security for your $600?
“A. Because I did not want to turn over $600 to some one that I did not know was responsible for it. * * *
“Q. Did you want it under your control ?
“A. I wanted to be sure that it was safe.
“Q. In other words, you did not want Mr. Leonard to get possession of the $600 ?
“A. No, sir. * * *
“Q. He did not guarantee that he would get it?
“A. He said he would give it to me when he proved his title to it. * * * At the time the $600 was put up, on October 14th, there was no time limit as' to when the stock should be obtained — it remained indefinite. I was to receive interest on the $600 at the rate of 6 per cent. Mr. Leonard was to pay interest to me on the $600 in the hands of Mr. Lodge, as long as it remained in his hands. It was agreed when it was turned back to me the interest was to cease. * * *
“Q. Do you claim that Exhibit A embodies all the terms of the agreement between you and Mr. Leonard ?
“A. I claim that this $600 was to pay for the 40 shares of stock. * * * I don’t see how I can answer it except as I have already answered it, that I bought 40 shares of stock, and this receipt is for the money I paid for the 40 shares of stock.”

Mr. Goux also wrote the following letters:

“December 9, 1905.
“ Mr. Lodge.
"Dear Sir: I must have your check for amount due me this morning, and will send my office girl for same at eleven o’clock. Any time that stock is secured, will take at price mentioned, providing same is secured within four months. After that date will have to open new negotiations.
^ "VnnTR
“ L. G. Goux, M. D.”
“ December 15th, 1905.
“ Mr. Frank T. Lodge.
“Dear Sir: Will you kindly deliver to hearer check for the six hundred dollars. Since Mr. Leonard’s return I have been informed by him that the amount would be paid. No satisfactory reason for not returning the money has been furnished me up to the present time, and I feel that I have granted you a reasonable length of time to make settlement.
“ The fear that the money will not be available in case the stock is secured has no foundation in fact, for Mr. Leonard knows that more than par can be secured for the stock at any time. I cannot wait indefinitely for a settlement of this matter. Kindly oblige me at once.
“ Respectfully yours,
“Louis J. Goux.”

The court entered a decree for the intervener upon the principal ground that the delivery of the $600 was a payment for the stock, which saved the oral agreement from being invalid under the statute of frauds. From this decree defendants appeal to this court.

We deem it conclusively established by the testimony that neither the intervener nor any one else understood that the $600 was turned over to Mr. Lodge as a payment in advance for the stock. On the contrary, we are satisfied from the testimony of intervener, that the agreement, so far as the money was concerned, was in substance that Mr. Lodge should pay over the money only upon the delivery of the stock. It is quite improbable that Mr. Goux, knowing that there was a dispute as to the right to the stock and that litigation would be necessary to determine such right, would part with the money unconditionally. His conduct is inconsistent with such a theory. He refused to turn the money over to Leonard unless he furnished security. He required that interest upon the money should be paid pending the delivery of the stock. He twice demanded that the money be returned to him, and finally insisted that Mr. Lodge deposit the money in bank and take a certificate of deposit under an agreement, as stated in his petition, that the money should remain on deposit for the payment of the purchase price of said stock, and to keep the tender good, and with the right at his option to receive his money back at the expiration of six months from December 21st.

We do not regard the transaction with reference to the $600 as establishing a payment within the meaning of the statute of frauds. The payment required by the statute is the usual payment, as the term is commonly understood, whereby the vendee unconditionally transfers money or property to the vendor which the vendor unconditionally accepts in discharge, pro tanto, of the purchase price. Driggs v. Bush, 152 Mich. 53 (115 N. W. 985, 15 L. R. A. [N. S. ] 654, 125 Am. St. Rep. 389); Gorman v. Brossard, 120 Mich. 611 (79 N. W. 903); Godkin v. Weber, 154 Mich. 207 (114 N. W. 924, 117 N. W. 628, 20 L. R. A. [N. S.] 498); Dow v. Worthen, 37 Vt. 108; Hinchman v. Lincoln, 124 U. S. 38 (8 Sup. Ct. 369); Thompson v. Kellogg, 23 Mo. 281; Groomer v. McMillan, 143 Mo. App. 612 (128 S. W. 285); Tiedeman on Sales, § 69; Baker on Sales, §§ 247, 272, 286, 287, 388; 20 Cyc. p. 252. The testimony of intervener clearly demonstrates that the receipt was not a sufficient memorandum to take the case out of the statute. McCaskey Register Co. v Truettner, 149 Mich. 241 (112 N. W. 909).

It is further suggested:

“That Mr. Roth is not in a position to raise this question as to the validity of the contract between Leonard and Goux. It is none of Mr. Roth’s business whether the contract was valid or not. Mr. Leonard treated the contract as binding upon him, used the money to make a tender for his own purposes, then refused to return the money, and deposited it in a bank subject solely to the control of his own attorney. Mr. Leonard ratified the contract in every way by his conduct, and is estopped now from denying its validity. Leonard, in fact, is not in court denying the .contract; but a third person, a stranger to the transaction, seeks to take advantage of an alleged infirmity in the contract. We submit that Roth has no such right, even were his position sound, which we emphatically deny.”

The essence of this contention is that the owner of property cannot convey title thereto because of a previous invalid agreement. We are unable to find any support for this contention either in the canons of logic or authority, Browne on Statute of Frauds (5th Ed.) § 135c; 29 Am. & Eng. Enc. Law, p. 809 (3) b; Waite v. McKelvy, 71 Minn. 167 (73 N. W. 727).

It results that the decree must be reversed, and the bill be dismissed.

Moore, McAlvay, Brooke, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    FORMILLER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Operation op Oars — Negligence—Boarding Cars — Variance.
    It was not a fatal variance under a declaration charging that after plaintiff stepped on the lower step of the car the defendant’s servants suddenly started the car forward and threw him off, to show by the testimony that the car had started in the usual way, and, as he was stepping on the second step, it suddenly increased the speed and threw him to the ground.

      2. Same.
    Whether plaintiff’s injury resulted from the sudden acceleration of the car or from the starting of it, was for the jury, under evidence which might support conflicting inferences.
    3. Same — Trial—Requests.
    A request defining the aot of boarding a car was unnecessary, and was also properly refused as incorrect.
    4. Same — Duty to Passengers — Carriers.
    The court did not err in charging the jury that plaintiff was entitled to an opportunity to come to a place of safety on the car, before it was started.
    5. Evidence — Impeachment—Intoxication.
    In an action for injuries sustained in boarding a street car, statements of plaintiff’s companions, made in his presence to his physician, stating incorrectly the facts as to their boarding and alighting from the car, not offered to impeach the witnesses or as substantive evidence, but as tending to show they were intoxicated, were properly excluded by the court on the objection of plaintiff’s attorney that proper ground for impeachment had not been laid.
    6. Trial — Argument — Saving Questions for Review — Appeal and Error.
    Objectionable argument of plaintiff’s counsel, not ruled upon by the trial court, and claimed to be in answer to argument of defendant’s attorney, did not constitute reversible error.
    Error to Wayne; Murphy, J.
    Submitted January 9, 1911.
    (Docket No. 57.)
    Decided March 13, 1911.
    Case by Frank Formiller against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn ( W. G. Fitzpatrick, of counsel), for appellant.

      Dohany & Dohany, for appellee.

       Starting street car before passenger is seated, see notes in 42 L. R. A. 294, and 4 L. R. A. (N. S.) 558.
      Negligence in starting street car with jerk, see note in 28 L. R. A. (N. S.) 891.

   McAlvay, J.

Plaintiff brought suit against defendant for damages resulting from injuries received, caused by the claimed negligent handling of a car on defendant’s street railway, in the city of Detroit. The claim of plaintiff is that the accident occurred while the. car was standing still and he was boarding the same. The negligence charged and relied upon in his declaration is that:

“After plaintiff had stepped upon the lower step of said car, and while he had hold of the brace of said car with his left hand, the defendant’s servants, agents, and employes, in charge of said car, carelessly, negligently, and wrongfully started said car suddenly forward, by means of a quick application of electricity, without giving plaintiff any warning that said car was to be started as aforesaid, and without giving plaintiff an opportunity to get safely aboard said car, thereby jerking plaintiff so suddenly and severely that he was thrown heavily forward,” etc.

The plaintiff sets forth that defendant owed a duty—

“ To give plaintiff, in boarding said car while the same was standing still, reasonable time and opportunity to do so before starting said car, and to give plaintiff an opportunity to step up from the step to the rear platform of said car before starting the same, and to refrain from starting said car while plaintiff was going to board it; * * * that defendant negligently * * * failed to give plaintiff a reasonable time and opportunity * * * to step from the step of said car up onto the rear platform before starting said car, and did not refrain from starting the said car while plaintiff was getting aboard it.”

The accident occurred October 20, 1908. Plaintiff and three companions were standing on the west side of Belvidere avenue on Kercheval, waiting for a car. The car came to a stop. Three of the party got on the car, and then plaintiff proceeded to get on. There is a dispute as to exactly what occurred. His testimony is that he put his left foot on the step of the car, took hold of the stanchion with his hand, and reached for the second step with his right foot, when the car started, causing him to lose his balance, and the car started “ worse ” throwing him to the pavement. On cross-examination he leaves it doubtful whether or not he got his right foot on the second step, as he testifies both ways. He explains what “ the car started worse ” means by saying that it first started easily as usual, and soon after started suddenly faster. He testifies that this sudden jerk threw him down.

The theory of the defense was that plaintiff had succeeded in boarding the car in safety, and fell from the rear platform either as a result of losing his balance while engaged in a friendly scuffle with his companions, or by reason of a sudden and unexplained movement of the car after it was put in motion. One of the bones (fibula) of plaintiff’s left leg was fractured near the ankle. A trial resulted in a verdict and judgment for plaintiff. On account of errors which occurred upon the trial, defendant, upon a review by this court, asks for a reversal of such judgment. No motion for a new trial was made. Attention will be given to those errors defendant in its brief discusses and relies upon as constituting reversible error.

It is contended that there was a fatal variance, between the allegations of the declaration and plaintiff’s proofs, and the court either should have granted an amendment on terms, or, the plaintiff not wishing to amend, should have directed a verdict for defendant. The averments of the declaration are given above and are to the effect that, while plaintiff was in the act of boarding the car standing still, it was suddenly started forward by means of a quick application of electricity. The testimony of the plaintiff shows that the initial starting was as a car usually starts, and not suddenly, and that the jerk occurred while he was in the act of placing his foot on the second step. The court gave plaintiff the privilege to amend, which was not accepted, and a motion to direct a' verdict for defendant on account of a fatal variance between pleadings and proofs was denied. Whether or not this was error must be determined from the circumstances of the instant case. The charge of negligence is that, while in the act of boarding the car, it started forward suddenly by means of a quick application of electricity. The evidence on the part of plaintiff shows that this jerk occurred very soon after the car began to move and before, or just as, plaintiff’s foot was on the second step. Although this sudden jerk was not the initial movement of the car, we think that in this case proof of it is allowable under the pleading, and that it cannot be said to be another and different act of negligence from that charged; i. e., that the car was started suddenly forward while plaintiff was in the act of boarding it. The court was not in error in refusing to direct a verdict for defendant.

The second question involved, as stated in appellant’s brief, is:

“Did it appear from the evidence that plaintiff’s injury resulted from a fall caused by a sudden acceleration in the speed of the car after he had boarded the same; the initial act of starting being usual and proper and without negligence ? ”

We consider this a question of fact and not of law. This question indicates the theory upon which defendant tried the case. The court has not undertaken, in what it has just said upon the question of variance, to weigh the evidence, but to hold that the proofs of plaintiff were admissible under the pleading, leaving it for the jury under proper instructions to find the fact.

Appellant contends that the court in this case should have defined what constitutes the act of boarding a car, as requested in writing, or its equivalent. It will be unnecessary to print the request, which was refused. It was not a proper definition to give to a jury. Nor was such a definition necessary in this case under the facts. The court correctly charged:

“ The right of the plaintiff to recover in this case is planted solely upon the claim that, while he was in the act of boarding the car, and before he had been given an opportunity to complete that act, he was, through the negligent starting forward of the car, precipitated to the pavement. * * *
“ If it be your view from the evidence that the plaintiff had succeeded in his effort to board the car, and, having so done, stood engaged in conversation, and thereafter was precipitated to the pavement, in that event you may not award the plaintiff a verdict, because the declaration filed in this case, which is the statement of the plaintiff’s claim, would not warrant you in returning any verdict upon any such theory as that.”

This last paragraph quoted was given because this was defendant’s theory, in support of which evidence was produced. The two paragraphs of the charge quoted placed the issue squarely before the jury, and any other charge upon that matter was unnecessary.

It is urged that the court did not correctly instruct the jury with reference to the scope and extent of the duty owing to plaintiff under his declaration. These portions of the charge objected to are italicized and quoted by defendant as follows:

“Your first inquiry here, * * * gentlemen of the jury, should be: What actually happened after the plaintiff attempted to or did succeed in boarding this car ? It seems to be conceded that the car was brought to a full stop. Thereupon it was the duty of the defendant * * * to give the plaintiff a reasonable opportunity to board it, and to come to a position of safety upon the car. If they did that, then the defendant did its full duty and is not liable.”

Again:

“The defendant must give the passenger a reasonable opportunity to board the car and to come to a position of safety upon it after he had boarded it; and whether or not its conduct in a given case affords such reasonable opportunity is a question of fact for the jury.”

Again:

“So here, gentlemen of the jury, it is for you to say: Did this defendant give to this plaintiff, first, a reasonable opportunity to board the car in safety, and did it give him a reasonable opportunity to come to a position (of safety) upon the car? If it failed in either of these respects, then, if he himself were without negligence, it would be answerable for any injury that its failure caused him.”

Again:

“I think I said to you, also, a moment ago, that it is not necessarily negligence, as a matter of law, to start a street car when a person intending to become a passenger thereon is attempting to board it. Just what a company may do in starting a car is a question of fact for the jury also, and applying this test to the defendant’s employé, namely, was the plaintiff given a reasonable opportunity to safely board the car and come to a safe position upon it ? Applying that test, you can say whether or not such a reasonable opportunity was given.”

Again:

“It is not necessarily true that a street car company must keep its car still in waiting until a passenger shall have succeeded in getting aboard the car. * * * There may be conditions under which it may not be necessary to do that, and, whether or not there are conditions which justify the company in moving its car ahead before a passenger shall have entered a car, that is a question for the jury to say, bearing in mind that the company must give a passenger a reasonable opportunity to board the car and come to a reasonable position of safety upon it. Do I make myself clear upon that, gentlemen of the jury ? ”

It is insisted that the reiteration by the court that a passenger must be afforded a reasonable opportunity to come to a place of safety on the car after boarding the same, while sound as a statement of law, in the abstract, had no place in this case, where the sole negligence charged is a failure to afford a reasonable opportunity to board the car, and necessarily gave the jury to understand that it would be proper to base a verdict upon a finding of failure to observe that duty, and that the court described two several and distinct duties which defendant owed plaintiff. The contention that the court should have given a definition of what constituted boarding a car probably was suggested from a consideration of the point here raised. We have already passed that objection; but we may add that the decisions of this court and the authorities examined define the duty of street railways relative to passengers getting on and off their cars as follows:

“ ‘ The time of stoppage must be such as to enable the passenger attempting to get on or off to reach a place of safety, either on the street or in the car before it is started.’ 6 Cyc. pp. 611, 615, 616, and cases cited.” Beattie v. Railway, 158 Mich., at page 246 (122 N. W. 558), and cases cited.

This is the accepted law, very simply stated. The term “ boarding ” the car used by the pleader and counsel and court is certainly not misleading. Everybody understands that it means getting on the car. The duty owed to the passenger attempting to do this, as just stated, need not be repeated. It is one continuing duty towards a passenger from the initial attempt until final accomplishment. The fact that a breach of this duty might occur at any time while a passenger is getting on or off from a car does not segregate it into separate and distinct duties. Reading the foregoing excerpts and the entire charge, we find that in this respect the charge of the court was without prejudice and not misleading.

Immediately after the accident, plaintiff was taken to the office of Dr. McLean, which was near at hand,, where his injury was examined and treated. The three companions who were with him before and at the time of the accident assisted in taking him to the doctor’s office and were present when he was examined. Defendant offered to show that while there certain statements were made to the doctor by him, plaintiff being conscious and cognizant of what was going on around him, relative to where they took this car; where they signaled to stop it to get off; how plaintiff got off; and where the car finally stopped — the substance of which was taken in writing by him at the time for the purpose of making a report. This offer was for the purpose of showing admissions made by plaintiff or by others in his hearing contrary to the claim which he was urging at the trial, to show inconsistent statements made by plaintiff or by others,- so long as it appeared that if they were made by others they were made in his presence and hearing. Objection was made on the part of the plaintiff that this was impeachment and no ground had been laid for it. Defendant contended that the evidence was not impeaching in any sense; that it amounted to admissions on the part of plaintiff by silence or acquiescence. The doctor stated that he “could not say what particular man said it, but among them I got the facts.”

The court excluded the evidence as impeaching as to all but the plaintiff, who had been cross-examined upon the matter. Plaintiff had testified that when in the doctor’s office he was conscious and his mind was perfectly clear. It appeared from the testimony of one of them that the party had taken two drinks before taking the car. It is urged that the evidence was very material as showing the condition of plaintiff at the time of the accident which the report of the doctor indicated. The report was not offered as substantive evidence, but to identify the subject-matter.

It is not claimed by defendant that these parties actually stopped the car and got on at another place than that proved and practically admitted. The testimony of the doctor offered, if admitted, would show that these statements, made immediately after the accident, were that they got on the car at McLellan avenue, one block east of Belvidere avenue, and rang the bell to get off at Belvidere; that the car did not stop until it reached Holcomb; that plaintiff got off the car while it was going and the others got off at Holcomb. The real purpose for which this evidence was offered was to show that plaintiff was intoxicated, and not to establish the truth of the facts stated. The record clearly shows that those statements were not true. Under the circumstances of this case, on the offer made, the evidence was properly excluded.

The closing argument of counsel is objected to as unfair and prejudicial. The record shows what this argument was, and that it was excepted to at the time. The usual excuse is made that it was in answer to argument made by the other side, and, as is usual in such cases, the claimed argument does not appear in the record. It is urged that the objection was not ruled upon by the court and therefore cannot be reviewed, citing Pierson v. Railroad Co., 149 Mich. 167 (112 N. W. 923), and other cases. These decisions are very familiar to the profession and are controlling in the instant case. The court in this case did not rule upon the objection. This rule requiring a ruling is the same applied to other objections made during the trial, and care should be taken by the profession to keep it in mind to protect litigants from serious prejudice by arguments of this character. We do not say that there may not be exceptions to this rule.

No reversible error appears in the case.

The judgment is affirmed.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J.

text:
    BOYER v. JOYAL.
    Contracts — Express and Implied Agreements — Evidence—Infant.
    It was error to direct a verdict for defendant, in an action of assumpsit for the support and education of defendant’s daughter, which plaintiff testified that he provided on the assurance of defendant that plaintiff should be repaid.

    Error to Houghton; Streeter, J.
    Submitted January 16, 1911.
    (Docket No. 87.)
    Decided March 13, 1911.
    Assumpsit by Nobert Boyer against August Joyal for support provided the defendant’s daughter. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      O’Brien & Legendre, for appellant.

      Louis N. Legris, for appellee.

       As to implied contract to pay for services to relative not living as part of same family, see note in 1 L. R. A. (N. S.) 819.

   Hooker, J.

Boyer and Joyal, the parties to this action, were neighbors. Eighteen or twenty years ago the latter’s wife died, soon after giving birth to a daughter. Boyer and Father Mesnard, a priest, had a talk about the baby, and later some one brought the child to Boyer’s home, where she was received and cared for and educated. A few years ago she left Boyer’s, and went to living at her father’s. The plaintiff brought this action to recover compensation for her support and was defeated; the jury rendering a verdict against him by direction. Error is assigned upon such direction.

Court and counsel seem to have been of the opinion that no promise to pay for a child’s support, where it was taken into a family and supported, could be implied, so construing the case of Thorp v. Bateman, 37 Mich. 69 (26 Am. Rep. 497). Without intending to approve such a construction of that case, we must dispose of this case upon the record as made, and ascertain whether there was any evidence of an express contract to go to the jury.

Boyer testified:

“Now, later on, that baby was brought to my home. I couldn’t say whether they brought it home. I remember the night I was home the child was in the cradle. I couldn’t say who brought it to the house. It was this baby of Mr. Joyal’s, August Joyal’s, and her name is Parmillia Joyal. I had a conversation or talk with Mr. Joyal about five or six months after that. I had no talk with him preceding this time. I had a talk five or six months after, because the child, the little girl, took sick. So me and my wife we had a talk together, and we said we ought to send for the father, because we won’t leave the child die on our hand; we would notify him. I sent for Mr. Joyal, and he came to my house, and I had a doctor for the child; the child was pretty sick. The talk I had with Mr. Joyal at that time; the baby was sick, and my wife crying on account of the child. She was pretty sick. She had pretty good care, and we were afraid to lose it, and we thought Mr. Joyal come over there to the house, and he see the child. So he says, ‘Boyer,’ * * * he said, ‘ try to get the best care you can for my child; try to bring it over again.’ He said, ‘If you brought it over again, I will pay you well some day for to take care of the child.’ I says, ‘All right, Mr. Joyal, I will try the best I can.’ * * * During the 11 years he was living there I saw him often. I see him most every day. Yes, he was at my house. Sure, I had talks with him after that. He always talk about his child; about the little girl.
“Q. What did he say ? What were some of his talks ? Can you remember any particular time ?
“A. The particular time was about two or three times a week sometimes. He would be at the house. If he didn’t come to the house, he ask, ‘ How is the child ? How is the baby ? ’ * * * Before he moved away, I had talks with him about the child during the 11 years he was there.
“Q. How often did those talks occur ?
“A. Many times; about 10 or 15 times. The nature of the talk was about the child. Take care of the child.
“Q. Can you name any particular month or any particular week during the 11 years, or particular year, you had a talk with him ?
“A. During the year I can’t tell. During the time we talked some of the time.
“Q. What was the nature of those talks ?
“The Court: He has answered that question. They were about the child.
“Q. What was said about the child ?
“A. Because I was raise up his child, I will be paid for it. He told me he will pay me for it, because I raise up his child. That’s what was the talk about when we talk about the child. That’s the only talk we had. I raise up the child because I expect to get pay for it.”

On cross-examination he said :

“No, when I first took that child into my family, I did not want the child. I did not adopt that child and raise her up, as though she were mine. Yes, I testified on the previous trial of this case.
”Q. You testified that on one or two occasions Mr. Joyal had said that he would pay you well for the services ?
“A. Yes, he did.
”Q. You never testified on that trial that you expected pay for the child, did you ?
“A. Yes, sir; I always expect to get pay for it.”

No testimony was offered on the part of the defendant. The court interpreted the first talk as having reference to the sickness only. We are of the opinion that the whole testimony should have been left to the jury to say whether the arrangement was that the service was to be paid for, or, on the other hand, was a voluntary taking of the girl as one of his family, a sort of adoption, without offer or promise of compensation. See 29 Cyc. p. 1611, and notes.

The judgment is reversed, and a new trial ordered.

Ostrander, O. J., Bird, Moore, and McAlvay, JJ., concurred.