author: Per Curiam.

text:
    GAFFNEY v. GOODWILLIE.
    1. Master, and Servant — Workmen’s Compensation Law — Personae Injuries — Appeal and Error.
    On certiorari to review an award of the industrial accident board, under the workmen’s compensation law, where there was evidence to support the finding of the board that plaintiff’s decedent’s death was caused by a fall while in defendants’ employ, the award will not be set aside.
    • 2. Same — Review.
    A finding of the board that defendants were negligent in reporting said accident, and had subjected themselves to the imposition of a penalty of $50 under section 17, part 3, of the statute, but no order imposing a penalty or levying a fine was made, will not be reviewed by this court, there being no order to he reversed or affirmed.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      Certiorari to Industrial Accident Board.
    Submitted October 24, 1918.
    (Docket No. 82.)
    Decided December 27, 1918.
    Ellen Gaffney presented her claim for compensation against James G. Goodwillie and David L. Goodwillie, copartners as- Goodwillie Brothers, for the accidental death of plaintiff’s husband in defendant’s employ. From an order awarding compensation defendants bring certiorari.
    Affirmed.

      James C. Wood, for appellants.

      Virgil I. Hixson, for appellee.
   Per Curiam.

The board of arbitration refused, two to one, to award compensation. . Upon a review by the industrial accident board, the finding was reversed and compensation allowed. It is admitted that the claimant is widow of the deceased, John Gaffney, that John Gaffney was employed by Goodwillie Brothers, and that both the employer and employed were governed by the workmen’s compensation law, that on October 20, 1916, John Gaffney suffered an accidental personal injury arising out of and in the course of his employment, that John Gaffney has since died, that if the claimant is entitled to compensation the award should be for 300 weeks at $5.77 per week. It is not admitted, but is denied, that John Gaffney upon the said occasion received any considerable injury, one that disabled him or resulted in his death. What happened, and the testimony is not in dispute, was, that in taking a board from a machine, another board following it through the machine pushed the board in Gaffney’s hands with such force that he was obliged to step back from the machine, or was pushed back from the machine, against and over and upon a truck from which he fell or rolled to the floor. He immediately arose and resumed work, without complaint except to say that his right hip was hurt. This was early in the forenoon. He worked the remainder of the day. He died December 29, 1916, having been ill from and after October 20,1916. All the testimony supports the conclusion that he was a sick man on Monday, October 23, 1916, suffering acutely, and thereafter, with variations of acute symptoms, until he died.

Whether what happened to Gaffney at his work, on October 20th, caused his illness and death is the subject to which a considerable mass of testimony, medical and other, is addressed. In a lengthy finding and opinion, the board has set out its reasons for awarding compensation, in the course of which occurs the following:

“It is pretty difficult to say just how hard the man was struck, shoved or pushed, but the fact remains that he was struck, shoved or pushed and went backward three feet and fell upon a truck twelve or fifteen inches high and rolled over it and fell upon the floor. The board is convinced that the accident was a somewhat serious one, taking all of the testimony into consideration, and that it did injure the deceased very seriously and severely. * * *
“We are all satisfied that the factor which caused this man’s death was the accidental, personal injury he received in the respondent’s plant, on October 20, 1916. * * *
“In this case it is probably impossible to say, with absolute surety, what caused John Gaffney’s death, but the board is satisfied that the most probable cause is the accidental personal injury he received in the employ of the respondents. That injury might or might not have caused the death of a young, strong, healthy, normal individual. Taking the testimony as a whole, the board is of the opinion that the accidental personal injury was the cause of his death.”

And the board finds specifically:

“That on October 20, 1916, John Gaffney, deceased, suffered an accidental, personal injury, arising out of and in the course of his employment by being struck, shoved or pushed by a machine and a board, causing him to fall upon and over a truck and to the floor of the mill in which he was working.
“(c) That, as a result of said accidental, personal injury, he was disabled from and after October 2Ó, 1916, until his death, on December 29, 1916.”

We are concerned only to ascertain, it being asserted to the contrary, whether there is testimony supporting the finding and conclusion of the board. We are not all of us satisfied that we would reach the same conclusion; which, of course, is not the controlling thing. We shall not set out the testimony. Any analysis of it leaves some ultimate facts to depend upon inferences. But it remains that Mir. Gaffney, a man more than 65 years old, was in fact diseased, suffering from an advanced stage of arterio sclerosis. He had been able- to work, but to quote from the medical testimony:

“A person with arterio sclerosis, as I discovered ' upon post mortem, this man had had, would be more likely to be affected by a fall than if he was hot suffering with that.”

And again:

. “A man suffering with arterio sclerosis in the advanced stage which we found in this man,- must have a weak heart He is living, more or less, in the balance and waiting for some cause to-intervene to throw him in a state of acute illness, then, any trivial influence, whether exposure or whatever else it might be, might give him broncho-pneumonia or produce evidences of congestion of the kidneys or any other acute disease which takes these people off.”

The testimony cannot be harmonized. We find ground for saying that the board had before it some evidence tending to prove that the fall which Mr. Gaffney had set up a train of physical disturbances, affecting an existing pathological condition in such way as to cause his death. We, therefore, decline to set aside the award.

The board, at some length, enters into a discussion. of the conduct of the employer and concludes:

“(e) That the respondents, without any cause or reason, failed and neglected to report this accident to the industrial accident board, in accordance with section 17, part 3, of the workmen’s compensation law, and subjected themselves to the imposition of the penalty of fifty dollars ($50.00) mentioned in said section of the law.”

The law provides that an employer who refuses or neglects to make the report “shall be punished by a fine of not more than fifty dollars for each offense.” Counsel for appellants directs our attention to this finding of the board, discusses the facts relating to it and adds that “the imposition of a penalty upon defendants is wrong and should be reversed.”

We are concerned only with the order made by the board, which makes no reference to the matter. The board has not imposed a penalty or levied a fine. Upon this subject, there is no order to be reversed or affirmed. We, therefore, do not regard the point as one for decision.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    PEOPLE v. MILLER.
    Criminal Law — Information—Pure Pood Laws — Oleomargarine —Labeling—Statutes.
    In a criminal prosecution, evidence that defendant sold oleomargarine, or a substance resembling butter, artificially colored with annotta, without labeling the same as required by section 1, Act No. 63, Pub. Acts 1913 (2 Comp. Laws 1915, § 6395), is insufficient to sustain a conviction under an information charging violation of said act, since the definition of oleomargarine, which may be lawfully sold when properly labeled, under section 6 of said act, excludes artificial coloring matter, and if the substance which defendant sold had been labeled as provided in said act, the sale would still have been unlawful and in violation of Act No. 22, Pub. Acts 1901 (2 Comp. Laws 1915, § 6393).
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted October 17, 1918.
    (Docket No. 115.)
    Decided December 27, 1918.
    Michael Miller was convicted of violating section 1 of Act No. 63, Pub. Acts 1913.
    Reversed, and respondent discharged.

      James Harris, for appellant.

      Alex. J. Groesbeclc, Attorney General, Lee H. Pryor, Assistant Attorney General, and William C. Brown, Prosecuting Attorney, for the people.
    Respondent was informed against, charged with violating section 1, Act No. 63, Pub. Acts 1913 (2 Comp. Laws 1915, § 6395), which provides:
    “No person shall sell, expose or offer for sale or exchange, or have in his possession with intent to sell or exchange, any oleomargarine or other substance made in imitation of butter, and which is intended to be used as a substitute for butter, unless each and every vessel, package, roll or parcel of such substance has distinctly and durably printed, stamped or stenciled thereon in black letters the true name of such substance, in ordinary bold faced capital letters, not less than five line pica in size; and also the name and address of the manufacturer, in ordinary bold faced letters, not less than pica in size.”
    The testimony for the people (none was introduced for respondent) tended to prove that an inspector of the food and drug department of the State called at respondent’s store — was inspecting it — and found a quantity of what respondent called butter, on a platter, in rolls. Respondent told him that he bought it from a farmer. The substance looked like butter. Witness bought about a third of a pound of it, put his seal on it, and took it to the State analyst to be analyzed. There was nothing printed in the substance, stamped or stenciled on it, or on the package or roll, in black letters or otherwise. There was no sign in respondent’s store that oleomargarine was sold there. The sample was analyzed. The analyst testified that it was oleomargarine, artificially colored with annotta. On cross-examination, the analyst said: ,
    “This butter I analyzed was of a yellow color. I am positive that the only ingredient that gave it the yellow color was annotta, yes, sir. It was not butter fat. I didn’t make an analysis for the ingredients, merely to determine that it was oleomargarine and not butter. The only purpose for which I made the analysis was to find out whether it was oleomargarine artificially colored. By oleomargarine, I mean something that is not butter, that it is a substitute and sold as butter. I did not find any cream or butter fat in this. I did not look for it.”
    The people having rested, respondent’s counsel made the motion and argument here set out:
    “May it please the court, I desire at this time to make a motion to quash the information and all proceedings, and ask that the respondent be discharged, for the reason that from the testimony given here and the case nladé by the prosecution, that this is not oleomargarine within the law. The definition of oleomargarine, as given by the statute of 1913, reads as follows:
    “ ‘All substances heretofore known as oleomargarine, oleo, oleomargarine oil, butterine,- lardine, suine and neutral; all lard extracts and tallow extracts and all mixtures and compounds of tallow, beef fat, suet, lard, lard oil, vegetable oil, butterine, lardine, suine and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef fat, suet, lard, lard oil, vegetable oil, butterine, lardine, suine and neutral, intestinal fat and offal fat, made in imitation or semblance of butter or when so made, calculated or intended to be sold or used as butter or for butter.’ [2 Comp. Laws 1915, § 6400.]
    “But it does not include coloring matter, and when coloring matter is used in oleomargarine, it produces a substance or compound not recognized in the law as oleomargarine.
    “Now, I desire to call your attention to the fact that this is not oleomargarine as recognized in the statute. As I remember, there have been three laws passed governing the manufacturing and sale of oleomargarine. The first was passed in 1899, regulating the manufacture and sale of oleomargarine or imitation butter; the next was passed -in 1901. This was a statute to prevent deception in the manufacture and sale of imitation butterine. Now those two laws remained in force until the year 1913 — we had two laws governing and regulating the manufacture and sale of oleomargarine or imitation butter.
    “In 1913, which was the time the law was enacted, a new law was passed which repealed that of 1899, and the act of 1913 is practically a re-enactment of the law of 1899. Thus we have, at this time, two laws regulating the manufacture and sale of oleomargarine, that of 1901 and that of 1913. Now, I call your honor’s attention to the fact that this case, as made by the testimony of the prosecution, comes under the law .of 1901, which is an act to prevent deception in the manufacture and sale of imitation butter or oleomargarine. Citing authorities.

      “This proceeding is brought under the wrong statute, and if respondent is liable at all, proceedings should be instituted under the law of 1901, and not under that of 1913.”
    The motion was denied, respondent excepted, the jury was charged and returned a verdict of guilty. In denying the motion, the learned trial judge said:
    “The act of 1901 did not prohibit the sale of oleomargarine in a separate and distinct form or in such manner as would advise the consumer of its real character, free from coloration or ingredient that caused it to look like butter. The respondent in this case is not charged with any offense under that statute. The statute of 1913 is silent upon the question of whether there is color included or not and provides that a person making a sale of oleomargarine or other substance made in imitation of butter, shall inform the purchaser and deliver to the purchaser a separate and distinct label on which is plainly and legibly printed, stamped or stenciled thereon, in black letters, in boldfaced capital letters, the true name of such substance. This information charges the respondent with making a sale of oleomargarine without having durably printed, stamped or stenciled thereon, in black letters, the true name of such substance. The matter of coloration has nothing to do with this. The motion to quash is overruled.”
    The record is brought here upon exceptions before sentence.
   Ostrander, C. J.

(after stating the facts). Respondent is charged with having in his possession and with selling, not stamped, “a certain mixture commonly known as oleomargarine.” The proof is that he sold a substance, not butter, but a substitute for it, artificially colored with annotta to give it a yellow color.

Section 6 of said Act No. 63 reads as follows:

“For the purpose of this act certain manufactured substances, certain extracts and certain mixtures and compounds, including such mixtures and compounds with butter, shall be known and designated as ‘oleomargarine,’ namely: All substances heretofore known as oleomargarine, oleo, oleomargarine oil, butterine, lardine, suine and neutral; all mixtures and compounds of oleomargarine, oleo, oleomargarine oil, butterine, lardine, suine and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef fat, suet, lard, lard oil, vegetable oil, butterine, lardine, suine and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef fat, suet, lard, lard oil, vegetable oil, intestinal fat, and offal fat, made in imitation or semblance of butter, or when so made, calculated or intended to be sold or used as butter or for butter.”

In Jasnowski v. Judge of Recorder’s Court, 195 Mich. 269, a person was informed against, charged with selling a certain quantity of oleomargarine containing foreign yellow coloring matter which caused said oleomargarine to have the appearance and be in imitation of yellow butter produced from the pure milk and cream of the cow. The information was laid under the provisions of Act No. 22, Public Acts of 1901 (2 Comp. Laws 1915, § 6393), the first section of which reads:

“No person, by himself or his agents, or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product or compound made wholly or in part out of any fat, oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream of the same: Provided, That nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.”

The information was quashed upon motion of respondent, the trial court being of opinion that Act No. 63 of the Public Acts of 1913 repealed the law of 1901. In reversing the ruling of the trial court, we held the acts not to be in conflict with each other, saying:

“The respondent may sell oleomargarine — the substance defined in the act of 1913 — by complying with the conditions of the act, and may not sell oleomargarine containing an ingredient or matter not named in the statute of 1913, introduced for the purpose of coloring the substance to imitate yellow butter.”

We said further:

“What oleomargarine is is defined in the law of 1913. The definition excludes coloring matter. If matter is introduced for the purpose of coloring it, a compound not recognized in the law as oleomargarine is produced.”

And see Bennett v. Carr, 134 Mich. 243. What was said in Jasnowski v. Judge of Recorder’s Court was not obiter. The conclusion could have been reached upon no other reasoning. The conclusion which was reached denied the contention that after the law of 1913 became effective it was lawful to sell oleomargarine artificially colored.

Both acts referred to are police regulations. They must be read and considered together. If we do this, it is apparent that respondent was not required to stamp or stencil the substance which he sold. Impliedly, he was forbidden to do so. If he had complied exactly with the law of 1913, he would still have made an unlawful sale. Indeed, he would have added deceit to deception, used a label in apparent compliance with one law to aid in the violation of another. The law of 1913 relates to the stamping and stenciling of a substance which when stamped and stenciled may be used, a substance defined in the act itself, a definition which excludes artificial coloring matter.

Applying what was said in Jasnowski v. Judge of Recorder’s Court, supra, we are of opinion that the evidence did not sustain the information and that the conviction should be set aside and the respondent discharged.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    CARLISLE v. DUNLAP.
    1. Foreclosure — Mortgages — Inadequacy of Price — Statutory Foreclosure.
    Inadequacy of price bid for mortgaged property at the statutory foreclosure sale will not vitiate such sale if otherwise fair and regular, since the legislative act has determined the conditions on which rights shall vest or be forfeited, and the court cannot interpose conditions or qualifications in violation of the statute.
    2. Same.
    On appeal from. the decree of the court below dismissing plaintiff’s bill to set aside a mortgage foreclosure, in the absence of evidence of fraud, mistake, unfairness, or irregularity, the decree will be affirmed.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted October 16, 1918.
    (Docket No. 62.)
    Decided December 27, 1918.
    Bill by Jessie Carlisle against Mary E. Dunlap and others to set aside a mortgage foreclosure. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Thomas W. Payne (George W. Coomer, of counsel), for plaintiff.

      William E. Baubie, for defendants.
   Ostrander, C. J.

The plaintiff borrowed $172.50 and to secure its payment executed a second mortgage upon certain real estate in Detroit to Mary E. Dunlap, as well as a promissory note, bearing interest at 4 per cent, per annum, payable monthly, due nine months after date. This was on May 26, 1914. She paid various sums, amounting in the aggregate to $75 —September 1,- 1914, $60; April 16, 1915, $10; May 7, 1915, $5. The property mortgaged is familiarly known as No. 479, Military avenue, and was leased by the plaintiff to a tenant or tenants.at a monthly rental. The first mortgage upon the property was for the sum of $1,700 and was held by the Wayne County and Home Savings Bank of Detroit.

In paragraphs 5, 6 and 7 of the bill it is charged, and is admitted in .the answers—

“that on, to wit: the eighteenth day of September, 1915, said Mary E. Dunlap caused a notice to be published in the 'Detroit Courier’ that default had been made in the payment of said mortgage by your oratrix, and there was due and owing on account thereof the sum of $105.41 and that pursuant to the power of sale contained in said mortgage, the said premises were to be sold to, the highest bidder on the twenty-third day of December, 1915, at the southerly^ or Congress street entrance of the Wayne county building in said city of Detroit, pursuant to the statute in such case made and provided.
“6. That pursuant to said notice the sheriff of said county did offer said premises for sale at said time and place, and did sell the same to Donald D. Williams for the sum of $147.96; and did execute the usual sheriff’s deed therefor.'
“7. That afterwards on, to wit: the fifth day of January, 1916, said sheriff’s deed, together with the evidence of sale, was recorded in the office of the register of deeds for said Wayne county, pursuant to the statute in such case made and provided, in liber 1032 of deeds, on page 136, to which for greater certainty your oratrix begs leave to refer.”

It is further charged (paragraph 9 of the bill) that the sheriff’s deed and said foreclosure proceedings are wholly void, but no reason for this charge is given unless we infer that the reason is given in the preceding paragraph of the bill, in which it is charged that Mary E. Dunlap was not the owner of the mortgage on September 18, 1915, but had theretofore assigned it to another, who had in turn assigned an interest to still another person.

It is charged that plaintiff has tendered and offered to pay the full amount of the debt, which offer was refused. It is prayed that a decree be made that the said foreclosure proceedings are void, that plaintiff be permitted to deposit with the court the amount due and owing on account of the note and mortgage, and that the mortgage be discharged. The bill was filed February 8, 1917, and is verified. The cause came on to be heard June 27, 1917.

The testimony being concluded, the learned trial judge said:

“The equities are all with Mrs. Carlisle. If there is any way in which I can give her a deed to this property I am going to do it, and if I cannot do it, I shall have to sustain the sale.”

On October 24, 1917, a decree was entered dismissing the bill. Dated December 1, 1917, filed December 6, 1917, an order was made staying proceedings pending an appeal. Dated the same day and filed December 3,1917, plaintiff claimed an appeal, notice of which was given to solicitors for the defendants, if it was given at all (there is no evidence of its service in the record), May 2, 1918, or at about that time, with notice, also, of the filing of a bond on May 2, 1918. Later, on application to the Supreme Court, time for taking an appeal was extended to July 1, 1918. The case was settled and signed June 8, 1918.

In this court, plaintiff rests her right to a decree permitting her to redeem the premises upon grounds stated in the brief as follows:

“First. The inadequacy of the consideration for which the mortgaged premises were sold.
“Second. The method pursued in conducting the foreclosure proceedings, and in not notifying plaintiff that proceedings to foreclose the mortgage were pending, so as to afford her an opportunity to pay and discharge the mortgage.
“Third. The power of a court of equity to grant relief against forfeitures.
“Fourth. The right of redemption from foreclosures in general, and the time in which proceedings therefor may be instituted.”

This presents a single ground, which is the inadequacy of the sum bid for the property at the foreclosure sale, and this ground is not asserted in the bill of complaint. At the hearing, the testimony for plaintiff being concluded, counsel for plaintiff was asked by the court: “On what ground, Mr. Payne, are you seeking to have this set aside?” and he replied, “On the ground that Mrs. Carlisle had not received notice.” Assuming that the bill may be ordered to be amended in this court so as to assert the ground for relief now relied upon, and any other ground which the testimony has disclosed, we are, in examining the first proposition, confronted with the rule that inadequacy of price cannot vitiate such a sale, if otherwise fair and regular. The reason for the rule is stated clearly by Mr. Justice Campbell in Cameron v. Adams, 31 Mich. 426, 428. He said:

“If the sale had been made under the decree of a court, the authorities cited on the argument would bear very strongly in favor of relieving complainant. Courts of equity have large powers for relief against the consequences of inevitable accident in private dealings, and may doubtless control their own process and decrees to that end. But we think there is no such power to relieve against statutory forfeitures. Where a valid legislative act has determined the conditions on which rights shall vest or be forfeited, and there has been no fraud in conducting the legal measures, no court can interpose conditions or qualifications in violation of the statute. The parties have a right to stand upon the terms of the law. This principle has not been open to controversy, and is familiar and elementary.”

It is not now contended that this sale was not fair and regular. If we were to go farther and to examine the facts disclosed, it would appear that plaintiff had a home and address at 479 Military avenue, and that it was the address she gave to the agent of the mortgagee when she borrowed the money. It would further appear that as early as March 17, 1915, a letter addressed as above was written and sent to plaintiff, informing her that the mortgagee had placed the note given with the mortgage in the hands of attorneys for collection with instructions to foreclose the mortgage immediately and that the matter would be held until Monday, March 22, 1915. On April 1, 1915, plaintiff by letter excused herself for not calling upon the attorneys; on April 10, 1915, they wrote to her to the effect that they would hold the matter until the 15th instant, when, not having heard from her, they should institute proceedings. Plaintiff then paid $10 on the debt — she left the money at the office of the attorneys, who acknowledged receipt of it in writing and said they should expect at least $10 on the 1st and 15th of each month until the debt was paid. Under date May 12, 1915, plaintiff wrote that she had been very sick.

“I don’t know what to say about the payment I promised to pay. I do wish you could stand that lady off for a while until I get the necessaries straightened up. I’m not going to be so poor all the time’ and I’ll make it all right with you. Fix it up some way & just so soon as get around to it, I’ll call to your office. Trusting everything will prove out all right, I remain.”

Receipt of this letter was acknowledged and it was said in the letter that a payment of $15 on or before June 1, 1915, was expected, and, if not made, foreclosure would be begun on that date. Following this, letters were written and sent to her August 3, September 1, December 30, 1915. In the letter last mentioned, she was notified that on December 23, 1915, the premises were sold by the sheriff under the power of sale in the mortgage, notice of the sale having been published in the Detroit Courier; that the premises were sold for $147.90; that she might redeem by paying that amount to the register of deeds, otherwise, etc., etc. On January 8, 1917, plaintiff having done nothing in the premises, a letter was addressed to her tenant, notifying him to vacate the premises. Again, on January 25, February 3, and February 20, 1917, letters were written to the said tenant, arrangement having been made with him to pay rent at $30 per month. In January, 1917, suit was instituted before a circuit court commissioner to obtain restitution of the premises. Plaintiff and her tenant were both summoned. Plaintiff has never made a tender of the amount due upon the mortgage or of the amount' for which the premises were sold. She testified that she had never received some of the letters which are above referred to, and her tenant testified that they had not been delivered at 479 Military avenue. But the testimony on the part of defendants is that each letter was addressed as above stated, that the envelopes bore the return card of the office from which they were sent, that they were, mailed in due course and were not returned. We may say, therefore, there is no evidence of fraud, mistake, unfairness or irregularity. On the other hand, money has been expended upon the property by the purchaser at the sale, taxes and the interest on the first mortgage have been paid. Repeating the language of Mr. Justice Campbell:

“Where a valid legislative act has determined the conditions on which rights shall vest or be forfeited, and there has been no fraud in conducting the legal measures, no court can interpose conditions or qualifications in violation of the statute. The parties have a right to stand upon the terms of the law. * * *
“The case is one of much hardship, and it is much to be regretted that the complainants have been deprived of their estate by the rigorous effect of provisions which také no account of misfortunes. But courts of equity cannot assume any censorship to condemn parties for doing what the courts cannot prevent. They can only redress wrongs within their jurisdiction.”

The decree must be affirmed, with costs to appellees.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    MONGER v. MONGER.
    1. Cancellation of Instruments — Parties—Interest in Subject-matter.
    Where grantor, a man nearly 80 years of age, conveyed a farm, all the property he owned, to his grandchildren, without consideration, which they have since mortgaged and are attempting to sell, a son of said grantor has no such expectancy, reversionary interest, or interest in remainder as to constitute an interest in the subject-matter of the suit entitling him to file a bill to set aside said deed, for an accounting, and to restrain defendants from disposing of the land.
    2. Same — Equity—Jurisdiction—Delay in Prosecuting Appeal.
    While a court of equity might retain the bill as an injunction bill only until the final determination of a pending inquisition to determine the grantor’s mental competency, upon the single ground that in the event of threatened dissipation of said property plaintiff and his sister would be liable in law for the support of their father, where there has been ample time to conclude said inquisition, and a delay of about a year in bringing the cause on for hearing, on appeal from the order of the probate court, the bill will be dismissed.
    Appeal from Berrien; Bridgman, J.
    Submitted October 22, 1918.
    (Docket No. 99.)
    Decided December 27, 1918.
    Bill by Joseph H. Monger against Esther E. Monger and others to set aside a deed, and for an accounting. From an order denying a motion to dismiss, defendants appeal.
    Reversed, and bill dismissed.

      Oady & Andrews, for defendants.
   Ostrander, C. J.

Henry R. Monger, widower, is father of Joseph H. Monger and Mary E. Foster, and grandfather of Esther E., Dwight M. and Vera M. Monger, who are children of a deceased son. These are the only heirs at law of said Henry R. Monger. Henry R. Monger was 80 years old in November, 1916. He owned a small farm — some 31 acres — worth some $6,000. He owned and owns no other property. This land he conveyed by warranty deed, May 6, 1916, to his said grandchildren, and they recorded the deed. The grandchildren have listed the- said land for sale. They have mortgaged the land for $756.81 and are dissipating the money. If the land is sold, the money received therefor will be squandered and the aged grantor become a charge upon the public or upon his children. No consideration was given for the conveyance or for the land by the said grantees. The said grandchildren lived with their grandfather upon the farm, but in December, 1916, they moved said Henry R. Monger from the farm into the city of Benton Harbor, where he lives, sick and confined to his bed, in the home of his said grandchildren. It is believed that the said grandchildren conspired together to persuade and induce the said Henry R. Monger to convey the said farm to them and by persuasion and influence overpowered his weak and feeble mind so that he made the said conveyance, although his living children and he are.and have been upon good terms and no reason is known for his action in so conveying away his property. »

The facts above stated appear in a bill of complaint filed December 26, 1916, by Joseph H. Monger, son of said Henry R. Monger, who prays that the said deed may be set aside and held to be void and the grantees therein be made to account to the grantor and plaintiff and his sister for all property and moneys which have come into their- hands by reason of the premises and that they be meantime restrained from disposing of the land.

Additional facts charged in the bill are that in July, 1916, the daughter of the said grantor applied to the probate court for the appointment of a guardian of the person and property of Henry R. Monger, alleging in her petition that he was mentally incompetent to manage his affairs; that there was a hearing, upon which the petition was dismissed and an appeal was taken to the circuit court from the order of the probate court and is pending. There is no averment touching the ages or pecuniary responsibility of the grandchildren. It is assumed that they.are not infants. The grandchildren made defendants in the bill moved to dismiss it upon the ground that the plaintiff, upon the face of the bill, has no interest in the subject-matter of the suit and is not entitled to the relief prayed for. Coming on to be heard, the motion .was overruled July 25, 1917, as was also a motion to dissolve the injunction, and plaintiff was given 15 days in which to file an amended bill and make the guardian of Henry R. Monger a party to the suit. No costs were given. The demurring defendants have appealed from this order, leave to do so having been granted by this court. No brief for plaintiff has been filed; the cause was submitted without argument.

Recognizing the rule that a plaintiff must have some interest in the subject-matter of the suit he begins, the learned trial judge was of opinion that here such an interest might be an expectancy, a reversionary interest, or interest in remainder, and that upon the allegations of the bill the heirs of Henry R. Monger had a direct interest. We cannot agree with this. There is a single ground upon which a court of equity might retain this bill as an injunction bill only until the final determination of the pending inquisition, and that is that in the event of threatened dissipation of the property the plaintiff and his sister would be liable in law for the support of their father. We have consid-' ered whether such an order ought to be made. We have said that the bill was filed December 26, 1916, the order appealed from made July 25, 1917. The case Was settled October 29, 1917, and the printed record received by the clerk of this court November 16, 1917. Not until the October term, 1918, was the cause brought on for hearing. There has been ample time to conclude the inquisition begun in probate court and pending in the circuit court when the bill was filed.

We conclude that an order should be entered reversing the order of the court below and dismissing the bill, appellants to recover costs of this appeal.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    SCHANNING v. STANDARD CASTINGS CO.
    Master and Servant — Workmen’s Compensation Act — Personal Injuries — Hernia—Accidental Injury.
    On certiorari to review an award of the industrial accident board, under the workmen’s compensation act, where there was evidence to support the finding of the board that plaintiff was accidentally injured in defendant’s employ, while pulling a truck, causing a rupture, the award of the board will be affirmed.
    See notes in L. R. A. 1916A, 23: L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted October 18, 1918.
    (Docket No. 88.)
    Decided December 27, 1918.
    Carl Schanning presented his claim for compensation against the Standard Castings Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire and Life Assurance Corporation, Limited, insurer, bring certiorari.
    Affirmed.

      Thomas A. Lawler and John F. Berry, for appellants.
   Ostrander, C. J.

The award was ten dollars a week for nine and one-half weeks and hospital and medical expenses incurred in the first three weeks. Plaintiffs in certiorari say there was no competent evidence before the industrial accident board from which it could find that an accident which arose out of and in the course of claimant’s employment happened ; that there is no competent evidence that claimant received an injury from the alleged accident or that his alleged disability resulted therefrom.

Claimant says he was injured October 31, 1917. His employer, on November 1, 1917, reported to the board that claimant was involved in an accident, the nature of his injury being a rupture, “Lifting Castings.” A second report was made by the employer November 14, 1917, in which it is stated that the

“Cause and manner of accident, was trucking castings from foundry to rattler room (castings slipping from truck, tried to hold same on, causing a rupture).”

The board found—

“That the unexpected dropping of the truck into the hole with the resultant jerk and unusual strain upon applicant, causing the rupture, constituted an unexpected, unusual and undesigned occurrence, also an unlooked for mishap and an accident within the meaning of the workmen’s compensation act.”

Claimant gave testimony through an interpreter. The interpreter’s statements were:

“He says he was handling iron, called bulldog. Him and another fellow, and the iron was weighing between five and six hundred pounds. They placed it on a truck, and as the other fellow jerked the truck, he hurt his back. * * * After that, he could not work, and he went immediately to consult a physician. * * * He says the other fellow was pulling, and he was pushing, and the truck fell into a hole and that is what gave him the jerk.”

Giving the name of the physician he consulted, and asked what was done for him, he proceeded:

“He says he took him to the drug store and bought him a belt, and after that he was going to him and taking treatments.”

Inquired of about the position of the belt on his body, he said:

“He put it across his back and the side of his limb. He says he still has it on now.”

Claimant returned to work January 5, 1918, and of the interim he testified:

“He says the doctor told him not to go to work any sooner, and he got kind of disgusted because he thought the belt wasn’t good and he said he didn’t want to give him another belt, and he says: Tf you want to go to work, you can go to work.’ ”

The physician was not examined, it being stated that he was in the army. Further testimony was given by claimant to the effect that he first felt pain in his back, then in his privates, that he was advised by the doctor to have an operation performed and refused to do so. When he was hurt he reported to his foreman, telling him he could not work and that he had hurt his back. Claimant made a statement December 5, 1917, which was written down by the one to whom it was made, in English, and was read to claimant by a German acquaintance in German, the friend undertaking to translate the English into German'. This statement is to the effect that while picking up a casting from the floor to place it oñ a wheelbarrow he felt a pain in his back and stopped work and went home.

“When I stooped to pick this casting up, a sharp pain caught me in the back, and I couldn’t straighten up; after I got straightened up, I went to the office to report, and then went to the doctor’s office.”

Claimant Was examined with reference to this alleged statement and denied having given it as it reads. The man With whom claimant was working was a witness. He gave testimony corroborating that given by claimant except that it is his recollection that he was pushing the truck and claimant was pulling it. He testified that the truck dropped in a little hole “and raised him up like that.” Upon béing recalled, claimant testified, as the record is understood, that he was pulling “and the other fellow was pushing.”

It is the province of the board to weigh evidence and draw inferences therefrom. We cannot say there was no evidence to support the finding. If, in pushing or pulling the truck by its handles, one or more of its wheels dropped into a hole, jerking claimant in such a manner as to cause a rupture, it was an accidental injury. Robbins v. Original Gas Engine Co., 191 Mich. 122.

The award is affirmed.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    McGRATH v. McGRATH.
    Cancellation of Instruments — Mortgages—Husband and Wife —Equity.
    Where defendant husband, in partnership with his son, sold his interest in the business to the son, the latter assuming a certain debt as part of the consideration of the purchase, but failed to pay the debt, defendant never having been released by said creditor, and the wife voluntarily gave a mortgage on property which, she owned to satisfy said debt, without taking an assignment of the demand against the husband, the mortgage is valid in the hands of the latter, to whom it was assigned, and the wife cannot maintain a bill to have the same annulled, no duty, no enforceable equity oin the premises, arising from the marital relation, and plaintiff is in the same position she would be if she were not the wife of defendant.
    Appeal from Gogebic; Cooper, J.
    Submitted October 11, 1918.
    (Docket No. 48.)
    Decided December 27, 1918.
    Bill by Mary E. McGrath against John McGrath to annul a mortgage. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      Herbert M. Norris, for plaintiff.

      James A. O’Neill, for defendant.
    The bill is filed to annul a real estate mortgage and the notes evidencing the debt secured by it, and to compel the assignee of the mortgage to discharge it of record. The answer of defendant says that plaintiff does not own the mortgaged property, claims the benefit of a cross-bill, and for relief asks that plaintiff be decreed to convey the land to him, although it is admitted that plaintiff has the legal title to the premises. The plaintiff is wife of the defendant, and most of the facts are not in dispute. The story told by the evidence may be related in few words.
    The defendant was in business as a blacksmith and otherwise at the city of Ironwood in the month of April, 1909, at which time he turned his business over to his adult son, upon the agreement that the son was to pay $739 for the stock and $50 a month rent for the property. Prior to that time, the son had no interest in the blacksmith business, but, under the style John McGrath & Son, was interested with his father in the “log loader business.” In the blacksmith business, the son worked for a salary. A part of the agreement made by the two in April, 1909, was that the son should collect the “log loader bills” and pay a certain debt owed to Nichols, Dean & Gregg, of St. Paul, Minn. This debt was for supplies, some for the blacksmith business, and owed by John McGrath, and some for the other business, owed by the said partnership. The exact proportions are not stated, but an agent and salesman of the vendors estimated that 90 per cent, of the unpaid account was the ac4 count of the partnership or of the son. The vendors did not know of the arrangement made by the father and son and never released John McGrath as debtor. There was enough money coming due on “the log loader bills” to pay the debt, and it was all of it collected. John McGrath went “west” and was gone two years and eight months. His son continued the blacksmith business, and was somewhat advised therein by his mother, the plaintiff, who looked to the business, to some extent, at least, for her living. Nichols, Dean & Gregg were not paid and were pressing for payment of their debt. Under date July 18, 1911, plaintiff executed to them a mortgage upon certain premises, to which she had the legal title, to secure the payment of $565.29, with interest, payable in installments, according to seven notes which she made. This mortgage defendant acquired from the mortgagees in March, 1914, taking an assignment thereof to himself and recording it. This is the mortgage which plaintiff seeks to have discharged.
    The real estate described in the said mortgage is the north 40 feet of lot 11, block 31, plat of the city of Ironwood. In her bill, plaintiff charges that she is owner in fee simple of lot 11, block 31, city of Ironwood. The testimony for plaintiff shows a warranty deed of the south 100 feet of said lot to John McGrath and Mary E. McGrath, his wife, and a warranty deed of the north 40 feet of said lot to John McGrath. There follows in the chain of title, as recorded, a quitclaim deed from John McGrath to Mary E. McGrath of said north 40 feet of said lot, which was recorded February 7,'1903, a quitclaim deed executed by John and Mary E. McGrath to John Francis McGrath, their son, dated October 1, 1902, conveying an undivided one-third interest in said lot 11, and a quitclaim deed from the son to John, his father, dated June 25, 1906, conveying said lot 11. It is the claim of plaintiff that the title to the north 40 feet of lot 11 is in plaintiff and of the south 100 feet she owns an undivided two-thirds interest, her husband, the defendant, owning an undivided one-third interest: This is the interest that defendant, in his testimony, claims in the said south 100 feet of lot 11.
    We have found no testimony to that effect, but it appears to be assumed by counsel that the blacksmith business was carried on on the said south 100 feet of said lot 11, and it is the contention of plaintiff that she gave the mortgage in question to settle a demand which might have been enforced against said south 100 feet of lot 11. She testified that she supposed they (the creditors) could have closed the shop. She further testified:
    “I gave the mortgage because I wanted to hold the property that they threatened to close up or take. Of course I considered that what was my husband’s property was my property. We were partners, that is how I looked at it. I wasn’t posted on the law.”
    No one disputed the validity of this mortgage in the hands of the mortgagees. Plaintiff says:
    “The plaintiff claims that because the indebtedness of John McGrath and John McGrath & Son, was owing by said John McGrath, individually as to the amount contracted by him, while in business by himself, and owing by him as a partner of John McGrath & Son, for the whole of which said indebtedness the individual property of John McGrath was subject to levy and sale on execution at the suit of Nichols, Dean & Gregg, the said Nichols, Dean & Gregg never having been notified of John Francis McGrath’s assumption of said indebtedness and never having accepted John Francis McGrath individually for the payment thereof, and because it was unknown to Mary E. Mc-Grath that there was any dissolution of partnership between John McGrath & Son, or any assumption of individual liability on the part of John Francis Mc-Grath for either the partnership indebtedness or the individual indebtedness of John McGrath, and that because the plaintiff gave the mortgage in question for the purpose of saving the rights of her husband in the south 100 feet of lot 11 and the buildings thereon, from' levy and sale by Nichols, Dean & Gregg, for such indebtedness, that the finding of the court of the facts as they were found and the decrée of the court was properly made and entered, and should be affirmed.”
    On the other hand, the defendant says:
    “1. That under the agreement entered into between the defendant and his son, Francis McGrath, when the latter purchased the defendant’s interest in the blacksmith and log-loading business in 1909, that he would pay the indebtedness then owing to Nichols, Dean & Gregg, and which promise, was a part of the consideration for the transfer of the defendant’s interest, it was, as between the defendant and'his son, the latter’s legal duty to carry out his agreement and pay that indebtedness.

      “2. That plaintiff, having executed the mortgage at the request and for the benefit of her son, and for a debt which the latter had obligated himself to pay, the mortgage was supported by a sufficient consideration and was enforceable against her by the mortgagee, and the mortgage having been assigned to the defendant, he acquired all the rights of the mortgagee.”
    The court entered a decree in which it is found:
    “The title to the north 40 feet of lot 11, block 31, of the original plat of the city of Ironwood, at the time of the commencement of this action, and at the time of the hearing therein, stood in the name of the plaintiff, that the mortgage heretofore given by plaintiff to Nichols, Dean & Gregg, was given to secure an indebtedness, owing to the said Nichols, Dean & Gregg by John McGrath, and by John McGrath & Son, that the partnership between John McGrath and son was dissolved before giving of said mortgage to Nichols, Dean & Gregg, and that John Francis McGrath, son and one of the firm of John McGrath & Son, was to have assumed and paid the indebtedness of John Mc-Grath and John McGrath & Son but that Nichols, Dean & Gregg were not advised of this arrangement and did not release John McGrath from such indebtedness. That such agreement was not known to Nichols, Dean &. Gregg, neither was the same known to Mary E. McGrath, the plaintiff herein, that the mortgage given by the said Mary E. McGrath, to Nichols, Dean & Gregg was to secure the indebtedness above named and to prevent Nichols, Dean & Gregg from enforcing their claim against any property owned by John McGrath, that afterwards John McGrath paid Nichols, Dean & Gregg, the indebtedness aforesaid, and took an assignment of the mortgage, so given by the said Mary E. McGrath, to Nichols, Dean & Gregg, to himself, the said John McGrath, instead of having said mortgage discharged of record: and upon these facts, I find as a matter of law and equity: That John McGrath has no right to or interest in said mortgage by virtue of said assignment to him, and that the plaintiff, Mary E. McGrath, is entitled to have such mortgage discharged of record and her title clear from incumbrance thereof.”
   Ostrander, C. J.

(after stating the facts). The case is a singular one., Counsel cite no adjudicated case in point, perhaps could not do so. We have found no case like it. Nor does counsel for the plaintiff point out the duty owed by defendant to plaintiff, performance of which will operate to cancel the mortgage in his hands. No duty, no enforceable equity in the premises, arises from the marital relation. Mrs. McGrath is in no worse and no better position than she would be if she were not the wife of defendant. • She did not pay his debt at his request, nor because her relations with him imposed upon her the duty to pay it. He provided for the payment of his debts. The fact that as between himself and his creditors, the debt not having been paid, he was liable to pay it, made the payment of it by her none the less her voluntary act. She might have had the demand assigned to herself and enforced it, in due season, against her husband and his property. She did not buy the demand, and we think it altogether improbable that she did not understand that as between her husband and her son the duty to pay the debt rested upon the son. We know of no rule which permits a court of equity to treat what was done as an. equitable assignment of the demand against her husband, and no such idea is suggested by her counsel. And if such an idea was entertained, no action to enforce the demand in her hands could now be maintained unless the husband waived the operation of the statute of limitations. It may seem to be an ungenerous, an ungallant, thing that the defendant husband is doing, but we are impressed that the case, in law, is no different from what it would be if he were not her husband. And if he were not her husband, no one, we think, would contend that he had, in buying the mortgage, merely extinguished a debt which the holder of the mortgage might originally have forced him to pay. He does not own the mortgaged property, and there is therefore no merger. His intention to pay the debt is negatived. His right of recourse against the one who agreed to pay the debt is lost.

We feel constrained to reverse the decree and enter a decree here dismissing the bill, with costs.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    PEARSON v. WALLACE.
    Í. Fraud and Deceit — Conspiracy—Evidence—Admissibility.
    In an action for fraud and deceit, with a count alleging conspiracy, based upon' false representations to plaintiff by defendants as to the value of certain gas bonds accepted by plaintiff in exchange for a farm which he conveyed to one of the defendants, and in which transaction the other defendants profited, evidence as to statements and correspondence of one defendant, not in .the presence of other defendants, was admissible, as tending to .prove concert of action and similar false representations made by each of them to plaintiff.
    2. Same — Expert Witnesses.
    Testimony by an engineer, who had made an appraisement of the property of the gas company a year or two before, as'to the value of the property of the company, and therefore as to the value of the bonds,, based in part upon a map in the office of the company, shown to him by the manager, was not objectionable as incompetent, irrelevant, or hearsay.
    3. Same — Evidence—Admissibility.
    Oral testimony that the property of the gas company was then in the hands of a receiver, who was operating the plant, was admissible for the purpose of showing whether the company was in possession of its property, and as bearing upon the value of its bonds, although not admissible for the purpose of proving the legality of the •appointment of the receiver, which should be proved by the record.
    4. Same — Books oe Account- — Evidence.
    There was no error in admitting in evidence the books of the company, and in permitting a witness to testify to what was contained in them, for the purpose of showing the condition of the company and the extent of the business carried on by it, where an expert testified that they apparently showed all receipts and disbursements, also corporate meetings and What was done at them.
    5. Appeal and Error — Party Appealing — Harmless Error.
    Upon a record showing that only one of several defendants appealed from a judgment against all of them, error In the court below in the rejection of evidence bearing on the separate defense of one of the defendants not appealing, will not be considered by this court.
    6. Trial — Instructions—Requests to Charge.
    There was no error in the refusal of requests to charge, where the court fully and carefully presented to the jury the issues and the governing law, embodying in his charge the substance of any request which ought to have been given.
    7. Same — New Trial — Damages.
    Evidence that plaintiff gave a valuable farm, worth at least $5,500, in exchange for bonds secured by property worth less than one-half the face.value of the bonds, that it was represented to plaintiff that the by-products of the company which issued the bonds would pay operating expenses, while in fact there were no by-products of value, and the company had never earned enough to pay operating expenses and interest on its bonded debt, held, sufficient to support a judgment for plaintiff.
    Error to Livingston; Miner, J.
    Submitted October 11, 1918.
    (Docket No. 35.)
    Decided December 27, 1918.
    Case by George J. Pearson against Henry M. Wallace and others for fraud and deceit. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      James H. Pound and Francis J. Shields, for appellants.

      Louis E, Howlett and W. P. Van Winkle, for appellee.
   Ostrander, C. J.

Plaintiff owned a farm of 120 acres in the township of Hamburg, Livingston county, which, in December, 1915, he conveyed by warranty deed to defendant George Gallup, for a recited consideration of $5,650. What plaintiff received for the land, was eleven bonds, issued by the Iron Mountain Light & Fuel Company, for $500 each, the sum of $150 being paid as a commission to the agent, defendant Whaley, who made the sale. Defendant Gallup soon mortgaged the land, but held the title for about a year, when he conveyed it to another. The Iron Mountain Light & Fuel Company is a Michigan corporation, organized in 1906, with a capital of $150,-000, and $149,500 of the capital stock was issued to Alfred W. Glass for the transfer by him to the company of a franchise granted to him by the city of Iron Mountain, Michigan, October 23, 1905. The remaining 5 shares of stock seem to have been sold for $500 cash. Among the original incorporators was defendant Wallace, who seems to have been connected with the company in some capacity until some time in the year 1914. There was an early issue of bonds to the amount of $100,000. In 1912, there was a new issue of bonds for $125,000, used to retire the old issue and pay certain current liabilities, and in July, 1914, authority was given the company to issue $25,-000 additional bonds. The bonds were secured by a mortgage of the company’s property to the Union Trust Company, of Detroit, trustee. The records of the company show no sales of bonds at par and do show all bonds sold below par to net the. company 80 per cent, of par, plus accrued interest. Less than $69,000 of the $120,500 received by the company for stock and bonds sold was invested in a plant. The remainder was expended in various ways. The books of the company do not show that its operations produced any net income; they do show that it never earned enough to pay operating expenses and interest upon its outstanding bonds. Testimony for plaintiff tended to prove that the reproduction value of the plant in December, 1915, was $65,500, and its appraised value $55,200. The bonds which plaintiff acquired were issued in 1912, due in 25 years, and call for payments of interest January 1st and July 1st of each year. There is testimony tending to prove that each of them was at some time held by defendant Wallace. The rate of interest is 5 per cent. Interest coupons were, or are, attached.

It is said in the brief for appellee that—

“There had been a default in the payment of the interest, the company was being operated by the Union Trust Co. of Detroit,”

—but no reference is made to the record and we have not discovered to what time interest was paid. It does appear that at the time of the trial the property was being operated by the Union Trust Company. Plaintiff testified that—

“January 1, 1917, when the coupons became due, I went to Ann' Arbor and clipped the coupons from the bonds and counted the coupons and the bonds, placed the bonds back in my deposit box and presented the coupons to the cashier; he told me there wasn’t any use; that they had sent in some coupons and that they were returned. I had had no suspicion of the bonds up to that time.”

From this and bther testimony it is assumed that plaintiff was paid the interest on the bonds theretofore accruing, and this agrees with the conclusion stated in the brief for appellant.

It is the theory of plaintiff that defendant Whaley, a real estate dealer in Ann Arbor, with whom he had listed his farm for sale, defendant Hammond, who was a bond salesman and occupied offices adjoining to or near Whaley’s office, George Gallup, to whom the farm was conveyed, and Henry Wallace, who paid the rent of the Hammond offices, were acting together, in an attempt, a successful one, to trade him worthless bonds for his farm. His declaration, which was filed in March, 1917, alleges that the said defendants, with intent to cheat and defraud him and induce him to transfer his farm to them, or to one of them, and receive in exchange therefor the bonds of certain gas companies, or of one of them, made certain false and fraudulent representations to him. The alleged representations are set out and as made by all of defendants. This in the first count of the declaration. In the second count, conspiracy of the defendants is alleged, to accomplish the same purpose in the same way. Plaintiff, retaining the bonds, seeks to recover his damages, and asserted and insists that the measure thereof is the difference in the value of the bonds as represented by defendants and their actual value when plaintiff acquired them. That this is the measure of his damages is not denied.

The printed record shows a plea filed by defendant Wallace alone. This agrees with the return to the writ of error filed with the clerk of this court. The printed record and the said return contain no evidence that the othei defendants were defaulted. They joined in suing out the writ of error, and, upon its face, the brief for appellant is filed for all of them. We consider the case as if defendant Wallace alone has appealed.

The testimony for plaintiff tends to prove a concert of action of the defendants and similar false representations made by each of them to plaintiff. At various times several of them were present when some of the representations were made. Defendants Gallup, Hammond, Wallace, and Whaley gave testimony which, if believed, tended to negative any actual concert of action and the máking of false statements respecting the bonds and their value. Upon, all of the testimony, the case was one for a jury as to the liability of all defendants, it was submitted to a jury, and a verdict for plaintiff for $4,408.59 against all defendants was returned, upon which a judgment for a like sum was entered. A motion for a new trial was overruled, the denial excepted to, and in this court 43 assignments of error are presented.

A number of errors are assigned upon rulings admitting statements and correspondence of one defendant, not in the presence of other defendants, the exceptions being based upon the reason that a conspiracy had not first been proven. The statements themselves tend to prove concert of action. Plaintiff’s testimony with other testimony tends to prove that the suggestion that a farm, listed with him to be sold for cash, be traded for gas bonds, came from Whaley, the real estate broker. Consideration of this suggestion brought Hammond and Wallace and Gallup upon the stage, not all at once, but in due season. That these defendants had with each other certain relations is not disputed. If plaintiff is to be believed, each exerted himself to induce in plaintiff the belief that the bonds were as good as cash. The warranted inference from plaintiff’s testimony and from what actually occurred is that Wallace got rid of some bonds and in fact acquired an interest in the farm, while Whaley and Hammond divided a commission as upon a sale of the farm, and each cleverly supplemented the other by the representations made in the effort to bring about the exchange which was made. There is some testimony which supports the conclusion that each knew that the bonds were not what they were represented to be. But, however this may be, it is proven that they made representations respecting them which were in fact untrue, and a general verdict against all' Was returned.

It is assigned as error that an engineer was permitted to testify to facts based upon a map in the office of the gas company at Iron Mountain and to measurements, etc., the objection made to the testimony being that no proper foundation for its admission was laid and that it was incompetent, immaterial, irrelevant and hearsay. The witness was called to prove the value of the property of the gas company and, therefore, the value of the bonds. He had made an appraisement of the property of the gas company, in the year 1915, for the Grand Rapids Trust Company. He testified about the plant, buildings, etc., and said there was approximately nine miles of gas mains. It appears that he arrived at this conclusion from a map, a part of the records of the gas company, showing the situation and extent of its mains. The map, the witness testified, was shown to him by the manager, the man in charge of the company. The witness gave his opinion, his estimate of the value of the property, and stated the factors which he used. We find in the testimony nothing which is incompetent, irrelevant or hearsay. There may have been gas mains besides those indicated by the map. If so, it was a fact to be proven.

A witness was called by plaintiff who testified that the Union Trust Company was then receiver for the Iron Mountain Light & Fuel Company. The objection to the testimony was that it was incompetent and immaterial, and it is argued in the brief that the fact could not be shown by parol. He testified further that the Union Trust Company was in possession of the plant, operating it. To this testimony the same objection was made. This testimony was important as tending to prove, with other testimony, the value of the bonds. Technically, of course, the fact that a receiver of property has been appointed ought to be proved by the record. That is the best evidence. Whether a certain corporation is in possession of property may be proved by any one who knows the fact. Assuming that it was error to receive the testimony of the witness to the effect that the property was in the hands of a receiver, the judgment should not therefore be reversed. The fact was not disputed. The essence of the testimony was, not the legality of the appointment of a receiver, but was that the trustee of the bondholders had, for some reason, taken possession of the property and was conducting its business.

Nor do we find reversible error in the rulings admitting the books of the gas company in evidence and in permitting a witness to testify to what is contained in them, with his mathematical calculations based upon what the books disclose. If a gas company keeps books, if, as an expert in this case testified, the books of account show, apparently, all receipts and disbursements of money, if they show corporate meetings and, apparently, what was done at the meetings, no reason is perceived for refusing to permit their contents to be given to a jury to prove the condition of the company and the extent of the business carried on by it.

The court was right in refusing at the close of plaintiff’s case to direct a verdict for any of the defendants. The reasons for this conclusion have been stated.

It is complained that the defendant Whaley was not permitted to answer whether he had ever owned any of the bonds of this gas company. As affecting his own defense, it would seem that the question was a proper one and that he should have been allowed to answer, although we find no claim made that he ever owned any of the bonds or was doing more than aiding some one else to dispose of the bonds for the farm. As affecting the other defendants, and especially the defendant Wallace, the value of the answer or the prejudicial result of the ruling is not apparent. Defendant Whaley is not, upon this record, one who can question the judgment. In the only brief filed for appellants it is said,

“I insist that both these men, Whaley and Hammond, are not connected with the defendant Wallace, whom I represent.”

This is, of course, addressed by counsel to another point, but it confirms, what the .record indicates, that it is Wallace alone who is rightfully appealing.

All other assignments of error based upon rulings admitting and rejecting testimony have been examined. We find no error in the rulings complained about.

Passing to assignment No. 25, it is:

“The court erred in permitting the jury to speculate as to the amount of damages .resulting from the sale of the _ bonds alleged to have been sold upon misrepresentation by the defendants, as any representations relied upon as to the bonds could not be performed within one year of the making of the same and the amount being above $50, must be in writing, or plaintiff could not recover; and the bonds on their face show that they are not to become due and payable until twenty years and upwards from the time the representations were claimed to have been made and there would be no way of establishing their then value.”

Of this it is said in the brief:

“Assignment 25 interposes the statute of frauds, which, as to the defendant Wallace, it seems to me, as well as all the rest of the defendants, is a complete defense. 3 Compiled Laws of Michigan 1915, § 11981, subds. 1 and 2, and cases cited. This error must be apparent.”

It is not perceived that the statute referred to has any application here.

We have read the requests to charge preferred on the part of defendants and the charge of the court. Without setting them out here, we content ourselves with saying that the charge was a full and careful presentation of the issues, and of the governing law, favorable in some respects to defendants. The substance of any request which ought to have been given is embodied in the charge, the case is a simple one, the issues not complicated or obscure. That plaintiff gave a valuable farm in exchange for the bonds is admitted. The parties agreed upon a value of at least $5,500 for the farm. Undisputed evidence shows that the bonds were not worth par and had never been, that the company which issued them had never earned enough to pay operating expenses and interest on its bonded debt. There was testimony tending to prove that the property securing the issue of bonds was worth less than one-half the face value of the bonds. In addition there was testimony tending to prove that it was represented to plaintiff that the company which-issued the bonds, which made water gas, which had no by-products of value, received enough for the byproducts to pay operating expenses, that the bonds were as good as cash or as wheat in the bin, and were in this case somewhat difficult to secure. Assuming that the defendants were engaged, in concert, in getting rid of the bonds for the owner of them, what was said by each amounted, in the mass, to a cunning presentation of the singular advantages which the holders of such bonds possessed. Whether the claimed representations were made by one or several of defendants, whether they were false or true, whether plaintiff relied upon them to his injury, these questions the court submitted to the jury, plainly, with applicable rules for framing the verdict as the facts were found to be.

We find no reversible error, and therefore affirm the judgment.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.