text:
    BAKER v. BOARD OF ELECTION COMMISSIONERS OF WAYNE COUNTY. RUSSELL v. SAME. SHELBY v. SAME.
    1. Elections — Party Tickets — Relative’Positions upon Ballot —Duty of Commissioners — Mandamus.

      Mandamus will lie to compel a board of election, commissioners, in making up the ballot for use at an election, to comply with section 14 of Act No. 271, Pub. Acts 1895, by assigning to the ticket of the party having the greatest number of votes within the county at the last preceding general election the first place upon the ballot, and to the tickets of all other parties positions governed relatively by the same rule.
    2. Same — Fusion Ticket.
    A state convention of the Democratic party, regularly called, convened on the same day and in the same city with the state conventions of the People’s party, a party which had been represented at the last preceding election, and of the Union Silver party, an organization of recent origin. An arrangement was effected whereby the delegates to the three conventions met together and nominated a fusion ticket, under an agreement requiring a majority of all the votes cast to nominate, and giving .to the Democratic delegates the right to cast one-half the entire number of votes. The ticket nominated was termed the “Democratic People’s Union Silver Ticket,” and a new and distinctive vignette was adopted. Held, that the ticket adopted was not the Democratic ticket, and was therefore not entitled to the place on the official ballot which the Democratic party had a right to demand by virtue of the number of votes cast by it at the last preceding election.
    8. Same — Mass Convention.
    After such action had been taken by the joint convention, a mass convention, composed wholly of Democrats, was held in another city, and this convention placed in nomination candidates for the various offices, and termed its ticket the “ Democratic Ticket.” The convention was not called by officers having authority from the Democratic party as previously organized. Held, that the party, while it was entirely justified in calling its ticket the ' ‘ Democratic Ticket, ” was not the successor of the party as it had existed in the previous campaign so as to entitle its ticket to the position upon the official ballot which would have been accorded to the ticket of the Democratic party, regularly nominated in a convention called and organized by the proper officers.
    4. Same — Certification—Regularity.
    The Supreme Court will not, in mandamus proceedings to compel election commissioners to assign to party tickets the positions upon the official ballot to which they are respectively entitled, inquire into the regularity of the certification of a particular ticket, where it appears from the showing of all the parties that the ticket certified is entitled to a place upon the ballot.
    5. Same — Use of Vignette — Municipal Charter — Statutes.
    The provision of a city charter, inserted in the section which provides for the certification of nominations for city officers by the officers of city committees of political parties, that no vignette shall be furnished or printed on any ballot, is not made ax>plicable to ballots to be cast within the city for other than city officers by a subsequent provision requiring the election commissioners of the county to print all ballots intended for use in the city in the manner prescribed for elections of city officers, but the general statute governs with respect to such ballots.

      Mandamus by Fred A. Baker, chairman of the Democratic state central committee, to compel the board of election commissioners of Wayne county to print the ticket certified by relator as second on the official ballot to be used at the ensuing election.
    Submitted October 15, 1896.
    Denied October 20, 1896.
    Charles P. Russell, chairman of the Prohibition state central committee, filed a like petition. Writ granted.
    W: R. Shelby, assuming to be chairman of the Democratic state central committee, filed a like petition.
    Writ denied.

      Fred A. Baker, in pro. per.

      Myron H. Walker and John Jb Speed, for relator Russell.

      Charles M. Swift, Cyrus F. Lathrop, and William J. Gray, for relator Shelby. '

      Edwin F. Conely, for respondent.
   Montgomery, J.

The relator filed a petition as chairman of the Democratic state central committee, praying for a mandamus to compel the respondent to print the ticket certified by him as second on the ballot to be used in the ensuing election. Charles P. Russell, chairman of the state central committee of the Prohibition party, has also filed a petition, asking that the ticket certified by the officers of his committee be printed second on the ballot. W. R. Shelby, assuming to be chairman of the state central committee of the Democratic party, has also filed a petition, asking that the ticket certified by-the officers of his committee be given the same place contended for by the other petitioners, and also asking that the ticket certified by relator be not given a place on the ballot under the certification of relator as chairman, and of G. Walter Meade as secretary, of the Democratic state central committee.

It will conduce to a better understanding of the case if we state what is not in controversy between the parties. First, it is not contended but that the Baker ticket is entitled to a place on the ballot under a certification by the proper officers of the convention which placed it in nomination. Second, it is conceded that the Shelby ticket is entitled to a place on the ballot, but it is contended by relator that the ticket should not be printed under the name “Democratic.” Relator’s counsel states that he has no objection to the use of the vignette certified, but does object to the use of the name “Democratic.”

The matters in controversy are—

First, whether the ticket certified by relator is entitled to be printed as the Democratic ticket, and to be given the place which the law gives to the party having the second greatest number of votes at the preceding general election, which was admittedly the Democratic party.
Second, if it be held that the Baker ticket is not entitled to the place, whether the Shelby ticket is, or whether the place should be given to the Prohibition party.
Third, whether the relator is entitled to have the vignette certified by the officers of his committee printed on the ballots designed for use in the city of Detroit.

The statute provides (Pub. Acts 1895, Act No. 271, § 10) that the board of election commissioners shall cause to be printed on the ballot the names of the candidates nominated by the regularly called conventions of any party, and that it shall be the duty of the state, district, or county committee of each political party to forward to the chairman of said board of election commissioners of each county in the State a copy of the vignette adopted by them, and the names of all candidates nominated at any regularly called convention at which candidates for any one of the offices mentioned in section 1 of the act shall be nominated. Section 11 provides: “It shall hereafter be the duty of the state committee of any political party or organization in this State, before each election, to prepare and adopt, by engraving or otherwise, a vignette to be printed at the top of the column of such ballot assigned to such party, as a distinctive and characteristic heading thereto. Such vignette shall not be more than one inch and a half square, and, in addition to the device adopted, shall set forth legibly the name of such party.” By section 14 it is provided that “the ticket of the party having the greatest number of votes within the county at the last preceding general election shall be placed first on the ballot, the position of other tickets to be governed relatively by the same rule.” This last-quoted provision is the one which has given rise to the controversy now before the court. It is contended that the provision is not merely directory, but was inserted for the purpose of assigning positions on the ticket which should be understood by the voter, and that it is a matter of right to have the ticket of each party organization occupy the place provided by this statute. We think that, whether the statute providing for a distinct place upon the ballot for each of the several tickets to be voted for was designed simply to avoid confusion, or in part to furnish information to the voter, it is a provision which should be observed in making up the ticket. This being so, it, of necessity, involves some inquiry into the question as to which of the two tickets known as the Baker and the Shelby tickets can be said to be the ticket of the Democratic party, represented at the preceding election.

The reluctance of the courts to enter upon an inquiry, or to permit an inquiry by the election commissioners, into the question of fact as to which of two contending factions truly represents a political party, has been manifested in various cases. State, ex rel. Sturdevant, v. Allen, 43 Neb. 651; Phelps v. Piper, 48 Neb. 724; Shields v. Jacob, 88 Mich. 164. In Shields v. Jacob it was held that the court would not undertake to determine which of two rival conventions resulting from a split in a regularly called convention should be treated as the regular convention of the party, and a mandamus was issued requiring the election commissioners to give to both tickets a place upon the ballot. At the time that decision was rendered, however, the provision requiring that the ticket of the party having the greatest number of votes within the county at the last preceding election should be placed first upon the ballot, and that the position of other tickets should be governed relatively by the same rule, was not a part of the statute, and it was not necessary to determine which of these tickets should be placed first on the ballot. Under the law as it now exists, such an investigation seems necessary, and it would seem that the commissioners did determine the question, and place the Shelby ticket second on the ballot.

The facts in regard to the selection of these two tickets are not in controversy. In certifying the Baker ticket, the relator accompanied his certificate to the commissioners by a petition setting out all the facts which resulted in the nomination of the ticket, together with the manner of its nomination. This petition sets out, in substance, that the petitioner is the successor of the Democratic organization which existed and was represented on the ticket two years ago; that a regularly called convention of the party was held at Bay City on the 25th of August, 1896; that at that date there was also held in the same city a convention of the Union Silver party, an organization of recent origin, which had not taken part in any preceding state election, and a convention of the People’s party; that each of the three conventions appointed a conference committee, which committees endeavored to agree on a division of the offices on the electoral and state ticket, but, being unable to do so, agreed upon a report, which was submitted to each of said conventions, which report was as follows:

“To the Democratic Convention:
“Your committee appointed to meet a like committee from the Union Silver and People’s party conventions met the committee as directed, the Democratic party, the Union Silver party, and the People’s party each being represented by five representatives. The joint committee was organized by electing C. H. McGinley chairman, and A. A. Ellis secretary. After a full statement of the object to be accomplished, the following resolution was adopted: ‘ Resolved, that we recommend a union of all silver forces, and that the vignette upon the ticket be a representation of the silver dollar, and containing the following names and words, in the following order, to wit, “Democratic People’s Union Silver Ticket,” and also a picture of William J. Bryan, the Democratic candidate for president.’
“Your committee further report that, after an earnest effort and much discussion, they were unable, to agree upon the division of the ticket, and fully realizing that it was for the interest of the people of the State that a strong union ticket should be nominated, which would command the entire confidence of the people, the following resolution was unanimously adopted: 1 Resolved, that we report to our various conventions that it is the sense of this conference committee that the name and style of the ticket be as hereinbefore fixed and as above set forth, and that the state and electoral ticket be nominated by a joint convention, to be composed of the members of the several conventions, to be held at once in one hall, and that the several candidates be nominated as above set forth, by a joint convention; the candidate receiving a majority of all the votes cast for the respective offices to be declared the nominee of the convention for said office. Owing to the fact that the Democratic party has the largest representation, the People’s party and the Union Silver party together shall, in the joint convention, be entitled to an equal number of votes cast by the Democratic party in the joint convention.’”

The petition further states that each of the three conventions adopted the report of the committee; that thereafter all the delegates met in one hall, elected a chairman of the joint convention, and secretaries; that, in taking a vote on the nominations, said convention pursued the plan provided by the conference report, and that, at the conclusion of the nominations, said joint convention and each of the three conventions were adjourned without day.

As to the action of the convention which placed in nomination the “Shelby Ticket,” so called, it appears that-a mass convention was held at the city of Lansing, composed wholly of Democrats, and that this conr vention placed in nomination presidential electors, and candidates for the various state offices; that this action was taken after the action of the Democratic convention at Bay City.

We think it cannot be said that the so-called “Baker Ticket” can be treated as the ticket of the organization known as the ‘ ‘ Democratic Party ” two years ago. The ticket results from a combination with two other political parties, one of which had a place upon the ticket, and which would, under the same statute which would assign the Democratic ticket to second place, be entitled to third place. It is true that the convention of the Democrats held at Bay City, doubtless, assented to this ticket, as, likewise, did the People’s party and the Union Silver party; but, as appears from the petition presented by relator himself, neither one of these three parties in the joint convention retained the power to name the candidates of the convention. The Democratic delegates retained precisely one-half the voting power of the convention ; each of the other parties one-fourth. Furthermore, the name adopted by the convention was not the name of the party which had previously been represented on the ballot, and, in every view, the ticket nominated may as well be said to be the ticket of the People’s party as of the Democratic party. The evident purpose was to unite the forces of these various organizations for the present campaign, and the result was the formation of a new party for the time being, under a new name.

Can it be said, then, that the Lansing convention represented the party organization of two years ago, within the meaning of the statute? We think not. While the record shows that the convention was composed wholly of Democrats, and while there is a wide difference in the statement as to the proportion of Democrats who now have or who are expected to give their adherence to this party, yet it was not brought into existence by the action of the machinery of the party to which the calling of conventions had been committed; and, while we have no doubt of the authority of any considerable number of electors to call a convention, we do not think that this convention was a regularly called convention of the Democratic party of two years ago, and for that reason we determine that the ticket nominated is not, under the provisions of this statute, entitled to second place on the ballot. There is no provision of our statute which excludes the formation of new parties. We think this must be deemed in one sense a new party, although we have no hesitancy in saying that it is a party entitled to call itself “Democratic.” As the record shows that the convention was composed wholly of men who had acted with the Democratic party, it certainly can be no imposition upon the voter, or in any way calculated to mislead, for them to head their■ ticket “Democratic,” unless confusion would result from the fact that another party is entitled to that designation. Both by the action of the joint convention at Bay City, and as appears by the action of the Baker committee, it had been resolved to abandon the vignette used two years ago, and the name as well, and adopt a new vignette, with the name “Democratic People’s Union Silver Ticket.” This being the case, we do not think it can be said that the use of the name “Democratic” on the Shelby ticket is calculated to mislead the voter. We do not wish to be understood as expressing the opinion that if the Democratic convention regularly called had resulted in the nomination of a ticket by that convention alone, under the party name, another ticket could be placed in nomination under that name by a mass convention. Such is not the state of facts before us, and on that state of facts we prefer to express no opinion.

It results from the foregoing that in the county of Wayne the Prohibition ticket is entitled to priority over the Baker ticket and the Shelby ticket, and is entitled to second place on the ballot, except in that portion of the county which is a part of the Second congressional district, for which portion the congressional ticket of the People’s party is entitled to second place, and the Prohibition ticket to third place. The Baker ticket and the Shelby ticket should be assigned to the remaining places, according to the judgment of the commissioners.

As regards the certification of the Baker ticket, we do not deem it necessary to pass upon the regularity thereof. As it appears by the showing of all the parties that this ticket is entitled to a place on the ballot, we will not inquire into the regularity of the certification.

It is contended that no vignette should be used on the ballots in the city of Detroit. This is based upon the provisions of chapter 2 of the city charter, as amended by Act No. 468, Local Acts 1895, which, it is claimed, supersedes the general statute governing elections so far as it relates to the city of Detroit. Section 27 of chapter 2 of the amended charter provides for a board of election commissioners for the citjq whose duty it is to cause to be printed the ballots for the election of all city officers, and for all proposed questions to be submitted by the common council. Section 28 provides -that every ballot must be printed on paper uniform in size, etc.; that ballots shall be printed substantially in the form prescribed by the general election laws of the State for the election of state and county officers, excepting that the instructions printed on the ballot shall be as set forth in the section. It provides, further, that no vignette shall be furnished or printed on any ballot. These provisions of these sections, it is plain, relate to the city ticket, which is voted in a separate ballot box. Section 57 provides that—

“The mode of conducting all state, congressional, and county elections in said city shall be in the manner herein provided for the election of city officers, except that the returns thereof shall be made as herein provided; and the provisions of this act shall govern when applicable to such elections, notwithstanding the provisions of any general law, unless the same shall in terms be declared applicable to elections in said city. It shall be the duty of the election commissioners of the county to print all ballots intended for use in said city in the manner herein prescribed for elections of city officers.”

This act was approved June 4, 1895.

We do not think the provision that no vignette shall be used, furnished, or printed on any ballot was intended to apply to any other ballots than those for city officers. This provision is inserted in the section which provides for certification by the officers of city committees. There is no express provision for certification to- the commissioners of the county, and resort must be had to the general law to "determine what certification shall be made. Under the general law, a certification of a ticket with the vignette is required; and the provision requiring the election commissioners of the county to print all ballots intended for use in the city, in the manner prescribed for the election of city officers, we think, was not intended to exclude the right to the use of the vignette as a part of the ticket, or, in the language of the statute, as “a distinctive and characteristic heading thereto.” Pub. Acts 1895, Act No. 271, § 11. This view is strengthened by the fact that by an' amendment to the general election law, approved June 5, 1895, section 10 was so amended as to provide that the name of a candidate should not appear in more than one place on the ballot, as a candidate for the same office; and it is not to be doubted that this provision was intended to apply to the city of Detroit as well as to other portions of the State.

The writ will issue in accordance with this opinion.

The other Justices concurred.


source: Caselaw Access Project

author: Long, O. J.

license: Public Domain

text:
    TREADWELL v. WILSEY.
    Fraudulent Conveyances.
    A conveyance by a husband, liable as an indorser upon promissory notes, to his wife, without sufficient consideration, for the purpose of covering up the property, and keeping it beyond the reach of creditors, will be set aside as fraudulent.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 6, 1896.
    Decided November 17, 1896.
    Bill in aid of execution by Edward Treadwell and Noah W. Cheever, executors of the last will and testament of Hiram Arnold, deceased, against Joseph Wilsey, Orpha Wilsey, and Mary P. Lawson. From a decree for complainants, defendant Orpha Wilsey appeals.
    Affirmed.

      Noah W. Cheever, for complainants.

      A. J. Sawyer, for appellant.
   Long, O. J.

This was a bill filed in aid of execution. The judgment was against Joseph Wilsey for the sum of $548.90, including costs. It appears that he was the owner of 140 acres of land at the time the indebtedness arose for which the judgment was recovered. He had, from time to time, signed notes for a nephew to about the sum of $3,000, and, soon after this, he made two mortgages, — one to defendant Mary P. Lawson for $2,150 upon 50 acres of the land, and one to his wife, Orpha, for $2,000 upon another 50 acres. This was in 1893. In 1894 he made deeds covering these same lands to the mortgagees in the mortgages named, his wife joining with him in the deed to Mary P. Lawson. The bill was filed for the purpose of setting aside these deeds and mortgages as fraudulent against creditors. It appears that, at the time of the execution of these several instruments, all the defendants were cognizant of the fact that the notes signed by Joseph Wilsey with his nephew were-outstanding. The testimony was taken in open court,, and the court found a sufficient consideration for the deed to Mary P. Lawson, but set aside the deed and mortgage given by Wilsey to his wife. The latter appeals.

We have examined the record with great care, and are unable to find any substantial reason for setting aside the decree made by the court below. That court was of the opinion that no sufficient consideration was ever paid by the defendant Orpha Wilsey to warrant this conveyance, but that the same was given for the purpose of covering up the property, and keeping it beyond the reach of creditors. We concur in those views, and the decree below will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    GREEN v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    1. Railroad Companies — Private Crossing — Negligence.
    Whether a railroad company was guilty of negligence in backing its train across a private way, which was, with its acquiescence, in daily and common use, without looking to see if anyone was on the tra'ck, so as to render it liable for the killing of a child at such point, is a proper question for the jury.
    2. Same — Killing op Child — Negligence op Mother.
    The mother of a child two years old is not, as a matter of law, guilty of negligence in permitting it to wander out of her sight for a few minutes in company with other children, during which time it is killed by a train of cars.
    Error to Muskegon; Russell, J.
    Submitted October 7, 1896.
    Decided November 17, 1896.
    Case by James Green, administrator of the estate of James Green, Jr., deceased, against the Chicago & West Michigan Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Brown & Lovelace and Jerome E. Turner, for appellee.
   Hooker, J.

The plaintiff’s son, an infant about two years of age, wandered from the premises of its grandmother into the highway, and from there upon and along a private way to the defendant’s railroad track, where it was killed by a train of flat or freight cars which was being backed slowly, in the process of switching. No eyewitness of the accident was produced, but there was evidence tending to show that there was no lookout upon the cara as the train was backed up, the brakemen being otherwise engaged at the time. The court refused to direct a verdict for the defendant, and left the questions of plaintiff’s negligence and contributory negligence to the jury, and a verdict was found for the plaintiff.

While it is true that the child was not killed upon a public highway, there was evidence that tended to show that the accident occurred upon, or in immediate proximity to, a private way, crossing the defendant’s track, which was in daily and common use by the owners, and such footmen from the adjoining village as chose to use the same, and that this was known to the defendant and its employés. In such usage, which had long continued, the defendant apparently acquiesced. To what extent this, way was traveled, and consequently the degree of care required in the management of trains, were proper questions for the jury. Schindler v. Railway Co., 87 Mich. 400; Townley v. Railway Co., 53 Wis. 626; Reifsnyder v. Railway Co., 90 Iowa, 76; Clampit v. Railway Co., 84 Iowa, 71; Cooper v. Railway Co., 66 Mich. 261 [11 Am. St. Rep. 482).

The mother of the child was visiting at the grandmother’s, and the child was with other children in the yard. The testimony indicates that they were out of sight but a few moments, before the accident occurred; and we cannot say that the mother was negligent, that being a proper question to be left to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    SMALLEY v. MITCHELL.
    1. Statute of Frauds — Agreement not to be Performed within One Year — Contract for Support.
    The provision of the statute of frauds that every agreement that, by its terms, is not to be performed within one year from the making thereof shall be void unless in writing, is not applicable to a contract which may, by any possibility, be performed within the year, although the parties may have intended that it should, and it does in fact, extend over a longer period. So held where a daughter orally agreed to pay for the care of her aged father, and to allow the person furnishing the support to occupy lands belonging to her until the services should be paid for.
    2. Same — Interest in Land.
    An oral agreement by the owner of land with one in possession thereof that, if the latter takes care of the former’s father, she can stay on the land until she receives therefrom sufficient to pay her for such care, is invalid, under 2 How. Stat. § 6179, providing that no estate or interest in lands, other than leases-for not more than a year, shall be created unless by act or operation of law, or by a written deed or conveyance.
    3. Adverse Possession — Lessor and Lessee.
    One who goes into possession of land under a lease from the owner, and continues to occupy the position of a lessee, cannot set up an adverse holding against a purchaser from the owner.
    4. Ejectment — Landlord and Tenant — Notice to Quit.
    A three months’ notice to quit, given by the purchaser of land to one who went into possession under an invalid agreement with the former owner, a sister of the tenant, that the latter could remain in possession until she had received from the land sufficient to pay her for supporting their aged father, is sufficient to entitle the purchaser to recover in ejectment.
    Error to Wayne; Donovan, J.
    Submitted October 7, 1896.
    Decided November 17, 1896.

      Ejectment by Edwin E. Smalley and John E. Tomlin-son against Philinda Mitchell and others. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      James H. Pound, for appellants.

      Hamilton Baluss, for appellee Philinda Mitchell.
   Long, C. J.

This is an action of ejectment. The lands in controversy were owned by Nancy Winfield, who, in March, 1871, by her last will and testament, conveyed them to Elizabeth Winfield and Sarah Tomlinson, the last named being the daughter of the husbatid of testatrix, and the other her own daughter. The lands were conveyed by the will to them jointly, and provided that, if either died without issue, the survivor was to take the whole. The parcel consisted of about 37 acres. The testatrix left surviving her several other children, and her husband, Selah Winfield, then advanced in years. Defendants claim that the will was made with the understanding that Sarah Tomlinson and Elizabeth Winfield should support and maintain the husband of testatrix during his life; that, in 1880, Sarah Tomlinson left their father with Philinda Mitchell, who is also a daughter of Selah Winfield and testatrix, and requested her to take care of the father until the next spring; that Philinda was put in possession of the lands in question for that purpose; and that in May, 1881, Elizabeth came, and found her in possession, and said to her, “You stay here on the place, and take care of pa, and you can have your pay, and you can stay here until you get it,” and that the property would have to be sold for their father; that Philinda stayed on the premises from that time, taking care of Selah Winfield, until in 1895, when the old gentleman died; that during this time no one pretended to claim possession of the property, and she was left there for fourteen years and one month, in quiet and peaceable possession, though she had caused letters to be written to Elizabeth and Sarah, but heard nothing from, them, as they had moved from there soon after the arrangement was made, in 1881, to different States, Sarah Tomlinson going to Colorado, and Elizabeth, who had married one Mr. White, living in Massachusetts. The plaintiffs claim title through Sarah Tomlinson and Elizabeth Winfield, now Elizabeth White. The deeds of conveyance show a complete title of record in the plaintiffs, each owning an undivided one-half interest in the land. The defendants claim that, by virtue of this parol agreement, Philinda Mitchell has the right of possession until she has received from the lands sufficient to meet the expenses of caring for the father, and that she has a lien upon the lands for such payment, or, at least, that she could not be put out of possession by a three months’ notice to quit. The case was tried in the Wayne circuit court before a jury, and verdict and judgment passed in favor of the defendants.

We need not discuss all the questions raised by the assignments of error. Plaintiffs’ first contention is that the oral contract is void under the statute of frauds, as it was not to be performed within one year. This point is not well taken. The mere fact that the contract may or may not be performed within the year does not bring it within the statute. The rule is that if, by any possibility, it is capable of being completed within a year, it is not within the statute, though the parties may have intended and thought it probable that it would extend over a longer period, and though it does so extend. Clark, Cont. p. 109, and cases there cited.

In the present case, however, it appears that whatever possessory rights defendant Philinda may have had in the premises were under a contract to care for the father. This part of the agreement had been fully performed at least, as Philinda was left in possession during that period; and the claim that she was to have, under this oral contract, an interest in the land for the payment of her services, cannot be sustained. Section 6179, 2 How. Stat., provides substantially: “No estate or interest in lands, other than leases for a term not exceeding one year, shall hereafter be created, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating the same, or by some person thereunto by him lawfully authorized by writing,” No writing is in existence, and the defendants cannot enforce an oral contract to fix and determine any charges which they may claim to have in the premises.

On the trial in the court below, the court seems to have thought there was a question of adverse possession, by which the defendants claim to defeat the plaintiffs’ recovery. The defendant Philinda went into possession of the premises under a lease from the plaintiffs’ grantor, and continued to occupy the position of a lessee. Whatever rights Sarah Tomlinson and Elizabeth Winfield had in the lands had been conveyed'to the, plaintiffs, and the defendants could not set up an adverse holding. The court was clearly in error in the charge in relation thereto. The plaintiffs had given the three months’ notice to quit, and this was sufficient, under the facts, to entitle them to recover. The court should have- so directed the jury.

The judgment below will be reversed, and a new trial awarded.

The other Justices concurred.


author: Grant, J.

text:
    HODGE v. GRAY.
    Bill in Aid of Execution — Sufficiency—Joint Debtors — Parties.
    A bill in aid of execution, seeking to set aside a mortgage given by one of several joint judgment debtors on land belonging to him alone, need not allege that complainant has exhausted his remedy at law against the other debtors, or that they are insolvent; nor are the latter necessary parties to the bill.
    Appeal from Macomb; Eldredge, J.
    Submitted October 9, 1896.
    Decided November 17, 1896.
    Bill in aid of execution by Timothy L. Hodge against William M. Gray and others. From an order overruling his demurrer to the bill, defendant William M. Gray appeals.
    Affirmed.
    ■ Defendant William M. Gray appeals from a decree of the circuit court for the county of Macomb, in chancery, overruling his demurrer to the bill of complaint. The bill alleges that complainant, on April 14, 1894, recovered a judgment against Mr. Gray and Henry N. Botsford and William Botsford, and refers to the record of said judgment; that, prior to the rendering of said judgment, Mr. Gray owned in fee simple the real estate described in the bill; that on April 26, 1894, complainant caused a ft. fa. to be issued and levy to be made upon this land to satisfy said judgment ; that said judgment remains wholly unpaid and unsatisfied; that Gray is insolvent; that he executed certain mortgages upon this land for the purpose of defrauding the complainant, and preventing him from realizing on his debt against Gray; that these mortgages were executed to his wife, the defendant Isabella Gray, without consideration; that she fraudulently assigned one of them to the defendants James and William Fogo; and that said assignment was fraudulent, and made for the express purpose of obstructing complainant’s levy. The prayer of the bill is that the mortgage and assignment thereof may be set aside and annulled, and that certain foreclosure proceedings be also set aside and annulled.

      Byron B. Er shine (Dwight N. Lowell, of counsel), for complainant.

      T. M. Or ocher (John L. Starkweather, of counsel), for appellant.
   Grant, J.

(after stating the facts). The bill is one in aid of an execution. The demurrer is general. Two objections to the bill are claimed: First, that it does not show that complainant has exhausted his remedy at law, in that he has not proceeded against the Botsfords, or shown that they are insolvent; second j that the Botsfords should be made parties to the suit. The objections are not tenable. The levy is upon the land claimed to belong to Mr. Gray. A fraudulent incumbrance upon it is an obstruction to complainant’s levy, which he asks to have removed. In this issue the other defendants to the judgment at law are not interested, and therefore need not be made parties. Neither is it necessary to allege insolvency of any of the defendants, nor to show that he has exhausted his remedy against them. The rule which obtains in judgment creditors’ bills does not obtain in bills in aid of execution. First Nat. Bank v. Tyler, 55 Mich. 297; Gibbons v. Pemberton, 101 Mich. 897 (45 Am. St. Rep. 417). Further citation of authorities is unnecessary.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    OLSON v. VILLAGE OF MANISTIQUE.
    Expert Witnesses — Credibility—Question for Jury.
    The jury are not bound to accept as true the opinions of experts upon a particular point when opposed to the testimony of witnesses claiming to have actual knowledge of the facts. So held where, in an action for personal injuries alleged to have been caused by a fall upon a defective sidewalk, several physicians testified that the disability existed previous to the accident, and that the only effect thereof was an aggravation of the former condition, while the plaintiff and other witnesses gave plain and unequivocal testimony to the contrary.
    Error to Schoolcraft; Steere, J.
    Submitted October 9, 1896.
    Decided November 17, 1896.
    Case by Fanny Olson against the village of Manistique for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      V. I. Hixson and C. W. Dunton, for appellant.

      Walsh & Pardee, for appellee.
   Long, C. J.

This case was brought by the plaintiff to recover for an alleged injury claimed to have been caused by falling upon a defective sidewalk within the limits of the defendant village. It is claimed that the walk in question was in an unsafe condition, and that the plaintiff, while walking upon it in company with her husband, stumbled and fell, by reason of one end of a broken or unfastened board rising and moving, leaving an opening into which she slipped and fell; that thereby plaintiff received and sustained serious and permanent injuries, alleged to be “ metritis, or inflammation of the womb and appendages, falling of the womb, and pelvic inflammation.” The case was defended principally upon the theory that the walk in question was maintained in a reasonably safe and proper condition; that the same had been examined on the morning of the day of the accident'by an inspector of the village, and found to be in good repair; and that the injuries sustained by the plaintiff were, at most, an aggravation of a previous existing condition, and that the plaintiff, previous to the time of receiving the fall, was afflicted with the condition alleged in the declaration to have resulted from the fall. The declaration alleged a new and resulting injury, and made no claim of any aggravation of a previous diseased condition. Plaintiff recovered.

The defendant claims:

1. That the court erred in charging the jury - as follows: “You have heard the testimony of these physicians, who have given evidence upon that point, and testified as experts, giving opinions. That class of testimony is proper and competent concerning matters involving special knowledge or skill or experience upon some subject which is not within the realm of the ordinary experience of mankind, and which requires special research and study to understand. The law allows those skilled in that special branch to express opinions, and, upon a hypothetical state of facts stated to them, to say whether or not, according to their experience and research, a fact may or may not exist. But, nevertheless, while their opinions are allowed to be given, it is entirely within the province of the jury to say what weight shall be given to them. Jurors are not bound by the testimony of experts. Their testimony is to be canvassed as that of any other witness. Just as far as their testimony appeals to your judgment, and convinces you of its truth, you should adopt it; but the mere fact that witnesses are called as experts, and give opinions upon a particular point, does not necessarily obligate the jury to accept their opinions as to what.the facts are, in the face of the testimony of witnesses claiming to have actual knowledge of the facts.”
2. That the court erred in charging the jury as follows: “You are the judges of the credibility of these witnesses, not only of the plaintiff and those representing the defendant, but also of the expert witnesses and all the witnesses who have testified. You are not bound by the testimony of the expert witnesses any more than by the testimony of any other witness. You should not disregard their testimony without cause, but you are the judges of the credibility of all the witnesses, including the experts who have been sworn.”
3. That the court erred in refusing to charge the jury as follows: “You are instructed that the plaintiff has failed to make out a case, and your verdict must be for the defendant.”
4. That the court erred in refusing to grant defendant’s motion for a new trial, on, the ground that the answer of the jury to defendant’s special question was against the manifest weight of all the evidence.

It is contended that by this charge the court instructed the jury that they were not bound by the testimony of the experts. "We think the charge, as a whole, is not open to this objection, and that it was warranted by the testimony given in the case. The plaintiff testified that she was not afflicted with this trouble before her injury by the fall upon the sidewalk. By her testimony, it appears that she was a strong woman, with a family, and keeping two boarders, doing all the work for the family. She was corroborated by her husband and others. It appears, therefore, that the testimony of the physicians (the experts) was contradicted by the plain and unequivocal testimony of the plaintiff and her witnesses. She was in a position to know whether she was so afflicted before this injury, and the jury had a right to take that testimony into consideration in determining the question whether the trouble from which she was suffering was the result of the injury by the fall, or if it existed before that time. The physician who examined her after the fall was asked if the injury which he found upon such examination could have been caused by a violent fall forward on the sidewalk, and he stated that it could. The extent to which the charge goes is that the jury were not bound by the testimony of the experts, but that their testimony was to be canvassed as that of any other witness; that the jury were not obliged to take their testimony as to what the facts were, in the face of testimony of witnesses claiming to have actual knowledge of the facts.

Defendant asked the jury to find upon the following question: “Was the plaintiff, prior to the alleged injury, on May 28, 1894, afflicted with metritis, or inflammation of the womb and appendages, falling of the womb, and pelvic inflammation? ” The jury answered this question in the negative. It is now claimed that their finding was not supported by the evidence. We have already stated what the plaintiff testified to, and what she called other witnesses to show. The answer was supported by that evidence; and we cannot say from this record that the jury had no testimony upon which to base their finding.

In answer to the fourth objection, we have already stated what the plaintiff’s evidence was upon the question of the previous injury. Upon that question the case was properly submitted to the jury, and the court very properly refused to disturb the verdict.

We also find sufficient evidence in support of the plaintiff’s contention in other respects that warranted the submission of the case to the jury, and that the .court was not in error in refusing a new trial.

The judgment must be affirmed.

The other Justices concurred.


text:
    ROLFE v. BURNHAM.
    t. Chattel Mortgages — Collateral Agreement — Construction.
    The authority of the mortgagee of a stock of merchandise to sell in accordance with the terms of the mortgage may be limited, by a collateral written agreement respecting the goods, made at the time the mortgage was executed, and, when such agreement exists, the instruments should be construed together in determining the rights of the parties.
    2. Same — Authority to Sell — Injunction.
    A court of equity, therefore, will not permit an agreement by the mortgagee to take charge of the business, and carry it on for the benefit of all parties, to be ignored, and a sale under the mortgage proceeded with, unless it appears that the agreement has been violated by the mortgagor, or that the mortgagee was induced to enter into it by fraud.
    3. Equity — Partnership—Receivers.
    Where a member of a partnership filed a bill in equity against his copartners and certain creditors of the firm, and the defendant copartners, in their answer, asked the appointment of a receiver, and it appeared from the pleadings and affidavits that several mortgagees and unsecured creditors were interested, and that the partners themselves were unable to agree, a receiver was properly appointed.
    Appeal from Shiawassee; Smith, J.
    Submitted October 9, 1896.
    Decided November 17, 1896.
    Bill by William Rolfe and Mary Rolfe against Burn-ham, Stoepel & Co., William Barrie & Son, H. S. Robinson & Co., James H. Zeigler, and John Streng to restrain the sale of goods under a chattel mortgage. Defendants Zeigler and Streng answered, and asked that a receiver be appointed. From an order appointing a receiver and refusing to dissolve a preliminary injunction, Burnham, Stoepel & Oo. appeal.
    Affirmed.

      This is an appeal in chancery from an order appointing a receiver and refusing to dissolve a preliminary injunction. The case is here upon bill, answers, and affidavits. The material allegations of the bill are these: The complainants were,__and had been for some time prior to June 2, 1896, copartners with defendants Zeigler and Streng under the name of Zeigler, Streng & Rolfe, doing business in the village of New Lothrop, Shiawassee county. Complainant Mary Rolfe had filed a bill on May 22, 1896, to dissolve the partnership, and had obtained a preliminary injunction restraining her copartners from collecting accounts and carrying on the business. May 23d a chattel mortgage was filed, dated May 8th, to H. S. Robinson & Co., merchants, of Detroit, for $1,464.75. June 2d complainants were proceeding under that bill to secure the appointment of a receiver. Defendants Burnham, Stoepel & Co. were creditors of Zeigler, Streng & Rolfe. Burnham, Stoepel & Co. then agreed with the complainants and their firm that, if they would not proceed to secure the appointment of a receiver, and would give them a mortgage upon their stock, they would take charge of the same, make an inventory, furnish a responsible man, and carry on the business. This was agreed to, and a mortgage was executed for $1,376.75. At the same time a written agreement was executed, between complainant Mary Rolfe and her firm of the one part, and. Burnham, Stoepel & Co. of the other, by which complainants agreed to discontinue their suit against their copartners and to dissolve the injunction, and Zeigler agreed to return to complainant Mary notes held by him against her, to the amount of $730, as satisfied in full. It recited the chattel mortgage above referred to, and provided that Burnham, Stoepel & Co. should have the right to the actual possession under the terms of the mortgage at any time they saw fit to take possession, and were thereby authorized and obligated to place some responsible party in charge of the business. They were also authorized to make purchases for the purpose of replenishing the staple articles and such as were necessary to successfully continue the business. The salary of such agent was to be $50 per month. Burnham, Stoepel & Co. also agreed to take charge of all the books, accounts, notes, etc., belonging; to Zeigler, Strong & Bolfe, to collect them with the greatest possible dispatch, and to apply the proceeds of such collections and sales in the following manner: (1) To pay complainant Mary Bolfe a monthly rental for the store occupied by the firm; (2) to pay running expenses; (3) to pay for the merchandise bought; (4) to make payments on the secured indebtedness of the firm according to preferences, and in such order as the several mortgages were recorded; (5) to pay the unsecured indebtedness of the firm; and (6) to divide the residue between the members of the firm.
    Burnham, Stoepel & Co. immediately took possession of the stock and store. Within six days thereafter they advertised the entire stock for sale under their chattel mortgage and also the Bobinson & Co. mortgage, which had been assigned to them. Said goods were offered for sale in a lump. Such sale will result in a sacrifice of the goods, whose value is between $5,000 and $6,000. The bill charges that Burnham, Stoepel & Co. are not proceeding in the matter as in equity they ought to do, and prays that such sale be restrained. A preliminary injunction was issued and served while the sale was in progress, and as the entire stock was about to be sold for the sum of $2,300.
    Burnham, Stoepel & Co. filed their answer, containing a demurrer clause, in which they allege that Zeigler, Streng & Bolfe made false representations as to the value of the stock; that they refused to turn over to them or their agent the accounts of the firm; that they also made false representations as to the value of certain goods in Buffalo, N. Y., which were to be turned over to them under the arrangement; that defendant Zeigler refused to give them possession of these goods; and they thereupon proceeded to foreclose the mortgage. The defendants Zeigler and Streng answered, admitting the execution of the mortgages and the agreement as set up in the bill; alleged that the mortgage to Burnham, Stoepel & Co. and the agreement were given to save their business, and that there are sufficient assets to pay all their indebtedness and leave a substantial amount for the partners. They charge that Burnham, Stoepel & Co. never intended to carry out their agreement, and that their conduct was a fraud upon them, and pray for the appointment of a receiver. The answer of Burnham, Stoepel & Co. is supported by affidavits, and the bill and answer of Zeigler and Streng is supported by affidavits.
    It appears that the accounts which Burnham, Stoepel & Co. asserted were not turned over to them were placed under the Robinson & Co. mortgage in the hands of an agent for collection, and that this agent refused to turn them over to Burnham, Stoepel & Co. for the reason that he had agreed with Robinson & Co. to collect them, for which he was to receive a stipulated consideration. Complainants deny that they made any representations as to the value of the stock. According to the affidavit of Mr. Corwin, an employé of Burnham, Stoepel & Co., which affidavit was made in their behalf, the cost value of the goods and fixtures was $5,820.11, and the goods at Buffalo were of the value of $1,264.95, against which there were charges amounting to $324. It thus appears that the cost value of the goods was near $7,000. If, as Burnham, Stoepel & Co. contend, 25 to 30 per cent, should be deducted for depreciation, the property is still worth nearly twice the amount of the secured claims against it.

      Knight & Collins, for complainants.

      Durand & Carton, for defendants Zeigler and Streng.

      Frank E. Robson, for appellants.
   Grant, J.

(after stating the facts). It is claimed by the appellants that the bill does not warrant the issuing of an injunction or the appointment of a receiver, and that the material charges are met by their answer and the affidavits in their behalf. There is no showing of any fraud on their part in obtaining the chattel mortgage. The conclusion, however, is irresistible that it was understood and agreed that the appellants were to take charge of this business and carry it on for their own benefit and the benefit of complainants and their copartners. While, under the terms of the chattel mortgage, their debt was due, and, if the provisions of the mortgage alone were to be considered, they were proceeding to sell in a lawful manner, still the mortgage and the agreement must be construed together. They, therefore, had no right to ignore the agreement, and sell under the mortgage, unless the mortgagors had violated that agreement, or had induced them to enter into it by false and fraudulent representations. Unless they had good cause to so proceed, equity would enjoin them from the violation of their agreement. While the bill does not ask for a receiver, the answer óf Zeigler and Streng, in which they claim the benefit of a cross-bill, does. The sole question, therefore, presented to the court, was whether, under all the pleadings and affidavits, the court was justified in making the order. We cannot interfere with the action of the court unless there has been a clear abuse of discretion. There were three creditors secured by three chattel mortgages. Unsecured- creditors were also interested, as were Zeigler, Streng & Rolfe. The partners themselves did not agree, and it seemed to be the clear duty of the court to take that course which would best protect the interests of all the parties. This, we think, the court did.

We see no reason to interfere with the order, and it is affirmed, with costs.

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


author: Hookek, J.

text:
    BECK v. SCHICK.
    1. Adverse Possession — What Constitutes.
    The possession of land by one of the heirs of an intestate is not adverse to the rights of another heir during the lifetime of the intestate’s widow, where the former was living on the premises at the death of the intestate, and it was agreed by all the heirs that the place should be left just as it was until the death of the widow", who was also residing thereon,
    2. Ejectment — Trial—Instructions to Jury.
    It is not error to refuse an instruction in an action of ejectment that the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, where it is apparent that thb plaintiff does rely upon his own title, and the questions involved are clearly defined by the charge as given.
    Error to Berrien; Coolidge, J.
    Submitted October 22, 1896.
    Decided November 17, 1896.
    Ejectment by Henrietta Beck against Frederick Schick and Caroline Schick. Erom a judgment for plaintiff, defendants bring error.
    Affirmed.

      James O'Hara, for appellants.

      N. A. Hamilton, for appellee.
   Hookek, J.

Christof Schick died intestate on February 21, 1875, leaving a -widow; a son, ivho is the defendant Frederick Schick; a daughter, then married and living in Wisconsin, who is the plaintiff; and a grandson, who was the son of a deceased daughter. All but the plaintiff, including Frederick’s wife, Caroline, the other defendant, lived upon the premises, in one family, at the time of Christof Schick’s death, and continued to so live until 1887, when the widow died. This action of ejectment was commenced in January, 1896, to recover an undivided interest in the premises, as heir of Christof Schick, and the only questions that need attention arise out of a claim of title by adverse possession set up by Frederick Schick.

The undisputed testimony shows that in April, 1875, old Mrs. Schick wrote to the plaintiff to come to Michigan and settle, and plaintiff’s husband came to the premises and remained three days, during which time property matters were discussed. He wanted to take Mrs. Schick to Wisconsin to live with her daughter, and she agreed to go, but people advised her “ not to leave the old place, as she had a good homeand Frederick Schick, to make it satisfactory, said he would “leave the place as long as the old lady lived.” Plaintiff’s husband replied: “In order to make it all right, we ought to go and see the judge of probate. If he says leave it that way, all right, I will go home tomorrow. ” This arrangement was communicated to, and acquiesced in by, the plaintiff. To the question, “What was the arrangement?” the witness, plaintiff’s husband, answered, “We were to leave the place just as it was until the old lady’s death, and she was to stay there, and have her support on the place.” They hired a livery, and went to Berrien Springs, and saw the judge of probate, who told them that they could leave it that way if it was so agreed; and plaintiff’s husband went home the next morning.

The plaintiff claims that adverse possession did not begin to run until the death of Mrs. Schick, in 1887, while counsel for the defendants asserts that inasmuch as she understood from the time of her father’s death, in 1875, that Frederick Schick claimed the entire place, the arrangement made, whereby the matter was to be left until the old lady’s death, did not stop the running of the statute. We are of the opinion that the effect of that arrangement was understood to be, as its terms import, that any step looking towards the admeasurement of dower should be omitted, and the mother allowed the use of the place so long as she lived, and that steps for the division of the place should await her death. The plaintiff took no action during her life, and Frederick Schick carried out the arrangement, so far as all appearances indicate. Whatever he may have thought or intended, or whatever the plaintiff may have known about his claims, she had a right to treat the possession as that of old Mrs. Schick; and Frederick’s adverse possession did not commence to run until 1887, if it did then.

It is contended by counsel that the court should have given various requests to charge, — among others, the abstract proposition that a plaintiff in ejectment must recover upon the strength of his own, and not upon the weakness of his adversary’s, title. The record showed plainly enough that the ancestor of both Frederick Schick and the plaintiff owned the premises,- and died intestate; hence it would follow that the plaintiff was relying Upon her own title, and there was no occasion to refer to the subject in the charge. A trial judge may properly disregard questions which have no legal bearing upon the matter in controversy, and decline to incorporate in his charge legal propositions which have no bearing upon the case. The court left the jury to find whether the arrangement was made as stated by plaintiff’s husband, and advised the jury that, if they so found, the plaintiff could recover. As we are able to say, from the undisputed testimony, that the parties mutually acquiesced in the possession of Mrs. Schick until her death, in 1887, it follows that the judgment must be affirmed. It is therefore so ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    SUTHERLAND v. EUREKA FIRE & MARINE INSURANCE CO.
    Fire Insurance — Waiver of Conditions — Notice op Agent’s Want op Authority.
    Where the holder of a fire-insurance policy applied to the local agent of the company for a vacancy permit, and was informed by such agent that the company had instructed him not to grant the permit, held, that he could not establish a waiver of the condition of his policy as to vacancy by proof • of oral permission from the agent that the premises remain vacant, although it further appeared that he was not asked to surrender the policy, and that no tender of the unearned premium had been made.
    Error to Muskegon; Russell, J.
    Submitted October 33, 1896.
    Decided November 17, 1896.

      Assumpsit by Alexander Sutherland against tbe Eureka Eire & Marine Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Chaddock & Sutherland (W. J. Turner, of counsel), for appellant.

      Bunker & Carpenter, for appellee.
   Montgomery, J.

This is an action on a fire-insurance policy which contained the following provision:

“This entire policy * * * shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.”

The house covered by the insurance was destroyed by fire on the 17th of April, 1895. It appears that in April, 1894, the house became vacant, and a vacancy permit was issued, running to June 18th, and others were granted from time to time until the 8th of December, 1894, when a 30-day permit was granted, which was the last written permit. After the expiration of 30 days, plaintiff applied to the local agent for a further vacancy permit, and, as he testifies, was informed that the company had told him (the agent) that they could not give any more permits. The plaintiff claims, however, that the conversation which he had with the agent at this time amounted to a waiver of the provision above quoted from the policy. He testifies that, after the agent informed him that the company would not give any more permits, he inquired of the agent what they should do about it, and the agent replied, “Well, you hold the policy, and you try to get it rented, and I willthat the agent did not ask for a surrender of the policy, and never asked him to surrender the policy, or tendered back the unearned premium. On cross-examination, plaintiff testified that he was aware that it was necessary that the company should give permission to keep the house vacant, or else the insurance would not be good. In answer to the question, “You knew that the clause was in the policy?” he replied, “Yes, sir; and I knew the agent could waive it if he wanted to.” Question: “And you knew Mr. Doane was instructed by the company not to give that vacancy permit?” Answer: “To grant that permit,— yes, sir.”

The circuit judge was of the opinion that there had been no waiver, and that, by the terms of the policy, the plaintiff was precluded from recovery. We think this ruling was right. Without determining whether an oral waiver of this provision by an agent would in any case be valid, we think it is clear that express notice of a limitation upon the authority of the agent was shown. In fact, the plaintiff swears to such notice. It would be a great stretch to say that, with notice that the company had prohibited its agent from granting a permit, and reducing the same to writing, the assured would have the right to assume that an oral permit was authorized, or would be approved by the company. See Ranspach v. Insurance Co., 109 Mich. 699.

Judgment affirmed.

The other Justices concurred.


text:
    GRAVES v. LYON BROS. & CO.
    1. Contracts — Employer and Employe — Question eor Jury.
    Whether or not the statement of an employer that the salary of an employé, who had previously been hired by the month, would have to be reduced to a stated sum “for the year,” and the latter’s assent to the reduction, created a new contract of employment for a year, is a proper question for the jury.
    2. Same — Substituted Agreement — Appeal.
    In an action on a contract of employment, the question whether such contract was superseded by a subsequent agreement is not sufficiently raised to warrant its consideration on appeal by a mere request to direct a verdict for the defendant for stated reasons, not including the alleged change in the contract.
    Error to Wayne; Donovan, J.
    Submitted October 23, 1896.
    Decided November 17, 1896.

      Assumpsit by Arthur L. Graves against Lyon Brothers & Company upon a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Moore & Moore, for appellant.

      Maybury & Lucking, for appellee.
   Grant, J.

This suit.originated in justice’s court, and was appealed to the circuit court, where plaintiff obtained judgment. He sued the defendant corporation to recover a balance claimed to be due on a contract of hire for a year. For two years previous -to 1893 he had been employed by the defendant by the month. On January 4, 1893, according to his testimony, the manager of the defendant informed him that his “pay would have to be reduced to $600 for the year;” that he replied, “If that was all he could pay, he [plaintiff] would go on doing his work.” About the middle of March plaintiff was discharged. At that time he said to the manager of the defendant, “You understand you made a contract with me for $600 for the year from the 1st of January;” and he said, “ I can’t help that; it is a case of two against one.” Plaintiff was paid about the 1st of April, obtained other employment at a reduced compensation, and at the close of the year brought this suit, and recovered the year’s compensation less what had been paid him and what he had earned.

Defendant insists that there was no change of employment by the month to employment by the year. We think it is a fair inference, from plaintiff’s version of the conversation, that the contract was one for a year. Defendant’s agent denied the conversation, and under his view it was a hiring by the month. The court left the question to the jury, instructing them to consider all the evidence in the case in determining the question.

It is claimed that the wife of'plaintiff and the wife of the manager of the defendant made an arrangement by which plaintiff’s salary was increased to $60 a month, that he was paid the extra amount, and that this formed a new contract of hiring by the month. We find no evidence that this was brought to the knowledge of the plaintiff, or assented to by him. The point was not raised in the court below, nor is there any assignment of error to cover the point, unless it be a request to direct a verdict for the defendant. Two such requests were preferred, but each of them states the reasons upon which it is based, but does not include this point. Other questions were raised which we do not deem of sufficient importance to discuss.

We find no error upon the record, and the judgment is affirmed.

The other Justices concurred.


text:
    COVODE v. PRINCIPAAL.
    i. 3uilding Contract — Breach—Defenses.
    Failure of the owner of a house in process of construction to perform certain work not covered by the building contract will not prevent a recovery from the contractor of the rental value of the house as damages for delay in the completion of the contract, where it appears that the contractor retained control of the premises, and that the work to be done by the owner was of such a character that it could not well be performed u ntil the house was substantially ready for occupancy.
    2. Same — Measure op Damages.
    It is not essential to the right of the owner to recover the rental value of the premises that he should show that he actually had an opportunity to rent the house had it been completed, although it be conceded that he did not intend the house for his own occupancy.
    Error to Kent; Grove, J.
    Submitted October 23,1896.
    Decided November 17, 1896.

      Assumpsit by John A. Covode against Henry Principaal and Daniel E. Corbitt for the breach of a building contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      D. JE. Corbitt, for appellants.
    <7. B. Blair, for appellee.
   Montgomery, J.

On the 30th of December, 1893, plaintiff, at the request of the two defendants, became the purchaser of a piece of real estate in the city of Grand Rapids, upon which there were a house and barn ■not fully completed. The defendants undertook and agreed that they would furnish the proper material, and finish and complete the buildings, in accordance with certain specifications, and in a manner to be approved by William Williamson, architect, and have the same com-' pleted within 60 days. The defendants failed to complete the buildings within the time named, or at any date, but from time to time the defendant Principaal did some work upon the premises, and never gave notice to the plaintiff that he had abandoned the purpose of completing it. But on the 8th of September, 1894, the plaintiff set to work and completed the buildings, and subsequently brought suit to recover for the cost of their completion, and for damages from the delay occasioned by defendants’ failure to complete their contract within the time provided. He recovered a judgment for both items of damage, and the defendants bring error.

It is contended that inasmuch as there were certain items which the plaintiff expended on the house, and which the court found not covered by the contract, the failure to receive rental during the delayed period was in part due to the failure of the plaintiff to do this work, which consisted ri some plumber’s work, and that, therefore, the rental is not recoverable. We think this contention is without force, for the reason that the defendants, down to within a very few days before the work was completed, assumed to keep control of the house, and were from time to time at work upon it. The court might well have been of the opinion that the plumbing was that kind of work which should not have been put in until the house was substantially ready for occupancy; and the circuit judge did find as a fact that by reason of defendants’ failure to perform their contract by March 1, 1894, as required by their contract, the property remained in an unrentable condition until September 17th, and that, by reason of defendants’ said failure and breach of contract, plaintiff lost and was deprived of the use and benefit of said property from March 1, 1894, to September 17, 1894, and that this loss was the direct and proximate result of defendants’ said breach of contract and failure to complete and perform their contract within the time specified. We think the circuit judge was justified in deducing these conclusions of fact from the testimony in the case.

The principal contention of defendants is that the plaintiff was not entitled to recover the rental value of the premises, for the reason that the house was not intended for his own occupancy, and that in such case it is incumbent upon him to show that he had an opportunity to rent it, but was prevented from doing so by the default of the contractors. Defendants cite, to support this contention, the case of Wagner v. Corkhill, 40 Barb. 175. This case has been criticised. See 1 Sedg. Dam. § 186. After referring to this case, the learned author says:

“Rent is given, not as specific damage, but as a fair average measure of compensation for interfering with the owner’s use of property, and no inquiry should be permitted as to the likelihood in the particular case of rent having been obtained.”

We cannot discover that Wagner v. Corkhill has been followed by later New York cases. See Ruff v. Rinaldo, 55 N. Y. 664. And we think the distinction which is sought to be drawn in Wagner v. Corkhill is unsound. If the fair rental value is the measure of damages in case of contemplated occupancy by the owner, it is clear that the same measure would bear no harder upon the defaulting contractor in case the building is constructed to rent. And to hold that, in order to recover the rental value in such case, the owner should be required to show that he actually had an opportunity to rent the house if complete,, would require such diligence as is not imposed in any analogous case. It would impose upon the owner the duty of offering something which he did not have. In homely phrase, it would be putting the cart before the horse. Until the house was ready for occupancy, it could not be occupied, and could not well be offered for rent. We think the case is within the principle decided in John Hutchinson Manufacturing Co. v. Pinch, 91 Mich. 156, and Carnegie, Phipps & Co. v. Holt, 99 Mich. 606, in which latter case the same rule adopted by the trial judge in this case was given to the jury at the circuit, and was approved of in this court.

We discover no error in the record, and the judgment will stand affirmed.

The other Justices concurred.


author: Moore, J.

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      In re MILLER.
    Convicts — Good Time — Ex Post Facto Law.
    A statute denying to convicts under sentence for a second offense the same reductions from their sentence for good behavior that are allowed to other convicts is not ex post facto as applied to the punishment of an offense subsequently committed, although the offender had been convicted of his first offense before the passage of the act.

      Habeas corpus by Charles Miller to obtain his discharge from the custody of William Chamberlain, warden of the state prison at Jackson.
    Submitted October 20, 1896.
    Writ dismissed November 17, 1896.

      Thomas H. BarJcworth, for petitioner.

      Fred A. Maynard, Attorney General, for respondent.

       In a note to this case in 34 L. R. A. 398, are reviewed the authorities on enhancing penalties of crimes when committed by habitual criminals or prior offenders.

   Moore, J.

The petitioner is serving his second term in the state prison at Jackson. His first term expired April 19, 1893. His second term began February 10, 1894, and was for three years. Act No. 118, Pub. Acts 1893, took effect May 26, 1893. Section 33 of that act provides that convicts who shall have no infractions of the rules of the prison against them shall be entitled to a reduction from their sentences according to a certain, scale, with a proviso that a convict who shall be serving a second term in said prison shall be entitled to a less favorable reduction. If the provisions of this act are applied to the petitioner, and he is treated as now serving his second term, his term will not expire until November 16th of this year, but, if he is treated as though serving his first term, he is now entitled to his release.

It is claimed that to regard the petitioner as now serving his second term is to apply ex post facto legislation to him, and subject him to additional punishment for a crime which he has fully expiated, under the laws existing at the time of its occurrence. Counsel cites Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 87; Cummings v. Missouri, 4 Wall. 277; Fx parte Garland, Id. 333; In re Walsh, 87 Mich. 466; In re Canfield, 98 Mich. 644. We do not think any of these cases sustain the claim of counsel for the petitioner. It is held in Calder v. Bull, supra, that the legislature may declare new crimes, and establish rules of conduct in future cases. In Fletcher v. Peck, supra, an ex post facto law was defined to be one which renders an act punishable in a manner in which it was not punishable when it was committed. The act of 1893 was in force before the second conviction of the petitioner occurred. He is presumed to have known its provisions when he committed the offense for which he is now serving time. He served- the penalty of his first conviction, and, if he had not again violated the criminal law, he would not now be an inmate of prison. The penalty he is now serving is imposed for the offense committed by the prisoner after the act of 1893 took effect. Under such circumstances, the act cannot be regarded as ex post facto. It was stated in Re Canfield, 98 Mich. 648, that—

‘ ‘ This is not a case where the law has authorized the imposition of an increased penalty for a second offense, but one where a certain class of offenders are denied the benefits of, a certain rule made for the maintenance of good order in the prison.”

We think it competent for the legislature to establish such a rule, and that it is not ex post facto legislation. See Cooley, Const. Lim. (6th Ed.) 327; Ross’s Case, 2 Pick. 165; Com. v. Phillips, 11 Pick. 28; Plumbly v. Com., 2 Metc. (Mass.) 413; Com. v. Marchand, 155 Mass. 8; Ex parte Gutierrez, 45 Cal. 429; People v. Stanley, 47 Cal. 113 (17 Am. Rep. 401); Blackburn v. State, 50 Ohio St. 428; Com. v. Craves, 155 Mass. 163.

The petitioner is remanded.

The other Justices concurred.


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    EMERSON v. KINNE.
    Tender^-Part Payment — Costs.
    A creditor is under no obligation to receive less than the amount due him, and, therefore, a tender of a part of the debt before suit brought, followed by a payment into court, will not affect his right to circuit court costs, even though the balance of the recovery be less than §100.
    Error to Eaton; Smith J.
    Submitted October 9, 1896.
    Decided November 17, 1896.

      Assumpsit by Irving E. Emerson against John L. Kinne to recover a balance alleged to be due upon a building contract. From that part of the judgment awarding costs to defendant, plaintiff brings error.
    Reversed.
    Plaintiff brought suit in assumpsit in the circuit court to recover a balance claimed to.be due upon a contract for the erection of a building at the cost of $225. Before suit was brought, defendant admitted that he owed plaintiff $75, and made a legal tender of that amount. This tender was kept good, and, when suit was brought, defendant deposited the same in court. The attorneys for the respective parties then entered into a stipulation by which it was agreed that the $75 should be paid by the clerk of the court to the plaintiff, but that such payment or acceptance should in no wise affect or change the right of said plaintiff to proceed to a judgment upon the balance which plaintiff claimed to be due him, and that the $75 should be deducted from the amount found to be due the plaintiff upon the trial, and judgment for the balance, if any should be found by the jury, should be entered the same as though said $75 remained in the custody of the clerk. The jury rendered a verdict for the plaintiff for $59.65, and, in reply to special questions, found that the defendant tendered plaintiff the $75; that the plaintiff refused such tender; that the defendant deposited the money in the bank, to keep such tender good, and paid the same into court after suit was commenced. The court held that the defendant was entitled to recover costs, and this presents the sole issue in the case.
    ■ Garry G. Fox and George L. Hauser, for appellant.

      Huggett & Smith, for appellee.
   Grant, J.

(after stating the facts). We think the circuit court was in error. The defendant did not tender the amount due upon the contract. A creditor is under no obligation to receive less than the amount that is due. Coots v. McConnell, 39 Mich. 748; 25 Am. & Eng. Enc. Law, 910; Clark, Cont. 641.

The judgment must be reversed, and the court below directed to give the plaintiff his costs.

The other Justices concurred.


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    STROME v. LYON.

      Í. Building Contract — Performance—Common Counts.
    Where a contract for the construction of a building has been substantially performed, the contract price may be recovered in an action on the common counts.
    O. Same — Estoppel.
    One who accepts a building as in compliance with the contract for its erection is estopped to assert a noncompliance therewith when sued for the contract price.
    Error to Kalamazoo; Buck, J.
    Submitted October 22, 1896.
    Decided November 17, 1896.

      Assumpsit by Emanuel G. Strome against Lucius V. Lyon to recover a balance due upon a building contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Alfred S. Frost (Frank E. Knappen, of counsel), for appellant.

      Jesse JR. Cropsey and Boudeman & Adams, for appellee.
   Grant, J.

Plaintiff sued to recover a balance due upon a written contract by which he agreed to erect a house for the defendant, and also for extra work and material. The balance unpaid on the contract was $93; the extra work and material, $43. The jury found for the plaintiff for the entire amount. The defense was that the contract was not complied with in three particulars: (1) That the work was not finished; (2) that the plastering was not done according to the contract, or in a good and workmanlike manner; and (3) that the woodwork was not finished with two coats of oil, as specified.

The principal objection urged is that plaintiff did not perform his part of the contract, and therefore cannot maintain an action upon the common counts. Plaintiff testified that he performed the work; that the building was turned over to, and accepted by, the defendant; that he made no objection; that he expressed himself satisfied, and repeatedly promised to pay. On cross-examination plaintiff admitted that a few square feet around one door were not given the last coat of paint as required by the contract, the cost of finishing which would be 10 or 15 cents. He also explained why this was not done. His testimony also tended to establish the fact that the change of plastering was made at the defendant’s request, after the contract was made, and that the inside woodwork was finished according to the contract. The defendant gave notice of recoupment, and the court instructed the jury that, if they found that the work was not done according to the contract, the defendant was entitled to recover such damages as he had suffered.

The claim of the defendant that plaintiff cannot maintain this form of action because he had not completed the contract cannot be sustained. The jury evidently found that plaintiff had substantially complied with it, and that defendant had accepted it. If defendant accepted the work without objection, and expressed himself satisfied therewith, he is now estopped to deny the full execution of the contract. The charge of the learned circuit judge was full and fair, and left the jury to determine all the questions involved, and the testimony was ample to sustain the verdict.

Several questions were raised upon the admissibility of evidence, which we do not think it important to consider. The rulings of the court in this respect were correct.

Judgment affirmed.

The other Justices concurred.


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    VAN HOUTEN v. METROPOLITAN LIFE INSURANCE CO.
    1. Written Instruments — Presumption as to Knowledge of Contents.
    The presumption that one signing a written instrument had read it over, and was acquainted with its contents, may be rebutted by evidence of circumstances fairly tending to show that he was misled in that regard by the conduct of the other party.
    2. Life Insurance — Application — False Representations —- Estoppel.
    False answers written in an application for life insurance by the agent of the insurer in reliance upon his own knowledge will not avoid the policy, where the application was signed by the insured after answering other questions, and without knowing that the former answers were contained therein. Temmink v. Insurance Co., 72 Mich. 388, followed.
    Error to Kent; Grove, J.
    Submitted October 21, 1896.
    Decided November 17, 1896.

      Assumpsit by Anna Van Houten, administratrix of the estate of Adrian Van Houten, deceased, against the Metropolitan Life Insurance Company, upon a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The life of plaintiff’s husband was insured with the defendant. Upon his death payment was refused, and plaintiff brought this suit, in which she recovered verdict and judgment. The defendant gave notice, with its plea, that the policy of insurance was issued upon a written application signed by the deceased, in which it was agreed that the policy should be void unless the answers and representations contained in the application were true; that the answers and representations were false, in that they stated that the deceased had never been ill, that he had never had or been subject to disease of the heart or rheumatism, and that he was in sound health; and that the assured was not at the time in sound health, but had been subject to rheumatism, heart disease, and other diseases. Defendant requested the court to direct a verdict for it, for the reason that the application was untrue, and the assured was not in sound health at the time. The question was left to the. jury, under the instruction that the assured was bound to know the contents of the application signed by him, upon which the policy was based, and that he was bound by all the statements therein, unless it was shown that a mistake was made in transcribing them, or that he was misled in making answers to the questions. The application was in printing, the name and answers alone being in writing. It warranted the representations and answers to be true, and provided that the policy should be void if they were not true. It was filled out by the agent of the defendant at the home of the deceased. The defendant introduced the application, which was made a part of the policy, and evidence tending to show that the deceased had, prior to the application, been afflicted with rheumatism. Plaintiff then introduced the agent of the defendant who procured the insurance, and upon his testimony the question must be determined. He testified that he asked the assured his name, the number of his house, his occupation, when and where he was born, his next birthday, how much insurance he wanted, and for whose benefit, the age of his father and mother, and their condition of health, whether he had been vaccinated, his personal appearance, height, and weight; that he (the agent) filled out all the other questions without asking them; that he did not read it to him; that he asked him to sign it, and he did. Among the questions which the agent testified he answered himself were those as to his health and the numerous diseases mentioned in the application. On cross-examination he testified that he could not tell whether the assured read it or not; that he could have read it, had he wished to; that he looked it over, and signed his name.

      Fletcher & Wanty, for appellant.

      Cf. H. Albers (C. O. Smedley, of counsel), for appellee.
   Grant, J.

(after stating the facts). Counsel for plaintiff contend that this case is ruled by Temmink v. Insurance Co., 72 Mich. 388. Counsel for the defendant contend that the assured is presumed to have read what he signed, and that there was no evidence that he did not read it, and did not know the contents of the application; that he had an opportunity to read it, and, if he chose not to do so, he must be held responsible for any false representations therein contained, — and cite Cleaver v. Insurance Co., 65 Mich. 527 (8 Am. St. Rep. 908), 71 Mich. 414 (15 Am. St. Rep. 275). The only difference between the facts in the Temmink Case and this is that the assured looked over the application. The assured in that case had the same opportunity to look over the application, for she had it in her possession to sign. The agent in this case had known the deceased for eight or nine years, had no knowledge of his being ill before the illness which resulted in his death, and, relying upon his own knowledge of the life of the assured, chose to answer these questions himself, without interrogating him, or calling his attention to them, or informing him that there was any importance to be attached to them. In fact, it does not appear that he informed him that there were any other questions to answer, while those he answered were answered correctly. The applicant had the right to assume that all the questions were asked, and was under no obligation to read the paper to ascertain if there were others. The application was in very small type, and very closely printed. The questions and answers were below the application, and were 22 in number. While every person is presumed to have read what he has signed, still we think that there was testimony in this case from which the jury might legitimately infer that the assured was misled by the agent of the defendant in making the application. We are therefore of the opinion that this case is ruled by Temmink v. Insurance Co., and that the judgment must be affirmed.

The other Justices concurred.


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    RUMMELL v. LAMB.
    Appeal — Violation op Injunction.
    Upon a consideration of the evidence, the decree of the lower court, adjudging the defendants guilty of contempt in violating an injunction, was affirmed.
    Appeal from Gratiot; Daboll, J.
    Submitted October 20, 1896.
    Decided November 17, 1896.
    Bill by Caspar M. Bummell against Nehemiah Lamb and Merritt E. Lamb to enjoin the construction of a drain. Defendant Nehemiah Lamb appeals from an order adjudging both defendants to be guilty of contempt in violating a preliminary injunction.
    Affirmed.

      Searl & Kirby, for complainant.

      Lewis Severance (W. A. Norton, of counsel), for appellant.
   Hooker, J.

A decree of the circuit court, restraining the defendants, Nehemiah and Merritt E. Lamb, from constructing a contemplated drain, was affirmed by this court. See 100 Mich. 424. The complainant claims that a preliminary injunction was disregarded, and, upon proceedings instituted against them for the purpose, both defendants were found guilty of violating the injunction, and they were required to pay to the complainant the sum of $155.38, that being the amount of his actual loss and injury in the premises. Nehemiah Lamb has appealed from the decree.

It is contended that there is no evidence connecting Nehemiah Lamb, and that all of the digging done subsequent to the service of the injunction was upon the land of Merritt E. Lamb, and that he cannot be considered responsible for the acts of his brother. The circuit judge, who saw the witnesses, seems to have been convinced that Nehemiah Lamb participated in the acts constituting the violation of the injunction, and we see no reason for doubting the justice of his conclusion or disturbing his decree, which is hereby affirmed.

The other Justices concurred.


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    STRUTZ v. BROWN.
    1. Pleading — Bill op Particulars — Suppioiency.
    An objection to the - sufficiency of a bill of particulars cannot be raised upon the trial, where no motion for a more specific bill was made, even though a further bill may have been demanded of the opposite party. -
    3. Same.
    A bill of particulars claiming a given amount as a balance due for services rendered as bookkeeper between certain specified dates is sufficiently specific. • •
    Error to Saginaw; Wilber, J.
    Submitted October 9, 1896.
    Decided November 17, 1896.

      Assumpsit by Fred C. Strutz against Addison T. Brown upon certain promissory notes and .for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William H. Siveet, for appellant.

      Weadock & Purcell, for appellee.
   Long, O. J.

This action was commenced in the circuit court by filing a declaration on the common counts, with a copy of two promissory notes set out under proper notice; also a further notice was given, as follows:

“Thatthe following is a true copy of the particulars of plaintiff’s demand under the common counts of said declaration, viz.:
“To balance due for services as bookkeeper from October 16, 1894, to December 26, 1894, $50.
“ Interest on same,-.”

This was signed by plaintiff’s attorneys.

Defendant demanded a further bill of particulars, which was not furnished, and his default was entered for not pleading. On motion this default was thereafter set aside by the court. No additional bill of particulars was filed. Defendant pleaded the general issue, with specific notice of his defense. He filed no bill of particulars of his claimed defense, and no such bill was asked, and no part of it recovered on the trial. No motion was made to the court for an order compelling plaintiff to file a more specific bill of particulars. The cause went to trial, and, the plaintiff being called as a witness in his own behalf, it was objected by counsel for defendant that the bill of particulars was not specific enough to admit any proof in support thereof. This was overruled, and upon such ruling is based the first claim of error.

Circuit Court Rule No. 38 provides:

“If the plaintiff shall unreasonably neglect to furnish a bill of particulars, or if the bill of particulars delivered be insufficient, the court may, in its discretion, nonsuit the plaintiff, allow further time to furnish it, or require a more particular bill to be delivered.”

If the defendant desired a more specific bill of particulars, he should have moved the court for the same. Instead of doing this, he waited until the cause was brought on for trial, and then claimed that no testimony was admissible under the bill, because it was not sufficiently specific. The court properly overruled the objection. Buckeye Tp. v. Clark, 90 Mich. 432.

But the case need not be rested upon this ground alone. We think the bill of particulars was sufficiently specific, and that defendant could not have been taken by surprise on the trial, under the claim made by the bill. Hamilton v. Ingham Circuit Judge, 84 Mich. 398.

Some contention is made that the court below admitted certain testimony under defendant’s objection, and that such testimony was incompetent, and prejudicial to the defendant’s case. We need not set out the testimony here, or the point in the case to which it was directed, as we are satisfied that it was, very properly admitted, and that it would have been error, under the circumstances, to exclude it.

We find no error in the case, and the judgment must be affirmed.

The other Justices concurred.


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    VAN CLEVE GLASS CO. v. ERRATT.
    Mechanics’ Liens — Material Men — Who Are.
    One who sells building material to a dealer in the usual course of trade, without any knowledge or understanding that it is to enter into any particular building, is not entitled to a lien therefor on the building in which it is afterwards used, and for which it was in fact ordered by the dealer under contract with the owner.
    Appeal from Cheboygan; Adams, J.
    Submitted October 7, 1896.
    Decided November 17, 1896.
    Bill by the Yan Cleve Glass Company against William Erratt, George Hughes, Henry M. Airth, and Joseph Kesseler to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Henry G. Dozer, for complainant.

      Frost & Sprague, for defendant Kesseler.
   Grant, J.

The defendant Kesseler, in the summer of 1S94, erected a store building upon his land in Cheboygan. One Tuttle was employed by him to superintend the erection of the building, and to purchase materials for its construction. Defendants Erratt and Hughes were copartners, under the firm name of Erratt & Co., engaged in the retail hardware business in Cheboygan. Complainant was a corporation, organized under the laws of Ohio, and engaged in the business of wholesaling plate and window glass in Cleveland, in that State. Tuttle ordered of Erratt. & Co. plate glass designed to be used in the building for $210. Erratt & Co. purchased the glass of the complainant for $192, free on board at Cheboygan. Both orders were given in the usual course of trade. In giving the order to complainant, Erratt & Co. did not state that it was intended for any particular building. On October 17th the building was ready for the glass, which had not then been shipped. Erratt & Co., on that date, wrote complainant to push the order as rapidly as possible, “as the building is now waiting for it.” The glass was shipped to Erratt & Co. soon after, and, upon its arrival, Kesseler paid Erratt & Co. the agreed price. In November following, Erratt & Co. failed, whereupon the complainant instituted this suit to enforce a mechanic’s lien for material furnished. Upon the hearing, a decree was entered dismissing the petition.

There was no contract relation between complainant and Kesseler. It sold the property in the usual course of trade, without any knowledge or understanding that it was to enter into any particular building. • The lien statute of this State does not cover such a case. Willard v. Magoon, 30 Mich. 273; Stout v. Sawyer, 37 Mich. 313; 15 Am. & Eng. Enc. Law, 56.

The decree is affirmed, with costs.

The other Justices concurred.