text:
    APHORESMENOS v. McINTOSH.
    1. Master and Servant — Unsafe Place — Disobeying Orders.
    A decedent -who had been ordered, in the process of wrecking a building, to dig a trench and not to dig below the footings, but who went too deep, causing the concrete wall adjacent to it to tilt towards him, was guilty of negligence barring his recovery for injuries that he sustained, and without some affirmative proof that he misunderstood orders, because of his ignorance of the English language, his estate could not recover on the theory of failure to provide a safe place.
    2. Same — Exceptions to Rule of Safe Place.
    Where the servant is engaged in making his own place to work, or where he creates a dangerous situation as an incident of the work he is doing, the master is not chargeable with failure to provide a safe place. And there was no occasion to warn deceased of a danger which could only arise from disobedience of the employer’s instructions.
    3. Witnesses — Evidence—Cross-Examination.
    The fact that defendant was called for cross-examination under Act No. 307, Pub. Acts 1909, did not, where there was no contradictory evidence, deprive his testimony of its weight, but it was entitled to the same force or effect as it would have had if he had been called as a witness in his own behalf.
    Error to Muskegon; Sullivan, J.
    Submitted April 20, 1914.
    (Docket No. 83.)
    Decided January 3, 1916.
    Case by Christ Aphoresmenos, as administrator of the estate of Frank Aphoresmenos, deceased, against Alexander McIntosh, for injuries resulting in the death of plaintiff’s decedent. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Turner & Turner, for appellant.

      Cross, Vanderwerp, Foote & Boss, for appellee.
   Bird, J.

Defendant was engaged at Muskegon in the work of razing an old brick and cement building preparatory to the erection of a new one. The brick had been removed, leaving a cement wall and a footing upon which it rested. The wall and footing together were from three to five feet in height. The wall was one foot thick, and the footing was two feet thick. The process of removing the cement was to dig a trench along the outer wall to the depth of the footing, and then break up the concrete and roll the pieces into the trench. Plaintiffs intestate was employed as a common laborer, and was set to work by the foreman digging the trench. He and his companion dug it below the footing, which caused the concrete to tilt to an angle of 45 degrees toward him. Presumably in an effort to protect himself, when he observed the concrete moving toward him, he placed his shovel blade against the concrete and the handle against himself, and he was thereby forced against the outer wall of the trench and injured so badly that he died the second day thereafter.

Defendant was charged with negligence in failing to provide a safe place for plaintiff to work. After the trial judge had heard the plaintiff’s proofs, he directed a verdict for the defendant, on the ground that the doctrine of safe' place was not applicable to the facts proven, and because plaintiff assumed the risk. The assignments of error raise the one question whether the trial court was in error in controlling the verdict.

The trial court was of the opinion that the rule of safe place was not involved, inasmuch as the plaintiff was engaged in making his own place in which to work. The general rule is well settled that a master must at his peril provide his servants with a reasonably safe place in which to work, but there are exceptions'to that rule. Where the unsafe place is made by the servant himself, or where the unsafe place is created as an incident of the work being performed by the servant and his colaborer, the master is not liable. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505); Welch v. Brainard, 108 Mich. 38 (65 N. W. 667); Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431); Strepanski v. Plaster Co., 162 Mich. 696 (127 N. W. 706).

The uncontradicted testimony is that the deceased and his. colaborer were instructed by the defendant to dig the trench no deeper than the footing, and, had the instructions been followed, the concrete would not have tilted over toward him. The place was reasonably safe until it was made unsafe by disobeying the orders of the master. Under such circumstances the plaintiff is in no position to insist that his intestate received his injuries through the negligence of the master. Plaintiff’s intestate was of foreign birth, and did not readily speak and understand our language, and it is urged that it was not made clear to him what the instructions and dangers were. It appears that the deceased had worked as a common laborer for the defendant for two weeks or more, and it does not appear that he had had any difficulty in understanding defendant’s orders, and it does not appear that either he or his colaborer failed to understand defendant’s orders on this occasion. And there was no occasion for defendant to warn the deceased of dangers which could arise only by disobeying his. instructions. We agree with the trial court that the case falls within the principle of the cases cited, and that no negligence was shown upon the part of the defendant.

Plaintiff’s counsel called defendant for cross-examination under Act No. 307, Pub. Acts 1909. After giving testimony at length upon the material phases of the case, which testimony was not afterward contradicted, counsel assert that the plaintiff is not bound by it. Testimony developed in this manner may be contradicted and overcome by other testimony, but its effect cannot be destroyed or put aside by mere assertion. Defendant’s testimony so developed stood in no different position in the case than it would had it been called out by cross-examination after he had taken the stand in his own behalf.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Brooke, C. J. Kuhn, J. Ostrander, J.

license: Public Domain

text:
    VOORHEES v. NELSON.
    1. Duress — Threat of Prosecution — Contracts.
    Threats of prosecution, unaccompanied by any threat of immediate imprisonment, do not amount to duress.
    2. Same — Illegal Transaction.
    Where plaintiff entered into a fraudulent transaction with several others to wager money on a horse, understanding that the opposing jockey had been bribed to throw the race to the horse on which plaintiff was betting, but the race did not result as they anticipated, and where defendant N. had been induced by plaintiff to become a party to the fraud and he also placed a considerable sum on the losing horse, and where defendant’s agent whom he sent to plaintiff to obtain a settlement after learning that plaintiff had shared in the amounts secured from defendant, made threats of prosecution which intimidated plaintiff and caused him to pay defendant a large sum ' in settlement of the unlawful transaction, plaintiff not paying the money to defendant until several days had elapsed, but claiming that he was influenced by the threatened prosecution, he was not entitled to recover on the ground of duress, since there was no evidence of threatened imprisonment, and for reasons of public policy plaintiff should not be permitted to recover money paid as a part of an illegal and fraudulent transaction wherein plaintiff participated as one of the principals. Ostkandee and Stone, JJ., dissenting.
    Error to Gratiot; Searl, J.
    Submitted October 9, 1914.
    (Docket No. 59.)
    Decided January 3, 1916.
    Assumpsit by Peter R. Voorhees. against Clinton Nelson and others for the recovery of money paid under duress. Judgment for plaintiff against defendant Nelson, who brings error.
    Reversed.

      Lyon & Moinet, for appellant.

      Walbridge & Kelley, for appellee.
    In October, 1908, plaintiff was introduced to one Coon by a man named Adams. Adams was an old acquaintance of plaintiff, and a man with whom plaintiff had occasionally played poker. Before the introduction Adams asked plaintiff if he would like to go into something where he could make some easy money. Plaintiff replied that it would depend on what kind of a scheme he had. Adams assured him that it was all straight and that Coon, to whom he then introduced him, would supply the details. Coon thereupon unfolded a plan to the plaintiff, in brief as follows:
    He represented that one Guernsey, a cousin of his, was working for a bunch of Pittsburg “millionaires,” who were the owners of a fast horse; that they were sports and ready to back their horse for a large sum of money; that Guernsey, their employee, had a horse which would be run against the horse owned by the “millionaires;” and that through a corrupt arrangement with the jockey riding the “millionaires’ ” horse, the “race” would be thrown against the “millionaires.” It was further represented by Coon to the plaintiff that it was necessary for his cousin, Guernsey, to have some one bet the money which Guernsey would furnish against the money which the “millionaires” would wager upon their horse. Coon asked plaintiff to accompany him to Council Bluffs, Iowa, where the “millionaires” then were, and to there bet Guernsey’s money against their money, and thus assist in the swindle. Plaintiff at that time was 50 or 55 years of age and had lived in the city of Alma about 13 years, had worked in a sugar factory, had been a contractor, had acted as clerk in two different hotels, and was at that time engaged in the real estate and money loaning business. Defendant Nelson was at that time about 56 years of age, and had lived in Gratiot county 33 years. He was a farmer, bought and sold stock, loaned money, and was a stockholder in both banks in the city of Alma.
    Shortly after the first conversation between Coon and plaintiff, plaintiff met defendant Nelson and proposed that Nelson accompany him to Council Bluffs in connection with the proposed “race.” He told Nelson that Coon’s cousin, Guernsey, had agreed to divide with him (Coon) whatever they won from the “millionaires,” and that Coon had agreed to divide his share with the plaintiff, and agreed that if defendant Nelson would go out there with him that if he got any •money he would divide with Nelson. Defendant Nelson being influenced by the too common desire for “easy money” readily consented to go, and in turn disclosed the details of the project to one Hooper, another resident of Alma, and asked him to go along to see the “race.” Hooper consented and immediately the four —Coon, plaintiff, Voorhees, and defendants' Nelson and Hooper — started for Council Bluffs. Arrived in that city, in due course, Coon produced and introduced to the party his “cousin” Guernsey. Guernsey made it plain to the party that the project was a rich one, but asserted that it would be necessary for the man who did the betting to be able to produce some evidences of financial responsibility. Whereupon plaintiff asserted that he was unable to furnish such evidence, but announced that defendant Nelson could do so. It seems to have been suggested by Guernsey that $20,000 should be deposited in a bank in Council Bluffs, not to be used, but as evidence to convince the “millionaires” that real money was to be put up against their cash. At this stage of the proceedings plaintiff and defendant Nelson each wrote a letter to one- Brewbaker, cashier of the bank at Alma, for the purpose of arranging a credit there for defendant Nelson so that he could make the necessary showing of financial responsibility in Council Bluffs. Later they concluded that the matter could not be arranged by mail, and defendant Nelson returned to Alma with the intention of arranging it in person. After a conference with the cashier of the bank he returned to Council Bluffs without any money, but further representations having been made to him as to the necessity, he again came to Alma, and upon this occasion took back to Council Bluffs with him a draft for $2,000. This he deposited according to instructions in a bank in Council Bluffs. Although Guernsey expressed dissatisfaction with the smallness of the amount, it was agreed that the match should be made and the “race” proceed. The betting took place in a hotel in Council Bluffs. In one room were defendant Nelson, Hooper, and Coon, and in another room were Guernsey and the “millionaires.” At the last moment before the betting started it was suggested by Guernsey that defendant Nelson do the betting instead of plaintiff, Voorhees, because Voorhees was “nervous.” The parties agreed to this, and Guernsey-turned over to Nelson $5,000 in new currency of $100 denomination.
    The modus operandi appears to have been as follows: Nelson would bet $1,000, which would be carried into the next room and placed in the hands of Guernsey, who, because of his relations to the “millionaires” acted as stakeholder. There this sum was supposed to be covered by an equal'amount wagered by the “millionaires.” This process would be repeated from time to time. When the $5,000 furnished by Guernsey was exhausted, he found means of returning it to the possession of Nelson, who would thereupon repeat the process. During the first session while this game was being carried on, Nelson theoretically wagered $18,000, and a like amount, the property of the “millionaires,” was supposed to be in possession of Guernsey. At this point a recess was taken, when it was hinted to defendant Nelson, Coon, and Hooper that the “millionaires” had remarked upon the fact that their opponents were possessed of so much new money. Somebody thereupon suggested that defendant Nelsoii withdraw his $2,000 from the bank, which would be paid to him in old bills, that $2,000 of the new money should be exchanged for his $2,000, and that for security this should be placed beneath his nightshirt in his grip, and the old money used in its stead to allay the suspicion of the “millionaires.” At the adjourned session this plan was carried out. The betting proceeded as before, but when Guernsey returned the money by messenger to be bet over and over again by Guernsey, it was placed in Nelson’s satchel, from which Nelson withdrew it to wager from time to time. The betting finally amounted to the sum of $33,000, when it was discovered by defendant Nelson that the $2,000 supposed to be under his nightshirt had become mixed with the other money, and that he had inadvertently wagered that as well as the money received by him from Guernsey. Defendant Nelson upon making this discovery became convinced that he was being swindled, but was convinced that it would be useless to try to recover his money. The “race” took place the next morning. Through the sudden indisposition of the jockey riding Guernsey’s horse, which occurred at a moment when the "race” was almost won, the race was lost, and with it the $2,000 belonging to defendant Nelson. After the “race” was over and on the same day, plaintiff and defendants Nelson and Hooper left Council Bluffs for Alma.
    Some time in the year 1909 the Federal authorities in Council Bluffs arrested and prosecuted the Mabray gang, for the perpetration of this among other frauds. Coon appears to have given evidence on behalf of the people in that proceeding. Plaintiff and defendant Nelson were likewise witnesses. In giving his testimony in the criminal case at Council Bluffs, plaintiff denied that he had ever written or seen any letters in connection with the fraud which had been perpetrated. Defendant Smith, the deputy postmaster at Alma, seems to have been active on behalf of the government in producing testimony for the trial at Council Bluffs. It appears that some time after that trial and in March or April, 1910, Coon disclosed to Smith, the alleged fact that plaintiff had been paid a portion of the money out of which .defendant Nelson had been swindled at Council Bluffs. Coon, himself, had at that time paid to defendant Nelson about $550. Acting on the information obtained from Coon, Smith interviewed the plaintiff and told him that defendant Nelson believed that he, plaintiff, had participated in the fraud and in the avails thereof. Plaintiff stoutly denied his participation. He testified that Smith threatened if he did not make good Nelson’s loss that Nelson would cause his arrest and prosecution in Council Bluffs for his share in the fraud. Smith denied that he made threats of any kind, but admits he told plaintiff that Nelson believed the story related by Coon to the effect that plaintiff had secured part of the money out of which he (Nelson) had been swindled. Several days elapsed between the time this information was conveyed to the plaintiff and April 2, 1910, upon which date plaintiff paid over to defendant Hooper for the use of defendant Nelson the sum of $2,278.50, taking therefor the following receipt:
    “Alma, Michigan, April 2, 1910.
    “For a consideration this day received from Peter Voorhees by me, the same being in full of all claims against him in the matter of the Council Bluffs case, and I hereby agree to commence no action against the said Voorhees in any matter growing out of this affair, the same having been fully settled to my satisfaction.
    [Signed] “C. Nelson.”
    On April 22,1912, 2 years and 20 days after the payment of the money, plaintiff brought his action against the three defendants, Nelson, Hooper, and Smith, charging a conspiracy between the three, and that the money had been paid by him under duress. Upon the trial the court held there was no evidence sufficient to carry to the jury the question of conspiracy, and directed a verdict in favor of defendants Hooper and Smith. He, however, submitted the case to the jury as against defendant Nelson solely upon the question of duress. Under the charge as given the jury returned a verdict in favor of plaintiff for the full sum with interest. The judgment entered thereon is now reviewed in this court by defendant Nelson.
   Brooke, C. J.

(after stating the facts). As the sole question upon which the case went to the jury was one of duress, it becomes pertinent to examine with some particularity the testimony of plaintiff bearing upon that question. Referring to the defendant, plaintiff testified:

“He did say that in my office when George Sharrar and Mr. Hooper and I were present. He said to me right there, 'Mr. Voorhees, if you are not guilty, I don’t want a dollar of your money.’-
“Q. You believed Mr. Nelson meant that when he told you that there, did you not?
“A. Believed he meant what?
“Q. Just what he said, that he didn’t want a dollar of your money unless you were guilty?
“A. Yes, sir; I think so.
“Q. You thought so then and you think so, now, don’t you ?
“A. Yes, sir; I do.
“Q. You thought that Clint Nelson was and is sport enough so that he would not want a dollar back unless you were guilty?
“A. I don’t think he would. Mr. Nelson made no threat to me of any kind, character, or nature at any time.
“Q. The strongest or nearest to any threat that he ever made to you was to say to you, if you are not guilty he didn’t want a dollar of your money?
“A. Yes, sir.”

Plaintiff, further testifying as to what defendant Smith .had told him, said :

"Then he said that I would have to fix it up with Mr. Nelson, and if I didn’t that somebody was going to prosecute me. * * * And he told me that I had better see Mr. Nelson and . get the matter fixed up. Why, they said they were going to take me to Council Bluffs, and prosecute me out there. I didn’t know but what they would land me in jail. I could not go there without anybody to go on my bond. I was scared to death. I didn’t know but that they would land me in jail.
“Q. You expected that you might be taken out there at any minute?
“A. Yes, sir. * * * I claim that in my own mind I was perfectly innocent of any charge upon which any prosecution could be grounded. And being entirely conscious of my own innocence, I immediately lost my nerve.”

It is quite clear from the foregoing that defendant Nelson himself made no threats of any kind against the plaintiff. On the contrary he repeatedly told plaintiff that if the plaintiff were innocent, that is, if he had not shared in the money out of which defendant Nelson had been swindled, he should not pay a dollar. Assuming (though it is flatly denied by Smith) that Smith made the threats as testified to by plaintiff and that such threats were made by the authority of defendant, of which there is no proof in the record, do they amount in law to duress? We are of opinion that this question must be answered in the negative. In the early case of Hackley v. Headley, 45 Mich. 569 (8 N. W. 511), Mr. Justice Cooley, speaking for the court, said:

“Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will. It is commonly said to be of either the person or the goods of the party. Duress of the person is either by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted.”

In the later case of Beath v. Chapoton, 115 Mich. 506 (78 N. W. 806, 69 Am. St. Rep. 589), this court, speaking through Mr. Justice Grant, said:

“Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress” — citing Harmon v. Harmon, 61 Me. 227 (14 Am. Rep. 556); Buchanan v. Sahlein, 9 Mo. App. 552; Bodine v. Morgan, 37 N. J. Eq. 426; Dunham v. Griswold, 100 N. Y. 224 (3 N. E. 76); and Preston v. City of Boston, 12 Pick. (Mass.) 7, 14.

See, also, Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657), and Dallavo v. Dallavo, ante, 350 (155 N. W. 538).

Defendant Nelson’s eighth request to charge was as follows:

“The Supreme Court of this State in Beath v. Chapoton, 115 Mich. 506, 509 [73 N. W. 806, 69 Am. St. Rep. 589], declares the law to be that ‘threats of criminal prosecution unaccompanied by threats of immediate imprisonment, do not constitute duress/ and in accordance with that holding I charge you that there was no duress in this case and that plaintiff cannot recover against any of the defendants.”

We are of opinion that this request should have been .given. It is worthy of note that plaintiff, upon the payment of the money for which he brought suit, secured from defendant the receipt which is set out in the statement of facts, and that he permitted the matter to stand without disaffirming the contract or making any demand for the return of his money for more than two years. In the meantime the Federal statute of limitations (U. S. Comp. Stat. 1901, § 1044), had run in his favor so that a prosecution against him for complicity in the fraud perpetrated at Council Bluffs was barred. He testified that he held this receipt as a protection against such prosecution. '

Although plaintiff is barred from recovery in this case because the payment of the money was not secured by the exercise of legal duress, we think, a broader ground exists for reaching the same conclusion. The payment of the money was corollary to, if not a distinct part of, the illegal arid fraudulent transaction in which plaintiff frankly admits he participated as a principal. Whether his original purpose was to help swindle his friend, defendant Nelson, or simply to help Nelson and Guernsey to swindle the “millionaires,” or whether he actually participated in a division of defendant Nelson’s money, appears to be of no consequence. Public policy demands that the courts be closed to men such as the plaintiff when they come demanding relief from consequences which result from their own admittedly illegal and fraudulent acts.

The judgment is reversed, and there will be no new-trial.

Moore and Steere, JJ., concurred with Brooke, J.

Kuhn, J.

I concur in the result reached by Justice Brooke, as to the question of duress.

Ostrander, J.

(dissenting). The trial court advised the jury:

“You will readily see it all gets down to the question of whether Voorhees at the time he paid this money over was acting as a free moral agent. Did he have his will power and exercise it there? It is not sufficient for him to show to you that the threats were made; that alone is not enough. It is not enough for him to show that the threats were made and that he had some fear of arrest or some fears that the government would take some proceedings against him or investigate further. That is not sufficient. But in order to recover here, he must show to you that these threats that were made in behalf of Nelson, if they were made in behalf of him as the plaintiff claims, had such an influence upon him and over him and upon his mind as to so put him in fear of the results of what might happen if he didn’t pay, as to take away his will power and impelled him to pay any way, against his wishes.
“In considering whether he was so under duress and so in fear and compelled to pay, considering whether he did act as a free moral agent or not, you should consider all that had come to the knowledge of Voorhees. You will remember that there was some testimony of Sharrar having been told by Smith, if I remember correctly, something about this transaction, and that Sharrar testifies- that he communicated that to Voorhees. You have a right to consider that, if you find it to be true, even though that didn’t come directly from Nelson, as determining the condition of Mr. Voorhees’ mind. How much was he worked up about the matter? And I think it is practically conceded by everybody that he was somewhat excited. The question is what was his condition of mind. How much was he put in fear, to what extent, at the time the transaction was finally closed up ? If it was to the extent that he could not resist, his will power was overcome by reason of the fear, then the money was- involuntarily paid and he may recover it back. Otherwise he cannot do so.”

This, I think, is a fair statement of the applicable law. Lewis v. Doyle, 182 Mich. 141 (148 N. W. 407); Nelson v. Leszczynski-Clark Co., 177 Mich. 517 (143 N. W. 606); Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657); Cribbs v. Sowle, 87 Mich. 340 (49 N. W. 587, 24 Am. St. Rep. 166); Koons v. Vauconsant, 129 Mich. 260 (88 N. W. 630, 95 Am. St. Rep. 438). There was, in. my opinion, abundant testimony to sustain a verdict for plaintiff under the charge of the court.

It is clear, and the jury was advised, that defendant Nelson had no claim against plaintiff which he could have enforced. Plaintiff denies that he ever had any of the money which Nelson lost at Council Bluffs. But Nelson demanded and received from plaintiff $2,-278.50, and he signed the receipt and promise set out in the opinion of'Mr. Justice Brooke. As computed by Nelson, this is the sum of all the money he lost at Council Bluffs, interest upon it, and his expenses. How did Nelson contrive to secure this money? The testimony for plaintiff, if believed, proves beyond question that it was secured by means calculated most certainly to work upon the mind of plaintiff, to induce fear, to cause him at any sacrifice to save himself from represented, threatened, danger, not necessarily of conviction for a crime committed, but of arrest, examination, and perhaps trial for an alleged offense. It is true that Nelson made no threats and said to plaintiff that if he had none of his, Nelson’s, money he did not want a dollar. But of what avail was this when by his actions and those of his agents he was also saying,

“I do not believe your denials, I believe you guilty and I want the money.”

Smith himself testifies that he had an arrangement with Nelson by the terms of which he was to receive one-half of whatever sum Nelson recovered or received. He has since begun suit against Nelson to recover it. Hooper, also active in the matter, was paid more than $500 by Nelson for his good offices. Very adroitly, the danger in which he stood was represented to plaintiff and to his partner. Plaintiff was not beaten into insensibility with a club, nor confronted with handcuffs or a warrant for his arrest. Probably defendant Nelson and his agents would say that plaintiff’s conscience was made particularly active. A fair interpretation of the testimony is that the psychological effect of the suggestions adroitly made to plaintiff was the effect hoped for,, producing what Nelson and his agents profited by.

Nor do I agree with the conclusion that the courts are closed to plaintiff even if the money was procured by duress. His demand in this suit is not from consequences of his own illegal or fraudulent acts. It is for money secured from him by intimidation and coercion. Men “such as the plaintiff” are not without redress against those who, using their knowledge of some escapade, succeed in extorting money from them. If this were not so, then reprisals might go on for an indefinite period with safety to the one who best succeeded in creating terror.

Properly enough, in the view he has taken, my Brother Brooke does not state or discuss numerous points raised by appellant. There are 62 assignments of error. Many of them are answered when it is determined that there was, or was not, a question of fact for the jury. Others are based upon the notion that because plaintiff preserved the receipt given to him by Nelson, when he paid Nelson the money, and claimed in his testimony to have relied upon that and other papers for any protection they might afford him, from criminal prosecution among other things, that the court ought to have charged the jury as follows:

“11. If plaintiff’s understanding when he paid the money in question was that he had done something in connection with the Council Bluffs transaction that would or might be investigated by the criminal authorities or that he would or might be prosecuted thereon, and he paid the money, gave the note and took the receipt for his protection against such course, then he cannot recover.”

I find no testimony tending to prove that plaintiff paid the money to compound a felony. Undoubtedly, his testimony supports the conclusion that he believed that by paying the money an investigation of his conduct (and Nelson’s) at Council Bluffs might be, or would be, prevented. No such prosecution was even threatened. It was the imagination of plaintiff, .stimulated by the statements and actions, principally of Smith and Hooper, and the demand of Nelson, which pictured the possible fate of himself, innocent or guilty, if what was represented as probable became actual. Believing the testimony of and for plaintiff, no one can reasonably conclude that he voluntarily paid the money to Nelson.

Some reliance is placed by appellant upon the fact that a considerable length of time elapsed between the payment of the money and the bringing of this action, during which the Federal statute of limitations operated in plaintiff’s favor. The fact is material as affecting the estimate the jury should give to plaintiff’s testimony in determining whether he paid the money under duress. But if the money was paid by duress, there is no statute of limitations which may be successfully pleaded by defendant.

Error is assigned upon rulings admitting and rejecting testimony. Conspiracy of defendants is alleged in the declaration, and considerable latitude was properly allowed in receiving testimony which it was claimed tended to prove, or disprove, concerted action. Whether the court was right in holding there was not sufficient testimony upon the subject of conspiracy to take the case to the jury is a question not presented upon this appeal. An examination of the exceptions relied upon has satisfied me that no prejudice could have resulted to appellant.

Satisfied there was no reversible error committed, I think the judgment should be affirmed.

Stone, C. J., concurred with Ostrander, J.

Bird, J., did not sit.

The late Justice McAlvay, to whom this case was assigned, took no part in this decision.


author: Bird, J.

text:
    UNION BANKING CO. v. TRUSCOTT BOAT MANUFACTURING CO.
    1. Equity — Jurisdiction—Biul in Aid of Execution — Debtor and Creditor — Demurrer.
    A bill in aid of execution lies in the courts, of this State to avoid fraudulent transfers made hy a bankrupt corporation, the affairs of which are in process of administration in the Federal courts of a foreign State. In cases where the bankruptcy court has jurisdiction the State court has concurrent jurisdiction with it. And the possession of the bankruptcy court determines whether it has jurisdiction. Ostrander, J., dissenting.

      .2. Sam®.

      Held, on demurrer, that objections raised to the pleading as stating a conclusion and to the question of good faith of subsequent creditors were not necessary to be considered, and that if the averments of the complainant were established at the hearing it would be entitled, to relief in some form.
    Appeal from Berrien; Bridgman, J.
    Submitted January 14, 1915.
    (Docket No. 87.)
    Decided January 3, 1916.
    Bill in aid of execution by the Union Banking Company against the Truscott Boat Manufacturing Company1 and others. From a decree overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Stratton & Evans, for complainant.

      Montgomery, Hart, Smith & Steere, for defendant Mann.
   Bird, J.

This bill in aid of execution is filed by complainant, as a judgment creditor of the Truscott Boat Manufacturing Company, to set aside a conveyance of certain premises situate in the city of St. Joseph, made hy it to the National Boat & Engine Company, on the theory that it was in fraud of its creditors. Defendant Mann demurred to the bill, and upon a hearing thereof the demurrer was overruled.

The bill alleges that complainant on December 20, 1910, recovered a judgment for damages and costs in the St. Joseph circuit court against the Truscott Company in the sum of $10,163.58, and that thereafter execution was duly issued out of said court and levied upon said premises. Then follows the usual allegations in such a bill. In addition to them, it is alleged that the Truscott Boat Manufacturing Company in December, 1910, was engaged in manufacturing motorboáts in the city of St. Joseph; that it was then a going and solvent concern, and was the owner of real and personal property amounting to the sum of $100,-000, and that its indebtedness did not exceed $25,000; that, while its financial affairs were in this condition, it was induced to and did enter a merger of boat companies to be called the National Boat & Engine Company, a Maine corporation. The consideration therefor was preferred and common stock of the National Boat & Engine Company in the amount of $542,170,. and first mortgage bonds of that company in the sum of $42,000. These stocks and bonds were turned over to and accepted by the stockholders of the Truscott. Company in consideration of a conveyance of all of its corporate property. After said transfers of the Truscott Company, and the transfers of the other companies constituting said merger, the said National Boat & Engine Company executed a trust deed upon the entire assets conveyed to them to the Astor Trust Company to secure an issue of bonds of $3,000,000. Subsequently William H. Mann was substituted as trustee in place of the Astor Trust Company.

It is further represented that the said National Boat & Engine Company was declared bankrupt in the District Court of the United States for the District of Maine on or about the 15th day of September, 1911, and that such proceedings were thereafter had that one Walter I. Woodman was appointed trustee in bankruptcy of the estate of said bankrupt, and that the said Walter I. Woodman claims to be in possession of the real estate, the buildings, and manufacturing plant of the said Truscott Company in said city of St. Joseph. It is further charged that the Truscott Boat Manufacturing Company in and by said transfers divested itself of all of its property, and on information and belief it is charged that the National Boat & Engine Company was a corporation without capital, and that it paid no consideration for said conveyances from the said Truscott Company, and that said transfers are fraudulent and void, and were made for the purpose of defrauding the complainant and the other creditors of the said Truscott Company, and delaying the collection of their judgments. And the following relief is prayed for:

(a) “That the warranty deed whereby said premises were conveyed to the National Boat & Engine Company may be decreed to be null and void.”
(b) “That said trust deed to the Astor Trust Company as trustee be decreed null and void so far as the premises in question are concerned.”
(c) “That said Walter I. Woodman, trustee in bankruptcy, be decreed to have no interest whatever in the premises described in paragraph 2 of this bill of complaint, as trustee in bankruptcy of the National Boat & Engine Company, and that said Walter I. Woodman be enjoined from asserting any rights of possession or ownership over said premises, and especially the said Walter I. Woodman, as trustee, be enjoined by the final decree of this court from selling, mortgaging, or offering for sale the said premises, and from in any manner- interfering with the sale of said premises pursuant to the final decree of this court.”
(d) “That said William H. Mann, as successor in trust to the Astor Trust Company, be enjoined from asserting any right or control over said premises by virtue of said trust deed, and the said William H. Mann, as such trustee, be enjoined from the foreclosure of said trust deed, or taking any action whatever thereunder in any manner interfering with the sale of said property and conveyance to the purchaser under sale of a title free and clear of any claim or lien which said William H. Mann, as trustee, but for the said decree, might assert under said trust deed against said premises.”
(e) “That said property described in the bill of complaint be. decreed to be the property in fee simple of the Truscott Boat & Engine Company, free and clear from any claims of the National Boat & Engine Company, or of Walter I. Woodman, its trustee in bankruptcy, and free and clear of any claims or liens of William H. Mann, as successor in trust to the Astor Trust Company, under said trust deed.”

With a further prayer for general relief.

The grounds of demurrer are:

“(1) That the allegation in the sixteenth paragraph of said bill of complaint that the trust deed dated October 1, 1910, from the National Boat & Engine Company to the Astor Trust Company, is fraudulent and void, and constitutes a cloud upon the title of the premises in said bill of complaint described, is a mere conclusion of law, and that the said bill of complaint contains no allegations of fact upon which the complainant is entitled to any relief as against this defendant.
(2) The' said complainant in the twelfth paragraph of its said bill of complaint alleges that $42,000 of the bonds of the National Boat & Engine Company, which were delivered to the stockholders of the Truscott Boat Manufacturing Company, were secured by the said mortgage to the Astor Trust Company under which this defendant is trustee as the successor of the said Astor Trust Company.
“(3) It does not appear from the said bill of complaint that this defendant, or his predecessor-in said trust, had any notice of the claims of the complainant in said bill of complaint set forth prior to the delivery of the said Astor Trust Company mortgage, or prior to its recording, or prior to the issuance and sale of the bonds thereby secured.
“ (4) It does not appear from the said bill of complaint that the bondholders, who have paid value for their bonds secured by the said trust deed to the Astor Trust Company under which this defendant is successor in trust, had any notice of the claims of the said complainant prior to the purchase by the said bondholders of their said bonds.
“(5) It does not appear from the said bill of complaint that the rights of the beneficiaries of the said Astor Trust Company mortgage, under which this defendant is successor in trust, are inferior to the rights claimed by the complainant in this cause.
“(6) The said complainant does not in and by its said bill of complaint offer to redeem the property on which it claims a lien, and in which it can obtain its rights only by first paying the indebtedness secured by the deed of trust of the National Boat & Engine Company to the Astor Trust Company, under which this defendant is successor in trust.
“ (7) It appears from the said bill of complaint that this court has no jurisdiction of the subject-matter of the said bill of complaint, but that the jurisdiction of said subject-matter is with the District Court of the United States in and for the District of Maine.”

1. It is asserted in support of the demurrer on the question of jurisdiction that the court in which this proceeding was launched, it being a State court, had no jurisdiction to determine the title of the property in question, because the entire assets, including these premises, are in the possession and under the control of the bankruptcy court, and therefore are in the custody of the law. While counsel for the demurrer does not assert in so many words that, where the res is in the custody of the law, the case must be tried in the bankruptcy court, still his argument implies that. Counsel for complainant concedes that, where the bankruptcy court has possession of the res, it has jurisdiction to determine the question of title between the trustee in bankruptcy and an adverse claimant, but he also insists that, while this is true, the State court has concurrent jurisdiction to determine the same thing. We think the cases of Bardes v. Bank, 178 U. S. 524 (20 Sup. Ct. 1000), and Whitney v. Wenman, 198 U. S. 539 (25 Sup. Ct. 778), settle the controversy in favor of the contention of the complainant. In the Bardes Case the bankruptcy court did not have the custody of the property, which was the subject-matter of the suit, and the court held that the bankruptcy court did not have jurisdiction to entertain the action. In the Whitney Case the court by construction held that the property was in the possession of the bankruptcy court, and therefore held that the question of the title to the property could be adjudicated by that court. Both opinions make it clear that the controversies might have been settled in the State court.

The same question arose in a case in the State of New York, where a creditor sought to enforce his chattel mortgage lien against property in the possession of the bankruptcy court. It was held by the Court of Appeals that the State courts had jurisdiction thereof. Skilton v. Codington, 185 N. Y. 80 (77 N. E. 790, 113 Am. St. Rep. 885). In the course of that opinion it is said (quoting from Eyster v. Gaff, 91 U. S. 521):

“ ‘The opinion seems to have been quite prevalent in many quarters at one time that the moment á man is declared a bankrupt the District Court which has so adjudged draws to itself by that act not only all control of the bankrupt’s property and credits, but that no one can litigate with the assignee contested rights in any other court, except in so far as the Circuit Courts have concurrent jurisdiction, and that other courts can proceed no further in suits of.which they had at that time full cognizance, and it was a prevalent practice to bring any person who contested with the assignee any matter growing out of disputed rights of property or of contracts into the bankrupt court by the service of a rule to show cause, and dispose of their rights in a summary way. This court has steadily set its fact against this view. The debtor of a bankrupt or the man who contests the right to real or personal property with him loses none of those rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions.’

“This statement is quoted with approval by Judge Gray in Bardes v. Bank, supra. Of course, we do not mean to assert that under the judgment of the State court the fund or property could be taken from-the possession of the bankruptcy court; the contrary is the law.”

The jurisdiction of the bankruptcy court appears to turn upon the question whether or not it has the possession of the fund or property over which the controversy arises. If it has such possession, jurisdiction follows. If it does not have possession, it is without jurisdiction. In cases of this character, where the bankruptcy court has no jurisdiction, the State court has jurisdiction. In cases where the bankruptcy court has jurisdiction, the State court has concurrent jurisdiction with it.

2. As to the other causes of demurrer aside from the one of jurisdiction, the chancellor, in passing upon it, observed that:

“It seems unnecessary to consider assignments number 1 to 6, inclusive. Such claims may or may not warrant a denial of the bill on final hearing after the evidence is all in.”

After considering these causes of demurrer, we are led to the same conclusion. Should complainant establish the allegations of his bill to the satisfaction of the chancellor at the hearing, it will be entitled to some relief.

The order overruling the demurrer is affirmed.

Stone, C. J., and Kuhn, Moore, Steere, and Brooke, JJ., concurred with Bird, J.

Ostrander, J. I think the court is without jurisdiction.

The late Justice McAlvay took no part in this decision.


text:
    The People ex rel. Michael Finnegan v. Board of Supervisors of Houghton County.

      Practice in the Supreme Court: Service of notice. Notice of motion, after appearance, must be served upon the counsel, and not upon the party.

      Heard and decided, July 7.

    Motion for a change of venue.
    Notice of the motion in this case having been served upon the Clerk of the Board of Supervisors, instead of the counsel, who had appeared in the cause, the Court refused to hear the same.

      O. I. WalJcer, for the relator.


author: The Court

text:
    John Carpenter v. The People.

      Practice in the Supreme Court: Notice of motion. Motions in causes, not on the docket, will not be heard without notice.

      Heard and decided July 7.

    Error to Wayne Circuit.
    This was a motion for final judgment, the defendant in error not having complied with the prior order of this Court to perfect the record.

      The case was not upon the docket, and no notice had been given of the application.

      II. M. Oheever, for plaintiff in error.

      O. Joslin, for defendant in error.
   The Court

held, that it being a motion in the cause, notice was requisite.

Defendant in error then moved, upon affidavit, for further time to perfect the record. The showing not being sufficient, the Court denied the same.


text:
    Alexander Farwell et al. v. Patrick Fox.

      Supreme Court amending proceedings in the Court below. When a demurrer has 1)0611 overruled in the Circuit Court and the judgment entered thereon is brought up by writ of error and affirmed, this Court has no power to remit the case to the Court below in order to allow the party to move there for leave to withdraw his demurrer and plead over. 1

      Heard and decided July 7.

    Error to Sanilac Circuit.
    The defendant below demurred to the declaration. The Circuit Court overruled the demurrer and gave judgment for the plaintiff. The case was removed to this Court by writ of error, and at the last term the judgment was affirmed. (18 Mich. 166.)

      W. T. Mitchell now moves that the case be sent back to the Circuit Court in order that he might move in that Court for leave to withdraw the demurrer and file a plea.
   The Court

held that they had no power to grant the motion.


text:
    The People ex rel. Detroit and Howell R. R. Co. v. The Township Board of the Township of Salem.

      Practice in the Supreme Court: Notice of argument. Mandamus cases, at a term sub sequent to the commencement of proceedings, are calendar causes, to which, the rules requiring notice of argument and printing of briefs apply.

      Heard and decided July 7.

    Application for Mandamus to the Township Board of the Township of Salem, to issue certain railroad bonds.
    In this case, an order to show cause was made returnable on a day in the last term. The return was made during vacation. The cause was not placed upon the docket at this term.
    The respondent being ready for argument, the Court held that the cause must be considered as a calendar cause, which must be regularly noticed and placed upon the docket; and that the record and briefs must be printed, as in other cases.

      A. Pond & H. E. McNeil, for relator.

      G. V. N Lothrop & PT. J. Beahes, for respondent.


author: Per Curiam.

text:
    James B. Lee v. Daniel Marsh et al.

      Trials by Court: Omission to make finding when reguested: Error. Under Circuit Court Kule 87, when a case is tried by the Court, a party has the right before judgment, to demand in writing, that the Court should make a special finding upon questions of law arising in the cause.
    When the record shows that such finding has been required by a proper demand and no special finding whatever has .been made, it is error, and a judgment rendered against the party making such demand will be reversed.

      Heard and decided July 7.

    Error to Livingston. Circuit.
    This was an action of ejectment. The case was tried without a jury. During the trial, no exceptions whatever were taken, but at the close of the evidence, the defendant below requested the Court to make a special finding upon certain propositions of law, which he stated.
    The Court, at a subsequent term, declared orally that the plaintiffs should recover, whereupon judgment' was entered in the usual form for the plaintiffs. No written finding was made by the Court other than the judgment; no steps were taken by the defendant, under Circuit Court Rules 87, 88, 89 to obtain any further finding and no exceptions were taken to the judgment.
    A paper purporting to be a bill of exceptions, embodying the evidence as it appeared on the trial, was signed by the Court and case was removed by writ of error.

      Norris S Uhl, for plaintiff in error.

      Wm. Jennison, for defendants in error, cited Circuit Rules 87, 88, 89.
   Per Curiam.

The record in this case shows, that on the trial, the counsel for the defendant made demand, in accordance with the statute, that the Circuit Judge should make a special finding upon certain law points, which were enumerated by the counsel in making his demand, and which would necessarily require of the Judge; that he should make such a finding of facts as would properly present the law points. By this demand, he became entitled of right to have such a finding, and it was error in the Gourt not to make it.

It is objected, however, that the defendant below did not put himself in position to complain of this error, inasmuch as no exception was taken to the action of the Court. But it is apparent that, if this error can only be examined on exceptions, it will be impossible for the party complaining of it to take advantage of it at all. The error is not committed until a final judgment is entered without such a finding; but an exception, if requisite, it would seem should precede the judgment and be based upon a refusal of the Court to make the finding requested. It would seem therefore, that the party has had no opportunity to except’ until it is too late. But conceding that exceptions at the time the judgment is entered would not be too late, practically the party is precluded from taking them in these cases, from the fact that he is not required or expected to be necessarily present when the judge decides the cause. When the cause is submitted to the Judge sitting in place of a jury, the counsel has discharged his duty when he has argued the case and made his demand for a finding in due form. He is under no obligation to be present at his peril at all times thereafter, lest the Judge may. enter judgment in his absence, and thereby deprive him of legal rights. He has a right to repose upon the legal presumption that the Judge will comply with the statute and make the proper finding. The law will not require of a party to do that which is practically impossible in order to protect himself in this right. Where the record shows that a special finding has been required by a proper demand, and no special finding whatever has been made, we think we have no alternative but to reverse a judgment and order a new trial.

Ordered accordingly.


author: Per Curiam :

text:
    The People ex rel. Donald McIntyre, Treasurer of the Board of Regents of the State University v. The Auditor General.

      Special Tax for the benefit of the University: Construction of Act No. 59 of 1867 and No. 1U of 1869. * An Act of the Legislature of 1867 provided that in that year and each year thereafter, a tas of one-twentieth of a mill should be levied for the benefit of the University. This act was amended in 1869 by act No. 14 which provided for an appropriation in 1869 and each year thereafter, of $15,000' out of the State Treasury for the maintenance of the University, and it also provided that the iund accumulated under this act of 1867 should also he paid to the University:

      Meld, That the University was entitled to whatever should he collected under the act of 1867.

      Heard and decided July 7.

    Mandamus.
    The petition of Donald McIntyre, Treasurer of the Board of Begents of the University of Michigan, states that under the law of March 15 1867 there was assessed on the taxable property of the State in the year of 1867, one twentieth of a mill on each dollar of said taxable property, which tax amounting to $15,398,30 has been collected and under the law of February 24, 1869, has been paid over to said Treasurer. That as appears by the report of the Auditor General for 1868, a similar tax of one-twentieth of a mill was assessed in the year 1868 under said law of 1867 amounting to $15,398,30. That said tax was- charged with other State taxes over to the several counties of the State. That according to the regular course of business in the collection of State taxes previous to February 24,1869, a large proportion of said tax had been collected and was then in the hands of the Collectors of taxes for the several' cities and townships and of the several County Treasurers. That since said last mentioned date and prior to June 12, 1869, a large proportion of said taxes has been actually paid to the State Treasurer, but he could not state the precise amount. That said Auditor on proper demand had refused to pay over the amount of said tax: claiming that said board was not entitled to it.
    The following are the provisions alluded to in the laws of 1867 and 1869.

      1867 No. 59. Laws of 1867 p. 85.

      “ That there shall be assessed upon the taxable property of this State in .the year 1867, and in each year thereafter, for the use, aid and maintenance of the University of Michigan, the sum of one-twentieth of a mill on each dollar of said taxable property assessed and paid into the Treasury of the State, in like manner as other State taxes are by law levied assessed and paid; which tax when collected, shall be paid by the State Treasurer to the treasurer of the Board of Regents of the University in like manner as the interest on the University Fund is paid to said treasurer of said Board.”

      1869 No. If Laws of 1869 p. 19: Toole effect February 24, 1869.

      “ That there shall be appropriated out of the State Treasury for the year 1869, and for each year thereafter for the aid and maintenance of the University of Michigan the sum of $15,000 to be paid by the State Treasurer to the treasurer of the Board of Regents of the University in like manner as the interest on the University Fund is paid the said treasurer of said Board; and it is also provided that the fund already accumulated under the provisions of Act, No. 59, of the Session latos of 1867, shall in like manner be handed over to the said treasurer of said Board of Regents of the University.”
    The respondent claimed that under a proper construe- “ tion of the law of 1869 the Board were not entitled to the proceeds of the tax claimed.

      G. L. Wallcer, for relator.

      Dwight May, Attorney General, for respondent.
    I. By the act of 1867, page 85, the Legislature provided for the raising by tax 1-20 of a mill on each dollar of taxable property in the State, commencing in 1867. It was to be raised and collected and paid into the Treasury the same as other State taxes.
    'By the same law then in force the County Treasurers commenced paying in to the State Treasurer March 1, 1868, and the taxes were not all paid in until December 15, 1868.
    The proviso to the act prevented the payment of the money until the Regents had established a certain school of medicine.
    II. The act of 1869, page 19, is in effect an original act, although it is styled an amendment. It provides for a direct appropriation of $15,000 each year, commencing with 1869, and gives to the University the accrued sum collected under the act of 1867.
    Now, if the University is entitled to the sum claimed by the relator, it follows that the University will receive for the year 1869 over $30,000.
    It will be borne in mind that no sum was to be paid in 1867 by the act of 1867. The act only provides for the assessment in that year, and the amount assessed is to be paid when collected, and it was not and could not have been collected in that year.
    When the demand was made, and even now, under the view of the relator, the second tax under the act of 1867 has not been collected, and hence is not in the Treasury.
    This Court will Rot compel the respondent to draw his warrant on a fund not in existence. Nor will the Court compel the respondent to figure up, if he can, the amount which has been' paid into the, Treasury, and draw his warrant on a fraction of the entire sum.
   Per Curiam :

We are all of the opinion that the Legislature intended by the act of 1869, to give to the University whatever should be collected under the act of 1867.

Ordered accordingly.