text:
    The Bank of Montreal et al. v. The J. E. Potts Salt & Lumber Company. In the Matter or the Petition of Robert K. Gowanlock, Trustee.
    [See 91 Mich. 342.]

      Lien — Assignment—Partnership—Estoppel.
    1. An examination of the opinion is essential to a correct Understanding of the facts found and points decided.
    2. The testimony as to whether one member of the firm assigning their claim to the appellants herein had any interest in the fund, a distribution of which is sought, being conflicting, the Court are not disposed to disturb the finding of the circuit judge on that point.
    Appeal from Bay. (Cobb, J.)
    Submitted on briefs ^ June 23, 1894.
    Decided September 25, 1894.
    Bill to foreclose a mortgage. Claimants Hagerty and Smith appeal from a decree determining the title to certain of the proceeds.
    Affirmed.
    The facts are stated in the opinion, and.in 91 Mich. 342.

      Simonson, Gillett & Qourtright, for appellants.

      T. A. E. & J. 0. Weadoclc, for Eobert Merrick (the original claimant).

      0. E. M’Gutcheon (Julian G. Dickinson, of counsel), for petitioner.
   Grant, J.

After the decision of the case of Bank of Montreal v. J. E. Potts Salt & Lumber. Co., 91 Mich. 342, by which it was established that Mr. Merrick had a lien upon the property of the salt and lumber company for $5,620, a controversy arose between the present contestants over the. distribution of that fund. The Iosco County Savings Bank claimed a lien upon the fund by virtue of an instrument in the nature of a chattel mortgage executed by Mr. Merrick December 4, 1890, by which he conveyed as security to said bank all his interest in certain property piled in-the lumber yards of the salt and lumber company, as well as in the sflt which he had manufactured for said company, either at law or in equity. That paper contained the following clause:

It being expressly understood between the parties hereto that the interest of the party of the first part in the property herein conveyed is as a partner with one William H. Clough, of East Tawas, Michigan, and this instrument expressly conveys the interest of said' Eobert Merrick only.”

August 10, 1891, Mr. Merrick executed an assignment to the claimant Eobert K. G-owanlock in trust for the Preston National Bank, A. Mosher & Son, the Bay National Bank, of Bay City, and the Iosco County Savings Bank, to secure them for certain drafts which had been drawn to Mr. Merrick by the salt and lumber company, and had been negotiated by him to these parties. This assignment recited the filing of a petition by Mr. Merrick in the circuit court for the county of Wayne to establish his lien, $nd the decree of that court in his favor for $5,620, the sale of the salt under the order of the court, and the deposit of the proceeds in court subject to his lien. The trustee was to dispose of the funds as follows:

1. To pay the expenses of the lien proceedings.

2. To pay the Iosco Connty Savings Bank $1,500.

3. To pay the Preston National Bank $800.

4. To pay A. Mosher & Son $800.

5. To pay the Bay National Bank $900.,

6. To return the balance, if any, to Mr. Merrick.

March 6, 1891, claimants Hagerty and Smith obtained a judgment against Merrick for $919.89 and costs, and also a judgment against Merrick and Clough, for $1,769.46 and costs. On March 26, 1891, Mr. Conrtright, one of the attorneys for Hagerty and Smith, obtained two assignments from Mr. Merrick to Hagerty and Smith of his claim against the Potts Salt & Lumber Company, to secure these judgments. Thése were signed by Merrick with the understanding that they were also to be signed by Clough. He refused to sign. They were therefore unexecuted, did not bind Merrick, and are of no consequence in determining the rights of the parties. On the same day, Merrick and Clough executed to Hagerty and Smith an order upon the salt and lumber company or its assignees for the sum of $2,737.31, being the amount of the two judgments. This order is as follows:

“Bast Taw as, March 26, 1891.
To the J. B. Potts Salt & Lumber Company, or its Assignees:
Please pay M. Hagerty & Co., or order, the sum of $2,737.31 out of any moneys now due us for the making and manufacturing of salt. We hereby assign and transfer to them the said sum of money out of any money you owe us.
“Robert Merrick.
“W. H. Clough.”

This paper was taken to Detroit, and left with the receivers, April 1.

Merrick’s contract with the salt and lumber company was made in 1884, and was continued in his name untij the failure and assignment of the company. The proceedings to enforce the lien were carried on in the name of Merrick with the knowledge and consent of Clough. In June, 1889, Merrick sold and conveyed to Clough a half interest in his contract with the company and other business.

September 29, 1892, the several claimants, by their attorneys, filed a stipulation agreeing that the fund deposited in the AVayne county circuit court, should be transferred to the Bay circuit court, in chancery, and that after such deposit either of the parties might proceed by petition to ascertain their rights in and to said money. The trustee, Mr. Gowanlock, accordingly filed a petition. Proofs were taken in open court, and the court decreed against the claim of Hagerty and Smith, and directed a distribution of the fund in accordance with the assignment to the trustee, Mr. Gowanlock. Hagerty and Smith appeal.

The decree in this case depends upon the title to the fund. This is a question of fact, was in dispute, and was determined by the court below in favor of the appellee. Clough was at one time a partner with Merrick. In the year 1890, Merrick appears to have assigned his interest to one Schmeck. Schmeck and Clough became partners under the firm name of Schmeck & Clough. The original contract for the manufacture of the salt was with Merrick, and the business appears to have been carried on in his name notwithstanding the interest of the other parties. .It was evidently understood between Clough and Merrick that the proceedings to enforce the lien were to be carried on in the name of Merrick, and Merrick evidently sup-' posed that Clough had some interest; but that question was not involved in the lien case, nor was any testimony there given in reference to it. The question is now raised for the first time. It is claimed that the statements made by Merrick in his petition for a lien are inconsistent with his testimony in this case. It must, however, be remembered that the rights of Merrick and Clough were not involved in that suit, and possibly little attention was paid to dates. It does not follow, therefore, that his testimony must be rejected as valueless. The proofs were taken in open court, and the circuit judge had the better opportunity to determine how much weight should be given to Mr. Merrick. There was testimony clearly tending to show that Clongh had no interest in the fund for which a lien was decreed in the former^ suit. There was also testimony to the contrary. We are not disposed to reverse the finding of the circuit judge upon this point.

It is argued, however, that Merrick and his assignees are estopped to deny the interest of Clough on account of the admissions made by Merrick of Clough’s interest. We do not see how Hagerty, and Smith have been misled to their prejudice by the conduct or statements of Merrick. They have lost no lights against Clough, or against Merrick and Clough. The assignment under which they claim the greater part of this fund was made by Merrick and Clongh. It conveyed title to no more than Merrick and Clough owned. If they owned nothing, then Hagerty and Smith obtained nothing. One of their attorneys testified that he understood that there was a part of the fund in which Clough had no interest. They knew that under the decree the title was in Merrick, and that no others, either as partners with Merrick or otherwise, could assign any more than their own interest. They must also be held to. have known that the assignment or order given by Merrick and Clough covered only the interest of the firm. It did not cover Merrick’s interest which he held individually.

The decree is affirmed, with costs.

McGrath, O. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    Edgar O. Durfee, Judge of Probate of Wayne County, for the Use of the Legal Representatives of the Estate of Marie Rauscher, Deceased, v. Charles D. Joslyn et al.
    [See 92 Mich. 211.]

      Executors and administrators — Bond on sale of real estate — Evidence — Bes judicata — Error without prejudice.

    1. The decision in Burfee v. Joslyn, 92 Mich. 211, must be considered as settling the law for this case, so far as any of the questions therein disposed of arise upon this hearing,.
    2. Where, in a suit upon an administrator’s bond, the defendants’ testimony shows that the administrator received certain sums of money belonging to the estate, and there is no evidence to the contrary, it is proper for the court to find the fact, established.
    S. Where, in a suit against an administrator and his sureties upon his b.ond given on the sale of real estate, the legitimate, uncontradicted evidence in the case justifies the court in finding that the defendants are liable upon the bond for.the amount, received upon such sale, it becomes unnecessary to inquire whether other evidence tending to establish plaintiff’s case was-admissible or not, as, at most, its admission was error without injury.
    Error to Wayne. (Gartner, J.)
    Argued June 21, 1894.
    Decided September 25, 1894.
    Debt on administrator’s bond. Defendants Joslyn and Palmer bring error.
    Affirmed.
    The facts are stated in the opinion and in 92 Mich. 211.

      Chamberlain & Guise, for appellants.

      James H. Pound, for plaintiff.
   Hooker, J.

Defendant Joslyn was appointed administrator of the estate of Marie Rauscher, deceased, and gave an 'administration bond in the sum of $1,000. Marie Rauscher died seised of a parcel of real estate, upqn which was a mortgage. Upon foreclosure sale this property brought the sum of $683.87 in excess of the mortgage, which sum was paid over to Joslyn as administrator. Some months later he obtained from the probate court a license* to sell the land, which he did, receiving therefor the sum of $830 in excess of the amount necessary to redeem the same, which amount of $830 came to his possession, the remainder being used to redeem the premises. Before making this sale he filed the statutory bond in the amount of $2,000. Upon a final accounting in the circuit court he was found indebted to the estate to the amount of $1,648.72, which order was made August 29, 1886. Actions were brought upon the respective bonds, and a judgment rendered upon that first mentioned for $1,000, which was paid. Subsequently plaintiff obtained a judgment upon the second bond, by direction of the court, for $1,287.94, being the amount found due on the final accounting, with interest, less the $1,000 paid on the judgment on the first bond.

This cause was before this Court on a former occasion, when it was held that the circuit judge was in error in his conclusion that the judgment for $1,000 upon the earlier bond was a_ bar to an action upon the later one. The case will be found reported in 92 Mich. 211. ' It was there held that—

“ If the penalty of the administrator’s general bond had been large enough, the whole sum of money due the estate from Joslyn might have been recovered under it.”

It was said further that—

“The fact that there was no special accounting as to the fund realized from the sale of the real estate, separate and apart from the general accounting, cuts no figure in the case, if the amount due from Joslyn on account of the sale of this real estate can be^ ascertained from his account, or from other evidence, such as his report of sale; and there can be no reason why this suit should not be maintainable, even if some of the money for which the signers of this bond are holden has been accounted for and included in the judgment upon the general bond. The sureties upon the bond in suit cannot complain because their liability has been lessened by such judgment. The plaintiff might have contented himself in the suit upon the first bond with a judgment for only the money in Joslyn’s hands not derived from the sale of real estate, and relied upon the bond in suit for the whole fund obtainedMfrom the sale of real estate.
“The bond on sale of real estate is only an additional security for the moneys coming into an administrator’s hands, and does not supersede the general bond or affect it in any way; and the representatives of the estate are entitled to recover upon both bonds, with the only limitation that they cannot recover more in both suits than the whole amount due from the administrator, and no greater sum upon the special bond than has been realized from the sale of real estate under it. In this case it was conceded, as the circuit judge stated, that Joslyn received $830 from the sale of real estate, and plaintiff was certainly entitled to a judgment for this amount and interest.
“ The counsel for plaintiff further claims that there was $683.87 additional received from the sale of real estate, for which he was also entitled to have judgment. From the record we are unable to determine whether this claim is correct or not, but upon a new trial this may be made to appear."

Under the familiar rule of the Court, this must be considered as settling th« law for this case, so far as any of the questions therein disposed of arise upon this hearing. It follows that plaintiff might show that the amount found due upon the final accounting of the administrator included a sum received upon a sale of real estal$, for which recovery might be had in an action upon the second bond, and that evidence might be introduced, including his account and report of sale, to show that a sum was so received; and hence that defendants* claim that the order of the circuit court upon the accounting should be “the conclusive and sole evidence of the rights of the estate against Joslyn and his co-defendants ** is untenable. Moreover, the defendants* testimony shows that Joslyn received the sums of $683.87 and $830, respectively, as hereinbefore stated, and, aSj there was no evidence to the contrary, it was proper for the court to find the fact established. The legitimate evidence in the case, being uncontradicted, justified the court in finding that defendants were liable upon the statutory bond for the amount received upon the sale of the land by the administrator; hence it becomes unnecessary to inquire whether other evidence, tending to establish plaintiff’s case, was admissible or not. At most, its admission was error without injury.

¥e think that all of the questions raised here are covered by the former decision except one, viz., the right of plaintiff to recover the whole or any part of the sum of $683.87, paid to the defendant Joslyn upon the foreclosure sale. It is contended that this amount was received before the statutory bond was given; that it was personal property in the hands of the administrator at that time, and the only interest that the estate had in the land was what should remain after payment to the purchaser at the foreclosure sale of the amount of his bid and interest. But, as the amount of $830 was received upon the 16th day of November, 1882, from the sale of the equity of redemption, the interest found due thereon by the jury and subsequently accruing justified the computation made by the circuit judge.

The judgment of the circuit court will be affirmed.

Mc&rath, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.


author: Grant, J.

text:
    Georgiana Downes, Administratrix, etc., v. The Harper Hospital.

      Charity hospital — Maintenance—Contract relation of patient— Trust fund — Liability for negligence of managers or employés.

    1. A corporation organized and maintained for no private gain, but for the proper -care and medical treatment of the sick, and to that end to manage a trust fund donated for that purpose, cannot be made liable for injuries sustained by a patient by reason of the negligent acts of its managers or employés.

    2. The fact that patients who are able to pay are required to do so does not deprive the corporation of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract relations.
    3. The Court are not to be understood as intimating any opinion as to whether there is any liability on the part of the trustees of defendant for the alleged defect in the construction of the room in which the decedent was confined, and from which he escaped by reason thereof, and was killed, or on the part of those intrusted with his care and treatment.
    Error to Wavne. (Hosmer, J.)
    Argued June 21, 1894.
    Decided September 25, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      James H. Pound, for appellant.

      Edwin F. Oonely and Orla B. Taylor, for defendant.

       See Williamson v. Industrial School of Reform, 23 L. R. A. 200, for note on the liability of charitable institutions for negligence.

   Grant, J.

Plaintiff’s decedent and husband became insane from disease, and, by advice of his physician, was conveyed to Harper Hospital. He was violent, and was confined in a room in the third story of the building, which was especially arranged for such patients, having a framework of iron over the windows. The deceased wrenched this iron framework off, jumped from the window, and was killed. Plaintiff brings this suit to recover damages for the benefit of herself and children, alleging negligence on the part of the defendant.

Defendant is a body corporate organized under Act No. Laws of 1863, entitled “An act for the incorporation of hospitals or asylums in cases where valuable grants or emoluments have been made tb trustees for such purposes,” and, at the time the alleged right of action is said to have accrued, was engaged in maintaining at Detroit the hospital commonly known as “Harper Hospital.”

In the declaration it is alleged that on or about January 26, 1890, Downes was ill, and was so disordered in mind from the effects of disease and pain that he became and was temporarily insane, violent, and dangerous, so that it became necessary to place him under restraint and skillful medical treatment to prevent him from harming himself and others, and to effect his cure; that the defendant, at the request of plaintiff, and well knowing Downes’ mental and physical condition, received him inkr Harper Hospital as a patient, and, in consideration of the payment of $2 per day, agreed to give Downes proper medical treatment, and to keep and restrain him so that he should suffer no bodily injury, and his life should be preserved from injury which he might inflict upon himself, and to have the room in which he was confined secure, with a proper and sufficient guard, framework, or other suitable protection over the window of such room, and so securely fastened that Downes, when confined in the room, would not be able to tear away the framework or grating over the window and throw himself therefrom, and to keep him properly handcuffed, so that he could not injure himself by tearing away the framework or bars over the window, or by throwing himself out of the window, and also to keep some suitable person constantly in attendance upon him.

It is further alleged that the defendant, in disregard of its alleged duties and obligations, wrongfully, carelessly, and negligently failed to safely keep and care for and give medical attendance to Downes, and so keep and restrain him that his body should suffer no injury, and his life should be preserved from injury which he might produce by his own conduct and actions; that the defendant did not have the room where Downes was confined secure, and with a proper and sufficient guard, framework, or other suitable protection over the window, and so securely fastened that Downes, when confined in the room, could not tear away the framework or grating over the window, and throw himself therefrom; that the defendant did not keep Downes properly handcuffed, so that he could not do himself injury by tearing away the framework or bars and throwing himself out of the window, and did not keep some suitable person constantly in attendance upon him.

It is further alleged that the defendant, well knowing Downes’ mental and physical condition, and that he was temporarily insane, violent, and liable to injure himself and others, and to throw himself from the window of the room where he was confined, removed the handcuffs from Downes’ wrists, placed him, alone and unattended, in the padded room of the hospital, where insane persons are usually placed, and did not have the grating or framework over the window of such room properly constructed or properly secured and fastened, and that such framework or grating was made and fastened in such an insecure, unsafe, careless, and negligent manner that Downes; while insane, pulled down the ironwork and grating from the window, and threw himself therefrom, falling a distance of about 35 feet to the pavement, thereby receiving such injuries as to cause his death on January 29, 1890.

At the conclusion of the evidence the court directed a verdict for the defendant, for the reason that the defendant was a charity, which could not be made liable for a tort.

The organization of the defendant had its origin in two deeds, — one executed February 3, 1859, by Walter Harper, and the other by Ann Martin, March 10, the same year. The lands therein described were conveyed to seven prominent citizens of Detroit in trust for the founding of a hospital. The purpose was stated in the 'deed by Mr. Harper to be—

The institution, erection, and maintenance of a hospital in the city of Detroit, or in the immediate vicinity thereof, for the succor, care, and relief of such aged, sick, poor persons who shall apply for the benefit of the same, and who shall seem to my trustees hereof to be proper subjects for such aid as their means will enable them to afford."

The particular scheme for founding the hospital, and all the details, were left to be devised and controlled by the trustees. It also provided for organizing and permanently maintaining a school for the instruction of youth in the different arts and trades, after the manner of what is known in Prussia as the “Flintenberg School.” The deeds also provided that, if the Legislature should enact a law enabling a corporation to be formed for the purposes named in them, the trustees might convey all the lands and funds to a corporation 'formed therefor.

The trust was accepted by the trustees, and under the law above referred to the trustees conveyed the property to the defendant, a corporation, May 17, 1863. Other bequests have been made to the defendant for the same purpose, which in one year amounted to over $100,000. The corporators receive no compensation or dividends. It is purely an eleemosynary institution, organized and maintained for no private gain, but for the proper, care and medical treatment of the sick. Hospital physicians and attendants are, and of course must be, paid. The receipts have not always been sufficient to meet ordinary expenses, and one year a private citizen gave $1,000 towards the deficiency. The law under which the defendant is organized recognizes it as a charity; exempts its property from taxation; provides that its funds shall be used faithfully and exclusively for the purposes of its organization, and that it may receive, by gift,, grant, or devise, any property, but only for the purpose for which it is incorporated. It has no shares, and is not a stock corporation.

If the contention of the learned counsel for the plaintiff be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects and builders, upon whose judgment reliance is placed as to plans and strength of materials; of physicians employed to treat patients; and of nurses and attendants. In this way the trust fund might be entirely destroyed, and diverted from the purpose for which the donor gave it. Charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an employé commits an act of negligence, 4he may be held responsible for his negligent act; but the law jealously guards the charitable trust fund, and does not permit it to be frittered away by the negligent acts of those employed in its execution. The trustees of this fund could not by their own direct act divert it from the purpose for which it was given, or for which the act of the Legislature authorized the title to be vested in the defendant. It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers of the fund, or their employés, though such acts result in damage to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition.

The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract relations. The amounts thus received are not for private gain, but contribute to the more effectual accomplishment of the purpose for which the charity was founded. The wrong-doer, in a case of injury, but not the trust fund, must respond in damages. This proposition seems too clear to require argument or authority. It is not, however, inappropriate to remark that better facilities for the care, cure, and treatment of the sick, both of the poor and of those who are able to pay, are secured by the establishment of hospitals like that of the defendant. These facilities are increased by the receipt of money from those who are able to pay in whole or in part for the benefits received. Several hospitals of this character exist in this State, founded by private munificence. Obviously, they would not have been founded if their donors had known, or ever supposed, that their charitable purposes might be thwarted by the verdicts of juries for the negligent acts of those who must necessarily be employed in the execution of the charity. The following authorities appear to sustain the above position»: Hospital v. Ross, 12 Clark & F. 507; McDonald v. Hospital, 120 Mass. 432; Gooch v. Association, 109 Id. 558; Perry v. House of Refuge, 63 Md. 20; Railway Co. v. Artist, 9 C. C. A. 14.

In what we have said, we are not to be understood as intimating any opinion as to whether there is any liability of the trustees for the alleged defect in the construction of the room where the deceased was confined, or of those wbo were intrusted with his care and treatment. This question was not passed on by the court below, and we express no opinion upon it.

The judgment is affirmed.

McGrath, O. J., Long and Hooker, J J., concurred. Montgomery, J., did not sit.


text:
    James A. Randall v. The Evening News Association.

      Label and slander — Interpretation of language used — Instructions to jury — Evidence—Conduct of counsel.

    1. Articles were published in a daily newspaper charging a citizen with having favored and carried to a successful issue a scheme for his own and others’ aggrandizement at the expense of the public, whose interests and desires were in opposition to it, through the acts of the board of estimates of the city where the paper was published, the names of the members of which the articles declared were to be held in reprobation by every citizen who believed in honest administration of the public finances. And it is held that the implication from the articles is plain that the citizen named had induced corrupt or improper action for his private gain; that the tendency of such charges is to bring him into public hatred, disgrace, contempt, and obloquy; that they reflect on his character; and that they are actionable.
    2. The words “rob” and “steal,” as used in the articles, were qualified by the rest of the language used, and it clearly appeared that said words were not usedin the ordinary sense. And it is held that the court, in an action of libel brought for the publication of the articles, should have explained to the jury that they were to be interpreted as a whole, and that the ordinary and natural meaning of said words, in the connection in which they were used, should be taken.
    8. Where on the trial of a suit for libel founded on the publication of articles reflecting upon the support by the plaintiff, as a member of the Legislature, of an act providing for a boulevard in the city where he resided, two of his colleagues testify, in behalf of the defendant, to his statement in a speech made in support of the bill that his main purpose in going to the Legislature was to secure the passage of the bill, and incidentally to take care of his constituents, it is not competent for the plaintiff, when sworn as a witness in his own behalf, to state the substance of the speech, and argue therefrom to the jury that he did not say what the witnesses have stated because at variance with, or not a part of, the speech as rehearsed.
    4. It is not always easy to discover the line of demarcation which separates the involuntary transgressions of propriety which arise from the honest zeal of counsel in the trial of causes, and the deliberate perversions or misstatements of testimony, or unjustifiable attacks upon parties or witnesses.
    5. The only practicable method of controlling and keeping counsel within due bounds, when disposed to transcend their privileges, is with the trial court, which has a large discretion in such matters; and when this power is not exercised, and there is reason to believe that injustice has resulted from the improper course taken by counsel, this Court will grant relief.
    Error to Wayne. (Brevoort, J.)
    Argued June 22, 1894.
    Decided September 25, 1894.
    Case for libel. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Dickinson, Thurber & Stevenson, for appellant.

      John Atkinson (Alfred Bussell and Mark M. Powers, of counsel), for plaintiff.
   Hooker, J.

The defendant, being publisher of a daily paper, appeals from a judgment rendered against it in an action of libel. The alleged libel consists of three articles published in said paper upon the 15th day of April, 1891, in relation to a boulevard at that time projected in the city of Detroit, copies of which articles were set up in the declaration, and read as follows:

“ LET ’ER GO GALLAGHER.
“The Boulevarders Win the Battle for Private Gain.
“ Twenty Estimators Speak for the People of Detroit.
“And the First Boodle of $200,000 is Voted for the Improvement of the Boulevard de Speculation — The Spigot Turned Open, and the Cash will Flow from Now On.
“Twenty of the estimators tumbled head over heels yesterday afternoon in their anxiety to be in harmony with the boulevarders, and to be placed on record as in favor of taxing everybody for the enrichment of a few real-estate speculators. The 20 are Bagley, Campau, Cornell, De Vogelaer, Farrand, Gorenflo, Hargreaves, Hickey, Koch, Lenaert, Merritt, Mulheron, McKay, Sauer, Stenius, Taepke, Tuchoeki, Viehoff, Wild, and Wright. Eleven estimators went on record as opposed to issuing any boulevard bonds without first getting the consent of the voters. The 11 are Bayer, Galster, Hickox, Markey, Munroe, Peters, Petz, Raeske, Reaume, Ruch, and Valentine.'
“The boulevarders counted noses before the meeting, and were sure of a majority for the bonds. The board went into committee of the whole, and the minority, led by President Valentine, who yielded the chair to Estimator Farrand so that he could get down on the floor and talk, tried hard to stave off a vote. They interposed motions to adjourn, knowing they had nothing to lose and everything to gain by delay, but they were outvoted every time. Then, too, the boulevarders had the best talkers with them. Estimator Mulheron directed the majority, but Estimator Sam Hargreaves, who has recently flopped and blossomed into the most rabid kind of a boulevarder, Charles Wright, Taepke, and James B. McKa.y gave them right royal support. James A. Randall and some other real-estate speculators, who own property that will be enhanced in value by improving the boulevard by general taxation, were smiling auditors to the one-sided scrap. They knew hours before the final vote was taken that they had a cinch on the bonds.
“Estimator Mulheron, chairman of the committee that had been considering the question of issuing bonds, was the only one of the five who was against submitting the bonds to the people. The other four members — -Bayer, Ruch, Pospeshil, and Peters— insisted that the bonds should be submitted, and made a formal report that the bonds not be issued without the consent of the people. Mulheron presented a report of his own making, in which he advised- that the bonds be issued without being submitted to a popular vote. The athletic doctor was loaded for bear, and he made a band-wagon speech that even Randall himself could not discount. He told the board that no question in the 20 years that he has lived in Detroit has made so much trouble in local politics as the boulevard. Then he got sentimental, and .pleaded for the members to show their manhood and vote for the bonds, and thus repudiate, as Artemus Ward would say, the 1 fowl slanders ’ that have been cast on the boulevarders.
“ Estimator Taepke, like Mulheron, was primed for talking, but, not being a band-wagon orator, he didn’t enthuse the boulevarders to quite the extent that the doctor did. Taepke chewed the chestnuts that the boulevarders have been retailing for years about how the city promised to improve the boulevard if the right of way was dedicated, and it would be but justice to fulfill the promise. He also rung in the old saw about how Detroit would have been Chicago ‘if it was up to Chicago.’ Sam Hargreaves related how he had experienced an awakening not many moons ago, and found that he had been following the wrong path in all the years that he was against the bonds. He was on the righteous path now, — the boulevarders’ path. Estimator Charles Wright delivered a carefully prepared speech, which, while it contained nothing that had not been told dozens of times before, sounded well, because the estimator is a pretty fair talker.
“Estimator Raeske, in defending the majority report, said the issuing of- the bonds as proposed would be a piece of class legislation. If the city wants to improve streets, let it do so in the heart of the city, and not go to the outskirts. President Valentine tried to get the recognition of Estimator Earrand, who was holding down the president’s chair, but the acting chairman recognized Mulheron, who wanted to talk. President Valentine wanted to know if the minority were to be choked ofi in arbitrary form, but the doctor went on talking boulevard. There were loud calls for a vote, and the minority report, being signed by the chairman, was considered first. The acting chairman declared Mulheron’s report carried on a vive voce vote, but a division was demanded by the minority. The division showed 19 for Mulheron’s report, and 10 against it.
“ The boulevarders let out a pent-up whoop when the result was announced, and didn’t let up until they had run dry. The board, as a committee of the whole, rose, and went into a regular session again, President Valentine resuming the chair. Estimator Petz, one of the valiant minority, promptly sprung a motion to adjourn. The boulevarders wanted to clinch their victory, and a dozen of them were on their feet at one time, demanding a final vote on the bonds. Taepke, the boulevard but not band-wagon orator, wanted to know if ‘ we,’ meaning the boulevarders, were not to have a fair show. President Valentine assured him that no snap judgments would be taken, but that one of the recognized rules of parliamentary law is that a motion to adjourn has preference to any other, and is always in order. The boulevarders were still apprehensive, and every one of them who had his speech-making clothes on tried to talk at one time. The chairman frowned on the boisterous proceedings, and reminded the board not to forget that they were gentlemen. Order was finally restored, and the motion to adjourn was voted down. The final vote on the bonds was then ordered, and 20 to 11 for the bonds was the result, and the boulevarders cheered.

“ The board transacted considerable other business before the bonds were taken up. The board of public works general fund was passed at $33,376, a reduction of $15,000 from the sum passed by the council. For the general road fund there was allowed $326,000, and for public building fund $15,000. The cut from the western market fund was restored, and $20,000 was appropriated for both an eastern and western market. Henry M. Duffield, president of the water board, explained that the $75,000 annually appropriated for the waterworks is a necessity, and the sum was allowed. The school estimates were allowed at $367,643.70, a reduction of $13,413 from the figures passed by the aldermen. In committee of the whole the board agreed to allow $54,000 for the maintenance of Belle Isle, $100,000 for improving the park, $6,300 for the maintenance of small parks, $14,250 for the improvement of the same; total, $174,550; less amount raised by proceeds of bonds, $100,000; total amount to be raised by taxation, $74,550. The last meeting of the estimators will be held tonight, when, according to the charter, all business must be concluded.”
“THE POET ON THE STEAL.
“ Ode to the Estimators and Their Masters, the Boulevarders.
“And now, good folk, fling up your ready money; this town’s about to flow with milk and honey. We’ve got a boulevard, the show is Open; roll up and tumble, fling the ready soap in. ' Although your streets are full of holes and muddy, we’ll fill your boulevards with roses ruddy. The ship of state is safe, we’re at the rudder. Who’ll lack for milk when you supply the udder? Who’ll lack for honey, when you give the powers to plant the boulevard with choicest flowers? Did ye not vote it? Are not. you creators of all these noblemen, the estimators?
“ Down in your pockets, open up your wallets, throw in your cash as you threw in your ballots. Of course you add a trifle to our riches, and this may put a patch upon your breeches. But what of that? Come up and smell the flowers that line the borders of this road of ours. Recline your humble shanks beneath the trees; your worn trousers will invite the breeze; there sit upon the seats and rebt your souls, and watch the way a rich man’s carriage rolls.
“ Contrast the scene, that there your optics greet, with your own nasty, ill-paved, narrow street. And think, O friends, if you had but the brains, or knew enough to come in when it rains, if you were keen at grinding your own axes, if you knew how to enrich a town by taxes, if you knew how to maké mean things look pretty, if you knew how to build a splendid city, instead of living plain and working hard, you’d own some land upon a boulevard.
“For know, poor fools, to build a first-class nation, the land must labor under high taxation. And as in nations men must take their classes, -just so in this, there’s wise men and there’s asses. The wise men hold the most plethoric wallets, which others fill by virtue of their ballots. Here in Detroit, and surely more’s the pity, wise men are moved to boom our glorious city. But, quite as cunning as proverbial foxes, they raise no question for the ballot boxes. Sometimes, indeed, conventions they invadé, but as a rule they buy them ready-made.
“ The pity lies in this, and tell your neighbor, that all our good must lie in private labor; that government, with all its power of taxes, is only good for grinding private axes, when swerved from well-known simple public uses, and slightly bent to favor pet abuses, as when ’tis bent to smooth a road or rough-field for Mr. Lothrop or for Mr. Duffield. Taxation cuts the queerest sort of caper to help O’Brien to shave some heavy paper, or take the bread from out the poor man’s cupboard to make a lawn for Mr. Bela Hubbard. And those who pay must now be making merry, they’ve been so charitable to Mr. Ferry. And, having given the-game, pay for the candle for such a gentleman as Mr. Bandall.”
“THE BOULEVAED STEAL.
“The board of estimates has finally concluded to fasten the-$200,000 iniquity of the boulevard improvement bond issue on the-city. At its meeting yesterday the recommendation of the council that so large an amount be raised by bonding the city for a starter on the work of boulevard-makmg was passed by a vote of 20 toll. In spite of the presentation of all the convincing arguments, against such an expenditure,- in spite of the clearly personal character of the appropriation, in spite of the fact that the only people who were clamoring for the improvement were men who-expected to see the money eventually reach their own pockets after it had been transferred by methods of law from other and less favored property-owners, the board of estimates, the last hope of the people, proved untrue to its trust, and set a precedent that is even more dangerous and more harmful than was the appropriation of the sum which will be realized from the issue of bonds. The men who were responsible for this steal for the benefit of half a dozen land-oWners were the following named members of the board of estimates; their names are put in good, fair type, that the people may know who were the parties to the crime:
“JOHN N. BAGLEY,
“ LOUIS P. OAMPAU,
“JAMES COENELL,
“ CAMILLE DE VOGELÁEB,
“TO E. PAEEAND,
“THEODOEE GOEENFLO,
“SAMUEL HAEGEEAYES,
“ PATRICK H. HICKEY,
“J. WILLIAM KOOH,
“LEO LENAEET,
“ADOLPHUS MEKEITT,
“JOHN J. MULHEEON,
“JAMES B. McKAY,
“WILLIAM SAUEE,
“ PETEE STENIUS,
“ALBEET TAEPKE,
“JOSEPH TUCHOEKI,
“WILLIAM B. VIEHOFF,
“WILLIAM L. WILD,
“OHAELES WEIGHT.
“This is the list that the people may ponder over when they who have property on the ordinary streets of the city turn up at the receiver of taxes’ office year by year, for 30 years to come or longer, and wonder why it is that their taxes are so high, and who it was that fastened on the city the incubus that it will be :so hard to shake off. They are names to be held in reprobation ¡by every citizen who believes in honest administration of the public finances. They are names to be set down as those of men whose self-interest or whose mental obliquity made the beginning •of the steal possible. And when other extravagances come, as •come they will when so distinguished a precedent may be quoted in their favor, when other injustices are proposed and passed, and •citizens wonder why the precedent was ever set, the list quoted •above is one to refer to as a complete and accurate list of the 20 apostles of extravagance, who may from this time forward be considered the accessories before the fact to every sin of financial mismanagement that may hereafter be committed in this city under the guise and color of public good, though, like the present deal, its sum and end be the enhancement of private interest at the expense of the whole public.
“There is a moral in the transaction, however, in spite of its singular deficiency in any other kind of morality. The moral is that which the News has been preaching all these months, — that the city should not be put into debt unless the people be given a chance to vote on every issue of bonds that it is proposed to add to the debt of the municipality. The action of the board of estimates in authorizing an issue of $200,000 of bonds that could not get the assent of one-fourth of the voters of the city if it were proposed at the polls is the strongest argument which a Democratic Legislature should need for enacting a provision providing for the submission directly to the people of all schemes involving the pledge of the public faith and credit. If the action of the board of estimates last night have the effect of showing the Legislature the dangerous power that has been lodged in hands other than those of the people, it will not have been, even bad as it is, an unmitigated evil; for, though it costs the city $200,000 to have the lesson applied, it will save it many times $200,000 in the future, by cutting away the possibility of the repetition of such an outrage.”

Counsel for the defendant complain of the construction placed upon these articles by plaintiff’s counsel, alleging that in his opening, and during the progress of the trial, he asserted that they charged the plaintiff with a crime, viz., larceny from the public treasury, and again that they charged that he robbed the public treasury.

An analysis of these articles shows that they substantially informed the public that the board of estimates of the city had voted to issue bonds of the city to the amount of $200,000, with the proceeds of which was to be commenced the construction of a boulevard; that this boulevard would, when constructed, enhance the vplue of the property of adjoining land-holders, of whom plaintiff was one; that the project was pushed by such landholders for the purpose of furthering their private interests at the expense of the public, and that they were winners of a battle when the proposition was carried, as they knew that it would be some hours beforehand; that they were present at the time the matter was acted upon, and made noisy demonstrations of approval. It was called a “ steal,’> and the land-holders aforesaid, including plaintiff, were said to be recipients of the benefits. Accompanying one of the articles was a picture of plaintiff manipulating a faucet in the end of a gigantic hogshead, from which a stream of dollars fell into the pails of various persons ready to receive them. The measure was denominated an outrage perpetrated under the forms of law, which a large majority of the voters would not have permitted, could it have depended upon a vote of the people.

There is not that in the articles, construed together, or in any of them, taken as a whole, that can be properly said to charge the crime of larceny, or any other crime. They do, however, unequivocally charge the plaintiff with having favored and carried to a successful issue a scheme for his own and others’ aggrandizement at the expense of the public, whose interests and desires were in opposition to it, through the acts of the estimators, whose names “are to be held in reprobation -by every citizen who believes in honest administration of the public finances.” The implication is plain that the plaintiff has induced corrupt or improper action for his private gain. The tendency of such charges is to bring him into public hatred, disgrace, contempt, and obloquy. They reflect on his character. Under the decisions of this Court, we think that the articles are actionable, and that no error was committed in their admission as evidence in the case.

Many assignments of error are based upon the assertions of plaintiff’s counsel that the articles charged plaintiff with a crime; but as, under this decision, that is not likely to occur again, and the case must be reversed upon other grounds, it is unnecessary to discuss them, further than to say that the court might properly have stopped them by an interpretation of the writings, as requested by defendant’s counsel.

The charge of the court consisted principally of requests to charge by counsel for the respective parties. Upon the subject of the character of the articles complained of, they were as follows: As requested by the plaintiff, he instructed the jury:

“1. In the article counted upon, the picture represents the plaintiff in a ridiculous attitude, and, in connection with the printed matter, charges him with having tapped the public treasury for his own benefit and the benefit of others associated with him.
“2. The picture and printed matter, taken together, are libelous upon their face, and entitle the plaintiff to a verdict for damages, unless the justification pleaded has been made out."
“ 5. In arriving at their conclusion as to the meaning of the words,and picture, the law requires the jury, in the absence of proof, to give the words used their ordinary meaning.
“ 6. There is no evidence in this case tending to show that the words were not used in their ordinary sense."
“ 10.' Under the circumstances, if the jury believe that the defendant intended by the article sued upon to charge plaintiff with improperly obtaining money from the public treasury, to be used for his own benefit and for the benefit of those associated with him, and in doing so he was a party to a crime, then Mr. Eandall is entitled to a verdict for such an amount as will compensate him for the injuries done.
“11. He is entitled to compensation for damages to his reputation, and for the injury to his feelings, which such a publication would naturally cause."

The effect of this was to leave the jury to infer that the language of the articles might be found to impute a crime to the plaintiff. In fact, the direction to give the words their ordinary meaning, and the statement that there was no evidence in the case tending to show that they were not used in their ordinary sense, cannot be sustained. These words, “steal" and “rob," as used in the articles, were qualified by the rest of the language used, which clearly showed that they were not used in the ordinary sense of those words, as interpreted by plaintiff’s counsel. If so interpreted, a very different defense might be required from that, which would defeat an action based upon a proper construction of the language. The court should have explained to the jury that the articles were to be interpreted as a whole, and that the ordinary and natural meaning of the words, in the connection in which they were used in the articles, should be taken.

In his charge the court said, further:

“Remember, also, that the defendant has pleaded justification, and, unless the acts complained of (in the libel here set forth) are true, then your verdict must be for the plaintiff.”

What were the jurors to understand were the, acts complained of in the libel? Was it only that the plaintiff had, under forms of law, prevailed upon the officers of the city to vote to issue bonds for an improvement that would benefit him at the expense of the public, or was it that he had actually and manually feloniously stolen, taken, and carried away the money of the public, or even accomplished by other means the crime of larceny? It is obvious that the latter view of the case may have been taken by the jury, to the injury of the defendant in the way of increased damages, if nothing more.

Upon the trial it was developed that the action of the estimators was under a law which was passed by the Legislature when Mr. Randall was a member of the House of Representatives. Two of his colleagues were called on behalf of the defendant, who testified to conversations with the plaintiff tending to show his personal pecuniary interest in the passage of the act, and his knowledge that the proposed boulevard would be defeated if the people were permitted to vote upon the proposition, and that it was his main purpose, in going to the Legislature, to secure the passage of the bill, and incidentally to take care of his constituents. This last was stated to have been said in a speech in support of the bill. On rebuttal, plaintiff was asked to give the substance of what he said in his speech upon the merits of the bill. Against objection he was permitted to state at length what he said upon the merits of the bill, and was allowed to read a paper which he stated that he read in the course of that speech to the House of Representatives, which he had claimed to be a message to the common council of Detroit, from the mayor of that city. This speech, as detailed by the witness, appears to have gone over the merits of the case from his standpoint as legislator. As evidence it was no more than hearsay. The statements therein made had nowhere the sanction of an oath. But one statement alleged to have been made by him before the House had been sworn to, and that was susceptible of either denial or explanation. It was not, however, competent for the plaintiff to state at length his speech' upon the merits of the bill, and his controversy with the defendant, or the facts in relation to the alleged obligations of the city to provide for the boulevard, or to make the concluding statement to the jury, “You will see that I did not use the language referred to by witnesses Wettlaufer and Murtagh, and nothing like it." A denial of the statements of the witnesses against him was competent, but it was not competent for the plaintiff to state the substance of a speech, and argue therefrom to the jury that he did not say what these witnesses had stated because at variance with, or not a part of, the speech as rehearsed.

It is further complained that counsel for the plaintiff indulged, with too great freedom, in attacks upon the practices and motives of the defendant in relation to the case under consideration and other matters, and made statements not warranted by the evidence. It is not always easy to discover the line of demarcation which separates the involuntary transgressions of propriety which arise from the honest zeal of counsel in the trial of causes, and the deliberate perversions or misstatements of testimony, or unjustifiable attacks upon parties or witnesses. We cannot fail to appreciate that they are exceedingly annoying, whether attributable to improper motives or not. The ideal trial has no place for them, and everybody knows that juries are to a greater or less extent inflamed by them, and that the danger of unjust verdicts is correspondingly increased. On the other hand, the propriety of strictures depends greatly upon the standpoint from which the subject is viewed. That which may appear very unjust and cruel to the object of -the attack may seem entirely proper, and warranted by the facts, to another. The only practicable. method of controlling and keeping counsel within due bounds, when disposed to transcend their privileges, is with the trial court, which has a large discretion in such matters. Where this power is not exercised, and there is reason to believe that injustice has resulted from the improper course taken by counsel, this Court will grant relief, 'as it has in some instances done. In the present case there is perhaps some reason to believe that the jury may have been prejudiced by, unwarranted attacks of counsel. To say the least, some of the arguments used and statements made appear not to have been supported by evidence; but we think it unnecessary to discuss them, as the judgment must be reversed for the other reasons stated.

The judgment* will be reversed, and a new trial ordered.

McGrath, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.


author: Long, J.

text:
    Alexander McGregor v. The Estate of James G. Ross, Deceased.
    [See 96 Mich. 103.]

      Contract — Breach.
    A mere request by- a log-owner to a contractor to quit cutting logs, if acquiesced in by the contractor, does not amount to a breach of the contract on the part of the log-owner; but a direction by the log-owner to stop cutting, which the contractor obeys under protest, amounts to a breach, entitling the contractor to. the consequent damages.
    Error to Marquette. (Stone, J.)
    Argued May 1, 1894.
    Decided September 25, 1894.
    Claim against the estate of decedent. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in 96 Mich. 103.

      Clark & Pearl, for appellant.

      E. J. Mapes, for plaintiff.
   Long, J.

This case was in this Court at the April term, 1893, and is reported in 96 Mich. 103. The facts are there fully set out. On that trial the plaintiff recovered, and the judgment was reversed on account of an error in the charge. It was there said, in speaking of the charge of the court on the question of the breach of the contract:

“When the deceased committed a breach, the plaintiff was privileged to adopt either one of two courses: He could abandon further work under the contract altogether, and sue to recover the price of work already performed, and whatever damages he had already sustained because of being prevented from completing the contract; or he could continué, under the contract, to do so much of the work as he was permitted to do, and recover damages for the interruption. But in case he did so there is no reason why he should not be bound by the terms of the contract, so far as he did attempt its performance, and responsible for any breach of condition not dependent upon the neglected performance of the other. In other words, the law does not outlaw a party who has broken a contract in any particular, or deprive him of having the benefit of provisions inserted in such contract for his protection, in any case where the other party proceeds under the contract, and where the breach may be compensated in damages, and where the neglect of performance by the plaintiff is not induced by the act of the one guilty of the first default.”

The case was remanded for a new trial. That trial has been had, and the plaintiff has again recovered, and defendant appeals.

The court, on the present trial, followed the rule laid down by this Court, and directed the jury substantially that, if Boss commanded the plaintiff to stop work, and the work was stopped by reason of such command, then the plaintiff would be entitled to recover his damages; but, if the plaintiff acquiesced in the request of the decedent to cut no more timber until he had hauled that, which was cut, the plaintiff could not claim that such request or direction broke or violated the contract, or that-he was prevented thereby from carrying out the contract, and the verdict should be for the defendant. This was a fair submission of the question.

We have examined the questions raised by defendant’s counsel in their brief, and are satisfied that the case has been tried in accordance with the former opinion.

The judgment must be affirmed.

The other Justices concurred.


text:
    The Metropolitan Lumber Company v. The Lake Superior Ship Canal, Railway & Iron Company, and The Keweenaw Association (Limited).

      Mistake — Land contract — Reformation—Laches—Statute of frauds.

      1. There is a conflict in the books upon the question of the effect of the statute of frauds upon the jurisdiction of courts of equity to reform instruments made in pursuance of oral agreements, where the correction sought is the addition of lands to those described; but, whatever may be the rule where nothing has been done under the oral agreement, in this country the overwhelming weight of authority supports the jurisdiction where part performance is shown sufficient to warrant a specific performance under an oral contract.
    2. The jurisdiction of a court of equity to correct a written contract for the sale of standing timber by adding thereto the descriptions of certain'lands which were covered by the oral negotiations for the sale of the timber, but which were, by the mutual mistake of the parties, omitted from the written contract, is sustained; it appearing that, before the omission was discovered, a payment had been made on the contract, and the purchaser had proceeded to lumber the lands not in dispute.
    3. The claim that a mistake had been made was asserted as soon as the mistake was discovered, and the claim was insisted on at all times thereafter. Suit was not immediately commenced, but complainant never gave the defendants reason to suppose that it had abandoned or intended to waive its claim, and no injury resulted to the defendants from the delay. And it is held that complainant was justified in exhausting persuasion before resorting to litigation, especially in view of the repeated admissions of the president of the vendor corporation, who negotiated the sale of the timber in its behalf, that he understood that the omitted lands were a part of the contract.
    Appeal from Iron. (Stone, J.)
    Submitted on briefs June 23, 1894.
    Decided September 25, 1894.

      Bill to correct a contract for the purchase of timber. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Mead & Jennings (E. E. Osborn, of counsel), for complainant.

      Ball & Ball, for defendants.
   Hooker, J.

Complainant’s bill is filed to correct a contract for the purchase of timber, by adding to it the description of certain lands which is claimed to have been omitted by mistake. The negotiations took place in Chicago, between the presidents of the corporations, complainant and defendant. The contract conveying the timber was subsequently prepared by defendant’s counsel in Michigan, and was afterwards signed by the respective parties. Upon discovering the omission, which discovery was made some time after the contract was signed by complainant’s president, defendant was asked to correct the mistake, but declined to do so without suit. Some time afterwards this suit was instituted. The learned circuit judge who heard the cause filed a written opinion, in which he quotes the testimony at length, which, we think, is as fair a review of the case as could be made. We agree with him that the evidence shows that the parties who negotiated the deal both understood that the “Perch Lake Group” of lands was included in the _ purchase. It appears to have been omitted because defendant’s president, Mr. Davis, did not specifically mention it in his telegram of instructions, — if it can be called such, — which he sent to Mr. Longyear, who was agent for the defendant at Marquette, from -whom the attorney received the information upon which he prepared the contract. The telegram read as follows, viz.:

Chicago,- June 6, 188 — .
" J. M. Longyear:
Have sold to Atkinson all groups under refusal to him; also the Felch group.
“Theo. M. Davis.”

It appears that complainant had written options on all the land covered by the negotiations, except the Felch group and the Perch lake group. The latter, not being mentioned in the telegram, was omitted. All of the witnesses who were present at the Chicago interview agree that this group was talked about, and specifically mentioned as one of the tracts to be included. Davis himself concedes this, but claims that he was figuring upon the basis of the amount of timber upon the groups for which the complainant had written options, and that he supposed the Perch lake group was one of these. There seems little doubt of the justice of complainant’s claim, and we are satisfied that it is justly entitled to relief.

It remains to inquire whether there is any legal obstacle to granting the relief. It is opposed upon several grounds, viz.:

1. The mistake was not mutual.

2. The mistake on the part of complainant was committed through gross negligence, and equity will not relieve in such cases.

3. Delay in attempting to enforce complainant’s claim, and going on to carry out the contract after refusal by the defendant to correct the contract, until it was impossible to put the parties in statu quo, constitutes a waiver of complainant’s claim.

4. The addition of more land to the description, upon evidence of a parol contract, is contrary to the statute of frauds.

We are satisfied that the omission was the result of the mistake of defendant’s president in sending the telegram, supposing it to be full enough to cover the Perch lake group. There is no reason to believe that he intentionally caused this omission.

We cannot accede to the proposition that complainant’s president (Atkinson) was so negligent in executing the contract without discovering the omission as to deprive the complainant of property worth $50,000. He had no reason to anticipate an attempt to cheat his company, and therefore had no occasion to be more than ordinarily careful. He was dealing with a concern whose business was methodically conducted, and he knew that it was in possession of accurate descriptions. The contract was drawn by a reputable and able lawyer. To hold that he was negligent would be to say that acceptance of a deed or writing without a comparison and verification of descriptions is such negligence as to preclude relief against mistake, no matter how serious the consequences. Atkinson died before these proceedings were commenced, and we have not the light that his testimony might throw upon the question of caution. From the testimony of Mr. Bennett, one of the defendants’ witnesses, it would seem that he took the trouble to bring the contract to defendant’s office, to make a comparison of the descriptions, which was done, and he went away satisfied. During this time he was ill, with a malady from which he died soon after.

The claim that a mistake had been made was asserted as soon as it was discovered, and was insisted on at all times afterwards. It is true that suit was not immediately commenced, but complainant never gave the defendants reason to suppose that it had abandoned or intended to waive its claim. No injury resulted to the defendants from the delay, and the complainant was justified in exhausting persuasion before resorting to litigation, especially in view of Davis’ repeated admission that he understood the Perch lake land was a part of that contract.

It is strenuously urged that the statute of frauds precludes ¡the relief sought by complainant, the negotiations having been oral. There is conflict in the books upon the question of the effect of the statute of frauds upon the jurisdiction of courts of equity to reform instruments made in pursuance of oral agreements, where the correction sought is the addition of lands to those described. We are cited to the case of Macomber v. Peckham, 16 R. I. 485, as a recent adjudication upon the subject, and to Climer v. Hovey, 15 Mich. 18, in support of defendants’ contention. In the former case the court was careful to withhold an opinion beyond what was required by the facts before it. In stating the facts, Durfee, C. J., says:

“Nor is it a case in which it is claimed that the contract is taken out of the operation of the statute of frauds by part performance on the part of the complainant. It presents the naked question whether oral testimony will be received in equity for the purpose of reforming- a written contract for the sale of real estate on the ground of mutual mistake, and of enforcing it specifically when reformed.”

Opposed to this case is that of Hitchins v. Pettingill, 58 N. H. 386, decided 11 years earlier by the supreme court of the state of New Hampshire, which was not noticed by the Ehode Island, court. It was there held that—

“When reformation is sought of a deed which, through fraud or mistake, conveyed less land than was orally bought and paid for, the case does not stand as if there were no deed; and the error may be corrected without proof of such part performance as is necessary for a ■decree of specific performance compelling a conveyance of the whole land when no part of it has been conveyed.”

Many cases are cited in the opinion as supporting this proposition. This subject is also thoroughly considered in the notes to Woollam v. Hearn, 2 White & T. Lead. Cas. Eq. 1008 et seq.

The case of Climer v. Hovey, supra, like the. Rhode Island case, was one where the parties had not acted under the contract. In the language of Campbell, J.:

“No payments are alleged, and no act of part performance.' * * * We are, therefore, brought down to the simple inquiry whether mere mistake, where neither party has parted with or done anything beyond signing an executory contract for one description of land, can authorize a court of chancery to enforce a parol contract by applying the terms written concerning one estate to another not referred to in writing."

The bill was dismissed, Mr. Justice Campbell basing his opinion upon the fact that nothing had been done under the contract, and that it was therefore within the operation of the statute of frauds. Chief Justice Martin concurred in the result. 'Mr. Justice Cooley reserved his opinion as to the power of the Court to correct a mistake in a contract, in a suit to .enforce it, concurring upon other grounds, and with him Mr. Justice Christiancy concurred.

But, whatever may be the rule where nothing has been done under the oral contract, we think that in this country the overwhelming weight of authority supports the jurisdiction where part performance is shown sufficient to-warrant a specific performance under an oral contract. In this case a payment was made, and the purchaser proceeded to lumber the tracts not in dispute, before the omission was discovered, as was the case in Hitchins v. Pettingill, above cited.

The case of Toll v. Davenport, 74 Mich. 397, appears to recognize the jurisdiction of chancery in such cases, where a parcel was omitted from a mortgage, relief being denied, for the reason that the rights of a Iona fide purchaser had intervened.

In the later ease of Kimble v. Harrington, 91 Mich. 281, a mortgage was reformed by the insertion of the description of a 40-acre parcel a quarter of a mile distant, which was omitted by mistake.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.

       The land was subsequently conveyed to the defendant Keweenaw Association, but it was conceded that it had no equities superior to those of its grantor.


author: McGrath, C. J.

text:
    Sarah Ann Midgley and William D. Midgley v. Julia C. Walker.

      Joint tenancy — Execution,
    The individual interest of one of two joint tenants is subject to-levy and sale upon execution against such tenant.
    Appeal from Wayne. (Lillibridge, J.)
    Submitted on. briefs June 8, 1894.
    Decided September 25, 1894.
    Bill to remove cloud from title. Complainants appeal-
    Decree affirmed.
    The facts are stated in the opinion.

      Charles S. Chase, for complainants.

      J. P. Whittemore, for defendant.
   McGrath, C. J.

This is a bill filed to remove a cloud from the title of a parcel of land'which was deeded to the complainants, “and the survivor of either of them." Defendant is a purchaser at an execution sale upon a judgment against William D. Midgley, and the sole question is whether the individual interest of one of two or more joint tenants is subject to levy and sale upon execution running against such tenant.

Our statute (How. Stat. § 5560) provides that—

“All grants and devises of lands made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy.”

The right of survivorship is, however, expressly granted in the deed to complainants.

There can be no doubt but that the joint estate may be severed by the act of the parties, by a conveyance by either party, by partition under How. Stat. § 7850, or by a levy and sale upon an execution against- one of the parties. Either tenant may convey his share to a cotenant or to a stranger. 1 Washb. Real Prop. (5th ed.) 680; 4 Kent, Comm. 363. Each has the power of alienation over his aliquot share, and of charging it with his individual debts, and the joint tenants may sever the tenancy voluntarily by deed, or compel a partition. 4 Kent, Comm. 364; Lake v. Craddock, 1 Lead. Cas. Eq. (Hare & W. notes) 224. Whether more than the joint estate could be disposed of upon partition it is not necessary to determine. See Southerland v. Cox, 3 Dev. 394. The interest of either is subject to levy and sale on execution. Thompson v. Mawhinney, 17 Ala. 363; Galusha v. Sinclear, 3 Vt. 394; Bigelow v. Topliff, 25 Id. 273; Baker v. Shepherd, 37 Ga. 12; Blevins v. Baker, 11 Ired. 291. A sale, however, of the interest of one of several, does not affect the interest of the others. Carlyle v. Patterson, 3 Bibb, 93; People v. Marshall, 8 Cal. 51; White v. Brooks, 43 N. H. 402; Sneed v. Waring, 2 B. Mon. 522. There can be neither dower nor curtesy of an estate held in joint tenancy, and a devise by one joint tenant of his share will be inoperative, inasmuch as the right of survivorship takes precedence. 1 Washb. Real Prop. (5th ed.) 681, 682. The same author lays down the rule that no charge, like a rent or a right of way or a judgment, created by one cotenant can bind the estate in the hands of the survivor, unless the charge be created by the one who becomes such survivor, or the creator of the charge releases his estate to a cotenant, who, as releasee, accepts, with that part of the estate, the charge inhering therein by his own act. But the charges made by a joint tenant and judgments against him will bind his assignee and himself as survivor. 4 Kent, Comm. 360.

The rulés which govern holdings by husband and wife jointly have no application. They do not take by moieties, but they are both seised of the entirety. In re Appeal of Lewis, 85 Mich. 340.

The decree dismissing the bill is affirmed, with costs to defendant.

The other Justices concurred.


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    Emmeline Mead, an Incompetent, By her Guardian v. Mary E. Harris.

      Witness — Mental competency — Instructions to jury — Pleading— Set-off.

    1. Upon objection being made that a witness is mentally incompetent to testify, it is the duty of the court to determine that question before submitting the testimony to the jury.
    2. If a witness who is mentally weak or immature can give lucid, connected testimony, it should be admitted, and the question of the weight of such evidence is for the jury, under proper instructions.
    8. The charge, taken as a whole, is held not open to the criticism that it had a tendency to deter jurymen from enforcing their ideas, or adhering to their honest opinions, if they found themselves in the minority.

      4. Plaintiff sued to recover $500 which she claimed was taken from her by the defendant. On the trial it appeared that, at the instance of the defendant, the plaintiff, shortly after the alleged taking of the money, was removed from defendant’s house to a hospital, and placed under guardianship as a mentally incompetent person. The defendant, although denying that she took the money, offered testimony to show that she thereafter expended a considerable sum for and in behalf of the plaintiff, and claimed that she was entitled to withhold this amount in any event. And it is held that, if defendant paid out money for the use and benefit of the plaintiff, she must look for it in some other forum, as no notice of set-off in this proceeding was given.
    Error to Wayne. (Frazer, J.)
    Argued June 21, 1894.
    Decided September 25, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion. •

      Orla B. Taylor (Henry M. Gheever, of counsel), for appellant.

      James H. Pound, for plaintiff.
   Long, J.

It is claimed by the plaintiff that on March 14, 1892, she took from the bank the sum of $500, and went to see a justice of the peace, before whom her three children were to be tried for assault and for making threats. From there she went to see her sister, the defendant in this case, to obtain her assistance in getting a warrant for the arrest of the school teacher who had caused the arrest of her children. Plaintiff and defendant went to Wayne, and obtained a warrant, and returned to defendant’s house in the evening, where she stayed over night, sleeping with defendant’s daughter. The next morning she was removed to Harper Hospital, and subsequently a guardian was appointed for her. Plaintiff’s claim is that, upon her return from Wayne to defendant’s house, defendant and her daughter took the $500 from her. This suit is brought to recover the money so taken. Defendant denied having taken the money. On the trial the court directed the jury, substantially, that if they found that defendant took the money, as claimed by plaintiff, they should return a verdict in her favor. The jury found in favor of the plaintiff.

It was also claimed that the plaintiff was an incompetent person, and when she was placed upon the witness stand counsel for defendant objected to her being sworn as a witness for that reason. The court admitted the testimony, saying:

I do not know if we can try the question of competency here. I can instruct the jury that if they find this witness is mentally incompetent they can consider her testimony of no value.”

In this, it is contended, the court erred; that, it was the duty of the court to determine whether she was competent to testify, before her testimony could be, submitted to the jury.

The court charged the jury substantially that the claim was made that the witness was out of her mind at the time the money was said to have been taken, and that testimony to that effect had been admitted for the purpose of allowing the jury to judge of the probability of her remembering what she stated had happened upon that occasion; that, if they found that she remembered what she claimed to have remembered, her condition of mind was not such that she was laboring under any delusion, and they should give her testimony the same weight as that of any other witness, but that if they believed that the plaintiff at that time was demented, or laboring under a delusion, or in any manner incompetent to remember what happened, they should consider that fact; that the jury were to get at the real truth of the controversy, and if they believed from the testimony that plaintiff had this money, and took it to the house of defendant,' and the defendant obtained it from her, and refused to account for it, the plaintiff would be entitled to recover; that this must be proved by a preponderance of evidence; but that, on the other hand, if they should find that she did not have this money, or that it did not come 'into the possession of the defendant, they should find a verdict for the defendant.

The charge was very fair to the defendant in all its parts, and it seems to us that the objection made by her counsel, and the request asked by him, were not that the court should first determine the competency of the plaintiff, but that the court should refuse to allow the plaintiff to be sworn, on the ground that defendant's counsel claimed that she was incompetent. From the whole case we are satisfied that the court must have believed at the outset that the plaintiff was competent to testify, and he fairly submitted to the jury the question as to the weight they were to give her testimony. It is undoubtedly the rule that it is the duty of the court to determine whether a witness is competent to testify before such testimony can be submitted to the jury; but it is also settled that if a witness who is mentally weak or immature can give lucid, connected testimony, the court should admit it, and the question of the weight of such evidence is for the .jury, under proper instructions. Washburn v. People, 10 Mich. 372; McGuire v. People, 44 Id. 286; People v. White, 53 Id. 538. Being convinced that the court below was satisfied of the competency of the witness to testify, we see no reason why the case should be reversed upon the claim here made.

It is said, however, that there was some testimony that defendant expended a considerable part of this money for and in behalf of the plaintiff; that she paid the hospital authorities $6, and the Sisters at the Retreat $30; and it is claimed that defendant was entitled to withhold this amount in any event, and that the court should have so instructed the jury. As has been seen, the defendant, all the way through the trial, denied positively having had this $500, or any part of it. If she has paid out money for the use and benefit of the plaintiff, she must look for it in some other forum, as no notice of set-off in this proceeding was given.

It is claimed that the court was in error in a certain portion of his charge to the jury, in which he said:

“No captious doubts, no foolish or unwarranted ideas, should enter into the consideration of this case or any other case that you shall have to determine. As honest men, trying to discharge your duty between these people, you are to give the matter fair consideration. Stubbornness, mulishness, is no good characteristic of jurymen. No juryman is entitled to enforce his dishonest opinions upon his fellows. Take this case, under these views, under your consideration, and give it such fair, candid, and honest consideration as 12 conscientious, honest men ought to do, and render a verdict as you shall believe the preponderance of testimony is in this issue.”

The criticism upon this charge is that it had a tendency to deter jurymen from enforcing their ideas, or adhering to their honest opinions, if they found themselves in the minority. "We do not think the charge open to this criticism, but that the portion quoted, taken in connection with the remainder of the charge, did no injustice to the defendant.

Judgment is affirmed.

McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.


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    John S. Schmittdiel, Trustee, v. Joseph B. Moore, Trustee, John Hurley, John H. Walsh, The Peninsular Savings Bank, and Joseph B. Moore.

      Chattel mortgage — Subrogation— Tender — Assignment—Insecurity clause — Sale.
    1. A tender by a second mortgagee of the amount secured by the prior mortgage, if accompanied by a demand for an assignment not only of the mortgage, but of certain notes of the mortgagor upon which the owner of the first mortgage is indorser, and to which the second mortgagee has no right, will not discharge the lien of the first mortgage.
    2. Where the refusal t<j give a request to charge is justified, but the court, in connection with such refusal, instructs the jury that a certain fact exists which is not shown by the evidence, and error is assigned only upon the refusal to give the request, the erroneous instruction, though prejudicial, does not afford a basis for relief.
    3. A chattel mortgage is a chose in action, and the proper subject of assignment; and the assignee has the right to direct a sale of the property pursuant to notice of foreclosure given by the assignor prior to the assignment.
    4. A clause in a chattel mortgage, which contains the usual power of sale, authorizing the mortgagee, at any time when he shall think himself insecured, to take possession of the mortgaged property, and then to dispose of the same in the manner specified in the mortgage, or in such other manner as he thinks best, gives the right, in case of a seizure thereunder, to sell at once, and before the maturity of the mortgage debt.

    Error to Wayne. (Brevoort, J.)
    Argued June 22, 1894.
    Decided September 25, 1894.
    Trover. All the defendants except the Peninsular Savings Bank bring error.
    Reversed.
    The facts are stated in the opinion.

      W. F. Atkinson, for appellants Hurley and Walsh.

      Michael Brennan, for appellant Moore.

      Edwin F. Gonely and George W. Radford, for plaintiff.

       For note on the effect of “danger,” “safety,” or “insecurity” clause in a chattel mortgage, see Robison v. Gray, 23 L. R. A. 780.

   Hooker, J.

The plaintiff claims damages for the conversion of certain personal property, to the possession and proceeds of which he asserts that he was entitled by virtue of a chattel mortgage. The defendants were originally four in number, but the Peninsular Savings Bank was found not guilty. The other three appealed from a verdict of guilty. Their relation to the property is as follows: Hurley was at one time president of the American Stove 'Company, which concern was indebted to various creditors. Some attachments were issued against its property, which led to a settlement, wherein the plaintiff took his mortgage, as trustee for certain creditors. A mortgage was also given to Joseph B. Moore, trustee, to cover certain obligations then or subsequently held by the Peninsular Savings Bank, of which he was cashier, consisting of paper made by the stove company and indorsed by Hurley, who had some time before severed his connection with the stove company. The mortgage referred to no notes or obligations, and did not run to the bank, but was an undertaking to pay $3,000 within two years. The notes do not appear to have been offered in evidence, and we have no means of determining their dates or amounts, or the times when they were to become due, or to whom they were made 'payable, except from the testimony of Moore, who said that at the time he took the mortgage, and at subsequent times, before any question had been raised as to the mortgage, he, as cashier of the Peninsular Savings Bank, discounted for John Hurley notes of the American Stove Company for $1,200, 6300, 6450, and 61,050, respectively, making a total of 63,000; that he had no interest in the mortgage except as trustee of Mr. Hurley; and that he discounted the notes upon Mr. Hurley’s credit, and not upon the credit of the mortgage.

It is admitted that plaintiff’s mortgage was made subject to the mortgage given to Moore. Both were dated November 1, 1889, and fell due two years later. They covered the same property, which consisted of the buildings, machinery, tools, horses, and much other property used about the stove business, including stock and books of account, belonging to the American Stove Company. Plaintiff’s witness Radford testified that plaintiff’s mortgage was given in accordance with an arrangement made between himself and Hurley (through counsel), whereby Hurley agreed to furnish 63,000 to the American Stove Company, to be secured by a mortgage of 63,000, which was to be a first lien upon the property. Both mortgages contained an insecurity clause, giving the right to “take possession, of the goods, and then dispose of them in the manner above specified,” to which was added in the Moore mortgage the words, “ or in such other manner as the party of the second part thinks best.”

On March 10, 1890, plaintiff received a notice from Mr. Atkinson (who was counsel for Hurley) to the effect that the party owning the Moore mortgage was ready, upon payment of the amount due thereon, to transfer it to him as the holder of the second mortgage, and that, if not taken, the power of sale would be enforced. On the 18th of the same month plaintiff tendered $3,300, but, as he stated on his cross-examination,—

“We did not pretend to make an unconditional tender; we made a tender to J. B. Moore for his mortgage and the securities accompanying it. * * * We requested an assignment of his mortgage and the accompanying securities. I understood Mr. J. B. Moore held notes indorsed by John Hurley, accompanying his mortgage. We wanted John Hurley’s name, on the notes, so that, if it could be done, we could collect the amount due from him.”

Counsel assert that there was testimony tending- to show that at one time the plaintiff, by his attorneys, demanded simply an assignment of the mortgage. If this is so, this testimony is not pointed .out. We find something of the kind in plaintiff’s direct testimony, but we consider this effectively qualified by his testimony on cross-examination above mentioned., Mr. Eadford, his counsel, who was present, stated: “I wanted to get an assignment of that chattel mortgage, together with everything there was to it. We wanted the obligation of the stove company. AVe asked for the chattel mortgage, together with any obligations connected with it.” Again, in answer to the question, “Tell the jury whether you expected to get the note with John Hurley’s indorsement or not,” he said: “We considered we were entitled to them, if there were such. I required the mortgage, and every obligation connected with it, and the indorsement. My recollection is that the word ‘note’ was not used.” Again, the assignment, which was prepared by plaintiff’s counsel for Moore to sign, covered the mortgage, “together with the obligations and notes to secure which said mortgage is held by said Moore, trustee.”

This tender, which the evidence conclusively shows was conditioned upon the assignment not only of the mortgage, but also of the notes indorsed by Hurley, was not accepted, and Moore testifies (and it is not contradicted, so far as appears from the record) that he notified Hurley and Atkinson that he must be relieved from his trusteeship. It appears from other testimony that soon after the tender, and on the same day, Hurley’s brother advanced money to Walsh to buy the mortgage; that with this money, paid by Mr. Walsh, the notes of the stove company bearing Hurley’s indorsement were taken up and returned to Hurley, and the mortgage was assigned to Walsh. A foreclosure sale had already been advertised, which, after one or more adjournments, was made under the direction of Walsh. Hurley was present, and, the sale being forbidden by the plaintiff, the property was bid in by Walsh, who took a bill of sale from the person who acted as auctioneer.

It was contended upon behalf of the plaintiff:

1. That this mortgage, if valid, was discharged as to plaintiff, by the tender.

2. That the sale was premature, being unauthorized by the mortgage until November 1, 1891.

3. That the sale was therefore an unlawful conversion of the property, as against plaintiff, entitling him to its value to the extent of his claim.

The evidence (all of which is contained in the bill of exceptions) shows that the notes which Hurley indorsed were not paper to which the mortgage held by Moore was collateral. No reference is made by them to the mortgage, nor are they mentioned in the mortgage. They are not shown to have been made at the same time that the mortgage was made, and Moore’s testimony is that they were made at different times. They are not shown to have been given to Moore in any capacity,' unless it may possibly be inferred that they were made payable to him as cashier. He says that as cashier he discounted them for the bank; hence they were the property of the bank. It is not shown that the bank had any interest in the mortgage. If- the mortgage was Hurley’s, and plaintiff sought subrogation to his rights against their mutual debtor, he would not be entitled to the benefit of Hurley’s indorsement. And if it should be said that the mortgage was by Hurley used as collateral at the bank (which no one testifies to), plaintiff would be entitled to no more than as though Hurley had not thus used it. Plaintiff’s own testimony shows that Hurley was to be secured by a mortgage having priority over his own, as a consideration for $3,000, which he was to furnish the stove company. In short, the evidence is conclusive that this Moore mortgage was intended for the benefit of Hurley, and upon the faith of it Hurley had obligated himself to pay $3,000 to the Peninsular Bank. We think that the plaintiff had no right to this paper, and that the tender, being accompanied by and conditioned upon a demand which he was not legally entitled to make, was insufficient, and did not have the effect contended for.

Defendants’ counsel requested a charge that—

“If the jury believed that the tender * * * was accompanied by a demand * * * for the assignment of the notes and obligations held by the Peninsular Savings Bank, including the indorsement of John Hurley, and was not an unconditional tender of the amount due upon the mortgage, then such tender would not have the effect of discharging the mortgage under which the sale in question was made, and the defendants would be entitled to a verdict.”

The court was justified in refusing this request only by reason of the last proposition, viz., that “the defendants would be entitled to a verdict,” the effect of which, had it been given, would have been to take all other questions from the consideration of the jury, and make the case depend upon the question of tender. But the court went further than to refuse the request, and said to the jury, in substance, that the Moore mortgage was the property of the Peninsular Bank, by stating that “the Peninsular Savings Bank was to have the first mortgage or priority of mortgage, and it was so stated in the instrument.” This is at variance with the evidence, for nothing shows that the mortgage was to be the property of the bank, or that it was so stated therein, or so understood by any one, as the court probably understood when he directed a verdict in its favor. This was prejudicial to the defendants, but as error is assigned only upon the refusal of the request, which, as already shown, was properly refused, it does not afford a basis for relief.

The court instructed the jury that the sale was unauthorized and premature, for the ' reason that by the terms of the mortgage, and under the circumstances of the case, Moore, as trustee, was the only person authorized to direct. a foreclosure, and the evidence showed that he never directed any' such foreclosure sale; and for the further reason that a sale could not be lawfully made before November 1, 1891, after condition broken by non-payment. The evidence shows .that Moore assigned this mortgage, before the foreclosure sale, to Walsh, who’directed the sale. The mortgage was a chose in action, and the proper subject of assignment, and the assignee succeeded to all of the rights of seizure and sale that the mortgagee possessed. Dalrymple v. Sheehan, 20 Mich. 232. If, then, it be said that the seizure was proper, it remains to inquire whether the sale was premature. Authorities exist.from which the inference may perhaps be drawn that property seized under an insecurity or safety clause should be sold without delay. Instances can be imagined where it would be necessary to prevent destruction or loss of the property. See Jones, Chat. Mortg. § 433. We need not determine that question, however, as by the térms of the mortgage the mortgagee is authorized to take possession, and then dispose of the same by sale, etc. To our mind this clearly gives the right to sell at once, and there is reason for . the claim that the sale could not, under this provision, be safely delayed. Frisbee v. Langworthy, 11 Wis. 375. We think, therefore, that the court was in error in his instructions upon this subject.

The judgment must be reversed, and a new trial ordered.

McGrath, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.