text:
    SILVERSTONE v. LONDON ASSURANCE CORPORATION. SAME v. NORTHERN ASSURANCE CO., LTD., OF LONDON. SAME v. SOVEREIGN FIRE ASSURANCE CO. OF CANADA.
    1. Insurance — Fraud—Wilful Misstatements.
    Plaintiff sued defendant insurance corporation on certain insurance policies upon his stock in one of two stores which he operated. The defense was the claim that plaintiff wilfully misrepresented his loss. Plaintiff testified that in making financial statements to various hanks, etc., he did not include certain goods stored in a barn and in his house. Held, that though it was extraordinary that plaintiff should have understated his assets in applying for credit, the claims made relative to the reserve goods were for the jury.
    2. Same-Fraud — False Proofs of Loss.
    As requested by defendant, the trial court instructed the jury that the burden was on plaintiff to satisfy the jury as to what goods were destroyed, and that it was for them to determine whether, at the time of the fire, the items mentioned in his proofs of loss were in the store, that if not, and plaintiff knew it when he presented his proofs of loss, he could not recover though some of the goods were destroyed; that if plaintiff purposely committed fraud in his affidavit of loss or swore falsely as to the cause of the fire or value of the destroyed property, such statements avoided his policy. Held, that defendants’ request to charge that if plaintiff included in his proofs of loss articles not in his store, intending to deceive, etc., or if he exaggerated his loss, with such intent, he would not recover, were substantially given by- the general instructions.
    3. Same — Charge—Fraudulent Proofs of Loss.
    The court instructed the jury that the credibility of the witnesses and weight of the evidence were for the jury, who, if they believed any witness had intentionally given false evidence) might reject his entire testimony; if they considered the witness unworthy of belief and could distinguish the true from the false portions they might give such weight to the evidence as they believed it should receive. Held, in view of these instructions, it was not .improper to refuse defendants’ request that the jury should consider plaintiff’s candor, general attitude and willingness to lay all the facts before the jury, etc., in passing on the issue as to fraudulent proofs of loss.
    4. Same — Witnesses—Charge.
    Where defendant requested the instruction that if the burned portion of plaintiff’s store was too small to contain the goods described as totally lost, and if plaintiff intentionally exaggerated the amount and cost of the goods so destroyed, he could not recover, the trial court rightly declined to give the instruction on the ground that it attempted to single out particular features and particular witnesses giving the claim of the defense undue prominence.
    5. Same — Appeal and Error — Trial—Jury.
    The matter of permitting the jurors to take exhibits to their room is generally one for the discretion of the trial court: only in case of abuse of such authority by the trial court will a verdict be set aside on error. However, the failure of defendant to except to the action of the court in refusing to send exhibits to the jury room at the request of the jury prevents the reversal of judgment on such ground.
    Error to St. Clair; Tappan, J.
    Submitted April 27, 1915.
    (Docket Nos. 45, 46, 47.)
    Decided July 23, 1915.
    Rehearing denied December 22, 1915.
    Assumpsit by Morris M. Silverstone against the London Assurance Corporation and other defendants named in the title, by separate actions which were consolidated by stipulation. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Selling & Brand and James A. Muir, for appellants.

      Walsh & Walsh, for appellee.
   Kuhn, J.

These cases had the consideration of this court in an opinion written by Mr. Justice Stone, reported in 176 Mich. 525 (142 N. W. 776). Having been reversed, on the new trial the jury again found in favor of the plaintiff for the full amount claimed. An examination of this opinion will disclose the claims of the parties. On the new trial, as on the trial before, the testimony was very voluminous.

In the brief of counsel, in support of the contention that the verdict was against the overwhelming weight of the evidence, considerable reliance is placed upon the proposition that the plaintiff, in making the numerous statements with reference to his financial condition with banks and commercial agencies, did not include his claimed reserve stock, and that therefore it should be determined by this court that, as a fact, no such reserve stock existed. It may be said that it is a strange and extraordinary circumstance that, in seeking the establishment of credit, the plaintiff should have minimized his property assets, and thus obtained less credit than he might have been entitled to if a true statement of his property, as claimed by him, had been made. However, the question of the existence of this reserve stock and the plaintiff’s representations with reference thereto were questions of fact for the jury.

It appears that, before the last insurance was placed upon this stock, Mr. Homer McGraw, the agent who wrote the insurance, accompanied by Mr. England, a special agent who had been in the insurance business for many years, inspected 'the premises and the risk. Testimony additional to that had on the previous trial as to these statements made to the banks was introduced on this trial. But, after a careful review of the record, we are not satisfied that the verdict was so against the overwhelming weight of the evidence as to make it error for the trial judge to have denied the motion for a new trial based on that ground. As was said by Mr. Justice Bird, in B. Marx & Son v. King, 177 Mich. 662, at page 665 (144 N. W. 553, at page 554):

“But we are of the opinion that the additions to the testimony did not so change the situation as to remove the question from the domain of fact. It was still a question for the jury, as there was conflicting testimony which, if believed, would justify the verdict.”

Two juries, duly qualified and disinterested, so far as it appears, have reached the same result, and as was said by Mr. Justice Steere in Krouse v. Railway, 170 Mich. 438, at page 442 (136 N. W. 434, at page 436):

“While not necessarily controlling,- this is significant. The court will only interfere when a verdict is so manifestly contrary to the overwhelming weight of evidence and so palpably wrong as to force the conviction that it was the result of either passion or prejudice or a dense incapacity to analyze testimony and discern the truth.”

See, also, the following recent decisions of this court: Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592); Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59); McGary v. Motor Co., 182 Mich. 345 (148 N. W. 722).

The following requests to charge were submitted to the trial court by defendants’ counsel and refused:

“ (6) If you believe from the evidence that the plaintiff included in his proofs of loss articles of property not in the store at the time of the fire, with the intent to defraud the companies, this would avoid the policies, and the plaintiff cannot recover in these suits.
“(7) In determining whether plaintiff purposely swore falsely in his proofs of loss or before" the notary, it is your duty to consider his candor or lack of candor, his general attitude as a witness, and his desire or lack of desire to lay the facts fully before you, and the reasonableness of his story. * * * If you find that plaintiff included in his proofs of loss an exaggerated statement as to the amount of loss resulting from the fire, with intent to defraud the companies, this would avoid the policies, and the plaintiff cannot recover in these suits.”
“.(11) If you find that the burned area was entirely too small to contain any such amount of goods of the cost claimed in the proofs of loss to have been totally destroyed, and that plaintiff intentionally, in his proof of loss, exaggerated the amount of and cost of the goods claimed to have been totally destroyed ($5,243), your verdict must be for defendants.”

We believe that the sixth request to charge was given in substance by the giving of defendants’ twelfth request to charge, which read as follows:

“The burden is on the plaintiff to satisfy you what was there. (I suppose that means what goods were there.) You are to say whether there was there, at the time of the fire, the items of property which are described in the plaintiff’s proofs of loss. If they were not all there at the time of the fire, and you are convinced that plaintiff knew it when he presented his proofs of loss, then your verdict must be for the defendants, even though some of the goods were there.”

The court also said:

“If you find from the proofs that the plaintiff purposely committed fraud by means of his proofs of loss or any other material proofs or proceedings, or swore falsely therein, or swore falsely as to the origin of the fire or as to the amount of value of the stock of fixtures he had in the store at 450 Gratiot avenue at the time of the fire, or while this insurance was in force, then said false and fraudulent statements void the policies in question. If this be your finding, your verdict must be rendered in favor of the defendant companies.”

With reference to the defendants’ seventh request to charge, it will be noted that it is in two sections. The substance of the second section was given in the portion of the charge above quoted.

The first section of the request attempts to single out the plaintiff from the other witnesses, and requests the jury to consider his candor or lack of candor, his general attitude, as a witness, his desire or lack of desire to lay the facts before them, and the reasonableness of his story. The court, in his charge, gave the following general instruction as to the credibility- of witnesses:

“You are further instructed that the credibility of witnesses and the weight of the evidence are matters for your determination solely. If, during the trial, you are convinced that any witness has intentionally given false testimony, you have the right to reject the entire evidence of that witness, if you believe the witness unworthy of belief. You also have the right to separate truth, if any, from untruth, if any, and give such weight or credence to the evidence as you believe it deserves.”

In view of the general charge above quoted from, we do not think it was error for the court to refuse to single out a particular witness. See Frazer v. Haggerty, 86 Mich. 521 (49 N. W. 616).

Neither do we think it was error for the court to have refused defendants’ eleventh request to charge, which'was also an attempt to single out a particular feature of the evidence which was disputed — as to whether a certain portion of the store could have contained a certain amount of goods or not. We have carefully examined the entire charge of the court, and are satisfied that the issues here involved were fairly and impartially submitted to the jury with a correct statement of the general rules of law applicable thereto.

During the defendants’ argument to the jury, in an effort to show discrepancies between the original invoices of certain goods and the inventory of his stock made by the plaintiff, and in order to show that the claim made by plaintiff that a certain amount of his reserve stock had not been inventoried was false, and in fact that everything he had was inventoried, the following occurred:

“Mr. Selling-. I am going to ask one of you gentlemen to take the inventory book—
“Mr. Walsh: I object to any such procedure.
“Mr. Selling: I want the jury to take this exhibit and see with me whether that which this man claims was never inventoried and was part of his reserve stock, whether, as a matter of fact, it was not inventoried and everything he had was inventoried.
“The Court: That will necessitate each juror having that in his hand at the time you are making the comparison. You may make the comparison yourself, and, if you wish to, you can give them the inventory to take to the jury room with them.
“Mr. Selling: All right. All right, gentlemen, if you will collect around here so you can see.
“The Court: No, they can take it to the jury room and see it later.
“Mr. Selling: Can I at this time call attention to it, what it is ?
“The Court: Yes, but I do not want to wait to pass that around to each juror.
“Mr. Selling: I do not intend to pass it around, if the court please. I want them to see it. If they will come here, I will show the bills on page 18. This is his inventory of January, 1910, pages 18 and 19. I will take page 18 now,” etc.

Thereupon counsel proceeded to make his own comparisons of various items, and occupied the entire time allotted to him for argument on behalf of the defendants. At the conclusion of the arguments, the following took place:

“Mr. Selling: How about the exhibits? Are they going to the jury?
“The Court: It is just as you gentlemen agree.
“Mr. Selling: How about that, Mr. Walsh?
“Mr. Walsh: No.
“Mr. Selling: Your honor, I do not press my argument on these exhibits, relying upon your honor’s statement that they would go to the jury.
“The Court: I made the suggestion that the jury should not take the time in looking at that, but in place of that you send them to the jury room.
“Mr. Selling: In my argument I would have pressed it a little stronger and would have had them around, if your honor had not said that would be done.
“Mr. Selling: I want to except to the refusal of the court to permit the exhibits to go to the jury.”

After the jury had retired, they sent word to the court officers that they desired to see certain of the defendants’ exhibits. As to what then occurred may best be gathered from the reasons given by the trial court in his denial of a motion for a new trial, in which he said:

“Causes 14, 15, 16, 17, and 18 relate to the matter of procedure in failing to send exhibits to the jury room at the close of argument and after the cause had been submitted to the jury.
“Counsel for defendants apparently bases these several reasons upon defendants’ exhibit attached to his motion — a letter of the court addressed to counsel for defendant under date of December 23, 1913. This is a private letter to counsel from the presiding judge, and necessarily not a complete finding- as to the circumstances pertaining to the inventory and exhibits mentioned therein.
“During the trial the entire contents of the inventory of January 15,1910, other inventories, and all exhibits received in evidence were placed before the jury over and oyer again with the most minute detail. As these exhibits were received in evidence, including the inventory in question, Mr. Selling, counsel for defendants, reproduced their contents before the jury upon large sheets of manila paper hung upon a blackboard, in heavy writing and large figures made with black crayon. He also made a summary of these in plain figures on the blackboard.
“By these means, and by means of the examination of the witnesses as the inventories and exhibits were received in evidence, the jury were fully informed as to the inventories and exhibits, their character, purport, and what counsel claimed for them. Excluding the affidavits of jurors in opposition to the motion and concerning these exhibits, it is my conclusion that the jurors were so fully informed as to the inventories and exhibits in question that it was not necessary that these should have been furnished them while they were considering the case, notwithstanding the fact the court intended to send such exhibits as should be agreed upon to the jury room at the close of the argument.
“As to what transpired after the case had been submitted to the jury, the following are the facts: At the close of the arguments Mr. Selling left the courtroom for Detroit, leaving Mr. Muir, of counsel, in charge for defendants. Some time after the jury had had their supper, and while the court was at his residence, the court officer informed the court by phone that the jury had called for an inventory and other exhibits. He was directed to call Mr. Muir and Mr. Walsh at once, and, when the court arrived at the courtroom about half an hour later, he informed the court that he had done so, and found that Mr. Muir was at a theater; that he had called by phone for Mr. Muir at the theater but was informed by those at the ticket office that they could not get him.
“Mr. Walsh was in the courtroom. He then still claimed that the exhibits should not go to the jury, and added, that if the court allowed the defendants to select and send in exhibits to the jury, he should select other exhibits and insist upon these being sent to the jury. Mr. Walsh waited a considerable time, probably nearly or quite half an hour, for Mr. Muir’s appearance, and then left the courtroom and did not return thereafter. The court then instructed the court officer to inform the foreman of the jury that the court could not send in the exhibits asked for, which he afterwards informed the court he had done. No other message or instruction was sent to or given the jury by the court or court officer.
“Soon after this was done, Mr. Muir appeared at the courtroom and was informed by the court of all that had taken place. He stated that he would consent that all exhibits be given the jury, and after a short time he also left the courtroom. At the time that Mr. Walsh was in. the cOuHroom, and also when Mr. Muir was present, the court had no knowledge as to the whereabouts of the exhibits. Mr. Muir did not call for them nor request the court to send for them. He raised no objection to what had been done, made no request that the jury be called for, and made no request that the court stenographer be called to make a record of the proceedings, or to record objections or exceptions to anything that had been done.”

Complaint is made as to the course of procedure adopted by the trial court in sending his communication to the jury, viz., instructing the court officer to inform the foreman of the jury that the court officer could not send in the exhibits asked for.

It will be noticed from the findings of the court that, when Mr. Muir was present in the court, he was informed of all that had taken place, and raised no objection to what had been done, and made no request that the jury be called for; nor was any request made that the stenographer be called to make a record of the proceedings, or to record objection or exceptions to anything that had been done. We think that the failure of counsel to make proper objection to the course taken by the trial judge at the time that his attention was called to it was a waiver of any irregularity in the proceeding. What was said by Mr. Justice Mooee in Le Beau v. Construction Co., 109 Mich. 302, at page 305 (67 N. W. 339, at page 340), is also applicable here:

“In the case at issue, counsel made no objection to the course taken by the circuit judge until the verdict was rendered. It seems to be pretty well settled that, after one has knowledge of an irregularity, he cannot remain silent, and take his chances of a favorable verdict, and afterwards, if the verdict goes against him, base error upon it. 2 Thomp. Trials, p. 1976. If the action of the trial court was irregular, the irregularity was waived by making no objection until after the verdict was rendered.”

The general rule in this State seems to be that it is within the discretion of the trial court to allow exhibits to be taken to the jury room. Tubbs v. Insurance Co., 84 Mich. 646, 655 (48 N. W. 296); Walker v. Newton, 130 Mich. 576 (90 N. W. 328); Farrell v. Haze, 157 Mich. 374, 379 (122 N. W. 197). And in Bulen v. Granger, 63 Mich. 311, 317 (29 N. W. 718), the statement is made that the general rule is against the practice of sending exhibits to the jury, where objeetion is made, and, if this court is satisfied that prejudice resulted therefrom, no hesitation should be had in reversing the case.

In view of the record here made, should it be said that prejudicial error was caused by the failure of the trial judge to allow the exhibits to go into the jury room? As it is fundamental that the jury are to receive the testimony in open court (Chadwick v. Chadwick, 52 Mich. 545, 549 [18 N. W. 350]), and'as it conclusively appears from the findings of the trial judge above set forth that much time was consumed by counsel with reference to these exhibits, their contents were produced before the jury upon large sheets of manila paper, hung upon a blackboard, in heavy writing and large figures made with black crayon, and they were properly and fully exhibited to the jury, so that they completely understood their contents, character, and purport, and what counsel claimed for them; and furthermore that, at the time the statement was made by the court to counsel as to having the exhibits taken into the jury room, counsel went fully into the comparisons between the inventory and the invoices and consumed the entire time allotted to him for argument. We are not satisfied that any prejudice resulted to the defendants as a result of the refusal of the circuit judge to send the exhibits into the jury room, or that there was any abuse of discretion on the part of the judge in his refusal to do so.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ARFMAN v. TAMARACK MINING CO.
    Master and Servant — Fellow Servants — Mines.
    This cause is a companion case to Lahti v. Tamarack Mining Oo., 186 Mich. 18, and is controlled by the opinion of the court therein, holding that plaintiff’s injuries were the result of the negligence of a fellow servant of plaintiff.
    Error to Houghton; Cooper, J., presiding.
    Submitted April 13, 1915.
    (Docket No. 53.)
    Decided July 23, 1915.
    Case by Kate Arfman, as administratrix of the estate of Reinhold Arfman, deceased, for the unlawful killing of plaintiff’s intestate. Judgment for defendant. Plaintiff brings error.
    Affirmed.
    , A. W. Kerr (A. T. Streeter, of counsel), for appellant.

      Allen F. Rees (Rees, Robinson & Petermann, of counsel), for appellee.
   Stone, J.

This is the companion case to that of John Lahti against the same defendant, decided on June 7, 1915, by this court, and reported in 186 Mich. 18 (152 N. W. 907). Roth cases are founded upon the same accident and occurrence. The accident occurred on the morning of March 19,1910, on the fifteenth level of defendant’s No. 3 north, Tamarack shaft. The plaintiff’s intestate, Reinhold Arfman, deceased, was fatally injured, surviving only a few hours, and Lahti received injuries from which he recovered. In this record Lahti appeared as a witness under the name of John Laho. In the instant case, the motions of defendant for a directed verdict in its behalf were overruled by the trial court, and the issues were submitted to the jury, and a verdict for the defendant resulted. From a judgment based on the verdict of the jury, the case is brought here by the plaintiff on a writ of error, and the several assignments of error are based upon alleged errors in the charge of the court.

Upon the trial it was the contention of the defendant that a verdict should have been directed for the defendant upon the following grounds:

(1) Because the evidence in the case failed to establish a cause of action in favor of the plaintiff; (2) because there was no evidence of any negligence on the part of the defendant, or attributable to it; (3) that any negligence which the evidence tended to show, under the circumstances, must be considered as the negligence of a fellow servant; (4) that the evidence disclosed facts without dispute, which, as matter of law, must be held to have constituted, contributory negligence on the part of the decedent; (5) that the conditions, resulting in the accident, were open, obvious, and apparent to one who had had the experience and knowledge of decedent, and the risk was fully and obviously appreciable to one of ordinary understanding, and the decedent therefore assumed the risk.

The defendant makes the same contentions in this court. Here, as in the Lahti Case, there were substantially no disputed material facts. We have read both records with care, and are of opinion that upon all questions relating to the claimed negligence of the defendant, the records are substantially alike, and the law of the case must be held to have been settled by the majority opinion in the Lahti Case. We there held that the negligence, if any, was that of the conductor of the tram cars in failing to have a miner’s lamp attached to the front car, as was his duty and custom (his failure resulting from breaking the lamp just before starting the cars), and was the negligence of a fellow servant, for which the employer was not liable, and that a verdict should have been directed for the defendant. The questions being the same in the instant case, if a verdict for the defendant should have been directed, then the verdict which was rendered by the jury should be sustained, no matter to what extent they may have been erroneously instructed with respect to the issues submitted to them. In our opinion, the instant case is governed and controlled by the majority opinion in the Lahti Case, and the verdict and judgment rendered were, as matter of law, the only ones that can be justified, under the evidence, and the law of the case. There would be no profit,, therefore, in further considering or discussing the several assignments of error.

The judgment of the circuit court is therefore affirmed.

Brooke, C. J., and Kuhn, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.

The late Justice McAlvay took no part in this decision.


text:
    PRITCHARD v. HUTTON.
    1. Deeds — Cancellation of Instruments — Husband and Wife— Undue Influence — -Presumptions—Fraud.
    Where complainant, the daughter of decedent, filed a hill for the cancellation of certain deeds executed by decedent to defendant, his second wife, alleging undue influence and fraud, and the evidence showed an estrangement between the father and daughter and a bitter feeling existing between the parties because of decedent’s marriage to defendant, the mere fact that decedent so disposed of his property as to do an apparant injustice to complainant would not raise a presumption of undue influence or fraud, or nullify the transaction.
    2. Same — Husband and Wife — Undue Influence.
    Evidence of undue influence, and that decedent was subject to the dominating influence of defendant, his wife, examined, and held, not to support the allegations of the bill: undue influence cannot be predicated upon mere opportunity for its exercise.
    3. Same — Husband and Wife — Fiduciary Relation — Presumptions.
    The mere fact that decedent made provision for defendant, his wife, by deed, did not create a fiduciary relation between them, raising a presumption of undue influence or fraud.

      i

    4. Same — Fiduciary Relation — Question of Fact.
    Even where the relations of the parties are such as to create a fiduciary relation, the question of undue influence is one of fact.
    5. Same — Insanity—Capacity.
    It is not necessary, to defeat a deed or contract, that positive idiocy or insanity of the grantor be shown; it is sufficient to show that there is such a marked mental deficiency to justify the conclusion that there has been no such meeting of minds as is necessary to create a valid deed or contract.
    6. Same — Husband and Wife — Fraud.
    Any undue advantage gained by the use of the marital relation is a legal fraud, and in the case of a conveyance by a husband feeble and weak of mind to his wife, the courts will scan the transaction very closely to discover the animus with which the conveyance was brought about.
    7. Same — Evidence—Undue Influence — Husband and Wife— Parent and Child.
    Where, by the overwhelming weight of the evidence it appears that the grantor was in the exercise of his own independent will and judgment, and that his mind dominated and controlled the transaction, the court will not set aside the deed, although the effect was to bestow his property upon his wife to the exclusion of his child and other relatives.
    8. Same — Husband and Wife — Fraud.
    It is not unlawful for a wife to use her wifely influence for her own benefit or that of others, unless she acts fraudulently.
    9. Same — Undue Influence — Pbesumpiions.
    The failure of a testator to give his property to near relatives, with whom he was not on good terms, raises no presumption of undue influence on the part of the wife, to whom the property was deeded.
    Appeal from Wayne; Hally, J.
    Submitted April 7, 1915.
    (Docket No. 8.)
    Decided July 23, 1915.
    Bill by Annie Pritchard against Elizabeth Hutton and William Henry Hutton for the cancellation of certain deeds and for other equitable relief. Prom a decree for defendants, complainant appeals.
    Affirmed.

      Lucking, Helfman,, Lucking & Hanlon, for complainant.

      Washington I. Robinson and James H. Pound, for defendant Elizabeth Hutton.
   Stone, J.

The bill of complaint in this cause was filed by the complainant, who is a daughter, and claims to be the only child, of William Hutton, deceased, to set aside various deeds executed by the deceased directly to the defendant Elizabeth Hutton, his second wife, to impress with a trust other realty received by her from third persons in exchange for realty deeded to them by the deceased, and to secure complainant her share of her father’s personal property.

The previous family history bearing upon the case is well stated in the opinion of the learned trial judge, who heard the case in the court below, and the same is here quoted:

“William Hutton, whose property is the subject of this litigation, was in the ’70’s engaged in the business of boiler making in the city of Detroit. At the age of 53 he retired from business, being at that time possessed of considerable real estate in the city of Detroit. He was a married man, had a wife and one or more children; whether one or more it is not necessary in this case to decide. In 1894 his wife died. He remained a widower until August 3, 1901. He resided on Congress street when the principal incidents related in the testimony in this case transpired. His next-door neighbors were a Mr. and Mrs. Bennett, both considerably younger than William Hutton. Some time in the year 1900 gossip in the neighborhood connected the names of Mr. Hutton and Mrs. Bennett in such a way that the daughter of Mr. Hutton, complainant in this case, saw fit to speak to her about the improper conduct of Mrs. Bennett with her father. Mr. Bennett was in like manner spoken to concerning the conduct of his wife, and something of a neighborhood furor grew out of the situation. Bennett died December 11, 1900. Complaint was made against the husband of complainant for slander, and in the police court the husband justified the accusations he had made by the recital of a transaction that he had seen between Mrs. Bennett and Mr. Hutton on Webb avenue, in the city of Detroit. The case in the police court was tried before a jury, and the jury found him guilty. He appealed to the recorder’s court, and, pending the trial on the appeal, Mrs. Bennett married William Hutton; the marriage taking place August 3, 1901. This union resulted in almost a total severance of relations between William Hutton and his child or children.
“Previous to this time he had given his grandchildren some property and had also given his daughter some property. The gifts to these might be stated as follows : To his granddaughter, Ida, property worth approximately $14,000; to his grandson, William Sands, property valued at about $5,000; to his daughter, the complainant, property valued at about $5,000. The two grandchildren above mentioned were children of the complainant by her first husband. She has three children by her second husband. None of the'children or the daughter during the 12 years of married life of William Hutton with the defendant visited with or held anything more than passing comment with him. On November 19, 1903, he transferred a portion of his property, and with his wife paid the difference in cash, acquiring a piece of property which he put in her name. Mr. Hart, who was the other party to the transfer, said that it was Mr. Hutton himself personally who directed that the new deed should run to Mrs. Hutton. On March 31, 1904, he signed another instrument, which during the course of the taking of testimony was referred to as the marriage settlement. By this four or five pieces of property were deeded to Mrs. Hutton. On September 12, 1907, he made a deed to Allen for the purpose of creating the estate by the entirety respecting other property. On June 2, 1909, he made a transfer with Philo Hall and his wife of certain property, taking other holdings in its place, and having the deed to this new holding run to Mrs. Hutton. Subsequent to this he sold some property to Silas Hall. He died April, 1912. Immediately upon his death this bill was filed by the complainant, asking the court to set aside these transfers.
“During the course of the taking of the testimony and on the argument it was substantially admitted that William Hutton was not of unsound mind. Complainant and her husband would not deny his sanity. The attorney representing them described his condition as ‘one of failing health and weakening mentality, so that his mind was in a condition making it easily susceptible to the undue influence which was exercised upon him by his new wife/ and insists that the situation is such that the burden of proof rests not upon the complainant to show the situation, but that that burden is shifted and falls upon the defendant. I know of no presumption of law which would shift this burden from the shoulders, of the daughter to the shoulders of the wife. I do not think the conclusion is justified that the law of Michigan shifts a burden in a case of this kind, under the circumstances that are here developed. William Hutton was undoubtedly capable of transacting business almost to the last moment of his life; and, if there is any sacredness to the personal right of property, his disposition during his lifetime and at various stages during his lifetime should not be disturbed by a court, unless there is an unmistakable showing of that undue influence which would justify such an action. In this, respect the testimony of Mr. Johnston is relied upon. In passing it might be stated that Mr. Johnston is the only one of the old friends, sometimes^ called cronies, of the deceased, who took the stand in complainant’s favor. His testimony goes to the extent that Mr. Hutton had in his lifetime told him that he was induced by one Flouddy to go to the office of Mr. Chamberlain and sign some papers, the import of which he did not understand. If Mr. Hutton said this, he said it in a moment of pique. He was more than once at the office of Mr. Chamberlain and Mr. Chamberlain testified that Mr. Hutton understood what he was doing, and that it was explained to him. Besides this, several witnesses, who were present at some one of the meetings at Chamberlain’s office, and in this they are substantiated by Mr. Chamberlain, tell of the remarkable recitation by William Hutton of an exact description from memory of all of the property which he desired transferred. If he did not know what he was doing, or if he was being forced by some dominating influence to make this deed of this property, that dominating influence must have gone so far that it not only controlled his will but it also controlled his memory. There are no circumstances in sufficient quantity given in this case which would justify the conclusion that it was possible for any other mortal to so dominate both the will and the memory of the deceased. Some of the minor circumstances developed concerning his married life indicate quite clearly that he had a will of his own, and that his memory was exercised acutely or otherwise dependent entirely upon what he wished in that respect.
“Whatever may be the individual notion of the just manner in which an ancestor should dispose of his property, every competent person has a right to dispose of it as he wishes. There<is a sort of moral notion that a father must dispose of his property in equal shares to all of his children, and that, if he does not do so, those who get less than an equal share are de-. prived of some of their rights. It is probable that the ! more or less universal disposition along this line justi- \ fies some such notion, but it does not exist in either morals or law. William Hutton was competent to dispose of his property and dispose of it as he wished it ( disposed of himself. It would not be proper for a court to set its judgment in opposition to his.”

We have carefully read and considered the entire testimony in this large record, consisting of upwards of 500 pages. Many witnesses were examined. We cannot be expected to quote their testimony.

For the reasons stated in the foregoing opinion, the relations existing between the deceased and the complainant, her husband and family, as well as the relations between the defendant (the second wife) and the complainant and her family, may be said to have been strained, and the feelings those of bitterness, during much of the period from the death of Mr. Hutton’s first wife, in March, 1894, down to the death of Mr. Hutton, which occurred on the 14th day of April, 1912. The testimony of the parties and other relatives upon both sides shows a great deal of bitterness, and we discover more or less exaggeration. No species of testimony is more easily fabricated than that of admissions or declarations of a deceased person. We have endeavored to give due weight to the testimony, however, taking into consideration the interest of the parties testifying. Outside the testimony of the parties and their immediate relatives, and considering-the testimony of disinterested witnesses, we are strongly impressed with the fact that the bill of complaint has not been supported by the weight of the evidence in the case. The charge is made in the bill of complaint that all of the numerous transfers made, and deeds executed by the said William Hutton to the defendant, his second wife, were made without any intelligent appreciation, understanding, or realization of the effect thereof by the said William Hutton; that said deeds so executed by said William Hutton were not executed by him voluntarily, or of his own free will, but that the will resulting in the execution of said deeds was the will of the said defendant Elizabeth Hutton, and her dominating influence was solely responsible therefor ; that the said defendant Elizabeth Hutton fraudulently and unlawfully took advantage of the age, feebleness, and lack of will and intelligent understanding of said William Hutton, and fraudulently and unlawfully induced him to make the transfers and to execute the deeds aforesaid, and that the execution of all of said deeds by said William Hutton was due solely to the undue influence of said defendant Elizabeth Hutton and to the fact that she dominated, intimidated, and coerced him into signing said deeds and transfers, so that she might obtain all of the estate and property of William Hutton for herself, and might fraudulently deprive complainant of any share or right therein. And it is further charged that if the said William Hutton had not been so coerced, intimidated, and unduly influenced, and had understood what he was doing, he would have made suitable provision for complainant and her children out of said property and estate.- We refer to these allegations to indicate the measure and character of the evidence necessary to support the bill.

The evidence shows that William Hutton died at the advanced age' of 88 years. The evidence of more than a score of disinterested witnesses from all the walks of life, who were his neighbors and acquaintances, and who had known most of his business transactions, shows that he was a man, although with some physical infirmities, yet of strong characteristics, possessed of more than ordinary intelligence and of an unusually strong mind, with a dominating will, and was a man not easily influenced. The uncontradicted evidence shows that he was a man who took an interest in current events down to the time of his death; that he was in the habit of reading the daily newspapers and discussing public questions with intelligence and* interest. As a member of a fraternal organization he had been the treasurer of his lodge, had not only kept its accounts but at its meetings had engaged in its deliberations and discussions, and was a man able and capable of taking care of himself under all circumstances. The history of the case shows the occasion for his bitter feeling toward complainant and her husband. They had circulated slanderous and, as it is claimed, false charges against him and the woman who became his second wife, charging them with illicit and improper relations, even before the death of his first wife, until the matter finally culminated in the prosecution of complainant and her husband for slander of the defendant before his marriage to her; that, upon the trial of the case against the husband of complainant before the police court, Mr. Hutton had testified as a witness against him, which prosecution had resulted in his conviction. Numerous disinterested witnesses testified to statements made by the deceased that he had given complainant and her children all the property which he would ever give them; that they had attempted to blacken his reputation and that of his second wife, the defendant Elizabeth Hutton. After the death of his first wife he lived for a time in complainant’s family. Matters became, as he stated, so unpleasant that he finally left and went and lived with a sister for a time, immediately before his marriage to defendant.

It is not the claim of complainant or her husband that these charges were not made by them against deceased and the defendant while she bore the name of Mrs. Bennett, and there is no claim that these charges against them were not real, but were delusions upon his part, for complainant and her husband both gave testimony upon the hearing in this case to justify their charges, and reiterated the truthfulness of the so-called slanderous language. The motives in part for the conduct of Mr. Hutton in deeding his property to his second wife are to be found in the relation which existed between him and complainant and her family. The question here is, not whether his motives were such as to be approved in all respects, but whether his conduct in disposing of his property were his voluntary and freewill acts, and the acts of a sane man possessing a disposing mind. We are strongly impressed with the testimony in the case that he was a man possessing a strong will, and that the acts of disposing of his property by deeding it to his second wife (with whom he lived nearly eleven years) were his own intelligent acts, long contemplated, and not the acts of a weakling, or of a person controlled by another. This property was disposed of by him to his second wife at different times; the last transaction occurring nearly three years before his death. During all of the period of his married life with defendant he continued to look after the property, collect the rents, and make repairs thereon, always saying that he intended it to be that of the defendant, and often reiterating that he knew what he had done. During all of his married life with the defendant the complainant and her family never visited him. The bitterness continued to the day of his death, and none of them attended his funeral, although they lived in the immediate vicinity and saw the crape upon his door. What he did was what might have been naturally expected.

This court has often said that the mere fact that a decedent so disposed of his property as to do an apparent injustice to one or more of his relatives would not nullify the transaction. Courts are not permitted to make equitable distribution of estates, but are concerned only in giving effect to the legal acts of decedents. A careful study of the record in this case discloses the reasons why Mr. Hutton made the disposition which he did of his property to be because of the bitterness which existed, for the reasons stated, between himself and complainant and her family, and further that his second wife, who lived with him and cared for him during nearly 11 years, had, in his judgment, so conducted herself by her wifely attention to his comfort as to be worthy of receiving all the property which he bestowed upon her. In the able brief of complainant’s counsel they base their argument upon the following proposition and authorities:

“Where a woman of 44 married a man of 76, who had acquired all his property prior to said marriage, and with whom, while her first husband was living, she had kept up a questionable intimacy for some years despite vigorous protest of the daughter and only heir at law of the aged man, and within a few years after said marriage to him obtained all his realty by successive deeds in his seventy-eighth, seventy-ninth, eighty-second, eighty-third, and eighty-fourth years and also all of his personalty, while he was surrounded by and subject to her dominating influence and separated from his daughter and grandchildren, and also deaf and in poor health, and where it is shown that she hated the daughter and son-in-law, both of whom she had caused to be arrested for slander prior to said marriage, equity will raise, under such circumstances, a presumption of fraud and undue influence, and will cast upon the wife the burden of proving that the deeds and gifts were made without undue influence or fraud” — citing Witbeck v. Witbeck, 25 Mich. 439; Noban v. Shoup, 171 Mich. 191 (137 N. W. 75); Whiteley v. Whiteley, 120 Mich. 30 (78 N. W. 1009); Smith v. Cuddy, 96 Mich. 582 (56 N. W. 89); Tyner v. Varien, 97 Minn. 181 (106 N. W. 898); Disch v. Timm, 101 Wis. 179 (77 N. W. 196); Haydock v. Haydock, 34 N. J. Eq. 570 (38 Am. Rep. 385); Lins v. Lenhardt, 127 Mo. 271 (29 S. W. 1025); Haggard v. Mason, 153 Ky. 113 (154 S. W. 907); Paschall v. Hall, 58 N. C. 108; Paulus v. Reed, 121 Iowa, 224 (96 N. W. 757); 1 Devlin on Deeds, p. 135, and cases cited — to which may be added as later cited: 20 Cyc. p. 1219; 6 Ency. of Evidence, pp. 10, 11, 12, 219, 221; Smith on Fraud, § 115; 2 Pomeroy’s Equity Jurisprudence, §§ 951, 955, 956, 963.

The applicability of the above-cited authorities to the case made by this record may well be questioned. The case is largely one of fact.

The foregoing statement of the case is hardly justified by the overwhelming weight of the evidence in the case, to wit, that there was a questionable intimacy between the defendant and the deceased while her first husband was living. This is not only denied, but, in the light of all of the evidence, is highly improbable. The statement begs the entire question that deceased was subject to the dominating influence of the defendant. The facts in the case do not, in our judgment, warrant any such conclusion. At most it may be said that the wife had the opportunity to exercise undue influence; but it has been often said by this court that:

“Undue influence cannot be predicated upon mere opportunity for its exercise.” Blackman v. Andrews, 150 Mich. 322 (114 N. W. 218).

That Mr. Hutton was separated from his daughter and grandchildren during the entire period of his married life with the defendant is true, but that he or the defendant was the cause of such separation is not shown by the testimony in the case. The testimony rather indicates that the complainant and her family kept aloof from the deceased because of their bitterness toward the defendant. There is no indication in the evidence that the complainant or her husband ever retracted any of their charges against the deceased or the defendant, but persisted in making their charges against them upon the hearing of this case. That defendant did cause the arrest of complainant and her husband for slander prior to said marriage is true; and it is true that the husband was convicted of the charge in the police court. Subsequently the case was appealed to the recorder’s court, but the marriage having taken place in the meantime, was nolprossed.

We have read with much interest the authorities cited by complainant’s counsel. Many of them deal with trust relations. We do not understand it to be the law in this State that, because a husband makes provision for his wife by deed or otherwise, thereby a fiduciary relation is raised or exists between them. It is true, as stated in Pomeroy (2 Pomeroy’s Equity Jurisprudence, § 963), after speaking of the equitable doctrine applying with strictness to executors, administrators, and trustees:

“The same general principle extends, with more or less force, to dealings between a physician and patient, a spiritual adviser and penitent, vendor and vendee of land, husbands and wives, and persons occupying their position, partners, and indeed all persons who occupy a position of trust and confidence of influence and dependence, in fact, although not perhaps in law.”

This court has frequently said that the relations between parties may be such as to raise a fiduciary relation, and in such a case a presumption of undue influence frequently arises which calls for explanation. Such presumption is one of fact. In re McMaster’s Estate, 163 Mich. 210 (128 N. W. 259); Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154); In re Hartlerode’s Estate, 183 Mich. 51 (148 N. W. 774).

That the deceased was deaf and had been afflicted with catarrh for a number of years is undisputed; but that by those afflictions his strength of body or mind had become so impaired as to be the easy victim of fraud or undue influence is not warranted by this record. In fact, the contrary appears. We recognize the rule to be as follows: It is not necessary, to defeat a contract or deed, that weakness of mind amounting to positive idiocy or insanity be shown. If it appears that there is a mental deficiency so marked as that the conclusion is justified that the party appeared as not exercising deliberate judgment concerning the transaction in question, but, on the contrary, has been simply as putty in the hands of the stronger will, then it cannot be sáid that a valid contract or deed has been executed. A vital element is lacking in that there cannot then be said to have been any meeting of minds. Out of such a transaction there is presented the product of but one mind. In the case of the conveyance by a husband to his wife, or by the wife, to the husband, the grantor being feeble and weak of mind, and a controversy thereafter arising between them, or those representing them, the courts will scan the transaction very closely to discover the animus with which the contract or deed was brought about. Without question, any undue advantage gained by the use of the marital relation is a legal fraud, as in the Wubeck Case, the Whiteley Case, in Noban v. Shoup, and Smith v. Cuddy, supra.

The vital question in this case is whether or not there has been shown sufficient fraud or undue influence on the part of the defendant to invalidate these conveyances. Even if the rule were in all respects as contended for by complainant’s counsel, we are satisfied that, by the overwhelming weight of the evidence, it appears that the transactions, to set aside which this bill was filed, were brought about and conducted by the deceased in the exercise of his own independent will and judgment; that his mind dominated and controlled the transactions; and. that the same were executed deliberately and purposely, intending thereby to bestow his property upon his wife, to the exclusion of his child and other relatives. Whether this was wise or unwise is not a question 'before us.

As was said by this court in Latham v. Udell, 38 Mich. 238, 241:

“We do not know of any rule of law or morals which makes it unlawful or improper for á wife to use her wifely influence for her own benefit or for that of others, unless she acts, fraudulently, or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent. A faithful wife ought to have very great influence over her husband, and it is one of the necessary results of proper marriage relations. * *, * There is no legal presumption against the validity of any provision which a husband may make in his wife’s favor. * * * There can be no fatally undue influence without a person incapable of protecting himself, as well as a wrongdoer to be resisted.”

• We are satisfied from the entire record that Mr. Hutton was entirely able to and did control his own actions, and was not weak enough to be a mere instrument in any one’s hands. It is not strange or unnatural that he should have taken offense and become embittered toward complainant and her family, and that he should remember the wife, who was kind and thoughtful of his interest and happiness.

The failure of a testator to give his property to near relatives, with whom he was not on good terms, raises no presumption of undue influence. In re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 372).

“Courts are not permitted to make equitable disposition of estates, but are concerned only in giving effect to the legal acts of testators.” Price v. Eagle, 171 Mich. 455 (137 N. W. 253).

See, also, Reichert v. Reichert, 144 Mich. 295 (107 N. W. 1057); Terry v. Terry, 170 Mich. 330 (136 N. W. 448); Keller v. McConville, 175 Mich. 479 (141 N. W. 652).

In our opinion the learned trial court reached the correct conclusion in the case, and the decree of the circuit court is affirmed, with costs to the defendant Elizabeth Hutton.

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

The late Justice McAlvay took no part in this decision.


author: Bird, J.

text:
    EDWARDS v. THOMAN.
    1. Brokers — Commissions—Contracts.
    In. a suit against the vendee for commissions on the sale of a land contract, evidence that the vendor told the defendant that there was $25 due the plaintiff, and he expected defendant to pay it, was insufficient to enable plaintiff to recover.
    2. Contracts — Commissions—Parties—Consideration.
    A promise made by one person to another for the benefit of a third person, a stranger to the consideration, will not support an action by the latter.
    3. Brokers — Commissions-—Evidence—Directed Verdict.
    Where plaintiff claimed that the vendor left money with the defendant to pay the commission, but there was no evidence to support the claim, the court should have granted defendant’s motion for a directed verdict.
    Error to Ingham; Collingwood, J.
    Submitted April 14, 1915.
    (Docket No. 75.)
    Decided July 23, 1915.
    Assumpsit by Daniel Edwards against Frederick Thoman for commissions on the sale of a land contract. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      Frank L. Dodge, for appellant.

      Gardner & Hood, for appellee.
   Bird, J.

Plaintiff Edwards sued defendant in justice’s court to recover a commission of $25 on the sale of a land contract which he negotiated for one Veenstra. Judgment passed in both the justice’s and circuit courts for the plaintiff, and the case is here at the instance of defendant, who claims that he was entitled to a directed verdict because there was no evidence that the defendant ever promised or became liable to pay the commission.

The evidence disclosed that Veenstra, who resided in Grand Rapids, had the title to certain realty in the city of Lansing, upon which he'h'ad given a contract of sale, and that he was desirous of disposing of his interest in the property. The defendant, learning of it, suggested to Edwards, who was a„real estate broker in Lansing, that if he would write 'to Veenstra and advise him that he would purchase the contract if a discount of 10 per cent.- was allowed thereon he would pay him, for his trouble in writing the letter, the sum of $10. Plaintiff did this, and Veenstra at once came over to Lansing and closed the deal directly with defendant, in the absence of plaintiff. Veenstra informed defendant, when the deal was being closed, that plaintiff, Edwards, claimed $25 commission, and he should expect him, the defendant, to pay it.

We are unable to find in the record any testimony of a promise on the part of defendant to pay the commission to either Veenstra or Edwards. Veenstra recognized that he owed Edwards $25 as commission on the deal, and he said to defendant that he expected him to pay it, but it does not appear that defendant consented to pay it, and Veenstra does not testify that he did so consent, and we do not understand that it is claimed that defendant promised Edwards anything concerning it.

But if we assume, as counsel argues, that the testimony shows that defendant promised Veenstra that he would pay Edwards the commission, the case is made no better for the plaintiff. This state of facts brings the case squarely within the rule that a promise made by one person to another for the benefit of a third person, a stranger to the consideration, will not support an action by the latter. Pipp v. Reynolds, 20 Mich. 88; Hidden v. Chappel, 48 Mich. 527 (12 N. W. 687); Edwards v. Clement, 81 Mich. 513 (45 N. W. 1107); Hunt v. Strew, 39 Mich. 368; Wheeler v. Stewart, 94 Mich. 445 (54 N. W. 172); Linneman v. Estate of Moross, 98 Mich. 178 (57 N. W. 103, 39 Am. St. Rep. 528); Randall v. Railways, 134 Mich. 493 (96 N. W. 567). If defendant promised Veenstra that he would pay Edwards the commission, the promise must be enforced by Veenstra, and not by Edwards. It is therefore obvious that if we accept plaintiffs theory of the evidence, no recovery can be had by him against the defendant.

Another claim of plaintiff is that Veenstra, in closing the deal with defendant, left $25 with him to pay to Edwards. If it is true that defendant has money in his hands belonging to Edwards, he would be under an implied obligation to pay it over to him, and if he refused, it could be recovered in an action of assumpsit, but the difficulty with this theory is that there is no testimony to support it. The several items which go to make up the amount paid by the defendant to Veenstra correspond exactly with the consideration, and the item of $25 does not appear among the items to be paid. We are of the opinion that the plaintiff failed to make a case against the defendant, and that his motion for a directed verdict should have been granted.

The judgment will be reversed, and no new trial ordered.

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

The late Justice McAlvay took no part in this decision.


author: Ostrander, J.

text:
    CITY OF MONROE v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    Street Railways — Mandamus—Regulation—Municipal Corporations.
    Mandamus will lie to compel respondent railway company to comply with the provisions of its franchise, and the fact that it is subject to the authority of the Interstate Commerce Commission and the Michigan Railroad Commission will not relieve it from performing its obligations, in the absence of the exercise of any authority by said commissions.
    Certiorari to Monroe; Gilday, J.
    Submitted April 6, 1915.
    (Calendar No. 26,207.)
    Decided July 23, 1915.
    Mandamus by the city of Monroe against the Detroit, Monroe & Toledo Short Line Railway to compel respondent to comply with the provisions of its franchise in running its cars through said city. From an order granting the writ respondent brings certiorari.
    Affirmed.

      A. B. Bragdon and Clifton Kolb (Willis Baldwin, of counsel), for relator.

      Thornton Dixon (Donnelly, Lyster, Brennan & Munro and Bernard F. Weadoek, of counsel), for respondent.
   Ostrander, J.

The relator seeks the writ of mandamus to compel respondent to operate cars during certain hours, pursuant, it is claimed, to the terms of a franchise granted by relator to respondent and contract relations thereby established. After a hearing the circuit court ordered the writ to issue, and the respondent reviews the action by certiorari.

The order will be affirmed unless, as respondent contends, the relations established by the granting and accepting of the franchise have been so changed that the -franchise has no longer any force in the premises. Respondent states its contention as follows:

(a) The respondent is an interstate carrier engaged in the transportation of passengers from a point in the State of Michigan to a point in the State of Ohio, and therefore the attempt on the part of the city of Monroe to compel the operation of the cars from the city of Toledo, Ohio, to the city of Detroit, Mich., or vice versa, is an interference with interstate commerce; that the power to regulate such interstate operations is reposed in the Interstate Commerce Commission by ‘An act to regulate commerce,’ approved February 4, 1887, 24 Stat. 379, c. 104 (Act June 29, 1906, 34 Stat. 584, c. 3591, 3 Federal Stat. Annotated 809), as amended, which act confers upon the Interstate Commerce Commission full and complete jurisdiction of all matters relative to the adequacy or inadequacy of interstate service rendered by this respondent.
“(b) That while the ordinance of September 22, 1902, may be fairly said, and it has been construed by this court, to be a contract between the city and the respondent, it is, nevertheless a contract subject to abrogation by operation of law. The contract of 1902 was entered into subsequent to the enactment of the Interstate Act, and therefore must be construed in the light thereof. The act reposes in the Interstate Commerce Commission all powers of regulation of inter-state business.
“(c) That the contract of September 22, 1902, was made by the parties thereto by virtue of authority reposed in each of the parties by the laws of the State of Michigan. Such authority was conferred to the city of Monroe and to the respondent railway by the general railroad law of the State, which provided that the railway should obtain the consent, under such terms and conditions as the city might elect for operation on Monroe street in the city of Monroe. The municipality’s power was a continuing power only so long as the State and State policy made it so. The charter of the respondent was a continuing charter only so long as the State or State policy made it a continuing charter. The State in its wisdom and in pursuance of State policy created in the year 1909, by Public.Act 300 of that year, a commission known as the Michigan Railroad Commission, and the State reposed in such commission broad powers relative to the regulation of carriers, subject to the jurisdiction of such commission. Section 6526 of Howell (2d Ed.) defines the carrier subject to the jurisdiction of the commission, and embraced in such definition is the business of this respondent. By section 6527 of Howell every carrier is required to furnish reasonable and adequate service. The carrier failing to comply with such statutory demand may be compelled by the Railroad Commission, under section 6549 of Howell (2d Ed.), to operate a reasonable service, and significant is the language of said section, which provides that any body politic or municipal organization which may deem service rendered it unreasonable or unjustly discriminatory may make complaint before the Railroad Commission.
“Public Act 300 of the year 1909 is a revocation of any power that the city of Monroe may have had previous to that date to regulate the business of this respondent in regard to service.”

Something concerning the relations of relator and respondent will be found in the opinion of this court in Attorney General, ex rel. City of Monroe, v. Railway, 151 Mich. 473 (115 N. W. 422). It appears, also, from the petition of relator, that the original franchise or franchises under which the streets of relator were invaded by a railway company were granted in 1899 and in 1900, and related to the operation of a street railway within the city, and that the franchises were used by the grantee, the Detroit, Monroe & Toledo Short Line Railway, in constructing a line of railway from the city of Toledo, Ohio, to the city of Detroit, Mich., through the city of Monroe. The road having been constructed and being in operation, there was, in September, 1902, a regranting of the original franchise, by the terms of which:

“The cars or trains operated for the carrying of passengers shall be run as often as 'the common council shall direct, and as much oftener as the grantee, its successors or assigns may-see fit; provided that said council may not require them to be. run oftener than once in every hour in each direction between six o’clock in the forenoon and eleven o’clock in the afternoon. Between the hours of eleven p. m. and six a. m. the cars shall be run as the business interests of the people and the reasonable convenience of the public demand.”

From some time in 1901 until in the winter of 1912-13 cars were run every hour from about 6 o’clock a. m. until 10 o’clock p. m., but in December, 1912, there was a refusal, or neglect, to run passenger cars between Detroit and Toledo which would pass through Monroe between the hours of 9 o’clock p. m. and 10 o’clock- p. m. To this the city, by its council, made objection. In December, 1913, the respondent notified the city that thereafter it would not run a car either way between said hours. The city, by its council, passed a resolution requiring respondent to run a car each way between said intervals each day, in accordance with its franchise. The respondent restored the service, and continued it for. a time, and again discontinued it. As cars were run when the petition was filed, between Detroit and Toledo, through Monroe, there is no local car going through Monroe to Toledo from 7:37 p. m. to 10:27 p. m., and none going north from Toledo, through Monroe, from 7:15 p. m. to 10:10 p. m., and none going, south from 8:39 p. m. to 10:10 p. m.; the 8:39 p. m. car being a limited car making no stops for passengers from Detroit to Toledo, except at Monroe. There is a like limited car northbound at 8:20 p. m.. The prayer of the petition is that respondent be commanded— /

“to forthwith run one passenger car each way between Detroit and Toledo, which cars shall pass through the city of Monroe not later than one hour after the last car prior going the same direction shall have passed through, said city, and that said cars shall be what-is called ‘local cars,’ stopping on signal at all crossroads, as were the cars taken off, and that such other order may be made in the premises as justice may require.”

As was stated, in the opinion above referred to—

“by the terms of the ordinance the parties have agreed that a local passenger business in the nature of a street railway business may be done, and that the rate of fare shall be not to exceed five cents for a ride of any distance on the routes named within the city limits; that both parties to the agreements contained in the grants, understood and expressly stated their understanding to be that the railways within the limits of the city of Monroe were to be an integral portion or part of the line of railway extending northerly to the city of Detroit; southerly to the city of Toledo, and by express agreement agreed to and fixed the rate of fare chargeable for passengers taking passage in the city of Monroe' to both of the above points. The parties have acted upon these agreements.”

The rule that contracts such as the one here involved are made subject to the necessities of police regulations is recognized by this court. But no exercise of the police power, affecting the contract, is pleaded. It does not follow that because the contract may yield to the exigency of public necessity, when such exigency has been determined in a proper case and manner, by competent authority, that the respondent, a party to the contract, may ignore the contract obligation, plead the public or its own convenience as an excuse, and remit the relator to a commission for relief. On the contrary, it seems wholly reasonable that it should perform its contract obligations until relieved therefrom by competent authority.

The judgment is affirmed, with costs to relator.

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

The late Justice McAlvay took no part in this decision.


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    WEISS v. STEIN.
    1. Contracts — Consideration—Agreement Not to Re-engage in Business — Injunction.
    The consideration paid for a stock of shoes is sufficient to support both the sale and an agreement not to re-engage in the business of selling shoes, if the agreement was made at the time of the sale.
    2. Same — Presumptions—Evidence—Burden of Proof.
    Where defendant claimed that the agreement was made subsequent to the sale, the burden of proof is upon him to overcome the presumption that the entire contract was made on the date which it bore.
    Appeal from Emmet; Shepherd, J.
    Submitted April 7, 1915.
    (Docket No. 16.)
    Decided July 23, 1915.
    Bill by Max Weiss against Joseph F. Stein for an injunction restraining defendant from re-engaging in the shoe business in violation of contract. From a decree for complainant, defendant appeals.
    Affirmed.

      Deuel & Reynolds, for complainant.

      Halstead & Halstead, for defendant.
   Bird, J.

On the strength of the following agreement, complainant filed his bill of complaint to enjoin the defendant from carrying on the business of selling shoes in the village of Harbor Springs in violation of the agreement:

“Harbor Springs, Mich., 1-24-1905.
“It is agreed between Max Weiss and J. F. Stein to sell the shoes and rubbers to Max Weiss at 75c on the dollar and the same to be taken out inside of this week. Terms $100.00 a month every 1st of the month.
“Max Weiss.
“J. F. Stein.
“Í agree not to keep shoes or rubbers of any kind at my store. “J. F. Stein.”

The defendant admits that he sold his stock of shoes to complainant, that he received payment therefor, and that he signed the foregoing agreement, but insists that there was no consideration for his agreement not to re-engage in the shoe business in Harbor Springs, as that part of the agreement was indorsed on the contract a week or ten days after the sale was made and the goods delivered. The complainant claims that the foregoing agreement and all of it was made and signed on the evening of the 24th day of January, 1905; that an inventory was taken and the goods were turned over on the 26th day of January. The chancellor held that there was a presumption that the entire paper was executed on the date which it bore, and that the burden of the evidence to show otherwise was on the defendant, and that he had failed to discharge that burden, and accordingly found that complainant was entitled to relief which was granted.

The only question discussed by appellants in their brief is that complainant failed to establish, by a preponderance of the evidence, that defendant ever agreed for a valuable consideration to quit the business of selling shoes. The burden of establishing such an agreement as complainant claims was upon him. If the agreement not to re-engage in the business was made at the time of the sale, the consideration paid for the shoes was a sufficient consideration to support both the purchase and the agreement. Hubbard v. Miller, 27 Mich. 15 (15 Am. Rep. 153); Weickgenant v. Eccles, 173 Mich. 695 (140 N. W. 513).

Both complainant and his wife testified positively that the agreement to not re-enter the business of selling shoes was a part of the original agreement, and was inserted in the agreement at the timé it was made. The defendant and his wife were just as positive that the provision was inserted in the contract a week or ten days after the sale was made and the goods delivered. There is some testimony which tends to show that defendant’s wife was not present when the contract was made on the 24th, but was present on the 26th when the bill of sale was executed. But passing over this and giving to each of the parties equal credit, the defendant must fail in this proceeding, as the burden of the evidence was upon him to show that the agreement was made and indorsed on the contract at a later date.

In view of this, we think the chancellor reached the right conclusion, and the decree will be affirmed, with costs of both courts to complainant.

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

The late Justice McAlvay took no part in this decision.


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    EISTEDT v. EISTEDT.
    1. Divorce — Extreme Cruelty — Demurrer—Pleading.
    Where complainant’s bill for divorce alleged that defendant left her home without excuse, leaving complainant and their two young children, and was gone for several days at a time, on some of these occasions consorting with other men, in two instances giving th'e dates and the places where she went, defendant’s demurrer on the ground that there were no specific acts of cruelty with time, place, and circumstance alleged in connection therewith, cannot he sustained.
    2. Same — Condonation.
    Where a spouse repeats an offense after condonation, the original offense is revived.

      3. Same — Evidence—Admissions—Statutes.
    Evidence of admissions of defendant to complainant that she had, while away, been to rooming houses with other men is not competent to establish that fact but must be sustained by some other testimony. 3 Comp. Laws, § 10213.
    4. Same — Evidence.
    While the evidence shows that complainant was fond of his wife and made reasonable effort to get along with her, and that she was not without fault, yet the testimony was too meagre to justify the- granting of a decree.
    Appeal from Ottawa; Cross, J.
    Submitted April 8, 1915.
    (Docket No. 30.)
    Decided July 23, 1915.
    Bill by William Eistedt against Maude Eistedt for divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      Lillie & Lillie, for complainant.

      Turner & Turner, for defendant.
   Bird, J.

Complainant instituted this proceeding to obtain a divorce from his wife, on the ground of extreme cruelty. The gist of the cruelty charge was that she would leave her home without excuse, and go to Grand Haven and Muskegon, and remain away from complainant and their two young children for several days at a time, and that on some of those occasions she consorted with other men, visiting rooming houses with them; that she was cross and quarrelsome and manifested no affection for the complainant. The defendant answered, denying the charges of cruelty, and included in her answer a demurrer. At the hearing complainant made his case upon the merits, but defendant elected to stand on her demurrer, which contained the following grounds:

(1) That there are no acts — no specific acts "of cruelty alleged therein with time, place, and circumstances alleged in connection therewith.
(2) That the complainant’s bill of complaint shows upon its face that in the spring and summer of the year 1913 there was a reconciliation and mutual forgiveness and condonation of any prior acts between the parties hereto, and that, in furtherance of such reconciliation and condonation, the parties lived together for over one year thereafter.
(3) That all of the alleged facts set up in complainant’s bill of complaint does not constitute, under the laws of the State, grounds for a decree of divorce.
(4) That there are no grounds stated in said bill and sworn to by the complainant that would warrant the issuing of the injunction heretofore issued in this cause.
(5) That said complainant’s bill of complaint does not, for reasons hereinbefore enumerated, make out a case for equitable cognizance.

This ground of demurrer cannot be sustained. It is alleged that defendant left her home without excuse, and this complainant and their children of tender age, and was gone for several days at a time, and on some of those occasions she consorted with other men, visiting rooming houses with them. If this charge were sustained by the proofs, the ground of extreme cruelty would be established. In two of these instances of going away, the dates are fixed, and the places where she went were alleged. This would admit proof of other instances, even though the dates were not fixed.

It is true that the bill shows upon its face that, after she went away on the second occasion, a reconciliation and condonation of the offenses complained of took place, and, had she kept faith with the complainant, the condonation would still be a good defense; but the bill also shows upon its face that she committed the same offense again. Under such circumstances, the original offenses were revived and may be used as a ground for divorce. Tackaberry v. Tackaberry, 101 Mich. 102 (59 N. W. 400); Creech v. Creech, 126 Mich. 267 (85 N. W. 726); Ferguson v. Ferguson, 145 Mich. 290 (108 N. W. 682). All of these cases hold that, where the offense is repeated after the condonation, the original offenses are revived. We think this ground of demurrer must likewise be overruled. It is sufficient to say of the remaining ones that they are not well taken.

Even though the demurrer is overruled, the question still remains as to whether complainant has made such a case by his proofs as entitles him to relief. The charge of consorting with other men was sought to be sustained by admissions of defendant to the complainant shortly after she returned from one of her trips. It is claimed by the complainant that defendant admitted to him that she had, while away, been to rooming houses with other men, and remained for the night. We think this phase of the case must be sustained by some other testimony, if at all, as the claimed admissions are not competent to establish that fact. 3 Comp. Laws, § 10213; People v. Bowen, 165 Mich. 231 (130 N. W. 706), and cases cited. 3 Comp. Laws, § 8652, relaxes this rule so as to permit husband and wife to testify in divorce proceedings, except in cases where adultery is charged.. Aside from the admissions of the defendant, there was only one other item of testimony which tended to establish the fact of her consorting with other men. This testimony was given by the brother of complainant, and was to the effect that he saw her drinking beer with a traveling salesman at a hotel in Muskegon, where she was working during one of the interims that she was away from home. The defendant was called as a witness by the complainant, and she denied consorting with or any misconduct with other men, and she explains that the occasion for her being away at the several times mentioned was a visit with her relatives in Muskegon and Grand Haven.

An examination of the record convinces us that the compláinant was fond of his wife, and made reasonable. effort to get along with her. We are also of the opinion that, if the defendant ever had any affection for the complainant, she had lost it. It is also manifest from the undisputed testimony, and from her own admissions, that she failed to exhibit the motherly care and concern for her young children that is common to most mothers, and it is quite likely that it would be for the best interests of the parties, as well as for the public,, if they were legally separated, but we think the testimony in this record is too meager to justify the granting óf a decree of divorce.

The decree will be affirmed, with costs to the defendant.

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

Moore, J., concurred in the result.

The late Justice McAlvay took ho part in this decision.