text:
    HANLEY v. UNITED STATES FIDELITY & GUARANTY CO.
    Surety Bonds — Consideration—Return.
    A contractor with a village, being required to give a bond, procured a surety company to give a preliminary bond. The village thereupon paid him the full amount called for by the contract. A statement that this payment had been made was contained in the application to the company for a formal bond. The company issued a bond containing a stipulation that the village should give notice to it before making the last payment under the contract. The village refused to accept the bond with such stipulation, and so notified the company, which requested its return, gave notice that it did not desire to assume the suretyship in question, and thereafter insisted that the bond was invalid. The bond was retained by the village, and the contractor was allowed to complete the contract without giving any other bond. Held, that tho contractor was not entitled to a return from the surety company of the premium paid for the bond, after completing the contract, and its acceptance by the village; the bond then having performed its full office, so far as he was concerned.

      Error to Wayne; Hosmer, J.
    Submitted October 16, 1902.
    (Docket No. 76.)
    Decided November 11, 1902.

      Assumpsit by James Hanley against the United States Fidelity & Guaranty Company to recover the premium paid for a bond. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Moore & Moore (Henry B. Shaw, of counsel), for appellant.

      Harry Helfman (Fred A. Baker, of counsel), for appellee.
   Moore, J.

The plaintiff had a contract with the village of Highland Park which made it necessary for him to give a bond in the sum of $55,000. A bond was furnished by defendant. It is claimed by plaintiff that this bond was not a valid bond, that it was repudiated by defendant, and that he is entitled to recover back the premium he paid for the giving of the bond. The trial judge, in directing a verdict for plaintiff, expressed himself as follows:

“ The counsel for plaintiff in this case claims there was never any liability under the bond. Possibly that may or may not, if it were material for consideration, be a question for you; but it does not seem to me that it is proper to say that, when the liability is called in question of the company, it is competent for the company to say that the bond never had an inception, and that by the terms of the bond, on an application which was strictly honest by Mr. Hanley, a condition was inserted which vitiated it from the first, and afterwards be heard to say that the premium had been earned.

The case is brought here by writ of error.

The important facts are not very much in dispute. August 4, 1898, the plaintiff entered into a written contract with the village of Highland Park, which contained the following agreement:

“And the party of the first part, in consideration of the covenants and agreements of said party of the second part, covenants and agrees to pay unto the said party of the second part the aforesaid sum of fifty-one thousand eight hundred fifty and no /100 dollars as soon as said second party shall sign and seal this agreement, and furnish a bond satisfactory to said first party for the carrying out and completion of the terms of this contract.”

On the same day Mr. Hanley filed an application for a bond for $55,000 to be given by defendant to the village ■of Highland Park, in which was set out the contract, and containing the following statement: “Payments, $51,850.00. Paid when contract was signed, Aug. 4th, 1898. Percentage reserved from payments until completion, none.”

At the same time there was delivered what is called a “preliminary certificate,” that was given in lieu of a bond to be issued in the future, reading as follows:

“Fidelity Department,
“United States Fidelity & Guaranty Company.
“Home Office: Southwest Corner of Calvert and German Streets, Baltimore, Maryland.
“ In consideration of the sum of five dollars, the United States Fidelity & Guaranty Company hereby guarantees the fidelity of James Hanley, in the sum of fifty-five thous- and dollars, in favor of the village of Highland Park, Wayne county, Michigan, from the fourth day of August, 1898, to the fourth day Of August, 1899, subject to all the covenants and conditions set forth and expressed in the bond of this company to be issued on even date herewith, and forwarded from the home office within 15 days from date of issue. ”
(Following printed across end of certificate in red ink:)
“All liability of the company on this instrument shall ■cease and determine on the issuance by the company of the duly executed bond, or, if the bond is not issued, on the fifteenth day from the countersigning of said instrument by the general agent.”
“John R. Bland;
“V. P. and General Manager.
“ City. State. Corporate Seal.
“Alexander Payson Knapp,
“ Secretary.
“Goodrich Bros., General Agents,
“Walker Block, Detroit, Mich.
“August 4, 1898. Countersigned: -,
“General Agent.”

Upon the same date the full amount of the contract price was paid over to Mr. Hanley by the village authorities. The application of Mr. Hanley was forwarded to the home office, and a bond was forwarded containing,, among others, the following condition:

“And provided, lastly, that the assured or the superintendent of the work must give said surety due notice before the last payment under the contract herein referred to is made to the principal; otherwise this obligation shall be void as to any liability of the surety hereunder. ”

When this bond came to the village authorities, it was-not formally accepted, and a question was raised, inasmuch as Mr. Hanley had already received his pay in full, of whether the condition quoted ought not to be stricken from the bond. The village president, acting for the village, took the bond to counsel, who, after examining the bond, suggested that the president write to the defendant a letter containing the following, among other things, which was done August 16, 1898:

Gentlemen: Your company, as surety for James Hanley, has executed a bond to the village of Highland Park, Wayne county, Michigan. The penal sum of the-bond is $55,000.00. One provision of said bond reads as. follows: ‘Provided, lastly, that the assured or superintendent of the work must give the said surety due notice-before the last payment under the contract herein referred to is made to the principal; otherwise this obligation shall be void as to any liability of the surety hereunder.’ We understand that you have been furnished with a copy of the contract entered into between Mr. Hanley and the village. And we are further informed that you have been already notified of the fact that the whole amount of the contract price for doing the work has been paid to Mr. Hanley, and that you executed the bond after having received that notice. This being true, the clause above quoted should not be incorporated in the bond. The fact is, as above stated, that Mr. Hanley has already been paid his entire contract. Before passing upon this bond, we wish to be notified whether we are correct in our information, and whether you admit that you received notice of the fact that Mr. Hanley has been paid as above mentioned. Please give this matter your immediate attention.
“Yours very truly,
“W. W. McAlpine,
“President.”

A reply was sent as follows:

“August 18, 1898.
“W. W. McAlpine, Esq.,
“ President Highland Park,
“Wayne County, Michigan.
Dear Sir: In re bond of James Hanley, we beg to advise you, in reply to your favor of the 16th instant, that the United States Fidelity & Guaranty Company, when it executed the above bond to the village of Highland Park, Wayne county, Michigan, had not received formal notice that the contract price for doing the work contracted for by him had been paid; hence you are informed that, in view of the premises, this company cannot go any further into the matter, or in any way alter its bond, unless the contractor can comply with the conditions with which it may be the wish of this company to have him comply. What these conditions are cannot at this moment be determined, for a more thorough investigation of the nature of the contract and the standing and responsibility of the contractor will necessarily have to be made. We beg to state, therefore, that, in the light in which the matter stands now, this company will be compelled to insist upon a strict performance of the terms and conditions of the bond executed by it. As a consequence of the information contained in your said favor, the surety company hereby takes occasion to notify you formally that it does not desire to assume the suretyship in question, and therefore we request the return of its bond pending further investigation.”

The bond was not returned as requested. The village president says it was given to the village attorney, to be returned to the company. It is the claim of the company that the village authorities refused to return it until a new bpnd was given.

After the correspondence above quoted, of which correspondence the agent and Mr. Hanley were probably ignorant, Mr. Hanley paid the premium by giving to the agent his check, which included the consideration of the preliminary bond. The agent obtained the bond from the village attorney, and canceled the government stamps.

It is claimed by plaintiff that a special agent interviewed him and his attorney, and insisted that the bond was invalid. It is the claim of defendant that it sought to get a return of the bond and to return the premium, but the plaintiff refused to receive the latter, and insisted that the bond was valid. No other bond was in fact ever given by Mr. Hanley to the village authorities. He proceeded with his work, and had it nearly completed, when trouble arose between the city authorities of Detroit and the village and Mr. Hanley about connecting the village sewer with the Woodward-avenue sewer. On the 7th of June, 1899, the village engineer called the attention of defendant to the situation, and notified it that “the village of Highland Park will hold you liable on the bond for such failure on the part of the contractor.” It is claimed the village engineer had no authority to give this notice.

On the 14th of July a village taxpayer filed a bill in chancery against the village, the trustees of the village, Mr. Hanley, and the defendant in this cause, setting forth Mr. Hanley’s contract; the giving of the bond; the trouble between Mr. Hanley, [he village of Highland Park, and the city of Detroit about the sewer connection, — and claiming that Mr. Hanley had not performed his contract, and that the village authorities were about to accept the contract as completed, and release the defendant on its bond, and praying that they might be enjoined from doing so.

The defendant in this case interposed an unsworn answer in that case, signed by the solicitors only, in which it was stated:

“But this defendant denies that any bond having any validity or force was ever executed or delivered to said village; and this defendant denies that it is now liable or ever was liable, either directly or contingently, to said village on any bond or contract whatever.”

The solicitor who drew and filed this answer testified:

“At the time I drew that answer, I understood the facts to be that all the money had been paid upon the Hanley contract without the knowledge of the United States Fidelity & Guaranty Company, and I regarded that as a violation of the last provision' in the bond, because I regarded that as a misrepresentation of the facts upon which the bond was issued; that is, that it would be a fraud upon the company to secure a bond which provided that the company should have notice of the last payment, and before the bond was issued to have paid up in full, so that the company could not have notice of the last payment referred to in the bond. Had I known the facts at that- time, I would not have filed that answer.”

The litigation in the chancery case does not seem to have been pursued any further. Mr. Hanley completed his contract, and it was accepted without his giving any other bond. About a year later he made a claim for the return of the premium. It was not paid, and, without procuring a return of the bond, some time later this suit was brought.

A great many interesting legal questions are raised by counsel in their briefs, but we think the facts are controlling. The record discloses very clearly: First, that the preliminary bond was regarded as sufficiently satisfactory, and so far a compliance with the terms of the contract that the village authorities were willing to, and did, pay over to the plaintiff the full amount which was to be earned by a performance of the contract, $51,850; second, the agent of the company knew of this payment when the application was drawn upon which the formal bond was issued, and a statement of the fact was made in the application, so that the defendant company must be presumed to have known that all the payments had been made when it executed and forwarded the formal bond; third, when the company requested a return of the bond, its request was not granted, but the bond was retained, and Mr. Hanley was allowed to go on and complete his contract without requiring any other bond; fourth, it was not until considerable time had elapsed after Mr. Hanley had completed his contract, and it had been accepted, and the occasion for giving a bond had passed by, that he made any claim that he was entitled to a return of the consideration he had paid for a bond, which, so far as he was concerned, had performed its full office. Under these circumstances, instead of directing a verdict for the plaintiff, one should have been directed in favor of defendant.

The judgment is reversed, and a new trial granted.

Hooker, O. J., Grant and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    GILLETT v. BURNS.
    Appeal — New Trial — Review.
    The action of a circuit judge in denying a motion for a new trial will not be reviewed on error, where the record does not . show that he gave, or was asked to give, his reasons for such action, or that any exception was taken thereto.
    Error to Oakland; Smith, J.
    Submitted October 17, 1902.
    (Docket No. 81.)
    Decided November 11, 1902.

      Assumpsit by Florence M. Gillett against Abel A. Burns on a promissory note. There was a judgment for plaintiff, and, a new trial having been refused, defendant brings error.
    Affirmed.

      Franklin L. Lord, for appellant.

      Perry & Stockwell, for appellee.
   Moore, J.

This case was commenced in justice’s court, where judgment was rendered in favor of the plaintiff. It was then appealed to the circuit court. The attorney for the defendant during the session of the circuit court had a case in the federal court in Cincinnati. He did not make a formal application for a continuance of the case, though he had some correspondence by letter and telegram with the circuit judge and the clerk of the court. The attorneys for the plaintiff would not consent to a continuance. When it was reached in its order upon the calendar, it was tried by a jury, who rendered a verdict in favor of plaintiff for $23.27. Afterwards a motion was made for a new trial, which motion was overruled. The case is brought here by writ of error to review the action of the circuit judge in refusing to grant a new trial.

The record does not disclose that the circuit judge was requested to give his reasons for refusing a new trial, nor does it show that he gave them, nor does it show that any exceptions were taken. Under such circumstances, we have repeatedly held that we cannot review the action of the circuit judge in refusing to grant a new trial. McRae v. Lumber Co., 102 Mich. 488 (60 N. W. 967); Finley v. Widner, 116 Mich. 679 (75 N. W. 132); In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570); Brennan v. O'Brien, 121 Mich. 491 (80 N. W. 249); Tobin v. Modern Woodmen of America, 126 Mich. 161 (85 N. W. 472).

The judgment is affirmed.

Hooker, O. J., Grant and Montgomery, JJ., concurred.


text:
    BUTLER v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    1. Trial — -Evidence—Instructions—Curing Error.
    Error in the admission of testimony, if any, was cured by the court’s instructing the jury to disregard it.
    2. Personal Injuries — Damages—Instructions.
    There being no evidence that plaintiff’s injuries were permanent, it was error to refuse to instruct the jury accordingly.

      3. Trial — Inadvertent Error.
    Failure to give a requested instruction is none the less prejudicial because inadvertent.
    Error to Wayne; Donovan, J.
    Submitted October 17, 1902.
    (Docket No. 29.)
    Decided November 11, 1902.
    Case by Charles Butler against the Detroit, Ypsilanti & Ann Arbor Railway for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. T. Leete, Jr. (Paul B. Moody, of counsel), for appellant.

      Edward M. Vining (J. Emmet Bullivdn, of counsel),, for appellee.
   Moore, J.

September 16,1900, plaintiff was riding on the rear platform of one of defendant’s cars. Upon the platform was one Miller. It is the claim of the plaintiff that Miller and the conductor got into an altercation, when the conductor called the motorman to his aid, and that not only Miller, but the plaintiff, was thrown off the car, and plaintiff received injuries for which this action was brought. It was the claim of the defendant that it was Miller, and not its employés, who pulled the plaintiff from the platform. The jury returned a verdict for $1,900. Amotion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

Complaint is made of the admission of certain testimony. If the testimony was inadmissible, the error was cured by the court’s instructing the jurors they were to disregard the testimony objected to.

The judge was requested by defendant to charge.

“ There is no evidence in this case that the injuries claimed to have been received by the plaintiff are permanent.” He did not do so, and failed to call the attention of the jury to that subject at all. In disposing of the motion for a new trial, the judge said:

“There is an inadvertence, possibly, in not precisely charging that there was no evidence of permanent injury. The permanent injury, if any, in this case, was left rather doubtful, — too doubtful, alone, on which to found a verdict. I had supposed that this point was clearly covered, and that the defendant road certainly had every element in the charge in their favor, to cover and include their theory perfectly and beyond question.”

The fact that the omission was due to an inadvertence does not remedy the harm done. Under the facts disclosed by the record, the defendant was entitled to this request, especially if counsel made the argument to the jury upon that subject which it-is alleged he made.

Objection is made to part of the charge bearing upon the question of how the jurors should arrive at their verdict. The language used was not very definite, and is open to the charge of being ambiguous; but, as for other reasons the case is to be reversed, we will not decide whether the language used was reversible error, as it.will not be repeated.

The other assignments of error have been considered. They are either not well taken, or the action of which complaint is made is not likely to occur again.

The judgment is reversed, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Moore, J. Grant, J.

text:
    PLANT v. HERATY.
    Street Railways — Injury to Traveler — Contributory Negligence — Question eor Jury.
    Where plaintiff, while driving across defendants’ street railway, was struck and injured by an east-bound car, which he had seen standing 100 feet west of the street intersection when he was at the sidewalk line, and which afterwards approached the crossing without ringing a bell as required by a city ordinance, the question of his contributory negligence was for the jury; it appearing that his hearing was not impaired, and that his attention was wholly taken up by a car coming from the east on a parallel track, which fact could have been seen by the motorman of the east-bound car. Grant, J., dissenting.
    Error to Bay; Shepard, J.
    Submitted October 7, 1902.
    (Docket No. 2.)
    Decided November 18, 1902.
    Case by Daniel Plant against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Street-Railway Company, for personal injuries. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      De Vere Hall, for appellant.

      T. A. E. & J. Cf. Weadock, for appellees.
   Moore, J.

The plaintiff, a farmer, while driving north on Saginaw street, crossing Center street, in Bay City, was struck by a street-railway car. This suit was brought to recover damages for the injuries he received. After the witnesses for plaintiff had been sworn, and before any proof had been offered by defendants, the circuit judge directed a verdict in favor of defendants. The case is brought here by writ of error. ■

The city ordinance, under which the street cars were allowed to run, required the cars to be equipped with a suitable alarm bell, which was to be rung at least 50 feet from each street crossing as the car approached the crossing. Center street runs east and west. Saginaw street runs north and south. It is the claim of plaintiff that he was driving a gentle horse attached to an open, light wagon, in which he was sitting upon an inverted bushel basket; that he stopped near where the south sidewalk on Center street crosses Saginaw street, to enable a person who was riding with him to alight; that, before starting his horse north, he looked and saw one of defendants’ cars about 100 feet west of Saginaw street, standing still; that at the same time he saw a suburban car to the east, which was coming west, ringing its bell; that, believing he had ample time to cross Center street, he started his horse for the purpose of doing so; that for a moment he doubted whether he had time to pass ahead of the suburban car, and slackened the pace of his horse, but concluded he had ample time to do so, and urged it forward; that his attention was wholly occupied by the suburban car after he started to cross the street, and that, if the motorman had been observant, he would have noticed the fact. The plaintiff crossed the track upon which the suburban car was running safely. In the meantime the car which was standing west of Saginaw street started east, and it is the claim of plaintiff the motorman gave no warning of the approach of the car, and that plaintiff had no reason to suppose he was in danger from it until his wagon was struck by it, and he was thrown as high as the car, and suffered very severe injuries.

If the motorman ran his car east under the circumstances, and without any warning being given by him, as indicated by the testimony of the witnesses for plaintiff, he was negligent, and the plaintiff should be allowed to recover unless he is precluded from doing so by his own act. The case is not free from doubt. It is near the border line. We think, however, the testimony was for the jury, and that it cannot be said, as a matter of law, that plaintiff was guilty of such negligence as to preclude him from recovering. His attention was occupied more or less by the approaching suburban car, which was giving warning of its approach by the ringing of its bell. Before he started across the street he saw that the car to the west was standing still. It was the duty of the person in charge of it to signal its approach to the crossing by the ringing of the bell. The testimony discloses plaintiff’s hearing was not impaired. The motorman could see the plaintiff, and could see that his attention was occupied by the suburban car. We think the case falls within the following cases: Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Edwards v. Foote, 129 Mich. 121 (88 N. W. 404); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and the cases cited therein.

Judgment reversed, and new trial ordered.

Hooker, C. J., and Montgomery, J., concurred with Moore, J.

Grant, J.

(dissenting). I think the learned circuit judge properly directed a verdict, and for the reasons stated in his instructions. Plaintiff knew that there were two tracks; that cars were liable to run each way at any moment; that stops were brief, for the purpose of letting passengers on and off; and that, if the car was at the time standing still, it was liable to start any moment. He kept his attention fixed on the moving car coming from the east. He had stopped about 40 feet from the track, near the sidewalk, to let his companion get out. He then started to cross, but, seeing the car approaching from the east, he “pulled up, and pretty near stopped again;” then, thinking he had plenty of time to avoid this car, he drove on. He admitted that a glance to the left would have shown him the other car approaching, and that, if he had so glanced, he could and would have avoided the accident. There is no claim that the car was going beyond the rate of speed fixed by the ordinance, to wit, six miles per hour. The car stopped only momentarily at the switch, about 100 feet away, when evidently plaintiff saw it. The only witness upon the car (Judge Maxwell) testified that he was not sure whether it just slowed up or stopped.

It was as much the duty of the plaintiff to look out- for himself, and watch the car, as it was the duty of the motorman to watch the plaintiff. Their obligations were mutual. If both violated such obligations, and acted negligently, neither can recover for injuries received. 'The motorman had the right to assume that the plaintiff, riding in plain sight, would and did see the car, and was under no obligation to bring his car to less than the allowed rate of speed, or to attempt to stop it, until he saw that plaintiff was taking no heed, and was about to ride into danger. If motormen were obliged to assume that everyone they saw approaching the track upon a public highway ■did not see it, and bring their car to a stop, the demands of public travel could not well be met. We so held in a case where the ordinance required street cars to stop when ■crossing the track of another road. It was there held that the motorman, who had made the stop required by the ■ordinance, and attempted to cross another road, whose ■car was approaching 150 to 200 feet away, and did not make the required stop, was not guilty of contributory negligence. We there said:

“If he must wait before he can go forward until he knows that the approaching car will stop, he will fail to meet the' demands of modern street-railway traffic.” Becker v. Railway Co., 121 Mich. 580, 586 (80 N. W. 581).

For the same reason a motorman cannot be required to check his car to less than a lawful rate of speed upon the assumption that a person, driving in his vehicle, does not see him. I think the case is expressly ruled by the following decisions of this court: McCarthy v. Railway Co., 120 Mich. 400 (79 N. W. 631); Hilts v. Foote, 125 Mich. 241 (84 N. W. 139); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Henderson v. Railway Co., 116 Mich. 368, 374 (74 N. W. 525); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Doherty v. Railway Co., 118 Mich. 209 (76 N. W. 377, 80 N. W. 36). In Hilts v. Foote we said:

“Thompson [the driver] had ample time to look both west and east in time to see the approaching car, and stop so as to avoid the accident. It was his duty to do this.”

It was equally the duty of the plaintiff in this case to do likewise. He had no right to assume either that the car would stand still until he had crossed, or that the motorman saw that he did not intend to stop, but to drive across, regardless of consequences.

The judgment should be affirmed. '


author: Grant, J.

text:
    TROTTER v. TOUSEY.

    1. Trial — Evidence—Want of Objection.
    Error will not lie on the admission of testimony to which no objection was made.
    2. Sale — Breach of Contract — Conversion—Evidence.
    Where defendant, having sold and agreed to deliver certain lumber to plaintiff, afterwards sold and delivered it to another, he could not show that he subsequently offered to deliver other lumber in its stead as a defense to plaintiff’s action for a breach of the contract.
    3. Same — Measure of Damages.
    In an action by the purchaser of certain lumber, the title to . which had passed by the sale, to recover damages of the vendor, who had sold and delivered it to another, for failure to deliver the lumber as agreed, the measure of damages is the value of the lumber at the time of the conversion.
    Error to Bay; Shepard, J.
    Submitted October 7, 1902.
    (Docket No. 1.)
    Decided November 18, 1902.

      Assumpsit by David Trotter and Marius Hanson, co-partners as Trotter & Hanson, against Morris R. Tousey, for the breach of a contract for the sale of certain lumber. From a judgment for plaintiffs, defendant brings error.
    Reversed.
    On January 31,1900, defendant, a resident of Bay City, Mich., sent by mail to plaintiffs, residents of Toledo, Ohio, .an offer to sell and deliver to them, f. o. b. cars Toledo, 500,000 feet of merchantable'hemlock lumber; at certain prices named. The further material part of the offer reads as follows:
    “The mill culls in the above-named stock at $10.00 per M. feet. The' same to be inspected by E. H. Savage & Bro., according to the Michigan association rules, each to pay one-half the inspection fees. I will begin sawing on this stock at once, and continue thereat until order is filled, and will begin to ship same during the month of June, 1900, or before. On April 15th, said Savage & Bro. shall estimate all the lumber then in pile, and you shall advance to me 50 per cent, of its value at the above prices, said lumber then to be marked up as sold to you, and insurance policies covering the amount advanced turned over to you by me. This sale is subject to a discount for cash of two per cent.”
    The offer was duly accepted. This sale was negotiated on the part of the defendant through Savage & Bro., inspectors, a part of whose business was to bring together buyers and sellers of lumber. Before any estimate was made, plaintiffs advanced to defendant $1,000. April 29, 1900, Savage & Bro. sent their estimate to plaintiffs, showing the amount of lumber piled and set apart for plaintiffs by defendant to be 477,800 feet. In the letter accompanying same they wrote:
    “In making this estimate we deducted 15 per cent, of the total amount for what culls there may be in same, so you can figure on his having out over 500 M.”
    Defendant then wrote plaintiffs requesting a remittance of one-half the purchase price, as provided in the contract. Plaintiffs complied with this request. About 100,000 feet of the lumber was situated at Turner, in Arenac county. Savage & Bro. did not see this lumber, but took defendant’s verbal statement of the amount, and included it in their estimate. All the lumber inspected by Savage & Bro. was marked, “Sold to T. & H.” Only 121,904 feet of this lumber was shipped to plaintiffs. The rest of it was sold and delivered to other parties by-the defendant, and he received the full benefit of it. Upon learning this fact, and being unable to get either the lumber they had purchased or the money they had paid thereon, plaintiffs instituted this suit to recover the money they had paid, less the price of the lumber they had received. The affidavit for capias stated fully the transaction, alleged that the sale made by defendant to other parties was fraudulent, and that by reason thereof they had lost the $2,000 paid by them on the contract, and of which they had been defrauded. The declaration followed the affidavit. The question of fraud was left to the jury, and verdict found for plaintiffs.

      T. A. JE. & J. C. Weadock, for appellant.

      Hall & Brockway, for appellees.

      Rehearing denied January 5, 1903.

   Grant, J.

(after stating the facts). 1. The first assignment of error relates to the ruling of the court in admitting testimony. No objection was made to the question, and it therefore cannot be considered in the appellate court.

2. Some time after defendant had sold the plaintiffs’ lumber, they had an interview, in which defendant testified that he informed plaintiffs that he could make arrangements to go on and complete the contract, and that he was ready to do so. His counsel then asked him what it would have cost to fill the contract at that time and deliver the lumber. The objection to its immateriality was sustained by the court. The ruling was correct. Plaintiffs had not agreed to take any other lumber than that which had been bought by them, and had been marked “Sold” to them. By this contract defendant agreed to ship this lumber to the plaintiffs. He sold it to other parties instead. Plaintiffs’ right of action was complete, and it is no defense to say that the defendant subsequently offered to deliver other lumber.

3. Defendant offered testimony to show that such lumber had depreciated in value between the dates of the contract and the institution of suit. The testimony was excluded as immaterial. The determination of this question depends upon the measure of damages applicable to the case. No fraud is alleged in the making of the contract or in its execution until this lumber had been set •apart by the defendant as the property of the plaintiffs. Both parties agree that the title had passed and was in the plaintiffs. The fraud complained of is that defendant disposed of and delivered the lumber to other parties. Plaintiffs claim the right to recover the difference between the moneys advanced and the purchase price of the lumber received. The defendant contends that, inasmuch as the title had passed, the measure of damages is the value of the lumber when so taken and appropriated by the defendant.

The declaration complains of defendant “in a plea of trespass on the case upon promises,” and at the close claims damages “arising out of such express contract for the fraud so committed by the defendant against plaintiffs.” The declaration is not in form in trover. It, however, states facts which show a conversion. Plaintiffs had two remedies open to them, viz.: To sue in trover for conversion, or to waive the tort and bring assumpsit. Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652). The facts set forth in the declaration are applicable either to an action of trover or to an action for breach of contract. Defendant had committed a breach of contract in failing to ship the lumber as agreed. If the declaration had been in trover, or an action on the case for fraud, the measure of damages in each case would have been the value of the lumber at the time of its appropriation by the defendant. If it was worth more than the contract price at the time of its conversion, that worth is the measure of damages. , If it was worth less, that worth is the measure. If it was worth the same, then the purchase price becomes the measure. If the declaration is based upon the contract, for a breach thereof, which we think it is, it is difficult to see why the measure of damages is not the same. In either form of action they have lost their property. It has been appropriated by. the defendant. Their loss is not what they paid for it, but its-worth when wrongfully disposed of by the defendant. We are of the opinion that the measure of damages is the value of the lumber at the time defendant appropriated it by sale and delivery to other parties.

Other errors are assigned, but it is unnecessary to discuss them.

Judgment reversed, and new trial ordered.

Hooker, O. J., Moore and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    TOWNSHIP OF RICHLAND v. CLIFF.
    1. Pleading — Debt—Official Bonds.
    A declaration, on a township treasurer’s bond, which complains of the defendants “in a idea that they render to the plaintiff the sum of §300, which they owe to and unlawfully detain from” him, recites the bond, assigns a breach, and concludes with an allegation of damages, is a declaration in’ debt.
    2. Same — Jurisdiction op Justice.
    An action of debt on a township treasurer’s bond, with a penalty of more than §300, cannot be brought in justice’s court.
    3. Justice’s Jurisdiction — Reversal op Judgment — New Action.
    A judgment rendered by a justice of the peace in a suit over the subject-matter of which he had no jurisdiction will be reversed without prejudice to a new action brought in the proper forum.
    Error to Ogemaw; Sharpe, J.
    Submitted October 8, 1902.
    (Docket No. 12.)
    Decided November 18, 1902.
    Debt by the township of Richland .against William H. Cliff, principal, and Barney Mills and Charles H. Prescott, sureties, on a township treasurer’s bond. From a judgment for plaintiff, defendants bring error.
    Reversed.

      F. L. Snodgrass, for appellants.

      Boss & Harris, for appellee.
   Montgomery, J.

This is an action on a township treasurer’s bond in the penal sum of $4,000. The suit was originally instituted injustice’s court. Plaintiff recovered in both the justice’s court and at the circuit. Defendants bring error. The summons does not appear in the record, but the declaration complains of the defendants “in a plea that they render to the said plaintiff the sum of three hundred dollars, which they owe to and unlawfully detain from the said plaintiff,” — the usual form of commencement of a declaration in debt. 2 Stev. Mich. Prac. p. 515. The declaration then recites the bond, assigns a breach, and concludes with an allegation of damages.

The action is clearly an action in debt. The only question presented for our consideration is whether an action of debt on a bond of this character, with a penalty of more than $300, can be brought in justice’s court. This question must be answered in the negative, on the authority of Bishop v. Freeman, 42 Mich. 533 (4 N. W. 290); Durfee v. Dean, 52 Mich. 387 (18 N. W. 118); Gray v. Stafford, 52 Mich. 497 (18 N. W. 235). There is a statute conferring jurisdiction upon justices of the peace in actions on money bonds where the sum of the amount secured is $150 or less. 1 Comp. Laws, § 709. So, also, under a statute authorizing suit in assumpsit by a third party not the payee in a bond to recover his damages (1 Comp. Laws, § 890), we have held that a justice has jurisdiction if the amount actually involved is less than $300. Montgomery v. Martin, 104 Mich. 390 (62 N. W. 578). But neither of these statutes aids the plaintiff here.

Judgment will be reversed, and judgment entered in this court for defendants for costs of both courts, including an attorney’s fee of $10 for the trial below. The judgment entry w-ill show that the case is decided solely on the ground of want of jurisdiction, and judgment will be without prejudice to a new action in the proper forum.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    BELLOWS v. CRANE LUMBER CO.
    1. Logs and Logging — Driving—Obstruction—Action for Expense — Parties—Interest in Judgment — Partnership.
    Where plaintiffs agreed to drive B.’s logs as well as their own down a river on the payment by B. of his pro rata share of the actual cost, B. was not a partner with plaintiffs, or a necessary party to a suit to recover from defendant the expense incurred in driving its logs, which obstructed the stream, although a recovery would reduce the amount to be paid by B.
    2. Same — Damages—Evidence—Custom.
    In an action under 2 Comp. Laws, § 5075, to recover the cost of driving defendant’s logs down a stream, it is competent to show, as bearing on the question of damages, that hard-wood logs put in a river early in the spring, as were defendant’s, will not float readily, and for that reason it had become customary not to put them in until the soft-wood logs had passed down the stream.
    3. Same.
    It is likewise competent, for the same purpose, to show what part of defendant’s logs plaintiffs had to drive in order to bring down their own logs.
    Error to Benzie; Chittenden, J.
    Submitted October 15, 1902.
    (Docket No. 56.)
    Decided November 18, 1902.

      Assumpsit by Elwin Bellows and Adelbert Bellows, copartners as Bellows Brothers, against the Crane Lumber Company, for expenses incurred in running defendant’s logs, constituting an obstruction to the stream. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      George Whitbeck and Thomas Smurthwaite, for appellants.
    D. G. F. Warner, for appellee.
   Moore, J.

This case has. been here before. It is reported in 126 Mich. 476 (85 N. W. 1103). A reference to that case will make a long statement of facts unnecessary here. Upon the second trial, after Mr. Bellows had been sworn as a witness, the trial judge, upon motion, directed a verdict for defendant because of the nonjoinder of Mr. Butler as a plaintiff. The case is brought here by writ of error.

The action of the circuit judge seems to have been based upon the fact that the testimony of Mr. Bellows indicated that Mr. Butler was interested in the proceeds of any judgment which may be obtained in favor of the plaintiffs in this case. The record discloses that the plaintiffs had a quantity of logs in the river; that Butler also had a quantity of logs in the stream; that an arrangement was made by which the plaintiffs were to drive Butler’s logs as well as their own, and that in compensation therefor Butler was to pay them such a share of the costs and expenses of driving all the logs as would make a pro rata share, taking into account the quantity of logs owned by each and the distance they were driven. The plaintiffs were to make no profit nor to suffer any loss as the result of driving the logs. It was their claim that the expenses of driving the logs were increased by reason of the work they had to do on defendant’s logs, and it would follow that, if they recovered from the defendant compensation for that increased expense, it would diminish the total expense of driving the logs belonging to Butler and the plaintiffs, and that the cost to Butler of having his logs driven would also be less than it would be if plaintiffs did not recover from defendant for the expenses occasioned by its logs.

Butler had nothing to do with the actual driving of the logs, and nothing to do with the result of this litigation, except as stated above. The enterprise of driving the logs was not undertaken for the purpose of earning a profit, and was to be conducted by the plaintiffs at its actual cost. We think the circuit judge was wrong in holding as a matter of law that plaintiffs and Mr. Butler were partners. See 17 Am. & Eng. Enc. Law (1st Ed.), pp. 828-830; 1 Lindl. Partn. (2d Ed.) pp. 1-5; Morrison v. Cole, 30 Mich. 102; Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465); Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 614 (65 N. W. 761); Williams v. Rogers, 110 Mich. 418 (68 N. W. 240); Fair v. Martin, 125 Mich. 612 (85 N. W. 2).

The other questions relate to the exclusion of evidence. In order to account for the large amount of work required to run the logs of defendant, it was sought to show that hard-wood logs put in the river early in the spring will not float readily, and that because of-this a custom has grown up of not putting them into the river early in the spring, but to wait until the soft-wood logs have passed down. We think this was proper testimony, and should have been admitted.

The court also excluded evidence as to what part of the logs of defendant the plaintiffs had to run and drive in order to bring their logs down. We think it was competent to show fully to the jury what the situation was, and what was done, so that the jury should have all the facts before them in deciding the question of damages, if they got to that question. See Bellows v. Crane Lumber Co., 126 Mich. 476 (85 N. W. 1103).

Judgment is reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    TOOMBS v. STOCKWELL.
    Contracts — Sale—Parol Evidence — Meaning; op “Settlement.”
    Parol evidence is admissible to show that the term “to be fully settled for within ten days,” used in an order for goods, was understood to mean that the purchaser should pay for the goods resold, and account for those unsold.
    Error to Clinton; Stone, J.
    Submitted October 16, 1902.
    (Docket No. 67.)
    Decided November 18, 1902.

      Assumpsit by Theodore Toombs against A. U. Stock-well upon a guaranty of payment for goods sold. From a judgment for defendant, plaintiff brings qrror.
    Affirmed.

      Leiois Severance, for appellant.

      Lyon & Moinet, for appellee.
   Grant, J.

A statement of the issue in this case will be found in 127 Mich. 379 (86 N. W. 806). Upon the second trial the defendant was permitted to show by parol testimony that the parties did not understand the term, “to be fully settled for within ten days,” to mean payment, but that the agent of the Ideal Flatiron Company informed Mrs. Servis and Mr. Stockwell that she would pay the money out of what goods she sold, and account for those unsold.

The term “settled,” or “to be settled for,” does not necessarily mean payment. One lexicographer defines “settle” to mean “to adjust differences, claims, or accounts; come to an agreement.” Cent. Diet. & Enc. Another says: “Settle implies the mutual adjustment of accounts, and an agreement upon the balance.” And. Law Diet. 944. The conversation, therefore, between the parties' was competent in order to explain what was meant by the term. If the Ideal Flatiron Company desired payment within 10 days, and a guaranty thereof, it should have used language which meant that and nothing else.

We find no error, and the judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


text:
    WOLFF v. ALPENA NATIONAL BANK.
    1. Appeal — Chancery Case — Question oe Fact — Finding oe Circuit Judge.
    Where, in a chancery case, the result depends entirely upon the credence to be given to complainant and defendant, whose testimony is in direct conflict, the finding of the circuit judge, who saw and heard the witnesses, will not be reversed.
    2. Statute oe Frauds — Promise to Pay Debt oe Third Person.
    The statute of frauds (3 Comp. Laws, § 9515), requiring “every special promise to answer for the debt, default, or misdoings of another person” to be in writing, does not apply to an agreement by a trustee and preferred creditor under a mortgage that the trust funds shall be shared equally with another creditor.
    B. Written Contracts — Parol Modification.
    An oral agreement by a trustee and preferred creditor under a mortgage, that the trust funds shall be shared equally with another creditor, made after the mortgage has been executed and filed and the trust accepted, is not void as a parol agreement contradicting a written instrument.
    Appeal from Wayne; Carpenter, J.
    Submitted October 16, 1902.
    (Docket No. 73.)
    Decided November 18, 1902.
    Bill by Bernard Wolff “against the Alpena National Bank and George L. Maltz for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      One Max Jasspon, a partner of complainant, being indebted to. complainant, the defendant bank, and other parties, on October 31, 1896, executed a chattel mortgage in favor of his creditors, preferring the complainant, whose debt is stated therein to be $4,117. The complainant was then living in New York. The mortgage was unsolicited by either party. Complainant and defendant Maltz, the president of the bank, were made trustees. Complainant sent in his acceptance by mail, and the mortgage was duly filed. Subsequently defendant Maltz accepted the trust. The goods were sold, and out of them was realized enough to pay the complainant’s debt in full, $1,700 of the debt of the defendant bank, and about $50 besides, which is in the hands of the complainant. Maltz was the active trustee, made the final sale, and paid the $1,700 to the . bank. The complainant claims that there is a considerable amount due him for his services and expenses as trustee. The object of the bill is to obtain an accounting and a restoration of this $1,700 to the hands of the trustees, and for the payment of the same to him. The defendants claim that this money was paid to the bank by agreement between complainant, Mr. Maltz, and the mortgagor, Jasspon. Complainant denies any such agreement. The case was heard in open court, and the bill dismissed.

      Maybury & Lucking, fo-r complainant.

      Charles E. Henry, for defendants.
   Grant, J.

(after stating the facts). Several questions of fact and law are presented, but if the court was correct in its finding of fact, and the application of the law thereto, as to the disposal of this fund, it becomes unnecessary to dispose of the other questions. The evidence on the part of the defendants is that, after the mortgage was executed by the mortgagor, the trust accepted by complainant, and the mortgage filed, it was then presented to Mr. Maltz, and he was requested to accept; that he declined to accept so long as complainant was preferred over the bank; that it was then agreed between complainant, the mortgagor, and Maltz that the bank should share equally with complainant in the trust funds, and that upon this consideration Mr. Maltz accepted. The testimony is in direct conflict. The result depends almost entirely upon the credence to be given to complainant and Maltz. Under these circumstances, where the witnesses were before the court, we will.not reverse the finding of the circuit judge. We, however, think he reached the correct conclusion upon the fact.

Two objections are raised to the legality of this parol agreement: (1) That it is void under the statute of frauds, which provides that ‘' every special promise to answer for the debt, default, or misdoings of another person” must be in writing. 3 Comp. Laws, § 9515. Wolff made no promise to answer for the debt of Jasspou. The debt was to be paid out of the goods mortgaged. Wolff was not by the agreement made liable for any portion of the debt. The statute does not apply. (2) It is urged that the parol agreement contravenes the writing, and that this the law does not permit. Counsel for complainant cite in support of this contention Unger v. Smith, 44 Mich. 22 (5 N. W. 1069); Putnam v. Russell, 86 Mich. 389 (49 N. W. 147). In those cases it was sought to vary the express agreement of deeds by evidence of a parol agreement contradicting them. This is not a case, within those decisions, of an attempt to change a written agreement by a previous parol one. In such case all parol agreements become merged in the written instrument. In this case the mortgage had been executed, had been accepted by complainant, and had been filed. It became, therefore, an executed instrument, beyond the power of the mortgagor to recall. Complainant had accepted the trust, and was therefore in law entitled to carry it out, even though Mr. Maltz should decline to accept. All parties were anxious to secure Mr. Maltz’s acceptance and his services. To accomplish this they agreed that the claim of the bank should share equally in the fund with the complainant. As between them there was nothing illegal in the transaction. The only parties who could complain are unsecured creditors, and they are not here complaining.

The decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


text:
    HUNT v. TOWNSHIP OF LINCOLN.
    1. Defective Highways — Evidence.
    That teams are driven in safety over a highway is not conclusive that it is in reasonably safe condition for public travel.
    2. Same — Contributory Negligence — Question for Jury.
    Where plaintiff had driven in safety over a mudhole in a highway the day before and the fall before his injury while undertaking to drive over it, and others had driven over in safety, and there was no evidence that he could have avoided driving over it, the question of his contributory negligence was for the jury.
    3. Same — Riding on Load.
    One is not guilty of contributory negligence, as a matter of law, in riding upon a loaded wagon over a mudhole, into which the forward wheels drop with such force as to throw him off.
    Error to Isabella; Snow, J., presiding.
    Submitted October 16, 1902.
    (Docket No. 79.)
    Decided November 18, 1902.
    Case by James H. Hunt against theutownsbip of Lincoln for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, on April 9, 1901, was drawing over the defendant’s highway to market a load of bolts, 38 inches long, loaded in a rack with long boards at the sides, and piled about 3£ feet high. The wagon tires were 3 inches wide. The forward wheels dropped into a mudhole with such force that it threw plaintiff from the load and seriously injured him. It is claimed by the plaintiff that the highway was not in a reasonably safe condition for public travel on account of this hole, and that it had existed for a long time. It is urged on the part of the defendant that the highway had been repaired and put in suitable condition the previous fall, and that the hole was no other than an ordinary mudhole, common in our country roads in the spring when the frost is coming out of the ground and rains falling. The defense is that there was no negligence shown on the part of the defendant, and that the plaintiff was guilty of contributory negligence. The questions were submitted to the jury, who found for the plaintiff.

      H. A. Sanford and Searl & Kress, for appellant.

      F. H. Dodds and Bussell & McNamara, for appellee.
   Grant, J.

(after staling the facts). 1. There was a sluiceway at or near the place of the accident. Defendant contends that the accident happened about 30 feet from the sluiceway, while plaintiff claims that it happened at the sluiceway, and that the bad condition of the road was on both sides of the sluiceway. We think there was a fair dispute as to the location of the hole into which the plaintiff drove, and that it was a proper question for the jury. The same is also true of the length of time the condition of the highway at this point had continued, and as to whether it was sufficiently repaired the previous fall. We cannot agree with the defendant’s contention that there was no dispute upon these points. It is unnecessary to set forth the testimony. We think it would have been error for the court to direct a verdict for the defendant.

2. We think the question of contributory negligence was properly submitted to the jury. Plaintiff had driven in safety over this place the day before and the fall before. Others had driven over in safety. Many teams may be driven safely over an unsafe place, but this is not conclusive upon the condition of the road or negligence of the traveler. Highways are made for use, and travelers are not prohibited from using them because there are mud-holes in them. In such cases they must exercise due care in driving, and greater care than they would where the road is in good condition. There is no evidence to show that plaintiff could have avoided driving over this place.

We also do not think plaintiff was, as a matter of law, guilty of contributory negligence in riding upon his load. There is sometimes as much danger, when driving over or along bad places, in walking at the side of the load, as there is in riding on top of it. We think all the questions were properly and fairly submitted to the jury.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., con- , curred.


author: Hooker, C. J. Moore, J. Grant, J.

text:
    ATTORNEY GENERAL, ex rel. KIES, v. LOWREY.

    1. Quo Warranto — Delay—School Trustees.
    A proceeding in the nature of quo warranto, begun in October, to inquire into the right of respondents to hold the office of trustees of a school district under an act of the legislature approved in March of the same year, is not unreasonably delayed.
    2. Constitutional Law — School Districts — Local Self-Government.
    A school district is a State agency, created by the legislature, and the management of its local affairs must be in conformity to such laws of a general character as may from time to time be enacted.
    3. Same — Change of Boundaries — Property Rights.
    The legislature may change the boundaries of a school district without reimbursing the portion deprived of the use of the common property.
    4. Same — Title to Act.
    Act No. 315, Local Acts 1901, was entitled “An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution of the territory of the disorganized districts.” Held, that the title did not indicate more than one purpose, which was to give school facilities to all of the territory mentioned, under changed conditions.
    5. Same — School Districts — Boundaries—Local Self-Government — Sites for Buildings — School Inspectors — School Trustees — Legislative Appointment — Obligation of Contracts — Title to Act.
    The act in question sought to incorporate into one union school district a part of the lands of several primary school districts. It named the persons who should constitute the first board of trustees, gave the new district the property within its limits, required it to pay the outstanding debts of the old districts, fixed the site of the central school building, and directed the board of school inspectors of the township to attach the remaining portions of the primary school districts to other school districts. Held :

    (1) That, in changing the boundaries, disposing of the property, and providing for the payment of the debts, the act was not unconstitutional as depriving the inhabitants of such territory of the right of local self-government.
    (3) That if the legislature did not have authority to fix, beyond revocation, the site of the school building, such provision might be held directory merely, and eliminated if necessary to sustain the act.
    (3) That, as the township board of school inspectors were authorized and elected to make changes in the boundaries of school districts, the act, in requiring them to attach the remaining land to other'school districts, could not be said to be invalid as a legislative appointment.
    (4) That the appointment of the trustees for unnecessarily long terms (i. e., one and two years, respectively) was contrary to the provisions of the Constitution contemplating that school districts should be managed by local officers; but, as the offices might be filled under the general law, the act was not invalid.
    (5) That the act did not violate the obligation of contracts.

      (6) That the act was not broader than its title.
    Grant, J., dissenting; being of the opinion that the act deprived the inhabitants of the right of local sélf-government, vested in school districts by the Constitution.
    Error to Hillsdale; Chester, J.
    Submitted June 4, 1902.
    (Docket No. 87.)
    Decided November 18, 1902.

      Quo loarranto proceedings by Horace M. Oren, attorney general, on the relation of L. E. Kies and others, against Thomas J. Lowrey and others, to inquire by what right respondents claimed to exercise the office of trustees of the public schools of the village of Jerome. From a judgment of ouster, respondents bring error.
    Reversed as to part of respondents.

      F. H. Stone and W. J. Sampson (Henry B. Graves, of counsel), for appellants.

      Lyon & McIntyre, for appellees.

       Rehearing denied March 23, 1903. Writ of error allowed April 15, 1904, removing cause to the United States Supreme Court.

   Hooker, C. J.

At its 1901 session, the legislature passed local act No. 315, entitled:

“An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution of the territory of the disorganized districts.”

By this act it sought to incorporate in one union and graded school district lands described in the act, which had previously been divided between several primary school districts. It named the persons who should constitute the first board of trustees, and provided for the distribution of long and short terms between them by lot; their successors to be elected by the electors of the district shortly before the expiration of their, respective terms. It provided that the primary and graded school law should apply to this district; and it may be said, in a general way, that it gave to the new district the property within its limits which had belonged to the respective districts from which it was created. It also required the new district to assume and pay the outstanding debts and obligations of the old districts. The new district did not include all of the lands comprised in the several districts from which it was organized, and the act provided that, within 30 days after the act should take effect, the board of school inspectors of the township of Somerset should meet, and attach to other school districts the portions of the several districts not included in the new.

This proceeding is in the nature of a quo warranto against the persons constituting the board, to inquire into their right to exercise and enjoy the office of trustee of said new district, which they were doing at the time the proceeding was instituted, in the effort to carry out the provisions of the act. It was commenced in October, 1901, and it cannot be said to have been unreasonably delayed.

Counsel for relatora attack the validity of this legislation. Their brief states the points thus:

First. It deprives this school district or municipality of the right of local self-government, guaranteed to all municipalities by the Constitution.
Second. The title to the act indicates, and the act itself embraces, more than one object.
“Third. The act is broader than the title. The body of the act embraces many objects not covered by the title.
“Fourth. The act, as passed, impairs the obligation of contracts, within the meaning of the Constitution of the United States and the Constitution of the State of Michigan.”

Does this act impair the right of local self-government ? Cases have, of late, been frequent where legislation has been said to impair this right of local self-government, and it would seem that different views are entertained by counsel and by the public as to the character and extent of this alleged, right. It may, therefore, be profitable to consider briefly what it is, whence it is derived, and whether it has limitations upon it, or is itself a limitation upon the authority of the State. It is often alluded .to under the name of “home rule.” As descriptive of a policy, “home rule ” is a significant and appropriate term; but, as descriptive of a right, it is indefinite, for it is legally coextensive with the right of local regulation or control, and its extent must always be tested by the Constitution. The State, ■consisting of its electors, has absolute political power, except as limited by the Federal Constitution. Until the electors have adopted a Constitution, there is no public corporation, either municipal or quasi municipal, that can resist the authority of the State, which has power to create both, and to destroy them, and to make governmental ■agencies of them. It is not necessary to discuss municipal corporations proper, because we are not dealing with one; so we may pass them with the suggestion that, under repeated decisions, they exist through the action or acquiescence of the State; are subject to regulation and control by the State, except as qualified by the provisions of the United States Constitution; and this has application to interests in the nature of private rights only, which such corporations have and enjoy.

The quasi corporations are radically different. They consist of counties, townships, school districts, highway ■districts, etc. They are governmental agencies, and it is, to say the least, doubtful if they are in any respect anything else, or have any rights that can be called private. They perform many functions, but these are for and about the business and policies of the State, which has imposed upon them the responsibility and expense of maintaining highways, schools, drains, bridges, etc. This may be called a right or an obligation, according to the views of the citizen who is taxed locally for the several purposes; but, whatever it is called, it depends upon the Constitution or law of the State, and otherwise would not exist. If upon the Constitution, the legislature has not the power to change it; but, if upon an act of the legislature, it is so subject to change. There is danger of confusing rights derived from these different sources, and it is possible to erroneously conclude that any apparent injustice in legislation is an invasion of local rights of self-government, and therefore’invalid, when that can be truly said only of such as invade constitutional rights of self-government.

The school district is a State agency. Moreover, it is of legislative creation. It is true that it was provided for in obedience to a constitutional requirement; and, whatever we may think of the right of the district to administer in a local way the affairs of the district under the Constitution, we cannot doubt that such management must be in conformity to the provisions of such laws of a general character as may from time to time be passed, and that the property of the district is in no sense private property, but is public property, devoted to the purposes of the State, for the general good, just as almshouses and courthouses are, although confided to local management, and applied to uses which are in a sense local, though in another sense general.

We insert here from counsel’s brief the alleged infringements upon local rights, upon which reliance is placed:

“ (a) The act names and appoints for definite terms (not provisionally) the officers of this municipality.
“(5) It fixes definitely the site of the central school building for said district, and the uses to be made of said building, and does not allow the resident taxpayers and voters any voice in the matter.
‘ ‘ (c) It gives arbitrary power to a board appointed by legislative enactment (and to no other) to confiscate the property of the old districts, and fixes definitely what is to be done with this property; thus depriving the resident taxpayers and voters of all voice in the matter.
“ (d) It fixes definitely what shall be done with the property of the old districts, and the uses to which it shall be put, and leaves absolutely no discretion in the local authorities nor in the trustees of said district.
“ (e) It fixes definitely what shall be done with the territory of the old districts not included in the new district, and appoints by legislative enactment the officers that are to make the disposition of this territory.
“ (/) It appoints by legislative enactment a board of school inspectors for this district, which are constitutional officers, and deprives the local taxpayers and voters of all voice in the matter.”

Among the above points, our attention is naturally attracted to “c,” wherein it is stated that the territory excluded is deprived of any share of the public property. It does not seem to be denied that the legislature may change the boundaries of districts. That has been too often done to admit of question. Numerous school districts have lost territory through city charters, and the case of Keweenaw Ass’n v. School Dist. No. 1, 98 Mich. 437 (57 N. W. 404), is conclusive upon the point. See, also, Perrizo v. Kesler, 93 Mich. 280 (53 N. W. 391), and Pingree v. Board of Education, 99 Mich. 408 (58 N. W. 333). The authority of the legislature to change the boundaries of counties, -townships, and school districts does not necessarily involve the obligation to reimburse the portion deprived of the use of the public property. Frequently such laws contain provisions for the purpose, but it is not necessary. The property is public property, held and used for the purposes of the State, which may, in the absence of constitutional prohibition, make such disposition of it as it sees fit. Mr. Dillon, in his work on Municipal Corporations (4th Ed., § 185), in discussing the enlargement of boundaries, states the general rule:

“Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restrained in the constitution, subsequently annex, or authorize the annexation of, contiguous or other territory; and this without the consent, and even against the remonstrance, of the majority of the persons residing in the corporation or on the annexed territory. And it is no constitutional objection to the exercise of thispoiver of compulsory annexation that the property thus brought within the corporate limits will be subject to taxation to discharge a pre-existing municipal indebtedness, since this is a matter which, in the absence of special constitutional restriction, belongs wholly to the legislature to determine.”

A-copious note fully vindicates the text.

Again (section 187) he says:

In connection with the power of the legislature to create municipal corporations and to determine their territorial extent, reference may be made to the division of toions or public corporations by legislative act or authority. There is no restriction on the general power, unless it be found in the constitution of the State. In case of division, the legislature may, as we have already seen, apportion the burden between the two, and determine the px-oportion to be borne by each. In Connecticut, ‘ the legislature,’ says the supreme court, ‘ have immemorially exercised the power of dividing towns at its pleasure, and, upon such division, apportioning the common property and common burdens in such manner as to it shall seem reasonable and equitable.’ Accordingly it may impose on one town, upon such division, the entire expense of erecting and maintaining a bridge across a river which is the dividing line between the two towns.”

And again, in section 188:

“ So it has been frequently held that if a new corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is annexed to another corporation, unless some provision is made in the act respecting the property and existing liabilities of the old corporation, the latter will be entitled to all the property, and he solely answerable for all the liabilities.”

In further elucidation of this rule, we quote section 189:

‘ ‘ But upon the division of the old corporation, and the creation of a new corporation out of part of its inhabitants and territory,-or upon the annexation of part to another corporation, the legislature may provide for an equitable appropriation or division of the property, aixd impose upon the new corporation, or upon the people and territory thus disannexed, the obligation to pay an equitable proportion of the corporate debts. The charters and constituent acts of public and municipal corporations are not, as we have before seen, contracts, and they may be changed at the pleasure of.. the legislature, subject oxxly to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corporations to provide for their enlargement or division, and, incidental to this, to apportion their property, and to direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been expressed that the partition of the property must be made at the time of the division of or-change in the corporation, since otherwise the old corporation becomes, .under the rule just before stated, the sole owner of the property, and hence cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limitations upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications.”

See, also, Township of Springwells v. Wayne County Treasurer, 58 Mich. 240 (25 N. W. 329), which impliedly recognizes this rule. See, also, Perrizo v. Kesler, supra, where Morse, C. J., explicitly concedes this power to the legislature in a school-district case.

Whatever we may think of the justice of this act (and we cannot say that the situation was not fully known and discussed by the legislature), we cannot doubt the legislative authority to change these districts, and provide for the disposal of their property and payment of their debts, as was done in this case.

The law is said to fix the site of a school building. This is not usual, but we are not convinced that it is beyond the power of the legislature to locate its schoolhouses, courthouses, and almshouses. No authority is cited to the contrary, and, without deciding the question, we may say that the sites alluded to had already been located, and one built upon, by the districts. In saying that these should be deemed to be, respectively, a schoolhouse site and the central schoolhouse for the new district, the legislature, if it had not the power to fix beyond revocation such sites, can easily be held to have made a provision which was directory merely, and, whatever we may think of their power in the premises, no one would claim that it was designed to forbid future action by the board, and we might safely eliminate the provision, if necessary to sustain the act, in accordance with a common and well-understood rule.

But it.is said that some of the territory was left out of the new district, and that the legislature fixed definitely what should be done with it, and appointed the officers who should attach it to new districts. I£ this opinion is correct upon the first point discussed, it cannot be doubted that the legislature might itself have attached this territory to specific districts. This it did not do, but attempted to confide the subject to the township school inspectors. This was the board authorized to deal with such questions, and had been elected by the township for such purposes. This cannot be said to be an appointment by the legislature, within the case of Moreland v. Millen, 126 Mich. 381 (85 N. W. 882).

The further objection is made upon the ground that the officers were named by the legislature, and their terms fixed at one, two, and three years, respectively. We understand that four of these have been superseded by 'Successors duly elected. Presumably, two still hold their offices, and, if the legislature had not the power to appoint them, the district should have filled them under the general law. We are of the opinion that the Constitution refers to school districts as they existed under our previous Constitution and laws, and that it was expected that they would be managed by local officers, and therefore that the rule laid down in Moreland v. Millen applies as to .officers. The officers were named by the legislature for unnecessarily long terms, even if it be supposed that the appointments were intended to be provisional. Under the general law, the offices might have been filled, and may be yet. We understand from counsel, though the record does not appear to so state, that only four of respondents do not now hold under such appointment, if they are still acting as officers. The other two unlawfully hold the office, but we have no means of telling which ones of the six they are. Perhaps this is not important, as the attack seems aimed at the legislation, rather than the appointees.

The other two points need little discussion. We have so often discussed titles to acts that the law is pretty well understood; and we therefore content ourselves with saying that, in onr opinion, this title does not indicate more than one purpose, which is to give school facilities to all of the territory mentioned, under changed conditions. Nor do we think the act broader than the title.

We have already shown that the obligation of contracts is not impaired. The districts did not hold this property' under any contract with the State, but as a public agency.

The judgment of ouster should be affirmed as to such officers as now hold under the legislative appointment, if there be any thus holding. As to others, if any, it will be reversed. Neither party will recover costs.

Montgomery, J., concurred with Hooker, O. J.

Moore, J.

Because of the decision in Moreland v. Millen, 126 Mich. 381 (85 N. W. 882), I concur in the result.

Grant, J.

(dissenting). The legislature of 1901 passed an act entitled:

“An act to incorporate the public schools of the village of Jerome, Hillsdale county, Michigan; define the boundaries thereof, provide for the election of trustees and fix their powers and duties, and provide for the distribution ■of the territory of the disorganized districts. ”

Act No. 315, Local Acts 1901.

It was given immediate effect, and approved March 1st. The district, as organized by the act, was formed from the major part of three districts then existing, and situated in the townships of Somerset and Moscow, in Hillsdale county. Section 1 defines the boundaries of the district. Section 2 provides for six trustees, naming them. They were to meet within 20 days after the act took effect, and divide into three equal divisions; the first division to expire at the time of the first annual school meeting, the second at the second annual meeting, and the third at the third annual meeting. The terms were to be decided by lot. If any vacancies occurred in their number, they were authorized to fill them by appointment. Section 3 provides for the election of trustees upon the expiration of the terms of office of those who were appointed by the act. Section 4, in addition to the powers imposed by the act, confers also upon the trustees all the powers and privileges conferred upon union and graded school districts by the general law, and the powers and duties of school inspectors are vested in said trustees, who are made ex officio a board of school inspectors. By section 7, all the lands, school houses and sites, furniture, libraries, property, and effects belonging to the several old school districts were transferred to, and declared to be the property of, the schools established by the act; and all the debts and obligations of the three districts were imposed upon the new district. Section 9 fixed the site of the schoolhouse to be the one then owned and occupied by fractional school district No. 2, and made the building situated thereon the central school building of the public schools of the village of Jerome; to be used for academic and more advanced classes of scholars, and such other classes as the board of trustees should deem necessary. Section 10 authorized the sale of all the property of the old districts, and directed that the moneys received therefrom should be used in making improvements and additions to the central school building. Section 11 directed the school inspectors of the township of Somerset to attach to other districts within the boundaries of said township such parts of said districts as were not comprised in the territory of the new district. This suit is instituted by the attorney general to test the validity of the above act. The sole question presented is its constitutionality. The court below held the act unconstitutional.

Four reasons are urged against the constitutionality of this act: (1) That it deprives the school district of local self-government. (2) That the title to the act embraces more than one object. (3) That the body embraces objects not covered by the title. (4) That it impairs the obligation of contracts.

A school district is a municipal corporation. School Dist. No. 4 v. Gage, 39 Mich. 484 (33 Am. Rep. 431); Seeley v. Board of Education, 39 Mich. 486. See, also, Stuart v. School Dist. No. 1, 30 Mich. 69. The legislature has no more right to interfere with local self-government therein than it has to interfere with the local self-government of cities, villages, and townships. The Constitution gives these corporations the same right to control their local affairs that it gives to other municipal corporations. The act does not pretend to appoint these six trustees as provisional officers, appointed for the sole purpose of launching the corporation into existence, and providing the inhabitants thereof with the right to then assume the reins of government and select their own officers. If the legislature could appoint these trustees for one and two years, it could as well appoint them for ten or more. This provision of the act is therefore clearly unconstitutional. Moreland v. Millen, 126 Mich. 381 (85 N. W. 882).

This act not only deprives the inhabitants of this district of the right to choose their own officers, but it also deprives them of the right to locate their school site. It takes away all the property from the old districts and transfers it to the new; thereby depriving the inhabitants of the old districts, living in the territory not included within the new, of all interest in the property to which they have contributed. The act also authorizes the trustees appointed by the legislature to sell all the buildings and sites of the old districts, and to use the money in repairing, improving, and adding to the central school building located upon the site fixed by the act. Besides, it makes the trustees school inspectors, who are constitutional officers.

If the only objection to this act were the appointment by the legislature of permanent officers, it might possibly be sustained under Moreland v. Millen, supra, and an election ordered to choose trustees. But the act wipes out nearly every vestige of local self-government. The inhabitants are given no voice in the election of officers, in the choice of a school site, in the disposal of their property, or the uses to which the proceeds of the sale shall be put. All the important powers incident to these corporations, and essential to their local management, are absolutely taken away. If this act be sustained, it must follow that the legislature can absolutely deprive the inhabitants of these school districts of the right to locate their sites and to control their property for school purposes in such manner as they may deem for their best interests. It must follow that the legislature can make contracts for every school district 'in the State with teachers, can fix the amount each district shall raise by tax, and can determine how much each district must spend in erecting a schoolhouse. If we understand the position of the learned counsel for the respondents, they insist that the legislature possesses just this power, and they compare the position of the schools to boards-of health established by the legislature. Schools are constitutional municipalities (i. e., they are provided for in the Constitution), while boards of health are not.

The provisions of the Constitution of 1835 were substantially the same in regard to primary schools as are those of the Constitution of 1850. The provision relied upon to confer this power exclusively upon the legislature is section 4 of article 13, requiring the legislature to “provide for and establish a system of primary schools, whereby a school shall be kept without charge for tuition at least three months in each year in every school district in the State.” So the Constitution requires the legislature to “provide for the incorporation and organization of cities and villages.” What difference is there between the power to “provide for and establish,” and the power to ‘ ‘ incorporate and organize ? ” Does one confer the right of local self-government, and the other take it away ? The Constitution contains not a sentence conferring greater power upon the legislature to interfere with local self-government of school districts than it does with that of cities and villages. It requires them to provide for the organization of both. Local self-government was exercised by both under the old Constitution, and was exercised when the new Constitution was adopted, and has been exercised ever since. The legislature has attempted to interfere in various ways in the local self-government of cities and villages, and these acts have been declared unconstitutional. This is the first time it has been urged in this court that the exclusive control over school corporations is vested in the legislature, to the entire exclusion of local self-government. Broader language may have been used in some of the decisions than the facts called for, but no case has before been presented involving the destruction of local self-government in these municipalities. The language quoted and relied upon to sustain this doctrine, from Perrizo v. Kesler, 93 Mich. 283 (53 N. W. 391), is used where the act organized a whole township into a single school district, and required a petition to be signed by a majority of the electors, to be filed with the township clerk 15 days before the annual town meeting, giving notice that at such meeting the officers for such organized school district would be chosen. The question was whether the township board was a constitutional tribunal to determine whether the requisite number of qualified electors had signed the petition. The same opinion, at page 284, speaks of school districts as municipal corporations, saying, “ The history of our State is full of such legislation in the enlargement of the boundaries of municipalities, and the right so to legislate cannot now be questioned.” The boundaries of cities, villages, townships, and school districts have been fixed by the legislature. No one was ever organized by an act of the legislature without fixing the boundaries.

In Pingree v. Board of Education, 99 Mich. 404 (58 N. W. 333), the sole question was the constitutionality of an act making the mayor ex officio a member of the board of education of the city of Detroit, with certain veto powers. In that case the territory of the school district was the same as the territory of the city of Detroit. The people elected the mayor, and, when nominated and elected, the people would understand that they were voting for a member of the school board. While it is true that the qualifications for voters in a school district are somewhat different from those in the election of a mayor, yet the power so conferred upon an elective officer is not in conflict with the right of local self-government. If, however, it can be held that it is, and the language there used can be so construed as to hold that there is no such thing as local self-government for the school districts of this State, the doctrine ought, in my judgment, to be limited to the facts of that particular case. Of course, it was intrusted by the Constitution to the legislature to provide for a primary school system, just as the power was confided to the legislature to provide for the organization of cities and villages. Section 14, art. 15, of the Constitution, requires judicial officers of cities and villages to be elected, but that all other officers shall be elected or appointed as the legislature may direct. We have distinctly held that this does not mean appointment by the legislature, but by the local authorities.

Belles v. Burr, 76 Mich. 1 (43 N. W. 24), is in accord with the doctrine I now maintain, for it holds that the authority granted by the Constitution to the legislature to establish school systems confers the power to prescribe what officers shall be chosen to conduct the affairs of the districts, to define their powers and duties, their terms of office, and how and by whom they should be chosen. This authority is no other or different from that conferred upon the legislature over cities and villages. Under both the Constitutions of Michigan, no such power as is now claimed has ever before been exercised; nor has it ever been claimed that the people 'had no right of local self-government over the district schools. On the contrary, the people have been left in control of their local affairs in school districts as well as in other municipalities. I think this is a practical construction of this provision of the Constitution against the contention now made. The act, in my judgment, cannot be sustained, and should be held void.

Under this disposition of the case, it is unnecessary to •discuss the other questions.


text:
    ZIBBLE v. ZIBBLE.
    1. Wills — Contest—Admissions of Proponent.
    On the contest of a will, it is competent to show that proponent, who is a party in interest, 10 years before the will was made, filed a petition in the probate court, stating that decedent was mentally incompetent.
    3. Same — Declarations of Testator — Undue Influence.
    The declarations of a testator are admissible to show the condition of his mind, but not to establish the fact of undue influence.
    3. Same — Instructions to Jury.
    Where, on the contest of a will on the ground of undue influence by testator’s wife, there was evidence that testator had said that his wife gave him no peace, and threatened to leave him if he did not deed her his property, a request to charge that the statements of testator were not evidence of undue influence, and could not be used to establish that fact, should have been given.
    Error to Lenawee; Chester, J.
    Submitted October 8, 1902.
    (Docket No. 21.)
    Decided December 2, 1902.
    Mary Jane Zibble presented for probate the last will and testament of Bradley Zibble, deceased. The will was .allowed in probate court, and Clarence Zibble and Julia Dunscomb appealed to the circuit. From a judgment for ■contestants, proponent brings error.
    Reversed.

      J. N. Sampson and Fred B. Wood, for appellant.

      Watts, Smith & Baldwin, for appellees.
   Montgomery, J.

On the trial of this case at the circuit, the jury found against the will offered for probate, and the proponent brings error.

Evidence was offered bearing upon the question of the testator’s mental capacity, and also tending to show undue influence exerted by his wife, who is the proponent. Testimony was also offered tending to show statements made from time to time by decedent to his various children to the effect that his wife “gave him no peace of his life,” and, as he expressed it, “ she dingdongs at me from morning till night;” that she threatened to leave him if he did not deed her his property, but that he was not going to do it; and other testimony of a similar trend.

The contestants also offered in evidence a petition filed in the probate court by proponent on the 9th of December, 1887, stating that decedent was mentally incompetent, which petition was signed and sworn to. This petition was received against the objection of proponent’s counsel, and error is assigned upon its admission. The will bore date in May 1897. We think the declaration of proponent, who is a party in interest, as to decedent’s mental capacity, was admissible. See Potter’s Appeal, 53 Mich. 106 (18 N. W. 575); 27 Am. & Eng. Enc. Law (1st Ed.), p. 507.

At the close of the testimony, proponent’s counsel requested the court to charge that the statements and representations of Bradley Zibble are not evidence of undue influence, and cannot be used to establish that fact. This request was refused. Counsel appear not to be in disagreement as to the law upon this subject. That such declarations as were offered in this case were admissible as bearing upon the state of mind of the testator, and to prove the effect of the alleged influence, or, as is well put in 27 Am. & Eng. Enc. Law, 506, ‘ ‘ that they may be shown to establish everything pertaining to the testator himself, as distinguished from matters which go to show the act of influence,” is apparently conceded. On the other hand, contestants admit that the declarations of decedent as to the.fact of undue influence cannot be considered as establishing such fact; and such is the rule established by this court in Harring v. Allen, 25 Mich. 505, and Bush v. Delano, 113 Mich. 321 (71 N. W. 628). Contestants, however, contend that the instruction asked in this case upon that subject was inappropriate, for the reason that there was no testimony offered of statements directly to the effect that undue influence had been exerted in securing the execution of this will, or, as they put it, that there was no proof or claim in the case that any statements had been made showing the fact of undue influence, so that there was no evidence to warrant the charge requested.

The question, more properly, is whether there was any testimony of declarations which the jury might have construed to show the fact of undue influence. If there was, the circumstance that such declaration did not directly relate to an influence exerted in securing the execution of the will itself would add force to, rather than weaken, the objection to its being used as substantive proof of the fact of undue influence. That such an inference might have been drawn by the jury we think is fairly deducible from the charge of the court, a portion of which is as follows:

“ If Mrs. Zibble, by any wrongful and fraudulent means or design, got control of and did control the mind and will of Bradley Zibble, so that he did not make the will in question as his own free will and desire, if she wrought such influence over him, whether by blandishments, if you find any, or by threats to leave him, or by continually dinging and importuning him until he could have no peace of mind or comfort with her, and she did this fraudulently, and with intent that he should not use his own desire and free agency in making his will, and he was influenced by such fraudulent doings on the part of Mrs. Zibble, this would constitute undue influence, and you would find for contestants on this point.”

The illustrations here employed evidently relate to influence shown to have been exerted, if at all, by testimony of statements made by decedent. In view of this treatment of the case, it would be impossible for us to say that the jury might not have used the testimony of declarations of the decedent as a basis for the verdict establishing undue influence. The instruction requested was therefore appropriate, and should have been given.

It follows that the judgment must be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred.