author: Blair, C. J. Ostrander, J.

text:
    STENDER v. KERREOS.
    Landlord and Tenant —Leases — Termination — Notice — Sufficiency.
    A lease provided that at the end of a term the lessees should have the privilege of a renewal for an indefinite period upon the same terms and conditions, with the provision that, if the lessor desired to rebuild, he could, after the expiration of the original term, terminate the lease upon giving 60 days’ notice in writing of such intention. Complainant, an assignee of the lessor, 60 days before the expiration of the original term, notified the lessees of his intention to terminate the lease at that time, and that said notice was given “in accordance with a provision contained” in the lease. Held, that, the provision in the lease referred to in the notice should be construed as a part thereof, and, considered in the light of surrounding circumstances, was sufficient. Ostrander, Grant, and Brooke, JJ., dissenting.
    Case made from Wayne; Rohnert, J.
    Submitted November 17, 1908.
    (Docket No. 121.)
    Decided May 25, 1909.
    Summary proceedings by Hugo H. Stender against John Kerr eos and others for the possession of leased premises. There was judgment for complainant on a verdict directed by the court, and defendants appeal. -
    Affirmed.

      Trevor & Bumps, for appellants.

      E. W. Mulford, for appellee.
   Blair, C. J.

In my opinion the judgment of the circuit court should be affirmed, for the reason that the notice given to the lessees was sufficient to terminate the lease. I do not think that the sufficiency of the notice in question should be determined solely, “upon this point, by what appears in the lease and in the notice and not by evidence aliunde.” The lease does not purport to prescribe the exact terms of the notice, and any form of language which would express the reason for the notice would be sufficient. The object of the notice was not only to express to the lessees the intention of the lessor to terminate the lease and the ground therefor, but also to convey to the minds of the lessees such intention and the basis therefor. Any form of notice which should apprise the lessees that the ground of the notice was the wish to rebuild would be sufficient. In determining the meaning of the notice, therefore, reference may properly he had to the existing facts known to both parties at the time the notice was given. The testimony showed that defendant Lavagnino’s subtenancy was with the consent of Mrs. Cady, that the complainant knew of the leasehold rights of the defendants when he purchased the property of Mrs. Cady, and had personally received and receipted for the rent up to August 1, 1907. The notice required the defendants to surrender possession “on or before the first day of August, A. D. 1907, for the reason that I intend to terminate your tenancy and repossess the whole of such premises on the date above' mentioned.” On the 1st day of August, 1907, the defendants’ fixed term and all further rights in the premises terminated, unless by that day they exercised their privilege to fix a further term and complainant had failed 60 days prior to that time to cut off their right to fix such further term by giving them notice of termination of that right. The notice stated the reason (and the only reason) why it was given, as follows: “ This notice is given in accordance with a provision contained in a certain lease,” etc. It is to be observed that the notice is given specifically in accordance with a provision not generally in accordance with the provisions of the lease. The only provision providing for the giving of a notice is the provision that:

“ On and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days’ notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease.”

The provision for notice was a part of the clause giving to the lessees the privilege of a renewal and was a limitation of that privilege. The notice given confirmed the right of the lessees to occupy the premises till the end of the original term and manifestly applied solely to their right to a renewal. The notice conformed to the provision therefor in the length of time given, and, since the lessees could not fail to understand that the provision of the lease referred to in the notice was the one explicitly providing for notice, the notice should be construed as though the reference to the provision made it a part of the notice. This conclusion appears to me to be justified by a reasonable interpretation of the written instruments, in the light of the surrounding facts, and is also sustained by authority.

A contrary conclusion was reached in Matter of Coatsworth, 37 App. Div. (N. Y.) 295, cited in the brief for defendants as setting forth “the logic and the law of our contention in this particular.” The lease contained the following language:

“And the said parties of the first part further covenant and agree to and with the party of the second part, his executors, administrators and assigns, that in case they do not give the party of the second part, his executors, administrators or assigns, at least six months’ notice in writing before the 1st day of April, 1862, of their election to take possession of said demised premises at the expiration of this lease and to pay for said buildings, vaults and sidewalks at such appraised value, that then and in that event they will renew and continue this present demise and lease, and such omission to give said notice shall be deemed and taken to be a renewal and continuance of this demise and lease for five years from the said first day of April, 1862, upon the same terms and conditions hereinbefore expressed, except that the rent for said renewed and continued term shall be $700 per annum, payable in the same way as the last five years’ rents above provided for. And they also covenant and agree as aforesaid that so often as they shall fail to give said six months’ notice before the termination of such renewed term, they will renew the said demise and lease, and such failure shall be deemed a renewal thereof for five years from the termination thereof, on the same terms and conditions as the said first renewal and continuance.”

The notice contained the following:

“Sirs: You will take notice that we, as owners of premises, * * * hereby elect to take possession of the said demised premises pursuant to the provisions of said lease, on the 1st day of April, 1897, and hereby notify you that said lease shall terminate on that day.”

The holding of the appellate division was reversed by the court of appeals; the court saying, in part:

“ The only defect claimed in the notice is that it does not contain an express promise to pay for the buildings at their appraised value. The learned appellate division appears to have been of the opinion that the lease prescribed the form of the notice and that the promise to pay was a part thereof. We incline to the view that the wording of the lease does not justify such a conclusion. By it the parties agree that, in case the landlords do not give six months’ notice in writing of their election to take possession of the demised premises at the expiration of the lease and pay for the buildings, vaults, and sidewalks at the appraised value;, they will renew and continue this present demise and lease, etc. This does not purport to prescribe the form of the notice in hsec verba, but only gives the substance. Upon referring to the notice it will be seen that the owners elect to take possession of the premises, ‘pursuant to the provisions of said lease,’ so that if, under the provisions of the lease, they are required to pay for the buildings, they take possession under the promise to pay therefor. It appears to us that this is a substantial compliance with the terms of the lease and answers every requirement of the notice.” Matter of Coatsworth, 160 N. Y. 114.

If it should turn out that the notice was not given in good faith, with an actual intention to rebuild, the rights of defendants will be fully protected under this interpretation of the notice.

The judgment is affirmed.

Montgomery, Hooker, Moore, and McAlvay, JJ., concurred with Blair, C. J.

Ostrander, J.

(dissenting). The owner of premises leased them for the term of three years from August 1, 1904, for the sum of $2,160, payable at the rate of $60 per month, in advance. The lessees covenanted' that, “ at the end of said term, they shall and will peaceably and quietly leave, surrender and yield up the said premises unto the said party of the first part, her heirs and assigns. ” The lessor covenanted for herself and her heirs and assigns that if the parties of the second part paid the rent reserved in the manner provided, and performed all covenants made by them, they might enjoy and possess the premises for and during the term aforesaid. Lessees covenanted that they would not assign the lease or sublet any part of the premises without the written assent of the lessor. In the body of the lease is the following provision:

“And the said parties of the second part at the end of the said three years may have the privilege of renewing this lease at ’the same rental for so long a term as said parties of the second part may see fit, upon the same terms and conditions as in this lease contained, with this exception : That on and after three years from said August 1,1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days’notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease.”

The vendee of the lessor on May 29, 1907, served upon one of the lessees and upon a sublessee a notice, which reads:

“To John Kerreos and Peter Ellis:
“Please take notice that you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described, which you now hold of me, as my tenant, on or before the first day of August, A. D. 1907, for the reason that I intend to terminate your tenancy, and to repossess the whole of such premises on the date above mentioned, said premises being described as follows, to wit: The store No. 3C3 Woodward avenue, in the city of Detroit, county of Wayne and State of Michigan. This notice is given in accordance with a provision contained in a certain lease of said premises made and executed by one Elizabeth H. Cady to the said John Kerreos and Peter Ellis.
“H. H. Stender.
“ Dated at Detroit, Wayne county, Michigan, the 29th day of May, A. D. 1907.”

On or about July 27, 1907, the tenants gave the owner the following notice:

“July 27, 1907.
“ Mr. H. H. Stender,
“City.
“Dear Sir: The lease of the store, 308 Woodward avenue, Detroit, Michigan, which we hold, expires on the first day of August next. Under the provisions of said lease we have the privilege of renewing said lease at the same rental for so long a term as we may see fit, upon the same terms and conditions as in said lease contained, and we therefore hereby give you notice that we demand a renewal of the lease, dated the 14th day of September, A. D. 1904, in which Elizabeth H. Cady is mentioned as the party of the first part, for the store known as 303 Woodward avenue, Detroit, Michigan, for the term of fifty years from and after August 1, A. D. 1907, according to the provisions under our present lease. We give this notice to you for the reason that we understand that you have purchased said property from Elizabeth H. Cady, and are now the present owner. You will kindly have a renewal made out for us to sign.
“Yours truly,
“John Kerreos and Peter Ellis.”

The owner, on August 2, 1907, instituted summary proceedings to recover possession of the premises. The plea of the defendants was “not guilty,” and the special defense set up was that the notice to quit was insufficient and void because it did not conform to the notice required to be given by the lease, it did not state that the intention was to rebuild upon the premises, it was prematurely given, and was given by the owner of the property and not by the lessor. Defendants appealed from the judgment of the circuit court commissioner to the circuit court for the county of Wayne, in which court a verdict for the complainant was directed by the court. The evidence was that the complainant bought with notice of and subject to the rights created by the lease, and that the tenants had attorned to him. The testimony for complainant tended to prove that the subtenant was in by virtue of the consent (whether written or oral does not appear) of the original owner; on the part of defendants, that they were not in arrears for rent. The contentions of the lessees, appellants, have been sufficiently indicated. On the part of the appellee it was and is contended: (a) That the covenant to renew the lease is void for uncertainty; (6) that the lease expired by its own terms; (c) that the notice given is a sufficient notice of a wish to rebuild. There was no testimony, aside from the notice given to the tenants, tending to prove a desire or intention on the part of the owner to rebuild.

The agreement is that the lessees, if they do whatever is stipulated to be done by them, shall enjoy the premises for a term of three years from August 1, 1904. At the end of this term they may, at their election, enjoy them for a further term, the duration of which they may nominate, paying the rent, and upon the occasions, stipulated in the lease. Fairly interpreted, the provision for a renewal of the lease does not mean that the lessees, upon the expiration of the fixed term, may continue to occupy the premises for an indefinite period, or at their will. Nor is it to be supposed that the parties to the lease contemplated that the tenants should relinquish possession at the end of the three years, take a new lease and immediately re-enter. The intention of the contracting parties, gathered from the whole instrument, is to make a present agreement for an additional or further term to begin in the future, requiring only lapse of the preceding term and the election of the lessees to become a lease in prsesenti. There is no rule which requires courts, notwithstanding the evident intention of parties, expressed in fitting terms, to construe a clause such as is in question here as a mere covenant for a lease or for the renewal of a lease. No one would doubt that, if the duration of the second or further term had been fixed in the lease, it would be held to be a present demise of the premises for both terms, although the tenants reserved the right to elect whether or not the second term should begin at all. Delashman v. Berry, 20 Mich. 292; Beller v. Robinson, 50 Mich. 264; Brown v. Parsons, 22 Mich. 24; Darling v. Hoban, 53 Mich. 599; Brand v. Frumveller, 32 Mich. 215; Cooper v. Joy, 105 Mich. 374; Wright v. Kaynor, 150 Mich. 7. See, also, Wallace v. Bahlborn, 68 Mich. 87, 89, 90. The fact that the duration of the second term is not fixed in the lease, and is to be. fixed by the lessor, does not call for the application of a different rule.

Assuming, as we must, that the property is demised by the written lease for a term and for a further term, is the contract legally infirm ? If there is an infirmity, it must arise out of the fact that the duration of the term was, when the contract was entered into, uncertain. For that matter, it was uncertain whether there would be a second term. So in Brand v. Frumveller, supra, and in Brush v. Beecher, 110 Mich. 597, it was uncertain what rent would be demanded during the second term. In those cases the amount of the rent was to be determined by arbitrators, to be chosen by the parties. There was a mutual undertaking to make the uncertainty certain if a further term was entered upon by a designated method. It was not supposed that the uncertainty avoided the contract. Here the commencement of the second or further term is made certain by the lease. It is the demise of the owner who is content that his lessees shall make the duration of the term certain. * There is no want of mutuality. Fairly construed, the contract is that, when the election to hold for a further term is made, which must be before or immediately upon the termination of the three years’ term, there must be also a fixing of the duration of the term to be made known to the lessor. The owner so understood it, as is evidenced by the notice which he served. The lessees so understood the meaning and acted in con-fortuity with that understanding. The lease and this writing were sufficient to satisfy the statute of frauds. If they had nominated a term, the length of which, if originally agreed upon, would have violated the rule against perpetuities, a different question would be presented. They did no such thing. It will not be presumed that it was the intention of either party that a perpetuity was to be created, nor should the contract receive the construction that under its terms one might be created. Brush v. Beecher, supra. The contract is not void because of uncertainty or for want of mutuality. It is good as a present demise of premises for a term and for a further term at the option of the lessees. In Western Transportation Co. v. Lansing, 49 N. Y. 499, in which an able opinion was written, a case much like the instant case upon the facts, the conclusion reached was that the contract and action on the part of the lessees created at most a tenancy from year to year, determinable at the will of either party upon giving proper notice; but this result was reached upon a construction of the lease which denied the power of the lessee to name any definite term. The reasoning indulged, applied to the facts of this case, leads to the conclusion just stated. See, also, Holley v. Young, 66 Me. 520.

It is contended that the notice given by the owner to the tenants is ineffectual to determine the lessees’ right to possession because: First, it does not state that it is the intention of the owner to rebuild; second, it was prematurely given; third, by the terms of the contract the right to make the election belonged to the lessor only. The objection last stated will be first considered. The privilege of re-entry is not in terms reserved to the assignee of the lessor. The renewal clause is an entirety. Assuming that the lessees have done precisely what is required to secure a further term, they have done it pursuant to and by force of the stipulation in the lease which also permits the re-entry of the lessor. The estate created was as to the added term one upon condition. Shaw v. Hoffman, 25 Mich. 162,172; Hadley v. Bernero, 97 Mo. App. 314; Roberts v. McPherson, 62 N. J. Law, 165; Millan v. Kephart, 18 Grat. (Va.) 1; Sloan v. Cantrell, 5 Cold. ( Tenn.) 571. It is a provision which affects the use, value, and enjoyment of the premises. It would, therefore, as matter of law, inure to the benefit of the assignee of the reversion. I am satisfied, also, that it was the understanding of the parties to the lease that the right to rebuild was not a mere personal right of the lessor.

Whether the notice was prematurely given, and whether it was a sufficient notice, are questions which may properly he considered together. Assuming that the demise was for a term of three years, and, at the election of the lessees, for a further term, then, if the reason for 'terminating the tenancy was a desire to rebuild the premises, the notice to quit was not premature. The lease does not specify that the notice can be given only after the expiration of three years. On the contrary, it specifies that “on and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease.” Notice of an intention to re-enter at the expiration of three years is as much required, and is as much for the benefit of the lessees if they proposed to remain for an additional term, as is notice of an intention to re-enter at a later time. It is contended that the notice specifies that the owner desired to rebuild because it contains the words:

“This notice is given in accordance with a provision ■contained in a certain lease of said premises made and executed,” etc.

If we direct attention entirely to the stipulation referred to, it is clear, I think, that it refers, not to notice of an intention to re-enter alone, but to notice of an intention to rebuild. “Wishes to rebuild ” is, in this lease, equivalent in meaning to “intends to rebuild;” but the sufficiency of the notice must be determined, upon this point, by what appears in the lease and in the notice, and not by evidence aliunde. There are various stipulations in the lease, breach of which, by the lessees, would give the landlord the right to re-enter. To enforce such a right, a notice would be required. If it was not claimed that the lessees were in default, but, as was and is contended, that the. provision for the additional term was not binding upon, the assignee of the lessor, still a notice to quit, if not required, was at least a most reasonable precaution, to prevent the tenants holding over after the expiration of the term created by the lease. The notice which was given does not conclude the owner from resting his right to possession, as he does, upon the invalidity of the provision for a further term. His judgment rests upon the ruling, in the court below, that the provision in the lease for a further term is invalid, and that the tenants, if they held possession after the expiration of three years, would be tenants from month to month. If the lessees had submitted to the determination of the trial court, it could not be said that the owner had dispossessed them because he desired to rebuild; and if it had appeared that he had no such desire or intention — if he had immediately let the premises to others at an increased rental — they would have had no remedy. If, notwithstanding his notice, it. is open to the owner to deny, and I think it is, that he ever intended to rebuild or to notify the lessees to that effect, the notice is not the one required by the contract. The tenants were entitled to an unequivocal declaration of such intention before they could be held to be wrongfully in possession of the demised premises. We are referred to decisions, among them the Tennessee and the Virginia cases already noticed, and in the Matter of Coatsworth, 160 N. Y. 114, supposed to sustain the contention that the notice given is the notice required by the lease. Neither of them is authority for the proposition, and Millan v. Kephart and Sloan v. Cantrell, supra, seem to be precisely opposed to it.

The judgment of the circuit court and of the commissioner’s court should be reversed, with costs of all courts to appellants.

Grant and Brooke, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CITY OF DETROIT v. SNYDER.
    Municipal Corporations — Separation op Grades — Damages.
    The statute (chap. 102, 2 Comp. Laws) providing for the separation of the grades of streets and railroad crossings refers not only to those duly established by municipal authorities, but also to the grades of highways and streets in common use although not established.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted January 22, 1909.
    (Docket Nos. 57, 58.)
    Decided May 25, 1909.
    Petition by the city of Detroit for separation of grades in a certain street. George P. Snyder and the Union Transfer & Storage Company intervened claiming damages. There was judgment confirming the award of the jury, and petitioner brings error.
    Modified and affirmed.

      P. J. M. Hally, for appellant.

      Edmund Atkinson (Chamberlin, May, Denby & Webster, Beaumont, Smith & Harris and Choate & Webster, of counsel), for appellees.
   Grant, J.

The issues between the city of Detroit and two of the respondents, one Snyder and the Union Transfer and Storage Company, were left undetermined in the grade separation cases heretofore decided. City of Detroit v. Detroit United Railway, ante, 106; City of Detroit v. Michigan Cent. R. Co., ante, 121. These issues are presented in the latter ease.

1. The street in front of the land owned by these respondents had never been paved, and no grade had been established by the city. The respondents were allowed damages for injury to their abutting land, caused by depressing the street in front thereof. The city contends that the grade mentioned in the statute means an established grade; i. e., one established by the proper action on the part of the city authorities and duly recorded. The respondents contend that the grade means a change in the street from the levels as they then existed. Counsel for the city cite Cummings v. Dixon, 189 Mich. 269, and Wheat v. Van Tine, 149 Mich. 314. Those cases arose under the village incorporation act, which gave compensation only for changes in the grade of the street where the grade had once been established. It is significant that the legislature in that act used the term “established grade,” while in the act under consideration they used simply the word “grade.” The act applies equally to highways in the country and to streets in the city. Usually in the country there is no established grade. The grade of the street here in question had not been established by the formal action of the city authorities. It had been used for many years in the condition in which it was when these proceedings were commenced. This statute did not contemplate a grade to be made for the purpose of ordinary travel, unobstructed by railroad crossings or canals. It contemplated a change made necessary by the use of the streets for railroad crossings. Such improvements do not come within that rule of the common law which gives no compensation or damages. Schneider v. Detroit, 72 Mich. 240 ( 2 L. R. A. 54). We are therefore of the opinion that the term grade ” in this statute refers not alone to those duly established by engineers and municipalities, but also to the grades of highways and streets as in common use.

2. By direction of the court the jury awarded the Union Transfer & Storage Company $940.03, being an assessment for paving a part of Leavitt street. The briefs of counsel do not refer to the proceedings between it and the city by which this assessment was made against the Transfer & Storage Company. The direction of the court appears to be based upon the theory that under the contract between the city and the railroad companies the latter agreed to bear the expense of paving. We infer from the briefs of counsel that the city authorities and the railroad companies interpreted the contract not to include the pavement opposite the land of the Transfer & Storage Company. Under the city charter the original cost of paving is assessed to abutting owners. The charter provides for proceedings to be taken in the recorder’s court for determining these assessments for paving. We assume that those proceedings were taken and were regular. The storage company should have made its defense in those proceedings.

This item will therefore be eliminated from the award, which otherwise will stand affirmed.

Blair, C. J., and Montgomery, Moore, and McAl-VAY, JJ., concurred.


text:
    WALKER v. LANSING & SUBURBAN TRACTION CO.
    .1. Husband and Wipe — Husband’s Right to Wife’s Services— Emancipation — Evidence—Conolusiveness.
    In an action under the survival act for the negligent killing of plaintiff’s intestate, evidence that the husband had recovered in an action brought in his own name for the loss of her services is conclusive that he had not emancipated her and was entitled to the value of her services, and precluded a recovery in an action brought by the administrator for such services.
    2. Death — Survival of Actions — Statutes—Repeal—Effect.
    The repeal of Act No. 89, Pub. Acts 1905, after the filing of a declaration, did not affect the cause of action so as to entitle plaintiff to recover damages under the law as it existed prior ■to its enactment.
    Error to Ingham; Wiest, J.
    Submitted January 5, 1909.
    (Docket No. 2.)

    Decided May 25, 1909.
    Case by Charles H. Walker, administrator of the estate of Minnie Walker, deceased, against the Lansing & Suburban Traction Company. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Frank L. Dodge (Cyrenius P. Black, of counsel), for appellant.

      Sanford W. Ladd¡ for appellee.
    The court directed a verdict for the defendant at the close of the plaintiff’s statement of his case. It is stipulated that the judge made a correct statement of the facts in directing the verdict. So far as material, the statement is as follows: Plaintiff’s decedent was struck by a street car on February 11, 1905, and died May 17th following. After her death the husband brought an action to recover for the loss occasioned to him, the loss of her services from the day of her injury to the day of her death, and for medical attendance occasioned by reason of her injury and for the permanent loss of her services. He recovered a verdict and judgment, which judgment stands unreversed. This action is brought by her husband, as administrator, to recover the loss to her estate of her prospective earnings during her expectancy of life, and for the pain and suffering she experienced from the day of her injury to the day of her death.
    The action is based upon the survival act (3 Comp. Laws, § 10117), reading as follows:
    “In addition to the actions which survive by the common law, the following shall also survive; that is to say, actions of replevin, and trover, actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injury to persons, for damage done to real and personal estate, and actions to recover real estate where persons have been induced to part with the same through fraudulent representations and deceit.”
    The court held that the husband, by bringing his action to recover for loss of her services, had conclusively established the fact that she was not emancipated, that he was entitled to her services because of the relation of husband and wife, and that she could not have brought an action for the same services, or for her lessened ability to earn money.
    On May 3,1905, the legislature passed Act No. 89, Pub. Acts 1905, entitled:
    “An act to prescribe the measure of damages in actions for negligent injuries to persons where deaths result, and where the actions are prosecuted under the survival act, and to provide for the distribution of the amounts paid on account of such damages, without participation by creditors of the deceased.”
    That act did not include damages for pain and suffering, and repealed all other acts inconsistent with it. That act was given immediate effect. The court held that at the time of the death of Mrs. Walker, and at the commencement of this suit, there was no law in the State authorizing damages for pain, etc. ' This suit was brought April 13, 1907. On June 24, 1907, Act No. 89, Pub. Acts 1905, was repealed, and that act was also given immediate effect. (Act No. 217, Pub. Acts 1907.) The court therefore held that the plaintiff could not recover for pain and suffering because of the repeal of the survival act at the time this suit was brought.
   Grant, J.

{after stating the facts). 1. Mr. Walker, the administrator in this suit, brought suit against the defendant soon after the death of his wife, to recover his own personal damages. His declaration in the case was for “medical attendance, nursing, and other expenditures of money in caring for her from the. date of her injury to the date of her death, and the value of her services in the future, and permanent loss of services.” His counsel’s opening statement to the jury was for the same claim. Upon the trial, plaintiff was permitted to amend, substituting himself as administrator, thus seeking to recover under the survival act, rather than for his own personal loss, but evidently upon the assumption that his own loss could be included in his amended declaration. He recovered a judgment upon his amended declaration which was reversed (144 Mich. 685); this court holding that “the effect of the amendment was to permit Mr. Walker as an individual representing one cause of action to get out of court, and Mr. Walker as administrator representing an entirely different cause of action to get into court.” A new trial was ordered and recovery had upon the original declaration for his own personal loss. Subsequently this suit was instituted, and he now claims the right to recover such pecuniary damages as resulted to him from the loss of his wife after her death. The court correctly held that that suit was conclusive evidence that he had not emancipated his wife, and was entitled to the value of her services. No action survived for the loss of services which, belonged to her husband. Berger v. Jacobs, 21 Mich. 215; Tunnicliffe v. Railway Co., 102 Mich. 624 (32 L. R. A. 142). The action, if any survived, was one personal to her, and for damages to which she alone was entitled. The question now presented for determination was not raised in Nelson v. Railway Co., 104 Mich. 582.

2. Act No. 89, Pub. Acts 1905, was in force when plaintiff’s decedent died and at the time this suit was brought. It was repealed some time after this suit was brought, hut before it was tried. It was held in Davis v. Railroad Co., 147 Mich. 479, that its enactment did not affect cases then pending. We also held in Little v. Bousfield & Co., 154 Mich. 369, that its repeal did not affect cases then pending. See, also, Norblad v. Railway Co., (Mich.), 118 N. W. 595 (rehearing pending). Those cases are conclusive against the plaintiff’s contention that the repeal of Act No. 89 restored to the plaintiff the right to damages as the law existed prior to the enactment of Act No. 89.

The judgment is affirmed.

Blair, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    FULLER v. McCORMICK.
    Corporations — Appointment op Receivers — Equity Jurisdiction.
    Bill in equity examined, and held, to set out no ground for the appointment of a receiver to wind up the affairs of defendant corporation at the suit of a stockholder.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 11, 1909.
    (Docket No. 51.)
    Decided May 25, 1909.
    Bill by Horace J. Fuller against Hiram W. McCormick, Frank D. McCormick, and the Olympic for the appointment of a receiver for defendant corporation. From an order overruling a demurrer, defendants McCormick appeal.
    Reversed.

      N. H. Stewart and E. M. Irish, for complainant.

      A. J. Qrosbeck, for appellants.
    Complainant, a minority stockholder in, and creditor of, a corporation named “The Olympic,” organized under Act No. 232 of the Public Acts of 1903, filed his bill, in which he charges, among other things, that the corporation is insolvent, and in which he prays that a receiver be appointed to take charge of and to close its affairs. The bill purports to set out inducements to complainant to embark in the business and in the corporation, a history of the corporation and of the dealings of the defendant stockholders with the corporation and with complainant, and expressly refers to chapter 269, 3 Comp. Laws, as affording sanction for the proceeding and the right to relief. The other stockholders and the corporation are made defendants. The defendant stockholders demurred to the bill upon the grounds that:

      (a) Complainant is not a judgment creditor of either defendant.
    (b) Chapter 289, 3 Comp. Laws, does not confer jurisdiction in the case made by the bill.
    (c) A court of equity has no jurisdiction.

      (d) The bill states no case for equitable relief against defendants.
    (e) The bill is multifarious.
    From an order overruling the demurrer, defendants McCormick have appealed.
    As complainant asserts in his brief that he filed the bill as a stockholder, and not as a creditor (see McKee v. Garbage Co., 140 Mich. 497;, Smith v. Manufacturing Co., 119 Mich. 11), the question presented is whether the bill states a case for equitable interference at the suit of a stockholder. To quote from the brief for complainant:
    “The question in this case is simply this: Whether two men can induce another to put his money into a corporation, and allow the corporation to handle property that he is interested in, and that after such persons have become officers of the corporation they can refuse to pay their stock subscriptions and abandon the whole business.”
    Complainant’s grievances arising out of the conduct of defendants in inducing him to embark in the corporate undertaking, and in inducing him to employ his property and money in reliance upon promises to pay for stock, must be separated from his grievances as a stockholder. For the purposes of this case, the corporation is to be regarded as insolvent. It appears that', of the 1,000 shares of capital stock, defendants McCormick hold 667 shares, that they with complainant are the directors, that Hiram W. McCormick is president, Frank D. McCormick is vice president and secretary, and complainant is treasurer. The articles of association recite that $6,000, in cash, has been paid in, and that nothing has been paid in in other property. But one meeting of stockholders and directors was ever held, which was on May 1, 1907. Defendants have paid in but $750 each, in cash, and have together contributed for the equipment of a small theater personal property worth no more than $500. The corporation has rented for five years from September 1, 1907, property at an annual rental of $2,000, agreeing also to reconstruct the premises. Complainant has rented in his own name, but for the corporation, certain premises for five years, at a monthly rental of $112.50, has expended in refitting and remodeling the premises $1,500, and has opened an amusement place, which, up to December 24, 1907, had yielded no net return. He has paid out some $6,000. He has advised his co-directors of the situation, and—
    “At these respective interviews, said defendants and each of them would promise to make good and fix their part of the obligations up in a few days, and promised to meet your orator in Kalamazoo for that purpose, and your orator would return home with such agreement and understanding ; but at no time did said defendants or either of them come to Kalamazoo, and finally your orator became advised that they nor either of them could pay for their stock subscriptions, or go on with their part of the enterprise and business entered into, as hereinbefore shown, with your orator, and said defendants so notified your orator. And your orator shows and avers that said defendants and each of them have wholly deserted and abandoned said company and your orator in the same, and have failed, neglected, and refused, and still fail, neglect, and refuse, to make good their and each of their part in the premises, and because of such failure, neglect, and refusal on the part of said defendants and each of them to keep their part to the said agreement with your orator, your orator has suffered great pecuniary loss, and been damaged to a very large extent, to wit, to the extent of $15,000, or thereabouts.”
    There are other creditors of the corporation.
    “Your orator further shows that the said corporation, The Olympic, is now in such a situation financially that its property is insufficient to discharge its debts, and that said corporation is insolvent, and that, as herein shown, your orator is a creditor of such corporation in the amounts in this, his said bill, stated, and that in and by his said bill he expressly charges that the other two defendants, Hiram W. McCormick and Frank D. McCormick, are liable for unpaid stock subscriptions to said corporation, The Olympic, and for other sums of money in damages, as in this bill set forth.”
    Alleging fear that defendants will dispose of certain fixtures and penny slot machines, an injunction restraining them from in any way disposing of the same is asked for.
   Ostrander, J.

(after stating the facts). We are referred by counsel for complainant to no authority which supports his right to maintain this bill. Clearly Hawes v. Contra Costa Waterworks Co., 104 U. S. 450, is not such an authority. Nor is the jurisdiction invoked conferred by 3 Comp. Laws, §§ 9757, 9759; nor by 3 Comp. Laws, § 8545. The defendant stockholders are charged with no mismanagement of corporate funds. They have not, as steckholders or as directors, acquired money or property or lost or wasted assets of the corporation. If the court were to exercise the visitatorial powers conferred by 3 Comp. Laws, § 9757, it would not reach the matter complained about, which is that the defendant stockholders have not paid for their stock. The insolvency of the company is not ground for interference by a stockholder to wind up its affairs. Heap v. Manufacturing Co., 97 Mich. 147.

The decree overruling the demurrer is reversed, with costs of both courts, and a decree will be entered here sustaining the demurrer. The record will be remanded, and complainant will have 30 days after remittitur to amend his bill if he desires so to do.

Grant, Montgomery, Hooker, and Moore, JJ., concurred. .


author: Montgomery, J.

text:
    GAAR, SCOTT & CO. v. MEYER.
    1, Sales — Guaranties—Evidence—Sufficiency.
    In an action of replevin for certain chattels, pledged for the payment of a clover huller, sold to defendant by plaintiff’s agent, a written warranty which contained a statement that no person, unless authorized in writing by the company, had any right to change its terms, defendant sought to establish that he had rescinded the contract for breach of an additional guaranty, waiving the terms of thb original warranty and guaranteeing the huller to do satisfactory work, and that said mortgage was void. The trial court treated the additional guaranty as established and submitted the case to the jury upon the single question of whether defendant was, or should have been, reasonably satisfied, after having given plaintiff an opportunity to remedy any defect in the huller. Held, that the evidence did not conclusively establish the making of the additional guaranty by plaintiff, and that such question should have been submitted to the jury.
    2. Same — Pleading!.
    Under defendant’s plea, no proof was necessary to show that the original contract was ratified by plaintiff.
    Error to Alpena, Emerick, J.
    Submitted January 13, 1909.
    (Docket No. 60.)
    Decided May 25, 1909.
    Replevin by Gaar, Scott & Company against Hans Meyer. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Thomas, Cummings & Nichols, for appellant.

      I. 8. Canfield, for appellee.
   Montgomery, J.

This is an action of replevin to recover two horses and a hay press. The plaintiff’s right is rested upon a chattel mortgage executed by the defendant to the plaintiff given in consideration for the purchase price of a clover huller manufactured by the plaintiff. The defendant assumed to rescind the contract under which the clover huller was purchased, and claims that the chattel mortgage was voided by this.

The precise issue made by the plea is important. The plea sets up that the huller was purchased on or about the 8th of May, 1906, on a.contract in writing for the price of $625, and was sold to the defendant under a certain warranty, which will be more fully set out hereafter; and, secondly, that after the date contained in the warranty as herein stated the plaintiff made another and additional warranty in writing, as follows:

“ In regard to the guarantee on the huller, we hereby guarantee the huller to do satisfactory work in every way and waive the guarantee clause in the order. In case the huller fails to do satisfactory work, we ask you to give us notice and we will give it our immediate attention, and in case we fail to make it do satisfactory work, we hereby guarantee to take the same off your hands and refund all money, machinery or papers given in settlement for same.”

At the close of the testimony, the circuit judge, treating the second claim of warranty as established, submitted the case to the jury upon the single question of whether the defendant was satisfied with the manner in which the huller worked, or should have been satisfied, as a reasonable man, after having given the plaintiff reasonable opportunity to remedy any defect that there was in the huller. The jury found a verdict for the defendant, and the plaintiff brings error.

The grounds of error urged are that the alleged warranty of July 2d was not established, and whether it was depends upon the question of whether there was a waiver of the provisions of the original order or contract. The original order contained this provision:

“As a condition hereof, it is fully understood and agreed that this order is given subject to the acceptance of Gaar, Scott & Co., and that no promises, whether of agent or employe or attorney, in respect to the payments, security, or to the working or guarantee of the machinery named, will be considered binding unless made in writing and ratified by the home office.”

Appended to this contract was a warranty containing this provision:

“Caution: No person, unless authorized in writing from the home office, at Richmond, Indiana, by an officer of Gaar, Scott & Co., has any authority to add to, abridge, or change this warranty, in any manner, and to do so will render it void and of noneffect.”

This is followed by a warranty that each article of machinery furnished on this order is warranted to be made of good materials, well constructed, and, with proper use and management, to do as good work as any other of the same size and rated capacity made for the same purpose. It was further provided that, if any part of the machinery could not be made to fill the warranty, that part which failed should be immediately returned to the place where it was received, and written notice of said return given to the company at its home office, with the option of the company either to furnish another machine or part in place of the machine or part so returned, or return the money and notes which should have been given for the same.

It appeared by the testimony that Mr. E. A. Kratz is an agent of the plaintiff and manager of a branch house at Lansing, Mich.; that after the execution of the original order, and after the machinery had been shipped to Lewiston to Gaar, Scott & Co., the plaintiff, with a bill of lading in the hands of Mr. Kneeland, the banker at Lewis-ton, the defendant appeared there, executed a mortgage and certain notes, took the machinery out of the cars, and stored it with a Mr. Denning, who was the temporary agent of the plaintiff at Lewiston. Afterwards the defendant discovered that the note had been made to bear interest from date, whereas that it was agreed that it should bear interest from the 1st of August, and on June 30th he wrote to Gaar, Scott & Co. at Lansing calling attention to this fact and a mistake in the mortgage, and saying:

“ Since you have made these mistakes, I will ask you to make that guaranty that you made me in writing, and send it with the new mortgage which is made as agreed when you were here.”

To this a reply, dated Lansing, Mich., July 2d, and signed “Gaar, Scott & Co.,” was sent to the defendant, in which the so-called second guaranty was given. It was stated that the notes had been forwarded to the company at Richmond, but adding:

“We are instructing them today to change the interest clause making the notes bear interest from August first.”

And further:

“ It will not be necessary for us to draw up a new mortgage, for you can return that one to us and we will change the interest clause as agreed.”

The question presented is whether this guaranty was conclusively shown to have been made by the home office. We think it cannot be said that it was. It was open to inference, at least, by the jury, if,-indeed, the circumstances are not conclusive upon the point, that this guaranty of July 2d was made by Mr. Kratz, assuming to act for the company, and without authority from the home office. The period elapsing from the date of the plaintiff’s letter written at Big Rock, Mich., and the reply of Gaar, Scott & Co. from Lansing, was hardly adequate to have enabled the agent at Lansing to communicate with the home office before assuming to make the guaranty in question. It was, at most, a question for the jury as to whether such authority existed, and we have not had our attention called to anything in the record indicating that such authority in writing was ever given, or that the guaranty was ratified by the home office. Under these circumstances, the case falls within those cited by plaintiff’s counsel. McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445; Wood Mowing & Reaping Ma chine Co. v. Crow, 70 Iowa, 340; Furneaux v. Esterly, 36 Kan. 539.

It is suggested in the memorandum brief filed at the hearing by the defendant that it does not appear when the original contract between the parties was accepted by the home office. It is true that there was no proof upon this question, but unfortunately for this contention, the plea of the defendant must be accepted as true, and this sets up that the huller was purchased of the plaintiff on the 8th of May, 1906, and that the so-called second guaranty was made on the 2d day of July, 1906. "We think it was error for the court to treat this second guaranty as established.

Judgment will be reversed, and a new trial ordered.

Blair, C. J., and Grant, Ostrander, and McAlvay, JJ., concurred.


text:
    STEVENS v. OTTAWA PROBATE JUDGE.

    1. Executors and Administrators — Accounting.
    When an executor or administrator refuses to file an account, it is proper for those interested to ascertain, so far as they . can, the amount of property that came into his hands, and to state an account for him.
    2. Same — Accounting—Probate Courts — Matters Considered —Propriety oe Decree.
    Where, on petition of certain legatees against an executor for his removal and for an accounting, the answer filed raised the question whether or not the execution of certain “powers ■ and authorizations” was a settlement of the estate as between the legatees, and that if he was liable to them for an accounting it was as trustee and not as executor, it was proper for the court to take testimony upon all the questions raised and settle them in one decree.
    3. Same — Probate Appeals — Bond—Amount.
    Where, on appeal from the order of the probate court for an accounting, it appears from said “power and authorizations” that money of the estate had been used to pay liabilities of certain legatees, it was error, in fixing the amount of the appeal bond, to include sums owing to such legatees and their heirs.
    4. Courts — Reviewing Decisions of Courts of Sister States.
    This court cannot sit in review upon the decrees of the courts of a sister State having exclusive jurisdiction over the person and the subject-matter of a suit.
    5. Appeal and Error — Probate Appeals — Statutes.
    Under Act No. 92, Pub. Acts 1901,. amending section 670, 1 Comp. Laws, the determination of the amount of a bond on an appeal from an order of the probate court, is committed solely to the discretion of said court; this court only determining questions of law upon an application to set aside the order so made.
    Certiorari to Ottawa; Padgham, J.
    Submitted January 15, 1909.
    (Docket No. 87.)
    Decided May 25, 1909.
    Mandamus by Frederick W. Stevens, guardian ad litem of Edward P. Ferry, an incompetent, to compel Edward P. Kirby, probate judge of Ottawa county, to set aside an order fixing the amount of an appeal bond, and to accept a bond tendered. There was an order denying the writ, and the relator brings certiorari.
    Modified and affirmed.

      Kingsley & Wicks and Taggart, Denison & Wilson, for relator.

      Butterfield & Keeney and Walter I. Lillie, for respondent.
    Rev. William M. Ferry died testate December 30, 1867, at Grand Haven, Mich. He made a number of specific bequests, and divided the residuum of his property into four shares, one share to each son, and the fourth share to his three daughters in equal parts. His son Edward P. Perry was made executor, and was given 10 years or more, at his discretion, to convert the estate into condition for distribution. The testator’s property was largely composed of partnership interests or joint interests with his son Thomas W. Ferry. The name of the partnership was Ferry & Son, engaged in the lumbering •business. After his death the business was continued by the executor and Thomas W. under the names of Ferry & Bro., Ferry, Dowling & Co., and other firm or corporate names.
    The executor filed two annual accounts — one March 29, 1869, the other March 10, 1870. No account was after-wards filed by him. The property was appraised at 1345,000. It is stated by counsel for appellant that a considerable amount of the funds of the estate belonging to the residuary legatees was continued and put at risk in these different business enterprises by Edward P. and Thomas W. Ferry. Matters appear to have continued in this condition until the year 1883, when financial disaster befell the business affairs of Edward and Thomas. In 1878 Edward P. Ferry, the executor, removed to Utah, and made that place his residence, and engaged in mining operations. In 1893 he became mentally incompetent. In 1901 he was adjudged incompetent by the proper court in Utah, and his sons, W. Mont, and Edward S., duly appointed his guardians. They have been ever since, and still are, his guardians, managing the estate under the direction of the proper court of that State. They have filed in that court semi-annual reports showing receipts, expenditures, and investments, which have been approved by the court. In 1883 the residuary legatees executed what are called “powers and authorizations.” Each executed a separate power of attorney and also the paper called “authorization.” By the power of attorney the undersigned “made and appointed Edward P. Ferry his true and lawful attorney to make, execute, and deliver any instruments in writing, conveyances, proxies, or other papers, to bargain, sell, hypothecate and convey any property, real or personal, of which I am now possessed, or of which I may become possessed during the life of this instrument,” etc. The authorization accompanying the above power of attorney reads as follows:
    “Edward P. Eerry, executor of the last will and testament of William M. Ferry and Amanda W. Ferry. - After full consideration and mutual agreement you are hereby directed and authorized, acting as my attorney, to use any amounts that may be due me from the estates above mentioned,- of which you are executor by the wills, or in your judgment and discretion to mortgage and hypothecate any residuary amounts that are to become due, or may in time be due to me, or may be supposed so to become due, at some future time, for the purpose of raising money thereon, or of securing indebtedness already contracted by the firm of Ferry & Brother, of Grand Haven, Mich., or by Thomas W. Ferry, or by Edward P. Ferry of the same place, or either of them, whether said debts be direct or indirect, or for which any or either of the parties named or all of them, may be immediately or remotely liable. At the same time you will keep a true and just account of such debts, or liabilities thus paid, or secured, as well, also, as of the amounts used, to the end that hereafter the said amounts may be properly adjusted.”
    Under thesé papers and under the will, the executor or the executor and his partner and brother Thomas remained in possession of the property of the estate, and it was largely used in the payment of their debts. Matters rested without any action on the part of the executor to render an account to his co-legatees or on the part of any of his co-legatees to bring him to an accounting until June 26, 1903, when the living co-legatees, and the heirs of those deceased, filed a petition for the removal of Edward P. Ferry as executor and for an accounting by said executor. One David D. Erwin was duly appointed guardian ad litem and next friend for the executor, Edward P. Ferry, a conceded mentally incompetent. An answer was duly filed by said executor through his said guardian ad litem and next friend. Coupled with this answer was a cross-petition setting forth the “powers and authorizations ” above referred to, alleging that they constituted a settlement of said estate as between the executor and the residuary legatees; that the property had been disposed of by said executor pursuant to those “powers and authorizations;” that such disposal had been acquiesced in by all the residuary legatees; that, if said Edward P. Ferry was liable to them, it was not as executor, but as a trustee under the “powers and authorizationsand that a court of equity alone had jurisdiction to fix and determine his liability, and prayed for an order declaring the estate to have been settled, and the executor and his bond discharged from liability. To this cross-petition the original petitioners answered, setting forth, as they claim, that the assets of the estate have been used by said executor and invested in various properties in Utah. Testimony was taken both as to what was done under the “powers and authorizations ” and also as to the amount of money in the hands of the executor derived from the estate of his testator.
    On October 30, 1905, the probate court made an order which did not in terms expressly determine the question of the effect of the execution of the “powers and authorizations,” but did direct that the executor file statements of account so that the court might have more light before determining the issues. To this order the respondent made answer again setting forth, in substance, the statements of his first answer and cross-petition, and asking a determination of the question whether the executor should be ordered to account at all. Petitioners filed an answer to this petition. The respondent did not comply with that order, and filed no statement of account; Subsequently the petitioners filed another petition, asking permission to take further proofs in the matter of account. On December 8, 1906, leave to take further proofs was granted. Such proofs were taken, and on December 31, 190?, the probate court entered an order covering 10 pages of the printed record, and finding that the executor, Edward P. Eerry, was indebted as executor in the sum of $1,220,473.44. Of this amount about two-thirds was interest on the amount found to have been unaccounted for and still in the hands of the executor. Meanwhile the present guardian ad litem and next friend, Frederick W. Stevens, had been substituted in place of Mr. Erwin. The respondent gave notice of appeal. As a condition to take such appeal, the probate judge required the respondent to give a bond in the sum of $860,000, being about the amount that would under the order be due to the petitioners. The respondent being a legatee, his share was deducted from the amount of the bond. The respondent tendered a bond of $10,000, claiming that he should give a bond only amply sufficient to cover the costs of the appeal. The respondent then filed his petition for mandamus in the circuit court for the county of Ottawa, asking that the order of the probate court be set aside, and that the probate court be required to accept the bond tendered by the respondent. The answer to it by the probate judge covers 62 pages of the printed record. The circuit judge refused the mandamus. The case is now before us for review upon the writ of certiorari. The answer of the circuit judge covers 14 pages of the printed record.
    The statute governing appeals from probate courts is Act No. 92, Pub. Acts 1901, and reads as follows:
    “Sec. 670. The party appealing shall, at the time of filing notice thereof, file with the judge of probate a bond to the adverse party, in such penalty and with such surety or sureties as the judge of probate shall approve, conditioned for the diligent prosecution of such appeal and the payment of all such damages and costs as shall be awarded against him, in case he shall fail to obtain a reversal of the decision so appealed from. And in case any person appeals from the allowance and findings of the court upon the examination of his account as executor, administrator, guardian or trustee, the court may, in its discretion, fix the penalty of the bond in such sum as will cover the amount found due by the probate court upon examination of such account, in which case the bond and sureties thereon shall be liable to the amount of such bond for the amount found due by the probate court or the appellate court upon the final determination of such appeal, including the costs and damages awarded by such appellate court.”
    The learned counsel for respondent contend:
    (1) That the probate court did not possess the power to require such a bond mainly because there had been no such “examination of account rendered ” by the executor as the statute contemplates. That he had appeared only by guardian ad litem and next friend, and protested against any liability to account.

      (2) That the requirement of such a bond was an abuse of discretion: (a) Because it is impossible to give it and the requirement prevents an appeal, (b) The laches, delay, and acquiescence of the petitioners and their ancestors make the present requirement of the enormous bond inequitable and harsh, (c) That the order of December 31, 1907, refusing to pass directly upon the question of respondent’s liability to account, has prevented him from taking an appeal upon that question without giving an impossible bond, (d) That all the respondent’s property is in another State and under the custody of a court of competent jurisdiction in that State, and that it is an abuse of discretion for the probate court to require all respondent’s property to be taken from that court and brought into this court, (e) That the question of jurisdiction or power of the court to make any such order is so doubtful that it is an abuse of discretion to require a prohibitory bond before permitting a review.

       Rehearing pending.

   Grant, J.

(after stating the facts). We have not before us the great volume of testimony, amounting, it is stated, to about 9,000 pages, or the account as stated by the accountant for the petitioners, made up from the evidence produced in their behalf. The merits of the accounting are therefore not before us. Neither have we before us the testimony taken in regard to the “powers and authorizations,” and what was done under them, except the fact that shortly after they were executed Edward P. Ferry, to whom the powers of attorney and authorizations were given, executed three trust deeds or mortgages for the benefit of the creditors of the parties named in the authorizations. These trust deeds or mortgages were properly recorded. The debts of the parties named therein were very large. It seems evident that the interest of the petitioners in the estate of William M. Ferry was devoted to the purposes mentioned in said authorizations, and with the full knowledge and assent of the parties thereto.

The record consists of two printed volumes of considerable size, and one small volume containing the return of the circuit judge. The first volume consists of petitions, cross-petitions, answers to petitions, answers to cross-petitions, petition to the circuit court for the writ of mandamus, the return of the judge of probate thereto, and the orders of the probate court during the progress of the proceedings. The second volume consists of the proceedings in the court of Utah in the estate of Edward P. Ferry, an incompetent person, showing the accounts rendered, their allowance by the court, and the intervention of the petitioners here by a petition there charging extravagance, etc., on the part of the guardians of Mr. Ferry, and asking for their removal. In this proceeding the petitioners here were defeated in the court of Utah, and no appeal was taken from the decision of that court. The probate court found that there were errors, mistakes, and frauds in the two annual accounts rendered by the executor, which had been allowed by the then probate court, and corrects them. The amount found due includes interest upon the amount of the estate found to be in the hands of the executor when appointed from the date of his appointment to the date of the decree. It allows nothing for his commissions, fees, and expenses except the compensation allowed in his two annual accounts. The order of the probate court does not state the amount of the estate found to be in his hands and which it is charged he misappropriated and converted to his own use. The judge of probate in his return to the circuit court stated that the balance due from the executor, exclusive of interest, was about $420,000 — a sum considerably larger than that fixed by the inventory of the estate. Taking this as the amount of the property of the estate and deducting it from the total amount due, it leaves $800,473 as interest. Counsel for the executor, through his guardians and his guardian ad litem and next friend, contend that the statute applies only to an account rendered by the executor, and not to the extraordinary circumstances of this case, and that no such account has been rendered. We think counsel are in error upon this point. If an executor or administrator refuses to file an account, it is proper for those interested to ascertain, so far as they can, the amount of property that came into his hands, and to state an account for him.

The position of the executor has been, and still is, that the execution of the “powers and authorizations” was a settlement of the estate so far as the residuary legatees were concered, and that, if the petitioners were in position to call Mr. Edward P. Ferry to an accounting, it is as trustee under those documents, and not as executor. He, therefore, through his representatives, declined to render an account. They asked to have that question first determined by the probate court for the reason that there would be no occasion for an accounting as executor if their position in this respect should be sustained. It would have been entirely proper for the judge of probate to adopt that course, but he was under no legal obligation to do so. While the judge of probate did not expressly decide this question, yet he did so by clear implication; otherwise he would not have proceeded to an accounting.

Three questions were involved in the original petition and answer: (l) The removal of the executor; (2) his liability to an account; and (3) an accounting. It was entirely proper for the court to take testimony upon these questions, and decide them by one decree. Compliance with the order of the probate court to file an account would not have waived the other defense that the estate had been settled as between the legatees, and no accounting could be called for by them. While it appears to us upon the proceedings in the case now before ús that it would have been wise for the executor to have complied with the order of the court as to accounting, we must consider that the executor has all through been represented by well-known and competent attorneys in this State of good reputation, and that they in good faith advised the course pursued.

We think the probate court was in error in including in this bond the amount which would be due to the petitioners as heirs of Thomas W. Ferry, deceased. The “powers and authorizations ” executed by the petitioners were for his benefit, as well as that of Edward P. Ferry. In so far as Edward P. Ferry used the property of the estate to pay the liabilities of Thomas W. Ferry, that action was binding upon him and his heirs. It requires no argument to prove that, if he were living, he would not be heard to say to his brother: ‘ ‘ Give me my share of the estate, which I have already had.” Thomas W. Ferry’s estate is not settled. His executor or administrator is not a party to this litigation. The amount to which he would be entitled as heir should have been deducted from the amount of the bond.

A large part of the record and of the briefs of counsel is devoted to the administration of the estate of Edward P. Ferry, an incompetent, in Utah by his two sons, his guardians. It is urged that the records there show an unjustifiable and extravagant expenditure in the management of that estate by his guardians; the object being to show that the estate of the executor may be impoverished. While the compensation and other expenses allowed the guardians by the Utah court, a court corresponding in jurisdiction to the circuit courts of this State, may seem large, yet they were allowed by a court having exclusive control thereof. This court cannot sit in review upon the. decrees of the courts of a sister State having exclusive jurisdiction over the person and the subject-matter of a suit. The petitioners here applied to the court there, had a hearing, and were defeated. We must assume that the court of Utah will take proper care of the estate, and see that it is not dissipated. The proceedings in the court of Utah, and the allowance there made, seem to have had a good deal of influence with the probate court in fixing the amount of this bond. We think they are not entitled to consideration. For 35 years the petitioners, legatees under the will of William M. Ferry, took no steps whatever to compel an accounting or to procure the removal of the executor notwithstanding they knew that for many years he was absolutely incompetent to manage any business, and was broken down physically, and, to some extent at least, mentally, soon after his financial troubles in 1883. Then, too, the will gave the executor 10 years or more, if necessary, to put the estate in condition for distribution. It is evident from the record now before us that the testator contemplated that the businesses in which he was interested should continue. What caused the failure we have no means now of knowing. Executors and trustees are not generally liable for interest on trust funds in their hands. It may be a doubtful question whether the executor is liable for interest when legatees have authorized him to use their funds for the purposes mentioned in the “powers and authorizations.” Upon this we now intimate no opinion. It may furnish a good reason why a bond prohibitive of an appeal should not be required. A silence of 35 years, or 20 years after the execution of the “powers and authorizations” unexcused, with the knowledge of what was done thereunder, may furnish a reason why interest should not be charged, even if the executor is liable to an accounting. But these are questions which have been passed upon by the probate court and determined against the contention of the relator. The legislature has seen fit to commit to the discretion of that court alone the fixing of the bond in such cases. The appellate court can only determine questions of law upon an application to set aside the order so made. Power is not given to this court to review that discretion, even though the bond required should be prohibitive of an appeal.

It follows that the order of the probate judge must be so modified as to require a bond in one-half the amount found by that court to be due from the executor, viz., one-half of $1,220,473.44. The costs of this appeal will abide the final hearing upon the merits should an appeal be made.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    LOGAN v. AGRICULTURAL SOCIETY OF LENAWEE COUNTY.
    1. Pleadings — Personal Injuries — Negligence.
    In an action for personal injuries, caused by a defective plank in a grandstand which had been erected by the defendant for the purpose of allowing its patrons to witness a horse race, a declaration which alleged defendant’s duty to use care in its construction, the existence of certain defects, defendant’s duty to make proper inspection, and set forth the facts from > which a violation of such duties might be inferred, in the absence of a demurrer and under plea of the general issue, is sufficient to state a cause of action; an allegation that defendant would have discovered the defect if it had performed its duty of inspection clearly implying a neglect of duty owing to plaintiff.
    2. Agricultural Societies — Negligence—Liability.
    An agricultural society, organized under section 5958 et seq., 2 Comp. Laws, is not a charitable or eleemosynary institution, and is under the same obligation to exercise due care in the erection and maintenance of places to which it invites its patrons as is a private corporation.
    3. Damages — Personal Injuries — Permitting Personal Examination — Discretion of Trial Court.
    The matter of permitting defendant’s physician to make a physical examination of plaintiff, in an action for personal injuries, claimed to have been caused by defendant’s negligence, rests in the sound discretion of the trial court, and a ruling denying such application will not be disturbed except for an abuse thereof.
    4. Same — Instructions.
    In such action, it appeared that in reply to such application plaintiff’s counsel produced an affidavit of her physician stating that she was confined to her bed as a result of the injury, that she was weak and extremely nervous, and .that in his judgment the examination prayed for would be disastrous, and would have a tendency to increase her nervous disorder and prevent her recovery; that a physician, on behalf of the defendant, was present when plaintiff’s testimony was taken by deposition; that defendant’s other physician examined plaintiff at the time of the injury; and the court instructed the jury if they believed that defendant’s physicians were not given a fair and reasonable opportunity to see and examine plaintiff to ascertain the extent of her injuries, they would have a right to infer that such investigation would not be favorable to plaintiff’s claim. Held, it was not an abuse of judicial discretion to deny the application.
    5. Evidence — Competency.
    In such action it was competent to permit plaintiff’s physician to testify that in his opinion plaintiff’s injury was attributable to the accident complained of.
    6. Agricultural Societies — Use of Premises — Duty to Inspect —Care Required — Question for Jury.
    The duty of defendant to its patrons was not only to employ competent inspectors to examine the premises to which it invited its patrons, but also to see that such inspectors did their duty; and where, opposed to the testimony tending to establish such inspection, were the facts that a plank broke, that the ends were so rotten that they pulled away from the nails, and the rottenness of the plank was apparent from underneath, the question of whether there was a sufficiently careful inspection was properly submitted to the jury.
    7. Same.
    It was not error to exclude the testimony of defendant’s president to the effect that the people managing the society were farmers; since the same degree of care is required of them as of other classes of persons.

      8. Appeal and Error — Misconduct or Court and Counsel.
    The action of the trial court in permitting plaintiff’s counsel to call defendant’s counsel as a witness and to afterwards take the stand and contradict such testimony, and in stating on the objection of defendant’s counsel to such ruling that the court could not indulge any criticism on the ruling, while improper, did not justify a reversal.
    Error to Jackson; Parkinson, J.
    Submitted February 23, 1909.
    (Docket No. 32.)
    Decided May 25, 1909.
    Case by Anna E. Logan against the Agricultural Society of Lenawee county for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      Charles A. Golden and John 0. Zahel, for appellee.
    The defendant is an agricultural society, organized under the laws of this State in 1878. Section 5953 et seq., 2 Comp. Laws. It held an annual fair, for which it charged an admission. Horse racing was one of the prominent features of the fair, and was very popular. In order to enable its patrons to witness the races it erected a grandstand and bleachers. Its charge for a seat upon the bleachers was 10 cents. The bleachers were constructed in the usual manner. The seats consisted of planks an inch and a half thick and a foot wide, rising in tiers, and about a foot apart. Plaintiff, her husband, and child paid for seats, the plaintiff and her child sitting on the fourth or fifth seat from the ground. She sat with her feet upon the seat in front of her. Her husband sat in a seat behind her. While seated, the plank on which she was sitting broke, and she fell to the ground, striking upon her back. She claims, and gave evidence tending to show, that she was seriously injured. She claims that her fall was due to the negligence of the defendant, and recovered a verdict and judgment for $1,500.
    The declaration alleges the duty, on the part of the defendant, to furnish a seat so constructed and of such material as to insure reasonable safety to plaintiff and those occupying such seats. It alleges that defendant was negligent, in that—
    “The defendant did then and there furnish and provide to said plaintiff a seat elevated six feet and upwards from the ground, which seat consisted of a pine plank which had become rotten and decayed, which rotten and decayed condition of said plank was plainly apparent from the condition of the under surface of said plank, and would have been known to the defendant if it had made an inspection thereof, as was its duty, but which rotten and decayed condition of said plank was not apparent from the condition of the upper surface of said plank, and was unknown to said plaintiff.”
    Plaintiff gave evidence tending to show that there was a knot in this plank at the place where it broke; that the plank was rotten on the underside; that it was so rotten that, where it was nailed to the risers, the plank pulled out of the nails, leaving the nails fast in the risers; that after it broke, one end of the plank was upon the ground, and the other end was hanging at the side. According to the defendant’s evidence, both ends were hanging to the risers after it broke.
   Grant, J.

{after' stating the facts). There are 57 assignments of error, which are referred to, and some argued, in the defendant’s brief under 22 heads. We will discuss and determine those which we deem of sufficient importance.

1. Does the declaration state a cause of action ? Counsel insist that it does not state, with accuracy and certainty, any duty defendant owed to the plaintiff. While the pleader might have alleged the duty, and the neglect of duty, more accurately and specifically, yet, in the absence of a demurrer, and in the presence of a plea of the general issue, we think the declaration stated a case. It alleges the duty to exercise proper care in construction. It alleges the defects. It alleges its duty to inspect. It sets forth the facts from which the violation of this duty may be properly inferred. An allegation that the defendant would have seen the defect if it had performed its duty of inspection clearly implies that the duty was neglected.

2. The defendant is not a charitable or eleemosynary institution. While its apparent purpose is the advancement of agriculture, and it is not designed to make money for its stockholders, its purpose is to make money for carrying on its business; and, when it invites the public to seats upon platforms which it has constructed to enable its patrons to witness games, sports, and races, it is under the same obligation to exercise due care in the erection and maintenance of such places as though it were a private corporation. The case does, not fall within the rule of Downes v. Harper Hospital, 101 Mich. 555 (25 L. R. A. 602), and Pepke v. Grace Hospital, 130 Mich. 493, but within Scott v. University Athletic Ass’n, 152 Mich. 684 (17 L. R. A. [N. S.] 234), and Dunn v. Agricultural Society, 46 Ohio St. 93 (1 L. R. A. 754).

3. Error is assigned upon the refusal of the court to order an examination of the plaintiff by the defendant’s physicians. Plaintiff claimed an injury to her spine and sexual organs. A notice was given to take the deposition of the plaintiff at her home, on the ground that she was unable to attend the trial. After that notice was served, defendant filed a petition asking for an order that two physicians named be permitted to examine the plaintiff. In reply to this petition, the affidavit of her physician was produced to the effect that she was confined to her bed as a result of the injury, that she was weak and extremely nervous, and that in his judgment the physical examination prayed for in the petition would be disastrous, and would have a tendency to greatly increase her nerv-1 ous disorder and prevent her recovery. The court filed an opinion denying the application on the strength of the affidavit of her physician. These examinations rest in the sound discretion of the trial court. Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641); Strudgeon v. Village of Band Beach, 107 Mich. 496; 14 Cyc. p. 365. We do not think the court abused his discretion, especially in view of the fact that a physician, on behalf of the defendant, was present when her deposition was taken, and testified upon the trial, and that defendant’s other physician examined her at the time of the injury. All the circumstances connected with the refusal were in evidence, and the court, upon this point, instructed the jury as follows:

“If you find that the defendant’s doctors were not given a fair and reasonable opportunity, both or one of them, to examine or see plaintiff, and to make a modest and reasonable investigation for the purpose — and in good faith — of making an examination for the purpose of ascertaining her condition of health and the character and extent of her injuries, if any, then you should take this as against the plaintiff, and have the right to infer that such investigation would not be favorable to her claim in this case. * * * Furthermore, you should consider carefully all the testimony in the case upon that subject, and say whether she has refused at all times or not, and whether those refusals have been reasonable or not. And if not, you have a right to consider it as a circumstance against her to that extent; but, if her reasons seem to be good and adequate in your judgment for doing as she has done under the circumstances, then, of course, it would not be considered by you as of any force or effect against her. You may consider all of the evidence upon that subject in determining what the real situation is.”

We see no occasion to disturb the ruling of the court.

4. It was not error to permit plaintiff’s physician to testify that in his opinion the plaintiff’s injury was attributable to the fall.

5. It is insisted that the defendant had performed its duty in regard to inspection. That it employed competent men to inspect these bleachers before the opening of the fair is established, and the court so instructed the jury. The patrons of the defendant did not assume a careless and negligent inspection by a competent inspector. There is no question here of fellow-servants. The defendant’s duty toward the plaintiff, who was invited upon its premises, and had - paid a consideration for admission and a seat, was not only to employ a competent inspector, but to see that the competent inspector did his duty. These inspectors testified to what they did; one that he walked under the seats looking at the structure to see if he could detect defects, the other that he walked up- and down on the seats between the risers, testing them by jumping up and down upon them. Opposed to this is the fact that the seat broke with a person sitting on it weighing only 143 pounds; that the ends were so rotten that they pulled out of the nails, and that the rottenness, according to the plaintiff’s witnesses, was apparent on the underside of the plank. The question of a sufficiently careful inspection was properly submitted to the jury.

6. It was not error to refuse to permit the defendant’s president to testify that the people managing the defendant association were farmers. There is not one degree of care required by farmers erecting bleachers and grandstands for their patrons, and another for merchants and mechanics, or any other class of persons. The same degree of care is required of all.

7. John 0. Zabel, one of the attorneys for the plaintiff, volunteered as a witness in her behalf, and was asked to relate a conversation he had with Mr. Smith, the attorney trying the case for defendant, in reference to a physical examination of plaintiff by a physician. The conversation referred to occurred before suit was brought. The witness was asked whether Mr. Smith in th'at conversation said that he was acting in behalf of the defendant. Of course agency cannot be proved by the declaration of the agent. Objection was made, which the court sustained, the court suggesting that plaintiff could have Mr. Smith sworn to ascertain whether he was representing the company at that time. Plaintiff’s attorney then called Mr. Smith as a witness, against his objection and protest. Mr. Smith testified that he called at Mr. Zabel’s office in Toledo in response to a letter written to the defendant in regard to the claim of Mrs. Logan for damages, that he was asked to go there by the president of the defendant, and that it was not at that time contemplated that they were going to have a lawsuit, and that he (Smith) went to see what the claim was. Mr. Smith was then also asked to state the conversation about an examination. He testified that he asked Mr. Zabel if he would have any objection to a physician, representing the company, examining Mrs. Logan, and that Zabel replied that he “didn’t know whether he would or not.” The court then asked Mr. Smith if he desired to cross-examine the witness. Mr. Smith again objected to the proceeding, saying that it was embarassing and very improper practice. The court said it was proper. To this Mr. Smith took an exception, and the court remarked: “I cannot indulge any criticism on the ruling.” To this remark defendant excepted. Mr. Zabel then took the stand, and testified that he told Mr. Smith there would be no objection to an examination of the plaintiff by a physician for the defendant, provided that plaintiff’s physician was present at the time, and that he told Mr. Smith to make arrangements for such examination and notify Dr. McDonald so that he could be present. This proceeding on the part of the court and counsel for plaintiff is alleged as prejudicial error. In calling Mr. Smith, plaintiff made him her own witness. If it was necessary to show that Mr. Smith was then acting as the attorney for the defendant, it was entirely proper to call Mr. Smith to prove the fact. Counsel went beyond the suggestion of the court, and asked what the conversation was. He then took the stand to impeach Mr. Smith by denying Mr. Smith’s statement and giving his own version of it. The objection made by Mr. Smith upon the trial, and also here, is that the proceeding tended to make him appear ridiculous before the jury, and weaken his standing and argument before them. We can hardly concur in this view. The case was being tried in a community where Mr. Smith was well known, and where his reputation was good. We think that such proceeding would tend to injure the standing of the attorney who caused it, rather than the standing of the attorney forced into the proceeding by the order of the court. The remark of the court appears to have been uncalled for. We do not, however, think that the entire proceeding was of sufficient importance to justify a reversal of the case.

Judgment affirmed.

Grant, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.