text:
    CLARK v. ONAWAY-ALPENA TELEPHONE CO.
    1. Corporations — Officers—Compensation—Question for Jury.
    In an action by an officer of a corporation to recover for services as general manager under a written contract, where it appeared that, after a change of officers in the corporation, a resolution was passed that plaintiff be employed as general manager and as secretary at a sum less than his former salary; that defendant’s officers were unaware of the existence of the contract, and that plaintiff received the salary provided by the resolution, held, that' the court should at least have called the jury’s attention to the undisputed dealings between the parties and the conduct of the plaintiff subsequent to such resolution, and not confined the • deliberations of the jury to the mere question whether plaintiff had expressly agreed to come under that resolution.
    2. Same — Contracts—Services—New Teiae.
    In an action by an officer of a corporation to recover an amount for services alleged to be due under a written contract, held, that a sufficient showing had been made to warrant the granting of a new trial.
    3. Same — Evidence.
    Evidence held insufficient to sustain a verdict in favor of plaintiff officer for services under the contract with defendant corporation.
    4. Appeal and Error — New Trial — Scope oe Review — Written Findings — Motions—Denial of.
    Wliere a party moving for a new trial files a request that in case of denial of the motion the court file its reasons for denying the same in writing, but findings are not filed by the court, and exception to the denial of the motion is duly filed, error may be assigned upon such refusal, regardless of the absence of such findings.
    Error to Alpena; Emerick, J.
    Submitted January 22, 1917.
    (Docket No. 127.)
    Decided May 31, 1917.
    Assumpsit by John M. Clark against the Onaway-Alpena Telephone Company for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry & Henry, for appellant.
    J. S. Canfield, for appellee.
   Stone, J.

This is an action to recover an amount claimed to be due plaintiff for services as general manager of the defendant under a written contract hereinafter set forth. The plaintiff, his wife, A. S. Clark, and Morris T. Streeter were the organizers of the defendant company in October, 1911, and they comprised all of the stockholders, and were elected the directors at the. first meeting, and thereafter made the plaintiff president of the company. The same directors continued in office until the election of a new directorate in September, 1913, except that in December, 1912, Mrs. Clark resigned, and this vacancy was filled by a qualifying shareholder, F. M. B. White, and the minutes of the directors’ meeting of January 21, 1913, show that the plaintiff, Morris T. Streeter, and said White (all of the directors at that time) were appointed an executive committee to employ a general manager at a salary of not more than $400 a month, whose duties should be to have general charge and supervision of the business and property of the company, and who should perform such work and have charge of such affairs pertaining to such company and its property as the executive committee and directors of such company should determine. It was provided that such executive committee should have power and authority to enter into a written contract with such general manager for such length of time as they should deem expedient for the welfare of the company, and it provided that a majority of such executive committee should have power to act. The plaintiff, F. M. B. White, and M. T. Streeter were appointed such executive committee. At a directors’ meeting held February 24, 1913, at which the plaintiff and F. M. B. White only were present, the executive committee was directed to make a contract for the employment of a general manager, “when a satisfactory person for this position shall be found.” Thereafter, and on April 1, 1913, the executive committee, for the defendant, and the plaintiff, entered into the following contract:

“This memorandum of agreement, made and entered into this 1st day of April, 1913, by and between the Onaway-Alpena Telephone Company, a corporation, with its principal office at Alpena, Mich, (by a majority of its executive committee duly authorized), party of the first part, and J. M. Clark, of Alpena, Mich., party of the second part, witnesseth as follows:
“I. For and in consideration of the payments and agreements hereinafter contained, the party of the second part hereby agrees to continue and remain the general manager of the party of the first part, and as such general manager do and perform such duties and services as he shall deem expedient and essential, and as shall be required of him by the directors and executive committee of the party of the first part, in connection with said corporation, and the running, operating, and handling of the business and property of the party of the first part.
“II. Said second party shall- have general authority and supervision of the executive and business department of said corporation, also general authority and supervision over the operative and constructive departments of said corporation, and shall in all things have authority and supervision over the conduct of the affairs of said corporation, wheresoever the same shall be carried on.
“III. Said second party, to the best of his ability, shall see to it that accurate and suitable records are kept of all the finances incident to said business, which records shall show at all times the property of the corporation and its financial standing. Suitable books shall be kept, in which shall be entered an accurate record of affairs of such corporation.
“IV. Said second party shall have authority to employ and discharge any and all help and employees, and shall determine what employees shall be engaged, and the amount they shall receive for their services. At any time second party shall deem expedient, he shall be and is hereby authorized and empowered to employ a suitable engineer, a suitable purchasing agent, and a good and competent bookkeeper for such time and at such wages as he may deem for the best interests of the company; also competent attorney or attorneys. They shall be under the supervision of the said party of the second part.
“V. For and in consideration of the employment herein designated, said party of the first part shall pay said party of the second part two hundred ($200) dollars per month (payable monthly on the 5th day of the month succeeding the month for which payment is made), and in addition thereto such amounts as said second party shall be required to spend and disburse in and about the performance of his duties as general manager of such corporation, and in addition thereto the further compensation of 50 per cent, of the actual increase in net earnings of the company’s properties for the year beginning April 1, 1913, up to, but not exceeding, twelve hundred ($1,200) dollars for the first year of this contract. The second year of this contract the first party hereby agrees to pay a straight salary of ($800) dollars per month, and necessary expenses.
"VI. For and in consideration of the agreements and provisions herein contained, said party of the second part is hereby employed for a period of two years, from and after the date of this contract; and unless within sixty (60) days prior to the expiration of such employment, written notice shall be given by either party hereto of the termination of this contract, such contract shall renew .itself from year to year thereafter, without further agreement between the parties thereto, and at the same salary as for the second year of this contract.
“VII. This memorandum of agreement is declared binding upon the representatives, successsors, and assigns of the parties hereto.
“VIII. This memorandum of agreement is made in pursuance of the authority vested in the executive committee of said corporation, by its directors, at a regular meeting of such directors.
“In witness whereof, the parties hereto have hereunto set their hands this 1st day of April, A. D. 1913.
“Onaway-Alpena Telephone Co.,
“Per F. M. B. White, Sec.
“J. M. Clark,
“F. M. B. WHITE,
“M. T. Streeter,
“Executive Committee,
“Party of the First Part.
“J. M. Clark,
“Party of the Second Part.
“In presence of:
“R. B. Miles.
“Florence G. Shaw.”

After the making of this contract the plaintiff claims to have operated under it for the defendant. The annual meeting of the stockholders of July 15, 1913, was adjourned to be held in Jackson, July 22, 1913. At this meeting Charles S. Davis, John W. Allen, and Charles S. Ruthruff were elected directors, and the board was increased from three to five directors. This meeting was adjourned to September 3, 1913, when Charles R. Henry and plaintiff were also made directors. The directors met on September 27th and elected Mr. Davis president. The plaintiff was declared to have been elected secretary on October 25, 1913. At this meeting the following resolutions appear as carried in this meeting:

“Moved by Mr. Ruthruff, supported by Mr. Allen, that John M. Clark be employed as general manager of what may be called the physical side of the activities of this corporation, which by this resolution is understood to be the exchanges, lines, and telephones, and all accessories and mechanical appliances pertaining to them, and to the physical and mechanical side of the business of this company’s entire property, and that for his personal time and service as such general manager he be paid the sum of $108.33 1-3 per month, to be paid monthly, such compensation and service as general manager to continue during the pleasure of this board, and that in addition to the above compensation the said John M. Clark shall be paid five hundred dollars per year for his services as secretary. Carried.
“Under authority conferred by article II, section 6, and section 8, of the.by-laws, it was moved by Mr. Allen, supported by Mr. Ruthruff, that the duties of the president be extended, beyond and in addition to the duties specified in article IV, section 1, of the bylaws, to include the personal management of what may be termed the commercial and business side of this corporation, and also to include personal oversight 'and authority over all the employees of this corporation, except where such oversight may be delegated by him to others, and that he receive for such extra personal time and service the sum of $175 per month, payable monthly, such extra time and service and compensation to continue during the pleasure of this board. Carried.”

The above minutes were signed by Mr. Davis as president, and by the plaintiff as secretary. The plaintiff did not vote in favor of these resolutions, and did not dissent; in other words, he did not vote at all.

Upon the trial of the case what was done under the last quoted resolutions was a disputed question. The plaintiff denied that he had made thereby another contract with the defendant at that meeting. He testified that at that meeting he agreed to accept compensation from defendant as general manager under certain conditions; that he came back with a counter proposition of $108.33 1/3 a month, provided he could have a written contract for one year. Mr. Davis, the president, testified that it was suggested to the plaintiff that he be offered compensation at the rate of $1,000 a year to take charge of the physical side of the telephone property. He was to have, in addition to that, $500 a year for acting as secretary, making a total of $1,500 per year; that the proposition was made to Mr. Clark by means of the foregoing resolutions ; that Mr. Clark refused to accept it; that thereupon Mr. Davis stated to plaintiff that, unless he accepted under those conditions, that he was to serve during the pleasure of the board, that he would not ■be retained in any capacity as an employee of the telephone company; that he stated to plaintiff that there had been increasing dissatisfaction with his management; that the stockholders were not sure that he should be in their employ, but that they were willing to give him an abundant chance to prove that he could make good. Mr. Davis further testified that the plaintiff stated then that, if the directors would agree to give him $300 more, making his total salary at the rate of $1,800, he would accept, and that the directors were willing to do that, and it was done; and that they put in the resolution $108.33 1/3 a month, which came to $1,300, and that, with the $500 a year for his secretary services, made plaintiff $1,800 a year.

It is the claim of the defendant that at this time the directors and officers of the- company, except the plaintiff, did not have any knowledge of the contract of April 1,1913. The plaintiff testified that he did not at this meeting in any way notify the other directors of this contract of April 1, 1913, and that he did not know whether at that time they knew anything about it. He testified that, after said first contract was signed, it had been in the safe in the office of the telephone company — a part of the time in his private safe — and that he at no time called their attention to this April 1st contract. Mr. Davis, the president, testified that he had no knowledge whatever on October 25th of said April 1st contract. The plaintiff testified that after the meeting of October 25th he thanked the directors for having passed the resolution and for the confidence they had shown him in passing it. The pay rolls and checks from April 15, 1913, were offered by the defendant and were received in evidence. There originally appeared upon the checks, on the reverse side thereof, the following: “Pay roll check in full of account for all services rendered to and including” the date. . Certain of these printed words had been scratched out in ink and the word “on” inserted, so that the pay roll check read “on account” J. M. Clark. On the cross-examination of the plaintiff the following occurred:

“Q. Mr. Clark, beginning with about November 15, 1913, these checks, were signed by Mr. Green, were they?
“A. Some time along there; I don’t remember that date.
“Q. It was about that time?
“A. Yes, sir.
“Q. And the checks were delivered by Mr. Green to you, were they not?
“A. No, sir.
“Q. From whom were these received by you?
“A. Mr. White usually handed them to me.
“Q. Is it not a fact that at the time you received the checks the stamp on the reverse side of the check was not scratched out?
“A. Most of them.
“Q. Sir?
“A. Most of them.
“Q. And whatever marking was done on the reverse side of the check was done at the time you indorsed the check, was it not?
“A. Done when I received the check, usually.
“Q. You accepted the checks without any marking by any one on the back, other than the stamp?
“A. Most of them.”

At this time Mr. White was not a director or officer of the company. Immediately following this was the redirect examination of the plaintiff, in which the following occurred:

“By Mr. Canfield: Q. I notice these checks that have stricken out the stamp that is on the back of them, Mr. White said he did some of them — yesterday in his testimony — and some you did; now what was that for?
“A. Because I did not consider the check payment in full.
“Q. I will ask you if you told any person that handed you the check that you would not receive it in full?
“A. I did.”

There was testimony by Mr. Green that the plaintiff had requested him, before he went to Jackson, not to mention the contract of April 1st to Mr. Davis and Mr. Ruthruff, whom he went to see, and that he did not mention it to them. The plaintiff, upon the trial, claimed to be at all times performing services under the contract of April 1, 1913, and the instant suit to recover for his services was brought upon that contract. He claimed such services to have been under that contract from its date until February 24, 1914, when he was discharged by the defendant.

Much testimony was taken upon the trial upon the part of the defendant tending to show that the discharge of the plaintiff was justified, because of certain claimed irregularities on the part of said plaintiff. The plaintiff testified that his claim in the case was $4,158. The jury, allowing some interest, returned a verdict for the plaintiff for $4,283.94, upon which judgment was entered. The defendant thereafter moved for a new trial, which motion was denied by the court, and exception thereto taken by the defendant. The defendant has brought the case to this court upon writ of error, and under an appropriate exception to a part of the charge of the'court it is its contention that the court erred in not submitting to the jury the effect of the plaintiff’s conduct and actions after the meeting of October 25, 1913.

It is urged that the court charged that if plaintiff positively agreed at this meeting to accept the different compensation he could not recover; but it is said that plaintiff’s silence or acquiescence, his concealment of his contract of April 1st, and his actions subsequent to October 25th were not in any form submitted to the jury. It is conceded that whether plaintiff agreed to accept the new compensation was in dispute; but it is said that he admits that he would have accepted this lower salary under certain conditions, and that he in no way notified them of the April contract, and that he did not know whether the other directors knew of the April contract. While he did not vote upon the resolution, he signed the minutes of this meeting as secretary, and later the minutes of the meeting at which these minutes were approved. It is claimed by appellant that the pay rolls and checks show that the plaintiff assumed to work under the arrangement of October 25th. The witness Green, who it is claimed signed all the checks of the company at that time, testified that at the time they were signed there were no erasures or scratching out on the backs of the checks. The pay rolls of December 15th, December 31st, January 15th, and January 31st are the same; they show plaintiff was paid on the basis of $150 per month, and the checks are in each case $75 in amount. All are signed by Green and indorsed by the plaintiff. Upon this subject the court charged the jury as follows:

“I charge you as a matter of law that if, upon this occasion, the meeting of the board of directors of October 25, 1913, Mr. Clark knowing that the other members of the board of directors had no knowledge of his contract of April 1, 1913, and that Mr. Clark concealed from them its existence, and then agreed to remain as general manager at the compensation of $1,800 per year, and no fixed term of employment, if he did that for the purpose of continuing in the employ of the company, or if he did it to further any purpose of his own, for any reason that he had, if he made the agreement with them positively that he would remain for that sum, he cannot recover now. * * * That ought to be the law, and it is the law. * * * If he positively agreed to accept this reduced compensation and continue the duties without any fixed term, he would not have any standing in this case. * * * Now, how will you determine that issue? Why, from the testimony of. the parties, the testimony of the witnesses, their actions at the time, their subsequent actions, and everything in this case which you think bears upon that issue. It is an issue distinct by itself.”

Upon this subject counsel for appellant say:

“In other words, the court said to the jury: ‘You shall find whether or not, on this 25th day of October, 1913, at the meeting of the board of directors, there was a positive agreement made between Clark and the company.’ He practically says that the fact that Clark continued working for the company, presumably under the arrangement of October 25th, that Clark acquiesced in this new arrangement, and that all acts on the part of Clark subsequent to that date had no bearing upon the case and were not for their consideration. The court emphasized the necessity of finding that the agreement was entered into on October 25th, and repeatedly charged them that, to find the defendant not liable, they must find a positive agreement on this day.”

Counsel for defendant had requested the court to charge the jury as follows:

“On the 25th day of October, 1913, at a regular meeting of the board of directors of the defendant, at which plaintiff was present, as 'director, a resolution or motion was passed or adopted whereby the plaintiff was to receive a certain amount for his services as general manager of the defendant company and a certain amount for services as secretary of said company; at the time of. the passage of this motion none of the directors then present knew that the plaintiff had before then entered into any written contract with the defendant for any kind of services for said defendant. The plaintiff continued thereafter to do whatever he did do for the defendant company under said resolution or motion, so far as any evidence in this case shows, or so far as any record shows, until the 24th of February, 1914, when he was discharged. By the adoption of this motion or resolution, by the conduct of the plaintiff on and after the 25th day of October, 1913, I charge you as a matter of law that any prior contract which the plaintiff may have had with the defendant relative to work as general manager or otherwise on behalf of said company was waived, and the • plaintiff cannot recover upon the contract'sued upon in this cause.”

This request was refused. Upon this point it is urged by appellant that the plaintiff not only remained silent when he ought to have spoken, but there was testimony upon which it can be said he actually did things ratifying the new arrangement, and it is the claim of appellant that the court should have at least submitted these facts to the jury to say whether the plaintiff so acted as to make the new arrangement effectual, and should have charged them that if they so found plaintiff could not recover; and it is urged that, on the contrary, the whole charge on this point Was confined to a direction that, if they found an agreement to have been made on October 25th, the defendant was not to be held liable, but that the jury was not sufficiently permitted to consider in that connection the plaintiff’s acts and conduct subsequent to October 25th. The following cases are cited in support of appellant’s position: Spicer v. Earl, 41 Mich. 191 (1 N. W. 923, 32 Am. Rep. 152); Collins v. Hazelton, 65 Mich. 220 (31 N. W. 843); Bartlett v. Railway Co., 82 Mich. 658 (46 N. W. 1034); Brighton v. Railway Co., 103 Mich. 420 (61 N. W. 550); Davis v. Boat Works, 121 Mich. 261 (80 N. W. 38); Lachine v. Railway Co., 126 Mich. 519 (85 N. W. 1102); 26 Cyc. p. 1039; 1 C. J. p. 564; Shade v. Lumber Co., 115 Cal. 357 (47 Pac. 135).

A careful examination of the record upon this subject has led us to the conclusion that, after refusing said request to charge, the court should have at least more specifically called the attention of the jury to the undisputed dealings between the parties and the conduct of the plaintiff subsequent to the resolution of October 25, 1913, and not have confined the deliberations of the jury to the mere question as to whether plaintiff had expressly agreed to come under that resolution. Had the attention of the jury been called to that subject, it is doubtful if they would have reached the conclusion which they did, for it is a close case upon the facts.

There was a motion for a new trial, entered by the defendant and submitted to the court, upon the grounds that the verdict was unreasonable and excessive, that it was against the weight of the evidence, that the court erred in charging the jury as indicated above, and in other respects, and upon the ground of newly discovered evidence. The newly discovered evidence is fully set forth in the affidavit of the president of the defendant and of one Robert J. Crable, a public accountant. The affidavits seem to comply with the rule pertaining to newly discovered evidence, and that the same could not have been discovered by reasonable diligence prior to the trial of the case, and that the same had been developed and brought to light by the hearing in a certain chancery case of Charles S. Davis v. John M. Clark, which was subsequent to the trial of the instant case. Such evidence was to the effect that on October 30, 1911, Charles W. Swank was the owner of 90 shares of the stock of the defendant company; that on or about November 2, 1911, at a time when plaintiff was connected with said defendant in the capacity of president and manager, plaintiff issued the check of said company, No. 265, to himself for $2,000, and charged said amount on the books of said company to capital stock; that said check referred to the Swank stock; that said $2,000 was issued for the purpose of retiring said Swank stock, and that the said 90 shares of Swank stock, so called, came back into the treasury of the defendant company; that by said transaction said plaintiff used said sum of $2,000 from the treasury of said defendant with which to purchase and retire the said 90 shares of Swank stock, so called; that thereafter, and on or about January 11, 1912, said plaintiff caused 83 shares of the Swank stock, so called, out of the 90 shares of stock, to be reissued to himself personally; that so far as the books of said company show no consideration passed from said plaintiff to said company for said 83 shares of stock, and nothing was paid by the plaintiff to said company for said stock; that between January 11, 1912, and December 19, 1912, during which time plaintiff held said 83 shares of stock, for which he paid no consideration, certain dividends were declared and paid by the defendant; that upon the declaration of said dividends said plaintiff received and took to himself dividends upon said 83 shares of stock, which he had reissued to himself; that on December 19, 1912, plaintiff sold about 83 shares of Swank stock, so called, which had been reissued to himself, to John W. Allen at par, and retained the proceeds thereof; and that the proceeds from the sale of said stock to said Allen has been retained by said plaintiff and never returned to said company. It is the claim of the defendant, supported by said affidavits, that the foregoing facts could not be ascertained prior to the trial of the instant case, but can now be proved, and that said facts fully justify said plaintiff’s discharge.

In view of the entire record, we are impressed with the fact that there is merit in the claim of defendant regarding this newly discovered evidence, and, if there is truth in the claim in that regard, the judgment is not only excessive, but unjustified in any amount. We are also impressed with the claim that the verdict and judgment are against the weight of the evidence in the case. When the motion for a new trial was entered, a request was filed that, in case the motion was denied, the court should file in writing its reasons for denying the same. It further appears by the record that the motion for a- new trial was on April 25, 1916, denied, to which defendant duly accepted, but no written reasons for denying the motion have ever been filed. It is the claim of the appellee that under our statute and practice the motion for a new trial and the denial thereof are not before us, because no reasons in writing for denying the same were filed. This precise question has not before arisen. It seems to us, however, that where the moving party has fully complied with the rule, and has filed a request for a written finding, and such written finding has not been filed by the court, and exception to the denial of the motion has been duly filed, such moving party should not be required to apply to this court for a inandamus to compel the circuit judge to comply with the practice, but that error may be assigned upon the refusal, and we think we should so hold in this case. Error has been duly assigned here. Upon the showing here made, we think the defendant was entitled to an order setting aside the judgment and granting a new trial, and that it was reversible error to refuse the same. We find no other reversible error in the case.

For the reasons above stated, the judgment of the court below is reversed, and a new trial granted, with costs to the appellant.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    VILLAGE OF GROSSE POINTE SHORES v. HOLMES.
    Highways and Streets — Acquisition by User — Presumption— Evidence — Sueeiciency.
    Evidence held, insufficient to show the establishment of a highway by user as a continuation to a lake of an existing highway running to the side nearer the lake of another highway running parallel to and near the lake.

    Appeal from Wayne; Hosmer, J.
    Submitted January 23, 1917.
    (Docket No. 138.)
    Decided May 31, 1917.

      Bill by the village of Grosse Pointe Shores and the township of Grosse Pointe against Clara Holmes and Clara Walter to have a certain road decreed to be a public highway. Upon the death of defendant Walter, before the trial, William Walter and others, heirs of said deceased, were substituted as parties defendant. From a decree for defendants, plaintiffs appeal.
    Affirmed.

      William M. Mertz and Frank N. Renaud, for plaintiffs.

      Stevenson, Carpenter, Butzel & Backus (Thos. G. 'Long, of counsel, for defendant Holmes.

      Ward Choate and W. W. Chapin (Thos. G. Long, of counsel), for the other defendants.

      for authorities discussing the question of public user as acceptance of dedicated highway, see note in 59 L. R. A. 31.

   Stone, J.

It is the claim of plaintiffs that the gist of this suit is to have the Vernier road approach into Lake St. Clair, east of the Lake Shore road, or Jefferson avenue, decreed to be a public highway, with full riparian rights to the public. By their amended bill of complaint plaintiffs state that the said Vernier road (so called) within the limits of the village of Grosse Pointe Shores, and for a considerable distance westerly thereof in the township of Grosse Pointe, consists of a strip of land 66 feet in width, taken from the northerly (sometimes called easterly) side of private claim 156, and is a highway passing through said village near the middle thereof, in an easterly and westerly direction, and connects with other highways of Grosse Pointe township, westerly of said village, and extends into Lake St. Clair on the east, crossing the Lake Shore road, known as Jefferson avenue, near the border of the lake; that they are not definitely "informed, but beg leave to discover by what method said Vernier road became a highway, but show that the same has been a public road, and has been fully dedicated to highway purposes, for more than half a century, and that plaintiffs, and their inhabitants, and the inhabitants of adjacent territory, and all persons having occasion to pass over, it, have fixed and lawful rights to use said road as a highway; that the said highway has been used as an approach into Lake St. Clair by the public traveling thereon ever since the opening and use of said road for highway purposes, except as the same is now being unlawfully obstructed by the defendants.

By her answer the only adult defendant admits the said allegations of the bill, except that she denies that plaintiffs are exercising, or ever did exercise, any authority, supervision, or jurisdiction over that part of said Vernier road, so called, east of the east line of Jefferson avenue, and denies that said Vernier road extends, or ever did extend, east of the east line of Jefferson avenue. She further admits the alleged location and connections of said Vernier road, except that she denies that the same extends into Lake St. Clair on the east, crossing the Lake Shore road, known as Jefferson avenue, near the border of said lake; but, on the contrary, alleges that Vernier road does not extend, and never did extend, east of the east line of said Jefferson avenue. She then states the source of defendants’ title to said parcel of land.

It is conceded in the case that the only premises in dispute is' the short stretch of land east of the east line of Jefferson avenue and extending to the lake; and it may be. said that the primary object of this suit is to establish the extension of Vernier road from the east line of Jefferson avenue to the lake. The case was heard upon the pleadings and the proofs taken in open court, and after argument a final decree was entered, dismissing the plaintiffs’ bill of complaint. The plaintiffs have appealed.

It appears from the record that Jefferson avenue runs easterly from the city of Detroit, following more or less closely the shore line of the Detroit river and Lake St. Clair. It was formerly called the Lake Shore road. At some points it is at the edge of the shore bank, leaving no dry land between the road and the water, other than the slope of the bank; at other points there are large building lots between the road and lake. At different points, in the northerly or easterly part of the township of Grosse Pointe old established public roads come into Jefferson avenue from the west. (The latter street or road here runs in a northerly and southerly direction.) At the point in controversy, where the Vernier road comes from the west out onto Jefferson avenue, there always has been some dry land between the said avenue and the water, varying in width from practically none at the upper or northerly line of Vernier road extended to 40 or 50 feet in width at the southerly line of Vernier road extended. For many years no use was attempted to be made by any of the riparian owners of the land between the Lake Shore road and the lake. This was true, not only of the land in question, but of other lands in the vicinity. There were no fences between Jefferson avenue and the lake — all was left open. Vernier road was opened, laid out, and given to the public many years ago by Lawrence Vernier, the then owner of the land. Fences were built along each side from Jefferson avenue west. Nothing whatever was done between Jefferson avenue and the lake.

The private claim, on which Vernier road was thus opened, or at least that portion of it here in controversy, remained in the Vernier family until 1906, passing from father to son, and then to the grandson, John Vernier, from whom said defendants’ father purchased. With no beneficial use being made of the land between Jefferson avenue and the lake, and Vernier road being opened from the west out onto Jefferson avenue, the people living in the vicinity, and back from the lake, would come down Vernier road from the west, cross Jefferson avenue, and go into the lake to -get water and ice, to water cattle and other farm stock, to unload logs for rafting, and for pleasure driving and horse racing on the ice in the winter. As said by one of complainants’ witnesses: “Wherever there was an open place, they would go down.” It appears that, before any beneficial use was made by the Verniers of this land between Jefferson avenue and the lake, they did such work as was required from time to time to protect the shore banks from the action of the waves. A log crib was maintained. A large quantity of brush was put in at one time; also sqme trees were put and remained there. The path-masters, on two or three occasions during the time covered by the testimony, did some work which fulfilled two purposes — primarily it repaired and protected the bank of the roadway on Jefferson avenue; and, secondly, it made it possible to get into the lake and haul out loads of water. It is claimed this was done without the knowledge of defendants’ predecessors in title — then the owners- of the land in dispute. At one time the waves washed away a portion of the roadway of Jefferson avenue, opposite the northerly side of Vernier road. The township authorities repaired the damage and put in a wooden breakwater. This breakwater was, however, supposed to have been put in on the adjoining private claim, and not on the land in dispute, or on land owned by the Verniers.

A careful perusal and consideration of the record leads us to the conclusion that there has no such user been shown as is required to constitute a highway over the disputed strip of land. The law of the case is well stated in the recent cases of Stickley v. Township of Sodus, 131 Mich. 510, 517 (91 N. W. 745, 59 L. R. A. 287), South Branch Ranch Co. v. Emery, 191 Mich. 188 (157 N. W. 419), and Galinski v. City of Detroit, 193 Mich. 184 (159 N. W. 371). While the use claimed was being exercised, the question whether the land was a public highway never arose, because for years defendants’ predecessors in title made no beneficial use of any of the land lying between Jefferson avenue and the lake. The driving over of cattle, the hauling of water, ice, and logs, in no way came in conflict with any use which defendants’ predecessors in title could make of the land. The evidence of the expenditure of public moneys on this territory is of an equivocal and uncertain character, and is as consistent with the protection and care of Jefferson avenue as with the maintenance of a highway over the land in question. We are of the opinion that the plaintiffs have failed to show a public highway over the disputed strip of land. We have examined the documentary and other evidence claimed to show a dedication of the lands in question for a public highway, and are of the opinion that no dedication has been shown.

The decree of the circuit court is therefore; affirmed, with costs of both courts to the defendants.

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


author: Ostrander, J.

text:
    CLEVELAND-CLIFFS IRON CO. v. TOWNSHIP OF REPUBLIC.
    Taxation — Assessments—“Cash Value” — Selling Price — Mines.
    The determination by tax assessors in good faith of the cash value of a mine in accordance with a certain method and in connection with official data of the product and profits of the mine for a course of years preceding the assessment and the fact of a recent sale of the mine, will not be disturbed by the courts, although such determined cash value is greatly in excess of the amount realized on such sale.
    Error to Marquette; Flannigan, J.
    Submitted January 8, 1917.
    (Docket No. 55.)
    Decided May 31, 1917.
    Assumpsit by the Cleveland-Cliffs Iron Company against the township of Republic for taxes paid under protest. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      William P. Belden, for appellant.

      W. T. Potter, for appellee.
    The Republic mine, an iron mine, is in the township of Republic, in the county of Marquette. It is a considerable mine. The average annual shipment of ore therefrom, for five years preceding 1914, was 146,550 tons. The value of the mine for the purpose of taxation was estimated in the year 1914, as it had for several years theretofore been estimated, according to a report made by the company and a method known, perhaps, better than in any other way by the designation, the Finlay method. It is described in the opinion in Newport Mining Co. v. City of Ironwood, 185 Mich. 668 (152 N. W. 1088). In fixing valuations of mines for the year 1914, factors not those used by Mr. Fin-lay, more favorable than his were to the owners, were used by the board, and the recommendation of the board, in the case of the Republic mine, was adopted and approved by the local assessing officer. The method was uniformly employed by the board of State tax commissioners in valuing mines for taxation.
    There is no evidence of any considerable difference of opinion prior to 1914 between the owners and the State tax officials concerning the value of the mine. On the contrary, there is evidence that the estimate of the owner and the estimate of the appraiser as to the ore in sight in different years were not greatly different, and as to the undeveloped and nonvisible ore the quantity estimated by the State officials was not seriously disputed. It is not intended to bé said or to be inferred that the owners affirmatively approved the assessments, or the method of valuation employed. They did not protest, and it appears that a responsible officer of the owners was of opinion that the Republic mine was worth $1,000,000, or more. The taxing officials, at any rate the board of State tax commissioners, had data which included operator’s reports for years 1909 to and including 1913, total shipments of ore, total profits, profits per ton, base value per ton, appraised value per ton, estimated ore reserves above bottom level, ore in stock. For the year 1913, the appraiser for the State and the tax officials accepted the operator’s (Republic Iron Company) estimate of ore above bottom level, the appraiser added an estimate of ore below bottom levels of the ore bodies, and at a meeting of the board held at Marquette September 25,1913, the valuation of the mine having been raised above the valuation for the previous year and fixed, including ore in stock, at $1,219,866, the superintendent of the mine, present at the meeting, said, “I think your valuation is fair.” In 1914, in addition to all other data, there was before the officers the record for the year 1913. There was no particular change made in the appraisement and valuation of the mine. Again, the appraiser and the taxing officers accepted the owner’s estimate of ore in stock and ore in mine above bottom level. Again, there was added an estimate of ore “below bottom level.” It is reasonably certain that if no sale of the property had been made, dr if it had brought a higher price than it did at the sale which was made, questions now presented would not have arisen to vex counsel and the court.
    After the owning company had, in March, 1914, made the annual report required of it, plaintiff, in May, 1914, purchased the mine and some other property from the Republic Iron Company for $600,000. Of its purchase and the price it had paid and the terms of the sale, it, on May 26, 1914, notified the board of State tax commissioners at a conference then held, and asked for a modification of the valuation of the property theretofore fixed by the board. The board' declined to take action reducing the valuation ; at least it did not reduce it, and local assessing officers finally valued the mine and stock pile at $1,115,-759. Plaintiff appeared before the township board of review, and filed a protest as follows:
    “To the Board of Review of Republic Township1, Marquette County, Michigan.
    “The Cleveland-Cliffs Iron Company, a corporation organized under the laws of West Virginia and duly authorized to transact business within the State of Michigan, respectfully represents that it has purchased the Republic mine, stock pile and other property of the Republic Iron Company in your township, and hereby objects to and protests against the valuation which you have placed upon said Republic mine and stock pile for the following reasons:

      “First. That the assessed valuation of $1,555,299 placed upon said Republic mine and stock pile for the year 1914 is grossly in excess of the true cash value of said property and more than twice its actual market value when sold in the usual course of business and not at forced sale; that the undersigned has recently purchased from the Republic Iron Company said mine and stock pile, also the houses and other property owned by said company in the village of Republic, and approximately 5,000 acres of land, including its water power plant on Michigamme river, and also including timber lands of value, for a total consideration of $600,000, so that the purchase price of said mine and stock pile does not exceed the sum of $500,000.

      “Second. That the true value of said mine and stock pile does not, in fact, exceed the amount so paid for it by the undersigned.

      “Third. That it is a fundamental principle of taxation in Michigan, established both by statute and by court decisions, that the words, ‘true cash value/ wherever used in the tax laws, shall be held to mean the market value of such property when sold in the usual course of business.

      “Fourth. That the assessed valuation so placed upon the Republic mine and stock pile constitutes a discrimination against said property and against the undersigned, because it is not based upon the same rule and principle of taxation applied to other taxpayers and to other property in said township of Republic.
    “The undersigned claims the benefit of the same rules and principles of taxation which are applied to other taxpayers in said township, and asserts that the valuation so placed upon said Republic mine and stock pile, if permitted to stand, will constitute a gross fraud upon its rights in the premises.
    “The Cleveland-ClifEs Iron Company, therefore, requests this honorable board to reduce the valuation of said property to its true cash value as determined by its selling price in the market, which is the basis fixed by the laws of Michigan.
    “The description of said Republic mine is as follows : That part of lot 1 and of the northeast quarter of northeast quarter not included in village plat of section 7, township 46, range 29. Southeast quarter of northeast quarter, section. 7, township 46, range 29. Lots 2, 3, 4, 5, 6, and 8, section 7, township 46, range 29. East quarter of southeast quarter and southwest quarter of southeast quarter section 7, township 46, range 29. North half of northeast quarter and lots 1, 2, 6, 7, and 8, section 18, township 46, range 29. Mineral rights on Republic Iron Company’s additions to the village of Iron City.
    “Dated this 6th day of June, 1914.
    “The Cleveland-Cliffs Iron Co.,
    “By [Signed] M. M. Duncan, Agent.”
    No change in the assessed valuation was made, no appeal was made to the board of State tax commissioners, and the tax was paid under protest; this action being brought to recover the money, or a portion of it.
    The lands plaintiff had purchased from the Republic Iron Company, aside from the mine, were assessed at $36,463.50, and no complaint is made of this valuation and the taxes levied upon it were paid without protest. The purchase price of the mine- and this other property was $600,000, leaving the purchase price for the mine and stock pile, as plaintiff figures it, $563,536.50.
    The Cambria Steel Company owned 99% per cent, of the capital stock of the Republic Iron Company. In the sales agreement made between the Republic Iron Company and the plaintiff, subject to a necessary three-fifths vote of stockholders of the Republic Iron Company, the consideration named for the transfer of the Republic Iron Company property is $600,000, the purchaser to assume all liabilities incident to the operation of the mine from and after May 1, 1914. On the same day, an agreement was made between the plaintiff and the Cambria Steel Company which recites the making of the agreement between plaintiff and the Republic Iron Company, and that it was made at the special instance and request of the Cambria Steel Company, and that the Cambria Steel Company, in consideration of the execution of that contract and its agreement to pay the purchase price therein named, agrees with the Cleveland-Cliffs Iron Company to guarantee the full and complete performance of the said contract on behalf of the Republic Iron Company that the purchase price of $600,000 shall be paid by the plaintiff—
    “not in cash, but in the delivery of ore to the Cambria Steel Company as hereinafter provided, namely: By the sale and delivery to the Cambria Steel Company of three hundred thousand (300,000) tons of ore; one hundred thousand (100,000) tons of Lake Bessemer grade for 1914 delivery at this year’s market price prevailing at Cleveland, Ohio; and one hundred thousand (100,000) tons per year for 1915 and 1916 deliveries, at the market price prevailing at Cleveland, Ohio, for said respective years. Said market prices for all of said years to be arrived at in the customary manner known to the trade at the opening of the sales market for each such year.”
    There is the further provision that when the deliveries of ore made by the Cleveland-Cliffs Iron Company shall exceed the sum of $600,000 in value at the prices fixed, the Cambria Steel Company will pay the balance of the purchase price of said ores to the Cleveland-Cliffs Iron Company in cash.
    Other existing facts attending and influencing the sale of the Republic mine are stated by the trial judge in his opinion in this way:
    “The Republic Iron Company is controlled by the Cambria Steel Company, a Pennsylvania corporation, which owns 99y% per cent, of the stock of the Republic company. The Cambria, which owns and operates various iron furnaces and mills, is classed among the very large iron and steel manufacturers of the United States. It does not appear that the Republic Iron Company owned, operated, or was interested in any iron furnaces ®r mills. The testimony warrants the inference, but furthermore it is common knowledge, that iron ores produced by different mines are rarely alike in all respects, and that the successful operation of iron furnaces and mills, often requires that ores from different mines, or of different grade and characteristics, be intermixed before introduction in the furnace, and that an ore which cannot be used at all in the manufacture of certain kinds of iron or steel is usable, if not necessary to be used, in the manufacture of certain other forms of iron and steel. The iron ore requirements of the Cambria company average over 2,000,000 tons annually. The time came when it was not able to use the ores produced from the Republic mine, because they would not make, what the witness termed, a ‘congenial mixture’ in their furnaces. It does not appear the Cambria owned or controlled other iron properties, or, if it did that such properties supplied their wants. They were obliged to have recourse, therefore, for the necessities of their furnaces, to the open market. The Cleveland-Cliffs owns and operates a number of iron mines, from which it produces ores of various grades and characteristics, some of which, it may be surmised, from what transpired, serve to make a ‘congenial mixture’ in the Cambria furnaces. The Cambria being unable to smelt the same, advantageously, in its own furnaces, the product of the Republic mine was offered for sale through M. A. Hanna & Co., sales agents, of Cleveland, Ohio. M. A. Hanna & Co., were unable, it seems, to find among their customers, a market each year, for a tonnage equal to the capacity of the mine and, finding mining cost attending a restricted output unsatisfactory, they concluded to dispose of the property, and to that end opened negotiations with the plaintiff the Cleveland-Cliffs Iron Company. The result was that the Republic Company conveyed to the Cleveland-Cliffs the fee of the iron mine, certain other lands, the mine equipment, and personal property, for the consideration, expressed in the writings, of $600,-000, to be paid, however, by the delivery by the Cleveland-Cliffs to the Cambria of 100,000 tons of iron ore in 1914,100,000 tons in 1915, and 100,000 tons in 1916, at the prevailing market price for the same, at Cleveland, Ohio, for the year in which the ore was delivered. It was further stipulated that in such deliveries, no ore from the Republic or from the plaintiff’s mine known as the ‘Cliffs Shaft,’ would be included, and that deliveries for 1915 and 1916 should, at the option of the Cambria, be either of the 'Standard Lake grade’ which was an ore produced from its mines by the Cleveland-Cliffs, or out of the latter company’s standard nonbessemer grades to be selected by the Cambria.”
    At the trial, the plaintiff and defendant each moved for a directed verdict in its favor. The court reserved decision, and the parties were sent to the jury upon the question of the value of the property, it being stipulated that plaintiff would be entitled to recover, in case the verdict was in its favor, $6,595.37; the question submitted to the jury by the court being whether the mine was put upon the assessment roll by the taxing officers at its true cash value. The jury was instructed that if it was, plaintiff could not recover; if it was assessed beyond its true cash .value the plaintiff could recover such amount of its taxes as the jury should say were paid upon the excessive valuation. The jury was advised, too, that if they found the true cash value to be the amount of the purchase price, the verdict should be for the plaintiff. The jury returned a verdict for the plaintiff. Thereafter, June 12, 1916, the court granted the motion of defendant to direct a verdict in its favor, and on July 21st judgment was entered for the defendant.
    Appellant in the brief states the questions involved to be:
    “(1) That the failure and refusal of the board of State tax commissioners to assess the Republic mine and stock pile at the amount for which the property was sold in the open market to the plaintiff company, and its action on the contrary in assessing said property at approximately twice its said sale value, operated as a gross legal fraud against the rights of the plaintiff.
    “ (2) That the refusal of said board to give any consideration to said sale, although recognizing and accepting the evidence thereof as correct and sufficient, constituted a violation of their duties under the Michigan tax laws, and operated as a fraud upon the plaintiff company.
    “(3) That by reason of such discrimination against it, plaintiff has been compelled to pay more than its equitable share of the taxes of said township, and has been denied the equal protection of the laws of Michigan in violation of article 5, § 8, of the Constitution of the United States, and also of the Fourteenth amendment thereto.”
    The contention of the appellant, as it is stated, and the premises upon which the contention is founded, are:
    “The question involved in this case is a simple one. The Republic mine property was sold in the usual course of business for what the parties to the transaction considered its full value, at or about the time when assessments are made. Evidence of this sale was placed before the commission, but they refused to give it any consideration, not because they were unconvinced as to the facts submitted, but for the reason that the commission concluded it was better to disregard the sale price entirely and continue to apply the so-called Finlay method of valuation, which they had theretofore been using in the absence of evidence of sale price. As a result, they assessed the Republic property for an amount approximately double that paid by the plaintiff. The question, therefore, for this court to determine is whether this action can be sustained under the statute which prescribed that real property should be assessed at its true cash value, which is defined as the usual selling price obtained at private sale. The general principle which we urged both before the board of State tax commissioners and at the trial and which, it seems to us, must be controlling, is that the evidence which was submitted to the board concerning the sale of the Republic mine established a fair presumption as to the true cash value of the property, that this presumption was not refuted by the presentation of any other facts or inferences, and that therefore it was binding upon the assessing officers as their standard of valuation.”

      In argument, in amplification of this contention, it is said, after referring to the decision of this court in Newport Mining Co. v. City of Ironwood:

    “It is perfectly clear that the court in that case did not intend to ‘change or modify’ this ‘cardinal rule of taxation.’ Upon the record before them there was no evidence of selling value, nor any other method suggested of ascertaining value for sale purposes, than that presented by the Finlay method, therefore they applied it. That decision undoubtedly authorizes the use by the commission of the Finlay method as a supplemental or additional means of ascertaining selling value, when no market transactions are available to show the usual selling price in the ordinary course of business. The case does not, however, contain the slightest suggestion that the tax commission would be authorized, when evidence of the selling value in the usual course of business is available, to reject such data and substitute therefor the Finlay or any other method of value. The case at bar differs from the Newport Case. Here, we have undisputed evidence of a recent sale of the property, in fact a sale made within less than a month of the time when the valuation was to be placed upon the property. Even though it may be exceptional for a large iron mine to be sold, when it does happen, and the data is actually available, section 27 makes it improper to use some other standard of value. The commission cannot arbitrarily disregard such sale and continue to follow the method of valuation which it has adopted for use in the absence of such data. The controversy in this case arose absolutely and entirely from the unwillingness of the board of State tax commissioners to follow the standard prescribed by the statute. The board erroneously assumed that, because the Finlay method of assessing mining properties had been, as they thought, quite generally regarded as satisfactory, it would not be ‘right’ for them ‘to depart from that method in any one instance’ and make a valuation on a different basis. By reason of their holding this erroneous and incorrect view of their legal duty under the circumstances, the commission decided and announced that ‘it was not called upon to take any action because of the change of ownership of the Republic mine.’ In pursuance of this opinion the commission entirely disregarded the sale of this property to the plaintiff, and assessed it according to the Finlay method. In other words, the tax commission erroneously interpreted the Newport Case as authorizing the complete substitution of. the Finlay method for the statutory rule, so far as the assessment of mining properties is concerned. This action on their part was illegal, and operated as a legal fraud upon the rights of the plaintiff.”
    And again:
    “While the assessing officers are undoubtedly given wide discretion in determining what is the usual selling price obtained at private sale, when that fact is determined it becomes absolutely binding upon the assessing officers. They are not permitted to ignore the standard fixed by the law and set up some other or different criterion of value. Otherwise, there could be no equality ip taxation.”
   Ostrander, J.

(after stating the facts). The purpose of the law in requiring all assessments to be on property at its cash value is to provide a standard for determining an equality of assessments. The legislature has said that the words cash value, in this connection, shall be held to mean—

“the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained therefor at private sale, and not at forced or auction sale.” 1 Comp. Laws § 3850 (1 Comp. Laws 1915, § 4021).

This section of the statute does not stop here, but continues as follows:

“In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits, known to be available therein and their value.”

“The usual selling price” at the place where the property is when assessed is manifestly no guide to an assessor in a case where the property is singular in character and is never sold, or sold once in a decade. “Private sale” is contrasted with “forced or auction sale,” and under proper conditions affords a guide to the assessor with respect to property which is commonly sold at private sale and also at forced and auction sales. Land, used for farming purposes and for residence purposes, valuable alone for cultivation or for residence, or both, is frequently sold, both at private sale and at public auction. In a particular community, the cash value of land is determined, without very much trouble, by experience, by history. Location and quality of soil would be considered in fixing the cash value of a farm. Location would be considered in valuing a city lot, but the quality of the soil would usually be a negligible factor in determining its cash value. And, in particular cases, quantity and value of standing timber, and the value of mines and mineral deposits, must be considered. The legislative definition, or meaning, of “cash value” applies to personal as well as real estate. Most taxable commodities are bought and sold in an open market, where there are competitive sellers and bidders. There is usually, for most commodities, a market price. Suppose, however, there is not a market price, and suppose that the property to be valued, real or personal, has no usual selling price at private sale and has never been sold in a particular community at forced or auction sale. Suppose the article has never been and cannot, reasonably, be duplicated. In short, suppose that no one or more of the tests found in the legislative definition affords, any aid whatever in ascertaining the cash value of the article listed. Does it therefore escape taxation? Or, suppose an owner of real or personal property is willing, and perhaps anxious, to dispose of it for less than it costs, and less than it would cost to duplicate it, and does dispose of it at private sale. Any number of illustrations may be given in support of the idea that the legislative tests are not and cannot be the only ones, and are not and cannot be exclusive of others.

Appellant does not, of course, contend that a purported sale of property, as land, or a mine, must be accepted by the assessor as fixing the cash value of the property, but does contend that when it appears that the seller and buyer of a mine are acquainted with the property and with other generally similar properties, know the value of ores and, generally, at any rate, the cost of mining, when they negotiate upon even terms and in good faith agree upon a value to be paid and received, in cash, for the property, the true cash value for purposes of taxation is thereby fixed and the assessor must accept it. I think the argument, to some extent, is affected, unconsciously, by the idea that, in the particular case, the good-faith agreement of vendor and vendee has eliminated an estimated factor — the factor of the quantity of non-visible ore — employed by the assessor in considering the valuable deposits available, in the land, so that what was before problematical and uncertain has been reduced to at least relative certainty by the fixing of the price in the agreement to buy and sell. If this idea at all affects the argument, it should not do so because it is evident that the buyer and seller are no better informed about the quantity and quality of nonvisible ore in this mine now than they were before the sale was negotiated, and no better informed than the agents of the State who made the estimate of the quantity of nonvisible ore for the State.

The legislative statement of the meaning of cash value, which is really a statement of tests to be applied in determining cash value, is not exclusive or in-elusive. The tax law must be read as a whole. The' general purpose of the law is to subject property to a proportionate payment of public levies. The' first step in giving this purpose effect is listing and valuing of property. The duty of the assessor is to value property at its cash value, following and guided by the statute tests, and it is also his duty to list and to value property if none of the statute tests are helpful. It is usually persuasive of the value of a particular piece of property when its owner after negotiations sells it at private sale at a particular price. The Cambria Steel Company is a large user of iron ore of some grades; The Cleveland-Cliffs Iron Company is a producer of ore. It appears to have taken over the operation of this mine. There is nothing to indicate bad faith, or that the transaction amounts to anything else than the sale of the fee of this mine (and some other property) for $600,000 cash.

On the other hand, such sales of mines are not common ; are rarely made. There is no market for the fee of iron mines, and no usual selling price for them. There can be none, and it is likely that a dozen similar sales would afford no reliable data for the valuation of any unsold iron mine. On the other hand, too, by approved methods the State had determined the value of this mine to be more than $1,000,000, in which it was in agreement with the superintendent of the mine, a man of experience. In this it employed certain factors, and with all the rest the judgment of the assessing officers. The factors are quite as certain, as reasonable, now as they were before the sale was made. The result arrived at by the assessing officers, approved by experience, by the history of the mine, is questioned by nothing except the price for which the land was sold. The fact that the property had been sold was a fact to be considered by the assessing officers who were nevertheless, in view of -all the facts, required to determine, according to their best judgment, the cash value of the property. The assessors adopted no wrong principle for determining the cash value when they considered the factors approved as the Finlay method, the official data at hand, and the fact of the sale to plaintiff; it would be unfair to say that they did not consider the fact that the sale had been made as affecting cash value. They disregarded none of the statute facts. There is no evidence of fraudulent purpose.

The case for plaintiff is, I think, no better than this: The good faith, judgment, and conclusions of the assessing officers is opposed by the good faith, judgment, and conclusions of the vendor and vendee of the land, affected* in the case of the vendor and vendee, by private interest. But the duty, in this behalf, rests upon the assessing officers, and their discharge of it, in this case, cannot be interfered with by the court. The judgment is affirmed, with costs to appellee.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.
      Removed to Supreme Court of United States by writ of error June 30, 1917.


text:
    NICHOL v. NEVERS.
    1. Garnishment — Jurisdiction—Residence of Garnishee.
    The circuit court of one county is not deprived of jurisdiction in garnishment proceedings merely because a garnishee corporation may be a resident of another county than that in which the principal action is brought.
    2. Same — Affidavit—Nonresident—Garnishee — Effect of Disclosure.
    An affidavit for a writ of garnishment to a county other than that in which the principal action is brought is defective where it does not specify whether the garnishee is a resident of such other county or a foreign corporation.
    3. Appeal and Error — Record—Question Presented.
    A garnishee cannot object on appeal to the jurisdiction of the court where he is served with summons in a county other than that in which the principal action is brought but respects the writ and makes disclosure, as he thereby l submits to the jurisdiction of the court, if an act of submission is necessary.
    4. Garnishment — Jurisdiction—Appeal and Error.
    A garnishee cannot object on appeal to the authority of the court to require the production of its books and papers in court, where the record does not disclose that it is a 'nonresident of the county wherein the principal action is brought and judgment against it rendered in garnishment.
    '5. Same — Affidavit for Default.
    The affidavit of default in a garnishment proceeding stating that the garnishee had failed to appear before the court or produce its books or submit to an examination “as required by the order of said court,” was sufficient, although the order stated that the garnishee should appear at the office of the circuit judge.
    6. Same — Notice of Default — Judgment.
    Notice of a garnishee’s default after service or of assessment of damages is unnecessary, and judgment may be entered on motion.
    7. Same — Mandamus—Motions—Appeal and Error.
    Mandamus does not lie to compel a circuit court to grant a motion to set aside a judgment by default against a garnishee, but the validity of such judgment may be determined on appeal from the record.
    8. Same — Affidavit of Merits — Motions—New Trial.
    An affidavit of merits should accompany a motion to set aside a judgment by default against a garnishee, considered as a motion for a new trial or in arrest of judgment.
    9. Appeal and Error — Setting Aside Judgment — Discretion.
    The allowance of a motion to set aside a judgment against a garnishee is addressed to the sound discretion of the trial court.

      Error to Ionia; Davis, J.
    Submitted January 15, 1917.
    (Docket No. 136.)
    Decided May 31, 1917.
    Garnishment proceedings by John Nichol, receiver of the Citizens’ Mutual Fire Insurance Company, against Stiles Brothers Company as garnishee of Wilbur Nevers, principal defendant. Judgment for plaintiff and said garnishee brings error.
    Affirmed.

      Alfred R. Locke, for appellant.

      R. A. Colwell and John Nichol, for appellee.
   Ostrander, J.

What is involved is the validity of a judgment rendered against the garnishee defendant, Stiles Bros. Company, upon its default, February 26, 1916, for $40.53 and costs. The circuit court refused, upon motion of the garnishee, to set the judgment aside. Whether the judgment is a good one must be answered by the record. As appears by the record, John Nichol, as receiver, etc., recovered a judgment against defendant Wilbur Nevers in the circuit court for the county of Ionia, on April 12, 1913, for the sum of $13.42 damages and for costs, later taxed at the sum of $22.10. It was a default judgment, defendant having been personally served with process, but not having appeared or pleaded. On August 9, 1915, the said John Nichol made an affidavit for a writ of garnishment, which affidavit he filed August 14, 1915, and in which he sets up the fact of the judgment; that it is unpaid; and that Stiles Bros. Company, a corporation, “located in the State of Michigan,” has property, etc., belonging to the principal defendant and is indebted to said principal defendant. In this affidavit, the home or principal office, or place of business, of Stiles Bros. Company, is not stated. Whether it is a domestic or foreign corporation is not stated. Apparently, this affidavit secured the issuance on August 16, 1915, of a writ of garnishment out of the circuit court for Ionia county, directed to the sheriff of Kent county, commanding him to warn and summon Stiles Bros. Company to appear and make disclosure on August 31, 1915, touching the liability of said Stiles Bros. Company as garnishee of said Wilbur Nevers, etc. The writ is not found in the printed record, but is printed as Exhibit A in the brief for appellee. It is assumed, because it is not questioned, that the record is in this respect infirm and that it may be treated as thus supplied. How and when this writ was served is not disclosed. However, the president of Stiles Bros, Company, or some one so describing himself, made and verified a written disclosure and filed it September 13, 1915, in which an indebtedness of said company to the principal defendant, in the sum of $7.50, on August 23, 1915, was admitted. In the same style, an amended disclosure was filed September 22, 1915, in which any liability or indebtedness is denied and in which it is stated that Nevers was indebted to the garnishee defendant on August 23, 1915, “at the time when the writ of garnishment in said cause was served. * * * ” Plaintiff demanded an examination of Stiles Bros. Company before the circuit judge of said circuit court for Ionia county on September 13, 1915, at 1 o’clock in the afternoon, and served Stiles Bros. Company with notice of the demand by delivery to the president of the company in the county of Kent on September 8, 1915.

Nothing further appears until in November, 1915, when an affidavit was filed by the attorney for plaintiff, setting up that on October 19, 1915, the affidavit of the said plaintiff was filed in the cause, and an order of court made requiring the garnishee defendant to appear before said court on October 30, 1915, and to submit to an examination and to produce books and papers, and that, in serving notice of such affidavit and order, by a clerical error the day for appearance was made to read October 20th instead of October 30th. The affidavit asks for an order requiring the garnishee defendant to appear “before said court” at a time to be fixed in the order by the court. The circuit judge thereupon made an order dated November 11, 1915, that the garnishee defendant appear “before me at my office in the city of Ionia, * * *” on November 30, 1915, at 10 o’clock a. m., etc. This order was served at Grand Rapids November 19,1915, upon the secretary of Stiles Bros. Company. An affidavit of the attorney for plaintiff, made December 29, 1915, sets up the failure of the garnishee to appear “before said court at his office” on November 30,1915, and to produce books there. Then on motion of plaintiff, default of the garnishee for not appearing and submitting to examination was entered, and on February 26, 1916, judgment was rendered for plaintiff against the garnishee defendant for $40.53, besides costs to be taxed.

I have thus stated what, according to the printed record before the court, is the record of the judgment sought to be set aside. The printed record does contain other matter which was brought to the attention of the trial court upon the motion to set aside the judgment against the garnishee defendant. It was shown, for example, that, after securing the judgment against the principal defendant, the plaintiff, before bringing the action in garnishment, sold the assets of the defunct corporation remaining uncollected and by order of the .court transferred them and was discharged as receiver. So, also, it was shown by affidavits that counsel representing counsel for the garnishee defendant learned that the circuit judge was absent from Ionia on November 30, 1915, and was in the city of Detroit, and advised the garnishee that it would be useless for the garnishee to go to Ionia or to send any of its officers there. The certificate of the circuit judge to the so-called bill of exceptions contains the following matter, the meaning and effect of which I do not understand:

*T hereby further certify that, at the time of the argument of the motion, to set aside said judgment, I said I thought, as I remembered, I was in Detroit holding court, and said circuit judge hereby returns that he, the said circuit judge, said at that time he was absent from the city of Ionia on the 30th day of November, A. D. 1915, and was holding court in the city of Detroit, and there was no other circuit judge present at the city of Ionia or holding court thereat on the said 30th day of November, 1915.”

Coming to reasons, based upon the record of the judgment, urged against its validity, it is said the court had no jurisdiction because the garnishee defendant was a resident of Kent county. This fact does not appear in the record of the judgment, and, if it did, would not deprive the circuit court for the county of Ionia of jurisdiction in the garnishment proceeding. 3 Comp. Laws, § 10636 (5 How. Stat. [2d Ed.] § 13472, 3 Comp. Laws 1915, § 13157). It is said no authority appears for issuing the writ to the sheriff of Kent county, and undoubtedly the affidavit for the writ of garnishment should specify when a garnishee defendant resides in another county, or is a foreign corporation. 2 Green’s Michigan Practice (3d Ed.), § 1454, Otherwise, no reason would appear, of record, for directing the writ to the sheriff of a county other than the one in which the suit is pending. But the garnishee defendant respected the writ and made a disclosure, submitting itself, if an act of submission was necessary, to the jurisdiction of the court. It is said that the court had no authority to require a Kent county resident to appear and produce books and papers in Ionia county. I have pointed out that the record of the judgment does not disclose that the garnishee defendant was a resident of Kent county.

The affidavit of default states that the garnishee defendant failed to appear “before said court or produce its books, or submit to an examination, as required by the order of said court.” It is urged that, because the garnishee was ordered to appear before the circuit judge at his office, the affidavit does not make out a default. This is, I think, too technical an objection, although advanced in a proceeding which is a harsh one and in which jurisdiction is retained by rather strict observance of procedure. The order for appearance had been duly served and speaks for itself. The affidavit refers to the particular order and its nonobservance.

Finally, it is urged that no notice was given of the default or of the assessment of damages. The theory of the objection is that a party who has appeared in an action is entitled to notice of all subsequent proceedings, and, in this case, filing of the disclosure constituted an appearance. The objection is not good. There was no appearance of the garnishee defendant in the proceeding which followed the filing of the disclosure. That proceeding is most like the one instituted by the issuing and service of the second summons in justice’s court. It is true that a disclosure by a garnishee defendant, answers to interrogatories, and testimony given on personal examination, may each of them be, and each of them is, treated as a plea, and the affidavit for the writ is treated as a declaration. But, when the garnishee has been defaulted for want of answers to interrogatories or failure to appear for examination, it has been the practice to enter judgment on motion. 1 Stevens’ Michigan Practice, §§ 110, 111.

An application was made to this court for an order requiring the circuit court to grant the motion to set aside this judgment, and the order was refused because mandamus was not the proper remedy. The judgment existed, good or bad, and its validity could be determined on appeal by an examination of the record. It is now urged, however, as ground of error, that the circuit court refused to grant the motion. I have reached the conclusion that the judgment, upon the record thereof, is a good one and cannot be reversed. Treating the motion to set aside as one for a new trial, or in arrest of judgment, it was not accompanied by an affidavit of merits and, if it was, is addressed to the sound judicial discretion of the trial court.

The judgment is,affirmed.

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