author: McAlvay, J.

text:
      In re HORN’S ESTATE. CURRAN v. BARTOW.
    Wills — Execution — Attestation — Subscribing Witnesses —
    Order oe Signature.
    When there is no explicit requirement of the statute as to the order of signatures to a will, and when all who participate in the execution of a last testament are present at the same time, and their acts are part of one continuous transaction, it is immaterial that one witness subscribed to the will before the testator. 3 Comp. Laws, § 9266.
    Error to Wayne; Brooke, J.
    Submitted February 8, 1910.
    (Docket No. 126.)
    Decided April 1, 1910.
    Catherine Curran presented for probate the last will and testament of George Horn, deceased. The will was allowed in the probate court, and Frederick Bartow, contestant, appealed to the circuit court. A judgment for proponent on a verdict directed by the court is reviewed by contestant on writ of error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Bowen, Douglas & Maman, for appellee.

       As to signature of witnesses to will before testator signs it, see note to Brooks v. Woodson (Ga.), 14 L. R. A. 160.

   McAlvay, J.

Contestant appealed to the circuit court of Wayne county from the order admitting to probate the last will and testament of deceased. A trial was had in the circuit court, which resulted in a verdict directed for proponent. From a judgment entered upon such verdict, contestant has removed the case to this court by writ of error for review.

The sole question presented in the case is whether there was a due and valid execution of the will presented for probate. The testator died October 12, 1906. The will was executed April 4, 1904. The testator and the two witnesses to the will lived in the township of Redford, Wayne county. The witness John W. Hawthorne kept a country hotel. The other witness, Ansel B. Pierce, was a farmer and a notary public. He had held township offices, and was accustomed to prepare papers for people in that community. On April 4, 1904, Mr. Pierce, with Mr. Horn, the testator, came to the hotel of Mr. Hawthorne, who had known Mr. Horn for more than 20 years. The testator was a farmer and very bright. His health appeared to be excellent. While at his hotel on that occasion, Mr. Pierce called Hawthorne to come and witness a paper. He went into the sitting room, where Pierce and Horn were, and Pierce said to him that Mr. Horn had made his will, and wanted him to sign it as a witness. Mr. Horn told him he was executing his will. He testifies':

I signed first. Mr. Pierce showed me where to sign. Then Mr. Horn signed next. Then Mr. Pierce, to the best of my recollection. * * * I signed first, and then Mr. Horn made his mark, and then Mr. Pierce signed.”

The signature of Mr. Horn is by his mark, which this witness saw him make. . The record shows that these parties were together during the whole time, and the signing, attesting, and witnessing of this will was one continuous transaction. The other witness to this will, Mr. Pierce, died before the testator.

The claimed irregularity in this execution is the signing of Hawthorne as a witness before the testator had signed. The record shows that the other witness signed immediately after the testator. Section 9266, 3 Comp. Laws, contains the statutory provisions relative to the execution of wills. The material portion of the statute reads:

“ No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses.”

The authorities are not in harmony upon the question here presented. This court has never passed upon it. In the case of Schermerhorn v. Merritt, 123 Mich. 310 (82 N. W. 513, 83 N. W. 405), cited as authority by contestant, the question was not involved. An examination of the original record and briefs discloses quite the contrary. The witnesses to the claimed will signed at different times. The testatrix and the two alleged witnesses never met together. When the first witness signed, there was no signature to the paper. There was no proof that her name was written by her in the body of the instrument. When the second witness signed, there was no signature to the will until he told her she must sign it at the bottom before he signed. In the case at bar no irregularity in the matter of the execution of the will is claimed except the order in which the instrument was signed by the testator and one witness. We find abundant authority holding that, in the absence of express statutory provision, in the execution, attestation, and witnessing of wills the order of signature is immaterial, where such acts are a part of one continuous and complete transaction. That there is a line of authorities holding the contrary doctrine has already been stated. These authorities will be discussed later.

Kentucky was among the first of the United States to hold the doctrine that the order of signing, attesting, and witnessing a will was not material. The statute of that State of 1797, relative to the execution, attestation, and witnessing wills, contained like provisions with the same statute in this State. In Swift v. Wiley, 1 B. Mon. (Ky.) 114, the court, distinguishing between the acts of attestation and subscription of wills by witnesses, said:

“Attestation is the act of the senses. Subscription is the act of the hand. The one is mental the other is mechanical, and to attest a will is to know that it has been published as such, * * * but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses for the sole purpose of identification. There may be a perfect attestation in fact without subscription. But, to insure identity and prevent the fraudulent substitution of any other doctrine than that which has been published and attested, the statute providently requires the attesting witnesses to subscribe their names in the presence of the testator. But it does not prescribe the order of the attestation and the subscription; and the attestation being intended to prove that a will had been published, but the subscription being required only to identify the document which had been attested as a will; whether the one or the other of these acts shall have been first in time cannot be essential to the objects of the statute or the effect of the publication; nor can it be material whether the names of the attesting witnesses or that of the testator shall have been first subscribed, if, as in this case, those witnesses had been present when the testator wrote his name or acknowledged it as his signature, and being called upon for that purpose, actually witnessed or attested that fact. Here, as all three of the subscribing witnesses were present at the final publication of the will, attested the fact of signing and publishing by the testator, and either then subscribed or acknowledged the subscription of their respective names on the same paper, so as to insure the identification of the will as then published and attested, every purpose of the statute has been fulfilled, and not even a letter of it violated or disregarded. * * * Indeed, were it material, we might, with obvious truth and propriety, consider the subscription of the names of the three attesting witnesses, and of that of the testator, as one continuous series of acts essentially indivisible as to time; the two first witnesses having remained with the testator until they had in fact attested his subscription and that of the third witness, and, all being present and attesting all together, the final act of publication and of attestation and subscription as to each and all.”

A case quite similar to the case at bar was decided in Virginia in 1849. The briefs of the attorneys are exhaustive and worthy of examination. The court, in concluding its opinion, said:

"And, moreover, the fact whether in the order of time the testatrix made her mark before or after the subseription of the witnesses is, under the circumstances, in no wise material, insomuch as the whole transaction must be regarded as one continuous uninterrupted act, conducted and completed within a few minutes, while all concerned in it continued present, and during the unbroken supervising attesting attention of the subscribing witnesses.” Rosser v. Franklin, 6 Grat. (Va.) 1, 26 (52 Am. Dec. 97).

In 1856 the same rule was adopted in Connecticut. The court said:

“So far as the question has been noticed in the American courts, the inclination seems to have been to consider the order in which the testator and the witnesses put their names to the will as immaterial, provided the instrument is in all other respects legally executed. * * * The general and regular course undoubtedly is for the testator in the first place to sign and execute the will on his part, and then call upon the witnesses to attest the execution by subscribing their names. But where, as in the present case, witnesses are called to attest the execution of a will, and, being informed what the instrument is, subscribe their names thereto as witnesses, and the testator on his part, and in their presence, duly executes the instrument as his will, and all is done at one and the same time, and for the purpose of perfecting the instrument as a will, we cannot say that it is not legally executed merely because the names of the witnesses were subscribed before that of the testator.” O’Brien v. Galagher, 25 Conn. 229, 231.

It was held in Pennsylvania in 1860 as follows:

“Our statute contemplates, undoubtedly, a signature by the testator and then a signing by witnesses in attestation of that signature, when witnesses subscribe at all; but where a transaction consists of several parts, all of which occur at the same moment and in the same presence, are we required to undo it because they did not occur in the orderly succession which the law contemplates ? No language of our statute of wills imposes any such necessity upon us, and we would not decide anything so unreasonable, except under stress of very positive statutory language.” Miller v. McNeill, 35 Pa. 222 (78 Am. Dec. 333).

The courts of the States mentioned hav.e not departed from the doctrine established. Recent cases are found in Illinois and South Carolina. In the Illinois case the cases above mentioned are cited and approved as holding the more reasonable doctrine. The court says:

“ If all of the several acts required by the statute are done upon the same occasion in the presence of the testator and the attesting witnesses, and, as said in the case cited above, under their unbroken supervising attention, and as parts of one entire transaction, we cannot hold that the instrument is rendered inoperative as a will by merely proving the fact that the signatures of the witnesses were affixed before the signature of the testator. Gibson v. Nelson, 181 Ill. 122, 128 (54 N. E. 901, 903, 72 Am. St. Rep. 254).

The South Carolina court, in deciding the question in a similar case, after calling attention to the English statute and English decisions holding a contrary doctrine, said:

“In acts substantially contemporaneous it cannot be said that there is any substantial priority. * * * No doubt the usual and more orderly way of executing a will is for the testator to sign first and then the witnesses; but to hold that a mere change in the order of signing, accidentally or otherwise, would destroy the writing as a will is to sacrifice substance for mere form. When the statute expressly, or by necessary inference, requires such formality, then nothing is left but to enforce it; but the court will not stress formalities which the statute does not.” Kaufman v. Caughman, 49 S. C. 159 (27 S. E. 16, 61 Am. St. Rep. 808).

In the eases hereinbefore cited, the statutes relative to the execution of wills in the several States, with perhaps one exception, are substantially the same as in this State.

Under the English statute, 1 Vict. chap. 26, § 9, the English courts hold that signature or acknowledgment by the testator must precede, in point of time, subscription by the witnesses. That statute by its requirement indicated with particularity the details of the manner of executing wills, and has been strictly construed by the English courts. A few of the American State courts have followed the English decisions and the English reasoning, and in most cases where their statutes of wills are copied after the English statute, or have made additions to it. These States are Massachusetts, New Jersey, and New York. The claim that in the United States the general rule upon the proposition under discussion, irrespective of statutes, is the same as in England, is unfounded. Every American case cited in the encyclopedias or in opinions of courts as authority to that effect has been read with care, with the result above stated. In several of them statements to that effect have been made, which were clearly dicta, and where the question was not before the court. In the leading case relied upon by contestant— Chase v. Kittredge, 11 Allen (Mass.), 49 (87 Am. Dec. 687) — that court in a learned and exhaustive opinion analyzes and discusses all of the English and other cases upon the subject of the execution of wills, and the necessary requirements to their validity in that respect, and declares in favor of the doctrine that witnesses should attest and subscribe after a testator has signed his will. That precise question, however, was not in the case. We quote from the opinion to show the precise question the court in fact decided:

“This analysis of.the cases shows that by the preponderance of American authority, as by the uniform current of the English decisions, an express requirement of statute that one person shall sign or subscribe in the presence of another is not complied with by signing in his absence and merely acknowledging in his presence. And upon full consideration we are satisfied that in this, as in most other legal matters, reason and principle are on the side of authority and precedent. * * * As it appears by the testimony stated in the report that one of the attesting witnesses subscribed his name before the testator signed and in his absence, the instrument offered for probate should have been disallowed.”

In the only Massachusetts case where the question was before that court it recognized the fact above suggested, and said:

“The only question with which we need to deal upon this report is whether an instrument is duly executed as a will under our statutes if the witnesses sign first, in the presence of the testator, and the testator signs immediately afterwards in their presence; the whole transaction being as completely one as it can be with that order of events. The question has been so fully answered by Mr. Justice Gray, in delivering the judgment of this court in Chase v. Kittredge, 11 Allen (Mass.), 49 (87 Am. Dec. 687), that we think discussion unnecessary. * * * It is true in that case the witness in question signed in the absence of the testator and some time before him, but the Chief Justice does not confine his reasoning to that case, and evidently meant, with the concurrence of his brethren, to establish a general rule in the words which we have quoted. We regard that rule as founded on good sense and the plain meaning of the words of the statute.” Marshall v. Mason, 176 Mass. 216 (57 N. E. 340, 79 Am. St. Rep. 305).

By this decision the English rule was first adopted by that court in a case where it could be considered stare decisis. In the case of Lacey v. Dobbs, 63 N. J. Eq. 325 (50 Atl. 497, 55 L. R. A. 580, 92 Am. St. Rep. 667), the majority of that court, under a statute declared by it to be more stringent than the English statute, approves the English cases, and cites Massachusetts and New York cases in support of its conclusions, and also claims dicta contained in cases from other States as authority. The statute of New York, like that of New Jersey, may be said to be more stringent than the English statute of 1837, and, as above stated, the courts of that State follow the English decisions, viz.: Jackson v. Jackson, 39 N. Y. 153, and Sisters of Charity v. Kelly, 67 N. Y. 409, both of which cases are distinguishable from the case at bar. In Reed v. Watson, 27 Ind. 443, and Duffie v. Corridon, 40 Ga. 122, which are cited by contestant as committing those courts to the doctrine contended for, those courts did state the doctrine as claimed, but reference to the facts in each case will satisfy the investigator that such statements were not necessary to a decision of those cases.

What may be called the later or American doctrine, as announced in the cases first discussed in this opinion, has received criticism by at least two of the courts which follow the English reasoning. While not conceding that such criticism is merited, it is suggested that where there is no explicit requirement of the statute as to the order of the signatures, and when all who participate are present at the same time and their acts are part of one continuous transaction, it requires no extended argument to determine that the order of such signing is immaterial under such a statute. Such a conclusion is founded upon sound reason, and, we think, is supported by the weight of American authority. We are of the opinion that the construction contended for by contestant is narrow and inequitable, and, in a case like the present, would make the validity of a will depend upon the capricious memory of one person, subject to such possible influence as the activity or inducements of interested parties might suggest.

The judgment of the circuit court is affirmed.

Montgomery, C. J., and Moore, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
      In re PROVIN’S ESTATE. PROVIN v. PROVIN.
    1. Evidence — Privileoed Communications — Attorney and Client-Wills.
    In a proceeding for the probate of a will, which is contested on the ground of undue influence of the testator’s wife and incompetency of the testator to make a will, an affidavit of the deceased, prepared by his attorney more than a year before his death, with reference to a proposed bill of complaint to be filed against the wife, averring fraud of his wife in the procurement of a deed of forty acres of land to her daughter-in-law, is not subject to theobjection that it is a privileged communication.

    2. Wills — Undue Influence — Declarations of Testator.
    The declarations of a testator are not competent evidence of undue influence, although his affidavit showing his attitude of mind towards his wife who was his sole beneficiary would be competent.
    3. Same — Evidence Excluded.
    No reversible error is committed in excluding such affidavit from the evidence in a case where a verdict refusing the probate of testator’s will would have been contrary to the great weight of the evidence, and other proof showed the facts stated in the affidavit without contradiction.
    Error to Kent; McDonald, J.
    Submitted February 10, 1910.
    (Docket No. 134.)
    Decided April 1, 1910.
    Margaret M. Provin presented for probate the last will and testament of Charles A. Provin, deceased. The will was allowed in the probate court, and Omar H. Provin and Fred J. Provin, contestants, appealed to the circuit court. A judgment for proponent is reviewed by contestants on writ of error.
    Affirmed.

      Smedley, Hall & Freeland (Ewing & Dalton, of counsel), for appellants.

      Glapperton & Owen (J. Byron Judkins, of counsel), for appellee.

       As to privilege of communications to attorney during preparation of will, see note to In re Young (Utah), 17 L. R. A. (N. S.) 108.

   Ostrander, J.

The testimony for proponent tended to prove that Charles A. Provin, who then resided in the village of Rockford, in Kent county, and who was about 73 years of age, arranged by mail with Major E. T. Watkins, a lawyer having an office in Grand Rapids and another in Rockford, to meet him at Rockford on February 29, 1908. These men had been acquainted for 50 years, and Mr. Watkins had rendered Provin some professional services. On that morning Provin called upon Watkins at his office, coming there alone, walking from and to his own home. In accordance with the instructions of Provin, Mr. ’Watkins prepared, and there was executed, a deed of an undivided half interest in 80 acres of land, a part of the Provin farm of 240 acres, which deed reserved a life estate to the grantor, and which deed was by Provin later deposited with a banker to be delivered to the grantee, Hattie Fisher, after the grantor’s death. Mr. Watkins had previously, on February 4, 1908, prepared, and Provin had executed, a deed of the other undivided half of the 80 acres, in which deed Margaret, the wife of Mr. Provin, was the grantee. Mr. Provin desired, also, that Mr. Watkins should draw his last will, and the subject was discussed between them during the forenoon of the day in question. Mr. Provin went away at dinner time, returning, as he said he would do, in the afternoon. A will was drawn and executed, by the terms of which all of the estate of Mr. Provin, after payment of debts and funeral expenses, was given to Margaret Provin, wife of the testator. At the request of the testator, Mr. Watkins took the will with him to Grand Rapids and kept it until the death of the testator, when he filed it in the probate court. The testator died August 4, 1908. The will was offered for probate by the widow, and, after a contest, was admitted to probate. In the circuit court another contest was had, and the verdict of the jury and the judgment of the court are in affirmance of the action, of the probate court.

Charles A. Provin had no children. His wife had one' son, Frank Fisher by name, by a former marriage. His-relatives, other than his wife, are nephews and nieces and the contestants, his brothers. It is claimed that he was. not mentally competent to make a will and that he was unduly influenced in his disposition of his property by his wife, the proponent.

A large number of errors are assigned, based, a few of them, upon rulings made during the taking of testimony, the most of them upon the charge to the jury and refusals to charge as requested. Contestants offered in evidence an affidavit, which the testimony tended to prove was made by the deceased June 22, 1907. It was excluded. This is the only ruling upon testimony complained about in this court. The objection made was that it was immaterial, incompetent, irrelevant and privileged. The court excluded it upon the ground of privilege. The value of this declaration of the testator to contestants is asserted to be the evidence it affords of his attitude towards his wife at the time it was made. It is insisted that it tends to prove that a considerable change of his feeling for his wife was in some way brought about between the time of making the affidavit and the time of making the will, and supports the inference that undue influence was exerted. It appears that in April, 1907, the testator, his wife joining, conveyed 40 acres of his land, reserving to grantors a life estate therein, to her daughter-in-law, Hattie Eisher, who in turn made her deed to Margaret, May 10, 1907. Both deeds were recorded. This transaction coming to the knowledge of the brothers appears to have exercised them considerably. It is their claim, based upon declarations of the testator which were given to the jury, that this deed was procured by deceit, and that testator supposed that he had merely executed a life lease of the 40 acres and had sought to have his wife reconvey the land to him, which she refused to do; that later, during a visit he made to one or other of his brothers, he visited a lawyer, the same one who drew the affidavit, who prepared a bill of complaint, which was offered by contestants and received in evidence. It is not printed, but it seems to be conceded that it was signed and sworn to by the decedent and was in form a bill to set aside the deed of the 40 acres to his wife, and set out in substance the matter contained in the said affidavit. The bill of complaint was never filed, but was laid aside by direction of the deceased, and it does not appear that after hearing it read, signing and verifying it and ordering if laid aside, he ever again referred to it. Later in the year, in December, the contesting brothers, in the probate court, began proceedings to have decedent adjudged to be an incompetent person. After a hearing the proceeding was on February 8, 1908, dismissed.

The affidavit which the court excluded contains among others declarations the substance of which is here set out: That affiant was 73 years old, owner of 240 acres of land, worth #11,000 or #12,000 and free from incumbrances. During the past few years, especially the last year or two, affiant’s wife had insistently pursued him with a demand that he “fix ” his property so she would have control of it or some part of it, threatening to apply for a divorce if he did not, and to apply to the county for a division of the property. She had threatened to have a guardian appointed. For a year or more affiant had been in poor health, suffering from Bright’s disease, and the importunities of his wife had greatly annoyed and disturbed him. To all of her demands he had turned a deaf ear, knowing that if she survived him she would get her legal proportion of the estate in her own right, and her demands were believed to be made in the interest of her son. Along about April, 1907, affiant consented to give his wife a life lease of the 40 acres on which the house was situated. They went together to Grand Rapids to have the necessary document prepared. He was told by the scrivener that the paper would have to be made to a third party. It was made to Mrs. Fisher, affiant supposing he was giving his wife a life use of the 40 acres. Affiant learned later on that what occurred was that a warranty deed had been executed by himself and wife to Mrs. Fisher, reserving to the grantors a life estate in the land, and that' Mrs. Fisher had conveyed the premises to his wife, Margaret. Affiant never intended to make such a deed or any deed of any real estate to Mrs. Fisher or to any other person. Ho was in poor health and weary from a long ride and his signature to the instrument was procured by misrepresentation. Affiant told Mrs. Fisher, a few days after he had executed the instrument, to make over the paper to her mother (Margaret) supposing it was only a life lease of the land.

We are not prepared to hold that the writing itself was rightly excluded as a privileged communication from client to attorney. See O’Toole v. Insurance Co., 159 Mich. 187 (123 N. W. 795). Was it for any other reason reversible error to exclude it ? It is not disputed that in February, 1908, Margaret Provin reconveyed to her husband, and that, as has been stated, he, in that month, deeded to her an undivided half of the 80 acres (including the same 40 acres) and deeded to her daughter-in-law, Hattie Fisher, the other undivided half on the day Ms will was executed. Margaret Provin had worked with her husband on the farm. When married, he had 120 acres, incumbered. The other 120 acres was acquired after the marriage. New buildings were erected. She admits that she and her husband talked over the matter of the devolution of this property upon his death. She wanted, however, and claimed the right, to have a portion of it in her own right so that if her husband survived her it might go to her heirs. Whatever contention they had —she denies that there was contention — was about this, both understanding that she would be provided for, if she survived her husband, if he made no will. We have found in the record no testimony tending to prove that she exercised any influence upon her husband concerning the will he should make, or did make. Clearly, his declarations could not be received for such a purpose. Zibble v. Zibble, 131 Mich. 655 (92 N. W. 348); In re Kennedy’s Estate, 159 Mich. 548 (124 N. W. 516). Indeed, the particular declaration is in affirmance of the idea that her influence was negative rather than controlling. The particular declaration is therefore material only as it tended to prove the mental condition of testator at the time it was made. It tends to prove, if anything, either that he wholly misunderstood the nature and effect of the business he was transacting, or that he was deceived by those in whom he confided, and that his wife knowingly profited by the deceit which was practiced. Considered in connection with what he did, the inference may be drawn that he was temporizing with his brothers, whose interest in the devolution of his property or whose feelings, or at least the feelings of one of them, are expressed in his testimony, as follows:

“I had a talk one time during the last couple of years with Mr. John Berry, a farmer up in Cannon, about the probate proceedings.
“Q. Did you not say at that time and say in probate court that you stated to him the property might all go to hell rather than have any of it go to Mr. Fisher ?
“A. I don’t know that I used just exactly that language.
“Q. Well, in substance that?
“A. I did say I would rather see it go to the lawyers than to go to Mr. Fisher, and I say so now.
“Q. Did you not say you had rather see it go to hell?
“A. That would be going to the same place.”

But with respect to what the declaration may be said to tend, to prove in favor of contestants, the jury had the substance of it before them, and the testimony of contestants that this declaration and similar ones were made is undisputed. The witness Fred J. Provin testified:

“ Q. I ask you now whether the affidavit contained in substance the talk Charlie had with you in your office ?
“A. I say it did; yes, sir.”

The effect of this undisputed testimony is that testator made and repeated, in substance, the declaration that he was imposed upon when he made the conveyance, that his wife profited by it, that he had without success sought to have her reconvey the land, that he consulted counsel, stated the facts to him, and had prepared and verified a bill o’f complaint which set out the reasons for compelling her to reconvey. We are of opinion that, while it would have been proper to admit the declaration in evidence, its exclusion, under the circumstances, was not prejudicial error. Indeed, we are impressed after an examination of the record that a different verdict would have been set aside, upon application, as opposed to the great weight of the evidence.

Tt would profit no one to notice in detail the numerous objections made to the charge of the court. The court did not always use the language ©f the requests, and the charge is not less judicial in tone because of the omission of some of the language suggested by counsel. On the whole, the jury was fairly advised of the applicable rules of law.

The judgment is affirmed, with costs to the proponent.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Montgomeby, C. J.

text:
    STEGEMAN v. FRASER.
    1. Mortgages — Foreclosure—Action at Law — Statutes—Judgment.
    In a suit to foreclose a mortgage securing notes upon which judgment has been previously rendered in justice’s court, the bill must be dismissed unless execution has been issued and returned unsatisfied by the sheriff, with a return showing that the defendant has no other property subject thereto except the mortgaged premises, in pursuance of 1 Comp. Laws, § 521.
    2. Justices’ Courts — Judgments — Sufficiency of Docket and Record.
    Where both parties to an action appear in justice’s court and the docket shows the nature of the action to be such that it could be maintained by introducing a written instrument described in the declaration, and further shows that proofs and allegations of the parties were heard, it will be presumed that the proofs were sufficient to warrant the judgment
    3. Same — Docket—Jurisdiction.
    A defendant in justice’s court may appear and waive formal proof of execution of a written instrument, nor is it required that such waiver be entered on the docket.
    4. Same — Jurisdiction—Collateral Attack.
    All intendments should be indulged in favor of the legality of such judicial action when attacked collaterally if the justice had jurisdiction of the parties and subject-matter.
    Appeal from Cheboygan; Shepherd, J.
    Submitted February 8, 1910.
    (Docket No. 124.)
    Decided April 1, 1910.
    Bill by Albert A. Stegeman against George C. Fraser and others to foreclose a mortgage. From the decree rendered, complainant appeals.
    Affirmed.

      I. S. Canfield, for complainant.

      Reilley & McPhee and Frost & Sprague, for defendants.
   Montgomeby, C. J.

Complainant filed his bill herein to foreclose a mortgage given by defendants, George C. Fraser and wife, to the Miamisburg Twine & Cordage Company, November 12, 1896, to secure three notes of $150.54 due May 1, August 1, and October 1, 189?, and also to secure four notes of even date for $46.25 each, due May 1, August 1, October 1, and December 1, 1897, in favor of Olds Wagon Works of Ft. Wayne, Ind., upon certain lands in Cheboygan county. The mortgage was subsequently assigned by mesne conveyances to complainant. The bill of complaint is the ordinary foreclosure bill. The defendants were grantees of Fraser under conveyances made after the mortgage was given and recorded. The defense made by those who appeared and answered the bill was that the notes accompanying the mortgage and made in favor of the Miamisburg Twine & Cordage Company had been put in judgment in justice’s court before William Thompson, a justice of the peace of Washington township, Sanilac county, Mich., oñ June 1, 1900. There were three of these judgments, and in each case the docket entry shows that execution was issued, but there is no evidence that it was returned unsatisfied. The circuit judge decreed a foreclosure for the amount remaining due on the notes given to the Olds Wagon Works, but dismissed the bill as to the notes and mortgage given by the defendant to the Miamisburg Twine & Cordage Company, but without prejudice to the rights of the complainant to take any proceedings at law or in equity to enforce the collection and payment of the amount represented by said notes given to the Miamis-burg Twine & Cordage Company, and the mortgage mentioned in said bill of complaint to secure the payment thereof, in all respects as if this bill had not been filed to enforce by foreclosure the payment thereof. From this decree the complainant appeals.

The decree was based upon section 521, 1 Comp. Laws, which reads as follows:

“If it appear that any judgment has been obtained in a suit at law, for the moneys demanded by such bill, or any - part thereof, no proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment, the sheriff or other proper officer shall have returned that the execution is unsatisfied, in whole or in part, and that the defendant has no property whereof to satisfy such execution, except the mortgaged premises.”

The appellant contends that there was error in applying this statute to the present case, for two reasons: First, it was said that the statute of limitations had run against the notes as against a suit at law, and therefore it was not incumbent upon the complainant to comply with this statute; second, it is alleged that the judgments were void on their face.

As to the first contention, the most casual reading of the statute shows that an affirmative duty is imposed upon a mortgagee who has secured a judgment, and it would be a novel application of the statute to say that, if he neglects the duty long enough for the statute of limitations to have run against the judgment, this will be equivalent to taking the affirmative action which the statute contemplates. The duty is imposed upon ’ the mortgagee under this statute to seek satisfaction out of the other property of the mortgagor, and this is a substantial right, particularly when third parties’ interests have intervened. The statute was clearly not complied with.

But it is contended that the judgments were void for the reason that the names of the witnesses were not stated on the docket, and that the docket does not show that the notes declared upon were in the several cases filed with the justice at the time of declaring. Section 826,1 Comp. Laws, reads:

“When any written instrument, purporting +o be executed by one of the parties, is declared upon or set off, it may be used in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by oath at the time of declaring, or pleading, or giving notice of set-off, if such instrument shall be produced and filed with the justice.”

We have held in two cases — O'Donnell v. Wade, 151 Mich. 103 (114 N. W. 871), and Charles H. Werner & Sons Co. v. Lewis, 155 Mich. 450 (119 N. W. 431)— that, where the docket entry shows that the written instrument was filed with the justice at the time of declaring, it will be presumed that the proof upon which the justice proceeded was that of the written instrument, and that it is not essential that the docket entry show the names of any witnesses. The docket entry in the present case showed that the plaintiff appeared by attorney, and that defendant also appeared by agent. It showed that the plaintiff declared on a promissory note, and a copy thereof was filed as a part of the declaration. The docket then proceeds to state that, “ after hearing the proofs and allegations of the parties, judgment is hereby forthwith rendered in favor of the said plaintiff,” and against the defendant, etc.

Whether in any case such an attack as that made upon these judgments could be made collaterally we need not determine. But where both parties appear in court, and the docket shows the nature of the action to be such that it could be maintained by introducing a written instrument, and then recites that the proofs and allegations of parties were heard, it will be presumed that those proofs were sufficient to satisfy the justice of the claim.

The defendant, being in court by its agent, might well have waived any formal proof of the execution of the written instrument, and, had such waiver been made, there is no distinct requirement that it should be entered upon the docket. All intendments should be indulged in favor of the legality of judicial action when attacked collaterally where it appears that the court had jurisdiction of the subject-matter and the parties as in this case. We are not prepared to hold these judgments void.

It follows that the decree of the court below should be affirmed, with costs of this court to defendants.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. MYERS.
    1. Intoxicating Liquors — Local Option — Giving Liquors to ■ Guest.
    Furnishing beer to a person in her room at a hotel by a clerk who lives in the hotel, is not furnishing intoxicating liquor in the home of the clerk.
      People v. Peterson, 156 Mich. 235, distinguished. Act No. 207, Pub. Acts 1899, 2 Comp. Laws, § 5412.
    2. Same.
    The gift of intoxicating liquors by the clerk of a hotel to a dining room girl in her own room is in violation of the local-option law of a county in which prohibition of the liquor traffic is in force.
    3. Same — Constitutional Law — Title—Statutes.
    The title of 2 Comp. Laws, § 5412 et seq., is sufficiently broad to warrant the prohibition of giving away intoxicating liquors.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted February 11, 1910.
    (Docket No. 159.)
    Decided April 1, 1910.
    Lindley C. Myers was convicted of violating the local-option law.
    Affirmed.

      Joseph B. Sendee and Elmer N. Peters, for appellant.

      Russell R. MePeek, Prosecuting Attorney, for the people.

       As to social treating to liquors as an offense, see note to People v. Peterson (Mich.), 21 L. R. A. (N. S.) 134.

   Blair, J.

Respondent was informed against and convicted of an alleged violation of the local-option law, and appeals to this court. Respondent, at the time of the commission of the alleged offense, was clerk of a hotel, and we assume that he boarded and lodged therein. The offense consisted in gratuitously furnishing beer to two dining-room girls in the room of one of them, for social purposes.

The only questions raised which require consideration are:

(1) Was the beer furnished in respondent’s home so that the case is ruled by People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134)?

(2) Is the gift outside of his home of a drink of liquor by a private person, who is in no sense a dealer in liquors, to one of his friends as a mere act of courtesy or hospitality, prohibited by the local-option act ?

1. The dining-room girl had her home in the hotel as well as the clerk, and he had no right in her private room without her consent. The beer was not furnished in the home of the clerk, but in the home of the girl.

2. The title of the local-option act is:

“An act to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, and to prohibit the keeping of any saloon or other place for the manufacture, sale, storing for sale, giving away or furnishing of such liquors or beverages and to suspend the general laws of the State,” etc. Act No. 207, Pub. Acts 1889.

Section 1 of the act (2 Comp. Laws, § 5412) provides:

“That it shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, or to keep a saloon,” etc.

The constitutionality of this act was assailed soon after its adoption and sustained by this court. Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69). Among other things, it was objected that the act was unconstitutional:

“(1) Because the said law embraces more than one object.
“(2) Because’ the objects are not all embraced in the title.”

The court held the object to be single, and that all the instrumentalities were designed to attain that object, and that there was no constitutional objection to the title of the act.

The constitutionality of the act was again challenged in People v. Whitney, 105 Mich. 622 (63 N. W. 765), where this court said:

“Every provision of the act was under consideration in Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69), and it was there held that there was no constitutional objection to it. We have discovered no reason in the argument of the counsel for respondents for now holding otherwise.”

See, also, In re Wilson, 160 Mich. 42 (124 N. W. 1100).

In Feek v. Bloomingdale Township Board, supra, it was said:

“Viewing this act as a whole, we find it to be a law, the object of which is to prohibit the manufacture, sale, etc., of intoxicating liquors at the option of the local authorities of any county in this State.”

In Keefer v. Board of Sup’rs of Hillsdale Co., 109 Mich. 645 (67 N. W. 981), the court held:

“That the purpose of the act is to prohibit the traffic only in case the people of the county so decide, and that the predominant feature of the act is to confer upon the people of the county the right to decide whether they will or will not have prohibition.”

In People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), it was said:

“ The object of the act is to prohibit the manufacture of, and all traffic in, liquors. It cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens.”

It was further held that in furnishing beer to the guests at his daughter’s surprise party, with no intention to evade the law, respondent was not guilty of violating the law. In the course of the opinion, however, the court said:

“Whether an individual might, even in his own house, dispense liquors purchased and kept for his own use, in such manner as to make his conduct obnoxious to the law, is a question not presented.”

Counsel for respondent contend that the Peterson Case rules the present case, and to the same effect cite the following cases from other States: State v. Fulks, 207 Mo. 26 (105 S. W. 733, 15 L. R. A. [N. S.] 430); Cruse v. Aden, 127 Ill. 231 (20 N. E. 73, 3 L. R. A. 327); Com. v. Carey, 151 Pa. 368 (25 Atl. 140); Com. v. Heckler, 168 Pa. 575 (32 Atl. 52); Reynolds v. State, 73 Ala. 3; Austin v. State, 22 Ind. App. 221 (53 N. E. 481); People v. Bird, 138 Mich. 31 (100 N. W. 1003, 67 L. R. A. 424, 110 Am. St. Rep. 299). Most of the cases cited deal, as did our case of People v. Bird, with statutes regulating the business of selling intoxicating liquors. State v. Bulks arose under a local-option statute, the title of which was:

“An act to provide for the preventing of the evils of intemperance by local option many county in this State and cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes.”

The principal question raised by the appeal was the constitutionality of the law so far as concerned the giving away of liquor. The provision was held unconstitutional as not embraced within the title, the court saying that the act was—

“Never intended to cover the mere gift of a drink of liquor by a private person, who is in no sense a dealer in liquors, to one of his friends as a mere act of courtesy or hospitality, and if the act should be construed to embrace such gift as the evidence disclosed in this case, it clearly would be repugnant to the Constitution of this State in that the title itself, as well as the great body of the act, expressed no such purpose.”

The Michigan act under consideration includes within its title a prohibition of the giving away of intoxicating liquors in local-option counties; the first section makes it unlawful for any person to give away such liquors; and the act has been repeatedly held constitutional in every respect. The general liquor law deals with the regulation of a legitimate business; the local-option law was intended, in my opinion, not only to wipe the business out of existence in the county, but to prevent the inhabitants of the county from obtaining liquor within the county. For the latter purpose, the act prohibits any person from giving away intoxicating liquor, and thereby heads off the numerous subterfuges which would interfere with the enforcement of the law. We have held that the statute was not intended to prohibit the individual use of intoxicating liquors, nor to invade the privacy of the home and interfere with the owner’s decent exercise of hospitality towards his guests, but we do not think the terms of the act warrant a further limitation of its operation.

We find no errors in the case, and the exceptions are overruled, and the record remanded for further proceedings according to law.

■ Ostrander, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    PEOPLE v. DUMAS.
    1. Criminal Law — Evidence — Credibility of Accomplice — Witnesses.
    The credibility of an accomplice is exclusively for the jury.
    2. Same — Trial—Instructions to Jury.
    While it is not improper to instruct the jury in regard to the credibility of testimony given by an alleged accomplice in the crime, error may not be predicated on a failure of the trial judge to comment thereon, if no special request is proffered by respondent.
    3. Same — Robbery—Statutes.
    In a prosecution for assault and robbery by respondents while armed with a dangerous weapon, with intent to kill or maim if resisted, proof that a knife was stolen from the person robbed, although no evidence of its value is offered except the production of the knife itself, sufficiently establishes the fact that it was property subject to larceny and of some value. 3 Comp.. Laws, § 11484.
    4. Same — Evidence—Witnesses—Impeachment.
    An accomplice having testified to the commission of a crime by respondents, and having admitted on cross-examination that he had stated to an officer in respondents’ presence that he had lied in first charging them with the crime, the court properly refused to strike out his explanation that he withdrew the chai’ge because he was afraid they would do away with him.
    5. Same — Charge—Credibility of Witnesses.
    The trial court may call the attention of the jury to such interest as the respondents who took the stand in their own behalf would have in giving their testimony, and may inform the jury concerning the weight which they may attach to their admitted criminal record, and the charge is not objectionable in failing to refer to tne criminal record of the accomplice where the court referred to no particular testimony, but used general language applicable to all the witnesses.
    6. Same — Indeterminate Sentence.
    A sentence to imprisonment for life is sufficient without fixing a minimum term under the indeterminate sentence law. Act No. 184, Pub. Acts 1905. People v. Vitali, 158 Mich. 370.

      7. Same — Assault and Robbery with Weapon — Sentence—Ex-
    oessiveness.
    The imposition of life imprisonment is justified for entering a store under false pretenses after closing hours, striking the proprietor’s wife with a revolver and searching the person of the proprietor to commit robbery, although only a jackknife was stolen.
    Error to the recorder’s court of Detroit; Connolly, J.
    Submitted February 11, 1910.
    ( Docket No. 161.)
    Decided April 1, 1910.
    Fred Dumas and Xavier Xryzer were convicted of the statutory crime of robbery and assault while armed with a dangerous weapon, with intent to kill or maim if resisted, and sentenced to imprisonment for life in the branch of the State prison at Marquette.
    Affirmed.

      Trevor & Bumps, for appellants.

      Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   Ostrander, J.

Respondents were informed against for the crime defined in 3 Comp. Laws, § 11484, were convicted and sentenced to prison for life. The exceptions, relied upon will be noticed in the order of their presentation in the brief for respondents.

The testimony for the people tended to prove that three men, two of whom were armed with and displayed revolvers, entered the place of business of one Charles Tyler, in the city of Detroit, and, acting in concert, assaulted Mr. Tyler and his wife, and in a search conducted by one of them found and took from the person of Tyler, and carried away, his pocket knife. Respondents deny being present upon this occasion. Frank Rankowsky, a young man then on his parole from Jackson prison, and at the time of the trial an inmate of the prison, admitting that he was one of the said three men, was a witness for the people. He was not informed against with the respondents. He has a somewhat startling criminal record for one of his years. It is complained that the recorder, in instructing the jury, did not, as fully as the circumstances of the case demanded, comment upon the testimony of this witness. And it is said that he did comment, unfavorably to the respondents, upon the credibility which should be given to their testimony, they having, each of them, admitted a criminal record. It does not appear that any requests to charge were preferred. What was said to the jury upon the subject was the following :

“In that connection let me say that the defendants have taken the stand in their own behalf, as it was their legal right to do. You, as sole, exclusive judges of the credibility of the witnesses, may, if you want to, believe them; but I feel it is my duty to say to you that, because they are the defendants, they are under strong inducement to tell that story which will most redound to their advantage.
“ Now, in determining what amount of credence you are to give to the story of any particular witness, you should, as reasonable men, consider the reasonableness of the story told, and you should, as far as their antecedents appear in evidence, consider their antecedents as bearing; upon their credibility. It goes without saying, that you are to consider the fact that a man has hitherto been convicted of a crime, and has served time for the commission of crime, as bearing upon his credibility; as bearing upon the amount of credence you want to give to his statements under oath.”

No reference was made in the charge to the position of the witness Rankowsky as an accomplice in the commission of crime. It does not appear that Rankowsky had been promised or that he expected immunity. He had been returned to Jackson prison to serve out an unexpired sentence. He admitted having given to the officers the information that respondents participated in the commission of the crime, stating as well that he had nothing to do with it, admitted having had trouble with one of the respondents about a week after the robbery was committed. He also admitted that when the officers confronted him with respondents he in their presence denied their participation. Identity of respondents and the men who committed the assault did not depend solely upon the testimony of Rankowsky.

It is the long settled rule in this State that the credibility of an accomplice, like that of any other witness, is a question exclusively for the jury. And while there have been intimations, rather than rulings, to the effect that it is proper, or is not improper, especially in cases where an accomplice is the sole witness upon a material point, for the trial court to direct the attention of the jury to the circumstance and invite the exercise of caution upon the part of the jury, we know of no decision of this court in which it is held or intimated that the failure of the court to indulge in voluntary comment is ground for reversal. The difficulties which are liable to attend upon comments upon testimony are illustrated in People v. Murray, 72 Mich. 10 (40 N. W. 29), and in People v. Clarke, 105 Mich. 169 (62 N. W. 1117). It is true that in People v. Jenness, 5 Mich. 805, 330, it is spoken of as a duty of the court. The question was not involved, and the language was employed to indicate the limit of comment rather than to state a duty. In People v. Hubbard, 92 Mich. 322, 325 (52 N. W. 729), reference is made to People v. Jenness in ruling that a specific request should have been given. The general subject was discussed in the opinion in People v. Wallin, 55 Mich. 497, 505 (22 N. W. 15), in connection with a general request made by the defense to the trial judge that he point out to the jury the circumstances tending to discredit a witness which the court refused to do. It was said:

“We repeat that instructions respecting the credibility of witnesses, which involve no question of law, are not matter of right. The judge is under no obligation to comment upon the facts; he may, if he chooses, confine himself strictly to laying down such rules of law as must guide the action of the jury, and leave the facts to them without a word of comment. In many cases this is no doubt the desirable course. And it is always within the discretion of the judge to adopt it.”

This contention of respondents is overruled.

No testimony was given upon the value of the knife which was taken. It is alleged to be of the value of 25 cents. It was produced at the trial. The jury were instructed that they must be satisfied, beyond a reasonable doubt, that property of some value was taken from the person of Mr. Tyler. The language of the statute is any money or other property, which may be the subject of larceny. ” It cannot be said there was no evidence that the knife was property, the subject of larceny, and of some value.

The witness Rankowsky, having admitted upon cross-examination that, upon being confronted with respondents and asked by the officer to repeat in their presence the story he had before that time told the officer, had said that he (witness) had lied. On redirect examination he stated that he made this statement because he was afraid that respondents would do away with him. The court refused to strike out this explanatory answer, and the exception taken to the ruling is relied upon. The ruling was proper. The witness had informed the officers that the respondents were two of the guilty persons. They had been taken into custody. He had testified that they, with himself, were the guilty persons. It was, of course, proper for the defense to prove by his admission or otherwise that he had told different stories and had denied the truth of the facts he had testified to at the trial. But whether he had really retracted his first statement to the officers or was merely placed, upon the occasion in question, in a situation where he was afraid to repeat it, was matter of some consequence. Respondents were not entitled to have his retraction appear to be what in fact it was not.

This contention is based in part upon the alleged discrimination made by the court, in the portion of the charge heretofore set out, in the reference to the inducements likely to affect respondents, and in not characterizing the witness Rankowsky. It was not improper to call attention to the interest which respondents had in the result of the trial. And in the next paragraph he clearly invites the attention of the jury, without discrimination, to the antecedents of all witnesses as they have been made to appear. He refers to no particular testimony. The charge is not open to the criticism that it exploits one of the alleged robbers to the disadvantage of the others.

It is urged, lastly, that the sentence imposed was unwarranted, both because no minimum term was fixed, and because, in any event, a sentence for life is excessive and an abuse of discretion reposed in the trial court. As to the legality of the sentence, the point is controlled by People v. Vitali, 156 Mich. 370 (120 N. W. 1003). If we were to consider only that the respondents stole a jackknife, the conclusion that the sentence was so excessive as to be shocking would be irresistible. But the larceny is only one and that the least important element, in fact, in the crime charged. To obtain entrance to a store, occupied with a dwelling, at night, after the store is closed, upon a false pretense, to threaten the family with revolvers, to strike the wife of the proprietor with a revolver to silence her, to search, for the purpose of robbery, the person of the proprietor — these are the facts which the testimony tended to establish with a clearness which warranted the inference that there was an intention, if resisted, to kill or maim the person robbed. Considering all of the circumstances, it does not appear that the imposition of the maximum sentence permitted by the statute is unwise, much less does it appear shocking.

There is no error, and the judgment is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    REID v. HARMON.
    Negligence — Turntables — Contributory Negligence — Trespassers.
    A child of eleven years of age fatally injured while playing with other children on defendant’s turntable, knowing the danger, trespassing on private property, and hurt after removing a plate or fastening in order to set the turntable in motion, is governed by the rule precluding recovery, although a private road which did not affect the deceased’s conduct ran near the structure and a street was not over 36 feet away.

    Error to Van Burén; Des Voignes, J.
    Submitted February 15, 1910.
    ( Docket No. 174.)
    Decided April 1, 1910.
    Case by David Reid, administrator of the estate of Florence Reid, deceased, against Judson Harmon, receiver of the Pere Marquette Railroad Company, for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Samuel H. Kelley and Thomas J. Cavanaugh, for appellant.

      McPherson, Bills & Streeter, for appellee.
    Plaintiff’s intestate, a child 11 years of age, was injured May 8, 1906, while playing with other children in moving and riding upon a railroad turntable. Death resulted from her injuries, but not immediately. The negligence of defendant which is alleged is a breach of the duty to safely guard, inclose, and lock or otherwise fasten and keep fastened the said table, when not in use by defendant. This duty, it is alleged, arises out of certain facts, stated in the declaration, in substance, as follows: The turntable is adjacent to two certain public streets in the city of South Haven and partly in a roadway used by the public, in plain view of persons passing upon either of the said highways and the said roadway; that the structure was of such a nature as to induce and invite children to play with it and ride upon it, rendered the premises and the said roadway dangerous, and to the knowledge of defendant a large number of young children were in the habit of entering upon the said table and riding and playing thereon. The testimony clearly shows that the turntable was wholly upon private property, upon a piece of ground used for a railroad yard, for icehouses, coal sheds, and warehouses. The ground is much below the level of the nearest streets, upon a “flat.” The turntable is 132 feet from Phoenix street and 36 feet from Kalamazoo street, which streets intersect and form respectively the south and the east boundary of the land. The land at the intersection of these streets is 20 feet above the “flat” in which the turntable structure is located. Black river bounds the “flat” on the north and there is no street on or near the west boundary. A sidewalk considerably west of the property runs in a northwesterly direction from a point on Phoenix street to Black river. There are some private roadways upon the “flat,” one of them beginning on Kalamazoo street and running in a northwesterly direction between the Michigan Central tracks and the turntable to the said sidewalk. In course of time the particular road has come to be used by people who desired to visit the buildings located on the “flat” and by others for convenience in going from Quaker and Williams streets which together debouch into Kalamazoo street some distance north of Phoenix street. Whether owners of the property traversed by this private road have consented to or dissented from such use of it by those who merely used it to cross the premises is not shown. It was maintained entirely by the owners of the land, appears in no plat of the city, and its course has been varied from time to time to suit the convenience or need of the owners. It runs very close to the turntable, the foundations of which come to or very close to the roadway or wagon track. Plaintiff’s intestate, upon the occasion of her injury, passed from a house standing at the intersection of Phoenix and Kalamazoo streets, on the north of Phoenix and the east of Kalamazoo, traveled across Kalamazoo, down the west side of that street to a point where it is intersected by the switch track south and east of defendant’s main line, which switch track leads to coal sheds, went down the bank — side of the street — to the low ground, crossed the switch track, the main track, and climbed upon the turntable. She made no use of any road running through the grounds. The turntable was not secured by a lock, but was fastened. The testimony upon this subject was as follows:
    Plaintiff’s witness Edith E. Eager:
    “I never observed whether or not it was locked.”
    Plaintiff’s witness Dorothy Eager:

      “ The turntable was not inclosed by a fence or other inclosure. To get hold of the table to turn it there was a bar that we pushed, and it wasn’t locked and it turned easy. I never knew it to be locked. It was not locked that evening when we went down there. * * * I remember of finding a plate in there between the ends of the rails. The children took that out. They could not push it until they took that out. I nearly always found that brace in there. I believe once or twice it was not there, but it was nearly always there. It was an iron bar a good deal like a board that extended between the rails of the turntable and also the rails on the land, and you could not budge the turntable either way until you had taken out that iron piece. I think we took it out that day. X don’t remember if X helped. I could not tell you who took it out that day. When we took it out we just let it lay on the part that was on the land. We would usually put that piece back where we found it. The children would usually do that. The iron plate was not very heavy. One little girl could lift it alone. I could lift it out. I can’t remember a time when I did not find it there.”
    Plaintiff’s witness Marie Wheeler:
    “I can’t remember who took the little iron plate out of it, but I remember it was in there. * * *
    “Q. You say that you remember them taking out that iron plate; did you help take it out ?
    “JL No, sir; I don’t remember who took it out.

      “Q. Well, did you lift it ?

      “A. No.

      “Q. How many of them took it out ?

      “A. I don’t remember anything about it.

      “Q. What did they do with it after they took it out P

      “A. I don’t remember that, either, unless they laid it on the ground there. * * * I suppose they had to take that plate out before they could turn the table around. I suppose that is what it is for. I understood that it had to come out before it would turn around.”
    Plaintiff’s witness Belva Combs:
    “When we got there we pulled an iron bar that kept it from going around and then started to push it and jump on. * * * I think I helped take out the iron plate that holds the turntable. I don’t remember if Florence helped. Some of the girls did. I do not know which ones. I think it was Raymond Reid helped take it out. We just pulled it right out, I think. This plate fastened right in between the rails. We could not move the turntable when the iron plate was in there. I think it was there to keep it from turning around when not in use. We pulled it right straight out, slipped it between the rails. It was fastened right between the rails so it would slip and then you had to pull it out; you couldn’t lift it, you would slip it to get one end out. All that was required was to pull it from between those ends, so that the ends of the turntable would clear. I don’t think I could lift that plate myself. I think it would be as heavy as 40 or 50 pounds.”
    Plaintiff’s witness William Packard:
    “ I have never known it to be locked before the accident. To keep it from swinging they usually fastened it with something between the rails; sometimes it was a board and sometimes it was a plate of iron or steel.”
    Plaintiff’s witness Bichard Gottschlich:
    "The turntable generally was fastened with, an iron plate or wooden plank.”
    The testimony does not show how long defendant or the railway company have controlled the premises, nor that any employe of defendant had knowledge that children played upon or with the turntable, or was notified of the fact. There is testimony tending to prove, and for the purposes of this review does prove, that children have often been observed playing upon the turntable. Plaintiff was not sworn as a witness, and we have found nothing to.indicate his relationship, if any, to his intestate. There is, however, the following testimony: Plaintiff’s witness Edith Eager:

      “ I told the children time and again to stay away from there, and I know that the Beid children’s parents had told them. * * * I had not told the Reid children that it was dangerous to play there.”
    Plaintiff’s witness Dorothy Eager:
    “ Q. I suppose the children had said there, one to another, Be careful, or you will get caught ? ’

      “A. Yes, sir. The children understood that if they were not careful they would be liable to be hurt by that turntable.”
    Plaintiff having rested his case, the court directed a verdict for the defendant.

       As to liability of railroad companies for injury to children playing on turntables, see notes to Pannill v. Railroad Co. (Va.), 4 L. R. A. (N. S.) 80; Conrad v. Railroad Co. (W. Va.), 16 L. R. A. (N. S.) 1129.

   Ostrander, J.

(after stating the facts). The plaintiff assigns seven errors, none of which are mentioned in the brief. The argument, in the brief, is, in substance and effect, that the court should either refuse to further adhere to the doctrine announced in Hargreaves v. Deacon, 25 Mich. 1, Ryan v. Towar, 128 Mich. 463 (87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481), Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571 (92 N. W. 38), and restated and elaborated in Iamurri v. Saginaw City Gas. Co., 148 Mich. 27 (111 N. W. 884), and in other decisions of the court, or should find in the facts,' notably in the fact that the turntable was so close to the private road heretofore described, room for the application of a different doctrine. It is admitted that plaintiff’s intestate was a trespasser and was injured while committing a trespass. She was upon private property and was making use of the structure and apparatus found thereon for her own pleasure. What was there was not dangerous to her or to others unless interfered with. To use it, the plaintiff’s intestate and those who were with her were obliged to interfere with the structure, to remove the fastening which kept it in position and to set the turntable in motion. It is not and it cannot be claimed that the proximity of the structure to the highway had anything to do with — in any manner influenced —the conduct of plaintiff’s intestate. It is not and cannot be contended that she did not understand that the use made of the structure was dangerous. We find in the facts no reason for considering the case one to be governed by a rule different from the one announced in the decisions referred to. To the rule itself we adhere.

The judgment is affirmed, with costs of both courts.

■ Hooker, Moore, McAlvay, and Blair, JJ., concurred.


text:
    McKERCHEY v. McILVENNA.
    1. Sales — Damages—Special Contract.
    In an action for goods sold and delivered, testimony showing that the plaintiff stated he would sell to the defendant as cheap as any other dealer, does not support the claim that a special contract to charge the market price was made by the parties.
    2. Appeal and Error — Saving Questions for Review — Evidence-Witnesses.
    On recoupment for insufficiency of the quantity and quality of the goods delivered, complaints of the defendant made to a deceased agent of plaintiff are competent, but the exclusion of such evidence is not reviewable unless exception is taken to rulings on questions which were admissible and error affirmatively appears.
    3. Same — Briefs—Saving Questions for Review.
    Comment on the court’s charge in appellant’s brief to the effect that it was prejudicial and not based on the testimony is too general to permit a review.
    Error to Wayne; Donovan, J.
    Submitted February 15, 1910.
    ( Docket No. 166.)
    Decided April 1, 1910.
    Assumpsit by John M. McKerchey against Robert Mc-Ilvenna for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Harry L. Schellenberg, for appellant.

      Philip A. McHugh and William Henry Gallagher for appellee.
   Ostrander, J.

Plaintiff sued defendant to recover $131.46, claimed to be a balance due him upon an open account for goods sold and delivered. Defendant pleaded the general issue and gave notice of a set-off and recoupment, claiming a credit of $127.14. Plaintiff sells builders’ supplies. Defendant is a sidewalk builder. Their dealings, it is admitted, began in June, 1905, and ended in August, 1907, during which period plaintiff sold to defendant goods of the value of $2,224.92; the credits amounting to $2,093.46. Bills accompanied each delivery of goods, and invoices showing quantities and prices were rendered each week. Defendant complained to plaintiff of nothing — neither quantity, quality, nor price of goods— until after this suit was begun.

It is the contention of defendant that plaintiff agreed to sell him goods at the market price, as cheap as any one else and probably a little better, that he never examined his bills carefully and never made inquiry concerning the market price of the material delivered. He offered to prove the market price, and the testimony was excluded. Himself a witness, the defendant gave testimony to the effect that his business was sometimes solicited by plaintiff’s agent. The following occurred:

"Q. Did he (the agent) make any representations to you as to the price of material ?
“A. No, sir; I do not think he did. (Objected to unless the agent’s name is disclosed.)
“A. Mr. Radloff, I think he is dead now.
“Q. What did he disclose to you ? (Objected to as incompetent and immaterial.)
“The Court: I think the objection is good. The opposite party, if called, shall not be permitted to testify at all, and he is the opposite party, and he is called as a witness.
“Mr. Schellenberg: That is, as between the parties to the litigation.
“The Court: No, sir; not at all. The opposite party, and the law is to let people meet on an equality, and, where the opposite party is called to put in testimony that could have been denied if the living party was here, he is prohibited from testifying at all. That will apply right here, because it is the opposite party.
“Mr. Schellenberg: I take an exception.”

Defendant further testified:

His agreement to sell me the materials at the same price as others were selling to me or at better was what induced me to deal with him principally, not entirely, but I would say partly. I am not capable of figuring out the items in my set-off. I never made inquiry as to the market price during the running of this account. I received some bills from McKerchey right along, but never examined them thoroughly. I relied entirely upon Mc-Kerchey’s honesty. I mean by this, I relied upon him to give me the market price.”

On cross-examination the defendant further testified:

“ McKerchey said he could give me goods as cheap or probably cheaper than others. His place was convenient to my place, and I went on and did business with him. The conveniency of his place was some consideration for my entering into business with him. I made payments to him with considerable regularity; sometimes twice a month. I do not remember that I made any complaint as to quality or quantity of the goods delivered at the time when I made the payments. I made a protest and complaints. I complained once about a load of sand to Mr. Wilcox, and he told me that Mr. McKerchey would look for pay for that sand from me. After this complaint I made steady payments.
“Q. When did you first object to the payment of this bill, on account of shortage, or upon any other ground ?
“A. When we were about to come to a final settlement, I asked for a bill of particulars.
“Q. You bought from Mr. McKerchey?
“A. Yes, sir.
“Q. And it is a fact bills were rendered to you ?
“A. Through my lawyer.
“Q. Before you went to your lawyer, what complaint, if any, did you make about the payment of this bill ?
“A. I do not know I made any.
“Q. So that until you retained Schellenberg you were entirely satisfied with this bill ?
“A. No, I cannot answer that question.
“Q. You made no complaint about it, did you ?
“A. About the account ?
“Q. Yes, sir.
“A. No, I do not think I did.”

Being recalled, defendant further testified:

“Q. In your examination, as the defendant in this cause, you stated your conversation with Mr. McKerchey, before you started to deal with him, and I believe it is claimed you stated that he could sell you material as low as the other dealers, in the business, did you say that P
“A. He said he would Sell me as cheap as any other dealer.
“Q. And did you upon those representations deal with Mr. McKerckey ? * * *
“A. Yes, sir.”

Defendant introduced testimony tending to prove that his employe had on one or more occasions refused to sign the driver’s receipts or checks for sand delivered to defendant because the loads were short, and that he reported the shortage to a deceased agent of plaintiff. The testimony concerning the report to the agent was stricken out. It developed that the total of the shortages was probably a load and a half, probably more. The jury returned a verdict for plaintiff, upon which judgment was entered.

There is no testimony tending to prove that the sales were made under a special contract that the prices charged should be the market prices.

The testimony of complaints to the deceased agent of the plaintiff concerning the quantity of goods delivered was clearly competent; but we do not find the point raised by exceptions. The answer to the question, “What did he (the agent) disclose to you ? ” may or may not have been admissible, depending upon facts and circumstances not disclosed. It does not appear affirmatively that error was committed in excluding whatever answer the witness would have made.

As to the charge of the court, it is said in the brief for appellant that “ It was prejudicial to the rights of defendant and not based on the testimony in the case.” No further comment upon the charge is made. The practice does not permit us to review the charge in a search for possible errors.

The judgment is affirmed.

Hooker, Moore, McAevay, and Brooke, JJ., concurred.