text:
    REASON v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Connecting Carriers — Injury to Goods — Action —Burden of Proof.
    In an action against a carrier for injuries to goods delivered to it for shipment beyond its own line and subsequently ordered returned to the shipper, the burden is upon defendant to show delivery to the connecting carrier in good condition, and this having been shown, the burden is upon plaintiff to show that they were in good condition when received again by defendant on the return journey.
    2. Same — Injury to Goods — Damages—Measure.
    In an action against a carrier for injuries to goods shipped and ordered returned; the measure of plaintiff’s damages is the" difference between the value of the goods, when accepted by defendant for shipment and when offered to plaintiff upon their return.
    3. Same — Action—Declaration—Suffioienoy.
    In an action against a carrier for injuries to goods while in transit, a declaration stating that through defendant’s negligence the goods were not delivered to the connecting carrier, nor to plaintiff at their destination or elsewhere, but were wholly lost, damaged, and destroyed, supports a recovery upon proofs showing that after a long delay plaintiff ordered • the goods returned to him at the point of shipment, where they were subsequently offered to him in a damaged condition.
    4. Same — Connecting Carrier — Delivery — Evidence — Suffioienoy.
    In an action against a carrier for injuries to goods delivered to it for shipment beyond its own line and subsequently ordered returned to the shipper, evidence examined, and held, not to conclusively show that the goods were delivered to a connecting carrier.
    5. Appeal and Error — Record—Matters Considered — Motion for New Trial.
    Where it is certified by the trial judge that the affidavits filed with the motion for a new trial were not considered for the reason that copies of them were not served upon opposing counsel, they will not be considered by this court, though they are, as they should not be, incorporated in the printed record.
    6. Carriers — Injury to Goods — Action—Evidence—Declarations or . Defendant’s Agent — Score or Authority.
    In an action against a railroad company for injuries to goods delivered to it for shipment beyond its own line and subsequently ordered returned, the defense being that the goods were injured while in the hands of a connecting carrier, a statement by defendant’s agent, after their return, that they never left defendant’s line, treated as an admission of the fact, was material; but it being no part of the agent’s duty to inform himself of the fact, and his statement not having •been made in the performance of duty, it was gratuitous, and proof of it incompetent.
    7. Same — Damages—Goods Returned.
    Where, in an action for injuries to goods delivered to a carrier for shipment and afterwards ordered returned, it appears that plaintiff refused to receive certain of the goods which were unopened, and there is no evidence as to their condition or value when returned, though there is testimony as to the value of all the articles shipped and those retaken by plaintiff, the result being that plaintiff was permitted to take both his goods not proved to have been at all injured and the value of them when shipped, the judgment must be reversed, though the proper rule for assessing damages was given in the instructions.
    8. Same — Instructions—Propriety—Limitation or Liability.
    An instruction, that by the contract of carriage defendant’s liability was limited to §5 for each hundredweight of goods carried was properly refused, there being no evidence of the fact asserted, further than the unexplained legend on the bill of lading, “O. R. Rel. ¡¡¡>5 per cwt.”
    9. Costs — Appeal—Prolix Record.
    In taxing costs on reversal, the record will be diminished the number of pages occupied by affidavits filed with a motion for a new trial but not entitled to consideration in this court or the court below because not served upon opposing counsel.
    Error to Shiawassee; Miner, J.
    Submitted June 19, 1907.
    (Docket No. 37.)
    Decided November 5, 1907.
    Case by Henry Reason against the Detroit, Grand Haven & Milwaukee Railway Company for failure to transport certain goods. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      L. C. Stanley, for appellant.

      Walsh & Pardee, for appellee.
   Ostrander, J.

In each of the three counts of the plaintiff’s declaration it is averred that plaintiff delivered to defendant for shipment, and defendant accepted and agreed to transport for hire from Corunna, Michigan, to Nashville, Tennessee, by itself and by connecting carriers, there to be delivered to plaintiff, certain household goods and provisions. It is averred that defendant is a common carrier of goods from Grand Haven, Michigan, to Toledo, Ohio. In the first count, the breach of duty alleged is failure to safely convey the said goods to Nashville, and failure to there deliver them to plaintiff; that in fact the goods were by the negligence and fault of defendant, and within the venue laid in the declaration, wholly lost, damaged, and destroyed. In the second count, the duty to so convey and deliver said goods within a reasonable time is averred, and that through the negligence of defendant they were not delivered to the connecting carrier, or to plaintiff at Nashville, or elsewhere, but were wholly lost, damaged, and destroyed. In the third count, certain resulting damages, not considered by the court or jury, are averred. The plea is the general issue. A verdict for plaintiff for $350 was rendered by a jury, and judgment was entered on the verdict. A motion for a new trial was made by defendant and was granted unless plaintiff would remit $90 of the judgment. This he did.

That defendant, at Corunna, accepted and forwarded, in two shipments, goods consigned by plaintiff to himself at Nashville, and that the same goods, or a portion of them, were afterwards, by plaintiff’s request or direction, returned to Corunna, in the custody of defendant, is not disputed. Some of the property so returned was injured between the date of shipment and return, some of it plaintiff took away, and some he declined to remove. After shipping the goods, plaintiff and his family removed to Nashville, intending to reside there. After waiting for four weeks or more the arrival of his goods, he returned with his family to Michigan.

It is the contention of plaintiff that the goods were never out of the possession of defendant and were injured while in its custody upon the outbound or return journey; that if they were delivered by defendant to a succeeding carrier, from which it again received them, it was bound to prove that they were carried to Corunna in the condition in which they were received for the return journey.

It is the contention of defendant that it proved by undisputed and conclusive testimony the safe carriage of the goods and the delivery of them, in good order, to a succeeding carrier; the theory of counsel being that if this fact is established, no recovery can be had under the declaration, even if the goods were lost or injured on the return trip while in its custody.

The trial court denied the conclusive character of the evidence relied upon by defendant, and upon this subject instructed the jury as follows:

“After the goods have been received by the defendant, it is the duty of the defendant to show by a preponderance of the evidence that after it has received the goods in question, that it safely shipped them and delivered them to the succeeding carrier uninjured, that is, in the goods going down. If it received them, as shown by the evidence here, it must further show that he delivered them uninjured to the succeeding carrier.
“ The burden of proof is upon the defendant to show that fact, but upon their theory, then the burden changes again and the plaintiff must show by a preponderance of the evidence that the goods were in a good condition, that is, if they were to charge the defendant with the liability on their return back, and the goods were in a good condition when they were received by the defendant on its journey back.
“ In order to enable the plaintiff to recover in this suit, you must find by the evidence in this case that the goods in question were injured after they were delivered to defendant and while they were yet under defendant’s custody or control, and if you do not so find by the evidence, then and in such case it will be your duty to render a verdict for the defendant; but if you find by the evidence in ■this case that the goods were injured after they were delivered to defendant and while under its care and control and before the goods were delivered to any other railroad, or after it had received it or after the railroad company had received it on its return to Corunna, then it will be your duty to find for the plaintiff such damages to' the goods as he had suffered by reason of such injury, with this limitation, that when the goods were returned and offered to plaintiff, then it was his duty to accept them, and in this case they can only recover such damages as the difference between what the goods were actually worth when they were delivered by the plaintiff to defendant, that is, on the 4th and 8th days of May, and when they were returned and offered to him. By that, gentlemen, I mean that, if you find for the plaintiff as I have stated in the declaration, your verdict must be limited to the difference between their value at the time the company received them and at the time that the goods were returned and offered to be returned to the plaintiff.”

We are of opinion that in these instructions the applicable law is correctly stated and that the declaration is sufficient to support a recovery within the rules laid down by the court. We affirm the ruling that the evidence of delivery to a connecting carrier is not conclusive. There is testimony of the arrival of the goods in good order at Detroit, that Detroit is a terminal of defendant’s road and that the goods were there transferred to the Detroit & Toledo Shore Line road. But the testimony does not conclusively establish the fact that the Detroit & Toledo Shore Line was a succeeding, connecting, carrier. Such freight charges as were prepaid were for carriage to Toledo. The testimony tends to prove the receipt of the goods in Toledo and the delivery of them there to the Cincinnati, Hamilton & Dayton Railroad Company; that they were returned by the. Cincinnati, Hamilton & Dayton Company; that they lay in the freight house for some two weeks and were then loaded into a oar and routed by way of the Hocking Yalley Railroad. Defendant does not further trace the property on its outward-bound journey. It is a fair inference, perhaps a necessary conclusion, from the testimony, that the goods proceeded no farther than Toledo and it is so intimated by counsel for defendant in his brief. It cannot be said, as matter of law, that they were there, or at any other point, delivered to and received by a connecting carrier. In reaching this conclusion, we do not consider certain affidavits filed with the motion for a new trial, It is certified by the trial judge that they were not considered, for the reason that copies of them were not served upon counsel for plaintiff. They are, but they should not have been, incorporated in the printed record. What has been said disposes of all errors assigned and discussed upon the assumption that delivery to a connecting carrier is conclusively made out.

The wife of the plaintiff was permitted to testify that the agent of defendant at Corunna told her that the goods never left defendant’s line of road, and a motion to strike out this testimony was denied. This statement was made, it is claimed, after the goods had been returned to Corunna and a month or more after they had been shipped from that point. Treated as an admission on the part of the dofendant, or as evidence of the fact stated, this testimony was material. In Carland v. Telegraph Co., 118 Mich. 369, 377 (43 L. R. A. 280), a case relied upon by counsel for plaintiff, it was held that a telegraph operator who accepted and forwarded a message was acting within the scope of his authority, and in the same transaction, in tracing the message and in reporting to the sender, before transmitting a duplicate message, that the one already sent had not been received at defendant’s Chicago office. The action was for damages for failure to promptly transmit and deliver a telegram. In the case at bar, it appears that defendant’s agent at Corunna received a message from Nashville, in consequence of which he wired the general freight agent of defendant to have the goods returned to Corunna. A week later, the goods were received at Corunna. Defendant’s agent had authority to receive and send forward the goods. It cannot be said, however, that the making of the alleged statement to plaintiff’s wife was a part of the transaction of receiving or of forwarding the goods. It does not appear that he knew or could have known to what point the goods had traveled and, the car not having been routed by agreement or otherwise, by him, in whose custody the goods were found when ordered to be returned. It was no part of his duty to inform himself, it does not appear that he sought the information, and his statement, not having been made in the performance of duty, was gratuitous and the proof of it incompetent.

Plaintiff refused to receive certain of the goods, among them a box unopened, the- contents and condition unknown, and a sewing machine. Testimony was given of the value of all articles shipped, and those retaken by the plaintiff were specified. The verdict, it is plain, allows' plaintiff the value of the articles refused, whatever they are. It was not possible for the jury to find, as they were told to do, the value of the goods offered to be returned to plaintiff. In his reasons for denying a new trial, if a part of the recovery was remitted, the judge states the verdict was excessive because a higher price was placed on some of the articles than was warranted. But, as above stated, neither the court nor jury had any information of the condition and present value of the goods in the unopened box. The court expressly declined to consider the affidavits, showing the contents of the boxes, which were filed in support of the motion for a new trial. The rule of the measure of damages given to the jury was the correct one. It could not be applied. The result is that plaintiff is permitted to take both his goods not proved to have been at all injured and the value of them when they were shipped.

The court was requested to charge the jury that by the contract of carriage liability of defendant was limited to five dollars for each hundredweight of goods carried. This request was properly refused. We find no evidence of the fact asserted. There appears in the bill of lading the legend, unexplained, “O. R. Rel. $5 per cwt. Henry Reason, Shipper, per M. Jacobs.” The authority of Jacobs to make any contract for the shipper was denied. Jacobs did not in fact sign, but the agent of the defendant signed for him. The court was not requested to submit the question of .the agency of Jacobs to the jury.'

It is very doubtful if the same questions, upon the same evidence, will be again raised in the trial court, and, therefore, we do not consider further the errors now as-, signed.

For the errors pointed out, we are obliged to reverse the judgment and order a new trial. In taxing costs, the record will be diminished to 89 pages.

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


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    HOFFMAN v. ALLEGAN CIRCUIT JUDGE.
    1. Information — Complaint—'Variance—Effect.
    The complaint and warrant upon which a criminal examination is held are not intended to take the place of a formal presentment nor is the prosecuting attorney limited by them in the mode of charging the offense, it being entirely competent for him, so long as he does not undertake to proceed against the respondent for a different transaction than that to which his examination relates, to put his information in such form as in his opinion will enable him to try the offense on the merits and advance the ends of justice.

      2. Perjury — Information—Variance from Complaint — Effect.
    A complaint for perjury alleged the filing of a bill in chancery in which a sworn answer was demanded and required by law, the issuance and service of a subpoena and injunction thereon, the making and filing by defendant of a sworn answer and the use of the same on a motion for dissolution of the , injunction, the falsity of material portions of such answer, and that respondent swore to the same willfully, corruptly, etc. The information followed the complaint verbatim except that it contained also the words “ and with intent to use the same on the hearing of said motion.” Held, that the complaint was sufficient without the quoted words, and that the variance of the information from the complaint in that respect was immaterial, the transaction described in the information being identical with that stated in the complaint.
    . 3. Same — Information —■ Sufficiency — Good and Bad Assignments — Remedy—Motion to Quash.
    Whether one of the assignments in an information for perjury is subject to the infirmity pointed out by respondent is immaterial on motion to quash where there are other assignments to which no objection is raised, respondent’s remedy in suoh case being by objection and exception to the evidence introduced under the defective assignment.
    4. Mandamus — Propriety—Quashal of Information.
    Mandamus is the appropriate remedy to secure reversal of an order quashing a criminal information.
    Mandamus by Clare E. Hoffman, prosecuting attorney. to compel Kelly S. Searl, circuit judge, presiding, of Allegan county, to set aside an order quashing an information.
    Submitted July 2, 1907.
    (Calendar No. 22,232.)

    Writ granted November 5, 1907.

      Glare E. Hoffman, in pro. per.

      Diekema & Kollen, for respondent.
   McAlvay, C. J.

A writ of mandamus is sought by the prosecuting attorney of Allegan county to compel the presiding circuit judge to set aside an order quashing the information in the cause then pending in said court of the People of the State of Michigan against Henry A. Dibble, respondent, charged with the crime of perjury, and that he be ordered to, require the said Henry A. Dibble to appear before said court for trial and to proceed with said trial according to law. Respondent had waived an examination before the justice of the peace who issued the warrant, and upon being arraigned in the said circuit court to plead to the information filed against him, waived the reading thereof and stood mute. The court thereupon ordered a plea of not guilty to be entered. His counsel then orally made a motion to quash the information for the following reasons:

(1) Because the information does not allege that the answer was made for the purpose of being used in, or was used in, the chancery suit, or on the hearing of the motion for the-dissolution of said injunction.

(2) Because it does not allege that the answer was filed or used with the-knowledge or consent of the respondent.

(3) Because the allegation that the answer was not true and that the defendant did not believe it to be true is too general and sweeping to afford the defendant the necessary information to prepare for a defense. It lacks specific averment and is therefore defective.

(4) That no offense was charged in the complaint; that there was a variance between the complaint and the information, and consequently no preliminary examination had been held on the offense, if any, charged in the information.

The information which is set up in the petition is of very great length. It contains copies of the bill of complaint, the motion for the dissolution of the injunction and the answer of defendant Dibble in a cause in the circuit court for Allegan county, in chancery, commenced by the Grange Store Co-operative Association, a Michigan corporation, against defendant Dibble, who was in its employ as bookkeeper and cashier, and who, as claimed by complainant, had entire charge of its cash transactions, and is charged with fraudulently conducting the business and wrongfully appropriating large sums of money. The bill prays for an accounting, an injunction, and a receiver. The information shows the filing of this bill, the issuing and service of a subpoena and injunction, the making and filing of a motion by Dibble for the dissolution of the injunction; alleges that a sworn answer was demanded and was required by law; that Dibble made such answer and the same was filed; that such answer was made with intent to use on the hearing of the motion for the dissolution of the injunction, and for his answer to the bill of complaint; that the matters contained in such answer were material to the issue raised by the bill of complaint and said motion; that certain specified portions thereof were false, and that Dibble falsely, corruptly and knowingly and willfully swore to said answer, giving the details of the oath and verification and the details specifically wherein the same was false, and that the same was done corruptly and with intent to prevent the due course of law and justice.

The foregoing brief outline has been necessary to intelligently understand the circumstances out- of which this prosecution arose, and the objections raised to the information by the respondent. The motion to quash was granted by the trial judge. The prosecutor moved to vacate the order so made, and upon its denial has made this application. The trial judge, in his return to the order to show cause, says that he found that a variance existed between the information and complaint; that no offense was charged in the complaint for the reason that it “ did not allege that the answer made and sworn to hy the defendant was made for the purpose of being used in the proceeding stated in the complaint. ” This variance which the court held to be fatal consists of the words italicized in the following paragraph of the information, and which were not contained in the complaint :

“ That the said Henry A. Dibble, on, to wit, the 8th day of March, 1906, *. * * appeared before * * * a notary public * * * qualified and duly authorized to administer an oath in that behalf, and was then and there duly and legally sworn * * * in a matter and proceeding wherein an oath was required by law, and did then and there falsely, corruptly, knowingly, willfully and maliciously under the sanction of his oath * * * as a part of said motion and in support thereof, and with intent to use the same on the hearing of said motion, and for his answer to said bill of complaint,” etc.

As already indicated, this information is very long, covering-45 closely typewritten pages. In all respects except the few words above indicated it is a verbatim copy of the complaint in the case. As bearing upon the question of variance, we quote further:

“On the hearing of said motion said answer * * * was read in support of said motion * * * and (Dibble) to cause and procure said motion for the dissolution of said injunction to be granted did * * * make said false answer and oath.”

It was held by this court in People v. Annis, 13 Mich. 511, that—

“ The examination under this statute was designed to some extent to accomplish the purpose of a presentment by the grand jury under the law as it existed before in protecting a party against being subject to the indignity of a public trial for an offense before probable cause had been established against him by evidence under oath. But it was never designed that the complaint or warrant before the magistrate should stand in the place of a formal presentment, nor that in the circuit court the prosecuting officer should be limited by it in the mode of charging the offense. It is undoubtedly competent for him so long as he does not undertake to proceed against a person for a different transaction than that to which the examination relates, to put his information in such form as in his opinion will enable him to try the offense on the merits * * * to advance the ends of justice.”

The following are a few of the many cases where this court has followed this decision: People v. Bechtel, 80 Mich. 623; People v. Oscar, 105 Mich. 704; People v. Pichette, 111 Mich. 461; People v. Stockwell, 135 Mich. 341.

By. the addition of the words complained of no new offense is charged. The transaction is identical with that stated in the complaint. There was no material variance between the information and complaint. This disposes of the contention that the complaint did not charge the crime of perjury for the reason that such objection is based upon the contention that the words not in the complaint were necessary to properly charge that offense. The trial judge also held:

“ That the allegation contained in the information that the answer was not true, and that the defendant did not believe it to be true, is too general and entirely too broad and sweeping, and that the allegation is not a specific averment and is therefore defective.”

Whether this part of the information objected to can properly be called an assignment of perjury or whether it is the formal conclusion of the pleading after sufficiently and properly alleging and charging all the material elements constituting the crime of perjury, and specifically assigning perjury upon two paragraphs of the answer in question, and upon this conclusion the prosecutor makes his presentment and gives the court to understand and be informed that the respondent in manner and form as charged did commit the offense, is immaterial and not necessary to decide in this case, for the reason that the information contains two specific assignments of perjury to which respondent raises no objection. In such case an objection to an insufficient assignment should be raised, upon the trial by an exception to evidence introduced under it.

“It is not necessary to prove that all the matters assigned are false, for<if one distinct assignment be proved it ip sufficient.” Tiffany’s Criminal Law (4th Ed.), p. 1002.
“If one assignment is sufficient, an improper assignment in connection with it will not vitiate the indictment;" and such improper assignment will not be a ground for quashing the indictment, and- can only be taken advantage of by excepting to the evidence introduced thereunder.” 2 McClain on Criminal Law, § 883.-

See, also, 2 Bishop on Criminal Procedure, § 919.

Respondent’s second objection-to the information is answered by reference to extracts therefrom herein quoted.

The court should have overruled the motion of respondent to quash the information. It was error not to do so.

That the appropriate remedy to secure the reversal of an order quashing an information is by writ of mandamus, has frequently been held by this court. People v. Swift, 59 Mich. 529; Ware v. Branch Circuit Judge, 75 Mich. 488; City of Grand Rapids v. Braudy, 105 Mich. 670 (32 L. R. A. 116 n.), and cases cited; Anderson v. Van Buren Circuit Judge, 130 Mich. 687, and cases cited.

The writ of mandamus will issue as prayed.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


text:
    MORGAN v. KENT CIRCUIT JUDGE.
    1. Rtt.t.s of Exceptions — Allowance—Discretion of Court— Amendments — Effect.
    At the close of plaintiff’s case, defendant moved for a directed verdict, and on the denial of his motion excepted and relying on Act No. 182, Pub. Acts 1899, introduced testimony and made his defense on the merits, the trial resulting in a verdict and judgment for plaintiff. Defendant, relying solely on the error in overruling his motion for a directed verdict, then presented a bill of exceptions containing only plaintiff’s evidence which the trial judge refused to sign, and allowed amendments offered by plaintiff containing a large portion of defendant’s testimony. On an application for a mandamus to compel the circuit judge to sign the bill of exceptions as presented, held, that no abuse of discretion was shown, as the circuit judge had not by his act deprived defendant of the benefit of the exception on which he relied.
    3. Mandamus — Propriety—Compelling Signing of Bill of Exceptions — Review on Merits.
    Defendant, having proposed a bill of exceptions containing only plaintiff’s evidence for the purpose of reviewing the denial of his motion for a directed verdict, and the circuit judge having allowed amendments proposed by plaintiff containing certain evidence introduced by defendant after the denial of his motion, defendant applied to this court for a mandamus to compel the circuit judge to sign the bill of exceptions as proposed. Held, that since this court would deny the writ if, from the exhaustive examination of plaintiff’s evidence necessary to pass upon the question raised, it should find that the circuit court had ruled correctly on the error assigned, which examination and determination should not be made in advance of a hearing upon a complete record, the writ would be denied and defendant left to his remedy by writ of error.
    Mandamus by Albert W. Morgan to compel Willis B. Perkins, circuit judge of Kent county, to sign a bill of exceptions as prepared by relator.
    Submitted September 20, 1907.
    (Calendar No. 22,390.)
    Writ denied November 5, 1907.

      Myron H. Walker, for relator.

      Dunham, & Dunham, for respondent.
   McAlvay, C. J.

An application for mandamus is made to compel the circuit judge to sign a bill of exceptions as prepared and presented to him by relator. The case was one tried before one of the judges of the Kent circuit court. Plaintiff brought suit against relator as defendant to recover damages from him for his false representations in relation to the sale of certain stock of a mining, oil, and gas company, which he induced plaintiff to purchase. At the close of plaintiff’s case defendant moved the court to direct a verdict in his favor. This motion was denied and defendant excepted, and then proceeded to make his defense upon the merits. The trial resulted in a judgment for plaintiff. A motion for a new trial was made and denied; the judge, at the request of defendant, filing his reasons therefor in writing.

The return shows that the exception taken upon the refusal of the court to direct a verdict was one of several covered by the bill of exceptions as at first presented; that the judge ruled that he would allow certain proposed amendments and finally, after many meetings held to settle said bill of exceptions, defendant abandoned all but one error assigned, and requested the judge to settle and sign his bill of exceptions as then presented, which contained only the evidence on the part of plaintiff. This the court refused to do and allowed an amendment proposed by plaintiff which contained a large portion of defendant’s own testimony. This application is the result of such action.

Defendant relies upon Act No. 182, Pub. Acts 1899, which provides that in the circuit courts of this State a defendant at the close of plaintiff’s case may move for an instructed verdict, or demur to the evidence, and, upon refusal of the court to grant such motion, he shall have the benefit of an exception, and without waiving it may then introduce testimony and make his defense upon the merits.

The settlement of bills of exceptions is a duty devolving upon the trial judge, and is an exercise of his judicial discretion. In this case we discover no abuse of such discretion. The.trial judge has allowed an amendment incorporating matter which he declares, in his judgment, is material. He has not by this act deprived defendant of the benefit of the exception upon which he relies. By this proceeding, summary in its nature, now before us, this court in effect is asked to determine that the trial court was in error in denying defendant’s motion to instruct a verdict in his favor. This is so because we would deny the writ if, from the exhaustive examination of plaintiff’s evidence necessary to pass upon the question raised, we should find that the court had ruled correctly.

This examination and determination we decline to make in advance of a hearing upon a complete record. At that time it will be proper to give such construction to the statute invoked as the case may require.

. The writ of error, by which defendant proposes to remove the case to this court for review, will afford him a complete and adequate remedy.

The writ of mandamus is denied.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred.


author: Per Curiam.

text:
    HUDSON v. ATTORNEY GENERAL.
    Constitutional Law — Schedule of Constitution — Construction — Officers—Salames—Change During Term.
    Section. 20 of the schedule appended to the Constitution, providing against a change in the compensation of any officer during the term for which he is elected or appointed, was adopted for temporary and not for permanent purposes and does not prohibit the legislature from changing the salaries of the auditors of Wayne county during their terms of office.
    Mandamus by Joseph. L. Hudson and others to compel John E. Bird, attorney general, to file an information. Submitted
    October 8, 1907.
    (Calendar No. 22,495.)
    Writ denied November 5, 1907.

      Sherman D. Callender, for relators.

      John E. Bird, Attorney General (Charles D. Joslyn, of counsel), in pro. per.
   Per Curiam.

This is a petition by taxpayers and elec-tors of Wayne county for a writ of mandamus to compel the attorney general to sign an information to be filed in the Wayne circuit court, to enjoin the board of auditors of Wayne county, composed of. three members, from approving warrants for the payment to themselves of salaries in excess of $3,500 each per year, until the expiration of the terms for which they were elected and were serving when the legislature passed an act increasing the salary of Wayne county auditors to $5,000 each per year. This act was given immediate effect and was approved June 27, 1907. Act No. 724, Local Acts 1907. Since that time the said auditors have drawn from Wayne county salary at the rate of $5,000 per year, paid by the county treasurer upon warrants issued by said board of auditors. At the time of the election, of each of said auditors, the compensation fixed by law was $3,500 each per year. Each of them entered the office and accepted compensation at this rate until the passage of the act increasing the salary of said office.

Relators found their right to the writ upon the provision of section 20 of the schedule appended to the State Constitution:

‘' It shall not be lawful hereafter for the legislature to increase or diminish the compensation of any officer during the term for which he is elected or appointed.”

The attorney general declined to sign the information, for the reason that the provisions of the section in question had been determined by this court to be for temporary and not for permanent purposes. The cases relied upon by the respondent support his position and do not require further consideration. People, ex rel. Douvielle, v. Board of Sup’rs of Manistee Co., 40 Mich. 585; Hunt, ex rel. Snow, v. Buhrer, 133 Mich. 107.

Writ denied.


text:
    MICHIGAN CORN IMPROVEMENT ASS’N v. AUDITOR GENERAL.
    Constitutional Law — Public Funds — Appropriation to Private Purpose.
    Act No. 261, Pub. Acts 1907, appropriating State funds for the use of the “Michigan Corn Improvement Association,” a vol-„ untary unincorporated society the membership of which is limited to “persons actively interested in the improvement of corn and resident in the State of Michigan,” is an attempt to devote public funds to a private purpose, and is unconstitutional.
    Mandamus by the Michigan Corn Improvement Association to compel James B. Bradley, auditor general, to include an appropriation in a State tax levy.
    Submitted October 8, 1907.
    (Calendar No. 22,494.)
    Writ denied November 5, 1907.

      Fred A. Baker, for relator.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for respondent.
   Per Curiam.

Act No. 261 of the Public Acts of 1907 provides:

‘' There is hereby appropriated for the use of the Michigan Corn Improvement Association in the prosecution of its work of creating a deeper interest in and a better knowledge of the culture and improvement of corn for each of the fiscal years ending June thirty, nineteen hundred eight, and June thirty, nineteen hundred nine, the sum of five hundred dollars, to be expended under the direction of the board of directors of said association in such way as in its judgment will most effectually attain the ends sought.”

Respondent, the auditor general of Michigan, being advised by the attorney general that said act was unconstitutional, refused to include said appropriation in the State taxes to be levied in 1907, and relator instituted these mandamus proceedings to compel him to do so.

Relator is a voluntary unincorporated society. Its objects, as stated in its constitution, are:

(1) To stimulate effort to improve the quality of the corn crop and increase the yield of both grain and fodder.
“ (2) To develop better methods of culture and disseminate the knowledge of the same.
“ (3) By meetings and discussions to arouse a deeper interest and develop a more thorough unity of effort in. corn production.
“ (4) To establish ideals for both ear and plant for the different varieties and breeds.”

Its membership is limited to “persons actively interested in the improvement of corn and resident in the State of Michigan.” There is held at its annual meeting a corn exhibit at which prizes are offered to its members, and to its members only, for the best exhibit of corn.

It is obvious from the foregoing statement that the only persons who will be directly benefited by the proposed appropriation are those ‘£ actively interested in the improvement of corn.” The authority of the legislature to make such an appropriation was denied by Justice Cooley in his opinion in People v. Township Board of Salem, 20 Mich. 452. He said:

“But the discrimination by the State between different: classes of occupations, and the favoring of one at the expense of the rest, whether that one be farming or banking, merchandising or milling, printing or railroading, is not legitimate legislation, and is an invasion of that equality of right and privilege which is á maxim in State government. When the door is once opened to it, there is no line at which we can stop and say with confidence that thus far we may go with safety and propriety, but. no further. Every honest employment is honorable; it is beneficial to the public; it deserves encouragement. The more successful we can make it, the more does it generally subserve the public good. But it is not the business of the State to make discriminations in favor of one class against another, or in favor of one employment against another. The State can have no favorites. Its business is to protect the industry of all, and to give all the benefit of equal laws.”

This reasoning was approved by this court in Michigan Sugar Co. v. Auditor General, 124 Mich. 677; and in accordance therewith an act giving. a bounty for the manufacture of beet sugar was adjudged unconstitutional. We think that decision rules this case and that the law under consideration is unconstitutional.

The mandamus is denied.


text:
    WOOD v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Propriety—Allowance op Solicitor’s Fees.
    Mandamus is not appropriate to review the denial of a motion to vacate a decree in partition in so far as it allows a fee to complainant’s solicitor and to allow a fee to defendant’s solicitor, appeal being the proper remedy.
    2. Same — Return—Conolusiveness.
    On an application for a mandamus to compel the circuit court to grant relator’s motion for an allowance of solicitor’s fees in a partition suit, a return by respondent that he decided against the claim of relator from his knowledge of the history of the case and the services rendered in it, compels a denial of the writ.
    Mandamus by E. T. Wood to compel Morse Rohnert, circuit judge of Wayne county, to set aside the provisions of a decree awarding certain costs.
    Submitted October 8,. 1907.
    (Calendar No. 22,372.)
    Writ denied November 5, 1907.

      E. T. & J. Harvey Wood, for relator.

      Ari E. Woodruff and Julius J. Thiede, for respondent.
   Per Curiam.

The complainants and the defendants were tenants in common of certain lands. Complainants filed a bill for partition under the statute. Relator Wood and his associates appeared for the defendant Margaret Weber; Ari E. Woodruff and Julius J. Thiede were solicitors for the complainants. The case went to a hearing upon the pleadings, proofs, and the report of the commissioners. There appeared to be no'substantial disagreement, and the judge returns that the taking of testimony in the case occupied only about 10 minutes. A decree was entered dividing the property according to the interests of each, fixing the costs at $258, and allowing a solicitor’s fee of $100, which were to be paid to the solicitors for the complainant. This amount was divided among the parties litigant according to the interest of each. The relator and his associate objected to the allowance of a solicitor’s fee of $100 to complainants’ solicitors, insisted that they were entitled to a solicitors’ fee of $250, and made a. motion to vacate the decree as to the $100 and to allow a fee to them. The court denied their motion. The relator has applied to this court for the writ of mandamus to compel the court to grant that motion. He presents to us a typewritten record of 59 pages, asking a review of the action of the court below. His application must be denied for two reasons, (1) because an appeal was the proper remedy; and (2) the respondent in his return states that he decided against the claim of relators from his knowledge of the history of the case and the services rendered in it.

We see no occasion to disturb his findings.

The writ is denied.


text:
    GARTH LUMBER & SHINGLE CO. v. JOHNSON.
    Appeal and Error. — Appealable Orders — Preliminary Injunction.
    Where a preliminary injunction is granted against riparian proprietors restraining them from interfering with complainants’ operations in recovering and sorting stranded and sunken logs, the bill asserting the right to go upon defendants’ land as incident to the right of navigation and by authority of Act No. 189, Pub. Acts 1905, the granting of the preliminary injunction, which is the entire effective relief desired, is a determination of the validity of the right asserted by the bill, and the order granting it is appealable, though there has been no motion to dismiss or modify the injunction, and no plea, answer, or demurrer filed.
    Bill by the Garth Lumber & Shingle Company and ■others to restrain Ole Johnson and others from interfering with complainants’ sorting logs and other forest products in a navigable stream. From an order granting a temporary injunction, defendants appeal: On motion to dismiss the appeal.
    Submitted October 8, 1907.
    (Calendar No. 22,380.)
    Denied November 5, 1907.

      F. D. Mead, for the motion.

      A. H. Ryall, contra.
   Per Curiam.

Upon filing the bill of complaint a temporary injunction was granted, restraining defendants, who are riparian proprietors, from interfering with complainants and their employes, engaged in sorting logs' and other forest products in a navigable stream, from interfering with such entry upon and such use of the premises of defendants as is necessary in removing and reclaiming logs which have drifted or been forced to and upon defendants’ lands. Without moving to dissolve or to modify the injunction (it is claimed it is, in any event, too broad) and without filing demurrer, plea, or answer to the-bill of complaint, defendants appealed to this court from the order granting the injunction. Complainants have moved to dismiss the appeal.

Complainants assert that the right to go upon lands-abutting upon streams navigable for floating logs for the. purpose of removing and reclaiming property attached to- or cast upon the banks of the stream in the operations of driving and sorting timber, is one necessarily incident to the navigation of the river; that interference by the landowners with the exercise of that right is unlawful. They rely also upon the statute, Act No. 189, Pub. Acts 1905. Defendants say that no such right exists, that the statute-referred to is unconstitutional, and that in restraining-them from exercising complete dominion over their property the merits of the controversy are necessarily determined. Barry v. Briggs, 22 Mich. 201; Toledo, etc., R. Co. v. Detroit, etc., R.'Co., 61 Mich. 9; Lewis v. Campau, 14 Mich. 458. The facts that forest products lying-in the stream are worth $100,000, and that logs of the-value of $20,000 are stranded at different points along the-shores, and that the complainants offered and the court, required a bond to be given to secure payment of any damages which might be awarded to defendants, are not,, as to the point to be determined, material. Complainants-have set out in the bill the right in which they apply for relief by injunction. If, upon the showing which they make, they are not entitled to permanent relief, they are not entitled to the temporary relief granted. The granting of the' preliminary injunction, which is the entire effective relief desired, was a determination of the validity of the right asserted by complainants, and the order granting the injunction was an appealable order.

The motion to dismiss the appeal is denied.


author: Blair, J.

text:
    HARTY v. TEAGAN.
    Money Received — Action — Propriety — Equitable Claims — Transfer by Incompetent.
    An action for money received will lie in favor of an adminis. trator against one to whom plaintiff’s intestate has transferred funds while incompetent as the result of undue influence, resort to equity to set the transfer aside not being, necessary where real estate is not involved.
    Error to Wayne; Rohnert, J.
    Submitted October 10,. 1907.
    (Docket No. 16.)
    Decided November 5, 1907.
    Assumpsit by Mary Harty, administratrix of the estate of Mary Harty, deceased, against Margaret Teagan for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James H. Pound, for appellant.
   Blair, J.

Plaintiff brought this action as administratrix to recover a sum of money alleged to have been transferred by her decedent intestate when she was mentally incompetent and was subjected to undue influence by defendant. The declaration was upon the common counts in assumpsit, to which was added the following bill of particulars :

“ Plaintiff’s Bill of Particulars.
“Moneys received by defendant at different times from deceased, from 1896 up to and including May 6, 1901, $10,000, for which no consideration was given by defendant and which was given while the deceased was mentally incompetent and unduly influenced.”

At the close of the opening statement of counsel for plaintiff, the following colloquy took place between the court and counsel:

“The Court: Let me understand your position. You admit that the decedent transferred the property to this defendant ?
“Mr. Pound: Yes.
“The Court: But at that time you claim that she did not have the mental capacity to make the transfer ?
“Mr. Pound: And was coerced into doing it, not with the intent to part with the title to the property.
“The Court: But she did part with title to property.
“Mr. Pound: She did on the papers, yes. As against an innocent purchaser there is no question but what she did.
“The Court: There is no better way of testing this matter than to frame the issue clearly so that the Supreme Court can pass upon it. As I understand it, the plaintiff’s position is this, that plaintiff’s decedent actually transferred the property to the defendant, but at the time of the transfer there was coercion and there was mental incapacity to understand the transaction.
“Mr. Pound: That is it exactly.
“The Court: I want to separate this statement from your opening as a plain statement.
‘Mr. Pound: I am willing to take that as the point that the court made just now.
“The Court: If you are entitled to go to the jury upon that, undoubtedly a great deal of what, you have said Saturday is pertinent. If you want to go on the theory of appropriation without consent of the decedent it would not be pertinent, but that is eliminated in view of the statement you now make.
“Mr. Pound: There is no doubt but that there was a formal paper made. This is the only remedy. It is this or nothing.
“The Court: Call in the jury.”

Thereupon, the court instructed the jury that plaintiff could not recover upon the theory stated by her counsel in an action at law, but that her relief must be sought “in a court of chancery, filing a bill and asking that that transfer be set aside for the reason that there was undue influence exercised or mental incapacity on the part of decedent at the time of the transfer.”

Judgment having been entered upon verdict directed by the court, plaintiff has brought the case to this court for review upon writ of error. Counsel for defendant has not favored the court with a brief.

We are of the opinion that the court erred in directing the verdict.

“ To sustain the count for moneys -received by the defendant for the use of the plaintiff, it is only necessary to show that the defendant has obtained possession of money, or received something as money, which, ex aequo et bono, he ought to refund.” 3'Enc. PI. & Pr. pp. 1016, 1017, and cases cited in note.

At an early day this court held:

“An action for money had and received is an equitable action, and can be maintained in all cases for money which in equity and good conscience belongs to the plaintiff. It has been much extended in modern times, and is founded solely upon the equitable rights of the parties.” Beardslee v. Horton, 3 Mich. 560.

See, also, Moore v. Mandlebaum, 8 Mich. 433; Michigan Sanitarium & Benevolent Ass’n v. City of Battle Creek, 138 Mich. 676; Johnson v. Insurance Co., 39 Mich. 33; Walker v. Conant, 65 Mich. 194; Blackwood v. Brown, 34 Mich. 4; Atkinson v. Scott, 36 Mich. 18; McGoren v. Avery, 37 Mich. 130.

No real estate was involved in this action and it was, therefore, unnecessary to resort to a court of equity. Bresnahan v. Nugent, 106 Mich. 459; Doe v. Clark, 43 Iowa, 123; Knight v. Tripp (Cal.), 49 Pac. 838.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., Carpenter, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    BRIDGMAN v. McINTYRE.
    1. Specific Performance — Bill—Contract to Convey — Parol Trust — Enforcement.
    Where a landowner agrees in writing to sell a parcel of land to . a person who is described in the contractas “trustee,” no trust being otherwise expressed in the instrument, a bill by the trustee and his cestui que trust against the landowner for specific performance, in which the trust is fully declared, and a conveyance to the cestui que trust prayed, is not objectionable as an attempt to enforce the execution of a parol trust.
    '3. Same — Parties—Trusts—Declaration—Sufficiency.
    Where a contract to convey describes the purchaser as “trustee ” but does not otherwise express a trust, the trustee and his cestui que trust may join in a bill for specific performance, the bill constituting a sufficient declaration of trust.
    8. Trusts — Declaration—Sufficiency—Statute of Frauds.
    Where a trustee and his cestui que trust join in a bill for specific performance of a contract to convey to the trustee, the contract containing no declaration of the trust, the averments of the bill, in which the trust is fully set forth, constitute a sufficient declaration of trust to satisfy the statute of frauds.
    ■4. Same — Contract—Mutuality—Trustee.
    A contract to convey to a person described as trustee is not wanting in mutuality because the cestui que trust is not disclosed therein, the word being merely descriptive of the perspn.
    Appeal from Genesee; Law, J., presiding.
    Submitted October 9, 1907.
    (Docket No. 11.)
    Decided November 5, 1907.
    Bill by Harry L. Bridgman and the Masonic Temple .Association against Catharine A. McIntyre for the specific performance of a land contract. From a decree overruling a demurrer to the bill, defendant appeals.
    Af.firmed.

      Brennan & Cook, for complainants.

      Clinton Roberts, for defendant.
   Montgomery, J.

This is a bill filed for the specific performance of a contract reading as follows:

“Flint, December 11, 1906.
“ It is hereby contracted and agreed by and between ■Catharine McIntyre, of the first part, and Harry L. Bridgman, trustee, of the second part. It is hereby agreed and contracted by the said parties that the first party is to sell and convey to the party of the second part the resident property, including the two lots fronting Beach street where she resides, and the 132 feet fronting Buckham street, for the consideration of $10,000, and to give a good and perfect title thereof, said second party this day pays $50 as earnest money, and to pay the balance March 1st, 1907; at such time the first party is .to give possession of said property and give a good and warranty deed and perfect title. First party reserving chandeliers in house.
“ Signed the 11th day of December, 1906.
(Signed) ‘ ‘ Catharine A. McIntyre.
“Harry L. Bridgman, Trustee.”

The bill alleges that the Masonic Temple Association ■authorized and directed the complainant Harry L. Bridgman, trustee, to purchase the lands in question for the consideration and on the terms named in the contract; that the complainant Bridgman, as trustee, thereupon made and entered into the contract and paid the $50 down payment, and later on demanded a warranty deed running to the complainant Bridgman, trustee, and offering to pay her the remaining $9,950 in legal tender money, but that performance of the contract was refused h>y defendant. The bill further alleges that upwards of 4',000 shares of the par value of $10 each of the capital stock of the Masonic Temple Association has been subscribed upon the express understanding and condition that title to the real estate in question should be acquired and made use of by the association.

Defendant demurred to the bill of complaint and upon the demurrer being overruled has appealed the case to this court for decision. The grounds of demurrer set forth are as follows:

“First. That no trust is fully expressed and clearly defined upon the face of the instrument creating it as set forth in said bill.
“Second. That under the facts alleged in the bill of complaint the Masonic Temple Association, one of the complainants, can enforce no claim to said property, and is therefore not a proper party complainant.
\ “Third. That it is an attempt to enforce the execution of a parol trust.
“Fourth. That no contract for the sale of lands exists between the defendant and the complainant the Masonic Temple Association entitling it to specific performance or any other relief.
“Fifth. That the memorandum set forth in said bill of complaint [the contract hereinbefore set out] is void for want of mutuality.
‘ ‘ Sixth. That the memorandum set forth in said bill of complaint is void under the statute of frauds.
Seventh. That the memorandum set forth in said bill of complaint is void under the statute of uses and trusts.”

. It is undoubtedly true that no trust is fully expressed and clearly defined upon the face of the instrument. It is also true, undoubtedly, that the Masonic Temple Association could not in the absence of its co-complainant, Bridgman, enforce a claim to the property. It is a mistake, however, to say that this is an attempt to enfore the execution of a parol trust. This is an attempt to enforce the execution of a contract which the defendant made with the complainant Bridgman, in which Bridgman was described with sufficient particularity to then satisfy the defendant. He was named as trustee. Possibly the word is simply descriptive of the person but it can make no difference to the defendant what becomes of this property after she has performed the contract on her part. It is no concern of hers. What should concern her is her obligation to keep faith with the complainant Bridgman with whom she has contracted. True, it is said that the use of. the word ‘ ‘ trustee ” implies that some person other than Bridgman is interested in this property. The theory of the bill of complaint is that there is such a person; the cestui que trust is named as a very proper although not a necessary party, and the declaration of trust which was previously wanting as between the two complainants is now in this bill clearly made. This shows the Masonic Temple Association as much entitled to be made a party as though Bridgman had assigned his claim to his co-complainant. That the declaration in the pleading constitutes a sufficient declaration of trust is established by the cases. Patton v. Chamberlain, 44 Mich. 5, and cases cited.

As to the contention that there is want of mutuality in this contract, when we have said that the use of the word “trustee” following the name of the second party in the contract was simply descriptive of the person the objection for want of mutuality is sufficiently answered. Bridgman signed the contract, and although’there was no sufficient declaration of trust as between himself and his cestui que trust he would not be heard to question the obligation of his contract any more than we now permit the defendant to repudiate the obligation incurred by herself..

The decree is affirmed, with costs of both courts.

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


author: Grant, J.

text:
    ZEIGLER v. VALLEY COAL CO.
    1. Vendor and Purchaser — Vendor’s Lien — Bona Fide Purchasers — Grantees Without Warranty.
    The grantee in a conveyance containing no covenant of warranty is not a bona fide purchaser, and takes his title subject to the lien of his grantor’s vendor, though the conveyance to the grantor is not recorded. Per Grant, J., MoAlvay, C. J., and Blair and Montgomery, JJ.
    2. Corporations — Notice to Agent — Bona Fide Purchaser.
    A corporation cannot claim to be a bona fide purchaser of land, • as against a lien asserted by a prior vendor, where its trustee, when he took the title, had notice of the vendor’s rights.
    3. Vendor and Purchaser — Vendor’s Lien — Foreclosure — Pleading — Waiver of Lien.
    On a bill to enforce a vendor’s lien against a subsequent purchaser, a waiver of the lien must be set up in the answer.
    4. Same — Waiver of Lien — Action at Law.
    Where a vendor took promissory notes for the purchase price of land, he did not waive his right to enforce his lien as vendor against the land in the hands of a subsequent purchaser by taking judgment against the purchaser on the notes.
    5. Same — Burden of Proof.
    The burden of proving waiver of a vendor’s lien is upon the purchaser, who must establish it by clear and convincing proof.
    Appeal from Bay; Collins, J.
    Submitted October 10, 1907.
    (Docket No. 15.)
    Decided November 5, 1907.
    Bill by George Zeigler and Cora Zeigler against the Valley Coal Company, the Michigan Vitrified Brick Company, Bernard Voss, and Christina Voss to establish a-vendor’s lien. From a decree for complainants, defendant Michigan Vitrified Brick Company appeals.
    Affirmed.

      Fred W. De Foe, for complainants.

      T. A. E. &J. G. WeadocTc (L. N. Sharpe, of counsel), for appellant.
    Complainants and the defendants Voss on June 11, 1900, executed a lease and contract to the Valley Coal Company by which they sold and transferred to said company “ all the fire clay and shale (on the lands described), with the right to remove the said shale,” etc., and leased to said company the right to construct and maintain buildings, etc., upon the lands at $15 per acre per annum. This instrument was duly acknowledged, but it seems was not recorded. The consideration was $2,000, for which the company executed four promissory notes of $500 each, payable in one, two, three, and four years.
    March 1, 1901, that company executed a mortgage covering all its property, including leases and contracts, to one Henry S. Lewis, as trustee for its creditors. On March 12th of the same year it executed a second mortgage to said trustee for the same purpose. November 23, 1902, Lewis, under the trust power given him by the mortgages, conveyed all the property of said Valley Coal Company to the Dutch Creek Coal Company, a corporation organized by the creditors of the Valley Coal Company; consideration, $16,126.91. At the same time the Valley Coal Company conveyed to the Dutch Creek Coal Company the lease and contract above mentioned.
    On December 29, 1903, the Dutch Creek Coal Company sold by contract to one Charles W. Stiver all its assets except bills receivable, book accounts and cash; consideration, $3,000. This deed was duly recorded. On March 30, 1904, Stiver conveyed the property to the defendant the Michigan Vitrified Brick Company, and the deed therefor was duly recorded. The Michigan Vitrified Brick Company was organizedin April, 1904. August 8,1901, Zeigler brought suit against the Valley Coal Company upon the first note and recovered a judgment.
    Complainants, the Zeiglers, filed this bill to enforce their vendor’s lien for the purchase price. The defendants Voss refused to join as complainants, and were therefore made defendants. The Zeiglers owned an undivided one-half interest in the lands, and the Vosses the other undivided half. The defendant company alone defended the suit. Issue was duly joined, proofs taken in open court, and decree entered granting complainants the-relief prayed.
   Grant, J.

(after stating the facts). The defendants’ counsel concede that the complainants had a vendor’s lien and are entitled to foreclose it, unless the defendant Brick Company is the bona fide purchaser, or unless the complainants have waived their lien. These are the sole questions presented by the record.

There are two complete answers to the defendants’ claim that it is a bona fide purchaser:

(а) None of the conveyances in the chain of title from the Valley Coal Company to the defendant Brick Company contained any covenant of warranty. Covenants cannot be implied in conveying real estate. 3 Comp. Laws, § 8959. The conveyances conveyed only the property and interest which the grantors and vendors had in the property conveyed. The clay and shale were real estate, and were so recognized, as the instrument conveying them to the Coal Company was executed with all the solemnity of a deed. The subsequent conveyances were only in effect quitclaim deeds, and conveyed only the interests which the grantors had. The defendants, therefore, were not bona fide purchasers under the frequent decisions of this court. Peters v. Cartier, 80 Mich. 124; Messenger v. Peter, 129 Mich. 93, and authorities there cited.

(б) There is evidence tending to show that the organizer of the defendant company had knowledge of the complainants’ claim. Mr. Stiver, when he purchased the land, had notice. While the defendant company was not organized in fact until after the conveyance to Stiver, yet, he was the agent or trustee for the incorporators of the company, and was acting for them. 2 Cook on Corporations (5th Ed.), § 727, states the rule to be:

‘ ‘ The corporation has notice of facts which came to the knowledge of its officers or agents while engaged in the business of the corporation, provided those facts pertain to that branch of the corporate business over which the particular officer or agent has some control.”

See, also, Simmons Creek Coal Co. v. Doran, 142 U. S. 417.

People’s Sav. Bank v. Hine, 131 Mich. 181, and State Sav. Bank v. Montgomery, 126 Mich. 327, are not applicable to the facts of this case. In the. Hiñe Case the bank discounted a note for a corporation of which its cashier was president. ' It was held that his knowledge was not the knowledge of the bank. The cashier was acting in a dual capacity.

In the Montgomery Case the notes were discounted by the bank for the benefit of its cashier. It was held that the bank was not chargeable with notice of a fraud practiced upon it by its cashier, the principle of agency being inapplicable where the cashier himself is the party in interest.

The defendant did not set up in its answer a waiver of the lien. It is therefore not in position to raise the question. 22 Enc. Pl. & Pr. p. 732. Aside from this, the bringing of suit and obtaining judgment thereon are not of themselves a waiver of the lien.

“ The predominant authority establishes the rule that he (the lienor) may enforce his lien whether he has proceeded at law and exhausted his remedy there, or has exclusively proceeded in equity.” 29 Am. & Eng. Enc. Law (2d Ed.), p. 753.

See, also, Palmer v. Harris, 100 Ill. 276; Nutter v. Fouch, 86 Ind. 451; Dowdy v. Blake, 50 Ark. 205; Waldrom v. Zacharie, 54 Tex. 503.

Clear and convincing proof is required to show a waiver of the lien, and the onus probandi is upon the purchasers. 22 Enc. Pl. & Pr. p. 784; Dunton v. Outhouse, 64 Mich. 419. See, also, Curtis v. Clarke, 113 Mich. 458.

The decree is affirmed, with costs.

McAlvay, C. J., and Blair, and Montgomery, JJ., concurred.

Carpenter, J. I concur on grounds 1 (6) and 2.


text:
    TORREY v. TOLEDO PORTLAND CEMENT CO.
    1. Corporations — Rights op Stockholders — Redress in Equity.
    The rule that redress must be sought through the corporation before individual stockholders can seek redress in equity does not apply to a case in which the officers are charged with fraud from the beginning, it being useless to ask the officers to cause suits to be brought against themselves or directly against their own interests.
    2. Same — Equity Jurisdiction — Fraudulent Incorporation.
    A stockholders’ bill which alleges that sections 7038, 7042, and 7051, 2 Comp. Laws, were ignored in organizing and conducting defendant corporation, in that 10 per cent, of the capital stock was not paid in by the incorporators, and an assistant secretary and assistant treasurer were appointed, upon whom were imposed all the duties of the offices of secretary and treasurer, and their offices located outside this State; that complainants, resident stockholders, were deceived and defrauded ; that the officers are conniving with certain credit, ors to obtain title to the property of the corporation; that a fraudulent attempt was made to throw the company into bankruptcy, and that the original incorporators are responsible for the situation; that the officers of the company have abandoned it, and are taking no steps to save it; and that the value of the property is largely in excess of the amount necessary to pay the debts, states a case for equitable relief.

      Appeal from Washtenaw; Kinne, J.
    Submitted October 11, 1907.
    (Docket No. 36.)
    Decided November 5, 1907.
    Bill by Orlando L. Torrey and others against the Toledo Portland Cement Company, William Watts, and others, for the appointment of a receiver of defendant corporation, for an accounting, and for general relief. From an order overruling the demurrer of defendant Watts, he appeals.
    Affirmed.

      A. F. & F. M. Freeman, for complainants.

      A. J. Sawyer & Son (Shunck & Thompson, of counsel), for appellant.
    The complainants-in this case, 35 in number, allege that they are stockholders of the Toledo Portland Cement Company; that they are residents of Washtenaw county; that said company is organized under the laws of this State; that its capital stock was $500,000; its place of business at Manchester, Washtenaw county; the purpose of the organization was the manufacture and sale of Portland cement; that its plant was to be erected in or near the village of Manchester, with a railroad to its marl bed, a few miles distant; that in its articles of association, filed with the secretary of State, it reported $50,000 of the capital stock paid in; that none of said capital stock was in fact paid in. The bill gives the names and residences of the original stockholders, nine in number, only one of whom was a resident of Michigan, and alleges that a complete list of the stockholders is attached to the bill. It gives the names and residences of all the officers and directors of the company; alleges that one Frederick Steinkohl is its secretary, and one Wuerthner is its treasurer, both residents of Manchester, and have held such offices since the organization of the company; that the citizens of Manchester subscribed $3,800 for the purchase of land for a site for the company; that said lands were purchased; that the officers sold stock to a considerable amount to various parties in Manchester and other places; that large buildings were erected, and machinery, appliances, and apparatus placed therein designed for the manufacture of cement; that the aggregate of such expenditures was about $100,000; that in 1904, no more of the capital stock could be sold, and an attempt was made to bond the company for $500,000; that only $3,000 of said bonds were sold at the price of $1,750; that a trust deed to secure said loan was made to the International Savings & Trust Company of Pittsburg, Pa.; that the officers have abandoned all work; that no one is in charge of the property; that the taxes are not paid; that suits have been instituted and judgments obtained against the company, and levies made; that the debts of the corporation amount to about $14,000; that the directors filed a petition in bankruptcy in the district court of the United States for the eastern district of Michigan; that their petition was denied by the court on the ground that they were not insolvent ; that no books of account or moneys, or funds of any kind, are now or ever have been in the possession of the secretary and treasurer above named; that the only record of any papers relating to the conduct and organization of the company, found in the possession of the secretary and treasurer, were the following, purporting to be some of the rules and regulations of the company:
    “ SECRETARY.
    “Article vii.
    “Sec. 1. The secretary of this corporation shall be a resident of the village of Manchester, Michigan, and shall perform such duties as the laws of Michigan prescribe for the secretary of a corporation of that State.
    “TREASURER. .
    “Article viii.
    “Sec. 1. The treasurer of this company shall be a resident of the village of Manchester, Michigan, and shall perform such duties as the laws of Michigan prescribe for ■the treasurer of a corporation of that State.
    “ASSISTANT SECRETARY.
    “Article ix.
    “Sec. 1. The board of directors recognizes and empowers the assistant secretary as the practical, acting secretary and puts upon said assistant secretary all the duties and responsibilities in detail appertaining to the office as secretary of this company. .
    “Sec. 2. The assistant secretary shall sign all certificates of stock; he shall audit and approve as correct all .statements of account with the company, and without his ¡signature or approval no voucher check of this company •shall be payable; he shall receive for accounting and deposits all moneys paid to this company, and shall give to the company such bond and in such amount as the board •of directors will order.
    “Sec. 8. The assistant secretary shall perform such •other duties, which are defined in the by-laws of the corporation, as would, fall upon the secretary, or in his absence upon the assistant secretary.
    “ASSISTANT TREASURER.
    “Article x.
    ‘ ‘Sec. 1. The board of directors recognizes and empowers the assistant treasurer as the practical, acting treasurer ■and puts upon said assistant treasurer all the duties and ■responsibilities in detail appertaining to the office of treasurer of this company.
    “ Sec. 2. The assistant treasurer shall sign all voucher •checks of this company for the amount of bills, notes or -other obligations, and without his signature no voucher ■check of this company shall be payable. He shall be responsible for the keeping and disbursement of the company’s moneys, and shall give the company such bond •and in such amount as the board of directors may order. He shall be a member of the finance committee of the Aboard.”
    That Mr. Wuerthner, the treasurer, and the counsel for the complainants went to Toledo, the headquarters of the corporation, to investigate its affairs; that the assistant secretary, one Dunham, informed them that all the books and papers of the company were stored in the city of Toledo, and that they could not have access to them; that the offices of the company in Toledo had been opened and furnished in an expensive manner, and that they had been abandoned.
    The bill is very long, covering 22 pages of the printed record, and it is unnecessary to set forth any more of the allegations in it. The bill prays for a receiver, with the power to conserve the property of the corporation; that its officers and directors may come to an accounting; that the assistant secretary and assistant treasurer turn over to the secretary and treasurer all the books, etc., of the corporation for the use of the receiver; that the company and its officers, etc., be enjoined from selling, mortgaging or disposing of any of the property; that the Trust Company be enjoined from proceeding to foreclose its mortgage, and the execution creditors be enjoined from proceeding with their executions.
    Defendant William Watts demurred. His demurrer was overruled, and he has appealed to this court.
   Grant, J.

(after stating the facts). Many of the material allegations in the bill are upon information and belief. They could not well be otherwise, because complainants have been denied all access to the books and records of the company.

The statute under which the corporation was organized (2 Comp. Laws, chap. 188) requires that 10 per cent, of the capital stock shall be paid in (§ 7038, subd. 6); that its secretary and treasurer shall reside, have their place of business and keep the books of said corporation within this State (§ 7042); that the books of said corporation shall be kept at the office of the treasurer within this State, open at all times for inspection by any stockholder (§ 7051).

The bill positively alleges that these provisions were utterly ignored by the incorporators of the defendant company; that in order to avoid the statute they appointed an assistant secretary and an assistant treasurer, imposing upon them all the duties belonging to such officers and located them in the city of Toledo.

If the allegations of the bill are sustained by proofs, defendant corporation was “conceived in sin and brought forth in iniquity ; ” the complainants, resident stockholders, were deceived and defrauded; the officersyare conniving with certain creditors to obtain the title to this property which has cost over $100,000; a fraudulent attempt was made to throw the company into bankruptcy, and the original incorporators, including defendant Watts, are responsible for the situation; the officers of the company have abandoned it, and are taking no steps to protect or save it; the value of the property is largely in excess of the amount necessary to pay the debts.

Courts of law are inadequate to protect the rights and interests of creditors and stockholders. At law the property must be sold at public sale. Equity can and should extend its strong and beneficent arm to protect the rights of all. It may be unnecessary to sell any of the property, for if it be proved that the original incorporators did not pay in 10 per cent, of the capital stock as represented in their articles of association, they can now be compelled to pay it in.

This is not a case for the application of the rule that redress must be sought through the corporation before individual stockholders can seek redress in equity. The officers of the corporation are charged with fraud from the beginning, and it would be useless to ask them to cause suits to be commenced in which they are directly interested. The case is well within the principle of Miner v. Ice Co., 93 Mich. 97 (17 L. R. A. 412); Edwards v. Investment Co., 132 Mich. 1.

We think the bill makes out a case for the cognizance of equity jurisdiction, and the decree of the court below is sustained. The case will be remanded to the court below for further proceedings in accordance with the rules and practice of the court.

McAlvay, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.


text:
    ERICKSON v. LAMPI.
    1. Animals — Lien for Keeping — Chattel Mortgage — Priority.
    A chattel mortgage on a team of horses takes precedence over a lien claimed for caring for and feeding them unless they were actually delivered to the lien claimant to be cared for and fed prior to the date of filing the mortgage.
    3. Same — Right to Lien — Possession.
    Where the owner of a team of horses kept them in defendant’s barn, by permission, his teamster caring for them except on certain Sundays when defendant fed and cared for them for the teamster, and defendant furnished feed to be fed to them on the promise that he should be paid for it, defendant is not entitled, under section 10746, 3 Comp. Laws, to a lien for the stable rent and the value of feed furnished, there having been no delivery of the team to defendant to be kept and cared for.
    Error to Gogebic; Cooper, J.
    Submitted October 10, 1907.
    (Docket No. 34.)
    Decided November 5, 1907.
    Replevin by Fred Erickson against Nante Lampi, Alex Oksa, and Mathilda Oksa. There was judgment for defendants Oksa for the amount of a lien, under 3 Comp. Laws, § 10746, and plaintiff brings error.
    Reversed.

      Julius J. Patek, for appellant.

      Curtis Buck (Van Zile & Brownson, of counsel), for appellees.
   Montgomery, J.

This is an action of replevin brought to recover a team of horses, harness, wagon, etc. The plaintiff claims by virtue of a chattel mortgage executed on the 21st day of February, 1905, and filed on the 24th of February of the same year. The amount secured by the mortgage was $341, and exceeded the value of the property covered. The defendants claim a lien upon the horses under the provisions of section '10746, 3 Comp. Laws. On the trial the jury found the defendants entitled to a lien to the amount of $80, and gave judgment in the defendants’ favor in that amount. A motion for a new trial was entered and refused, the reasons for denying the motion being given by the trial judge.

At the close of the testimony the plaintiff asked that a verdict be directed in his favor excluding the defendants’ claim of lien. The same point was again made on the motion for a new trial, and error is assigned upon rulings adverse to the plaintiff upon this point. The theory of the judge’s charge to the jury was, that unless there was an actual delivery of the team to defendant Oksa, by the owner, Lampi, to be cared for and fed, and that such delivery took place prior to the 24th of February, the plaintiff’s chattel mortgage would have precedence over any claimed lien of the defendants. This was a. correct view of the law. Reynolds v. Case, 60 Mich. 76, Denison v. Shuler, 47 Mich. 598.

The court also charged the jury that if the team was delivered by the owner, Lampi, to defendant Oksa, or delivered by the teamster of Lampi finder directions from the owner under an agreement that Oksa was to care for and feed the team, that this would ontitlo defendants to the claimed lien. It is contended in this court, as it was in the court below, that, fairly construed, the testimony on behalf of the • defendants fails to show that there was in fact any such agreement. The defendant Oksa owned and occupied a barn. It was divided into two compartments, in one of which he kept his cow, and he testifies that Lampi, the owner of the team, wanted to rent the other compartment of the barn for his team of horses, and that an arrangement was made for $4 per month, Lampi to furnish his own feed for the horses. He then testifies that soon after the team was brought there he went to Lampi and said to him that he,-Oksa, could not feed his horses; that Lampi replied, “You take care of the team, I pay you — you feed the team, I pay you.” He further testified that Lampi in a conversation in the presence of witness’ wife said to him, “You feed the horses so and so and I settle with you the first payday, when I get my first pay,” and that he accordingly furnished the feed until the last of January, when Lampi bought seven or eight sacks of oats and seven or eight bales of hay. That he, Oksa, furnished the feed and the teamster took care of the horses; that he came there the same time the horses did and left on the 15th of March.

On cross-examination he testified as follows:

‘ ‘ Q. When Lampi came up to see you or when you went to see Lampi four days after the 15th of January, and told him that there was no feed there, didn’t Lampi tell you, ‘ Give the teamster feed and I will pay you for it next pay-day ? ’
“A. Yes, sir. He didn’t say ‘Give the teamster.’ He says ‘You feed the team, I pay for it.’ He don’t mention anything about the teamster; he says ‘ You give' the feed and I will pay for it.’ He did not say I should drive the team and feed the team. The teamster was to feed my grub. In other words he told me to give the teamster the feed and the teamster would feed it. I am sure that is what he said. And he promised he would pay me for it the next pay-day.
“Q. Then what he told you was this, ‘ Let the teamster have what the horses need and I will pay you for it next pay-day ? ’
“A. Yes, sir, that is what he said, and he didn’t say any more; Lampi was then working the team himself. At that time I didn’t ask Lampi’s teamster nor tell him to drive the team for me. Lampi’s teamster never had charge of the team for me. I did not tell any man, the teamster nor anybody else, to drive the team or feed the team or take care of the team for me. I didn’t have any body take care of the team for me. The teamster took care of them for Lampi until he went away. I never hired him and never asked him to take care of the team for me. Up to the time that the teamster went away the teamster was all the time the only person that held the team for Lampi. Up to the time the teamster went away nobody had charge of the team for me. I understand only feeding the team belongs to me then. When I had to furnish the feed. I fed them Sundays when the teamster was away. That was the only time that I fed the team when the teamster went away Sundays, before Itook sick. I don’t ask anybody about money, for the taking care of the team for the teamster those different Sundays. The only time I took care of the team was for • the teamster those Sundays when he was away, before the teamster went away. I had a talk with Lampi on the 15th of January when he rented the barn, then I had a talk with him when he said I should give the teamster hay and feed and he will pay me the next pay-day, and after that I could not remember exactly when. We had a good many more talks.”

The defendant Oksa further testified as follows:

Q. Were you to clean the horses, was that the bargain you made with Lampi ?
“A. No, sir, all I was to do was, as I said before, furnish the feed for the horses and give it to the teamster and the teamster was to feed and take care of the horses.”

The defendant Mathilda Oksa, wife of Alex, testified that soon after the horses were brought to the barn she heard a conversation with Lampi and her husband. That Lampi told her husband to take care of the team and clean them so that they got what they needed and he would pay him the first pay-day; that this occurred at the residence of the Oksas, that she heard him state that to her husband two or three times.

It is quite obvious that the witness is either referring to some other occasion when she testifies that there was an arrangement that her husband was to clean the horses or that her testimony is so framed for the purpose of meeting the exigencies of the case. In either view, it must be held unavailing, for there was no pretense that Oksa ever did clean the horses prior to the time that the mortgage was given and filed, and it is quite clear that he never understood that he had contracted to perform any such duty.

It is argued in the brief of defendants’ counsel that the so-called rent of the barn was no more than a license to occupy apartments in the building. Assuming this to be true, it gave exclusive right to the occupancy of this compartment in the barn until such license was revoked, and it could not be said that under such occupancy the possession of this team of horses was vested in the landlord or owner of the premises; and we have searched this record in vain to find the time or occasion when either actually or constructively the possession of this property was turned over from the defendant Lampi to the Oksas at any time prior to the giving and filing of this chattel mortgage. The language of the statute is that—

“ Whenever any person shall deliver * * * to any person any horse, mul , neat-cattle, sheep, or swine to be kept or cared for, such * * ° other porson shall have a lien thereon * * * for tho keeping d care of such animals, and may retain possession of tho same until such charges are paid.” 8 Comp. Laws, § 10746.

There was no delivery of this property to Oksa to be kept and cared for. It did not pass from the possession of Lampi. Oksa’s possession was no different than would be that of the keeper of a feed-store who had furnished feed to be fed to these horses. The owner by his agent, the teamster, continued in possession; they were kept in a stable rented, as Oksa says, to the owner, and of which for the time defendant Oksa had no control whatever. He performed no service in the care of the team except such service as .he voluntarily tendered for the teamster’s relief when the latter was away on Sundays. The question should not have been submitted as an open question for the jury.

The judgment will be reversed, with costs, and a new trial ordered.

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


text:
    MURPHY v. MURPHY.
    Divorce — Evidencie—Sufficiency—Testimony of Complainant.
    There is no hard and fast rule that prevents granting a decree of divorce upon the testimony of the complainant alone, though in such a case the right to relief must be very clearly established.
    Appeal from Ingham; Wiest, J.
    Submitted October 11, 1907.
    (Docket No. 33.)
    Decided November 5, 1907.
    Bill by Elva M. Murphy against Joseph J. Murphy for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Arthur J. Tuttle, for complainant.

      Walter Barlow, for defendant.
   Montgomery, J.

This is an appeal from a decree granting a divorce to complainant on the ground of defendant’s extreme cruelty. The bill charges a series of specific acts of cruelty by words and conduct, which it is claimed as a whole render the complainant’s life in defendant’s home unbearable.

The testimony is very voluminous and it is true that in the main the acts of cruelty shown. are proven by the direct testimony of the complainant, corroborated only in collateral details by the testimony of other witnesses, and it is urged that the complainant’s case therefore rests upon her testimony alone and that no decree should be granted for this reason. It is undoubtedly the correct rule that when the court is compelled to rest a decree of divorce upon the testimony of complainant it will only grant relief when the case is very clearly established; but there is no hard and fast rule that prevents granting a decree upon the testimony of the complainant alone in a divorce case. Rosecrance v. Rosecrance, 127 Mich. 322.

In the present case however we find, and a careful examination of the record has satisfied us, that the complainant is a woman of exceptional candor and character. In many points where the defendant’s testimony conflicts with hers complainant is corroborated by independent testimony, and on the whole record we feel convinced that the conclusion reached by the circuit judge was not only justified by the testimony but that the clear weight of the testimony supports his decision.

The decree of the court is affirmed, with costs, and the case will be remanded for a reference to the commissioner to take testimony as to the pecuniary circumstances of the parties with a view to a decree for alimony.

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


author: Ostrander, J.

text:
    CHASE v. SPENCER.
    1. Judgments — Conolusiveness—Mental Incapacity.
    Capacity to dispose of property and to execute proper conveyances is not necessarily disproved by a determination of the probate court appointing a guardian for the grantor on the ground of mental infirmity, but it appearing that his condition, whatever it was, continued from boyhood to death, the probate order is proper to be considered as evidence of his condition.
    '2. Cancellation oe Instruments — Deeds—Incapacity oe Grant- or — Evidence.
    On a bill to set aside a deed on the ground of mental incapacity of the grantor and undue influence, evidence examined; and held, to show that he was capable of understanding and did understand that he owned the property in question and could dispose of it as he pleased, and that he chose, intelligently, to give it to defendants’ mother, who was his sister.
    Appeal from Livingston; Miner, J.
    Submitted October 14, 1907.
    (Docket No. 39.)
    Decided November 5, 1907.
    Bill by Hester C. Chase against Emma Spencer, Ella Corbin, Delia Alger, and others, to set aside certain deeds. From a decree dismissing the bill, complainant and defendants Corbin and Alger appeal.
    Affirmed.

      Louis E. Howlett, for complainant.

      Eugene A. Stowe, for defendants Corbin and Alger.

      Shields & Shields, for other defendants.
   Ostrander, J.

Erastus Merrill, who died in November, 1864, testate, was father of Sarah (Salisbury), Helen (Cornell), Alexander, and Loring. His widow was mother of Helen and Loring. Subject to a life estate devised to his widow, the estate of Erastus was given to Loring. Loring, who was 29 years old when his father died, also owned land purchased for him by his father and deeded directly to Loring. By two deeds, dated, respectively, June 19 and June 28, 1893, Loring, who had never married, conveyed the land to his sister Helen and died during the following month. Sarah, mother of complainant, died June 10, 1905. Helen died January 3, 1906. It is averred in the bill of complaint that Helen caused the two deeds made to her by Loring to be recorded in June, 1893, and claimed thereafter to be owner of the-premises described in the deeds and continued to occupy and possess the same until she died. After her death,, her children claimed and now claim to own the premises. It is sought in this suit to set aside the deeds made by Loring, and in that behalf it is charged that at the time of making them he was of unsound mind and mentally incompetent to make them, and- that he was induced to make them by undue and improper influence exercised by his sister Helen “and others.” It is set out in the bill that after the death of Erastus Merrill the mother applied, to the probate court for the appointment of a guardian of the person and property of Loring and in that court an order was made appointing one Barnes Loring, a half brother, to have charge of his person and estate. Barnes. Loring filed a bond, with Helen Cornell and her husband as sureties, and filed an inventory. It does not appear that letters of guardianship were issued. He was never discharged by order of the court.

The questions discussed by counsel are:

(1) The effect of the guardianship.

(2) The fact of guardianship and other facts in evidence as establishing incompetency of Loring, in fact.

(3) The relations of Helen Cornell and her brother Loring.

(4) The effect of the delay in bringing suit.

In Rice v. Rice, 50 Mich. 448, the circuit judge charged the jury that the determination of the probate court was prima facie evidence of the testator’s insanity and incapacity to make a will, shifting the burden of proof upon that point to proponents. It was held by this court that if the question of testamentary capacity had been involved in the application for appointment of a guardian, the circuit judge would have been correct in his ruling, but that testator’s sanity was not, in fact, put in issue. See, also, Rice v. Rice, 53 Mich. 432. In the case at bar, the petition of the mother contained the allegation that “said Loring Merrill is about 29 years old and has become incompetent by reason of mental imbecility to have the charge and management of his estate and property,” and the order,of the court recites the finding that Loring “is by reason of mental infirmity incompetent to have the charge and management of his estate.”

Upon the reasoning of the cases cited, it must be said that capacity to dispose of property and to execute proper conveyances is not necessarily disproved by the determination of the probate court, although the order, it otherwise appearing that the condition of Loring, whatever it was, was continuing from boyhood to death, was, whether ■or not the proceedings were in all respects regular, proper to be considered as evidence of his condition.

The action of the father in preferring his son Loring to the exclusion of his other children is unexplained except by the inference that he was an object of special solicitude. Loring was physically capable of earning a living, and reason for special solicitude in his behalf may be found in the fact set out in the petition of the mother filed in the probate court. Helen Cornell and her husband, in becoming sureties for the guardian, approved the action of the mother and of the court. Immediately ■after the appointment of the guardian, Helen and her husband moved upon the premises and in her family her brother Loring lived for some 28 years and until he died. The guardian soon left the State and has since remained away. There is no testimony tending to prove an accounting with the guardian, or with Helen, that any accounts were kept by any one of the profits of the farm, of the receipts or expenditures of money, or that Loring was ever consulted about his or her affairs or gave any directions or conducted any affairs of consequence. Apparently, his sister and her husband managed the farm and lived upon the proceeds derived therefrom, furnishing a home for Loring, to the knowledge and with the consent of other relatives. There is no expert evidence of the mental condition of Loring. Aside from the proceedings in probate court, there is testimony to support each of two theories. One, that he was imbecile, foolish; the other, that, being afflicted with an impediment of speech, he was shy, precluded from engaging, except with great difficulty, in conversation, and therefore cut off from social affairs and from engaging in business; that he was in fact observing, intelligent, apparently able to read, a good farmer, skillful with cattle, a voter at elections. • In examining the record, an attempt has been made to distinguish conduct which may have been the result of suggestion or command and such as indicates volition and ability to reason. The result is not very satisfactory, yet it is a strong impression that Loring was not a fool. His intelligence, as indicated by his activities, was limited, but his actions for the most part were rational. Giving due effect to the evidence, including that furnished by the conduct of his parents^ we are impressed that he was capable of understanding and did understand that he owned the property in question and could dispose of it as he pleased; that he chose, intelligently, to give it to his sister. In this conclusion, we are in agreement with the learned trial judge, who had the opportunity of seeing the witnesses and hearing the testimony.

From 1893 until February, 1906, when the bill of complaint was filed, no attempt was made to question the validity of the deeds. There is testimony tending to prove that the mother of complainant stated to Helen that she should not disturb her in her possession during her (Helen’s) life, but expected her children to share in the property after her death. It remains, however, that the persons immediately interested took no action, that Helen remained in possession, claiming title to the land by virtue of the deeds for more than 12 years after the death of, Loring. A new generation is attacking and defending the title.

We are not called upon to discuss the effect of this delay upon rights otherwise existing, but we regard it as confirmatory of the correctness of the finding upon which decision is based.

The decree is affirmed, with costs to defendants.

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