text:
    CITY OF GRAND RAPIDS v. GRAND TRUNK RAILWAY SYSTEM.
    1. .Railroads — Taxation — Exemption — Specially Chartered Railroads — Local Improvements — Municipal Corporations.
    A specially chartered railroad company under Act No. 140, Laws of 1855, providing that it should pay an annual tax "in lieu of all other taxes,” would not he exempt from payment of taxes for local improvements.
    2. Same — Constitutional Law — Taxation — Local Improvements — Benefits Received.
    While it is a legislative policy of this State that railroad properties shall be subject to tax for local improvements, yet if the track, roadbed, or right of way of a railroad is not susceptible of benefit from a local improvement, a taxing of such property for same would be wanting in the due process of law required by the Constitution.
    3. Same — Former Holding Overruled.
    The holding of this court in Detroit, etc., R. Co. v. City of Grand Rapids, 106 Mich. 13, by a divided court, that a section of the right of way of a railroad company could not be assessed for the expense of improving a street which crosses it, according to benefits received, is overruled.
    4. Courts — Federal Courts — State Courts — United States Constitution.
    The opinion of the United States Supreme Court in Louisville, etc., R. Co. v. Paving Co., 197 U. S. 432, that the levying of a special assessment for benefits by a street improvement against a railroad right of way property does not violate the 14th Amendment to the Federal Constitution, is controlling on the State courts.
    Authorities discussing the question of liability of railroad right of way to assessment for local improvements are collated in notes in 28 L. R. A. 249; 12 L. R. A. (N. S.) 112; and 40 L. R. A. (N. S.) 935.
    On liability to local assessments for benefits, of property exempt from general taxation, see notes in 35 L. R. A. 33; 18 L. R. A. (N. S.) 451; 32 L. R. A. (N. S.) 303; 44 L. R. A. (N. S.) 57; and L. R. A. 1916F, 864.

      5. Railroads — Taxation—Street Improvement — Benefits Received — Question of Fact.
    The courts may not say, as a matter of law, that the track, roadbed, or right of way of a railroad may not be benefited or susceptible of benefit by a local improvement.
    6. Appeal and Error — Railroads—Taxation—Local Improvement — Fraud—Reviewing Judgment for Assessment — Municipal Corporations.
    The Supreme Court will not review a judgment against a railroad company for an assessment for benefits from a street improvement under 1 Comp. Laws 1915, §§ 4001, 4226, and the charter of the city of Grand Rapids (Act No. 593, Local Acts 1905), where the proceedings in form were regular, the defendant did not appear at any stage of the proceedings or make any objection thereto, and no bad faith is charged.
    Case-made from superior court of Grand Rapids; Dunham (Major L.) J.
    Submitted January 12, 1921.
    (Docket No. 110.)
    Decided March 30, 1921.
    Assumpsit by the city of Grand Rapids against the Grand Trunk Railway System for the amount of an assessment for street improvements. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Clapperton & Owen (Geer & Martin, of counsel), for appellant.

      Ganson Taggart and Charles A. Watt, for appellee.
   Clark, J.

The plaintiff caused an assessment for street improvement to be made upon two pieces of land forming a part of defendant’s roadbed of its steam railroad and upon two small pieces of land occupied by side tracks of defendant which lands were determined to be within a certain portion of the city benefited by such improvement and which portion was declared to be a proper assessment district upon which to levy assessment therefor. There was assessment for benefits against the four pieces of land in the sum of $1,249:50. There was notice of the improvement and notice of hearing of appeals from assessments on the assessment roll as required by law and final confirmation of the roll by the common council of plaintiff city. The proceedings in form were regular. The defendant did not appear at any stage of the proceedings nor did it make any objection. Plaintiff sued to recover the tax and had judgment for the amount of the assessment against defendant’s property with interest and charges in the sum of $1,515.25.

Defendant here contends that its said property so used is not susceptible of benefit from the street improvement and for that reason cannot be assessed. Plaintiff’s charter, Act No. 593, Local Acts of 1905, contained the following:

“Title VI, § 46: All freight houses, roadbeds, rights of way and other premises belonging to any steam railroad or railroad corporation or company within the corporate limits of the city of Grand Rapids, which are necessarily used in the operating of the respective franchises of the owners of said railroads, and the person, company, or corporation owning the same are liable for all valid unpaid assessments for public improvements hereafter made within the city of Grand Rapids and assessed against the same, but no lien shall attach thereon on account of such assessments and the payment of such assessments shall not be enforced and collected by sale of said property. Assessments of such classes of property shall be made in the same manner as the assessments of other property under- the charter of said city for special improvements, and the assessment roll for such special improvement taxes shall be prima, facie evidence in any court of the regularity of all proceedings leading up to the assessment and the making of said roll.
“Title VI, § 47: All special assessments made as aforesaid against the property of said railroad companies and the owners thereof, for public improvements, and all installments thereof, together with the interest, costs and charges thereon for enforcing the collection of the same, are hereby made and declared legal demands against each and every of said railroad or railway corporations or companies against whose property such assessments are made in favor of the city of Grand Rapids, and if any of said railroad or railway corporations or companies shall fail to make payment thereof within the time payment is required of such special assessments under the roll on which they are extended, then the city of Grand Rapids may institute an action in assumpsit or other proper legal action in any court of competent jurisdiction against the owners of said properties, and if judgment be rendered thereon in favor of said city of Grand Rapids, the same may be collected on execution out of any property of said railroad or railway corporations or companies liable to levy and sale on execution.”

Section 4226,1 Comp. Laws 1915, relative to taxing such properties by the State board of assessors, provides in part:

“The said taxes shall be payable on the first day of April, following’ the assessment and levy thereof, and shall be in lieu of all taxes for State and local purposes, not including special assessments on property particularly benefited, made in any county, city, village or township.”

Section 4001,1 Comp. Laws 1915> provides in part:

“The real property of corporations exempt under the laws of this State, by reason of paying specific taxes in lieu of all other taxes for the support of the State: Provided, That the track, right of way, depot grounds and buildings, machine shops, rolling stock and all other property necessarily used in operating any railroad in this State belonging to any railroad company, shall henceforth he made exempt from taxation for any purpose, except that the same shall be subject to special assessments for local improvements in cities and villages, and all lands owned or claimed by any such railroad company not adjoining the track of such company shall be subject to all taxes.”

Defendant has been sued as Grand Trunk Railway System, which plaintiff asserts in its declaration is a corporation. In a brief it is said that the defendant is the Detroit, Grand Haven & Milwaukee Railway Company and that the same is a specially chartered railway company of which section 9, Act No. 140, Laws of 1855, provides:

“The said company shall, on or before the first day of July, pay the State treasurer an annual tax of one per cent, on the capital stock of said company paid in, which tax shall be in lieu of all other taxes, except for penalties imposed upon said company by its act of incorporation, or any other law of this State. The said tax shall be estimated upon the last annual report of said corporation.”

Even if defendant is specially chartered, a point which cannot be determined upon the record, the language of the claimed charter “in lieu of all other taxes” would not exempt defendant from payment of taxes for local improvements. See Lake Shore, etc., R. Co. v. City of Grand Rapids, 102 Mich. 374 (29 L. R. A. 195), where the subject is fully considered.

It is a legislative policy of this State that railroad properties shall be subject to tax for local improvements. But if the track, roadbed, or right of way of a railroad is not susceptible of benefit from a'local improvement a taxing of such property for such improvement would be wanting in the due process of law required by the Constitution. Whether such property may be so taxed is a question upon which the courts are not in harmony. In this State it was held in Lake Shore, etc., R. Co. v. City of Grand Rapids, supra, that a tax upon a part of plaintiff’s roadbed and a freight house for a local improvement could not be collected by a sale of the property but from the opinion we infer that the court thought the assessment and tax valid. In Detroit, etc., R. Co. v. City of Grand Rapids, 106 Mich. 13 (28 L. R. A. 793), it was held by a divided court (quoting from syllabus):

“A section of the right of way of a railroad company, occupied by its tracks and used for no other purpose, cannot be assessed for the .expense of improving a street which crosses it, under a city charter requiring such assessments to be made according to benefits received.”

We think this holding must be overruled. In the instant case a Federal question may be raised that the taxing violates the Fourteenth Amendment. The following opinion of the United States Supreme Court is controlling:

“This is a proceeding under the Kentucky Statutes, § 2834, to enforce a lien upon a lot adjoining a part of Frankfort avenue, in Louisville, for grading, curbing and paving with asphalt the carriageway of that part of the avenue. The defendant, the plaintiff in error, pleaded that its only interest in the lot was a right of way for its main roadbed, and that neither the right of way nor the lot could or would get any benefit from the improvement, but on the contrary rather would be hurt by the increase of travel close to the defendant’s tracks. * * *
“The plea plainly means that the improvement will not benefit the lot because the lot is occupied for railroad purposes and will continue so to be occupied. Compare Chicago, etc., R. Co. v. City of Chicago, 166 U. S. 226, 257, 258 (17 Sup. Ct. 581). That, apart from the specific use to which this land is devoted, land in a good-sized city generally will get a benefit from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which, as we already have implied, a legislature is warranted in adopting. But, if so, we are of opinion that the legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered simply in its general relations and apart from its particular use. See Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190 (13 Sup. Ct. 293). On the question of benefits the present use is simply a prognostic, and the plea is prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues — for no one can say that changes might not make a station desirable at this point; in which case the advantages of a paved street could not be denied. We are not called on to say that we think the assessment fair. But we are compelled to declare that it does not go beyond the bounds set by the Fourteenth Amendment of the Constitution of the United States.” Louisville, etc., R. Co. v. Paving Co., 197 U. S. 432 (25 Sup. Ct. 466).

The holding in Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 506 (62 N. W. 417, 28 L. R. A. 249), resembles the holding in Detroit, etc., R. Co. v. City of Grand Rapids, supra, but in a later case it is said:

“The question, therefore, arises: Are lands of a railway company, used solely for a right of way, subject to special assessments for street improve-meats? Counsel for plaintiff contend they are not, because under the laws of this State and the charter of the defendant city special assessments are limited by and cannot exceed the special benefit which the abutting property receives by reason of the improvement, and in Chicago, etc., R. Co. v. City of Milwaukee, supra, this court held as a matter of law that the necessary right of way of a railway company is not specially benefited by the improvement of a street in front of it. * * * It is true the decision in such case was based in part upon the fact that it could be said, as a matter of law, that the right of way of a railway company was not benefited by the improvement of the street upon which it abuts, but the decision rested chiefly upon the ground that, in the absence of an express statute authorizing' an assessment of the tracks' and necessary right of way of a railway company, the assessment and sale thereof for benefits by local improvements could not be sustained. And it was held that in the statute exempting railway property from taxation, the clause ‘except that the same shall be subject to special assessments in cities and villages’ was not a sufficiently specific declaration of legislative intent to subject it thereto, as the section was intended merely to confine the exemption to the subject of general taxation. So it will be perceived that if the court had found in the statutes a sufficiently clear declaration of legislative intent to subject railroad property to special assessments, the decision would have been otherwise. That case was decided in 1895. , Subsequently the legislature enacted chap. 425, Laws of 1903, and in Chicago, etc., R. Co. v. City of Janesville, 137 Wis. 7 (118 N. W. 182, 28 L. R. A. [N. S.] 1124), this court had occasion to consider the effect thereof. It referred to the case of Chicago, etc., R. Co. v. City of Milwaukee, supra, and used this language with reference thereto and the enactment of the subsequent statute:
“‘In the discussion of the question, it was said that the principle is established that “such a result cannot be effected under the power of taxation without express legislative authority, and that general language in such statutes will not he held to authorize such a result.” ’ * * *
“While the language was used in a tease that did not from necessity' involve the question, because the assessment for the sewer was also sustained under the exercise of the police power, irrespective of special benefits, still it correctly expresses the purpose and power of the legislature in the enactment of chapter 425, Laws of 1903. What was said in Chicago, etc., R. Co. v. City of Milwaukee, supra, to the effect that it is clear, as a matter of law, that a railway company’s right of way is not benefited by the improvement of the street upon which it abuts, must be deemed to be overruled. Such legislation is in accord with the result in many well-considered cases, and is in harmony with the rule approved by the Supreme Court of the United States that on the question of benefits or no benefits the land shall be considered simply in its general relation and apart from its particular use. Louisville, etc., R. Co. v. Paving Co., supra; Illinois Cent. R. Co. v. City of Decatur, supra; City of Seattle v. Railroad Co., 50 Wash. 132 (96 Pac. 958); Burlington, etc., R. Co. v. Spearman, 12 Iowa, 112; Heman Construction Co. v. Railroad Co., 206 Mo. 172 (104 S. W. 67, 12 L. R. A. [N. S.] 112, 12 Ann. Cas. 630), and cases cited in Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 517 (62 N. W. 417), and note to same in 28 L. R. A. 249.” Chicago, etc., R. Co. v. City of Milwaukee, 148 Wis. 39 (133 N. W. 1120).

The rule is stated in 25 R. C. L. p. 117, thus:

“Property belonging to quasi-publie corporations, such as railway and other transportation companies, is controlled by substantially the same rules governing other cases of assessments for local improvements, and railroad property, other than the roadbed or right of way, has been held liable in almost every instance wherever it has been benefited by the local improvement. As to whether a railway roadbed or right of way may properly be assessed for local improvements, the courts are not in harmony. There are numerous cases which deny the right to levy an assessment on such property, but while some of these base their holding entirely on the nature of the property, and in others a distinction is drawn between cases where the land is owned in fee by the railroad and those in which it has merely an easement, the question in most of them seems to have been one of fact, or the decision was based on the wording of a particular statute, and the more generally accepted view at the present time is that in the absence of statute to the contrary a railway roadbed or right of way is subject to assessment for local improvement when benefited thereby.” * * *

For review of the cases bearing upon the question see 28 L. R. A. 249; 28 L. R. A. (N. S.) 1124; 12 L. R. A. (N. S) 112; 40 L. R. A. (N. S.) 935; 25 R. C. L. pp. 117, 118. See, also, Figg v. Railroad Co., 116 Ky. 135 (75 S. W. 269); Winona, etc., R. Co. v. City of Watertown, 1 S. D. 46 (44 N. W. 1072); Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Peru, etc., R. Co. v. Hanna, 68 Ind. 562; Illinois Cent. R. Co. v. City of Matoon, 141 Ill. 32 (30 N. E. 773); City of Ludlow v. Railway Co., 78 Ky. 357; Chicago & Alton R. Co. v. City of Joliet, 153 Ill. 649 (39 N. E. 1077); Burlington, etc., R. Co. v. Spearman, 12 Iowa, 112; City of Seattle v. Railroad Co., 50 Wash. 132 (96 Pac. 958); Illinois Cent. R. Co. v. People, 170 Ill. 224 (48 N. E. 215); Kansas City, etc., R. Co. v. Waterworks Improvement Dist., 68 Ark. 376 (59 S. W. 248).

The following cases are cited by counsel for defendant as supporting its contention: New York Bay R. Co. v. City of Newark, 77 N. J. Law, 271 (72 Atl. 455); New York, etc., R. Co. v. Village of Port Chester, 149 App. Div. 893 (134 N. Y. Supp. 883); City of Philadelphia v. Railroad Co., 33 Pa. St. 43; Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 506 (62 N. W. 417, 28 L. R. A. 249); Mt. Pleasant Borough v. Railroad Co., 138 Pa. 365 (20 Atl. 1052); Allegheny City v. Railroad Co., 138 Pa. 375 (21 Atl. 763, 11 L. R. A. 520); Junction R. Co. v. City of Philadelphia, 88 Pa. St. 424; City of Bridgeport v. Railroad Co., 36 Conn. 255; New York, etc., R. Co. v. City of New Haven, 42 Conn. 279.

The weight of authority is, and we so hold, that the court may not say, as a matter of law, that the tract, roadbed, or right of way of a railroad may not be benefited or susceptible of benefit by a local improvement. No bad faith is charged and to what extent the property included in the assessment district was benefited and whether benefited or not were questions to be determined in the special proceedings. We cannot review the assessment.

See Brown v. City of Grand Rapids, 83 Mich. 101; Graham v. City of Grand Rapids, 179 Mich. 386 (Ann. Cas. 1915D, 380); opinion of Justice Hooker in Detroit, etc., R. Co. v. City of Grand Rapids, 106 Mich. at pages 17, 18 (28 L. R. A. 793).

The charter, Act No. 593, Local Acts of 1905, gives the right to recover the tax in a suit at law.

The judgment is affirmed.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Clark, J.

license: Public Domain

text:
    FLETCHER v. FLETCHER.
    1. Executors and Administrators — Services' Rendered by Son Presumed Gratuitous.
    Services rendered by a son to his deceased father in his lifetime are presumed to be gratuitous in the absence of an express or implied contract for compensation.
    2. Same — Presumptions—Evidence.
    Evidence held, sufficient to show that both the father and the son, who was married and lived apart from the father and managed the father’s business, expected and understood that the son would be compensated for his services to his father.
    S. Same — Services—Compensation.
    Where the son, who managed the father’s business, during the lifetime of the father received large sums of money from the latter, totaling nearly twice as much as the other two children received, although they also rendered some service to the father, it must be held, that such sums were given as compensation for services rendered rather than as gifts, and a claim for such services against the father’s estate was properly denied.
    4. Same — Advancement—Compensation—Descent and Distribution.
    Whére the son, who managed the father’s business, during the lifetime of the father charged himself with one large item, but afterwards, in the same year, charged it off the books to profit and loss, and the father never objected to the same, it will be allowed to stand, as he left it, as compensation rather than as an advancement.
    Appeal from Wayne; Goff (John H.), J.
    Submitted February 1, 1921.
    (Docket No. 113.)
    Decided March 30, 1921.
    Rehearing denied July 19, 1921.
    Bill by Frank W. Fletcher against Frank W. Fletcher and Allan M. Fletcher, executors of the will of George N. Fletcher, .deceased, and Allan M. Fletcher and Grace Fletcher-King for an accounting. From the decree rendered, all parties appeal.
    Affirmed.

      H. E. Spalding and Henry & Henry, for plaintiff.

      I. S. Canfield, for defendant Fletcher.

      J. O. Murfin, for defendant King.
   Clark, J.

In the second case a joint adventure was claimed by plaintiff, Frank W. Fletcher, and was decreed by the lower court, which decree was again reversed and the decree of this court stated:

“The decree of the circuit court for the county of Alpena, in chancery, shall be, and the same is herebv reversed and vacated, but without prejudice to the rights of any of the parties hereto to have determined on such accounting any claims for services that they may have against the estate of George N. Fletcher, provided that such account and claim for services be limited to the period before the death of George N. Fletcher, whether connected with the business of George N. Fletcher. & Sons or otherwise. Services rendered after the death of George N. Fletcher, whether for services as executor or otherwise, are hereby remitted to the probate court of Wayne county.”

On June 21, 1920, the cause was transferred from the Alpena circuit to the Wayne circuit. The bill of complaint was amended by adding a paragraph:

“That by the decision of the Supreme Court made in this cause on May 29, 1919, and the decree entered pursuant thereto, as complainant is advised and avers, said ca,use was remanded to the circuit court for the county of Alpena, in chancery, for an accounting without prejudice to the rights of any of the parties to this suit to have determined upon such accounting any claims against the estate of George N. Fletcher for services rendered prior to the death of said George N. Fletcher, whether connected with the business of said George N. Fletcher & Sons, or otherwise.
“That during the ten years next preceding the death of George N. Fletcher, complainant was in full charge of the business conducted -by said George N. Fletcher under the name of George N. Fletcher & Sons and the Alpena Sulphite Fibre Company and devoted his entire time thereto and to other interests of his father and that his services during said period were reasonably worth the sum of $15,000 per year. That said services, were rendered by complainant under the belief that said business of Fletcher & Sons was a copartnership and that he was an equal partner therein with George N. Fletcher and Allan M. Fletcher. That from the time of the rendition of said services until the several decisions of the Supreme Court in this cause, complainant believed that said business! was either a partnership or a joint adventure in which he had a one-third interest and that the hill of complaint herein was framed in accordance with that belief. That complainant has heretofore made no claim for compensation for said services because of his belief concerning the nature of said business.”

Upon the hearing there were two questions in dispute: (1) Whether the plaintiff, Frank W. Fletcher, was entitled to compensation for Ms service for a period of 10 years to the time of his father’s death in 1899; and (2) whether plaintiff, Frank W. Fletcher, should account for an item of $41,591, which in 1893 was charged against him on his father’s books and afterwards in the same year charged off to profit and loss. The decree /as against plaintiff, Frank W. Fletcher, upon the first question and in his favor upon the second. Plaintiff, Frank W. Fletcher, and defendants, Allan M.- Fletcher and Grace Fletcher-King, have appealed. To the records in the other cases has been added the record on this appeal by which further facts are presented. Defendants contend that service rendered by a son to his father is presumptively gratuitous and that the evidence in the case at bar does not rebut the presumption. In considering this question we shall also treat of the equities. We do not find an express contract to pay. Then before compensation can be allowed the proofs must be found to be such that a contract can be implied. By what rule shall the proofs be measured? The correct rule is thus stated:

“In 18 Cyc., at page 412, the rule is thus laid down:
" 'The courts regard with suspicion and disfavor claims brought against a decedent’s estate for personal services rendered by relatives, especially where the latter are members of his immediate family or household, as the presumption is that such services, between persons occupying such relations, are intended to be gratuitous.’
“Stress is laid by the writer in the concluding part of the paragraph on the fact that such claims are more favorably regarded when decedent and claimant do not live together. All the Michigan cases cited are, I believe, in harmony with this rule. While there need not be an express contract, in terms, the proofs must be of such a nature that one can be implied, and such proofs must overcome the presumption arising from the family relation. It is not enough, to prove that the care was rendered. The proofs must go further and show that they were rendered under such circumstances as rebut the presumption that they were gratuitous and justify the inference that the daughter expected to be compensated, and the father expected to pay her for the same.” In re Hoffman's Estate, 200 Mich. at page 470.

We apply the rule to the facts. George N. Fletcher, who died in 1899, aged 87 years, was engaged for many years in business at Alpena. He 'had important business interests in other States. In 1879 he and Albert Pack formed the partnership of Fletcher, Páck & Company to conduct a land and lumber business at Alpena. The term of existence of the partnership was fixed at 10 years.. They were equal partners. Frank W. Fletcher worked for this firm during its. existence and in 1882 became a partner and was permitted to have a one-tenth interest. Allan M. Fletcher, who also' had been employed by the firm, in 1882 obtained a one-fourth interest in a mill in which the partners owned the remaining interest. The firm was organized without capital. Funds needed were advanced by George N. Fletcher and by Mr. Pack. Frank W. Fletcher had principal charge of the operations of the firm. The profits, in a sum approximating $800,000, were divided at the expiration of the partnership.

In 1889, upon the winding up of the affairs of Fletcher, Pack & Company, George N. Fletcher launched another business in the name of George N. Fletcher & Sons. His children, Frank, Allan, and Grace, were then respectively 36, 30 and 28 years of age. Mrs. Fletcher, the mother, died in 1890. The daughter,' then unmarried, lived with the father and cared for his home until his death. From 1889 to 1898, Allan M. Fletcher worked at Rumford Falls, Maine, in a business in which the father was interested. Frank W. Fletcher was in general charge of the business of George N. Fletcher & Sons from its beginning until it ended with the death of the father in 1899. The business was mainly lumbering. The net profits were $290,574.48. In 1885, George N. Fletcher, for Fletcher, Pack & Company, began the construction at Alpena of a mill for the manufacture of sulphite fibre, but he took this business for himself and conducted it under the name of Alpena. Sulphite Fiber Company. In 1893, all charges for construction of the sulphite fiber plant, $185,110.91, were paid from profits of the business. In 1896 the business 'showed a net profit of $110,000, and George N. Fletcher of this profit then took $25,000 and gave a like amount to each of his three children, and again in 1898 of the profits of this business the father took $15,298.59 and gave a like amount to each of the three children and in that year the property of this business was taken over at a valuation, it seems, of $200,000 by a corporation, Fletcher Paper Company, having a capital stock of $200,000 fully paid. Of this stock, except a small number of shares taken by an employee, George N. Fletcher kept one-fourth and gave to each of his children one-fourth. Frank W. Fletcher was the general manager of the business of this corporation in 1898 and in 1899. He had principal charge of the sulphite fiber business from 1885 to 1889 and general charge thereafter to 1898. He also gave some attention to interests of his father in western States. During the period covered by his claim for services rendered his father, as stated, Frank W. Fletcher was married, had children and lived in his own home in Detroit apart from the father and daughter, Grace, who also lived in Detroit. Frank W. Fletcher, during those years, in addition to the amounts distributed by his father, received certain other sums from time to time generally characterized by counsel as withdrawals. In the late years of the' father’s life the care and management of these various interests and enterprises were upon Frank W. Fletcher, who in business was both capable and successful. The father depended upon Mm and knew his worth and his burdens.

Being married, having children, living apart from the father, surrendering his partnership interest in Fletcher, Pack & Company at the age of 36 years, having good business ability and training, did Frank W. Fletcher give to his father these services without expectation on his part to receive compensation, and without expectation on the part of the father to pay? This must be answered negatively. But how was he to be compensated? The proofs fairly establish the following conclusions: There was between this father and son mutual confidence. The son was permitted to withdraw and to have funds needed. The father intended that the son should have from the additions and profits of these enterprises compensation and reward. The son expected of the father compensation and return for his services. Both expected and understood that the remuneration for the services of plaintiff would be adequate, if not generous, and that the father would pay when and as he chose.

During the period for which compensation is claimed, plaintiff received from his father approximately §160,000, in which sum is not included the amount paid plaintiff upon the dissolution of Fletcher, Pack & Company but are included the item of §41,591 later referred to, the distributions from the sulphite fiber business, other withdrawals, and the stock given plaintiff in the Fletcher Paper Company which for this statement has been taken at a valuation of §50,000 but which we think much less than actual value as this business earned about 87% net profit on its capital during the five years preceding the organization of the corporation. But it is urged that these items were gifts, not compensation.

Allan M. Fletcher and Grace Fletcher also were favored by the father, but Allan was employed by the father, and Grace ministered to him in his late days. Plaintiff rendered the most important service to the father and received of the father nearly twice as much as the combined amounts received by Allan and Grace. With due regard to the relations of the parties', we think these distributions by the father were compensatory in their nature. These enterprises were regarded as family matters. No complaint seems to have been made, when, from the sulphite fiber business, on two occasions, the father distributed profits to the three children and himself in equal shares nor when, in 1898, the capital of the business was carried into the corporation and the stock divided in substantially the same manner. And the final distribution under the will of the father will give Ms estate substantially to his children in equal shares. For the services of the plaintiff the father has provided sufficient compensation. Entertaining this view, it is not necessary to consider the defense that the claim is barred by tbe general statute of limitations which is met by a contention of plaintiff’s counsel which in fairness to him should be stated:

“Where one in a mistaken view of the nature of his right, or of the proper remedy, enters upon a course of action that but for the mistake he would not have followed, equity will relieve against that mistake; and if the wrong remedy be originally pursued will not refuse relief by reason of the delay in seeking the right remedy, though that' delay be greater than the period of the statute of limitations.”

And it is likewise unnecessary to consider another defense that the claim is barred by the statute of non-claim, not having been presented within the statutory period to the probate court. Upon this point it is contended that jurisdiction of the subject-matter under former opinions has been retained by this court.

The item of $41,591. We shall not add to a long opinion a discussion of the facts as to this item. It seems to have been charged originally to Frank W. Fletcher and later, on his father’s books, charged off to profit and loss. As Judge Goff stated, it does not appear that the father in his lifetime ever objected to such entry or requested any correction of it. It may stand as he left it'.

The decree has had our careful attention. It is in all things affirmed. No costs will be awarded.

Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Steere, C. J., did not sit.


author: Steere, C. J.

text:
    PEOPLE v. VANDER VEEN.
    Intoxicating Liquors — Criminal Law — Constitutional Law— Search Warrant — Questions Raised.
    In a prosecution for a violation of the liquor law (Act No. 338, Pub. Acts 1917), held, that the questions of the constitutionality of section 25 of said act, under which the search warrant was issued, and the competency of the evidence obtained by means thereof, were properly raised by defendant, and the conviction should therefore be set aside; said statute having been declared unconstitutional.
    Exceptions before judgment from Ottawa; Cross (Orien S.), J.
    Submitted January 13, 1921.
    (Docket No. 123.)
    Decided March 30, 1921.
    John A. VanderVeen was convicted of violating the liquor law.
    Reversed, and defendant discharged.

      Charles H. McBride (Diekema, Kollen & Ten Cate, of counsel), for appellant.

      Fred T. Miles, Prosecuting Attorney, for the people.
   Steere, C. J.

This case is before us on éxceptions before sentence to review the conviction of defendant under an information charging him with haying a quantity of intoxicating liquor unlawfully stored in a certain room of a business block in the city of Holland, “for the purpose of being unlawfully sold, given away and furnished in this State, contrary to the statutes,” etc., Act No. 338, Pub. Acts 1917, being the statute contrary to which the alleged misconduct is charged. The proceedings were initiated hy a search warrant issued pursuant to section 25 of said statute. The evidence essential to conviction was obtained by means of said search warrant. The facts and law under which defendant was convicted parallel in essentials those in People v. De La Mater, 213 Mich. 167.

In that case it is held that section 25 of said Act No. 338 is unconstitutional, and evidence secured by means of a search warrant issued under it is incompetent. The conclusions there reached upon that question are decisive of the instant case, unless the prosecution is right in the contention that the question of constitutionality of the law under which the search warrant issued was not properly raised by defendant in the trial court. It is true that it was not pressed as a paramount issue, like it was in the De La Mater Case, but we think it was fairly raised.

Defendant had been running a hardware business in the block where the liquor seized was located. He owned an interest in the building and had general charge of it. Rooms on the second floor were rented for offices and other purposes. When the officers went to search the premises they showed him the search warrant and advised him of their mission, telling him they desired to search upstairs. He acquiesced, took a bunch of keys and went upstairs with them. While up there the officer who had the search warrant said he wanted to get into a certain room, to which defendant replied he had no key to or control over the room which was rented to a Mr. Saunders who was absent. The officers then gained entrance to the room without his assistance and found a quantity of liquor there which they seized. Complaint was then made against defendant and this prosecution followed.

On preliminary examination before the magistrate defendant’s counsel moved for his discharge, claiming that no evidence had been produced pointing to defendant’s guilt under the provisions of Act No. 338, and for other reasons immaterial here. He was bound over to the circuit court for trial. Customary return was made by the magistrate, which included the initial search warrant and affidavit therefor, made under the provisions of the statute, based only on affiant’s statement that he had “good reason to believe and does believe,” etc. When arraigned in circuit court defendant stood mute and his counsel moved to quash the information and all proceedings in that connection on the same grounds urged before the magistrate. This motion was overruled and defendant’s plea of not guilty entered by order of the court.

In his opening statement to the jury of the facts he proposed to prove the prosecuting officer stated among other things that the officers had a right to search the room with the search warrant as they were proceeding to do and defendant’s counsel took exception “to the remark that they had a right to search that room with the search warrant.” The first witness called was the officer who served the search warrant. After he had testified that he was armed with a search warrant when he went to the place, which he. identified and the prosecution offered it in evidence, counsel for defendant objected on the ground that it was issued under an unconstitutional law, as had been held, which the prosecuting attorney contradicted, saying it was issued under Act No. 338. The trial court sustained the objection but allowed the officers to testify as to what they did and found under their search warrant. At the request of the prosecution they produced in court and identified the liquor they then seized, to which counsel for defendant objected and the objection was overruled. Objections were consistently made during the trial to the admission of such evidence. No testimony was offered by the defense. A directed verdict was asked for defendant because of no competent evidence to show that the liquor seized under the search warrant belonged to or was kept by him where found for the unlawful purpose charged. We conclude that the question of the validity of the search warrant and competency of evidence obtained by means of it were fairly and timely raised in the trial court.

In view of defendant’s insistent disavowal of any control over, interest in, or knowledge of, the seized liquor, which he and his counsel impute to the yet absent and thus far mysterious Mr.. Saunders, no question of its return to the owner is involved here.

The conviction must be set aside and defendant discharged.

Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Bird, J.

text:
      In re PARRISH.
    Habeas . Corpus — Courts — De Facto Court — Constitutional Law.
    Where plaintiff was convicted in the recorder’s court of the city of Detroit of practicing medicine without a license, he cannot properly be discharged upon habeas corpus, since said court is a de facto court, and the constitutionality of the act (Act No. 369, Pub. Acts 1919), creating it cannot be attacked in said proceeding.

      Habeas corpus proceedings by Clinton C. Parrish to obtain his release from the custody of the sheriff of Wayne county,
    submitted January 4, 1921.
    (Calendar No. 29,363.)
    Writ dismissed March 30, 1921.

      A. L. Williams (Willis & Hinton, of counsel), for plaintiff.

      Matthew H. Bishop, Prosecuting Attorney, for defendant.
   Bird, J.

Defendant was convicted in the recorder’s court for the city of Detroit of practicing medicine contrary to the provisions of the statute without a license, and remanded to the custody of the sheriff. He now petitions this court for a writ of habeas corpus claiming to be illegally detained by the sheriff because Act No. 369 of the Public Acts of 1919, creating the court which tried him, is unconstitutional and void.

This court in an early case refused to issue the writ of habeas corpus in behalf of one who had been acquitted of murder on the ground of insanity and committed to the insane asylum connected with the State prison. It was said by the court not to be the proper remedy. In re Underwood, 30 Mich. 502.

Practically the same question came before the court again in Re McGuire, 114 Mich. 80, and the court again refused to issue the writ, holding that the application must be ruled by In re Underwood, supra. Recently the question was considered by this court in Gildemeister v. Lindsay, 212 Mich. 299, upon appeal, where the authorities were reviewed at some length by Mr. Justice Stone, and the result reached that the constitutionality of the act creating the court could not be determined in controversies between private parties. Following this the case of People v. Kongeal, 212 Mich. 307, came from the recorder’s court to this court by writ of error, and one of the questions raised was the constitutionality of the act creating that court. This court refused to consider the point, holding it was ruled by Gildemeister v. Lindsay, supra.

The rule of practice on the question is very well stated in 12 Ruling Case Law, p. 1203, where it is said:

“It is the well settled general rule that on habeas ‘corpus it may be shown that the court under whose judgment or order the prisoner is deprived of his liberty had HO' legal existence, for if there was no lawful court the pretended trial and judgment was absolutely void. It is generally held, however, that this rule has no application to the case of die facto judges, and that a person convicted by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly .discharged upon habeas corpus.” Citing authorities.

In view of the attitude heretofore taken by this court that the recorder’s court is a de facto court the remedy of habeas corpus is not the proper remedy to test the constitutionality of the act creating the court, the prayer of the petition must be denied.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


text:
    ROBERTSON v. BOYLAN.
    1. Adverse Possession — Evidence—Sufficiency.
    Plaintiffs’ claim of title by adverse possession to a strip of land must fail where the testimony fails to show any claim of adverse possession or ownership by their predecessors in title, and they have occupied the premises less than 15 years.
    2. Same-Grantors’ Rights Not Conveyed — Tacking Possession.
    Where plaintiffs’ grantors did not convey to them any rights they might have acquired in said strip of land by adverse possession, plaintiffs could no.t tack their adverse possession to that of their grantors for the purpose of completing the statutory 15-year period.
    3. Same — Occupancy by Consent — Notice of Adverse Claim Necessary.
    Where occupancy of a strip of land by plaintiffs’ predecessors in title began by consent of the owner, the statute of limitations giving title by adverse possession would not begin to run until the owner was notified that title was claimed adversely.
    On right of one in permissive possession of real property to acquire title by adverse possession, see note in 12 L. R. A. (N. S.) 1140.
    Appeal from superior court of Grand Rapids; Dunham (Major L.) J.
    Submitted January 19, 1921.
    (Docket No. 46.)
    Decided March 30, 1921.
    Bill by Winifred C. Robertson and others against Fred M. Boylan and another to try the title to certain land. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Smedley & Linsey, for plaintiffs.

      Carroll, Kirwin & Hollway, for defendants.
   Bird, J.

This bill was filed to determine the title to a strip of land about 10 feet wide and about 120 feet long, which lies between lands owned by the parties-hereto in the city of Grand Rapids. After hearing the matter the chancellor decided that defendants h'ad the title thereto and dismissed plaintiffs’ bill. It appears that in the year 1898 Sluman S. Bailey was the owner of two lots, numbers 16 and 17 (Coit and Curtis Partition plat), situate on the northwest corner of Fulton street and North Union avenue in the city of Grand Rapids. The lots at that time were 152 feet long and each was about 60 feet wide. The long way of the lots was north and south along North Union avenue. In 1893, Mr. Bailey gave his niece, Helen R. Gardner, the privilege of erecting a house on the north end of these lots, facing North Union avenue. The next year he conveyed to her the north 28 feet from off and across these lots. Miss Gardner erected the dwelling and moved into it and occupied it until 1912 when these plaintiffs purchased it. Miss Gardner, however, sold the premises, in 1904 to her brother-in-law, Elmer E. Stephenson, and when he died in 1909 he left the premises to his wife, Ida Stephenson, who, in turn, conveyed them to plaintiffs. During the occupancy of the premises by Miss Gardner she used a strip 8 or 10-feet wide of her uncle’s land immediately adjoining her premises on the south for the purpose of cultivating flowers. Her house was constructed to within one. foot of her south line. The balance of her uncle’s lots, was unimproved and was open as commons.. Miss Gardner continued to cultivate flowers and vines on the strip' and drove 2x4 posts and strung cords and wires on them to sustain the flowering vines. Later she erected chicken fence along the strip to support the vines. It is the claim of plaintiffs that Miss Gardner erected a fence enclosing the disputed strip and occupied it as her own. When plaintiffs acquired the land they enclosed the strip with a substantial fence. It is the claim of plaintiffs that Miss Gardner’s occupancy of the strip, together with their occupancy, .gives them title thereto by adverse possession. The defendants, who are now the owners of the balance of lots 16 and 17, deny that plaintiffs have acquired any rights therein.

The chancellor appears to have been impressed that while plaintiffs, might have occupied and claimed title to the disputed strip; their predecessors in title, Helen Gardner and the Stephensons, never made any such claims. We think the proofs fully support this view. The testimony makes it reasonably clear to us that Miss Gardner’s lot was narrow. Her house set within one foot of her south line. She asked for and got her uncle’s permission to use the disputed strip south of the house upon which to cultivate flowers and vines. There was considerable testimony introduced by both parties as to the use she made of this strip and the character of the erections, thereon. Some of the witnesses thought the strip used by her ran the entire length of the lot. Others thought it extended only the length of the house. A few thought the. fence or erections were of a permanent nature, but most of them testified that they were temporary affairs. We think it appears to be established by the proofs that whatever the erections were they were placed there by Miss Gardner for the purpose of' assisting in the cultivation of her flowers. Stakes were driven and wires and cords were strung from stake to stake to support the flowers and vines. Later chicken wire or poultry fencing was used, and nearly all of the witnesses connect its use with the cultivation of flowers and not for the purpose of asserting any ownership to the strip so used. Several witnesses', among them some of the relatives of Miss Gardner, and also members of her household, testified that Miss Gardner told them she got permission from her uncle to use the strip in the cultivation of flowers. The testimony fails to show any claim of adverse possession or ownership either upon the part of Miss Gardner or the Stephensons, to whom she conveyed the title. Of course, if there was no such claim by them plaintiffs’ contention must fail as they had not occupied the premises for a period of 15 years.

But if we were to assume that Miss Gardner and her grantees occupied the strip claiming to own it, plaintiffs would still be prevented from claiming title in these proceedings. They purchased only 28 feet. They saw it before purchase. They did not purchase the title to the disputed strip. The defendants have the paper title. Unless plaintiffs’ grantors convey their right to the disputed strip plaintiffs could not tack their adverse possession to theirs, which they would have to do in order to establish their title by adverse possession. This question was before the court in Sheldon v. Railroad Co., 161 Mich. 503, and it was there said:

“It seems to us to be very clear that the complainant cannot rely upon his deed to show privity of estate, because the disputed premises are not mentioned in the deed. Where the grantee relies upon the deed to show privity of estate, he cannot have the benefit of the grantor’s possession of lands which are not mentioned in the deed. 1 Am. & Eng. Enc. Law (2d Ed.), p. 845, and cases cited in note 4. The general rule is that possession cannot be tacked to make out title by prescription where the deed under which the last occupant claims title «does not include the land in dispute. It must clearly appear in the deed that the particular terms were embraced in the deed, or transfer, in whatever form it may have been made. 1 Cyc. p. 1007, and note.”

This rule was applied in that case and later applied in Lake Shore, etc., R. Co. v. Sterling, 189 Mich. 366, and again in Wilhelm, v. Herron, 211 Mich. 339.

Another barrier in the way of plaintiffs’ acquisition of title by adverse possession suggests itself. The undisputed testimony is that Miss Gardner’s occupancy began in favor, that she occupied the disputed strip by consent of her uncle, and if this were so the statute of limitations would not begin to run in her behalf at least before she had notified her uncle, or his grantee, that she was claiming title adversely to him. Standard v. Jewell, 206 Mich. 61, and cases cited.

After examining this record with considerable care we are of the opinion that the conclusions arrived at by the chancellor are well taken, and should dispose of the case.

The decree is affirmed.

Steere, C. J., and Fellows, Stone, Clark, and Sharpe, JJ., concurred with Bird, J.

Moore, J., concurred in the result.

The late Justice Brooke took no part in this decision.


text:
    UTTER v. LEACH.
    1. Principal and Surety — Bond as Insurance Agent — Surety’s Liability Limited to Official Capacity.
    A bond given by a soliciting agent to general agents of an insurance company conditioned upon the faithful performance of his duties and “account for and pay over all sums of money which-he may receive for said general agents or said company, and pay and discharge all his indebtedness to said general agents and said company,” held, to obligate sureties thereon only for moneys received by him in his official capacity and within the scope of his duties as such agent, and not to apply to money advanced to him by plaintiffs for living expenses.
    2. Same — Bond Construed with Contract.
    In construing the language of a bond conditioned upon the performance of a contract, it is proper to look into the contract as an aid in so doing.
    3. Same — General Undertaking — Recitals—Construction.
    In a bond with conditions for the performance of duties, preceded by recitals, where the undertaking is general, it will be construed as restrained and its obligatory force limited within the recitals.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted January 13, 1921.
    (Docket No. 43.)
    Decided March 30, 1921.
    Assumpsit by Archie C. Utter and Albert R. Thomson, copartners, as Utter & Thomson, against Charles W. Leach and another for the amount of a bond. Judgment for defendants on a directed verdict. Plaintiffs bring error.
    Affirmed.

      John J. Gafill (Frederic T. Harward, of counsel), for appellants.

      Race, Haass & Allen (Percy M. Lovett, of counsel), for appellees.
   Bird, J.

In April, 1912, plaintiffs, who were general agents of the New England Mutual Life Insurance Company, entered into a written contract with one Neil I. McArthur, constituting him a special agent for the purpose of soliciting life insurance in certain Michigan territory. The contract provided that to insure the faithfulness of McArthur in carrying out the terms of the contract he should execute a satisfactory bond and deliver it to the plaintiffs. A bond with a penalty of $1,000 was prepared and signed by McArthur as principal and by defendants: as sureties, and delivered to plaintiffs. McArthur soon after entered upon the work. He appears to have been without means and plaintiffs advanced to him, from time to time, certain sums of money to pay his living expenses until his employment should become more productive. .After a time he quit the employment, and when he did so he was indebted to the plaintiffs for such advancements in the sum of $1,400. He was unable to pay the same. Demand was made upon the defendants as sureties on his bond. They refused to respond, so this suit was begun to enforce payment of the penalty of the bond.

The claim was resisted by the sureties on the ground that the demand was not within the terms of their contract of suretyship. They took the .position that their suretyship had reference to McArthur’s faithfulness in the business of his employer, and not to private loans made to him by the plaintiffs. The matter went to a hearing and defendants’ contention was sustained. Plaintiffs are here asking for a review of the proceedings.

The contract obligation which the sureties incurred in signing McArthur’s bond was:

“The condition of this' obligation is such that, whereas, said general agents have appointed Neil I. McArthur, of Detroit, their agent to represent the New England Mutual Life Insurance Company, under said general agents for Michigan; now, therefore, if said Neil I. McArthur shall faithfully perform all his duties as said agent, and account for and pay over all sums of money which he may receive for said general agents or said company, and pay and discharge all his indebtedness to said general agents and said company, then this bond shall be void; otherwise it shall be and remain in full force and virtue.” * * *

The question raised is “Did defendants, by signing this bond, obligate themselves to pay to plaintiffs moneys which they advanced to McArthur for living expenses?” Plaintiffs rely, in support of their contention, upon the following specific language of the bond:

“And pay and discharge all his indebtedness to said general agents and said company.”

We can hardly agree with counsel that this language creates an obligation upon the part of the sureties to pay McArthur’s personal indebtedness to some officer of the company who was obliging enough to advance him living expenses. This language, when considered in connection with the general purpose for which the bond was given, would suggest an obligation to pay moneys which McArthur had received while acting within the scope of his duties as special agent of the company. The bond was required to protect the company in matters in which McArthur should represent it and not to protect personal loans made by officials. The language itself does not support the claims made for it by counsel. McArthur promises to pay and discharge all his indebtedness to said plaintiffs, not as individuals but as general agents. This suggests indebtedness to which the plaintiffs, as general agents, were entitled.

The query might arise under this view why the wording of the bond required McArthur to pay his indebtedness to the general agents as well as to the company. This is quite likely explained by the following language which precedes this requirement:

“And account for and pay over all sums of money which he may receive for said general agents or said company.”

Both names having been inserted here is a probable reason for both being inserted in the language relied on.

Again it is said that section two of the contract supports plaintiffs construction. This section recites McArthur’s duties to the company and among them the following occurs:

“The said party of the second part shall be responsible to the said general agents for all moneys, notes, receipts and policies advanced to or collected by him.”

The words “moneys advanced” are pointed out with the argument that this shows McArthur’s obligation to plaintiffs was within the terms of the bond. We are unable to agree with this reasoning. This, language clearly has reference to McArthur’s official work. It does not refer to moneys advanced to McArthur on personal account or on any account other than as m officer of, the company. But it does refer to moneys, notes, receipts, and policies which might come to his. possession in an official way. Reference to the notes, receipts, and policies certainly has reference to his. official duties. The word “moneys” is classed with, them and should receive the same construction. If we keep in mind, while trying to find the meaning of the language, that McArthur was to occupy a position on trust with the insurance company, and that the idea back of the bond was to protect the company against loss by reason of recreancy to his trust, we have little difficulty in reaching the conclusion that the bond covers only his official connection with the company and not personal loans by the officials.

In construing the language of the bond it was proper to look into the contract as an aid in so doing. 9 C. J. p. 36. It was said in New York Life Ins. Co. v. McDearmon, 133 Mo. App. 671 (114 S. W. 57), a case very similar on the facts to the present one, that:

“The general rule is well settled in controversies arising on the construction of bonds, with conditions for the performance of duties, preceded by recitals, that, where the undertaking is general, it shall be restrained and its obligatory force limited within the recitals. Bell v. Bruen, 1 How. (U. S.) 169; Sanger v. Baumberger, 51 Wis. 592 (8 N. W. 421); National Mechanics' Banking Ass’n v. Conkling, 90 N. Y. 116; Marquette Opera House Building Co. v. Wilson, 109 Mich. 223; Blades v. Dewey, 136 N. C. 176 (48 S. E. 627); Burlington Ins. Co. v. Johnson, 120 Ill. 622 (12 N. E. 205).”

This rule was applied in Marquette Opera House Building Co. v. Wilson, supra, where a similar question was discussed and determined. It is also recognized in White Sewing Machine Co. v. Mullins, 41 Mich. 339. The bond in the present case recited the fact that McArthur had been employed as an agent for the company in Detroit and the inference is very strong that the obligation of the sureties! was to be confined to McArthur’s official relations and deal-lings within the scope of his duties as such agent.

We are satisfied with the conclusion reached by the trial court and his judgment will be affirmed.

Steere, C. J., and Moore, Fellows, Stone and Sharpe, JJ., concurred. Clark, J., did not sit.

The late Justice Brooke took no part in this decision.


text:
    BEEBE v. CULLINANE.
    1. Damages — Breach of Contract — Mitigation—Duty to Diminish Damages.
    In case of a breach, of contract, the injured party must make every reasonable effort within his power to diminish the damages suffered.

      2. Same — Sales—Duty of Seller on Breach of Contract.
    "Where plaintiff sold potatoes to be delivered in the fall, and defendant failed to accept them at that time, it was plaintiff’s duty, in digging and pitting them, to protect them against the winter weather when it became apparent that they would not be shipped that fall, and if he failed to do so he could not recover, in an action for breach of the contract, even if defendant was in fault in failing to accept delivery according to contract.
    3. Trial — Instructions—Evidence—Question for Jury.
    Failure of the trial judge to properly instruct the jury as to plaintiff’s duty in protecting the potatoes from frost, as requested by defendant, which, under the evidence, was a question of fact for the jury, held, reversible error.
    Error to Cass; Des Voignes (L. Burget), J.
    Submitted January 12, 1921.
    (Docket No. 111.)
    Decided March 30, 1921.
    Assumpsit by Albert E. Beebe against Michael M. Cullinane for breach of a contract for the sale of certain potatoes. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. Kinnane and Thomas J. Cavanaugh, for appellant.

      Hendryx & Mosier, for appellee.
   Bird, J.

On July 18, 1917, the parties hereto entered into the following written contract:

“This memorandum of contract made and entered into this 18th day of July, 1917, between A. E. Beebe & Sons, of Mendon, Michigan, copartners, parties of the first part, and Michael M. Cullinane, of the city of Dowagiac, Michigan, party of the second part, witnesseth as follows:
“That the said parties of the first part have sold to said party of the second part and said party of the second part has purchased of said parties of the first part, 4,000 bushels of potatoes of this fall’s crop to he delivered, by said, first parties to said second party in due and seasonable time upon his order and direction in freight cars on the railroad track at Mendon.
“Said potatoes so purchased shall first be run over a regulation grader of 1% screen mesh by said first parties and all potatoes eliminated thereby to be rejected from this purchase.
“Said party of the second part is to pay said parties of the first part for such potatoes so purchased at the rate of 75 cents per bushel.
“Either party to this agreement as preliminary to its execution may require the other to put up a deposit with some competent stakeholder a guaranty fund of $1,000 and upon such demand both parties shall make the deposit and the respective funds so deposited shall be a source for the satisfaction of any judgment for damages by either party for a breach of this contract.
“Witness the hands of the parties in duplicate, the date and year first above written.
“M. M. Cullinane,
“A. E. Beebe & Sons,
Per A. E. B.”

In the month of October, the month in which potatoes are usually harvested, the ground was so wet that plaintiff could not dig the potatoes. The rainfall in that month was about 6.30 inches,.as shown by the proofs. The latter part of the month the weather cleared up and plaintiff finished digging the potatoes on November 6th. He at once notified defendant of the fact and defendant requested him to order some cars at the station at Mendon. Plaintiff complied with this request, but no refrigerator cars were obtainable. Two ordinary freight cars were obtained about the 20th of November and soon thereafter one car was shipped. Later, on December 20th, another car went forward. The weather at this time had become so cold that no further attempt was made to ship the balance of them. This left a balance of 1,700 bushels in plaintiff’s hands. When dug they were placed in piles in the field and later were covered with straw and dirt, but they were not covered sufficiently to prevent them from freezing in the cold weather, and upwards of 1,000 bushels were wholly lost. Plaintiff called upon defendant in the spring to take them. Defendant went and examined them and found them so badly frozen and, decayed that he refused to take any of them. This suit was brought by plaintiff to recover damages by reason of defendant’s failure to accept the potatoes in accordance with the terms of the contract. A trial resulted in a judgment for plaintiff in the sum of $899.40.

Defendant has assigned several errors on the conduct of the trial. We have examined them and are of the opinion that the serious question raised by them was the refusal of the trial court to give the following request suggested by defendant’s counsel:

“Even if the defendant was negligent by reason of which he did not take and ship the potatoes in the fall of 1917, this does not mean that he could be held for damages in this case as it became and was the duty of the plaintiff in digging and pitting the potatoes to properly protect them from frost so that he would be able to tender and deliver to the defendant the kind of potatoes contracted for free from frost, and when he found that winter was approaching it became and was his duty to further cover them so that they would withstand the freezing, and if he failed to do so he cannot recover in this case.”

Upon this phase of the case the trial court instructed the jury that:

“If you find that the contract in question, together with the construction placed upon it by the parties, contemplates and shows that when it was executed it was intended by both parties that the potatoes were to be delivered that fall, then it was not necessary for the plaintiff, upon the digging of the potatoes in question, to put them in pits and cover them so they would not freeze during the winter. Plaintiffs duty, therefore, in such an instance, was to protect the potatoes against ordinary weather of that time of the year and until they shall be delivered in due and seasonable time.”

This was proper as far as it went, but the court should have gone further and instructed the jury that it was the duty of plaintiff to use reasonable care and diligence to protect the potatoes from freezing and damage during the winter, and if he failed to do this the loss would be his own. Of course, in the fall, plaintiff was bound to take such reasonable care to protect them as is usual at that season of the year, but as the days went by and it got into December and defendant did not take them and it became apparent to plaintiff that defendant could not ship them in the ordinary box cars without great hazard, it was plaintiff’s added duty to still further protect the potatoes against damage and frost, and if he failed in that duty he must bear the loss himself. A statement of the general rule is that:

# “It is a fundamental rule that one who is injured in his person or property by the wrongful or negligent acts of another, whether as the result of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize the resulting damage, and that to the extent that his damages are the result of his active and unreasonable enhancement thereof, or are due to his failure to exercise such reasonable care and diligence, he cannot recover.” 8 R. C. L. p. 422, and cases.
“It is a well-established rule of law that in case of a breach, of contract the injured party must make every reasonable effort within his power to diminish the damages suffered.” Sauer v. Construction Co., 179 Mich. 629.
“The doctrine is well settled that, when' there has been a breach of contract the injured party must do all in his power to diminish the damages suffered, or which he may suffer. If he has an opportunity to protect himself from loss and does not do so, he cannot be heard therefor to complain. 13 Cyc. p. 72; Chandler v. Allison, 10 Mich. 460; Hopkins v. Sanford, 41 Mich. 243; Dennis v. Huyck, 48 Mich. 620 (42 Am. Rep. 479); Talley v. Courter, 93 Mich. 473; Tradesman Co. v. Manufacturing Co., 147 Mich. 702.” Harrington-Wiard Co. v. Manufacturing Co., 166 Mich. 290.

The failure of the court to recognize that it was the duty of plaintiff to protect the potatoes against winter, as well as against fall weather, if defendant were to be charged with damages, and his failure to so instruct the jury, affected the vital- part of the case. If the jury had been instructed to this effect, and further that this rule would obtain whether defendant was in fault or not in failing to accept delivery of the potatoes in the fall, the result might have been different. The question was one for the jury. It was for them to determine whether plaintiff used reasonable care and diligence to protect the potatoes against the frost of winter. If he did he would be entitled to recover if they further found that defendant was in fault in not accepting them when tendered. If plaintiff did not use the care required by the rule then he must suffer the loss himself.

So far as the other issues were concerned they appear to have been fairly tried and without error except as they may have been affected by the question we have discussed.

For the error indicated the judgment must be reversed and a new trial ordered. Defendant will recover his costs of this court.

Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    PEOPLE v. WASSMUS.
    1. Lotteries — Discounting Contract — “Chance”—Criminal Law —Statutes.
    The sale of tailor-made suits on the weekly payment plan, the seller reserving the right to discount one contract each week regardless of the amount paid on the contract, is a lottery within the meaning of 3 Comp. Laws 1915, § 15050; the possibility of the purchaser getting a suit before paying the contract price constituting the -element of chance, and the fact that the selection is made by the seller is immaterial.
    2. Same — Information—Evidence—'Variance—Directed Verdict.
    Where, under an information charging the offense of promoting a lottery; to have been committed “to wit, on the 2d day of February in A. D. 1920, and on divers other days and dates between the 2d day of February; A. D. 1920, and the 4th day of March, 1920,” it did not clearly appear that any of .the contracts were made between the dates named, but it did appear that defendant made collections between those dates on contracts previously made; that defendant on examination before the magistrate was fully informed as to what facts the prosecution relied upon, and there is no claim of surprise or prejudice, it was not error to refuse a directed verdict for defendant on the ground of variance; time not being an ingredient of the offense charged.
    3. Criminal Law — Trial—Instructions—Harmless Error.
    In a prosecution for promoting a lottery, an instruction that “of course, you have the right to consider that he is the defendant charged with the offense, and that he is likely to give such testimony as will most likely result in his acquittal,” read in connection with all of the instruction on that phase of the case, held, not reversible error, although it would have been better omitted; it being simply a frank statement of the obvious human side of the situation, known to every juror as well before the instruction was given as afterwards.
    Error to recorder’s court of Detroit; Keidan (Harry B.), J.
    Submitted January 13, 1921.
    (Docket No. 120.)
    Decided March 30, 1921.
    Louis C. Wassmus was convicted of promoting a lottery, and sentenced to imprisonment for 4 months in the Detroit house of correction.
    Affirmed.

      Moloney & Lajoie, for appellant.

      Merlin Wiley, Attorney General, Paul W. Voorhies, Prosecuting Attorney, and John V. Brennan, Assistant Prosecuting Attorney, for the people.
   Bird, J.

Defendant was informed against and convicted of having promoted a lottery contrary to the provisions of section 15050, 3 Comp. Laws 1915. The proceedings of the trial court are here for review upon writ of error. The record discloses that defendant was the owner of and operating the Bradley Tailoring Company in the city of Detroit. He sold tailor-made suits for $48, payable $1 a week. The person to whom a sale was made was given a number and a card upon which was receipted the weekly payments. Each week a suit was discounted or given to one of the customers. The particular customer chosen, was then entitled to the suit regardless of the amount which he may have paid. The following advertising matter and contract will give an idea as to how the business was conducted:

“Advertising Plan.
“In order to advertise our business on a broader principle and continually increase our sales, we will discount a $48 suit each week, regardless of the amount paid.
“The company reserves the right to discount the above price of one suit every week to any extent it may see fit, as per advertising plan. The contracts receiving a discount will be selected by the management. The above is not intended as an inducement for the original purchase, but is our method of advertising.
“It is expected that a customer receiving one of our advertising garments will use his influence in securing new accounts, and allow us to use their names as having received one of our garments.
“Bradley Tailoring Co.
“Makers of High Grade Tailored to measure Garments At $48.00 and up.”
“Contract.
“In consideration of 48 payments of One Dollar in advance each week, the Bradley Tailoring Co., agrees to sell to the holder of this contract, a firstclass made-to-measure suit to the value of $48.
“No orders will be accepted on clothing for less than $48, and no money will be returned on discontinued or lapsed contracts. However, we will re-instate your contract on' receipt of delinquent payments, or apply the amount paid in to any $48 garment at any time.
“Agents are expressly prohibited from making any agreements contrary to the terms herein specified.
“You do not have to wait 48 weeks before ordering your garment.
“You may order same at any time, and apply all payments credited on this contract.”

Counsel requested the court to charge the jury that this method of doing business was not in violation of the following statute:

“Every person who shall set up or promote, within this State, any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels or merchandise or valuable thing, by way of lottery or gift enterprise, and every person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing or drawing of any such lottery or gift enterprise, or who shall! in any house, shop or building owned or occupied by him or under his control, knowingly permit the setting up, managing or drawing of any such lottery or gift enterprise, * * * shall for every such offense be punished by a fine not exceeding two thousand dollars, or by imprisonment in the county jail not-more than one year.” 3 Comp. Laws 1915, § 15050.

The refusal of the court to comply with the request furnishes one of the important questions in the case..

1. It is said that the essentials of a lottery are r First, consideration; second, prize; third, chance. (17 R. C. L. p. 1222.) There need be no question! under this scheme about the element of consideration, or prize, but it is contended that there is no element of chance in the transaction, that one buys a suit for $43 and gets it, and beside he may get his suit discounted before he makes 48 payments. Herein lies the element of chance. By purchasing a suit for $48 one gets the chance of acquiring it before he pays for it, or before he pays the $48. This chance is. the seductive thing about the scheme and it is this which attracts the investor. But it may be said that there is no element, of chance because there is no drawing, that the management itself selects the beneficiary; but this fact does not purge the transaction of all element of chance. To the purchaser it is uncertain, as to him it is chance. As was said in a similar case;

“The same contention was made there (State v. Clarke, 33 N. H. 329) as in this case, that the choice of persons to receive the furniture was not by lot or chance, but by the judgment of the company which proposed to sell; but the court rejected it, and thus showed its fallacy: ‘With the purchaser, what prize he might obtain was a mere matter of lot and chance. The scheme involved substantially the same sort of gambling upon chances as in any other kind of lottery. It appealed to the same disposition for engaging in hazards and chances with the hope that luck and good fortune may give a great return for a small outlay, and is, we think, within the general meaning of the word “lottery,” and clearly within the mischief against which the statute is aimed.' Randle v. State, 42 Tex. 580.” State v. Lipkin, 169 N. C. 265 (84 S. E. 340, L. R. A. 1915F, 1018, Ann. Cas. 1917D, 137).

We are unable to distinguish the case under consideration in principle from People v. McPhee, 139 Mich. 687. In that case a club was formed and weekly payments made for men’s clothing. It differed in this, however, that the members of the club determined by some method of chance the particular member who was entitled to the weekly suit. This difference, as is pointed out above, is not controlling if there is some element of chance in it. A case which is still more similar on the facts is the case of State v. Lipkin, supra. This is an instructive case and reviews the authorities at length. We are of the opinion that the recorder was correct in holding that the transaction came within the inhibition of the statute.

2. It is next asserted that defendant should have had a directed verdict because the offense was not proven as alleged. The time alleged in the information was, “to-wit, on the 2d day of February in A. D. 1920, and on divers other days and dates between the 2d day of February, A. D. 1920, and the 4th day of March, 1920.” It did not clearly appear that any of the contracts were made between those dates, but it did appear that defendant made collections between those dates on contracts which had been previously made. The contracts in evidence bore the dates of October and November, 1919. Defendant testified in his own behalf and described his method of doing business and the taking of contracts during the year preceding the 1st day of January, 1920. There was also some proof that one contract was made on February 19, 1920. Defendant had an examination before the justice and was fully informed as to what the prosecution relied upon. It is not claimed that any surprise or prejudice resulted from the variance, if there were one. Time was. not an ingredient of the offense and, therefore, was not very important. No error resulted in refusing to direct a verdict on this ground.

3. Exception is taken because the trial court instructed the jury as follows concerning defendant:

“Of course, you have the right to consider that he is the defendant charged with this offense and that he is likely to give such testimony as will most likely result in his acquittal.”

This should be read in connection with all of the instruction on that phase of the case. The trial court said to the jury that a defendant in a criminal case is not obliged to take the stand in his own behalf and the fact that he fails to take the stand cannot be used against him by the court, jurors or counsel. Then proceeding, he said:

“Having taken the stand, you men should weigh his testimony carefully and give it such weight as you think it deserves. Of course, you have the right to consider that he is the defendant charged with this offense and that he is likely to give such testimony as will most likely result in his acquittals because he has an interest in the outcome of this case; but, notwithstanding that, you should weigh his testimony carefully, just as. you should weigh the testimony of all witnesses in every case carefully, with an endeavor to arrive at what the true facts áre: Because, after all, gentlemen of the jury, you men must find the facts that have been proven by the evidence. * ' * * It is for you to say which of the witnesses you believe and which you disbelieve, and, having ,seen the witnesses on the stand, including the defendant at the bar, it is for you to say whether or not the State has proved his. guilt beyond all reasonable doubt.”

It, perhaps, would have been better if the court had omitted the particular language complained of, but we are unable to persuade ourselves that defendant’s interests were in any wise prejudiced by the statement. The statement was true, and every juror knew it, as well before the instruction was given as he did afterwards. It was simply a frank statement of the obvious human side of the situation. If it can be said to be error at all it was not such error as should reverse the case.

We have examined the remaining assignments but find no error in them. It will be unnecessary to consider them further.

The judgment of conviction will be affirmed.

Steere, C. J., and Moore, Fellows, Stone, Clarke, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this' decision.


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    NOLAN v. NOLAN.
    1. Divorce — Wife's Extreme Cruelty — Evidence—Sufficiency.
    In a suit for divorce by the husband on the ground of extreme cruelty, evidence examined, and held, insufficient to sustain the allegations of the bill,
    2. Same — Cross-Bill—Husband’s Extreme Cruelty — Evidence -Sufficiency.
    On defendant’s cross-bill charging plaintiff with extreme Cruelty and with conspiring with his brothers and sisters to defraud her out of her alimony rights, evidence held, sufficient to entitle defendant to a decree.
    3. Same — Alimony—Sufficiency.
    Where plaintiff, prior to his property settlement with his brothers and sister, had title to property valued at from $40,000 to $45,000, the decree of the court below awarding defendant $2,000 as permanent alimony, and $300 for attorney’s fee, will be' modified to $2,500 and $500 respectively, the same to be a lien upon the homestead to take priority to the mortgage thereon given by plaintiff to his brothers and sister at the time of his settlement with them.
    Appeal from Kent; Perkins (Willis B.) J.
    Submitted January 4, 1921.
    (Docket No. 1.)
    Decided March 30, 1921.
    Bill by John Nolan against Rosetta Nolan for a divorce. Defendant filed a cross-bill alleging a conspiracy between plaintiff, Thomas Nolan, and others. Prom a decree for plaintiff, defendant appeals.
    Modified.

      Edward N. Barnard, for plaintiff.

      Charles G. Turner and John J. McKenna, for defendant.
   Bird, J.

John. Nolan, the plaintiff, and Rosetta Nolan, one of the parties defendant, were married in February, 1917. They resided at Walker station, a suburb of Grand Rapids. At the time of the marriage John Nolan was a bachelor, 62 years of age- Rosetta was a widow, 54 years of age. The parties lived together until March, 1918, when John went elsewhere and left Rosetta in possession of the homestead. The claim made by John in his bill of complaint is that defendant was guilty of extreme cruelty toward him, and that he was unable to live with her. Defendant Rosetta denies the extreme cruelty charge in the bill and sets up affirmative matter charging plaintiff with extreme cruelty, and also charging that he was in a conspiracy with his two brothers and sister to defraud her out of her alimony rights. As a result of these latter charges plaintiff’s brothers, William and Thomas, and his sister, Mary Harmon, were brought into the case. They answered and the matters went to a hearing. After a somewhat protracted, hearing the chancellor was of the opinion that plaintiff’s charges of extreme cruelty had been sustained and a divorce was accordingly granted to him, with alimony of $2,000 to defendant; also the furniture which had been purchased by them. Defendant’s cross-bill was dismissed. Defendant was dissatisfied with this result and has the case here on appeal for review.

1. The principal items of extreme cruelty relied upon by plaintiff were:

(а) That defendant attempted to poison him and refused to care for him in sickness.

(b) That defendant nagged him for a conveyance of some of his property or for a joint deed thereof.

(c) That defendant was a nagger and was profane, vulgar and abusive.

(d) That she insisted upon quarreling with his relatives and attempted to alienate him from them.

When the parties were married plaintiff was engaged in the business of farming. He had been a farmer all his life on the farm upon which he then lived. After the parents died the plaintiff and his brothers and sister continued to live on the old farm, and as the years went by they added a considerable acreage thereto. The title to all the property was in plaintiff. When plaintiff was married his sister with her three children moved a short distance away. It naturally made some ill feeling in the family to have their living relations interfered with and a new person brought into the family. There was some proof of ill feeling, but nothing of a serious nature took place, although it was shown that latterly Mrs. Harmon, the sister, did not speak to defendant. The record is somewhat voluminous but after going over it carefully I am not impressed that any of these complaints are sustained. The principal testimony given In support of them came from plaintiff, but his testimony was weak and contradictory and at times appeared to be given in a reckless spirit and most of all it lacks corroboration. If all the misdeeds of defendant testified to by plaintiff are to be accepted as true I seriously doubt whether it could be said that his allegations are sustained. A reading of the entire testimony gives one the impression that plaintiff’s brothers and sister were very much disturbed over plaintiff’s marriage, that they did not like defendant for this reason, and that plaintiff under this influence grew tired of defendant and of the new mode of living, and made up his mind to get rid of defendant and restore the status quo.

2. We agree with the conclusion reached by the chancellor that the parties should be legally separated, but we are of the opinion that defendant should be given the decree on her cross-bill. Along early in the fall of 1918, plaintiff evidently made up his mind to get rid of defendant if, he could. From that time on his conduct toward her changed and he began to be disrespectful to her and criticize her. Along the forepart of October his brothers and sister commenced separate suits against him for services. It appeared to be their claims that they were entitled to three-fourths of the property, which was valued at between $40,000 and $45,000, but instead of attempting to get: a three-fourths interest they sued for the value of their services, making claims which would equal: about three-fourths of its value. Plaintiff made no mention of these suits to defendant until the evening before they were to be tried, on January 11th. Then he invited defendant to go down to Grand Rapids with him to the trial on the following day. While there the suits were amicably settled by plaintiff conveying to them three-fourths of the estate, or just what they claimed. Plaintiff retained the homestead and as this was regarded as worth more than one-fourth of the estate he gave them a mortgage thereon for $2,000. After these matters were arranged plaintiff commenced to nag defendant about settling with her, and repeatedly raised the question with her and desired to know whether she would settle for $2,000. She advised him she would not, that she was not asking for any money. From this time on plaintiff’s conduct became more insolent. He urged- defendant to get a divorce from him and sought in many ways to make life a burden for her. He discovered that defendant took some pleasure in talking over the telephone to her friends in Grand Rapids, and he had the telephone taken out. When he refused to have it reinstated, defendant arranged with the Bell telephone people to install one, but, when a man came to do so, plaintiff would not permit it. Plaintiff charged defendant with ¡attempting to poison him, when, so far as the proof shows, there was nothing to it. This, however, became a matter of neighborhood gossip and greatly chagrined and embarrassed the defendant. He charged, her with attempting to choke him at night while they were in bed, but the proof does not show that there was anything to this. Finally he refused to room with defendant and refused to cohabit with her and afterwards deserted her. The record shows she bore the taunts and repeated insults of plaintiff and endeavored to get along and live peaceably with him, but in this respect She was not successful. Plaintiff’s conduct, especially after getting his property matters arranged, was that of a man who was attempting, by his insolent and abusive conduct, to drive his wife to desperation and divorce. We think the decree should be granted to her.

3. It is not our intention to discuss to any considerable length the question of the conspiracy charged against plaintiff and Ins brothers and sister, or to disturb the conclusion which was reached by the chancellor in that regard, except in one particular which will be referred to later. Our views on the amount of alimony that defendant should have render a discussion of that question unnecessary. We might say, generally, that we are convinced the settlement and conveyances were not made in good faith. It is true the testimony shows that Thomas and William assisted plaintiff more or less on the farm and that Mary did the work in the house,, but the record also shows that they were compensated in part as they went along for so doing. We are not prepared- to say they were not entitled to some equitable interest in the property but we feel quite certain that they received more than they were entitled to, and that they would not have received so large a share had it not been for the prospective divorce proceedings, and that a settlement would not have been made when it was had it not been for an attempt upon their part to embarrass defendant in obtaining her alimony rights when the question of divorce should arise. We think defendant, Rosetta Nolan, should have a decree of divorce on the ground of extreme cruelty. That the allowance to her by the chancellor should be increased from $2,000 to $2,500, and that her attorney fees should be increased from $300 to $500, and that these sums should be made a lien upon the homestead where defendant is now living until the same are paid. We are further of the opinion that this lien should be made prior to the lien of the mortgage which John gave them at the time their settlement «was made. Aside from this the decree may stand as made by the chancellor. Defendant will recover costs' of this court.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred.