text:
    Edward Erickson v. The Duluth, South Shore & Atlantic Railway Company, Garnishee.

      Garnishment — Release of garnishee — Judgment—Procedure.
    1. Under How. Stat. § 8041, which provides that the recovery of judgment by the principal defendant in a suit in justice’s court shall be deemed a discontinuance of all proceedings against the garnishee defendant, the garnishee defendant is not released from liability, where the plaintiff appeals from said judgment, until the final determination of said appeal in favor of the appellee.
    2. Nor will the garnishee defendant be entitled, under section 28 of Act No. 178, Laws of 1891, which provides that, in all eases where the defendant prevails or takes an appeal in the principal suit, the court shall make an order releasing the moneys garnished, to said order on the recovery of judgment by the principal defendant, when the plaintiff appeals from said judgment, until the final determination of said appeal against the appellant.
    3. An appeal by the plaintiff from a judgment in justice’s court in favor of the principal defendant will not bring up with it garnishment proceedings pending before the justice, in which the garnishee has disclosed a money liability to the principal defendant, so as to enable the circuit court, on. rendering judgment in favor of the plaintiff, to also render judgment against the garnishee defendant.
    4. The statute contemplates in such a ease that the action in justice’s court against the garnishee shall remain in abey- • anee pending said appeal; and the proper practice is for the justice, after the rendition of final judgment against the principal defendant, to issue a. summons to show cause against the garnishee defendant, whereupon issue can be joined, and proof of the circuit court judgment furnishes the foundation for a judgment against the garnishee.
    Error to Baraga. (Haire, J., presiding.)
    Argued May 3, 1895.
    Decided May 21, 1895.
    Garnishment proceedings. Defendant brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinion.

      A. E. Miller, for appellant.

      John R. Rood, for plaintiff.
   Hooker, J.

The plaintiff brought an action in justice’s court against the principal defendant, and by garnishee summons against the railway company. Disclosure was made, but subsequently the defendant in the original action obtained a judgment against the plaintiff, and the justice issued a release, discharging the garnishee from liability. Plaintiff seasonably appealed from the judgment against him in the principal action, giving the garnishee notice thereof, and subsequently recovered a judgment against the principal defendant of $41.89 and costs. Immediately thereafter the circuit court, upon motion of the plaintiff’s attorney, rendered judgment against the garnishee for f.39.65. There was no appearance in the circuit court by the garnishee, and it has brought the case to this Court, claiming that the circuit court never acquired jurisdiction of the garnishee. This is placed on two grounds:

1. That by the terms of the statute the judgment for the defendant in justice’s court terminated the liability of the garnishee. .
2. That, if it did not, the plaintiff should have proceeded against the garnishee in the justice’s court after obtaining a judgment in the circuit.

These propositions depend upon a construction of the statute. Previous to 1891 the statute providing for proceedings against garnishees in justices’ courts (chapter 276, How. Stat.) allowed the garnishee to be brought in by summons, and examined; and if, at the close of such examination, an action was pending and undetermined between the plaintiff and the principal defendant, the garnishee proceedings might be adjourned. Section 8037. Section 8041 provided that, in case the plaintiff failed to recover a judgment against the defendant, it should be deemed a discontinuance of all proceedings against the garnishee. These statutes are still in force, and it is contended that the meaning of the latter is that, if the plaintiff should fail to obtain a judgment before the justice, the garnishee would be discharged.

This statute must be construed in connection with the rest of the chapter and other laws applicable to proceedings in justices’ courts. The general provision relating to appeals from justices’ courts applies to the principal action, and under it the plaintiff might still recover a judgment. Again, under How. Stat. §§ 6850, 6855, proceedings by garnishee attachment may be instituted, and, when personal service cannot be obtained, and no property is found subject to attachment, the jurisdiction may rest upon the garnishment. These statutes, in connection with the chapter under discussion, regulate the procedure. If the position taken in behalf of the defendant in this case is correct, the plaintiff might be said to lose the right to appeal from the adverse decision, because there would be nothing left to support the jurisdiction. This may not be conclusive of the question, but-it indicates an incongruity in the law. The disclosure showing-property in the hands of the garnishee settled the jurisdiction of the court, the same as in case property had been attached. In the latter case the right and benefit of an appeal by the plaintiff would exist; in the former, the benefit, to say the least, if not the right, would be lost by the adverse judgment.

But to return to chapter 276. While section 8041 treats plaintiff’s failure to recover “judgment against the defendant” as a discontinuance, section 8088 provides that, after the “final determination of the suit against the defendant,” proceedings may be taken before the justice to obtain a judgment against the garnishee. This is consistent with the claim of plaintiff that the garnishee is not released by a judgment in favor of defendant unless it is final. Section 8040 also contains the expression “final determination,” and prescribes the pleading and procedure against the garnishee “after a final determination of the suit pending against the defendant.” It would require an unusually strict construction of section 8041, and the exclusion of the other sections, to hold that the garnishee would be released by a judgment in justice’s court in the defendant’s favor, when the plaintiff had appealed. Such construction would be at variance with the rule in attachment cases, it having been held that a judgment against a plaintiff, appealed from, does not dissolve the attachment, but the lien of the writ continues until the final disposition of the case against him. Treat v. Dunham, 74 Mich. 114; Vanderhoof v. Prendergast, 94 Id. 19. By analogy the same would be true in garnishment cases, unless the statute upon which the right depends indicates the contrary. The garnishee, under this chapter, would be discharged when the action was finally determined against the plaintiff, but he is chargeable with knowledge of the law which gives the right of appeal, and that, if the appeal is taken, he is not released until final judgment. The supreme court of Iowa has held that a judgment of nonsuit dissolves an attachment, and that it will not be revived by the vacating of the judgment. Brown v. Harris, 2 G. Greene, 505; Harrow v, Lyon, 3 Id. 159. See, also, Clap v. Bell, 4 Mass. 99; Suydam v. Huggeford, 23 Pick. 465. But the latter case recognizes the rule that the attachment is not dissolved where the plaintiff appeals. See, also, Sherrod v. Davis, 17 Ala. 312; Danforth v. Rupert, 11 Iowa, 551. Such has already been shown to be the rule here. In Dolby v. Tingley, 9 Neb. 416, the court said:

“Where no steps are taken to dissolve the attachment, the garnishee is bound from the time of service until final judgment.” Chase v. Foster, 9 Iowa, 429; Kennedy v. Tiernay, 14 R. I. 530; Puff v. Hucher, 78 Ky. 148.

It is true that these decisions all depend upon the statutes of their respective states, but they show the trend of the authorities when the statutes are open to the construction that the garnishee is bound until final judgment.

We have next to inquire concerning the effect of the new section added in 1891 (Act No. 178, Laws of 1891, § 28), and the justice’s order under it. This section provides :

“In all cases where the defendant prevails or takes an appeal in the principal suit, the court shall make an order releasing said moneys so garnisheed. Said order shall be directed to the garnishee defendant, and shall be delivered to the principal defendant upon request of the defendant. Said order shall recite the reason for releasing said garnishee defendant, and said garnishee defendant shall then and there be released from all liability.”

It must be read with those already discussed, for the latter are not repealed. Unless we are to adhere to the defendant’s construction, viz., that this section means that the justice shall discharge the garnishee in cases where the defendant prevails before the justice in the principal suit, this section is not inconsistent with the sections already discussed, and the construction herein-before placed upon them. If it' is to be so construed, it is inconsistent with them. It is also noticeable that this section does not provide that the justice, but that the court, shall make the order of discharge, thus putting it into the power of whatever court shall render the final judgment to make this order. It seem to be intended that this order shall be made upon application of the principal defendant, and for his benefit, and apparently was designed to facilitate the collection of his claim from the garnishee, after the garnishee’s liability to the plaintiff should have ceased. We are therefore of the opinion that the adverse judgment did not release the garnishee from the plaintiff’s claim.

Authorities will be found which indicate that the plaintiff should have appealed from the order discharging the garnishee, and that, not having done so, he cannot now question it. Such a case is Brown v. Tuppeny, 24 Kan. 29. See, also, 8 Amer. & Eng. Enc. Law, 1258. Under the statutes cited, the justice had’ no authority to do more in the garnishee case than to take and file the disclosure, and adjourn the proceeding until judgment should be rendered; and we have already said that this means final judgment. The appeal removed the principal case from his jurisdiction, and thereafter only the circuit court had authority to make the order of discharge. The order made by the justice was made before the appeal was taken, and was premature. He had no authority to make it. He should have waited the statutory period within which the plaintiff might appeal. His order was therefore void, and it was not necessary for the plaintiff to appeal from it. The case of Kennedy v. Tiernay, 14 R. I. 530, involves this question. The court said:

“The court is not called upon to pass upon the liability of the garnishee until the plaintiff has established his claim, and obtained a judgment against the defendant. If the plaintiff fails in the suit against the defendant, the question of the garnishee’s liability does not arise.”

In this case the court held that the appeal brought up the garnishee proceedings as incident to the principal suit.

This brings us to the remaining question in the case, riz., whether the garnishee proceeding was brought to tbe circuit by tbe appeal of the principal suit, so that the circuit court might enter a judgment against the garnishee. The authorities are not harmonious upon this subject. Some cases — like the Rhode Island case cited;— hold this doctrine. Counsel for the plaintiff cites several cases to the proposition that the garnishee proceeding is ancillary to the principal case, and must, of necessity, follow it when it is appealed. But we think this must depend upon the statute, and that our statute clearly shows a contrary intention on the part of the Legislature. A reference to the statutes shows a difference in procedure between cases begun in justices’ courts and those commenced in the circuit. Section 8035 of the justice act provides that—

“The service of the summons upon such garnishee shall be deemed the commencement of suit.”

Section 8038 provides for a summons against the garnishee to show cause, to be issued by the justice within 30 days after the “final cleterinination of the [principal] suit” against the defendant. Section 8040, as already stated, prescribes the pleadings and trial of an issue and for an appeal. On the other hand, there is nothing which points out a procedure in such cases at the circuit. In this case the garnishee defendant was not brought in. by-summons, citation, or otherwise, but upon eos parte motion a final judgment was rendered against it. The amount was small, and ordinarily would be within the exclusive jurisdiction of a justice of the peace, and under section 8043 the judgment might be stayed, if rendered in justice’s court. In our opinion, the statute contemplates 'that the action in justice’s court against the garnishee should remain in abeyance pending the appeal in the principal case. After judgment the justice might issue his summons to show cause, the issue could then be joined, and proof of the circuit court judgment, when introduced, would furnish the foundation for a judgment against the garnishee. Inasmuch as this practice was not followed, we have no alternative but to reverse tbe judgment. No new trial will be necessary, as the circuit court has no jurisdiction of the proceeding.

The other Justices concurred.

       The answer of the garnishee disclosed a liability to the amount of $39.65.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Daniel J. Campau v. Louis Charbeneau, Drain Commissioner, etc.

      Drains — Non-Resident owner — Substituted service.

    1. Tlie statute authorizing substituted service of process or notice must be strictly complied with in order to confer jurisdiction upon the court or officer authorized to act thereunder; citing Colton v. Rupert, 60 Mich. 325; Hannah & Lay Mercantile Co. v. Mosser, ante, 18.
    2. Under section 7 of chapter 3 of the drain law of 1885, which, as amended by Act No. 203, Laws of 1893, provides that the citation issued by the probate court on the application of a drain commissioner for the appointment of special commissioners to determine the necessity for a proposed drain, etc., to the persons whose lands are traversed by such drain, or who will be liable to assessment for benefits in the construction thereof, and who have not released right of way and all damages on account thereof, shall recite so much of the premises as will show jurisdiction, and in the case of non-resident owners, or owners not residing upon the lands affected, shall be addressed to the owner or owners of the several descriptions of land involved, the publication by said drain commissioner of a citation not so addressed will not give jurisdiction as against an owner of a parcel of land so involved, who is a non-resident of the county in which the drain is to be constructed, it appearing that said non-resident owner was the only party whose land was to be taken by said condemnation proceeding, all others having released the right of way; that his name and residence were well known to the drain commissioner, and appeared in the application to the probate court; and that said drain commissioner neglected to serve said citation upon said non-resident owner personally.

      Certiorari.

    Argued May 3, 1895.
    Proceedings quashed May 21, 1895.
    Petitioner brings certiorari to review proceedings to clean out and extend a drain. The facts are stated in the opinion.

      Edwin F. Conely and Orla B. Taylor, for petitioner.

      B. B. Ershine, for respondent.
   Long, J.

This proceeding by certiorari is brought to review the action of the respondent drain commissioner in the matter of cleaning out and extending a drain under the provisions of Act No. 227, Laws of 1885, as amended. The commissioner made an order of determination, and certain parties interested released the right of way. The petitioner here refused to release, and application was made to the probate court of Macomb county for the appointment of commissioners. Petitioner, who resides in the city of Detroit, had no notice of these proceedings. Respondent published a notice as the statute requires, but the notice was not addressed to the petitioner. Proof of publication of the notice was made, and the commissioners were appointed, and made their report. The drain commissioner made his final order of determination, and the petitioner here, having ascertained that such proceedings were had, brought the case into this Court.

The statute requires that—

“The citation [or notice] shall recite so much of the premises as will show jurisdiction, and, in the case of resident owners who reside upon the premises affected by said drain, shall be addressed to such owners by name; in the case of non-resident owners, or owners not residing upon the lands affected, it shall be addressed to the owner or owners of the several descriptions of land involved.”

The principle is well settled in this State that the statute authorizing substituted service of process or notice must be strictly complied with in order to confer jurisdiction upon the court or officer authorized to act thereunder. Colton v. Rupert, 60 Mich. 325; Hannah & Lay Mercantile Co. v. Mosser, ante, 18. It appears that the petitioner was the only party whose land was to be taken by this condemnation proceeding. All others had released the right of way. His name and residence, it appears, were well known to the commissioner, and appeared in the application to the probate court. The commissioner had the right; under section 7 of the act of 1893, above cited, to serve personal notice upon him, and then could proceed without publication of notice. He neglected this, and proceeded by this substituted form of service; and even from this it appears that the name of Mr. Campau was left out.

Some other questions are raised, but, as we are satisfied that the drain commissioner never had jurisdiction, so far as the petitioner here is concerned, to proceed with the appointment of commissioners, or to make the final order, we need not discuss them.

The proceedings must be quashed.

The other Justices concurred.

       Act No. 203, Laws of 1893, § 7. (This section was again amended, by Act No. 217, Laws of 1895.)

       The citation was not addressed to petitioner either by name, or as owner of the property involved.


text:
    William Hake v. William Coach.

      Appealable order — Partnership accounting.

    1. A decree, in order to be appealable, need not have disposed of all of the merits; citing Lewis v. Campau, 14 Mich. 458, 460; Barry v. Briggs, 22 Id. 201, 204.
    2. A decree in a partnership accounting suit which fixes the time at which the accounting is to commence, the period which it is to cover, the respective rights of the parties with regard to the buisness of the partnership, and with regard to the business which is claimed by the defendant to have been no part of the partnership, said contention being decided adversely to the defendant, and which directs the commissioner, after fixing the standing and rights of the parties in the various matters in dispute, to state an account upon said order as a basis, is appealable.
    Bill for a partnership accounting. Defendant appealed from an order referring-the case to a special commissioner to state the account.
    Complainant moves to dismiss the appeal.
    Argued May 7, 1895.
    Denied May 21, 1895.
    The facts are stated in the opinion. .

      D. E. GorJMt, for motion.

      Chadboume & Rees, contra.

   Long, J.

Motion is made in this Court to dismiss the appeal of the defendant from an order or decree of the court below. The complainant contends that the order or decree is not appealable.

The decree made below is as follows:

“1. That the said parties entered into a copartnership in the year 1885, for the purpose of carrying on a lumbering business in the Upper Peninsula in the State of Michigan in lumbering certain lands then owned by the parties in common.
“2. That, by the terms of said partnership, the complainant was to furnish money to carry on said business, and the defendant was to take charge of the active operations, but without other compensations than having his actual living expenses and such expenses as were made necessary by the business paid by the firm. .
“3. That the active operations of said firm commenced in the month of September, 1885. The defendant reported his doings to the complainant from time to time, at intervals of about three months, until the month of July, 1888, at which time the parties had a settlement between themselves, and settled all the partnership dealings, and whatever money had been advanced by the complainant more than by the defendant was repaid him by the conveyance of an interest in certain lands which the defendant owned in the state of Louisiana, by which conveyance the complainant was overpaid, so that, for the purpose of evening the account, the complainant paid the sum of $505 to the firm.
“4. At the time of the said settlement, the liabilities of the said firm were substantially paid, and they had on hand an account due from Joseph Gregory of $27,330. They had in the bank, at Hancock $4,068.92, and cash in the hands of the complainant $1,987.75, consisting of $1,252.75 on deposit with him, and $735 collected by hint at about that time. They also had logs at Funke’s mil!, which they estimated at about $16,000, and their camp equipage, which they estimated at about $7,000. Each of said parties owned one-half of said accounts, money, and property.
“5. The said parties then agreed to continue the lumbering business. The defendant returned to the Upper Peninsula, and took possession of all the property, accounts, and money belonging to the said firm as aforesaid; and, in the month of September following, he made a contract for several tracts of timber and, in the course of the next three years, he made contracts for large amounts of timber for which he paid large sums of money; but all of said contracts were taken in the individual name of the defendant. That substantially all of the business of said firm after the commencement of the business, in September, 1885, was transacted in the name of the defendant. The defendant made no detailed report of his doings to the complainant after their settlement in 1888, until after the commencement of this suit.
“6. It is now claimed by the defendant that several of the contracts that he made for the purchase of timber, and on which he made large profits, to the amount of $40,000, as claimed by the complainant, and to the amount of $30,000 and upwards, as conceded by the defendant, were his individual transactions, in which the complainant had no interest, and in which profits the complainant, claims that he is entitled to share.
“7. It is further ordered, adjudged, and decreed in relation to the matters mentioned in the preceding paragraph that the following transactions claimed by the defendant to have been his individual transactions, constituting the matters referred to in said paragraph 6, were matters in which the said complainant is entitled to share, namely: “a — The transaction mentioned in the pleadings, and known in this case as ‘Section 31.’
“6 — The transaction known as the ‘Robinson Deal.’
“e — Purchase made August 31,1892, of land afterwards. sold to Dalzell and Rice.
“d — Purchase made of Mrs. Boeing.
“And that the above and all of the contracts and business of the said defendant since the time of the said settlement in 1888 down to the time of the commencement of this suit were partnership dealings, for all of which the said defendant should account to the said complainant, and that the complainant was and is entitled to a distribution of the profits thereof.
“8. The complainant also claims that the defendant has received large quantities of logs for which he has not accounted, and that the defendant has rendered an 'account for large expenditures which were not proper charges against said firm; and inasmuch as the depositions are very voluminous, and the items of accounting-very numerous, it is further ordered that this cause and all the evidence and proofs therein be, and the same is hereby, referred to Charles B. Blair, as a special commissioner, to state an account between the parties, and that said account be taken upon this order as a basis; and that in stating such account the said commissioner will charge the defendant with all the money, accounts, and property that he received which belonged to said firm after the settlement aforesaid. He will also charge the said defendant with all profits that he made on the contracts for the purchase of different tracts of timber during said partnership after the time of said settlement, and down to the time of the commencement of this suit. He will also charge him with all logs and lumber that he received during the same time for which he has not properly accounted, if any. He will also charge the said, defendant with all the profits that he made by dealing with the money or property of the said firm and for which he has not accounted, if any. He will also charge the said defendant with all money, lumber, logs, stocks, and property of every kind that he received which belonged to said firm during said partnership after the time of said settlement ás aforesaid. And he will credit the said defendant with all money and property which he has properly used for the benefit of said firm.
“He will also credit the said complainant with all money that he advanced and paid for the benefit of said firm after July, 1888, and charge him with all money he received from said firm within the same time.
“And that the said commissioner report his findings to this court with all convenient speed.”

The bill in this case was filed by the complainant for an accounting of partnership matters between the complainant and defendant, and alleges a partnership business commencing in 1885, and running to the time of the filing of the bill, 'originally begun for the purpose of engaging in the lumbering of certain timber and timber lands then owned by the parties in common. Aside from the admitted partnership business between the parties, the bill alleges that the defendant was engaged in lumbering other lands, to wit, a piece of land known as “Section 31,” and which he (defendant) says was an individual enterprise of his own, while the complainant charges that whatever money and time were expended on said section 31 were taken out of the firm of Coach & Hake, and whatever profits were made in lumbering on that section rightfully belong to the said firm. The bill also charges that the defendant has purchased lands and timber in different places in the State of Michigan and in the state of Wisconsin, but that any money that has been paid for said lands and timber has been taken out of the money belonging to said firm of Coach & Hake. The bill asks that the defendant be required to pay over to complainant all moneys that shall be found equitably his due, and that the partnership be dissolved, and asks for an account of the partnership business, and for an account of his business in connection with said section 31. The answer admits the partnership, and denies that the business relating- to section 31 had any connection 'with the firm business, but that it was wholly and entirely the individual business of the defendant, and gives au account of the partnership business as distinguished from such individual business down to the time of the commencement of the suit. Proofs were taken before commissioners upon notices and stipulations, and a stipulation was finally made for a hearing at the November term of court in Kent county, wherein it was agreed that a hearing should be had before the court upon the proofs so taken on the whole case without any reference. The case was argued before Judge Grove in November, 1894, and submitted to him for decision; and on March 18, 1895, the decree from which the appeal has been taken was filed.

It is apparently true, as contended, that—

By paragraph 1 of the decree the court decides that there was a copartnership, and fixes the nature of the business entered into.
By paragraph 2 of the decree the terms of the partnership are fixed.
By paragraph 3 the decree decides various things to have been done by the parties, and that they had a settlement in July, 1888, and fixes the terms of that settlement and the amount paid in by the complainant at that time.
By paragraph 4 the decree fixes absolutely the amount of the assets of the firm in cash, accounts, and property, and the standing of the parties with reference thereto.
By paragraph 5 of the decree the judge decides finally and absolutely the agreement to continue the business, and that the defendant took possession of all the assets of the firm, and that he entered into certain contracts on behalf of the firm, which were taken in the individual name of the defendant.
By paragraph 6 of the decree the judge states the contention between the parties with regard to transactions claimed by the defendant to have been individual transactions, and fixes the amount of the profits made thereby as, exceeding $30,000.
By paragraph 7 of the decree the judge decides finally and absolutely against the defendant with regard to these transactions, enumerating them specifically as constituting the matters referred to in paragraph 0, where he states the dispute between the parties, and holds that they were matters in which the said complainant is entitled to share, and, following the enumeration of these specific transactions, finds that the above and all other contracts and business of the defendant down to the time of the suit were partnership dealings, for all of which the defendant should account to the complainant, and that the complainant was and is entitled to a distribution of the profits thereof.
In paragraph 8 of the decree the judge, after stating certain claims of the complainant, and that the depositions are very voluminous and the items of the accounting very numerous, further orders that the cause and all the evidence and proofs therein be referred to a special commissioner to state an account between the parties, and that said account be taken upon this order as a basis, and gives directions to the commissioner to charge the defendant with all the moneys, accounts, and property that he received which belonged to the firm after the said settlement, and with all the profits that he made on the contracts for the purchase of different tracts of timber during said partnership from the time of said settlement down to the time of the commencement of the suit; also with all logs and lumber that he received during the same time for which he has not properly accounted, if any, and with all profits that he made by dealing with the money or property of the firm and for which he has not accounted, if any, and with all money, logs, lumber, stocks, and property of every kind that lie received which belonged to said firm during said time; and to credit the defendant with all money and property which he has properly used for the benefit of said firm.
In the final paragraph of the decree the commissioner is instructed to credit the complainant with all money that he advanced and paid for the benefit of said firm after July, 1888, and charge him with all money he received from said firm within the same time.

The decree not only fixes the time at which the accounting is to commence, and the period which it is to cover, but it also fixes the respective rights of the parties with regard to the business of the partnership, and with regard to the business which is claimed by the defendant to have been no part of the partnership; and it directs the commissioner, after fixing the standing and rights of the parties in the various matters in dispute, to state an account upon this order as a basis. The decree is final as settling the basis of the accounting, and it is left to the commissioner to figure up the various matters in controversy on that basis, and report to the court.

In order to be appealable, it is not necessary that the decree should dispose of all the merits. As was said in Barry v. Briggs, 22 Mich. 201, 204:

“The nature of any order as a decree or final order or as not final depends entirely on the effect produced by the adjudication upon the rights and interests of parties; and the usual distinction between interlocutory and other orders, depending on the stage of the cause in which they are made, is not the test for appellate purposes. An adjudication made at any stage of a cause may have such an effect as to render it appealable. The ease of Lewis v. Campau, 14 Mich. 458, is an example of this. The order appealed from in that case was made at a very early stage of the controversy. And it is only after considering the operation of the order now before us that we can properly determine. its appealable character.”

In Lewis v. Campau, 14 Mich. 458, 460, it was said:

“It is not necessary that a decree should dispose of all the merits. Whenever the court finally adjudicates any part of them, although the practice of making separate decrees without necessity is very reprehensible, yet the partial decree is neither void nor interlocutory.”

The decree in the present case goes much further in passing upon and deciding the merits of the case than did the decree in the case of Candler v. Stange, 53 Mich. 479, 480. In that case the decree was entered, declaring the partnership dissolved, and referring it to a commissioner to take proofs as to the time the partnership continued and the matters and business covered thereby, and to report the same to the court. The- commissioner made his report, to which defendant excepted. The circuit court sustained the exception, and decreed that the partnership continued in full force and operation until January 30, 1883. From this decree the complainant appealed. The defendant contended that the decree was not final, and therefore not appealable. It was said :

“It was certainly not final in the sense that.it disposed of the controversy between the parties, but it was final as settling the basis for accounting, and the basis fixed upon entitled the parties to extend the accounting over a period which neither party, by his pleading, had claimed to be within the life of the partnership. If this was not admissible, an appeal was allowable, within the previous decision of this Court. Lewis v. Campau, 14 Mich. 458; People v. Jones, 33 Id. 303; Maxfield v. Freeman, 39 Id. 64; Taylor v. Sweet, 40 Id. 736; Morey v. Grant, 48 Id. 326.”

In Perrin v. Lepper, 72 Mich. 454, a decree was made that the administrator of Perrin’s estate should account for certain property, the value to be determined as directed; that the parties should make up an account of their doings, and file the same with the register of the court; and reference was made to a commissioner to take full proofs, if necessary, in addition to the proofs already taken, and to state an account upon certain principles set forth in the decree. This decree was appealed from, and motion made to dismiss. It was said:

“We do not think, under our previous decisions and the practice, this motion can be sustained. Substantial rights are affected. The Sibley heirs’ claim was disposed of entirely. Claims were made against the Perrin estate for large amounts, which, under the order, were rejected; and claims made by the Perrin estate were heard, and to a very large amount rejected by the decree appealed from. The order of the circuit court as to these was in its effect a final disposition thereof; and, when, such is the effect, the order or decree is always regarded as appealable. It is the effect, and not the form, of the order or decree, or the particular classification of the same, which determines the question of whether or not it is appealable.”

In the decree in the present case the defendant is deprived of a substantial right if his claim is supported by the evidence taken. Under his answer and cross-bill, he claims that he is entitled to all the profits made upon a certain transaction, and that he is also entitled to all the interest in certain lands or the timber on certain lands which he purchased individually, and for his individual use. The order or decree of the circuit court makes final disposition of these questions, and directs an accounting thereon.

We are not called upon to determine the rights of the parties in this controversy on this motion, but we may look into the claims of the parties and what has been decreed. Petrie v. Torrent, 88 Mich. 43, came to this Court on appeal, and the basis of the accounting was determined here.

We are of the opinion that the decree is appealable, and the motion must be denied, with costs.

The other Justices concurred.


text:
    The People v. James Kennedy, Impleaded with George Gannon.

      Criminal law — Evidence—Preliminary examination — Refreshing recollection of witness.

    1. Tlie deposition of a witness taken upon the preliminary examination of a respondent is admissible on the trial as original evidence; citing Lightfoot v. People, 16 Mich. 507; People v. Butler, 55 Id. 409.
    2. It is competent on the trial of a criminal case for the deputy clerk of the police court, in which the preliminary examination of the respondent was had, after testifying that he wrote down the testimony of the complaining witness, and that his recollection would be so refreshed, as he thinks, by looking at said testimony as to enable him to remember, aside from said testimony, whether or not said witness testified to a' certain alleged fact, to refresh his recollection from said testimony.
    Exceptions before judgment from recorder’s court of Detroit. (Chapin, J.)
    Argued May 8, 1895.
    Decided May 21, 1895.
    Respondent was convicted of the crime of assault with intent to do great bodily harm less than the crime of murder.
    Conviction reversed, and new trial granted.
    The facts are stated in the opinion.

      Edwin Henderson and Alfred J. Murphy, for respondent.

      Fred A. Maynard, Attorney General, Allan H. Fraser, Prosecuting Attorney, and Ormond F. Hunt, Assistant Proecuting Attorney, for the people.
   Long, J.

Respondent was informed against in the recorder’s court of the city of Detroit for an assault upon one Frank Grabowski, with intent to do great bodily harm less than the crime of murder. He was impleaded with one George Gannon, who was acquitted upon the trial. The parties had an examination in the police court, and were hound over for trial. On the trial it appeared that respondent was the overseer upon a paving contract. Grabowski and about 20 others were under his supervision. The people’s contention was that some altercation arose between Kennedy and one Peahalski, which resulted in a fight between them and others of the workmen; that, while this was in progress, respondent Gannon came running up, and struck Grabowski on the head with a hoe, and that, while he was down, Kennedy kicked him, and inflicted great bodily injuries. The respondent Kennedy contended that, if any wounds were inflicted upon Grabowski, it was by Gannoii or some other party, and not by himself.

On the trial Grabowski testified that, while Kennedy was fighting with Peahalski, he went up, and attempted to pick Peahalski up, when he was struck on the head by Gannon with a hoe, and then Kennedy commenced kicking him; that he saw Gannon strike him with the hoe. The defense called the deputy clerk of the police court, who testified that he wrote down the testimony of Grabowski in the police court. He was asked:

“Q. Do you recollect what he testified to there, as to whether he could tell who struck him or not?
“A. I do not remember whether he said he did or did not. The testimony will show.
“Q. Would your recollection be refreshed if you looked at the testimony?
“A. Well, if in the testimony it said that he knew, why I would know.
“Q. Would your recollection be so refreshed that you would remember it aside from the testimony, if you looked over the testimony?
“A. I think it would.”

It was contended on the part of the respondent that the testimony given in the police court by Grabowski was that he could not say who hit him on the head with the hoe; and that he now changed his testimony upon the trial; and that, if the testimony were permitted to he given, it would contradict the witness upon a material point, and support the theory of the defense that, in the general melee, he could not tell who hit him or who kicked him.

The court was in error in refusing to permit the witness to refresh his recollection from the testimony he had so taken. The rule is stated by Mr. Greenleaf in his work on Evidence as follows:

“Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book.” 1 Greenl. Ev. § 436.

The same question was before this Court in Caldwell v. Bowen, 80 Mich. 382, and Robinson v. Mulder, 81 Id. 75; and it was held that the .witness had the right to refresh his recollection from memoranda which he had made.

The depositions of the witnesses taken in the court below were offered in evidence by the respondent for the purpose of showing contradictory statements of the witnesses. This was excluded. The depositions of witnesses taken upon the preliminary examination before the examining magistrate are admissible as original evidence. Lightfoot v. People, 16 Mich. 507; People v. Butler, 55 Id. 409.

The conviction must be reversed, and a new trial granted.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


author: Montgomery, J.

text:
    The People v. Clarence L. Fairchild.

      Indictment — Diversion of public funds — Evidence.
    Respondent was indicted for using a sum of money appropriated by tbe board of supervisors of his county to his township, to be by him expended as supervisor thereof in improving the roads and bridges therein, to secure his re-election to said office. On the trial the people, after proviag that the money was appropriated and received by the respondent, rested. The respondent offered to show affirmatively that the money was expended in good faith upon the roads in the township, but the circuit judge rejected the testimony, and directed .a verdict of guilty, on the theory that, the appropriation being unauthorized, it was immaterial to what use it was put by the respondent. And it is held that the gist of the offense charged in the indictment is that of diverting the fund from the source to which it was devoted by the order of the board of supervisors, and using it for corrupt purposes, the indictment treating said order as fully authorized and valid, and that the court erred in rejecting said testimony.
    Exceptions before judgment from Bay. (Maxwell, J.)
    Submitted on briefs May 8, 1895.
    Decided May 21, 1895.
    Respondent was convicted of the crime of larceny.
    Conviction reversed, and new trial granted.
    The facts are stated in the opinion.

      Simonson, Gillett & Gourtright, for respondent.

      Fred A. Maynard, Attorney General, and Isaac A.. Gilbert, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted on an indictment charging that he was, in the year 1892-93, supervisor of the township of Mt. Forest, Bay county; that at a meeting of the board of supervisors in October, 1892, a committee report, recommending that there -be appropriated from the contingent fund of Bay county the sum of $300, to the township of Mt. Forest, to be expended by the supervisor of the township, was adopted. The indictment then proceeds as follows:

“And that the said Clarence L. Fairchild afterwards received from the county treasurer of Bay county the said sum of $300; that he, the said Clarence L. Fairchild, did not use the said sum of $300 for the purpose of improving-the roads and bridges in the township of Mt. Forest aforesaid, but unlawfully and fraudulently did afterwards, to wit, a few days before the annual spring election in the month of April, A. D. 1894, with intent to secure his re-election as supervisor of said township, and with intent to defraud the people of the county of Bay, hire and engage a large number of non-residents to go to the township of Mt. Forest, to register as voters therein, and to vote for him, the said Clarence L. Fairchild, as such supervisor; that the sum of $300, or the greater part Thereof, was used by the said Clarence L. Fairchild for no other purpose than securing his re-election as aforesaid, and not for the purpose contemplated by the board of supervisors when said appropriation was made.
“And the grand jury, therefore, say that he, the said Clarence L. Fairchild, did then and there receive, and that there was then and there delivered to him, the said Clarence L. Fairchild, $300 in money, of the value of $300 in money, of the goods, chattels, and property of the county of Bay, and that he, the said Clarence L. Fairchild, did then and there, in manner and form as aforesaid, fraudulently convert the said $300 to his own use.”

On the trial the prosecution proved the adoption of the committee report, and that respondent received the money from the county treasurer on an order drawn by the clerk, and this proof was deemed by the circuit judge sufficient to warrant a conviction. The defense offered to show affirmatively that the money was expended in good faith on the roads of the township, but this testimony was refused, and the circuit judge directed a ver■dict of guilty.

The conviction was clearly against the rights of' the respondent. The view of the circuit judge seems to have been that the order of the board of supervisors was unauthorized, and that, therefore, it was immaterial how the money was expended. But the indictment is not framed on any such theory. The gist of the offense charged Is very clearly that of diverting the fund from the source to which it was devoted by this order of the board, and Its use for corrupt purposes, the indictment treating the order of the board as fully authorized and valid.

The conviction will be set aside, and a new trial ordered.

The other Justices concurred.


text:
    Thomas H. Goodman v. Mary Shipley.

      Married women — Liability on contract.

    The defendant, a married woman, is held liable under the rule of Hirshfield v. Waldron, 83 Mieh. 116, and Meads v. Martin, 84 Id. 306, for medical services rendered by the, plaintiff for her and for her minor daughter by a former marriage, who was living with her, at her request, and charged to her, and for which she agreed to pay.

    Error to Saginaw. (Wilber, J.)
    Submitted on briefs April 17, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Judgment reversed, and that of the justice affirmed.
    The facts are stated in the opinion.

      George A. Kendall, lor appellant.

      Trash & Smith, for defendant.

       For cases bearing upon the question of the liability of married women upon general contracts, see Mosher v. Kittle, 101 Mich. 345, 348, and note; Building & Loan Association v. Billing, 104 Id. 187.

   Long, J.

This action was commenced in justice’s court, where plaintiff had judgment. It was removed to the circuit court by certiorari, and the justice’s judgment there reversed. The action was for medical services and medicines furnished by the plaintiff to the defendant and hér daughter. The defense interposed was that the defendant was a married woman, and therefore not liable for such services and- medicines. The only question raised is whether there is any evidence to support the plaintiff’s claim.

Plaintiff testified substantially that he was a practicing physician; that he was sent for several times by the defendant, and visited her in January, February, and April, 1893, making some ten or more visits, which were worth $2 each visit; that he was sent for by defendant to visit her daughter by a former marriage, and made some four or five visits; and also that upon several occasions he prescribed for her at his office. He further testified:

“Defendant’s husband came to me, and told me his wife sent for me. * * * Soon after I began visiting defendant, she told me that she had sent for me; that she had property of her own, and -would see me paid; that just then she,was hard up for money, part of her property having no tenants, but she would be responsible for my pay. I charged the first visit to her, and charged the whole account to her. It has never been charged ;.<> any other person, and I have never asked any other person to pay the account.”

On cross-examination the plaintiff testified that all the bargain he had with defendant was as follows:

“On the second or third visit, defendant told me about owning the property, and that she would see me paid; that she did not have money by her then; was hard up, and one of her houses was idle. I think she repeated the same, in substance, in April. She told me about the same, in substance, when I was called to see the girl, in May. We talked about her coining , to the office whén she was able, the last of May or'first of June, and we made another contract. I told her what she would save by coming to the office. She stated that she was canvassing some, and she would stop in the office when she was out on that business. I told her the price, and she came off and on during two months. She said she would pay me, and regreted she did not have the money. She told me of whom she expected to have money, and when she got it she said she would pay me. She repeated she would pay me soon when she got the medicine in January last, and said she expected money soon. She dunned herself in the courthouse, and said she expected the money any day. She kept me in hopes. She promised me as late as June this summer, and said that she soon hoped to have the money. That is all I recollect as to my employment and pay. I knew that she was a married woman, living with her husband, while 1 doctored her, and the daughter I visited seemed to be living in the family same asa child would.”

Q'here was testimony, therefore, before the justice, upon which to base his judgment that the contract was made directly with the wife, and not with the husband. The medical services were rendered to her and a child by a former marriage, for which she agreed to become responsible.

The case falls so clearly within the rule of Hirshfield v. Waldron, 83 Mich. 116, and Meads v. Martin, 84 Id. 306, that any discussion of the power of a married woman to bind her separate estate in. such a case is quite unnecessary. Counsel for defendant, however, contend that a different rule was laid down in Howe v. North, 69 Mich. 272. The rule there stated is not in conflict with the cases above referred to. The plaintiff expressly testified in that case that the husband and wife (who were her father and mother) made the contract with her. It was said, however, that, if the defendant made the contract claimed, she simply became responsible as a surety; and the facts of that case warranted that statement.

We think there was testimony upon which to base the judgment. We cannot weigh it, and, though there was contradictory evidence, the justice decided the question of fact, which neither this Court nor the circuit court can pass upon.

The judgment of the circuit court will be reversed, and the judgment of the justice affirmed. Plaintiff will recover costs of circuit court and of this Court.

The other Justices concurred.

       The daughter was a minor.


text:
    Harry Hubbard v. Harry W. Long.

      Fraudulent representations — Evidence — Variance — Statute frauds. of

    1. In an action for fraud in inducing plaintiff, by false- representations as to its value, to purchase corporate stock, evidence of the breach by the defendant of a promise made to the plaintiff as a part of the inducement to such purchase is inadmissible.
    2. The declaration averred that the defendant was the owner of the stock purchased; that plaintiff purchased it from him, and paid therefor to him the sum of $500. It appeared from the evidence that the stock which the plaintiff received was unissued stock of the corporation, in which the defendant had no interest except as a stockholder, and that he never received personally any portion of the purchase money, but that the same was paid directly to the bookkeeper of the’ corporation. And it is held that there was a fatal variance between the proofs and the averments of the declaration.
    3. Representations by a stockholder that he is the owner of certain shares of the corporate stock, and that the corporation is paying large dividends, made for his own benefit to induce the party to whom they are made to purchase said stock, are not within How. Stat. § 6188, which provides that “no action shall be brought to charge any person upon or by reason of any favorable representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”
    Error to Kent. (Adsit, J.)
    Argued April 27, 1894.
    Rehearing on briefs ordered December 18, 1894.
    Decided May 28, 1895.
    Case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      More é Wilson, for appellant.

      Frank L. Carpenter (Turner ■& Carroll, of counsel), for plaintiff.
   Long, J.

The Grand Rapids Parlor Furniture Company, in November, 1890, was a corporation engaged in the manufacture of parlor furniture in Grand Rapids, having an authorized capital of $50,000, with $21,000 paid in. William J. Long, Jr., defendant’s brother, was president, and defendant was secretary and treasurer, of the corporation. The company, prior to November, 1890, had been engaged in the wholesale business exclusively, and had its place of business on the west side of Grand river. Defendant claims that early in 1890, with a view of extending its business, and engaging in retail as well as wholesale trade, the compahy engaged to have a block built on Canal street, on the east side of the river, and moved into its new quarters on November 1, 1890. Thomas M. Peirce was bookkeeper, and afterwards vice president, and held $5,000 of its stock; all the rest of the stock being held by William J. Long, Jr., Harry W. Long, and Margaret B. Long, the latter’s wife.

Plaintiff resided at Grand Rapids, was a musician, and at times a saloon keeper and* bartender. He had accumulated about $500. He met the defendant upon the streets of Grand Rapids in October, 1890, and was spoken to by Mm about going into the employ of the company. Several talks followed, in which, plaintiff claims, the defendant falsely and fraudulently induced Him to enter the employ of the company, and to purchase $500 in shares of the capital stock of the company.

The averments in the declaration are substantially that the defendant represented that the policy of the: company had been to keep the ownership of stock among, the members of defendant’s family and a few of the employés of the company, thereby giving such employés the motive of self-interest to increase their faithfulness; that he o'ffered these shares to plaintiff because he believed plaintiff had great talent for selling the manufactured products of the company; that the business of the company had been prosperous, and was constantly getting better; that its facilities for business were being perfected and enlarged to keep pace with the demand for its product; that the company had paid annual dividends from the time of its organization, which dividends had never been less than 22 per cent., and the prospects were that the dividend for 1890 would be in. excess of 22 per cent.; that the stock was worth more than its par value, and had never been sold for less; that none, of the stockholders wished to sell any of their stock, except as aforesaid; that if plaintiff would purchase 20 shares at the price of. $500 (that being their par value), and would enter the employ of the company, he (defend-; ant) would put plaintiff in charge of the packing and shipping department of the company, at a salary of $8. per week, and would teach him all necessary details of-the business, whereby to fit him for the occupation of traveling salésman for the company, and, when he had acquired such fitness, would employ him as such salesman at a salary of $25 per week and expenses, and would, raise his salary from time to time as plaintiff developed ability for making sales, by which means he would, acquire a more profitable and better kind of business.' than the one followed by him, and where he would, receive an income of at least 22 per cent, on Ms investment, and probably much more.

It is averred that plaintiff, believing and relying upon these representations, was induced to abandon his calling as a musician, pay $500 for 20 shares of stock, and .enter into the employment of the company, while in truth and in fact such representations were false, and known to the defendant to be false, and that they were made with intent to cheat and defraud the plaintiff. Plaintiff further, avers that the financial affairs of the company were in a ruined state, and that the business it was then and had been doing was not prosperous, but ■was being conducted at a loss to the company; that it had never paid a dividend of 22 per cent, out of its profits, or from any other source, and had never paid a legitimate dividend; that the liabilities of the company amounted to more than the commercial value of its assets, and that the company had many liabilities then due which it was unable to pay; that said stock had no commercial value whatever, but was absolutely worthless; and that a large portion of its stock had been previously sold for 20 per cent, of its face value, all of which defendant then well knew.

■ The plaintiff further avers that the false and deceitful representations aforesaid, and the promise to give him employment, and teach him the details of the business to enable him to act as traveling salesman at a salary of $25 a week and expenses, and to raise his salary as he acquired skill, and to pay him 22 per cent, upon his. investment, were cunning and deceitful devices to induce him to abandon his calling as a musician, whereby he earned large wages, and enter the employ of the company, and to pay to said defendant the sum of $500 for 20 shares of worthless stock, the defendant never intending to fulfill said promise, and never did fulfill the same; that plaintiff' entered upon such employment at $8 per week, and continued for 80 weeks, performing his duties faithfully, until the factory of the company, and its sales" room, were closed by its creditors and its business ended; and that he received nothing therefrom.

This suit was brought to recover damages for the false representations. Plaintiff had verdict and judgment on April 29, 1892, for $616.10. On the trial the court permitted the plaintiff to show, as a part of his damages, the loss he sustained in his salary not having been at the rate agreed upon; but subsequently the plaintiff remitted, upon the record, the amount he claims was so erro-, neously included, being the sum of $71.85. The judgment therefore stands at $544.25, which is the amount of money paid for the stock, with interest on such amount, at 6 per cent., from the time it was paid to the time of the entry of judgment.

On the trial, plaintiff gave evidence tending to support the claim made by the declaration. The defendant denied these statements, and insisted that plaintiff asked for a position with the company, saying that he had quit the saloon business, and was anxious to get into a respectable occupation, and that he had some money which he would invest in the company if he could secure a situation; that the company made some inquiries about him, and finally hired him as a shipping clerk at $8 per week, with the understanding that when he should be competent to se-il goods on the road he should be given the position of traveling salesman. Defendant also testified that he told plaintiff that the company had not made any money for some time, as it had lost heavily by fires; that the company was about to move into new and expensive quarters, and enter the retail trade, and try to largely increase its business; that the expense of moving and getting started in new quarters would be large, and that no dividends could be expected for a year, but that he would be glad to have the plaintiff take some stock, if he entered the company’s employ, as it would give him an incentive to work. Defendant also testified that he did not offer his own stock for sale to plaintiff, but told him that the capital stock of the company was not all paid in, and that he could buy some of that; ánd defendant now insists that. the proofs conclusively show that it was such stock that plaintiff purchased, and that defendant never received personally any portion of the moneys so paid. The officers of the company testified that at the time plaintiff purchased his stock they considered the company in good condition, and the pi*ospects for business very flattering. Defendant, although secretary of the company, was not a bookkeeper, and had nothing to do with keeping the books, and he testified that he relied entirely upon the statements of the bookkeeper for information about the financial condition of the company. Mr. Peirce, an experienced bookkeeper, in September, 1890, purchased $5,000 of the stock of the company. He testified that, before purchasing, plaintiff came to the office, and inquired of him whether he thought it a good thing for him to go into, and he (Peirce) told him he thought it was all right.

The assignments of error relate to the admission and rejection of testimony, the charge of the court, and the refusal of the requests to charge.

The court permitted the plaintiff to introduce evidence for the purpose of showing, not only that defendant misrepresented the value of the stock, but also that he failed to give plaintiff such employment as he promised. He was allowed to show that defendant did not give him the instructions agreed upon to fit him to go upon the road as a traveling salesman, or give him the position as traveling salesman, and plaintiff was also permitted to show what wages he had been earning as a musician. It is contended, however, that this was not prejudicial error, for the reason that there had been remitted from the judgment the amount at which these damages had been allowed. The action was for fraud in inducing him, by fraudulent means, to purchase the stock, and anything which was a part of such inducement was competent, under plaintiff’s claim, but further than that the plaintiff should not have been permitted to go. Very naturally, thé defendant’s ease would he prejudiced by the showing that defendant did not keep his promise to make plaintiff a traveling, salesman, and increase his wages-to the $25 per week, yet the failure to do so was no part of the inducement to making the purchase of the stock. The rule, as stated by Cooley, Torts, 486, is that—

“If deceit, in order to be actionable, must, relate to existing or past facts, it is evident that the fact that a promise, made in the course of negotiations, is never performed, is not of itself either a fraud, or the evidence of a fraud.”

The court was in error in permitting the plaintiff to show a breach of this promise, or what the plaintiff had been earning before the time of the purchase of the stoclC

The declaration alleges that the defendant was the owner of the stock purchased, and that plaintiff purchased the same from him, paying therefor to him the sum of $500. It appears that the arrangement for the purchase was made with the defendant, but the money was paid directly'to the bookkeeper of-the furniture company, and defendant never received personally a dollar of the purchase price. The fact appears conclusively that the stock which plaintiff received was unissued stock of the company, and which the defendant never possessed. All the interest he had in it was as a member of the company. Defendant insisted below, and now insists, that this was a fatal variance, as there was no proof to support the averment of the declaration that plaintiff purchased stock from the defendant, and paid him for it. The defendant asked the court to charge the jury that the verdict must be for the defendant if they found that the plaintiff purchased his stock from the company, or if they found that plaintiff paid the company for it, and the company received the benefit of such payment. This was refused, and the court charged the jury:'

“It is immaterial to whom the stock belonged, or who received the money which the plaintiff paid therefor. The real question is, did the defendant actually make the representations charged, were they false, - and did the plaintiff! have a right to rely, and did he rely, on the statements so made, and suffer damages thereby?”

It is contended by defendant that this instruction was erroneous for two reasons:

•1. That there was a fatal variance between the declaration and the proofs.
2. That defendant cannot be held for verbal representations about the condition of the Grand Rapids Parlor Furniture Company, because they are within the statute of frauds.

We think there was a fatal variance between the proofs and the .averments of the declaration. Instead of the plaintiff purchasing the defendant’s stock, and paying, him therefor, he purchased the company’s stock, and paid it for the same, and the defendant never received a dollar of the money, or any benefits therefrom, except as he was benefited as a member of the company. This action was for fraud, and especially in this class of cases must the proofs support the declaration. Collins v. Jackson, 54 Mich. 186; Jones v. Kemp, 49 Id. 9; Batterson v. Railway Co., 49 Id. 184; Cowan v. Railway Co., 84 Id. 583.

But aside from this variance, which we regard as fatal, it is contended that the representations, if made, come within the statute of frauds. How. Stat. § 6188. Upon the defendant’s contention, this would evidently be correct. Bush v. Sprague, 51 Mich. 41. But the plaintiff contends that the defendant represented that he was the owner of the stock; that such representations were made to induce the plaintiff to purchase; that the defendant was intent on benefiting himself, and as a means he represented himself to be the owner, and the corporation paying large dividends. Under the rule in Bush v. Sprague, supra, the case would not come within the statute if the plaintiff’s contention is found to be true. That was a question for the jury, and should have been submitted to them.

Judgment reversed, and a new trial granted.

The other Justices concurred.


author:
Hooker, J.-
      McGrath, C. J.

text:
    Clara E. Jacob, By Her Next Friend, v. The Flint & Pere Marquette Railroad Company.

      Negligence — Alighting from moving train.

    This case falls within the rule laid down in Railway Co. v. Bangs, 47 Mich. 470, and Werbowlsky v. Railway Co., 86 Id. 236; and the court should take judicial notice that an ordinarily prudent person would not have attempted to alight from the train as plaintiff did, after it had passed the station, and was running at a speed of four miles an hour.
    Error to Tuscola. (Beach, J.)
    Argued January 8, 1895.
    Decided May 28, 1895.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Blade é Dodge, for appellant.

      Hanchett é Hanchett, for defendant.
   Hooker, J.-

The plaintiff was injured by alighting or being thrown from the defendant’s passenger coach, and appeals from a judgment against her, upon a verdict by direction of the court. She was a young woman of IS years, and, according to her testimony, she asked the brakeman, when he passed her, after calling Juniata, a station six miles from Yassar, if he called Yassar station, to which he answered: “No; the next stop is Yassar. Get your things ready.” He soon after came through the car again, and called, “Yassar; change cars for Caro F She said that she got up and followed him' out, expecting him to help her off. The train had stopped before the brakeman called, “Vassar; change cars for Caro!” She did not notice the train moving until she got on the platform. She says that the brakeman stood upon the platform all of the time she was looking, but that she did not speak to him, nor did he speak to her. Her testimony shows that she supposed she had been carried by the station, and she looked for a convenient place to get off, to prevent being carried by, and that, had she seen a place where she thought she could get off, she “would have tried to get off in some way.” This was in answer to the question, “Then, if you saw a place where you thought you could get off, you intended to jump?” Again she said, “I was looking to see if I could make an effort to get off the train.” On redirect she said she thought that she had been carried by, and was looking for a place to get off; that she expected to get off beyond the station, but only if there was a place to get off; adding: ■ “I was looking for the station. I did not know that I had been carried by. I thought I had.” There was nothing to indicate that she thought she was getting off at the station, and she says that the speed of the train was increasing. She did not remember going down one or more steps, and thought she did not step off the train, but repeatedly said that she could not remember and did not know whether she did or not.

A passenger named Cowing said that the lady passed out just as the brakeman shut the door after passing into the car in front. He said:

“He had no sooner shut the second door into the next car, until the lady passed out. She dashed off. The next I saw it appeared to be where she bounded back from the fence there. It looked just like a ball of clothes thrown against the fence and bound back. I supposed it was the same girl, from her running out and getting off there. She just rushed right out. She hesitated a little when she got to the door, and she stepped outside of the car. I thought she and the brakeman were not on the platform together. Did not see him there at that time.”

Another witness testified that the fence was about three feet from the rails, and sloped back; could not say whether there was room for a person to pass between the fence and a train; a person on the lower step would be from 1-| to 2 feet clear of the fence going past. It should be remarked that this fence was at right angles to the track at a cattle guard, by which she sat when found.

Clara Hardy, a passenger, saw her go out and walk-right down the step while the cars were going; saw her stepping down; did not see her step off.

A Mr. Lloyd followed her out, and saw her go down the step, and step off the car. He was right behind her on the platform, probably two steps from her. On cross-examination he was asked, “Can you say that she fell off or stepped off?” Answer: “To me, she just deliberately stepped off, right before my eyes. That is the way it appeared.” The witness at once notified the brakeman, and the train was stopped. The cause of the previous stop was a railroad crossing, a short distance from Vassar, which place the train had not reached.

This embodies the substance of all the testimony upon the subject of her getting off the train. The theory that she was thrown off, if to be accepted, must be based upon the following statements, viz.:

1. That she was on the platform, looking for a convenient place to alight.
2. That she thought she did not jump.
3. That it looked to a passenger like a bundle of rags hurled or thrown against the fence.

The last is as consistent with a step or a jump from the train as it is with her being thrown from the train; 'the first is not inconsistent with the statement that she stepped off; while the second is an opinion merely, which her own testimony shows not to have been based upon knowledge or recollection. Having said that she neither recollected nor knew how she got off, there was no propriety in allowing her to give an opinion. Hence we must conclude that she stepped off! the car, to avoid being carried by her station, at a cattle guard, when the train was going three or four miles an hour at the least. She states that it was so dark that she could not see, and there is probably room to say that she acted impulsively, believing that she was being carried beyond her destination. Do these facts constitute contributory negligence? If there had been no announcement, and she had done this, there would have been little chance to claim that she was not .negligent. Had a passenger said, “You had better get out here quickly, or you will be carried by,” and she had gone to the platform, to find the cars moving, she would have been as likely to act impulsively as under these circumstances. The only difference would be that in such case her sudden excitement would have been caused by a third person, while in this instance it is said to have been caused by the negligent act of the brakeman. In other words, it is not to be called contributory negligence, because the defendant’s act caused an impulse to do that which was negligent; in other words, caused negligence upon her part. Such a claim as that might be urged in many cases of negligence. But the true test is “the conduct of an ordinarily prudent person.” It will not be presumed that an IS .year old girl, traveling alone, who has traveled on cars before over the same road, who expects the brakeman to help her alight, and is surprised that he does not, is such a novice as to be relieved from the ordinary rules of contributory negligence. She may be presumed to be as mature intellectually as a man of 21. In some states it is the age of majority. Railway passengers are presumed to know the every-day • incidents of railroad travel. Mitchell v. Railway Co., 51 Mich. 236; Minock v. Railway Co., 97 Id. 425. It certainly would be imprude~t for a person to step into a cattle guard, in daylight, from a train in motion, though going but three or four miles an hour, and more imprudent to do so where it is so dark that the cattle guard cannot be seen.

It is unnecessary to review the cases from other states, cited by counsel for the respective parties, inasmuch as our own authorities are decisive. In Lake Shore & M. S. Ry. Co. v. Bangs, 47 Mich. 470, the plaintiff, knowing that he was being carried by his station, jumped from the lower step of the coach while it was going at the rate of six miles an hour. Mr. Justice Campbell, speaking for the Court, said:

“We have reluctantly felt ourselves compelled to hold that, in our judgment, such conduct is beyond any question negligence, and that the jury should have been so instructed. The fact that many persons take the risk of leaving cars in motion does not make them any the less risks which they have no right to lay at the door of the railroad companies. No company can use effectively coercive powers to keep passengers from doing such things. All persons of sound mind must be held responsible for knowledge of the usual risks of such traveling. Everyone is supposed to know that a fall beside a moving train is very likely to bring some part of the body or limbs in danger of being crushed. Every one is supposed to know that in jumping from a vehicle running six miles an hour, or much less, he stands a good many chances of falling or being unable to fully control his movements, and that falling near a train is always dangerous. No doubt every one who tries such an experiment persuades himself that he will escape, but it is impossible to suppose any one of common sense does not know that there is danger.”

Mitchell v. Railway Co., 51 Mich. 236, arose over an accident somewhat similar, but the question of contributory negligence did not arise. It turned on the absence of negligence.

In Werbowlsky v. Railway Co., 86 Mich. 236, 239, Mr. Justice McGrath said:

“A passenger who voluntarily jumps on or off from a car while it is in motion does so at his own peril, and that construction cannot.be said to be defective which is only unsafe in view of such conduct.”

An attempt is made to distinguish these cases from the one before us, it being contended that the negligence of the defendant put the plaintiff in a position where she was called upon to act suddenly, and where, under such circumstances, she yields to an impulse, and is injured, she may recover, and, at all events, it is a question for the jury. Two Michigan cases are relied on, to support this doctrine: McCaslin v. Railway Co., 93 Mich. 553; Cousins v. Railway Co., 96 Id. 386. Both are distinguishable in important particulars. In the first of these the train stopped at the station. The plaintiff, a woman, followed two companions off the train. They alighted in safety, when the conductor gave the signal to start. As she went to step off, with the assistance of the brakeman, as she stepped upon the ground, she fell, and was hurt. The opinion says:

“The fall was unquestionably caused by the motion of the train, although the brakeman may have been negligent in assisting her.”

Either would have been the negligence- of the defendant. She felt the motion of the train at the head of the stairs, and the fact most in dispute was whether the brakeman invited her to alight. The Court said that it was for the jury to say whether she was guilty of contributory negligence. Mr. Justice Grant said:

“The main question in the case is, was plaintiff guilty of negligence in alighting from the train, under the circumstances, when it was in motion? Defendant’s counsel insist that the court should have directed a verdict for it, because plaintiff passed out of the car, down the steps, and alighted, when she knew that the train was moving. The learned counsel in this proposition leave out entirely the facts that the train was moving slowly; that she had been invited to alight; that the brakeman stood there to assist, and did assist, her to alight; and that he suddenly let go her hand, and swung himself upon the departing train.
“The authorities are quite uniform that jumping from a moving train before it has reached the station, and boarding a train while in motion, are presumptively negligent acts, and in many cases are negligent per se; so, also, is the act of jumping from a train which is running 'past the station where the passenger desires to stop. [Authorities cited.] But it is not negligent per se for a passenger to alight from a train after it has stopped and he has been invited to alight, and, while doing so, the train is again started, and especially when the brakeman or conductor is standing upon the ground inviting and assisting him, unless the speed of the train was such that the danger is obvious. This proposition is based •upon sound reason and good sense. It is sustained by the clear weight of authorities, which it is unnecessary here to recite.”

The case of Cousins v. Railway Co. carefully limits the rule, and goes to the extent merely of holding that,—

“If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent.”

Both- of these were cases where the train was barely under motion, and the action was impulsive. They were at regular stations, in the day-time, where there was a suitable place to alight, and where there might be a question whether prudent persons would not do the same under like circumstances. In this case the plaintiff’s impulse, if it can be called sudden, when she had noticed the increasing velocity, caused her to take the hazard of alighting in the dark in an unknown place. In my opinion, this case falls within the rule of the cases first cited, and we should take judicial notice that an ordinarily prudent person would not have made the attempt. Shear. & R. Neg. § 520, and cases cited.

I think the judgment should be affirmed.

Long and Grant, JJ., concurred with Hooker, J.

McGrath, C. J.

(dissentmg). Plaintiff, at the» age of 18 years, took one of defendant’s trains at Port Huron for Yassar. After the train had left Juniata, a station six miles east of Yassar, she asked the brakeman if. he had called Yassar. He replied that he had not, but said: “The next stop is Vassar. Get your things ready.” Yassar station is at the junction of the F. & P. M. Ry. and the D. & B. O. Ry. The crossing is about 100 feet east of the depot building. Plaintiff was run over at a cattle guard about 300 feet east of the crossing. The testimony is undisputed that the train came to a full stop at a point east of the crossing and cattle guard. The engineer testified that he stopped about 700 feet east of the crossing; that the semaphore was against him that night; that he stopped, and called for it; that he waited for it, and that he got the semaphore as soon as the man could come to it. Plaintiff testified that after the train had come to a full stop the brakeman called out in the car, “Yassar; change cars for Caro!” and immediately passed out of the car upon the platform: that she, being in readiness, as suggested by the brakeman at Juniata, got up at once, and followed the brakeman out upon the platform; that, “when I got onto the platform, I found that the train was moving, and he was making no effort to help me off, and so I was anxious to get home; I wanted to see my people; I had been gone a long while; and I began to look, to see where I was going to get off; and I could not see any station or any place to get off; and the train kept moving faster, and the moving of the train threw me off.” The plaintiff was subjected to a lengthy cross-examination, upon which she testified as follows:

“Q. Did you step down the step?
“A. I don’t remember' stepping down the step.
“Q. Do you know whether you did step down the step or not?
“A. No, sir.
(iQ. You can’t tell?
“A. No, sir.
“Q. i)o you know liow you came to get off?
“A. No, sir; I don’t know just how I got off.
“Q. You don’t know whether you jumped off or fell off?
“A. No, sir. I think I fell off. The moving of the train threw me off. That is what I think threw me off.
“Q. I ask you whether you can tell whether that was it or not?
“A. No, sir.
“Q. You may have jumped off?
“A. I don’t think so. I don’t think I jumped off.
“Q. You may, as far as you know?
“A. Yes, I may have jumped off; but I don’t remember.
“Q. You don’t remember whether you did or not?
“A. No, sir.
“Q. If you were standing in the middle of the platform, right in front of the car door, you could not have fallen off, could you?
“A. I was not in front of the car door. I bent for- „ ward from there, to see if I could see that station.
“Q. Did you go onto the platform of the other car?
“A. No, sir.
“Q. You bent forward?
“A. Yes.
“Q. You bent forward to look at the outside?
“A. Yes.
“Q. Did you step down?
“A. Not that I remember of.
“Q. You don’t remember whether you did or not?
“A. No, sir. * * *
“Q. You thought you were being carried by the station?
“A. Yes.
“Q. And you were anxious to get home?
“A. Yes.
“Q. On that account, didn’t you make an effort to get off the train?
“A. I was looking to see if I could make an effort to get off the train.
“Q. Now, don’t you know that you stepped or jumped to get off?
“A. No, sir; not that I remember of.
“Q. You couldn’t say whether you did or not?
“A. No, sir. - v ,
“Q. You don’t know whether you stepped down on the step?
“A. No, sir; I don’t remember of it. * * - *
“Q. Did you look to the east towards the station — I mean to the west?
“A. I looked both ways.
“Q. And could see nothing?
“A. Yes.
“Q. All that you can say is that while you were looking you got off the car either by jumping or falling?'
“A. Yes. * * *”

On redirect examination the witness said:

“Q. Now, Mr. Hanchett asked you if you could tell whether you got off the train by being thrown off or by jumping off, and you could not tell. Now, why can’t you tell ?
“A. Because I don’t remember. All that I remember, is of getting off. I don’t remember jumping. I think 1 must have been thrown off.
“Q. What condition was your mind in at that time?
“A. Well, I was very anxious to get home, and I thought I had been carried by, and I was looking' for some place to get off.
“Q. How did that affect you?
“A. It made me very uneasy and nervous, and I looked, and couldn’t find any place to get off, and I kept looking forward.
“Q. What is the reason you can’t remember about it?
“A. I don’t know, unless it was because I was so excited. «
“Q. Excited from what?
“A. Because I thought I was being carried by.”

On re-cross-examination she said:

“Q. I understand that you were looking for a place to get off?
“A. I was looking for the station, expecting to get off at that place.
“Q. You sav you thought you were being carried by?
“A. Yes.
“Q. You were looking for a convenient spot to get off, to prevent your being carried by?
“A. Yes.
“Q. Then, if you saw a place where you thought you could get off, you intended to jump?
“A. I would have tried to get off in some way.
“Q. Now, wasn’t that just what you did when you did get off?
“A. No, sir; I was looking for a place so I could get off.
“Q. But I understand you say you can’t tell whether you jumped off or not?
“A. No, sir; I don’t think I did.
“Q. You know that if you had seen a place where you thought you could get off, you would have tried to get off?
“A. That is what I think.
“Q. You thought you had passed the station?
“A. Yes.
“Q. And you were looking for a place to get off?
“A. I was looking tó see .if there was any place to get off.
“Q. And you intended to get off if there was such a place?
“A. Well, I suppose that is what I thought at that time.”

The court directed a verdict for defendant, and it is contended (1) that defendant was not guilty of negligence, and (2) that plaintiff was guilty of contributory negligence in remaining upon the platform, or going down upon the steps, or attempting to alight while the car was in motion.

The case must’ be considered as though plaintiff’s testimony were undisputed. Plaintiff had been informed not only that “the next stop is Yassar,” but when the train stopped she was informed that the train had arrived at Vassar station. In Lake Shore & M. S. Ry. Co. v. Bangs, 47 Mich. 470, plaintiff was a man of mature years There was no sudden starting of the cars while plaintiff was upon the platform. The train had stopped within the city limits, and a number of passengers had alighted. No intimation had been given that the train would stop again, and it did not; but some time after it had started, and while running at a high, rate of speed, .plaintiff deliberately walked out upon the platform, took the risk, and jumped from the platform. There was an entire absence of any invitation to alight at or near that point, or to get ready to alight, or to take the platform. The train had not even slacked its speed with reference to plaintiff’s departure, and plaintiff did not expect it to slacken its speed or stop.

In Minock v. Railway Co., 97 Mich. 425, plaintiff’s destination was Holly. The brakeman had announced that the next station would be Holly. Before reaching Holly, the train stopped at a crossing, and plaintiff, supposing that the train was at Holly, alighted. The Court held that, after such an announcement, defendant was not under obligations to notify its passengers not to alight at an intervening railway crossing. The defendant, say the Court, has a right to expect that its passengers will sit in the cars until stations are called. The brakeman had not, in that case, announced that the next stop would be Holly; nor, after the train had stopped,; had he informed' the plaintiff that she had arrived at Hoíly. Had there been no announcement after the train had stopped for the crossing, the case here would still bdistinguishable from the Minock case.

The books are full of cases where passengers have rushed to the platform of a moving train upon a station announcement. This has uniformly be.en held inexcusable. In such case the statute requires such announcement to be made, and the performance of a statutory duty cannot subject the company to a charge of negligence. But, ordinarily, passengers would regard the announcement of the station after the train had come to a stop as an invitation to passengers for that station to alight. The surroundings may be such, when they can be observed, as to suggest to the passenger that the station has not yet been reached ;but such a case is not here. The law certainly does not require a railroad company to mislead its passengers, nor is it excusable for so doing. This is not a case where the company had done simply what the law required it to do in announcing a station before it hád reached it, and was therefore not bound to assume that passengers in response to such an announcement would undertake to leave the train while in motion, but the company had done more, — it had, after the train had stopped, informed the passenger that the station had been reached.

The question of contributory negligence was one for the jury. Her testimony clearly tends to show that she .was upon the platform by invitation, and that w-hat she did was done in the presence of the brakeman. Under .'such circumstances it cannot be said, as a matter of law, that she was negligent for going upon the platform or upon the steps; nor am I prepared to say that her testimony warrants the conclusion that she was not thrown from the train, nor can such conclusion be justified by a t consideration of the defendant’s testimony.

The judgment should be reversed.

Montgomery, J., concurred with McGrath, G. J.