author: Stone, J.

text:
    BENNETT v. STOCKWELL.
    1. Libel and Slander — Privilege—Grand Jury Report.
    A report made by a grand jury to the circuit court, reflecting upon the official conduct of the prosecuting attorney, is not even qualifledly privileged.
    2. Same — Grand Jury Report — Admissibility op Evidence— Bona Pides — Mitigation oe'Damages.
    Evidence of defendants’ good faith in making such report was not admissible in bar of the action for libel, but was admissible in mitigation of damages.
    3. Same — Publication—Grand Jurors — Liability.
    All of the members of the grand jury were prima facie liable for the publication of the libel on the prosecuting attorney where their report to the court, containing alleged libelous matter concerning plaintiff, began “we, the members of the grand jury now in session, beg leave to report,” and was signed “The grand jury,” etc., by the foreman, and was presented by him to the court in the presence of the other member^ of the jury.
    4. Witnesses — Statutes—Applicability—Grand Jurors.
    Section 11887, 3 Comp. Laws (3 Comp. Laws 1915, § 15714), providing that “in no case can a member of a grand jury be obliged or allowed to testify or declare in what manner he or any other member of the jury voted on. any question before them or what opinions were expressed by any juror in relation to any such question,” does not apply where such members are testifying as to such matters in an action against them for libel in making and filing an unprivileged report.

    Error to Kalamazoo; North, J., presiding.
    Submitted April 12, 1917.
    (Docket No. 137.)
    Decided June 27, 1917.
    Case by Milo O. Bennett against Joseph W. Stock-well and others for libel. Judgment for defendants on a directed verdict. Plaintiff brings, error.
    Reversed.

      Milo O. Bennett, in pro. per.

      Alfred J. Mills, for appellees.

      On privilege as to proceedings of grand jury, generally, see note 32 L. R. A. (N. S.) 785.

   Stone, J.

This is an action of libel against the defendants, who served as grand jurors in the circuit court for the county of Kalamazoo, for the composition and publication of an alleged false, malicious, and defamatory document, styled a “report,” which was filed with the circuit court for said county by the defendants, through Byron J. Carnes, their foreman, on February 5, 1914. The report was written by defendant Stockwell and handed to the circuit judge by defendant Carnes. The said “report,” containing the alleged libelous language, was before this court in Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200 (150 N. W. 141, Am. & Eng. Ann. Cas. 1916E, 223), and is fully set forth there, in the opinion of Justice Bkooke, to which reference is made. It was addressed to the circuit court for the county of Kalamazoo, and the opening sentence is: “We, the members of the grand jury now in session, beg leave to report,” etc. It was signed: “The Grand Jury of Kalamazoo County, by Byron J. Carnes, Foreman of Grand Jury.” It appears undisputed that this report was presented to the court by the foreman thereof, in the presence of the entire jury.

In Bennett v. Kalamazoo Circuit Judge, supra, we said:

“In this State there are but two matters upon which a grand jury have statutory right to make reports or presentments — i.e., trespass on public lands (1 Comp. Laws, § 1395, 1 Comp. Laws 1915, § 578), and violation of the election laws (§ 11443, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 14910, 3 Comp. Laws 1915, § 15165). Sections 11891-11898, '3 Comp. Laws (5 How. Stat. [2d Ed.] §§ 15062-15064, 3 Comp. Laws 1915, §§ 15718-15720), provide how indictments shall be found, but contain no provisions for the filing of a report or presentment reflecting upon the conduct of public officials.
“An examination of the report filed by the grand jury in the instant case shows, that it contains reflections of the gravest character upon the official conduct of the petitioner, if it does not actually charge him with the commission of a felony.
“A review of all the cases cited upon both sides of the question, and such others as we have been able to examine, leads us to the conclusion that inherently, apart from statutory sanction, the grand jury has no right to file such a report, unless it is followed by an indictment. The evils of the contrary practice must be apparent to all. While the proceedings of the grand jury are supposed to be secret, it is. clear that in the present instance that secrecy was not inviolate, for the objectionable report found its. way into the press, of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such report be true or false, it can make no difference with the principle involved. In either event the accused person is obliged to submit to the odium of a charge or charges based, perhaps, upon insufficient evidence, or no evidence at all, without having the opportunity to meet his accusers. and reply to their attacks. This situation is one which offends every one’s sense of fair play and is surely not conducive to the decent administration of justice.”

And this court issued a mandamus to compel the respondent therein to grant a motion of the relator to strike from the files, of the court, said report. Upon the trial of the instant case it appeared that the plaintiff had been elected prosecuting attorney of Kalamazoo county at the general election held in the month of November, 1912, and that he served as such officer during the years 1913 and 1914.

There was evidence in the case that defendant Stock-well prepared the report. He testified:

*T prepared that report myself and not from any dictation. * * * I made two copies, one original and one carbon. The original was signed by the foreman.”

It appears that the carbon copy reached the newspaper publisher through the hands of the circuit judge. The witness Stockwell says he does, not remember what was done with the carbon copy, but testified that he did not give it to the circuit judge. It does appear undisputed that the circuit judge had possession of the carbon copy shortly afterward and exhibited it to Mr. Nichols, the special prosecuting attorney who had been appointed to attend the grand jury. It further appeared that Mr. Nichols, although attending the grand jury in the examination of witnesses and the preparation of indictments, had no knowledge that such report had been made, or was in existence, until the carbon copy was shown to him by the circuit judge on the same day the original was filed and spread upon the journal of the court.

At the close of the plaintiff’s evidence a motion was made to direct a verdict for the defendants upon the grounds that the alleged libelous article declared on and made a basis of the action was privileged absolutely, or, if not privileged absolutely, that it was qualifiedly privileged; and after some discussion the court directed a verdict for the defendants.

The case is brought here by the plaintiff upon writ of error, and the assignments of error discussed are that the court erred:

(1) In charging the jury to return a verdict in favor of the defendants upon plaintiff’s own case, as shown by the record.
(2) In striking out the testimony of one of the defendants as to the action of certain jurors in their deliberations.
(3) In granting the motion of defendants’ counsel to withdraw plaintiff’s case from the jury, and direct a verdict against plaintiff without submitting the same to the jury for their determination as a question of fact whether the article was. libelous, and as to the extent of plaintiff’s damages.

We are of opinion that this court has already passed on the question whether this alleged report was privileged, either absolutely or qualifiedly. If it had been privileged at all, this court would not have ordered it stricken from the record. It is manifest that if the defendants composing the grand jury had returned an indictment against the plaintiff, that would have been privileged.

It is the principal contention of defendants’ counsel that the article was qualifiedly privileged. We are of the opinion that it was not privileged at all. - This court has repeatedly held that the occasion determines the question of privilege, and we have said: That qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest, or duty. Bacon v. Railroad Co., 66 Mich. 166-170 (33 N. W. 181); Garn v. Lockard, 108 Mich. 196 (65 N. W. 764); Schultz v. Guldenstein, 144 Mich. 636-641 (108 N. W. 96); Madill v. Currie, 168 Mich. 546-558 (134 N. W. 1004).

In Rector v. Smith, 11 Iowa, 302, the supreme court of that State held that a grand jury had no power to present to the court otherwise than by indictment the misconduct of an officer; and that a report to the district court charging an officer with malfeasance was not a privileged communication; and that the defendant could not plead this privilege in bar of plaintiff’s right to recover. We think that court was illogical when it further held that if such publication was made without malice, and as the defendant supposed in the discharge of a public duty, and without any ill will or hatred toward the plaintiff, there could be no recovery. The court there referred to the language of Chief Justice Shaw in the case of Bradley v. Heath, 12 Pick. (Mass.) 163 (22 Am. Dec. 418). A reference to that case shows that Chief Justice Shaw was there speaking of a case which presented a qualified privilege. In our opinion it is illogical to say that, in the absence of privilege, good faith can be shown in bar of plaintiff’s right to recover. Undoubtedly all the surrounding circumstances may be shown in mitigation of damages, but not in bar of the action, where the matter published is not privileged. Cases are numerous in this State where evidence in mitigation of damages has been received under such circumstances, but not in bar of the action.

It seems to have been the opinion of the trial court in the instant case that there was no evidence as to which or how many of the defendants concurred in the action, of the grand jury. It should be borne in mind that this is an action for publishing alleged libelous matter. As we have said, the undisputed evidence shows that this so-called report was presented in open court by the foreman of the grand jury, purporting to act in behalf of all the defendants, and that all of the defendants were present, apparently acquiescing in what was done. We have called attention to the manner in which the report was signed. We think that, prima facie, at least, it may be said that all of the defendants acquiesced in the publication of the report. Certainly the foreman and the defendant who prepared it for publication would be responsible for it, and we think, as we have said, that prima facie all of the defendants acted in or acquiesced in its publication.

It is the further claim of the appellant that the members of the grand jury should have been allowed to testify to the proceedings in the grand jury room as respects the voting for, and composition and publication of, the alleged libel. Our statute (3 Comp. Laws, § 11887, 3 Comp Laws 1915, § 15714) provides as follows:

“Members of the grand jury may be required by any court to testify, whether the testimony of a witness examined before such jury is consistent with, or different from, the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon complaint against such person for perjury, or upon his trial for such offense; but in no case can a member of a grand jury be obliged or allowed to testify or declare in what manner he or any other member of the jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question.”

In the following cases we have referred to and passed upon this statute: People v. Lauder, 82 Mich. 122 (46 N. W. 956); People v. O’Neill, 107 Mich. 556 (65 N. W. 540); People v. Thompson, 122 Mich. 411-417 (81 N. W. 344); In re Archer, 134 Mich. 408-410 (96 N. W. 442). An examination of these cases will show that we were there dealing with indictments which had been properly found and presented by grand jurors.

The pertinent question is whether this statute should be held to apply in the instant case, where we have held that the proceedings of the grand jury in this matter were without authority or jurisdiction. It has long been the policy of the law, in furtherance of justice, that the legitimate investigations and deliberations of a grand jury should be conducted in secret, and that for most intents and purposes, its proceedings are legally sealed against divulgence. The grand jurors are sworn to keep secret the State’s, their fellows’, and their own counsel. The policy is to inspire the jurors with a confidence of security in the discharge of their legitimate and responsible duties, so that they may deliberate and decide without apprehension of any detriment from an accused, or any other person; to secure the utmost freedom of disclosure of alleged crimes and offenses by prosecutors; to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and. elude arrest upon it, before the presentment is made. That grand jurors cannot testify how they or any of their fellows voted, or as to what induced them to find an indictment, or as to opinions expressed by their fellows or themselves, upon any question properly before them and considered by them, is well settled. Hooker v. State, 98 Md. 145 (56 Atl. 390), reported in 1 Am. & Eng. Ann. Cas. 644, and note citing many cases, including People v. Lauder, supra, and People v. Thompson, supra.

In accord with our statute, it is not competent for a grand jury to testify as to the character or sufficiency of the evidence upon which an indictment was found, or how he voted thereon; But should that rule obtain in matters before the grand jury where it had no jurisdiction to make the “report”? We think not. For instance, it was held at an early day that where process was issued on the complaint of á grand juror, which was without any authority whatever and was void, he was held liable to the person injured. Allen v. Gray, 11 Conn. 95. We are of opinion that the statute above quoted does not apply to such a proceeding as was had by the grand jury in the instant case, and that its provisions cannot be invoked by the defendants here.

We think that the court erred in excluding the testimony offered to show the action of certain grand jurors in their deliberations, with reference to this so-called report; and that the court also erred in directing a verdict for the defendants, and in not submitting the case to the jury upon proper instructions.

The judgment is reversed, and a new trial granted, with costs to the appellant.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WALDECKER v. SMITH.
    1. Sales — Completion and Acceptance — Evidence.
    In an action to recover the agreed price for making and constructing a pattern for a certain sheet-metal cutting machine, evidence held, insufficient to show that the pattern was completed according to contract when delivered to defendant.
    2. Same.
    Where a casting company had, at defendant’s request, taken the pattern to its shop for the purpose of casting the machines, held, that the evidence showed that such company had no authority from defendant to accept such pattern as complying with the contract between plaintiff and defendant.
    Error to Wayne; Stevens, J., presiding.
    Submitted April 3, 1917.
    (Docket No. 21.)
    Decided June 27, 1917.
    Assumpsit in justice’s court by John P. Waldecker against H. Collier Smith for goods sold and delivered. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Zimmer & Chidester, for appellant.

      James J. Spillane, for appellee.
   Moore, J.

The defendant is engaged in manufacturing machinery for cutting sheet metal. These machines comprise a U-shaped main casting; on the front end of each are mounted revolving disc cutters. The construction of these machines requires a steel casting. To make these castings there must be a pattern; Defendant entered into a verbal contract with the plaintiff to make and construct a pattern for $100, to be completed in eight days. It was to be a first-class job as to material and workmanship. The Michigan Grey Iron Casting Company was doing casting for the defendant, and at his request picked up the pattern and carried it to the foundry. One imperfect casting was made from the pattern. It was claimed to be improperly made, and was taken back to the shop of the plaintiff, who did other work on it, which plaintiff claims made it perfect; but defendant, claims it never was* properly completed, and he refused to pay for it. At the time of the trial the pattern was in the possession of the plaintiff.

Suit was commenced in the justice’s court, where the declaration was on all the common counts in assumpsit. The plea was the general issue, with notice of recoupment. From a judgment in favor of the defendant, the plaintiff appealed the case to the. circuit court. Defendant moved for a directed verdict. This the court declined to do, and a jury returned a verdict for the plaintiff in the sum of $107.89. A motion was made for a new trial, which was refused upon condition that plaintiff remit $25, which the' evidence showed was the cost of making repairs on the one casting made from the pattern. Plaintiff’s counsel at once notified counsel of defendant of his election to remit that amount, so that the amount involved here is $82.89. The case is here by writ of error.

Counsel for appellant group his assignments of error as follows:

(1) That no recovery could be had under the common counts in assumpsit.
(2) Errors in refusal to dismiss, because plaintiff was using assumed name without showing compliance with the statute.
(8) Errors in the admission in evidence of plaintiff’s Exhibit 1.
(4) That the court erred in its charge as indicated.
(5) That the court erred in its findings of fact as indicated.
(6) That the defendant’s motion for new trial should have been granted.

The court was of the opinion that there was some evidence the pattern had been completed and accepted, and for that reason a recovery might be had upon the common counts in assumpsit. We think this was too favorable a construction to put upon the evidence offered on behalf of the plaintiff. There is no doubt that defendant was in need of the pattern, and authorized the Michigan Grey Iron Casting Company to call for it when it was completed and take it to their foundry to be used to make castings, and that it was called for by that company. The plaintiff was not a witness, but his brother, who had charge of the business, was a witness for him. In his testimony appears the following:

“On the 12th of February they took the pattern to the other place; I was present when it left the shop; helped to load it.
“Q. Was the pattern complete at that time? .
“A. Yes, sir.
“Q. Did it have wrapping plates?
“A. That was the only thing it did not have; otherwise, it was complete.
“Q. It is a very large heavy pattern?
“A. Yes, sir.
“Q. I will ask you if wrapping plates are not necessary for patterns of that size?
“A. Yes, sir; they are. They were not on when the pattern left the shop. I next saw the pattern about ten days later at the Michigan Grey Iron Company’s foundry.
“Q. Did you bring it back to your shop ?
“A. Yes.
“Q. For what purpose?
“A. We had a few little changes — few little repairs on it.
“Q. Which did you mean, changes or repairs?
“A. Repairs.
“Q. What was the condition when you found it?
“A.- Why, there were a few pieces broken off. Wasn’t very many. They were put on in a short time. Wouldn’t say that it was a poor job. The core box is about 6x7 feet. In using it for making the casting, the core box is filled with sand; would weigh in my best judgment about 1,200 pounds. After the core box is filled with sand, it is necessary to invert it — ■ turn it over.
“Q. I will ask' you if that box wasn’t so poor and weakly constructed that, in attempting to turn it over, it went to pieces?
“A. There was some pieces came off; yes.
“Q. In getting it back in shape, you attempted to strengthen it by putting some 2x4’s on it, did you not?
“A. We did not attempt it — we did straighten and strengthen it. That was after it was sent to the Michigan Grey Iron Company. * * *
“Q. The pattern proper, as distinguished from the core box, pulled apart when it was pulled out of the sand, did it not?
“A. A few pieces came off.
“Q. You did reconstruct that?
“A. Yes, sir.
“Q. Did you strengthen it?
“A. The pattern; yes, sir. Since the work was done on it, Mr. Smith has seén it several times.
“Q. He has absolutely refused to accept it, has he not?
“A. Yes; after his man, who was superintending the place, accepted it, he himself refused to accept it. He said his reason for it was it was not made in accordance with the contract. There was no contract on this job.
“Q. He complained that it was not made out of material of sufficient strength?
“A. Yes, sir.
“Q. You know he has complained that it was not made in a workmanlike manner?
“A. Not to my knowledge; I did not hear him say that.
“Q. You know that he has complained that it was not a first-class job?
“A. Yes.
“Q. He has refused to pay for it?
“A. Yes.
“Q. It is still in your shop?
“A. Yes.”

The foundryman was a witness for the plaintiff. His version on cross-examination of what occurred when the pattern was used is in part as follows:

“Our company picked up this pattern and carried it to our place of business, as is usual in matters of this kind. We had an order from Mr. Smith to make the casting according to the pattern. In attempting to make this casting, the core box pulled apart.
“Q. I will ask you if it wasn’t a very flimsy construction?
“A. Yes, it was. The material in it was very light for a box of that size.
“Q. I will ask jrou if the workmanship was poor; that is, the joints were bad, and not made in a strong manner?
“A. The material in the box was not heavy enough for the amount of sand we had to actually put in, with the result we had some trouble. A box of that size carries approximately 1,200 or 1,500 pounds. The sand is placed in the core box and rammed; the box has to stand up under a lot of weight, because the sand is pounded in, so the core box must stand all the ramming, in addition to the weight, and then the box must be inverted.

i

“Q. In inverting this particular core box, you pulled it to pieces?
“A. Yes.
“Q. What was the result of that upon the mold?
“A. It amounted to a day’s delay in getting the core; it took about a day to fix the core box. * * * The core raised, and we had a defect in the casting. The men in our foundry spent time, probably the whole day, filing the core before they could use it.
“Q. As a matter of fact, if'the pattern and core box were both made correctly, there would not be any necessity for filing, would there?
“A. No; I don’t know where—
“Q. Answer the question; that is all I want.
“A. No.
“Q. When this casting came out, as a matter of fact, one wall was very thick, wasn’t it?
“A. Yes; the core raised, and naturally one wall would be thin and the other heavy.
“Q. Did the pattern itself — the pattern proper, as distinguished from the core box — break up when it was pulled out of the sand?
“A. Pulled a section off of it.
“Q. It was the section that projected from the bottom?
“A. Yes; they had it hooked on where they really should not have had it hooked on.
“Q. Where is the place where the wrapping plates should be?
“A. The wrapping plates are on the main body of the pattern, where it has lots of strength.”

So far I have quoted wholly from the testimony offered by the plaintiff. The defendant offered testimony to the effect that the pattern was never completed, that he had never accepted it, or authorized any one to accept it, and that from the first he had refused to pay for it.

Giving the testimony offered by the plaintiff the most favorable construction possible, it shows that the foundry company had no authority from Mr. Smith, except to call for a completed pattern, and that the pattern which was delivered to them was not a completed pattern of good workmanship, and that there has been no authorized acceptance by Mr. Smith of the pattern which was made. Irrespective of the question of pleadings, in any phase of the case there should have been a directed verdict in favor of defendant, with costs to defendant.

The case is reversed, and, as it is hot likely a different showing could be truthfully made, no new trial will be granted.

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


author: Bird, J.

text:
    PEOPLE v. LYONS.
    1. Constitutional Law — Pandering—Statutes.
    Act No. 63, § 3, Pub. Acts 1911, as amended by Act No. 284, Pub. Acts 1913 (3 Comp. Laws 1915, § 15496), was designed to prevent others than prostitutes or inmates of houses of prostitution from being the beneficiaries of moneys earned by such prostitutes or inmates and to create an offense other than that of pandering to which the title of the original act relates, and is unconstitutional.
    2. Same.
    Act No. 63, § 1, Pub. Acts 1911 (3 Comp. Laws 1915, § 15494), constitutes a legislative definition of the offense of pandering, and furnishes the test for determining whether the offense has been committed.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted April 12, 1917.
    (Docket No. 154.)
    Decided June 27, 1917.

      Ben Lyons was convicted of pandering, and sentenced to imprisonment for not less than 10 nor more than 20 years in the State prison at Marquette.
    Reversed, and respondent discharged.

      Louis II. Wolfe and Edmund E. Shepherd, for appellant.

      Alexander J. Groesbeek, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.
   Bird, J.

Defendant was informed against in the recorder’s court of the city of Detroit, the information charging that he did

“Wilfully, unlawfully, and feloniously knowingly accept, receive, levy and appropriate a certain sum of money, to wit, the sum of two ($2.00) dollars, in lawful money of the United States of America, of the value of two ($2.00) dollars, without giving consideration therefor, from the proceeds of the earnings of one Emma Lyons, a female person, she, the said Emma Lyons, being then and there a woman engaged in prostitution,” etc.,

—contrary to the provisions of section 3 of Act No. 63 of the Public Acts of 1911, as amended by Act No. 284 of the Public Acts of 1913 (3 Comp. Laws 1915, § 15496), the same being generally known as the pandering act. Respondent having been convicted thereunder, he has removed the proceedings to this court upon writ of error.

The principal error relied upon is the refusal of the trial court to direct a verdict for the defendant on the ground that section 3 of said act is unconstitutional, because of defective title. Act No. 63 was passed by the legislature of 1911 and amended in 1913 by amending section 3. The title as. originally passed in 1911 reads:

“An act relating to pandering, to define and prohibit the same, to provide for the punishment thereof,, and for the competency of certain evidence at the trial thereof.”

No change was made in this title at the 1913 session when section 3 was added. The act is somewhat lengthy, but we think it is necessary, to a proper understanding of the question raised, to quote sections 1 and 3 at length, omitting section 2:

“Section 1. Any person who shall procure a female inmate for a house of prostitution; or who shall induce, persuade, encourage, inveigle o.r entice a female person to become a prostitute; or who by promises, threats, violence or by any device or scheme, shall cause, induce, persuade, encourage, take, place, harbor, inveigle or entice a female person to become an inmate of a house of prostitution or assignation place, or any place where prostitution is practiced, encouraged or allowed; or any person who shall, by promises, threats, violence, or by any device or scheme, cause, induce, persuade, encourage, inveigle or entice an inmate of a house of prostitution or place of assignation to remain therein as such inmate; or any person who by promises, threats, violence, by any device or scheme, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, or having legal charge, shall take, place, harbor, inveigle, entice, persuade, encourage or procure any female person to enter any place within this State in which prostitution is practiced, encouraged or allowed, for the purpose of prostitution, or to inveigle, entice, persuade, encourage or procure any female person to come into this State or to leave this State for the purpose of prostitution; or who takes or detains a female with the intent to compel her by force, threats, menace or duress to marry him or to marry any other person or to be defiled; or upon the pretense of marriage takes or detains a female person for the purpose of sexual intercourse; or who shall receive or give or agree to receive or give any money or thing of value for. procuring or attempting to procure any female person to become a prostitute or to come into this State or leave this State for the purpose of prostitution, shall be guilty of pandering, and upon conviction shall be punished by imprisonment for a term not more than thirty years.
“Sec. 3. Any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing without consideration from the proceeds of the earnings of any woman engaged in prostitution, or any person, knowing a female to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of said prostitute, or from moneys loaned or advanced to or charged against her by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, shall be deemed guilty of a felony, and on conviction thereof shall be punished by imprisonment for a term of not more than twenty years. Any such acceptance, receipt, levy or appropriation of such money or valuable thing shall, upon any proceeding or trial for violation of this section, be presumptive evidence of lack of consideration.” .

Section 1 of the act defines with great particularity what acts shall constitute the offense of pandering. It is a legislative definition of that offense, and it is to this definition we must look as a test in determining whether in any given case the offense has been committed. By section 3 other and different acts aré declared to be an offense, but such acts are not included within the legislative definition; therefore such acts cannot be said to constitute the offense of pandering. Section 1 seeks to prevent females from becoming prostitutes and from becoming inmates of houses of prostitution, while section 3 seeks to prevent others from being the beneficiaries of moneys earned by them in prostitution — quite a different subject of legislation. The latter offense not being included within the legislative definition of pandering, we must conclude that another and different offense was attempted to be ingrafted onto the act of 1911 by the legislature of 1913 under its original title. This was not permissible under the constitutional provision. Section 3 of the act must be eliminated and declared to be invalid and of no force.

The judgment of conviction will be set aside, and the respondent discharged.

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


author: Kuhn, C. J.

text:
    FLETCHER v. FLETCHER.
    1. Partnership — Relation—Burden of Proof.
    The burden of showing the existence of a partnership is upon the one who alleges it.
    2. Same.
    Stricter proof of the existence of a partnership is' required between the partners than as against outsiders, especially where the one most interested is dead.
    3. Same — Relation—Evidence—Sufficiency.
    On a bill against the executors of the estate of an alleged partner, evidence held, insufficient to show the existence of a partnership between plaintiff, his brother, a defendant, and their father, deceased, where there was evidence that it was the intention of decedent that his three children should share equally in his estate at his death and to hold that a partnership existed would result in depriving a third child of about two-ninths of his estate.
    4. Same.
    As between the parties, reputation of a partnership is insufficient to establish it.
    Cross-appeals from Alpena; Emerick, J.
    Submitted October 19, 1916.
    (Docket No. 83.)
    Decided June 27, 1917.
    Rehearing denied March 28, 1918.

      Bill by Frank W. Fletcher against Frank W. Fletcher and Allan M. Fletcher, executors of the will of George N. Fletcher, deceased, and Grace Fletcher King for an accounting. Defendant King filed an answer in the nature of a cross-bill asking affirmative relief. From the decree rendered, all parties appeal.
    Reversed, and decree entered.

      Henry & Henry (Gillett & Clark, of counsel), for plaintiff.

      J. O. Murfin (Robert T. Gray, of counsel), for defendant King.

      I. S. Canfield, for defendant Allan M. Fletcher.
   Kuhn, C. J.

For a long time prior to 1880 Mr. George N. Fletcher had been interested in the lumber business at and in the vicinity of Alpena, in this State, including the manufacture of lumber, purchase and sale of timber lands, and such other business and interests as are incident to a general lumber business. The bill alleges that in 1880 a partnership was organized under the firm name of Fletcher, Pack & Co., wherein George N. Fletcher held a four-tenths interest, Albert Pack a five-tenths interest, and Frank Fletcher a one-tenth interest, the purpose of the partnership being to carry on a general lumbering business, owning and lumbering timber and timber lands, manufacturing timber into lumber, selling and disposing of the same, and doing such other business as is usual and incident to a lumbering business. This partnership agreement was evidenced by written articles of copartnership and expired by limitation in 1890, the partners then signing a written agreement of dissolution in pursuance with their original articles of partnership, and in this written agreement of dissolution they determined and agreed upon a division and disposition of the partnership interests undisposed of at the time of such dissolution, which was subsequently carried out.

It is the claim of the plaintiff, and his bill so alleges, that at the expiration of the period of the existence of Fletcher, Pack & Co. a copartnership known as George N. Fletcher & Sons was organized, the partners being George N. Fletcher and his two sons, Frank W. Fletcher and ^.llan M. Fletcher, each partner having and holding at the time and since the organization of such copartnership an equal undivided one-third interest of, in, and to the partnership and' all the property and interests connected therewith; that this copartnership was created for the purpose of continuing the lumber business in substantially the same manner as it had been conducted and operated by Fletcher, Pack & Co. with Mr. Albert Pack eliminated therefrom. The bill stated that no writings of any kind were ever made in the nature of articles of co-partnership or agreements indicating the interest held by the partners, amounts contributed or how contributed, the period of existence of the copartnership, or any other fact or matter pertaining to the organization or its- existence. It is the claim of the plaintiff that it was understood by all parties interested that the new copartnership of George N. Fletcher & Sons was a family affair,.and, as this was largely an operating company, taken in connection with the natural relation which the parties held to each other, no express written or verbal agreements as to the respective interests of the members of such copartnership were made or existed.

It is further alleged: That in 1884 George N. Fletcher became interested in the manufacture of wood pulp, and to that end built a pulpmill in the city of Alpena and established a business under the name of the “Alpena Sulphite Fiber Company,” and in the year 1889 this property was taken over by the Fletcher Paper Company, a Michigan corporation organized during that year. This company had a capital stock of $200,000 with 20,000 shares of the par value of $10 each, held as follows: George N. Fletcher, 4,900 shares; Frank W. Fletcher, 4,900 shares; Allan M. Fletcher, 4,900 shares; Grace Fletcher, 4,900 shares; and W. F. Victor, 400 shares. That subsequently the capital stock of this corporation was increased to $500,000, and such additional stock of 30,000 shares was taken and held by George N. Fletcher & Sons at the agreed value of 150 per cent, of its par value.

George N. Fletcher died November 5, 1899, leaving a will dated December 6, 1884. By the residuary clause of the will his wife and three children, Frank W. Fletcher, Allan M. Fletcher, and Grace Fletcher were made the residuary legatees, and, owing to the prior death of his wife, no one is now interested in the property or estate of George N. Fletcher, deceased, save his three children, all of whom are living and are now involved in this unfortunate litigation. Grace Fletcher has been married, and is known in this litigation as Grace Fletcher King.

The lower court sustained the contention of plaintiff and held that George N. Fletcher & Sons was a copartnership consisting of George N. Fletcher, Frank W. Fletcher, and Allan M. Fletcher, as equal copartners. The defendant Allan Fletcher in his answer avers that he has not' sufficient knowledge with reference to the existence of the copartnership upon which to base an answer, but the defendant Grace Fletcher King answered, and now contends that George N. Fletcher & Sons was not a copartnership, but was rather a method adopted by George N. Fletcher for doing business.

Mr. George N. Fletcher was in his seventy-seventh year when it is claimed that this copartnership was organized, and lived for ten years. Everything in the business had come from George N. Fletcher, and the books of George N. Fletcher & Sons were used as a clearing house for Fletcher, Pack & Co., the Fletcher Paper Company, and George N. Fletcher, and the accounts of these concerns and of the children of George N. Fletcher were at no time ever charged or credited with any interest.

In the consideration of this vexing problem of whether a copartnership was established, it must be borne in mind that the burden of showing its existence is upon him who alleges it. In this case the burden rests upon the plaintiff, and stricter proof is required between partners than as against outsiders, especially when the one most interested is dead. Rowley, in his Modern Law of Partnership, vol. 2, § 877, says:

“To establish the fact of partnership as between themselves much stricter proof is usually said to be required than in cases between partners and third persons. One reason for this is that it is within the power of the partners to give stronger evidence on the subject of the partnership' than a third person could ordinarily produce. The rule has been stated thus:
“ ‘The fact of the existence or nonexistence of a partnership as between themselves must be gathered from the intention of the parties, and the court in arriving at the intention must form its conclusions from deductions drawn by analogy from principles' of law applied to the facts and circumstances developed in the case.’ Heise v. Barth, 40 Md. 259.”

Mr. Mechem in section 1 of his work on Partnership says:

“Partnership is a legal relation based upon the express or implied contract of two or more competent persons to unite their property, labor, or skill in some lawful business as principals for their joint profit.”

The real test of the situation before us is whether it can be said that it has been proven „by competent evidence that the parties intended to create a partnership. There being no writing or evidence of an oral agreement, the matter is made the more difficult because George N. Fletcher is dead and the lips of his sons are sealed on this subject. It will be impossible, within the limits of a written opinion, to review all the testimony introduced in an endeavor to enlighten the court as to the intention of the parties. Considering, however, what clearly appears and is practically conceded, that it was the desire of George N. Fletcher to have his property divided equally among his children, we are of the opinion that the plaintiff has failed to produce that strong, and convincing proof to establish a partnership relation which would result in depriving his only daughter of substantially two-ninths of his estate.

Counsel for plaintiff in well-prepared briefs and argument insist that the partnership is established by evidence of the name, conveyances to and by them as a firm, the certificate filed with the county clerk to comply with Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), sworn to on March 3, 1913, by both Frank W. and Allan M. Fletcher, actions at law and in equity by and against them as a firm, the city directories of the city of Alpena, in which they are described as a copartnership, verified proceedings in the Wayne county probate court in which certain assets belonging to the estate of said George N. Fletcher are inventoried as “one-third stock account of George N. Fletcher & Sons,” books of account, and the testimony of Wm. H. Le Roy, who was the confidential land man of the firm.

As has been said, George N. Fletcher was a man advanced in years when the copartnership was formed, and it appears that he took no active part in the details of the management of George N. Fletcher & Sons. Mr. MacPherson, an expert accountant, testified that In a talk with Mr. Frank Fletcher with reference to how the name George N. Fletcher & Sons came to be chosen Mr. Fletcher stated that “he probably suggested the name himself.” No witness testified that George N. Fletcher ever said there was a co-partnership. The nearest that any one came to it was the testimony of plaintiff’s witness Le Roy, who said:

“I so understood it from the different members of the firm, and it was also general knowledge around the city that they were the members of the firm of George N. Fletcher & Sons.”

The bulk of the real estate of the business under investigation always stood in the individual name of George N. Fletcher. Seven deeds were introduced which it is claimed indicated a copartnership, and, with one exception, there is no proof that George N. Fletcher knew anything about this method of doing business. He did sign a deed dated February 1, 1897, from George N. Fletcher to George N. Fletcher & Sons, but when he signed it did not purport to describe the individuals as partners. Mr. Frank W. Fletcher, the plaintiff, inserted in his own handwriting after “George N. Fletcher & Sons” the language in this deed: “George N. Fletcher, Frank W. Fletcher, and Allan M. Fletcher.”

It is undoubtedly true that it was generally understood in Alpena, as Mr. Le Roy testified, that they were a copartnership, but as between the parties such reputation of a partnership is not sufficient to establish it. Prof. Wigmore, in his work on Evidence (volume 2, § 1624), says:

“The use of reputation to prove the existence of an agreement of partnership does not seem justifiable either by the necessity of the case or by the trustworthiness of the evidence.; for not only may testimony of the alleged partners, their admissions, and the written agreement, if any, be ordinarily obtained, but the possibilities of a misleading reputation are particularly strong. These considerations have been more than once clearly set forth judicially.”

While the plaintiff has failed to establish by competent evidence the existence of the copartnership, it is also convincing that the existence of such a partnership would be inconsistent with established methods of George N. Fletcher in doing business and his often-expressed desire to have his children share equally in the distribution of his estate. This intention was evidenced by a letter he wrote his wife and daughter some time in the 80’s the year not being definitely fixed, in which he said:

“Now, all I have belongs to us five in company, as much Grace’s as any one.”

That Mr. Frank Fletcher was also of that opinion is shown by a letter which he wrote his sister in which he said:

“To-day we none of us have anything as individuals. * * * I make no investments, Philippines or elsewhere, for myself.”

This letter does not bear date, but from its contents it is evident that it was written after the death of his father.

One of the items in dispute, a $500,000 credit on the books of the copartnership alleged to have been transferred from the private funds of George N. Fletcher as a gift, in our opinion, in view of the relations of Mr. Fletcher to his daughter and his expressed intention to have her share in all of his property, shows that Mr. Fletcher must have thought that his daughter was interested in that business and would not be deprived of her share by the transfer so made by him.

Being constrained to find that no copartnership has been established, many of the other questions with reference to an accounting as to various items discussed at length in the briefs are eliminated. The various accounts should be balanced as of the date of Mr. Fletcher’s death and a proper distribution of the $300,000 additional stock of the Fletcher Paper Company be made.

The decree of the lower court will be reversed, and a decree here entered in accordance with this opinion, with costs to the defendant, Grace Fletcher King, but without prejudice to the right of the parties hereto to have determined any claims they may have other than the existence of the general copartnership which is alleged in this bill of complaint.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    PEOPLE v. LA LONDE.
    1. Criminal Law — Trial—Taking Papers to Jury Room — Discretion of Court.
    It lies within the discretion of the trial court in a criminal case to permit papers and documents to be taken to the jury room for consideration of the jury.
    2. Same.
    Where there was a misunderstanding between opposing counsel in a criminal case as to what papers it had been agreed by them in open court should go to the jury room for the consideration of the jury, the trial court was in position to know what agreements were made by counsel, and its exclusion of certain papers could not be deemed erroneous.

      3. Same — Statutory Rape — Evidence — Admissibility — Witnesses — Credibility.
    In a criminal prosecution for rape, a question asked defendant on cross-examination as to whether he had been responsible for the birth of a child by a woman employed in his office a number of years prior to the offense charged, while inadmissible to show that defendant had been guilty of similar offenses, was admissible as affecting his credibility.
    4. Same — Trial—Argument oe Counsel — Appeal and Error.
    In a criminal prosecution for statutory rape, it was reversible error for the prosecuting attorney to state in his closing argument that, after the case was closed and the testimony all in, defendant’s attorney had declaimed against the prosecuting witness and pilloried her as a young prostitute, a liar, and an evil little thing, where the only basis for such statement of the prosecuting attorney was evidence tending to show that defendant’s attorney had called the prosecuting witness a liar.
    Error to Chippewa; Fead, J.
    Submitted January 10, 1917.
    (Docket No. 157.)
    Decided June 28, 1917.
    William S. La Londe was convicted of statutory rape and sentenced to imprisonment for not less than four nor more than twelve years in the State prison at Marquette.
    Reversed.

      M. M. Larmonth and F. T. McDonald, for appellant.

      Alexander J. Groesbeck, Attorney General, and Thomas J. Green, Prosecuting Attorney, for the people.
   Bird, J.

The respondent has assigned error on a judgment of conviction for the crime of statutory rape upon one Edith Innis at the city of Sault Ste. Marie, in the month of May, 1915.

Respondent is a resident of Sault Ste. Marie, and is 68 years of age, and at that time was engaged in the insurance business. It is claimed by the people that he arranged with Edith’s mother to have Edith come and assist him in his office after school hours, and that, on or about the 1st day of May, 1915, he had intercourse with her in his office. Upon reaching home Edith informed her mother that respondent had caressed and kissed her. By reason of this the mother refused to allow her to return to his office again. In December, 1915, she became ill and was taken to the hospital, where upon examination she was found to be pregnant. Then for the first time she disclosed to her mother that she had been intimate with respondent or with any other person. Respondent denies that he ever had intercourse with the girl, and claims that he was at the time sexually impotent, and had been for several years prior thereto, by reason of a severe injury which he received from the kick of a horse.

The first assignment of error is based upon the refusal of the trial court to allow the testimony taken at the examination and made a part of the return to be taken to the jury room. It is claimed, by respondent that the prosecuting attorney agreed in open court that the testimony might be taken to the jury room, but subsequently and after the jury had retired he withdrew his consent, and that by so doing it resulted in harm to respondent, as his counsel did not comment in the closing argument upon the variance in the testimony of the complaining witness as fully as they would have done had they not supposed the jury were to have the benefit of it while considering their verdict. Ordinarily when counsel consent, papers and documents are permitted by the court to be taken to the jury room. But it is not usual to permit this to be done when either party objects. Kalamazoo Novelty Manfg. Co. v. McAlister, 36 Mich. 330. The question, after all, is one of discretion with the trial court. Canning v. Harlan, 50 Mich. 320 (15 N. W. 492); Tubbs v. Insurance Co., 84 Mich. 646 (48 N. W. 296).

In the instant case a misunderstanding arose between counsel as to whether the entire return of the justice or only the testimony should go to the jury room. The trial court was in a position to know what agreements were made by counsel in open .court and what their respective claims were with reference to it. The court also had before him the fact that respondent’s counsel had the benefit of the testimony upon the cross-examination of the complaining witness, and called attention to the variance in her testimony at the trial from that given on the examination. Upon this situation the court exercised its discretion, and held that the testimony should not go to the jury room. We cannot say that the court was in error in so ruling,

Upon the cross-examination of the respondent the prosecutor asked the following question:

“Mri La Londe, were you responsible for the child born to a woman employed in your office about 7 or 8 years ago?”

Objection was made and overruled, and error is assigned thereon. Counsel say it was asked to create in the minds of the jury the belief that the respondent had been guilty of similar ¿ffenses as the one for which he was on trial. The testimony was not permissible for that purpose, but was competent as affecting the credibility of the witness. To allow it to be answered was within the discretion of the trial court. Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Threadgool v. Litogot, 22 Mich. 271; Beebe v. Knapp, 28 Mich. 53; Bissell v. Starr, 32 Mich. 297; People v. Whitson, 43 Mich. 419 (5 N. W. 454); Driscoll v. People, 47 Mich. 413 (11 N. W. 221); Leland v. Kauth, 47 Mich. 508 (11 N. W. 292); McBride v. Wallace, 62 Mich. 451 (29 N. W. 75); People v. Harrison, 93 Mich. 594 (53 N. W. 725); People v. Mulvaney, 171 Mich. 272 (137 N. W. 155); Totten v. Totten, 172 Mich. 565 (138 N. W. 257); Lunde v. Railway, 177 Mich. 374 (143 N. W. 45).

In his closing argument the prosecuting attorney said to the jury:

“The only thing that I recall having heard against her, gentlemen, is that after the case was closed, the testimony all in, respondent’s counsel declaimed against her and pilloried her before this community as a young prostitute, * * * as a liar, and as an evil little thing.”

This is assigned as error. Counsel insist that the statements were unwarranted, and that the tendency of this language was to unduly inflame the passions of the jury. It is asserted that counsel for respondent characterized the girl in his argument as a liar, and the record gives some support to this assertion, but we find nothing in the record to support the charge that respondent’s counsel pilloried the complaining witness as a common prostitute before the jury, or that they made any attack upon her character. It is conceded by both counsel that there is nothing in the record which would justify such an attack. The prosecutor does not offer much justification for the language complained of except to reiterate the charge. He makes no direct charge in his brief of the language used by respondent’s counsel. Inasmuch as it is not made to appear by the record that respondent’s counsel made any such attacks on the complaining witness, we must assume that they did not do so. In view of the delicacy of the situation for defendant and the fact that his conviction depended almost wholly upon the testimony of the girl, we think the language of the prosecutor was intemperate to the degree that it was injurious to respondent, and therefore reversible error.

Application was made for a new trial based principally upon newly-discovered evidence, and later a second or supplemental application was made, based upon a showing that one of the jurors in the case was an alien. Much of the briefs are devoted to the action of the trial court in denying these applications. As these questions are not likely to arise upon a new trial, it will be unnecessary to consider them.

For the error pointed out, the judgment of conviction will be reversed, and a new trial granted.

Kuhn, C. J., and Stone, Ostrander, Moore, and Brooke, JJ'., concurred. Steere and Fellows, JJ., did not sit.


author: Fellows, J. Ostrander, J.

text:
    ADLER v. JUDGE OF RECORDER’S COURT OF DETROIT.
    1. Courts — Municipal Courts — Equitable Jurisdiction.
    The recorder’s court of the city of Detroit has, under Act No. 326, Local Acts 1883, as amended, providing for such court, no equitable jurisdiction, and an order of such court that building contractors refrain from continuing with their work until such court reaches a decision in a case relating to a violation of the building code is the equivalent of an injunction in that it restrains such contractors from proceeding with the work of the erection of the building, and consequently is beyond the jurisdiction of such court, as the authority to. grant injunctions is inherent in a court of equity.
    2. Mandamus — Questions Considered.
    In mandamus proceedings to set aside an order of the recorder’s court of the city of Detroit restraining contractors from doing work on a building until a case in such court relating to a violation of the building code is decided, It will not be determined whether the department of buildings has acted wisely in neglecting to commence a proceeding in a court of equity. Ostrander, J., dissenting.

      Mandamus, by Jacob Adler and Benjamin Rush, to compel William F. Connolly, judge of the recorder’s court of the city of Detroit, to vacate an order restraining the construction of a building.
    Submitted June 26, 1917.
    (Calendar No. 27,985.)
    Writ granted July 18, 1917.
    /. Shurly Kenmry, for plaintiffs.

      James H. Lee, for defendant.
   Fellows, J.

Plaintiffs, having submitted their plans and specifications, received on October 21, 1916, from the department of buildings of the city of Detroit, pursuant to the building code of that city, a permit for the erection of a building at the northwest' corner of Woodward and Collingwood avenues, the building to consist of 7 stores on the ground floor and 14 apartments on the second and third floors. Plaintiffs let to various contractors the contracts involving the construction of the building, and on May 28, 1917, they allege in their petition, they had expended $60,-000 thereon. There seems to have been no complaint by the department of buildings as to the construction of the building, but upon the complaint of one Ross, a person wholly disassociated with such department, on May 25th, a summons issued out of the recorder’s court was served on plaintiffs, returnable May 28th, requiring them to answer such complaint for a violation of the building code. On the return day they appeared and asked for an adjournment of the case until June 4th. Their application for this adjournment was granted on condition that they discontinue work in the meantime. They allege they had no alternative under the order than to stop work or go to trial without preparation, and so consented to discontinue work until the 4th. On the 4th of June the case was adjourned to the 7th, then to the 11th, and from time to time since, and is still pending.

On June 7th defendant made an order that no more work be done on the building until the case was decided. The return does not clearly state whether this order was consented to or not, but it was conceded on the argument that this order was not consented to by plaintiffs, and the transcript of the proceedings' of June 11th shows that plaintiffs asked that such order be vacated, which request was refused by defendant.

It is sought by this proceeding to set aside the order of the recorder restraining plaintiffs from doing any more work on the building until the 'case is finally decided.

The recorder’s court of the city of Detroit was provided for by the charter of that city (Act No. 326, Local Acts 1883, as amended). It was not given equity jurisdiction, and we do not understand it to be claimed that it has such jurisdiction as a necessary incident.

The order of the recorder here involved operates as an injunction in restraining the plaintiffs from proceeding with the work of erecting their building. The authority to grant injunctions is inherent in a court of equity, but it is not inherent in the recorder’s court of the city of Detroit, nor is it given either by express grant or as a necessary incident to its power.

Authority is given the department of buildings by the terms of the building code to revoke permits, and to stop construction after notice and hearing; and the building code authorizes the department of buildings to proceed in a court of competent jurisdiction to restrain disobedience of such order to stop construction. This provision authorizes a proceeding in a court of equity at the instance of the department of buildings, but no such proceeding has been instituted. We cannot in this proceeding inquire whether the department of buildings has acted properly or not, much less may the judicial branch of the government assume to itself the discharge of those functions which, under the division of powers, belong to a co-ordinate branch, of the government.

The order of the recorder restraining the plaintiffs from proceeding with the construction of their building pending the hearing of the case brought against them for a violation of the building code and entered in that case was entirely without authority and should be set aside. The writ will issue as prayed. No costs will be awarded.

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

Ostrander, J.

(dissenting). The petition in this cause does not affirmatively state that the order complained about was entered in the recorder’s court, which is a court of record. It was assumed when the order to show cause was granted that there was of record an order of that court. At the hearing it was agreed by counsel that the order complained about, and which this court is asked to set aside, is not matter of record at all, and was an announcement or declaration of the recorder, resting wholly in parol. How it can be enforced as a restraining order is not obvious, and is not made to appear, nor how its recall can be effected by an order of this court. Proceeding no further, it is clear, I think, that the order to show cause should not have been made, and that the petition therefore should be dismissed.

There is another, and the real, aspest of the matter, which, in view of the opinion of Mr. Justice Fellows, I shall briefly consider. The recorder did not exercise, or assume to exercise, equity jurisdiction in the matter, nor to grant an injunction, nor to issue a restraining order. He assumed to grant a continuance, and successive continuances, of a cause of which jurisdiction had been assumed, upon condition, which condition was orally, and not otherwise, expressed, and it may be assumed that except with the condition no continuance would have been granted. He refused upon motion to set the condition aside. How the condition, as such, could be enforced, I do not know. It is not a point requiring any consideration. It is not pretended that there has been a violation of the admonition of the court, or an attempt to enforce it by any action of the court. The pretense is that plaintiffs are restrained by an order of court. There is no order of record. There is therefore none to be set aside or vacated by the order of this court. In this view I conclude also that the petition ought to be dismissed, with costs to the real respondent.


text:
    BUSH v. HAIRE.
    1. Partnership — How Created — Consent of Parties.
    Consent of all parties must be found in order to create a partnership relation, as between the parties, and it maybe express or implied, but it must be manifested o'r signified in some way, by writing, by parol, or by conduct.
    2. Same — Relation of Parties — Burden of Proof.
    In an attempt to establish a partnership inter se the burden rests upon the partner attempting to prove it.
    O. Same — Evidence—Sufficiency.
    A partnership inter se must be established by preponderating evidence.
    4. Same — Accounting—Evidence—Sufficiency.
    On a bill for an accounting of alleged copartnership moneys and for a dissolution of the alleged partnership, evidence held, insufficient to show a general partnership for engaging in the real estate business.

      5. Pleading — Partnership—Joint Adventure — Variance.
    A decree granting relief to plaintiff should he reversed and a decree dismissing a bill of complaint - for an accounting of alleged partnership money without prejudice to plaintiff to institute proceedings for relief on the theory of joint adventure should be rendered, where such hill was framed on the erroneous theory that a general partnership for engaging in real estate business existed, when it should have been framed on the theory of joint adventure.

    Appeal from Charlevoix; Sullivan, J., presiding.
    Submitted January 19, 1917.
    (Docket No. 79.)
    Decided July 26, 1917.
    Rehearing denied December 28, 1917.
    Bill by Stanley A. Bush against Clark Haire and another for the dissolution of a partnership and for an accounting. From a decree for plaintiff, defendants appeal.
    Reversed:

      Clink & Williams, for plaintiff.

      Harris & Ruegsegger (Geer, Williams & Martin, of counsel), for defendants.

      On effect of agreement to share profits as creating a partnership, see comprehensive note in 18 L. R. A. (N. S.) 963.

   Kuhn, C. J.

It is the plaintiff’s contention that on or about May 15, 1911, he and the defendant Clark Haire, at that time residents of the city of East Jordan, entered into a copartnership for the purpose of dealing in real estate, purchasing and selling and aiding in the purchasing and selling of real estate,-timber lands, lumber and timber and options thereon; that the firm name was to be Bush & Haire and all purchases and deals of the firm were to be made in the' name of Mr. Haire or Mr. Bush, or in the name of Bush & Haire, and that all land, timber lands, lumber, and timber were to be partnership property, regardless of whether they were purchased in the name of Bush & Haire, Stanley A. Bush, or Clark Haire; that the partnership was to continue for an indefinite time, and that they were to share the profits and losses equally. The bill prays for an accounting of the alleged copartnership moneys by Clark Haire, for a dissolution of the copartnership and for a decree that the defendant Clark Haire pay any sum or sums found to be due the plaintiff upon an accounting. The defendant denies that any general copartnership existed, and says that all his dealings with the plaintiff were 'separate and distinct transactions, and that Mr. Bush never had any interest in any of the sales or options, unless he performed some service in connection with the sale, and in the deals in which they were jointly interested any profit resulting therefrom has been divided with Bush. In this case we have the benefit of the testimony of the parties in interest, and a square question of fact is presented. The trial judge, after hearing the testimony, in his findings sustained the contention of the plaintiff and found the existence of such a copartnership.

In approaching the consideration of this question of fact the first and basic principle underlying a copartnership should be held in mind, namely, that consent of all the parties must be found in order to create such a relation. It may be expressed or implied, but it must be manifested or signified in some way, by writing, by parol, or by conduct. Mr. Justice Cooley concisely said in Beecher v. Bush, 45 Mich. 188, at page 193 (7 N. W. at page 785, 40 Am. Rep. 465):

“If parties intend no partnership the courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners; and any such case must stand upon its peculiar facts, and upon special equities.”

And again, on page 200, he says:

“* * * Except when one allows the public or individual dealers to be deceived by the appearances of partnership' when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be found. And what are these? At the very least the following: Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers within the scope of the business, which powers however by agreement between the parties themselves may be restricted at option, to the extent even of making one the sole agent of the others and of the business.”

In a somewhat similar and more recent case (Miller v. Casey, 176 Mich. 221, at page 228 [142 N. W. 589, at page 591]) Chief Justice Steere said the following:

“It is true that a court of equity may hold real estate standing in the name of individual partners to be partnership property, where the acts, words, and conduct of the parties show it to have been treated as such, and that such was their thought and intent; but this must be convincingly established by clear, preponderating evidence.”

Having also in mind the well-established rule that in an attempt to establish a partnership inter se the burden rests upon him who seeks to prove it, and that it must be established by preponderating evidence, we do not think that this record can be read and the conclusion arrived at that it was the intention of the parties involved to engage in a general copartnership for the purposes set forth by the plaintiff in his bill. It would not be profitable to attempt to review all the testimony, but it will be sufficient to call attention to some of the considerations that have forced this conclusion. No written instrument or memorandum in writing is produced to establish it, and the proofs in support of plaintiff’s contention rest entirely upon the alleged parol agreement and certain alleged admissions by the defendant. The testimony of the plaintiff to sustain his contention is as follows:

“Q. Well, Mr. Bush, tell the whole conversation; everything you talked about.
“A. We made an agreement to handle real estate and timber lands and options and commissions on lumber, and the partnership was formed for an indefinite length of time, and the losses were to be divided equally and the profits, if any, were to be equally divided and the title to the different properties that we purchased were to be taken in the names of Mr. Haire or myself, or in the name of Bush & Haire.
“Q. How did you arrive at the name of Bush & Haire?
“A. Mr. Haire suggested that name.”

This conversation was supposed to have taken place on or about the 15th of May, 1911, in the home of the plaintiff and in the presence of his wife. The exact date is not fixed. Mrs. Bush testified in reference to this as follows:

“I recall Mr. Bush and Mr. Haire talking of going into business together at our home in South Arm in the spring of 1911. It was about real estate and timber, and the fact that they were to divide the profits and losses equally. They discussed different pieces; Mr. Haire was interested, discussing things that he thought was good business in the south where he had just returned from; he spoke of the dyeing business and the furniture business, and spoke of the possibility of profits in that. Mr. Bush spoke of the timber business and the profits in that; possible profits. They discussed the different Ward lands and possible Porter lands, and the profits on those. And the name of the firm was to be Bush & Haire, and the title was to be taken in any of their names; either Bush & Haire, or Clark Haire, or Stanley A. Bush. Mr. Bush and Mr. Haire and myself were present, although I was in the adjoining room. I don’t know how they came to agree on the firm name. Afterward I heard conversation between my husband and Mr. Haire in regard to business transactions in relation to timber and lumber very frequently. They were to our house a great deal, and we were at their house at times. When a deal had been completed there was discussion concerning that, to the exclusion of almost everything else. Mrs. Haire was present on a great many occasions.”

It is true that the parties had a joint interest in several deals and land transactions, but taking all the facts as shown by the record into consideration, it is convincing that each transaction was a deal in itself separate and distinct, and that the profits of no one of the deals was computed with another.

Much testimony was offered by the way of proof of the introduction by Mr. Bush of Mr. Haire as a partner to third persons, and it is contended that the statements of Mr. Bush that he was a partner and Mr. Haire’s failure to deny at the time that he was a partner when introduced as such was an admission. In view of the fact that the parties were interested in several joint undertakings, the use of the term “partner” might aptly be applied to their relations in any one of the undertakings in which they were jointly interested, and yet would lack much of being an admission of a general copartnership such as is here attempted to be established. It may be said of the use of the word “partner” under these circumstances, as was said in the case of Brotherton v. Gilchrist, 144 Mich. 274 (107 N. W. 890, 115 Am. St. Rep. 397), by Chief Justice Carpenter:

“* * * Under the circumstances we think that it is merely an instance of the use of inexact words to describe a relation which was not that of a partner.”

The evidence shows that both Bush and Haire, during the period of the alleged copartnership, were on friendly terms, and each was an experienced business man. In our opinion it is an important circumstance emphasizing the nonexistence of such a copartnership denied by the defendant that no written agreement was ever made. It is also very strange that if a partnership name was adopted, as claimed by the plaintiff, it was never used by the parties themselves in their correspondence, and the public was in no way advised that there was a partnership under that name. Under the circumstances of this case the settlement of the different ventures, separate and distinct, was contrary to the idea of a general copartnership' relation, which comprehends all such partnership' ventures. No firm books of account were kept during the four years of the existence of the alleged copartnership, and no letter heads were used by them containing the firm name. As to three other deals which were not immediately closed by settlements written memoranda were made by the parties defining their respective rights, which is also in our opinion inconsistent with the idea of a general copartnership. There was no general partnership fund created, and in fact the terms of the alleged copartnership are so vague and uncertain that it does seem probable that it could have been the intention of these experienced business men. to enter such an undertaking with reference to all their land dealings covering the years in question. A careful study of this record forces the irresistible conclusion that such dealings as the parties had with one another were a series of independent transactions, each separate and distinct from the others, concerning which no general copartnership existed. See Wells v. Babcock, 56 Mich. 276 (22 N. W. 809, 27 N. W. 575). It may be here said in the words of Chief Justice Campbell, found in Pulford v. Morton, 62 Mich. 25, at page 28 (28 N. W. 716, at page 717):

“The vagueness of the whole arrangement, as testified to by complainant, would of itself render it improbable that any definite partnership arrangement was understood by both parties to have been made. The circumstances do not corroborate it, and it is clearly and absolutely denied by defendant, who claims complainant was not a partner, but acting on some brokerage or commission agreement. In such, a conflict we think we should not be justified in finding a general partnership, and still less in finding that it was definite enough to act upon. We do not think it proven.”

The plaintiff’s bill of complaint is framed solely on the theory of a general copartnership and relief can therefore only be granted on that theory, as was clearly pointed out in Miller v. Casey, supra. The plaintiff having, in our opinion, failed to establish a general copartnership by preponderating evidence, it follows that the decree of the lower court should be reversed and a decree here entered dismissing the bill of complaint, with costs to the defendants, but without prejudice to the plaintiff to institute such proceedings as he may deem proper to obtain relief on the theory of joint adventure.

Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred. Moore, J., did not sit.


text:
    WAVERLY PARK AMUSEMENT CO. v. MICHIGAN UNITED TRACTION CO.
    1. Landlord and Tenant — Trade Fixtures — Removal.
    A tenant has a right to remove trade fixtures, hut he must do so while still in possession under his lease, unless the time for doing so has been extended.
    2. Same.
    A tenant need not remove his trade fixtures so long as he has a right to occupy the premises with the same, and if he puts up trade fixtures under his first lease and then obtains the right to continue in possession under subsequent leases, making Ms occupancy continuous, lie need not take his fixtures away until his tenancy ends.
    3. Trade Fixtures — Wi-iat Constitutes.
    To constitute any chattel that has been attached to the freehold a trade fixture, it is only necessary that it be devoted to what is known in the law of fixtures as a trade purpose.
    4. Landlord and Tenant — Trade Fixtures — Right op Tenant to Sell.
    Where trade fixtures were placed on the premises during the term of the lease by a tenant and he continued in possession as sublessee under a lease from the successor to the lessor he did not lose his right to the fixtures, and he could sell them during the second term.

    5. Same — Trade Fixtures — Right to Purchase op Sublessee.
    A lessee may purchase trade fixtures or amusement devices from a sublessee under a prior lease.
    Appeal from Ingham; Wiest, J.
    Submitted January 5, 1917.
    (Docket No. 39.)
    Decided July 26, 1917.
    Bill by the Waverly Park Amusement Company against the Michigan United Traction Company to restrain defendant from interfering with plaintiff’s leasehold rights. From a decree for plaintiff, defendant appeals.
    Affirmed.

      William K. Sagendorph, for plaintiff.

      Sanford W. Ladd (Charles E. Lewis and Warren, Cady, Ladd & Hill, of counsel), for defendant.

      Authorities passing on the question of effect of renewing tenancy without reserving right to remove trade fixtures are collated in notes 1 L. R. A. (N. S.) 1193; 17 L. R. A. (N. S.) 1135; 48 L. R. A. (N. S.) 294.

   Stone, J.

This is an injunction bill, praying that defendant be restrained from destroying, removing, or interfering in any way with the property or rights of plaintiff, or shutting off or interfering with its supply of electricity, or interfering with its rights under a certain contract of lease between the Michigan United Railways Company and the plaintiff, referred to in the bill of complaint. A temporary injunction was granted, and later upon final hearing of the issue, upon pleadings and proofs in open court, the temporary injunction was made permanent, subject to the terms of the lease under which plaintiff held, with costs to the plaintiff. It appears that the contract between the parties has now expired by limitation, leaving only the question of costs and of the right of plaintiff to file the bill in the first instance. A careful consideration of the record and arguments, of counsel has led us to the conclusion that the learned trial judge who heard the case made a proper disposition of it and of the questions involved. He filed a written opinion, which so fully and so clearly covers the issues that we here insert it, with our approval. It Is as follows:

“The contract rights of the Waverly Park Amusement Company appear in the lease made to it by the Michigan United Railways Company on the 28th day of March, 1907.
“That lease granted to the complainant such part of the premises described in the lease ‘as are necessary and occupied with its figure eight roller coaster, and such other amusements which it has, or shall erect on said premises. * . * * And party of the second part does hereby hire the said premises for the seasons of 1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, for the purpose of building, owning and operating a figure eight roller coaster and other amusement devices.
“ ‘Party of the first part further agrees to furnish to the said party of the second part all the electrical current necessary for the purpose of operating and lighting the said amusement devices, including the figure eight roller coaster, which the said second party shall operate,’ at a rate stipulated in the lease.
“ ‘That the said figure eight roller coaster and other amusement devices which may be erected by the said party of the second part on the premises, * * * shall remain and be the property of the said party of the second part and shall in no wise become attached or part of the premises heretofore described, or the property of the said party of the first part.’
“The lease between the Michigan United Railways Company and H. Pearl French and Millard Densmore, dated April 17,1908, was a letting to them from January, 1909, to January 1, 1910, of the premises in question subject to the rights of the Waverly Park Amuse-ment Company under its lease. This lease was in effect renewed by new leases of the Michigan United Railways Company and its grantee, the Michigan United Traction Company, giving Mr. French the right of occupancy and use of the premises for his amusement devices and fixtures up to the 1st day of January, 1913. Up to the 1st day of January, 1913, there was no occasion for Mr. French to remove his trade fixtures unless he intended to surrender the possession of the premises, and that he did not intend to surrender possession is conclusively shown by the . fact that he retained possession under a lease for the year 1913 from the Michigan Catering Company. During the season of 1913, the Waverly Park Amusement Company owned and operated only the roller coaster.' Mr. French operated the amusement places, owned by him at the park, during the season of 1913 under a lease from the Michigan Catering Company, a lessee of the Michigan United Traction Company, and in September, 1913, Mr. French sold his trade fixtures or places of amusement to the Waverly Park Amusement Company.
“The law is well settled in this State that a tenant has a right to remove trade fixtures, but he must do so while still in possession under his lease, unless the time for doing so has been extended.
“The law is equally well settled that the tenant need not remove his trade fixtures so long as he has a right to occupy the premises with the same, and that if he puts up trade fixtures under his first lease, and then obtains the right to continue in possession under subsequent leases, making his occupancy continuous, he need not take his fixtures away until his tenancy ends.
“The rule is different in some of the States, but Michigan does not hold that trade fixtures pass to the landlord or become a part of the realty until the lessee surrenders Ms right of occupancy, and if that right does not end with one lease, but is continued under renewals by way of new leases, having practically the same Mnd of tenancy in view, he may wait until his agreed use of such fixtures is near an end and remove Ms fixtures at any time before the expiration of his leased right of occupancy.
“Under the evidence Mr. French had a right of occupancy of the premises during the season of 1913; in fact, his occupancy under lease had been continuous from the 1st day of January, 1909, and under its lease to the Michigan Catering Company the defendant had granted that company the right to grant Mr. French the possession he held until the 1st day of January, 1914.
“The buildings erected were not fixtures, when erected, and the question is whether they became fixtures by reason of nonremoval. Instead of removing the trade fixtures during his term Mr. French sold the same to the complainant. It has been held that the tenant’s right to remove fixtures continues during his original term, and during such further period of possession by him as he holds the premises under a right to consider himself tenant. Kerr v. Kingsbury, 39 Mich. 150 (33 Am. Rep. 362).
“‘To constitute any chattel that has been attached to the freehold a trade fixture, it is only necessary that it be devoted to what is known in the law of fixtures as a trade purpose. * * *
“ ‘The form or size of the annexed chattel is immaterial; large buildings, such as stores, barns and ice houses, * * * have been held trade fixtures.’ Bronson on Fixtures, p. 186.
“Mr. French never lost his right to his trade fixtures up to the time he sold them, and at that time he had a right to sell the same.
“The Waverly Park Amusement Company, under its lease might have built all of the structures in question and have owned and operated them.
“Defendant claims that complainant could not buy erected structures upon the premises, and can only erect structures. This would lead to an absurdity, for complainant might, even under defendant’s contention, have bought the buildings, taken them down, and at once rebuilt them and have the same protected under the lease.
“Under the lease of the complainant, it matters not how such places of amusement have come upon the premises so long as they are not the property of the defendant, for the lease expressly permits added places to occupy the premises, and defendant under its lease gets its stipulated per cent, of the gross receipts of the same.
“I am aware of the peculiar terms of the lease granted to Mr. French by the Michigan Catering Company, but, having in view all of the circumstances surrounding the making of such lease, I am of the opinion that it was in effect a continuation of the occupancy theretofore granted Mr. French by the Michigan United Traction Company.
“I am unable to find that Mr. French at any time surrendered his fixtures to the defendant, or that he lost his right of occupancy, so that such fixtures attached to the realty, and unless such fixtures passed from the ownership of Mr. French to the defendant, the Michigan Catering Company could not lease the same to Mr. French.
“Construing this lease between the Michigan Catering Company and Mr. French, in view of all the circumstances, having in mind that Mr. French never lost his right to his fixtures, the court is compelled to hold that this lease does not estop Mr. French from asserting his ownership of the fixtures up to the time he made the sale to the complainant.
“The trade fixtures did not pass to defendant by reason of Mr. French’s taking a lease of the same from the Michigan Catering Company. Such lease could not, by implication, pass title to the fixtures, and the ownership must be determined independent of such lease. If there had been some evidence of surrender of the fixtures to the landlord, then such lease by Mr. French would constitute pretty conclusive evidence against French, but in the face of the evidence of continuous possession and of nonsurrender, the lease does not establish ownership in defendant.
“It follows that the trade fixtures never became ah tached to the realty, and have not passed to the landlord, and defendant at this time has no right to interfere with, the same, and such fixtures have passed to complainant with the right of occupancy of the premises, and of the use of the same thereon, during its tenancy.
“Defendant denies that it has had anything to do with the removal of the buildings taken away, or with shutting off the stipulated supply of electrical current.
“Its lease to complainant affords complainant the right of quiet and peaceable possession as against any act of the defendant, and it is fair to assume that if defendant’s lessee, the Michigan Catering Company, asserts the right to remové the buildings, it is by reason of the claim made here by the defendant that the Michigan Catering Company should have been made a party defendant in this case, in order to afford the complainant all the relief necessary, but the complainant is entitled to relief as against the defendant.
“Let the defendant be restrained from tearing down or removing the trade fixtures in dispute, and let the temporary injunction herein be made permanent. Subject, however, to all the terms of the lease under which complainant holds and as herein determined by the court.”

In addition to the authorities cited by the circuit judge we add the following cases in this court: Osborn v. Potter, 101 Mich. 800 (59 N. W. 606); Hayward v. School District, 139 Mich. 539 (102 N. W. 999); Higginbotham v. Phillips, 192 Mich. 49 (158 N. W. 130).

In our opinion Kerr v. Kingsbury, supra, and these cases are decisive of the instant case.

' We have examined the numerous Michigan cases cited by defendant’s counsel, but do not think them controlling here, as the facts therein are readily distinguished from the facts in the instant case. As we understand defendant’s position, it is that plaintiff not only had no title to the buildings and improvements in question, but that the lease of March 28, 1907, gave it no right to occupy them, or the premises on which they stood, and that defendant, as the successor of the Michigan United Railways Company, was entirely within its rights in ridding the park property of the buildings and improvements in question. And, further, that it claims that in each instance the buildings or structures became a part of the realty when erected, and that title passed absolutely to the owner of the soil, at the termination of the leases, under which they were erected, the buildings and structures not having been removed by the respective tenants. In our opinion these claims are not tenable. That the lease of March 28, 1907, gave plaintiff the right to occupy that part of the park upon which the structures in question stand there can, we think, be no question. We think, also, that these structures did not become a part of the realty, but were treated and considered as chattels, and that the evidence shows that before the termination of the lease under which Mr. French operated, he sold and transferred the property embraced in his bill of sale of September 23, 1913, to the plaintiff, and the latter continued in possession.

Much importance is attached by defendant to what is termed lapses in the several leases. It should, however, be borne in mind that Mr. French, or the plaintiff, continued in possession of the property, their rights therein were recognized, and not questioned by defendant; but, on the other hand, on January 27, 1914, inquiry was made by defendant of Mr. French as to the lowest possible amount he would accept for the property owned by him at Waverly Park. And on April 6, 1914, he was formally requested to remove from the premises “all buildings, materials and structures belonging to you on said premises, on or before May 1, 1914.” The chief importance which we attach to these acts is the understanding of the defendant as to whether the structures had become the property of the owner of the soil. We think that the finding of the circuit judge as to the continuous possession of Mr. French from the 1st day of January, 1909, and that "under its lease to the Michigan Catering Company, the defendant had granted that company the right to grant to Mr. French the possession he held until the 1st day of January, 1914,” was fully warranted by the evidence. The following language; quoted from Kerr v. Kingsbury, is, we think, pertinent here:

"But why the right should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease is not very apparent. There is certainly no reason of public policy to sustain such a doctrine; on the contrary, the reasons which saved to the tenant his right to fixtures in the first place are equally influential to save to him on a renewal what was unquestionably his before. What could possibly be more absurd than a rule of law which should, in effect, say to the tenant who is about to obtain a renewal:
‘“If you will be at tbe expense and trouble, and incur tbe loss of removing your erections during tbe term, and of after-wards bringing them back again, they shall be yours; otherwise you will be deemed to abandon them to your landlord.’”

We are of the opinion that the decree of the circuit court was right, and it is therefore affirmed, with costs to the plaintiff.

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