text:
    Leonard Eyke, Treasurer of the City of Muskegon, v. Herman O. Lange, Cashier of the Merchants’ National Bank of Muskegon.
    [See 90 Mich. 592; ante, 19.]

      Taxes — Bank stock — Mandamus—Action against bank.

      Mandamus will not lie to compel the cashier of a bank to pay the taxes assessed upon the shares of its capital stock under the tax law of 1889, there being an adequate remedy by distress, or by an action at law against the bank, for the collection of said tax.
    Rehearing, by order of the court, of mandamus case reported in 90 Mich. 592.
    Argued February 26, 1895.
    Former decision affirmed June 4, 1895.
    The facts are stated in the several opinions.

      Brown & Lovelace, for relator.

      G. W. Sessions (F. W. Goolc, of counsel), for respondent.
   Hooker, J.

’ The facts in this proceeding appear in the former decision of this Court, reported in 90 Mich. 592. The subject-matter was again before the Court, in another form, in City of Muskegon v. Lange, ante, 19. The earlier case is now here upon rehearing, and the question before us is whether mandamus should issue to compel the cashier of a national bank to pay taxes assessed against a stockholder upon his stock of said bank.

This tax appears to have been assessed under the law of 1889. (See 90 Mich. 592.) Section 33 makes it the duty of the cashier to pay such tax, and this has been held tornean that the bank shall pay such taxes upon notice to-the cashier. Section 34 provides for the collection of taxes-by action at law or distress. It is true that this section, strictly construed, would limit the right to actions against-the persons assessed; but a reasonable construction of the-two sections, taken together, would warrant resort to an action at law against the bank, and this construction is justified by the language of Mr. Justice Cooley, that—

“It has been shown that taxes are not 'debts5 in the-ordinary acceptation of that term, and that the statutory measures are to be resorted to for their collection. Generally, no others are admissible. But the remedy by suit-may be given by statute either directly or by implication. If no specific remedy is expressly given, or only an imperfect or inadequate one, the presumption that a remedy by suit was intended is but reasonable. Nothing need be said regarding the proceedings in such suits beyond this: that-they would take the ordinary course prescribed by law for the collection of money demands, except as the statute may have otherwise provided." Cooley, Tax'n (1st ed.), p. 300. See, also, Id. (2d ed.) pp. 15, 16.

Here the law makes it the duty of the cashier (i. e.,.. the bank) to pay. In such case, under the above authority, an action would lie; -and especially would it be held proper in view of section 34. In Bank v. Douglas Co., 3 Dill. 330, it was held by Dillon, J., that in a similar case the tax might be enforced by distraint upon the property of the bank. The statute of Nebraska, which applied to the case, provided that the taxes against such shares shall be levied against the holder of the same, in the list of personal property, and shall be paid by the bank.” Apparently, the statute of Michigan affords a more complete remedy than that of Nebraska. The significance of this is that, there being another adequate remedy, mandamus will 'not lie. It is a rule of general application that mandamus is not to be resorted to if another adequate remedy exists. Merrill, Mand. § 17. This has been repeatedly held in this State. People v. Jackson Circuit Judges, 1 Doug. 302; People v. Branch Circuit Judges, Id. 319; People v. Wayne Circuit Judge, 1 Mich. 359, 19 Id. 296; People v. Allegan Circuit Judge, 29 Id. 487; Burt v. Wayne Circuit Judge, 82 Id. 251.

Mandamus is not adapted to the collection of debts, and is not to be used for that purpose. Merrill, Mand. § 17. And, if it be said that a tax is not a debt, the fact remains that questions are likely to arise, where the legality of a tax is disputed, which cannot well be tried in such proceeding. It is also significant that the law does not provide for such method of collection. It is strenuously urged in behalf of relator that the law does not provide for collection against the bank by action; but it is inconsistent to give such a reason for invoking a remedy upon which the statute is also silent.

Cases are rare where mandamus has been sustained for the collection of taxes. Our attention is called to five,— three from Maryland, one from Illinois, and one from Vermont: Emory v. State, 41 Md. 38; State v. Mayhew, 2 Dill, 487; Barney v. State, 42 Md. 480; McVeagh v. City of Chicago, 49 Ill. 318; Town of St. Albans v. National Car Co., 57 Vt. 68. In Barney v. State the propriety of the remedy by mandamus appears not to have been discussed. The earlier case of Emory v. State, 41 Md. 38, expressly refers to State v. Mayhew as authority for the proceeding. In that case the proceedings were sustained, but it was expressly decided upon the ground that mandamus was the only existing remedy.

McVeagh v. City of Chicago arose under a statute authorizing banks to pay the taxes of stockholders from their dividends. It was held that the bank might be compelled to appropriate the dividends to pay the taxes. It does not appear that the statute provided any procedure or remedy, or that there was a liability upon the bank other than the duty to appropriate dividends to payment. In this case the question before us is discussed only so far as to assert the right of the state “to use all the means, summary or otherwise, not prohibited by a higher power, to collect them,” and that mandamus is among them. The case of State v. Mayhew is cited, and approved in general terms. The statement that the state is entitled to use any method not prohibited, unless it refers to a statutory right, is at variance with the doctrine of a cloud of cases cited by Mr. Justice Cooley in his work on Taxation to the contrary. Cooley, Tax'n (2d ed.), 15, 16, and note.

In Town of St. Albans v. National Car Co. the court admitted that the writ should not issue if the petitioner had an adequate remedy at law. It expressed doubt of the-right of action against the bank, and intimated that an action at law would not be an adequate remedy because too slow.

If this remedy exists, it must be because the defendant is a corporation; for taxes assessed against a private person cannot be collected by mandamus. See Merrill, Mand. § 23, and cases cited; Id. § 156. Mandamus will lie against a private corporation when it owes a public duty arising out of its franchises. Id. § 159. But this is only in cases-where there is no other adequate remedy. Id. § 163. In Person v. Railroad Co., 32 N. J. Law, 441, mandamus to •compel payment of taxes issued where there was no other remedy.

This tax might have been collected by distress, or action .against the bank, and we have already held that it could not be collected by action against the cashier. But, where there is another adequate remedy, there would seem to be no greater necessity for the use of this remedy in cases of •corporations than in those of private persons; and there are the same objections. We are convinced that mandamus is not a proper remedy against either, and that the order ■denying the writ was right.

The writ should be denied, with costs.

McGrath, C. J., and Long, J., concurred with Hooker, J.

Grant, J.

(dissenting). I think the writ of mandamus should issue for the reasons stated in my opinion in the case of City of Muskegon v. Lange, ante, 22. It is matter •of common knowledge that the cashier of a bank is usually its managing officer, has the control of its funds and books, and is familiar with its affairs and the condition of its stock. For this reason, the Legislature made it the •duty of this officer to pay the taxes assessed against its .stock, not as an individual, but as an officer of the bank, and the proper custodian of its funds, its stock, and the dividends arising therefrom. As shown in my former •opinion, he can make any legal defense which the stockholders or the bank could make in suits instituted against them. If the State possesses the right to compel the bank to pay the taxes upon its stock, it certainly possesses the right to provide that such taxes shall be paid by the proper •officer or officers of the bank. Mandamus is the proper remedy to compel an officer to perform a duty imposed upon him by statute. Whatever may be the decisions of other courts, this Court has repeatedly granted the writ of mandamus where another remedy existed. I think this speedy remedy should be applied in so important a matter as the ■collection of the public revenue, where an officer of a corporation is made the legal medium through which such funds are to be collected. Since the validity of the tax is denied by the answer, issues should be framed and sent ■down for trial.

Montgomery, J., did not sit.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Elias D. Williams et al. v. Stephen D. Barber.

      Waters and ivater-eourses — Flooding lands — Prescriptive right.

    The owner of a dam and the water power thereby created maintained the dam at a certain height for more than 15 years, and thereby, without complaint from the owners, flooded their lands. And it is held that he thereby acquired title to the lands, so far as the right to flood the same was concerned, as fully as if such right had been conveyed to him by deed.
    Appeal from Barry. (Padgham, J., presiding.)
    Argued January 8 and 9, 1895.
    Decided February 12, 1895.
    Bill to enjoin defendant from maintaining his dam at a -certain height. Complainants appeal.
    Decree affirmed.
    'The facts are stated in the opinion.

      Walter S. Powers, for complainants.

      Taggart, Knappen & Denison, for defendant.
   Long, J.

The complainants, 11 in number, are the •owners in severalty of land lying along the Thornapple ■.river, in the counties of Eaton and Barry. The defendant is the owner of a flouring mill in the village of Nashville,, in Barry county, and of a water power maintained by a dam across said river. The bill is filed to enjoin the defendant from maintaining the dam at its present height, which, it is claimed, sets the water back, and overflows the complainants’ lands. It is claimed that for the-period of five years last past, and upwards, the defendant has kept raising the dam, narrowing up the sides, and filling in, thereby raising the water and flooding the complainants’ lands to a greater extent from year to year. The defendant contends that the dam has been kept at a-uniform height for the last 15 years, and upwards, prior to the filing of this bill, in September, 1892. The testimony was taken in open court, and a decree there entered dismissing complainants’ bill.

It appears that the dam has been built for over 40 years. In 1871, Philip Holler, defendant’s grantor, repaired it, and he claims that he then only restored it to its original height. Defendant claims that since that time the height, has not been increased, except about a year before this-bill was filed, when he heightened the center by nailing on a. plank four inches in thickness, for the purpose of keeping-gravel from washing over; but that, several months before the bill was filed, he removed this plank. Defendant also-claims that, if the complainants’ lands have been more-flooded in the last few years, it was not occasioned by an increased height -of the dam, but by the action of the public authorities, who, in 1881, built an iron bridge across-the river about 650 feet above the dam, and, in the construction of the bridge, narrowed the channel of the river from 150 feet to about 75 feet, by a fill for the bridge-abutments.

A large number of witnesses were sworn in the case. We have carefully examined the testimony, and from it-find:

1. That, in 1871, Philip Holler, defendant’s grantor, repaired the dam, and then fixed its height; but whether he planed it at a greater height than formerly is not material.

2. That since that time, and for more than 15 years prior to the filing of this bill, the height of the dam has not been increased, except for a few months, when defendant placed the four-inch plank thereon, but that said plank was removed before this bill was filed.

3. That, if complainants’ lands have been since overflowed to a greater extent, it was occasioned by the narrowing of the river in building this bridge.

4. That as defendant and his grantors established the height of the dam in 1871, and have kept and maintained it at that height, without complaint from the complainants, for more than 15 years before this bill was filed, the defendant thereby acquired the prescriptive right of flow-age at that height.

The rule is well settled that the exercise of the right of fiowage for 15 years and upwards creates a prescriptive right, and gives title to the property, so far as the right to flow is concerned, as fully as if the right were conveyed by deed. Conklin y. Boyd, 46 Mich. 56; Gregory v. Bush, 64 Id. 37; Shearer v. Middleton, 88 Id. 621; Hoag v. Place, 93 Id. 450; Cornwell Manfg. Co. v. Swift, 89 Id. 503, 519. The court below was right in dismissing complainants’ bill.

The decree must be affirmed, with costs.

The other Justices concurred.


author: McGrath, C. J.

text:
    John Jenkinson v. The Auditor General and Mrs. Frank Roberts.

      Taxes — Sale — Report — Validity of deed — Decree—Setting aside sale — Payment of judgment.

    1. Certain provisions of the tax law of 1889, relating to the sale of delinquent tax lands, are construed as follows:
    a — The report of sale required to be made by the county treasurer, when filed with the county clerk, where the statute contemplates it is to remain, operates as notice to all parties concerned, and said report cannot be regarded as having been thus filed when it is attached to the tax record, which the statute requires, after the entry of decree, to be delivered to the county treasurer, in whose office it is thereafter to remain.
    b — Although the filing of said report is chronologically a condition subsequent to the sale, such filing, for the purposes of giving effect to the deed and the vesting of title, must be treated as a condition precedent.
    c — The purchaser is bound to see that the law has been complied with, and the report of sale cannot, after the period of redemption has expired, be amended.
    d — The failure to enter an order pro eonfesso before decree is a mere irregularity.
    e — Where the statutory decree is signed by the judge, countersigned by the clerk, and entered in the chancery record, the statute in that regard is fully satisfied.

    2. The purchaser of certain State tax lands applied to the circuit court, in chancery, in which the tax proceedings were had, for a writ of assistance to put her into possession of the land, whereupon the original owner of the land filed a counter petition to set aside the sale and deed because of certain alleged defects in the proceedings to foreclose the tax lien. Notice of the hearing of the petition was given to the Auditor General and the purchaser. Objection was made that, inasmuch as the rights of a third party had intervened, the remedy of the petitioner was by an independent bill. And it is held that the object of a separate proceeding is to bring in the intervening party; that the purchaser was already before the court in the original proceeding, and no good reason exists why the questions raised may not be disposed of in said proceeding.
    :3. In such a case the decree setting aside the sale should require the petitioner to refund to the purchaser the amount by him paid, with interest.
    Appeal from St. Clair. (Vance, J.)
    Submitted on briefs October 4, 1894.
    Decided February 12, 1895.
    Petition to set aside a sale and deed of certain lands for ■the taxes of 1889. Eespondent Boberts appeals.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Hovey é Muir, for appellant.

      Frcmlc Whipple, for petitioner.

       For cases involving questions arising in proceedings under the tax law of 1889 for the sale of delinquent tax lands, see Cole v. Shelp, 98 Mich. 56, and note; Millard v. Truax, 99 Id. 157; Watts v. Bublitz, 99 Id. 586; Fowler v. Campbell, 100 Id. 398; Taylor v. Deveaux, 100 Id. 581.

   McGrath, C. J.

Petitioner’s lands were sold for the taxes of 1889 under Act No. 195, Laws of 1889, and bid 'in by the State. Mrs. Frank Boberts took a deed from the State, and upon demand for possession and application for a writ of assistance the petition herein was filed, praying that notice be given to the Auditor General and the purchaser, and that the sale be set aside.

Section 62 of the act provides that—

On the first Monday of May the county treasurer shall •commence the sale of those lands mentioned in the decree upon which the amounts charged shall not have been paid, ■ and shall continue the same from day to day, .Sundays .and other legal holidays excepted, until so much of each .parcel shall be sold as shall be sufficient to pay such .amounts. Each parcel described in the decree shall be .separately exposed to sale, and the sale shall be made to the person offering to pay the amount charged against •such parcel in the decree, and accept a conveyance of the smallest undivided fee-simple interest therein. No greater ■interest in any parcel shall be sold than is sufficient to pay the amount charged thereto. If no person will offer to pay the amount charged against any parcel of land, and take a conveyance of less than the entire thereof, then the whole parcel shall be sold. * * * If any parcel of land cannot be sold for taxes, interest, and charges, such parcel shall be passed over for the time-being, and shall on the succeeding day, or before the close-of the sale, be reoffered; and if, on such second offer, or during such sale, the same cannot be sold for the amount-aforesaid, the county treasurer shall bid off the same in the name of the. State.”

Section 66 provides that—

“As soon as possible after the conclusion of any sale,, and within 20 days after the day named in the notice for the commencement thereof, the county treasurer shall make and file with the clerk of the court a report of such sale, therein referring to such tax record for the particulars, thereof. All sales shall stand confirmed subject to th& right of redemption provided for in section 64, unless-objections thereto are filed within eight days after the time-limited for filing such report, without the entry of any order of further notice.”

Upon a leaf of' the tax record the following writing; appears:

“State oF Michigan.
“The Circuit Court for the County of St. Clair. Ire. Chancery.
“Treasurer’s Oeeice oe St. Clair County.
“Post Huron, May 20, 1892.
“I hereby certify that the foregoing is a full and complete report of the sale made by me for the taxes of 1889- and previous years, and that in all cases where the amounts-belonging to any descriptions are placed in the column headed 'Amount Bid to the State’ that such descriptions, were bid off to the State by me according to law; also that, those descriptions entered as withheld were withheld by me from sale for the reasons set opposite them respectively; and I refer herein to the foregoing tax record for th& particulars of such sale.
“Henry F. Mars, County Treasurer.
“Received and filed May 20, 1892.
“Thomas Gleason, Deputy Register.”

Under section 58, after the entry of the decree, the tax record is to be delivered to the county treasurer, in whose office it is thereafter to remain. The statute contemplates that the treasurer’s report of sale shall be filed with the •clerk, and shall be and remain in that office. When so filed, it operates as notice to all parties concerned. It cannot be regarded as having been thus filed when attached to a record which the statute says shall remain with the county treasurer. Although the filing of the report is chronologically a condition subsequent, a compliance with the statutory requirements is essential to the validity of . the sale, and the report is the evidence of such compliance. For the purpose of giving effect to the deed, and vesting the title, the filing of the report must b.e treated as a condition precedent. Millard v. Truax, 99 Mich. 157. The subject is fully considered, and the authorities collected, in 1 Blackw. Tax Titles, § 641 et seq., and in Black, Tax Titles, § 303 et seq. The purchaser is bound to see that the law has been complied with, and the report cannot now, after the period of redemption has expired, be amended. Id.

It is further urged that no order pro confesso was entered before decree. This, however, was a mere irregularity.

It is next contended that the decree, after the entry upon "the journal, was not thereupon signed by the judge and ■countersigned by the clerk, under section 57. A decree was prepared, signed by the judge, countersigned by the -clerk, and entered in the chancery record. We think that •the statute has been fully satisfied.

The claim is made that no tender or profert of the amount of the tax or decree was made, and that the ■decree entered does not impose the refunding of the .amount paid by the purchaser as a condition of the relief granted. The objection raised by the answer is that petitioner does not offer to refund to Mrs. Eoberts the amount paid by her. Section 66 provides that, if a saléis set aside, the county treasurer shall refund to the purchaser the amount of his bid, with interest. We think,, however, that the petitioner should have been required to-pay and discharge the judgment, and the decree will be-modified accordingly.

It is finally contended that, inasmuch as the rights of a third party have intervened, the remedy of the petitioner is by an independent bill, and not by petition in the same-proceeding. The proceeding to obtain a decree and sale was upon the chancery side of the court. The statute-permits the purchaser to apply to the court for a writ of' assistance, and she did so apply. She was then before the-court in that proceeding. Petitioner thereupon filed a. counter petition, and the matter was heard thereupon. The object of a separate proceeding is to bring in th¿intervening party. She was already before the court in that proceeding, and no good reason exists why the questions may not be disposed of therein.

The decree, with the modification suggested, is affirmed,, with costs of this Court to defendant.

The other Justices concurred.


author: Montgomery, J.

text:
    Warren A. Wagar and Samuel Brandow v. Gideon Bowley et al.

      Equity pleading — Quieting title — Opening case for further proofs —Tax deed.

    1. The bill in a suit to quiet title charged that the complainants’’ title was derived under a tax deed issued to them by the Auditor 'General. And it is held that, if the defendants desired to impeach the prima facie valid title set up in the-bill, they should have set forth specifically in their answer-facts which, if proved, would defeat the tax sale.
    2. Upon the petition of the defendants, which failed to set forth. the facts sought to be proved, the case, which had been submitted, was reopened, and defendants were permitted to introduce proofs to impeach the validity of the tax deed. And. it is held that the practice pursued was so far irregular and unwarranted that the decree granted the defendants ought not. to stand.
    3. Under the statute in force in 1875 (Acts No. 140 and 197, Laws of 1873) which provided that the judge of probate should receive an annual salary in full for all services rendered, to be-fixed by the board of supervisors at a sum not exceeding SI,500, except in the county of Wayne, where it should be-$2,750, an increase by the board of supervisors of the salary of the judge of probate, which had been fixed at a previous-session of the board, and the including of such increase in the tax levy for said year, will avoid -a tax deed issued upon the sale of land for the taxes assessed thereon for said year.
    Appeal from Osceola. (Judkins, J.)
    Argued January 9, 1895.
    Decided February 12, 1895.
    Bill to quiet title. Complainants appeal.
    Decree reversed, and record remanded.
    The facts are stated in the-opinion.

      M. A. Lafler, for complainants.

      Q. H. Lose (0. M. Beardsley, of counsel), for defendants.
   Montgomery, J.

This suit was instituted to quiet the title to 80 acres of land in the county of Osceola. The bill alleges that the complainants are owners, deriving title under deeds from the Auditor General on sales of the land for taxes for the years 1872 to 1880, both inclusive; that complainants are in possession; that defendants set up a title adverse to complainants. The answer admits the sale of the land for taxes as charged in the bill, and denies €C that by said deeds any title whatever passed to said complainants, or that any interest thereto in said premises passed or was conveyed to said complainants by said deeds.” The answer nowhere sets out any facts tending in any way to impeach the validity of the tax deeds. Defendants did -■set out, however, ownership in themselves by title derived from the government. On the trial defendants sought to "introduce testimony tending to show the invalidity of the tax deeds, whereupon complainants objected on the ground that the alleged errors in the proceedings were not set up in the answer. This objection was overruled, and the case proceeded. After the proofs were closed and the case submitted, defendants submitted an application to open the proofs and to introduce additional testimony, which application was granted. The application stated that, as to the tax title of '1875, the only objection actually raised was one touching the mill tax, which defendants’ counsel at the time considered excessive, and that said objection was raised on the theory that the mill tax should have been .spread upon the assessed and not upon the equalized valuation of the township, but that on a thorough investigation of the statute in force he had reached the belief that the mill tax was properly assessed upon the equalized valuation of the township. It further sets out that in preparing his brief for the trial of the cause he had noted other objections to the tax deed of 1875, but that through the fault of his clerk that portion of his brief was mislaid, and that for this reason the questions had not been raised. These statements in the application were quite as general as were those in the answer. There was nothing to apprise the court or the complainants of the facts which defendants would seek to prove in case the application should be granted. After the granting of the application, notice was served on complainants’ solicitor of taking further testimony, and, he declining to appear, the defendants put in the testimony upon which they now rely to show the invalidity of the tax.

We think the practice pursued, in this case was so far irregular and unwarranted that the decree ought not to stand. The title set out in complainants* bill was primo facie valid, and if defendants desired to impeach this title it was their duty to set up specifically their objections, and set up facts which, if proven, would defeat the tax sale. Griffin v. Dogan, 48 Miss. 11; Meeks v. Whatley, 48 Id. 337; Belcher v. Mhoon, 47 Id. 613. See, also, Gamble v. East Saginaw, 43 Mich. 367; Jenn. Ch. Prac. 79; Match v. Hunt, 38 Mich. 1; Dale v. Turner, 34 Id. 405; Fosdick v. Van Husan, 21 Id. 567; Van Dyke v. Davis, 2 Id. 144. It is in general within the discretion of the trial judge to open a cause for further proofs at any time before decree, and such discretion will not be reviewed where the power exists, except in case of abuse. But where a party seeks to open a case to set up proof of facts not set out in the pleadings in such manner as to have entitled him to introduce the testimony in the first instance, and fails in his petition to point out what the testimony sought to be offered will show, we think that it is an excess of power to open the case.

Complainants discuss other questions. They insist that, as defendants claim under a quitclaim deed from a party not in possession, they cannot be deemed good-faith purchasers. We are unable to see how any such' question is involved in the present case. The sole question which would be open, were the pleadings so framed as to admit of its consideration, is whether the complainants* tax title is valid, as, if it were not, no case is made against the defendants* title, which was derived from the government. Under our statute (How. Stat. § 5657), the fact that the land was in possession of complainants at the time of the deed to defendants conveying the government title does-not invalidate the deed.

It is unnecessary to discuss at length the evidence offered to show the invalidity of the tax. There was testimony which tended to show that there was included in the tax levy $200 illegally added to the salary of the judge of probate. If this should be proven on a new trial, it would be sufficient to avoid the tax deed of 1875. Douvielle v. Board of Supervisors, 40 Mich. 585; Silsbee v. Stockle, 44 Id. 561; Hammontree v. Lott, 40 Id. 190; Lacey v. Davis, 4 Id. 140; Case v. Dean, 16 Id. 12; Edwards v. Taliafero, 34 Id. 13. The deeds for the other years are admitted to be void.

The case will be remanded, with leave to defendants to amend their answer, setting up defects claimed to exist in the proceedings taken to spread the tax. The testimony taken -may stand, provided the complainants shall be given the right to cross-examine defendants’ witnesses. Complainants will recover costs of this Court. Costs of the court below will abide the final event.

The other Justices concurred.


text:
    Napoleon Paulus v. Louis J. Grobben.

      Capias — Affidavit to hold to bail — Malicious prosecution — False-imprisonment — Arrest under fraudulent debtor's act— Jurisdiction.

    1. An affidavit to hold to bail in a suit for the malicious prosecution of the affiant under the fraudulent debtor’s act, after averring as upon the personal knowledge of the affiant the making of the affidavit upon which the warrant of arrest' issued, set forth the affidavit in full, coupled with an averment of the service upon the affiant of a certified copy of the affidavit as set forth, by the officer who made the arrest. And it is held that an objection that the affidavit to hold to bail was not made upon the personal knowledge of the affiant is without force.
    2. An affidavit for the arrest of a debtor under the fraudulent debtor’s act, after averring that the debtor was indebted to the affiant in a stated sum, and that suit had been commenced before a justice of the peace, naming him, for the recovery of said debt, averred that, as the affiant had good reason to believe and did believe, the debtor was about to remove his property out of the county where the affidavit was made, with intent to defraud his creditors; that the facts and circumstances constitirting the grounds of such belief were that the debtor had lately received $608 as a pension from the United States; that he refused to pay the affiant any part of his claim; that he had sold some of his property, and openly declared that he was about to remove from this State to Canada. And it is held that the affidavit did not bring the debtor within the fraudulent debtor’s act, which provides (How. Stat. § 8753, subd. 2) that the affiant must establish that the debtor has property or rights in action which he fraudulently conceals, or that he has rights in action or some interest in any public or corporate stock, money, or evidence of debt which he unjustly refuses to apply to the payment of any judgment or decree which shall have been rendered against him, belonging to the complainant.
    3. The fact that the affidavit to hold to bail fails to negative the averment in the affidavit for arrest that suit had been commenced before the justice of the peace for the recovery of the alleged debt is immaterial, where said affidavit states sufficient other facts to warrant the issuance of the capias.

    4. The right of the plaintiff to maintain his suit in no sense depends upon the question of his alleged indebtedness to the defendant, and an objection that the affidavit to hold to bail fails to' negative said alleged indebtedness has no force.
    5. An averment in an affidavit for the arrest of a debtor under the fraudulent debtor’s act that the debtor has sold some of his property, and openly declares that he is about to remove from this State to Canada, has no tendency to show a fraudulent disposition by the debtor of his property, or that there is any intention on his part to remove property subject to seizure.

      6. How. Stafc. § 7805, which, provides that the order to hold to bail in a suit commenced by capias shall be made only upon the affidavit of the plaintiff, or some one in his behalf, showing the nature of the plaintiff’s claim, has never been construed as requiring the plaintiff to attach documentary evidence of facts within his own knowledge,
    7. An affidavit to hold to bail which sufficiently shows the connection of the defendant with the arrest and imprisonment of the plaintiff, and the issuance of the warrant for said arrest upon an affidavit which gave the justice no jurisdiction, states a case of false imprisonment; citing Stensrud v. Delamater, 56 Mich. 144; Wachsmuth v. Bank, 96 Id. 426.
    Error’to Leelanaw. (Ramsdell, J.)
    Submitted on briefs January 9, 1895.
    Decided February 12, 1895.
    Case. Plaintiff brings error from order quashing capias proceedings.
    Reversed, and record remanded for further proceedings.
    The facts are stated in the opinion.
    ■ Tiueddle & Gross, for appellant.

      Alex. McKercher (JPralt & Davis, of counsel), for defendant.
   Montgomery, J.

The plaintiff brought an action for malicious prosecution in the circuit court for the county of Leelanaw. Suit was commenced by capias, to which was attached an affidavit to hold to bail. On motion of defendant, the case was dismissed. The plaintiff has sued out a writ of error to review this order and judgment.

The affidavit stated the following facts:

“That Louis J, Grobben, contriving and maliciously intending to injure the deponent, * * * on the 18th day of April, 1891, at the village of Leland, in said county of Leelanaw, * * * appeared before one William O. Nelson, then and there being a justice of the peace, * * * and falsely and maliciously, and without any probable cause whatsoever, made, subscribed, and swore to the following affidavit, for the purpose of procuring a warrant from the said justice for the arrest and imprisonment of deponent.”

Then follows an affidavit purporting to have been made under the fraudulent debtor’s act, which, after stating that defendant in that proceeding (the plaintiff in this) was indebted to affiant, and that suit had been commenced for the recovery of the demand before William C. Nelson, justice of the peace, proceeds:

And this deponent further says that he has good reason to believe, and does verily believe, that the said Napoleon Paulus is about to remove his property out of said county of Leelanaw, with intent to defraud his creditors. And this deponent further says that the facts and circumstances constituting the grounds of his belief are that the said Napoleon Paulus has lately received a large sum of money as a pension from the United States, — $608; that he refuses to pay this deponent any part of his claim; that he has sold some of his property, and openly declares that he is about to remove from this State to Canada; and further this deponent says not.”

This affidavit purported to have been duly sworn to.

The affidavit of plaintiff attached to the capias further proceeds to state that on the 20th of April he was arrested by an under-sheriff of the county upon a warrant issued by William C. Nelson, the justice of the peace, and that, while under arrest and in custody, the under-sheriff delivered to him a copy of the affidavit above set out, together with a certificate under the hand of the justice that it was a true copy. The affidavit further proceeds to state that, upon said affidavit, the defendant, Grobben, without any reasonable or probable cause whatsoever, caused the justice to make, grant, and issue his warrant under his hand and seal for the apprehending and taking of deponent, and for bringing him before the said justice to answer the complaint, etc., and that, under and by virtue of said warrant, defendant wrongfully, without any reasonable or probable cause, caused deponent to be arrested by his body, and to-be imprisoned and conveyed and brought before the justice; that, at the time of his first appearance before the justice, he moved to quash the warrant, on the ground of the insufficiency of the affidavit upon which it was issued, which motion the justice overruled, and, against the protest and consent of deponent, adjourned the case for the space of 14 days, requiring deponent to give a bond for his appearance, at the instigation of said Louis J. Grobben; that, on the adjourned day, the cause was again .adjourned, on motion of said Louis J. Grobben, and against the consent and protest of deponent, who demanded a trial; that said Louis J. Grobben has not prosecuted his said complaint further, but has wholly deserted and abandoned the same; and that said complaint is thereby ended and determined. The affiant further states that, at the time of his arrest and imprisonment, no judgment had been obtained against him by Louis J. Grobben for the debt alleged by such affidavit to be due, and that the deponent had not, at the time said affidavit was made, any goods, chattels, or other property whatsoever, except what was exempt from execution under and by virtue of the laws of this State.

We have not been favored with any brief on behalf of the appellee, and are. compelled to resort to the record, for the grounds stated in the motion to dismiss, for the reasons relied upon,. These reasons were stated in the motion as follows:

“Because the affidavit attached to the writ of capias, and upon which the order to hold to bail in said cause was made, is insufficient and defective in this:
“1. Because said affidavit is not made upon the personal knowledge of the affiant of such a character as to make it ■evidence admissible on the trial of a cause in court.
“2. Because there was no duly authenticated copy of the proceedings had before the justice of the peace before whom said original cause was commenced attached to the affidavit to hold to bail in this cause.
“3. Because the affidavit to hold to bail does not negative the fact that a suit had been commenced before the warrant to arrest said plaintiff was issued by said W. C. .Nelson.
“ 4. Because said affidavit does not deny that said plaintiff was indebted to said defendant.
“5. Because said affidavit does not deny the fact that ■said plaintiff had received a large amount of pension money that he refused to apply in payment of his debts, and that he was about to remove his property and go to Canada.
“6. That it does not state that defendant knew that his property was exempt.”

We think the objection that the affidavit was not made upon the personal knowledge of the plaintiff untenable. It purports to be upon his personal knowledge, and states facts which, if true, constitute a cause of action, ■each of which facts is within his knowledge. He knew of his arrest. He knew of the appearance of the defendant before the justice on his own behalf, of his request for an adjournment, and of the fact of the abandonment of the •cause. The act of the defendant in making the affidavit is sworn to, and this is based upon a certified copy of the affidavit, which the law under which the proceedings before the justice were taken contemplates and provides for Section 8754, How. Stat., provides that—

“The warrant shall be accompanied by a copy of all affidavits presented to such officer [the justice] upon which the warrant issued, which shall be certified by such officer, and shall be delivered to the defendant at the time of serving the warrant by the officer serving the same.”

This was done in this case, and knowledge of the fact of service, of course, rested with the affiant, and the fact is asserted positively in the affidavit.

As to the claim that the affidavit is insufficient because it does not deny the fact that the plaintiff had received the pension money, and that he had refused to apply it to the payment of defendant’s debt, and that he was about to remove his property and go to Canada, it was necessary to set out in the affidavit before the justice, in order to bring the case within subdivision 2 of the statute (section 8753, How. Stat.), that—

“The defendant has property or rights in action which he fraudulently conceals, or that he has rights in action or some interest in any public or corporate stock, money, or evidence of debt which he unjustly refuses to apply to the payment of any judgment or decree which shall have leen rendered against him, belonging to the complainant.”'

It is apparent that the affidavit made by defendant before the justice.did not bring the plaintiff within the terms of this statute. There was no statement that the claim which defendant held against the plaintiff was in decree or judgment, and the plain inference is that it was not, as he states that suit had been commenced on the demand. Furthermore, the affidavit of the plaintiff made-in this proceeding states that no judgment had been recovered against him on said claim. It is true the affidavit of plaintiff does not state that he is not about to-remove his property and go to Canada, but the affidavit of defendant in the proceedings before the justice did not-state that plaintiff was about to remove his property and go to Canada, the statement being that “he [referring to-the plaintiff here] has sold some of his property, and openly declares that he is about to remove from this State-to Canada.” This statement has no tendency to show a. fraudulent disposition of property, or that there was any intent to remove property subject to seizure. The affidavit, of plaintiff does state, however, that he had no property subject to levy and sale on execution.

As to the point that there was no duly authenticated copy of the proceedings had before the justice of the peace-attached to the affidavit to hold to bail, the statute does not contemplate that it shall be necessary for a party suing out a capias to attach to the writ authenticated copies of his title papers or of judicial proceedings. The statute (How. Stat. § 7305) provides that—

“The order [to hold to bail] shall be made only upon the affidavit of the plaintiff, or some person in his behalf,, showing the nature of the plaintiff’s claim; and such affidavit shall be annexed to and returned and filed with the writ.”

This statute has never been given a construction which requires the plaintiff to go further and attach documentary evidence of facts within his own knowledge. In Badger v. Reade, 39 Mich. 774, the subject was adverted to, the-question being whether it was necessary to identify a judgment when the fact of the existence of a judgment was; necessary to be set out in the affidavit. The Court saidi

“As every judgment is of record, and can be precisely ■ identified, the date is a necessary part of its description; and, while the affidavit may stand in lieu of an exemplified copy, it should give the same information as to its identity.”

See, also, Township of Fruitport v. Circuit Judge, 90 Mich. 20.

The fact that the affidavit failed to show that a suit had not been commenced before the justice of the peace is immaterial, as the affidavit stated sufficient facts without that.

As to the fact that the affidavit failed to deny that plaintiff was indebted to defendant, the plaintiff’s right to¡ maintain the suit in no sense depended upon the question of whether he was indebted to defendant.

We also think the affidavit in the present case states a case of false imprisonment. It sufficiently shows the connection of defendant with the arrest and imprisonment of plaintiff, and shows that that arrest was based on an affidavit which gave no jurisdiction to the justice. Stensrud v. Delamater, 56 Mich. 144; Wachsmuth v. Bank, 96 Id. 426.

- The judgment of the court below will be reversed, with costs, and the case remanded for further proceedings.

The other Justices concurred.


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    William Terry v. Medard A. Metevier.

      Attachment — Conversion by officer — Fraudulent conveyances.

      1. A sheriff who sells a portion of a stock of goods which he has seized under a writ of attachment, and permits the plaintiffs, on giving him a bond of indemnity, to remove the remainder of the goods beyond the jurisdiction of the court in which the attachment suit is pending, becomes a trespasser ab initio, and is liable in trover for the conversion of the property.
    2. The sheriff, being unable to justify under his writ, is not in a position to attack the bona fides of a sale of the goods to the plaintiff by the attachment debtor prior to the levy of the writ.
    Error to Mackinac. (Pailthorp, J.)
    Argued January 9, 1895.
    Decided February 12, 1895.
    Trover. Defendant brings error.
    Affirmed..
    The-facts are stated in the opinion.

      M. C. Burch and P. N. Packard, for appellant.

      Henry Hoffman, for plaintiff.
   Long, J.

In July, 1891, Vancel Hodeck was the owner of a stock of goods at Prentis Bay, Mackinac county. In the early part of the month he made, executed, and delivered to the plaintiff, a clerk in his store, a chattel, mortgage on the entire stock, due in 30 days. At the end of that time — August 10, 1891 — he (Hodeck) made and deliv>ered to' the plaintiff a bill of sale of the entire stock of goods. This bill of sale was filed in the tówn clerk’s office/ ■and plaintiff went into possession of the property. At 'the dime of the execution of this chattel mortgage and bill of •sale, Hodeck was indebted to the firm of Mueller & Raber, •of Chicago, Ill., in the sum of about $4,000. They, learning of the chattel mortgage and bill of sale to the plaintiff, ■on August 22, 1891, sued out of the circuit court for Mackinac county a writ of attachment against Hodeck, and placed the same in the hands of the defendant,'Metevier; who was the sheriff of the county. Metevier, by virtue of this writ, took into his possession the entire stock of goods •covered by the mortgage and bill of sale, and caused an inventory and appraisal to be made. He immediately thereafter put one Joseph Oarrow into possession of the goods, •who commenced selling them at private sale at retail; and from some of the testimony it would appear that he sold nearly one-half of them, though the testimony leaves it uncertain as to the exact amount which Carrow did sell, «orne of the witnesses saying from $25 to $50 worth. The •sheriff demanded a bond of indemnity' from the plaintiffs ■in the writ, and they furnished such bond in the sum of <$5,000, with Lyman Feltus as surety. Thereupon the ■sheriff turned the remainder of the goods over to Feltus, ■and took from him a receipt, in the words following:

“Received of Medard A. Metevier, sheriff of Mackinac (County, State of Michigan, all. of the property seized . by him by virtue of a writ of attachment against the goods .and chattels, lands and tenements, of Yancel Hodeck, in •favor of Philip W. Raber and William Mueller; said property so received by me being the same property described in the, inventory made and filed in said cause.”

Feltus at once removed the goods into Chippewa county, •and there kept them.'

December 8, 1891, this action of trover wgs commenced by Terry in the Mackinac circuit court against Metevier for a conversion of the goods. This snit was commencd before the attachment suit had proceeded to judgment. Plaintiff, Terry, claimed the title to the goods under his bill of sale. This suit was commenced by declaration, and the defendant pleaded the general issue, with notice that, the defendant, as sheriff of Mackinac county, had taken the goods under the aforementioned writ of attachment-against Hodeck, and that said goods were the property of Hodeck. The court below was of the opinion that Metevier, by the sale of a portion of the goods, and permitting the-remainder to be removed beyond the jurisdiction of the-court, became a trespasser ab initio, and consequently could not justify under his writ, and was not, therefore, in a-position to attack the bona fieles of the plaintiff's bill of sale from Hodeck. The court instructed the jury that, inasmuch as there was no controversy as ,to the value and. amount of the goods taken, they should return a verdict-in favor of the plaintiff for $950. Yerdict and judgment-were entered for that amount.

It is undisputed that Metevier permitted a portion of the goods to be sold immediately upon taking possession of them under his writ of attachment, and that he also-turned the remainder over to a third party, and permitted him to remove them beyond the jurisdiction of the court» How. Stat. § 7998, provides that—

“The property attached shall remain in the hands of the officer serving the attachment, unless the defendant, or any other person in whose possession such property-may have been found, shall, before judgment in such suit, deliver to the officer a bond executed to him by two or more sufficient sureties, being freeholders within this State, either with or without such defendant or other person, to-the satisfaction of such officer," etc.

Under this statute, as was said in Trowbridge v. Bullard, 81 Mich. 451, 459, it was the duty of the officer to hold the property until -the coming of an execution to enforce-the judgment in the case. He had no right to sell and •dispose of the property without an order of the court, and that .could be obtained only upon a special showing of necessity. Here he sold a portion of the property, and permitted the remainder to be removed beyond the juris•diction of the court. This amounts to a conversion of the property. Trowbridge v. Bullard, 81 Mich. 451; McGough v. Wellington, 6 Allen, 505; Sawyer v. Wilson, 61 Me. 529. As was said in McGough v. Wellington, supra:

“ The officer having sold the property attached in a manner unauthorized by law, the sale was tortious, and he became a trespasser ab initio. * * *
“An officer who has a precept which authorizes him to take property may take it under and by virtue of his pre■cept, or he may take it wrongfully, to convert it to his ■own use. If at the trial he justifies under his precept, •and has conducted himself strictly according to its requirements, he is protected, because he is then entitled to the ■conclusive presumption that he acted under his lawful .authority. But if, before the trial, he has exceeded his lawful authority, the law presumes that the original taking was not for the purpose of serving his precept, but as a trespasser. The facts which occur after the suit is commenced do not constitute a cause of action, but are merely ■evidence from which arises the absolute presumption that his first taking was a trespass. The character of his ■original act is shown by his subsequent conduct. It is in the nature of an admission that he did not act under his precept, and such an admission is as effectual in proof if made at one time as at another. The cause of action is the original unlawful taking. That the original taking was unlawful is shown by his subsequent conduct.
“ The title of the plaintiff to the property in controversy, although that of a grantee by a conveyance fraudulent against creditors, was good as against the vendor, and as against all other persons except creditors proceeding to enforce the collection of their debts in the manner provided by law. It was voidable, and not void, and could only be avoided by creditors availing themselves of legal process to appropriate the property, and procuring service ■of the process to be made in a regular and lawful manner. Against an irregular or unlawful seizure and sale, it was a valid and perfect title, and tbe plaintiff may therefore, maintain this action.”

The above action was in trover against a deputy-sheriff for the conversion of property which he had seized under a writ of attachment. The rule in the above case was followed in Trowbridge v. Bullard, supra. The same rule was followed in Sawyer v. Wilson, supra. There the officer sold the property before the time prescribed by the statute, and it.was held that the officer could not justify under the writ. ’ In the present case the officer sold part of the property only, but the remainder of it was permitted by him to be removed beyond the jurisdiction of the court. He did not keep it, as commanded by the statute, and his. conduct after seizure must be held to make him a trespasser ab initio.

The judgment will be affirmed.

The other Justices concurred.


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    Reuben Sawtells v. Albert M. Howard.

      Practice in Supreme Court — Costs—Arbitration and award — Equity practice — Specific performance.

    1. Where the appellee files no brief, neither party will be allowed costs on the affirmance of the decree.

      2. An award by arbitrators, which in no manner conforms to the-agreement of submission, will be disregarded.
    3. It is not error to refuse to retain a bill for the specific performance of a land contract, for the purposes of an accounting and a computation of the amount due on the contract, where-the matter of the only payment in dispute is determined by the court, and the main relief prayed for is denied on the ground that the contract price has not been fully paid.

      Appeal from Shiawassee. (Newton, J.)
    Submitted on briefs January 9, 1895.
    Decided February 12, 1895.
    Bill for the specific performance of a land contract;. Complainant appeals. .
    Decree affirmed.
    The facts are stated in the opinion.

      James M. Goo dell, for complainant.
   Long, J.

May 11, 1882, defendant made a contract in writing with Reuben Sawtells and Willis Sawtells to sell to them 159£ acres of land in Shiawassee county for $6,000, payable as follows: A mortgage of $3,500, executed by defendant and wife to Spencer Wheeler, $500’ or more on or before one year from date, and the balance-in payments of $400 or more each year, with interest at. 7 per cent. Subsequently, Willis Sawtells assigned his-interest in the contract to Reuben Sawtells, his father. This bill is filed by Reuben Sawtells for a specific performance of the contract; ho claiming that the moneys-have all been paid, except the sum of $7, which he tendered before bill filed. The application and indorsement of all payments upon the contract is conceded by both parties* except the sum of $300. Complainant contends that this amount was paid, but never indorsed on the contract, while the defendant claims that it was included in an indorsement of $540 made on May 11, 1884. The court below, after a review of the evidence, concluded that the-$300 was included in this indorsement, and that, therefore, the contract had not been paid up, and dismissed complainant’s bill. Complainant appeals.

It appears that one Elmer Howard, in 1883, was indebted to the Sawtells, growing out of some dealings with them. Elmer worked for the defendant during that year, and, instead of defendant’s paying him for the work, he gave Elmer the following receipt:

“Received of R. & W. Sawtells $300, by tbe hand of Rimer Howard, to apply on contract of land.
“ Dated September 1, 1883.”

It was agreed between the Sawtells, Howard, and Elmer 'Howard that this amount should be applied on the contract. At the time it was given, there was nothing due ■on the contract, but the receipt was evidently intended to apply upon the amount to grow due in the future. A payment was due on May 11, 1884, of $400 principal, and interest of $140, making $540, which was actually indorsed as paid. Complainant attempts to explain how this payment of $540 was made up, and claims that, though he held the receipt of $300, it was not included in the payment. The explanation he gives of the items making up the $540 is not very satisfactory; but, aside from this, as was said by the court below, “it seems incredible that, with this receipt in his possession at that time, the complainant should have forgotten all about it.” We are satisfied that the court below was correct in finding that the ,$300 made up a part of the $540 indorsed.

.Before the bill was filed in this cause, an agreement was ©n'tered into to arbitrate these differences. The • arbitrators made an award finding there was still unpaid on the contract the sum of $542.71; but counsel for complainant .contends that this agreement, and the award made thereunder, are wholly void. It is not important to discuss the questions raised thereunder, as we agree with that contention. The award in no manner conformed to the agreement of submission, and must be disregarded; but the evidence so strongly predominates in favor of defendant’s contention that the $300 has. been credited that we cannot ■escape the conviction that the court below was correct in so finding. It is said, however, that the bill should be retained for the purposes of an accounting, and a computation of the correct amount due on the contract. We do not deem this necessary, The amount is not in dispute, except the $300; and, as the complainant has had credit for that amount, that is not now in dispute. Both parties know what is due, and complainant may pay or tender payment, and will then be entitled to his deed.

The decree below must be affirmed. Neither party will recover costs, as counsel for appellee filed no brief in this Court.

The other Justices concurred.


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    Lydia Rockwell v. Herbert J. Wells and Lizzie Wells.

      Deed — Mistake—Failure of consideration — Mortgage foreclosure— Equitable set-off.

    A grantor, after conveying a portion of a city lot, conveyed the entire lot by warranty deed to a purchaser who had no knowledge of the former conveyance, but supposed that he was securing a title to the entire lot, which he mortgaged to the grantor to secure the payment of a portion of the purchase money. The grantor filed a bill to reform the deed and mortgage so as to make them operative only as to the portion of the lot owned by him at the time of their execution, and to foreclose the mortgage as reformed. It appeared from the evidence that the grantee had made improvements upon the house situate on the portion of the lot owned by the grantor, and that the grantor was not financially able to take a reconveyance and place the grantee in statu quo. And a foreclosure decree allowing a deduction from the mortgage to the extent of the damages sustained by the grantee in not securing title to the entire lot is affirmed.

    Appeal from Jackson. (Peck, J.)
    Submitted on briefs January 9, 1895,
    Decided February 12, 1895.

      Bill to reform a deed and mortgage so as to except from their operation a portion .of the land described therein, which had been previously conveyed to a third party, and-to foreclose the reformed mortgage. Complainant appeals-
    Decree affirmed.
    The facts are stated in the opinion.

      Grove H. Wolcott, for complainant.

      Parkinson & Campbell, for defendants.

       See Pfirrman v. Wattles, 86 Mich. 254, 260.

   Long, J.

This bill was filed to correct and foreclose a. mortgage for the sum of' $514.40 executed by defendants-to complainant, and also to amend a deed from complainant to defendants conveying the same premises set forth in the mortgage. The deed and mortgage, each bearing' date May 14, 1892, covered lot 9 in block 4 in Carr’s East-addition to the city of Jackson. The complainant had on the 18th day of July, 1885, conveyed by warranty deed a. strip eight feet wide off the north side of the lot. The deed and mortgage in question made no exception or reservation as to the eight-foot parcel. The complainant insists that the omission was wholly due to mistake and inadvertence on the part of the attorney who prepared the-conveyances, and of the parties, and asks to have the description in said instruments reformed so as to carry out the intention of the parties by containing only that part-of lot 9 owned by her on the 14th day of May, 1892, and for a decree for the sale of such premises to satisfy the amount due on the mortgage.

The defendants admit the execution and delivery of the-deed and mortgage, and also of the deed of complainant, of the eight-foot strip to William Page, made in 1885, and that neither the deed nor mortgage contained any exception as to the eight-foot strip. Defendants deny that, they had any knowledge of the sale by complainant of the eight-foot parcel off the north side of the lot in 1885, and allege that they, .as well as the atttorney who prepared the papers, supposed at the time of the sale.of the premises by complainant to them that she was the owner of lot 9, entire and complete, as platted, and deny that there was any mistake about the transaction. Defendants charge complainant with fraud, in permitting them to accept such deed and to execute the aforesaid mortgage without giving them information about the sale of the eight-foot strip. Their. answer is in the nature of a cross-bill, and seeks affirmative relief in having the sale rescinded and the mortgage and note canceled, allowing to, complainant a reasonable sum for the use of the premises, and, to defendants, damages for moving, and expenses in-completing the house on the premises,' and. moneys paid upon the mortgage assumed by them, and for improvements, and any damages they might be entitled to by reason of the failure of complainant to give title to such eight-foot strip, and that complainant be required to pay any balance in their favor to defendants, and that the same be a lien on said lot; or, in case defendants were not damaged to the amount of said mortgage and note, that said sale, note, and mortgage be not rescinded and canceled-, but that defendants, if damaged by failure to receive said strip, have such damages deducted from the mortgage.

A decree was entered for the sale of the premises, except the north eight feet, for the sum of $178.24, the amount remaining due on the mortgage after deducting the sum of $250 allowed by the court for damages for the failure of the complainant to give title to the north eight feet. From this decree the complainant appeals.

It appears that lot 9 was on the east side of. Pleasant street, and was platted 80 feet wide. It was one of a line of lots, extending east and west through this addition, of a uniform width of 80 feet. The lots north of lot 9 were not built upon, nor their boundaries defined by fences.or other means. On this lot 9 was a house partly completed, and on the east or rear end of the lot was a barn. The driveway to the barn was over this eight-foot strip, and there was nothing indicating any separation between this strip and the rest of the lot, or that it was not a part and parcel of the lot. By taking this strip off, it left only about seven feet between the line of the lot and the house. Mr. Sagendorph, an attorney, prepared the papers between the parties. The purchase price was $1,575, and to secure a part of the purchase money the mortgage of $514.40 was given. It appears that at the time the papers were made the defendants supposed they were purchasing the whole of lot 9, and not a lot with this eight feet sold off, and Mr. Sagendorph so understood it. On the other hand, the complainant contends that she supposed she was selling the lot less the eight feet. Before these papers were executed, but after the sale of the eight feet, the complainant had mortgaged the whole lot to a building and loan association. It was from this mortgage that Mr. Sagendorph drew the deed and mortgage in the present case. He- did not know that complainant did not own the whole lot, though the abstract, which was before him, showed the sale of that strip to Page. After the purchase the defendants moved into the house on the premises, completed it, and paid taxes upon the premises. They sold the barn to the complainant for $100, and got credit for that amount on the mortgage. Several weeks after moving upon the premises the defendants learned from complainant that she did not own the eight-foot strip, and that she had, prior to that time, sold this strip to Mr. Page. They then wanted either to be reimbursed, and have the trade canceled, or retain the property, and be allowed for partial failure of consideration. The parties did not agree upon the terms, and this bill was filed.

It is contended by complainant that this was a mutual mistake, and that tbe court below should have corrected it by reforming the deed and mortgage so that they should convey the lot less the eight-foot strip. We do not agree with this contention. It was not a mutual mistake. The defendants supposed they were getting the whole of lot 9. They did not know they were not to get the whole of it. The claim they make in their cross-bill is not that there was a mistake, but that they were to have the whole of lot 9, and that, the complainant having deeded this eight-foot strip away before her deed to them, it was a fraud upon them, and that the sale should either be rescinded, or a partial failure of consideration declared, and a deduction made from the mortgage. It appears, however, that defendants had expended several hundred dollars on the property, in finishing the house, grading the grounds, etc., which made it practically impossible for the complainant to receive the property back and pay the difference thereon. There was a partial failure of consideration, for which we think the defendants were entitled to an 'equitable set-off or deduction from the note and mortgage. They completed the work on the house after- getting the deed, and before they knew they did not own title to the whole lot. They had no practicable remedy, except to hold possession and await foreclosure, and so seek relief by an equitable allowance, as against the mortgage, or to themselves resort to some equitable remedy by bill.

A partial failure of consideration is a defense pro tanto. Jones, Mortg. (4th ed.) § 1490; Dayton v. Melick, 32 N. J. Eq. 570; De Kay v. Bliss, 120 N. Y. 91. In Dayton v. Melick, supra, it was held that when a grantor, by misrepresentations, induces his grantee to believe that the property contains more land than in fact it does contain, such grantee is entitled to a proportionate deduction from the amount due on his mortgage, given for part of the consideration, on its foreclosure. The same rule was laid down in De Kay v. Bliss, supra. While it is true that no false representations in fact are claimed to have been made in this case, yet it is apparent that the defendants purchased in the full belief that they were getting the whole lot, and the deed conveyed the whole. The complainant knew she did not own, and could not convey title to, this strip, yet executed and delivered a deed of the whole. She is not in a position to make the title good, or, as appears by the record, financially able to take a reconveyance and place the defendants in statu quo. The court below allowed a deduction from the mortgage •only to the extent of the damages sustained by defendants in not getting title to this strip. We think the court below reached the only equitable result in the case.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

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    Annie Vernon v. Lewis Cornwell.

      Master and servant — Negligence—Liability to third person — Instructions to jury — Evidence.
    1. The plaintiff in a personal jinjury case sought to charge the defendant with the negligence of one of his teamsters, who, while returning with another teamster from a city where they had been with loads of grain for the defendant, ran into the wagon in which the plaintiff was riding, thereby throwing her upon the highway and causing the injury complained of. There was evidence tending to show that at the time of the • collision the teamsters were voluntarily running their horses. The court, upon the request of thé defendant, .charged the. • jury that if. they should find that, the collision -was caused by the wrongful and wanton act óf the defendant’s teamster, which act was beyond the scope of defendant’s business, the plaintiff could not recover. And it is held that the defendant, who did not request a fuller explanation of the law in relation to what would constitute an act within the scope of the teamster’s employment, cannot complain of the failure of the court to give such explanation.

    '3. The teamster testified that he was unable to restrain his horses, and that they were running against his will. And it is held that the contention of defendant’s counsel, that it is indisputable that the damage was caused by the wantonness of the teamster, cannot be sustained.
    ■8. Evidence concerning the defendant’s knowledge of the teamr ster’s habits of intemperance was objected to as immaterial, on the ground that the proof showed that the teamster was not intoxicated at the time of the accident. The teamster testified that he had had one or two drinks of whisky on the day of and prior to the accident. And it is held that it cannot be said that the question of the teamster’s sobriety upon that occasion was beyond dispute, and, if found, it was a circumstance consistent with negligence.
    Error to Genesee. (Newton,, J.)
    Argued January 10, 1895.
    Decided February 12, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    'The facts are stated in the opinion.

      8, L. EiTbourne, for appellant.
    Wisner, Lee & Aitken, for plaintiff.

       The liability of an employer to third persons for the negligence -or torts of his servants is the subject of a very elaborate note, -analyzing a multitude of cases and -discussing the reasons or grounds of the liability, with the case of Ritchie v. Waller, 27 L. R. A. 161.

   Hooker, J.

The plaintiff, a woman, while riding in a ■wagon with her brother, was thrown upon the highway -and injured, by reason of a collision, caused by the negli.genee or design of the defendant’s teamster, who was following.

The greater part of appellant’s brief is devoted to a discussion oí the proposition that the teamster was not acting within tffe scope of his employment at the time of the collision, and that consequently the defendant ought not. to be held liable for his act. The most that can be said from the record upon this subject is that there was evidence tending to show that the teamsters were voluntarily-running their horses, as they were returning from the city of Flint, where they had been with loads of grain for th’edefendant. We cannot say that this was conclusively established, even were we to hold that such fact would relieve-the defendant from responsibility. In accordance with the request of defendant’s counsel, the court instructed the-jury that if they should find that the collision was caused by the wrongful act of the teamster, which act was beyond the scope of the defendant’s business, and that such act-was wantonly done, the verdict must be for the defendant. It being a question for the jury, left to them under the instructions asked by the defendant’s counsel, who did not. request a fuller explanation of the law in relation to what-constitutes an act within the scope of employment, we discover no error upon this point. The teamster testified that-he was unable to restrain his horses, and that they were-running against his will; hence we cannot agree with counsel in the statement that “it is indisputable that the damage was done by the wantonness of the teamster.”

Counsel suggests that evidence offered concerning defendant’s knowledge of the teamster’s habits of intemperance-was immaterial, because the proof shows that he was not-intoxicated at the time of the accident. As the record shows that he admitted that he drank that - day, we cannot say that his sobriety on that occasion was beyond dispute. If found, it was a circumstance consistent with negligence.

An examination of the other assignments relied upon discloses nothing that calls for discussion.

We find no error in the record, and therefore affirm the judgment.

McGrath, O. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Per Curiam.

text:
    Theodore C. Sherwood, Commissioner of the Banking Department of the State of Michigan, v. The Central Michigan Savings Bank. In the Matter of the Petition of Daniel B. Johnson.
    [See 103 Mich. 109.]

      Practice in Supreme Court — Rehearing—Laches.
    An application by an appellant, made after the affirmance of a decree, for leave to apply to the court below for a rehearing, will be denied where it appears that the evidence sought to be introduced on the rehearing was within the knowledge of the appellant at the time of the first hearing, and should have been suggested by the testimony of the appellee.
    Motion by the receiver of the defendant bank for leave to apply to the circuit court for Ingham county, in chancery, for a rehearing.-
    Argued January 8, 1895.
    Denied February 12, 1895.
    The facts are stated in the opinion, and in 103 Mich. 109.

      M. V. Montgomery, for the motion.

      Oahill & Ostrander, contra.

   Per Curiam.

By an opinion filed at the October term (103 Mich. 109) it was decreed that the receiver of the defendant bank pay to one Johnson the sum of $5,000, held in trust by said bank and receiver. An application is now made for leave to apply to the circuit court in chancery for a rehearing, upon the ground that the receiver is able to show that such trust fund was partially, if not wholly, expended by said bank before the appointment of the receiver.

As a perusal-of the former opinion will show, the petitioner (Johnson) showed that the sum of $5,000 was received by the bank upon a mortgage placed in its hands for collection. It was shown to have mingled this sum with its other moneys, and that this fund was not reduced below $5,000 at any time. In support of this application it is now said that it can be shown that a portion of the funds of said bank consisted of ,a reserve fund; that it was in bags by itself, and was unchanged during the period covered by these transactions, and therefore was not the fund with which the tlust fund was mingled; that it can be shown that the money of the bank, aside from this reserve fund, was reduced to a few hundred dollars on one or more occasions, thus showing as a matter of fact that the trust fund, or part of it, was parted with by the bank, making it impossible to trace it. In the circuit court the case seems to .have turned upon this point. The evidence now sought to be produced was within the knowledge of the receiver, and the testimony offered by the petitioner should have suggested it. We see no way to grant the relief asked, unless we are to relax the rule as'to laches. Detroit Savings Bank v. Truesdail, 38 Mich. 430, 444.


author: McGrath, C..J.

text:
    The First National Bank of Marquette v. Julia A. Hanscom.

      _Married woman — Liability upon guaranty of note — Principal and agent.

    -A wife, to whom her husband had assigned a non-negotiable note, at his request, and without consideration, guaranteed the payment of the note to bearer, and delivered it to her husband, to be used by him in the payment of his own debts. The husband discounted the note at a bank, upon the representation that his wife was pecuniarily responsible and that he desired to use the proceeds of the note- for his own purposes. He paid a draft and an account which the bank held against him for collection, and used the remainder of the money, except $100, which he deposited with the bank to his wife’s credit, in the payment of his debts. And it is held in a suit by the bank upon the guaranty of payment that, if any inference of agency could be drawn from the possession of the note by the husband, it was repelled by his proposed application of the proceeds, made known to the bank officers before the discount; and that the bank cannot say that the 'note was discounted for the wife’s benefit.

    Error to Marquette. (Stone, J.)
    Argued January 11, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Irving D. Hanscom, for appellant.

      J. E. Ball (Dan H.Ball, of counsel), for plaintiff.

       For cases bearing upon the question of the liability of married women upon their general contracts, see Mosher v. Kittle, 101 Mich. 345, and note; upon promissory notes, O’Donnell v. Bray, 99 Mich. 534, and note.

   McGrath, C..J.

This suit is brought against Julia A. Hanscom; the wife of I. D. Hanscom, on the following: instrument:

“ Marquette, Feb. 22, 1893.
“ Due I. D. Hanscom from me $400, payable $200 six months after date, and $200 seven months after date; value received. D. H. Ball.”
Indorsed on the back of said instrument is the following r
“Marquette, Feb. 22, 1893.
“I hereby assign all my interest in the within to Julia. A. Hanscom, for value received.
“ Irving D. Hanscom.”
“ April 5, 1893.
“ I hereby guarantee the payment of the within, when due, to the bearer. Julia A. Hanscom.”

The testimony of I. D. Hanscom wás as follows:

“I had indorsed this note to my wife on the same day I received it. On the 5th day of April — the date of that guaranty — I went to the secretary, and took the note out-of the drawer where it Avas, and Avrote that guaranty upon the back. I then called my wife, and said to her: £I have got to have some money. I am dead broke,, and I have got some bills I have to pay. I wish you Avould sign that/ I said, ‘ That is Mr, Ball’s note which I indorsed to you.’ She says, ‘Where shall I sign?’ I pointed with my finger underneath the guaranty which I had written, and I said, £ Sign there.’ She signed it, and I took it, and put it in my pocket, and she Avent to her work up stairs, and I went down to the bank, and got-the money on it. At the bank there was a bill against, me and a draft. The bill was for pew rent in St. Paul’s, church, amounting to $45. Mr. Towar Avas treasurer, or-at least making the collections. I think he Avas treasurer of St. Paul’s society, and he had sent me notice that he-would like to have it paid. I told him the note was all I had to do it with. If he would cash it, I would pay the--$45. That I had a little draft also that I wanted to pay, and I was in need of some money, and I wanted to get it. cashed. * * * Mr. Jennison, the cashier, paid me the money, deducting the amount of the little draft there on me, and this $45 was taken out; and I directed $100-to be placed on my wife’s bank account. She had kept a. bank account. I had no bank account in town at that time. And I didn’t need all the money, and I said he oould place $100 to the credit of Mrs. Hanscom, my wife. I went away, and used the money, and paid the bills, as far as it would go.”

The cashier of the bank testified that I., D. Hanscom ■came to him, and offered the paper for discount, stating that his wife was worth about $15,000 in her own name; . that witness referred Hanscom to Mr. Towar; that Hansnom repeated what he had said about his wife’s financial responsibility to Towar; that Towar objected to the form of the paper, — to the fact that it was not a negotiable instrument, but was payable to himself only. Hanscom said that he was aware of that fact, but he would like to have the money very much, and, if Mr. Towar would accommodate him, he would be obliged to him; “and Mr. Towar eventually handed it to me, with instructions to ■discount it for him.”

The court instructed the jury as follows:

“It is undisputed in this case that Mrs. Hanscom ■was at this time a married woman. This note had been transferred to her, and she was the owner of it, down to the time, at least, when she signed this guaranty upon it. This action is brought upon this guaranty of payment. If she, in this act of guaranteeing of payment, transferred that note back to her husband, it not being for the benefit of her estate, and she receiving no benefit from it, I .am satisfied that she is not liable upon her guaranty of payment, under the law of this State relating to married women. There seems to have been no consideration moving to her for it, and it -was a suretyship. When she placed her name there, she said, in law, cIf the maker of this note, D. H. Ball, does not pay it, I will.’ That is in the nature of, a guaranty or suretyship. And a married woman cannot make such a contract as that, to be binding upon her, unless it is with reference to her own matters and property. I submit to you the question, gentlemen, as one ■of fact, as to whether what was done with this note by Mrs. Hanscom at the time she signed this guaranty, and he went to the bank with it, and there negotiated it, and received the money on it, — what was done there at the bank in connection with the disposition of the proceeds, — as to whether there was an agency, whether the relation of principal and. agent existed between her and her husband. Did Mr. Hanscom do this business for her, and receive the proceeds,, as her agent ? If so, I am satisfied that she is liable; and I submit that question to you as one of fact here, for there are certain circumstances connected with it. This-note was her note at this time, he says. When he took it. out of the secretary, and wrote this upon it, it was her note. Did she transfer the note? Was there any meeting of the minds of the parties there by which she transferred that note to her husband in this act? If not, then it still remained hers. Did she there,- by her action and conduct,, expressly or tacitly say to him, ‘Take this note of mine, and raise money on it/ and did he go away and do it, in-pursuance of that authority? Did their minds meet upon that idea, gentlemen? If so, then there was an agency there. It seems that eventually $100 of the proceeds of this note was placed to her credit. It is contended here that that was an after-consideration, an after-thought. It is contended here on behalf of the defendant that Mr. Hanscom negotiated this note for himself, and then after-wards placed $100 of this to her credit. But you may look over all the circumstances surrounding the transaction from the time Mr. Hanscom took the note from the-secretary, when, concededly, it was her property, down to-the time when the money was placed to her credit — $100 of it — in the bank, and determine whether there was authority given him by her, by her acts and words and by his-acts and words, by which the relationship of principal and agent arose. There could be no relation of principal and agent without the parties understood it and agreed to it.. But there need not be a solemn instrument made in regard to that. You may look at all the surrounding circumstances of the case, — you may look at the indorsement, and the peculiar manner of the indorsement, and all the surroundings, — to determine that. There is no presumption from the fact that the defendant was a married woman that her husband was her agent, but that fact requires evidence. To establish the husband’s agency, it should appear by a preponderance of evidence, of course. And in order for the plaintiff to recover here, you must find by a preponderance of evidence that he was her agent, and acted for her, in this transaction. If you shall say such was the case, you will return a verdict for the plaintiff for $417; which is just the amount due on the note to-day. If not,— if there was no agency, — then, by this peculiar relation of a married woman to business transactions in this State, I advise you that she is not holden.”

It is clear from this testimony that I. D. Hanscom procured this instrument,, and the guaranty of its payment, from his wife, to be used by him for the payment of indebtedness due by himself; that Julia -A. Hanscom guaranteed the payment of it to the bearer, and delivered it to her husband; that the husband took it to the bank, and obtained its discount, representing that he was desirous of obtaining the discount, and using the proceeds for his own purposes, in part to pay moneys due by him to-the bank. I. D. Hanscom was invested with all the indicia of ownership of the instrument that plaintiff subsequently acquired. The guaranty was in terms to the bearer, and not to the bank. If any inference of agency could possibly be drawn from the possession of the instrument by I. D. Hanscom, that inference was-repelled by the proposed appropriation of the proceeds, made known to the bank officers before the discount. The bank cannot well say, upon* the state of facts here-presented, that the paper was discounted for defendant’s, benefit.

The judgment must be reversed, and a new trial awarded.

Montgomery and Hooker, JJ., concurred. Long and G-rant, JJ., did not sit.


text:
    Frederick Taylor v. James Cooper and Adam Pipper.

      Landlord■ and tenant — Eviction—Damages—Evidence.
    1. In trespass by a lessee for his eviction from the leased premises, the lessor claimed that the lessee had surrendered his lease, which was denied by the lessee. The lessee was permitted to show on the cross-examination of one of the lessor’s witnesses, who had testified to the admission by the lessee of such alleged surrehder, that the witness had received a certain sum from the lessor by reason of his agreement to vacate other lands leased to him, and which, as also the premises leased to the plaintiff, were afterwards sold by the lessor, And it is held that the evidence did not tend to negative the alleged surrender by the plaintiff of the leased premises; that wh'at the lessor paid to the witness in order to effect a sale of his lands was not competent evidence to show what the land was worth to the witness, or what damages the plaintiff had sustained by reason of the eviction; and that it was error to admit the testimony.
    .2. At the time of his eviction, the lessee had occupied the leased premises,for three years, and had used them for market gardening. The term of the lease was five years. There was no evidence tending to show that the lessee was forced to remain idle for the remainder of the term, but, on the contrary, it ••appeared that he thereafter worked upon his own and other rented land. And it is held that the measure of his damages was the fair average value of the use of the land, less the rent agreed to be paid therefor.
    .8, Proof of the profits actually realized by the lessee during his three years’ occupancy was competent, as tending to show the value to him of' the leased premises.
    4. The testimony of the lessee as to the probable yield of his strawberry patch and its probable market value, that he intended to -crop the land with certain crops, and as to what, in his opinion, the value of the crops would be, as also the testimony of others as to what the land planted to garden vegetables would yield, was incompetent, because too specu- . lative.
    Error to Wayne. (Hosmer, J.)
    Submitted on briefs January 11, 1895.
    Decided February 12, 1895.

      Trespass. Defendants bring error.
    Keversed.
    The facts are stated in the opinion.

      Henry Plass, for appellants.

      Walter Barlow, for plaintiff.
   McGrath, C. J.

On April 1, 1890, defendant Cooper executed a lease to plaintiff of 14 acres of land near the city of Detroit, for farming purposes, for five years, at a rental of $110 per annum, payable, $55 October 1, 1890, and $55 April 1, 1891, and a like sum every six months thereafter during the continuance of the lease. Plaintiff claims an eviction on April 5, 1893, and defendant Cooper insists that plaintiff was in arrears for the rent due October 1, 1892, and that in December, 1892, he surrendered the premises; that he (Cooper) afterwards sold the land, and, after he had sold it, plaintiff came and tendered the balance of rent due, when he refused to permit a re-entry. The jury found for plaintiff.

Henry Pipper was called by defendants to show a conversation had with plaintiff in which the latter had admitted a surrender of the premises to Cooper. On cross-examination, plaintiff’s counsel was permitted to show that the witness had held a lease from Cooper of other lands embraced in the sale made by the latter, and that Cooper had allowed him $240 by reason of his agreement to vacate the premises sold. This was clearly erroneous. It did not tend to show that plaintiff had not surrendered the lands rented by him before the sale was made, nor was what Cooper paid in order to effect a sale of his lands competent to show what the land was worth to Pipper, or what damages plaintiff had suffered.

We think the court erred in the instruction given as to the measure of damages. There was no testimony tending to show that plaintiff was forced to remain idle for the remainder of the term. He testified that thereafter he worked upon his own and other rented, land. The measure of his damages was the fair average value of the use of the land, less the rent. To ascertain this, it was competent to show what he had realized from the land for the three years during which he had occupied it, deducting therefrom the expense and labor bestowed upon it and the rent. -1 Sedg. Dam. (8th ed.) § 174. He was-also entitled to show that he had improved the fertility of the land, and to recover for any labor which he had bestowed upon it with reference to future crops. Plaintiff was permitted to testify that his intention was to plant-the entire parcel to vegetables in 1893 and 1894, and that, in his opinion, the vegetables that he could have raised would have been worth $100 and upwards per acre. He estimated the cost of fertilizers at $30 per acre, and £he cost of labor at $50 per acre. Plaintiff had testified that 1891 was a very dry season, and from an acre and a half of corn he realized $10; that in 1892 he plowed and planted the entire 14 acres; that from two acres and a-half of corn he realized $20; that his carrots, about an acre and a quarter, were an entire failure; that from two-acres of cabbage he might have taken $25 or $30; that-from half an acre of tomatoes he realized $15; that from four acres of potatoes he realized 40 or 50 bushels; that he sold ten bushels of peas at $1.25 per bushel; that he had between four and five acres of tomatoes, from which he did not realize $50. Witnesses were allowed to testify that land planted to garden vegetables would produce from $25 to $50 an acre each year as profits, with a favorable-season. There was no testimony, and there could be none, as to the character of the season of 1894. The trial was-had in May, 1894, and the lease, by its terms, expired April 1, 1895. The testimony clearly tended to show that, the product of the premises depended largely upon the character of the season and other conditions. 1 SedgDam. (8th ed.) § 185, lays down- the rule that,—

“Where a lessor fails to give possession of the leased premises, the measure of damages is the difference between the actual rental value and the rent reserved. The ruléis the same, whether the leased property is a farm, a dwelling-house or hotel, or business premises. If, however, the premises were necessary to the plaintiff for carrying on an. established business, * * * the plaintiff might, on principles elsewhere discussed, recover further damages. The measure of damages* [in such case] would be the difference between the rent and the value for the plaintiff’s business, which would involve an allowance of profits. If the business were a new one, since there could be no basis, on which to estimate profits, the plaintiff must be content to recover according to the general rule.”

Plaintiff’s testimony as to the probable yield of his-strawberry patch and its probable market value, that he-intended to crop the land with certain crops, and as to what, in his opinion, the value of the crops would be, as. well as the testimony of others as to what the land planted to garden vegetables would yield,' was incompetent, because-too speculative. He is practically seeking to recover damages for the interruption to his business. It is what gain he can show with reasonable certainty that he would have-made that he is entitled to recover for. The profits actually realized by him in the preceding years may be shown as tending to show the value to him of the premises; otherwise he must be limited in his recovery to the difference between the rental value in the market and the rent reserved.

The judgment is reversed, and a new trial granted.

The other Justices concurred.

       The court charged that the plaintiff, if entitled to a verdict, should recover the difference between the amount that he would have made by farming the 14 acres and the amount that he actually did make by working other land.


author: Grant, J.

text:
    Martha A. Cummings v. Richard Callahan.

      Sale of land — Agreement to pay incumbrances — Action by grantee for reimbursement.

    Where, on an exchange of lands, one of the grantors, whose land is mortgaged, agrees to pay a certain portion of the mortgage debt, the remainder of which is assumed by his grantee, it is immaterial, as affecting the liability of the grantor to reimburse the grantee for money by him paid on said mortgage debt in excess of the amount by him assumed, whether or not the grantor agreed to apply a certain fund in partial payment of said debt.
    Error to Arenac. (Sharpe, J.)
    Argued January 23, 1895.
    Decided February 12, 1895.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Geer & Williams, for appellant.

      -Mortimer D. Snow and B. A. Snow, for defendant.
   Grant, J.

Plaintiff and defendant made an exchange of real estate. The defendant’s property consisted of an hotel, furniture, and saloon fixtures and*' liquors. His property was incumbered with three mortgages, which then amounted to $3,297.40. The incumbrances were to be reduced to $2,400, which plaintiff assumed. Two of the mortgages were at a bank where defendant had on deposit $327.75. Plaintiff insisted that this amount was to be applied upon the mortgages, and that it was at the time deducted from the total amount, and, when so deducted, it left $2,400, the amount agreed upon. This amount was not applied upon the mortgages, and defendant subsequently checked it out, and used it. This suit is brought to recover the difference between the $2,400 and the amount which plaintiff was compelled to pay upon the mortgages. The verdict was, no cause of action. Plaintiff insists that the court should have directed a verdict for her, and so requested.

• Plaintiff’s son negotiated the exchange. He and two other witnesses swore positively that plaintiff was to assume $2,400 of the mortgages. This was not denied by the defendant. He admits that he said that he thought it was about $2,300 or $2,500, and that he agreed to reduce it down to a certain amount, but doesn’t “know exactly whether it was $2,400 or what it was.” There was therefore no conflict of evidence upon this point, and it was established that plaintiff assumed only $2,400, and that defendant was to pay the balance. It remains to ascertain whether he did pay it, or made some other arrangement with plaintiff, through her agent, by which the value of the furniture was applied for that purpose. One Yasbinder had agreed to lease the hotel from the plaintiff, and bought the furniture and other goods of the defendant. The amount which Yasbinder agreed to pay was $578.50. This was paid by Yasbinder to plaintiff, as a payment upon the mortgages. Both Yasbinder and the plaintiff’s son swear positively to this amount. This is not denied by the defendant. He simply says in regard to it: “I don’t know nothing about these figures. There is a lot of figures that ■don’t mean anything;” His claim appears to be that plaintiff took the value of these goods from Yasbinder in the exchange, and assumed the entire mortgages. Plaintiff produced the original figures which were made at the time, and which showed that $327.75 was deducted from the total amount of the mortgages. After deducting the •$2,400, the balance of the mortgages was $897.40. Deducting the bank credit, there was still left $569.65. The goods sold, therefore, exceeded this amount by $8.85. Plaintiff’s agent testified that he gave the defendant a $10 bill, and that defendant gave him back $1.15. Defendant ■says he gave plaintiff’s agent at that time $1.50, which he claims settled the entire matter.

There was a controversy over ■ the question whether it was •agreed that this $327.75 should be indorsed upon the mortgages, and the defendant insists in his brief that this was the material point in controversy, and that, if defendant undertook to indorse this, he was liable; otherwise he was not. It is quite likely that the jury took this view of the case, and found that there was no such agreement. Defendant admits that during the negotiations he intended ■to apply this money for that, purpose, but that the mortgagee refused to consent to it, claiming the right to indorse it upon another ' mortgage. Plaintiff’s right of recovery, however, does not depend upon that question. It is immaterial whether defendant agreed to apply this specific money for that purpose. This amount was in fact deducted, and plaintiff in-good faith supposed it would be so applied. The questions are: Did plaintiff assume only $2,400? And •did defendant agree to pay the balance? And has he paid it? There is no room for controversy under the evidence. 'The defendant did agree to pay all over $2,400, and he has not paid it. Under this record, we think the court should have directed a verdict for the plaintiff for $327.75, and interest.

Judgment reversed, and new trial ordered.

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