text:
    McNAMARA v. LANGGUTH.
    1. Husband and Wife — Bank Deposits — Principal and Agent— Evidence — Sufficiency.
    Evidence held, insufficient to show that the wife of a marine engineer who received part of his wages during his absence, acted as his agent in creating a bank account in her own name and in purchasing a home in her own name from the proceeds. '
    2. Evidence — Admissibility—Oral Testimony — Real Property— Trusts.
    Oral testimony cannot be resorted to in order to create a trust in real estate.
    3. Uses and Trusts — Husband and Wife — Ownership of Property — Evidence—Sufficiency—Statutes.
    Under 3 Comp. Laws, § 8835 (3 Comp. Laws 1915, §11571), providing that where a grant for a valuable consideration is made to one person and the consideration paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall rest in the person named as alienee except when a trust results in favor of creditors under the next section, and section 8837 (3 Comp. Laws 1915, § 11573), providing that section 8835 shall not extend to cases where the alienee shall have taken the conveyance as an absolute one in his own name, without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the land with money belonging to another, no trust is created in a husband where a wife takes title to real estate In her own name, and it is not shown that the husband did not have knowledge thereof and consent thereto and that the consideration was paid by the husband.
    4. Same.
    Where a wife prior to her marriage had been personally engaged in business and during her married life deposited her own money and that received by her as agent for her husband in a bank account in her own name, a finding as to what portion of the bank account belonged to the husband and what belonged to the wife would be based upon mere conjecture.

      Appeal from Wayne; Collingwood, J., presiding.
    Submitted October 8, 1917.
    (Docket No. 48.)
    Decided December 27, 1917.
    Decree modified on motion for rehearing July 18, 1918.
    Bill by Michael McNamara against Josephine Langguth and others to quiet title. From a decree dismissing the bill, plaintiff appeals.
    Affirmed, without prejudice to an action at law.

      James H. Pound, for plaintiff.

      Charles P. O’Neil, for defendants.
   Brooke, J.

On December 12, 1892, plaintiff, who was then a widower with three living children, intermarried with one Margaret Merritt. He and said Margaret Merritt McNamara continued to live together as husband and wife until March 14, 1915, when she died, intestate. It appears that at the time of the death of said Margaret McNamara, the title to a house and lot which had been used by her and her husband, the plaintiff, as a home since April 20, 1910, stood in her individual name. It likewise appears that a bank account in the Detroit Savings Bank showing a balance at the time of her death of $1,923.91 stood in her name.' Margaret Merritt McNamara had been married twice prior to her marriage to plaintiff, but bore no children to either of her three husbands. She left several brothers and sisters her surviving, two of whom, Arthur Webber and Minnie B. O’Sullivan, on June 14, 1915, quitclaimed to plaintiff all of their interest in the real estate left by their sister Margaret. Being unable to secure quitclaim deeds from the others, said brothers and sisters, plaintiff filed his bill of complaint herein, praying that the title to said house and lot and the money in the bank standing in the name of said Margaret McNamara be decreed to be in him. To this bill six of said defendants interposed a demurrer. The record shows no disposition of the demurrer. There is in the record, however, an answer filed on behalf of all the defendants, and the case went to a hearing upon the merits, resulting in the entry of a'decree dismissing plaintiff’s bill of complaint. From this, decree plaintiff appeals.

Plaintiff, who at the time of the trial was about 70 years of age, introduced testimony tending to show that during all the years he and Margaret McNamara lived together as husband and wife, he followed the occupation of a marine engineer, sailing the Great Lakes; that his occupation'kept him from home 9 or 10 months of each year; and that while away from home he from time to time forwarded to his wife various sums of money from his wages. It is in evidence that Margaret McNamara upon receipt of these money orders or checks cashed them, paid the household expenses out of their avails, and deposited the balance thereof in the Detroit Savings Bank. No witness was sworn who was able to give the number or amount of the several deposits made in said bank out of the moneys represented by said checks. The bank account introduced in evidence shows that it was started in 1893, with a deposit of $527. Deposits and withdrawals continued until the end of 1910, when the balance was upwards of $4,500. In 1911 $2,400 was withdrawn from the account to pay for the house which was built upon the lot, the deed to which had been taken in the name of Margaret McNamara, on April 20, 1910.

Plaintiff’s counsel states his position as follows:

“First. Michael McNamara was the head of his family by law.
“Second. That as such it was his duty to support his family, consisting of his wife, Margaret, and his three little children.
“Third. That the law of this State enforced this duty against him and properly so, too. It made of him a criminal if he did not support, maintain, and provide for them.
“Fourth. Michael McNamara did not need this stimulation. He was an honest, upright, manly, good citizen, and natural father, and the support by him of his wife and children was a labor of love; that it was a pleasure to discharge as well as a duty, and he gladly did it.
“Fifth. That by the adjudged laws of this State a wife is -presumptively, and as a matter of legal inference, her husband’s agent in the dispatch of his necessary business in his absence. People v. Horton, 4 Mich. 67.
“Sixth. Michael McNamara was off on the waters of the Great Lakes 10 months out of the 121 He was not in reach of his family, daily, weekly, or monthly. He got his pay. It was his money. He had a paramount duty, to support his wife and children. He recognized it. He passed all of his money practically over to his agent, his wife, the only adult he had to take charge of it; the only person he could give it to without insulting her. He gave it to her to take care of, care for, and disburse upon his and his family’s account, first, to feed them, second, to clothe them, and third and lastly to defray any incidental expenses such as might arise from sickness, accidents, or any other unfortunate emergency arising suddenly. This she did with the highest integrity and probity. The rest was his. He does not question the expenditure of his money by his wife so far as it was disbursed for the purposes indicated.”

Much reliance is placed upon the following testimony given by Arthur Webber, brother of Margaret McNamara:

“Q. Now, tell the court in your own way, as near as you can recollect it, what it was that she said to you?
“A. I was in the commission business at 24-26 Western Market, and my sister Maggie came down to market one morning, and she stopped over to see me. * * * Well, now, I couldn’t just give you the date, because I let it slip my mind, and didn’t do what she asked me to, and, of course, when she came up there, I shook hands with her, and said, ‘You are looking fine; how do you feel?’ She said, ‘I am not feeling very well.’ She said, ‘Arthur, I don’t think I will live very long; I haven’t been feeling very well, and I tell you what I want you to do; I want you to fetch up somebody to make a will.’ I said, ‘You do?’ in an offhand way, and I said I would go up and make it myself. Well, that wouldn’t do. She said, ‘I want somebody to make a will.’ I said, ‘What are you going to do, will it to me? I need it all in my business.’ And she said, ‘No, I want to will it to Mike.’
“Mr. O’Neil: I insist that be stricken out, on the ground it hasn’t any bearing on the particular question involved here.
“The Court: Oh, I think I will let it in. (Exception.)
“Q. Why did she want to will it to Mike?
“A. Well, she said Mike was getting old; he was very good to her; he gave her every dollar; he trusted her more than he trusted himself; he sent his money when he was on the ship, for fear the ship would sink; and he trusted it to her; and she said, ‘I have got the house built in my own name, the money in my own name, the house in my own name, and if I should die I don’t know what they would do to Mike.’ She said, ‘It wouldn’t be you because I know you wouldn’t want it.’ I said, ‘All right, I will fetch somebody,’ but I was very busy, and I neglected to fetch them up.
“Q. Another way. How long was it before she died that she had this talk?
“A. Well, this was, oh, I don’t know.
“Q. A month or a year?
“A. Oh, it was more than a month; I couldn’t just tell exactly.
“Q. About?
“A. Oh, well, probably three months.
“Q. It was inside of a year?
“A. Oh, yes.”

Giving the strongest probative force to this testimony as well as all other testimony in the record offered on behalf of the plaintiff, we are of opinion that it fails to establish the claim of plaintiff that in acquiring the real estate and creating the bank account, Margaret McNamara acted as the agent of her husband, indeed, it would rather tend to support the conclusion that she claimed all of such property as her own, but desired by the execution of a will to place title thereto in her husband at her death. This she failed to do, and her unexecuted intention in that regard cannot aid the plaintiff. With reference to the real estate, we are at once met with the statute (4 How. Stat. [2d Ed.], § 10675, 3 Comp. Laws 1915, §11571), which provides :

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

Section 10677 (3 Comp. Laws 1915, § 11573) reads as follows:

“The preceding seventh section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name,_ without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed, with moneys belonging to another person.”

The record is absolutely barren of evidence tending to show that Margaret McNamara took title to the lot in question without the knowledge and consent of her husband, the plaintiff. It is likewise barren of evidence showing conclusively that the consideration was paid by the plaintiff. In the case of Waterman v. Seeley, 28 Mich. 77, it is said:

“In order to maintain such a trust, there must have been an intention to create it, and there must have been an actual payment of the consideration, made out beyond any doubt to have been the individual money of the party seeking to raise the trust. Proof of such payment will usually, as between strangers, raise a presumption in favor of such an intention, but even then, the trust raised by parol may be rebutted by parol. * * * No such presumption arises where the title is taken in the name of a wife or child, and the principle covers cases where, without legal reíationship, the person paying the purchase money stands, or assumes to stand, in loco parentis to the grantee. The presumption there is both natural and legal, that in paying for land to be granted to the child so situated, it is intended as a donation or advancement, and not as a trust in favor of the donor.”

Again in the late case of Rothschild v. Dickinson, 169 Mich. 200 (134 N. W. 1035), this court said:

“We do not think that oral testimony can be resorted to, to create a trust in real estate” — citing cases.

Touching the bank account, we are met with another difficulty. Evidence introduced tends to show that prior to her marriage to the plaintiff, Margaret McNamara had been engaged in business on her own account. Exactly what property she had at the time of her marriage is not shown by the evidence, but plaintiff’s bill asserts that at the time of the marriage—

“she had no money or property, real or personal, except a small bank account in the Detroit Savings Bank, where she innocently deposited all her money which she became in possession of, both her own and complainant’s.”

Assuming, then, what the evidence in the record tends to establish that some portion of the bank account is represented by deposits made out of the funds sent to Margaret by her husband, the plaintiff, and assuming, further (which we do not hold, see Wipfler v. Detroit Pattern Works, 140 Mich. 677 [104 N. W. 545, 112 Am. St. Rep. 430]), that as to such portion, Margaret should be considered as the agent of the plaintiff instead of as the absolute donee of the fund, how may the court determine what proportion of said bank account properly belongs to the estate of Margaret McNamara, and what proportion thereof to the plaintiff? It is obvious that upon this point no conclusion can be reached based upon the testimony in the record, and the court would be obliged to resort to mere conjecture. This we may not do.

The decree must be affirmed.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    PEOPLE’S STATE BANK OF HOLLAND v. MILLER’S ESTATE.
    1. Gifts — Bank Deposits — Joint Deposits — Right of Survivor-ship — Statutes—Intent.
    Where a decedent left at the plaintiff’s bank an order that her account therein should be a joint account with another, person payable to either or the survivor, held, that if decedent’s intention was that such person should take by right of survivorship such intent would be given force under section 3 of Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8040), relating to the creation of a joint tenancy with rights of survivorship in a deposit made in the name of the depositor and another person, in form to be paid to either or the survivor of them.
    2. Same.
    Án order upon a bank by a depositor to make her deposit a joint one payable to either or the survivor, is sufficient to bring it within section 3 of Act No. 248, Pub. Acts 1909.

      Appeal from Ottawa; Cross, J.
    Submitted October 19, 1917.
    (Docket No. 73.)
    Decided December 27, 1917.
    Bill of interpleader by the People’s State Bank of Holland against Mrs. Fred Zuber and Fred T. Miles, administrator of the estate of Florence Miller, deceased, to determine the title to a deposit. From a decree for defendant Zuber, defendant Miles appeals.
    Affirmed.

      Charles E. Misner and Fred T. Miles, for appellant.

      Lillie, Lillie & Lillie, for appellee.
   Fellows, J.

Florence Miller had a deposit in plaintiff bank of between $1,700 and $1,800. She was afflicted with tuberculosis, and the record discloses that she had on several occasions expressed her desire and intent that defendant Mrs. Fred Zuber should have what property she left at her decease. In June, 1916, Mrs. Zuber presented an order together with Miss Miller’s bank book to the cashier of the bank. The order was not preserved, and its exact purport does not appear, except that it was the intent of the order, as the cashier now remembers it, to make the account a joint one, substantially as was the order hereafter set out. The cashier was not acquainted with Mrs. Zuber, and did not honor this order, but prepared an order himself and called on Miss Miller. She said it was just as she wanted it, and signed it in the presence of two witnesses. The order is as follows:

“June 27, 1916.
“People’s State Bank,
“Holland, Michigan.
“Gentlemen: Please enter the name of Mrs. Fred Zuber on the signature card of my savings account No. 320 in your bank. I want to make it a joint account payable to either or survivor. The signature of Mrs. Fred Zuber will be honored by me.
[Signed] “Florence Miller.
“Witnessed:
“John J. Mersen,
“Henry Winter.
“6/28/1916.”

This order was taken by the cashier and pasted on the account of Miss Miller in the bank’s book. Thereafter Mrs. Zuber drew small amounts for Miss Miller, and after her death claimed the balance due on this account. Defendant Miles was duly appointed administrator of Miss Miller’s estate, and also claimed the fund. Thereupon plaintiff filed this bill of inter-pleader. A decree in favor of defendant Mrs. Zuber is appealed from by the administrator.

The testimony is overwhelming and undisputed that the deceased desired and intended that Mrs. Zuber should have this money after her death, and that she caused the account to be changed to carry out such intent. The testimony does not admit of the construction that the account was changed solely to convenience its withdrawal during Miss Miller’s illness. If Miss Miller, intended, as we believe she did, in making this change to so fix the account at the bank that Mrs. Zuber would take by right of survivorship, her intent will be given force by the courts. Section 3, Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8040); In re Rehfeld’s Estate, ante 249 (164 N. W. 372). Nor are we able to follow counsel’s contention that the language used was not sufficient to bring the case within the statute cited. The language of the order is, “make it a joint account payable to either or survivor;” the language of the act is, “in form to be paid to either or the survivor of them.” It was not necessary, as we have already stated, that the transaction contemplated or that the order or account show a present gift.

.There is no testimony or inference that may legitimately be drawn from the’testimony that would permit us to conclude that it was not the intention of Miss Miller in making this change to give Mrs. Zuber what money she had in the bank at the time of her death. Indeed the testimony is all to the effect that she felt under many obligations to Mrs. Zuber for what she had done for her dur|ng both her health and her sickness ; that she had treated her as a sister would, while her near relatives, who were of the half blood, had been indifferent to her welfare. There is no claim of mental incapacity or undue influence. There is nothing upon this record calling upon us or justifying us in reaching a different conclusion from that reached by the trial judge.

The decree is affirmed. Mrs. Zuber will recover costs of this court from the appellant.

Kuhn, C. J., and Stoné, Osteandee, Bied, Mooee, Steeee, and Bbooke, JJ., concurred.

       As to whether deposit in joint names is gift to codepositor, see note in 12 L. R. A. (N. S.) 355.


author: Brooke, J.

text:
    MARYLAND CASUALTY CO. v. SCHEURMAN.
    Principal and Surety — Limited Partnerships — Liability oe Individual Members — Jud&ments—Estoppel.
    Where the individual members of á partnership association, limited, give a bond for the construction of a Federal building to the United States signed by them individually as principals and, after the filing of demurrers by all such individual members and a plea by the corporate surety setting up the defense that the bond was the obligation of the association and not of the individual defendants, in an action by the United States against them for the use of unpaid laborers and materialmen, a judgment is rendered in favor of the use plaintiff and the judgment paid by the surety, the individual members are estopped by such judgment to object, in an action by the surety against them for reimbursement, that the bond was the obligation of the association and not their individual obligation.
    Error to Wayne; Hosmer, J.
    Submitted October 5, 1917.
    (Docket No. 14.)
    Decided December 27, 1917.
    Assumpsit by the Maryland Casualty Company against Ernest W. Scheurman and others for the amount of a judgment. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Affirmed.

      Safford & Shepherd, for appellants.

      Goodenough & hong (Stevens T. Mason, of counsel), for appellee.
    On July 12, 1909, the four defendants organized a partnership association, limited, under the provisions of Act No. 191 of the Public Acts of 1877 and amendatory acts (2 Comp. Laws 1915, § 7950 et seq.); the title of said association being “Interstate Construction Company, Limited.” On September 2, 1911, said Interstate Construction Company, Limited, made a proposal in writing to the supervising architect of the treasury department of the United States of America, for the enlargement and completion of the United States Post Office at Gadsden, Ala. On September 21, 1911, the treasury department of the United States- of America communicated to said Interstate Construction Company, Limited, its acceptance, in writing, of said proposal, and on September 25, 1911, a formal contract was entered into between the United States of America, acting through J. F. Curtis, assistant secretary, by direction of the secretary of the treasury and said Interstate Construction Company, Limited. A bond having been required by the United States conditioned upon proper performance of said contract by the contractor and the payment of all sub-contractors, application was made by said Interstate Construction Company, Limited, to plaintiff, Maryland Casualty Company, for said bond. After negotiation, the bond was executed in the following form:
    “Know all men by these presents, that we, Ernest W. Scheurman, Fred T. Scheurman, Louis O. Scheurman and Gustav, F. Scheurman, partners doing business under the firm name of the Interstate Construction Co., Limited, of the city of Saginaw, West Side, county of Saginaw, and State of Michigan, principals, and Maryland Casualty Company, a corporation existing under the laws of the State of Maryland, of the city of Baltimore and State of Maryland, surety, are held and firmly bound unto the United States of America in the sum of forty-two thousand dollars ($42,000) lawful money of the United States, for the payment of which, well and truly to be made to the United States, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents:
    “Sealed with our seals.and dated this 1st day of November, A. D. 1911.

      “The condition of the above obligation is such, that whereas the said Interstate Construction Company, Limited, has entered into a certain contract, hereto attached, with the United States, bearing date the 25th day of September, A. D. 1911: Now, if the said Interstate Construction Company, Limited, shall well and truly fulfill all the covenants and conditions of said contract, and shall perform all the undertakings therein stipulated by it to be performed, and shall well and truly comply with and fulfill the conditions of and perform all of the work and furnish all the labor' and materials required by any and. all changes in,, or additions to, or omissions from said contract which may hereafter be'made, and shall perform all the undertakings stipulated by it to be performed in any and all such changes in, or additions thereto, notice thereof to the said surety being hereby' waived, and shall promptly make payment to all persons supplying labor or materials in the prosecution of the work contemplated by said contract, then this obligation to be void; otherwise to remain in full force and virtue.
    “In testimony whereof, the said Ernest W. Scheurman, Fred T. Scheurman, Louis O. Scheurman and Gustav F. Scheurman, principals, and Maryland Casualty Company, surety, have hereunto subscribed their names and affixed their seals the day first above written.
    “Ernest W. Scheurman. [Seal]
    “F. T. Scheurman. [Seal]
    “Louis O. Scheurman. [Seal]
    “G. F. Scheurman. [Seal]
    “Maryland Casualty Company,
    “By Jas. H. Stone,
    “Vice President. [Seal]
    “Attest: Robert Ferguson, Asst. Secretary.
    “Signed, sealed, and delivered in presence of Ray A. Kain, Frances Bulger, C. H. Porter, as to G. F. S., C. J. Orland.”
    The Interstate Construction Company entered upon the performance of said contract and later made default in payment to certain- persons and corporations who had furnished labor and materials for the erection of said post office building. On June 9, 1914, a suit was commenced in the district court of the United States of America for the middle division of the northern district of Alabama by the United States, suing for the use and benefit of the unpaid subcontractors, against plaintiff and the four defendants as individuals. To this suit plaintiff herein filed a special plea setting out:
    “That the bond sued on was not executed by said Interstate Construction Company, Limited, as the principal obligor thereof, the said Interstate Construction Company, Limited, having failed to execute said bond, but it was executed by Ernest W. Scheurman, Fred T. Scheurman, Louis O. Scheurman and Gustav F. Scheurman, as the principal obligors thereof, instead of said Interstate Construction Company, Limited, and the said Interstate Construction Company, Limited, has not been made a party defendant in this suit. Wherefore, this defendant says that this suit should be dismissed from this court for want of jurisdiction and prays the judgment of this court in dismissing the same.”
    The individual defendants herein filed various demurrers to the action in the Federal court for Alabama, but ultimately a judgment by consent was rendered in said court in favor of the use plaintiff and against all defendants in the sum of $5,601.86. This judgment was paid by the Maryland Casualty Company as surety upon said bond, and the action at bar was instituted by said surety to recover from the individual principals upon said bond the amount so paid. The case came on for trial in the circuit court before a jury. Plaintiff introduced the judgment of the Alabama Federal court and proved that it had paid said judgment and rested. Thereupon defendants introduced the testimony of Gustav F. Scheurman, who testified that he had no personal individual interest in the subject-matter of the contract between the Interstate Construction Company, Limited, and the United States, except as a member of said copartnership, limited. He further testified that:
    “The signing of the bond in the manner in which it was signed was done by the express request of the government officials.”
    Objection was made on behalf of the defendants to the admission in evidence of the transcript of the judgment upon the ground:
    “That the bond upon which the proceeding was based was not the bond of the defendants in this case as individuals. It was in truth and in fact the bond of the Interstate Construction Company, Limited, a partnership association as disclosed by all of the documents in connection with the execution construed together.”
    Counsel for defendants further asserted:
    “We maintain that they took a judgment against the wrong parties then, but we are not concerned in that so far as this case is concerned.”
    A motion for a directed verdict on behalf of defendants was made and denied, and the court proceeded to direct a verdict in favor of the plaintiff for the amount it had paid upon the judgment together with interest, $5,951.03.
   Brooke, J.

(after stating the facts). A motion for new trial thereafter was made based upon two grounds:

(1) That the court erred in refusing to direct a verdict for the defendants.

(2) Because the court erred in directing a verdict for plaintiff.

In this court there are seven assignments of error, all of which involve the propriety of the action of the court in directing a verdict for the plaintiff and which may be considered together. If we understand the position of appellants in this court, it may be stated briefly as follows: That, considering the correspondence between the Interstate Construction Company, Limited, the partnership association, with the government with reference to the contract, and with the plaintiff with reference to the bond, and the contract itself between the partnership association limited and the government, the bond attached to the contract and here in question is the obligation of the partnership association as principal, and plaintiff company as surety, and is not the bond of the four-defendants herein as individuals. It is further asserted that plaintiff, having contracted with defendants in their corporate capacity and having accepted premiums from the Interstate Construction Company, Limited, for the execution of said bond, is estopped from now claiming that the- bond in question is the bond of the individual members of the partnership association. We are unable to agree with the contention of defendants’ counsel. The obligation sued upon is not ambiguous. It names as principals the four defendants herein and binds, not only them, but their heirs, executors, administrators, successors, and assigns, jointly and severally. It is executed by said four defendants in their individual capacity and without any reference whatever to the Interstate Construction Company, Limited, whose contract with the government was guaranteed by said bond. When default had been made by the Interstate Construction Company, Limited, the copartnership association, under its contract with the government, the government brought suit against the four defendants herein as individuals and as principals in said bond, and against the plaintiff as surety thereon. To said suit defendants interposed various demurrers, which, however, were finally withdrawn or abandoned, and a judgment by consent was rendered against them as principals and against the plaintiff as surety, for the amount of the unpaid claims against the Interstate Construction Company, Limited.

We are of opinion that defendants are bound by the judgment of the Alabama Federal court, and that they are now estopped from again litigating with their codefendant, the plaintiff, the question settled by that judgment. They assert that estoppel under the judgment is raised only between those who are adverse parties in the former suit, and not as between codefendants inter sese, citing 23 Cyc. pp. 1279, 1280. The rule announced in the text is not without exception, and the cases cited in support thereof include none wherein, of two defendants, one is a surety and the other a principal, as in the case at bar. It seems plain that, when defendants admitted their liability in the suit against them as individuals in the Alabama court and consented to judgment going against them . in that capacity, plaintiff, their, surety, was obliged to admit its liability as such. Again, it is fundamental that the party who is secondarily liable (the surety), when he has paid the claim, succeeds to all the securities and benefits held by the. obligee against the principal debtor. If the surety discharges the obligation of the principal, he thus stands in the shoes of the obligee and may enforce any remedy which the obligee may enforce against the principal. Suppose plaintiff had not paid the judgment and suit had been begun upon said judgment either by the United States or by any of the use plaintiffs for whom said suit was brought, defendants could scarcely have interposed the defenses now relied upon. Plaintiff, having paid said judgment, is now subrogated to the rights of the obligee and is entitled to the same protection as would be the parties to whom it paid the judgment. The fact that the parties were codefendants and made the same defenses to the claim against them is of no consequence, when once judgment has passed against them in different capacities. Where one is entitled either to reimbursement or contribution from the other in a collateral proceeding, they cannot again question their joint liability to the original plaintiff. This principle finds ample support in the following text-books and authorities: 1 Freeman on Judgments (4th Ed.), § 158; 2 Black on Judgments (2d Ed.), § 599; Lloyd v. Barr, 11 Pa. 41; United States Fidelity & Guaranty Co. v. Haggart, 168 Fed. 801 (91 C. C. A. 289); Osage City Bank v. Jones, 51 Kan. 379 (32 Pac. 1096).

Judgment is affirmed.

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


text:
    BATES TRACTOR CO. v. GREGORY.
    Sales — Warranties not Included in Written Contract — Fraud.
    Representations in the nature of warranties antecedent to a contract of sale of a tractor cannot he urged as fraud where the contract is in writing and contains specific warranties.

    Error to Emmet; Shepherd, J.
    Submitted October 19, 1917.
    (Docket No. 78.)
    Decided December 27, 1917.
    Assumpsit by the Bates Tractor Company against Amos Gregory and others on certain promissory notes. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Cummins & Nichols, for appellant.

      C. J. Pailthorp, for appellees.
    This action is brought to recover on two promissory notes, being part of the purchase price of one 25 horse power tractor, with one four-bottom gang plow equipment. The contract bears date April 25, 1914, is in writing, and contains the following warranty:

      “Working. — This machine is warranted to do well the work for which it is intended, if properly operated by competent persons.
    “If the purchaser does not notify the company to the contrary, by registered letter to the company, at its home office in Lansing, Michigan, within five days from first day’s use, the machinery shall be considered as satisfying all warranties except as to materials.
    “If any machine or attachment does not fulfill the warranty, the company shall furnish one which does, or refund its purchase price, and this shall be the limit of the company’s liability.

      “Materials and Workmanship. — This machinery is warranted to be well made of good materials, and if any part breaks within one year from delivery because of defect, the company shall furnish a duplicate part upon delivery to it of the broken part, and this shall be the limit of the company’s liability for such defect.

      “Change in Warranty. — This warranty cannot be changed except in writing by an officer of the company; no employee, mechanical expert, or selling agent can change any provision thereof or notice required, nor shall any action by the company or any agent taken to remedy any defect complained of be a waiver of the registered notice of dissatisfaction or complaint herein required.
    “Secondhand goods, also machines specially built to order, are not warranted.”
    The purchase price named in the contract was $1,-950, payable as follows: $300, being the value of an engine turned in by defendants to plaintiff on account; $395 paid in cash; $55 allowed as discount on account of cash payment; and the two notes in suit for $600 each, maturing December 1, 1914, and December 1, 1915. Separate suits were brought upon each note, but were consolidated and tried together. The tractor with equipment was delivered to defendants on May 18, 1914. One of the defendants testified that:
    “The notes were delivered to the Pellston Bank some time several days after they were dated and signed by us. That was because they had agreed to hold these notes of mine until we could see fit for to release the same. They were not to be delivered until we saw fit to direct the bank to turn them over to the tractor company.
    “The object we had was to see how the machine would test out. I could not tell the number of days the notes remained in the Bank at Pellston. I could not tell whether it was the latter part of May or early June. They were not delivered until after we had tested the machine and we directed the bank to turn over the note and the money which we had deposited there according to agreement.”
    Defendants undertook to operate the apparatus with ill success. On June 3, 1914, the following telegram was sent to plaintiff company:
    “Brutus, June 3rd, 1914.
    “Bates Tractor Co., Lansing, Mich.
    “Rig unsatisfactory — send man 8:30 tonight.
    “Abraham Gregory.”
    Throughout the summer and fall of 1914 many efforts were made by defendants to secure satisfactory operation, but evidence on behalf of defendants tends to show that although between 75 and 100 acres were plowed, the machine never did good work. On November 5, 1914, defendants wrote the following letter to plaintiffs:

      “Bates Tractor Company.

      “Dear Sirs: Find inclosed 65 cents for payment of screw top for Detroit oiler, which is the only article on your statement of the 28th which we feel responsible for; as the timber was found broken when first inspected after the arrival of the tractor. The stub for front axle also was defective, which was plainly visible after being broken. The exhaust valve stem must also be replaced, as the threads are stripped on both stem and burr from natural wear. The rollers and bushing are also badly worn from natural wear. I wish to state that we will not make any remittance until this matter is adjusted. I also wish to state that, although we find no direct fault with the plow, we wish to return it on part payment of first note, as it is yet not a profitable investment in this locality, due to the soft uneven ground and small fields. Perhaps you had better send a man to look the tractor over and make arrangements, for as stated before, we will not make any remittance on notes until this matter is fully adjusted.”
    On December 23d, after defendants had had possession of the apparatus for about seven months, a new agreement was entered into between the parties with reference to the payment of the first note, which was then past due. Referring to this agreement, defendant testified:
    “Before he came up here and saw us I had asked them if they.would not accept back the plows and wanted $250 indorsed on the notes if I returned the •plows. That was along in November. Mr. Bates was up there in December, and we talked the matter over. The substance of our agreement was that we were to make a payment of $20, and did make a payment of $20, which was indorsed on the note, and that they were to allow $250 for those plows being returned, and we were to pay the note on the 1st of February following. We did not return the plows, but we did pay the $20. We did not pay the balance of the note in February.

      “Q. And after that you offered to pay $100 on the note if they would postpone it for a while, did you not?

      “A. I don’t remember what date. I don’t remember, but I probably have made the statement that we could not pay the note because the season had been a bad one, and we were financially unable to make the payments.”
    The balance of the note not having been paid in February according to this agreement, the plows were not returned, nor credit given therefor by plaintiff, and suit upon the note was thereafter started. Defendants continued to use the engine thereafter for the purpose of furnishing power to fill silos, grind feed, and thresh. Upon the trial, over the objection of plaintiff, defendants were permitted to introduce several letters and circulars written or issued by the plaintiff prior to the execution of the contract. These letters and circulars contained representations in the nature of warranties as to the character of the tractor and the work it would accomplish under specified conditions. Many of the alleged warranties contained in the circulars and letters are omitted from the written contract, and defendants were permitted to testify over objection that they would not have entered into the contract, but for the fact that they believed the representations contained in the circulars and letters. The case was tried by the court without a jury, and although, as he recites in his opinion, the record is barren of evidence as to defendants’ damages, he finds that the plaintiff was guilty of fraud and assesses defendants’ damages on account thereof exactly in the sum of the two notes sued upon with interest, and entered a judgment in favor of defendants for costs.

      On the question as to whether express warranty as to quality excludes implied warranty as to quality, see note in 33 L. R. A. (N. S.) 501, specifically as to where express warranty is super-added for benefit of buyer, see page 512 of above note.

   Brooke, J.

(after stating the facts). Defendants gave notice under their plea of the general issue that they would show in defense that they had been induced to sign the notes in question by false and fraudulent representations of the plaintiff, and that by reason of said fraud they had been greatly injured and damaged, which they claimed the right by way of recoupment to set off against the demand of the plaintiff and have the balance certified in their favor. In opening the case counsel for defendants said:

“Now, our defense is not for a breach of warranty or guaranty, but it is that we were induced to enter into a contract of which these notes are a part through a false and fraudulent representation of the plaintiff which we relied upon and which induced us to enter into the contract.”

Defendants rely in support of their contention for an affirmance of the judgment upon the case of Phelps v. Whitaker, 37 Mich. 72, and J. B. Millet Co. v. Andrews, 175 Mich. 350 (141 N. W. 578), and cases there cited.

Plaintiff insists that the c-ase is governed by the recent cases of Detroit Ship Building Co. v. Comstock, 144 Mich. 516 (108 N. W. 286); Witteman Co. v. Brewing Co., 183 Mich. 227 (150 N. W. 109); Linderman Machine Co. v. Shaw-Walker Co., 187 Mich. 28 (153 N. W. 34); and John D. Gruber Co. v. Smith, 195 Mich. 336 (162 N. W. 124). We are of opinion that the contention of plaintiff must prevail. In principle the case at bar cannot be distinguished from the four cases last above cited. In those cases we have held that, where the parties to a contract reduce it to writing and agree as to what warranties said written contract shall contain, other warranties growing out of antecedent representations may not be imposed upon the vendor. An examination of the contract in the case of Phelps v. Whitaker, supra, relied upon by defendants, discloses the fact that the contract itself was absolutely silent as to any warranties, and this is likewise true of the contract considered by this court in J. B. Millet Co. v. Andrews, supra. Representations in the nature of warranties antecedent to the contract cannot be urged as fraud in cases where the contract is in writing, and contains specific warranties. The evidence introduced upon the part of the defendants should have been rejected, and a judgment should have been entered for the plaintiff for the amount of the two notes.

Judgment reversed, with costs, and new trial granted:

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


text:
    BURTIS v. DAVISON.
    1. Landlord and Tenant — Duty to Make Repairs — Personal Injuries — Evidence—Question for Jury.
    In' an action by a sublessee on the second floor of a three-story flat building against the landlord to- recover damages for personal injuries received as the result of a porch railing giving way while she was leaning over it,, evidence ■ held, to present a question for the jury whether defendant made such inspection from time to time, as an ordinarily prudent man would have made -under like circumstances, where it appeared that second and third stories were occupied by numerous tenants for living purposes; that the building has a common stairway, and a porch on each floor level in the rear used by the tenants as a rear entrance, for hanging out clothes, and for pleasure purposes during warm weather, the railings of which were toe-nailed in the upright timbers, and that such stairway and porches had been in use for about 15 years.
    2. Same — Instructions.
    An instruction that it was the duty of defendant to make such an inspection “as would naturally disclose the defect, if it existed,” was erroneous.
    Error to Genesee; Stevens, J.
    Submitted October 9, 1917.
    (Docket No. 62.)
    Decided December 27, 1917.
    Case by Anna Burtis against Mathew Davison for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      George W. Cook, for appellant.

      Lee & Parker, for appellee.
    Defendant is the owner of the Davison Block, situate in the city of Flint. This block is a three-story brick building facing South Saginaw street. The ground floor is divided into three stores. The second and third floors are used for flats or living rooms. There is one common stairway used by all tenants occupying the second and third floors of the building leading from South Saginaw street to the second floor. At the east or rear end of the building is a porch extending the entire width of the building also used in common by all the tenants, occupying the second and third floors. A porch landing is constructed level with the second floor, with a porch roof above for the use of the tenants above. The porch roof and the second floor landing are supported by posts 6 inches square, set about 6 feet 8 inches apart. Between these posts and about 21/2 feet above the second floor landing are 2x4 pine scantling, toenailed into the posts at either end and used as a porch' railing. The second floor landing of this porch is 16 feet above the ground and was used in common by all the tenants of both' the second and third floors as a rear entrance to their living rooms,' also for hanging out clothes, etc., and to sit upon summer evenings. The building had been constructed more than 15 years, but there is evidence that the porch was repaired some 10 or 15 years prior to the injury to plaintiff. At that time there were some 8 or 10 different tenants occupying rooms on the second floor. Plaintiff with her husband and son were subtenants occupying the southerly rear suite on the second floor. She had lived there from the spring of 1915. The accident occurred November 16, 1915. It is her claim that she went out on the back porch to look for her husband; that she put her hands on the railing between two of the posts, leaning lightly over the railing to look for her husband; that the railing gave way and she fell to the ground below, her fall being partially arrested by two electric light wires about a foot below the porch floor. She brought suit against the defendant, claiming damages for injuries sustained by the fall. Upon the trial, the jury under the direction of the court inspected the premises and examined the place at which the railing fell, and the railing which had fallen was an exhibit in the case. Plaintiff obtained a verdict in the sum of $2,711.63, upon which judgment was thereafter entered.
    At the close of the testimony defendant’s- counsel moved for a directed verdict upon the grounds:
    (1) That there was no evidence in the case showing negligence or breach of duty upon the part of the defendant.
    (2) That the defect complained of, as a matter of law, was a hidden defect, and there was no evidence that defendant had any knowledge of such defect or that he could have obtained such knowledge by the use of reasonable and ordinary care.
    The court reserved decision upon this motion under Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568 et seq.), and submitted the case to the jury. ■Thereafter counsel for defendant moved the court to decide said motion, and also asked for a new trial if the motion for a directed verdict should be denied. Both motions were denied and the case is now in this court for review.
   Brooke, J.

(after stating the facts). Defendant offered the testimony of himself and his agent, Mr. Myers, tending to. prove that frequent inspections were made of the premises, including the railing which fell. Based, we presume, largely upon this testimony, ■defendant claims that he was entitled to a directed verdiet upon the ground that no negligence or breach of duty had been shown.

With this contention we are unable to agree. It is our opinion that considering the character of the construction, the use to which porch railings are ordinarily put, and the knowledge possessed on the part of the defendant that plaintiff and his other tenants would be likely to use such railing in the ordinary and usual manner, the question whether defendant had caused such inspection to be made from time to time, as an ordinarily prudent man would have made in like circumstances, was one for the jury. • A motion to direct a verdict was therefore properly denied.

Defendant submitted many requests to charge. All of these requests pertinent to the issue were given by the trial judge, among them the following:

“Sixth. In cases where the landlord is liable for repairs it is his duty from time to time to make reasonably safe and prudent inspection of the premises and to ascertain whether or not any of such common stairways, halls, or porches are in proper condition of repair, and if he makes or causes to be made such reasonable inspection from time to time as an ordinarily prudent and careful man would do under like circumstances and conditions and repairs the parts found to need the repairs, and makes such repairs in a reasonably careful and prudent manner, then he has fully conformed to all requirements of law.. Now, that will be taken in connection with what I shall say hereafter.
“Seventh. The landlord is liable for injuries caused by defects in passageways, stairways, and other places used in common by the tenants, only if guilty of negligence or want of reasonable care, and when he has no actual notice of the defect, and the defect is of such recent origin or is of such character that he could not be expected in the exercise of such ordinary care and diligence to be aware thereof, he is not liable for resulting injuries if he makes the necessary repairs upon the same within a reasonable time after such notice.
“Eighth. Applying these principles, therefore, to the case at bar, I charge you that if you find there was neither visible nor hidden defects in the railing at the place the plaintiff claims to have fallen — I have added this — ‘and if you further find that the defendant had made proper investigation and inspection/ then there is no case against the defendant, and your verdict must be for the defendant.
“Ninth. If you should find that there was a hidden defect in this railing, and that such defect was not observable by the use of ordinary care and caution in inspection of the premises, and that defendant had no knowledge of such hidden defect and could not have discovered such hidden defect by reasonable care and inspection, and if there was nothing in the character, conditions, or circumstances that would lead the mind of an ordinarily reasonable and prudent man to believe that there might be a defect in the railing, then there is no case made against the defendant, and your verdict would be no cause of action.
“Tenth. If you find that this place and this railing was in a reasonably safe, condition at the time of the accident, then of course the defendant would not be guilty of negligence, and your verdict should be no cause of action. * * *
“Thirteenth. If you find in this matter that the defendant made or caused to be made reasonable and proper inspection of the common stairways, halls, and porches, and especially of this railing, and was' unable to discover any defect therein, and had no knowledge of any defect, and could not have discovered such defect by due and reasonable inspection and investigation, then he was not guilty of want of lawful care, and your verdict must be no cause of action.
“Fourteenth. I further charge you that the degree of care required by the defendant was only such care as a reasonably careful and prudent man would exercise under the same circumstances and under like conditions, and if the defendant did all that an ordinarily careful and prudent man would have done under like circumstances and conditions, then he is free from negligence and plaintiff cannot recover.”

These instructions were qualified by the following:

“Gentlemen, you will notice the word ‘inspection’ used; ‘investigation and inspection.’ It seems to be conceded by both, parties it was the duty of Mr. Davison, the defendant in this case, to investigate and make inspections to determine whether this was a safe place or otherwise. Now, he testifies, and his agent, Mr. Myers, testifies, that they were up there occasionally, or frequently, as the case may be, and when they were up there they put their hand ón this railing to see if it was loose, etc.; they told what they did. Now, an inspection means this; an inspection means such an inspection as would naturally disclose the defect if any existed. Do you understand that? It is such an inspection that would naturally disclose the defect if it existed.”

Again later in the charge the court said:

“Now, gentlemen, I do not think there is any necessity of saying anything any further. I told you what a proper inspection is according to my view, and I told you what degree of care should be exercised by Mr. Davison, and that care is such as a reasonably prudent man would exercise under the same circumstances.”

* The only other assignment of error argued by the defendant is the one based upon the qualifying language used by the learned trial judge. It is asserted that such language practically imposed upon the defendant that degree of care which an insurer would owe. On the other hand, it is urged by plaintiff, that the language used by the court after the objectionable instruction was given cured any error based upon said instruction. We have no doubt that the court was in error in instructing the jury that it was the duty of the defendant to make “such an inspection as would naturally disclose the defect if any existed,” and we are unable to say that this erroneous view of the law is not reflected in the verdict.

The judgment must be reversed, with costs, and a new trial granted.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Fellows, JJ., concurred with Brooke, J. Bird, J., concurred in the result.


author: Kuhn, C. J.

text:
    SCHURTZ v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Injunction — Illegal Contracts — Rights of Taxpayer.
    A taxpayer may file a bill to enjoin the payment by a city of a claim for legal services under an alleged illegal contract.
    2. Same — Pleadings—Irregularities—Intervention.
    Any irregularity in allowing an attorney to intervene in a suit by a taxpayer against a city to enjoin the payment of a claim for legal services under an alleged illegal contract with intervener will not be considered where the attorneys for the city ask that such attorney’s brief and argument be considered as that of the city.
    3. Same — Grand Rapids Charter — Public Policy.
    A city charter is a declaration of the public policy of the city.
    4. Same — Grand Rapids Charter — “Void or Voidable” — Contracts — Public Policy.
    Under a city charter providing that no officer of a city shall be a party to or directly or indirectly interested in, or be the beneficiary of, any work or contract with the city, and that any contract made in violation of its provisions shall be absolutely void and of no effect “against the city, or any board or department thereof, including the board of education,” and that every member of a partnership shall be considered as interested, a contract by a member of a law firm with a city, of the council of which another member of the firm is a member, for the performance of legal services is merely voidable, and at the instance of the city only when deemed best for the public interests, since, by the specifications of those against whom the contract should be void it was not intended to make them void as against any other party.

    Appeal from superior court of Grand Rapids; Dun-ham, J.
    Submitted October 5, 1917.
    (Docket No. 36.)
    Decided December 27, 1917.

      Bill by Perry Schurtz against the city of Grand Rapids and Sheridan F. Master to enjoin the payment of a bill for legal services by defendant Master. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Shelby B. Schurtz, for plaintiff.

      Ganson Taggart and Charles A. Watt, for defendant city.

      Grant Sims and Sheridan F. Master, for defendant Master.
    Plaintiff, as a resident taxpayer and qualified elector of the city of Grand Rapids, filed a bill against said city in the superior court thereof, praying for a perpetual injunction restraining said defendant from paying Sheridan F. Master the sum of $1,530.58 as attorney fees; also for a temporary restraining order preventing such payment until defendant should, pursuant to an order therefor, show cause why an injunction should not issue for the purpose stated until the final hearing of said bill. On the following day Sheridan F. Master petitioned for leave to intervene as a defendant, and plaintiff thereupon filed a motion to dismiss said petition, for the reason, among others, that the petition was not accompanied by any answer. A hearing was had within a few days, with the result that the court granted Master leave to intervene; whereupon defendant Master filed an answer and made a motion to dismiss plaintiff’s bill, which motion was at once heard by the court. The city of Grand Rapids appeared at this time by the city attorney, who took part in the hearing on Master’s motion, and after the hearing was concluded, and on the same day, filed an answer and a motion to dismiss plaintiff’s bill, on behalf of the city. Several days, thereafter the court filed ail opinion and entered an order dismissing plaintiff’s bill. From this final order plaintiff appeals.
    The controversy arose because of the employment of defendant Master by the city to defend, on its behalf,, three certain actions brought to test the constitutionality of its charter, two in the superior court of Grand Rapids, and the other in the circuit court for the county of Kent, and also for the defense of two of said suits in this court on appeal. See Kopczynski v. Schriver, 194 Mich. 553 (161 N. W. 238); Schurtz v. City of Grand Rapids, 195 Mich. 751 (162 N. W. 296). The validity of this employment is contested by plaintiff on the ground that at the time of such employment Elvin Swarthout, an alderman of said city and chairman of the ways and means committee of the common council, was the law partner of said Sheridan F. Master.
    It is admitted upon the record that Alderman Swarthout was. the law partner of defendant Master at the time of the employment in question and at the time of the performance of the services and the allowance of the bill therefor, although it appears that Alderman Swarthout did not vote upon such, allowance. Counsel for appellant states in his brief:
    “There is no question but that the services were performed by Master, and that the city of Grand Rapids ought to pay Master unless the charter of Grand Rapids prohibits such payment.”
    Plaintiff’s bill is based on Act No. 593, Local Acts of 1905, tit. 16, § 18, which is in part as follows:
    “No officer or employee of the city or any department thereof or of the board of education shall be a party to or directly or indirectly interested in or be the beneficiary of any work,. contract, purchase or sale, for, with, from or to the city, or any department thereof, including the board of education; or to or in any work, contract, purchase or sale with any contractor in relation to any work, contract, purchase or sale for, with, from or to the city or any department thereof, including the board of education, or in any work, contract, purchase or sale in which the city, including the board of education, has a direct or indirect pecuniary interest. Bids or contracts for or purchases of any material, machinery, process or thing, which, or the supply of which, is controlled by one person or company, or which is in any sense a monopoly, shall not be invited or made by or on behalf of the city or any department thereof, including the board of education, included with other things to be bid upon or purchased, but must be invited and made separately. Any contract, purchase, sale or bid made in violation of the provisions of this section shall be absolutely void and of no force or effect against the city or any board or department thereof, including the board of education. Any officer, member of a board or employee of the city, or of the board of education violating any of the foregoing provisions shall be forthwith deprived of his office or employment under the city government, if a city officer, board member or employee, pursuant to section eleven of title II of the city charter; if a member of the board of education or of the library commission, he shall be removed by those bodies under provisions substantially conforming to said section eleven of title II of the said city charter. In construing this section every member of the common council (but with reference only to work, contract, purchase or sale directed or made by the council), and every member of any board provided for in this act (but with reference only to work, contract, purchase or sale directed or made by such board) shall, be considered an officer of the city, and in every case every member of an interested partnership and every stockholder of an interested corporation or joint stock association, excepting public service corporations, shall be considered interested. The prohibitions of this section shall not apply in case the work, contract, purchase or sale in question is directed or made by the council, or by any board provided for in this act, if said council or board shall declare on its records, by resolution adopted by three-fourths of the entire membership, that such work, contract, purchase or sale to or with such interested person is necessary for the best interests of the city, notwithstanding such prohibition.”
    It is plaintiff’s claim that the employment of the defendant Master as attorney for the city was absolutely void under the terms of said section, and hence that he is not entitled to any compensation for the services rendered.
    The three cases which Master was employed to defend were decided in favor of the defendants in the lower courts, and the two cases which were appealed resulted in an affirmance by the Supreme Court. A report of the final determination of these cases was made to the council at its meeting on March 5, 1917, by defendant Master and Messrs. Jewell & Smith, who were associated with him, and at the same meeting Master presented his bill for services and disbursements in said matter, which, after reference to committees and after some discussion and attempted action at several meetings, was, at the meeting of April 30, 1917, approved and ordered paid by a vote of 16 to 3, one of the three being Alderman Swarthout, who was excused from voting. This resolution to pay was vetoed by the mayor, and on May 5, 1917, the council passed the same resolution over the mayor’s veto by the same vote as at the former meeting. It is to prevent the payment of this bill that plaintiff has instituted these proceedings.

      As to obligation of public corporation for services rendered under contract in which officer is personally interested, see note in 34 L. R. A. (N. S.) 129.

   Kuhn, C. J.

(after stating the facts). In the opinion filed by the judge of the superior court some doubt is expressed as to the propriety of the plaintiff’s filing this bill. We are of the opinion, however, that plaintiff had a right to initiate this proceeding, under the authority of McManus v. City of Petoskey, 164 Mich. 390 (129 N. W. 681), in which case this subject is fully discussed, and the cases in support of this conclusion cited.

We do not think there is any merit to the contention that Mr. Master should not have been allowed to intervene and be heard in this case. The attorneys for the city say in their brief:

“If anything in the proceedings can be considered irregular, we ask that his brief and argument may be, if necessary, treated as made by counsel for the city.”

In view of this statement, we shall consider that his brief is filed in behalf of the city, and thus any irregularity, if any, in the practice of allowing his intervention need not be considered.

We now approach the discussion of what, we consider the important question in the case: Does the provision of Act No. 593, Local Acts of 1905, tit. 16, § 18, above quoted, render the contract between the city of Grand Rapids and Mr. Master absolutely void, or merely voidable?

While the contention of defendants’ counsel is unquestionably true that the term “void” has often been used loosely and inaccurately in statutory provisions, and that “the words ‘void’ and ‘invalid,’ when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties, or some one legally interested therein” (Doney v. Laughlin, 50 Ind. App. 38 [94 N. E. 1027]), it is equally true that in the construction of provisions aimed to prevent the evil against which the particular provision here in question is directed the great weight of authority is to the effect that the word “void” in such cases is used in its literal sense of “null or of no effect from the beginning, and not admitting of ratification.” United States v. Dietrich, 126 Fed. 671; Capron v. Hitchcock, 98 Cal. 427 (33 Pac. 431); City of Greenfield v. Black, 42 Ind. App. 645 (82 N. E. 797). Even in cases where the statute prohibiting such contracts fails to expressly declare them void, nevertheless, if the statute imposes a penalty for the making of such a contract, there is no doubt of the general rule of law that the courts will neither enforce that contract at the suit of one party nor, if the contract has been executed, aid either party to recover back anything he may have paid thereon. In such cases:

“The courts infer a legislative intent that the contracts shall be void, because to enforce the contract would practically set the statute at naught.” Laun v. Insurance Co., 131 Wis. 555 (111 N. W. 660, 9 L. R. A. [N. S.] 1204).

This court, in the recent case of Ferle v. City of Lansing, 189 Mich. 501 (155 N. W. 591, L. R. A. 1917C, 1096), followed this rule, and, in the absence of express nullifying words, held that a contract made in violation of a penal prohibitive provision in the city charter was absolutely void, and affirmed a decree enjoining the city from paying for materials furnished to it under such a contract.

The ground upon which the construction of the word “void” in this class of cases is distinguished from the more liberal interpretation adopted in most other instances is referred to in the case of Doney v. Laughlin, supra, one of the cases cited by the appellees in support of the contention that the word should be construed as “voidable.” The following is taken from 50 Ind. App. at page 42 (94 N. E. 1027, 1028), in the opinion:

“It has also been held that: Tf it concerns the pub-lie good, it is generally to be considered void; but if it is prohibited for the purpose of securing the private rights of the parties interested, it is only voidable. Where the public interest is not concerned, it is sufficient to allow the party who may be prejudiced by an unlawful sale or contract to avoid it.' Mutual Benefit Life Ins. Co. v. Winne, 20 Mont. 20 [49 Pac. 446].
“See, also, Fletcher v. Stone, 3 Pick. (Mass.) 250; Veeder v. Trust Co., 61 Neb. 892 [6 N. W. 982]; Van Schaack v. Robbins, 36 Iowa, 201; Denny v. McCown, 34 Or. 47 [54 Pac. 952].”

This same ground of distinction was suggested by-Mr. Justice Cooley in his opinion in the case of Beecher v. Rolling Mill Co., 45 Mich. 103 (7 N. W. 695), where he said:

“Mr. Justice Bayley in one case intimated that the word ‘void’ in a statute might be construed ‘voidable’ where the provision is introduced for the benefit of parties only, but not where it is introduced for public purposes and to protect those who are incapable of protecting themselves (Rex v. Hipswell, 8 B. & C. 466, 470), and though this distinction has been questioned (Rex v. St. Gregory, 2 Ad. & El. 99, 107), much good reason lies at the foundation of it. If it is apparent that an act is prohibited and declared void on grounds' of general policy,, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it.”

Inasmuch as “the charter itself is the declaration of the public policy of the city” (Ferle v. City of Lansing, supra), if the language of the act here in question clearly and unequivocally declares the contract absolutely void, we are convinced that the contention of the appellant must be sustained and the word given its literal meaning.

It is claimed, however, that there is no such unqualified declaration in the act in question, but that the word “void” is qualified in two respects: (1) By adding to it the words “against the city, or any board or department thereof, including the board of education”; (2) by expressly providing a method in which a contract of the kind declared void may be lawfully entered into.

The wording of this statute is unusual and peculiar, and we feel constrained to give these contentions careful consideration, because there is ample authority to sustain the conclusion that even in the case of statutes designed to protect the public interests or promote some public policy the rule is not invariable that the word “void” must be given its literal meaning, but the whole purview of the statute may sometimes indicate that the word is used in the broader sense of “voidable.”

“Where the contract is declared ‘void’ by statute, and the statute is within the power, of the legislature to enact, there is not much room for discussion, although even then the whole purview of the statute ■may indicate that the word ‘void’ is used in the sense of ‘voidable.’ ” Laun v. Insurance Co., supra.

The exact wording here involved is:

“Any contract, purchase, sale, or bid made in violation of the provisions of this section shall be absolutely void and of no force or effect against the city, or any board or department thereof, including the board of education.”

Were the language merely, “shall be ábsolutely void and of no force or effect,” it would be difficult to escape the conclusion that such a clear declaration of the legislative intent to render,such contracts absolutely null and ineffective from their inception must prevail, and the words be given their obvious meaning. Those words alone would have made such contracts wholly void as against the city and any board or department thereof, as well as against all other parties and for all effects and purposes. The added words clearly limit and qualify the effect of the word “void.” “Expressio unius est exclusio alterius.” Having specified against whom such contracts shall be considered absolutely void, there is no room for the contention that it was intended to declare them void as against any other party. And when a situation arises in which a contract is void as to one party and in force as to the other, is not the exact situation of a voidable contract presented? The contract is not wholly inert and lifeless; for some purposes it has efficacy and its provisions may to some extent be enforced. We are unable, therefore, to find in this provision the legislative intent to declare such contracts wholly void for the protection of the interests of the public, who are not parties to the contract and are unable to protect themselves, but rather the purpose and intent to give the city the option of treating such contracts as void whenever it may seem to best serve the public interests to do so.

In the instant case the defendant the city of' Grand Rapids makes no claim that the contract is void, evinces no desire to avoid it, but, on the contrary, asserts the validity thereof, admits that the services have been rendered and that it stands ready and willing to pay for same, and actively contests the effort of plaintiff to prevent it from so doing. No one but the city can raise the objection, and inasmuch as it has not done so, we have no ground for interference with the proposed payment of Mr. Master’s bill by the city authorities.

Under this view of the situation, it becomes unnecessary to discuss the effect of that provision of the act which sets forth a method whereby such contracts may be legally entered into, or to consider the question of whether or not proper steps have been taken for a ratification of the contract in question.

The decree dismissing plaintiff’s bill of complaint is affirmed, but without costs.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    PEOPLE, for use of MOL, v. SOUTHERN SURETY CO.
    1. Appeal and Error — Amendments—Extension of Time.
    Amendments to findings of a trial court may be proposed within ten days after judgment and not afterwards, unless the time is.extended.
    2. Same — Presumptions.
    Where findings of a trial court are not proposed within ten days after judgment as required, and the time is not extended, it will be presumed on error that the evidence warranted the findings.
    3. Municipal Corporations — Contracts—Interest of Members of Council — Evidence—Sufficiency.
    In an action by the people, for the use of a subcontractor, a member of a city council, against the surety on the bond of a- building contractor, evidence held, sufficient to show that prior to the making of the contract there had been no talk, agreement or contract between plaintiff and the principal contractor that the contractor would purchase any material from plaintiff for use in the contract with the city.
    4. Same — Contracts—Interest of Members of Council — Validity.
    A member of the common council of the city of Grand Rapids who enters into a contract for the supply of materials with a city contractor for use in street improvements is not interested in a contract between the contractor and the city within the prohibition of the city charter, revision 1905, § 498, providing that no officer shall .be a party to or directly or indirectly interested in, any work, contract, purchase or sale with any contractor in relation to any work, contract in, with, or to the city, or 'in any work, contract, purchase or sale in which the city has a direct or pecuniary interest, and making such contracts void, where he entered into his contract after making of the contract between the principal contractor and the city and he had no talk, and made no agreement with such contractor, before making the contract with the city, that the contractor should buy materials from him.

      5. Same — Contracts—Validity—Who Entitled to Question.
    Only the city could complain, of the invalidity within the ordinance of the contract of a member of the council to furnish materials to a street improvement contractor.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted October 12, 1917.
    (Docket No. 104.)
    Decided December 27, 1917.
    Assumpsit by the people of the State of Michigan, for the use and benefit of James Mol, against the Southern Surety Company and another on a bond. Judgment for plaintiff. Defendant surety company brings error.
    Affirmed.

      Jewell & Smith, for appellant.

      Charles A. Watt and Sheridan F. Master, for appellee.
    On April 13, 1916, and June 5, 1916, defendant Jansma entered into two contracts with the city of Grand Rapids by the terms of which, for a stated price, he was to improve two short streets in said city. Upon entering into said contracts defendant Jansma gave two several bonds to the city with the defendant the Southern Surety Company as surety thereon, conditioned upon the faithful performance of said contracts by said Jansma and the payment by him of all subcontractors and materialmen furnishing material or labor in the performance of said contracts. The method pursued by the municipality in the letting of these contracts is as follows: The common council first passes a resolution requesting the board of public works of the city to furnish an approximate estimate. The estimate' is furnished by the board of works. Then the council passes a resolution declaring the improvement to be necessary, and providing for the method of payment, whereupon a contract is prepared by the board of public works, which is submitted to the common council and a resolution adopted approving the contract and instructing the mayor to execute it on behalf of the city. The necessary resolutions covering the improvements in question were passed by the common council by not less than 19 out of 24 members; none voting in the negative. At the time these several contracts were let to defendant Jansma, plaintiff, Mol, was a member of the common council of the city of Grand Rapids, and voted in the affirmative on the several resolutions pertaining to said contracts. Thereafter and between June 2, 1916, and August 22, 1916, plaintiff furnished to defendant Jánsma cement, tile, and brick used by the defendant in the construction of said streets to the amount of $T,174.03, upon which defendant paid the sum of $494.87, leaving a balance unpaid of $679.16. This balance not having been paid, plaintiff brought suit upon the bond against defendant Jansma, and his surety, the Southern Surety Company. To this declaration defendants filed a plea of the general issue, giving notice thereunder that they would claim that the contract between plaintiff and defendant was void and illegal because the same was made in violation of the charter of the city of Grand Rapids (Act No. 593, tit. 16, § 18, Local Acts 1905), which, so far as pertinent, reads as follows:
    “No officer * * * shall be a party to, or directly or indirectly interested in, * * * any work, contract, purchase or sale with any contractor in relation to any work, contract, * * * in, with, from or to the city, * * * or in any work, contract, purchase or sale in which the city, * * * has a direct or indirect pecuniary interest. * * * Any contract, purchase, sale or bid made in violation of the provisions of this section shall be absolutely void and of no force or effect against the city. * * * The prohibitions of this section shall not apply in case the work, contract, purchase or sale in question is directed or made by the council or by any board provided for in this act if said council or board shall declare on its records by resolution adopted by three-fourths of the entire membership that such work, contract, purchase or sale to or with such interested person is necessary for the best interests of the city, notwithstanding such prohibition.”
    This claim on behalf of the defendant is based upon the fact that at the time the merchandise was furnished by plaintiff to the contractor¿ Jansma, plaintiff was a member of the common council of the municipality with which defendant Jansma had contracted. The case was heard by the court without a jury. Findings of fact and law were filed, and judgment was ordered entered in behalf of plaintiff for the full amount of the claim, with interest, $692.

      On effect of indirect interest of public officer in performance of contract for construction of public improvement, see note in 50 L. R. A. (N. S.) 1140.

   Brooke, J.

(after stating the facts). The findings of fact and law were filed and judgment entered on May 28, 1917. No amended findings either of fact or law Were proposed by defendant, but written exceptions were taken thereto and filed on June 22, 1917. We have held (Thurber v. Aldrich, 167 Mich. 656 [133 N. W. 620]) that amendments to the findings may be proposed within ten days after judgment, but not after-wards, unless time therefor is extended, and, further, that unless proposed it will be assumed on error that the evidence warranted the findings (Becker v. Headsten, 137 Mich. 478 [100 N. W. 752]; Cudney v. Sherrard, 153 Mich. 239 [116 N. W. 1014]).

The first five, the ninth, and tenth assignments are based upon the assertion that the findings of fact were against the clear weight of the evidence. Under our interpretation of this statute in Re Cutter’s Estate, 194 Mich. 34 (160 N. W. 605), we should not disturb these findings as being against the “great weight of the evidence.”

The sixth assignment is that the trial judge erred in finding, as a matter of law, that although the plaintiff, under the charter of the city of Grand Rapids, could not collect the account owing to him by defendant Jansma from the city, yet “this infirmity to such prosecution does not exist.against any other person, firm, or corporation by reason of the prohibition of this statute. I do not believe that the prohibition of this statute extends to such contracts as the one under consideration,” etc.

This determination by the trial court raises the meritorious question in the case. The court found as a matter of fact that prior to the making of the contracts between Jansma and the city there was no talk, agreement, contract, or understanding between plaintiff and Jansma to the effect that defendant Jansma would purchase any material from the plaintiff for such improvements, and with this finding of fact we agree. .Broadly stated and carried to its logical conclusion, the position of defendant is: That an alderman is

prohibited by the charter- provision under consideration from sustaining any business relations whatever with any person who has a contract with the municipality of which he is an officer. We are of opinion that it was not the legislative intent to carry the inhibition so far. It is, we think, quite clear from this record that plaintiff, Mol, was neither directly nor indirectly interested in the contract between Jansma and the municipality. It is to be noted that the charter provision makes such a contract “void and of no force or effect against the city.” We are of opinion that under this charter provision the city alone may raise the question. See Schurtz v. City of Grand Rapids, ante, 20 (165 N. W. 766), handed down herewith. Here the city has accepted the benefits of the contract, and (it is asserted) has fully paid for the improvement. The contest is between the materialman and the surety upon the bond only.

The case at bar under the facts, and a materially different charter provision is readily distinguishable from the case of Ferle v. City of Lansing, 189 Mich. 501 (155 N. W. 591, L. R. A. 1917C, 1096), relied upon by defendant.

The judgment is affirmed.

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


text:
    BELL v. REED.
    1. Deeds — Boundaries—Tenants in Common.
    Where the owners of land along a lake divided it into sixteen lots which faced a reserved right of way running through the center of the tract to the lake and between the platted lots and the lake there was a piece of ground, and they sold two lots to two persons and two sixteenth undivided interests in the land fronting on the lake to be used as a private common with the owners of the lots, it must be deemed to have been the intention of the owners to grant the beneficial enjoyment of the lake frontage to each purchaser for customary purposes, and the erection of a boathouse by one of the grantees was proper, and the right to use the lake frontage for such purpose was not lost by the sale of a lot by a purchaser under a deed not including his portion of the lake frontage.
    2. Licenses — Oral License — Revocation.
    Where the owner of land along a lake through his agent orally permits an abutting lot owner to erect a boathouse on the lake frontage an oral license is created which is binding until revoked by the licensor..
    Error to Ottawa;-Cross, J.
    Submitted October 19, 1917.
    (Docket No. 72.)
    Decided December 27, 1917.

      Ejectment by William Otto Bell and others against Henry A. Reed and another. Judgment for defendants. Plaintiffs bring error.
    Affirmed.

      Lillie, Lillie & Lillie, for appellants.

      Louis H. Osterhous, for appellees.
    Prior to July 1, 1914, plaintiffs were the owners as tenants in common of a tract of land lying between Barber street in the village of Spring Lake on the south and Spring Lake on the north in Ottawa county. This strip of land was approximately 440 feet north and south and approximately 150 feet east and west. Desiring to market it, plaintiffs prepared a sketch or plat, which, however, never was recorded. According to this plat, they divided the southerly 400 feet of said strip of ground into 16 lots. These lots, faced a reserved right of way 20 feet wide running north and south through the center of the plat, and the lots were 50-foot frontage on said way by 75 feet deep. North of said platted lots and between them and the lake there was an irregular piece of ground, having a varying depth with a frontage upon the lake of approximately 200 feet. This plot of ground was neither numbered upon the plat nor staked out upon the ground. On said 1st day of July, 1914, the plaintiffs sold to the defendants by metes and bounds one of the 16 lots (lot 10), and in the same instrument conveyed to defendants—
    “also an undivided one-sixteenth of a piece or parcel of land north of the south 400 feet of said first-described parcel, and extending to the waters of Spring Lake, to be used as’ a private common with the owners of the lots in the said first parcel.’-’
    Very shortly thereafter defendants, desiring to erect a boathouse at some point on the frontage, conferred with one Samuel Falls, who was the agent for plaintiffs and who had negotiated the sale to defendants. Falls went upon the ground with defendants, and upon paper divided the lake frontage by 16, and found that each one of the 16 owners would be entitled to about 13 feet thereof. Defendants then, with the consent of Falls, selected a point upon the front for the erection of their boathouse just east of the roadway through the center of the piece, if extended, and thereafter erected a structure thereon 12 feet wide and 24 feet long, built partially upon the land, but principally over the water. Later defendants erected upon lot 10 a house, and still later, and on August 9, 1915, sold the house and lot 10 to one William Savidge, since de-. ceased, for a consideration of $1,200. This deed contained no reference to defendants’ one-sixteenth interest in the unplatted portion of the land lying upon the lake front. Plaintiffs in the meantime and on August 3, 1914, had sold one other of the 16 lots to other parties, and had likewise conveyed to the grantees in that deed a one-sixteenth interest in the unplatted lake frontage.
    A year after the sale to Savidge, and on August 4, 1916, plaintiffs filed a declaration in ejectment against defendants to which declaration defendants interposed a plea of the general issue. The case was heard by the court without a jury. Upon the trial evidence was introduced, over the objection of defendants, tending to show that plaintiffs, who still owned fourteen-sixteenths of said property, advertised the same for sale as lake frontage; that said lake frontage is commonly and beneficially used in that vicinity for the erection of boathouses or slips, and that it has no other use. Evidence was further introduced tending to show that the boathouse in question had been erected with the consent of plaintiffs’ agent, who was marketing the property, and with the knowledge of one of the plaintiffs; that no objection had been raised to the building of said boathouse or its. occupation by the defendants until the declaration in ejectment was filed.
    The learned circuit judge who heard the case, after • reciting the facts, held:
    “The boathouse is about 12 feet wide, which is less than one-sixteenth of the water frontage. Defendants have in no manner denied the plaintiffs the right to use the balance of the water frontage not inclosed by the boathouse of defendants. Spring Lake is a summer resort with numerous cottages, boathouses, etc., along its shores. Defendants conveyed lot 10 to William Savidge, but did not convey any of the water frontage. The deed given by the plaintiffs contains no restrictions as to the erection of boathouses on the shores of the lake. It is presumed that the shores would be used for such purposes as are appropriate in such a locality. The erection of a boathouse or slip would be necessary for the proper enjoyment of the land in question. The deed contains no restrictions that defendants, cannot sell lot 10 and retain title to the shores' of the lake. Plaintiffs have failed to make out a cause of action. It is therefore ordered that judgment be entered against the plaintiffs and in favor of the defendants with the costs to be taxed.”
    The case is now in this court for review.
   Brooke, J.

(after staling the fads). The first 17 assignments are predicated upon alleged errors in the admission or exclusion of testimony. In our view of the case these assignments require no discussion.

The 18th assignment is based upon the findings of fact and of law by the court below. We are well satisfied that the defendants took by their conveyance from the plaintiffs title in fee simple to an undivided one-sixteenth interest in the water frontage. We are equally well satisfied that defendants could make a conveyance of lot 10 and retain title to said one-sixteenth interest. The purchaser from defendants of lot 10 acquired no interest in the lake frontage, and the deed from plaintiffs to defendants contains no Iimitations upon the right of defendants to convey the lot without likewise conveying the undivided one-sixteenth interest- in the lake frontage. It is difficult to understand exactly what is meant by the language used in reference to the undivided one-sixteenth, “to be used as a private common with the other owners of the lots of said first parcel.” We have been unable to find any legal definition of the words, “private common,” and the diligence of counsel has failed to aid us in this respect. In the light of all the circumstances surrounding this case, the acts of the owners of the parcel in so dividing it as to give each lot owner a building site away from the lake, a right of way to the lake, and an undivided one-sixteenth interest in the lake frontage, it would seem to have been the intention of the owners to give to each lot purchaser an equal right to beneficially use the frontage for such purposes as lake frontage in that vicinity is ordinarily used. If the erection of small boathouses upon the frontage by the owners of the lots is a beneficial use of the property consistent with the character of the surroundings, it would seem that the erection of such a boathouse by the defendants would not be in contravention of the terms of the grant.

But it is contended on behalf of plaintiffs that defendants are, at most, tenants in common of said lake frontage, and as such tenants in common they have no right to appropriate any aliquot part thereof to their own use and to exclude therefrom their co-tenants. As an abstract legal proposition, this position is undoubtedly sound, but we do not think it controlling in the case under consideration. It appears undisputed in the record that the value of each of the 16 lots was less than the value of the undivided one-sixteenth of the lake frontage. It further appears undisputed that, while the plaintiffs were the owners of fifteen-sixteenths of the undivided parcel, they, through their agent, consented to the erection of a boathouse where it now stands by the defendants. Based upon this fact, defendants contend that the parties, then in interest orally agreed to a partition of the lands held by them in common, and that, at least to the extent of the lands covered by the boathouse, the agreement for partition having been executed by the building of the boathouse, plaintiffs cannot now question defendants’ title thereto. Upon this point defendants cite us to section 464, Gates’ Michigan Real Property, where it is said:

“Moreover, in several instances a parol partition followed by either long possession or by valuable improvements, has been held to be conclusive upon the parties” — citing Joyce v. Williams, 26 Mich. 332, and Cronin, v. Gore, 38 Mich. 381.

An examination of these cases, will demonstrate that upon the facts they are readily distinguishable from ■the case at bar, but if the acts of the parties in interest at the time the defendants’ boathouse was erected, where it now stands, do not amount to an oral agreement to partition the lands, held in common, now performed by the defendants, they still constitute a sufficient license from one cotenant to his fellow cotenant to warrant the erection of the structure. The record shows no revocation of said license, and until it is revoked we are of opinion that defendant may justly maintain his boathouse where it stands. See volume 25, Cyc. p. 647, where it is said:

“According to the better opinion, however, where nothing more than a mere oral license appears, it is' revocable at the will of the licensor, whatever expenditures the licensee may have made, provided the licensee has reasonable notice and opportunity to remove his fixtures and improvements. To hold otherwise would be to override the statute of frauds and convert an executed license into an estate in land, which is going a greater length than equity ever went under the doctrine of part performance.”

Cases from many jurisdictions are cited in support of the. above, including Hitchens v. Shaller, 32 Mich. 496, and Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338). There is no doubt that, in the absence of said license, the exclusive occupation by the defendants of any, even the smallest portion, of the property held in common, would operate as to the co-tenants of defendants as an ouster and would justify the bringing of ejectment. In this view of the case, defendants, upon proper notice, would be obliged to vacate the lands now covered by their boathouse, and neither they nor any of their cotenants could erect anything upon the water front, and thus the very purpose of the conveyance of the undivided interest there would, it seems to us, be defeated. That, however, would be the position of the parties according to their strict legal rights. As the matter stands upon this record, we think the conclusion of the trial court that plaintiff had failed to make out a case for relief was proper.

The judgment is affirmed.,

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