text:
    Orrin J. Eastman v. The Lake Shore & Michigan Southern Railway Company.

      Railroad companies — Failure to block switch — Injury to employé— Contributory negligence — Violation of rule— Conduct of counsel.

    1. The duty imposed upon railroad companies by 3 How. Stat. § 3397a, 'so to adjust, fill, or block the switches on their roads as to prevent the feet of employés or other persons from being caught therein, is not satisfied by the adoption of a method which the use of the road renders ineffectual with in two or three days.
    2. Stepping between moving cars to uncouple them is not, as a matter of law, negligence, but the question is one for the jury.
    3. It was held in Hunn v. Railroad Co., 78 Mich. 526, that it was . competent to show what was usually and habitually done in the running of trains, because, if a railroad company permitted a certain course of conduct, it ought not to be allowed to hold its employés to the very letter of its rules to shield itself from liability for what it had tacitly permitted.
    4. The statements of the plaintiff in a personal injury case as to' the manner of the accident, if inconsistent with his testimony on that subject, go to the credibility of the testimony, and are for the jury; citing King v. Lumber Co., 93 Mich. 172.
    5. Exceptions to improper remarks oí counsel for the plaintiff in a personal injury case in addressing the jury, which were provoked by the course taken by the defendant’s counsel upon the trial in respect to the matter commented upon, will not be sustained, unless it appears quite plainly that the verdict was influenced by said remarks; citing Sweet v. Railroad Co., 87 Mich. 559.
    Error to Jackson. (Peck, J.)
    Argued May 1, 1894.
    Decided September 25, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      C. B. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Barkworth & Blair, for plaintiff.
   McGrath, C. J.

Plaintiff, while engaged in uncoupling cars in the defendant’s yard, and while between moving cars for that purpose, got his foot caught in a stub switch, and was seriously injured.

3 How. Stat. § 3397a, provides that all railroad companies “ shall and are hereby required * * * to so adjust, fill, or block the frogs, switches, and guard rails on their roads, in all yards, divisional and terminal stations, and where trains are made up, as to prevent the feet of employés or other persons from being caught therein.”

Defendant insists that a verdict should have been directed in its favor because—

1. Plaintiff failed to prove that the switch was not properly blocked.

2. He failed to prove that he caught his' foot in that part of the switch that could be blocked.

3. He failed to prove that he was in the exercise of due and proper care.

4. He voluntarily violated the rules of the company and his contract with the company.

5. He needlessly exposed himself to extra hazard by stepping between the cars (if he was to go between them at all) just as he was coming to the switch, when he could just as well have waited until the switch and blocking were past. .

The method of blocking this particular switch was by inserting between the stationary rails a piece of wood about two inches thick, chamfered off slightly on the corners so as to allow it to be run in between the head and foot of the rails. The surface of the blocking .would be about an inch and a quarter below the surface of the rails and half an inch below the under side of the head of the rail. It does not appear when this blocking was placed in position. The defendant’s roadmaster testified that the flanges of the car wheels would constantly wear the blocking until it got beyond their reach; that frequently the blocking was split the same day that it was put in; and that in the course of two or three days the blocking would be worn down, through its entire length* so that its surface would be practically level with the head-chair, which was two inches below the surface of the rail,, and an inch and a quarter below the bottom of the head of the rail.

The object of the blocking is, of course, to prevent the foot or boot from getting below the flanges or projecting heads of the rails. The testimony tended to show that the method adopted for blocking this switch was defective, for the .reasons given by the defendant’s roadmaster; that other methods were in common use, which were simple, inexpensive, and efficient, the blocks being constructed with a grooved or guttered surface so as to allow for the passage, without interference, of the car-wheel flanges, furring out that part of the rail which is below the head, and making it flush with the edge of the head of the raiL The testimony further tended to show that the surface of the block at the time of the injury was from two to three, inches below the surface of the rails, and there was abundant testimony to show that plaintiff’s foot was actually caught between the rails, and that, in consequence, plaintiff was struck and thrown .down. Dr. Pratt, a physician, testified that soon after the accident he examined the blocking. He says:

“There was a block there which was apparently very old, although I presume sound; that is, it was covered with grease and dirt. But it struck me that it. was very low down; that is, I put my heel between the rails, — my shoe. My shoe could not catch, but it went down a good ways, so that if there was any flange on the heel it would probably have, caught. My heel would go down between the rails most any point with the shoe I had on, but it would not catch. It seemed to me that the blocking was pretty low. I know nothing about them, I am sure,— how it should be; but it seemed to be ample room to catch a heel anywheres along there, especially of a rubber boot.
“I examined the boot which Eastman wore. It gave evidence of the heel having been— The heel had been worn down very much on the outer side, and the heel had been, evidently by that accident, torn about two-thirds off from the outside. This part was all loose. The rubber was perfectly fresh; showed that it had been torn recently. It didn’t have any appearance as you see now. It was perfectly black, like you find it in a fresh tear of the rubber. There were scratch lines on this side and that side of the boot, as though by some way the boot had been ¡scraped along there; and I think that that boot is all right, just as I saw it there, except, of course, the markings are gone. The heel of the boot was torn about two-thirds off from the outer side, but still attached about one-third of its surface. ***********
“The heel of my shoe seemed to go down at least two and a half or three inches.”

The footings of the ends of the two stationary rails are covered by what is termed a “ head-chair,” which is about three inches wide and fifteen inches long, and is laid parallel with the tie, Between the rails this head-chair presents a convex surface, which rises to a point two inches below the surface of the rails. This head-cliair prevented the blocking from reaching the ends of the rails, leaving a space of about two inches and a quarter which was unblocked. It was contended by the defendant that it was useless to block over the head-chair, because the car-wheel flanges would cut out the blocking. The testimony tended to show, however, that it was unnecessary that the head-chair should be so constructed as to interfere with the blocking; that head-chairs in common use, made of iron with a flat surface, were equally as efficient, and admitted of the method of blocking heretofore suggested; and that the presence of the head-chair in use did not necessarily prevent the furring of the rails.

The defendant’s testimony tended to show that plaintiff was walking backward towards the ends of these stationary rails, and that his foot slipped in between the ends of the rails over the head-chair. Plaintiff’s testimony, however, clearly tended to show that his foot was caught at a point over the blocking, -and that he was not walking backward when his foot was caught. The court instructed the jury that if he was walking backward at that time he was guilty of contributory negligence, and could not recover.

The testimony tended to show that there were about two inches of snow on the ground; that there was a frog 58 feet north, and another stub switch 56 feet south, of this stub switch; that the cars were moving at the rate of between four and five miles an hour; that plaintiff put one foot between the rails, and attempted to draw the pin; that the pin had a nub on the lower end; that the pin stuck; that plaintiff then tried the other pin, but that was fast; that he then brought the other foot between the rails, and attempted to draw the first pin tried; that after the injury the uncoupling had not been made; that the cars • could not ordinarily be uncoupled when standing; that the work could not be done, in the absence of other appliances, without stepping between the cars.

The defendant’s yard conductor at the time testified that he was plaintiff’s superior at the time; that he was present; that the work was being done by plaintiff in the ordinary and customary manner; that “Mr. Eastman was doing it as I myself would have done it;” that the blocking was covered with snow; that it was customary in the yard to step between the cars while in motion to uncouple them; that “it is not impossible to uncouple cars when they happen to be on a down grade or a dead level, but, if the grade is the other way, then you could not uncouple the hind car very well, unless moving enough to -get slack. It is customary among railroad men to pull the pin while the train is in motion. That custom has continued as long as I have been in the yard. We do it in order to get our work done, and we could not do the work that is expected of us if obliged literally to obey the rules not to step between cars while in motion.”

These railroad yards are filled , with frogs and switches. It is the evident purpose of the statute to protect these very men in the performance of their work. Their duties bring them into the vicinity of, and over and upon, these switches. It is clear that the time that intervened between the first attempt to pull the coupling pin brought plaintiff upon this switch. It would take but a few seconds for the train to pass from the frog to the switch or from switch to switch. It was the defendant’s duty to adopt some reasonably safe and efficient system of blocking its switches. The duty is imposed by statute, and the statute is not satisfied by the adoption of a method which the use of the road renders ineffectual within two or three days.

Stepping between cars while in motion to uncouple them is not, as a matter of law, negligence, but the question is one for the jury. Gardner v. Railroad Co., 58 Mich. 592; Ashman v. Railroad Co., 90 Id. 567. It was held in Hunn v. Railroad Co., 78 Mich. 526, that it was competent to show what was usually and habitually done in the running of trains, because, if a company permitted a certain course of conduct, it ought not to be allowed to hold its employés to the very letter of its rules to shield itself from liability for what it had tacitly permitted. See, also, Ashman v. Railroad Co., supra. In Grand v. Railroad Co., 83 Mich. 564, the switch was what is known as a split switch," and could not be blocked. In the present case the ears were moving slowly. Not only did it appear that the work was being done in the manner in which it had been done for years, but it was done in the only way that the work required of the switchmen could be done. Indeed, this testimony is not disputed. In several of the cases cited by defendant’s counsel in which it is held that the switchman was guilty of negligence in acting in violation of the rule, a coupling stick was provided by the company, and its use was enjoined. Here none was provided, nor was its use suggested by the rule.

It is insisted that the plaintiff had, after the accident, made certain statements or admissions that he was walking backward at the time that his foot got caught, which were inconsistent with his testimony. Such statements go to the credibility of his testimony merely, and are for the jury. King v. Lumber Co., 93 Mich. 172. There was testimony as to the footprints in the snow that tended to corroborate the testimony given by plaintiff.

Exceptions are urged to remarks of counsel in addressing the jury. Counsel are entitled to give their views as to the amount of damages that should be awarded. They are also entitled to comment upon the circumstances under, which certain statements were alleged to have been made by the injured party, — his physical condition at the time. Counsel, however, went further, but we are satisfied that the remarks were provoked by the course taken by defendant’s counsel upon the trial in respect to the matter commented upon. Sweet v. Railroad Co., 87 Mich. 559.

A motion for a new trial was made, but, giving to the statute relating to the review of tbe decision of trial courts the construction contended for by defendant’s counsel, we do not think that the verdict should be disturbed. We have examined the record with care, and have discussed the facts quite fully, and are not prepared to say that the verdict was unwarranted. The learned trial judge instructed the jury fully and clearly as to the law, and we find no error in the record.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Edward C. Walker and Bryant Walker, Executors, etc., v. Charles W. Casgrain, Impleaded with Daniel Germain.

      Land contract — Vendor’s lien — Equity jurisdiction — Parties—Misjoinder — False representations of value.

    1. Equity has jurisdiction to enforce a vendor’s lien under a land contract upon the failure of the vendee to pay the purchase price of the land; citing Fitzhugh v. Maxwell, 34 Mich, 188.
    2. Where a bill is filed by the vendor in a land contract against the vendee and a former owner of the land, who negotiated the sale for the vendor, to enforce a vendor’s lien, such former owner alone can raise the question of his alleged improper joinder as a defendant.
    3. A vendee in a land contract, who is not a stranger to real-estate transactions, and who not only exercised his own judgment, after a personal examination of the land, as to its value in making the purchase, but relied upon the judgment on that subject of a third party, to whom he intrusted the matter of such purchase, and who alone saw the agent of the vendor who negotiated the sale, cannot avoid the sale, or defeat a recovery of the purchase price, on the ground of false representations as to the value of the land, made by the agent to such third party, and by him reported to the vendee.
    Appeal from Wayne. (Hosmer, J.)
    Argued June 21 and 22, 1894.
    Decided September 25, 1894.
    Bill to enforce a vendor’s lien under a land contract. Defendant Casgrain appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Walker & Walker (J. H. Maguire, of counsel), for complainants.

      James H. Pound, for appellant.
   McGrath, C. J.

This is a bill filed to enforce a vendor's lien under a land contract. Defendant Germain was the former owner, and had given a mortgage to Eunice J. M. Ford, who had foreclosed, and was the purchaser at the sale. After the sale, Mrs. Ford had given Germain an option on the premises, and Germain negotiated the sale to the defendant Casgrain for the sum of $4,500. A contract was entered into between Mrs. Ford and Casgrain, dated February 13, 1892, which called for the payment of $1,900 on delivery of contract, and the remainder in quarterly payments. On the down payment Casgrain paid $400 in cash, and turned out a horse at an estimated value of $1,500. The first quarterly payment was not made, and this bill was filed July 30, 1892, joining Germain as a party defendant. Casgrain answered, denying that Germain had any right or interest in the premises; alleging that, if said Germain had or claimed any such right or interest, the same was known to complainant and her solicitor at the time of the execution of the contract, and that such information was withheld from defendant Casgrain for the purpose of inducing him to enter into such contract, and that such withholding was a fraud upon defendant’s rights; denying that it was agreed or understood that such contract was to operate as a mortgage; and alleging that complainant had an adequate remedy at law upon said contract.

The cause was at issue December 7, 1892, and came on to be heard, upon pleadings and proofs, February 13, 1894, when defendant asked leave to file an amended answer, which was refused. The amended answer sets up that complainant obtained defendant Casgrain’s signature to the contract by fraud of her agents and representatives; that defendant was ignorant of the true value of the land; that complainant, by her agents, represented that the land was worth $4,500, whereas in fact it was worth but $2,500; that defendant relied implicitly upon the representations so made; that defendant recently learned that complainant, although the apparent legal owner of the land, had some secret agreement with Germain whereby a portion of the proceeds were to be paid to hfm; that, had he known of Germain’s interest, he would have been more on his guard in relying on the representations of Germain. The whole matter was gone into upon the proofs, and, at the close thereof, defendant renewed his motion to amend, which was again denied, the court remarking that the proofs did not meet the answer.

It is unnecessary to discuss the question of the refusal of the court to permit the amended answer to be filed. It appears by the proofs that defendant intrusted the matter of the purchase, and the exchange of his horse as a part of the consideration, to one Albert; that the price was fixed for both property and horse between Albert and Germain; and that Casgrain, during the negotiations, saw Albert only. Casgrain insists that Albert told him that complainant’s solicitor represented the property to be worth $4,500, and that he (Casgrain) relied upon this report. Albert was called as a witness by defendant, and says that he made the statement of value to Mr. Casgrain, relying on the representations that had been made to me of the value, and judging of it by surrounding property,” and that Casgrain c‘ told me that he did not know much about the property, and that if I thought it was all right, and that it was a good exchange, why he would make it.” It also appears that Casgrain had had another real-estate deal with Albert, and, in answer to a question, he admits that in both transactions he relied upon Albert’s representations as to value. It further appears that, pending the negotiations, Casgrain made a visit to the property, and viewed it in his own behalf.

It is clear from this record that defendant Casgrain was not a stranger to real-estate transactions, and that he not only exercised his own judgment after a personal inspection of the premises, but took the judgment of a third person upon the question of value. A mere naked representation as to value, made under ordinary conditions, where the facilities for information are available, and no confidential relations exist, is not sufficient to avoid a sale. Some artifice must have been employed under such circumstances to aid the deception. No impairment of the vendee’s mental faculties is here asserted. He was upon the ground. The sources of information were open to him. No artifice was made use of to induce a reliance upon the representations, or to prevent full inquiry and examination. There was no hasty action. No fact was stated which indicates an attempt to fortify such representation. No relation of trust or confidence existed between the parties. There was nothing to indicate to the vendor, or to any of the parties interested in the sale, that any confidence or trust was being reposed in the vendor, or in any party here charged with fraud, or that any reliance was being placed upon the representations made by them. The transaction is unaccompanied with any of the incidents which are held to give color to such representations, and to impart to them a fraudulent character.

If Germain was improperly joined as defendant, he alone could raise that question. Sweet v. Converse, 88 Mich. 1.

Neither is there any force in the objection that equity has no jurisdiction to grant the relief prayed. While complainant holds the legal title, defendant Casgrain is the owner in, equity. The claim of the vendor is but an ordinary money debt, secured by the contract. In Fitzhugh v. Maxwell, 34 Mich. 138, the vendor filed a bill asking for a forfeiture, but with a prayer for general relief. The court below decreed a forfeiture, unless the amount found due ivas paid by a certain day; but this. Court reversed that decree, and, under the prayer for general relief, entered a decree here providing for a sale to satisfy the amount due to the complainant.

The decree is affirmed, with costs to complainants.

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

       The bill was filed by Eunice J. M. Ford in her lifetime. After her death the suit was revived in the name of Corydon L. Ford, as her executor, and upon his decease the suit was prosecuted by the present complainants as executors of the will of Corydon L. Ford.


author: Grant, J.

text:
    Arthur H. Swarthout v. Elizabeth Lucas.

      Action on contract — Instructions.
    Where, in a suit to recover for services rendered and expenses incurred in negotiating a loan and perfecting the applicant’s title, each party relies upon the existence of an express contract, and the sole question of fact is as to its terms, it is not error for the court to refuse to' submit to the jury the question of plaintiff’s rights under an implied contract.

    Error to Saginaw. (Edget, J.)
    Argued June 22, 1894.
    Decided September 25, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed, and judgment entered for the amount for which the defendant admitted on the trial she was liable.
    The facts are stated in the opinion.

      J. F. O’Keefe, for appellant.

      Bauer & Baton, for defendant.

       See, as bearing upon this question, Rayburn v. Comstock, 80 Mich. 448; Shaw v. Armstrong, 88 Id. 311.

   Grant, J.

Plaintiff was the authorized agent of the Union Central Life Insurance Company, doing business in the State of Michigan, and clothed with the power to' place loans for said company, in connection with insurance, within the county of Saginaw. Defendant saw the advertisement, and applied to plaintiff for a loan. He outlined the scheme of insurance, and informed her that it would be necessary for her to take out a, policy of life insurance for the sum of $1,650. She decided to make the application. In it she agreed to furnish a perfect abstract of title by an approved abstracter, and make it satisfactory to the company, and appointed plaintiff her agent to negotiate and procure the loan. Her husband testified that plaintiff told her that the company had to have its abstracts a little different from any other, and that it required some work to change them; that it would cost between $6 and $8; and that witness replied, All right.” She testified that she told plaintiff that she had a perfect title to the property; that he said that the company would have to have a different abstract, but that he would use the old abstract in connection with it, and charge her with bringing it down; that he would not state certainly what his charges would be; that she said she would not take the loan if she had to pay out a lot of money for getting an abstract; that she finally asked'him how much he could procure it for, taking the title she already had and the abstract; that plaintiff replied: “I will perfect it for you for between $6 and $8. It won't go beyond $8. The abstract shan't cost you beyond $8." Her title of record proved upon investigation to be imperfect. Plaintiff testified that, upon ascertaining the defects, he informed her in regard to them, and that she directed him to proceed to perfect the title, if possible. He went to considerable expense, aside from his services, in procuring patents and deeds, and in recording the same. After this had been done, she refused the loan and the insurance, and declined to pay him for his expenses and services. The court instructed the jury that these expenses were reasonable, but left it to them to determine what the contract was, and instructed them that, if they believed plaintiff's version, he was entitled to recover; if they believed defendant's, he was not, except to the extent of $8. The jury rendered a verdict of no cause of action.

Plaintiff’s counsel insists that the court erred in not instructing the jury, as requested, that' if the defendant agreed to furnish the insurance company a perfect title upon blanks approved by it, and the defendant authorized the plaintiff to act for her in procuring the loan, and in pursuance of such authority it was necessary to perfect the title shown by the abstract, the plaintifl was entitled to recover what his services were reasonably worth, as well as the costs incurred in perfecting the title. He also insists that the court erred in not instructing the jury, as requested, that if they found that there was no express agreement between the parties as to the services rendered by the plaintiff in perfecting the title, and that the plaintiff had no express authority, but that she knew that the services were being performed, and she acquiesced therein, she is liable.

A careful examination of the verbal instructions of the court convinces us that the case was properly submitted to the jury, with the exception that the court should have directed a verdict for the plaintiff for $8, in any event. The court stated to the jury the claim of the plaintiff in the following language:

“Mr. Swarthout claims, on his part, that he told Mrs. Lucas at this time that it would be necessary to effect or obtain a perfect abstract of the title to the property, and, if there were any defects in the title, then to go on and perfect the record of title, before the loan could be secured, and she would have to bear the expense, if any there was, attending upon the making of the abstract and perfecting of the title.”

Again, the court said:

“Plaintiff claims that, being employed to perfect the title by the defendant, he is entitled to recover, what his services were reasonably worth. If he was engaged generally to go on and perfect the title, of course it was his duty to do whatever was essential to it.”

After stating what the duties of an attorney 'were upon being employed for snch a purpose, the court again said;

“Mr. Swarthout claims, upon his part, to have done all these things, and to havd finally perfected the title, so that it was approved by the company. He claims to stand upon the arrangement he had with Mrs. Lucas to go on and perfect the title at her expense.”

The court then stated the claim of the defendant, and instructed the jury that, if they found her statement to be true, she would not be liable except for the $8.

We think this was a fair and clear statement of the case. .There was no room for the jury to find an implied contract. Each claimed an express contract, and the sole question of fact was, which claim was the correct one? This issue has been decided against the plaintiff by the jury. . ■

The defendant, however, admitted a liability to the extent of $8. For this the judgment will be reversed, and a judgment entered in this Court for that amount, with the costs of this Court to the plaintiff.

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


text:
    George R. Gray, Treasurer of the State of New Jersey, v. Leonard A. Waldron et al.

      Mortgage — Assignment—Recording laws— Foreign corporations— Foreclosure — Defenses.
    1. An assignment of a Michigan mortgage, acknowledged before a commissioner of deeds for Michigan in the state of New York, as evidenced by his official certificate and seal, is entitled to record without any certificate that the instrument is executed according to the laws of the state of New York; citing Ives

      v. Kimball, 1 Mich. 310; Lacey v. Davis, 4 Id. 140; Galpin v. Abbott, 6 Id. 32.
    2. Where the president of a corporation produces the corporate seal, and affixes the same to an instrument which he assumes to execute for and in behalf of the corporation, his authority so to do will be presumed, in the absence of proof to the contrary; citing Benedict v. Denton, Walk. Ch. 336; Merrill v. Montgomery, 25 Mich. 77.
    '3. The president of a New Jersey corporation, who resides in the state of New York, may, if authorized so to do by the corporation, execute in its behalf, and acknowledge before a commissioner of deeds for Michigan in the state of New York, an assignment of a Michigan mortgage owned by the corporation, so as to entitle the assignment to record in Michigan.
    4. Complainant, as treasurer of the state of New Jersey, sought to foreclose a Michigan mortgage which had been assigned to his predecessor in office, and to his successors, as a guaranty to the policy-holders of a New Jersey insurance company, to which the mortgage was given. And in reversing a decree dismissing the bill, and entering one in favor of the complainant, it is held that the defendants are not in a position to question whether or not there is a statute in New Jersey^ authorizing the securing of policy-holders in insurance companies in the manner provided in the assignment; that those interested in the distribution of the money are the only persons who can raise that question; that the bond and mortgage and assignment, being produced, show a complete title in complainant; that the defendants have not paid the mortgage debt, and there is no party who can Require payment of them ■ again; that they are honestly and equitably bound to pay, and no claim is made in their behalf that their rights are or will be endangered by payment to the complainant.
    Appeal from Muskegon. (Diokerman, J.)
    Argued June 23, 1894.
    Decided September 25, 1894.
    Bill to foreclose a mortgage. Complainant appeals.
    Decree reversed, and one entered for complainant.
    The facts are stated in the opinion.

      Arthur Jones (J. H. Glarh, of counsel), for complainant.

      F. W. Gooh, for defendants Waldron.

      Smith, Nims, Hoyt d? Erwin, for defendant Erwin, special guardian.

      Frank Joslyn, for defendant Anchor Life Insurance Company.
   Grant, J.

The bill in this case was filed to foreclose a real-estate mortgage executed by the defendants Waldron to the Anchor Life Insurance Company, of New Jersey, January 29, 1872, for $2,500. A bond was given with the mortgage. November 16, 1872, the insurance company assigned the mortgage to Ludlow Patton, of New York, and the assignment was duly recorded November 21, 1872, in the office of the register of deeds of Muskegon county, where the land was situated. This assignment had attached to it the seal of the company, and was signed and executed on behalf of the company by E. C. Fisher, its president. Attached to it was. the certificate of one John Bissell, commissioner for Michigan in New York city. The certificate' stated that Mr. Fisher was known to the commissioner to' be the individual described in, and who executed, the assignment; that he was duly sworn, and stated under oath that he resided in the city of Brooklyn; that he was president of the Anchor Life Insurance Company; that the seal affixed to the assignment was the common and corporate seal of said company, and was affixed thereto by the authority of the company; and that he, as such president, subscribed his name thereto by like authority. January 2, 1873, Mr. Patton and wife assigned the mortgage to Josephus Sooy, Jr., treasurer of the state of New Jersey, to have and to hold the same unto the said party of the second part, his successors in office and assigns, for their own use and benefit, as a guaranty to the parties who may be insured in the said Anchor Life Insurance Company." The complainant filed the bill as a successor in office of Mr. Sooy, and as the then treasurer of the state of New Jersey. The execution of the mortgage and the non-payment of both principal and interest are conceded. Proofs .were taken in open court, and the bill dismissed, but the record contains no reason given by the circuit judge for his action.

The positions of the defendants the Waldrons are summarized as follows:

(1) The Anchor Life Insurance Company, being a foreign private corporation, was, as to its' rights and powers of alienation of property, governed entirely by the statute law of its domicile, viz., the state of New Jersey.

(2) Being thus domiciled, it had no power to act beyond the territorial limits of that state, or, in other words, its president could not execute any legal document in the name of the corporation in another state.

(3) There was no proof of any statute authorizing such act outside that state.

(4) There was no proof of any statute of New Jersey authorizing the treasurer of that state to take and hold property for the purposes indicated in the assignment, and the words “treasurer of the state of New Jersey," used in the assignment, must be treated as merely descriptiopersonam, and surplusage, and Mr. Sooy’s successor could obtain no rights except upon the execution of an assignment from him.

The objection to the execution "of the assignment before a commissioner for Michigan in the city and state of New York is not well taken. Being executed before the commissioner, and the execution and certificate being in due form, with the proper seals of both the corporation and commissioner attached, the assignment was entitled to record, and was duly recorded. We are not cited to any authorities which hold that the execution of an instrument before a commissioner of this State is invalid because the corporation executing the instrument is organized under the laws of another state, nor can we see any reason for so holding. This is not a corporate act of business in another state. The officer in executing an instrument merely puts in lasting form the act of the corporators previously taken. When duly authorized, such officer may carry out the expressed will of the corporation before any officer authorized to take the acknowledgment of deeds. If the president of a Michigan corporation were the only one authorized to sign and execute a deed in accordance with a vote of the corporators, and he were absent from the State, can there be any good reason why he should not execute it before a commissioner for Michigan in another state? The president of the company lived in the state of New York, and produced and placed upon the assignment the corporate seal, which is presumptive evidence of valid and corporate authority. Benedict v. Denton, Walk. Ch. 336; Merrill v. Montgomery, 25 Mich. 77. No evidence was necessary that the instrument was executed according to the laws of the state of New York. Ives v. Kimball, 1 Mich. 310; Lacey v. Davis, 4 Id. 140; Galpin v. Abbott, 6 Id. 32.

The purpose of the assignment from Patton to Mr. Sooy is clear. It was not assigned to him in his individual capacity, but to him as treasurer and trustee for the beneffit of the policy-holders in the insurance company. Mr. Sooy’s name was inserted in the assignment for no other reason than that he was then the treasurer. Had his mame not been mentioned, the purpose would have been mo more manifest. This Court so held in Mich. State Bank v. Trowbridge, 92 Mich. 217, where the assignment was to the cashier by name, and to his successors and assigns, — language nearly identical with that in the present case. The defendants are not in position to question whether there is a statute in New Jersey authorizing the security of policy-holders in insurance companies in the manner provided in this assignment. Those interested in the distribution of the money are the sole persons who can raise that question. The bond, mortgage, and the assignments, showing a complete title in the treasurer, are prodhced. The defendants have not paid. There is no party who can require payment of them again. They are honestly and equitably bound to pay, and no claim is made in their behalf thqt their rights are or will be endangered by payment to the complainant.

Decree reversed, with costs of both courts, and decree entered in this Court for the complainant.

McGrath, 0. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Long, J.

text:
    Kate Connolly v. Kate J. Keating, Francis P. Keating, and Kate J. Keating, Administratrix of the Estate of Peter Keating, Deceased.

      Evidence — Matters within knowledge of deceased, person — Resulting trust.

    1. 3 How. Stat. § 7545, which prohibits the “opposite party,” in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, from testifying at all to matters which, if true, must have been equally within the knowledge of" the decedent, applies to a party who files a bill to declare the title to land conveyed to the decedent in his lifetime to be in the complainant.

    2. How. Stat. § 5569, which provides that 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 making such payment, but the title shall vest in the grantee, must be understood as applicable only to those cases in which the deed has assumed the form it has by consent of the party furnishing the consideration; citing Fisher v. Fobes, 22 Mich. 457; McCreary v. McCreary, 90 Id. 478.
    Appeal from Hillsdale. (Lane, J.)
    Argued June 21, 1894.
    Decided September 25, 1894.
    Bill to set aside a deed, and to declare the title to the lands conveyed thereby to be in complainant. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Frantchauser Bros, and F. H. Stone, for complainant.

      Guy M. Chester, for defendants.

       See Penny v. Croul, 87 Mich. 29, for a review of the cases construing this section of the statute; and for later decisions see Ripley v. Seligman, 88 Mich. 177; Smith v. Smith Estate, 91 Id. 7; Letts v. Letts, 91 Id. 596; Lilley v. Insurance Co., 92 Id. 153; Insurance Co. v. O’Brien, 92 Id. 589; Brennan v. Railroad Co., 93 Id. 156; In re Dunlap Estate, 94 Id. 11; Fenton v. Miller, 94 Id. 204; Baumann v. Salt & Lumber Co., 94 Id. 365; also, for cases bearing upon the question of the waiver of the provisions of the statute, see Michigan Savings Bank v. Butler Estate, 98 Mich. 381, and note.

   Long, J.

This bill is filed for the purpose of setting aside a deed executed by Julian L. La Moore and Anna La Moore, his wife, to Peter Keating, deceased, and to declare the title to the premises described in said deed to be in the complainant.

The complainant’s contention is that in November, 1887, she placed in the hands of Peter Keating the sum of $500, with which to purchase for her the lands described in the La Moore deed, and to have the' title vest in herself, or in Peter Keating as trustee for her; that Keating took the money, made the purchase from La Moore, and took the title to himself absolutely, without her knowledge or consent, and against her express directions and requests; that, after the deed was executed, Mr. Keating put it upon record, and afterwards delivered it to her, since which time it has been in her possession, but that while Keating lived she never examined the deed to see its ■contents, because during all that time no question as to her title was raised; that after the deed was executed she made substantial improvements upon the property, rented it, and collected the rents, and exercised all the- acts of ownership over it until the death of Keating, December* 31, 1890, when for the first time she learned that the deed was taken in his name absolutely, and that his heirs and representatives, the defendants in this case, disputed her title thereto.

On the hearing in the court below there did not seem to be any dispute but that the complainant furnishéd the money with which Peter Keating purchased the premises in controversy, but the defense was that the complainant well knew that Peter Keating took the deed in his own name, and that the absolute title to the premises, during his lifetime, vested in him, and that the complainant had noy right to relief, as she could not establish a trust in these lands by parol. The court below, after a hearing in open court, found that the complainant was entitled to the relief prayed, and decreed that the title should vest in her.

There are but two questions raised in this Court:

1. That, this suit being brought against the estate and the heirs of Peter Keating, now deceased, complainant could not testify to matters equally within the knowledge of the deceased.
2. That the grant being made to Peter Keating, and the title vesting in him absolutely, though payment therefor may have been made by complainant, under the statute a trust could not be shown hy parol evidence.

The complainant was called as a witness, and testified in the case to many matters which could not have been within the knowledge of the deceased, and as to those matters her testimony may be considered. As to the matters which were equally within the knowledge of the deceased, the rule is too well settled to need the citation of authorities that her testimony cannot be considered in determining the question involved here.

Upon the second point, How. Stat. § 5569, provides:

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no nse 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.”

This section stands as section 7, chap. 214, entitled “Of Uses and Trusts.”

By section 5571, being section 9 of that chapter, it is further provided: '

“ 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.”

In Fisher v. Fobes, 22 Mich. 458, Mr. Justice Cooley, speaking of section 5569, says:

“This provision, however, must be understood as applicable only to those cases in which the deed has assumed the form it has by consent of the party- furnishing the consideration. It has no application to a case where one has taken a deed in his own name in fraud of the rights of another, nor to a case where, though no fraud was designed, the conveyance has been made to some person other than the purchaser without his consent.”

In McCreary v. McCreary, 90 Mich. 478, the same rule was laid down, Fisher v. Fobes being cited and approved.

It is therefore well settled in this State that if Peter Keating took the deed with the understanding with complainant either that it was to be executed to her, or to himself in trust for her, and then, without her knowledge or consent, and against her express directions and requests, took the deed in his own name, a court of equity will, upon proof of these facts, decree the title to be in the complainant.

We think that the testimony abundantly shows, without considering the testimony of the complainant relating to facts which were equally within the knowledge of Keating, that the complainant never assented that he should take the absolute title to the premises, and that the court below was not in error in so finding.

The decree below will be affirmed.

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


text:
    Rebecca M. Smith v. The Michigan State Bank of Eaton Rapids, Mary Miller, Edwin S. Harris, and Samuel Pollock.

      Execution sale — Redemption.
    After the levy of an execution, the judgment debtor conveyed the land levied upon, and his wife, to whom, the grantee executed mortgages upon the land to secure part of the purchase money, joined with her husband in a bond to the grantee conditioned for the payment of the judgment. More than a year but less than 15 months after the sale of the land on the execution, the obligors in the bond having failed to perform its conditions, the grantee raised upon her indorsed note the money necessary to redeem the land, and paid the same to the purchaser at the execution sale, who, in order to secure the indorser on said note, executed to him a quitclaim deed of the land. And it is held that the quitclaim deed conveyed only the rights of the purchaser under the sheriff’s certificate of sale, and that the arrangement operated to protect the -mortgage interest of the wife of the judgment debtor, and to give her the right to pay, prior to the execution of the sheriff’s deed, the amount due on the certificate of sale; and thus discharge the obligation of her bond.
    Appeal from Eaton. (Smith, J.)
    Argued June 6 and 7, 1894.
    Decided September 25, 1894.

      Bill to redeem from an execution sale, and to declare the validity of certain mortgages. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      W. 8. & J. M. Powers, for complainant.

      John M. Oorbin, for defendants.
   Long, J.

The facts in this case are not in dispute. It appears that on March 17, 1891, Edward Snybh, who is the husband of complainant, was the owner and in possession of certain premises in Eaton Eapids, this State. Prior to that date, Delilah Witt had recovered a judgment against him for the sum of $400 and upwards. An execution had been issued upon such judgment, and placed in the hands of defendant Pollock, who was the sheriff of Eaton county. A levy was made on the premises under such execution on March 20, 1891, and the premises sold July 8 thereafter, but the certificate of sale made by the sheriff was not actually delivered by him to the purchaser or filed in the office of the register of deeds of that county until July 15. Delilah Witt, the judgment creditor, became the purchaser of the premises at the sum of $427.65.

March 21, 1892, Edward Smith exchanged and conveyed the premises to the defendant Mary Miller. Smith received from Mrs. Miller in payment for the land a store building and stock of groceries in Nashville, this State, and two mortgages on the Eaton Eapids property, aggregating $1,750. These mortgages were executed by Mary Miller, and made payable to the complainant, Eebecca M. Smith. At the time of this trade the Eaton Eapids property was incumbered by a mortgage held by John M. Corbin, some tax liens, and the execution levy above mentioned; the whole amounting to about $900. When the property was exchanged, neither of the parties had ready money to pay or satisfy the incumbrances on the Eaton Rapids property, so it was. agreed that Smith and the complainant should give a bond, by the terms of which they were to pay anct remove all .the incumbrances on the Eaton Rapids property; To secure the payment of the incumbrances, the $1,750 was divided into two mortgages, one for $900 and one for $850, and it was stipulated in the $900 mortgage-that it should be a first mortgage, and not be recorded, but .deposited with bankers at Nashville until such incumbrances were removed. Efforts were made by Edward Smith to procure money to pay off the incumbrances, and,, failing to do this, he attempted to get an extension of' time, but this also failed; but on October 11, 1893, the-complainant, having secured the money, filed with the-register of deeds of Eaton county an affidavit, together „with copies of her mortgages and notes, showing the true-sum due upon her mortgages, as evidence of her liens* •upon the premises, and at thg same time deposited with the register the amount .due upon the Witt sale for principal, interest, and costs, amounting to $466, together: with the amount due upon the mortgage held by Mr.. Corbin. The amount has been accepted by Mr. Corbin, and that mortgage is out of the case. The tax liens were-also paid and satisfied.

It further appears that on August 31, 1893, Delilah Witt executed and delivered to defendant Harris a conveyance in the form of a quitclaim deed, for the purpose of assigning her right under the execution purchase. On October 15, 1893, the complainant, after depositing the-money in the register’s office to meet the incumbrances,, sent her attorney to see Mrs. Miller and Mr. Harris for the purpqse of perfecting a redemption of the premises bid in under the execution sale. A tender was made of. the full amount claimed, and interest and expenses, and Mr. Harris was asked to convey to Mrs. Miller the rights which he had secured from Delilah Witt. They refused to take this money, referring complainant’s attorney to Mr. Corbin, saying that he had done all the business, and that they knew but little about the transaction.

Complainant thereupon filed this bill for the purpose of determining the rights of the parties in the premises. Defendants contend that Harris became the absolute owner of the premises under his deed from Delilah Witt. Complainant claims that the circumstances under which the deed was given to Harris show that he took it merely as security for his indorsement of Mrs. Miller’s note, and for the purpose of protecting Mrs. Miller in her interest in the premises.

It appears from the testimony that Mrs. Miller, finding that the complainant and her husband had taken no steps to pay off the claim under the execution, went to defendant Harris, and gave her individual note to him, signed by her husband as surety, ¿or 1455. Mr. Harris indorsed this note over to the bank, and the mo'ney was realized upon it by Mrs. Miller, and used by her in paying the Witt judgment, Mr. Harris taking this quitclaim deed from Mrs. Witt for the purpose of securing himself for his indorsement of Mrs. Miller’s note. Mr. Harris testified that he was to hold this quitclaim as security for signing the note. Mrs. Miller still owes the bank the amount of money represented by the note.

It is therefore contended by complainant:

1. That the right of redemption as to her had not expired when she tendered the money, for the reason that the sheriff had not given a deed to Harris, or to any one else, and that the right to redeem remains until such deed is actually made, whether the time named' in -the statute has expired or not.
2. That when she deposited the money with the register of deeds, on October 11, 1892, and ,when she offered to Mrs. Miller and Mr. Harris, on October 15, 1892, to pay the amount of the execution sale and the note given at the bank, and to reimburse and pay all that Mrs. Miller, Mr. Harris, and the bank had paid, out, it was within the time of redemption, and it was the duty of Mr. Harris to accept the money, and discharge or cancel his claim under the sheriff’s certificate of sale.
3. That defendant Mary Miller redeemed the premises by the payment of the money which she borrowed from the bank, and that the attempt now to hold the assignment of the sheriff’s certificate as a purchase by Harris is a fraud upon complainant, and that Mary Miller is in collusion with Hárris and the bank to relieve the land of complainant’s mortgages.
4. That the broadest latitude which can -be given to the transaction is that the sheriff’s certificate was transferred to Harris as security for the money loaned to Mrs.’ Miller; and that, under the familiar principle that whenever property is transferred, no matter in what form or by what conveyance, as security for a debt, the transferee is merely a mortgagee, and has no other1 rights or remedies than the law accgrds to mortgagees, Harris acquired no title to the land, and his rights are those of a mortgagee.

The sale under the execution was made on July 8, 1891. The 15 months from that date would expire on October 8, 1892; and, if the defendants’ contention be correct,— that the 15 months is to be computed from the date Of s,ale, — no person could redeem after that time, .and the money deposited in the office of the register of deeds by Mrs. Smith would not effect a redemption. But complainant contends that her right to redeem continued for the full period of 15 months from the time the certificate of sale was given to the purchaser under the execution sale and the depositing of the certificate in the office of the register of deeds. This certificate was given the purchaser on July 15, 1891, and deposited in the register’s office the same day, so that .the 15 months’- time for .redemption would not expire until October 16, 1892; and, if the complainant’s contention be correct, the ihoneys were deposited by her in time.

But, however this may be, the arrangement made between -Mary Miller and Mr. Harris by which he purchased in the Witt bid can be construed only as amounting to a redemption of the premises. Mr. Harris testified that he took the deed from Mrs. Witt as security for his indorsement upon the note of Mrs. Miller. It is evident that Harris did not suppose he was acquiring the absolute title to the premises, but that, as he admits, he took the deed as security, and- was to deed over to Mrs. Miller when the note was paid. If the deed to Harris was intended to be and was an.absolute conveyance to him, it cut off, not only the Miller title, but also the complainant’s mortgages. Mrs. Miller desires to have the conveyance treated as absolute for the purpose of cutting off these mortgages, and she and Harris refused the tender for the purpose of accomplishing that object; yet they claim,/ as between themselves, it is to be treated and held as a mere «security. The arrangement sought to be carried out cannot deprive the complainant of her right to pay the debt and secure her mortgage rights in the premises. At the time, the deed was made by Mrs. Witt to Harris no deed had been made by the sheriff on the execution sale. All Mrs. Witt held was the certificate of sale, and it was her right that Harris purchased and had assigned to him. Mrs. Miller held the title in fee, and had the right to redeem. She procured Harris to hold the bid under the deed to him, and with the understanding that it should operate as a redemption, so far as she was concerned. This arrangement must also be held to have protected the complainant’s mortgage interest in the premises, and to give her the right to pay, at the time payment was tendered, the amount of the bid, as she and her husband had agreed to do, and thus discharge the obligation of the bond to remove this incumbrance. The case is very similar to Banning v. Sabin, 51 Minn. 129, and, under the facts there stated, it was 'held that the transfer amounted to a redemption.

In this view of the case, it is quite unnecessary to decide whether the deposit made by complainant with the register of deeds was in time to redeem from the sale.

The decree of the court below will be affirmed. •

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


author: Hooker J.

text:
    James T. Bond and John W. Clancy v. Knute S. Markstrum.

      Judgment — Res judicata — Evidence—Burden of proof.

    1. The record in a former suit between the same parties, which tends to show that any fact involved in the issue in the second suit was litigated and set at rest in the former suit, is competent evidence of that fact, although it may not be conclusive upon all of the questions involved in the second suit.
    2. When an action is sought to be maintained or defended by showing a former adjudication of questions upon which it depends, it must appear that such questions were litigated as a matter of fact; that they were submitted to and decided by the court or jury; and that they were not collateral inquiries, but crucial questions in the other controversy.
    3. Where the record does not contain the conclusive evidence as to such former adjudication, parol evidence is admissible to ascertain whether a given question was in issue, litigated, submitted, and decided, and possibly, in some cases, whether it was material; and in such event, under our system of pleading, the issue would not ordinarily be limited to the single question of such former adjudication, but the party would be at liberty to support his claim or defense by other evidence, which would be received subject to the effect that should be given to the evidence upon the question of such former adjudication.

      4. Where, in a suit upon a guaranty of rent, the défendant seeks to avoid liability by showing his release by the lessor, and the plaintiff introduces in evidence the record in a former suit brought by him against the defendant upon the same guaranty, in which he recovered a judgment for prior installments of rent, and it appears that the pleadings in said former suit were broad enough to cover said proposed defense, the burden of proof is upon the plaintiff to show that said defense was actually made and passed upon in the first suit.
    5. The defendant should be allowed to introduce his evidence tending to show his release, and, if the jury find that that question was litigated and passed upon in the former suit, they should disregard such evidence.
    Error to Gogebic. (Haire, J.)
    Argued May 1, 1894.
    Decided September 25, 1894.
    Debt. Defendant briúgs error.
    Reversed.
    The facts are stated in the opinion.

      Button & Norris, for appellant.

      Charles E. Miller, for plaintiffs.
   Hooker J.

An action was brought against the defendant, as guarantor of payment and performance under a lease, to recover for two months5 rent of the premises. An action had previously been brought and recovery had by plaintiffs against the defendant upon this lease and assignment for earlier installments of rent. The judge admitted the record of the former proceedings, and instructed the jury that such proceedings conclusively established certain facts which entitled plaintiffs to recover the rent sued for, unless the defendant had proved to their satisfaction, by a preponderance of the evidence, that the plaintiffs accepted the property and assumed control after November 14, 1887 (the time of the commencement of the former action), by entering into possession themselves or by another to whom they had rented it. The defendant alleges error upon the introduction of the former record and upon the charge, his claim being that such proceedings were not conclusive of the questions raised by him in this case.

As to the introduction of the former record, it is clear that, 'if admissible for any purpose it was not error to admit it. The former action was between the same parties, and, if this record tended to show that any fact involved in this issue was litigated and set at rest in that case, it was proper evidence of such fact, though such record might not be conclusive upon all questions involved in the second case.

A reference to the pleadings in the first case shows that the plaintiffs sued as assignees of Sarah J. Ford of the lease in question; that the defendant was sued as guarantor; and that he was charged in the declaration with notice, of the assignment. The plea of the general issue was filed after the case' reached the circuit court. Accompanying it was a notice, which alleged a release by Sarah J. Ford of defendant from all liability upon the guaranty to pay rent. The notice alleged further that, about a month after the lease was made, Burton, the lessee, assigned the lease -to one Hill, with the consent of Mrs. Ford, who accepted Hill as her lessee, and thereby released defendant from responsibility upon his guaranty. It stated further that on September 1, 1887, Hill having vacated the premises, Mrs. Ford leased to one Gus Markstrum, who occupied until January 1, 1888, paying the rent up to that date, which defendant claimed was equivalent to his release. Upon the issues thus raised, plaintiffs, upon a trial before a jury, recovered a verdict and judgment.

What questions were settled upon this trial between the parties? The record does not show what points were contested by the introduction of evidence, but it is patent that before the plaintiffs could recover they must have shown the execution of this instrument by the parties to it, and its assignment to them by Mrs. Ford. Both of these were denied by the plea of the general issue. Being facts necessarily established upon a former trial, whether defendant offered evidence tending to disprove them or not, they were admissible. They were controverted by the plea, and it was shown that there was a trial and verdict, which necessarily involved these questions. The estoppel extends to all steps involved in the judgment as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis upon which it stands, upon the obvious principle that where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. Burlen v. Shannon, 99 Mass. 200, 203; Duncan v. Bancroft, 110 Id. 267; Dorris v. Erwin, 101 Penn. St. 239; Hayes v. Shattuck, 21 Cal. 51; Perkins v. Walker, 19 Vt. 144; Tuska v. O’Brien, 68 N. Y. 446; School-District v. Stocker, 42 N. J. Law, 115. It was therefore proper to receive the record.

The court instructed the jury to render a verdict for the plaintiffs, unless they should find that there had been a surrender of the premises, after November 14, to the plaintiffs. To sustain the judgment it must therefore appear from# the record that the evidence introduced established such liability, and, further, that no evidence tending to prove a valid defense' was excluded against defendant's exception. The bill of exceptions shows that the plaintiffs produced evidence tending to show that they purchased the premises from Sarah J. Ford; that at the same time she assigned to them her title to the lease in controversy; that K. S. Markstrum had paid them four months' rent from October 1, leaving two months’ rent due. The lease and guaranty and the assignment to plaintiffs were introduced. There was also testimony that notice of Ihis assignment was given to defendant. This, together with the files and records referred to, constituted the plaintiffs’ case. At this point the evidence showed prima facie (1) that the lease and guaranty were executed; (2) the assignment to the plaintiffs; (3) that two months’ rent was due, and unpaid. This evidence, standing alone, was sufficient to justify the instruction given, unless there was testimony given or offered tending to dispute it.

. The lessee named in the writing was one Burton. By way of defense, counsel offered several writings in evidence, ■executed before November 14, viz.:

First. An assignment by Burton to Hill of all of his interest, etc., in said lease, dated June 16.
Second. A paper, signed by Sarah J. Ford, of which the following is a copy:
“Bessemer, Mich., June 20, 1887.
“Mr. Fred Hill:
“You are hereby notified that I have this day, for value received, assigned and transferred to Markstrum, Larsen & Co., $44 out of the rent due July 1, 1887, according to your lease of the Wisconsin House, bearing date June 16, 1887; and in consideration of the acceptance of this order by said Markstrum, L. & Co., I hereby release K. S. Markstrum from further responsibility as surety on John Burton’s lease.
“ Sarah J. Ford.”
Third. A writing, dated June 26, signed by Sarah J. Ford, reading as follows, viz.:'
“Bessemer, Mich., June 26, 1887.
“ For value received, I hereby assign and transfer to Markstrum, Larsen & Co. the rent due me from Fred Hill for the Wisconsin House for month of September, and said Markstrum, Larsen & Co. are given full power of attorney to collect said rent as per the conditions of the lease between me and said Fred Hill.
“ Sarah J. Ford.”
Fourth. An acceptance of the above, reading as follows, viz,: ■
“June 20, 1887. Accepted at a total of $119.19; payable, $44.19 on July 1, and $75.00 on August 1, 1887.
“Fred Hill.”

These were offered upon the theory that they, or some of them, released defendant from any liability upon the guaranty. They were excluded,' upon the theory that the former judgment settled the fact that defendant was not released previous to the 14th day of November. Upon the same ground an offer to show by a witness that, at the time of the assignment of the lease from Burton to Hill, Mrs. Ford assented and formally released Burton, was denied.

It is plain that this testimony was admissible, unless the question of release was settled by the other trial, which depends upon the issues tried and decided thereon. A former adjudication of the right of action, where the court had jurisdiction of the subject-matter and of the parties, is unquestionably a bar to an action for the same debt or claim, and is conclusive where the same subject-matter is sought to be again litigated, no matter how, between the same parties. In such case it is no answer to say, “ There were questions which were not raised or litigated.” It is enough if they might have been raised and litigated. But it is a different matter when an action is sought to be maintained or defeated by showing a former adjudication of questions upon which it depends. In such case it must appear that such questions were litigated as a matter of fact; that they were submitted to and decided by the jury or court; and that they were not collateral inquiries, but. were crucial questions in the other controversy. Bendernagle v. Cocks, 19 Wend. 207; Badger v. Titcomb, 15 Pick. 409; Secor v. Sturgis, 16 N. Y. 548; Perkins v. Hart, 11 Wheat. 251; Sterner v. Gower, 3 Watts & S. 136; Wolf v. Welton, 30 Penn. St. 202; Hughes v, Alexander, 5 Duer, 488. That an adjudication in favor of a claim will not be conclusive of the minor issues on which the right depends, unless it appears not only that they were submitted to the jury but that they were considered and passed upon by them, is supported by the following authorities: Davidson v. Shipman, 6 Ala. 27; Chamberlain v. Gaillard, 26 Id. 504; Tams v. Lewis, 42 Penn. St. 402; Packet Co. v. Sickles, 24 How. 333; Lawrence v. Hunt, 10 Wend. 80; Garrott v. Johnson, 11 Gill & J. 173; Cecil v. Cecil, 19 Md. 72. The question may become one of law if the record contains the conclusive evidence of it, but it may happen that the record is not conclusive. In such cases, according to the great weight of authority, parol evidence is admissible to ascertain whether a given question was in issue, litigated, submitted, and decided, and possibly, in some cases, whether it was material. And in such event, under our system of pleading, the issue would not ordinarily be limited to the single question of former adjudication, but the party would be at liberty to support his claim or defense by other evidence, which would be received subject to the effect of the evidence upon the question of former adjudication. Sawyer v. Woodbury, 7 Gray, 499; Jennison v. West Springfield, 13 Id. 544; Burlen v. Shannon, 14 Id. 433; Jackson v. Wood, 3 Wend. 27. There are cases from which it would be inferred that when a party had made defense to an action all possible defenses would be cut off in a subsequent action where the same questions were raised, as in this case, where the defendant seeks to introduce a defense to an action upon a second installment of rent which he did not offer - to the action upon a former installment. According to these cases he would be concluded. But this point was distinctly ruled in the case of Jacobson v. Miller, 41 Mich. 96, following the case of Cromwell v. County of Sac, 94 U. S. 351, 356. The latter case contains an exhaustive discussion of the question. Mr. Justice Field, in delivering the opinion, says:

On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause because it might have been determined in the first action. Various considerations other than the actual merits may govern a party in bringing forward grounds of recovery or defense in one action which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting, in a subsequent action, other demands arising out of the same transaction. A judgment by default only admits, for the purpose of the action, the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding.”

He quotes the language of Mr. Justice Willes, as follows:

“It is quite right that a defendant should be estopped from setting up in the same action a defense which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defense in a second action because he did not avail himself of the opportunity of setting it up in the first action. * * * I think we should do wrong to favor the introduction of this new device into the law.”
Mr. Justice Byles said:
“ It is plain that there is no authority for saying that the defendant is precluded from setting up this defense.”
Mr. Justice Keating said:
“This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant.”

These eases seem to vindicate the right of a defendant to allow judgment to go by default, or to make such defense as he may choose. If he suffer judgment by default, he is not estopped, in a subsequent action for another demand, from making any defense; and in other cases he is estopped only to the extent of the defenses made to the first action.

It appearing that the pleadings in the former suit were broad enough to cover the defenses now sought to be raised, and that no evidence was offered tending to- show whether they were litigated and decided or not, we may next inquire, upon whom is the burden of proof? Must the plaintiffs show that these defenses were actually made and passed upon, or will it be presumed that all questions that could be raised under the pleadings were decided? We think it was not for the defendant to prove the negative. The plaintiffs relied upon an estoppel, and it was incumbent upon them to show the facts necessary to constitute the estoppel. Wells, Ees. Adj. § 215; Lawrence v. Hunt, 10 Wend. 85. Until they did so, the defense was good; and, if the existence of the estoppel was a question of fact for the jury, the defendant should have been allowed to introduce his evidence tending to show a release. If the jury found the estoppel, they would disregard the evidence of the release; but, as it could not be known in advance how they might find upon that question, the court should have admitted the testimony.

It follows that the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    Louis J. Liesemer v. John Burg and Lulu A. Liesemer.

      Trust deed — Setting aside — Evidence.
    1. It cannot be said that the omission of the grantor to require a bond from the trustee named in the deed of trust is an unusual omission, and it is optional with the grantor to require it or not.
    2. The fact that the friendly relations existing between the grantor and trustee at the time of the execution of the deed have changed to those of unfriendliness will not, of itself, justify the annulling of the deed,
    3. The sole question in this case is whether the complainant was or was not in such a state of mind when he signed the trust dejsd, which, he seeks to set aside, as to understand fully the import and effect of the instrument. And it is held that there is not found in the record evidence to warrant the granting of the relief prayed.
    Appeal from Washtenaw. (Kinne, J.)
    Submitted on briefs June 23, 1894.
    Decided September 25, 1894.
    Bill to set aside a trust deed. Defendant Burg appeals.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      John F. Laiurence (F. B. Norris, of counsel), -for complainant.

      A. J. Baioyer (F. F. Jones, of counsel,) for appellant.
   Hooker, J.

We concur in the statement of complainant’s counsel that—

The sole question in this case is, was Louis J. Liesemer in such a state of mind, at the time he signed the trust deed, as to fully understand the import and effect of the instrument which he executed?”

The complainant has for many years been the owner of a newspaper in the city of Ann Arbor, in the editing and managing of which his late wife, Emma 'Liesemer, took part. They had one child, a daughter of five or six years. The mother died on September 26, 1888, and at the time ■of Tier death was the owner of property to the amount of $2,200. She left no will. On September 28, 1888, being the day before the burial of his wife, complainant executed and delivered to John Burg, one of the defendants, an instrument in writing under seal, duly acknowledged, whereby he assigned to Burg his interest in the estate of his former wife, and a certain mortgage and accompanying note for $3,000. The writing provided that Burg and his successors, which successors might be appointed by the proper court upon Burg’s request and application, should hold the property assigned, upon trust and confidence, to keep said money safely invested for the benefit ” of said daughter until she should become 20 years of age, at which time she should become entitled to it in her own right. It provided, for its use for her necessities, and that in case of her death it should go to her issue, if she left any surviving; if not, it was to revert to the complainant. The trust was accepted by Burg in writing at the bottom ■of the assignment. The mortgage and note, and a formal assignment thereof, were delivered with the writing aforesaid to Burg. > Subsequently complainant claims to have •demanded the return of the property assigned, and finally, •some two years later, filed this bill to set the assignment aside, asserting that it was obtained by undue influence, at' a time when he was mentally unable to understand the force and effect of the writing. The daughter was made defendant, and answers by • guardian ad litem. Her answer alleges that the assignment rests in and is founded upon no covenant by Burg to execute the provisions and directions of the trust, and that he has not bound himself to do so, and that no precautions or safeguards were provided by the assignment. It further alleges, on information and belief,' that Burg has not accounted to the circuit or probate court, and expresses fears that he will refuse to account to her, and deprive her of her rights under the same. She prays for an accounting and other reftet Otherwise she submits her rights and interests to the court.

Burg and complainant married sisters, were intimate friends as long as Mrs. Liesemer lived, and the former aided complainant in various ways, such as assisting him to increase the circulation of his paper and loaning money for him, and possibly in some other ways. The circuit judge granted the relief prayed, though he practically required the complainant to pay Burg for his services in holding and investing the fund, and for his just and reasonable expenses in the defense of the suit, by allowing them from the property. He expressed confidence in the integrity of purpose of defendant.

We think that the testimony does not warrant the conclusion that the complainant was incompetent to make this disposition of a portion of his property. Doubtless he was grieved over the loss of his wife, and it is quite probable that he experienced a very tender solicitude for the welfare of his motherless child. He testifies that defendant took advantage of the situation to further his own interests, but, in our opinion, the great preponderance of testimony tends to show that Burg did not suggest or insist upon the arrangement, and we find no reason for saying that he designed to convert the property to his own use. The fact that no bond was required is suggestive of danger of loss, but it cannot be said that this was an unusual omission, and it was optional with complainant to require it or not. Nor can the determination depend upon expediency. It may be unfortunate that the relations of the parties have changed, but that fact does not justify' the annulling of a contract. It may be unfortunate that Burg is to have the control of the child's patrimony, considering the strained relations between him and her father, but it cannot be said to be much worse than to deprive her of it altogether, which would be done by a decree for complainant. So far as can be discovered from the evidence, the existing unfriendliness is the result of this suit, which is based upon charges of a character that Mr. Burg cannot be blamed for denying, and controverting by any proof at hand. It would be profitless to enter upon a. discussion of the evidence in detail upon the questions of fact. It is perhaps enough to say that'we do not find in this record evidence to warrant granting the relief prayed.

The decree of the circuit court will be reversed, and one entered here dismissing said bill, with costs of both courts.

The Other Justices concurred.