author: Steere, J.

text:
    B. SIEGEL CO. v. WAYNE CIRCUIT JUDGE.
    1. Landlord and Tenant — Lease — Construction — Exterior of Building — Alterations or Changes by Lessee.
    Under a lease permitting the tenant to make changes in the leased building not impairing the structural safety thereof, providing that any change in the exterior should be subject to approval of the landlord, the right to cut an opening in one of the walls to another store, which the tenant was occupying, was subject to the approval of the lessor, and it was the apparent intention of the parties to restrict the alteration of - any of the enclosing walls, except with the lessor’s approval.
    2. Same.
    No contrary intent was indicated by a preceding clause in the contract imposing on the lessee the duty of painting the exterior when necessary to keep the building in clean and sightly condition; in the event of removing the adjacent building the obligation to paint would extend to the exposed part; hence that wall or portion of the structure would be a part of the exterior of the building.

      3. Same — Contracts.
    Provisions inserted in a lease at the instance and for the benefit of the lessor, in language of its own choosing, are to be construed most strongly against such lessor. Between two constructions, each probable or possible, one making a contract reasonable and fair, the other unjust or unreasonable, the preference is to the equitable or reasonable interpretation.
    4. Same — Injunction.
    The summary remedy of injunction is only granted on strictly equitable grounds, and where complainant averred that proposed changes of the leased store building tended , to weaken the structure and increase the fire risk, defendant denying the allegations in its answer, and both parties supporting their contentions with affidavits of experts, the pleadings presented an issue of fact to be tried and determined on the evidence.
    5. Same — Mandamus—Injunction—Dissolution.
    On mandamus, the exercise of the discretion of the chancellor will not be reviewed if the record shows that his award of a temporary injunction was supported by evidence tending to raise an issue to be disposed of on the hearing; no decisive issue of law being presented by the record.
    McAlvay, C. J., and Brooke and Kuhn, JJ., dissenting.
    Mandamus by the B. Siegel Company against George P. Codd, one of the circuit judges for the county of Wayne, to compel respondent to vacate an order granting a preliminary injunction in a suit instituted against relator as defendant.
    Submitted October 13, 1914.
    (Calendar No. 26,446.)
    Writ denied December 18, 1914.

      Stevenson, Carpenter, Butzel & Backus, for relator.

      Donnelly, Lyster, Brennan & Munro and H. E. Spalding, for respondent.
   Steere, J.

This is an application for a writ of mandamus to compel the vacation by respondent of a preliminary injunction issued in a suit now pending in the Wayne county circuit court in chancery, entitled Parker Estate Co., Limited, Complainant, v. B. Siegel Co., Defendant, brought for the purpose of permanently restraining relator by injunction from cutting certain proposed openings through the southerly wall of the so-called “Parker Block,” located on lot 40, section 8, of the governor and judges’ plan of the city of Detroit, at the southwest corner of State street and Woodward avenue in said city.

The premises in question are owned by the Parker Estate Company, and relator is its tenant. As such tenant it has for several years conducted in the six-story building thereon a growing retail business of selling ladies’, misses’, and children’s outer garments and furs. It at first occupied under a ten-year lease given to one Joseph L. Hudson and by him assigned to relator, which lease by its terms expired August 1, 1914. On February 15, 1909, said Parker Estate Company executed a lease directly to relator, demising said premises for a term of ten years from and after August 1, 1914, at an increased rental, amounting to $35,000 per annum, payable in monthly installments. Because of its increasing business, relator found the Parker building inadequate, and, to meet the needs of its growth, leased for a term of ten years a six-story building adjacent on the south, known as the “Blackwell Building.”

The Parker and Blackwell buildings, both six stories in height, are brick structures built to the line between the lots on which they stand, each having its own independent wall, the two, against each other, forming a solid double wall 100 feet deep and six stories high between the two buildings. For the convenient use of these two buildings together in the conduct of its business, relator planned and proposed to open through this double wall archways on each floor 7½ feet high by 6½ feet wide, protecting the same by rolling steel shutters designed in accordance with requirements of the National Board of Underwriters, claiming authority to make such openings under the terms of its leases. Irrespective of what is provided for in the Blackwell lease, the Parker Estate Company insisted that this could not be done without its permission, which was refused, and obtained the preliminary injunction, as before stated.

A motion by relator for dissolution of said injunction, heard upon bill and answer, with supporting and opposing affidavits, was denied upon the ground “only” that the proposed openings constituted a change in the exterior of the building which, under the terms of the lease, could not be made without consent of the lessor.

The rights of the respective parties to this demise, in the particular giving rise to this litigation, are contingent on the significance of two provisions in the lease touching the exterior of said building, the-material parts of which are as follows:

In paragraph 7 it is provided, amongst other things, that:

“The lessee shall keep the premises and every part thereof in good repair, including all necessary repairs to the roof and floors of said building, including the renewal or renewals of such- floors, whenever same may become necessary, and including the painting of the exterior of said building, whenever the same may become necessary, in order to keep said building in clean and sightly condition, and’ at the end of said term,” etc.

Paragraph 8 provides:

“It is mutually agreed that said lessee may, at his own expense, at any time during said term, make any change in said building not impairing the structural safety thereof, providing, however, that any change in the exterior of the building shall be subject to the approval of the lessor, and provided, further, that all additions and improvements of a permanent character made by said lessee in and to said building shall become the property of the lessor,” etc.

Relator contends that the proposed openings are not a change in the exterior of the building; that the wall in question is not an exterior wall, according to the purport of the language as used in the lease and as intended by the contracting parties; that in paragraph 7 the word “exterior,” as applied to this building, related to and designated only the outside, visible, or exposed parts which the lessee was to paint, keep clean, and in sightly condition; that having been thus limited, and once used in the instrument with such meaning, the term must be presumptively held to have been used in the same sense in the succeeding paragraph; that, even if, as contended by lessor, the consent reservation in paragraph 8 could by any possibility be construed as applying to the concealed south wall, its scope is limited to structural strength and safety and gives no absolute right, when structural safety is fully protected, to arbitrarily and without reason prohibit the proposed openings.

For the lessor it is urged that “exterior of the building,” as used in paragraph 8, necessarily means and includes all four walls, whether exposed to view or not, being a plain and wise provisión clearly intended to protect the safety of the structure by authorizing the owner to decide upon proposed changes of the inclosing walls and to prohibit any alteration of-the same without its consent.

The chancellor who heard the motion to dissolve this injunction held that the wall in question was an exterior wall of the Parker building, which the lease by distinct provision prohibited the lessee from in any way changing without consent of the lessor, which had been refused, and therefore it was an imperative duty of the chancery court, irrespective of any equities involved or the merits of the lessor’s refusal, to grant said preliminary injunction and, at least pending proceedings prior to a final hearing, decline to favorably consider any application for its dissolution.

If, as contended, the right to this injunction turned on whether the wall between the adjoining buildings is an “exterior wall,” we are impressed that complainant’s bill was well founded and is sustained by the undisputed facts. In construing an instrument, the words used are to be applied and confined to the subject-matter with which it deals. In this lease the Parker property only is mentioned, described, and demised. No reference is made to the Blackwell building, or any other adjacent structure which might temporarily or permanently conceal or obscure any part of the building leased. The “exterior of said building” mentioned in paragraphs 7 and 8 of the lease relates to the Parker building itself, treated independently and not in connection with the Blackwell building. So regarded, it is difficult to conceive of a six-story, quadrilateral building, or block, with but three exterior sides, or walls. It is to be observed that the paragraphs in question make no mention of walls in this connection; the only provision in regard to walls being that the lessee shall remove hanging ice or icicles from the “roof, cornice, or walls” to prevent accidents to pedestrians. By inference and to carry their arguments, counsel have, however, interpreted “exterior of said (or the) building” as synonymous with “exterior walls.” Upon the character of the south wall of the Parker building, adjoining the Blackwell, the contending parties each cite one decision, touching exterior walls, and our subsequent research has failed to supplement them.

In behalf of relator reference is made to Ittner v. Music Hall Ass’n, 97 Mo. 561 (11 S. W. 58), which involves an interpretation of the architect’s specifications in a building contract. These required all exterior walls to be faced with selected red brick, more expensive than those used generally. To use the red brick at the place in dispute, which were certain exposed parts at the top of the building, would have involved an additional cost of over $4,000, and the contractor contended the specifications did not require it. The court said in part:

“We do not find that the walls in question are anywhere specifically mentioned as exterior walls.. Where they are specifically mentioned, as in the above quotation, they are called inner walls. That they are such up to the corridor roof is conceded by defendant. * * * And it is unreasonable to say, in the light of other portions of the specifications, that he (the architect) included these walls not exposed to view and forming open areas on top of the building. * * * We think the fair construction of the specifications, taken as a whole, is that they were not to be thus faced.”

The'substance of this decision is that the portion of two admittedly interior walls extending above the corridor roof of the building, not exposed to view from below and forming areas on the roof, were not required to be faced with selected dark red brick, as exterior walls, in the light of the elaborate specifications taken as a whole.

More closely in point, counsel for the lessor cite Green v. Eales, 114 Eng. Rep. 88, involving a lease wherein the lessor agreed to repair and keep in good condition the “external parts” of a dwelling house, except the glass and lead of the windows. The demised building stood adjoining another, which was removed during the term of the lease, and it became necessary to repair the wall of the rented dwelling thus exposed. The lessor refused to make the repairs, claiming that the subsequently exposed wall was not an external part, within the terms of the lease. The court, in deciding the case, said:

“We are of opinion that it was. We think that it was so even before the Swan was pulled down, but certainly afterwards. The external parts of premises are those which form the inclosure of them, and beyond which no part of them extends; and it is immaterial whether those parts are exposed to the atmosphere, or rest upon and adjoin some other building which forms no part of the premises let.”

The exterior of a building is of, if not coextensive with, its external parts. By analogy, under paragraph 7 of the lease in this case it would be the duty of relator to paint the exterior of the south wall'of the Parker building, to keep it clean and sightly, in event of the Blackwell building, being torn down and said wall exposed.

We are unable to follow relator’s contention that the sense in which the words “exterior of said building” are used in paragraph 7 of the lease makes clear and controls the meaning of those words in paragraph 8. In one, the subject under consideration, and to which the words relate, is the sightly appearance of the visible outer surface; in the other, the structural safety of the building, without reference to its appearance. “Exterior” is not a word of defined technical meaning in law, and the lexical definitions are of scant assistance. Beyond the adjective impression of something outside, external,.or outward, it has a definite meaning only as associated words may disclose.

We conclude that the associated words in paragraph 8 fairly disclose an intent to reserve to the lessor a right to be consulted when any material changes are proposed in those outer, external, or exterior parts of the building, where may lie its chief structural strength, and to withhold permission.in case its structural safety is, or reasonably may be, jeopardized by such changes, to the ultimate injury of the property demised; but read in connection with other provisions of the contract, and viewed in the light of the subject-matter, the relations of the parties, and the attending circumstances as disclosed, we cannot find that a reasonable construction of said paragraph confers upon the lessor any absolute right or arbitrary power to forbid such changes as could not affect or imperil its safety or value being made anywhere in said building. The paragraph was evidently framed with the thought and for the express purpose of authorizing relator to make such reasonable changes within the bounds of safety as the nature and development of its business might render advantageous or desirable.' It first authorized in distinct terms and without qualification any desired change in the building which did not impair its structural safety; and then, with the apparently suggested .afterthought that the chief structural strength of a building is commonly understood to be in its outer parts, or walls, the matter was further safeguarded by a supplemental provision making changes in the exterior subject to the lessor’s approval, thus anticipating that changes in the exterior might be desired, and contemplating that they would be made when approved and, by inference, would be approved when safe. This supplemental provision appears on its face to have been inserted for the benefit of the lessor, presumptively in language of its own choosing, and therefore may be construed most strongly against it.

Between two constructions, each probable or possible, one making a contract reasonable and fair, as applied to the subject-matter, and the other unjust and unreasonable, the former is to be preferred.

Even if by strict construction it could possibly be said that the lessor-has the arbitrary right, without reason and by ipse dixit, to absolutely prohibit any changes in the exterior of the building, its only grounds for equitable relief by injunction are irreparable ' injury by reason of the damage done to the freehold through changes in the building impairing its structural safety. For anything claimed beyond that, the lessor may fairly be relegated to its remedy in an action at law. The summary remedy by injunction is 'only granted on strictly equitable grounds. This is recognized by the lessor in its injunction bill. As complainant, the grounds upon which it asks relief are that the proposed changes will weaken the building, increase the fire risk and rate of insurance, and, in case of fire, cause loss of rent, thus jeopardizing its freehold and threatening complainant with irreparable loss.

In its answer defendant flatly denies complainant’s allegations that the safety of the building will be impaired or the insurance rate raised, and alleges, amongst other things, that it proposes to make the openings under plans and specifications to be prepared by engineers and architects of high standing, which it is willing to submit to the complainant; that it stands ready to adopt any suggestions or other methods not wholly unreasonable, is prepared to pay the expenses of any engineer or architect whom complainant may wish to consult in reference to said proposed work; that, denying any increased hazards, defendant is able and willing to assume any it is claimed there may be, has offered, and in said answer repeats the offer, to execute a bond, with satisfactory surety in such amount as complainant can reasonably exact, against all damage, also providing that at the expiration of the lease said wall will be restored to its original condition wholly at the expense of said defendant; that it will pay any increased insurance premiums, and observe any and all reasonable conditions which may be required or imposed by the court; that, when it stated to complainant its intention to do this work (the business relations between the parties up to then having been harmonious), complainant’s attitude was in substance:

“(1) Its insurance premiums might be increased, whereupon the defendant offered to pay the increase.
“ (2) This reason having been taken away from complainant, it advanced the further reason that, on account of the terms of the lease, the fire danger might be increased, and thereupon the chances of the suspension of rent be increased. The defendant promptly stated that this feature of the lease would be altered, and that the defendant would pay rent under those circumstances.
“(3) And thereupon the complainant gave a last and final reason * * * that, if the defendant would pay a large amount of money during the term of the lease Exhibit B (in excess of $100,000), it would give its consent.”

As to these offers and proposals, it is well said the court can make no new contract for the parties, its powers being limited to construing the contract as made by them; but, under a contract entitling complainant to have submitted to it for approval proposed changes, such offers and proposals made to complainant in that connection may be considered by a court of chancery in passing upon the equities of a suit for a permanent injunction to protect it from alleged impending irreparable injury to its freehold.

Changes increasing the fire risk are, we think, in practical construction reasonably within the prohibitory provisions of paragraph 8. The bill avers and the answer denies that the proposed changes will increase the fire risk and insurance premiums. Upon the motion to dissolve this injunction, conflicting affidavits of architects deposing as experts were presented by the respective parties to sustain their contentions. Upon this record, taken most favorably for relator, we are inclined to the view that material issues of fact arise which should first be determined on final hearing of the suit in the circuit court in chancery.

This court, as a rule, does not review by mandamus discretionary action of a trial court in granting a preliminary injunction and refusing to dissolve the same; but where the authority to issue turns solely upon a question of law, and the return shows no material questions of fact involved, the propriety of the writ will be considered. Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (59 N. W. 250, 32 L. R. A. 481); Titus v. Chippewa Circuit Judge, 168 Mich. 507 (134 N. W. 487). While in this case we have considered'some of the questions of law involved in passing upon the contention that they are conclusive, we are unable to hold that this return with the accompanying exhibits shows only questions of law in dispute, and therefore are constrained to conclude from the record before us that the dissolution of said injunction before final hearing of the suit is a discretionary matter with the court of original jurisdiction.

The writ is denied.

Stone, Ostrander, Bird, and Moore, JJ., concurred with Steere, J.

Brooke, J. A consideration of the entire contract convinces me that in the section in question the parties had in contemplation only the three walls of the building exposed to the outer air. The injunction should be dissolved, and the bill dismissed.

McAlvay, C. J., and Kuhn, J., concurred with Brooke, J. .


source: Caselaw Access Project

license: Public Domain

text:
    REYNOLDS v. GARBER-BUICK CO.
    1. Contracts — Infants—Disaffirmance—Rescission.
    An infant after reaching majority may disaffirm his contract, made during infancy, for the purchase of an automobile, and tendering back the car, although it may. have deteriorated with use, recover back the price which he paid for it.
    2. Same.
    Where the minor told his guardian of his purpose to buy a motor car, and the guardian told him he would send enough money to enable the ward to make the first payment, as he later did, and where the seller’s agent knew of the minority of the buyer, who afterwards exchanged the car for another, paying a cash difference, and the seller, after having had a conversation over the telephone with the guardian and found that the money would be advanced, made a contract in writing, evidencing the transaction, with the infant named as purchaser, it could not be held as matter of law that the contract was with the guardian.
    8. Guardian and Ward — Infants—Trusts.
    A guardian is a trustee of the estate of his ward, bound by law to manage and conserve it in a manner most advantageous to the inheritance, held as a rule, to a rigid accountability in the execution of the trust, and liable for loss occasioned by improper or unlawful expenditure of the funds.
    4. Same — Power to Contract.
    Guardians cannot by their contracts bind either the person or estate of their wards. Such contracts bind the guardian personally. Recovery must be had in an action against the guardian, not in a suit against the ward.
    Error to Saginaw; Kendrick, J.
    Submitted October 15, 1914.
    (Docket No. 106.)
    Decided December 18, 1914.
    Assumpsit by Walter Reynolds against the GarberBuick Company for the recovery back of money paid to the defendant. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Julius B. Kirby, for appellant.

      E. L. Beach and Alfred F. Myer, for appellee.
   Steere, J.

Plaintiff, a young man residing in a rural neighborhood in the township of Dover, in Clare county, brought this action in Saginaw county, against defendant, a corporation located and dealing in automobiles in the city of Saginaw, for the purpose of recovering from the latter $300 paid it for a Ford automobile and $75 later paid as the difference in exchanging said Ford for a Buick runabout. The contracts of purchase and exchange for these cars were made and money paid during plaintiff’s minority. On coming of age he disaffirmed the contracts, returned the Buick car, and demanded refund of the $375. His demand being refused, this action was instituted. On the trial of the case before a jury in the circuit court a verdict and judgment were rendered in his favor for $375, with interest.

It appears undisputed that defendant had knowledge at the time of these transactions that plaintiff was a minor; that plaintiff, personally negotiated for the cars; and that he either personally paid to defendant, or sent it by his brother, the money sought to be recovered. In defense it is urged that the contracts were made with the knowledge and consent of, and, in legal effect, with, Richard Emerson, plaintiff’s guardian, who furnished to plaintiff money to pay for the cars.

The court submitted to the jury, under instructions as to the legal relations and status of the parties, the question of whether the contracts were made with plaintiff or his guardian. This is assigned as error, and it is urged that, under the undisputed facts, the court should have held the contract to be that of the guardian, and directed a verdict for defendant.

At the time of these transactions plaintiff was a minor, living in the country seven miles from Clare, with his brothers and sisters, on a farm rented by an elder brother. Emerson, the guardian, was a neighboring farmer who had been appointed guardian some years before, on the death of plaintiff’s mother. Plaintiff left school when 16 years of age, is not shown to have pursued any calling, and apparently was not self-supporting, as he states his guardian furnished him money .to keep himself — “just a little money in order to get along with” — and the guardian testified that he looked after his wants and supplied him with “necessaries and such things.” The extent of his patrimony is not disclosed, but it was apparently limited; his guardian having enjoined upon him “not to get rid of any money if he could help it, for he didn’t have it to spare.”

Though his guardian advised to the contrary, plaintiff conceived and pursued the project of securing for himself an automobile; his reason therefore being:

“My brother had a car, and he thought I ought to have a car; that was about the size of it.”

In harmony with this thought, on May 24, 1913, he and his brother journeyed to Saginaw for the purpose of investigating the opportunities there for supplying this want. The guardian knew of their mission, and furnished plaintiff $10 for expenses, but testified that he deprecated the venture, and did not know Saginaw was their objective point. They there visited defendant’s garage, where they were offered a second-hand Ford car, which plaintiff finally purchased at an agreed price of $300. While negotiating he informed the salesman, Mr. Black, who made inquiry as to his ability to pay, that he would pay $5 down to secure the car; that he was a minor under guardianship, and on his return home would get the rest of the purchase price and send it to complete the payment. This being agreed to, a regular retail car contract for the purchase running to plaintiff was filled out and signed by him, indorsed: “Accepted. Buick Motor Company, Black, Manager.” On his return home plaintiff obtained the money to make the deferred payment from his guardian, and sent his brother to Saginaw with it, who paid the balance of $295 to defendant and drove the car home for plaintiff. After using the Ford for a short time, plaintiff concluded that he preferred a Buick, and wrote defendant inquiring if he could make an exchange with them. Receiving an encouraging reply, with the suggestion that he visit Saginaw, as they had several second-hand Buicks on hand, he went to Saginaw with his Ford car, taking along an acquaintance who could drive, and on June 22, 1913, exchanged his Ford for a Buick roadster, paying $75 additional therefor. For this car he was given and signed an accepted retail car contract^ as before. These negotiations were had with, and the contract was prepared by, Black, the same salesman or manager with whom he had previously dealt. Plaintiff did not have with him sufficient money to pay the additional $75 required in making the exchange. At the suggestion of Black, the guardian was reached by long-distance telephone, and consented to send the money, which he did, plaintiff receiving it the following day; the chief difference as to what occurred being whether he told plaintiff or Black that he would send it. Black put in the call for him, and testifies that when he responded:

“I said to Mr. Emerson that, ‘Walter is down here, and that he has found what he says suits him in the model 14 car, and the price is $75 difference, and do you want him to have it?’ And he said, ‘Yes; he may as well have it if- it suits and he wants it.’ And I said, ‘Will you send the $75?’ He said, ‘Yes.’ Then I said, ‘Do you want to talk with Walter?’ And he said, ‘Yes; I will.’”

Of this and what led up to it Emerson testifies:

“Well, he (Walter) showed me a letter he had got from these parties before that time he came down here, and the next I heard from him was the telephone message. Mr. Black was the man that telephoned to me. He said Walter was there and wanted to talk with me.
“Q. Did Mr. Black tell you what Walter wanted to talk with you about?
“A. He wanted to talk with me about the money.
“Q. Did Mr. Black tell you the difference in the price of the cars?
“A. He did not. Walter told me over the phone. He told me there was a Buick car down there that he thought was what he wanted, and that he wanted — it was $75 difference. That is about all, generally, that he said. He asked me if I could send the money down, and I said I could. He asked me at what time, and I told him. This was on Sunday, and I told him I would send it down on the following day.”

Plaintiff testified that Black did the talking over the telephone with Emerson, that he did not remember doing so, and “if I done any I done a very little of it. I am not sure whether I did or not. There was so much dickering I don’t know.” Ryan, the young man who accompanied plaintiff from Clare and was present when the deal was made, testified that Black put in the call for Emerson, “and he got him, and he told him Walter was down here, and Walter saw a car that he wanted, and Mr. Black asked Mr. Emerson if lie wanted to talk with Walter, and he said, ‘Yes;’ at least Walter talked with him and asked him about money.” These negotiations were had and an agreement reached on Sunday. Plaintiff then gave Black $20, and waited at the hotel until the next day, when he received the promised money from his guardian, paid the balance on the Buick, and, with Ryan driving it, returned home.

Plaintiff became 21 years of age on July 26, 1913, and on August 4th following asserted his newly acquired manhood by disaffirming these contracts, returning the Buick, and demanding that the money he had paid be.refunded. He sent the car back by his guardian, accompanied by an attorney, who, on return of the property, made proper tender and demand for plaintiff. His own testimony indicates that this guardian needed a guardian. The automobiles were not necessaries, and could scarcely be counted as luxuries to plaintiff, nor were they befitting his rank, estate, or station in life. While Black was agreeable to dealing with plaintiff, and had no hesitation in making the sales if the money was forthcoming, the views expressed by him after the Buick was returned and the contract disaffirmed were in some respects appropriate. He testifies:

“I said to Mr. Emerson: ‘You ought to be arrested and sent to jail for spending this young man’s funds for automobiles in this way, when he isn’t fit to operate an automobile * * * new, good, second-hand, or any condition.’ ”

We need spend little time upon the question of plaintiff’s right to recover if the contracts were independently made by and with him. After reaching his majority one may disaffirm a contract made by him during infancy and recover what he paid or parted with pursuant to such contract, if he return what he received. 22 Cyc. p. 616. And it has been held that depreciation in value of. the property returned cannot even be shown to defeat or reduce recovery. On disaffirming the contract and returning the article purchased during infancy, the money paid thereon may be recovered, though the value of its use while the infant had it may exceed the payment made upon it. Whitcomb v. Joslyn, 51 Vt. 79 (31 Am. Rep. 678).

It is undisputed that both machines were paid for by plaintiff with his own money, which his guardian furnished him, knowing it would be so used, and that Black knew he was dealing with a minor who was getting his money from his guardian for that purpose. It is idle to say the contract of purchase and sale was with Emerson. The most that can be claimed of the talk over the telephone, as Black himself relates it, is a promise by Emerson, on the Sabbath, to send plaintiff sufficient money to enable him to make the payment of $75 on the Buick, “if it suits and he wants it,” and an acquiescence in, or implied approval of, the purchase, if plaintiff saw fit to consummate it. He did send the money. Had plaintiff concluded that the car did not suit him, and he did not want it, and used the money so sent him for something else, it would scarcely be contended that defendant could' recover from Emerson the balance due on the purchase price of the car by reason of his fulfilled promise to send the money to plaintiff. Emerson took no part in the negotiations or selection of these cars, and never saw them until they were brought to Clare county. He and Black were strangers; they never saw each other, and he was never at defendant’s place of business until after the second car was sold and delivered to plaintiff. The first communication between them was by telephone when plaintiff was negotiating a trade for the second car. All the usual transactions of purchase and sale were between plaintiff and defendant. The goods were exhibited and demonstrated to him; he was the “prospect” towards whom the salesman directed his efforts and whom he secured as a customer; plaintiff made the selection, closed the negotiations for the article purchased, paid for it, and received delivery of it. When he wrote defendant in reference to another deal for a Buick, he was answered, in part:

“We can show you our new Buick cars. Wish to assure you, however, that any deal we make with you and take in your Ford car, we will not take advantage of you; that we will make the price right and deal with you fairly. Come down to Saginaw and see us.”

Both the written contracts were with him and signed by him without reference to Emerson, and were prepared by Black, defendant’s agent, with full knowledge of existing conditions. The query which directed attention to Emerson was how or where plaintiff could raise the money to pay up and perform on his part the contracts he had made with defendant. Black’s evident concern was not over the fact that he was selling to a minor, but how the minor was going to get the money to pay.

Defendant’s most appealing contention is that the contracts made by plaintiff while a minor, with his guardian’s knowledge and consent, with funds furnished by the guardian from the ward’s estate for that purpose, and which would not have been made had not the guardian promised and furnished the money, are binding upon the quondam minor, and cannot be disaffirmed by him on reaching his majority. In support of this proposition May v. Webb, Kirby (Conn.) 287, is cited with the following quotation:

“If the ward’s contract is made with the guardian’s consent and approbation, it is binding on him personally, as if he had made it himself.”

Whether that which Emerson consented to and did and said in connection with this contract renders him liable and the contract binding on him personally is not the issue here. He is not a party to this action. The case cited does not hold that such conduct on the part of the guardian renders the contract binding on the ward or his estate to the exclusion of his right of disaffirmance on reaching majority. That case was decided in 1787, at a time when no provision was made for an official publication of decisions by the superior court of Connecticut, and Kirby, a member of the bar, who states that he “entered upon this business in a partial manner and for private use,” compiled and published the volume in which the case is found. What is there said is based upon a quoted special verdict of a jury, from which it appears that one Martha, then wife of May, had, in the years 1773 and 1774, while sole and an infant under 18 years of age, having a sufficient estate in her own right, with the consent and approbation of Ezekiel Williams, her guardian, purchased of Webb certain goods and articles, which were all necessaries, suitable to her rank and condition, and which were by Webb charged to said guardian, who afterwards refused to pay for them, whereupon, by his order and direction, they were charged to said Martha. The trial court held “that the contract, being for necessaries, might well be charged to the minor.” With this view the appellate court did not agree, and is reported as saying in part:

“A contract made by a minor, under the power of a guardian, and with his consent and approbation, is by law binding upon the guardian, and was so before the revision of the statute laws of this State, in the year 1784. * * * But if such construction may not fairly be given, and the law was otherwise than is here adjudged, still, in this case, it would be that a minor, without any guardian, by the consent and approbation of said Williams, took the articles charged, and with an understanding, on the part of the creditor, that they were to be charged to Williams, and, in fact, were so charged. Therefore, on either principle, Williams was the original debtor, and no discharge given to him can operate to fix a legal claim in favor of Webb upon said Martha.”

And yet the articles purchased by the infant were for necessaries.

A guardian is a trustee of the estate of his ward, bound by law to manage and conserve it in a manner most advantageous to the inheritance, and held, as a rule, to a rigid accountability in the execution of the trust, and liable for loss occasioned by improper or unlawful expenditure of the funds of his ward. He personally has no beneficial title in the ward’s estate, and, even for the ward, his expenditures must be limited to those things which are necessary, beneficial, and to the advantage of the child in the line of maintenance and education according to its estate and station in life.

The infant himself, though he request it, cannot legalize a breach of this trust nor bind himself or his estate during his minority by adopting it. The doctrine of estoppel cannot be applied to his conduct during minority.

Of the power of guardians to contract for their wards, it is stated as a general proposition that:

“Guardians cannot by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and recovery must be had in an action against them, not against the ward.” Woerner on Guardianship, p. 185.

The graphic views expressed by Black to Emerson, when the matter of disaffirmance of the contract first arose, touching the latter’s disregard of his duties as guardian, indicate a fairly clear comprehension on his part of the limits of such trusteeship. With his knowledge of the disabilities of the parties and understanding of the restricted capacity in which Emerson was acting, defendant was dealing with them, through Black, at its peril. In so far as these transactions relate to depleting plaintiff’s estate and his right to rescind, the principle is the same as though his guardian had furnished him funds from his own estate in the first instance with which to purchase an automobile when and where he chose, and he, with the money to pay, had gone to defendant and made the purchase, truthfully telling whose money it was and how he came by it. Black evidently dealt with and drew up the contracts to him under the mistaken theory that an executed contract with a minor was a finality; whereas the only difference between a minor asking relief on an executed contract of purchase and resisting relief asked on an executory contract is that in the former he must make restitution and return, if possible, that which he has purchased.

This is an action at law, and the only questions which can be considered are strict legal rights. Equitable issues are not involved. The recognized policy of courts, when called upon to act in such cases, is the strict and consistent enforcement of the principle involved in the presumption that minors are incapable of obligating themselves by contract, except for necessaries, etc., as an essential means of most effectually protecting them against mischievous consequences of their own incapacity and imprudence, and impositions by those older and wiser.

It might well be urged that in submitting the case to the jury the court went further in defendant’s favor than the law authorized.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrandee, Bird, and Moree, JJ., concurred.


text:
    WATERMAN-WATERBURY CO. v. SCHOOL DISTRICT NO. 4 OF CATO TOWNSHIP.
    1. Municipal Corporations — Judgment—School District.
    Although execution may not issue upon a judgment against a school district or other municipality, public corporations being subject to other methods of collection, that reason is not sufficient for holding that an action at law may not be brought on a contract to install a furnace in a schoolhouse of a rural district that claimed a right to recoup for breach of warranty; and although the amount due may have been fixed by the terms of the contract, mandamus would not be the sole or proper remedy to enforce payment.
    2. Same — Liquidated Claim — Words and Phrases.
    A liquidated demand as applied to an indebtedness due from a municipal corporation and enforceable by mandamus only, signifies a claim on which the amount due is either fixed by law, or has been ascertained and agreed upon between the parties.
    3. Mandamus — Nature—Duties Enforceable Thereby.
    The primary purpose of mandamus is to enforce duties created by law; the writ is not designed as a remedy for the collection of debts, nor will it lie to enforce private contracts of municipal corporations. It is intended to enforce a plain legal duty, upon the relation of one who has a clear legal right to have it performed and who has no other adequate legal remedy.
    4. Same — Sales—Remedy on Contract — Assumpsit.
    An action of assumpsit is the proper remedy to recover on a contract for the installation of a heating and ventilating system in a schoolhouse, where the defendant district denied that it executed the contract and set up the claim that the heating apparatus was inadequate and failed to conform to a guaranty of the seller.
    Error to Montcalm; Davis, J.
    Submitted October 9, 1914.
    (Docket No. 58.)
    Decided December 18, 1914.

      Assumpsit by the Waterman-Waterbury Company against school district number 4 of Cato township, Montcalm county, for the contract price of a heating system. Judgment' for defendant on a directed verdict. Plaintiif brings error.
    Reversed.

      Cummins, Nichols & Rhoads (Frank A. Miller, of counsel), for appellant.

      L. C. Palmer, for appellee.
   Steere, J.

Plaintiif brought this action in the circuit court of Montcalm county, to recover the contract price of a heating and ventilating system which it installed in defendant’s schoolhouse during the fall of 1911. Upon the trial of said cause in the circuit court before a jury the court directed a verdict for defendant on the ground that plaintiif had mistaken its remedy. Plaintiff’s declaration was in assumpsit upon the common counts, with a special count upon a written contract alleged to have been entered into between the parties and set forth at length. Defendant pleaded the general issue, and, by an amended plea, gave notice of special defense as follows:

“Take notice that in the trial of said cause defendant will show in its defense under the general issue above pleaded that no such order or writing, as is described in plaintiff’s declaration, was ever executed by the officers of the defendant school district, as is shown by the following affidavit.”

The attached affidavit was signed and sworn to by Henry Herzog, stating that he was then director of said school district, and no such order or writing as described in the declaration was ever executed by the officers of defendant. It is undisputed that the plant in question was installed in defendant’s schoolhouse under some kind of agreement between the parties.

Plaintiff is a foreign corporation, with its. home office in Minneapolis, Minn., and was licensed to do business in this State. It maintained a branch office in Lansing, Mich., under the charge of a State manager. On July 26, 1911, an order in writing was given by defendant’s officers to an agent of plaintiff. The nature and terms of this order are in dispute.

Upon the trial plaintiff introduced testimony showing that the original order, signed by the three officers of defendant, was received and accepted by it, mailed to its home office in Minneapolis, and there accidentally destroyed by a fire which occurred in the building on January 7, 1912. A paper claimed to be a true copy of the original was produced and put in evidence. It is as follows:

“Copy.
“County op Montcalm, State op Michigan.
“The Waterman-Waterbury Company,
“Lansing, Michigan.
“We hereby authorize the Waterman-Waterbury Company to furnish one Waterman-Waterbury heating and ventilating system, style C, size 24, kind, Special, to school district No. 4, township of Cato, for which, on February 1, 1912, we agree to pay the sum of $120, or issue a school warrant on February 1, 1912, drawing 6 per cent, interest.
“We agree to transfer the Waterbury system from the freight depot to the schoolhouse and furnish a man for one-half day to assist the regular setter in installing the Waterbury system and to see that the doors, windows, ceiling, etc., are reasonably tight.
“The_ Waterman-Waterbury Company guarantee that this system will be constructed of first-class material the same as described in the catalogue and shown by the salesman and manufactured in a careful workmanlike manner and free from imperfect workmanship and material.
“This system is guaranteed to heat the schoolroom to 70 degrees during the coldest weather.
“This system is guaranteed to furnish thorough ventilation during school hours.
“Dated July 26, 1911.
“William Coleman, Director.
“Emery Almy, Treasurer.
“H. W. Rockelman, Moderator.
“Given at meeting of school board.”

Defendant denied the correctness of this copy, and produced in evidence what it claimed was a correct copy of the order given by it to plaintiff, which is in the following words and figures:

“Copy.
“Lakeview, Michigan, July 26, 1911.
“The Waterman-Waterbury Company,
“Lansing, Michigan.
“Gentlemen:
“You may install in our schoolhouse, district No. 4, Cato township, Montcalm county, State of Michigan, one Waterbury system, style C, size 24. We will use this until February 1, 1912, or, if we wish, until March 1, 1912. If the system proves to be as represented, we will pay for it either in cash or school district warrants bearing 6 per cent, interest from February 1, 1912.”

A plant of the size and style described was installed in defendant’s schoolhouse by plaintiff’s agent, assisted in the work by Henry W. Rockelman, the defendant’s moderator, who testified that the furnace was installed in a satisfactory manner. Counsel for defendant stated in answer to an inquiry from the court that no question was raised as to the material used. Plaintiff introduced testimony tending to show performance, on its part, of the contract relied upon, and that, when properly operated, the system would produce the results guaranteed.

The plant was used during November and December of 1911, and for some time after the holidays. The teacher then in charge testified that she had difficulty at first in keeping the children warm, but, after being instructed by a representative of plaintiff, she had success with it, and heated the room properly, being able on a cold morning to reach a temperature of 100 degrees; that the ventilation, in her opinion, was all right, and she used the system as long as they would let her. Other evidence was introduced tending to show its successful operation.

As indicated by the pleadings, questions asked, and statements of counsel at the trial, it appears to have been defendant’s contention that a “trial order” was given for the system, with the right to reject the same if it did not prove “to be as represented,” and that it failed to either heat the schoolhouse sufficiently or as represented; that defendant therefore rejected it, and Owes plaintiff nothing for it.’ At the conclusion of plaintiff’s testimony, opposing counsel moved the court to direct a verdict for defendant and enter judgment accordingly, for the reason:

“That, under the absolute showing in this case, based upon the evidence of the plaintiff company all the way through, a verdict should be directed, for the reason they have mistaken their remedy.”

After listening to argument, the court granted the motion, and directed a verdict as requested; the controlling reason being embodied in the following excerpts from the charge to the jury:

“The amount here has been liquidated; no defense looking to the reduction of the amount agreed upon has been raised; the only defense that has been offered here outside of the general issue is a denial under oath of the execution of the contract as presented. * * *
“Now, a judgment given in this case would have no tendency to liquidate the claim. It would be $120, and interest, when we get through with it, or it would be nothing.”

It is manifest that at least two issues of fact were involved in the case; the nature of the contract entered into between the parties; and whether, if the-contract was as it claimed, plaintiff had performed on its part, and the system fulfilled the guaranties, when’ properly run.

This case is analogous in many respects, though not identical, with Waterman-Waterbury Co. v. School District No. 2, 182 Mich. 498 (148. N. W. 673), an action in assumpsit which disposes of some of the questions proposed in this record, but in which the propriety of the remedy was not questioned.

Upon this record counsel for defendant correctly states that there is but one proposition to be considered, which is the correctness of the ruling by the court that an action in assumpsit would not lie, and plaintiff’s only remedy was by mandamus. This claim is based upon the contention that the claim is liquidated, and the school district cannot be subjected to the expense of regular litigation on a demand already liquidated, in which execution could not issue should judgment be. recovered by plaintiff, who might thereafter have to resort to mandamus to compel payment of such judgment.

If the latter suggestion were accepted as controlling, all actions looking to a money judgment against a municipal corporation would be idle, and all judgments obtained against them erroneous, for an execution cannot issue upon a judgment against such corporations. The law provides other methods for collecting the same, and it is not to be presumed that a municipal corporation will attempt to repudiate its legal liability when finally adjudicated.

While it is true that plaintiff’s claim is for a definite amount under an alleged contract, and is a liquidated demand from its standpoint, it is not, however, a liquidated liability of the school district, the validity of which has been determined by any statutory board or tribunal. Neither • does the admission of defendant’s counsel that its liability is either for the amount named in the alleged contract or nothing, liquidate the claim to the exclusion of an action in assumpsit on a contract as to which the defense denies liability, and contends that no such contract was ever made.

The term “liquidated” has a somewhat varied meaning, but, when used in reference to claims or demands against municipal corporations enforceable only by mandamus, it signifies claims on which the amount due is either fixed by law or has been ascertained and agreed upon between the parties. Here it is denied that any amount is due, and none is fixed by law.

Plaintiff asserts and seeks to enforce a legal liability created by the voluntary act of defendant’s officers in entering into a contract which they had authority to make, but deny having made. The law imposed on the school board no duty to enter into a private contract to buy a certain kind of heating and ventilating system, but it was within its power to do so if deemed for the best interest of the district. It was discretionary.

The primary purpose of the writ of mandamus is to enforce duties created by law. It is stated by text-writers, as a general principle, that the writ is not designed as a remedy for the collection of debts, and will not lie to enforce the private contracts of municipalities. Merrill on Mandamus, § 16; High on Extraordinary Legal Remedies, § 341; 26 Cyc. p. 164. It is said:

“That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld; that its principal office is not to inquire and investigate, but to command and execute. * * * The rule has also been stated that mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts, or where the legal result of the facts is subject of legal controversy. If the right is reasonably in serious doubt, from either cause mentioned, the discretionary power rests with the officer to decide whether or not he will proceed to enforce it, till the right shall have been established in some proper action; and that discretion, fairly exercised, cannot be controlled by mandamus.” 2 Bailey on Habeas Corpus, pp. 801, 805.
"The writ of mandamus is designed to enforce a plain, positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.” State v. New Haven & Northampton Co., 45 Conn. 331.

These general principles are recognized and sustained by our own decisions. While this court has treated the writ of mandamus as in its nature discretionary and prerogative, not necessarily limited by strict rule to cases involving positive statutory duties, or in which there was an entire absence of any other remedy, it has frequently said that the writ will not be granted where there is another adequate remedy. 2 Stevens’ Michigan Practice, § 458, and cases cited.

School districts are municipal corporations, "capable of suing and being sued, of contracting and being contracted with.” 4 How. Stat. (2d Ed.) § 9873. This school district is charged in an action ex contractu with nonperformance of a contract which it voluntarily entered into. The contention involves only an alleged simple money claim for the purchase price specified in a contract of bargain and sale, and is between the original contracting parties. Both the execution and performance of the asserted contract are in dispute. Such doubts in relation to an alleged contractual indebtedness are familiar sources of litigation which are solved in independent adversary proceedings at law, by an action in assumpsit between the parties. Such is the recognized and adequate remedy where differences of that nature arise. That one of the contracting parties is an artificial person, or a municipal corporation capable of suing and being sued, does not change the rule, or render the remedy less adequate for the solution of such questions.

We are unable to discover in the cases cited by counsel, or others which have been consulted, a denial of the principle that the “liquidated claim” requisite for.mandamus must be a claim wherein the amount due is either fixed by the judgment of a court, by some statutory provision, by some authorized officer or board, or by agreement between the parties. In the early case of Township of Marathon v. Oregon Township, 8 Mich. 372, cited by defendant, wherein it was held mandamus, and not assumpsit, was the proper remedy, the opening statement of the opinion thus sounds the distinction:

“This suit is brought to recover an ascertained sum found by the united action of the township boards to be due from Oregon to Marathon, upon a division of the latter township, whereby the former was set apart and became liable for its share of the debts to be thus determined.”
This is emphasized and further pointed out as controlling in the following:
“The action in this case is brought, not upon an open and disputed account, but upon a liquidated claim, determined by a statutory board or tribunal. * :[! *
“Being ascertained by the tribunal referred to, it becomes, under the statute, a charge upon the township.”

Reeder v. Wexford County Treasurer, 37 Mich. 351, cited by defendant, also involved a settlement between two townships. It appears a settlement was had and a division of indebtedness assigned by the proper authorities. The court did not sustain defendant’s contention that a change of incumbency affected mandamus proceedings against an official, and that a want of funds was a sufficient answer, but held that interest was not chargeable upon the sum ascertained to be due, under the circumstances of that case. The question of another adequate remedy does not appear to have been, raised.

The cases of Mackenzie v. Baraga Township Treasurer, 39 Mich. 554 and Just v. Wise Township, 42 Mich. 573 (4 N. W. 298), involved the validity of highway orders, ascertained sums liquidated, as due from the townships, by their highway commissioners. The only questions raised were questions of law, touching the statutory authority of such officials to issue the orders and obligate the townships.

In Pape v. Township of Benton, 140 Mich. 165 (103 N. W. 591), the last case cited by defendant, this court held that a township is not primarily liable for the cost of a road machine purchased by the highway commissioner under the provisions of- sections 4193-4197, 2 Comp. Laws, and assumpsit will not lie; the remedy being by mandamus against the proper officers to compel levy and collection of a tax to pay the same as provided by law. After reviewing the special provisions of the statute in question and pointing out its mandatory provisions, the reason why assumpsit is not, and mandamus is, the proper remedy appears clearly stated in harmony with the general rule as follows:

“No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township.”

In Burland v. Benefit Ass’n, 47 Mich. 424 (11 N. W. 269), an action in assumpsit on a contested certificate of membership was sustained against defendant’s contention that the remedy was by mandamus to compel a levy of an assessment to pay the claim. It was there said:

“The case presented is one of contract between parties and a breach thereof, and even should we accept as correct the argument of counsel as to the nature of the agreement, still the conclusion would mot follow that mandamus was the proper remedy. Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judgment. It is the mode of compelling the performance of acknowledged duty or enforcing an existing right rather than deciding what that right or duty is.”

In Van Wert v. School District, 100 Mich. 332 (59 N. W. 139), the court defines a liquidated demand, as distinguished from a disputed claim, as an account “audited to the satisfaction of the plaintiff by the moderator and assessor.”

The case of Coffin v. Board of Education, 114 Mich. 342 (72 N. W. 157), is in principle closely analogous to this. In each case plaintiff’s claim was founded upon a contract which the school board was authorized, but not in duty bound, to make, and recovery was sought for breach thereof. In that case plaintiff was hired by defendant as a teacher in its schools. There was no dispute about the amount as expressed in the contract of employment. The demand was liquidated as fully there as here. The board discharged her, for good cause, as it is claimed, and refused to pay her as contracted. She resorted to mandamus to compel payment. In dismissing her writ because the usual action at law afforded her a remedy, it is said:

“If she was dismissed for cause which would be sufficient to warrant an employer to dismiss his servant, then she had no right of action. * * * But, whatever may be the rule in this case which must determine the rights of the relator, it is evident that she has an adequate remedy at law. It is an ordinary contract of employment as a teacher in the public schools. She claims to have lived up to its requirements; that she was unjustly and unlawfully discharged, and that she is now entitled to be paid. On the other hand, the respondent contends that it had power to discharge her, and did discharge her for good and sufficient cause. Courts will not permit the use of tlie writ of mandamus when there is a plain, direct, and adequate remedy at law. Merrill, Mand. § 10, and cases there cited. We are not disposed to carry the use of this writ beyond the bounds to which we have already gone, or permit its use in cases where there is so plain a remedy as here shown.”

We need spend no time in considering cases cited by defendant in support of the contention that request of the board for an order or auditing of the account and demand for payment were a prerequisite to legal proceedings. According to the contract which plaintiff relies on, defendant agreed to make payment or issue a school warrant therefor on February 1, 1912. Plaintiff’s testimony shows that some time in February, after the plant was installed and in successful operation, its agent asked the members of the board to give him an order and settle for it before he left; that the three members met together, and thereafter “refused to give it.” This, if controverted, is an issue of fact to be disposed of at the trial, and, as raised, has no bearing upon the propriety of the remedy under consideration.

We conclude that all doubts arising from the conflicting claims over this alleged indebtedness by contract should be settled in an action in assumpsit.

The judgment is reversed, and a new trial granted.

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


text:
    PORT HURON ENGINE & THRESHER CO. v. BLOOM.
    Trial — Cross-Examination-—Bills and Notes — Payment.
    In an action on - promissory notes of the defendants, who claimed that the notes were to he canceled as part of an arrangement for the exchange of one threshing engine for a larger or more powerful type, and that they had previously possessed other machines which they had exchanged with the defendant, for different ones in a similar manner, it was erroneous for the court to. decline to permit the attorney for the seller to cross-examine defendant relative to the earlier purchases and the amount paid thereon, also, as to the amount owing on other paper during the period involved in the consecutive transactions, the testimony being very sharply in conflict and the issue being as to the truth of defendant’s statements: under such conditions the cross-examination should be given a liberal range.
    Error to Shiawassee; Miner, J.
    Submitted October 8, 1914.
    (Docket No. 34.)
    Decided December 18, 1914.
    Assumpsit by the Port Huron Engine & Thresher Company against Melvin Bloom and others for the amount of two negotiable instruments. Judgment for defendants. Plaintiff brings error.
    Reversed.

      John T. McCurdy and Walter M. Bush, for appellant.

      Pulver & Pond, for appellees.
   Steere, J.

Plaintiff brought this action in assumpsit in the circuit court of Shiawassee county on two promissory notes given it by defendants, dated February 12, 1909, one for $100, due December 15, 1911, and the other for $110, due March 15, 1912. It was agreed between counsel at the time of the trial that these notes amounted, with interest, to' $274.81. Defendants pleaded the general issue, giving notice thereunder of matters of special defense, to the effect that the notes had been fully paid on July 6, 1909, at which time defendants traded back an engine, for a portion of the purchase price of which said notes were given, and entered into another contract with plaintiff for the purchase of a new and larger engine, giving therefor, in addition to the old one, three notes of $200 each, with the express understanding that the two notes sued upon were settled and satisfied, and would be canceled, and that they have paid the three $200 notes in full. The issue before the court was whether these two notes of February 12, 1909, were settled and satisfied by the terms of the last contract of purchase.

The defendants are brothers. They were engaged in the business of farming and threshing. At the time of their first dealing with plaintiff they resided in Isabella county. During the past three years they have resided in Shiawassee county. Their activities in the business of threshing were carried on under a partnership arrangement. In 1906 they purchased of plaintiff a threshing outfit, described in the chattel mortgage given thereon as a Port Huron Rush separator complete, with straw stacker, belts, fixtures, etc., belonging to the same, a 14-horse power steam traction engine complete, with hose, fixtures, and appendages belonging to the same, one main drive belt, a water tank on trucks, canopy top, etc., giving notes secured by said mortgage in payment therefor. They made two subsequent deals with plaintiff for the purpose of getting larger engines, in which new chattel mortgages were given upon that part of the threshing outfit previously purchased and the new engines then traded for, in form clearly indicating that each mortgage was to secure the purchase price of all property therein described, as though simultaneously purchased. They made the second deal with plaintiff on February 12, 1909, exchanging their 14-horse power engine for a 16-horse power, and as part of its purchase price gave the two notes now sued upon, giving a new chattel mortgage to secure deferred payments. This second mortgage described the purchase in terms practically identical with those in the first, varied to conform with the new date, increased horse power of the new engine, amounts to be paid, etc., listing and describing as in the first the separator, straw stacker, water tank, canopy top, etc., with the engine just purchased, under a general introductory recital that “said parties of the first part have purchased the property hereinafter described from the party of the second part.” On July 6, 1909, the three brothers went to Port Huron and exchanged their 16-horse power engine for a 19-horse power. A new chattel mortgage was again given in the same form and describing under the same general recital all property constituting the threshing outfit as in the other two, varying only as to date, power of engine, amount, and terms of payment. The amount and terms of payment were stated in this last chattel mortgage as follows :

“The sum of eleven hundred and ten dollars, with interest at the rate of seven per cent, per annum, according to the terms of seven certain promissory notes signed by Bloom Bros., and payable to the Port Huron Engine & Thresher Company, or order, as follows, viz.:
“$150 dated Aug. 24, 1906, due Nov. 15, 1909.
“$150 dated Aug. 24, 1906, due Jan. 15, 1910.
“$100 dated Feb. 12, 1909, due Dec. 15, 1911.
“$110 dated Feb. 12, 1909, due March 15, 1912.
“$200 dated July 6, 1909, due. Nov. 1, 1910.
“$200 dated July 6, 1909, due Nov. 1, 1911.
“$200 dated July 6, 1909, due Nov. 1, 1912.”

It will be observed that the two notes here in litigation are included in the above; the others enumerated are not in controversy.' Defendants on the trial claimed and testified that by the terms of their last agreement they were to return the formerly purchased 16-horse power engine and receive a new 19-horse power, paying therefor an additional $600, for which notes were to be given; that plaintiff was to cancel and destroy the two notes here sued upon, aggregating $210, which had been given on the previous exchange of engines, and which had not yet been paid.

In explanation of why these notes were not then canceled and surrendered to them, defendants testified that when the terms of the agreement were finally reached it was close to the time for departure of the train by which they intended to return home from Port Huron; that plaintiff’s agents with whom they dealt then informed them the notes were over in a bank, but would be subsequently canceled and sent to them; that relying upon this, and being desirous of catching their train, they signed the papers and hurriedly departed. The negotiations were had with a factory salesman and the assistant sales manager of plaintiff, who positively denied any understanding or agreement that the notes in question should be canceled or surrendered, or any talk to that effect, and testified that the chattel mortgage was understandingly signed, was in harmony with the terms of the sale, and that the dates when the three $200 notes; fell due were fixed at defendants’ request with special reference to the $150 note and the two notes in question, so that no two would fall due together.

The two agents of plaintiff and the three defendants were the only witnesses. Their testimony was in direct conflict, positively affirming on the one side and as positively denying on the other. Under such conditions cross-examination should be allowed a liberal range, and any pertinent sidelight evidence which might have a bearing upon the probability of one story or the other and tend to aid in finding where the truth lay was competent. Plaintiff’s most meritorious complaint and assignments of error relate to restrictions imposed upon it in that line of inquiry. Claiming the right to go into the details of this connected series of transactions relative to engines purchased and exchanged, and particularly as to the amount defendants had actually paid upon the 16-horse power engine, for the purpose of ascertaining their real interest or equity therein, plaintiff’s counsel asked, amongst others, the following questions in cross-examination, objections to which were sustained:

“Witness, did you, on the 24th day of August, 1906, for the purpose of securing to the Port Huron Engine & Thresher Company, the plaintiff in this case, make and execute to it a chattel mortgage growing out of the purchase of the 14-horse power engine?
“How much money have you paid to the plaintiff in this case upon the 16-horse power engine?
“At the time you purchased the 16-horse power engine, which was on the 12th day of February, 1909, how much money, if any, did you pay down upon that engine?
“Besides the three notes, of $200 each, were you also owing the company upon four other notes?
“How much were you owing altogether to the plaintiff company on the 6th day of July, 1909?”

The objections most persistently urged by defendants against this line of questions were that the same was incompetent, immaterial, and related to a separate and distinct transaction, which occurred some years before the one in litigation.

Without going further into the details of this series of objections and rulings, it is sufficient to state that plaintiff, under .the sharp contradictions which had arisen between witnesses, should have been allowed, especially in cross-examination, to inquire into all the circumstances of the consecutive transactions in purchase and exchange of these engines, and in that connection show any related facts which might have a logical tendency to support the probability of the story of its witnesses, or weaken that of defendants, as to what the last agreement was. The court distinctly held that plaintiff could not show how much defendants had paid upon the 16-horse power engine, though the amount they owed was allowed to be inquired into. Defendants were contributing in value to apply on the price of the 19-horse power engine their equity in the old, and what they had paid upon it was material in ascertaining the value of that equity, which, with the three $200 notes, was claimed to be the agreed price of' the one last purchased. These payments, as bearing upon relative values, were proper questions to investigate, and for the jury to consider in determining which of the parties was entitled to the greater credibility. Full inquiry should have been allowed in that connection. We are constrained to hold that, under the principles recognized in Banghart v. Hyde, 94 Mich. 49 (58 N. W. 915), Grabowsky v. Baumgart, 128 Mich. 267 (87 N. W. 891), and Aldrich v. Scribner, 146 Mich. 609 (109 N. W. 1121), the exclusion of these questions must be regarded as prejudicial error.

The judgment is reversed, and a new trial granted.

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


author: Brooke, J.

text:
    SUPREME COURT, INDEPENDENT ORDER OF FORESTERS v. FRISE.
    1. Equity — Maxims—Insurance.
    The court of equity will regard as done that which ought to be done.
    2. Insurance — Change of Beneficiary — Equity—Interpleader.
    If the insured has pursued the course pointed out to him by the laws of a beneficial association of which he was a member, and has done everything within his power to . change the beneficiary, but dies before a new certificate has been issued, equity will decree that to be done which ought to be done, and treat the policy as if it had been issued in accordance with the attempted change, and although his application was in the mails when he died and formal ministerial action on the part of the officials of the order had not been completed so as to change the beneficiary before the death of the policy holder, the court will protect the interest of the new beneficiary in an inter-pleader suit.

    Appeal from Wayne; Mandell, J.
    Submitted October 8, 1914.
    (Docket No. 15.)
    Decided December 18, 1914.
    Bill by Supreme Court, of the Independent Order of Foresters against Olivia Frise and others for a decree of interpleader. From a decree for the defendant named, Paulina V. Frise and Albert H. Frise, administrator of the estate of Olivia Frise, deceased, appeal.
    Affirmed.

      James H. Bayne, for appellant Paulina V. Frise.

      Fritz L. Radford, for cross-appellant Albert H. Frise, administrator of Olivia Frise.

       Upon the effect of the death of assured before contemplated change of beneficiary is complete, see notes in 34 L. R. A. (N. S.) 277 and 1915A, 580.

   Brooke, J.

One William E. Frise, the insured, had been a holder of a policy for $2,000 in the complainant order for some 16 years prior to his death. At the time said policy was issued, the beneficiary named therein was his daughter, the defendant Paulina V. Frise. Some time prior to April 3, 1913, the insured fell ill. On the afternoon of that day, his condition becoming critical, he caused to be prepared and duly executed an application for a change of beneficiary. By the terms of this application the beneficiaries were changed so that the defendant Olivia Frise, the mother of the insured, was to receive $1,000; Paulina V. Frise, his daughter and former beneficiary, $950, and Adelina Frise, his wife, $50. The entire sum payable under the policy being claimed by the defendant Paulina V. Frise, that portion of the. fund payable under the new designation of beneficiaries to Olivia Frise being claimed by her, and Adelina Frise having assigned her interest under said policy to Paulina V. Frise, the complainant filed its bill of interpleader, paying the sum due under said policy into court. The contest arises over the right of Olivia Frise to that portion of the fund which she would take under the new designation.

The rules of the complainant order pertinent to the question involved follow:

“150. (1) Subject to the provisions of this section and of sections four, subsection five, and one hundred sixty, and if not repugnant to the laws of the province, • State or country in which the member has a fixed place of abode, a member may at any time while in good standing, except as hereinafter provided, change his beneficiary or beneficiaries in the following manner:
“(a) By filing with his court his application for change of beneficiary on form No. 14, fully filled in, signed by himself and properly executed, setting forth fully and clearly the changes he desires to make; provided that a designation of a beneficiary not in conformity with, section four, subsection five, shall be null and void from the beginning;
“(b) By paying to the financial secretary a fee of fifty cents for changing the record on the books of the Supreme Court and changing the policy or benefit certificate.
“(e) By surrendering to the court his policy or benefit certificate.
“(2) Whereupon the court shall cause such application, duly certified to by the chief ranger and recording secretary, with the seal of the court affixed, to be transmitted to the supreme secretary, together with the member’s policy or benefit certificate.
“(3) On receipt of the said policy or benefit certificate, together with the application for change of beneficiary, form No. 14, as in this section provided, if approved by the supreme chief ranger or by the executive council, the supreme secretary shall incorporate in the policy or benefit certificate the changes desired, subject to the provisions of section four, subsection five, and section one hundred and sixty.”

Section 4, subsection 5, is as follows:

“(5) The insurance or mortuary benefit of a member shall be paid to the member himself, or to the wife or husband of, or to the affianced wife of, or to the affianced husband of, or to the children of, or to the blood relations of, or to persons dependent upon such member, who may have been designated, as provided in the constitution and laws, by name as the beneficiary of such member, or subject to the approval of the supreme chief ranger, to such other beneficiary as may be permitted by the laws of the province, State or country in which the member resides at the time of making the designation of the beneficiary or beneficiaries.”

Defendant Paulina V. Frise in her answer and cross-bill charged that, at the time the petition for the change of beneficiary was executed by the insured, he was incompetent, by reason of his physical and mental condition, to intelligently perform any act affecting his insurance, and it was further charged that the execution of said paper was brought about by the exercise of undue influence upon the insured.

After a full hearing in the circuit court, it was there determined that the petition for change of beneficiaries was executed by the insured understandingly and without the exercise of undue influence. In this court those questions are eliminated by the stipulation of counsel; the only point to be determined being the legal effect of an undisputed act of the insured performed while mentally competent and without undue influence. It is conceded by counsel for Paulina V. Frise that the insured followed all of the requirements of the complainant order relative to a change of beneficiaries down to and including No. 2 of the rules quoted supra. Form No. 14 was used by the insured; it was properly executed; the changes required were fully and clearly set forth; and they were in conformity with section 4, subsection 5. The fee of 50 cents required by subsection B of section 1 was paid. The policy was surrendered to his local court by the insured, as required by subsection C of section 1. The proper officials of the local court duly certified to the application and affixed the seal of the court, and transmitted the same to the supreme court, together with the policy or benefit certificate of the insured as required by section 2. This was all done on the evening of the 3d day of April, 1913. The insured died early in the morning of the 4th day of April, 1913, and while his application and policy were on their way to the head office of the complainant order in Toronto, where they were received some time on the 5th of April, nearly two days after the death of the insured.

It is conceded that the supreme ranger or executive council has not acted upon the application for a change of beneficiaries as required by section 3 of the rules above quoted. The whole question involved is whether, under these circumstances, the change of beneficiaries became operative.

It is the claim of the appellant Paulina V. Frise, that the application for a change of beneficiary never became operative, for the reason that the insured died before said application reached the head office and before the supreme officers of the order had an opportunity to act upon it as required by rule 3, above cited. It is contended that the insured made the United States mail his agent for the transmission of said request for a change of beneficiary, and that his death before the same was delivered at the head office of the complainant prevented the request from becoming operative; that immediately upon the death of the insured the rights of the original beneficiaries became vested. In support of the position taken by this appellant, the following cases are cited, among others: Knights of Maccabees v. Sackett, 34 Mont. 357 (86 Pac. 423, 115 Am. St. Rep. 532); Fink v. Fink, 171 N. Y. 616 (64 N. E. 506); Daniels v. Pratt, 143 Mass. 216 (10 N. E. 166); Gordon v. Gordon, 117 Ill. App. 91.

On behalf of the defendant Olivia Frise it is contended, on the other hand, that, the insured having followed- the rules of the complainant order in making his request for a change of beneficiaries, and having done everything required by said order to entitle him to the benefit of said change, a court of equity will regard that done which should have been done and give effect to his act. The exact point has never been determined in this court. A leading case, however (Supreme Conclave, Royal Adelphia v. Cappella [C. C.], 41 Fed. 1), determined by the late Mr. Justice Brown while judge of the circuit court of the United States for the eastern district of Michigan, discusses the question at large. It is there said:

“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions. * * * (3) If the insured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will decree that to be done which ought to be done, and act as though the certificate had been issued”—citing National Association v. Kirgin, 28 Mo. App. 80; Mayer v. Association, 49 Hun (N. Y.), 336 (2 N. Y. Supp. 79); Supreme Lodge v. Nairn, 60 Mich. 44 (26 N. W. 826); Kepler v. Supreme Lodge, 45 Hun (N. Y.), 274.

In the case of Supreme Lodge, Knights of Honor v. Nairn, 60 Mich. 44 (26 N. W. 826), a designation changing the beneficiary in an insurance policy was held to be ineffective; the insured in that case having left the policy, with the new designation, in a sealed envelope, to be opened only after his death. It was, however, there said:

“It is possible — and we need not consider under what circumstances — that when a member has executed and delivered to the reporter his attested surrender, in favor of a competent beneficiary, his death, before a new certificate is rendered, may leave his power of designation so far executed as to enable a court of equity to relieve against the accident. But in the present case the facts show conclusively that Traver did not mean to have any surrender made until after his death. Nairn was not authorized to open the envelope or handle any of the papers while Traver lived, and Traver retained complete control of them. No one was authorized, while he lived, to take any steps to complete a surrender.”

The facts in the case at bar show conclusively that it was the desire of the insured to have the change of beneficiary become operative at once and during his lifetime, and that he did everything required Of him by the rules of the complainant order to bring about that result.

In the case of Grand Lodge A. O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1), it is said:

“He [the insured] undertook and did all that he could, and all that he was required in equity to do, to change the donee in the certificate named to that of his son. The rules of the order allowed him to do this, and it was not in the discretion of the order to prevent it. It was a right, under the rules of the order, of which he could not be deprived, upon his complying with the conditions prescribed for such action, and which he performed so far as it was in his power to perform; and for these reasons it would be most unjust and inequitable for a court to disregard such action and such intention of the deceased before he died, and award his property to the claimant, who had forfeited all claim to his bounty, and whom he had discarded. * * * Mr. Child did all he could do in making the change, and it should have been allowed and done by the order.
“Equity will consider that done which ought to have been done. For the purpose of determining the rights between these defendants, the proceeding is governed by equitable principles.”

Where the member has done all that he is required to do, and only formal ministerial acts on the part of the society remain to be done in order to complete the change, and the member dies before performance thereof, a court of equity will protect the rights of the intended beneficiary. See cases cited 29 Cyc. p. 134, note 65. See, also, Ancient Order of Gleaners v. Bury, 165 Mich. 1 (130 N. W. 191, 34 L. R. A. [N. S.] 277).

In the instant case it is apparent that, had the insured lived, the supreme officials of the complainant order could not have refused to change the beneficiary in his policy as requested by him; he having complied with all the legal requirements of the order, and the beneficiaries named by him belonging to a class not prohibited.

Albert H. Frise, administrator of the estate of Olivia Frise, deceased, appeals from so much of the decree rendered below as provides that no costs will be awarded to or against either of the defendants. It is appellant’s contention that Olivia Frise should have been awarded costs against defendant Paulina V. Frise in the circuit court. We are disposed to the view that the learned circuit judge properly determined that question in his court. In this court, however, cross-appellant Albert H. Frise, administrator, will recover costs against the defendant Paulina V. Frise.

The decree of the circuit court will stand affirmed.

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


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    CITY OF DETROIT v. GRAY.
    1. Trial — Charge—Eminent Domain.
    On the trial of eminent domain proceedings in which the respondents claimed certain land within the street lines by adverse possession, where the court with the acquiescence of both attorneys in a discussion in the presence of the jury stated in addition to other instructions that the jury were to return a verdict for the value of such land, no objection or exception appearing of record, the judgment should not be reversed for alleged failure to charge the jury upon the point that the verdict should be for the value of the entire parcel of land claimed.
    2. Same — Damages—New Trial.

      Held, also, that the award of damages, $1,000 higher than the highest estimate of any of the petitioner’s witnesses, was not so inadequate as to require the granting of a new trial.

      Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted October 9, 1914.
    (Docket No. 40.)
    Decided December 18, 1914.
    Eminent domain proceedings by the city of Detroit against Arabella Gray and others. Judgment for petitioner. Respondent Gray brings error.
    Affirmed.

      James W. Donovan, for appellant.

      Thomas P. Penniman (Richard I. Lawson, of counsel), for appellee.
   Brooke, J.

In this proceeding, the relator, in the exercise of its right of eminent domain, sought to condemn a triangular piece of property located north of Sibley street between Cass avenue and Clifford street, in the city of Detroit. It appears from the record that the owner of said property and her predecessors in title had, for upwards of 25 years, occupied a strip of land within the street about 2% feet wide by 106 feet long on the Cass avenue side of said property. The petition for condemnation correctly describes the property to be taken, including this strip. It is conceded by the respondent in this court that necessity for the taking of the property in question was properly shown by the relator. Evidence was introduced on behalf of the relator, as well as on behalf of the respondent, as to the value of the property. That given on behalf of the relator fixed the value at from $5,500 to $7,000. That on behalf of the respondent fixed the value at from $10,000 to $15,000. After instructing the jury very fully as to their duties and the law applicable to the case, the following occurred:

“The Court: Is there anything you desire?
“Judge Donovan: I did ask your honor to .tell them that we could give a good title.
“The Court: I think you gave me some requests. I think, Judge Donovan, I have covered them.
“Judge Donovan: I think you have covered them, except, possibly, that one fact that we have a good and clear title here.
“The Court: He says, first: ‘That two things must be proven by a fair preponderance of evidence before the property in issue can be taken by the city from the respondent, namely: (a) That there is a necessity for such improvement; and (b) to agree on,and fix a just and fair value as compensation for the property.’
“Judge Donovan: That is covered.
“The Court: I think I have given the jurors that.
“Judge Donovan: I know you have.
“The Court: At least, I shall ask them: You so understand that, do you, gentlemen of the jury? I charge you that respondents are able to furnish a clear title to the premises, as described by the architect, including the entire land covered by the buildings, even that narrow strip used and occupied over 20 years by respondent. That, gentlemen of the jury, is a matter that belongs to the corporation counsel, who has to examine the titles of property before the city of Detroit would authorize a proceeding of this kind to be taken.
“Mr. Penniman: No, judge; just a moment, I think Judge Donovan is absolutely right. I think your honor should charge that the respondent is entitled to compensation for that property, which is within the building — the present building lines of the property. I understand that they have had title by prescription.
“The Court: That is described right in the petition.
“Mr. Penniman: No, it is not, your honor.
“Judge Donovan: I think it is covered by the petition.
“Mr. Penniman: I thought it was described as lot 145.
“The Court: Oh, no. Here is the description.
“Mr. Penniman: Is that a full description, Mr. Dooley?
“Mr. Dooley: Yes.
“Mr. Penniman: In the building line?
“Mr. Dooley: Yes.
“The Court: Then it is all right.
“Mr. Penniman: I thought it described just the lot line, not the building line.
“The Court: Follow an officer, gentlemen.”

The jury rendered a verdict in favor of respondent in the sum of $8,000. Respondent has removed the case to this court for review, claiming that the award is grossly inadequate, and assigning as a reason therefor certain remarks of counsel for the city during the examination of various witnesses. A fact worthy of note is that throughout the entire record there appears not a single objection to the admission or exclusion of testimony or to the remarks of counsel, nor is there a single exception noted.

Aside from this, however, we cannot agree with the claim of counsel for respondent that the jury were misled or influenced by the remarks of counsel to deny by their verdict compensation to respondent for the strip owned by her by adverse possession. That strip was included in the petition, and the colloquy between the court and counsel, quoted above, indicates very clearly that the jury must have understood that the respondent was entitled to compensation for that as well as for the property lying within the original lot lines.

While the award is much lower than any sum fixed by witnesses on behalf of respondent, it is $1,000 higher than the highest estimate of value placed upon the property by witnesses for the relator. It was fixed by an agency provided by law for that purpose, under very full and fair instructions from the court.

We are of the opinion that the judgment should be, and it is, affirmed.

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


text:
    ZOLLER v. GOLDBERG.
    Deeds — Covenants—Building Restrictions.
    A covenant in a deed restraining the grantee from building on the front of the lots any but brick or stone dwellings costing at least a minimum amount and standing a specified distance from the street line, is not a personal covenant, but runs with the land; and the effect is to prohibit the construction of a store building, although several deeds in the chain of title following the restriction did not contain or refer to it. The intention of the parties was to prevent the eréction of any building on the property to be used for business purposes.
    Appeal from Wayne; Hally, J.
    Submitted October 6, 1914.
    (Docket No. 2.)
    Decided December 18, 1914.
    Bill by Charles F. Zoller and others against Samuel Goldberg and another to enforce certain building restrictions. From a decree for complainants, defendants appeal.
    Affirmed.

      Anderson & Wilcox, for appellants.

      E. S. Clarkson, for appellees.
   Brooke, J.

The bill of complaint in this cause is filed by the complainants for the purpose of enjoining a threatened breach of a building restriction. The property in question is situated at the northwest corner of Chandler and Oakland avenue in the city of Detroit.

It appears that Edwin B. Robinson, who was the owner of the subdivision at the time it was platted, conveyed the lot in question (No. 50) to one William A. King. The deed in question contained the following restrictive covenant:

“The said second party hereby agrees not to build or cause to be built on the front of lots 11 and 22 any other than a brick or stone dwelling to cost not less than $4,000.00, and on the front of the remaining lots none other than a dwelling to cost not- less than $2,500.00, any and all of which are to stand back 20 feet from the street line of Chandler avenue and to be at least two stories high.”

King sold the lot in question to Bamlet, without restriction; Bamlet sold to Irwin, without restriction; Frank L. Irwin sold to Estella G. Irwin, without restriction ; and Estella G. Irwin sold the lot to defendant Goldberg September 1, 1912.

This is the third time the question of restrictions upon Chandler avenue has been before this court. In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025), an attempt was made to restrain the defendant from building a dwelling house for the use of more than one family, which failed. In Erichsen v. Tapert, 172 Mich. 457 (138 N. W. 330), an attempt was made to erect a store building on lot 49, immediately across the street from the lot in question in the instant case. The construction of said store building was enjoined by the circuit court, and on appeal to this court the decree was affirmed. There was considered in that case, however, an agreement signed by various lot owners, among them the owner of lot 49, containing covenants between each other restrictive in character. At the time that agreement was executed the owner of lot 50 declined to sign it, as it appears from this record. In that case, while there was a dissenting opinion as to the effect of the restrictive covenants contained in the contract, the court was unanimously of the opinion that the lot was, in any event, subject to the general restrictions pointed out in Tillotson v. Gregory, supra.

It is urged in the instant case, as it was urged in Erichsen v. Tapert, supra, that the covenant between Robinson and King was a personal one not running with the land. This contention we think untenable and direct attention to the authorities cited in Erichsen v. Tapert, at page 462 of 172, Mich. (138 N. W. 330), touching the question. But it is contended on behalf of defendants that, even though the restriction is enforceable, in any event, it covers only the front of the lot, and the rear portion thereof might be used for business purposes. We cannot agree with this position. It is clear that the front of the lot, by the terms of the restriction, must be occupied by a dwelling house only which shall stand back 20-feet from the street line. How far back from that line the house is to extend is undetermined by the restriction. If complainant’s contention is correct, one owner might use 50 feet of the rear of his lot for business purposes, while his neighbor might be able to utilize but 20 for that purpose.

We are of the opinion that the peculiar language of the restriction was rather intended to fix a uniform building line back from the street front, and that the clear intention of the parties was to prevent the erection of any building upon the lot to be used for business purposes.

The decree of the circuit court stands affirmed, with costs.

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