author: Brooke, C. J. Ostrander, J.

text:
    CRAWFORD v. CICOTTE.
    1. Brokers — Commissions—Breach of Contract.
    A real estate broker wbo secured an option in writing upon real property to be sold witbin a year, was not entitled to bis commissions after a sale by tbe owner witbin tbe agreed time limit unless be could establish that be bad secured a buyer wbo was willing and able to pay tbe contract price in tbe length of time fixed by tbe writing, though it appeared he had advertised the land and had exhibited it to possible customers.
    2. Same — Contracts—Anticipatory Breach — Options.
    In an action for commissions under a broker’s contract, commenced before the time stipulated in a written option for a year, upon the theory of an anticipatory breach, the plaintiff could not recover without showing that he had obtained a buyer for the real property at the price and on the agreed terms.
    Ostrander and Bird, JJ., dissenting.
    Error to Wayne; Codd, J.
    Submitted April 8, 1915.
    (Docket No. 26.)
    Decided June 7, 1916.
    Assumpsit by Samuel Crawford against Edward A. Cicotte and another for breach of a contract in the nature of an option. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      James Swan (John D. Harger, of counsel), for appellant.

      Daniel P. Cassidy, for appellees.
   Brooke, C. J.

Defendants authorized the plaintiff to sell a certain piece of land by the execution of the following written contract:

“Detroit, Mich., Feb. 28, 1911.
“I hereby authorize Samuel Crawford, Jr., of the city of Detroit, Wayne county, Michigan, an option on the following described property for one year from the date thereof. Expires February 23, 1912.
“Property described as follows, to wit:
“As lot numbered No. 9 (nine), being on the north side of Jefferson Ave., formerly River St. being 487 50/100 feet on said road, 166 feet on Rouge river also being 232 14/100 feet on the westerly boundary line of lot numbered five (5), containing about 2 acres more or less according to Cicottes subdivision of P. C. 588 according to a recorded plat thereof, recorded May 15, 1889, Liber 12, page 86, of Plats.
“The above option is given for the consideration of $5.00, 5% for sale of same and sale must net $10,000.00.
“Edward A. Cicotte. [L. S.]
“Eliza E. Cicotte. [L. S.] ”

Later, and before the expiration of the year mentioned in the contract, defendants themselves secured a purchaser for said land for the sum of $15,000. After said sale was consummated and the parties having failed to reach a settlement of their differences, the plaintiff brought suit before the expiration of the year. Upon the trial plaintiff gave evidence tending to show that he had advertised said property to some extent and had shown it to a great many prospective buyers. Up to the’ time of the sale, however, he had secured no purchaser for the land at or above the price named in the contract. Upon learning of the sale, he discontinued his efforts to himself make a sale of the property, and this action followed. The trial resulted in a judgment for the defendants upon a verdict directed by the court.

The only meritorious question raised upon the record is whether a verdict was properly directed’ for the defendants. It is the claim of the appellant that by selling the property within the year during which he had an exclusive' right to the sale, the defendants breached the contract, and of this there can be no doubt. It is further the claim of appellant that in this action he is entitled to recover by way of damages the profits which he would have made had he made a sale within the time limited by the contract. His counsel says:

“It has been frequently held by the courts that when a breach of contract results in the loss of profits to the plaintiff, and the contract is one in which a profit accruing to the plaintiff is so contemplated, the amount of such profit is recoverable” (citing Burrell v. Salt Co., 14 Mich. 34; Atkinson v. Morse, 63 Mich. 276 [29 N. W. 711]; and Fell v. Newberry, 106 Mich. 542 [64 N. W. 474]).

There is no doubt about the correctness of the rule laid down in the decisions cited. The only question is whether they are applicable to the facts disclosed by the record before us. In the case at bar it does not affirmatively appear that the plaintiff lost any profits through the breach of the contract by the defendants. Up to the time the sale was consummated by the defendants, he had secured no purchaser willing to pay the price demanded by the defendants. Whether he would have been able to secure such a purchaser within the time limit fixed by the contract is entirely problematical. By the terms of the contract itself he was entitled to compensation only upon making a sale of the premises. This he did not do.

The case of Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), cited and relied upon by plaintiff, is not applicable to the facts here under consideration. There the contract provided for certain compensation to be paid to the plaintiff agent in case the sale was made by the principal. We there said:

“A broker may be entitled to a commission on a sale made by the owner without the broker’s co-operation, if they see fit to so provide in the contract of agencySuch contracts are not to be confused with the ordinary and general contract of brokerage, where compensation is entirely contingent on the broker finding and producing a purchaser.”

Had the plaintiff produced a customer able and willing to buy under the terms fixed in the contract, prior to the date of the sale effected by defendants, he would have been entitled to recover under our holding in the case of Wright v. Beach, 82 Mich. 469 (46 N. W. 678). So far as this record discloses, the breach of the contract on the part of the defendants was, as to the plaintiff, damnum absque injuria. There is no intelligent basis upon which the jury could be instructed to measure the damages suffered by the plaintiff by reason of said breach.

The judgment is affirmed.

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

Ostrander, J.

I am not able to distinguish this case and Davis-Fisher Co. v. Hall, 182 Mich. 574 (148 N. W. 713, L. R. A. 1915A, 1224), in principle.

Bird, J., concurred with Ostrander, J.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    SECURITY TRUST CO. v. DINSMORE.
    1. Mortgages — Redemption—Receivers—Partnership.
    A suit does not lie at the instance of a partnership receiver to set aside a transfer of property to a third person who borrowed money for the firm upon the credit of the realty, and who required that title he conveyed to him by the partners to secure the resulting indebtedness; a hill to secure a reconveyance was not sustainable and could not he treated as a hill to redeem, which requires a tender of the proper amount to cancel the debt secured.
    2. Same — Equity—Discovery—Receivers.
    The hill could not he treated as a hill of discovery, that form of equitable relief being obsolete.
    3. Same — Equity—Surety.
    And the court is not authorized to deprive the mortgagor of his title, held to secure him against the firm’s failure to pay the loan, without complainant’s indemnifying him against loss or otherwise relieving him from the obligation incurred for the benefit of the insolvent copartnership.
    Appeal from St. Clair; Law, J.
    Submitted January 12, 1915.
    (Docket No. 75.)
    Decided June 7, 1915.
    Bill by Security Trust Company, as receiver of a partnership, against Paul R. Dinsmore and another, to obtain a decree restoring certain property to the estate of the insolvent copartnership. From a decree for complainant, defendants appeal.
    Reversed.

      Alex. Moore, for complainant.

      W. B. Henry (W. C. Cook, of counsel), for defendants.
   Ostrander, J.

The complainant is the receiver of a partnership. It is charged in the bill that defendant Paul R. Dinsmore appears to own, and of record does own, certain premises which the partners conveyed to him by deed; that in fact he was merely a convenience used by them to acquire for themselves $5,0,00 from a third person (not a party to this suit) by way of a loan secured by the property. The method was to deed the premises to Dinsmore and to assign to him an outstanding lease thereof and sums due and to grow due thereon; Dinsmore personally borrowing the money upon his note and his mortgage of the premises. A further transaction, alleged to have been of much the same character, affecting personal property (choses in action), is set out, but is not here important. It is the theory of complainant that the premises conveyed to Dinsmore by the partners are of greater value than the mortgage lien, and that the surplus ought to be recovered for the benefit of the partnership. The consideration recited in the deed is $10,000, and there is testimony tending to prove that it was and is worth that sum and more. The bill prays for a decree requiring Dinsmore and his wife, Merle (who has no interest except as his wife), to convey the premises to the complainant subject to the mortgage and to account for and pay over the rents received therefor.

The defendant claims that, while the original purpose and proposition of the partners were to procure through him and the said property a loan of $5,000 by the method stated, he declined to be a party unless it was understood and agreed that title should pass to him — a reconveyance to be made, however, at the option of the partners, when the said $5,000 to be borrowed by him for them and his expenses should be repaid, and two notes held by him, one executed by each of the partners, should also be paid. These notes amounted to more than $6,000. The principal contention concerns the arrangement pursuant to which the property was deeded to defendant, and upon this subject the testimony is in conflict. The trial court entered a decree substantially as prayed for by complainant — a decree peculiarly framed, and which is complained about, even if the court is sustained in the conclusion as to the principal facts. •

Although admittedly Dinsmore’s note is out for the $5,000 and he personally liable thereon (the holder and owner not being a party to this suit), Dinsmore and his wife are required by the decree to execute and deliver to complainant a deed of the premises subject to the mortgage and to assign to it the lease. The extent of the relief granted is little discussed in the brief for defendants (appellants), and not at all in the brief for appellee. It further appears that certain promissory notes, the property of the partners, are pledged to a third party, not a party to this suit, to secure a note made by Dinsmore for the benefit of the partners. These notes are, by the decree, held to belong to the complainant, subject to the lien of the lending bank, and the said bank is directed to surrender “the residue of securities” to the complainant.

The bill of complaint is not framed to discover and have declared the true interest of defendants in the property, nor is it framed as a bill to redeem. There is no offer to pay the debts which the property is pledged to secure, nor to save defendant harmless if complainant’s theory of title to the property is. found to be supported by the facts. It is not a bill to quiet title, and, indeed, complainant, being out of possession, could not maintain such a bill. Bills for discovery only are obsolete.

The character to be given the bill is a matter of importance. Courts of equity do not, for receivers or for other parties complainant, divest citizens of property which it is admitted they rightfully hold as security, at least not without actually relieving them of the obligation to secure which the property was pledged to them. It is obvious that the partners could not secure a reconveyance of the property upon the theory of the bill, unless they paid the debt which they gave the property to secure, or wholly relieved defendant from liability therefor. It is equally obvious that the holder and owner of defendant’s note and of the mortgage he gave to secure it, and the holder of the collateral pledged by defendant to secure the other note, which is brought in question, are not bound by the decree. In considering whether the bill can be amended, this court cannot know whether the complainant desires to maintain the bill as a bill to redeem, or whether the court appointing the receiver will permit it to maintain such a bill — whether it can tender to defendant the relief he is entitled to if complainant’s contention is sustained.

Since the argument, counsel have been requested to advise the court concerning the points which are herein suggested. The solicitor for the receiver has responded with a brief, and for complainant it is said, among other things, that neither the prayer of the bill nor the decree deprives defendant of his security, but only defines the extent of the security, “and that is the only issue in the case.” I have already stated, and the bill and the decree leave no room for questioning it, that the court is asked to order, and has ordered defendants to deed the elevator property, subject to the mortgage, to the complainant — to convey away the title which, upon complainant’s theory, he holds as security for the repayment of the debt he contracted. For defendants the suggestions of the court are answered by saying that the bill ought to be dismissed, but that defendants desire to have the controversy now finally settled.

It is suggested by counsel:

(1) Whether the bill may be treated as a bill to redeem — Goodenow v. Curtis, 33 Mich. 505 — and whether, upon failure of complainant to redeem, the decree may not provide for a strict foreclosure of defendant’s lien. (2) Whether, if under all the circumstances a sale of the premises must be made, defendants may not now amend the answer in such way as to pray for foreclosure and sale.

It is pointed out that, in any event, defendant Paul Dinsmore having collected rent and paid out money for taxes, repairs, and insurance, an account must be taken. I think Goodenow v. Curtis, supra, is not authority for treating the present bill as a bill to redeem, and that the decree must be reversed, with costs of both courts to defendants.

The record will be remanded to the court below, with leave to complainant to file an amended bill within 60 days from date of remittitur, if so advised, in default of which the bill will be dismissed without prejudice.

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


author: Bird, J.

text:
    McDERMOTT v. ALGER.
    1. Mandamus — Laches—-Unreasonable Delay.
    An application for mandamus which is unduly delayed may, in the exercise of the discretion of the court, he denied if the result of issuing the writ would be to prejudice third persons who have acted in reliance upon the nonaction of the interested parties.
    2. Limitation oe Actions — Mandamus Proceedings — Municipal. Corporations — Warrants.
    Although no statute of limitations in this State applies directly to mandamus proceedings, the court may apply the rule barring such action by analogy upon the ground of laches where the holder of a drain warrant took no action within the statutory period for commencement of suit and permitted the matter to rest from 1894 to 1911.
    3. Same — Taxation—Time — Commencement — Statute of Limitations.
    If the holder of the warrant has no remedy which he may pursue, the statute of limitations does not begin to run against a quasi municipal corporation, until a fund has been provided from which the warrant may be paid. In case the holder has any remedy the statute commences to run from the date of issuance. Plaintiff would not be justified in delaying .commencement of some legal action unless no funds were actually on hand, or no means of raising money existed.
    4. Municipal Corporations — Townships—Taxation—Warrants.
    Where a drain warrant was issued for the construction of a drain by a township in which it was located, and some of the landowners voluntarily paid the tax and others contested, and the court set aside the contestants’ portion of the assessment, it was the duty of the township officials to reassess the same unless the ground for setting aside the assessment was jurisdictional: if they refused to discharge the duty it could have been required by mandamus proceedings. If the drain had been completed and no provision for paying the warrants had been legally made, the commissioners were required by law to reassess the cost upon application of any interested parties. Hence, relator had a remedy to enforce his rights if he saw fit to apply for it. 2 Comp. Laws, §§ 4366, 4369 (2 How. Stat. [2d Ed.] §§ 3423, 3426).
    5. Mandamus — Laches.
    Where the holder of a drain warrant neglected for nearly fifteen years to take any action for the protection of his rights, and he might during that period have commenced proceedings against the drain commissioner by mandamus to require the reassessment of the tax which had been in part determined invalid, he was barred by his laches from maintaining the proceedings.
    Certiorari to Saginaw; Gage, J.
    Submitted April 6, 1915.
    (Calendar No. 25,540.)
    Decided June 7, 1915.
    Mandamus by James W. McDermott against Leonard Alger, drain commissioner of the county of Saginaw, to compel the respondent to reassess a drain tax. From an order denying the writ relator brings certiorari.
    Affirmed.

      William M. Smith, for appellant.

      Bird J. Vincent, Prosecuting Attorney, for appellee.
   Bird, J.

The relator petitioned the circuit court for the county of Saginaw, for a writ of mandamus, to compel the respondent to reassess a portion of the costs of the construction of a certain drain located in that county. Upon the hearing of the matter, the court refused to issue the writ, principally because of the laches of relator in making the application. The proceedings are here for review upon certiorari.

It appears from the record that, in the year 1894, a certain drain was laid out in Saginaw county, and named Wolf Creek Drain. Later it was constructed, and orders in the sum of $6,626.19 were issued to cover the cost thereof. Some of the landowners in the assessment district voluntarily paid their taxes; others permitted their taxes to be returned, and afterward contested their validity on the hearing of the auditor general’s petition in the fall of 1896, and taxes to the extent of $2,752.42 were set aside. The precise ground upon which they were set aside does not appear in the record. Relator purchased his drain orders in the year 1894, and when this proceeding was launched in July, 1911, there was due thereon $655.82. Some small amounts were paid on his orders during the intervening years. In July, 1911, the relator made a demand upon the respondent that he reassess the deficiency upon the original assessment district. This he refused to do, and by reason thereof these proceedings were instituted.

The trial court, in reaching the conclusion which he did, recognized the following general rule applicable in mandamus cases:

“The court may, in the exercise of its discretion, deny an application for mandamus made after an unreasonable delay, especially where the delay has resulted prejudicially to the rights of the respondents or others interested. The applicant may, of course, avoid the effect of this rule by showing good excuse for the delay. In States wherein the statutes of limitation do not apply directly to mandamus proceedings, it is common to apply them by analogy; and, while it is difficult to lay down any fixed rule as to the time when the writ will be barred, it may be said in a general way that it must be brought within the period fixed for that particular form of civil action or proceeding, which may be brought to enforce the right which is the subject of the writ.” 26 Cyc. p. 393.

In this State there is no statute of limitations directly applicable to mandamus proceedings. Therefore, if such application is to be made, it must be applied by analogy. The question as to whether relator’s orders would be barred by the statute in a civil case is one to which much attention is given by counsel in their briefs. The relator insists upon the rule, namely:

“That the statute of limitations does not begin to run against a warrant issued by a municipal, or quasi municipal, corporation, and'payable out of a particular fund, until the corporation is provided a fund from which it may be paid.”

And he seeks to bring these orders within that general rule by showing that this particular drain fund has never had money out of which these orders could be paid. On the other hand, the respondent recognizes this rule, but contends that an exception thereto is applicable in this case. The exception referred to, in substance, is that where the warrant is payable out of a special fund, and the holder thereof has a remedy which he may pursue, the statute of limitation commences to run as soon as the warrant is issued.

The idea upon which the rule and the exception thereto appear to rest is that, when the holder of the warrant has no remedy which he may pursue, the statute does not begin to run until the fund is provided with money with which to pay it. Wetmore v. Monona County, 73 Iowa, 88 (34 N. W. 751); Barnes v. Turner, 14 Okl. 284 (78 Pac. 108, 10 L. R. A. [N. S.] 478, 2 Am. & Eng. Ann. Cas. 391); Potter v. City of New Whatcom, 20 Wash. 589 (56 Pac. 394, 72 Am. St. Rep. 135); Frazer v. County Court, 135 Mo. 533 (37 S. W. 521); King Iron Bridge, etc., Co. v. Otoe County, 124 U. S. 459 (8 Sup. Ct. 582); State v. Board of County Com’rs, 23 Nev. 262 (45 Pac. 982); 25 Cyc. p. 1068. But if the holder of the warrant has a remedy, the statute commences to run upon the issuance of the warrant. Bodman v. Johnson County, 115 Iowa, 296 (88 N. W. 331); Mills County, etc., Bank v. Mills County, 67 Iowa, 697 (25 N. W. 884). This exception appears to be recognized in Barnes v. Turner, supra.

In distinguishing Bodman v. Johnson County, supra, from Wetmore v. Monona County, supra, the Iowa court said:

“We think the distinction between the cases is that in the latter the county had no means of raising the fund out of which the warrant could be satisfied, and therefore was not in default in payment until there was money on hand, while in the case of the ditch fund there is authority for making additional assessments until the expenses payable out of the fund are satisfied. (See Code, § 1950.) Therefore it was the duty of the county to raise the necessary funds, and plaintiff was not justified in postponing the bringing of his action until such funds were actually on hand.”

In the instant case, when a portion of the tax was set aside by the court, if for other than jurisdictional grounds, it was the duty of the township officers, upon their own initiative, to cause the same to be corrected and to be reassessed. 2 Comp. Laws, § 4369 (2 How. Stat. [2d Ed.] § 3426). And if the drain had been completed and payment or provision for payment had not been legally made, it was the duty of the commissioners to reassess the cost thereof upon application of any of the parties interested. 2 Comp. Laws, §4366 (2 How. Stat. [2d Ed.] § 3423). And, had the township officers refused to discharge this duty under either statute, it could have been enforced by mandamus. Laubach v. O’Meara, 107 Mich. 29, (64 N. W. 865). It therefore follows that relator was in a position during the whole period to enforce his rights if he had seen fit to do so.

It seems to us that there is much reason in the exception to the rule, and that the facts in this case are such that it is especially fitting that the exception to the rule should be applied. Relator, purchased these orders in 1894, and has been ever since demanding payment thereof. Just why he was so patient about the matter was due to the fact, says counsel, that he was each year receiving a small payment thereon from the county treasurer as delinquent taxes were paid, and this led him to believe that his orders would be eventually paid. The trouble with this attempt to excuse his laches is the fact that nearly half of the tax was set aside in the Saginaw circuit court in the fall of 1896. When that decree became final, he then knew that there would be such a deficiency in the fund that his orders could not be paid. After being possessed of this knowledge, why he did not bestir himself for 15 years to protect his rights is not easily explained. Counsel says, however, had he brought mandamus proceedings at any time during that period against the county treasurer, the writ would have been denied because the treasurer would have shown that there was no money in the fund. This- would probably have been the result had he proceeded against the treasurer (Cathcart v. Merritt Township, 38 Mich. 243), but that does not answer the query why he did not then institute the same proceeding which he did in July, 1911. No reason is assigned why he could not have instituted this proceeding against the drain commissioner in 1896 as well as when he did. If he had, no question of this kind could have arisen. Instead of doing then what he has now done, he waits 15 years, and during that time portions of the Wolf Creek Drain have been attached to other drains, and presumably titles have changed hands, and will be subjected to liens, if this writ is granted, which they had no notice of when they purchased them. But it is argued that this ditch was constructed and the lands within the assessment district were benefited thereby, and ought now to bear the burden of it. If relator had been ordinarily diligent, the orders would have been paid years ago. It is not in the interest of the public good to enforce such ancient claims after so many years have elapsed, and after so many complications have arisen, unless some very good reason is given, for the delay.

We think the trial court was right in its conclusion, and the order denying the writ will be affirmed.

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


text:
    KNIGHTS OF THE MACCABEES OF THE WORLD v. BROWN.
    1. Insurance — Fraternal Societies — Divorce.
    Complainant, an insurance and fraternal order, brought an interpleader suit against the divorced wife and widow of a deceased member to determine their respective rights under a benefit certificate originally issued to the divorced wife as beneficiary during coverture. The first wife paid part of the assessments. After the issuance of the certificate complainant adopted a by-law providing that the benefit should be paid in case of divorce as if the beneficiary designated had died. Though the insured had not agreed in his application to he governed by after enacted by-laws, he had so stipulated in an application for reinstatement filed about five years after the policy was executed. Act No. 104, Pub. Acts 1869, provided when the insurance was purchased that policies should be payable only to the husband, wife, family, heirs, creditors or assigns of any member. The beneficiary was never changed by insured. Complainant did not deny liability. Held, that the question of liability to the second wife was a proper issue for determination, and that she was entitled to the fund.

      2. Same — Vested Right.
    Without a contract to that effect with the husband, the divorced wife acquired no vested right in the fund by paying the premium.
    Appeal from Wayne; Hosmer, J.
    Submitted April 12, 1915.
    (Docket No. 38.)
    Decided June 7, 1915.
    Bill by Knights of the Maccabees of the World against Gitty Brown and others for an order of inter-pleader. From a decree for defendant Elizabeth Brown, Gitty Brown appeals.
    Affirmed.

      Clarence G. Hill, for defendant Gitty Brown.

      Terry & Parsons (Donnelly, Lyster, Brennan & Munro, of counsel), for defendant Elizabeth Brown.
   Ostrander, J.

Complainant issued its certificate to William Brown May 20, 1887, for $2,000, the named beneficiary being Gitty Brown, wife. Thereupon William became a member of Petrolia Tent No. 10, located at Petrolia, Canada. In March, 1910, Gitty Brown secured a divorce from William, the decree providing for payment to her of $50 monthly as alimony. No other property was secured by the wife in this proceeding. William paid the alimony during his life. In April, 1910, William Brown married Elizabeth Phelps, and in April, 1913, he died, leaving surviving him Elizabeth, his widow, and two children, Lettie and Lillian, by his first wife. So far as the beneficiary is concerned, the original certificate was never changed. In 1904, complainant adopted and made a part of its laws section 348, which reads:

“Divorce of Beneficiary. In the event of the divorce of a member from wife or husband, who is named as beneficiary in the life benefit certificate of. the member, if no other designation has been made, the benefit shall be paid the same as though the designated beneficiary had died before the member and no new designation had been made. In no such case shall the designation of widow or widower, as provided in the preceding section, be taken to mean the divorced wife of husband of such deceased member, but shall mean the.legal wife or husband, if any, of such member, at the time of his death.”

Testimony was introduced tending to prove that in 1892 William was suspended for nonpayment of dues, and on May 4, 1892, made application for reinstatement, which application was approved May 8, 1892, a certificate of good health being required and given. In the application for reinsurance, William Brown said:

“This application and the constitution and laws of the supreme tent now in force, or that may hereafter be adopted, are made the sole basis of the contract between myself and the supreme tent, and for myself and my beneficiary or beneficiaries agree to conform and be governed thereby.”

The original application for insurance made no reference to existing laws or laws thereafter adopted. There was testimony also that Gitty Brown paid assessments to the insurer, and that but for her action in this respect her husband would not have continued to be a member of the order. Also there was testimony to the effect that in the divorce proceedings, and later in an attempt to open the decree of divorce, she specially asserted a right to the certificate.

A law of the complainant in force when the certificate matured (section 347) provided for payment in the case of the death of all beneficiaries, distributing the fund to the widow or widower if living, if not, then to the children, if none, to dependents, etc. Act No. 104, Pub. Acts 1869, and its amendments (Act No. 192, Pub. Acts 1883), in force when the certificate in question was issued, provided:

“Such corporation or association shall only issue certificates or policies payable to the husband, wife, family, heirs, creditors or assigns of any member.”

Act No. 226, Pub. Acts 1901, in force when William Brown died, somewhat enlarged the list of proper beneficiaries by adding, “mother, father, sister, brother, or blood relatives to the fourth degree of the member,” and if the member had no such relatives then he might designate any other person, or his estate, as beneficiary. Both the divorced wife and the surviving wife claimed the fund, and, the complainant having filed a bill of interpleader, they were ordered to and did interplead. Later the children were brought in by amendment of the bill, and they asked to have the fund paid to them. A decree was entered, awarding the fund to Elizabeth Brown. From this decree Gitty Brown has appealed.

The argument in favor of appellant which appears to have force and which must be noticed is that by the terms of the certificate, admittedly valid when it was issued, the fund is payable to her, and the complainant does not deny liability. In this connection it is said that Elizabeth Brown, a stranger to the contract, cannot urge in her own behalf any application of the laws of the complainant association. It is urged, also, that by the payment of assessments previous to her divorce, and previous to the time when the laws referred to were passed, she acquired a vested interest in the policy.

The appellee, Elizabeth Brown, defends the positions :

First, that appellant was not, after her divorce, one of the class for whose benefit the association was authorized to issue policies, citing and relying upon Order of Mutual Protection v. Dewey, 142 Mich. 666 (106 N. W. 140, 3 L. R. A. [N. S.] 334, 113 Am. St. Rep. 596, 7 Am. & Eng. Ann. Cas. 681); SchillerBund v. Knack, 184 Mich. 95 (150 N. W. 337).
Second, that the by-laws are a part of the contract, and that they were so recognized by the. insured when he made application for and was permitted reinstatement after being suspended.

What is the effect, in the particular case, of the admission of liability on the part of the complainant? It must be admitted that upon this point there is some apparent confusion in our own decisions. As early as Mutual Benefit Ass’n v. Hoyt, 46 Mich. 473 (9 N. W. 497), it was held that a policy of insurance, payable to one not of the class entitled to be beneficiaries, may be defended against by the insurer, not in its own interest, there being no fraud perpetrated upon it, but in the public interest. In Mutual Benefit Ass’n v. Rolfe, 76 Mich. 146 (42 N. W. 1094), the doctrine of the Hoyt Case is reaffirmed, and it is further held that what public policy will not sanction if done directly cannot be enforced when accomplished by indirection. In the Hoyt Case the insurer was a party to the action; in the Rolfe Case the rival claimants were required to interplead. In Standard Life, etc., Insurance Co. v. Catlin, 106 Mich. 138 (63 N. W. 897), the insurer admitted liability by paying the money into court. The contest was between the beneficiary who, it was claimed, had no insurable interest in the life of the insured and the personal- representative of the deceased insured. It was said:

“We think, as between the complainant [the insurance company] and Nettie Gail Catlin, the question is not here. The company concedes its liability on the contract, and has paid the money into court. If the question were open, it is difficult to see how a determination that the policy is a wager policy would be fruitful in results to the heirs of the deceased.”

It is pointed out that Nettie Gail Catlin, the beneficiary, survived the insured, and was living; that by its terms the policy was payable to the representatives of the deceased only in the event of the death of Nettie Gail Catlin; that if the contention of the representative was admitted, the policy must be held to be void as a wager policy; and that the decree awarding the fund to the beneficiary should be affirmed. In Cowin v. Hurst, 124 Mich. 545 (83 N. W. 274, 83 Am. St. Rep. 344), the fund was permitted to be paid by indirection to one who could not have been a beneficiary under the law. It was said that the insurer was not complaining, and that if it was, a different question would arise. This case was considered in Grand Lodge A. O. U. W. v. Beath, 150 Mich. 657 (114 N. W. 662), in which case a majority of the court reaffirmed the doctrine it announced. Finally, in Grand Lodge A. O. U. W. v. Brown, 160 Mich. 437, at page 448 (125 N. W. 400, at page 404), an interpleader case, it is said, considering the contention that a change of beneficiaries was not properly effected, that the appellant could not complain “since the complainant has admitted its liability, and the complainant order is the only party that has the right to raise the question” (citing Standard Life, etc., Insurance Co. v. Catlin, supra; Hosmer v. Welch, 107 Mich. 470 (65 N. W. 280, 67 N. W. 504); Order of Mutual Protection v. Dewey, supra;. Cowin v. Hurst, supra), and upon the question whether the association had power to designate certain beneficiaries, it is said that if it had not the power, the complainant order, only, could raise the question (citing, further, Great Camp K. O. T. M. v. Deem, 143 Mich. 652 (107 N. W. 447); Grand Lodge A. O. U. W. v. Beath, supra). The Deem Case does not appear to involve the question beyond this, that the beneficiary named in the certificates was not allowed to recover the fund, but only to receive compensation out of it, upon the theory that a change of beneficiaries from the wife of the insured to the claimant beneficiary was made for the purpose of securing to her compensation for money loaned to, or advanced for, the insured. There was involved no question of a proper beneficiary, but only the effect to be given a change of beneficiaries. Some of these decisions were urged upon the court in Order of Mutual Protection v. Dewey, 142 Mich. 666 (106 N. W. 140, 3 L. R. A. [N. S.] 334, 113 Am. St. Rep. 596, 7 Am. & Eng. Ann. Cas. 681), which was a case of interpleader, and the status of a named beneficiary, under the law, was involved. It was said:

“If the contract in question Were void as a wager policy, and when construed with the laws of the association simply provided for payment to the beneficiary named in the policy and no one else, we should concur in the proposition that the defendant Ducheney had no standing in the case, and that, if the company was willing to pay under its agreement, no one else could complain. But by the express provisions' of this policy: ‘The rights of the above-named beneficiary or beneficiaries shall be determined by the laws of the order in force on the day of the death of the member,’ etc. The laws of the order in force at the time of Mrs. Ducheney’s death provided, amongst other things, as follows:
‘“Sec. 192. Should a member die without designating a beneficiary, or should the designated beneficiary' die or prove to be an unlawful one, or should more than one person claim the same benefit, then the claimants for the benefit shall be recognized in the following order and no other: (1) Wife or husband; (2) children; (3) mother,’ etc.
“This by-law was a part of the contract of insurance as much as though its terms were writtén into the certificate. The policy provided in legal effect that the sum of $1,000 should be paid to Theodore B. Dewey; but in case it should be determined that the money could not lawfully be paid to . him, then it should - be . paid to Joseph Ducheney, her husband'. The defendant Ducheney has a direct interest in this contract, which he is entitled to enforce.”

This distinction would not dispose of the controversy which was before the court in Grand Lodge A. O. U. W. v. Beath, supra, or the one in Cowin v. Hurst, supra, nor perhaps in any case in which mere regularity in naming, or in changing, beneficiaries was involved, but it is a distinction which, if admitted, warrants, and indeed requires, in cases where the liability,of the insurer to pay the fund to some one, if not to the beneficiary, exists, the designation by the court of the rightful beneficiary. . In such cases it is unimportant that the insurer does not deny liability.

The reasoning -in the Dewey Case is persuasive, and in my opinion the point referred to was correctly ruled. Kept in mind, much apparent confusion in the decisions disappears. Applied in the instant case, it required consideration of the contention of Elizabeth Brown that, although she is named as beneficiary in the certificate, Gitty Brown has no right to the fund.

It is clear that she has no right under the laws of complainant because she is not the widow of William Brown and has not for years sustained with him a relation which would allow her to be a beneficiary. The proof is wholly insufficient to show that she acquired a vested interest in the certificate or the fund. See Schiller-Bund v. Knack, supra. She was a proper beneficiary when the certificate was issued, and the insured, her then husband, although he might have done so, did not appoint any one else to take the fund. Her right, therefore, depends upon the force and effect to be given to the law of the complainant and the changed relations resulting from the divorce. The reasonableness of the law is not questioned. Whether, having been adopted after the contract was made, it could affect the insured member and so affect the beneficiary named by him, is the real question presented for decision.

There is nothing in the testimony which discloses, with any certainty, the intention of the insured, beyond the fact that he did not make a change of beneficiaries. His neglect to make a change may be explained, of course, by saying that he knew that a change had been in fact made by the law, the divorce, and his subsequent marriage to the appellee, and that he was therefore contented. As a general rule, waiver of a default by a party to a contract who has the right to insist upon it revives and continues the contract according to its terms. New terms are not added to it by implication. The testimony satisfies me that William Brown became in default, and as a member was entitled to be relieved from it upon terms. He was relieved, upon making a new application and furnishing a certificate of good health. In his application he expressly agreed to be bound by the laws of the order and by laws thereafter adopted. Gitty Brown having no vested interest in the certificate — indeed, she could not herself have removed the default — cannot be heard to say that the new arrangement, assuming that in this respect it was a new arrangement, did not bind her. I find no reason for holding that William Brown was not thereafter bound by the old and new laws of the complainant.

It results that the decree was right, and should be and is affirmed, with costs to appellee.

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


text:
    KOOMAN v. DE JONGE.
    1. Appeal and Error — Motion for New Trial — Exceptions — Saving Questions for Review.
    In a cause heard upon stipulation of facts by the trial court sitting without a jury, and to whose rulings no exceptions were taken nor points of law presented in pursuance of the practice required under Circuit Court Rule 26, nothing was gained for the purpose of review hy the presentation and denial of a motion for a new trial.
    2. Same — Assignment of Error — Stipulation—Judgment.
    Under a stipulation of the facts hy the parties, the question whether they support the judgment is open to the appellant if he properly assigns error: and in an action on the money counts, the assignment of error to the effect that the court erred in finding from the stipulated facts that the defendants undertook in manner and form as the plaintiff in his declaration charged, sufficiently presented the question for review upon error.
    3. Vendor and Purchaser — Land Contracts — Option—Breach— Brokers — Agency—Failure of Authority.
    An option or contract purporting to he executed hy defendants, the widow and former administrator of the estate, as agents of and for the estate, when in fact the estate had been closed, the property assigned and the administrator discharged so that neither defendant could or did have authority to make the conveyance, and in fact had no authorization from any of the other heirs to sell or contract for the sale of the property, and not purporting to he executed by the defendants as the sole owners of the property, hut as such agents for the heirs, was not binding upon the principals for whom and in whose behalf it purported to he executed and was not a defense to an action hy the purchaser for the return of the amount paid to secure the option.
    Error to Ottawa; Cross, J.
    Submitted April 13, 1915.
    (Docket No. 57.)
    Decided June 7, 1915.
    Assumpsit by Gerritt Kooman against Grietje De Jonge and John M-. De Jonge for money had and received. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Jarrett N. Clark, for appellants.

      Louis II. Osterhous, for appellee.
   Ostrander, J.

The cause was heard by the court upon stipulated facts, and a judgment was rendered for the plaintiff. Later, defendants moved for a new trial, which was denied. No exceptions were taken to any ruling, nor were points of law presented as is permitted by Circuit Court Rule 26, sub. (a). It is assigned as error — the first of several assignments— that:

“The court erred in finding from the stipulated facts that the said defendants did undertake in manner and form as the said plaintiff- hath in his declaration in said cause complained against them.”

And it is assigned as error — the sixth assignment —that:

“The court erred in finding that the judgment is supported by and is in accordance with the stipulated facts and is not contrary to the law and evidence.”

Nothing was gained for the purposes of a review by the motion for a new trial. It is contended by the appellee that in the absence of any exceptions there is nothing for this court to review. We held in Weist v. Morlock, 116 Mich. 606 (74 N. W. 1012) (see Stafford v. Crawford, 118 Mich. 285 [76 N. W. 496]), that when no exceptions are taken to findings of fact and law by the court, the only question which can be raised on appeal is whether the findings support the judgment, and that question is open only when made the basis of an assignment of error. This rule, and construction of Circuit Court Rule 26, has been many times approved. It would seem, when parties submit a cause upon a stipulation 'of facts, instead of asking the court to find the facts, that whether the facts support the judgment is a question open to the appellant if made the basis of an assignment of error. We so hold, and w,e find the first assignment of error sufficient to present the question.

The suit is brought to recover from the two defendants a sum of money, the declaration containing only the common counts in assumpsit. A bill of particulars gives the information that the money sought to be recovered was paid to defendants for an alleged option and on account of the purchase price of certain real estate and personal property, theretofore owned by Marinus De Jonge, deceased, upon defendants’ representation that they had authority to sell the said property, represented the estate of said deceased, and that John M. De Jonge was administrator of said estate, when, in fact, the estate had been closed and the property assigned to the heirs of said deceased owner, John M. De Jonge had been discharged as administrator of the estate, and neither defendant did, or could, represent or have authority to act for said estate, or for the owners of said property, and neither had authority from the said owners to sell or contract for the sale of the property or to receive any money on account of such a sale. Plaintiff repudiated the contract and demanded the return of his money, which was refused. The facts upon which the court acted were the following:

“In his lifetime one Marinus De Jonge was the owner of certain real and personal property described in a certain land contract with ‘option clause,’ a copy of which is attached to plea and notice filed by defendants in this cause. Said Marinus De Jonge died, leaving a widow, Grietje De Jonge, one of the above-named defendants, and twelve children, including the defendant, John M. De Jonge, as his heirs. Said John M. De Jonge was appointed administrator of the said estate by the Ottawa county probate court, and the estate was duly administered, and on, to wit, November 6, 1912, said estate was closed, the administrator was discharged, and the court made an order assigning the residue of the estate, including the said real estate, described in said contract, one-third to the said Grietje De Jonge, and two thirty-thirds to each of said eleven children, four of whom were adults and eight of whom were minors.
“That on November 5, 1913, the said real estate was owned one-third by said Grietje De Jonge, two thirty-thirds by said John M. De Jonge, and the remainder by the three other adult children and eight minor children, two thirty-thirds thereof by each.
“That prior to said last-named date Grietje and John M. De Jonge offered said land for sale and negotiated with plaintiff for the purchase and sale thereof; and, as a result of the negotiation on said date, the before-mentioned contract with ‘option clause’ was entered into and made; the same being signed by said defendants and described in said option as widow and son of said Marinus De Jonge, and ‘acting for the estate of said Marinus De Jonge, deceased.’ That upon the signing and delivery of said contract plaintiff paid to defendants the sum of $350 in cash, which defendants have ever since retained and no part of which has ever been returned to or paid to the plaintiff.
_ “That at the time said contract was so made and signed, the said defendants had no authority in writing to act for or as the agents or representatives of the other owners of said property, or to sell or contract for the sale of said land for them, and had no authority of any kind, either verbal or written, to act for and represent the infant owners, or to sell or contract for the sale of their interests in said lands. That at that time the said- seven infant owners had no guardian and no guardian was petitioned for them until January 19, 1914, and none appointed until January 19, 1914.
“That after the payment of said money and the making of said contract and before the second payment of $500, on, to wit, November 15, 1913, was to be paid, the said plaintiff repudiated said contract, agreement and option, and demanded of the defendants that they return to him the $350 he paid upon said contract, and upon the purchase price of said lands, which they refused to do, and thereafter and on, to wit, January 26, 1914, he commenced this suit to recover same, with interest at 5 per cent, from date of payment, from them, after advising them by letter on December 18th that he would so sue if they persisted in their refusal to refund to him said money.
“For the purpose of this suit and its determination it is also agreed that plaintiff was- advised of the true condition of the title to said property at or about the time of the making of said agreement, namely, that said minors’ interests would have to be sold by permission of the probate court.
“That at no time prior to plaintiff’s repudiation of said contract and at no time prior to said plaintiff’s final demand of payment and threat of suit on December 18, 1918, was the said contract and agreement so made and signed by defendants ratified, approved or authorized in writing by their claimed principals, the other eleven owners of said real estate, nor by any person or court authorized to act for or bind them or any of them; and the contract made on behalf of said minors has never been .approved or ratified, in writing, at any time by any person or court having authority; except that on December 29, 1913, a power of attorney was duly made and executed by the adult heirs of Marinus De Jonge to John De Jonge and Grietje De Jonge, authorizing them to sell and dispose of the lands mentioned in said contract, and except that on March 2, 1914, the probate court of Ottawa county granted a license to Albert La Huis, guardian for said minor heirs and owners, to sell the interest of the said minors in the real estate described in said contract, at private sale, for not less than $2,169, which said power of attorney and an exemplified copy of said license to sell are hereto attached.”

The option contract referred to calls for a down payment of $350 and a total of $8,500, the land to be deeded subject to a mortgage of $2,400. In the contract the defendants, who are parties of the first part, are described as widow and son of the late Marinus De Jonge “and acting for the estate of the said Marinus De Jonge.” They agree to execute and deliver to plaintiff, the party of the second part, a good and sufficient warranty deed of certain described land, and to convey certain described personal property. The balance of purchase money after $850 is paid becomes due and payable when the deed is delivered, “said deed to be authorized by the probate court of said county of Ottawa.” It contains this provision:

“And the said parties of the first part do hereby further agree that they shall and will not before March 1, 1914, after the date hereof sell, convey, mortgage, or othérwise incumber the said land or any part thereof, or do any act or deed to diminish or incumber the title to said land.
“It is agreed by and between the parties hereto, that if the said party of the second part at the expiration of the aforesaid limited time shall have declined or omitted to make application for the purchase of said land at the price aforesaid, then this instrument shall be void and the above sum of $350 so paid as aforesaid shall be forfeited by the said party of the second part, and the said parties of the first part shall have the right to retain the same, as and for liquidated damages, and the said party of the second part shall relinquish to said party of first part all claim to the said land and chattels either in law or equity, and also all claim to the said sum of $350, so paid as aforesaid, and no claim of the said party of the second part under this contract shall then be effectual.
“Said second party is to take possession of the premises on January 1, 1914, or sooner if vacated by said first parties.”

Whether the facts support the judgment depends upon whether the parties of the first part to the contract of sale acted in their individual, or in a representative, capacity. It is the contention of the plaintiff that the contract is void'because not signed by all of the parties by whom the sale was really to be made, or by some person by them thereunto lawfully authorized. The defendants contend that the sale was to be made and conveyance executed by the parties of the first part; that they have bound themselves by a positive contract to* do an act in itself possible. Harrison Granite Co. v. Stephens, 160 Mich. 51, 52 (125 N. W. 36). They cite and rely upon Miller v. Smith, 140 Mich. 524 (103 N. W. 872). That was an action for damages for breach of a contract to convey certain real estate. It appeared that a widow and ten children as heirs of the owner succeeded to the title to the land, and that the widow and one son.made to plaintiff the following promise:

“Received of Richard L. Miller $50 as first payment of $11,000 for the purchase of lots, * * * the balance of the purchase price being payable as soon as we furnish perfect title to above property, we to furnish a Burton or Union Trust abstract. We further agree to give a warranty deed to Richard L. Miller or his assigns as soon as purchase price is tendered.”

The abstract was furnished and showed title as above stated. The deed was demanded and refused. Referring to Mull v. Smith, 132 Mich. 618 (94 N. W. 183), this court said in an opinion reversing a judgment for defendants that the writing contained all the necessary elements of a land contract and was a valid contract for the sale of land; that “the contract was not conditioned upon procuring the transfers from the other heirs,” it being admitted, however, that plaintiff knew the condition of the title. Appellee says the cases must be distinguished; that by the terms of the contract in the case at bar the defendants acted only in part for' themselves and in part for others; that the agreement was on behalf of the others to have the others convey; that the contract is conditioned upon procuring transfers from the other heirs; that it is not a contract to procure title to land, but a contract for the sale of lands not executed by the owners or by their duly constituted agent.

It will be noticed that the parties of the first part, defendants, have particularly covenanted only against their own acts, pending the transfer, and that the deed which they agree to furnish is to be authorized by the probate court, indicating that they do not undertake, at all events, to sell and transfer the property, or even to procure a title from the owners,-but do undertake to fix the terms according to which they hope, or expect, that the owners, other than themselves, will make the sale and transfer possible. As the contract does not bind the owners, it cannot be held to bind the plaintiff.

The judgment is affirmed.

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


text:
      In re CLARK’S APPEAL.
    Paupers — Support—Kin—Liabiiity—Retrospective Statute.
    Act No. 101, Pub. Acts 1909, providing that the kin of indigent feeble minded persons be required to reimburse the State for the expenses of their maintenance at the charge of the public, applies to inmates that were admitted to hospitals before the passage of the statute.
    Error to Eaton; Chester, J., presiding.
    Submitted April 8, 1915.
    (Docket No. 29.)
    Decided June 7, 1915.
    Sarah P. Clark brings error from an order of the circuit court affirming a probate decree requiring her to repay the State for care of a feeble minded pauper.
    Affirmed.

      E. R. Boyles, for petitioner.

      L. H. McCall, for respondent.
   Ostrander, J.

On an appeal from proceedings in probate court the circuit court held that, from and after the date of its passage, Act No. 101, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §3768 et seq.), applied in cases of patients admitted to the State hospital, before the passage of the act. It was therefore ordered that the appellant, mother of the patient, pay to the State a certain sum for the cost of maintaining the patient at the hospital after the taking effect of the law. Whether the law applies in cases of public patients admitted to the hospital before its passage, or only to those admitted under the provisions of the act itself, is the single question presented. Appellant’s son was admitted a patient in 1901.

The act is entitled “An act to revise the law relative to the care of the feeble-minded and epileptic,” and section 18 provides that:

“If a public patient is an indigent person and has relatives who are legally liable for his support, the prosecuting attorney of the county in which the order of admission was made shall petition the probate court of said county in his name as prosecuting attorney, stating that such person has been ordered admitted * * * that he is an indigent person, and that he has relatives, naming them, who are legally liable for his support, and praying that said relatives may be adjudged to reimburse the State for the expenses paid and to be paid by it in his behalf.”

The argument is based’, upon both sides, largely upon the wording of the law and of previous laws upon the same general subject, and in part, also, upon what is regarded by appellant as a legislative construction of Act No. 101, found in Act No. 27, Pub. Acts 1913, which is entitled:

“An act relative to inmates of the home for the feeble-minded and epileptic who became inmates prior to the eighteenth day of May, nineteen hundred nine; and to provide for giving such patients the same status as inmates committed to said home after said date.”

No question is raised concerning the power of the legislature to provide for an enforced contribution from relatives for the support of patients committed to the institution as public patients. As has been stated, the only question is whether it is plain that it intended to make the law of 1909 apply to all public patients then in the institution as well as those thereafter received. Admitting that the State may cause these unfortunate persons to be segregated and kept and maintained at a public institution, and may compel relatives to bear, in whole or in part, the cost of maintenance, it seems clear that it may fix the time when such contributions shall begin. It would not lose the right by foregoing its exercise. No vested right in a relative to have the free maintenance of a patient continued would arise because for a period the State had freely maintained the patient. There is in Act No. 101 ho language which implies that relatives of patients already admitted as. public patients will not be called upon to contribute to the expense of maintenance to be thereafter furnished by the State. On the contrary, the language is broad enough to include the relatives of those within the institution. No reason appears for excepting the relatives of those then in the institution from the operation of the act. Consequently, assuming the power to exist to enforce contributions at any time, fair construction would make the act applicable to the relatives of those then within the institution, as well as to relatives of those thereafter admitted. And, as indicative of legislative purpose, the fact that by law certain relatives of such unfortunates have always been held to be liable to contribute to their support in the institution is persuasive in reaching the conclusion that the relatives of no class of patients were intended to be excluded, or to be saved, from the operation of the law. I regard it as unnecessary to consider the force and effect of the act of 1913 as indicating a different construction of the previous law. However, it occurs to me, after reading the later act, that its purpose was not the construction of the earlier law.

The judgment of the circuit court is right, and is affirmed.

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


author: Per Curiam.

text:
    NIAGARA SPRAYER CO. v. WOOD.
    1. Appeal and Error — Record — Exceptions — Assignments oe Error — Index.
    The Supreme Court, on error to the trial of an action at law before the court sitting without a jury, will not review assignments of error relating to the admission or rejection of testimony if the record does not conform to Supreme Court Rule 36 by containing an index of the place where such exceptions are to be found, the omission not being supplied in the brief for appellant, which also contained no argument addressed to such assignments of error.
    2. Same — Record—Bill of Exceptions.
    The objection of appellant to the size of the record on appeal, claiming that the opposite party had added unnecessarily to thé length of the proposed bill of exceptions by his amendments, cannot be considered in the absence of some showing or information as to the number of pages which were added unduly and no objection appearing to the action of the trial court in amending the record.
    Error to Oceana; Sullivan, J., presiding.
    Submitted April 7, 1915.
    (Docket No. 10.)
    Decided June 7, 1915.
    Assumpsit by Niagara Sprayer Company against Susie M. Wood upon a promissory note. There was a claim of recoupment. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      F. E. Wetmore, for appellant.

      A. S. Hinds, for appellee.
   Per Curiam.

The action is assumpsit. The trial was before the court without a jury. Findings of fact and law were made and filed. These the plaintiff moved to amend and the motion was denied. There are 14 assignments of error, 4 of which relate to rulings admitting or rejecting testimony. The index to the record does not show where the exceptions (if there were exceptions) upon which these are predicated may be found in the record. Nor is the omission supplied in the brief for appellant, nor is there argument addressed to these assignments.

This court has sometimes, as matter of grace, assumed the labor of looking up the exceptions in the record. Mills v. Warner, 167 Mich. 619 (133 N. W. 494); Yanelli v. Littlejohn, 172 Mich. 91 (137 N. W. 723). It has refused to consider such assignments. Duff v. Judson, 160 Mich. 386, 391 (125 N. W. 371). Supreme Court Rule 36 is not ambiguous, and would seem- to have been frequently enough pressed upon the attention of counsel.

All other assignments of error are addressed to the findings. None of them alleges that the findings of fact are not supported by some testimony, nor that the facts found do not support the conclusions of law. There is therefore nothing for this court to review. See Circuit Court Rule 26 and Stevens’ notes thereto and the large number of similar rulings made since those notes were published.

The judgment is affirmed. Appellant, in the brief, objects to the size of the record, complaining that much of it is unnecessary and was added to his proposed bill of exceptions on motion of appellee. The record appears to be much too large, but we are not referred to any page thereof where appellant’s objections to amending it are to be found, and cannot separate the bill of exceptions it proposed from the bill as settled.