author: Montgomery, J.

text:
    BUSH v. DELANO.
    1. Wills — Witnesses—Interest—Cross-Examination.
    In the contest of a will, proponents’ counsel,- for the avowed purpose of showing the interest of one of the contestants, who was sworn as a witness, cross-examined her closely as to whether certain of the contestants had not professed a willingness in the probate court to withdraw from the contest. The witness had previously frankly admitted her ill feeling towards proponents. Held, that the examination was not competent for the purpose stated.
    3. Same.
    The inquiry, however, was made competent by contestants’ placing in evidence a letter written by one of the proponents, in which the decision of the contestants previously mentioned to withdraw from the contest was asserted; it being proper to show that this was not a misstatement.
    3. Same — Evidence.
    The extent to which a testator had aided or failed to aid his immediate relatives is a pertinent inquiry, where the will is contested on the grounds of incompetency and undue influence.

      4. Same — Mental Incapacity — Forgetfulness.
    While individual instances of forgetfulness on the part of a testator do not show mental incapacity to make a will, an instruction that forgetfulness has no tendency to prove a want of capacity is erroneous.
    5. Same — Undue Influence — Burden of Proof.
    The rule that the burden of proving that a will was obtained by undue influence rests upon the contestants is qualified where the will was drawn by one named as legatee therein; the burden in such case being upon the proponents to show that the instrument was in all respects fair and honest, and expressed the will of the deceased.
    6. Same.
    Undue influence in the procurement of a will need be established by a preponderance of the evidence only. Maynard v. Vinton, 59 Mich. 153, in so far as it implies that the proof must be inconsistent with any hypothesis but that of undue influence, disapproved.
    7. Same — State of Mind — Declarations of Testator.
    In so far as the testator’s state of mind is material in the contest of a will for mental incapacity and undue influence, declarations by him to the effect that he intended to make provision by will for certain relatives are admissible; but not for the purpose of showing that undue influence was exerted over him by other legatees.
    Error to Allegan; Padgham, J.
    Submitted February 11, 1897.
    Decided June 7, 1897.
    Charles A. Bush and others presented for probate the will of William R. Delano, deceased.. William Delano and others appealed to the circuit court from an order probating the will. From a judgment for proponents, contestants bring error.
    Reversed.

      Ed. J. Anderson and Osborn, Mills & Master, for appellants.

      O. Tomlinson and O. II. Wilkes, for appellees.
   Montgomery, J.

Error is brought to review proceedings on the trial of an issue over the probate of the will of William It. Delano. The jury sustained the will, and contestants bring the case here on error. Deceased was a bachelor, 83 years of age, at the time of the execution of the will. His heirs at law were his brother and sister and the children of deceased brothers and sisters. William and John Delano were nephews, sons of a brother of the deceased. The contestants gave testimony tending to show loss of memory, and tending, as it was claimed, to show that deceased felt himself under obligations to his nephew William Delano more particularly. William was named as legatee in the will, he being given 100 acres of land, but subject to the payment of $15 an acre to other legatees. John was given a life estate in 60 acres of land, which was subject to the same charge of $15 an acre. It is claimed that this was all the life estate in the land was worth. There was testimony tending to show that William at one time had been a tenant of deceased, and that the deceased was a smoker, and that, shortly after he had visited the barn one night, it took fire, and burned, with all the crops belonging to William, from which he suffered, for him, a very severe loss; and testimony was offered tending to show that deceased had assured the wife of William that he intended to make up this loss to William. The circumstances, it is claimed, indicated that the fire was occasioned by the carelessness of deceased. It further appeared that the will was drawn by the brother of deceased, Luther Delano, one of the proponents here, who was made a residuary legatee, and who was also named legatee in specific bequests of considerable amount. The will was contested on the grounds of mental incompetency and undue influence. Both questions were submitted to the jury by the trial judge, and the questions which we are asked to review relate to alleged errors in the rejection of certain offered testimony, in the admission of certain testimony offered on behalf of proponents, and in the charge of the court. We shall discuss only such questions as are likely to arise on a new trial.

On the cross-examination of Lillian Delano, a witness for the contestants, proponents’ counsel asked her whether, on the occasion of the contest before the probate judge, certain of the contestants did not say that they were going to withdraw from the contest, and leave it to Luther Delano to say whether they ought not to have more than the will gave them. It appears that these parties are still contesting the will. The avowed purpose of this examination was to show the interest of the witness. But the witness frankly avowed her ill feeling towards proponents in answer to the first question asked, and we cannot escape the conclusion that the line of inquiry pressed was calculated to impress the jury with the view that the contestants thought of withdrawing their contest because of a want of confidence in their cause. For this purpose it was clearly inadmissible, and we think it should not have been admitted as affecting the interest of the witness. But there was a purpose for which it after-wards became competent testimony, and, if this were the only question in the case, we probably should not feel justified in reversing the case on this ground. Reference is made to it in view of a new trial. The purpose for which it was made competent was this: A letter written by Luther Delano, in which the decision of John and William to withdraw from the contest was asserted, was placed in evidence by contestants. This made it competent for the proponents to show that this was not a misstatement.

We think it was also competent for the contestants to show the extent to which deceased had aided or had failed to assist his nephews and nieces. It was a circumstance of slight importance, but the relations of deceased to his immediate relatives were all competent and pertinent facts.

We think none of the other questions relating to the admission of testimony are likely to arise on a new trial.

The court charged the jury, in response to proponents’ request, as follows:

“Now, I charge you that the fact that William R. Delano was forgetful, if it is a fact, and he knew that he was forgetful, would not of itself have a tendency to show that he was of unsound mind, or that he lacked mental capacity to make a valid will. It is necessary for the jury to find from the evidence in the case, in order to hold this will invalid, that William R. Delano, at the time of making the will, was of unsound mind;,and the fact that he was old and physically infirm or forgetful would not of itself have any tendency to prove that he was of unsound mind.”

We think this instruction went too far. It may be correct to say that individual instances of forgetfulness do not show mental incapacity; but to say that forgetfulness has no tendency to prove want of capacity is to hold that evidence of forgetfulness should not be received by the court. No one will contend but that some memory is necessaiy to enable a party to make a valid will. He must have sufficient memory to be able to keep in mind the nature and extent of his property and those who would be the natural objects of his bounty, and, if the evidence of his forgetfulness was such as to convince the jury that he lacked this mental capacity, it was enough to defeat the will.

The circuit judge charged the jury, in answer to the request of contestants:

“You are instructed that while the evidence that the will in question was drawn by Luther R. Delano, who was named as a legatee therein, does not of itself invalidate the will, it calls for satisfactory explanation, and imposes upon those who present the will for probate the burden of showing to your satisfaction that it was in all respects fair and honest, and expressed the wish and desire and will of William R. Delano.”

This instruction seems to be supported by the weight of authority. Yardley v. Cuthbertson, 108 Pa. St. 395 (56 Am. Rep. 218); Montague v. Allan’s Ex’r, 78 Va. 592 (49 Am. Rep. 384); Brown v. Bell, 58 Mich. 58. It is contended that this instruction is inconsistent with a further instruction which the judge gave on his own motion, that—

“The burden of proof is upon the contestants to show that the making of the will was obtained by undue influence, and, in order to defeat the probate of a will of this kind, it must appear to your satisfaction by a preponderance of the evidence that undue influence was employed. ”

That this instruction was correct as an abstract proposition of law is conceded, but it is claimed that it was not applicable to this case. It clearly was not, unless it can be said that the previous instruction, relating specifically to the relation of Luther R. Delano to the making of the will, was a qualification of the general instruction. It is, at least, doubtful whether the jury would draw this inference.

But in the same connection a more patent error was committed, when the jury were told that—

“The influence, to vitiate this will, must have been such as to amount to force and coercion, destroying his free agency; and there must be proof that the will was obtained by this coercion, and it must be shown that the circumstances of its execution are inconsistent with any hypothesis but that of undue influence, which cannot be presumed, and must be proved in connection with the will, and not with other things.”

We think this instruction, so far as it requires that proof of the circumstances of the execution of the will shall be inconsistent with any hypothesis but that of undue influence, casts a burden upon the contestants in the case which the law does not impose upon them. This question was before the supreme court of Missouri, and distinctly ruled, in Gay v. Gillilan, 92 Mo. 250 (1 Am. St. Rep. 712); and this court has often held that any rule requiring any more than the weight of evidence is erroneous. Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 543. But it is said that the court followed the language adopted in the decision in Maynard v. Vinton, 59 Mich. 153 ( 60 Am. Rep. 276), and quoted in Severance v. Severance, 90 Mich. 417. It may properly be said, as contended by contestants’ counsel, that the fact that the language quoted was employed in the decision of a case does not necessarily show that it was proper for the trial court to use the language in an instruction to a jury. But I go further, and sáy that in Maynard v. Vinton the language of the court stated an incorrect rule. It is not the rule that proof in a will case, in order to defeat the will, where the burden rests upon the contestants, need be of any greater force than to amount to a preponderance of the evidence. It need not exclude all other possible hypotheses than that undue influence was exerted. While the language employed in the case cited very naturally led the circuit judge to give this instruction, we are constrained to hold that it was error.

Some criticism is made on the instruction given by the trial judge relating to evidence which was offered tending to show a declaration by the deceased of an intention to make certain provision for his nephews John and William Delano. It may suffice to say that these declarations were not admissible for the purpose of showing the fact that undue influence was exerted. In so far as the state of mind of the testator was material in the inquiry as to whether undue influence was exerted, the declarations of deceased, showing his state of mind, were admissible upon that issue, as well as upon the issue of mental capacity. See Beaubien v. Cicotte, 12 Mich. 459; Haines v. Hayden, 95 Mich. 332, 346 (35 Am. St. Rep. 566); 27 Am. & Eng. Enc. Law, 505; Harring v. Allen, 25 Mich. 505, 508.

For the errors pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    CANTON BRIDGE CO. v. CITY OF EATON RAPIDS.
    Contracts — Settlement—Fraud—Rescission.
    Plaintiff, a bridge manufacturing company, appointed a certain person as its agent to take orders for bridges, under a contract which gave to the agent an interest in the profits of each separate contract secured by him. Upon a settlement between the company and its agent, it directed the defendant to pay to the agent the price of a bridge erected by it, and the agent, in consideration thereof, gave to the plaintiff certain orders for money due on other contracts. Four days later plaintiff attempted to rescind the settlement on the ground of fraud, and notified defendant to that effect, and thereafter brought suit to, recover the contract price for the bridge, which had been paid to the agent. It appeared upon the trial that the orders turned over to plaintiff under the settlement were not returned to the agent, and it was therefore held that plaintiff was not in a position to claim a rescission.
    Error to Eaton; Smith, J.
    Submitted April 8, 1897.
    Decided June 7, 1897.

      Assumpsit by the Canton Bridge Company against the city of Eaton Rapids to recover the contract price for the construction of a bridge. Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      John M. Corbin, for appellant.

      O. O. Markham, City Attorney, and Huggett & Smith (H. F. Pennington, of counsel), for appellee.
   Long, C. J.

The plaintiff is a manufacturing corporation, organized under the laws of the State of Ohio. Prior to and at the date of December 22, 1892, the plaintiff had been engaged in the business of manufacturing and selling iron bridges. For some time prior to December 22, 1892, R. D. Wheaton had been associated with one J. C. Darst, of Chicago, 111., under the name of R. D. Wheaton & Co., their business being that of contracting for iron bridges and iron work of that nature, and having some manufacturing firm, like the plaintiff, make the iron work on the specifications and drawings made by B. D. Wheaton & Co. On the 22d day of December, 1892, a contract was made between the plaintiff and B. D. Wheaton. This contract is set out in the former opinion, written by Mr. Justice Montgomery. 107 Mich. 619. In pursuance of the provisions of this contract, the plaintiff purchased the one-half interest of J. C. Darst in the erection tools, office fixtures, etc., then in use by the firm of B. D. Wheaton & Co.; the contract not making it compulsory upon the plaintiff to purchase said interest unless it could be purchased at a reasonable price. In pursuance of this contract, various contracts were taken in the States of Michigan, Indiana, Illinois, and Wisconsin, among them being the contract for the bridge for the defendant, and under which it was built. ' February 14, 1894, the plaintiff having completed the bridge, the common council of the city of Eaton Bapids accepted it, with a recommendation by resolution that, owing to a disagreement between B. D. Wheaton & Co. and the Canton Bridge Company as to which was entitled to pay therefor, payment should be deferred until such time as the common council should learn to whom the same should be legally paid. This action was brought and was at issue June 6, 1894. The declaration and the bill of particulars allege that the plaintiff is the real principal, and that B. D. Wheaton was its agent in making this contract. The plea and notice deny this, and claim that B. D. Wheaton and the plaintiff were copartners, doing business under the firm name of B. D. Wheaton & Co.

On the former trial the court took the case away from the jury, holding that the plaintiff and B. D. Wheaton were copartners, and that the action should have been brought in the name of the copartnership. Upon appeal to this court, it was held that the plaintiff was the' principal, and that B. D. Wheaton was the agent; that the contract and arrangement between the parties did not amount to a copartnership. On the new trial in the circuit court, the main controversy arose over the issue presented by the fourth clause in defendant’s amended plea and notice: “That upon the 25th day of January, 1894, for a valuable consideration, the said plaintiff executed to R. D. Wheaton & Co. an order in writing, commanding the defendant to pay said R. D. Wheaton & Co. for the bridge mentioned in plaintiff’s declaration,” etc. This order is as follows:

“Jackson, Mich., January 25, 1894.
“Honorable Mayor and Common Council, Eaton Rapids, Mich.
Gentlemen: When your bridge is erected and satisfactory, please pay R. D. Wheaton & Co. for same.
“Yours truly,
“The Canton Bridge Company,
“By John R. Reed, Secretary and Treasurer.”

Defendant claims that this order was given on a settlement absolute and final between the parties as to the uncompleted work, including the Eaton Rapids bridge. At the time this order was given, the iron for the bridge had just been shipped from Canton. On January 29th the plaintiff notified the defendant by wire not to pay Wheaton for the bridge, and on the same day wrote the defendant that the order of January 25th had been obtained by Wheaton under false pretenses, and that plaintiff’s foreman had been instructed to go on and complete the bridge, and that Wheaton had no authority to collect any money upon such contract. Defendant thereafter took a bond of indemnity from Wheaton, and paid him in full for the bridge. The plaintiff claims that such settlement, made when the order of January 25th was given, was both conditional and fraudulent; that is, that such settlement was made as a partial one only, and was not to become operative unless Wheaton met Reed, the secretary and treasurer of the company, at Chicago, within a few days thereafter, and made a complete settlement of all the business done under the contract; and that such Jackson settlement was fraudulently obtained upon tbe part of Wheaton, in this: That Wheaton assigned to the plaintiff the remaining one-half of the “Sycamore job,” so called (the other half having been formerly assigned to plaintiff), as a part of the Jackson settlement, and that it was subsequently discovered that such half so assigned at Jackson had been previously assigned to John C. Darst.

The plaintiff called Mr. Reed, who testified substantially that the Jackson settlement was subject to the conditions set forth above, and was procured by the fraudulent means stated. Defendant introduced testimony which tended to show that the settlement was final, and that no fraud induced it. This issue was submitted to the jury as follows:

“It is not disputed that the defendant has paid the amount due upon this contract to R. D. Wheaton, taking his bond. * * * Was the payment to Wheaton * * * authorized, and had he the right to collect and receive this money ? This must depend upon what you may find the truth to be regarding the arrangement between the plaintiff and Mr. Wheaton at Jackson, on January 25, 1894. There is no dispute but that the plaintiff, on January 25,-1894, gave Mr. Wheaton an order to collect pay for this bridge when completed; and you are instructed that this order was in legal effect an assignment to Mr. Wheaton of the right to collect and receive pay, * * * unless, on account of fraud or mistake, you shall find that the order was improperly given, or that, after it had been given, it had been properly rescinded by the plaintiff, under such circumstances that the plaintiff would have the right to rescind.”

Under this charge, the jury found for the defendant.

On the trial, while Mr. Reed was on the stand as a witness for plaintiff, he testified that he met Mr. Wheaton in Chicago, after the order on the defendant to pay Wheaton for the bridge; that he had found out then that the pay for half of the Sycamore bridge had been assigned to Darst, but had not yet been paid. He was asked on cross-examination if he had, when he came back from Sycamore, orders for the erection and payment of five or six unfinished bridges. He stated that he had. He was then asked if he had offered them to Mr. Wheaton. This was objected to as immaterial, and objection overruled. He answered that he had not offered them back to Mr. Wheaton. The court, in its charge, stated to the jury that it was the duty of the plaintiff to rescind the order immediately upon the discovery of the fraud, if any, and to put Wheaton back in his original position, by returning to him the orders received from him; and “if you find that the settlement was made as claimed by Mr. Wheaton, and the Canton Bridge Company has appropriated to itself the orders given it by Wheaton, and has never accounted to him for them, then it could not rescind the order given in this case to Wheaton, and your verdict should be no cause of action.” Exception is taken to this portion of the charge, and error is assigned thereon.

It is contended by plaintiff that it was Wheaton’s duty, under the contract, to either collect and pay himself, or allow all the money for these bridges to be paid over to the.plaintiff; and that, in giving these orders, he did no more than it was his duty to do, as agent of the plaintiff, in carrying out his contract. The defendant contends (and the real defendant in this controversy is Mr. Wheaton) that a full and fair agreement was made at Jackson that Wheaton was to have the moneys coming for the erection of the bridge at Eaton Rapids; that to obtain this agreement, and in consideration of its being made, he surrendered the Sycamore contract; that the plaintiff company also had in its possession several other orders for the collection of moneys due on other jobs; that all the jobs were taken in the name of R. D. Wheaton & Co., and the orders assigned to the plaintiff. While the original contract between the parties did not make them partners, yet Wheaton’s agency was coupled with an interest in each separate contract, of which he could not be divested by the arbitrary action of the plaintiff. The contract makes each contract taken a separate and distinct undertaking, in which each of the parties had an equal interest. If the contract was made at Jackson as claimed by Mr. Wheaton, — that is, without condition and without fraud, — certainly the court was not in error in saying that it could not be rescinded by plaintiff without return of the orders which it held from Wheaton, and putting him back in the same position as before the Jackson contract was made.

Some other questions are raised as to the admission and rejection of evidence. We find no error in them, and do not think them of sufficient importance to notice. The main issue in the case was fairly tried and submitted to the jury.

The judgment must be affirmed.

The other Justices concurred.


text:
    CAMPBELL v. WESTERN ELECTRIC CO.

    1. Res Judicata — Parties—Supplemental Proceedings.
    A decision on the hearing of a suit in equity, that the complainants are proper parties to the bill, renders the question res judicata in a supplemental proceeding by them in aid of execution based upon the decree in such suit.
    2. Execution — Exemptions—Property Devoted to Public Use.
    The interest of a corporation in an electric plant, erected for the use of a city under a contract which has been declared void in a suit by taxpayers of the city for an accounting as to the moneys received thereunder, is not exempt from sale on execution issued upon the decree obtained in such suit, on the ground that such plant is devoted to public use.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1897.
    Decided June 7, 1897.

      Bill in aid of execution by William Campbell and others against the Western Electric Company, impleaded with the city of Wyandotte. Defendant appeals from an order overruling its demurrer to the bill.
    Affirmed.'

      Conely & Taylor, for complainants.

      Charles W. Casgrain, for defendant.

       Rehearing denied July 16, 1897.

   Montgomery, J.

Complainants, who are residents and citizens and taxpayers in the city of Wyandotte, filed their bill to have a contract made between the city and the Western Electric Company declared invalid, and to require that the moneys paid by the city to the Western Electric Company, amounting to $5,968, be repaid into the city treasury, and that no more money be paid to the electric company upon the contract. Upon the final submission of the case in this court, a decree in accordance with the prayer of the bill was entered. See Campbell v. City of Wyandotte, 105 Mich. 1. The Western Electric Company did 'not comply with the terms of the decree, and, on motion of complainants, and upon order of the court, a writ of fieri facias was issued, placed in the hands of the sheriff, and levied upon the plant, which had been delivered under the contract between the city and the Western Electric Company. This levy was perfected. The Western Electric Company continues to claim that the plant belongs to the city of Wyandotte. The bill sets out that—

“The defendant the city of Wyandotte has no right, title, interest, or claim in, to, or upon the machinery and apparatus aforesaid, unless it has some sort of a claim of an equitable nature for moneys expended in making a few additions which may have been required or may have appeared necessary in using such machinery and apparatus since the same came into the possession of the defendant the city of Wyandotte, and some claim of an equitable nature upon said machinery and apparatus as security for the repayment of the moneys so as aforesaid paid by the city of Wyandotte to the Western Electric Company.”

This bill is filed to have the rights of the respective defendants determined, and the rights of the city of Wyandotte in or to the property upon which the levy has been made defined, and asks that the property be sold, and the purchaser thereof given an absolute title, and the proceeds applied in satisfaction of the amounts due upon the decree and writ of execution, and that, if it be determined that the city of Wyandotte has an equitable lien upon the property, the proceeds of the property be used, so far as may be equitable and just, in the satisfaction and extinguishment of such lien. To the bill setting out these facts, the defendant the Western Electric Company demurred, on the grounds:

1. That the complainants do not appear to have any such interest in the matter as entitled them to bring their bill of complaint.
2. That it does not appear by the allegations contained in complainants’ bill that they would be, either individually or collectively, injured by the action complained of in an amount sufficient to confer jurisdiction upon the court to hear and pass upon the matter.
3. The general ground that they have not made or stated a case entitling them to relief.

This demurrer was overruled, and from this order an appeal is taken by defendant.

As to the contention that the. complainants have not shown themselves to have an interest in the decree, we think the ruling of the court on the hearing in the former ■case is res judicata. This proceeding is supplemental to that case. It was held that the complainants were proper parties to that proceeding, and, the court having taken jurisdiction of the matter, and based a decree upon a bill filed by these complainants, it would follow that they have the right to take proper proceedings for the enforcement of that decree.

The contention that the complainants have not shown themselves concerned in the matter in dispute to the extent of $100 is subject to the same considerations; and it may be added that it does not appear upon the face of the bill that the amount in controversy is less than $100. See Bay City Bridge Co. v. Van Etten, 36 Mich. 210. On the contrary, it does appear that costs were taxed in favor of complainants in the sum of $249.70.

It is further urged that, as an execution will not lie against a municipal corporation, on grounds of public policy, it should follow that the interest of a municipal corporation in property used for public purposes should not be held subject to levy and sale on execution, even under the circumstances of this case. It is said that the plant is charged with public uses, and it is essential, for reasons of public necessity, that these uses be not diverted or destroyed. But we think it would be carrying the rule of protection of property devoted to public use too far to hold that under the circumstances of this case the real interests of the Western Electric Company in this property cannot be subjected to a sale. To so hold would be, in effect, to hold that the court is powerless to carrj into effect its own decrees. Indeed, the reluctance to observe the decree of the court is made altogether too manifest on this record?

An additional ground of error has been suggested in a supplemental brief, namely, that the bill fails to set up the return of the sheriff, and that there is no averment of a return of an execution unsatisfied for want of property upon which to make a levy. Counsel cites the case of Studley v. Ann Arbor Savings Bank, 112 Mich. 181. But this case is clearly distinguishable from that. The bill in this case does aver that a levy was made upon the property, and perfected, so far as the situation of the property permitted. This is not a judgment creditors’ bill, but a bill in aid of execution.

The order overruling the demurrer is affirmed, and the case remanded. Complainants will recover costs.

The other Justices concurred.


text:
    CAMPBELL v. WESTERN ELECTRIC CO.

    Res Judicata — Parties—Protection oe Judgment.
    Case ruled by Campbell v. Western Meetrie Co., ante, 333.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1897.
    Decided June 7, 1897.
    Bill by William Campbell and others against the Western Electric Company, impleaded with the city of Wyandotte and others, to set aside a judgment on the ground that it was obtained by fraud and collusion. Defendant appeals from an order overruling its demurrer to the bill.
    Affirmed.

      Conely & Taylor, for complainants.

      Charles W. Casgrain, for defendant.

       Rehearing denied July 16, 1897.

   Montgomery, J.

This case is a companion case to the case of the same title decided at the present term {ante, 333), in which a bill was filed in aid of execution by these complainants. The present bill sets out that, after the decree in the original case in the circuit court, in which the court decreed that the contract referred to in the case of Campbell v. City of Wyandotte, 105 Mich. 1, was void, and before that case was taken to this court, the Western Electric Company brought a suit in assumpsit in the circuit court of the United States for the Eastern district of Michigan against the city of Wyandotte; that the city attorney was directed to retain Dickinson, Thurber & Stevenson as counsel, the attorneys who, in the original suit, attempted to sustain the contract. Upon the trial of this case a verdict was rendered for the plaintiff for $5,968.50, being the amount of the balance due on the contract, which, by the decree 'of the Wayne circuit court, had been declared invalid. On the 16th of April, 1804, a judgment was rendered on the verdict, and soon thereafter the money was paid. It is charged in the bill that this was the result of a fraudulent arrangement and conspiracy to secure a collusive judgment in favor of the defendant the Western Electric Company against the defendant the city of Wyandotte, entered into by the company and certain officers of the city. Defendant demurred to this bill, and from an order overruling the demurrer appeals.

The same considerations which control the case between the same parties determine this. The order overruling the demurrer is affirmed, and the case remanded. Complainants will recover costs.

The other Justices concurred.


author: Long, O. J.

text:
    WEBB v. HOLT.
    1. Deeds — Introduction in Evidence — Preliminary Proof — Certificate of Record.
    Under 2 How. Stat. § 5685, making a certified transcript of the record of a deed sufficient proof of its execution and delivery, the original deed, with the certificate of record indorsed thereon, is admissible without preliminary proof.
    3. Breach of Warranty — Damages—Costs in Ejectment.
    In an action for breach of warranty in a deed, the taxable costs incurred by the plaintiff in defending an action of ejectment are properly included as a part of the damages, although they were not in fact taxed.
    3. Same — Title of Ejector — Evidence.
    The plaintiff may show in such action that the title under which he was ousted was not derived from himself.

      4. Sami; — Harmless Error.
    Where the recovery is limited to the amount paid for the premises, with interest thereon and costs, the admission of evidence as to improvements is not reversible error.
    5. Same — Parties—Husband and Wife.
    A wife, though she joins in her husband’s deed, is not liable on a, covenant of warranty therein, and need not be joined as defendant in an action for breach thereof.
    Error to Muskegon; Russell, J.
    Submitted April 9, 1897.
    Decided June 7, 1897.
    Covenant by Charles L. Webb .against Henry H. Holt upon a warranty of title. From a judgment for plaintiff •on verdict directed by the court, defendant brings error.
    Affirmed.

      Henry H. Holt, in pro. per. (Jerome E. Turner, of •counsel.)

      Philip W. Niskern, for appellee.
   Long, O. J.

This is an action upon a covenant of warranty, in a deed executed by the defendant and his wife to the ■plaintiff. The covenant is that “he is well seised of the above-granted premises in fee simple; that ■they are free from all incumbrances whatever; and that Re will, and his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever.” It appears that the plaintiff paid for the land the sum of $327.49. January 12, 1895, Francis W. •Cook commenced an action of ejectment against the plaintiff and his wife to recover possession of the property in question, and on September 27th thereafter recovered judgment of ouster, with costs of suit. Soon after the suit was commenced, notice was served upon the defendant of that fact, and that he should come in and defend. This notice was served in time so that the defendant could have appeared in the case if he had so desired, but he refused to take charge of it. On the trial of the present case, the plaintiff produced his deed from the defendant in evidence, the proceedings in the case of Cook against Webb, the judgment in that case, and the amount of costs. For this he had judgment, under the direction of the court, amounting to $484.32.

Defendant contends that the court admitted the deed from defendant to the plaintiff in evidence without the same being properly proved. The specific objection was: “I object to it. I submit that the witness has not shown that he is sufficiently familiar with Mr. Holt’s handwriting to make his testimony competent. ” It appeared that the deed was properly executed and acknowledged, and duly recorded in the office of the register of deeds. There is no force in the objection made. Under section 5685, 2 How. Stat., a certified transcript of the record of the deed is sufficient proof of the execution and delivery of it; and under Lacey v. Davis, 4 Mich. 140 (66 Am. Dec. 524), the record of the deed being entitled to be read in evidence, the original deed is also admissible without preliminary proof. The original deed here had indorsed upon it the certificate of the register that it was duly recorded. But, aside from this, we are satisfied that there was sufficient evidence of its execution by the defendant to admit of its being read in evidence.

It is contended that the court erred in allowing the costs in the ejectment suit as a part of the damages, as the costs had not been properly taxed. The plaintiff testified that he paid $4.50 costs for jury fee and one-half of the stenographer’s fees, and also $48.10, taxed costs. The objection is that the costs had not been properly taxed, and not that the plaintiff had not been put to that amount of expense and costs in the trial of the ejectment case. The rule is well settled that in actions of this kind the plaintiff must be reimbursed for the loss sustained by the action of ejectment. This loss is made up by adding to the amount paid for the land the interest thereon from time of payment, and costs in the ejectment suit. In some of the States it is held that the costs may include reasonable fees of counsel, as well as those which are taxable. Staats v. Ten Eyck’s Ex’rs, 3 Caines, 115 (2 Am. Dec. 254). As was said in Stebbins v. Wolf, 33 Kan. 765, in an action for breach of warranty in a deed, the measure of damages is the value of the land as agreed on at the time of the conveyance, with interest thereon, together with reasonable costs and expenses incurred in resisting •eviction. See, also, Williamson v. Williamson, 71 Me. 442. But in the present case only taxable costs were allowed.

Error is assigned upon the ruling of the court in permitting the plaintiff to show that Cook did not obtain his title from the plaintiff. There is no suggestion how this action could in any manner prejudice the defendant, and it was proof proper to be made as showing that Cook did not derive title from the plaintiff. ‘

Objection is made to the ruling of the court in permitting the plaintiff to testify to improvements made by him upon the property after he went into possession of the premises, i It appears, however, that defendant was permitted in the cross-examination of the plaintiff to go into the question of rents and profits. This was under plaintiff’s objection. Upon redirect examination plaintiff’s counsel was permitted to show what improvements he had made upon the property. The whole question was foreign to the issue being tried. The plaintiff in the ejectment case had filed a claim for rents and profits, and the defendant, Holt, in this action was in no manner interested in that question. The recovery in this case was limited to the amount of money paid for the premises, with interest thereon and costs, so that the defendant was not injured by the admission of this testimony.

But one other question need be considered. It is insisted that, inasmuch as Catharine Holt, the wife of defendant, joined in the execution of the deed to the plaintiff, she should have been made a party to this suit. It has been many times held in this State that a wife is not liable upon a covenant in her husband’s deed. Carley v. Fox, 38 Mich. 387; Hovey v. Smith, 22 Mich. 170.

The judgment must be affirmed.

The other Justices concurred.


text:
    SHAW v. TOWNSHIP OF SALINE.
    1. Bridges — Graded Approach — Duty to Repair.
    A graded approach to a bridge is a part thereof, and must be kept in reasonably safe condition by the corporation charged with the care of the bridge itself.
    2. Same — Railings and Barriers — Townships and Villages.
    Thus, under 1 How. Stat. § 2853, making it the duty of the’ township in which an incorporated village is located to build, control, and keep in repair all bridges within the village limits in highways established by authority other than that of the village itself, the township, and not the village, has the duty of erecting and maintaining the railings and barriers necessary to render a graded approach to such a bridge reasonably safe for public travel.
    3. Same — Personal Injuries — Proximate Cause.
    The absence of side railings along the approach to a bridge is the proximate cause of an accident to one who, while driving in the usual track, without fault on his part, is precipitated over the embankment by reason of his horse’s stumbling and becoming unmanageable.
    4. Appeal — Assignments of Error — Instructions.
    Objections to portions of the charge upon which no error is-assigned cannot be considered.
    5. Trial — Requests to Charge — Order of Consideration.
    A defendant has no absolute right to have the instructions, preferred by him reserved until after those proposed by the plaintiff have been passed upon, the matter being entirely within the discretion of the court.

      Error to Washtenaw; ICinne, J.
    Submitted April 9, 1897.
    Decided June 7, 1897.
    Case by Clifford R. Shaw against the township of Saline for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frank E. Jones and Seth O. Randall, for appellant.

      Lawrence & Butterfield, for appellee.
   Montgomery, J.

This action is brought by the plaintiff to recover damages arising from an injury received on the 24th of January, 1895, within the limits of the defendant township, the place at which the injury occurred being the immediate approach to the bridge over the Saline river. This bridge is within the corporate limits of the village of Saline. The bridge consists of a substantial iron structure, placed on stone abutments, 11 feet above the surface of the water. Erom the south end of the bridge proper, there is an embankment that extends south about 100 feet. At the south abutment of the bridge, the top of the embankment is 11 feet above the river. At a distance of 100 feet from the south end of the bridge, the approach is 18 feet wide, but as it approaches the bridge it becomes narrower, and next to the abutment it is 13 feet wide. The traveled part of the road near the south end of the bridge is 8 feet in width, and is 6 inches higher in the center than at the sides. Erom either side of the 8 feet the slope is much steeper. On the day in question, the plaintiff was driving a horse belonging to a neighbor, Mrs. Townsend, which she had requested the plaintiff to take to the village of Saline, and have shod. The horse was not shod behind, and had smooth shoes on the front feet. He was 18 or 19 years old, kind and gentle, and blind. The plaintiff had driven and worked the horse before. The road was at the time, as appears by the testimony, slippery and icy. In the center of the road the sleighing was not good, but on either side there was a narrow border of snow and ice. Plaintiff testified, however, that he was driving in the center of the road; that, as the horse came near the bridge, he slipped, and went sideways. The horse went down the embankment, throwing plaintiff over the embankment, inflicting very serious injuries. The defendant’s theory — and there was some testimony tending to sustain it — was that the plaintiff was not keeping to the center of the road, but was on the outside, and that he was in fault in not keeping in the center of the road. Under the instructions which the court gave to the jury, however, it is quite evident that the jury found in accordance with the plaintiff’s testimony upon the question of fact.

The principal questions raised on this writ of error are:

1. Was it incumbent upon defendant township to erect and maintain railings and barriers, even though the same were necessary, within the limits of the incorporated village of Saline ?
2. Does the law making it incumbent upon the township to erect and maintain a bridge include the approaches ?
3. Was the plaintiff guilty of such contributory negligence as would bar his recovery as a matter of law ?
4. Was the absence of railings or barriers the proximate cause of the injury to plaintiff ?

The general statute for the incorporation of villages, under which the village of Saline was, by the terms of its charter, acting, viz., 1 How. Stat. § 2853, confers supervision and control of public highways, bridges, streets, etc., upon the council, but contains this proviso:

“That the bridges within the limits of any village incorporated under this act, in the highways leading into or through said village which have been or shall hereafter be laid out by the commissioners of highways of the township or townships in which said village may be located, or established by any other lawful authority, except the authority of such village, shall be built, controlled, and kept in repair by the township or townships in which they may be located, the same as if said village were not incorporated,”

We think it evident that whether a railing was necessary in order to render the approach to this bridge reasonably safe for public travel was a question for the jury. Malloy v. Township of Walker, 77 Mich. 448; Gage v. Railroad Co., 105 Mich. 335. This question was submitted to the jury, and the ruling was undoubtedly within the authorities above cited, if the approach to the bridge is to ba treated as a part of the bridge within the meaning of the statute above referred to. We think it should be so treated. The condition of the highway before the approach was constructed would not permit a traveler to reach the bridge, and the fair construction of the statute requiring such bridges to be constructed by the highway authorities would include such construction as would make them passable, and make them available to the public. In the following cases the approaches to a bridge are held to constitute a part of the bridge: Board of Com'rs of Rush Co. v. Rushville & Vienna Gravel-Road Co., 87 Ind. 505; Whitcher v. City of Somerville, 138 Mass. 455; Driftwood Valley Turnpike Co. v. Board of Com’rs of Bartholomew Co., 72 Ind. 237. See, also, Rex v. Inhabitants of West Riding, 7 East, 588; Com. v. Inhabitants of Deerfield, 6 Allen, 449; Tinkham v. Town of Stockbridge, 64 Vt. 480.

Defendant’s counsel insist that the condition of the highway was not the proximate cause of the accident. We are unable to agree with this contention. The instruction of the learned circuit judge upon this question was as follows:

‘! If you find from the evidence that this accident is due to the fact that plaintiff carelessly drove his horse outside the usual traveled track, and near the edge of the •embankment, and that action on the part of the plaintiff •caused the accident, then the plaintiff cannot recover. If, however, he kept his horse in the usual traveled track, and, without fault on his part, the horse slipped and stumbled and became unmanageable, then, if such action on the part of the horse contributed to the accident, the plaintiff cannot thereby be charged with contributory negligence.”

And in response to defendant’s request lie charged that:

“If the jury find from the evidence that the township was negligent in not causing railings or barriers to be erected, and shall also find that the plaintiff, by his negligence, and from the fact that the horse being driven by the plaintiff was blind, and not shod,- and that he, by his want of care and attention to the horse, or voluntarily, strayed off the traveled or wrought portion of the road,, and that the accident was thereby caused, then the plaintiff would not he entitled to recover.”

' In Gage v. Railroad Co., 105 Mich. 335, the rule was-approved that, if there be no fault on the part of the plaintiff, and the injury be the combined result of accident and the insufficiency of the road, the plaintiff may recover. The question of whether there was fault on the part of the plaintiff' was in this case submitted to the jury.

The counsel discuss in their brief the instruction of the trial judge upon the subject of damages. But, as no-error is assigned upon this in the record, we cannot consider the ruling.

We think no error was committed in the reception of. testimony which worked any injury to defendant.

The only remaining question discussed in the briefs of counsel is whether it was error for the circuit judge-to give the requests of defendant to the jury first, instead of giving the requests of plaintiff first. This is a novel proposition, and we think the suggestion that this court should undertake the control of the order in which topics-should be presented to the jury wholly without merit.

The judgment will be affirmed.

The other Justices concurred.


text:
    MINKLEY v. TOWNSHIP OF SPRINGWELLS.
    1. Bridges — Defective Railings — Personal Injuries — Proximate Cause — Liability of Township.
    A township which permits the side railing of a bridge to become and remain out of repair is liable for injuries occasioned by its giving way and allowing ahorse, which shies against it, to fall with the driver to the ground below, where the fright of the horse was due to the tipping of planks improperly nailed; but, if some object outside of the bridge was the proximate cause of the horse’s taking fright, the township is not liable.

      2. Trial — Amendment of Declaration.
    It is not error to permit the plaintiff to amend his declaration by adding a count thereto which sets forth no new cause of action, particularly where no claim of surprise is made by the defendant.
    3. Same — Evidence—Reopening Case.
    It is within the discretion of the court to permit the plaintiff to reopen the case and introduce further direct testimony after the defendant has rested, although the practice is not approved.
    Error to Wayne; Daboll, J., presiding.
    Submitted April 6, 1897.
    Decided June 7, 1897.
    Case by Minnie A. Minkley against the township of Springwells for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. W. A. Kurth (Samuel W. Burroughs, of counsel), for appellant.

      Frank T. Lodge, for appellee.
   Long, C. J.

Plaintiff was injured March 1, 1893) by her horse shying, and going off the bridge over Roulo river, in defendant township. This action is for damages for injuries sustained thereby. Plaintiff is a married woman, living in Wayne. She and her husband, on the morning in question, started to drive from their home to the city of Detroit, in a sleigh drawn by one horse. The husband was a skillful driver, and the horse a steady one. The bridge in question is 98 feet long and 16 feet wide, and built of wood. It has railings upon either side, extending the whole length, as well as upon the approaches. The planks covering it are laid crosswise. The plaintiff’s husband testified as to what took place when the parties reached the bridge substantially as follows:

“ As I drove on the approach to the bridge, the plank kind of creaked, and seemed to be a little loose. It jumped up, and the horse sheered to one side. It tipped up just to one side. I think the horse’s feet stepping on the plank made it tip. It seemed to jump, making a creaking noise. I didn’t notice particularly, but it jumped four, five, or six inches; I couldn’t say for sure. I noticed particularly the horse sheered at the same time. He sheered to one side; struck the railing. The railing went over, and we went with it. The side of the horse struck the railing.”

It appears by the plaintiff’s testimony that this railing was made of 2 by 6 uprights and inch boards. It was rotten at the bottom where it was fastened to the bridge, and, as plaintiff’s husband says, had been rotten for more than a year, with dry rot, both at the bottom and at the top where the boards were fastened. The railing was from 3 to 3|- feet high. The witness further testified that he examined the planking of the bridge on th'e same day, and at the place where the horse shied. He found them “dozy ” and loose. Several planks were in this condition. He further testified that the tipping or jumping up of the planks and the sqeaking of them made his horse start, and caused him to “sheer;” that he was driving on a walk, and driving carefully along. It appears that this railing was not braced, but was supported by the uprights, the strip of railing being from 24 to 26 feet long before reaching the truss. The bridge had been built about 20 years. Several witnesses were called by the defendant, who testified that they had frequently traveled over the bridge, and noticed no loose planks, several of them going over it that same day. Some of the witnesses testified to a log’s being in the creek some distance from the place where the horse went over, and some claim was made that the horse was frightened at this log; Dr. Clippert saying that plaintiff’s husband told him on the same day that the horse took fright at some log or something at the side of the bridge. The overseer of highways testified that, two weeks before the accident, he examined the bridge, and saw nothing out of repair. The witness also testified that, three years before the accident, he had put in new planking all over it. After the defendant rested, plaintiff called a witness who testified that he drove over the bridge before March 1st, and saw that the planks were not spiked down; that they were badly worn and loose; that this was long before March; and that he drove over it again the February before.

At the close of the testimony, counsel for defendant submitted several requests to charge, and, upon the refusal of the court to give the third and fourth, error is assigned. They are as follows:

“3. If the plaintiff’s driver knew that said bridge was unsafe, and that there were other safe roads to reach her destination, then she contributed to her injury, and verdict must be for defendant.
“4. If the defendant’s officers, two weeks prior to the accident, used due diligence in ascertaining the condition of the bridge, and found no defects in the same, and no defects had been reported to it, then the verdict must be for the defendant.”

There is no evidence in this record that the plaintiff’s* husband knew the bridge to be in a dangerous condition before going over it. Counsel for defendant, in*fcheir strictures upon the charge of the court upon the question of contributory negligence, say in their brief that the court was in error, because “there is no evidence in the record tending to show that plaintiff or her husband knew that * * * the bridge was in a dangerous condition. He simply said that, in passing over it some one, two, or three months before, he should judge it was in poor condition.” In the light of the testimony and this concession of defendant’s counsel, no further notice need be taken of this claim.

As to the fourth request to charge, the court, we think, sufficiently covered it in the general charge. The court said:

“It is claimed by the defense that it made an inspection of this bridge shortly before this; and, on the other hand, it is claimed that it did not. If it had made a reasonably diligent and fair inspection of this bridge within a week or so before this, using all reasonable efforts to ascertain if there was a rotten or weak space, — I am speaking now of the railing, — and had not been able to find it, then the defendant would be excused as to that particular branch of the case.”

The proofs do not disclose that any examination whatever was made of this railing. The overseer of highways, who seems to have had this bridge in charge, under the direction of the highway commissioner, did visit the bridge, as he says, about two weeks before the accident; but he does not state that he made any examination of the railing, or just what particular examination he did make. It was not contended that the defendant had actual notice or knowledge that the bridge was defective or in bad condition ; but the claim upon the trial was that the defects had existed for such a length of time th'at the defendant should have known its condition, and was negligent in not having ascertained its condition. We think there was ample evidence to support this contention.

Defendant asked the court to direct the verdict in favor of the defendant. This was properly refused. The question was very fairly and fully submitted to the jury as one of fact as to the negligence of the defendant. They were instructed that they were to find whether, from.all the circumstances in the case, a railing was necessary, and, if so, whether it was sufficient under the circum■stances. In speaking of the frightening of the horse, the ■court said:

“It is claimed that the planks were loose, not properly spiked down; had become thin by wear, so that the horse, when he passed upon them, and his feet struck them as he passed along, disturbed them; they flew up or pointed up; that that made a noise or creaking, and that frightened the horse; that he then swerved or shied to the side, struck against the railing, and it, being too weak to stop him, .gave way, and the horse and sleigh and its occupants were ■all precipitated to the ice or ground below. * * * If you find that the planks at this point were in good condition, the bridge safe, so far as that part is concerned, and the horse, by reason of some other object aside from the defective plank or flooring of the bridge, became frightened, and that was the proximate cause of his fright, and he then ran and broke through, and went upon the ground below, and the accident happened that way, the township would not be liable, because it is not liable for the fright of the horse at something besides the defect in the highway. * * * If, on the other hand, as I said before, he was frightened at something that the township should have kept in repair, and did not, or was obliged to keep in repair, then it would be.” >

This charge was a correct statement of the law. Ross v. Township of Ionia, 104 Mich. 325. The court further properly and fully charged the jury upon what would be ■constructive notice to the township of the defects claimed to have existed in the bridge. This charge was fully borne out by the evidence. The court therefore very properly refused to direct a verdict for the defendant.

We may pass over several of the claimed errors, as not based upon proper exceptions. But counsel contend that the court was in error in permitting counsel for plaintiff to amend his declaration by adding a new count. The only objection made was that “it is rather late, and gives defendant no time to consider it.” No adjournment was asked, nor was any claim made of surprise. No new cause of action was introduced by the amendment. The court very properly permitted the amendment. Edwards v. Village of Three Rivers, 102 Mich. 153.

The court permitted the plaintiff to reopen the case, and put in further testimony by one witness as to the condition of the bridge before the accident. While this practice is-not approved, yet it was a matter within the discretion of the court, and the verdict cannot be set aside for that reason.

We have examined the other questions carefully, and find no error.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    CLARK v. LOWE.
    Deeds — Consideration —Assumption of Indebtedness — Parol Evidence.
    A grantee tinder a deed by which, he assumes, as a part of the consideration, the payment of one-third of the indebtedness-of a certain business, may show by parol, in an action by him against his grantor to recover an excess of moneys so paid, that the d^bts which he assumed were agreed to amount to a certain sum, while in fact they exceeded it.
    Error to Eaton; Smith, J.
    Submitted April 11, 1897.
    Decided June 7, 1897.

      Assumpsit by Frank B. Clark against Egbert W. Lowe for moneys paid to defendant’s use. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff and defendant exchanged real estate, and each executed to the other the proper deed of conveyance. In the deed from defendant to plaintiff the consideration was expressed at $3,000. The deed contained the following: “The said Frank B. Clark hereby assumes, in consideration herein set forth, and hereby agrees to pay, the undivided one-third of all debts, dues, and demands against said Sunfield Milling Company.” The property conveyed by the defendant to plaintiff was a one-third interest in the flouring mill, a house and lot, and a one-third interest in the accounts of the Sunfield Milling Company, a co-partnership of which defendant was a member. Plaintiff claimed and was permitted to show that the debts, one-third of which he assumed, were agreed at the time to be $1,420.25; that, in point of fact, they exceeded that amount; and that he paid the actual amount. He brought this suit to recover the excess so paid. He recovered a verdict of $116.14. No fraud is charged, but plaintiff gave evidence tending to show a mistake in two or three items, the principal one being that one debt was included in the statement at $2.67, while in fact it was $267.

      Garry O. Fox, for appellant.

      McPeek, Jones & Dann, for appellee.
   Grant, J.

(after stating the facts). The defendant contends that the agreement was set forth in the deed, and that this agreement cannot be varied by parol. We think the case is ruled by Bowker v. Johnson, 17 Mich. 42, and Ford v. Savage, 111 Mich. 144.

The judgment is affirmed.

The other Justices concurred.


text:
    LANDIS v. LANDIS.
    Husband and Wire — Mortgages—Fraud.
    Complainants, heirs at law of defendant’s deceased husband, filed a bill to revive a mortgage given by defendant to deceased, and alleged to have been fraudulently destroyed. Defendant admitted that she gave the mortgage as security for the payment of the purchase price of the lands covered thereby, but claimed that it was destroyed in the lifetime of the deceased, with his knowledge and consent. Deceased was shown to have been a man of weak intellect. The court found with the complainants, and declared the amount of the mortgage to be a lien upon the premises.
    Appeal from Kent; Grove, J.
    Submitted April 16, 1897.
    Decided June 7, 1897.
    Bill by Lorenzo Landis and others against Maggie Landis to annul a marriage, to set aside certain deeds, and to revive a mortgage alleged to have been fraudulently destroyed. ' From a decree dismissing the bill, complainants' appeal.
    Reversed.

      Dwight Goss, for complainants.

      Wylie & Glapperton (Dunham & Preston, of counsel), for defendant.
   Long, C. J.

The defendant, Maggie Landis, married one Samuel Landis in the year 1888. He was then 71 years of age, and she about 30. Samuel Landis had been married before, his wife dying in the year 1885. By the first marriage he had several children, who are the complainants here. The bill in this case is filed for several purposes:

1. To set aside and declare void the marriage between Samuel Landis and the defendant on the ground of fraud.
2. To set aside several conveyances made by Samuel Landis to the defendant.
3. To revive a mortgage of $3,000 made by defendant to Samuel Landis.

The court below dismissed the bill, with costs against the complainants.

The bill sets up substantially that, when Samuel Landis married the defendant, he had property of about the value of $10,000; that after the death of his wife, in 1885, he became weak in mind; that the defendant married him to obtain his property and estate by undue influence and corrupt methods; that a deed of 40 acres was ■obtained by her by fraud and undue influence; that said deed conveyed only 20 acres, and afterwards was changed by defendant to include 40 acres; that the title to a house and lot in Grand Rapids was obtained by fraud and undue influence, as well as a deed of 80 acres of land which was conveyed by Samuel Landis to defendant. It is also contended that, at the time said deed to the 80 acres was made and delivered by Samuel Landis to defendant, a mortgage of $3,000 upon the same premises was made by her to Samuel Landis to secure the payment of part of the purchase money, and that she took the deed and mortgage, promising to have them both recorded in the office of the register of deeds; that she recorded the deed, but destroyed the mortgage. It is therefore sought by this bill to revive this mortgage. This deed and mortgage were given on September 19, 1891.

The court below, in determining the case, filed a written opinion, which is set out in the record. While we concur with that court in most of the conclusions reached, and think the marriage cannot be set aside, and that there is not sufficient evidence from which to find that the deed of the 40 acres was changed from 20 to 40, or that the deed to the 80 acres was fraudulently obtained, yet we are of the opinion that the mortgage of $3,000 upon the 80 acres was fraudulently destroyed, and that, by the undue influence which the defendant exercised over Samuel Landis in his lifetime, he was kept from asserting his rights thereunder. Defendant does not deny the execution of the mortgage, and that she destroyed it, but claims it was kept off the record under an understanding with Samuel Landis, and eventually destroyed with his knowledge and consent. Samuel Landis was a man of weak mind, and there can be no question that when the mortgage was executed it was the expectation of both parties that it should stand as security upon the 80 acres for the payment of the $3,000. We are led to believe, however, by the testimony, that he never consented to its destruction.

The decree below will be reversed. The proceedings will be certified to the court below, and further testimony taken, if necessary, to ascertain the time when the mortgage was to come due and the rate of interest; the amount of the $3,000, with interest, to be made a lien upon the premises from the date the mortgage was given, and such decree to stand in place of the mortgage, and to be recorded as such. Complainants will recover their costs of both courts.

The other Justices concurred.


author: Moore, J.

text:
    MICHIGAN MUTUAL LIFE INSURANCE CO. v. MATHER.
    Appeal — Directed Verdict — Review.
    A judgment for the plaintiff upon verdict directed by the court will not be disturbed on appeal if his case at least entitled him to go to the jury, and the only assignment of error relates to the refusal of the court to direct a verdict for the defendant.
    Error to Wayne; Carpenter, J.
    Submitted April 15, 1897.
    Decided June 7, 1897.

      Assumpsit by tbe Michigan Mutual Life Insurance Company against Horatio N. Mather upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Flowers, May & Moloney, for appellant.

      Wilkinson & Post, for appellee.
   Moore, J.

Plaintiff sued the defendant to recover the amount due upon a promissory note. The defense interposed was that in December, 1890, the plaintiff issued to the defendant a policy of insurance upon which the premium for the ensuing year was $452.25; that the company accepted for said premium $113.05; and that a policy issued under such circumstances was void under the provisions of Act No. 171, Pub. Acts 1889; and that the note sued upon was given to renew a void policy, and was, therefore, without consideration. . After the testimony was all in, defendant asked the court to direct a verdict in his favor. The court declined to do this, and directed a verdict in favor of the plaintiff. The defendant appeals, and makes but one assignment of error, to wit, “The court erred in refusing to direct a verdict for the defendant.”

The defendant introduced evidence tending to support his claim, as already stated. His cross-examination and the testimony offered by plaintiff tended to show two theories that would favor plaintiff’s claim. One was that Mr. Mather was an insurance broker, and would be entitled to the usual commission upon his policy, given to agents, of 75 per cent, of the amount of the first premium, which would amount to just the difference between what he paid in cash and the premium that was due; and that his premium was paid by cash and an allowance of commissions. There was also testimony tending to show that there was a note given by Mr. Mather for the amount of the first premium originally.

Giving this record the most favorable construction possible for defendant, it left some questions to be determined by a jury, unless the plaintiff was entitled to have a verdict directed in its favor. The defendant was not entitled to have the jury instructed to render a verdict in his favor, and, as he took no exceptions to the charge of the judge, or his failure to submit the case to the jury, we cannot discuss those features of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    MITCHELL v. CITY OF NEGAUNEE.
    1. Municipal Corporations — Electric Lighting — Validity of Contraot.
    In the absence of statutory restrictions, a municipal contract for electric lighting is not invalidated by the fact that the city has no money on hand, at the time the contract is made, which can lawfully be applied to such purpose.
    2. Same — Special Election — Charters.
    The city of Negaunee was authorized under its charter, ahd the provisions of Act No. 186, Pub. Acts 1891, as amended, to submit the question of acquiring an electric light plant to the electors at a special election.
    3. Same — Vacant Lands — Taxation.
    Vacant lands included within the corporate limits of a city, but so remote as to receive no benefit from the installation of a plant for electric lighting, are yet subject to taxation for the improvement, if the legislature, in the exercise of its discretionary authority to determine and establish taxing districts, makes no discrimination in their favor.
    4. Same.
    It is within the province of the legislature to confer upon municipalities, under proper restrictions, the right to install plants for municipal lighting and to furnish light to their citizens.
    Appeal from Marquette; Stone, J.
    Submitted April 16, 1897.
    Decided June 7, 1897.
    Bill by Samuel Mitchell and others against the city of Negaunee, the Arbuckle-Ryan Company, and the Ft. Wayne Electric Corporation, to restrain the carrying out of certain contracts for the establishment of an electric light plant. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Hayden & Young, for complainants.

      F. A. Bell (Clark & Pearl, of counsel), for defendant city.
    ■ F. D. Mead, for other defendants.
   Moore, J.

The city of Negaunee has a population of about 6,000 people. In 1896 it made a contract with the Arbuckle-Ryan Co. for a steam plant complete, for $3,474. At the same time it made a contract with the Ft. Wayne Electric Corporation for an electric plant complete, at a cost of $6,500. This proceeding is brought by the complainants, who are large taxpayers, to restrain the carrying out of these contracts. The circuit judge, after hearing the proofs in open court, dismissed the bill. Complainants appeal, assigning as grounds of their appeal:

1. The contracts were vitiated by the fraudulent conduct of the council, engineer, and the two contractors.
2. There was no money on hand in the treasury which could lawfully be applied to the purpose of installing an electric plant.
3. The electors could not authorize the installing of an electric plant at a special election.
4. The city of Negaunee has no power, and the legislature cannot confer upon it power, to tax lands which can receive no benefit, for the installation of an electric light plant to do municipal lighting, and to engage in the supplying of lights to private parties.

Taking these propositions up in the order in which they are presented, a careful examination of the record does not, in our judgment, establish any such fraud in relation to these contracts, or in the proceedings leading up to them, as would warrant a court in restraining the execution of them for that reason.

As to the proposition that there is no money on hand that can be applied to these contracts, there is no suggestion that there is any requirement in the charter, nor has any provision of law been called to our attention requiring, that the money shall be in the treasury before a contract of this kind can be entered upon. It is not necessary to discuss the claim that a sufficient amount of money arising from the liquor tax is now on hand, or will be in the treasury in time to meet the terms of the' contracts.

This brings us to the next question. Can the electors authorize the installation of this plant at a special election? A special election was called, at which a large majority •of the electors voted in favor of establishing the plant. If the question was one that could be submitted at a special election, it was properly submitted, carried, and canvassed. The circuit judge found that Act No. 186, Pub. Acts 1891, as amended, and the provisions of the charter, authorize the electors to provide for the installation of such a plant at a special election, when ordered in the manner in which the special election was held. We think he was right in his conclusion. George v. Electric Light Co., 105 Mich. 1.

We now come to the important question in the case. Negaunee has been incorporated as a city a good many years. Lands of the complainants,'which were unplatted, vacant, wild lands, were inside the corporation prior to 1891. In that year the area of the city was greatly extended by the provisions of an amended charter. At this time a still larger quantity of complainants’ lands was included in the corporate limits. So far as the record discloses, no complaint has been made of this action until the filing of this bill. It is now claimed that the lands owned hy the complainants which are not city lots, some of which are not improved, most of which are so remote as not to be benefited by electric lights, cannot "be taxed to install a plant which is to be used not only to light the streets and alleys of the city, but also to furnish lights to private parties. It is urged that the right of 'taxation was never meant to be used to the detriment of the citizen, but for his benefit; that taxes can be imposed only for a public, and not a private, purpose. It is the contention that the taxing district in which the tax may be levied should be limited to the locality which is to be benefited by the expenditure of the tax, and that, as these lands will not be benefited by the installation of this plant, it is not right to tax the owners of them. Complainants say that neither the legislature nor the municipality can tax vacant lands for such purposes; citing a number of authorities, and, among others, Morford v. Unger, 8 Iowa, 82; Langworthy v. City of Dubuque, 13 Iowa, 86; O'Hare v. City of Dubuque, 22 Iowa, 144; Deeds v. Sanborn, 26 Iowa, 419; Deiman v. City of Ft. Madison, 30 Iowa, 542; City of Covington v. Southgate, 15 B. Mon. 491; Arbegust v. City of Louisville, 2 Bush, 271.

The Iowa cases fully sustain the contention of counsel, but as long ago as Merrill v. Humphrey, 24 Mich. 170, Justice Cooley, after quoting most of these cases, expressed a doubt as to whether they had not gone too far, and we now think they are clearly against the weight of authority. Cooley on Taxation (2d Ed., page 157) reads as follows:

“City boundaries having been extended so as to embrace the lands of parties who insisted that their premises were agricultural lands merely, and would receive no-benefit from the city government, such parties sought the protection of the courts, and prayed for injunction to restrain the imposition upon them of any tax in excess of what they would have been chargeable with had the boundaries not been extended to embrace them. It is to be observed of such cases that the legislature, which alone had authority to determine and fix the proper bounds of the municipal divisions of the State, and also to establish the taxing' districts, had proceeded to do so, and, in fixing the city boundaries without any provision for a discrimination in the taxation of property within them, had, in effect, determined that no such discrimination should or ought to be made. The whole subject was one committed by the Constitution exclusively to the judgment and discretion of the legislature, whose members, as in other cases of legislation, would make inquiry into the facts in their own way, and act upon their own reasons. No question could be made of the complete legislative jurisdiction over the case, and, if the action was unfair, and led to unequal and unjust consequences, it seems difficult to suggest any ground upon which it could be successfully assailed in the courts that would not warrant a judicial review of legislative action in every case in which parties complain of injustice and inequality. Nevertheless, in some cases the courts have considered themselves warranted in inquiring into the facts, in order to determine whether, in their judgment, the extension of municipal boundaries was fairly warranted; and, having reached the conclusion that it was not, and that the extension was made for the purpose of subjecting to taxation adjacent property that would not receive the benefits of municipal government, and was not in fact urban property, they have undertaken to protect the owners of property thus unfairly brought in against the unequal taxation to which the legislation would expose them. In doing this they have not assumed to nullify the legislative action in extending the municipal limits, but they have undertaken to modify and relieve against its consequences, and to do this upon the express ground that the motive which has influenced the legislation was not legitimate. As the point is stated in one case, it is the palpable perversion of the power to tax which justifies the judicial interference. Some of these decisions are made by very able judges, whose opinions are always entitled to the highest respect; but it seems difficult to harmonize them with the conceded principles governing the law of taxation, for (1) they do not question legislation as being in excess of legislative authority, as might be done where taxes are voted for a purpose not public, but they leave the legislation to stand, and only interfere to qualify its effect, on the ground that it has been adopted on improper grounds, and will operate unequally. (2) This is done on an inquiry into the facts, and a substitution of the judicial conclusion for the legislative on a subject not at all judicial; a subject, too, — the proper limits of city extension, — upon which persons are certain to differ widely, and where an inquiry into the facts after the judicial method of an examination of witnesses is usually much less satisfactory than that personal knowledge and investigation which legislators are supposed to possess or to make. This is certainly laying down a rule which cannot be applied generally, it being admitted that the judiciary has no general authority to correct the injustice of legislative action in matters of taxation; and the weight of authority clearly is that, as regards these cases, the determination of the legislature is conclusive.”

This is undoubtedly according to the great weight of authority.

The inquiry naturally arises, can the legislature authorize municipalities to own electric lighting plants which shall furnish not only the lights needed by the municipality, but lights to its citizens? Act No. 186, Pub. Acts 1891, authorizes, in terms, certain municipalities to construct electric lighting plants. Act No. 139, Pub. Acts 1893, provides “that it shall be lawful for any city or incorporated village in this State, not having more than 8,000 inhabitants, which own and operate works for the purpose of supplying such city or village with electric light, and lighting their streets and other public places with electric light, to furnish and supply electric light to the inhabitants of such cities or villages, upon such terms and conditions as the common council may deem expedient.” Act No. 41, Pub. Acts 1895, authorizes cities and villages not having more than 10,000 inhabitants to furnish lights to the citizens. These provisions will stand if furnishing electric lights is a public service. This question arose recently in Massachusetts. The house of representatives of that Commonwealth asked the opinion of the supreme court upon this question: Is the furnishing of electric lights a public service ? The court replied in part as follows:

“We have no doubt that, if the furnishing of gas and electricity for illuminating purposes is a public service, the performance of this service can be delegated by the legislature to cities and towns for the benefit of themselves and their inhabitants, and that such cities and towns can be authorized to impose taxes for this purpose upon their inhabitants, and to establish reasonable rates which the inhabitants who use the gas or electricity can be compelled to pay. * * * The maintenance of public streets and buildings is a public service, and it may be reasonably necessary to light them, in order that the greatest public benefit may be obtained from using them. To say nothing of the usefulness of lighting streets as a means of promoting order and of affording protection to persons and property, the common convenience of the inhabitants may require that they be lighted. Cities and thickly-settled towns have for a long time been accustomed to light their public buildings and some of their streets at the public expense. If the streets and public buildings are to be lighted, the means is a matter of expediency. If the legislature can authorize cities and towns to light their streets and public buildings, it can authorize them to do this by any appropriate means which it may think expedient. As a question of constitutional power, we cannot distinguish, the right to authorize cities and towns to buy gas or electricity for their use from the right to authorize them to manufacture it for their use.
. “The maintenance of sewers and drains is a public service. One object is the preservation of the public health; but, apart from this, they are of great convenience to the inhabitants whose estates can be drained by them. It is impracticable for every owner of land in cities and towns to construct and maintain sewers and drains exclusively on his own account. They cannot ordinarily be constructed over any considerable territory without using the public ways or exercising the right of eminent domain. They are, therefore, regarded as of common convenience, and are constructed at the public expense.
‘ ‘ The furnishing of water for cities and towns for domestic use affords, perhaps, the nearest analogy to the subject we are considering. It was long ago declared that ‘ the supply of a large number of inhabitants with pure water is a public purpose.’ Lumbard v. Stearns, 4 Cush. 60. The statutes are well known which authorize cities and towns to maintain waterworks for.-supplying their inhabitants with water, and the constitutionality of these statutes has not been doubted. Water cannot ordinarily be supplied to a large city or town from ponds or streams without the exercise of the right of eminent domain and the use of the public ways. Every inhabitant needs water, and often the only practicable method of obtaining it is by the agency of corporations or of the municipality. The land for the public ways having been taken for a public use, it may be subjected to other public uses, but it cannot be subjected to strictly private uses without the consent of the owners of the fee when the fee remains in the abutters. There is, therefore, often a necessity of having water, common to the inhabitants of a community, which cannot well be met except by the exercise of public rights, and therefore the furnishing of water ,has been considered a public service. In the case of water, as in that of sewers and drains, a portion of the service is exclusively public, and the benefit to individuals cannot be separately estimated from that of the community; but a part of the service is rendered to individuals, and the benefit of this can be separately estimated. The inhabitants are, therefore, required to pay for the water furnished for their private use, and special assessments for the use of sewers and drains are laid upon estates specially benefited; and for the same reasons, while in laying out highways the expense is public, betterment assessments may be laid upon the owners of lands specially benefited.
“Artificial light is not, perhaps, so absolutely necessary as water, but it is necessary for the comfortable living of every person. Although artificial light can be supplied in other ways than by the use of gas or electricity, yet the use of one or both for lighting cities and thickly-settled towns is common, and has been found to be of great convenience, and it is practically impossible for every individual to manufacture gas or electricity for himself. If gas or electricity is to be generally used in a city or town, it must be furnished by private companies or by the municipality, and it cannot be distributed without the use of the public streets or the exercise of the right of eminent domain. It is not necessarily an objection to a public work maintained by a city or town that it incidentally benefits some individuals more than others, or that from the place of residence, or for other reasons, every inhabitant of the city or town cannot use it, if every inhabitant who is so situated that he can use it has the same right to use it as the other inhabitants. It must often be a question of kind and degree whether the promotion of the interests of many individuals in the same community constitutes a public service or not. But, in general, it may be said that matters which concern the welfare and convenience of all the inhabitants of a city or town, and cannot be successfully dealt with without the aid of powers derived from the legislature, may be subjected to municipal control when the benefits received are such that each inhabitant needs them, and may participate in them, and it is for the interest of each inhabitant that others, as well as himself, should possess and enjoy them. If the legislature is of opinion that, the common convenience and welfare of the inhabitants of cities or towns will be promoted by conferring upon the municipalities the power of manufacturing and distributing gas or electricity for the purpose of furnishing light to their inhabitants, we think that the legislature can confer the power.” Opinion of Justices, 150 Mass. 592.

See 2 Dill. Mun. Corp. § 692, note; Rushville Gas Co. v. City of Rushville, 121 Ind. 206 (16 Am. St. Rep. 388); City of Crawfordsville v. Braden, 130 Ind. 149 (30 Am. St. Rep. 214). In this case the recent authorities .are referred to, and reviewed. State v. City of Toledo, 48 Ohio St. 112; Cooley, Tax’n (2d Ed.), p. 134.

It is conceded by counsel for complainants that municipalities may furnish water to their citizens. They seek to distinguish the right to furnish water from the right to furnish light by saying that water is a necessity for all, but that electric light is a luxury. It wall hardly be contended that the necessities of modern life do not require light as well as water, and we think the reasoning of the cases cited shows conclusively that it is within the legislative province to confer upon municipalities the right to furnish both under proper restrictions.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. WALKER.
    1. Trial — Infants as Witnesses — Competency.
    The matter of receiving children under 10 years of age as witnesses is by 3 How. Stat. § 7546a, made so far discretionary with the circuit court that its judgment in permitting a child of six years to testify upon its promise to tell the truth, elicited after a private examination in the judge’s office, will not be interfered with, unless the abuse of discretion is clear.

    2. Criminal Law-Rape — Felonious Assault — Separate Counts.
    Under an information charging, in separate counts, rape and improper liberties with the person of a female child, where the evidence does not exclude either theory, the case may properly be' submitted to the jury upon both counts.

      3. Same — Evidence—Harmless Error.
    Upon a prosecution for taking improper liberties with the person of a female child six years of age, the admission of evidence that the complaining witness had stated that she had previously been subjected to similar treatment by another person, the accused having no connection therewith, is not prejudicial error.
    Error to Ingham; Smith (Stearns F.), J., presiding.
    Submitted April 29, 1897.
    Decided June 7, 1897.
    George J. Walker was convicted of taking improper liberties with the person of a female child, without intending to commit the crime of rape, and was sentenced to imprisonment in the state house of correction at Ionia for 18 months.
    Affirmed.

      Lawton T. Hemans, for appellant.

      L, B. Gardner, Prosecuting Attorney, for the people.

       The competency of children as witnesses is considered in a note to State v. Michael, (W. Va.) 19 L. R. A. 605.

   Hooker, J.

The defendant was convicted of the offense of taking indecent and improper liberties with the person of a female child, without committing or intending to commit the crime of rape, upon an information which contained a proper count charging such offense, and also a count for rape. The child was six years of age, and the only evidence supporting the charge was her unsworn statement, and the testimony of her mother, to whom she is said to have related the affair immediately after its occurrence.

Error is assigned upon the admission of the statement of the child. Previous to hearing her statement, the mother and . child were taken by the judge into his private room for the purpose of ascertaining whether she had sufficient intelligence, and sense of obligation to tell the truth, to be safely permitted to testify, as provided by 3 How. Stat. § 7546a. On their return into court, the following dialogue occurred:

‘ ‘ Examined by the Court: Q. What are you going Jbo do, Georgia,> now ? What did you go up in the chair for ? Do you know ? Can you tell ? Can you tell now, or are you afraid? What was Dr. Root doing up there just a little while ago ? Do you know what he was doing ? Do you know what those men over there are there for ? Can’t you tell? Can’t you tell how long you are going to stay down here today? Do you think you could talk to Mr. Gardner, if he would talk to you, better than you can to me?
“A. Yes.
Q. Do you know Mr. Hemans, — that gentleman that sits over there beyond the table ?
“A. Yes, ma’am.
Q. Do you know what it means to tell the truth? Do you know that ?
“A. Yes, ma’am.
Q. What would happen to you if you did not tell the truth? What do you suppose would be the trouble? What do you think would happen to you if you should not tell the truth? Would it make any difference whether you told the truth or not? Do you know? (Nods her head, yes.)
Q. Well, what would happen to you if you should not tell the truth? Would you be afraid to tell a lie? (Nods her head, no.)
Q. Now, if Mr. Gardner should talk to you about something here, will you promise me to tell the truth?
“A. Yes, ma’am.
The Court: I think you may examine her under the promise, not under oath; she is not competent.
“Mr. Hemans: I should like to interpose an objection to the statement of the child, as incompetent.
“The Court: Yes; but the statutes say, ‘To its own satisfaction.’ When the court has ascertained to its own satisfaction that such child has sufficient intelligence and sense of obligation to tell 'the truth, it would be safe to admit it to testify. I will say here it is a matter of very serious doubt, so far as the idea of testimony is concerned. It is received here more as showing a condition, or showing surroundings here; and I say to the jury that they may be very careful in their consideration of the matters, and pay attention and know what occurs, and the circumstances, and all about what appears before you here in the examination of this child. You may proceed, Mr, Gardner.”

The judge held that the child might testify, upon her promise to tell the truth. It is contended that this examination was not such as to warrant the judge in being satisfied of her sense of obligation to tell the truth. What occurred at the private examination, we do not know. From that, and the examination in court, the judge was satisfied; and we should not interfere with his discretion unless it is plain that he could not legally reach such conclusion, which we are unable to say.

We think it was proper to submit the case upon both counts, as the jury, if not satisfied that a rape was committed or intended, might, under the proof, find that a felonious assault was committed.

It was not material to this prosecution to show that the child had stated that she had previously been subjected to similar treatment by another person. Moreover, it was hearsay. But we can see no possible harm to the defendant in its admission, as he was not connected with the affair in any way.

The judgment is affirmed.

The o.ther Justices concurred.