text:
    LAWRENCE v. HERALD PUBLISHING CO.
    1. Libel and Slander — Privilege—Public Affairs.
    The public condupt of public men is a proper subject of legitimate discussion.
    2. Same.
    . The publication in a newspaper of a false statement injurious to the plaintiff is not privileged although the plaintiff had been a police commissioner but was not a public officer at the time of the publication.
    3. Same — Damages—Mitigation.by a Retraction.
    Where an editorial was subsequently published, in response to a demand for a retraction of the libel, it wa3 a question of fact whether it was published so far as possible in the same position as the original publication, or was published within a reasonable time, or whether reasonable and proper amends were made, in order to comply with 3 Comp. Laws, § 10425, in mitigating damages.
    4. Same — Joint Action — Parties.
    That a judgment against a responsible defendant was rendered, for the damages found to have been sustained for the publication of a libel against the plaintiff, is not an answer to the claim of plaintiff that an error was committed as to a joint defendant found by the jury to be not liable.
    Error to Kent; Perkins, J.
    Submitted June 11, 1909.
    (Docket No. 90.)
    Decided November 5, 1909.
    Case by John S. Lawrence against the Herald Publishing Company and George E. Ellis for libel. A judgment for plaintiff against defendant Ellis alone is reviewed by plaintiff on writ of error.
    Reversed.

      Smedley & Corwin, for appellant.

      M. L. Dunham and Joseph Benihan, for appellee Ellis.

      Taggart, Denison & Wilson (William Alden Smith, of counsel), for appellee Herald Publishing Co.
   Moore, J.

This is an action for lihel. The plaintiff resides in Grand Rapids. He is sixty years of age. He is, and has been for a long time, a man of prominence politically and in a business way. He was a member of the board of police and fire commissioners of the city of Grand Rapids from May, 1905, to May, 1907, and was widely known in Western Michigan. The defendant Ellis is mayor of Grand Rapids, and was first elected in April, 1906, and re-elected in April, 1908. By virtue of his office as mayor, he is a member of the board of police and fire commissioners, but has no vote. The defendant the Herald Publishing Company publishes a daily newspaper called “The Grand Rapids Herald.” This newspaper has a circulation of more than 30,000 copies, two-thirds of which is outside of Grand Rapids.

By the amended charter of Grand Rapids, which went into effect in 1905, it was provided that applications for licenses to sell intoxicating liquor in Grand Rapids should be made to the board of police and fire commissioners, who should report such applications to the common council, with a recommendation thereon, 15 days after their filing. The board decided to establish a system of tabulating information respecting the conduct of the saloons, obtained by policemen on their two weeks’ beats, and reported on cards, known as the card system. The plaintiff was a member of the board at this time. Defendant Ellis was opposed to the card system, and in the month of May, 1908, it was abolished by a formal vote of the board. The mayor was severely criticised for this action. On Sunday, the 24th day of May, 1908, a large number of pulpits in Grand Rapids were filled by representatives of the so-called Anti-Saloon League; the occasion being what was known as their second annual “field day.” An account of this field day was given in the Grand Rapids Herald the following morning. The article is too long to quote here. It, however, criticised Mayor Ellis and his administration. Neither the plaintiff nor Charles H. Bender was mentioned therein, nor was the origin of the card system discussed. The plaintiff had not been a police commissioner for over a year. It nowhere appears in the record that he had been referred to in any -way in the meetings of which the article was an account, or that he had been present at any of them.

On the morning of May 26, 1908, the Grand Kapids Herald contained an interview with, the defendant Ellis, which is the basis of this litigation, a part of which reads as follows:

44 ‘ Somebody is either woefully ignorant or else wilfully misstates my position in regard to this card system,5'said Mayor Ellis yesterday in discussing the attacks made upon him in the anti-saloon field day of Sunday. 4 The abolition of the card system as formerly operated was merely what any honest administration would have demanded. I know of no city in America in which there is an honest administration in which they have such a system of spotting saloon keepers. Tammany used such a system so they could put the screws on the criminal classes when in need of votes or money. Mayor Schmitz of San Francisco used such a system so he could extort money for Ms personal use from the criminal classes. I suppose when John E. Lawrence and Charles H. Bender established this system here they thought the Democrats would remain in power and they would build up a little Tammany of their own. But the people declared for an honest administration, and that administration, which will not take a penny from the saloon keepers for campaign or other purposes, and which will not borrow money of them, has knocked out the card system as it was formerly operated, and demands a system by which the saloons can be kept track of every day, and punished as often as they violate the law.555

The plaintiff read this article the morning of its publication, and on the same day demanded a retraction from each of the defendants. There appeared on May 28,1908, in defendant’s newspaper an editorial, which is claimed to be a complete retraction on its part of the libel in compliance with the statute (section 10425, 3 Comp. Laws), and was so ruled to be by the court. It is not necessary to quote this editorial at length.

Mr. Ellis sent a letter to plaintiff, which, no one claims to be a retraction. He denied therein that he gave the interview as published. The plaintiff then commenced this suit. Each of the defendants pleaded the general issue. The defendant Ellis added a notice that he would “ give evidence in his defense that the alleged publication is privileged, if made as alleged.” The defendant Herald Publishing Company gave a like notice during the progress of the trial. Neither defendant pleaded justification. The jury found a verdict of no cause of action against the Herald Publishing Company, and of $313.70 against the defendant Ellis, divided equally between damages to feelings and damages to reputation. The case is brought here by writ of error. All assignments of error are waived, except those discussed under the following heads:

“ (1) That the article was not qualifiedly privileged as charged by the circuit judge.

“ (2) That the editorial, published by the Herald Publishing Company, in response to plaintiff’s demand for a retraction, did not comply with the statute, and was not in the nature of a retraction in its subject-matter.”

Defendant Ellis did not appeal, and it is difficult to tell from the brief filed upon his behalf what his desire is in relation to the case presented here. Counsel for the Herald Publishing Company argue a third proposition, to wit, “If error was committed, the plaintiff was not prejudiced.” We will discuss the assignments of error in the order presented by counsel.

Was the article qualifiedly privileged ? The appellee answers this question affirmatively, and insists that Mr. Lawrence and Mr. Bender had established the card system in Grand Rapids, that it was their system, and a matter of public concern, and that the system and plaintiff’s connection with it were subjects of legitimate discussion, citing Odgers on Libel and Slander, p. 40, and 25 Cyc. p. 402. A reference to these authorities will show they do not sustain the ruling of the court below, and the position of counsel just stated. Undoubtedly the public conduct of public men is properly subject to legitimate discussion. What is legitimate discussion? The question is not new in this State. The language of Justice Campbell in Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209), is pertinent:

Defendant claims the article was absolutely privileged. The court held that it was privileged, unless shown to be both false and published without good motives and maliciously.

“ That a person may publish falsehoods of another who occupies a position in which his conduct is open to public scrutiny and criticism, without any reference to the object to be secured by the publication, is a doctrine which has no foundation that we have been able to discover. Whether this article, taken as a whole, was privileged until reason was shown to the contrary, is not now important, and need not be discussed, because the plaintiff is not the complaining party, and the ruling below went as far as possible to hold it so. That the privilege is lost by malice is elementary law in such cases. The question which the court below discussed, and which is discussed here, is whether the malice must be actual personal ill-will to plaintiff, or whether the publication of what is necessarily injurious, and done purposely and knowingly, and not for any good purpose or justifiable end, is legally malicious within the law of libel.

“ Upon this we think there is no room for serious question. The term, ‘ malicious,’ cannot be improper to designate a wilful injury without just reason. It is not claimed that there is any room to question the injurious character of this article. Neither can it be questioned that the wilful publication of it necessarily involves a design to produce such injury as is a necessary consequence of it. This being so, it would be a violation of all the analogies of legal language to hold that a wilful injury is not malicious, if made without any good cause.”

In Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622), it was held that publications of falsehoods are never privileged. To the same effect is Owen v. Dewey, 107 Mich. 67 (65 N. W. 8). There is a full discussion of the law of libel in Brewer v. Chase, 121 Mich. 526 (80 N. W. 575, 46 L. R. A. 397, 80 Am. St. Rep. 527), and a collation of authorities.

In Smedley v. Soule, 125 Mich. 192 (84 N. W. 63), Justice Grant, speaking for the court, said:

“ It is urged that the publication was one of qualified privilege. This is not a case for the application of the rule of privilege, absolute or qualified. Defendants all admitted that they had no ground whatever for charging plaintiff with being a party to this corrupt agreement. On the contrary, they admitted in open court that plaintiff was in no way connected with the mayor in the controversy between the mayor and the council. ' The only defense they could make for the publication of such an article would be its truth, or their honest belief of its truth. But when it is admitted that they had no foundation for such belief, the question of privilege is excluded from consideration; and the court correctly charged the jury that the defendants were liable for whatever damages plaintiff «sustained by virtue of its publication.”

The plaintiff was not a public officer. So far as the record shows he did not attend the anti-saloon field day meetings, nor have any part therein. There is nothing in the record to show any justification for the reference made to him by the mayor, and no authority has been called to our attention which gave to the newspaper the privilege to repeat this interview in its more than 30,000 copies.

Was the editorial published a compliance with the statute ? Section 10425, 3 Gomp. Laws, reads as follows:

“No exemplary or punitive damages shall be recovered unless the plaintiff shall before bringing suit give notice by mail or otherwise to the defendant to publish a retraction of the libel, and allow the defendant a reasonable time in which to publish such retraction, and make such amends as are reasonable and possible under the circumstances of the case; and proof of the publication or correction shall be admissible in evidence under the general issue on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages: Provided, That the retraction shall be published in the same type and in the same editions of the paper as the original libel, and so far as practicable in the same position. ”

The trial court held that the editorial which was published in response to the demand for a retraction was a full and complete compliance with the provisions of the above section of the statute. The case of Couch v. Mining Journal Co., 130 Mich. 294 (89 N. W. 936), is authority for the statement that, where a retraction is in writing, it is for the court to construe, but we do not understand it to be authority for the proposition that the court is to say, as a matter of law, that the retraction was published so far as practicable in the same position as the original publication, or that it was published in a reasonable time, or that in the publication which was made the defendant made such amends as are reasonable and proper under the circumstances of the case. This feature of the case presented a question of fact, and was for the jury.

If error was committed, was it error without prejudice, as contended for by the attorneys for appellae? Their argument is as follows — we quote from the brief:

“ This is a joint suit against the Herald and Mr. Ellis. The court instructed the jury that a verdict might be rendered against both defendants, or against either one; that if a judgment was rendered against both defendants, it must be a joint one for the same amount. No complaint is made on this ruling. * * * The jury rendered a verdict against Mr. Ellis for $313.70, so that it necessarily reached the conclusion that in giving out the interview Mr. Ellis was actuated by express malice; and, under the charge of the court, the jury assessed against Mr. Ellis all of the damages which Mr. Lawrence had actually suffered, and added to these actual damages ‘ such an amount as you think plaintiff is entitled to recover on account of such malicious publication.’ * * * The plaintiff cannot collect his damages twice. He has sued two persons jointly, and got a judgment against one for the entire amount to which, under any theory, he is entitled. It is not claimed, and will not be claimed for a moment, that his judgment against Mr. Ellis is not collectible; that the latter is not financially responsible.”

In the supplemental brief counsel say they are ready to waive any costs against plaintiff to which they may be entitled on the judgment rendered in the court below. These various propositions of counsel do not seem to us conclusive. As already appears, there was substantial error committed by the trial court. The plaintiff, as he had a right to do, sued both defendants. He also had the right to have his case tried against both of them according to the rules of law. This right has not been given him.

Judgment is reversed, and new trial ordered.

Blair, C. J., and Grant, Montgomery, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    YOUNGQUIST v. C. H. BLOMSTROM MOTOR CO.
    Contracts — Breach—Discharge—Sales.

      A complainant who has failed to perform his part of a contract to advance money needed for the invention and patenting of motors, and who consented to the subsequent Abandonment of the enterprise and the substitution of a third party in his place, cannot enforce a clause in the agreement giving him a half interest in the invention, against a corporation formed by others to carry on the manufacture of the motors.
    Appeal from Wayne; Donovan, J.
    Submitted June 11, 1909.
    (Docket No. 65.)
    Decided November 5, 1909.
    oBill -by Orrin G. Youngquist against the C. H. Blomstrom Motor Company, C. H. Blomstrom, and Nathan M. Kaufman to establish an interest in defendant corporation. From a decree for complainant, defendant Blomstrom appeals.
    Reversed, and bill dismissed.

      Bowen, Douglas, Whiting & Eaman, for complainant.

      Oscar M. Springer, for appellant.
   Moore, J.

Prior to, and in October, 1900, the complainant was a practicing physician living at Marquette, Mich. His cousin, the defendant Charles H. Blomstrom, was also a resident there. Mr. Blomstrom was the designer and general manager of the Lake Shore Engine Works. During his leisure time he was engaged inventing and constructing an automobile. A written contract was entered into, the material parts of which are as follows:

“This agreement, made this twenty-seventh day of October, in the year of our Lord one thousand nine hundred, by and between Charles H. Blomstrom, of the city and county of Marquette and State of Michigan, party of the first part, and Orrin Gr. Youngquist, of the same place, party of the second part, witnesseth: That said party of the first part, for and in consideration of the advances to be made from time to time as needed, by said party of the second part, for the purpose of defraying the expenses attendant upon the work of construction of a model and procuring patent or patents upon a self-propelling vehicle, machine, or automobile, which said party of the first part hereby undertakes to invent, devise, construct and manufacture, hereby bargains, promises, covenants, and agrees to assign, transfer, set over, and convey by good, proper, and sufficient conveyance or bill of sale, unto said party of the second part the undivided forty-nine one-hundredths interest in and to any patent or patents which said party of the first part may obtain or procure upon or in any way or manner covering any and every portion, part, feature, section, or division whatsoever of said invention, and in and to any patent or patents which said party of the first part may obtain or procure upon or in any way or manner covering or affecting any combination whatsoever of any and every such portion, part, feature, section, or division of said invention, and to account to and pay over to said party of the second part a like interest and share of any receipts, proceeds, or income arising from the manufacture and sale of said invention, machine, self-propelling vehicle, or automobile; and said party of the second part hereby promises and agrees to make the advances of money and funds above-mentioned accordingly; it being the intention, understanding, and agreement of the parties hereto that said party of the first part is to furnish all the mechanical skill and perform all the labor and work, or procure the same to be performed, requisite and necessary to perfect, complete, construct, and successfully operate the aforesaid self-propelling vehicle, machine, or automobile, and so properly describe, manipulate and operate the same that patent or patents shall be granted, covering said invention in all its parts, portions, features, sections, and divisions, and that said party of the second part is to furnish and advance all the money and funds which shall be required for that purpose. It is further hereby mutually understood and agreed by and between said parties that neither of said parties shall have the right to sell, assign, transfer, dispose of, or in any way or manner alienate the whole or any part of his interest in said invention, patent or patents, or sell, assign, transfer, dispose of, or in any way or manner attempt to incumber or hypothecate the whole or any portion of his proper and equitable interest in the shares of stock of any association, company or corporation which they, or either of them, may organize or promote for the manufacture and sale of said invention, patent or automobile, without the consent of the other of said parties hereto first obtained in writing. It is also further mutually understood and agreed by and between said parties that this contract shall and does cover, include and operate upon any and all points, parts, features, portions, sections and divisions whatsoever of the self-propelling vehicle, machine, or automobile already constructed or in process of construction, by said party of the first part.”

In July, 1901, Mr. Blomstrom sold a one-half interest in the automobile he was constructing, and his designs and rights in relation thereto, to Nathan M. Kaufman. In September, 1901, Mr. Blomstrom sold to Nathan M. Kaufman a one-half interest in the following inventions: (a) Improvements in wheel hubs. (6) Improvements in propeller mechanism for boats, (c) Improvements for vaporizers for internal combustion engines. (d) Improvements in motor vehicles. The latter part of 1901 Mr. Blomstrom moved to Detroit, and, with Mr. Kaufman, under the name of the Blomstrom Motor Company, engaged in the business, principally, of making launches, though some automobiles were made. In October, 1904, a corporation was formed, called the C. H. Blomstrom Motor Company, with a capital of $100,000. Its purpose was stated as follows:

“Article 11. The purpose or purposes of this corporation are as follows: to manufacture, buy and sell, at wholesale or retail, marine, stationary, and other gas and steam engines, boats, automobiles, pumps, and any other machinery or implements to be run by gas or steam engines.”

Its stockholders were as follows: Charles H. Blomstrom, Detroit, Mich., 2,500 shares; Samuel R. Kaufman, Marquette, Mich., 1,000 shares; Nathan M. Kaufman, Marquette, Mich., 6,500 shares. In September, 1906, the bill of complaint in this case was filed. The case was put at issue and tried. A decree was rendered in favor of complainant, the important part of which is as follows:

“That said defendant the C. H. Blomstrom Motor Company forthwith execute and issue to said complainant 49 per cent, of 5,000 shares of its capital stock of the par value of $10 per share, or the certificate or certificates for 2,450 shares of its capital stock of the par value of $10 each; that said 2,450 shares of stock be charged against the amount of stock credited in the articles of association to said defendant Charles H. Blomstrom, and that said defendant company, the C. H. Blomstrom Motor Company, issue to said defendant Charles H. Blomstrom certificate or certificates for 550 shares of stock of said defendant company.”

The defendant Blomstrom has brought the case here by appeal.

The pivotal position of the solicitors for complainant is stated in their brief as follows:

“ The principal question involved in this appeal is whether or not the complainant is entitled under the contract to the relief granted by the court below, and this question is answered affirmatively if our interpretation of the contract is correct. Our contention is that it was absolutely necessary by the terms of the contract to secure the written consent of either party to any transfer of interest of either party to the contract, and the purpose of the contract was to prevent just such a thing as has happened here. If this court were to sanction an act of this kind, it would place a premium upon the violation of con-, tracts. The purpose of the contract was to prevent either \ party from being crowded out of the enterprise by thej other one. With that end in view, it was provided that' the consent in writing would have to be obtained before' either party could dispose of his interest to an individual or a corporation. The contract provides:

“ ‘That neither of said parties shall have the right to sell, assign,’ transfer, dispose of, or in any way or manner alienate the whole or any part of his interest in said invention, patent, or patents, or sell, assign, transfer, dispose of, or in any way or manner attempt to incumber or hypothecate the whole or any portion of his proper and equitable interest in the shares of stock of any association, company, or corporation which they, or either of them, may organize or promote for the manufacture and sale of said invention, patent, or automobile, without the consent of the other of said parties hereto first obtained in writing/

“ Now, if that contract means what it says, then the decree of the circuit judge should be upheld, for it is undisputed that the written consent of Youngquist. to the sale of any interest under the contract to Kaufman was never given.”

There would be no flaw in this contention if the complainant had fulfilled his part of the contract, and had not consented to a different arrangement, which consent was acted upon. It is the contention of Mr. Blomstrom that complainant never carried out his part of the contract, and that he consented to Mr. Blomstrom’s entering into relations with Mr. Kaufman that made it impossible for the terms of the contract to be met. It is agreed that all that was paid by complainant was $200. The defendant claims that the actual expenditures prior to July, 1901, amounted to nearly $800, and that the bills for these amounts were presented to the complainant for payment, and that he did not pay them. There is conflict in the testimony, and it is urged that because of what was done when the articles of association were drawn, that Mr. Blomstrom is shown not to be entitled to belief. His testimony is in part as follows:

“No patents were ever issued upon the machine or any part of the machine that I was working on in Marquette at the time I made the contract with the complainant. * * * Exhibits 11, 12, 13, 14, and 26 are bills for materials used in the construction of that machine. I was not working on any other automobile at that time. I took these bills to Dr. Youngquist. When I called upon the doctor the first time, I presented bills for $250, or in that neighborhood, and he gave me $100 on account. He gave me $100, and then, when the bills ran up to about $500 or $600, I presented them again, and told him what we owed, and he gave me another hundred dollars, with the understanding that it was taking more money than he thought, that he would not be willing to go ahead any further. He said: ‘ It is going to take a lot of money. I can see it takes lots of money to build automobiles.’ And he wanted to know how much more it would take, et cetera, and I told him. I gave him an idea, and he says, ‘if you can get somebody else,’he says, ‘you can count me out.’ That was in the spring of 1901. I would say along in February. I showed these bills to Dr. Youngquist, all of them. I saw him about these bills six or seven times between November, 1900, and the spring of 1901, but I did not get any money. * * * When I would go with the bills, he would say come next week or something to that effect. * * * All these bills were contracted on the car represented by the photographs. Before making any arrangements with Mr. Kaufman, I had a conversation with Dr. Youngquist at the post office in Marquette July 4, 1901, and told him ‘that I can make an arrangement with Mr. Kaufman, who is willing to furnish all the money up to half a million to carry on the business.’ And he says: ‘ Well, all right, go ahead, and count me out.’ I went to see him at that time to see if he was willing to go ahead any farther with the contract or drop it.

‘ ‘ The Court: How many dollars were due then on the bills ?

“A. Approximately $600.

“Q. What did you talk about the $300 paid in there?

“A. Nothing said, only he said: ‘lam willing to lose just what I have put in.’ * * * After my conversation with Dr. Youngquist I saw Mr. Kaufman the next day, and closed with him, made a contract in writing. I told Dr. Youngquist about making this contract. I met the doctor, and he asked me if I had closed the deal, and I told him I had, and he wanted to know if I got any money, and I told him I got $300 from Mr. Kaufman. The doctor seemed pleased and satisfied. He said: ‘ I realize it takes 'more money than I have got, and Mr. Kaufman has got it, and you will be able to go ahead in good shape.’ Then I started out to get patents; made applications for patents. I did not make application before because I had no money. These were the applications referred to here on wheel hubs and motor vehicles. I had asked the doctor for money to make applications for these things. He said he would pay. He said ‘ wait a week or two,’ or something to that effect — just put me off from time to time. I started the next day after I made a contract with Kaufman to make applications for patents, wrote to Pierce & Fisher, patent attorneys, in Chicago. About a month after that, I resigned my position and came to Detroit, went into the business of building boats and engines, and continued that business for about two years. The engines were marine engines, for marine purposes only. When I made the contract with Mr. Kaufman, it was understood I was going to Detroit to manufacture engines and automobiles, and I came down here after that and established the business under the name C. H. Blomstrom Motor Company. I told the complainant I was coming to Detroit because it was the best city I knew of. After I closed with Kaufman, I remained in Marquette about three months, and I saw the doctor nearly every day, and then met him twice since then, or three times to my knowledge, once in Marquette, once in Chicago, and once in Detroit. I met him in Marquette the February following my coming to Detroit.”

His testimony was that the complainant never made any claim upon him until after the corporation was formed, unless two letters which he received by due course of mail might be regarded as a claim. The letters are as follows: Á letter dated March 26, 1906, on the letter head of O. G. Youngquist, M. D., which reads as follows:

“March 26th, 1906.

“ Charles H. Blomstrom,

“Detroit, Mich.

Dear Cousin: As the time is drawing near to use automobiles, I feel that you will be willing to construct me a late model two seater for the money I have advanced, interest and help given you. Don’t you think that is about right. It will prove a good advertisement up here for you. Please let me know if you will do this. With best wishes,

“Your cousin,

“ O. G. Youngquist.”

A letter dated April 7, 1906, on the letter head of O. G. Youngquist, M. D., which reads as follows:

“April 7, ’06.

“Charles H. Blomstbom,

“Detroit, Mich.

Dear Cousin: Have been waiting to hear from you regarding that automobile. Now can you not build me a good car; you’ll never lose by doing it. Time for running them is drawing near.

“ Yours truly,

“O. G. Youngquist.”

It is contended by complainant that he did not write these letters, but they were written by his office associate, Dr. James. He admits writing the following:

“Marquette, Mich., April 16th, 1906.

“ C. H. Blomstrom,

“Detroit, Michigan.

“ This note will introduce Mrs. Mack. Anything you can do for her will be greatly appreciated by me. Care Queen Automobile Works.

‘ ‘ Respectfully yours,

“Dr. O. G. Youngquist.

“ (Let me hear from you).”

It is the testimony of defendant that all the letters were written by complainant. On the cross-examination complainant answered in part as follows:

“ Q. Do you mean to say you did not see any bills except those which the checks of $200 paid ?

“A. That is all I saw to my knowledge. * * * I never saw an itemized bill like that at all. He brought some bills to the office, a shipping bill or something. I could not recollect what it was for, and I do not recollect when that was. I do not remember Blomstrom bringing bills to me but once, and that was in my office. I do not recollect Mr. Blomstrom ever speaking to me about indebtedness he had incurred in trying to develop this machine.

UQ. Do you say he did not ?

‘‘A. 1 say I do not remember that he did. I heard about Blomstrom entering into a business arrangement with Mr. Kaufman, but I do not remember when it was. I think it was in 1901. I do not know positively.

“Q. Now, before Mr. Blomstrom left (Marquette),'did you hear or know in any way that he had entered into some business arrangement with Mr. Nathan Kaufman ?

“A. I heard it in some way.

Q. Now, let me refresh your recollection, Doctor. On or about the 4th day of July, 1901, do you recollect Mr. Blomstrom coming to you in the post office ?

“A. No, sir; I do not.

“ Q. And telling you that he had or was about to enter into an arrangement with Mr. Kaufman by which Mr. Kaufman was to furnish a large sum of money with which to engage in the business of manufacturing of boats and boat machinery, and so forth ?

“A. No, sir; I do not remember anything of the kind.

“Q. And did you advise him to do it, that you did not have money enough ?

“A. No; I do not remember anything of the kind.

“Q. Do you say nothing of that kind occurred ?

“A. I would not say for sure. I do not remember.

“Q. You say you do not remember.

“A. Yes, sir. * * *

“Q. How early did you suppose that Nate Kaufman was interested in the business ?

“A. I had heard of his name about the time Blomstrom left Marquette, that he was in business with him. I never asked Mr. Kaufman about it, nor Blomstrom, that I know of. I may have written Blomstrom after he left Marquette. I once wrote him, and wanted a folder or catalogue of their machines. I thought at one time I would buy a machine. I saw Blomstrom after he left Marquette in 1901 at one time in Chicago. I have forgotten the year.

“Q. It was after he left Marquette, and before you came to Detroit ?

“A. Yes, sir; I think it was.

“Q. Did you talk with him about the business that he was doing here ?

“A. He was talking about automobiles, and everything was prospering, doing nicely.

“Q. Did he tell you how they were getting along down here ?

“A. Yes, sir; he said they were getting along all right, as near as I could understand it.

“Q. That was about all the talk that there was there?

“A. About all that I can remember. I did not pay much attention to it.

“Q. You did not pay much attention to it at that time?

“A. No, sir. * * *

Q. Did anybody tell you that no patents issued to Mr. Blomstrom on any of these applications ?

“A. I did not know anything about the business at all.

“Q. So that when you filed this bill, Doctor, in 1906, is that the first time that you made any claim of any interest in these patents to Blomstrom ?

teA. Yes, sir; I think it was. But, when I was here I tried to contract for an automobile from Blomstrom, I tried to get him to send me an automobile.

“Q. What for?

“A. To use.

“<2i*Did you buy one?

“A. Well, there was nothing said about any price or anything of the kind.

Q. But you simply negotiated the purchase, or of getting one in some way — one of the machines ?

“A. Yes, sir. * * *

“Q. Where is the doctor that you speak of ?

“A. In Marquette. Mr. James was not my partner. He was associated with me.

”Q. Do you recall the fact that the letters, having been written, that they were written at the time they were written ?

“A. No, sir; we were talking about this affair.

“Q. Did you talk with your associate ?

“A. I told him all about the affair. I presume I told him that I had advanced or paid in $200. I do not know positively whether I did or not tell him just the amount.

“Q. Did you tell the doctor that you thought it would be all right if Blomstrom would give you an automobile?

“A. Possibly I did.

“Q. Is that the way you felt about it?

“A. I cannot answer it. I do not know how I felt at that time.”

Witness further testified that he only claimed to have invested $200, and said that, irrespective of any business complications with Mr. Kaufman or anybody else, he claims 49 per cent, of the stock of the corporation organized by Blomstrom and Kaufman; that he did not know what the stock is worth, had made no inquiry about it, and did not know that it was worth anything; that he made no inquiry into the nature of the business or assets of the partnership or the concern of C. H. Blomstrom & Company that he remembered of; that he did not know that Blomstrom and Kaufman, after Blomstrom came to Detroit, engaged in the manufacture of marine engines; that he heard that they were making boat engines, but when he could not remember. Witness further said:

‘ ‘ I have never talked with Mr. Kaufman upon this subject at all. * * *

“Q. Now, you put $200 in this thing, I understand?

“A. Yes, sir.

‘ ‘ Q. How much are you ready and willing to put in now, under that contract ?

“A. All I was asked for to build a machine.

“Q. Suppose it had been $50,000, would you have done it?

“A. No, sir.

“Q. Would you have done it if it had been $20,000 ?

“A. No; I would not.

“Q. Would you have put in $500 in this business at that time if Blomstrom had asked you ?

“A. I do not know. I would not put in any more money than I did, for the simple reason Blomstrom told me it would cost me from $200 to $300. I would have to possibly put in another hundred to fulfill my part of it. I could not tell now what I would have done if it had been put up to me then. I do not know what I would have done. I am testifying from my present standpoint.

tc'Q. You do not know what you would have done ?

fcA. No, sir.”

It is a significant fact that Dr. Youngquist put only $200 into the venture, and that the record fails to disclose that he has ever offered to pay any other amount, while there is no question that the necessary expenses have been many times this amount. The testimony of the complainant, which we have quoted, what he did and what he omitted to do, is not consistent with the claims made in the bill of complaint, but tend to corroborate the testimony of defendant. There is much conflict in the testimony, but it establishes by a preponderance of the testimony the version of the defendant as to the business relations of the parties.

The decree is reversed. One may be entered here dismissing the bill of complaint, with costs of both courts.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    GATES v. DETROIT & MACKINAC RAILWAY CO.
    1. Specific Performance — Mistake—Res Adjudicata.
    An error in the description of land named in a contract which was the subject of previous litigation between the parties, the mistake being there recognized and treated as corrected by the court and parties, will not be considered as open in a subsequent suit for specific performance.
    2. Same — Custom and Usase — Contracts.
    A custom followed for seven years in the performance of a contract for the carriage and delivery of logs, whereby the cars of timber were delivered, in accordance with a practice usual in other similar cases, at tlie complainant’s mill instead of at North Bay City, the place named in the contract to which the haul should be made, should be considered as controlling the effect of the agreement.

      Appeal from Bay; Collins, J.
    Submitted June 21, 1909.
    (Docket No. 47.)
    Decided November 5, 1909.
    Bill by Louise M. Gates, administratrix of the estate of Samuel G. M. Gates, deceased, against the Detroit & Mackinac Railway Company for an injunction, the specific performance of a contract, and an accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      Gfillett & Clark, for complainant.

      James McNamara ( Weadock & Duffy, of counsel), for defendant.
   McAlvay, J.

The bill of' complaint in this case was filed by complainant’s decedent. The action was revived by the administratrix after his death. It arises from a dispute between the parties relative to their respective rights under a certain contract entered into between them. This contract was made in August, 1899, by certain correspondence, for the hauling of complainant’s logs from town 35 N., range 4 and 5E., at a freight rate of $3 per 1,000 feet to North Bay City. A logging road, called "Gates Branfeh,” was built according to the terms of the contract by these parties; Mr. Gates furnishing the right of way,'grading, and the ties, defendant doing the ballasting and putting on the rails. The branch was about six miles in length. Logs to the amount of several millions of feet were hauled during the years 1900 to 1903, inclusive, at the contract rate. During this time all deliveries were made by defendant by turning over its cars at North Bay City, its transfer yard, to the Michigan Central Railroad Company, which delivered them over its own tracks to ihe Gates mill, where the cars were unloaded and then returned by the Michigan Central Railroad to defendant’s tracks at North Bay City.

In January, 1904, defendant notified complainant by letter that the freight rate would be increased. The increased rate was paid under protest, and complainant brought an action at law to recover overcharges so paid during the year 1904. He recovered judgment, which, with a slight modification of $75, deducted for noncontract logs, was affirmed by this court in Gates v. Railway Co., 147 Mich. 523 (111 N. W. 101). The opinion in that case contains the contract and other correspondence between the parties. Reference is had to it for a more extended statement of facts. That judgment was paid and satisfied.

It was settled in that case that the contract did not apply to timber purchased by complainant after the contract was entered into, and also that the contract rate would continue in force until all the timber included within its terms had been hauled. That case was decided March 12, 1907. The parties were unable to come to a settlement for the overcharges due to complainant for the years 1905 and 1906, and defendant continued to collect overcharges for hauling logs, claiming that they were not contract logs. After some correspondence between the parties, defendant, on May 20, 1907, notified complainant that it would no longer permit the cars to be taken, and the delivery of the logs to be made, at complainant’s mill for unloading, as had before that date always been done, as hereinbefore described, but would require them to be unloaded at North Bay City, and in carrying out this determination, defendant, on the next day, informed complainant that it had in its possession at North Bay City 24 cars of logs consigned to him, which would not be delivered until the freight thereon was paid, at the rate of $4.25 per thousand for hard wood, and $3.25 per thousand for other logs. Tender of the full price under the contract was at once made to defendant, with a demand that the usual delivery be made. The tender was refused, and the demand disregarded, and the logs were held by defendant. Thereupon the bill of complaint in the case at bar was filed to compel a specific performance of the contract, both in respect to the freight rate, and the transfer privileges, to which complainant claimed he was entitled under the contract, also for a decree for a repayment of excess freight charges paid under protest during the years 1905-1907. A mandatory injunction was applied for, after an ordinary negative injunction had been granted, and a motion made to dissolve the same. The motion to dissolve the injunction was denied, and a mandatory injunction was issued as prayed. Defendant then appealed to this court, and the mandatory injunction was affirmed, except as to logs concerning which there was a question whether they were included in the contract. Gates v. Railway Co., 151 Mich. 548 (115 N. W. 420). Since that time the case has been heard in the circuit court, and a decree rendered in favor of complainant, granting the relief prayed for, and also decreeing the sum of $5,141.82, with interest, to be due complainant for overcharges paid under protest to defendant, in excess of the contract price per thousand for hauling complainant’s logs.

That a clerical error occurred in the number of the township to which the road was to extend, for the purpose of reaching the Gates timber, is apparent, and was recognized by both parties in the action at law, as appears by the declaration, plea, and admission upon the trial. The opinion of the court in that case having accepted the correction agreed upon of an error so obvious, the question is foreclosed against defendant. In the contract a general description of the tract of timber is given as located in town 24 (25) north, range 4 and 5 east. The descriptions given in detail in the bill of complaint are all within such town and ranges, and the proof is clear that this was the timber in contemplation of the parties and made the subject-matter of the contract. It is the timber which was cut by complainant and hauled by defendant every year since 1900 under the terms of this agreement, except a small amount cut from after-acquired lands. The evidence on the part of complainant establishes a prima facie case of ownership by Mr. Gates of the timber hauled by defendant under this contract. No testimony was offered upon the matter by defendant. This is the contract timber which complainant was entitled to have hauled by defendant at the contract rate. These are the logs which defendant, before the commencement of this suit, refused to continue to place on the side track in its yard to be received by the Michigan Central engines and delivered at complainant’s mill in Bay City, and notified complainant that he must unload at North Bay City.

The bill in this case was filed to determine whether defendant was obliged by its contract to continue to cause these logs to be delivered at complainant’s mill, complainant contending that the contract was made with reference to a custom, which in the delivery of these logs defendant had followed for seven years. It is contended by the defendant that evidence of a custom is inadmissible to vary the terms of a written contract, and that the custom proved, if admissible, has no bearing upon this case. The testimony of defendant’s general superintendent, who acted for defendant in making this contract, shows that the yard at North Bay City is not a terminal, and had not been used as a place of delivery of car loads of logs or other car load freight; that at that place it has no terminal facilities, and the general practice has been to deliver car loads of logs and other car load freight for Bay City by transfer to the Michigan Central in the same manner that the Gates logs were delivered, until just before the complainant’s bill was filed; that such delivery was, in his opinion, an accommodation or convenience to Mr. Gates and other shippers. The record shows that there are no sufficient conveniences in this yard to make delivery by unloading large quantities of sawlogs. Defendant insists that the contract determines where delivery was to be made, by the words, “ We to haul your logs from town 2i (25) north, range 4.and 5 east, to North Bay City at the rate of $3.00 per thousand feet board measure.”

The contract is specific as to the rate and haul, but it is silent as to delivery. A delivery was contemplated (the usual and customary delivery to shippers of car load lots). A custom has been established by the evidence, which was in practice before the time of making this contract and ever since. The general superintendent’s testimony admits such a custom, called by him an accommodation or convenience. That the practical construction of the parties for seven years as to the manner of delivery was in accord with such a custom is confirmatory that they contracted in contemplation of it. The evidence also shows that to unload these logs at North Bay City, or to transfer them from defendant’s cars to others, would be “impracticable and prohibitive.”

There remains to be considered the amount of overcharges paid to defendant as freight upon contract logs hauled. All shipments subsequent to January 1, 1905, are to be considered. It is unnecessary to make the computation. Defendant has been credited with the amount of difference in charges between contract and noncontract logs at 75 cents and $1.25 per thousand feet, which leaves a balance due complainant of $5,141.82, as found by the trial court.

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

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


text:
    BEADLE v. ANDERSON.
    1. Evidence — Witnesses—Statutes —Facts Equally within Knowledge oe Deceased — Estates of Decedents.
    Statements made by deceased to complainant, or by her to deceased, or by him to others in her presence, are excluded by 3 Comp. Laws, § 10313, as amended by Act No. 36, Pub. Acts 1903.
    3. Deeds — Mental Competency — Evidence—Estates of Decedents.
    Deeds made in contemplation of death, as a distribution of his property, by the father of complainant, who, although upwards of 75 years of age and in ill health, had in mind his property, the disposition which he intended to make of it, and the persons entitled to his bounty, and who was able to transact other important business in a competent manner, are not shown to be invalid because of mental incompetency.
    3. Same — Expert and Opinion Evidence — Weight.
    Testimony of physicians, in reply to hypothetical questions, based on the extreme claims of a party and not supported in all respects by the preponderance of evidence, does not control the question of mental competency.
    4. Same — Estates of Decedents.
    The fact that a division of the parent’s property is not equal between children regarded with equal affection is not a sufficient ground to disturb the distribution.
    Appeal from Huron; Beach, J.
    Submitted June 15, 1909.
    (Docket No. 67.)
    Decided November 5, 1909.
    Bill by Dorothy J. Beadle against George D. Anderson and another to set aside certain deeds. From a decree for complainant, defendant George D. Anderson appeals.
    Reversed, and bill dismissed.

      Paul Woodworth (George W. Weadock and Miles J. Purcell, of counsel), for complainant.

      Olin Pengra (E. V. Ingersoll and De Vere Hall, of counsel), for appellant.
   McAlvay, J.

The bill of complaint in this case was . filed by complainant for the purpose of setting aside certain deeds of real estate in Huron county made during his lifetime by Darling Anderson, her father, to complainant and to her brother, George D. Anderson, principal defendant, on the ground that said deeds were procured by fraud and undue influence, and that at the time of making such deeds Darling Anderson was mentally incompetent. Defendants George D. Anderson and Janet G. Anderson answered the bill of complaint, denying all the material allegations, and the other defendants, minor children of complainant, by a guardian ad litem, answered pro forma, leaving complainant to her proofs. A hearing was had, and a decree granted setting aside said deeds on account of the mental incompetency of the grantor, Darling Anderson, at the time they were made, executed, and delivered, and “because said deeds were procured by undue and improper influence exercised over said grantor.” From this decree defendant George' D. Anderson has appealed.

Before stating the material facts in the case, it will be proper to state that there is no substantive evidence in the case tending to show in any particular that any fraud, undue, or improper influence was at any time exercised or attempted by defendants George D. Anderson and Janet G. Anderson, or any other person, to induce the making of the deeds sought to be set aside, or for any other purpose ; nor is there any circumstantial evidence in the case from which a reasonable inference could be drawn that undue or improper influence was exercised or attempted by any of said parties upon Darling Anderson. The question of undue influence will be considered as abandoned by complainant. We find from a reading of the entire record that the material question in the case is one of fact, relative to the mental competency of this grantor at the time these deeds were executed.

Darling Anderson and three brothers, all natives of Scotland, removed from the Province of Quebec to Huron county, Mich., in 1860, and settled upon farms near each other, and all remained upon the same farms or in the immediate vicinity until the happening of circumstances out of which this litigation arose in 1904. Darling Anderson was a man of integrity and ability, thrifty, and respected in the community where he resided. He was well educated, and kept himself well informed upon current events. He was strong-minded and self-reliant. He was prosperous and accumulated 440 acres of farm lands of the claimed value' of about $18,000. His family consisted of his wife and two children. They lived together happily, and he always treated his children with equal regard. They both married, and he built for each a suitable house upon his land, not far from his home, where they continued to live until his death. Complainant married first, about the year 1893, and with the exception of one year has lived in the house given to her, and her husband, William J. Beadle, has been employed by her father. The son has always been employed on these farms. The three brothers of Darling Anderson have always been men of good reputation, and prominent citizens in that neighborhood. All these brothers have been farmers, in comfortable circumstances, who have lived on the friendliest terms with each other without any estrangement or differences between them, occasionally visiting each other, and no differences have arisen between them and the wives and children of any of them. George Anderson was a notary public, quite experienced in drawing deeds and papers for people in that vicinity. He had been township treasurer for 20 years, and also had held the offices of supervisor and justice of the peace. Darling Anderson had always been a vigorous, healthy man during his whole life up to the age of 74 years. The record would indicate that he had never been seriously sick. Late in 1903 or early in 1904 he began to show signs of old age, and became at times quite sick. He had fainting spells, and in March, 1904, after one of these fainting spells, Dr. Johnson, a practicing physician of long experience, who had known him many years, was called to attend him. This was the first visit of a physician to him. The doctor made two more visits within the following few days. On May 25th following, Dr. McColl, a practicing physician of 13 years’ experience, was called. Before that time he had never seen the patient. He visited him afterwards, on May 27th and 30th, and on June 6th. He was next called and visited him on July 26th. Darling Anderson died August 15, 1904. These physicians are the only ones who saw him during his sickness. They were both called as witnesses in the case, and their testimony will be considered later.

On the evening of July 12, 1904, the son, George D. Anderson, was sent by his mother, at the request of his father, Darling Anderson, to request the three brothers to come to his house on the next day. The son did not know, and did not tell either of his uncles, what was wanted. On this same day complainant and her husband, Mr. Beadle, went on an excursion to Bay City, and returned the same night. The brothers came the next morning, as requested, at about 8 o’clock. They found him up and dressed, and were told by him that he wanted them because he wished to make a settlement of his property. He asked his brother George if he had brought any deeds with him, and was informed that he had, because he thought that this was what he wanted him for. This is the date, on which the deeds sought to be set aside in this suit were made and executed. Darling Anderson told his brothers the manner in which he wished to divide his property. Janet Anderson, his wife, was present. The first deed drawn was a deed of 200 acres of land to his son,'; George D. Anderson. The father dictated the description for this deed from memory, and directed the deed to be so drawn that he and his wife, Janet Anderson, should have a life estate in the land conveyed. The second deed was to his daughter, Dorothy Beadle. Tt appears that the father wanted a deed of 40 acres to be made to the children of Dorothy so it could not be squandered. The suggestion of George Anderson that to give her 80 acres during her lifetime and to her children after her death would accomplish the purpose, and make it impossible for the children, after arriving of age, to turn the parent out, was accepted by Darling Anderson, and a deed of 80 acres was so drawn. The third deed was to the son, George D. It was of 160 acres of land in Caseville township, directed to be deeded on the same conditions as in the first deed. Another deed was drawn by his direction on this date to John Howath, of 80 acres of land which belonged to him, but the title to which was held by Darling Anderson. He called attention to this matter, and requested his wife to get the deed for him. While these deeds were being prepared, complainant came into the room, said good morning, and asked her father how he felt. He answered her greeting, and said he was feeling all right. She remained a short time in the room. The son, George D'. Anderson, was at work in the field, and was in the house only at dinner time. The deeds were not completed at noon, and they all remained to dinner that day. Darling Anderson sat at the table and ate his dinner with them. As each of the deeds was completed the grantor’s signature was written by George Anderson, who did so at the request of Darling Anderson, who said his hand was unsteady. His wife, Janet Anderson, also signed these deeds, and they were witnessed and acknowledged. After these three deeds were drawn and signed, they were- delivered to George Anderson, with instructions by Darling Anderson relative to the recording and delivery of the same to the parties to whom they belonged. After his brother’s death he had these deeds recorded at once, and delivered them as he was instructed to do.

No witness in this case disputes any of the facts which have been stated so far in this opinion. It is claimed on the part of the complainant that the evidence of the lay and expert witnesses as to the mental and physical condition of Darling Anderson shows that at the time these deeds were executed he was mentally incompetent, and that such evidence clearly outweighs and overcomes all of the evidence of defendants to the contrary. The record of 350 pages contains the testimony of 40 witnesses. To digest and discuss this mass of testimony is not necessary. All of the evidence in the case is before the court,- and has been read and considered carefully. The serious objection to the admission of testimony, and the only one discussed in the briefs, relates to that given by complainant. Objection was made on the part of defendants that, as to matters equally within the knowlege of deceased, her testimony was incompetent by reason of the statute, which provides:

“When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.” Section 10212, 3 Comp. Laws, as amended by Act No. 30, Pub. Acts 1903.

The objection was well taken. This court has already construed this statute as applying to similar cases. Lloyd v. Hollenback, 98 Mich. 203 (57 N. W. 110); Bailey v. Holden, 113 Mich. 402 (71 N. W. 841); Great Camp K. O. T. M. v. Savage, 135 Mich. 459 (98 N. W. 26). All of her testimony prohibited by the statute was incompetent. This court will therefore exclude from consideration all such testimony, which includes all statements, made by her father to her or to others in her presence, all statements made by her to her father or in his presence, and all other matters which, if true, must have been equally within his knowledge. If the testimony of those who were present at the time the deeds in dispute were executed can be relied on, the only conclusion will be that Darling Anderson was mentally competent at the time. Neither the character, reputation, or veracity of any one of these witnesses is attacked. They were not interested witnesses. There is nothing in their testimony to indicate bias or prejudice. That the three brothers were sent for by Darling Anderson is not in dispute, nor that the deeds were made and executed as claimed. Some intimation is made that the cross-examination, particularly of the brother, George Anderson, discredits his testimony. Our examination does not disclose anything in his testimony to warrant such a conclusion. The peculiar characteristics of their nationality, particularly positiveness, terseness of expression, and seriousness, are strong in all of these brothers. That they were extremely loyal to each other is also apparent; but that their testimony was in any respect deflected from the truth cannot be inferred from this record. From this evidence we find that on the day in question Darling Anderson was physically strong enough to be up and about all day. There is no indication that he was exhausted by the effort to arrange his affairs to his satisfaction. He sat at the table, and took his dinner with the family and his brothers. The mental condition of Darling Anderson at this time is indicated by what he said and did, and what these brothers who had known him all their lives observed. That he had in mind his property, and what disposition he intended to make of it, is apparent. He told his brothers why he had sent for them, and asked George if he had brought blank deeds along. After hearing that the blanks were satisfactory, he stated the disposition he would make of his property. There were several descriptions of real estate which he owned, and he gave these correctly from memory, without assistance or suggestion. The details of making the deeds have been sufficiently described. He also had in mind those entitled to his bounty. While the deeds were being drawn he was examining various papers and giving directions as to their value, and the probability of collection. He went into minute details, which indicates that matters of comparative unimportance were receiving his attention. He also remembered that certain real estate in his name belonged to a friend, and caused a deed of it to be made out and executed. No act or statement of his made on that date indicates mental disability.

The principal witnesses on the part of complainant, other than medical experts, to show the weak physical and mental condition of Darling Anderson when the deeds were made, are complainant and her husband. That both are intensely interested is evident from their testimony and their relations to the case. From their testimony it would appear that from early in 1904 until the time of his death Darling Anderson was a physical and mental wreck, and totally incompetent to dispose of his property. . The force of their testimony is considerably broken by statements made by both of them on July 12th, the day before these deeds were executed, to friends at Bay City, that the father was better and would get around again. It also appears that the disposition which he had made of his property became known to complainant and her husband, and that they were dissatisfied and unsuccessfully importuned him to change it. It is undisputed that Mr. Anderson during that year was subject to fainting spells, becoming at times unconscious; that he would be taken suddenly and would fall down wherever he happened to be; that after such spells he would be for a time confined to his bed, and during fever would become delirious, but it is also clear from the record that these conditions did not continue during all of this period, but that, when Mr. Anderson was able to be up and around, his mind was clear, and that the delusions testified to were present only when he was confined to his bed. As already, stated, two physicians attended him, Dr. Johnson three times in March, and Dr. McColl three times in May, and once in July. IThe former had known him many years. The latter had never seen him before being called to attend him. It appears from Dr. Johnson’s testimony that he was first called to attend him after one of his fainting spells, when he had fallen down. He diagnosed the case as valvular heart trouble. He prescribed for him, and advised, on account of the condition of the heart, to keep him quiet and watch him when he was around because of his liability to fall; that the conditions responded to treatment; and that the patient was improved and growing better when he ceased these visits. He found no senile debility, and the mind of the patient was as clear as usual. The doctor says that the brain was affected by the poison which was not. thrown off by certain organs of the body; that this resulted from the weakness of the heart. He did not find any trace of Bright’s disease, although he made an analysis for it. He found the lungs somewhat congested, which he also attributed to the condition of the heart, as he would Bright’s disease, if it were present. His opinion was that between these recurrent attacks the patient would be competent to attend to any business. About 60 days after the last visit of Dr. Johnson, Dr. McColl visited Mr. Anderson three times, on May 25th, &7th, and 30th, and again once on June 6th, at which time he found the patient improved. He did not know his condition between the dates of the last two calls. He also stated that he would not be able to state whether on July 13th this patient would be able to appreciate what he was doing. His opinion was that at no time was the patient competent to transact business. These physicians do not differ materially in their diagnosis of the case, nor as to the effect of the disease upon the patient, except in degree, and the testimony of Dr. McColl can be reconciled with that of Dr. Johnson and the facts which are claimed to have occurred when the deeds were executed.

The testimony of the expert witnesses, to which complainant gives great weight, is all founded upon hypothetical questions based upon the extreme claims of the complainant as to Darling Anderson’s mental and physical" condition. Some of these conditions were not established by a preponderance of the evidence. These conditions were not any of them continuous for the six or seven months prior to his death. As already stated, they were recurrent, as the periods which intervened between the attendance of the physicians most forcibly imply. The bad spells were of short duration. The serious physical condition claimed, relative to the inability of the patient to retain secretions or excreta during the most of the time after his first illness, appears from the weight of the evidence to have occurred during but two or three weeks before his death. Our conclusion is that the evidence shows Darling Anderson at the time was mentally competent to execute these deeds and did so having in mind his property and those who were entitled to his bounty, and made such disposition of it as he desired and as is expressed in the deeds in dispute. The defendant Janet Anderson was not called as a witness. The consideration given by these children to the feelings of their mother is commendable. It is the exercise of a fine sense of the proprieties not always recognized.

As has been often stated, courts must recognize the intelligent and intended disposition the owner makes of his own property, whether or not it accords with what they would do under like circumstances. The fact that a division is not equal between children regarded apparently with equal affection is no sufficient reason to disturb a disposition of property so made, as has been many times declared. In the case at bar it appears sufficiently clear that Darling Anderson thought, on account of the ease with which his son-in-law accumulated debts, that the disposition made by him was sufficient for his daughter’s comfort, and the best to be made in order to insure her a home and the certain means of a reasonable support during her lifetime.

The decree of the circuit court is reversed and set aside, and a decree will be entered in this court denying the relief prayed and dismissing the bill of complaint, with costs of both courts to defendants.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


text:
    MILLS v. COMMON COUNCIL OF CITY OF LUDINGTON.
    Intoxicating Liquors — Licenses—Mandamus to Compel Issuance — Ordinances—Municipal Corporations.
    Mandamus will not issue to compel the common council of a city, which has, by an ordinance limiting the saloon district, prohibited the establishment of a saloon in the relator’s location, to approve his bond and issue a license for the continuation of his business, upon a counter showing by the municipality that his saloon had been previously conducted in a disreputable manner and that the relator was of bad character. Sherlock v. Stuart, 96 Mich. 193 (55 N. W. 845, 21 L. R. A. 580).
    Mandamus by William H. Mills to compel the common council of the city of Ludington to approve relator’s bond for the sale of intoxicating liquor.
    Submitted July 6, 1909.
    (Calendar No. 23,488.)
    Writ denied November 5, 1909.

      L. E. Carroll, for relator.

      Henry C. Hutton (Michael B. Danaher, of counsel), for respondent.
   Moore, J.

This is an application for a mandamus to compel respondent to approve the bond of the relator to continue in the retail liquor business at No. Ill West Ludington avenue, in the city of Ludington. In April, 1909, the respondent amended the ordinances of the said city with respect to the places where the retail liquor business-might be carried on, authorizing the conduct of such business at 18 different places, but not at No. Ill West Ludington avenue.

The ordinance contains eight different sections and legislates in relation to three classes of saloons. We quote a part of section 2:

“ Section 2. The locations within the city limits where saloons are herein classified may be conducted and maintained on payment of a license fee as hereinafter provided, are as follows: First class': Saloons in which the usual and unrestricted variety of drinks sold in the ordinary liquor saloon is dispensed by the glass and where cigars or tobacco are sold and used and miscellaneous crowds are allowed to congregate therein, and lounge about and smoke, eat or drink, and sit at tables, and play games or otherwise idly spend their time, may be licensed to carry on their business only at the following places within the limits of the city of Ludington.”

Then follow the places where these saloons may be maintained, and then “on payment of a license fee of $100 annually as hereinafter provided.” Saloons of the second class were required to pay a license fee of $10 annually. Saloons of the third class were required to pay an annual fee of $10 and $5 additional for each pool or billiard table or tenpin alley kept in connection therewith.

The return of the respondent is very long. Among other things, it contains the following:

“And the respondent shows to the court that in enacting the amendment to said ordinance it did not act unreasonably, unfair, capricious, or without warrant of fact or law, and denies that it arbitrarily and unjustly rejected the petitioner’s bond, and denies that in enacting such amendment it greatly injured and damnified the petitioner, or that in so acting it designed to injure or damnify the petitioner, but says that the amendment to the ordinance and its subsequent action in relation to the bond and license was had and taken in good faith and in the interest of public morals and order, and to prevent violations of the law and for convenience in enforcing the liquor laws. * * #

“Respondent denies that the petitioner has always been a law-abiding citizen of said city, as alleged in said petition, or that he is a man of good reputation, and denies that said petitioner has conducted the liquor business in said city in a proper manner. But, on the contrary, respondent says that the petitioner has been a violator of the law; that during the past two years, and during the time when he has been engaged in the liquor business in said building, he has been twice arrested for violations of the liquor law, on one of which occasions he was convicted and paid a fine on a plea of guilty. * * *

“The respondent, further answering said petition, denies that there are no side rooms, stalls, or partitions in said building so used as a saloon, or that the rear part of the same can be readily seen from the street, but says that the view is obstructed by screens in front thereof, and that there is built into the side of said building, and in the back -part thereof, very large, high, cushioned seats, facing each other, in the nature of stalls, except that the entrance thereto is open; that any one seated therein cannot be seen, unless the observer should stand near the entrance to the same; '* * * that the building in which the saloon of the petitioner is located is a double building, and that the petitioner is the proprietor of a billiard and pool room, in which there is a bowling alley, and said business is carried on in the room or part of the building just east of and adjoining the petitioner’s saloon; that in said billiard room there is also a cigar stand; * * * that this billiard, and pool room and bowling alley is resorted to and frequented by minors and school children, and that said room is open Sundays and on legal holidays; that there is a back door to the billiard room, convenient to the back door of the saloon, both of which doors open on an alley; that the upstairs or second floor of the building is run as a rooming house for men, advertised by the petitioner as a ‘stag hotel,’ one of the rooms of which the petitioner was in the habit of using for saloon purposes in the sale of intoxicating liquors on legal holidays and after hours; that there is both aback and front entrance by stairs leading to the second floor, making the same easy of access from the street and alley.

“Respondent shows that this condition of the building made the violation of the liquor law easy, and hard to detect, and this respondent shows, upon information and belief, that intoxicating liquors were by the petitioner frequently taken from his saloon below and sold in his rooms above, contrary to law, and that such sales were made upon legal holidays and on Sundays in violation of law; * * * that the billiard and pool room of the petitioner is frequented by young men on legal holidays and after hours, to wit, after the hour when by law the saloon of the petitioner is obliged to be closed, and that the proximity of the back door of the billiard room to the back door of the saloon renders it easy to gain an entrance to the saloon after hours; * * * that upon these considerations, and because there were too many saloons in the vicinity of this location, and because a saloon in such location was a nuisance, it was considered that the premises of the petitioner was not a fit place in which to lodge a business so destructive to the public morals of the city, and in which the law might be so easily and was so frequently violated, and thereupon the ordinance of the city was amended, prescribing locations suitable for saloons in said city, which did not include the location of relator and certain other locations where saloons had been kept.”

It is the claim of relator that the action of the respondent is invalid, under Kenaston v. Riker, 146 Mich. 163 (109 N. W. 278), and Fitzpatrick v. Weaver, 147 Mich. 382 (111 N. W. 163). An examination of those cases will show they are easily distinguishable. The case before us is within the principles announced in Sherlock v. Stuart, 96 Mich. 193 (55 N. W. 845, 21 L, R. A. 580). The action of the respondent was clearly within its powers.

The writ of mandamus is denied, with costs.

Blair, C. J., and Grant, MoAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    ULLMAN v. SANDELL.
    1. Mandamus — Municipal Corporations — Payment op Warrants.
    When a demand against a municipal corporation is liquidated and evidenced by a proper warrant for its payment upon a proper officer having sufficient funds, its payment may be compelled by mandamus.

      J2. Same — Garnishment—Transfer of Warrant.
    Mandamus does not lie to compel a township treasurer to pay to the indorsee holding a township warrant the amount thereof after a judgment entered against the township in a garnishment proceeding involving such claim, to which the original payee was a party.
    3. Same — Townships—Warrants.
    A township treasurer can disburse funds only on a proper warrant, title to which can only be transferred, so as to protect the officer, by indorsement.
    4. Same.
    The liability of the township to an undisclosed principal of the payee named in a warrant cannotiproperly be tried in a proceeding between an indorsee thereof and the township treasurer.
    Certiorari to Gogebic; Cooper, J.
    Submitted October 5, 1909.
    (Calendar No. 23,399.)
    Decided November 5, 1909.
    Mandamus by Joseph Ullman, Daniel L. Ullman, and Gabe Ullman, copartners as J. Ullman & Company, to compel Andrew Sandell, treasurer of Ironwood township, to pay the amount of an order. An order denying the writ is reviewed by .relators on writ of certiorari.
    Affirmed.

      Julius J. Patelc, for relators.

      Curtis Buck and George O. Driscoll, for respondent.
   Ostrander, J.

The writ of certiorari is directed to the circuit judge. It was allowed upon the affidavit of the attorney for relators, in which affidavit is set out that it is made to procure a writ of certiorari in aid of a writ of error, which had already been sued out of this court by relators. It purports to set out the substance of all testimony introduced at the hearing in the court below. No notice of the issuing of the writ of certiorari was given to •counsel for the appellee, until after the .writ had been returned. We assume this fact because the printed record contains such a notice, dated June 26, 1909. The fact is also asserted by counsel for the respondent. The writ issued June '¡', 1909. It appears from matter incorporated in the printed record that the writ of error was dismissed by relators, or was attempted to be dismissed, without leave of the court. The return made by the circuit judge is a brief statement of the issues presented in the mandamus proceeding, and the manner in which they were determined, and it certifies, in substance and effect, the authenticity of the petition for mandamus, the order to show cause, the answer, the statement of issues framed, and the judgment entry, all of which are annexed to the return. The issues which were framed were:.

“(1) Was the order duly audited and allowed by the township board ?

‘ ‘ (2) Are the relators the owners of the interests of Erick Norman and Sinna Norman, whatever they were in said order ?

“ (3) Do the relators hold said order for the benefit of Erick Norman ?

“ (4) Is the garnishee judgment valid ? ”

Concerning the first three, it is certified they were answered, respectively, “Yes,” “ Yes,”and “No,” and that. “ considerable testimony relating to the same was submitted by both parties.” This is not an authentication of the statement of the testimony contained in the affidavit for-the writ of certiorari, the correctness of which is challenged by respondent. Aside from such statement, which we cannot consider, we find in the record nothing to indicate, that Sinna Norman had, or claimed to have, any interest, directly or indirectly, in the warrant or the fund, except, a notice produced in the disclosure of the garnishee defendant, which will be referred to later.

The proceeding was instituted to compel respondent, a township treasurer, to pay a certain warrant, issued and delivered by the commissioner of highways of Ironwood. township, Gogebic county, upom the treasurer of the township, to pay to Erick Norman, or order, $355.50 “out of the highway fund for contract on road.” It was countersigned by the township clerk. 2 Comp. Laws, §§ 4214, 4215. On the day it was dated (October 7, 1907) it was presented by the payee for payment to the respondent, and payment was refused because on that day, and shortly before the warrant was presented, the township had been garnished as the debtor of the said Erick Norman. The refusal and the name and office of the deputy township treasurer were indorsed upon the order. The title to the warrant asserted by the relators, plaintiffs in certiorari, in the petition for a mandamus is that it was transferred to them by indorsement and that on August 29, 1908, they caused it to be presented to respondent for payment, and payment was refused because a judgment had been theretofore rendered against the township as garnishee of said Erick Norman at the suit of William Neman. It is alleged that this judgment was rendered October 23, 1907, is unpaid, and is void, furnishing no reason for not paying the warrant.

The sole ground of attack upon the judgment which is stated in the brief for relators is that the garnishee disclosed that a notice, purporting to be signed by Sinna Norman, by Julius J. Patek, her attorney, to the effect “that the contract heretofore made and entered into with you by Erick Norman to perform work and labor upon the roads and highways of said township was made and entered into by him, for and on behalf of the undersigned, and that the teams used in the performance of such work and labor were and are owned by the said undersigned, and that the persons engaged in and about the performance of the same were, the employes of the undersigned, and that the amount now due from you for the said work and labor of said employés and teams of the undersigned was at all times and now is due her, and not to the said Erick Norman, and that your order dated the 7th day of October, 1907, signed by Thos. Saari, commissioner of highways of Ironwood township, and countersigned by Chas. Anderson, township clerk, bearing No. 399, and being for the sum of $355.50, and payable to the said Erick Norman, or order, at all times since the issuance thereof has been, and now is, the property of the undersigned, and that the undersigned looks to you for the full value of said work and labor as evidenced by said order” — had been on October 16, 1907, served upon the township, and that the justice of the peace having jurisdiction did not give notice to Sinna Norman, under provisions of 1 Comp. Laws, § 1017. It is said:

“ The only question involved on this record is whether the judgment of the justice of the peace is such a valid and binding adjudication upon the rights of Sinna Norman and her assignees in and to the fund represented by said township order as to prevent relators from recovering, irrespective of the fact that their rights accrued prior in time to the issuance and service of the pretended garnishment process. The lower court held that it was, and for that reason denied the writ of mandamus. In this he was clearly in error.”

No money was paid into court. The principal defendant appeared by Julius J. Patek on the return day. The plaintiff in garnishment, who was at the time a judgment creditor of Erick Norman, later declared against the township, and, testimony having been offered, a judgment against the township for $241.60 and $6.80 costs was rendered. No appeal was taken. The learned circuit judge was of opinion that prior to the enactment of Act No. 172, Pub. Acts 1901, the judgment would have been a nullity, because the garnishee did not disclose an absolute liability, and 1 Comp. Laws, § 1017, did not apply because no money was paid into court.

“That the said Act No. 172 of the Public Acts of 1901 changed the rule that a garnishee disclosure was final, and allowed the matters disclosed to be controverted by the plaintiff, and a trial had, the same as if the garnishee was being sued by the principal defendant for the matters set forth in the declaration, which the plaintiff is permitted to file; and, it appearing from the record of the said garnishee judgment that a declaration had been filed against the garnishee defendant, witnesses sworn, and a trial had upon the issues tendered by such declaration, that it must be presumed that upon such trial it was shown to the satisfaction of the justice of the peace that the money was not claimed by Sinna Norman, * * * and that, as these proceedings in mandamus are a collateral attack upon said judgment, said presumption must prevail.”

It is not necessary to approve or disapprove the reasons so given for holding the judgment in garnishment to be a valid judgment. The judgment is not, upon its face, void, whatever the effect of the act of 1901 may be thought to be. When a demand against a municipal corporation is liquidated and evidenced by a proper warrant upon a proper officer, requiring upon the part of such officer the official action of paying it, such action, there being funds, may be compelled by mandamus. But it is not the clear legal duty of a township treasurer to pay such a warrant to the payee and holder thereof when the township has been summoned as garnishee of such payee and holder, nor thereafter to pay it to one who acquires it by indorsement, the garnishment proceedings having passed into a judgment against the township. Whether the judgment in garnishment is a bar to the rights of relators is not a matter which ought to be determined in a proceeding between them and the respondent. We understand that the court below did not determine whether Sinna Norman had any right to the fund. The liability of the township to an undisclosed principal of one who contracts to perform public work is not a question which ought to be tried in a proceeding between a holder of a warrant issued to the contractor pursuant to the contract and to law and the disbursing officer of the township. Respondent could not have properly paid the money to her, or to any person other than the payee, except upon the order of the payee, because he can disburse funds only upon proper warrants. The title relators assert is a title by indorsement to a warrant for money. Title by indorsement, for the purposes and protection of respondent disbursing officer, means title by indorsement of the payee.

The order refusing the writ of mandamus is affirmed, with costs to respondent. .

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    HICKS v. J. B. PEARCE CO.
    1. Equity — Injunctions—Degrees—Motion to Dismiss — Appeal and Error.
    After the filing of a bill for an injunction and. the issuance of a restraining order prohibiting the defendants from selling certain personal property on a chattel mortgage, the court required a bond to be filed as a condition of the continuance in force of the temporary order, and subsequently dismissed the bill for failure to file the bond, the sale having taken place. On motion to dismiss the appeal, on the ground that the relief prayed could not be awarded because the sale had been accomplished, an order dismissing the appeal should be granted.
    2. Same — Res Ad judicata — Questions Involved.
    Such dismissal of the bill of complaint determines- only the right to injunction.
    Bill by Wilson H. Hicks and another against the J. B. Pearce Company and another to restrain a sale on the foreclosure of a chattel mortgage: On motion to dismiss an appeal from a decree dismissing the bill.
    Submitted September 21, 1909.
    (Calendar No. 23,552.)
    Motion granted November 5, 1909.

      Wade Millis, for the motion.

      Firmón Lush, contra.

   Montgomery, J.

This is a motion to dismiss an appeal from a decree of the court below dismissing the complainants’ bill. The defendant Pearce held a mortgage upon personal property. The defendant Whitney was the agent of the Pearce Company. On the 20th of December, 1907, Whitney, acting for the company, took possession of the property covered by the chattel mortgage, and appraised the same, and proceeded to advertise the sale thereof. Complainants thereupon filed this bill to restrain the sale; that being the sole purpose of the bill. A temporary restraining order was issued; but a motion was immediately entered to vacate the restraining order, and on the 27th of December, the circuit judge made an order requiring the appellants to file a bond to pay the indebtedness within 24 hours as a condition to a continuance of the order in force, and providing that upon failure to do so, the bill of complaint should be dismissed. The bond was not filed, and on the 28th of December the sale occurred as advertised. On the 7th of January, 1908, attention of the court was called to the fact that the bond had not been filed, and an order made dismissing the complainants’ bill of complaint.

It is stated in 2 High on Injunctions (4th Ed.), § 1701 a:

“ Where an appeal is taken from an order dissolving or denying a preliminary injunction, or dismissing the bill, and, pending the appeal, the act sought to be restrained has been accomplished, that fact, upon being brought to the attention of the reviewing court by motion, supported by affidavit, affords sufficient ground for dismissing the appeal.”

See, also, Street R. Co. of East Saginaw v. Wildman, 58 Mich. 286 (25 N. W. 193).

It is suggested that the decree dismissing the bill constitutes an adjudication. It is true the decree dismissing the bill was in the ordinary form and contained no reservation of rights; but we do not understand that this was an adjudication of anything more than that the complainants were not entitled to relief by injunction. It does not con-elude complainants in a suit at law from recovering damages, if the terms of the mortgage were not such as to justify the action taken by the defendants. We see no purpose that could be served by continuing this case in court.

The order prayed for will be granted.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Grant, J.

text:
      In re MILLS’ ESTATE. APPEAL OF MILLS.
    1. Estates oe Decedents — Probate Courts — Petition to Reopen Account — Executors and Administrators.
    A petition in probate court to order a rehearing of an administrator’s final account is properly allowed on a showing of mistake or fraud. Act No. 371, Pub. Acts 1905.
    3. Same — Appeal to Circuit — Reasons.
    An appeal from probate court on the sole ground of want of ■ jurisdiction does not permit a consideration of the merits in the circuit.
    Error to Eaton; Smith, J.
    Submitted October 5, 1909.
    (Docket No. 5.)
    Decided November 5, 1909.
    Petition by Mae Mills Hulbert for a rehearing on the allowance of the final account of Myron Mills, deceased. The petition was granted, and the administrator appealed to the circuit court. An order dismissing the appeal is reviewed by said administrator on writ of error.
    Affirmed.

      A. Elwood Snow, for appellant.

      Joseph B. Hendee (Hnggett & McPeek, of counsel), for appellees.
    Appellant, Myron Mills, was the administrator of the estate of Frank B. Mills, deceased. On April 2, 1907, he presented his final account to the probate court, and asked for its allowance. It appears from the record that on the same date an order was entered allowing the account. The statement is made in appellant’s brief that the probate court made an order fixing a date for hearing, and directed notice thereof to be given by publication in a newspaper published in the city of Charlotte. This statement is not denied in appellee’s brief. We, therefore, assume that there is a clerical mistake in the dates above mentioned, and that due notice of the hearing was given. On June 18th following the widow of deceased filed a petition with the probate court, stating that she did not learn of the filing of this final account, or of the hearing thereon, until shortly before the filing of her petition. She prayed for a rehearing of said final account, and that notice be given the administrator and other parties interested, who were named in her petition. In her petition she charged that the administrator had not paid her the sum of $82, balance of the amount due her as the widow of the deceased, under an order of the probate court. She further charges that he had filed no account for a portion of the assets of said estate, and that the account, in several particulars, was so indefinite, uncertain, and irregular as to make it impossible to determine for what various items the disbursements therein charged were made; and that some of the charges were excessive, irregular, and illegal and a fraud upon said estate, and that no proper vouchers showing the disbursements were filed with the account. She further charges that he had paid an exorbitant and excessive sum, $800, to an attorney for alleged- services rendered the estate.
    The probate court entered an order fixing a date for hearing her petition, due notice whereof was served on the administrator. The administrator filed no answer or other pleading, and upon the date fixed for the hearing the parties appeared by their respective attorneys. The probate court made an order granting a rehearing, reciting that he made the order after a full hearing and examination in the premises, and finding that there were evidences of irregularities, unwarranted and improper charges, a payment of a claim disallowed by the commissioners, and failure upon the part of the administrator to properly account for the funds of the estate. A date was then fixed for the hearing of the final account, and certain changes made therein against the administrator. From that order the administrator appealed to the circuit court, alleging as his reason for said appeal that—
    “The said probate court had made an order on April 2, 190?, allowing final account of administrator, and had no authority to modify or set same aside, as said court assumed to do on July 15, 1907, and, further, assumed, in an order made on September 4, 1907, to modify the order allowing final account of administrator and disallowing certain items in said final account aggregating the sum of $300 and upwards, and charging said administrator interest on certain moneys collected by him as administrator.”
    The circuit court dismissed the appeal, and the order of the circuit court is now before us for review.
   Grant, J.

{after stating the facts). The petition in this case was filed under Act No. .271, Pub. Acts 1905. By that act the law was amended, giving to the probate courts the right to modify and set aside their orders, sentences, and decrees upon a petition therefor made within 90 days of the original hearing, or of the entry of such order, sentence, or decree. Prior to this act probate courts had no authority to set aside or modify their decrees. The sole remedy was by appeal to the circuit court. The position of the appellant is that the probate court has no jurisdiction to entertain a petition without a showing of fraud, accident, or mistake, and insists that the petition does not allege either of these requisites. Whether the statute should receive the construction insisted upon by appellant it is unnecessary to determine. The petition alleges facts, which, if true, are either the result of a mistake or fraud. The allegations of the petition are therefore sufficient, and the court has found that they were sustained by the evidence. The evidence upon which he based his conclusions is not in the record.

The order of the circuit court dismissing the appeal was entered May 21, 1908. On July 9th following, the administrator made a motion to grant a rehearing and a new trial because he had not had a hearing on the merits. The motion was denied, holding that the sole reason stated in the petition for the appeal was that the probate court had no authority to modify or set aside his previous order, allowing the final account. The statute regulating appeals from probate courts requires the appellant to state the reasons for the appeal. He can urge no other reason upon trial in the appellate court. In re Ward’s Estate, 152 Mich. 218 (116 N. W. 28). The jurisdiction of the probate court was the sole question submitted in the appellate court. The appellant did not appeal from the merits.

The judgment is therefore affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    HAAS v. MALTO-GRAPO CO.
    Appeal and Error — Stare Decisis.
    The questions involved in this appeal are determined and concluded by the decision on a former appeal; Haas v. Malio-Cfrapo Co., 148 Mich. 858 (111 N. W. 1059).
    Error to Van Burén; Des Voignes, J.
    Submitted October 15, 1909.
    (Docket No. 93.)
    Decided November 5, 1909.
    Assumpsit by W. E. Haas against the Malto-Grapo Company, Limited, for breach of a contract of employment. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Thomas J. Cavanaugh and Benjamin F. Heelcert, for appellant.

      Anderson & Warner, for appellee.
   Grant, J.

The contract and issue involved in. this litigation are fully stated in 148 Mich. 358 (111 N. "W. 1059). Upon a new trial the jury rendered a verdict for the plaintiff for $251.32. The defendant, alleging error, has brought the case to this court for review.

In the former opinion the contract was construed, and the court established rules upon which the case should be submitted to the jury upon a new trial. The learned judge submitted the case to the jury in strict accordance with the opinion of this court. All the items now challenged by the defendant were challenged and involved in the former trial. Counsel for defendant have not, either in their brief or oral argument, stated wherein the record now before us differs from the former record. It appears that there was some additional testimony, but of the same nature and character as that given upon the first trial. The new testimony in no respect changes the rule of law. All'the questions involved in the former suit are stare decisis, and examination of the two records convinces us that the issues were the same, and the testimony was in no essential particular different. It is therefore unimportant to enter upon a discussion of the points now raised. They are all disposed of in accordance with the former opinion.

The judgment is therefore affirmed.

Blair, C. J„ and Moore, McAlvay, and Brooke, JJ., concurred.