text:
    LYLE v. CASS CIRCUIT JUDGE.
    Mandamus — Judicial Discretion — Change oe Venue — Appeal and Error.
    The denial of a motion for change of venue on the ground of local prejudice will not be reviewed and the change of venue compelled on mandamus, since a case involving an abuse of discretion is reviewable on writ of error.
    Mandamus by Frank W. Lyle and Ira B. Gage to compel L. Burget Des Voignes, circuit judge of Cass county, to grant a change of venue.
    Submitted February 16, 1909.
    (Calendar No. 23,232.)
    Writ denied May 26, 1909.

      James H. Kinnane, Dallas Boudeman, and J. JBJ. Kinnane, for relators.

      Thomas J. Bresnahan and M. L. Howell, for respondent.
   Hooker, J.

The relators were charged with conspiracy under an information duly filed. They moved for a change of venue upon the ground of local prejudice, which was denied, and they now ask us to compel the circuit judge to vacate his order and make another, i. e., one granting the motion. Were it competent for us to review his conclusion upon the merits, I should reach a different conclusion from his, but I think that it is not.

A cardinal principle in mandamus is that judicial action will not be reviewed. We may compel a judicial officer to proceed, hear, and decide; but we can neither dictate his determination in advance nor review it after it is made. We held in People v. Wayne Circuit Judge, 1 Mich. 359, that:

“A mandamus will be allowed to set an inferior court in motion, but not for the purpose of requiring it to come to any particular conclusion, or of retracing its steps where it has already acted, and this irrespective of the question whether the party has or has not another remedy.”

In U. S. v. Lawrence, 3 Dall. (U. S.) 42, it was unanimously held that:

“ Although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment but his own.”

And in Ex parte Hoyt, 13 Pet. (U. S.) 290, that:

“It has been repeatedly declared by this court that it will not, by mandamus, direct a judge what judgment to enter in a suit, but only will require him to proceed to render judgment.”

In the case of People v. Dutchess Judges, 20 Wend. (N. Y.) 658, Bronson, J., said:

“ This presents an important question in relation to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication, and the question is whether we can, by mandamus, require that court to undo what it has done, on the ground that the decision was erroneous. I am of opinion that we possess no.such power. I shall not stop to inquire whether the order quashing the appeal was such a final judgment upon the rights of the parties as may be reviewed by writ of error, nor whether the relator has any other remedy. Commonwealth v. Judges of the C. P., 3 Bin. (Pa.) 273. I place my opinion upon the broad ground that the writ of mandamus cannot be awarded for the correction of judicial errors. This court, in the exercise of its supervisory power over inferior tribunals, can require them, by mandamus, to proceed to judgment; but we cannot dictate what particular judgment they shall render. Much less can we require them to retrace their steps and reverse a decision already made. Although ministerial officers and corporations may be required by this writ to act in a particular manner, or even to reverse what they have already done, the rule is otherwise in relation to courts of justice and other bodies acting judicially, upon matters within their cognizance. Their errors, if corrected at all, must be reached by some other process than the writ of mandamus.”

See, also, People, ex rel. Parker, v. Calhoun Circuit Judge, 24 Mich. 408; People, ex rel. Wells, v. St. Joseph Circuit Judge, 39 Mich. 21; George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511 (99 N. W. 748). Many other cases might be cited.

The circuit judge did not refuse to hear and decide the motion. He passed on this question judicially. It was a discretionary question to be tried on affidavits, and such will not ordinarily be reviewed. Johr v. People, 26 Mich. 427, and cases cited in note 1. In Greeley v. Stilson, 27 Mich. 153, 154, we applied this rule to a motion for change of venue, holding that, being discretionary, the decision was not reviewable. The doctrine that a judge’s discretion is not reviewable in any manner is an ancient and well-established rule. Mayor, etc., of Detroit v. Jackson, 1 Doug. (Mich.) 106. It was stated in People v. Wayne Circuit Judge, 1 Mich. 359, and reiterated in Dibble v. Rogers, 2 Mich. 405. Bourke v. James, 4 Mich. 336; Crippen v. People, 8 Mich. 117; Cuddy v. Major, 12 Mich. 368; Van Renselaer v. Whiting, 12 Mich. 449; Pennsylvania Mining Co. v. Brady, 14 Mich. 260; Final v. Backus, 18 Mich. 218; People v. Wayne Circuit Judge, 20 Mich. 220; Davis v. Bush, 28 Mich. 432; Polhemus v. Savings Bank, 27 Mich. 44. In the latter case we went so far as to say that a decision of such a question would not be reviewed, although the ground of refusal was the mistaken one of lack of power.

Now, if it be said that these cases mean only that discretionary action cannot be reviewed by writ of error, a limitation which the cases do not warrant, we cite the following cases which hold that mandamus will not lie: People v. Wayne Circuit Judge, supra; People, ex rel. Parker, v. Calhoun Circuit Judge, supra; People, ex rel. Wells, v. St. Joseph Circuit Judge, supra; St. Clair Tunnel Co. v. St. Clair Circuit. Judge, 114 Mich. 417 (72 N. W. 249). If there has been any modification of this rule, it has been based upon the claims:

(1) That the ground upon which the judicial decision sought to be reviewed was based is clearly shown to have been an error of law.
(2) That the judge whose determination of facts is sought to be reviewed has been guilty of an abuse of discretion.

That in mandamus cases there has been a tendency to ask relief on both of these grounds is probably true. Perhaps some writs have issued. We have cited Polhemus v. Savings Bank, 27 Mich. 44, as a case holding that such an order would not be reviewed, although the decision below was the erroneous belief of a lack of power. Mr. Justice Graves said:

“The objections which seem to be chiefly relied on relate to and grow out of the action of the court upon an application by the plaintiff in error for leave to amend by putting in an affidavit denying the execution of the note.
The return to the writ of error embraces a bill of exceptions, and we also find included this motion, the affidavits and exhibits connected with it, and the decision of the court in denying it. These proceedings are also embodied in the bill of exceptions. The motion appears to have been made some four months after the plea, and to have been decided about six weeks after it was made. In passing upon it the court declared that it had no power to grant it, and therefore refused it without considering the merits, and the plaintiff in error excepted.
“We think the court misapprehended the meaning of the rule in supposing a lack of power to grant or refuse the motion according to its view of the real merits of the application. The rule as framed was intended to leave a discretionary authority to be exercised as the justice of particular cases should require, so that parties could be let in after pleading, upon good cause. The motion, then, was really an appeal to the discretionary power of the court below, and might have been granted or denied upon the merits in the exercise of that power. If the court had acted upon that view, if it had denied the motion upon the merits, instead of doing so upon the ground that it lacked power to grant it, then according to the established course in this State and that generally prevailing elsewhere, the ruling could not have been reviewed upon writ of error. Can the ground on which the court placed the denial of the motion be so separated from the denial itself as to present a case entitled to review on writ of error when otherwise none would exist ?
“We think not. In the first place, it may be observed that, if the motion itself and the decision made upon it are regularly before us as constituents of the record, the affidavits and exhibits connected with it are necessarily before us also; and we are therefore in a situation to ascertain what it would be our duty to ascertain, whether the court in denying the motion upon the mistaken ground of a lack of power in the abstract^ to grant it, committed a fault which in legal contemplation was prejudicial to the plaintiff in error. Now these papers cannot be read without seeing that the fate of the motion must have been just the same if the court had decided on the merits. The plaintiff in error was consequently not prejudiced by the erroneous reason given for the denial of his motion. But we think the ruling upon the motion on whatever ground placed is not one properly open to review upon writ of error.
“The rules devised for judicial investigations are undoubtedly aimed to promote the ends of justice, but they are necessarily subject to those infirmities which beset all human regulations. They cannot be so nicely contrived or so multiplied as to meet all necessities or to operate always according to the exact purpose of their institution. A perfect system would supply a definite and unmistakable rule in advance, applicable to every contingency, and would leave nothing to discretionary action; but every day’s experience teaches that such degree of perfection is unattainable. We know that the litigation carried on in courts involves a class of questions not amenable to any unbending preordained rule, and that many, if not most, of these questions, could not be specifically or definitely provided for beforehand by absolute regulations without making our system so cumbrous and complicated as to be incapable of being carried out. These matters must therefore be settled, as they arise, by the tribunal in which they occur, according to the dictates of sound judicial discretion. The law, upon grounds of public policy and general utility, commonly allows a re-examination of such matters in some form and at some stage in the same tribunal, but on the same grounds generally disallows a revision elsewhere. The welfare of society requires, of course, that there should be given reasonable opportunity for the hearing and decision of questions; but it likewise requires that limits should be set to litigation, and of this the law has taken clear notice in one of its settled maxims, and in many other ways.
“ It has also taken notice that there are questions which cannot be made the subject of review in an appellate court without derogating from the independence and authority due to the tribunal where they arise; and others still, which from their nature cannot be intelligently and safely re-examined except in the court where they originate.
“But, in addition to these, there has always been a mass of practice questions which the law, upon grounds of general utility and practical necessity, has considered as not properly appealable to another tribunal. It has been wisely deemed that permission to litigants to carry cases up for review upon each and every of the points ruled in matters of practice and routine would well-nigh make litigation endless, and, instead of favoring justice, would promote injustice. Passing from these general and somewhat trite observations to the actual case before us, we observe that the true subject of complaint by the plaintiff in error on this record is the final result of his motion and not the peculiar view of the court which led to it. McClung v. Silliman, 6 Wheat. (U. S.) 598; United States v. Buford, 3 Pet. (U. S.) 12; Davis v. Packard, 6 Pet. (U. S.) 41; Corning v. Troy Iron & Nail Factory, 15 How. (U. S.) 451; Sturgis v. Clough, 1 Wall. (U. S.) 269.
“If the motion had been granted in disregard of the merits on the mistaken supposition that some rule imperatively required it to be granted on being asked for, no one would imagine that the erroneous reason could be distinguished from the actual determination so as to serve as a distinct ground of error for the plaintiff in error, and, if a wrong reason for a favorable decision could not be thus separated and distinguished from the actual result, it is not perceived how a wrong reason for an unfavorable one can be.
“The objection, then, must he considered as founded on the refusal of the motion, and not on the motive which led to that refusal, and considered in that light it seems manifest, according to the uniform course of decision, that the proceeding was one belonging to the practice and discretionary authority of the court below, not regularly re-examinable on writ of error, and certainly not when not shown to have been decided in clear opposition to the merits. Mayor, etc., of Detroit v. Jackson, 1 Doug. (Mich.) 106; Millerd v. Reeves, 1 Mich. 107; Lee v. Hardgrave, 3 Mich. 77; Bourke v. James, 4 Mich. 336; Holbrook v. Cook, 5 Mich. 225; Chaffee v. Soldan, 5 Mich. 242; Crippen v. People, 8 Mich. 117; Tefft v. McNoah, 9 Mich. 201; Ripley v. Davis, 15 Mich. 75; Pearsons v. Eaton, 18 Mich. 79; Final v. Backus, 18 Mich. 218; 2 Abbott’s U. S. Practice, p. 230, and notes.
“If the granting or refusing of an interlocutory motion can be so worked into the record as to authorize error to be assigned on it, by a mere statement in the decision like that made by the court below in this instance, then the common-law composition of the record and the generally admitted scope of a writ of error can be entirely changed by what in time will become a mere form, and the whole swarm of rulings upon pure practice questions and on points rightly and strictly depending on mere judicial discretion will be brought here for review; but we are satisfied that no such jurisdiction is conferred or ought to be.”

See, also, Browne v. Moore, 32 Mich. 254, and Chicago, etc., R. Co. v. Edson, 41 Mich. 673 (3 N. W. 176), which followed the Polhemus Case. This question was discussed, in the writer’s opinion, in the case of Pratt v. Montcalm, Circuit Judge, 105 Mich. 502 (63 N. W. 506). It is true that his associates found it unnecessary to pass upon the question, and it was left undecided, but it was approved and followed in the case of St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249). This case has been followed many times, as will be seen by consulting the Citator. That a motion for a change of venue invokes discretionary judicial action admits of no doubt. For convenience we incorporate some citations found in Cyc. showing the prevalence of the doctrine that mandamus will not lie to such orders for that reason. People v. Hubbard, 22 Cal. 34; People v. Church, 103 Ill. App. 132; Galbraith v. Williams, 106 Ky. 431 (50 S. W. 686); State v. McKee, 150 Mo. 233 (51 S. W. 421); State v. Wilson, 12 Ohio Cir. Ct. R. 636; Newlin's Petition, 123 Pa. 541 (16 Atl. 737); Town of Danville v. Blackwell, 80 Va. 38; Greeley v. Stilson, 27 Mich. 153. See, also, Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 371 (42 N. W. 968); Cofrode v. Wayne Circuit Judge, 79 Mich. 349 (44 N. W. 623, 7 L. R. A. 511). In the opinion cited (Pratt v. Montcalm Circuit Judge, supra) we said that a discretionary order was only reviewable upon error if at all. See Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814).

Another rule equally well established is that mandamus will not lie where there is a remedy by appeal or writ of error, and that it would not lie to a motion for change of venue. A long list of cases arising upon such applications will be found in 26 Cyc. 'p. 203, note 65. Numerous cases in Michigan support the underlying rule. See Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), where a lack of uniformity was recognized and the rule settled, and the case of St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249), where we say:

“ If it was within the discretion of the circuit judge to allow the amendment to the declaration, his discretion should not be reviewed. If it was not within his discretion, because of want of power to make the order, or if his discretion was abused, as we have before seen, his action can be reviewed by writ of error.”

If it be true that a discretionary order should be reviewed upon one or both of the grounds first mentioned, it does not require a writ of mandamus to accomplish it, for no one can doubt that the court might as readily reverse discretionary action appearing in the record on error as by mandamus. Those cases which say that such orders cannot be reviewed on error are not aimed at the propriety of the method taken for review, but at the question “whether they can be reviewed in any way.” We held that interlocutory matters might be brought into the record by bill of exceptions in the case of Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692). Many such orders have been so considered, and among them some relating to change of venue. Campau v. Dewey, 9 Mich. 381; People v. Peterson, 93 Mich. 27 (52 N. W. 1039); People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865); People v. Swartz, 118 Mich. 292 (76 N. W. 491); Shannon v. Smith, 31 Mich. 451. In Hosford v. Gratiot Circuit Judge, 129 Mich. 302 (88 N. W. 627), we refused to review a denial of a clear right in a criminal case, saying:

“ The court was certainly in error under the case above cited, and should have granted the motion. This, however, is not the proper .proceeding to raise the question. We have steadily refused to entertain motions to review interlocutory orders of courts in both civil and criminal cases, and cannot make this an exception.”

The case of Steel v. Clinton Circuit Judge, 133 Mich. 695 (95 N. W. 993), is another case arising upon an interlocutory order, where many authorities are cited. See, also, Roberts v. Lenawee Circuit Judge, 140 Mich. 115 (103 N. W. 512); Chatfield v. Lenawee Circuit Judge, 140 Mich. 637 (104 N. W. 45). In Geddis v. Wayne Circuit Judge, 151 Mich. 123 (114 N. W. 874), we again said:

“Whether it is such an abuse of discretion as would be ground for a reversal of a possible judgment, on error, we need not determine, as the case is not here on error, but mandamus. If there has ever been an instance where we have compelled a circuit judge to grant a motion for continuance or any other kindred motion, on mandamus, it has not been brought to our attention. Such a practice would be at variance with a long line of cases, in which we have denied relief on the ground that a writ of error or some other adequate remedy existed. It is no new thing to review the denial of motions to continue after judgment upon writ of error or otherwise. * * * It is the settled rule that we will not review an interlocutory motion on mandamus when the court does not refuse to proceed with the case, if there is another adequate remedy, although it may be resorted to sometimes if it does so refuse.”

Many authorities are cited.

It does not follow from the denial of this motion that the defendants may not have a fair trial and even be acquitted. See People v. Swartz, supra.

The writ should be denied.

Moore, J., concurred with Hooker, J.

Ostrander, McAlvay, and Brooke, JJ.

We concur in the result reached by Justice Hooker, but do not desire to be understood that in no case can there be a review of action involving an abuse of discretion; such question being reviewable on error.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CARTON v. DAY.
    1. Appeal and Error — Motions—Setting Aside Default.
    A defendant who is defaulted for non-appearance, and who files a motion and affidavits to set aside the default, may review, on writ of error, a denial of the same conditioned upon the remitting by plaintiff of a portion of the judgment, although an unqualified denial of the motion, being discretionary, could not be so reviewed.
    2. Defaults — Setting Aside — Conditional Refusal.
    A defendant is not prejudiced by an order of the court refusing to open a default and set aside a judgment entered, when the refusal is conditioned that the plaintiff remit that portion of the judgment as to which defendant made a showing of a meritorious defense.
    Error to Genesee; Wisner, J.
    Submitted February 16, 1909.
    (Docket No. 88.)
    Decided May 26, 1909.
    Assumpsit by John J. Carton and Everett L. Bray, copartners as Carton & Bray, against Homer A. Day for services rendered. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Affirmed.

      De Vere Hall and A. A. Ellis, for appellant.

      Brown & Earley and Black & Boberts, for áppellees.
   Hooker, J.

The plaintiffs began their action by summons tested June 15, and returnable July 10, 1908. It was personally served on June 15, and returned June 16, 1908. Declaration was filed on June 22, 1908. On July 1, 1908, defendant’s default for non-appearance was entered, upon filing of the usual affidavit. On July 3, 1908, damages were assessed before the court at $4,531, including some interest. All of these proceedings occurred at the April term of court. On July 16th a motion to set aside the default and judgment and to grant the defendant a trial upon the merits was filed, together with an affidavit in support thereof. This affidavit alleged that the defendant inadvertently omitted to cause his appearance to be entered and that he had a good defense upon the merits. It also contained a long and detailed statement of alleged merits, occupying 10 pages of this record. Counter affidavits were filed, and these also contained statements of plaintiffs’ version of the merits, contradictory and explanatory of defendant’s affidavit. The motion was heard upon these affidavits, and the court filed a written decision. No request for reasons was filed, and we find no exception to his opinion or order; the only exception-shown being one to the reading and consideration of the counter affidavits of Carton and Bray.

If the opinion filed can be fairly called a filing of reasons for denying the defendant’s motion, which we do not intend to imply, it justified the inference that the learned circuit judge was not satisfied with defendant’s excuse for not appearing in the cause, but that, in view of some negotiations had at one time between the parties wherein there was an offer to accept $2,500 in settlement of the claim, he determined to grant the motion unless plaintiffs should reduce their judgment by remission to $2,500. Counsel for defendant contend that they are not here under the statute authorizing a review of denials of motions for new trial on error. If that is so, the only question is whether the court erred in his refusal to set aside the default. On this record it is reviewable on error. Had he made an unqualified denial of that motion, we should see no reason for interfering, as it was a matter of discretion. The court saw fit, however, to grant the motion conditionally, and it is of the condition that defendant complains.

We are of the opinion that he was not injured by the condition. Aside from any technical view, however, we are impressed that the circuit judge was satisfied, from the merits set forth in the affidavits for which defendant is responsible, that defendant’s affidavit of merits had no substantial foundation, up to the amount of #2,500; but, to be sure that no injustice was done him, he required the remission as a condition to a denial of the motion, under a practice which is common in this State, as appears from the following cases taken from plaintiffs’ brief: Rose v. Newaygo Circuit Judge, 74 Mich. 332 (41 N. W. 1080); Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500); Fye v. Chapin, 121 Mich. 675 (80 N. W. 797); Shaw v. Railway Co., 123 Mich. 629 (82 N. W. 618, 81 Am. St. Rep. 230, 49 L. R. A. 308); North Michigan Land & Live Stock Co. v. Kneeland, 149 Mich. 495 (112 N. W. 1114).

We find no error in this record, and the judgment is affirmed.

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


text:
    HIALEY v. HIALEY’S ESTATE.
    1. Estates of Decedents — Implied Contracts — Parent and Child — Work and Labor.
    An express contract must be proved to entitle a son residing at home to recover for services rendered his deceased father as a laborer in decedent’s factory.
    2. Same — Evidence—Presumption. •
    A son living with his father for whom he works is presumed to contribute the services to the common support.
    3. Same — Evidence—Admissions.
    Admissions of the deceased that his son was in his employ like any other man, that the- son had money coming to him and that his son had not drawn much money, were competent evidence from which an express contract to pay for the services might be inferred.

      4. Witnesses — Expert and Opinion Evidence — Competency—
    Value.
    A carriage manufacturer who had hired carriage trimmers for many years by the piece, although not by the day, is, prima facie, competent to testify to the value of trimmers’ services by the day in that locality.
    5. Contracts — Sunday Labor — Evidence.
    It is competent to prove that claimant worked on Sundays, to show his faithfulness, where no compensation is asked for the labor.
    Error to Lenawee; Chester, J.
    Submitted February 23, 1909.
    (Docket No. 100.)
    Decided May 26, 1909.
    John Frank Hialey presented a claim against the estate of John R. Hialey, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. A judgment for claimant is reviewed by defendant on writ of error.
    Affirmed.

      William J. Ingersoll, for appellant.

      Garland li. Gillespie and Smith, Baldwin & Alexander, for appellee.
   Hooker, J.

John Frank Hialey filed a claim for services against the estate of his father, John R. Hialey, deceased, a former resident of Tecumseh. It was disallowed by commissioners in the probate court, but upon appeal a verdict of $8,000 in claimant’s favor was rendered by a jury in the circuit court. The order usual in such cases was entered, and the cause is before us on writ of error at the instance of the administratrix.

There is testimony in the record indicating that the claimant worked in his father’s buggy factory for many years up to the time of his death; that from childhood and up- to the time that his father died he lived in the family. No witness testified to any interview between claimant and his father which could be called an agreement in relation to the subject, and claimant’s counsel rely upon certain evidence, which they say justifies an inference that there was a mutual understanding that claimant was to receive pay for his work at going wages.

An express contract is essential to overcome the presumption that a son who continues to live with his parent is not entitled to compensation for his services; i. e., the law will not imply a contract from the mere rendition of services in such a case, it being presumed that they are members of one family contributing to the common support. Such a contract may be proved, however, by the admission of the party to be charged.

In the present case there is testimony that the father stated that claimant was not in copartnership with him, but was in his employ like any other man. He also stated that he had plenty coming to him to pay for a horse, under circumstances from which an inference might reasonably be drawn that it was coming from him for his son’s labor. To another witness he said that he was in trouble because his boy wanted to settle with him, with a view to going to work for another person, and, if he did, he should have to shut up his shop.There was other testimony of similar tendency. This was sufficient to carry the case to the jury, and it was competent evidence. There was other evidence in the case that was consistent with the theory that deceased expected to leave claimant the property when he was through with it. It was not competent to prove a contract, and perhaps was not relied on as being such, but it is a difficult matter to separate it from other testimony which tended to show that Frank worked in his father’s, shop, how much he worked, the character of his services,, and the degree of satisfaction his services gave his father. Thus one Elmer Lockwood, who worked at deceased’s factory, said:

“Deceased used to tell me to do as Frank did, and I would win out.”
And—
‘ ‘ He said, ‘ If I would attend to my business, there might be a chance some time of my being a foreman around there.’ ”

Also:

“ He said that Frank had worked for him a great many years, and hadn’t drawed much money, fooled away very much, and that he would sometime undoubtedly own that business.”

Counsel for contestant made innumerable objections to this testimony, and in our opinion may thereby have been responsible for giving it undue prominence in the minds of the jury. The testimony seems to have been admissible for some purposes, and, although some of it did not justify an inference that a contract was made, it did throw light on the relation, and, as far as it' went either way, gave some plausibility to defendant’s claim that no contract was made.

A carriage manufacturer’s testimony as to the value of services was objected to upon the ground that he never hired men by the day, but by the piece, and therefore was not competent to testify. This was all the testimony as to the value of claimant’s services. The witness said he had built carriages for 49 years in Adrian, but he did not testify that he had any knowledge regarding the value of trimmer’s wages except as it is inferable from his hiring trimmers by the piece. We think there was a prima facie showing of competency. Counsel did not attempt to show his incompetency on cross-examination, except to get him to say that he never hired by the day. In showing the faithfulness of claimant it was shown that he worked Sundays. We do not discover that compensation was asked for such work.

We discover no other assignments that require discussion.

The order of the circuit court is affirmed.

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


author: Blair, C. J.

text:
    BRITAN v. STRAUS BROS. & CO.

    1. Mortgages — Real Property — Merchantable Title — Abstract.
    Under a contract for the sale of land providing for an abstract showing a merchantable title in the vendors, an abstract , of title showing the foreclosure by advertisement of a mortgage covering the premises,does not comply with the agreement if it fails to disclose that the mortgage contained a power of sale.
    2. Same.
    A recital in the sheriff’s deed that the mortgage contained a power of sale is no evidence of the fact.
    3. Same — Foreclosure by Advertisement.
    A foreclosure by advertisement is only valid where a power of sale is contained in the mortgage.
    4. Public Oeeicers — Sheriee—Presumptions.
    The presumption that a public officer has done his duty can only apply to such acts of the officer as the law requires, and cannot be made the basis of authority to act for a mortgagor.
    6. Appeal and Error — New Trial.
    A new trial will not be refused on reversal where evidence was introduced which might have been submitted to the jury as a question of fact that would entitle the plaintiffs to recover.
    Error to Lenawee; O’Mealey, J.
    Submitted February 24,1909.
    (Docket No. 106.)
    Decided May 26, 1909.
    Assumpsit by Edward S. Bryan and another against Strauss Brothers & Company upon a land contract. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Reversed.

      D. B. Morgan and A. F. Biggs, for appellants.

      Smith, Baldwin & Alexander, for appellees.

       Rehearing denied September 21, 1909.

   Blair, C. J.

On the 31st day of October, 1906, plaintiffs and defendants entered into a written contract for the purchase by defendants of plaintiffs of certain real estate in Lenawee county for the sum of $2,800. By the terms of the contract plaintiffs agreed to convey to defendants “a merchantable title in fee simple to said premises free of all incumbrances;” the deed to be delivered within 10 days to the Adrian State Savings Bank and held in escrow until defendants complied with their part of the contract. Plaintiffs also agreed to procure and deliver within 30 days an abstract of the title to said premises, compiled by a competent and responsible abstracter, showing title as aforesaid—

“All of which shall be subject to the approval of the second parties, and to cause all defects therein to be corrected by the 1st day of January, 1907, and if not corrected by that time the second parties are hereby authorized at their option to cause the same to be corrected, in which event the expenses therefor shall be paid by the first parties or be deducted from the purchase price owing by the second parties for said premises.”

Defendants agreed to pay $600 down and the balance of the purchase price on or before March 1st, provided that, if plaintiffs had not performed the contract on their part by that time, defendants “may withhold such payments until the same has been done.”

Shortly before January 7, 1907, plaintiffs furnished to defendants an abstract of the title in question, to which numerous objections in writing were made by defendants; corrections were made obviating some of the objections; new lists of objections filed and corrected from time to time, until all of the objections were satisfactorily met except those numbered 11a, 116, and 17. The objecjections under 11a still open were: That a certain mortgage of the premises from Sally Hagerman to Juliette J. Schureman was not shown by the abstract to contain a power of sale, and therefore disclosed no authority for a foreclosure and sale by advertisement; that the abstract showed the estate of said Sally Hagerman to be still open;, that the affidavit of Ambrose B. Park, administrator of the estate of Juliette J. Sohureman, deceased, made a part of the abstract, showed that he caused the mortgage to be foreclosed and had bid in and taken title to the premises in his own name; and that “the said Sally Hagerman, through her nephew, Warren B. Hagerman, redeemed said premises and paid him (meaning the said Ambrose B. Park) the amount of his bid.” The objections under 116 were: That if Park purchased as administrator, he held the premises in trust for the heirs of Mrs. Schureman, and if he purchased in his individual capacity, the purchase was void; that, in either event, it was necessary that the abstract should show the persons interested in her estate who survived her; and that their interests had been divested, which did not appear. The objections open under 17 were that a mortgage given by one John H. Eberts and wife to Francis M. Briggs February 1, 1858, did not appear to have been discharged.

On February 7, 1907, the parties made a partial settlement, whereby defendants paid the balance remaining due except $350, for which they gave a duebill payable at such time as plaintiffs should deliver an abstract showing the title to be merchantable and free of liens to the approval of their attorneys, in accordance with the provisions of their contract of purchase. On the 1st day of March, 1907, defendants conveyed the premises in question, with other lands, to John H. Elliott by warranty deed. On April 12, 1907, defendants paid $150 to apply on the duebill. Plaintiffs commenced suit for the balance unpaid on the duebill in justice’s court December 21,1907, where they recovered a judgment, and also recovered judgment in the circuit court on appeal. Defendants have removed the record to this court for review upon writ of error. It was conceded by counsel for both parties that the court should determine, as a matter of law, whether the abstract showed upon its face a merchantable title as against the three objections. The circuit judge held,,as a matter of law, that the abstract, upon its face, disclosed a merchantable title, and that the three objections relied upon by defendants were not well founded. He submitted to the jury the question of the good faith of defendants in relying upon the advice of their attorneys as to the validity of the objections.

The first point presented by the brief for defendants is that the abstract failed to show a merchantable title because the estate of Sally Hagerman was shown to be still open, and, the mortgage to Mrs. Schureman not appearing affirmatively to have contained a power of sale, the foreclosure thereof was ineffectual to divest Sally Hagerman of her title. Item 21 of the abstract shows a mortgage from Sally Hagerman to Juliette J. Schureman executed April 29, 1884, recorded May 6, 1884, in liber 112 at folio 166, consideration $1,000, and describes the property in question. It is further stated that it appears from the probate records “that Juliette Schureman died April 24, 1895, intestate. Ambrose B. Park was appointed administrator and filed the usual bond June 6, 1895.” There is no statement that the mortgage contained a power of sale. Item 22 is as follows: “Final order of said court discharging said administrator filed August 12, 1897.” Item 23 is a copy of the deed from the sheriff to Ambrose B. Park on the foreclosure of the “mortgage in No. 21 above,” dated April 26, 1897, acknowledged and recorded April 30, 1897. The deed recites that the mortgage “contained a power of sale which has become operative by reason of a default in the condition of said mortgage,” etc. The notice of sale also contained a recital of the power of sale, and the foreclosure proceedings appear to have been regular.

Counsel for plaintiffs contend:

“ That the statute required these things, and it cannot be assumed that this public officer, the sheriff, violated his duty and sold under a mortgage containing no power of sale and made a false certificate that the mortgage contained a power of sale when in fact it did not.”

That the presumption is that the sheriff did his duty, citing Sinclair v. Learned, 51 Mich. 387 (16 N. W. 672); McCammon v. Railroad, 103 Mich. 104 (61 N. W. 273); Miller v. Clark, 56 Mich. 337-340 (23 N. W. 35); Snyder v. Hemmingway, 47 Mich. 549-553 (11 N. W. 381); Reading v. Waterman, 46 Mich. 110 (8 N. W. 691). A power of sale in the mortgage is a prerequisite to a right to foreclose the mortgage by advertisement. 3 Comp. Laws, § 11133.

“ It has been repeatedly held that a foreclosure under the statute is an act of the party, and not a judicial proceeding, and that it is only possible when the mortgage is so framed as to authorize it.” Lariverre v. Rains, 112 Mich. 276 (70 N. W. 583).

The sheriff derives his authority to sell the mortgaged premises from the owner of the mortgage. Watson v. Lynch, 127 Mich. 365 (86 N. W. 807). And the sheriff’s deed on statutory foreclosure is no evidence that the foreclosure was legal. Barman v. Carhartt, 10 Mich. 338; Hebert v. Bulte, 42 Mich. 489 (4 N. W. 215). The presumption that, when the contrary does not appear, a public officer will be presumed to have done his duty, can only apply to such acts of the sheriff as were required to be performed by him in the discharge of his own duties. The presumption cannot be made the basis of the authority to perform the acts. The cases cited by plaintiffs’ counsel are not opposed to this conclusion. It follows therefore that the abstract did not legally show that the mortgage contained a power of sale, and the defendants were entitled to insist under their contract that the abstract should be so corrected as to state this fact. Ford v. Wright, 114 Mich. 122 (72 N W. 197); Walker v. Gillman, 127 Mich. 269 (86 N. W. 830).

There was an allegation in the declaration that, at the time defendants paid #150 on the duebill, it was agreed that the balance of $200 “should be paid when certain corrections and things agreed upon should be done. These were done, and the agreements then entered into were complied with whereby the balance, to wit, $200, became due.” There was evidence tending to sustain this allegation, but it does not appear to have been submitted to the jury nor considered in the briefs of counsel. The fact that defendants and their attorneys required numerous affidavits to be recorded at considerable expense tends to support the view that such affidavits were in compliance with the alleged agreement; but, as the testimony was disputed, a question of fact was raised, which would, doubtless, have been submitted to the jury by the trial judge if he had been requested so to do. Under such circumstances, we do not feel warranted in complying with the request of defendants’ counsel to reverse the case without granting a new trial.

The judgment is reversed, and a new trial granted.

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


text:
    CARNEY v. IONIA TRANSPORTATION CO.
    1. Contracts — Mutuality—Directing Verdict.
    An offer to re-engage plaintiff at a stated salary as captain of a boat for a season unless a sale of the boat should occur, which was answered by an acceptance and an offer to be in readiness whenever called on, and followed by a statement of the defendant that he had not much time to talk about it and a request to come again, raises a question of fact for the jury as to the meeting of minds and the mutual binding effect of the conversation.
    3. Same — Customs and Usases.
    A custom to dismiss or re-engage the captain at the end of the season should be considered in interpreting the effect of the conversation.

      S. Same — Definite Teems.
    The terms of the contract are not so indefinite as to invalidate it where the term of employment, the compensation, and the nature of the service were defined.
    4. Same — Conditions Subsequent — Breach.
    The plaintiff is not required to show that the boat had not been sold, to entitle him to recover on the contract, but such sale is matter of defense which should have been pleaded and proved.
    Error to Wayne; Rohnert, J.
    Submitted April 6, 1909.
    (Docket No. 9.)
    Decided May 26, 1909.
    Assumpsit by Thomas J. Carney against the Ionia Transportation Company for breach of a contract of employment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Thomas L. Dalton (Thomas J. Mahon and James S. Doyle, of counsel), for appellant.

      E. T. Berger, for appellee.
   Blair, C. J.

Plaintiff instituted this suit to recover from defendant damages alleged to have been sustained through the failure of defendant to carry out an alleged contract of employment, whereby the defendant, by its president, E. L. Thompson, engaged the plaintiff to sail, as master and pilot, the steamer Ionia for the season of 1906, for an agreed compensation of $1,400. At the close of plaintiff’s proofs, upon motion of defendant’s' attorney, the court directed a verdict in favor of defendant, substantially for the reason that the contract as disclosed by the plaintiff’s testimony was not mutual; it not appearing to have been binding upon the plaintiff. Plaintiff has removed the record to this court for review upon writ of error.

The nature of the arrangement made between plaintiff and defendant depends entirely upon the testimony of the plaintiff. Plaintiff had sailed the Ionia for defendant the previous season, and at the close of that season laid the boat up at Sandusky on December 13th and came at once to Detroit. He had a conversation with defendant’s president, Thompson, on the 18th of that month, wherein he alleges the contract was made for the ensuing season. He testified: That it was the general custom between owners and masters of vessels of that character to make verbal contracts, and that—

“The usual time for employing a master on steamboats is when the boat is laid up. You settle your employment right away, or they notify you that they don’t want you any more, one or the other. The Lake Carriers’ Association meets about the 16th of January, and unemployed captains are generally picked up about that time. The . chances of employment of a master thrown out of employment after the Labe Carriers’ meeting in January are not good, because at that time they usually have employed the masters they need.”

That in their conversation on the 18th of December de-. fendant’s president informed him that the boat was for sale, or at least a part of her.

“ ‘Then,’ I said, ‘You don’t want to engage a captain until you find out whether you are going to sell her ? ’ ‘ Oh, yes, I do,’ he said. ‘ If yo'u want her, I want you to hold yourself in readiness. If I find a buyer, you can go to Sandusky and show them around there.’ I said, ‘ On what terms would you engage me ? ’ and he said, ‘ That is all right.’ I said, ‘ On the same terms ? ’ and he said, ‘ Yes, that is all right.’ I said, ‘All right, sir; I will be at your service any time you call upon me.’ Under what he said, ‘The wages was $1,400 last year, and if that is satisfactory — ’ ‘ Why,’ I said, ‘ all right, sir.’ He said: ‘ I am too busy today. I haven’t a great deal of time to talk to you about it, but you can come up again some time.’ ”

That after a talk with Capt. Pratt on March 9 or 10, 1906, plaintiff went up to see Mr. Thompson, and—

“ He said that Capt. Pratt is figuring on buying an interest in the boat, and of course, if he buys her, he will sail her; so I said, then of course I better look around for another situation, and he said: £Oh, no; I have not thrown you down by any means yet. We should hear from the captain by this time.’ That was somewhere about the 10th or 12th of March. They didn’t buy an interest or ownership in the boat, as I know of, during the season of 1906.”

That on the 20th or 22d of March he was informed by Capt. McLean that he had been employed to sail the Ionia for a compensation of $1,400, for the season of 1906, and he learned about that time that he was not going to be employed by the company for the coming year. That he held himself in readiness to perform his part of the contract during the season of 1906, but obtained such employment as he was able to, working about 86 days on four boats during the season. That at the time of his talk with defendant’s president in December, he did not understand that there were any negotiations pending at that time which he expected to close during the year 1906.

“ But he wanted to sell her. He wished to dispose of the boat, and, if he did not dispose of her, he would take me on, and, if he disposed of it, the persons who bought it would probably want to select their own master. That is the understanding I had December 18, 1905. * * * He called my attention to the fact that she was for sale for several seasons before.
“Q. And this was conditioned upon her not being disposed of?
“A. Yes, there was that condition, if he did not sell her. * * * At the end of the season Mr. Thompson said there was $104.10 coming to me, that he would give me $54.10 and leave the balance standing until I made a trip in the spring, and Mr. Otis will be a witness to that. I said that is all right, I was satisfied. He then paid me $54.10. There was no discussion about the balance. He himself said it was $104.10. He said he could promise me the balance when I made a trip with the boat in the spring. The only thing that stood in the way of my being hired was in case he sold the boat. It was distinctly understood that, if he did not sell it, I would' take the boat.”

While the testimony of plaintiff is not entirely definite, and is subject to different inferences, we do not think it can be said, as a matter of law, that the plaintiff did not bind himself to perform the ■ conditional agreement. He states that it was distinctly understood that, if defendant did not sell the boat, plaintiff would take the boat, and it is fairly inferable from his testimony that he agreed to accept $1,400, the same as the terms for the season of 1905, and to be at the service of defendant any time it should call upon him. The contract is to be construed with reference to the custom prevailing, according to the testimony of plaintiff, of employing the master at the close of the preceding season, and, where the testimony is susceptible of different inferences, those inferences are for the jury, and not for the court. We do not think it necessarily follows, because defendant’s president said: “I am too busy today. I haven’t a great deal of time to talk with you about it, but you can come up again some time ”— that he meant thereby to postpone the consideration of the contract, since it might have referred to subsequent details.

In addition to the reason assigned by the court of lack of mutuality in the contract, counsel for defendant also contend that the direction of a verdict should be sustained because the contract was indefinite and conditional. If, as we have held, the contract was mutual and bound the plaintiff, we think the objection that it was indefinite is without force, since the term of employment and the compensation therefor and the duties to be performed were sufficiently defined. The objection that the contract was conditional is, so far as not already covered by this opinion, that there was no evidence whether or not the steamship was sold in whole or in part, and that it was incumbent upon plaintiff to show that the boat was not so disposed of before he would be entitled to any compensation whatsoever. This point was not raised in the court below and was not raised by the pleadings. The condition disclosed by the testimony of plaintiff, that his contract of employment was to be annulled if the boat was sold, if so found by the jury, was a condition subsequent, which the plaintiff was hot obligated to set up in his declaration, but was a matter of defense which should have been pleaded by the defendant if it desired to rely upon such defense. 4 Enc. PI. & Prac., p. 627; Redman v. Insurance Co., 49 Wis. 431 (4 N. W. 591).

Judgment is reversed, and a new trial granted.

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


author: Brooke, J.

text:
    COX v. FIDELITY & DEPOSIT CO. OF MARYLAND.
    1. Suretyship — Negligence—Bond.
    On demurrer to a declaration based on a contract signed by one defendant as principal and the other as surety to indemnify any person against injury caused by neglect of the principal in the construction of walks, in conformity with regulations of the municipal board of public works requiring protecting barriers and night lamps, a failure to maintain a barrier in a reasonably safe condition, and failure to provide lamps, was within the terms of the bond.
    3. Same — Parties—-Misjoinder—Assumpsit.
    An action may be maintained for a breach of the conditions of the bond against both principal and surety, and is not subject to the objection that the cause of action against the principal sounds in tort.
    3. Same — Party Plaintiff — Actions.
    A person injured by the default may sue upon the bond, although it runs to the city for the benefit of the person injured, with a provision in the recitals thereof that persons injured might bring the action, and without such provision could maintain suit as a person for whose benefit the bond was executed.

      4. Pleading — Declaration—Time.
    An averment that the injury occurred within the period named in the bond may be inserted by amendment.
    Error to Marquette; Stone, J.
    Submitted April 6, 1909.
    (Docket No. 62.)
    Decided May 26, 1909.
    Assumpsit by Margaret Cox against August Anderson and William Kilbride, copartners as Anderson & Kilbride, principals, and the Fidelity & Deposit Company of Maryland, surety, upon a building contractor’s bond. A judgment sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error.
    Reversed.

      G. F. Button and J. M. Edgerton, for appellant.

      Young & Bell, for appellees.
   Brooke, J.

The plaintiff in this case is a nonresident of the city of Ishpeming. The defendants Anderson & Kilbride, a copartnership, were during the year 1906 contractors laying cement sidewalks in said city. The defendant the Fidelity & Deposit Company of Maryland had executed a bond to the city of Ishpeming. On the 23d day of October, 1906, the plaintiff avers that she was injured by falling over an uncompleted walk being constructed by Anderson & Kilbride; the said walk at the time being protected by a defective barrier, and unlighted. She sets up in her declaration the bond in question, as follows:

“ Know all men by these presents that Anderson & Kilbride, as principal, and Fidelity & Deposit Company of Maryland, as surety, a corporation duly authorized to do business in the city of Ishpeming, Marquette county, Michigan, are held and firmly bound unto the city of Ishpeming, a municipal corporation in said county and State, in the sum of one thousand dollars ($1,000.00), lawful money of the United States, to the payment of which sum well and truly to be made, we do bind ourselves, our and each of our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this 11th day of August, 1906.
“Whereas, the above bounden Anderson & Kilbride desire to engage in the business of laying stone and cement sidewalks, cross-walks or curbs in the city of Ishpeming. And, whereas, the common council of said city, in pursuance of the authority conferred upon it to regulate the construction of sidewalks, cross-walks or curbs, did at a regular meeting held on the 7th day of June, 1906, adopt the following resolution:
“ ‘Resolved that hereafter all persons, firms and corporations engaged in the business of constructing stone or cement sidewalks, cross-walks and curbs upon contract in the city of Ishpeming shall, before engaging in any such work, file with the board of public works of the city a bond in the penal sum of one thousand dollars! to be executed by such person, firm or corporation to the city of Ishpeming, with such sureties as shall be approved by said board, conditioned to construct said sidewalks, cross-walks and curbs of first-class material, in a good and workmanlike manner, upon and along the grades furnished and established by said board of public works, and to keep the same in good repair for a period of three years from and after the date of such instrument, and to properly support and protect all retaining walls upon the land abutting and adjoining said walks, so as to prevent injury thereto by reason of the construction of said walks, and in all things to abide by and comply with the rules and regulations made by said board of public works governing the construction of said sidewalks, cross-walks and curbs in said city, and also to protect and save said city of Ishpeming free and harmless from all loss and damage caused by said contractor or contractors in and about the construction of said walks. Such bond, when approved and accepted by said board of public works and filed with said board, shall authorize the principal or principals therein to engage in the business of constructing such stone or cement sidewalks, cross-walks and curbs for residents and property owners in the city of Ishpeming for the building season of the calendar year within which the same is filed. . Such bond shall be held by said board of public works for the use and benefit of, and may be prosecuted and recovery had thereon by, any person, firm or corporation who may be injured by reason of default in any of the conditions of such bond.’
“Now therefore the condition of this obligation is such that if the said Anderson & Kilbride shall construct and lay all such stone or cement sidewalks, cross-walks and curbs laid by them in said city, of first-class material, in a good and workmanlike manner, upon and along grades furnished and established by the board of public works, and shall keep the same in good repair for a period of three years from and after the date of this instrument, and shall properly support and protect all retaining walls upon the lands abutting and adjoining which said walks may be laid, so as to prevent injury thereto by reason of the construction of any such walks or curbs, and shall in all things abide by the rules and regulations made by said board of public works governing the construction of said sidewalks, cross-walks and curbs in said city, and shall also protect and save said city of Ishpeming free and harmless from all loss or damage caused by said Anderson & Kilbride in and about the construction of said sidewalks, and shall indemnify, protect and save harmless all persons mentioned in the above resolution and for whose benefit this bond is given (this bond being given in pursuance of and in compliance with the terms of said resolution), then this obligation to be void, otherwise to remain in full force and effect.”

The defendant the Fidelity & Deposit Company of Maryland interposed a demurrer based upon four different grounds, as follows:

First, that the injury complained of is not within the scope of the bond; second, that the plaintiff has here attempted to join an action on the contract against one defendant with an action on the casé against the other defendant ; third, the plaintiff is. neither the principal nor the assignee of the bond, and the bond is not assignable; fourth, the declaration does not show that the accident happened within any period covered by the bond — that is, within the building season of the year for which the bond was given.

The learned circuit judge sustained the demurrer upon the first ground named, with which conclusion we are unable to agree. The resolution which is a part of the bond contains the following language:

“And in all things to abide by and comply with the rules and regulations made by said board of public works governing the construction of said sidewalks, cross-walks and curbs in said city. * * * Such bond shall be held by said board of public works for the use and benefit of, and may be prosecuted and recovery had thereon by, any person, firm or corporation who may be injured by reason of default in any of the conditions of such bond.”

The condition of the bond is such that if the said Anderson & Kilbride shall—

“ In all things abide by the rules and regulations made by said board of public works governing the construction of such sidewalks, cross-walks or curbs in said city, * * * and shall indemnify, protect and save harmless all persons mentioned in the above resolution and for whose benefit this bond is given (this bond being given in pursuance of and in compliance with the terms of said resolution), then this obligation to be void, otherwise to remain in full force and effect.”

The declaration sets out that:

“The plaintiff further shows that among the rules and regulations of the board of public works of said city of Ishpeming at the time of the construction of the sidewalk aforesaid and the erection of the barrier aforesaid was a rule and regulation that barriers erected as aforesaid to protect the cement walks as aforesaid should be of sufficient height to prevent persons using said sidewalks from, walking into said cement sidewalks, and from falling over said barriers, and that at the same time said board of public works had another rule or regulation that in the nighttime all barriers erected as aforesaid should be properly protected by a light or lamp.”

And further that:

“Thesaid Anderson & Kilbride had permitted the said wire barrier to be and remain in a fallen down condition at the place aforesaid so as not to prevent a person from walking on said cement sidewalk or from stumbling over the same, * * * and had utterly neglected and failed to provide any light or lamp at or about the barrier aforesaid so that the same might be seen.”

We are of the opinion that a fair reading of the resolution and condition above quoted places the plaintiff among the persons for whose benefit the bond was exacted. The contractors, among other things, were “in all things to abide by and comply with the rules and regulations made by said board of public works governing the construction of said sidewalks, cross-walks and curbs in said city,” and the bond was given by its terms to insure the performance by the contractors of these among their other obligations. The board of public works had rules and regulations requiring the contractors to properly guard and light the walk during construction. The protection of life and limb makes it absolutely necessary that due precaution should be taken in this regard during the period of construction. It seems to us that the first object of the city of Ishpeming in requiring the contractors to give the bond in question may well have been to afford the very protection claimed by the plaintiff in this case. This is peculiarly true because for the default of the contractors in this regard the city itself would not be liable. See Thompson v. West Bay City, 137 Mich. 94 (100 N. W. 280). It can hardly be said that the using of proper material, the conformation to a proper grade, or protection by proper retaining walls of the adjoining property, are of as much moment as the protection of pedestrians in their lawful use of the streets. The last sentence of the resolution recites:

“Such bond shall be held by said board of public works for the use and benefit of, and may be prosecuted and recovery had thereon by, any person, firm or corporation who may be injured by reason of default in any of the conditions of such bond.”

If the averments of the plaintiff’s declaration are true, the contractors have made default in the condition of the bond touching the proper protection of the walk, and the plaintiff has been injured by reason of such default. She is therefore one of the persons “mentioned in the above resolution and for whose benefit the bond is given.”

The second ground of demurrer is without force, inasmuch as the declaration is based upon the contract made between the contractors and the other defendant with the city of Ishpeming and the unknown parties described in the resolution and condition of the bond.

As to the third ground, it is sufficient to say that the defendants themselves have agreed, by the execution of the bond, wherein the resolution is recited providing that the same may be prosecuted and recovery had thereon by any person, firm, or corporation who may be injured by reason of any default in any of the conditions of such bond, to this identical method of recovery. Without this provision, however, we think the plaintiff would have a right to maintain her action; she being one of the persons for whose benefit the bond was given. See Fellows v. Gilman, 4 Wend. (N. Y.) 414.

The bond was executed on the 11th day of August, 1906, and covered the “building season of the calendar year within which the same is filed.” The plaintiff received her injury on the 23d day of October, 1906. If necessary, the plaintiff should be permitted to amend, averring that the date of injury was within the building season of 1906.

We think the rule of law that bondsmen are treated as a favored class should receive extremely cautious application to contracts like the one at bar, which is but one of a very large and rapidly growing class where the surety undertakes its liability for hire, and purely as a matter of business, and not of accommodation.

Judgment reversed, and new trial ordered.

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


author: Moore, J.

text:
    LASLEY v. PRESTON.
    Appeal and Error — Conclusiveness op Findings op Fact —
    Practice in Supreme Court.
    Findings of fact and law made by the trial court without the aid of a jury must be held to be conclusive when the printed record does not purport to contain all the evidence, and the assignments of error are general.
    Error to Mackinac; Shepherd, J.
    Submitted April 6, 1909.
    (Docket No. 2.)
    Decided May 26, 1909.
    Assumpsit by S. Henry Lasley against William P. Preston for the use and occupation of certain land. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      James J. Brown, for appellant.

      William Carpenter, for appellee.
   Moore, J.

This action is brought to recover for the use and occupation of certain real estate. The case 'was heard by the trial judge, who made certain findings of fact and conclusions of law.. The case is brought here by writ of error.

The record does not purport to contain the evidence taken in the court below. We cannot say, from it, that there was not an abundance of evidence upon which to base the findings of fact. These must be deemed to be conclusive. Bateman v. Blaisdell, 83 Mich. 357 (47 N. W. 223); First Nat. Bank of Paw Paw v. Walker, 115 Mich. 434 (73 N. W. 378); Darling Milling Co. v. Chapman, 131 Mich. 684 (92 N. W. 352); Hoffman v. Silverthorn, 137 Mich. 60 (100 N. W. 183).

The assignments of error are general in form, and attack the conclusions of the court as expressed in the judgment. We cannot say, from the case as presented, that these conclusions were not correct. Hoffman v. Buschman, 95 Mich. 538 (55 N. W. 458); People v. Slayton, 123 Mich. 397 (82 N. W. 205, 81 Am. St. Rep. 211); Rumney v. Cattle Co., 129 Mich. 644 (89 N. W. 573).

Judgment is affirmed.

Blair, C. J., and Ostrander, McAlvay, and Brooke, JJ., concurred.


author: Blair, 0. J.

text:
    FOLEY v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Champerty and Maintenance — Attorney and Client — Witnesses.
    In an action for personal injuries wherein it appeared that a witness and the attorneys were to have a percentage of the amount recovered, the cause of action was not affected, since the common-law rule as to champerty between attorney and client does not prevail in Michigan, and the agreement alone is void between laymen.
    2. Trial — Evidence—Medical Authorities.
    It is error to read medical authorities to a witness on cross-examination.
    3. Carriers oe Passengers — Alighting from Trains — Directing Verdict.
    Plaintiff’s testimony being subject to different inferences, a verdict should not be directed because it could be inferred that he knew when he alighted from defendant’s train that he was not at the station.
    Error to Cheboygan; Shepherd, J.
    Submitted April 14, 1909.
    (Docket No. 45.)
    Decided May 26, 1909.

      Case by James Foley against the Grand Rapids & Indiana Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      James H. Campbell, for appellant.

      Benjamin & Quay, for appellee.
   Blair, 0. J.

This is an action on the case to recover damages for personal injuries alleged to have been sustained by plaintiff when getting off a passenger train at Kegomic, a place about two miles north of Petoskey, on the 8th day of September, 1906. Kegomic is the junction point of the railroad to Harbor Springs with the main line running north to Mackinaw City. There are a tannery and dwelling houses of its employés on the east side of the railroad tracks. There are a shed and gravel platform or walk just north of the junction of the tracks. In switching a train from the main track to the Harbor Springs track, it was necessary to turn two switches; the one nearest Petoskey being 75 feet from the station stopping point. In the case of the train upon which plaintiff was riding, it was the duty of the brakeman to throw these switches. It was not customary to announce the station until this train had started over the switches after they had been properly set. Foley spent the evening at Petoskey, and' left there on the Harbor Springs train at 11:30 p. m. The train stopped, as usual, a short distance south of the switch, while the brakeman went ahead and turned the switch to let the train pass from the main track to the Harbor Springs track. When the train stopped for the switch, four or five persons, employés of the tannery, got off; Foley among them. He was the last to get off. He claims that the train started up while he was getting off the step, and that he fell in such a way that the wheels ran over his right foot and cut it nearly off. It was amputated just above the ankle the same night.

It is claimed, and there was evidence which tended to show, that the brakeman called “Kegomic” before the stop was made for the switch; also that the conductor told Foley that it was Kegomic. It appears from the testimony that one Sullivan, a witness for plaintiff, had an arrangement with him whereby he was to procure attorneys, help him in the prosecution of his suit, and pay the expenses of the suit, in consideration whereof he was to receive 10 per cent, up to $5,000 of the amount recovered. It also appears that the attorneys employed for plaintiff were to receive a percentage of the amount recovered as their compensation. A medical witness, who was on the train with plaintiff and attended him immediately after the accident, testified that, in his opinion, plaintiff was intoxicated at that time. For the purpose of discrediting this opinion, plaintiff’s counsel was permitted to read to the witness, as part of his cross-examination, an extract from the “International Reference Book of Surgery.” Plaintiff recovered a verdict, and defendant has removed the record to this court for review.

Defendant’s counsel argue in their brief, among other things, that the contracts between plaintiff and Sullivan and with his attorneys were champertous and void, and the suit should be dismissed for that reason. The common-law doctrine of champerty, as applied to agreements between attorneys and clients, does not prevail in this State. Wildey v. Crane, 63 Mich. 720 (30 N. W. 327); Denman v. Johnston, 85 Mich. 387 (48 N. W. 565); In re Service’s Estate, 155 Mich. 179 (118 N. W. 948). Even if the rule is still in force as to agreements with laymen, we think the better rule is that the contract is only void as between the parties, and does not affect the obligation of the defendant to the plaintiff. 6 Cyc. pp. 880, 881, and cases cited in notes.

It was reversible error, under our previous decisions, to permit the plaintiff’s counsel to read from the medical book. Marshall v. Brown, 50 Mich. 148 (15 N. W. 55); Hall v. Murdock, 114 Mich. 233 (72 N. W. 150).

Counsel for defendant further insist that the court erred in refusing to instruct a verdict in its favor, on the ground that plaintiff knew, when he got out on the platform of the car and before he attempted to get off, that the train had stopped at the switch, and not at the station. While plaintiff’s testimony is subject to the inference deduced by defendant’s counsel, we do not think the court erred in refusing to instruct the jury that such was the only reasonable inference to be drawn therefrom.

We do not deem it necessary to consider the other points presented, since they are not likely to arise upon another trial.

The judgment is reversed, and a new trial granted.

Grant, Montgomery, McAlvay, and Brooke, JJ., concurred.


text:
    HAWLEY v. VILLAGE OF SARANAC.
    Municipal Corporations — Personal Injuries — Notice of Claim —Verification.
    Plaintiff who filed with the village clerk, within the proper time, an unsworn notice which complied with the other provisions of 1 Comp. Laws, § 2775, and who later, within 60 days, filed a verified statement of the items' 'of damage sustained by her, complied substantially with 1 Comp. Laws, §§ 2754, 2775, requiring a sworn claim, and notice of the time, place, manner, and extent of her injuries.
    Error to Ionia; Davis, J.
    Submitted April 15, 1909.
    (Docket No. 63.)
    Decided May 26, 1909.
    Case by Lettie Hawley against the village of Saranac for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Charles L. Wilson and Scully & Davis, for appellant.
    J. Clyde Watt and B. A. Hawley, for appellee.
   Brooke, J.

Plaintiff brought suit against the défendant village for an injury claimed to have been received by her upon a defective sidewalk on the 1st day of November, 1906. She served the following notice upon the defendant village:

“Notice of Claim.
‘ ‘ Piled in pursuance of the provisions of section 2775 of the Compiled Laws of 1897 of the State of Michigan as amended.
“State of Michigan,
“ County of Ionia, Village of Saranac
“To the Clerk of the Village of Saranac, as
Aforesaid.
Dear Sir: Please to take notice that I intend to hold the said village of Saranac liable for the damages sustained by me by reason of injuries to my person because of the negligence of said village as set forth substantially in the statement herewith presented, under the provisions of said section above mentioned, therein also setting forth substantially the time when and the place where such injury took place, the manner in which it occurred, and the extent of such injury, so far as known, the amount of damage for such negligence, and injury to be hereafter filed with the common council of said village in accordance with the provisions of section 2754 of the Compiled Laws of 1897, State of Michigan.
“Dated this 19th day of November, A. D. 1906.
“ Respectfully submitted,
“Lettie Hawley, Claimant.
“In accordance with the above notice, the said Lettie Hawley, of the village of Saranac aforesaid, hereby presents to the council of said village her statement showing the time, place, manner, and extent of her injuries as far as known, as follows:
“That on the 1st day of November, A. D. 1906, she, the said Lettie Hawley, in company with others, was walking westward upon the public sidewalks of said village, to wit, the sidewalk abutting upon and situated on the south side of lot No. 47, owned by Mrs. Smoke, on the northwest corner of Mill and Vosper streets, in said village, and it then and there and previously became and was the duty of said village to have said walk reasonably safe and convenient for public travel, and the said sidewalk was under the care and control of the said village and the same was open to public travel; that said sidewalk was unsafe for public travel; that said village had knowledge that the said sidewalk was not reasonably safe for public travel, and had previously served notice upon the owner of the premises abutting upon said walk to rebuild the same; that the said village had sufficient notice that the said sidewalk had not been rebuilt, but had negligently failed to cause the same to be repaired or rebuilt, so that the sidewalk would be reasonably safe for pedestrians and for public travel after said village had had reasonable opportunity so to do, and because of such neglect the said Lettie Hawley while walking along said sidewalk, in the darkness of the evening, to wit, about the hour of 11:30 o’clock p. m., when within about 30 feet from the west end of said sidewalk,and without carelessness or negligence upon her part, was tripped by a loose plank, and thrown to the ground. And because thereof, and the negligence of said village as aforesaid in not constructing or repairing said sidewalk after notice that the same was not safe for public travel, and after having a reasonable opportunity so to do, the said Lettie Hawley then and there became and was greatly hurt, bruised, wounded, the ligaments of the right shoulder ruptured, causing this claimant to become sick and sore, lame, and disordered, and will so continue for a long space of time.
“And also because of said negligence the said Lettie Hawley has been compelled to pay and has incurred an indebtedness, and will be obliged to pay in the future large sums of money to defray the expense in the employment of a physician. And also because of the negligence aforesaid on the part of the said village the said Lettie Hawley has been since the said 1st day of November, and will for some time in the future be, unable to perform her duties and resume her employment. And also, by reason of the negligence of the village as above said, the claimant, Lettie Hawley, has suffered, and will continue to suffer, great bodily pain and anguish. And your claimant, Lettie Hawley, further gives notice that, as soon as she is able to ascertain and determine the extent of her injuries by reason of the negligence of said village as aforesaid, she intends to file with said village council an itemized statement of her claim or account as provided by said section 2754 of the Compiled Laws of 1897.
“Lettie Hawley.”

Later plaintiff served a second notice upon the village, as follows:

“Village of Saranac, In account with Lettie Hawley, Dr.
“For damages and injuries sustained by reason of the negligence of the village as fully set forth in the notice of intention to hold said village liable for damages filed with the village clerk of the village of Saranac, aforesaid, on the 22d day of November, A. D. 1906, as follows:
“Dec. 24. To loss of time from the 1st day of Novem-
ber, 1906, to the 24th day of Deo., 1906,
being 7£'weeks at $3.00 per week....._. $22 50
Dec. 24. To board during said time at $3.50 per
week.................................. 26 25
Dec. 24. To doctor’s bill and expense incurred
therefor............................... 14 50
Dec. 24. To nursing and care during five weeks of
said period at $6.00 per week........... 30 00
Dec. 24. To mental anguish, pain and suffering by
reason of the negligence of said village. 300 00 Dec. 24. To future damages, pain and suffering and loss of time by reason of the negligence
of said village as aforesaid............. 200 00
Total..................................$593 25’
“State of Michigan, )
“County of Ionia. )
“Lettie Hawley, the above-named claimant of the village of Saranac, in said county, being duly sworn, deposes and says that the above account is true and correct; that the sums charged for the damages sustained and the loss incurred as above set forth are reasonable and just, and that to the best of her knowledge no set-off exists nor payment made on account thereof, and that there is now due from said village to this deponent for the injuries sustained by reason of the negligence of said village as aforesaid, the sum of five hundred ninety-three and (593.25) dollars.
“Lettie Hawley.
“Subscribed and sworn to before me this 24th day of December, A. D. 1906.
“Hiram T. Johnson,
“Notary Public, Ionia Co., Mich.
“My commission expires October 11, 1909.”

But one question is raised by the defendant in the ease; and that is whether the two notices above quoted are, taken either severally or together, a sufficient compliance with sections 2754 and 2775 of the Compiled Laws of 1897. In construing section 1, chap. 22 (section 3173, 1 Comp. Laws), and its relation to section 20, chap. 8 (section 3081, 1 Comp. Laws), Act No. 215, Pub. Acts 1895, relative to the incorporation of cities of the fourth class, which sections contain substantially the same language as sections 2754, 2775, 1 Comp. Laws, before us in this case, said sections being section 7 of chapter 5, and section 7 of chapter 7, respectively, of Act No. 3, Pub. Acts 1895, relative to the incorporation of villages, this court in the case of Griswold v. City of Ludington, 116 Mich. 410 (74 N. W. 667), said:

“ It will be noticed that the claim was not sworn to or verified in any manner until March 10, 1897, nor is the bill of particulars in any manner verified. Counsel for plaintiff, however, claim that the statute does not require such verification where claim is made for personal injuries. Section 1, chap. 22, provides for the service of notice in writing, setting forth the time when and the place where such injury took place, the manner in which it occurred, and the extent of such injury so far as the same has become known, etc. This section does not in terms require this statement to be verified. The first part of section 20, chap. 8, above quoted, provides that no account or claim or contract shall be received for audit or allowance, unless it shall be accompanied by a certificate of an officer of the corporation, or an affidavit of the person rendering it, etc. So far as this part of this section is concerned, it may well be said, as held by the court below, that * the words “account or claim ” are not enough to cover unliquidated claims for personal injuries in an action ex delicto.’ Lay v. City of Adrian, 75 Mich. 443 (42 N. W. 959). But the remaining portion of that section refers especially to claims ‘ for personal injuries or otherwise,’ and makes it ‘a sufficient defense in any court to any action or proceeding’ that such claims are not ‘certified to or verified as aforesaid.’ I take it that this latter part of section 20 means that claims for personal injuries or otherwise (that is, all claims) must be certified to or verified as provided in the former portion of section 20, which has reference to claims arising out of contracts, either express or implied. It is the evident intent of the legislature by these sections of the charter to compel all parties having claims against a city to make a statement of the claim under oath, or to obtain the certificate of an officer of the corporation certifying to the correctness of the claim, and, until this is done, no action can be commenced or maintained. It is made a sufficient defense to the action if this is not done. This question is settled in Springer v. City of Detroit, 102 Mich. 300 (60 N. W. 688); Snyder v. City of Albion, 113 Mich. 275 (71 N. W. 475); Selden v. Village of St. Johns, 114 Mich. 698 (72 N. W. 991). The claim that the affidavit, as a verification of the claim, served in March, 1897, was a compliance with the statute, can have no force. Under section 1, chap. 22, the claim must be made within 60 days after such injury, and the verification must accompany the claim. It must, in other words, be verified or certified and served within 60 days after the injury.”

See, also, Clark v. Village of Davison, 118 Mich. 420 (76 N. W. 971).

We think that the plaintiff brought her case within the construction the court has given these two sections. She gave the notice fully apprising the common council of the time when, the place where, the manner in which the accident occurred, and its extent so far as she then knew it. Later, and within the 60 days limited by statute, she served a claim upon the council making distinct reference to her notice, and' itemizing, so far as was possible, her damages under the claim, and this claim was duly verified as required by section 2754, 1 Comp. Laws.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.


text:
    BAKER v. BAKER.
    Equity — Parent and Child — Deeds—Cancellation.
    A transfer by a mother to her son of incumbered property of no considerable value above the incumbrances, with the understanding on the part of the transferee that he should support her during her lifetime, will not be set aside on her unsupported and contradicted testimony that he agreed to execute a contract to reconvey the property on demand, although a decree should be affirmed which provided for reasonable support.
    Appeal from Cheboygan; Emerick, J., presiding.
    Submitted April 14, 1909.
    (Docket No. 44.)
    Decided May 26, 1909.
    Bill by Emeline Baker against Harry Baker to set aside certain deeds. From the decree rendered, complainant appeals.
    Affirmed.

      Benjamin & Quay (Stevenson, Carpenter & Butzel and James F. Shepherd, of counsel), for complainant.

      Frost & Sprague, for defendant.
   Brooke, J.

The complainant in this case files her bill complaint against the defendant, Harry Baker, who is her only son and heir. By her bill she seeks to have set aside and held for naught three deeds; the first bearing date July 1, 1901, the second bearing date July 25, 1901, and the third bearing date the 11th day of April, 1902. The three deeds, taken together, conveyed from the complainant to the defendant many parcels of land in and near the city of Cheboygan, and constituted the entire estate of the complainant, which she had inherited from her husband, the father of the defendant, some years prior thereto. The complainant averred in her bill, and testified, that at the time of the execution of the three deeds, the cancellation of which she sought, her estate had become very much involved. She had been unable to pay the taxes on the property, and many parcels of it had been sold for taxes, and title in the holders of the same would soon thereafter become absolute. In addition to the tax titles, the property was incumbered by mortgage to such an- extent that she was unable to raise any more money upon it. Her homestead and 40 lots she had lost by mortgage foreclosure about this time. In this predicament she appealed to her own son to aid her. The amount of money she estimated to be necessary for the redemption of the tax receipts and the care of pressing mortgage indebtedness was $1,500. This sum the defendant was wholly unable to furnish her. He himself was at the time, and had been for many years, working for a salary as bookkeeper in a local concern. Thereupon it is her claim that the defendant proposed to her that, if she would deed to him all her property, he would undertake to clear it from the tax titles and prevent its loss under mortgage foreclosure.

It is further her contention that he agreed, in consideration of her making the deeds as suggested, that he would give to her a declaration to the effect that he held the property in trust for his mother and would reconvey it to her upon demand at any time thereafter. Upon receiving the deeds the defendant went into possession of the property and proceeded to redeem it from the outstanding tax titles, and to take such care as he was able of the mortgage indebtedness thereon. He placed his mother, the complainant, in a house next to the one occupied by himself, and for two or three years maintained her there. During this period she seems to have collected, with the consent of the defendant, the rents accruing upon the property which she had deeded, and used them for her support, together with other moneys received from her son. In August, 1904, however, she became dissatisfied with the situation and filed her bill of complaint in this cause. The complainant alone gave testimony in her own behalf tending to support the charges made in her bill.

Defendant gave his version of the transaction, to the effect that he had had some differences with his mother some years prior to the giving of the deeds, and, when she asked him to undertake the redemption of the property, she told him that it would all be lost if he did not take it, and that it would all be his anyway, and if he could save anything out of it he should have it. He testified that he refused at first to undertake the burden; but, after being urged to do so by some of his friends, he ultimately consented, and accepted the deeds in question without condition, except that it was his understanding and intention to care for his mother as long as she might live, in accordance with his circumstances. Mr. William N. Cross, who drew the deeds in question, and who had been for five terms county clerk, testified substantially as did the defendant. Other testimony was introduced on behalf of the defendant tending to show that the value of the property conveyed at the time of its transfer, in the then state of the real estate market, was inconsiderable.

The circuit judge who heard the case reached the conclusion that the complainant had entirely failed to sustain the charges made in her bill. He did find, however, that the conversations between the complainant and the defendant prior to and at the time of the execution of the deeds might properly be considered as a contract on behalf of the defendant to care for his mother during her remaining years, and he made a decree to the effect that the defendant should thereafter furnish his mother house rent and $35 per month during the remainder of her life, making the same a charge upon the entire estate. A careful examination of the record leads us to the conclusion that the circuit judge was correct in his holding.

After the case reached this court upon appeal the complainant died. It was stated upon the argument that she had made disposition of the property in question by will to others than the defendant, and that the appeal was being prosecuted on behalf of her estate. It is urged on the part of the complainant’s estate that, if the decree of the circuit judge is not set aside, it should at any rate be modified so that the $35 per month provided therein should take effect from the date of the conveyances, instead of from the date of the decree. With respect to this it is sufficient to say that the record discloses that the defendant claims to have paid his mother during those years sums in excess of the amount provided for by the decree. It is true the complainant disputed this fact; but as much of the money she used was during this period collected by herself as rents from the estate, or as payments upon land contracts, and as she was a very old! lady, we are of the opinion that the son, who kept books, of the entire transaction, is more likely to be correct. We, think the record discloses the fact that the defendant took care of his mother during the last years of her life in a, manner fairly consistent with his social position.

The decree of the court below is affirmed.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.


text:
    YOUNG v. YOUNG.
    1. Deeds — Delivery—Escrow.
    A deed acknowledged before a notary and left with him for record operates to pass title as of the date of acknowledgment and delivery and is not subject to recall by the grantors, where the weight of evidence shows that no restrictions or conditions were mentioned.
    3. Same — Alterations.
    An interlineation by a third party, not named in a deed, is not such an alteration as will destroy the effect of the instrument.
    Appeal from Genesee; Wisner, J.
    Submitted February 18, 1909.
    (Docket No. 41.)
    Decided May 26, 1909.
    Bill by Melvin Young and another against Hosea B. Young and others for the cancellation of a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      William T. Yeo and Brown & Farley, for complainants.

      Brennan & Cook (Clare M. Gundry, of counsel), for defendants.
   Moore, J.

In September, 1901, Joseph Young and his wife, Emily, appeared before James Van Vleet, a notary public and justice of the peace residing at Flint, Mich., and executed a short-form warranty deed to upwards of 120 acres of land. After the deed was executed, it was left with Mr. Van Vleet, who presented it for record in April, 1903; Mr. Young having died in the meantime. After' its record, the- deed was returned to Mr. Van Vleet. Later Emily Young and some others appeared before Mr. Van Vleet, and an interlineation was made in the deed of these words, “And to the children of Hosea B. Young by his first marriage,” and the deed was again recorded. The bill of complaint is filed for the purpose of having said deed canceled. The case was heard in open court. The trial judge dismissed the bill of complaint. The case is brought here by appeal.

The appellants contend:

“jFirst. That the said paper writing as made by the said Joseph Young and Emily Young, his wife, on Sep- - tember 7, 1901, as aforesaid, was not intended by the said grantors to operate as a deed conveying to the grantees therein named, a then present interest, to the exclusion of the grantors therein during their lifetime.
‘ ‘ Second. That the said paper writing as made by the said Joseph Young and Emily Young, his wife, if construed to be a deed of conveyance, was intrusted by the grantors to James Yan Yleet as their agent to care for it and to keep it for them subject to their control, and was not delivered by Mr. and Mrs. Young to said James Yan Yleet as an absolute transfer of the title possessed by them in and to said lands to take effect at their decease.
Third. That the changing of the said instrument by the said James Yan Yleet, in October, 1905, two years after the decease of said Joseph Young, at the suggestion of said Emily Young, one of the grantors therein named, and of Hosea B. Young, Charles E. Young, and Lillie M. Austin, in adding thereto the words, ‘ and to the children of Hosea B. Young by his first marriage,’ and other alterations, destroys the legal effect of said writing.
‘ ‘ Fourth. That from the contents of said instrument itself it is apparent that it was not intended as a deed of conveyance of the title of grantors in and to said lands, nor as a testamentary disposition thereof.”

The important question in the case is one of fact, namely: Was the deed executed and delivered absolutely with the intention of conveying title, or was it subject to the recall of the grantor. The trial judge found it was an absolute conveyance, delivered without being subject to the power of recall or control by the grantors. The appellants say that was a wrong conclusion. Mr. and Mrs. Young are both dead, and cannot give their version of the transaction. It is, however, stated in the deed that it is “signed, sealed, and delivered in presence of ” witnesses who are named. The deed was left with Mr. Yan Yleet. It was recorded after the death of Mr. Young. Mr. Yan Yleet swears unequivocally that it was delivered absolutely and without the right of the grantors to recall or control it. Opposed to this condition is the testimony of a witness to a conversation had with Mr. Yan Yleet in which he claims in substance as follows: That Mr. Yan Yleet said Mr. Young gave him the deed, and told him to take care of it for him, and that he asked Mr. Yan Yleet if that was all the delivery that was ever made of the deed, and he answered, “ That is all that was done;” the witness adding, “as I recall it.” On the cross-examination the witness said:

“ I did not make any memoranda of what he told me, never wrote his statement, but depended on my memory. It occurred quite a while ago. I cannot just say when it was.”

The other witness, who was an interested party, testified that in an interview with Mr. Yan Yleet the following occurred:

“Q. You may state whether on that occasion Mr. Yan Yleet told you ‘ Joseph Young left the deed with me with the understanding that I was to keep it until his death, unless be asked for it.’ State whether that was said.
“A. That was said.
“ Q. Whether he also stated to you that ‘ then to record it.’
“A. He did.”

This witness testified that he made a memorandum of what Mr. Yan Yleet said at the time of this talk with him. Mr. Yan Vleet recalls the interview, and declares that he told the witness that the delivery was without the power of recall, and that he was urged to recollect it as the witness now testifies, and that he told the witness that would not be true, and that the deed was delivered without the power of recall. Mr. Yan Yleet and the first of the witnesses mentioned above as contradicting Mr. Yan Yleetlive in the same city with the circuit judge, and it is a fair inference from the record that he knew both of them. He had the great advantage of seeing and hearing the testimony of all the witnesses. There is nothing in the record or arguments of counsel that cause us to doubt the accuracy of the conclusion of fact reached by the trial judge. As to the effect of the delivery shown, see, Latham v. Udell, 38 Mich. 238; Brown v. Stutson, 100 Mich. 574 (59 N. W. 238, 43 Am. St. Rep. 462); Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201); Meech v. Wilder, 130 Mich. 29 (89 N. W. 556).

It is said that the interlineation made after Mr. Young’s death destroys the legal effect of the deed. It requires no argument to support the conclusion that, if a grantor has made a valid deed, his intent and purpose in doing so cannot be destroyed by the unauthorized act of some other person.

The decree is affirmed, with costs.

Blair, C. J., and Ostrander, McAlvay, and Brooke, JJ., concurred.