text:
    CINCINNATI, SAGINAW & MACKINAW RAILROAD CO. v. BAY CITY & BATTLE CREEK RAILROAD CO.
    1. Railroad Companies — Eminent Domain — Sufficiency of Petition.
    A petition by a railroad company for the condemnation of land, alleging that the petitioner has not been able to acquire title to the property, although it has tried to do so, because the owner refuses to sell the same or to set a price thereon, sufficiently shows a bona fide effort to obtain the property by purchase.
    2. Same — Description of Land — Ambiguity.
    In proceedings by a railroad company to condemn for warehouse pui'poses land abutting on a street in which its track is located, a petition describing the premises by lot, block, and plat, and averring its said road to be adjacent and contiguous thereto, is not bad for ambiguity. The condemnation of the lots would carry with it all rights in the street attaching by reason of the ownership of the abutting property, and no others.
    8. Same — Condemnation of-Land of Another Company — Jurisdiction.
    Where the petition in proceedings by one railroad company to condemn land of another company shows the property to be subject to condemnation, and no issue thex’eon is x-aised by the answer, the jurisdictional fact of the right to condemn is admitted. So held where the land sought to be taken abutted upon a street in which the tracks of both companies were located, and it was claimed by the respondent that the .proceeding was an attempt to condemn its track and right of way.
    4. Same — Proof of Filing Map.
    Condemnation proceedings instituted by a railroad company are not invalidated by the failure to prove that the petitioner had filed a map and survey of its line, as required by 3 How. Stat. § 3332, where the averment of that fact in the petition was not denied by the answer,
    5. Same — Award of Damages.
    Where the commissioners in condemnation are unable to apportion the damages among the several respondents, an award in gross, subject to apportionment by the court, is proper under 1 How. Stat. § 3338, providing that, in case of doubt as to whom the money belongs, the court may direct the same to be paid into court, and may determine who is entitled thereto.

      Appeal from Bay; Maxwell, J.
    Submitted June 14, 1895.
    Decided September 27, 1895.
    Condemnation proceedings by the Cincinnati, Saginaw & Mackinaw Railroad Company against the Bay City & Battle Creek Railroad Company, the Michigan Central Railroad Company, and the Metropolitan Trust Company. Respondents appeal from the award of the commissioners.
    Affirmed.

      Hatch & Cooley (Henry Russel and N. H. Slaymaker, of counsel), for appellants.

      L. C. Stanley (Shepard & Lyon and E. W. Meddaugh, of counsel), for appellee.
   Hooker, J.

Lots 3, 4, 5, 6, 7, 8, and the southerly 12$ feet (the same width front and rear) of lot 2, block 11, plat of Lake City, now part of West Bay City, abut upon the east side of Williams street. The petitioner’s railroad, — i. e., the Cincinnati, Saginaw & Mackinaw Railroad Company, — is alleged to be located and in operation, being laid through Williams street, and said lots are adjacent and contiguous to said railroad, and petitioner seeks to condemn the lots mentioned for the purpose of a warehouse. From the award in favor of the petitioner, the defendants have appealed.

The Toledo, Saginaw & Mackinaw Railroad Company was organized in June, 1887. Its map, on file, designates a route along Williams street. In February, 1888, the Battle Creek & Bay City Railroad Company was organized, and in November, 1888, it obtained the passage of an ordinance by the common council of West Bay City granting the privilege of laying a track in Williams street, subject to the control of the council, and subject also to the privilege of subsequent railroad companies to use said track on certain terms, and it laid the track accordingly. This track was laid along the center of Williams street, and it is aimed that a side track was laid east of said main track, and in December, 1888, the Battle Greek & Bay City Railroad Company bought the lots mentioned for the purpose of station buildings. It is claimed by petitioner that this was in pursuance of an arrangement or understanding between the officers of the two roads mentioned to have station grounds in common, and that the Toledo, Saginaw & Mackinaw Railroad Company bought lands adjoining upon both sides. In April, 1889, an ordinance was passed authorizing the Toledo, Saginaw & Mackinaw Railroad Company to lay its track upon Williams street, and it tore up the existing track, and new tracks were laid in or near the center of the street and towards the east side. Petitioner contends that theje was but one track there at the time this was done. This left the west side of the street open, and is said to have avoided a crossing of tracks, which would have resulted had the road been built on the west side of the Battle Creek & Bay City Railroad tracks. In December, 1889, the.Toledo, Saginaw & Mackinaw Railroad Company was reorganized under the name of the Cincinnati, Saginaw & Mackinaw Railroad Company, and in February, 1890, the Battle Creek & Bay City Railroad Company, having been reorganized as the Bay City & Battle Creek Railroad Company, passed, with its road, to the Michigan Central Railroad Company, which purchased its stock. Meantime the Cincinnati, Saginaw & Mackinaw appears to have been operating its road and using its tracks in Williams street, while it is claimed that the defendants never used said street for the purpose of running trains; and in September, 1894, these proceedings were instituted by the Cincinnati, Saginaw & Mackinaw Railroad Company to condemn the lots in question, as stated.

Counsel for the 'defendants raise several questions, which they assert to be jurisdictional:

1. That the petition does not contain a. sufficient allegation of inability to purchase.

2. That it appears that this is an attempt to condemn the property of another railway under circumstances unauthorized by statute.

3. That this last was a preliminary question, which should have been settled before entering upon the question of damages.

The following other points are made against the proceeding :

4. That the description of the land in the petition is ambiguous.

5. That petitioner did not prove that it had filed the map and survey required by statute.

6. That the award is void for the reason that it attempted to give damages for the use of the street, and thereby, impliedly, to condemn it.

7. That there was no evidence that there was a necessity for taking the street.

8. That there was no evidence of the value of the lots, except as depreciated by the. existing road of petitioner.

9. That the damages were not apportioned among the defendants.

A bona fide effort to obtain the property by purchase is necessary, and the petition should show this. Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 576, and cases cited. This appears from the petition, which alleges that the “petitioner has not been able to acquire title to said lots and property, although it has tried to do so, for the reason that the Bay City & Battle Creek Railroad Company, the owner thereof, and the Michigan Central Railroad Company decline and refuse to sell the same to your petitioner, or to set a price thereon.” Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572, 70 Mich. 390.

The description in the petition is, in our opinion, free from ambiguity. Counsel for the defendants assert that it describes no rights in the street, and this is certainly true, except as to such rights in streets as are usually held to be conveyed when" a lot is described by number, block, and plat. The description is .the same as that by which the lots were purchased, and, if defendants acquired any other or further rights in the street in any other way, they are not included by such description, no-matter what petitioner’s counsel may claim about it. The property condemned is described in the same way, and the award of damages, which seems to be the foundation for this contention, does not purport to include damages for condemnation of the street, though it attempts to cover any damages which defendants may be entitled to, as abutting proprietors, for previous use of the street. The condemnation of the lots would carry with it all right to the lots and to the appurtenances belonging thereto by reason of their abuttal upon the street, and if the commissioners have added to the value of these, damages for the previous use of the highway, the defendants would not be sufferers thereby. If the defendants had any other rights in the street, they do not appear to have been reached by this proceeding, which does not proceed on -any such theory, but on the claim that the petitioner had the right and possession to that portion of the street already.

The next question arises over the right to condemn this property. It is said that this was a preliminary question; that the court should have determined the question of its necessity to the operation of the defendants’ railroad before calling commissioners; and that this question should have gone to a jury. In substance, this contention is that this property is not subject to condemnation in this proceeding because it is a condemnation of the track; that the commissioners can 'only determine the questions -of necessity for the purposes of petitioner, and value, and not whether this property is subject to condemnation, which is a jurisdictional question of fact. If the petition shows it to be subject to these proceedings, and the answer raises no issue of fact upon it, the jurisdiction is admitted. If it raises an issue of law, the court should determine it; if an issue of fact, that must be settled at some stage of the proceeding. Whether this answer tenders such issue oí fact, and, if so, whether it must be determined in advance and not later, are the questions here. Apparently, the court determined that there was no issue of fact upon this subject, and that the property was subject to condemnation. The petition prays the appointment of commissioners. Whether granted or not depends upon the existence of proper subject-matter. If the land sought to be condemned is exempt, there is no occasion for the appointment of commissioners. The defendants claim that it is, and unless from the admitted or uncontroverted facts, deducible from the petition and answer, it can be said that it is not exempt, the circuit judge was in error. Manistee, etc., R. Co. v. Fowler, 73 Mich. 217; Toledo, etc., R. Co. v. Campau, 83 Mich. 35. Section 3331, 3 How. Stat., subjects railroad property to condemnation, excepting (under some circumstances) the track and right of way. The argument is made that this is an attempt to condemn the track and right of way, and, if this appeared from the petition and answer, it might be necessary to try the question. But it does not, and we think the circuit judge was right in declining to allow the question to be raised.

We think the failure to prove that petitioner had filed a map or survey of its line should not invalidate these proceedings. It was not a necessary subject of inquiry, no issue being raised upon it. The petition alleged the filing of such map and the certificate of location.

The award states that the commissioners were unable to apportion the amount among the defendants. It found the ownership of the property to be in the Bay City & Battle Creek Railroad Company, and that the Michigan Central Railroad Company had possession and control of said Bay City & Battle Creek Railroad Company, and all of its property, as owner, and that the Metropolitan Trust Company had a mortgage upon the franchises, line, and real estate to the amount of $250,000. The award shows that tbe commissioners had doubts about the division, and therefore determined the gross amount, subject to be apportioned by the court. This was proper, under 1 How. Stat. § 3338.

We think that the proceedings should be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J. McGrath, C. J.

license: Public Domain

text:
    PEOPLE v. HAWKINS.
    1. Foreign Corporations — Right to Do Business in Michigan— Construction op Statute.
    3 How. Stát. § 416W6,'being section 37 of the act relating to the incorporation of domestic manufacturing and mercantile corporations, which provides that foreign corporations organized for any of the purposes contemplated by said act, upon recording copies of their articles of association and appointing a resident agent for service of process, may carry on business in this State, and shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities, of corporations existing under said act, does not prohibit foreign corporations from doing business within this State until they have complied with such conditions, or invalidate contracts made by them, but, rather, prescribes the terms upon which such corporations, if they so desire, may become entitled to the benefits conferred by the act upon domestic corporations of similar character. McGrath, G. J., dissenting.
    3 Same — Embezzlement by Agent — Defenses.
    An agent of a foreign corporation cannot defend a charge of embezzlement preferred under 2 How. Stat. § 9151, upon the ground that the corporation was prohibited from doing business within this State by reason of a non-compliance with the statutory conditions. McGrath, C. J., dissenting.
    3. Embezzlement — Sufficiency of Information.
    2 How. Stat. § 9421, provides that, in a prosecution for embezzlement, proof of any embezzlement committed within six months next after the time stated in the indictment shall be sufficient, to maintain the charge. An information charged embezzlement between t.wo dates not more than six months apart. Held, that the defect, if any, in failing to allege a day certain, would be disregarded, under 2 How. Stat. §§ 9534, 9535, where the objection was not raised until after the jury had been sworn.
    4. Same — Evidence.
    In a prosecution for embezzlement, evidence of previous acts of like character is admissible to prove intent.
    5. Same — Defenses—Larceny.
    The fact that moneys wrongfully appropriated by a bookkeeper and assistant cashier first went into the cash drawer of his employer does not make the offense larceny, rather than embezzlement.
    6. Criminal Law — Instructions to Jury — Admitted Facts.
    It is not error for the court' in a criminal case to recite the conceded facts in his charge to the jury, and to refuse an instruction that the ultimate determination of such questions-rests with them, and that they are not absolutely bound by the opinion of the court thereon.
    Exceptions before judgment from recorder’s court of Detroit; Chapin, J.
    Submitted June 20, 1895.
    Decided September 27, 1895.
    Norval A. Hawkins was convicted of embezzlement*
    Affirmed.

      F. A: Baker, for appellant.

      Allan H. Fraser, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The Standard Oil Company of Ohio, a foreign corporation, has for several years done business in Michigan, having a general office in Detroit, through which its business for a portion of the State was done. This business consisted principally in selling petroleum to customers in this State. The oil was, as a rule,, shipped to Detroit in tank and other cars, and there stored until sold, being then reshipped. In some instances, however, the oil was shipped direct from Ohio to the purchaser. All money received for sales of oil in that portion of the State that was within the jurisdiction of the Detroit office was sent to that office, and came to the hands of the defendant, who was bookkeeper and assistant cashier. He was convicted of embezzling $2,600 of the company’s money, and'the case comes here upon exceptions before sentence.

The errors complained of are said to be:

(1) The failure of the court to direct a verdict for de fendant, upon the ground that he was not the servant or agent of the Standard Oil Company, within the embezzlement statute, and that he embezzled none of its money.

(2) The insufficiency of the allegation of time in the information.

(3) The admission of testimony tending to show other acts of embezzlement.

i4) The failure to leave certain specified questions of fact to the jury.

(5) The refusal to instruct the jury that whether there was a valid and subsisting contract of employment was for the jury, and that they were not bound by the opinion of the court upon that subject.

1. The first question hinges upon the statute. 3 How. Stat. § 4161d6. This statute was added to the general act providing for the incorporation of domestic manufacturing companies, and was enacted in the year 1889. It provides that foreign corporations “organized * * * either wholly or in part for any of the purposes” contemplated by the act referred to, “upon recording copies of their charter or articles of incorporation, * * * as provided in section nine” of said act, “and upon filing * * * a resolution” authorizing any agent duly appointed to acknowledge service of process for the company, etc., “and appointing an agent for service of process,” may carry on business in this State, and “shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities, of corporations existing under this act.” This corporation did not avail itself of the opportunity afforded b.y this statute, by filing ,its articles as therein provided. The theory upon which the first assignment of error rests is that the statute (section 416M6) prohibits the non-complying foreign corporation from doing business in this State, and that, therefore, all contracts made by it are void, and all business done by it or upon its behalf is illegal; that it could neither acquire nor hold any property in this State, nor could it make a lawful contract of agency. The underlying question is, manifestly, the construction to be placed upon the statute; for, if it does not involve a prohibition of business by the corporation, the whole- argument of defendants counsel upon this branch of the case must fall.

That the States have the power to prescribe the terms upon which foreign corporations may carry on business within their respective limits, and to exclude them altogether, is generally admitted; and, to give effect to such laws, they may declare contracts made in contravention of such statutes to be invalid, as a more effective means of accomplishing the purpose of the State. And there are many cases which hold that contracts made by-corporations, which are illegal or contrary to the settled policy of the State, are void, and cannot be enforced, though the statute does not in terms so provide. 8 Am. & Eng. Enc. Law, 333, and cases cited in note 1. And in the absence of a provision declaring the contracts void, the courts may refuse to enforce them, when the statutes suspend the doctrine of comity, as was held by this court in two recent cases. Seamans v. Temple Co., 105 Mich. 400; People's Mut. Ben. Society v. Lester, 105 Mich. 716. But it is the established doctrine that, in the absence of statutes showing a contrary intent or policy, foreign corporations will be permitted to do business, and make contracts, which, under the doctrine of State comity-, will be held valid, and enforced by the courts, upon the presumption of acquiescence, which will arise from silence upon the subject. This doctrine is elaborately discussed in the case of Bank of Augusta v. Earle, 13 Pet. 519, and is uniformly recognized -as the law. See Thompson v. Waters, 25 Mich. 244. Also, Bank of British Columbia v. Page, 6 Or. 433; In re Comstock, 3 Sawy. 221; Wright v. Lee, 2 S. D. 596, 4 S. D. 237.

The section in question is one added to the previously existing law providing for the incorporation of manufacturing and mercantile associations. Neither the language of the act, nor its title, appears to have been aimed at the exclusion of foreign companies, or the imposition of conditions upon their doing business,.unless they desire the benefits to be derived from the law applicable to domestic corporations of similar character. The language of the section is as follows:

“Corporations organized under the laws of any State of the Union, or of any foreign country, either wholly or in part for any of the purposes contemplated by this act, upon recording copies of their charter, or articles of incorporation, or memoranda of association, as provided in section nine of this act, and upon ¿ling in the office of the secretary of state a resolution, as required in general section forty-three hundred and thirty-one of Howell’s Annotated Statutes, and appointing an agent for service of process, may, for such purposes, carry on business in this State, and shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities, of corporations existing under this act.”

In Bank of Augusta v. Earle, supra, the court implies that, unless a statute indicates that contracts which derive their validity from comity are repugnant to the policy of the State, or are considered injurious to its Interests, the presumption is in favor of the application of the doctrine of comity. See, also, Runyan v. Coster, 14 Pet. 122; Carroll v. City of East St. Louis, 67 Ill. 568; Christian Union v. Yount, 101 U. S. 352; People v. Howard, 50 Mich. 239; Stevens v. Pratt, 101 Ill. 206; Commercial Union Assur. Co. v. Scammon, 102 Ill. 46; Aetna Ins. Co. v. Harvey, 11 Wis. 397; Columbus Ins. Co. v. Walsh, 18 Mo. 229; Clark v. Middleton, 19 Mo. 53. Even where the law imposes a penalty, some of the courts hold that a prohibition is not necessarily implied. For an extended discussion of this question, see Wright v. Lee, supra. We are of the opinion that this statute was not intended to prohibit foreign corporations from doing, business within the State until they should comply with its terms, as the expression of such intention is neither “clear nor positive.” 8 Am. & Eng. Enc. Law, 335.

But, if it should be held that the act under considera1ion was prohibitive, and that the company could not make or enforce contracts, it would not follow that this defendant could not be guilty of embezzlement. In fact, he was the agent of the company, whether it was a lawful enterprise or engagement, or not. By virtue of his relation, he became possessed of property which was not his, and which belonged to the company if to anybody. He acted for, and permitted himself to be held out as the agent of, the company, and received money from various persons who were willing to pay. He was a de facto servant, and it is unnecessary that his relation should have grown out of a lawful contract of agency. It was enough if he acted, and was permitted to act, as such. 2 Bish. Cr. Law, (8th Ed.) §§ 339, 340. See, also, Com. v. Smith, 129 Mass. 111; Com. v. Cooper, 130 Mass. 288; State v. Tumey, 81 Ind. 563; Exparte Ricord, 11 Nev. 292; State v. Spaulding, 24 Kan. 1; State v. O’Brien, 94 Tenn. 79; 1 Whart. Cr. Law, § 1025, citing Reg. v. Orman, 36 Eng. Law & Eq. 611; Rex v. Beacall, 1 Car. & P. 454; Campbell v. State, 35 Ohio St. 70; Willson v. Owen, 30 Mich. 475.

2. The Allegation of Time: The information charged the offense as occurring “between the 1st day of July, 1893, and the 31st day of December, in A. D. 1893.” This was not the technical allegation of a day certain, and it is urged that it is fatal, though counsel admits that evideuce of any embezzlement within six months after the date named might lawfully be shown, under 2 How. Stat. § 9421, which provides:

“In any prosecution for the offense of embezzling the money, bank notes, checks, bills of exchange, or other securities for money of any person, by a clerk, agent, or servant of such person, it shall be sufficient to allege generally in the indictment an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement, and bn the trial evidence may be given of any such embezzlement committed within six months next after the time stated .in the indictment; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a.variance, if it shall be proved that any money, bank note, check, draft, bill of exchange, or other security for money of such person, of whatever -amount, was fraudulently embezzled by such clerk, agent, or servant within the said period of six months.”

This is no more than might be done under a definite allegation of date, if laid under a videlicet. The case of People v. Donald, 48 Mich. 493, seems to hold that this statute precludes conviction of an offense committed before the date stated in the information, and doubtless it would be held that it forbids conviction for an act committed more than six months after the date alleged; thus, in effect, shortening the period of limitation as -applied to the trial to the term of six months. It is apparent that the legislature did not intend to require a change in the method of alleging the time, and we think the information must stand upon the general rule.

The rule of the common law is that the day must be alleged with certainty; but it is mere form, for it is not usually necessary to prove the day alleged. See 1 Bish. Cr. Proc. § 386, and note. But, as shown by the author of that work, the courts have in many cases mitigated the. rigor of the rule. Id. § 387. In Connecticut, an allegation fixing the time as “on or about” a given day has been held good. Rawson v. State, 19 Conn. 292; State v. Tuller, 34 Conn. 280. The allegation “between two days” is said by Bishop to be bad upon principle, because, if as wide apart as the statute of limitations, it is equivalent to no date. 1 Bish. Cr. Proc. § 396. It was held good, however, in the case of U. S. v. Smith, 2 Mason, 143. In the course of an interesting discussion of the subject, Mr. Justice Story says:

“It would seem strange that the fact might not be laid as it would be proved; that if the exact time were unknown-, or could not be proved, it might not be so stated, or stated between such a day and such a day; that the day must be stated with certainty in the indictment, and yet a verdict finding it on another day would be good, or finding it on no day certain, as between two days, would be good. And this, though the time be admitted to be formal, and more certainty would not conduce to the relief of the defendant, or aid his defense, or narrow down the proof.”

See, also, Rex v. Roberts, 4 Mod. 100.

Our statutes encourage liberality in relation to formal defects. 2 How. Stat. §§ 9534, 9535-. The former section provides that no indictment shall be held insufficient for omitting to state the time at which an offense was committed in any case where time is not of the essence of the offense, or for stating the time imperfectly; and the latter requires objections for formal defects to be made before the jury shall be sworn. In the case of People v. Gregory, 30 Mich. 373, it is held that the allegation must be such as to show the offense to have been committed within the period of the statute of limitations, which the information does. The defect, if it be one, was amendable under the section of the statute last cited; and, under the same and the preceding section, we think it may be disregarded, as a formal defect, upon which objection was not seasonably raised.

3. Evidence of Previous Acts of Embezzlement: This was permitted to prove intent. Counsel cites the statute which makes the act of embezzlement larceny, and the case of People v. Schweitzer, 23 Mich. 301, where it was held that evidence of offenses other than that charged was inadmissible, and argues that this is a case of larceny, and therefore, under the case cited, the evidence was not admissible, especially as it is claimed that the money, when received, went into the cash drawer in the company’s office, and was- subsequently removed by the defendant, which is said to be larceny under some authorities, irrespective of the statute, as contradistinguishable from embezzlement. We are not impressed with the latter contention, and think, the case falls within the statutory offense usually called embezzlement, under which the defendant was prosecuted. Authorities are numerous permitting the kind of proof under consideration to show intent, both in our own and other States. See the following cases, cited by counsel: 6 Am. & Eng. Enc. Law, 501, and cases cited; People v. Henssler, 48 Mich. 49; People v. Wakely, 62 Mich. 297. Also, see note to the case of People v. Schweitzer, supra, cited by counsel for defendant, where numerous cases are cited.

4. Questions for the Jury: Error is assigned on the failure of the court to give the defendant’s fifth request. It reads as follows:

“The ultimate decision of the question whether there was a valid and subsisting contract of employment between the Standard Oil Company and the defendant rests with the jury, and they are not absolutely bound by the opinion of the court on that question.”

The court instructed the jury as follows:

“If you are satisfied beyond a reasonable doubt that the defendant was in the employ of the Standard Oil Company as servant, clerk, or agent, — that is to say, as bookkeeper or assistant cashier, — during the period covered by the information in this case, viz., during the time intervening between the 1st day of July, 1893, and the 31st day of December, 1893, and that, by reason of such employment, certain moneys came into his hands during that period, and that he feloniously appropriated such moneys or any part thereof, which may have come into his hands by virtue of such employment, to his own use, with the intention of depriving the owners of the same, he is guilty of the crime of embezzlement, and you must so find.
“The evidence shows that the defendant entered the employ of the Standard Oil Company in 1889, and remained there until some time in August, 1894, when he was arrested and charged with the crime for which he is now being tried; that he was first engaged as bookkeeper, and that, some time in 1891, he was made assistant cashier, in which capacity he received all the checks and moneys which came into the hands of the company at Detroit; and that it was the duty of the defendant to deposit these funds in the bank to the company’s credit. The testimony shows, and the defendant admits, that from 1891, up to and including the month of August, 1894, while he was in the employ of the Standard Oil Company, he did take certain moneys belonging to that company. It appears from the evidence that the defendant was in the habit of taking checks which came to the Detroit office of the company from the various branch offices in different parts of the State of Michigan, and that he placed these checks in the money drawer or till, and took cash equal in amount to the checks which he had placed therein, and that he converted this money to his own use. This course of appropriating the company’s money was continuous, and the method of doing it was the same throughout the entire period, and the defendant says that, during all this time, he had the same intent with regard to taking and appropriating the money. It is for you to say what that intent was.”

It is n'ot claimed that the evidence stated by the court is disputed, and the point of this request appears to be that the jury should not have been told the court’s opinion about it. He prefaced what he said about the evidence by leaving the question to them, and followed it by sending them to their room to determine the question of guilt or innocence. It is settled by former adjudications that it is the duty of the jury to take the law from the court, and that, where there is no conflict in the evidence, and the defendant in open court admits facts legally constituting an offense, the court may so state, and even go so far as to direct a verdict. In this case, the defendant had practically sworn to his own guilt, yet, in the abundance of his caution, the court left the question of intent to the jury. People v. Richmond, 59 Mich. 570; People v. Ackerman, 80 Mich. 588. This also covers the fifth point, which need not be discussed.

We find no error, and think that the conviction should be affirmed, and the recorder’s court directed to proceed to judgment. Ordered accordingly.

Grant and Montgomery, JJ., concurred with Hooker, J. Long, J., did not sit.

McGrath, C. J.

I cannot concur in the opinion of Mr.

Justice Hooker. The embezzlement statutes are aimed at named classes of persons: Officers of loaning and investing societies (section 3276); officers having custody of securities deposited with the State (section 4236); officers of banks (section 9148); warehousemen (section 9159); insurance agents (sections 9190, 9191), etc. The provision under which respondent is charged is section 9151, and is aimed at “any officer, agent, clerk, or servant of, any incorporated company” who shall embezzle, etc. The liability depends upon the existence of the relation. It is only when the statute is silent that the doctrine of comity applies, and the permission to do business is presumed. The statute referred to (3 How. Stat. § 4161(26) prescribes the terms and conditions upon which foreign corporations may do business in this State. It contains no penalty, — no other means of its enforcement. Unless the conditions are complied with, all contracts made by the corporation in this State are absolutely void. This is the only construction that can give effect to the statute. Such statutes are held to be prohibitory, and a foreign corporation can have no legal existence in this State, except upon compliance with the conditions imposed by the statute. An averment of the fiduciary relation is an essential ingredient of the information, and the relationship must be established. This is not the case of an agent employed in a State where such employment was lawful, to do. some act within this State in itself lawful. Here the contract of employment was illegal and void, and the relation did not exist. To say that respondent was in fact the agent is to say that in fact there was a contract of agency. Seamans v. Temple Co., 105 Mich. 400; People's Mut. Ben. Society v. Lester, 105 Mich. 716


author: McGrath, C. J.

text:
      In re WILLIAMS’ ESTATE.
    1. Statute of Frauds — Verbal Contract to Convey Lands— Parent and Child — Evidence.
    A verbal contract by a mother to convey land to her adopted child in consideration of services to be rendered by the latter, though void under the statute of frauds, may be resorted to, in an action to recover for such services, for the purpose of negativing the presumption that they were gratuitously rendered, at least if there have been such acts of part performance as would entitle the plaintiff to equitable relief.
    3. Estates oe Decedents — Claim for Services.
    Where a promise is made to compensate for services by will, and the promisor dies without, so providing, the value of the. services may be recovered as a claim against the estate.
    Error to Kent; Grove, J.
    Submitted January 31,1895.
    Decided October 1, 1895.
    Sophia Williams presented a claim against the estate of Marie L. Williams, deceased. The claim was allowed by the commissioners, and the administrator, Byron L. Ransford, appealed to the circuit court. From a judgment for claimant, the administrator brings error.
    Affirmed.

      Marie Norris, for appellant.
    W. W. Mitchell (Claude R. Buchanan, of counsel), for appellee.
   McGrath, C. J.

This is an appeal by the administrator from the allowance of the claim of Sophia Williams. The claim as presented to the commissioners was as follows:

“The said Sophia Williams avers -and claims damages in the sum of $30,000 for the nonfulfillment of a verbal contract made and entered into by and between herself, the said Sophia Williams, and the deceased, said Marie Williams, in substance and effect as follows: Said claimant avers that she is now a citizen of the United States, and a resident of the county of Kent, State of Michigan, and is 43 years of age; that she was born in Germany, and came to this country, with a widowed mother, when she was seven years old; that when she was 13 years old she went to live with Thomas E. Williams and the said Marie Williams, who were husband and wife, and resided on a farm near Eattle Greek, Mich.; that she went to live with said Thomas E. Williams under a written contract made between her mother and the said Thomas E. Williams that she, said Sophia, should stay and reside with them until she became 18 years of age, in consideration of which they were to board her, school her, and, when she became 18 years of age, give her a. cow and some other personal property; that said Thomas E. W'illiams and Marie Williams had no children, and that she lived with them, and took their name, in accordance with said contract, and that during said time she was treated by them in every respect as they would treat their own child; that, after she became 18 years of age, she still continued to' reside with them, they having in the meantime moved onto a farm in Kent county, hereinafter more particularly described; that said Thomas E. Williams became blind, and subsequently insane, and died in the insane asylum at Kalamazoo in February, 1872; that at the time of his death, deceased, Marie Williams, was the owner of the farm on which they resided, of about 140 acres, described as follows: East half of south-east quarter; the south-west quarter of the southeast quarter, and the south half of the north-west quarter of the south-east quarter of section four, town six north, range eleven west; that there was about 50 acres of said land improved for cultivation, with ordinary farm buildings, the remainder of the land being timbered land, uncleared and uncultivated, upon which farm was a mortgage of $800, with some accrued interest, and said Marie Williams was owing at that time some ten or twelve hundred dollars of debts, which she had contracted in taking care of and providing for her husband prior to his death, and that the farm was at that time of the value of about six or seven thousand dollars. She had no other means, and but a very little personal property on the farm. She proposed to sell a portion of the farm sufficient to- pay the indebtedness she had contracted in taking care of her husband, and clearing the balance of the farm of the mortgage of $800. That the said Sophia claimed that by the united efforts of both of them they could pay those debts, and save the farm as a home for both of them; and that said Marie Williams and the said Sophia Williams then and there, soon after the death of said Thomas R. Williams, entered into a contract or agreement by which they agreed that they should live together, work together, employ all their energy, knowledge, information, and ability, as long as they should live, and put the same into one common fund, try to pay off the indebtedness ion the farm, and keep the same, and any property that they might acquire, for the joint benefit of the two, and that they should be joint owners of the farm and all the property that they might acquire, and at the death of either the other should be absolute owner •of the whole.
“The said claimant avers that each in good faith went to work with all their energy and perseverance they both possessed, and managed their affairs with all the energy, skill, and economy they possessed; that by their joint efforts they paid off said mortgage and said indebtedness which existed at the time of the making of said contract. They cleared and improved 50 or 60 acres more of the farm, kept cows, sold milk and butter, raised stock, horses, and other things, until Marie Williams died on or about April, 1892, at which time they had said farm cleared from debt. They had horses, cows, hogs, hay and grain, farming tools, and everything usually owned and possessed by farmers in this country, used and employed in the management of a farm of that character. They bad also, from their saving, acquired money which they had on interest, amounting to over $12,000. That the farm property, notes, and accounts during said time were all kept and carried out in the name of the deceased, Marie Williams, although that, upon the death of either, the survivor would be the owner of the whole; and that the said Marie Williams repeatedly promised the said Sophia Williams that by will or otherwise she would fix their property so that claimant, Sophia, would be the owner of the whole of it in case the said Marie should die first. The said Sophia Williams avers that she has in all things fully, particularly, and completely carried out her said contract, and was entitled in law and equity, upon the death of said Marie Williams, to be the absolute nwner of all the estate and all the property rights in action that they possessed. The said Sophia Williams further avers that she firmly believes that she, Marie Williams, always intended to carry out and fulfill said agreement, but that she was taken sick, and by becoming unconscious some days before her death, and thereby failed to carry out said agreement. * * *
“Claimant therefore avers that the property possessed by them, real, personal, and rights of action, was of the value of $30,000 and upwards, and that she is entitled to recover of and from said estate, as damages for the nonfulfillment of said contract, the sum of $30,000, and she therefore prays this claim may be allowed by said commissioners. She also makes a further claim for services performed by her for said Marie Williams during tier lifetime for 20 years and upwards, and claims for such services the sum of $30,000.”

The decedent left an estate which inventories at |28,394, of which $15,000 was real estate, and the balance personalty. The testimony offered by claimant tended/ to support the claim made. The jury gave a verdict of {>14,500, but, upon a motion for a new trial made by the estate, such new trial was granted, unless claimant would remit $4,500, and the claimant elected to remit. The estate appeals.

The court instructed the jury that claimant was, under the testimony, a member of the Williams family and household; that the rules applicable to services rendered by a child to a parent controlled; that there could be no recovery in the absence of an express promise to pay; that—

“The single question is: Was there a promise by the deceased, Marie L. Williams, to pay the claimant for her services, in consideration that she should remain with her, and render the services which she claims she has rendered during the life of Mrs. Williams, as long as they both should live, and to pay for those services by a provision, by will or otherwise, so that the claimant would receive the fruit thereof upon her death? And, in order to warrant you in finding that there was such a promise, it is necessary for you to keep in mind the rule of law; and it is a rule of law that the testimony to support such a promise, to warrant the finding of such a promise, must be clear, distinct, and unambiguous; that it must lead your minds clearly to the conclusion that there was such a promise.
“Now, this contract set up by the claimant in her amended claim is void. It is made so by statute. It covered an interest in real estate, and by the statute it was invalid. There was no writing. It could not be a valid agreement unless it was reduced to writing, or some note or memorandum of it made, signed by the party to be charged, to wit, Mrs. Williams; and none such exists. There can be no recovery, then, upon that amended claim, upon that contract set forth in the amended claim. Neither can you resort to it, if you find the claimant entitled to recover, in order to measure the amount that you should award. That disposes of that agreement. * * *
“Now, a person may make an agreement to compensate another in that way for services. It was competent for Mrs. Williams to agree, if you find that she did agree, to make provision in her will for the claimant ,as compensation for the services that she should render. It would be a valid agreement, to the extent, at least, of determining the question whether or not there was a promise to pay for services. It would not be an agreement, however, that would be the basis of an action. Neither could there be any recovery for the services except upon the quantum meruit, as it is termed in the law; that is, upon a count framed for the purpose of recovering for services so much as they should be reasonably worth. And the only resort that could be had to an agreement to provide compensation by will would be for the purpose of determining whether or not there was a promise to compensate for .the services. * * * 1 understand the rule of law to be that the claimant cannot recover in this case unless the proofs show that there was an express promise to pay for the services, but.that that fact may be shown by facts and circumstances which satisfy the jury, under the rule that I have given you in regard to the nature 'of the evidence that should be required, that the services were rendered in the expectation on the part of the claimant that she was to be compensated therefor, and in the expectation on the part of the deceased that she was to pay for them, and that that expectation rested upon an understanding of the parties that there was a legal liability and a legal obligation. I do not understand that it is necessary to find that there was any agreement to pay any specific wages, or any specific amount. If there was an agreement to pay, — if the jury find that there was a promise to pay, — then it will be your duty to ascertain the amount from the evidence which the claimant is entitled to receive, and that amount is such sum as her services were' reasonably worth.
“If you should find that the claimant is entitled to recover under the rules that I have given you and under the evidence in the case, it will be proper for you to consider the nature of the services that she rendered, any skill and ability which she brought to her service that resulted in the addition of profits to the deceased, and any faithfulness or special zeal that she manifested in the conduct of the business, so far as it was intrusted to her, —so far as she had any management of it, — whatever the facts may be, and all other facts and circumstances connected, as shown by the evidence. All of these things are to be considered in determining the value of her services. But you have not any right to go beyond what would be reasonable compensation for her services. You should be governed entirely by the evidence in the case. * * *
“It is not sufficient to show that there was a general expectation or intention on the part of the deceased to leave something to claimant by her will, or provide for her by will, and that claimant expected to receive something, or be provided for by will. Such intention on the part of the deceased, if it existed, is like a will itself, — of such a nature that deceased could change it at any time during her lifetime; and claimant would have no claim for such change of intention, unless there was an express-promise, definite and certain, founded upon consideration, to leave such a will in claimant’s favor.
“If the claimant is entitled to recover at all, she can only recover the actual intrinsic value of her services for the time they were rendered, and according to their kind and character, without reference to the alleged contract or the value of the property which Mrs. Williams had at her death.
“The nature of the relation shown to exist between claimant and deceased requires the contract claimed to exist between them to be proved by a kind of evidence-that is very different from that which may be sufficient between strangers. It must be direct, positive-, express, and unambiguous; that is, incapable of more than one-construction. The terms must be clearly defined, and all acts necessary for its validity must have special reference to it, and nothing else. I do not understand that the word ‘terms’ there includes, or is intended to include,, the fixing of the price. I have directed you that no price need be fixed, if the other terms existed. It appearing-that Sophia Williams was living with Mrs. Williams as her daughter, — in other words, that the relation of parent and child existed, — there can be no agreement implied that claimant was to receive compensation for her-services. If you find that the claimant worked or performed services, trusting to the generosity of Mrs. Williams to reward her by will or otherwise, this does not establish any contract to pay her for her sendees, and upon such a state of facts alone the claimant cannot recover in this action; that is, if there was no promise. The jury cannot find that there was a contract between Mrs. Williams and the claimant to pay for claimant’s services merely from a violation of a void contract set up in claimant’s first count or claim. Neither can the jury find that there was an agreement between Mrs. Williams and claimant to pay for claimant’s .services from the fact that Mrs. Williams expected to compensate claimant for her services by will, and claimant expected that Mrs. Williams would reward by will in such sum as Mrs. Williams should think proper. There must be something more, as I told you; that these expectations must rest apon some promise, upon some legal liability. To constitute a contract it is necessary that the minds of the two parties meet upon something certain and definite; and certain loose statements, expressions, or intentions of one party as to what she expects to do, or expectations on the part of the other party that .something would be done for her benefit, do not constitute, of themselves, a contract.
“If the jury find that the claimant performed valuable services for decedent, from which services decedent received substantial benefits, from the spring of 1873 until the time of her death, in April, 1892, under a promise made by decedent to her that she should be rewarded for such services at the death of decedent, by will or otherwise, claimant is entitled to recover what such services so rendered by her are reasonably worth.”

It is contended by counsel for the estate that it was conceded that claimant was, during all the time for which she claims compensation, a member of decedent’s family, and that they stood towards each other in the relation of l>arent and child; that when such relationship exists no promise to pay for services will be implied; that an express promise must be shown by clear and positive legal evidence; that the testimony tended to- prove but one contract; that such contract was entire; that it was illegal and void under the statute of frauds; that a contract void under the statute of frauds is a mere nullity, and cannot be made use of to establish an express contract to pay for services, nor is evidence of it admissible as bearing upon the services rendered.

The statute was intended to prevent fraud by setting-up and enforcing by parol proof simulated contracts. It has frequently been held that no action can be maintained upon a contract which is within the statute; that it cannot be the basis of a. recovery; and many cases hold that it cannot be resorted to as fixing the measure of damages. But it may be resorted to for the protection of the party sought to be charged. In a case where a recovery is sought for services performed, it has uniformly been held good as a contract of hiring; and there can be no doubt but that it may be resorted to as negativing any presumption that the services were intended to be gratuitous. In Philbrook v. Belknap, 6 Vt. 383, plaintiff agreed to serve defendant for three years for a stated monthly compensation, but, after serving six months, he left defendant’s service, and sued to recover pro rata for his services. The court held that, although the contract was within the statute, yet defendant might protect himself under its terms. The court say:

“If the defendant had sued the plaintiff for not performing the contract in not serving the full period, the case would be open to a defense under that statute; the contract being, to the purposes of such a suit, executory, and the attempt being to sustain an action on it as such. But in this case the contract, so far as the service has been performed, is executed, and is relied on as regulating and determining the right of the plaintiff to compensation for what has been done under it. We are here concerned only with what has been done. The question is what the plaintiff is entitled to for his labor, and this depends upon the terms of the contract under which he performed the service. Had the whole service been performed, the rate of compensation would, without doubt, be regulated by the terms of the contract. No court would discard that contract, and resort to a quantum mem it. The principle is the same as to a performance in part.”

In Knowlman v. Bluett, L. R. 9 Exch. 307, defendant verbally agreed with plaintiff to pay her a specific sum per annum, in quarterly installments, for caring for defendant’s children. Held, that plaintiff was entitled to recover as for money paid at defendant’s request, at the rate fixed by the verbal agreement, even assuming that the agreement was not to be performed within a year.

In Mavor v. Pyne, 3 Bing. 285, a contract was made for 24 numbers of a periodical work, to be delivered monthly, at a guinea a number. Although the contract was held void because not reduced to writing, a recovery was permitted for tlie numbers. actually delivered at the rate fixed by the contract. It is true that the court treated the contract as divisible, but it was nevertheless a void contract at its inception, and could not have been enforced, nor would a recovery have been allowed if defendant had refused to accept under it.

In Ham v. Goodrich, 37 N. H. 185, the decedent, in consideration that plaintiff would go with his family, and reside with deceased on his farm, take care of the deceased, and cultivate the farm during his life, promised that he would convey the farm. Plaintiff complied, and at the decedent’s death presented a claim against the estate for Ms services. The court held that no action could be maintained upon the contract, but say:

“The jury were instructed by the court that they might take into consideration the agreement, and all the circumstances under which the plaintiff went to reside with his father; and under the instructions they could, had they seen fit, have given damages equal to the value of the farm. But for the court to have gone further, and said that the value of the farm must be the measure of damages, — that the jury were controlled by that, — would have been giving, in one respect, full effect to the agreement, and would have made it the foundation of the verdict. The agreement was only evidence which the jury could consider, in connection with the other testimony, as showing the circumstances under which the services were performed, which were sought to be recovered under the general counts; and to give it a conclusive effect as fixing the damages would be to make it a binding contract, obligatory upon the parties, as much so as if it were in writing.”

The case was approved in the subsequent case of Emery v. Smith, 46 N. H. 151. The same rule is announced in Burlingame v. Burlingame, 7 Cow. 92, and King v. Brown, 2 Hill, 485, both of which were cases where the agreement was to compensate for the services by conveyances of land.

Our own cases do not conflict with this rule. It has been said by this court that a contract void under the statute of frauds is a mere nullity, and cannot be used for any purpose whatever. From an examination of these cases, however, it will be found that the rule has been applied only in cases where the contract was a naked verbal contract, not only at its inception, but so continued; an executory; contract, resting entirely in parol, unsupported by subsequent acts in recognition thereof. Chamberlain v. Dow, 10 Mich. 319, and Grimes v. Van Vechten, 20 Mich. 410, were actions based upon verbal orders for goods exceeding $50 in value, and the court held that there had been no binding acceptance. Hall v. Soule, 11 Mich. 494, was brought upon a verbal promise to pay the debt of another. In Colgrove v. Solomon, 34 Mich. 494, Solomon had agreed with Mrs. Col-grove to convey to her a piece of land in satisfaction of an existing indebtedness, and before acceptance of the deed she repudiated the agreement. In Hillebrands v. Nibbelink, 40 Mich. 646, the father was indebted to the son for services rendered, acknowledged the debt, and promised that the son should have the farm. In Liddle v. Needham, 39 Mich. 147, a father had agreed to give a note upon the conveyance of certain lands to his son; The court held that the verbal promise to convey the land furnished no consideration for the promise to give the note. The evidence tended to show that the son had never accepted the conveyance, and that the father had made no promise after the execution of the deed. In Sutton v. Rowley, 44 Mich. 112, the claim was based upon the contract, and the court say: “There is no claim that this agreement was in writing, and there is nothing to indicate that it could be enforced as a parol agreement an account of facts taking it out of the operation of the statute of frauds.”

The other cases wherein the rule contended for is laid down will be found to rest upon the same principle. In all of these cases the contracts were not susceptible of enforcement at law or in equity, and the application of the rule is based upon that fact. This is made clear by the language of the same court in Holland v. Hoyt, 14 Mich. 238, and Scott v. Bush, 26 Mich. 418. In Holland v. Hoyt the parties agreed to exchange lands. Holland delivered his deed to Hoyt. The latter refused to deliver his deed unless Holland gave his note for $1,000. Holland, protesting, gave his note, and in a suit upon the note set up want of consideration. It was insisted that, the original agreement being within the statute, the subsequent transaction must control. Mr. Justice Campbell, speaking for the court, says:

“The entire transaction prior to the deeds was verbal, and, of course, if no deeds had been made, could not have been the ground of relief at law or. in equity. But when a verbal contract is performed by the conveyance of land on the one part, there can be no difficulty in compelling the equivalent from the other contracting party. A court of equity can decree specific performance, if that is needed, and a court of law can allow a recovery of the purchase money, if that is all that is sought. Thomas v. Dickinson, 12 N. Y. 364. If Mr. Hoyt himself accepted Holland’s deed in fulfillment of a parol bargain to exchange lands, then Holland could' have compelled the exchange in equity, and Hoyt could not have refused to make it. And if Holland had a' right to receive the land from Hoyt for the price already paid, it can make no difference that he could only obtain specific performance in equity. Paying or promising to pay anything more for the land would be paying for what he owned already. An equitable title is just as much- property as a legal title, and, although not- enforced directly in a court of law,- stands on the same footing with legal titles as a consideration. And if Holland, under such circumstances, should see fit to sue for the price of his land at law on Hoyt’s refusal to convey, he would recover the value of that which Hoyt ought to have conveyed to hum.”

In Scott v. Bush a verbal contract was entered into for the purchase of certain lands. The would-be purchaser paid a portion of the purchase money, and afterwards brought suit to recover back such money. The court held that, the contract being void, neither party could enforce it, and that the vendee had the right to recover as for money received without consideration. The court, however, say:

“Some decisions have apparently disregarded this distinction between contracts made valid by part performance and stipulations or arrangements which have never become binding. An agreement made valid by part performance is in laio as valid as in equity for ail purposes except the remedy to enforce it. An equitable right is as good a consideration for a contract as a legal right.”

The court also allude to the rule that a contract void under the state te of frauds is a mere nullity, and cannot be used for any purpose whatever, and say:

“We cannot conceive of such a thing as a contract which cannot be enforced as a contract, and yet can be the foundation of legal obligations arising out of nothing else.”

The distinction between a mere naked parol contract and a contract made susceptible by part performance of enforcement in equity is clearly pointed out, and the conclusion reached that “there is no middle ground between binding contracts, and the absence of any binding obligation.” See, also, Fuller v. Rice, 52 Mich. 135; Putnam v. Tinkler, 83 Mich. 629, 638.

In the present case we are not dealing with a contract resting in parol. Under all the facts and circumstances, the jury were justified in concluding that the services were performed in reliance upon the contract, and were accepted in recognition thereof. The proof does not rest alone in parol, but upon the subsequent conduct of the parties as well, — performance on the one part, and acceptance on the other. It has frequently béen held that a party admitted into possession of land under an oral contract for its purchase is entitled, upon the execution of the contract on his part, to specific performance, and that in such case the parties have so far carried the contract into effect as to validate it. Twiss v. George, 33 Mich. 253; Davis v. Strobridge, 11 Mich. 157; Kinyon v. Young, 44 Mich. 339; Lamb v. Hinman, 46 Mich. 112; Murphy v. Stever, 47 Mich. 522; Fairfield v. Barbour, 51 Mich. 57; Welch v. Whelpley, 62 Mich. 15. In several of the cases the possession was not exclusive. The contract in the present case contemplated joint possession and operation so long as both parties should live. ' There was abundant testimony tending to rebut the presumption that the services were rendered gratuitously, and the court was fully justified in submitting that question to the jury. The testimony tended to show that the services were performed with the mutual understanding that at the death of Marie L. Williams claimant should succeed to the estate, and that decedent had agreed to make a will accordingly. When a promise is made to compensate for services by will, and the promisor dies without so providing, the value of the -services may be recovered as a claim against the estate. Faxton v. Faxon, 28 Mich. 159; Sword v. Keith, 31 Mich. 247; Carmichael v. Carmichael, 72 Mich. 85; Fenton v. Emblers, 3 Burrow, 1278; Jacobson v. Le Grange’s Ex’rs, 3 Johns. 199; Patterson v. Patterson, 13 Johns. .379; Martin v. Wright’s Adm’rs, 13 Wend. 460; Eaton v. Benton, 2 Hill, 576; Bayliss v. Pricture’s Estate, 24 Wis. 651; Jilson v. Gilbert, 26 Wis. 637; Little v. Dawson, 4 Dall. 111; Snyder v. Castor, 4 Yeates, 353. When the promise rests in parol, its performance cannot be enforced in equity, if lands are to be devised (Harder v. Harder, 2 Sandf. Ch. 19; Gould v. Mansfield, 103 Mass. 408), unless under such circumstances as would justify the enforcement of a parol contract for the conveyance of lands (McClure v. McClure, 1 Pa. St. 374). But, if the contract is not within the statute of frauds, equity may compel those on whom the legal title has devolved to convey lands in fulfillment of the promise to give them by will. Randall v. Willis, 5 Ves. 262; Fortescue v. Hennah, 19 Ves. 67; Brinker v. Brinker, 7 Pa. St. 53; Logan v. McGinnis, 12 Pa. St. 32; Mundorff v. Kilbourn, 4 Md. 459.

One witness says that Mrs. Williams at one time said that “it was agreed that they were not to get married.” No other witness refers to that 'subject. It does not appear that this was one of the conditions of the agreement, or that it was more than a conclusion arrived at by both parties. It was in response to a question as to whether anything was said as to how long they were to live together and work together.

Claimant was sworn, and testified as to the fact of an agreement in writing having been made between her mother and Thomas R. Williams; that she continued to live with. Mr. and Mrs. Williams after the expiration of the term named in the contract; that her name was Sophia Smith; that Mr. Williams died in 1872, in the insane asylum at Kalamazoo; that he was taken to the asylum in November, 1871; that prior to that time Mr. Williams had gone to New York to consult a physician with reference to his eyes, and that subsequently he became blind. None of these matters were disputed, and the estate could not have been prejudiced by the testimony.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J. Montgomery, J. McGrath, C. J.

text:
    METCALF v. TIFFANY.
    1. Husband and Wife — Alienation of Husband’s Affections.
    Evidence reviewed, and held to be sufficient to justify a finding by the jury that the defendant was guilty of the alienation of the affections of plaintiff’s husband. Grant, J,, dissenting.
    3. Same — Damages—Loss of Support — Release and Discharge.
    Where a wife, by articles of separation between herself and husband, for a valuable consideration paid and accepted, releases the husband from all obligations to support and maintain her, she cannot thereafter, in an action for the alienation of the husband’s affections, recover damages for the loss of such support. McGrath, O. J., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted March 1, 1895.
    Decided October 1, 1895.
    Case by Ella Metcalf against Belle M. Tiffany for the alienation of the affections of plaintiff’s husband. From a judgment for the plaintiff, defendant brings error.
    Reversed.

      Corliss, Andrus & Leete (Edwin F. Conely, of counsel), for appellant.

      Willoose & Whelan (Henry M. Duffield, of counsel), for appellee.
   Grant, J.

The plaintiff recovered verdict and judgment for the alienation of her husband’s affections. The declaration contains two counts. The first count charges that while the plaintiff was living happily with her husband, enjoying his affection, support, protection, and respect, the defendant unlawfully, willfully, wickedly, and maliciously gained the affection of her husband, and sought to persuade and entice him, by offers of money and a comfortable home and other alluring promises, to leave her without support and drive her from her home in the city of Detroit; that at various times between the 26th day of December, 1888, and the 17th day of September, 1891, by. letters and otherwise, and by arts and wiles, the defendant continued her unlawful inducements, by offers of money to him and otherwise, and finally, on the 17th day of September, 1891, succeeded in willfully, unlawfully, and maliciously enticing him to desert plaintiff and drive her from his home and leave her without means of support and alone, and to remain and live with the said .defendant in her house in the city of Detroit, at which place she has ever since detained and harbored him. The second count is more general in its statements, and it is unnecessary to notice it.

Plaintiff and her husband were married in December, 1888, she being 23 years old, and he 24. Mrs. Tiffany was a widow 42 years old, with one child, a daughter, then about 13 years of age. Her husband was a physician, and, after his death, she continued to reside in the house (754 West Fort street) in which her husband had had an office. Mr. Metcalf had graduated from the medical department of the University, and in July, 1888, applied to Mrs. Tiffany, to whom he was then unknown, for the office, which he rented. In September following, he commenced boarding with her. After the marriage, plaintiff and her husband boarded with Mrs. Tiffany for about four months. During this time they occupied the second story of the house, and Mrs. Tiffany and her daughter occupied the ground floor. The doctor’s office was in the wing. Mrs. Tiffany did her own housework, having no servant. Mrs. Tiffany, being in poor health, gave up housekeeping, whereupon plaintiff and her husband took the lower floor and kept house, and Mrs. Tiffany and her daughter the second floor, and they for a while took their meals at another place. Mrs. Metcalf also did her own housework, having no servant.

Plaintiff and her husband became estranged, and on September 17, 1891, executed articles of separation, in which it was recited that certain differences and difficulties had arisen between them of such magnitude that both recognized the fact that they could no longer live together as husband and wife. He agreed to give her the sum of $2,000 in cash and certain articles of household property, to be mutually agreed upon, in consideration whereof she agreed to release and discharge him from any and all obligations to support and maintain her during her natural life, and she further agreeing 'to release and surrender any rights she might have in any property owned by him.' This agreement was carried out, and the money paid to her. Some time afterwards, but when the record does not show, plaintiff instituted this suit.

There is no evidence to sustain the most damaging allegations in the declaration. It is not shown that defendant ever wrote Mr. Metcalf a letter of any kind, that she ever offered him a home or money," or induced him to leave the plaintiff, or that she ever detained and harbored him against plaintiff’s will, or that-she ever spoke disparagingly of her to him. There is no testimony or pretense that any criminal relations existed between her husband and defendant. Plaintiff testified that, not long after their marriage, she once saw her husband kiss the defendant, but it was not shown that the act was invited or even reciprocated by her. Mrs. Tiffany testified that Dr. Metcalf immediately apologized for the act, and this is not denied. Once her husband was very sick with inflammation of the bowels, so sick that he could not help himself, and Mrs. Tiffany and plaintiff took care of him. Fresh poultices were required to be applied every fifteen minutes. One evening the plaintiff lay down in an adjoining room, to rest till 12 o’clock, leaving Mrs. Tiffany to take care of her husband. It was understood what the treatment was, and it did not seem to occur then to the plaintiff that there was any indelicacy or impropriety in leaving Mrs. Tiffany to attend her husband, with herself in the adjoining room, and the door open. Plaintiff testified that by that time she had become jealous, that she got up about 12 o’clock from the lounge, went into the room, and that Mrs. Tiffany was lying upon the bed. They were not talking, and she saw no demonstration of anything improper, except that she was lying upon the bed. This Mrs. Tiffany strenuously denied, and testified that she was sitting in a chair by the bed. Mrs. Metcalf went to bed the next day, and, without protest or objection, left Mrs. Tiffany to take care of her husband. These are the only acts of impropriety which plaintiff noticed during the time that they lived together, although she was constantly on the watch for them. Plaintiff testified that from the summer of 1889 until September, 1891, she never saw anything wrong between them. Her state of mind will appear from the following portion of her testimony:

“From a month after I was married to the present time, I have had suspicion that there was something wrong between them. It has been ever present in my mind. In all my watchings, all that I have seen was the time when Mrs. Tiffany was carrying a pitcher of water, and the time when I saw her on the bed with the doctor when he was sick. I did not see her kiss him then.”

They were on friendly terms during all this time, Mrs. Tiffany visiting plaintiff’s friends, and they went to the opera house and other places together. No ill will was shown to exist on the part of the defendant towards plaintiff. Two other witnesses testified to two other instances where each said he saw Dr. Metcalf and the defendant kiss each other. These were unknown to her till some time after.the separation. Mrs. Tiffany went riding with the doctor quite often when visiting his patients. This appears to have been by a common agreement or understanding between plaintiff and defendant, who was then in poor health. When plaintiff and her husband rode out together, defendant remained at home, and answered office calls. Upon this point she testified as follows:

“The practice of her riding out in the morning and I in the afternoon did not begin until after we went to housekeeping, which was about four months after our marriage. Before that time I usually went with him to look after the horse, and occasionally Mrs. Tiffany would go. She went mostly in the afternoon when she was housekeeping. It is a fact that my going and her going was according to our several duties in the house; that is, when I had some housekeeping affairs to look after, I did not go, but she went, and, when she had the same to look after, I went, but she did not go.”

I deem it unnecessary to lengthen out this statement of facts by the testimony in detail'. At the close of the evidence, defendant’s counsel requested the court to instruct the jury that plaintiff had failed to make out her case, and to direct a. verdict for the defendant. I think the instruction should have been given. The record is barren of any evidence tending to show that the defendant harbored any ill will towards the plaintiff, or that she ever uttered a sentence showing any purpose to alienate her husband’s affections or to cause a separation between them. There is no evidence of a single improper expression by her to or about Dr. Metcalf. A cause of action is left to inference from the acts above stated. If it be granted that there is evidence of any improper relations between them, it was incumbent upon the plaintiff to prove that the defendant was the aggressor rather than her husband. In such cases there is no presumption that the woman is the moving party, and primarily responsible for such conduct. The presumption is the other way. In a case where there was criminal intimacy, it was held that, in order to charge the defendant with alienating the husband’s affections, it must appear that she was the seducer and enticer. Churchill v. Lewis, 17 Abb. N. C. 226. The record in this case will, in my judgment, be searched in vain to find any evidence from which it can fairly be found that she was the moving party. This disposal of the case renders it unnecessary to discuss the other questions raised.

I concur in the opinion of my Brother Montgomery upon the question of damages.

Judgment should be reversed, and new trial ordered.

Montgomery, J.

There was evidence tending to show that defendant had alienated the affections of plaintiff’s husband. It is true there was no direct evidence to the fact, but circumstances were shown from which the inferences drawn by the jury were justified.

I think, however, the court erred' in the instructions relating to the measure of damages. By the sixth request, defendant asks the court to charge, in substance, that the

plaintiff having, by the agreement of separation, upon consideration paid and accepted, relinquished her claim upon her husband for support, she cannot in this action recover damages for the loss of support or property. This the court refused to do, and charged the jury that the receipt of $2,000 under the separation paper was not a bar to plaintiff’s claim for damages from the defendant for the loss of her husband’s support and maintenance, and the jury could only consider the same in reduction of the pecuniary loss growing out of such failure of support and maintenance. The plaintiff’s case rested upon proof that the husband refused to live with her longer, and the testimony tends to show defendant’s responsibility therefor. This proof, if sufficient to satisfy the jury, entitled her to recover for the loss of her husband’s society and her means of support; but in establishing such right she also showed a right in herself to enforce, by appropriate proceedings, her claim to support and maintenance suitable to his station in life. Schouler, Husb. & Wife, § 72; Sherrid v. Southwick, 43 Mich. 515. This right to .support was a continuing right, and, if the plaintiff had for all the years since the separation enforced it, it is clear she could not now recover from 'the defendant for the withdrawal of her means of support during this period. Should the case be different if, instead of standing-on this right, she acquit him of the obligation on consideration? To hold that it should would open the door to collusion between the injured wife and her husband, and would give the wife a double remedy. She undoubtedly had a right to elect to proceed either against her husband or the defendant; but, having recovered or secured adequate compensation from her husband for all time by action, she could not again recover compensation from the defendant. I fail to see why her right should be greater if, in the absence of fraud, she accept a reasonable amount in settlement, as she may do. Randall v. Randall, 37 Mich. 563. See, also, Eastland v. Burchell, 3 Q. B. Div. 432. The plaintiff’s recovery for withdrawal of support and maintenance must be limited by her right to support. When she has surrendered her right to support, how can it be said that the defendant has deprived her of it? It is not actionable to cause to be withheld from a person that to which he is no longer entitled. What is said above has no reference to such damages as the plaintiff is entitled to for the loss of the society of her husband. The case of Izard v. Izard, 14 Prob. Div. 45, cited to sustain the ruling of the circuit judge, does not decide the question. Action was by the husband, and the duty of support and maintenance was not involved. The real point for decision appears to be whether the husband lias any action for adultery committed with the wife after deeds of separation. It was affirmed that he had.

The judgment should be reversed, and a new trial ordered.

Long and Hooker, JJ., concurred with Montgomery, J.

McGrath, C. J.

(dissenting). I am not prepared to say that, by the agreement made with her husband after the relations between husband and wdfe had become strained, plaintiff is precluded , from showing the difference between the amount accepted under those circumstances and the amount sufficient to maintain her as she had been maintained prior to the interruption of those relations. The character and extent of the support contributed by a husband to his wife are not determined by the rule which would be applicable in the settlement of the question of alimony in a divorce cáse; nor should plaintiff be concluded by a settlement, as between her husband and herself, forced or suggested by the situation into which the parties had been brought by defendant’s misconduct.


text:
    LAMBECK v. GRAND RAPIDS & INDIANA RAILROAD CO.
    Negligence — Proximate Cause — Horse Beyond Control op Driver.
    Where a horse becomes frightened and beyond control, and runs away, and by reason thereof collides with an object in the highway, such fright is the proximate cause of an injury to the driver from the coliision. Accordingly, where, in an action against a railroad company for injuries sustained in consequence of the collision of plaintiff’s carriage with a freight car alleged to have been negligently permitted to encroach upon the highway, it appeared that plaintiff’s horse had taken fright, and had run for a block or more, and that plaintiff saw the car, but was unable to prevent the horse from running the carriage against it, it was held that verdict was properly directed for defendant under the rule stated. McGrath, C. J., dissenting.
    Error to Kalamazoo; Buck, J.
    Submitted April 5, 1895.
    Decided October 1, 1895.
    Case by Jeanette Lambeck against tbe Grand Rapids & Indiana Railroad Company for personal injuries. From a judgment for defendant upon verdict directed by tin* court, plaintiff: brings error.
    Affirmed.

      Osborn, Mills & Master (E. M. Irish, of counsel), for appellant.

      T. J. O’Brien and J. H. Campbell (Howard & Roos, of counsel), for appellee.
   Hooker, J.

If a horse becomes frightened and beyond control, and runs away, and by reason thereof collides with an object in the highway, such fright is the proximate cause of an injury to the driver, and the only proximate cause, in one case as much as another, whether it causes the horse to fall down an embankment, back off a bridge, attempt to jump over a train of cars entirely obstructing the highway, or run into and among a lot of railway iron in the highway. And, so far as the question of proximate cause is concerned, it is as true in a case where a horse becomes frightened without fault of the driver, and runs with a driver behind him, as where he breaks his halter and runs away by himself. In all of these cases it may be said that the fright is one cause, without which the accident might not have happened, and that the -presence of the object with which the collision occurs is another, without which it could not have happened. And if the fright is the proximate, and the object the remote, cause in one of these cases, the conclusion is irresistible that it is in all of them. There are authorities that hold that both, are proximate, as they clearly are concurring, causes. See Grimes v. Railway Co., 3 Ind. App. 573; No. Manchester Agr’l Ass’n v. Wilcox, 4 Ind. App. 141; 16 Am. & Eng. Enc. Law, 436, 440, and cases cited. But the decisions of this State are at variance with this doctrine. Beall v. Township of Athens, 81 Mich. 536; St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463; Bleil v. Railway Co., 98 Mich. 228.

As the plaintiff’s own testimony shows that her horse had run for a block or more, and that she saw the oar standing in the highway, but could not keep him from running the carriage against it, we must find that he was beyond control, through fright, and that this alone, under the cases cited, was the proximate cause of the accident.

The judgment should therefore be affirmed.

Long, Grant, and Montgomery, JJ., concurred with Hooker, J.

McGrath, C. J.

(dissenting). The court below seems to have considered this case as ruled by Bleil v. Railway Co., 98 Mich. 228. In that case the horse was at large. In the class of cases cited in Langworthy v. Township of Green, 95 Mich. 93, which hold that a horse is not considered as beyond control that merely shies and starts, it was nevertheless, in each case, the shying of the horse that brought the vehicle into contact with the defect or obstruction. But those cases are put upon the ground that highways are constructed with reference to just such probable occurrences; that travelers thereon are entitled to an opportunity to recover control of horses that may be startled suddenly; and the defect or obstruction which adds to the danger, and does not permit of an opportunity to regain control, is regarded as the proximate cause. It seems to me that the reason for the rule exists in any case where there was a probability of regaining control had it not been for the obstruction, and that is a question for the jury. In the present case, an ordinarily gentle horse, which plaintiff had frequently driven, was startled by the bite of a fly, and when the buggy collided with the obstruction plaintiff had the reins still in hand.

I think the judgment should be reversed, and a new trial awarded.


author: Montgomery, J.

text:
    BUSCH v. WILCOX.

    1. Judgment — Set-Off—Res Judicata — Action on Supersedeas Bond.
    Where, in an action for fraudulent representations inducing the execution of a logging contract, the plaintiff recovers judgment under a ruling of the court that certain overpayments claimed to have been made on the contract by the defendant should not be considered in reduction of damages, for the reason that they are the subject of another suit between the parties, the plaintiff, in a subsequent action upon the supersedeas bond given on appeal from such judgment, in which defendant claims a set-off to the amount of said overpayments, is estopped to assert that defendant’s claim is barred by the judgment in the former action.

      2. Statute of Limitations — Set-Off.
    Under 3 How. Stat. § 8731, a debt alleged by way of set-off is not barred by the statute of limitations unless the statutory period had run against it before the accruing of the claim upon which suit is brought.
    3. Logging Contract — Overpayments—When Cause of Action Accrues.
    A logging contract provided that the amount of timber cut should be determined by the saw bills. By the terms of the sawing contract, a specified part of the price per thousand was to be paid upon monthly estimates, and the balance as the lumber was shipped, unless the owner should decide to leave lumber on the dock until the following spring, in which case final payment was to be made when the job was completed. Measurements were to be made by a competent person to be agreed upon by the parties, and were to be conclusive. The sawing was finished the latter part of September. No measurement was made of the lumber left upon the dock, but on November 1st an estimate thereof was furnished, and payment made accordingly. When the lumber was subsequently shipped, it was found to overrun the previous estimate, and payment was made for the excess. Held, that a cause of action for overpayments alleged to have been made on the logging contract did not arise, in any event, prior to the statement of November 1st, so as to set the statute of limitations in motion as against the same.
    4. Supersedeas Bond — When Eight of Action Accrues — Behearing — Taxation of Costs.
    A right of action orí a supersedeas bond given under 2 How. Stat. § 8679, accrues upon the rendition of a judgment of affirmance in the appellate court, or, at the latest, upon the earliest date at which costs may be taxed, although the costs are not taxed at that time, and a motion for rehearing is after-wards made.
    5. Appeal — Behearing—Stay of Proceedings.
    A motion for rehearing in the Supreme Court does not, of itself, operate to stay proceedings on a final judgment.
    Error to Wayne; Donovan, J.
    Submitted April 3, 1895.
    Decided October 1, 1895.

      Assumpsit by William C. Busch against George A. Wilcox and others on a supersedeas bond. (See 82 Mich. 815, 336; 94 Mich. 223.) From a judgment for plaintiff, defendants bring error.
    Reversed.

      John D. Conely, for appellants.

      Cowles & Jerome (Henry M. Dufficld, of counsel), for appellee.

       R hearing denied December 17, 1895.

   Montgomery, J.

Action on the supersedeas bond given on the appeal of the case of Busch v. Wilcox, which is reported in 82 Mich. 315. That action was based upon an alleged fraudulent representation concerning the subject-matter of a logging contract, and in the action plaintiff recovered a verdict of $5,000, which was, on appeal to this court, affirmed. The defendants in this action on the bond undertook to set off, against the claim of the plaintiff, a demand due defendant Wilcox arising out of the same contract, and consisting of a claim for overpayment made by Wilcox to Busch, while he (Busch) was engaged in the performance of the contract. The plaintiff contends that this claim of set-off is barred by the previous judgment in the fraud case, and, further, that, if it should be held that that judgment does not preclude the defendant, his claim was barred by the statute of limitations before this suit was brought.

1. It appears that on the trial of the fraud case the court instructed the jury as follows:

“Some evidence has been introduced that Mr. Wilcox paid Mr. Busch more than the contract price of the logs put in, and it is conceded by counsel for both parties that, since the present action was commenced, Mr. Wilcox has sued Mr. Busch to recover back such’ overpayments, if made. Another jury in the other case will pass upon that, and allow Mr. Wilcox with interest, — that is, if he is entitled thereto; and you, therefore, should not attempt to deduct the amount of such overpayments from the damages you find, if you find Mr. Busch is entitled to any.”

Mr. Justice Champlix, speaking for the court, on the appeal of the fraud case, after referring to this instruction, said that “his (Wilcox’s) remedy was therefore left intact for any overpayment or breach of contract on Busch’s part.”

This must be treated as the rule established for this case. The plaintiff having had the benefit of that rule, it would be grossly inequitable for him to be permitted to now assert that his damages, which he recovered under that ruling, were excessive, and should have been reduced by, the amount of defendant’s claim, and- that, as they were not, the claim is barred. See Michels v. Olmstead, 157 U. S. 198; Philadelphia, etc., R. Co. v. Howard, 13 How. 307; Davis v. Wakelee, 156 U. S. 680; Busch v. Jones, 94 Mich. 223.

2. 2 How. Stat. § 8731, reads:

‘iA.ll the provisions of this chapter [relative to limitations of personal actions] shall apply to the case of any debt or contract alleged by way of set-off on the part of a defendant, and the time of the limitation of such debt shall be computed in like manner as if an action had been commenced therefor at the time when the plaintiff’s action was commenced, provided such debt or contract would have been barred according to law before the accruing of the claim or demand upon which such defendant is sued.”

Under the terms of this statute, the claim of defendant is barred if the period of limitation had run against it before the accruing of the cause of action upon which the plaintiff brings suit, and not otherwise. The only two questions material to be considered, therefore, in determining whether the statute bars the claim, are when the plaintiff’s cause of action accrued, and when the defendant’s cause of action matured.

By the terms of the logging contract between Busch and Wilcox, the logs were to be scaled on the skids, but there was testimony tending to show that, after the work was entered upon, that agreement was modified, and it was agreed that the amount of the lumber cut was to be determined by the saw bills. At this time it was not determined whether the lumber was to be sawed at Cheboygan or Prentiss Bay. Subsequently an arrangement was made between Packard Bros., of Cheboygan, and Noyes & Sawyer, who had become interested in the timber, that the sawing should be done at Cheboygan. The contract between these parties, Noyes & Sawyer and Packard Bros., provided that the sawing should be paid for at the rate of $2.75 per 1,000; that the estimate should be made on the first of each month, and $2 per 1,000 paid upon this estimate; that the remaining 75 cents should be paid from time to time, as fast as the lumber was shipped; and, in case Noyes & Sawyer decided to leave lumber on the dock during the winter, the 75 cents per 1,000 feet should be paid when the job of sawing was completed, and the lumber should be shipped in the spring. It was also provided that the amount should be measured by some competent person, to be agreed upon between the parties, at their mutual expense, and that the measurement' should be conclusive between the parties, as to the amount, in settling for such sawing. It appears from the testimony that the last of the sawing was done about the 23d of September, 1884; that no measurement of the lumber left upon the dock was made, but that on the 1st of November an inspection of the amount was made and a bill furnished by Packard Bros, to Noyes & Sawyer, containing a charge for 930,000 feet on dock ready for shipment, accompanying which was a letter, in which the following occurs: “The 930 M., as estimated, is rather under than over the amount on hand.” There was testimony tending to show that when the shipments were subsequently made, in the summer of 1885, it was found that the amount left on the dock did exceed 930,000 feet by a few thousand feet, and that Noyes & Sawyer paid Packard Bros, for the excess.

On the former hearing of this case, reported in 94 Mich. 223, under the title of Busch v. Jones, we held that under the agreement between the parties, that Wilcox should advance money upon the contract, and that the quantity of logs cut should be determined by the mill scale, the right of action for any excess of these advances would not accrue until the amount of lumber cut had been ascertained according to the method agreed upon. The plaintiff now contends that as the agreement between Noyes & Sawyer and Packard Bros, provided for a scale to be made at the close of the sawing season, and that as an estimate, which the parties acted upon, was made November 1, 1884, this must be deemed as fixing the saw bill contemplated, and that either date is more than six years before the plaintiff’s cause of action accrued. On the other hand, the defendants contend that the agreement with plaintiff contemplated that the actual scale should govern, and that this scale was not actually made until the summer of 1885, when the lumber was shipped out, and that the 1st of November estimate was not intended to be final; but it is further contended that, if it had been, this was within six years of the date when plaintiff’s right of action accrued.

The circuit judge charged the jury as follows:

“If the jury believe that Busch should be allowed the same as a sawmill owner, even then there was no settlement until November,1890 [1884?]; but if you believe he agreed with Hall to take the measure, and that the measure should be when it was shipped, that would be the final measure, then that would be the date of settlement."

In another portion of the charge the circuit judge said:

“The right of action upon the bond accrued upon the rendition of the judgment of affirmance in the Supreme Court, October 10,1890."

Notwithstanding these instructions, the court left it to the jury to determine whether the set-off was barred by the statute of limitations, saying that if the date of settlement was found to be July,1885, the defendant’s demand was not barred, and implying that otherwise it was.

If the circuit'judge was right in his statement that the defendant’s claim in no event accrued before November 1, 1884, and that plaintiff’s demand in suit accrued October 10, 1890, it follows that the defendant was entitled to an allowance of his set-off, as matter of law. The plaintiff, however, contends that the circuit judge was mot right on either proposition, contending, first, that the right of set-off was fixed September 28 or October 1, 1884. We think this is too narrow a construction of the contract between Noyes & Sawyer and Packard Bros. Until it-was determined that the lumber was to be left on the dock, to be shipped the following spring, there was no duty on the part of Noyes & Sawyer to pay for the sawing the reserve of $.75 per thousand. The first time that any demand was made for this was November 1st, when the statement was rendered by Packard Bros.; and we think this is the first date at which it can be said that there was anything approximating a measurement, which could amount to a mill scale or constitute a saw bill.

We are also of the opinion that the circuit judge was right in his statement that the plaintiff’s right of action on the supersedeas bond accrued on the rendition of the judgment in the Supreme Court, October 10, 1890. The fact that a motion for a rehearing was contemplated or made did not of itself operate to stay proceedings. Black, Judgm. § 960; Buckley v. Sutton, 38 Mich 1. The fact that costs were not then taxed does not operate to stay the right of action beyond the period in which they might have been taxed. When the costs are taxed, the taxation relates back to the date of the judgment. Hunt v. Middlesworth, 44 Mich. 448; Whelpley v. Nash, 46 Mich. 25. But it is contended that the doctrine of relation should not be applied so as to work prejudice to the rights of the party; but, on the other hand, it was within the power of the plaintiff to have caused the costs to be taxed within a very few days; and while it may be said that, until the period within which costs might have been taxed had elapsed, the statute of limitations would not begin to run, yet, as this was something within the control of the plaintiff, it ought not to be said either that he could, by his delay in taking this proceeding, extend the period of limitations, or that the right which depended alone on his own volition had not accrued. See Palmer v. Palmer, 36 Mich. 487. The case of Weiss v. Wayne Circuit Judge, 50 Mich. 158, cited by plaintiff’s counsel, involved the construction of a statute; and it was held that the statute requiring that execution must issue within 30 days from the date when it is legally issuable, in order to bind the surety, should not be construed as requiring the issue of execution at once on the entry of judgment, as, if it did, this would discharge the surety at the end of 30 days, even if there had been an intervening stay of proceedings. Other reasons were also assigned, but we think that case is clearly distinguishable from, the case under consideration.

The judgment will be reversed, and a new trial ordered.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.