text:
      In re DINGLEY.
    1. Contempts — Punishment—Criminal Nature.
    It is not an open question in this State that the court may punish an offender as for criminal contempt: the power is conferred by 1 Comp. Laws, § 1098 (5 How. Stat. [2d Ed.] § 12589), andexists independently of the statute.
    2. Same — Trial—Jury.
    The issue in cases of crimina] contempt is not for a jury but for the court.

      3. Same — Publication—Criticism oe Court — Newspapers.
    The publication in a newspaper of an article charging the judge, who was presiding over a grand jury, with being the author of an attack upon the prosecuting attorney purporting to issue from the jury, that he used the grand jury for a club to get even with certain citizens of the county, and otherwise criticising his conduct, was a contempt of court, unless the truth of the article could be established.
    4. ‘ Same — Practice—Judge—Dis qualification.
    While the judge who was criticised was not thereby disqualified from sitting in the contempt proceeding, the better practice is to call in another judge.

    5. Same — Time.

      Held, also, that it was improper to proceed with undue haste so as to deprive the offender of a fair opportunity to prepare his case; and that the issuance of an order to show cause dated February 9, 1914, returnable on the 16th of February, on which date the court proceeded to impose punishment, against the protest and objection of his counsel, who asked for more time, did not afford a reasonable opportunity for the respondent to defend himself.
    Certiorari to Kalamazoo; Stewart, J.
    Submitted June 22, 1914.
    (Docket No. 89.)
    Decided July 24, 1914.
    Contempt proceedings against Edward N. Dingley. From a judgment finding respondent guilty, respondent brings certiorari.,
    Reversed.

      Joseph L. Hooper and Lincoln H. Titus, for petitioner.

      E. M. Irish, Alfred J. Mills, and Charles W. Nichols, for circuit judge.

       As to the qualification of a judge to sit on trial of one for contempt consisting of reflections upon himself, see note in 11 L. R. A. (N. S.) 619.

   Moore, J.

February 5, 1914, a grand jury, sitting in tHe county of Kalamazoo, Mich., made a report. The relator, Edward N. Dingley, is the proprietor, editor, and publisher of a weekly newspaper called the “Progressive Herald,” published in the city of Kalamazoo, and circulating in said city and elsewhere. In the issue of said newspaper of the date of February 7, 1914, the following article appeared:

“A Judicial Tirade.
“At last the business of the grand jury is concluded and an even dozen indictments have been returned.
“But the indictments have been lost sight of in the bitter attack made by the Circuit Judge against Prosecuting Attorney Bennett.
“The attack comes nominally from the grand jury, but it is a good guess that the Circuit Judge wrote it.
“This epistle has the ear marks of the Circuit Judge. It is a demonstration that the judge has dominated the situation, and has endeavored to use the grand jury as a club with which to get even with some of our citizens whom he does not like.
“The Circuit Judge says that Bennett has drawn money from the county treasury, illegally, that he refused to assist in the prosecution, and that he is incompetent to hold the office of Prosecuting Attorney.
“The really funny part of this communication is the declaration of the Judge that the Prosecuting Attorney has used language ‘too filthy, vile and disgusting to be embodied in this report/ Those who are acquainted with Bennett know that this charge is not true. Furthermore, the Circuit Judge, so common report says, often indulges in language that fits exactly his own characterization of the prosecutor’s alleged talk.
“Bennett very properly says: ‘If I am guilty of this charge why am I not indicted?’
“Special Prosecutor Nichols telephoned Bennett from Lansing hastening to say that he, Nichols, had nothing to do with the Judge’s screed.
“Now that Kalamazoo has been dragged through the mire sufficiently to suit the most vindictive and most unbalanced man, it would be a good plan for everybody to stop knocking and say a good word about Kalamazoo and his neighbor.
“The endeavor of all should now be in forgetting the personal venom stirred up along the line, and work for the good of Kalamazoo, and her people.
“The truth will prevail and the part played by all the leading actors in the grand jury investigation will be given its proper importance and its real motive and inspiration.”

February 9, 1914, the circuit judge issued an order directing Mr. Dingley to show cause on the 16th day of February, 1914, why he should not be punished for a criminal contempt of said court, because of said publication. Attached to said order to show cause were certain affidavits. The record does not show the date of the service of the order to show cause. On February 16, 1914, the respondent appeared in person, and by his attorney, filed a sworn answer to the order to show cause, and entered a plea of not guilty.

Among other things the record discloses the following:

“State op Michigan.
“The Circuit Court por the County op Kalamazoo.
“In the Matter of Edward N. Dingley, Relator (Contempt Proceedings).
“Chas. W. Nichols appeared for the court.
“Joseph Hooper for the relator.
“Answer filed and relator pleaded not guilty.”
Hs *
“The Court: I understand, Mr. Hooper, that you do not deny the fact that your client, Mr. Dingley, published the article that he is charged with; in fact you conceded that in your answer ?
“Mr. Hooper: Yes, sir; that is admitted.
“The Court: Now if you have any proof, as to the accuracy of the publication, to offer this morning you can put it on the witness stand; otherwise I will proceed at once.
“Mr. Hooper: It would be an absolute impossibility to present proof here this morning that we should be allowed to present. It is wholly out of the question, and we request the court, as a right, to be given such reasonable opportunity under the circumstances as appears necessary for us to prepare a defense and argue the law of the matter.
“The Court: Under your plea and confession we will proceed. You speak for your client, do you?
“Mr. Hooper: Yes, sir.
“The Court: Mr. Nichols, I wish you would show the gentlemen those two letters and see if they recognize them as having come from him or his client. [Mr. Nichols here handed Mr. Hooper two letters.]
“Mr. Hooper: Mr. Dingley says he had nothing to do with the sending of these letters, and as far as I am concerned I certainly had nothing to do with it.
“The Court: I don’t think you did, Mr. Hooper; ask your client if he did not publish that in his paper then.
“Mr. Hooper: I don’t think I will ask my client that, that has not been brought to the attention of the court as a contempt proceedings here.”

Against the objection of counsel the letters were read into the record, when the following occurred:

“The Court: Mr. Dingley, you. may stand up.
“Mr. Hooper: I do not wish to interrupt the proceedings at all—
“The Court: I do not intend you shall.
“Mr. Hooper: May I ask the Court?
“The Court: Yes, sir.
“Mr. Hooper: Is the respondent tq be sentenced without an opportunity upon my part to do anything for him? I have only been called into the matter recently.
“The_ Court: You have already by your plea admitted it, and I have already made a ruling; you confess to having published the article that you are charged with having published. This is the whole proposition. This is a criminal contempt proceeding. I have overruled — if you didn’t understand it before you understand it now — your objections to that proposition. Mr. Dingley, you have heard those articles, have you?
“Mr. Dingley: Yes. sir.
“The Court: The first one read was taken from your paper, was it not?
“Mr. Dingley: Yes, sir; it was.
“The Court: You stand before the court now charged with contempt of court in publishing an article a week ago last Saturday that the court at any rate concludes was in contempt of the court, and sought to bring this court into contempt of the people.
“Mr. Dingley: My attorney—
“The Court: Never mind your attorney, listen to me, I have nothing to do or say to you except so far as it pertains to your action as relates to the court. Myself personally and individually is of no importance. I would be glad to deal with you in another way, but I cannot bring any personal matter as far as it relates to the court. I understand you as many others do. Without any desire to inflict unnecessary punishment on you I propose to give you an opportunity, and that is this: While you richly deserve the full punishment provided by the statute for what you have done because you have taken advantage in every way, you have done what no good citizen would do, you have done what no good American would do, I am going to give you an opportunity before passing sentence to make some amends. I will adjourn this matter for one week from today, and what the court will do at that time will depend entirely upon what you do.
“Mr. Hooper: May I ask the court, am I to understand the court finds the respondent guilty of contempt charged?
“The Court: Yes, sir; I shall defer sentence one week from today, and it will depend entirely upon the action of the respondent as to what the court does.”

The record contains other matter which it is not necessary to reproduce here.

Later the court pronounced judgment as follows:

“The judgment of the court here is that you pay a fine of $200 — and the court will give you 48 hours within which to pay it — or stand committed to the county jail until such fine is paid, not to exceed 30 days. You may have 48 hours within which to raise it or take an appeal.
“Mr. Hooper: May I ask an exception to the judgment of the court?
“The Court: Yes, you may.”

In his return to the writ of certiorari made by the circuit judge appears the following:

“(5) That said Edward N. Dingley filed his answer in writing which was read in open court, and a true copy of same is attached to the petition upon which said writ of certiorari was allowed, and is marked as ‘Exhibit F.’
“(6) That in and by said answer a demand was made that interrogatories be filed, and the issue tried by a jury, which demands were denied and overruled by the court.
“(7) That the attorney for said Edward N. Dingley then prayed the court to continue and adjourn the proceedings until some day certain, to enable him to secure the attendance of witnesses and present proof, which prayer the court denied because, in the judgment of the court, the petitioner, who admitted the publication by him of the alleged contemptuous article, ought to be prepared, to establish the truth thereof, or refrain from publishing the same, and because he had been allowed by the said order to show cause a reasonable time in which to prepare for the presentation of any proofs he desired to introduce, and because no showing under oath was made as a basis for said application; that the said Edward N. Dingley was then given an opportunity to produce any proofs or witnesses he had before the court at once, and, declining to do,so, was adjudicated to be guilty of the contempt alleged as against him, and judgment to that end was thereafter entered upon the journal of the court.” ,

Many interesting questions are presented and discussed by counsel, which we think it unnecessary to discuss here.

The right of the court to punish as for a criminal contempt an offender is no longer an open question in this State. The power is conferred by statute (1 Comp. Laws, § 1098; 5 How. Stat. [2d Ed.] § 12589). The courts possess the power independent of the statute. Langdon v. Wayne Circuit Judges, 76 Mich. 358 (43 N. W. 310); In re Chadwick, 109 Mich. 588 (67 N. W. 1071); Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691), and the many authorities therein cited. These cases are also authority for the proposition that the issue is one for the court and not one for a jury.

An argument is made upon the part of the relator to excuse the publication of the article because it was aimed at Mr. Stewart as a private person, and not as circuit judge. We have no hesitancy in saying that the publication of the article, unless it is true, is in contempt of court and deserves punishment. We have already said that when an alleged offender has pleaded not guilty, the issue is to be tried by the court and not by a jury. It does not follow from this that it must be tried by the' judge who is criticised. If the offense is committed in the presence of the judge, it would seem to follow that he should deal with the offender. While he doubtless has the legal right to proceed where the offense is not committed before him, we think it a better practice, as was done in Re Chadwick, supra, to call in another judge.

While we think Mr. Dingley should be punished, if he cannot purge himself of contempt by showing the truth of the publication, much as we dislike to interfere with the order of a court in proceedings of this nature, we cannot approve of the haste which characterized this proceeding. One of the earliest maxims with which the student of the- law becomes familiar is that every alleged offender is entitled to his day in court before he is condemned. We quote from Ferry v. Wheel Co., 71 Vt. 457 (45 Atl. 1035, 76 Am. St. Rep. 787):

“It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.”

This maxim was not observed, and for that reason the judgment of the court must be set aside and the proceeding dismissed without prejudice to the right to commence over again.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    KRAUS v. HANSEN.
    1. Sales — Contracts — Meeting of Minds — Offer and Acceptance.
    Where plaintiff wrote to defendant, in response to a request for an offer for a quantity of potatoes, that defendant might ship one car of medium size, round, white Michigan potatoes, $1.05 “your track,” “potatoes to be sacked in 150 pound sacks, providing man accompanies car if weather remains cold and heat same, as we will not run any risk of potatoes being frosted,” and if satisfactory plaintiff would take two more; where plaintiff telegraphed further, “Potatoes * * * must be in 150 pound sacks. Wire us if you cannot get sacks, we will express them. Must have one car this week, balance next week;” repeating the instructions as to quality, etc., and where defendant replied, “Cannot ship until I get cars. Also, I haven’t got sacks, as you know, over phone. Will try and ship this or next week if I can get cars,” plaintiff writing that he had arranged to have the railroad company send cars and was forwarding sacks, there was no contract, because the minds of plaintiff and defendant did not meet as to the risk of freezing, or the sending of a man in the car.

      2. Frauds, Statute of — Telephone—Oral Acceptance.
    Where the parties to an alleged sale of potatoes did not include in their written correspondence sufficient evidence of the terms of their agreement to satisfy the statute of frauds, a later communication hy telephone could not be relied upon as a sufficient acceptance of the terms proposed in their letters, so as to satisfy the statute of frauds.
    Error to Montcalm; Davis, J.
    Submitted June 22, 1914.
    (Docket No. 70.)
    Decided July 24, 1914.
    Assumpsit by Edward N. Kraus against John Hansen for breach of a contract for the sale of three carloads of potatoes. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Frank A. Miller (N. O. Griswold, of counsel), for appellant.

      J. W. Dasef, for appellee.
   Ostrander, J.

The defendant, who traded as Hansen’s Department Store, at Edmore, Mich., wrote and mailed to plaintiff, trading as E. N. Kraus & Co., at Toledo, Ohio, a postal card:

“Edmore, Michigan, 3/2/12.
“Dear Sir:
“Your name was given to me by Jake Lichtenauer, of Greenville. I have at present three carloads of good, first-class white potatoes on my hands and I am going to sell them as soon as cars can be placed next week I expect. What can you give here.”

Plaintiff wrote defendant in reply:

“Toledo, Ohio, March 4th, 1912.
“Hansen’s Department Store,
“Edmore, Mich.
“Gentlemen:
“You may ship us one car medium size, round white Michigan potatoes, $1.05 your track; potatoes to be sacked in 150-pound sacks, providing man accompanies car if weather remains cold and heat same, as we will not run any risk of potatoes being frosted and man must accompany car with stove. If this car proves satisfactory, we would be willing to buy the other two you have. Wire if you accept.”

And later sent a night letter by wire, reading:

“March 6th, 1912, Toledo, Ohio.
“Hansen’s Department Store,
“Edmore, Michigan.
“Potatoes you are shipping us must be in 150-pound sacks. Wire us if you cannot get sacks we will express them. Must have one car this week, balance next week. Send only good stock, medium size round white potatoes free from frost. Stove and man in cars.
“E. N. Kraus & Co.”

A postal card from defendant to plaintiff, reading:

“Edmore, Michigan, 3/7/12.
“Dear Sirs:
“Your telegram at hand and noted. Cannot ship until I get cars. Also I haven’t got sacks as you know over the phone. Will try and ship this or next week • if I can get cars.
“Yours truly,
“John Hansen,
“Hansen’s Department Store.”

—and the reply:

“Toledo, Ohio, 3/12/12.
“Hansen’s Department Store,
“Edmore, Mich.
“Gentlemen:
“We have arranged with the P. M. to send you cars to load our potatoes in; you should have one at hand tomorrow morning. Are sending you 200 sacks and together with the 50 you' have on hand will be enough to sack one car. As soon as loaded rush down to us and wire us and we will send enough sacks to sack the other cars.
“Very truly yours,
“E. N. Kraus & Co.”

—completed the written correspondence. Defendant sent no potatoes, and plaintiff supplied himself as he could. Potatoes of the quality described were scarce and advanced in price,- and plaintiff paid from $1.20 to $1.22 per bushel for them in car load lots. A car load of potatoes, sacked, contains 625 bushels or more. Plaintiff forwarded to defendant sacks for one car load, and was prepared to forward sacks for further shipments. It does not appear that defendant was furnished a car or cars in which to ship the potatoes.

Plaintiff sued for damages for breach of a contract to deliver to him at Edmore, free on board cars, three car loads of potatoes at $1.05 per bushel. Upon the trial, he was permitted, over objection, to introduce testimony which tended to prove the following facts: Upon receiving the card first written by defendant, plaintiff called defendant by telephone, and in the conversation arranged and bargained with defendant for one car of potatoes at $1.05 per bushel, to be shipped immediately; if the quality of potatoes delivered was as represented, then for two other cars, all to be in 150-pound sacks; that his letter of March 4, 1912, was confirmatory of the oral bargain. After sending the letter, defendant called plaintiff on the telephone, and insisted that he take three cars of potatoes, to which plaintiff consented and agreed to take three car loads and confirmed the arrangement by his night message of March 6th. Defendant agreed that plaintiff should buy sacks, the cost of them to' be deducted from the account' for potatoes. Later, in a conversation by telephone, defendant said he could get no cars. Plaintiff then asked the railroad company to furnish cars, or a car. Receiving no potatoes, plaintiff again, about March 15th, talked with defendant by telephone, who told him that the market had advanced, his attorney had advised him he need not ship the potatoes, and that plaintiff would not get them. Recalled, after defendant had rested his case, plaintiff testified:

“There was no talk between myself and Hansen at any time in reference to shipping the potatoes in refrigerator cars. That is the reason I wanted a stove put in. I told him I would pay for that part of it if he would have a stove in. I knew it was impossible to get a refrigerator car, but you could get plenty of box cars. I would have been willing to receive the potatoes in box cars. * * * ”

Cross-examination:

“Q. When you wrote those letters of March 4th and March 12th, etc., you meant everything you said in them, didn’t you?
“A. I suppose so.
“Q. You didn’t say anything for his amusement or your own, but what you meant, did you?
“A. No.
“Q. What did you mean by this, 'Will not run any risk of potatoes being frosted?’
“A. I have said previous to that, in a car with a stove; and I was to pay for it. That is why I wanted him to be sure and do that.
“Q. Then when you bought the potatoes you meant that you were not buying them at Edmore on board cars, but they must be delivered to you in Toledo free from frost, didn’t you?
“A. I didn’t say so.
“Q. If you bought them at Edmore, you would have to put your own man in the car?
“A. Well, he was to get a man at my expense, so he was virtually my man.
“Q. Where did you say anything about 'at your expense’ in these letters?
“A. It was on the telephone.”

Defendant offered testimony tending to contradict in many material matters that produced by plaintiff. He denies that in the telephone conversation he agreed to put a man and a stove in a car under any circumstances, but did say he would put in an order for a refrigerator car, and did so, but no refrigerator car was ever furnished him, and he got none until May. He sold the potatoes for $1.08 to a buyer, who secured refrigerator cars for shipment. His version of the last telephone conversation is:

“At the second conversation, in Grand Rapids, I was in Mr. Hilding’s office when the call came in for me, and he said he was Kraus & Co., and wanted to know when I was going to ship them potatoes. I said, ‘I haven’t got any cars yet.’ He said, ‘We must have them potatoes.’ I says, T haven’t got any cars; how can I ship them, ship them in open box cars?’ He says, ‘Ship them in open box cars.’ I says, ‘It is snowing, and I don’t dare ship these potatoes in open box cars; I don’t dare ship them in open box cars unless you wire me money in advance; I will not ship them unless you wire me money in advance.’ I did not say to him at that time that potatoes had come up, and I was not going to ship them. I says, T am down here on a lawsuit, a man owes me a small account, and I am trying to collect it; when I get home, if he has cars there — although those two weeks’ contract has expired — if there is a car there l will still load a car for you.’ That is what I told him. I was not able to get a car when I got home.”

And again:

“He said, ‘Are you shipping those potatoes?’ And I says, T cannot get cars.’ He says, ‘Put them in box cars.’ I says, ‘Snowing here; if you will guarantee the purchase, send the money in advance, when I get home — this is the last day on the contract, last day on the two cars they said they must have — and if the cars are there when I get home, if the car is there I think I said, when I get home I will fill it for you at that.’ ”

The court instructed the jury that the whole controversy hinged “absolutely and entirely” on the conversation over the telephone with Hansen at Grand Rapids; that under the undisputed testimony there was a contract made for the sale of three car loads of potatoes. Calling attention to the original postal card sent by defendant to plaintiff and the written reply thereto, the court said:

“Up to that point there was an absolute bargain made for one car at $1.05 f. o. b. Edmore. No terms had been arranged for as to payment, so of course it would be due at the time of shipment if the other party so demanded.”

It is obvious that the two writings referred to do not make a contract for one car load of potatoes. There was no written acceptance by plaintiff of the written offer of defendant. On the contrary, a counter proposition was made. Besides which, the court had admitted testimony which, if believed, established that the first written communication of plaintiff was confirmatory of a bargain not proposed by defendant in his first written communication, but arranged by telephone. There is lacking, also, written acceptance by defendant of plaintiff’s counter offer. The court proceeded:

“Later further correspondence passed between the parties in which the court finds that a contract was made for the other two cars also, so that it was then contemplated three cars would be shipped by Hansen to this man as soon as Hansen could get cars to ship them, and if he could get cars to ship them. It was a contract to deliver those three cars of potatoes on the part of Hansen, providing he could get cars to ship them, without naming the time except as he agreed in his correspondence to send them if he could. Under Hansen’s offer he was to have done it within a reasonable time. * * * Up to this point now, up to the time of the last night telegram, up to the time before they had the telephone communication at Grand Rapids, the duty of Hansen was to send those potatoes.”

I assume that the term “correspondence,” used by the court, meant both the written and oral communications. Proceeding, the jury was further instructed, in substance and effect, that, if the last telephone conversation occurred as plaintiff testified, and was as he testified, plaintiff should recover, but if they believed defendant with reference to that conversation, plaintiff could not recover, the reason given being that if defendant upon that occasion refused unqualifiedly to deliver the potatoes, he waived performance by plaintiff of the duty to furnish cars. I find nothing in the written memoranda indicating that either party accepted, unconditionally, any proposal made by the other. For example, where does it appear that plaintiff accepted the risk of the potatoes being frozen in transit? Or that defendant undertook to send a man and stove in the cars? Or that plaintiff was to pay the expense of a man to travel with the cars and keep a fire? How can the terms of the contract which plaintiff says was made be discovered without the aid of parol testimony? The testimony which was received does not merely explain the writings, but is relied upon to prove, what the writings do not prove, that at some time an oral proposition was accepted as made. When the testimony is considered, the wisdom of the statute of frauds is exemplified. If there was no existing contract when the last conversation by telephone occurred, no breach of contract grew out of that conversation. If a bargain was made during that conversation, it was one resting in' parol.

It was therefore error to instruct the jury that a contract for three car loads of potatoes had been established. The judgment is reversed; and, as the court should have directed a verdict for defendant, no new trial is awarded.

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


author: Per Curiam.

text:
    PEOPLE v. MACOMBER.
    Appeal and Error — Criminal Law — Exceptions Before Sentence — Judgment, Necessity for.
    A judgment Is necessary in a criminal as well as in a civil suit to sustain the issuance of a writ of error. If a re- ° spondent, convicted of crime, desires to review the ease on exceptions before sentence, the proceeding, being statutory, should conform to the statute.
    Error to Calhoun; North, J.
    Submitted June 12, 1914.
    (Docket No. 98.)
    Decided July 24, 1914.
    Charles Macomber was convicted of violating the liquor law.
    Dismissed.

      Robert H. Kirschman, Prosecuting Attorney, for the people.

      Joseph L. Hooper, for respondent.
   Per Curiam.

Neither the printed record nor the

return in the office of the clerk of this court shows that a judgment has been entered in this cause. The return shows, but the printed record does not, a stay of proceedings for 60 days, a period which expired more than a year ago. The record indicates that a writ of error was sued out, a bill of exceptions settled, containing — though for what reason we cannot discover — the substance of all the testimony given upon the trial, and errors are assigned. The writ performs no function; there appearing to be no judgment to affirm or reverse. Whether there will ever be a judgment we cannot know. We dismiss the case, directing the attention of counsel to the applicable statutes and to the decisions in People v. West, 143 Mich. 586 (107 N. W. 283); People v. Fritch, 161 Mich. 111 (125 N. W. 785), and to earlier decisions. If persons convicted of crime desire to review the action of the trial court before sentence, they should bring themselves within the statute allowing such proceeding. This the respondent has not done.

Cause dismissed.


text:
    ABBOTT v. WAYNE CIRCUIT JUDGE. FIELD v. WAYNE CIRCUIT JUDGE.
    1. Receivers — Equity Practice — Abatement — Suit Pending— Dissolution of Corporations.
    After the appointment of a receiver, in a suit instituted by the relator as majority stockholder and officer to dissolve a construction company, and after a sale of the assets of the defendant corporation named in the bill of complaint had been ordered by the court upon the intervention of a number of creditors who asked for such sale of the property, and while other proceedings were pending in the principal case, relator filed a bill of complaint charging the receiver with bad faith and neglect of duty and asking that the suit be consolidated with the other proceedings pending. No leave to commence suit was obtained from the court which had appointed the receiver. On motion of the receiver the bill was stricken from the files of the court on the ground that it could not be filed without leave of the court and that it unwarrantably interfered with the proceedings pending. Held, that the action of the lower court would not be set aside in mandamus, and that no duty was shown requiring the court to grant permission to institute the second suit in chancery.
    2. Same — Corporations—Winding Up.
    Also, the lower court was npt required to permit the relator to file an answer in behalf of the defendant corporation in the supplementary proceedings in which the creditors of the construction company had petitioned for dissolution, where the corporation had appeared by its solicitors and filed an answer, and where it was not shown that the answer was corruptly prepared or that the solicitors were unauthorized or were acting in bad faith.
    3. Same — Appeal and Error — Stock and Stockholders.
    But an order of dissolution and sale of the assets of defendant was a final order from which stockholders that showed cause why the corporation should not be dissolved could take an appeal, although the order was entered in the proceedings for intervention hy its creditors, instead of being made in the proceeding for voluntary dissolution. 3 Comp: Laws, § 10890; 5 How. Stat. (2d Ed.) § 13598.
    Mandamus by Charles S. Abbott against Henry A. Mandell, one of the circuit judges for the county of Wayne, to require respondent to set aside an order striking from the files of the court a bill of complaint filed by said Abbott as complainant against H. W. Noble & Company and a number of other defendants.
    Also, mandamus by the same relator against Philip T. Van Zile, Wayne circuit judge, to vacate an order appointing a receiver for the Chippewa Construction Company, in voluntary proceedings for dissolution of said company, also, to vacate an order denying relator the right to appeal as one of the stockholders of said defendant from an order of sale of its assets.

      Abbott & Abbott {Selling & Brand, of counsel), for relator.

      Corliss, Leete & Moody, Angelí, Boynton, McMillan, Bodman & Turner, Tolies, Hogsett, Ginn & Morley, Chapman, McNamara & Matthews, and Chamberlain, May, Denby & Webster {Orla B. Taylor and R. S. Holbrook, of counsel), for respondent.
    Proceedings in mandamus by Clark C. Field against Philip T. Van Zile, one of the circuit judges for the county of Wayne, to require the respondent to vacate an order striking from the files the claim of appeal of relator from an order in chancery dissolving the Chippewa Construction Company and directing a sale of its assets, and for other relief.

      Moore & Moore, for relator.

      Angelí, Boynton, McMillan, Bodman & Turner {R. S. Holbrook and Tolies, Hogsett, Ginn & Morley, of counsel), for respondent.

      Submitted June 9, 1914.
    (Calendar Nos. 26,045, 26,046, 26,055.)
    Writ granted in second and third proceedings above named July 24, 1914.
   Ostrander, J.

The proceeding first above entitled is an application for a writ of mandamus requiring the respondent to set aside an order striking from the files a bill of complaint filed by relator as complainant against a large number of persons, firms, and corporations as defendants, to grant relator certain temporary injunctive relief, and to consolidate petitioner’s said suit and certain causes and proceedings pending in said court.

In the proceeding second above entitled relator asks for a writ of 'mandamus requiring the respondent to set aside an order appointing a permanent receiver for the Chippewa Construction Company, an order striking from the files relator’s claim of appeal from the order appointing a receiver, and an order directing a sale of the assets of the Chippewa Construction Company.

The proceeding third above entitled is an application for a writ of mandamus to set aside an order striking from the files relator’s claim of appeal from an order (the same order heretofore mentioned) directing a sale of the property of the Chippewa Construction Company, to set aside an order striking from the files relator’s claim of appeal from an order appointing a receiver for and sequestering the property of the Chippewa Construction Company, and to vacate and set aside a restraining order by which relator is enjoined from taking further proceedings in connection with his claim of appeal.

Eighteen printed briefs have been filed. The merits of the contentions are not before us, and yet three printed records of considerable proportions contain the matter brought up, which is arranged, if arrangement was attempted at all, without regard to the order of events and in such a way as to make an examination of it very laborious.

At some time (I have not found the precise date of the transactions, but probably in the year 1911) two corporations were organized under the laws of this State; one the Consolidated Light & Power Company ; the other the Chippewa Construction Company. The capital stock of the Consolidated Light & Power Company was $100,000, the shares of stock being 10,000 in number, the announced purpose being the production and supplying of gas and electricity for lighting, fuel, and other purposes, the subscribers to the capital stock being J. L. Hudson 6,500 shares, F. R. Poss 1,500 shares, R. B. Tannahill 1,000 shares, C. S. Abbott 1,000 shares. A predecessor of this company had acquired certain rights, franchises, and options in connection with the development of a water power on the Chippewa river, and the principal purpose of the above-mentioned corporation was to secure the development of, and to manage and control the sale of, power from works to be established on said river and at other points. The Chippewa Construction Company was organized for development and construction work incident to the general project. Its capital stock was $10,000. Some time in the year 1912, I assume in the month of October, there were filed in the circuit court for the county of Wayne, in chancery, verified petitions for the dissolution of each of these corporations, each of them being signed by Charles S. Abbott, one of the above-named relators, by Robert B. Tannahill and by Frank R. Poss. The petition for the dissolution of the Consolidated Light & Power Company set out, among other things, that the president of the company had deceased, and his successor had not yet accepted office; that Charles S. Abbott was vice president and Robert B. Tannahill secretary and treasurer of the corporation, and, with Frank R. Poss, constituted the. board of directors; that the corporation had partially prosecuted the design upon which it started, “but now finds itself unable to command the necessary additional capital to fully carry outfits plans so as to render the project a complete success, and from a considerable part of its property it is unable to obtain revenue because of its inability to develop other property necessary to be used in connection therewith;” that it was engaged in the manufacture and distribution and sale of electricity in a considerable territory, was entirely solvent, with abundant assets to settle all of its obligations ; that its total assets exceeded in value $800,000, while its liabilities were about $518,000.

“The assets, however, are of a character which necessarily make their fair realization depend largely upon the continuation of the business and the further development of the enterprise undertaken.

“Fifth. Your petitioners further show that they have been in consultation with some of the largest creditors of the company, and have frankly and freely disclosed to them the condition of the affairs of the company, and have asked their advice, and that it is the advice of such creditors that it is for the best interests of all concerned that, under the circumstances, the corporation be dissolved and placed in the hands of a receiver and the business continued under the provisions of law for the purposes mentioned herein.

“Sixth. Your petitioners believe and respectfully represent to the court for the reasons herein stated that they deem it beneficial to the stockholders of said corporation that said corporation should be dissolved under the provisions of chapter 300 of the Compiled Laws of the State of Michigan of the year 1897 as amended, so that its assets may be worked out without unnecessary waste or delay for the benefit of the creditors and stockholders. And your petitioners know and positively aver that to shut down the plants of the company and stop its business .would be doing the creditors and the stockholders an irreparable injury.

“Your petitioners fear that the filing of this petition and the publication of the order to show cause why said corporation should not be dissolved will very seriously embarrass, if not entirely stop, the carrying on of business and result in the shutting up of the plants of the company unless a temporary receiver shall be appointed by this court pending the hearing upon the dissolution of said corporation and the appointment of a statutory receiver; that it is the desire of your petitioners, as directors of said corporation, and also as stockholders holding a majority of the stock thereof and of creditors holding a large part of the indebtedness of said corporation, that a receiver be appointed for said company for the purpose of preserving its assets and good will and continuing the operations of said company as a going concern so as to secure the payment of all debts in full and a fair return to the stockholders therein.”

Attached to the petition were schedules with descriptions of property and valuations, a list of stockholders with the holdings, in which relator Abbott appears as holder of 5,000 shares, from which it further appears that all of the property of the company is subject to a mortgage dated November 4, 1911, to the Detroit Trust Company, trustee, to secure an authorized issue of $2,000,000 30-year 6 per cent, bonds, of which $264,000 had been.issued; that the F. Bissell Company, of Toledo, Ohio, was entitled to the net revenues collected by the corporation in the cities of Gladwin, Coleman, and Alma, and the villages of Rosebush and Shepherd. The list of direct claims against the company is not footed in the record, but it appears from it that a considerable number of creditors exist, among them the Chippewa Construction Company, which it owed upon open account $247,399.63.

As above stated, a similar petition for the dissolution of the Chippewa Construction Company was filed, relator Abbott claiming to be holder of 55 per cent, of the stock of that company.

After the filing of these petitions in the- matter of the Chippewa Construction Company, and, I assume, in the matter of the Consolidated Light & Power Company, orders, were entered October 29, 1912, appointing the Detroit Trust Company temporary receiver, and orders to show cause, before a commissioner, why the corporations. should not be dissolved were made, returnable February 3, 1913. The orders to show cause were directed to all persons- interested in the corporations. It was further ordered that a copy of the order be published for three weeks, once each week, in a newspaper published in Wayne county. The order appointing a receiver for the Chippewa Construction Company recites matters set out in the petitions, with.the finding that:

“It appearing to the court that, pending the hearing of the order to show cause issued upon said petition, it is necessary for the preservation of the assets of the company and the protection of the interests of creditors and stockholders that a temporary receiver be appointed as asked for in said petition.”

The receiver is ordered to take possession of all property, collect outstanding bills and accounts, conduct the business as a going concern to such an extent as it may deem advisable, and for that purpose buy materials and incur other expenses, sell and' dispose of perishable property, make an inventory and appraisal of assets and statement of claims and demands against the company, and report the same to the court. It is given leave to borrow or advance a sum not exceeding $10,000,- and repay it, with interest, out of moneys coming into its hands. In each case the corporation, its officers and agents, are ordered to deliver to the receiver possession of all property and effects. In this way the relator Abbott sought and obtained the intervention-of a court of equity in the affairs of these concerns, asking that they be dissolved. Various orders were made at the instance of the receiver. December 27, 1912, a petition was filed by an attorney for 62 laborers,' asking leave to levy execution on the property of the construction company. It was noticed for January 2, 1913, and on that day was continued to January 11th. On January 11th the receiver asked for leave to issue $21,000 of receiver’s certificates ' to pay labor claims, etc. Upon this petition Judge Codd made an order to show cause and an order requiring proof of labor claims. Without reciting in detail the proceedings, it appears that on January 25th a summary inventory and appraisal was filed, and the petition for leave to issue receiver’s certificates was heard and granted.

On January 28, 1913, relator Abbott, claiming to be a majority stockholder of both of said corporations, filed identical petitions in the respective proceedings for dissolution, praying for a six-months postponement of hearing upon the orders to show cause for the purpose of further opportunity to obtain funds to complete and put into operation a certain dam. These petitions were denied February 1, 1913, after a hearing by Judge Codd. March 5, 1913, two persons, representing that they were judgment creditors of the Chippewa Construction Company and that executions to collect the judgment had been returned unsatisfied, asked for leave to intervene in the proceedings for dissolution in behalf of themselves and other creditors. On the same day an order was entered granting them leave to intervene, and that upon such intervention process issue requiring the Chippewa Construction Company to appear and answer the interveners’ petition. The bill filed by these creditors charged that they had recovered judgments in justice’s court, respectively, for $106.05 damages and $3.85 costs, and for $97.20 damages and costs, had caused executions to be issued to collect the same, placed them in the hands of the sheriff, and they had been returned unsatisfied and the judgments remained unpaid; that the judgments were for labor claims, and that there were other judgments against the Chippewa Construction Company for labor performed for it, aggregating $2,000, upon some of which executions had been issued and not returned; that (upon information and belief) there were other claims for labor against the said corporation amounting to $10,000. Various facts, necessary to be set out in a judgment creditor’s bill, are charged, with the fact that the court had possession through its receiver of the assets of the corporation. The prayer of the bill was that it might be treated as an intervening petition in the proceedings to dissolve the corporation, that the court sequester the stock, property, things in action, and effects of said corporation, and apply the same to the payment of the indebtedness due complainants and other creditors; that a receiver be appointed, etc., etc.

By its secretary and treasurer the defendant Chippewa Construction Company answered the bill, admitting most of. the charges therein. This answer was filed March 13, 1913. Later, March 29, 1913, a paper called a demurrer, entitled in the dissolution proceedings, was filed by relator Abbott as “one of. the respondents in the above-entitled matter,” who sets out his reasons for refusing to the said judgment creditors the right to intervene in the said dissolution proceeding. On the same day that it was filed relator Abbott filed a personal answer in the matter of the dissolution proceedings, setting out that the Chippewa Construction Company ought not to be dissolved because:

(1) It is not insolvent; (2) a dissolution would not benefit stockholders; (3) would be injurious to stockholders; (4) would not benefit creditors; and (5) would injure creditors; (6) would be injurious to the public interest, .etc., etc.

March 22, 1913, relators Abbott and Field filed a paper in the proceedings for the dissolution of the Chippewa Construction Company purporting to be the answer of the company and of Abbott and Field individually. The answer of Abbott and Field for themselves and (purporting also to be) for the Chippewa Construction Company was on motion stricken from the files, because they (Abbott and Field) had not obtained leave to appear in the cause as stockholders and answer the bill. Abbott thereupon, in open court, asked for leave to intervene and refile said answer, which the court denied, for the reason that intervention and answer on behalf of stockholders in the matter of intervening judgment creditors would be irregular and unnecessary, and that the answer presented consisted “largely of matters impertinent and in no way relevant to the issue upon such judgment creditor’s bill.” March 29, 1913, an order was entered appointing the Detroit Trust Company (the receiver appointed in the proceedings to dissolve the corporations) receiver in the intervening judgment creditor’s proceeding and sequestering the property of the Chippewa Construction Company, with leave to all creditors to appear and present claims and become parties to the proceeding. From this order, on May 6, 1913, relator Abbott filed a claim of appeal. A claim of appeal was also filed on behalf of relator Clark C. Field, and both were stricken from the files.

The orders to show cause why the corporations should not be dissolved were returnable February 3, 1913. There were various appearances on that day, and, upon the request of the solicitor for relator Abbott, the hearing was adjourned to February 7, 1913, when the taking of testimony was begun in behalf of relator Abbott, and was continued from time to time; the last testimony in his behalf and in behalf of relator Field being taken April 11, 1913. No one else desiring to show cause, the proofs in their behalf were declared closed. An adjournment was taken to April 22, 1913. No further testimony was taken, although hearings were continued from time to time until January 31, 1914. It does not appear that the testimony taken has been reported to the court or that the court has made any order dissolving or refusing to dissolve either of said corporations.

Under date September 15, 1913, the intervening judgment creditors of the Chippewa Construction Company filed a petition asking for an order directing the receiver to sell the assets of that company at public auction and to apply the proceeds: First, to pay the expenses of administration; second, to pay all labor claims in full, with interest; third, to divide the remainder among all general creditors of the corporation. The receiver answered this petition and repre-. sented that the labor claims filed with the receiver amounted to $12,885, in addition to one for $8,000 filed by one Townsend; that other claims against the corporation, secured and unsecured, amounted to $475,000 and upwards; that by direction of.the court the receiver had sold certain personal property of the corporation, receiving therefor $1,824.21, and had been unable to make further sales; that the issue of receiver’s certificates authorized by the court found no market; that the National Pole Company on September 3, 1913, filed its bill as a judgment creditor of the Consolidated Light & Power Company, and that by decree of the court (Wayne county circuit court, in chancery) the property of that corporation had been sequestered and the Detroit Trust Company appointed receiver thereof; that the two corporations named were engaged in a common project, and the value of the assets of each depended to a large extent upon connection with the assets of the other; and that a sale of the assets of both should be made so that both properties might be secured by the same bidders. On November 12, 1913, an order was entered for a sale of the assets of the Chippewa Construction Company to be made January 13, 1914.

November 18, 1913, relator Abbott filed the sworn bill of complaint hereinbefore mentioned. Among the numerous parties made defendants therein is the Detroit Trust Company, and it is charged that, as receiver of the said corporations, it had been derelict in performing its duty, and has acted in bad faith as such receiver. The Detroit Trust Company moved to quash the process issued when the bill was filed and to strike the bill from the files for the reasons:

(1) That it was filed against it in its capacity as receiver without leave of the court; (2) bringing the said bill against it as receiver amounted to an unwarranted interference with the orderly administration .of justice by said court in a suit pending therein and described in said bill, and was in contempt of the court.

Two other similar motions were made by the Detroit Trust Company, and, coming on to be heard before Judge Mandell, were granted.

What has been so' far disclosed is a small part only of the matter which has been brought upon the record. Relator Abbott, as codefendant with the Williamston Illuminating Company, has been sued, a judgment recovered, his stock in the two corporations involved in this proceeding has been taken on execution and sold at public auction. The return of the sheriff of Wayne county to this effect was made June 13, 1913. Relator Abbott’s rights as stockholder in either corporation— at least the nature and extent of his rights — are questioned in another proceeding. It is true that Abbott questions the conclusiveness of the sale of his stock and asserts that he had notice neither of the levy nor the sale.

It is made to appear that after filing the petitions for dissolution of the corporations, and on April 14, 1913, relators Abbott and Field filed a bill in chancery in the Wayne circuit court against the executors of the estate of J. L. Hudson and others, in which suit it was denied by the defendants that Abbott was holder of stock in said corporations to the amount he claimed. There is pending in the same court a suit in which Abbott and other stockholders of said corporations are defendants, in which is involved the right of relator to the stock held by him in said corporations.

The bill of complaint which was filed by relator Abbott and was stricken from the files, treated as a pleading, is unique. It purports to be a history of his connection with, and efforts in behalf of, the corporations involved, and the manner in which, and the methods by which, his efforts to secure a successful existence for them have been thwarted by the persons, firms, and corporations with whom he has dealt or has sought to deal. It is a tale of perfidy and of conspiracy, of which he is the victim. He asks that all of the proceedings begun by him and by others in relation to said corporations and those involving his ownership of stock in them be consolidated and heard together; that much that has been done be undone; and that the court shall manage in some way to pay the debts and secure the continued existence of the said corporations to the end that his interest in them may be made of value. The corporations involved were insolvent, when petitions for their dissolution were filed, in that they were unable to pay their debts as they matured in the regular course of business. Being insolvent, and there being hope that financial aid might be secured if time was allowed, the aid of a court of equity was sought, not in good faith to dissolve, or not dissolve, the corporations as conditions should require, but to secure protection from the assaults of creditors whose demands were pressing. So much is manifest. It is true that relator Abbott now contends that he was forced, cajoled, or seduced into participation in' the proceedings to dissolve, but he says that a bankruptcy proceeding was the alternative — a fact which is also manifest. Protected by the arm of the court, he still failed to secure the financial assistance required, mainly, he claims, on account of the bad faith and dishonest motives of all, or nearly all, of those whose interests were directly or indirectly involved, or whom he sought to interest. A receiver was seeking (though, he says, not in good faith) to conserve (or not to conserve) the property and continue the corporations in operation. A swarm of creditors, denied relief in the usual forums on account of the receivership, brought their grievances to the attention of the court whose officer the receiver was. They were permitted to intervene. We are not called upon to decide whether, in such a case as this one is, a court of equity may not dispose of the entire assets of a corporation at the instance of creditors who have intervened, without determining whether, otherwise, the corporation ought to be dissolved. Coming to the questions which are presented for decision, it does not appear to be the plain legal duty of the court below to permit relator Abbott to file his bill, upon which no relief can be granted without halting all proceedings directly or indirectly connected with the original proceeding instituted by relator Abbott, and re-examining all questions, or nearly all of them, heretofore determined. It is not the plain legal duty of the trial court to permit relator Abbott to file an answer in the original or supplemental proceeding for himself,for Field, and for the Chippewa Construction Company, there having been an answer put in by the Chippewa Construction Company, by its accredited solicitors, and it not being made to appear that the answer was corruptly filed or by persons not, in fact, the accredited representatives of the corporation. It is not the plain legal duty of the trial court to consider the demurrers and other pleadings of relators, in the original or the dependent creditors’ proceedings. Neither relator has attempted, in either proceeding, by motion, or by petition, to advise the court that he has a distinct interest to protect which he ought to be permitted to intervene. Nor is our attention directed to any document or pleading, produced to the court below, circumstantial and verified, which advises the court that the interests of stockholders generally, or of creditors, is jeopardized or affected by the conduct of persons, solicitors, or others representing interests upon the record.

But whether a stockholder of a corporation seeking voluntary dissolution, who has appeared and shown cause against dissolution, may not appeal from an order, entered in a dependent intervention proceeding, for the sale at auction of all of the assets of the corporation, is a different question. It is a final order. Webber v. Randall, 89 Mich. 531 (50 N. W. 877). It is entered in the dependent intervention proceeding, but nevertheless disposes of the assets of the corporation which initiated the original proceeding. The statute (3 Comp. Laws, § 10890; 5 How. Stat. [2d Ed.] § 13598 [a part of chapter 300]) provides that:

“Any_ corporation, person or persons claiming to be aggrieved by any decree or final order of any circuit court in chancery in any proceedings mentioned in this chapter, may appeal therefrom to the Supreme Court.”

This express statute right of appeal, we think, should not be denied because the order appealed from was not strictly an order entered in the dissolution proceeding. It ends that proceeding when a sale is made and the proceeds of it are distributed.

We are of opinion that motions No. 122 and No. 123 should be granted.

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


text:
    SMITH v. CITY NATIONAL BANK OF LANSING.
    1. Banks and Banking — Lost Draft — Evidence. ,
    In an action against a -bank for money received for the use of .plaintiff, evidence that the defendant was instructed to forward the amount received to an address given by plaintiff; that in accordance with the usual practice of the bank, an employee placed the draft in a letter which was placed among a number of others and tied into a . bundle that was later deposited in the post office; that the envelope, was addressed to plaintiff at the place mentioned in his instructions; that he was absent from that place on the day when the letter would probably have arrived, that the persons present at such time did not receive the letter and the draft had never been presented for payment to the drawee, held, to present an issue of fact for. the jury as to the proper mailing of the draft.
    2. Same — tEvidence—Letters—Burden of Proof.
    The burden of establishing the mailing of the draft was on the defendant. . •
    3. Same — Course of Mail.
    In determining the issue, plaintiff was entitled to the benefit of the probabilities and inferences connected with and growing out of the United States mail service and ordinary experience.
    Error to Ingham; Wiest, J..
    Submitted June 18, 1914.
    (Docket No. 28.)
    Decided July 24, 1914.
    Assumpsit by Warren Smith against the City National Bank of Lansing for money received to plaintiff’s use. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. C. Chapin, for appellant,

      Gardner & Hood, for appellee.
    It is admitted that money was paid into the defendant bank for plaintiff, subject to his order, and that the bank received his order (check) to pay the money to himself with the instruction, “send in care of Ypsilanti Milling Company, Ypsilanti, Mich.” The bank offered testimony tending to prove that upon receipt of this order it made' its draft for the money upon the First National Bank of Detroit, Mich., in favor of plaintiff, inclosed the same in a letter of remittance, and deposited letter and draft, in a sealed stamped envelope, in the post office at Lansing, addressed to plaintiff according to his. instruction. Upon the upper left corner of the envelope was printed a direction to return the letter to the bank after five days. Plaintiff’s check, stamped paid, the books of the bank,, and the testimony of various clerks and servants, and the usual course and custom of the business, support this view. The testimony also tends to prove a search at the bank, when nonreceipt of the draft was claimed, among its papers, and even among its waste and discarded .papers, which are preserved in sacks for the period of one year, without discovering any trace of the alleged missing draft or letter. The servant of the bank who wrote the letter of remittance and placed it and the draft in the envelope and addressed the envelope, and who daily, personally, carried to and deposited the outgoing mail in the post office, testified to an independent recollection of the transaction from the fact that the instruction of plaintiff gave an address different from the one before employed by him, to which the bank had' previously sent letters. He had no independent recollection of depositing the particular letter in the post office. The Detroit bank, the drawee, was notified not to pay the draft. It has not been presented for payment. Testimony for the plaintiff tended to prove that, having sent his instructions to the defendant bank respecting the money, he left Ypsilanti and was absent for several days. John Trufant was president, and Lida, his wife, was secretary, of the Ypsilanti Milling Company. The mail for that company was • delivered by government carrier at 8:30 a. m. and 12:30 and 3:30 p. m., whose custom it was to place it on the top of the office desk of the company. In June or July, 1912, Mrs. Trufant spent some time in the office in the mornings, but was never present when the mail was delivered. Mr. Trufant was usually present when the 8:30 delivery of mail was made, but paid not much attention to the noon and afternoon mail. Mr. Trufant testified that on account of advices from plaintiff he was looking for a letter for him to come from defendant bank while he (plaintiff) was in Northville, and that while he was in Northville no such letter came, to his knowledge., His wife gave like testimony. Testimony tended, to show, that , no such letter had been delivered at the Trufant home, where plaintiff was staying and made his home.
    Counsel for defendant relies upon the fact that Mr. Trufant appears to have been the only person wjio hád any knowledge concerning letters delivered to the milling company, and that his testimony covers only the time when plaintiff was absent from Ypsilanti. The witness said:

      “I was looking for a letter for him from said bank while he was in Northville.

      “Q. Did any such letter come to him from the City National Bank of Lansing while he was at Northville?

      “A. No, sir.

      “Q. Did any such' letter come to the home, to your knowledge?

      “A. No, sir.”
    Defendant declined to pay plaintiff the money unless indemnified by bond. See 3 Comp. Laws, §§ 10183, 10184. Plaintiff sued for the money, and not on the lost instrument.
    The principal question of fact submitted to the jury was whether defendant mailed the draft to plaintiff, the instruction being that, if defendant had not satisfled them of that fact, plaintiff might recover, if he never received the draft; if not so satisfied, plaintiff could not recover, without filing a bond. A verdict for plaintiff was returned, and, a motion for a new trial having been denied, judgment was entered on the verdict.
    It is assigned as error that the court erred in refusing to give certain requests to charge, each of which directly or by necessary implication asserts the vital proposition that the proof establishes the fact, prima facie, that the draft was duly mailed. Error is assigned upon the refusal to grant a new trial upon the ground that the verdict is opposed to the weight of the evidence.
    While plaintiff does not admit some of the conclusions of law stated or implied by the court in the charge to the jury, he does admit that as the case was tried, and as the jury was instructed, the vital question was whether defendant mailed the draft to the plaintiff. Upon this point he contends there was a question of fact for the jury, although insisting that upon the undisputed facts a verdict should have been directed for the plaintiff.
   Ostrander, J.

(after stating the facts). If the question of the mailing of the draft was for the jury, the judgment may be affirmed, without examining other points urged upon our attention by the plaintiff, appellee. The affirmative of the issue is with the defendant. Other testimony than that above referred to fairly tends to support the contention that the draft was never received at Ypsilanti. As opposed to the testimony of the bank’s agents, the jury had the testimony that the letter did not reach its destination, that it has not been returned to the bank, and has not been presented for payment. The defendant relies, properly enough, upon a custom in respect to mailing letters. Plaintiff is entitled, in settling the question, to the benefit of probabilities and inferences connected with and growing out of the United States mail service and the ordinary experience of mankind. Assuming that the interested parties and their witnesses are equally honest, the question must be settled, for the purposes of this case, as one of probabilities. Usually such questions are for the jury, and after an examination of all the testimony we cannot say it is so much more probable that the letter was mailed that the court ought to have directed a verdict for defendant, which in effect was the ruling sought by the requests which were refused.

The judgment is therefore affirmed.

Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. McAlvay, C. J., did not sit.


author: Bird, J.

text:
    PEOPLE v. PRESTIDGE.
    1. Criminal Law — Evidence — Confession — Voluntary Character.
    The question, whether a confession was voluntary or involuntary is for the court, if the matter is clear and the testimony is undisputed; if there is ground for doubt, the court may leave it to the jury to determine whether or not the confession should be considered.

    2. Same — Involuntary Confession — Rape.
    Where the respondent was taken into custody without being informed concerning the charge, was taken to the prosecuting attorney's private office, where he was first advised of the fact that he was charged with statutory-rape; and wheré he was advised hy' the officers that he had better tell the truth, and was questioned closely for two or three hours, and where his wife was brought into an adjoining room and underwent an attack of hysteria, respondent hearing the moans and afterwards admitting that he wished he had told her the truth, etc., the alleged confession of the accused should have been rejected by the court.
    Error to Branch; Chester, J., presiding.
    Submitted June 12, 1914.
    (Docket No. 101.)
    Decided July 24, 1914.
    Edwin Prestidge was convicted of statutory rape.
    Reversed.

      Palmer & Palmer and Lockerby & Bowen, for respondent.

      Grant Fellows, Attorney General, and Charles U. Champion, Prosecuting Attorney, for the people.

       On the question when confession is voluntary, see note in 18 L. R. A. (N. S.) 772.

   Bird, J.

The respondent was convicted in the Branch circuit court of the crime of statutory rape on his stepdaughter, Mildred Garmen. The people relied for conviction upon the testimony of Mildred, and also upon a statement, which it is claimed the respondent signed, admitting his guilt soon after being taken into custody by the sheriff. The serious question raised by appellant in this court is with reference to the admission of the claimed confession. Considerable preliminary testimony was taken bearing upon the question as to whether the confession was voluntary. The trial court finally admitted the confession, but left it to the jury to determine whether it was voluntarily made. The respondent insists that the trial court was in error in so doing; that he should have rejected the confession on the ground that it was made clear by the testimony that it was not voluntary.

If the preliminary testimony made it clear either that the statement claimed to have been made was voluntary or involuntary, it was the duty of the trial court to admit or reject it. If the testimony left the question in doubt, it was the duty of the court to admit it, and leave the question to the jury under proper instructions to determine whether it was voluntarily made. People v. Barker, 60 Mich. 277 (27 N. W. 539, 1 Am. St. Rep. 501). We are persuaded, after a careful review of the uncontradicted testimony, that the statement was made under such circumstances that it was not voluntary. The respondent was taken away from his work between 3 and 4 o’clock in the afternoon by the sheriff. When taken into custody, he inquired the reason, and was told he would be informed later. He was taken to a room in the rear of the prosecutor’s private office, where he' was informed of the charge made against him, and was questioned by Sheriff Tyler, Undersheriff Miller, and the prosecuting attorney for upwards of two hours as to his past relations with' the girl. The respondent repeatedly denied the charge, but was told by Miller that he was lying, and that he had better tell the truth about it. During the time the examination was going on, Mildred was brought in to confront the respondent. What then took place is described by Miller:

“We had been up there probably an hour, maybe not so long as that. Mr. Tyler and Mr. Prestidge and myself in this room, and I went out in the other room where Mildred was and took her into the room where Mr. Prestidge was, in the rear of Mr. Cowell’s office. I told her, if what she told me was true, I wanted her to say it to her father, and she told him that what she had told me was true, every word of it, in his presence. By her father, I mean Mr. Prestidge. I asked the girl if her father had been intimate with her, in his presence, and I said, Tf that is true, Mildred, look him in the face and tell him it is so.’ That is word for word as I used it with her in his presence, and she looked him in the eye. I said, ‘Ed, why don’t you look her in the eye?’ She looked him in the eye. She said. ‘It is true, and he knows it;’ and he dropped his head, and simply said it wasn’t true.”

The respondent’s wife was also brought to the private office of the prosecutor, and while there she became so hysterical over the affair that a physician was summoned to attend her. The respondent was in án adjoining room, and, hearing her cries, and moans, requested permission to go in and see her; but this request was denied. The respondent was. kept in this room till after dark, when the sheriff and prosecutor left, leaving him in charge of Undersheriff Miller. Miller’s version of what was said follows:

“As I said, they had all gone home. Ed and I were there alone, and I says to him, ‘Ed,’ says I, ‘we are alone. Don’t you right down deep in your heart wish that you had told your wife the truth in regard to this matter before she went home, and.gone down on your knees and asked her forgiveness?’ I says, ‘Maybe she would have forgiven you. Don’t you wish you had done it, Ed?’ He says, ‘Yes.’ I says to him, ‘Mr. Cowell has started home, and you are going to jail. Don’t you wish you had told him the truth before he went home ? If you want a chance to tell him the truth, Ed, I will call him back. Shall I call him back, Ed?’ And he says, ‘Yes;’ and I called Mr. Cowell back.”

The prosecutor was then called back, and the respondent was taken-to jail, where the statement was written out by.the prosecutor and signed by the respondent.

A few of the questions, and answers taken from the testimony of Miller will illustrate the character of the examination carried on to secure a statement from the respondent:

“Q. Didn’t you say that you had kept him there from the middle of the afternoon until after Mr. Cowell had gone home at night, and after dark, to have him tell you what you thought was the truth?
“A. I kept him there; yes.
“Q. After he had repeatedly stated to you that it was false, what he was charged with?
“A. He said so; yes.
“Q. But you did not believe him?
“A. I did not; no, sir. -
“Q. You were not going to let him go until he had told you something that you believed to be the truth?
“A. Oh, I wasn’t going to keep him, there all night.
“Q. You were going to give him a good trial?
“A. Yes.
“Q. You gave him quite a sweating out, didn’t you?
“A. I did; yes.
“Q. You did it for the purpose of getting him to tell something which you thought was the truth?
“A. I did; yes, sir.
“Q. And all of this statement that he has testified to — that you claimed he admitted, was that after you had brought him to that state where you wanted to leave him?
“A. Oh, I don’t know as to that.
“Q. One thing is certain, Mr. Miller; he never made any kind of a statement until after you had placed him in that sweat box for three hours or more; isn’t that a fact?
“A.. Oh, I don’t know.how long we had been there.
“Q. He had been there long enough, hadn’t he?
“A. Why, I think so.
“Q. So that they had gone home for the night? Mr. Tyler had gone to his place?
“A. Yes, sir; and Mr. Cowell had gone home.
“Q. Now, Mr. Miller, before he had- made any admissions, as a fact, you said, ‘Now, Ed, you are going to jail. Don’t you think, it would have been best to have gotten right down on your knees and begged your wife’s forgiveness, and maybe she would have forgiven you?’ Isn’t that right?
“A. And tell the truth? I did; yes, sir.
“Q. What you thought was the truth?
“A. Yes, sir. * * *
“Q. In other words, you went in there with the idea in your mind as to what the truth was, didn’t you?
“A. I believed the girl.
“Q. In your mind, you believed the girl, and went in there with that idea as to the truth?
“A. Yes, sir.
“Q. And you kept that man there until he admitted to what you believe was the truth?
“A. He did; yes, sir.
“Q. In the meantime, to bring it about, you told him that, if he would do that, maybe his wife would forgive him?
“A. I did.
“Q. When, as a matter of fact, there hadn’t been a word said with his wife — or that his wife believed him guilty, was there?
“A. Not to me.”

The respondent’s version of his treatment makes the situation more serious; but much of his testimony was contradicted. It will be unnecessary, however, to consider the testimony that was in conflict. The respondent states that during the time of the examination he was very nervous and nearly crazy.. It is not incredible that he should have been in that condition at the end of two or three hours of grilling such as he received. It is needless to argue that a statement made under such pressure is voluntary,’ whether it is true or false. Flagg v. People, 40 Mich. 706; People v. Wolcott, 51 Mich. 612 (17 N. W. 78); People v. Barker, supra; People v. Stewart, 75 Mich. 21 (42 N. W. 662). Had such an examination taken place solely to satisfy the minds of the prosecuting. officers as to whether the accused was guilty, it might find some justification; but to subject the respondent to such an ordeal, with the deliberate purpose of securing a statement to be used as evidence against him, is a practice not included among the duties of prosecuting officers. It was doubtless done in good faith; but it was a case where their zeal clearly outran their duty. We are satisfied that under the showing made the statement was inadmissible, and should have been rejected. The conviction must be set aside, and a new trial granted.

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


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    ATTORNEY GENERAL, ex rel. LODGE, v. BRYAN.
    Constitutional Law — Municipal Corporations- — County Board op Supervisors — Wyandotte Cixarter— Eusction or Appointment — Cities.
    Under the charter of the city of Wyandotte, framed pursuant to Act No. 279, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 5442 et seq.), and requiring the city commission to select supervisors of election who should serve with the assessor on the board of supervisors, the appointment by the commission was constitutional and valid: it is not essential that the supervisors should be elected in order to comply with the home rule law and with the Constitution, art. viii, §§ 7, 18, since the people of the city, by adopting a charter that provided for such appointment, made choice of its method of selecting the representative on the board. The townships in the county could have • no voice in the matter by whichever method the supervisor should be designated.
    Quo warranto by Grant Fellows, attorney general of the State of Michigan, on the relation of John C. Lodge, against Edward C. Bryan, Theodore Megges, George McTaggert and Louis Pernot, to determine the title of respondents to the office of supervisors of the county of Wayne.
    Submitted June 15, 1914.
    (Docket No. 122.)
    Decided July 24, 1914.

      Grant Fellows, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Paul W. VoorMes, Assistant Prosecuting Attorney, for relator.

      George W. Coomer (Thomas A. E. Weadock, of counsel), for respondents.
   Bird, J.

The constitutional right of the respondents to represent the city of Wyandotte on the board of supervisors, is questioned by quo warranto proceedings, instituted in this court by the attorney general, on the relation of John C. Lodge, chairman of said board. Prior to the 2d day of March, 1911, when the people of Wyandotte voted to adopt a new charter, the city was incorporated under the Public Acts of 1895 as a fourth-class city. Act No. 215, Pub. Acts 1895 (2 How. Stat. [2d Ed.] § 5478). It was divided into four wards, and elected four supervisors, who represented the city on the board. On the 4th day of March, 1911, the new charter became effective. Section 19 of chapter 5 of the new charter provides for representation of the city upon the board of supervisors in the following manner:

“On the 3d Monday of April, A. D. 1911, and on the 3d Monday of April in each year thereafter, there shall be appointed by majority vote of the city commission the following officers: A city assessor who shall be ex officio supervisor of elections in the voting precinct in which he resides, and a supervisor of elections for each voting precinct, except that in which the assessor resides. The' city assessor and such of the other supervisors of elections as the city commission may designate shall represent the city on the board of supervisors of Wayne county.
“The supervisor of elections shall perform all duties imposed by the general laws of the State on supervisors of townships, except those duties relating to the assessment and levy of taxes, and such duties as are by this charter imposed on other officers.”

In pursuance of this provision, a city assessor and three supervisors of election were appointed by the commission. These appointments fell to the respondents, and later they were appointed to represent the city on the board of supervisors, and they are now acting in such capacity. The question raised by relator against the right of respondents to seats in that body is that—

“The board of supervisors is distinctly the legislative body of the county, and is clothed with the power of determining, among other things, the amount of money to be raised by taxes, and to apportion the same among the various cities and townships of said county. Such a body, under the implied provisions of the Constitution, must be composed of members elected directly by the electors, and not appointed.”

The provisions of the Constitution which appear to throw some light on the controversy, are the following:

“A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law.” Article 10, § 6, Const. 1850.
“There shall be elected annually on the first Monday of April, in each organized township one supervisor, * * * whose powers and duties shall be prescribed by law.” Article 8, § 18, Const. 1909.
“Cities shall have such representation in the board of supervisors of the counties in which they are situated as” the legislature may direct. Article 10, § 7, Const. 1850.

In the Constitution of 1909, sections 6 and 7 of article 10 are consolidated without change as section 7 of article 8. It is reasonably clear from the first two sections quoted that the legislature has no power to say what representation a township shall have upon the board, nor has it any power to prescribe how its representative shall be elected. Section 7, however, imposes the duty on the legislature to specify what representation cities shall have upon the board. This duty has been discharged with reference to new charters, by the passage of section 27 of Act No. 279 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 5442 et seq.), which provides that:

“Each city, except as is otherwise provided by law, shall have at least one representative on the board of supervisors of the county. The present representation of cities now organized on such boards of supervisors shall remain as now fixed, until changed according to law, but no city shall have power to increase its representation on such board of supervisors.”

The legislature has done more than to provide what representation cities shall have; it has provided in subdivisions (a.) and (b) of section 3, Act No. 279 of the Public Acts of 1909, that such representation should be “elected or appointed.” I do not understand that the relator questions the right of the legislature to provide what representation the city shall have, but he denies the right of the legislature to say that such representation shall be appointed. The argument of relator relies for support upon a class of cases wherein it is held that it is not competent for the legislature to delegate the taxing power for local purposes to municipal boards whose members are. agents of the State, or whose members are not answerable directly to the people they are to represent. Board of Park Commissioners v. Detroit Common Council, 28 Mich. 228 (15 Am. Rep. 202); Vallelly v. Board of Park Com’rs, 16 N. D. 25 (111 N. W. 615); State v. Mayor of Des Moines, 103 Iowa, 76 (72 N. W. 639, 39 L. R. A. 285, 64 Am. St. Rep. 157); Gage v. Graham, 57 Ill. 144; Board of Directors for Leveeing Wabash River v. Houston, 71 Ill. 318.

The objection to the legislation involved in these cases lies either in the fact that the bodies to whom the taxing power was delegated were not municipal agencies, or that the legislature had imposed a system of taxation, for local purposes, upon the municipality in which the residents thereof had no voice in the selction of the taxing officers. No such objections, however, can be seriously urged against the act of the legislature creating the “Home Rule” statute. Act- No. 279, Public Acts of 1909 as amended. In passing that act, the legislature left it optional with the electorate to decide whether they will accept its provisions. The municipality is free to accept or reject it. If they accept its provisions and afterwards become displeased with its workings, they may cast them off by the same process by which they were acquired. Therefore it cannot be said that the people of Wyandotte are subjected to a system in the creation of which they have had no voice. Neither can it be said that they had no voice in the selection of their representative. The proposed charter put it squarely up to the voters to say whether their representative should be appointed, and they have given their assent to it. Possibly it may be said that the people of Wyandotte are not the only ones interested, inasmuch as the board of supervisors legislate for the entire county. The answer to this is that the other townships and cities would have no more voice in the selection of Wyandotte’s representatives, even if they were elected instead of being appointed.

But aside from these considerations, we think the question is foreclosed by the holding of this court in Attorney General v. Preston, 56 Mich. 177 (22 N. W. 261). The question there involved was the right of the president of the village of Mackinac to a seat on the board of supervisors-of Mackinac county. In that case the court tfcok occasion to construe sections 6 and 7 with respect to the power and duty of the legislature, and there said:

“The effect of the two- sections, as we construe them, is to limit the power to give organized townships more than one representative on the board, and imposes the duty of giving cities some representation therein, but leaving the number of representatives, and the manner of their selection, to the determination of the legislature.”

This interpretation, therefore, clearly defines, not only the power but the duty of the legislature to prescribe what representation cities shall have upon the board, but also establishes its right to prescribe the manner in which such representation shall be selected. In the exercise of this authority the legislature has provided that such representation may be by election or appointment, and the very people who are to be affected have said by their charter that it shall be made by appointment. This is home rule, and is final.

Judgment for respondent, without costs.

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


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    GARNEAU v. COMMISSION OF CITY OF CADILLAC.
    Elections — Municipal Corporations — Majority of Votes — Commission Porm of Government.
    The provisions of the Cadillac charter requiring that the candidate for any office who shall receive a majority of the first-choice votes for such office shall he declared elected, and if no candidate shall receive a majority of the first-choice votes, then the second-choice votes shall be added to the first-choice votes and the one receiving the largest number of combined first- and second-choice votes shall be declared elected, etc., require a majority of all the votes cast for the office in. order to elect; a plurality is. insufficient even if none of the candidates receives a majority, where the charter expressly defines a majority as more than half the total votes east.
    Certiorari to Wexford; Lamb, J.
    Submitted June 9, 1914.
    (Calendar No. 26,214.)
    Decided July 24, 1914.
    Mandamus by Theodore Garneau to compel the commission of the city of Cadillac, being the board of election canvassers of the city, to reconvene and declare him elected to the office of constable. From an order denying the writ relator brings certiorari.
    Affirmed.

      Gaffney,- Miltner & Millington, for relator.

      E. F. Sawyer, for respondent.
   Bird, J.

The city of Cadillac has a commission form of government. On the 10th day of February, 1914, an election took place at which a constable was to be elected. For that office there were three candidates — the relator, Charles H. Sinclair, and William Trey. Section 6- of article 5 of the charter provides that, where three candidates are to be voted for, the voters shall be given opportunity of expressing, not only their first choice, but their second choice. This provision was complied with. The canvassed vote showed the result to be:

No candidate appearing to have a majority of all the votes cast, the canvassing board determined that no one was elected. The board was guided in their determination by section 10 of article 5 of the new charter, which provides that:

“The candidate for any office receiving a majority of first-choice votes cast for candidates for that office shall be declared elected. If no candidate shall-receive a majority of the first-choice votes for such office, then the second-choice votes received by each candidate for such office shall be added to the first-choice votes for each such candidate, and the candidate receiving the largest number of first-choice and second-choice votes combined, if such votes constitute a majority, shall be declared elected. If no candidate shall have a majority, after adding the first-choice and the second-choice votes, the third-choice votes received by each candidate shall be added to the combined first-choice and second-choice votes received by such candidate and the candidate having the largest number of first-choice, second-choice and third-choice votes combined, shall be elected to such office, whether such number constitutes a majority of all the votes cast or not. * * *
“Whenever the word ‘majority’ is used in the preceding section it shall mean more than one-half of the total number of votes cast at such election for the office in question.”

The relator was not content with the result reached by the canvassing board, and he appealed to the circuit court for a writ of mandamus to compel the board to reconvene and' declare him elected. After a hearing the trial court denied the application, and the matter was then removed to this court by a writ of certiorari. The sole question before us is whether the word “majority,” as used in section 10, should be construed to mean “plurality.” The relator’s contention is that it should be so construed.

There are at least two serious difficulties which stand in the way of giving effect to the construction contended for by relator:

(1) The framers of the charter made it clear what meaning should be given to the word “majority” wherever used in that section. They, as though fearing it would be misconstrued, construed it themselves by declaring in express language that it should “mean more than one-half of the- total number of votes cast at such election for the office in question.”

(2) It is evident from the language used in section 10 that two different rules were intended in determining the result. When three candidates' are voted for, a majority rule is specified. When there are more than three candidates, a plurality vote will, elects Should we now construe the word “majority” to mean “plurality,” then the obvious distinction intended fades away, and a like rule obtains in both cases.

These and other considerations lead to the conclusion that the word “majority” was used to convey the meaning which is given to it by the lexicographers. To hold otherwise would be to do violence to the lan-. guage used. If it is found that an “impossible”- provision has been injected into the organic law of this simplified form of municipal government, it is for the people, and not for the courts, to correct.

The order of the trial court was right, and is hereby affirmed.

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


text:
    PESOLA v. FORSTEN.
    1. Bailments — Animals—Horses—Due Care.
    The bailee of a horse for hire, to be used in a lumber camp, was under obligation to the bailor to see that the horse was used and treated with reasonable care, and in the way-in which, such animals are ordinarily treated by prudent men, who own or have them in charge.

      2. Pleading — Trespass—Case—Distinctions Abolished.
    Since the passage of Act No. 77, Pub. Acts 1905 (5 How. Stat. [2d Ed.] §13114), the distinction between trespass and case no longer exists, and a declaration framed in case for failing to place the horse in the hands of a competent driver and to treat it in a reasonably prudent and safe manner or to protect the same from brutal treatment, so that .the animal became sick, because thereof and died, stated a cause of action.
    3. Master and Servant — Bailments — Animals — Cruel Treatment — Principal and Agent.
    Where it appeared from the evidence that defendant’s servants punished plaintiff’s horse with a stick six or seven feet long and two inches in diameter and struck her on another occasion with a cant hook, and again with a log chain, not because of vicious conduct on the part of the animal, but because of the fact that she was slow and they wanted to expedite the work, the tort was not committed out of the line of the servant’s employment and the defendant was liable and could not avoid responsibility, on the theory that the wrong was wilful and intentional and not within the scope of the servant’s authority.
    Error to Chippewa; Hudson, J.
    Submitted November 11, 1913.
    (Docket No. 87.)
    Decided July 25, 1914.
    Case by Matt Pesóla against Victor Forsten for negligent injuries to plaintiff’s mare. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      F. T. McDonald, for appellant.

      A. E. Sharpe, for appellee.
   Bird, J.

Plaintiff sued and- recovered a judgment against the defendant in an action on the case for the loss of a mare which died while being used by defendant in his lumber camp near Trout Lake. It was the claim of plaintiff that the mare died as the result of cruel and brutal treatment inflicted by the servants of defendant. The defense contended that ,she died from natural causes. When plaintiff’s counsel had concluded his opening statement to the jury, defendant requested a directed verdict on the ground that neither the declaration nor the opening statement of counsel stated a cause of action. The request was refused, and error is assigned thereon.

The negligence counted upon in the declaration was the failure of defendant to place the mare in the hands of a “competent, careful, and prudent driver;” “to treat and use the mare in a reasonably prudent, careful, and sane manner;” “to protect her from cruel and brutal treatment and from intentional injury by her driver.” It is further alleged that she became sick and afterwards died in consequence thereof. If the defendant was using the mare in his lumber camp under an arrangement for hire, as the proof shows, he was under obligation to the plaintiff to see that the mare was used and treated with reasonable care, and in the way in which such animals are ordinarily treated by prudent men who own or have them in charge, and, if he failed to observe this obligation, he would be liable for the subsequent loss which was traceable to such failure. Hofer v. Hodge, 52 Mich. 372 (18 N. W. 112, 50 Am. Rep. 256).

In pressing his argument that no negligence is alleged or stated, defendant reminds us that the action is “trespass on the case” and not “trespass.” If we concede that trespass would have been the more appropriate action, it is of no importance, since the statute gives plaintiff the right to bring an action on the case wherever trespass could be maintained. Act No. 77, Pub. Acts 1905 (5 How. Stat. [2d Ed.] § 13114). The trial court was of the opinion that the declaration stated a cause of action, and we think there was no error in so holding.

Again, at the close of the testimony, defendant requested a directed verdict. The reason assigned therefor was that the proofs failed to disclose any negligence on the part of the defendant. There are several assignments of error, and most of them are directed to this point. To support. this contention, counsel insists that the testimony shows that the cruel and brutal treatment .of the mare was wilful and intentional, and for such • conduct on the part of the servants the defendant would not be liable.

■ The testimony shows that on one occasion the mare was punished with a stick, six or seven feet long and two inches in diameter; on another occasion, she was struck with a cant hook; on still another, with a log chain. It does not appear, however, that she was punished because she was vicious, but a fair inference from the testimony is that she was maltreated in these ways because she was slow in working and walking, and that the punishments were inflicted to hasten her movements, and the testimony furnishes' inferences that she died from the effects of this rough usage. The argument that the acts were wilful and intentional on the part of the servants, and in consequence thereof the defendant is not liable therefor, we do not think can be maintained under the circumstances disclosed by this record. The acts were committed by the servants while in the employ of the defendant, and while engaged in the work they were employed to do, and evidently for the purpose of expediting that work. It does not appear from the testimony to be a case where the servant turns aside from the work of the master for the moment, and commits an intentional tort on his own personal account, but rather a case where the servant, while in the direct line of his work, loses his patience with the animal over which he has control, and inflicts punishment because she is so slow in doing her part of the master’s work.

The trial court explained to the jury the law on this phase of the case, and instructed them. under what circumstances the defendant would be liable for the acts of his servants and left it to them to decide whether the punishments inflicted were wilful and intentional. In so doing he said to them, in part:

“It is the law that, for a positive wrong, beyond the scope of the master’s business, that is, as applied to a case of this kind, where the servant actually and intentionally, stepping aside from the scope of his employment, from the work in which he was engaged, intentionally and recklessly and wantonly committed an injury on this mare, then the defendant is not responsible for the act of the servant so committed. But when the wrong arises merely from an éxercise of authority, such as overdriving or beating this horse to urge it to greater effort and higher speed, in furthering Mr. Forsten’s interest while hauling or skidding his poles or other timber, and Mr. Forsten received the benefit of that labor, then he must be held liable as fully as though he himself committed the act complained of.”

We are of the opinion that this part of the charge was more favorable to defendant than he was entitled. This was a bailment for hire, and the degree of care that is required is that care which an ordinarily prudent man exercises with his own. If he or his servants failed to exercise that degree of care, and in consequence thereof damage resulted to the mare, the defendant would be liable, and this would be true whether the failure of the servants to exercise such care while acting within the scope of their employment was wilful and intentional or otherwise. In either event it would be the act of the bailee. 5 Cyc. pp. 185, 186; Schouler on Bailments and Carriers (3d Ed.), §§ 19, 20; Hofer v. Hodge, 52 Mich. 372 (18 N. W. 112, 50 Am. Rep. 256).

We think there is no merit in the remaining assignments of error.

The judgment is affirmed.

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