text:
    SCHULTZ v. HUEBNER.
    1. Libel and Slander — Criminal Prosecution.
    To say -of another, “You are a swindler,” imputes degrading conduct and acts, and is indictable under 3 How. Stat. § 9315, which provides that any person who shall falsely and maliciously, by word, writing, sign, or otherwise, accuse, attribute, or impute to another the commission of any crime, felony, or misdemeanor, or any infamous or degrading act, shall be deemed guilty of a misdemeanor. ,
    2. Same — Sufficiency of Complaint.
    The fact that the complaining witness construed the language used as imputing the commission of a crime, rather than an infamous or degrading act, does not render the complaint and warrant void. The offense charged is to be determined by the words alleged to constitute it, and not by the inference drawn from them by the affiant.
    3. False Imprisonment — Defenses.
    A complaint and warrant valid on their face will protect, not only the officer making the arrest and the magistrate issuing the warrant, but the complaining witness as well, from liability for false imprisonment.
    Error to Saginaw; McKnigbt, J.
    Submitted January 7, 1896.
    Decided February 7, 1896.
    Case by Frederick Schultz against August Huebner for malicious prosecution and false imprisonment. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The declaration contains two counts, — one for malicious prosecution, the other for false imprisonment. At the conclusion of the proofs, plaintiff withdrew the count for malicious prosecution. The case was submitted to the jury upon the count for false imprisonment, and a verdict rendered for the plaintiff for his actual damages, $45.
    The defendant made a criminal complaint against the plaintiff, under 3 How. Stat. § 9315, which provides “that any person who shall falsely and maliciously, by word, writing, sign, or otherwise, accuse, attribute, or impute to another the commission of any crime, felony, or misdemeanor, or any infamous or degrading act, * * * shall be deemed guilty of a misdemeanor,” etc. The alleged slanderous words were spoken in the German language, are stated in the complaint, and translated as follows: “You are a swindler; you beat the poor people out of their money, and are a cheat and a fraud.” A warrant was issued upon the complaint, placed in the hands of an officer, who arrested the plaintiff, who was brought before the justice, tried by a jury, and convicted. He appealed the case to the circuit court, where a nolle prosequi was entered, and the prisoner discharged. Before making the complaint, the defendant went to an attorney of good standing, and stated to him that the plaintiff had used the language as above given. This attorney advised him that it constituted a criminal offense under the above statute, and also consulted the prosecuting attorney, who was of the same opinion. Before the trial, the complaint was submitted to the prosecuting attorney of the county, who held the complaint to be good, and conducted the prosecution before the justice. It is not shown that the defendant took any other part in the criminal proceedings than to make the complaint. The court instructed the jury that the words used did not constitute any crime known to our statute, that there was therefore no authority for arresting the plaintiff, and that all persons connected with the arrest were liable to false imprisonment.

      Beach & Gavit-and J. IT. Davitt, for appellant.

      Trash & Smith, for appellee.
   Grant, J.

'{after stating the facts). We think the court erred in his instruction that the complaint and warrant were void. The question whether an offense was charged must be determined by the words alleged to constitute tbe offense, and not by the inference of the affiant therefrom. The language clearly imputed degrading acts to the defendant, and the court was not deprived of jurisdiction because he chose to say that it was a crime rather than an infamous or degrading act. It is not necessary under this statute that the libelous words should impute a specific crime, or that some specific infamous or degrading act should be charged. To say of another, “You are a thief,” would impute a crime. So, also, to say. of another, “You are a swindler,” imputes degrading conduct and acts. Both are indictable under this statute. It follows that a valid complaint and warrant were issued, which protected the officer making the arrest, and the justice of the peace, from liability for false imprisonment. They also exempted the complaining witness from the like liability, although he may be held liable upon the count for malicious prosecution. Wheaton, v. Beecher, 49 Mich. 349; 7 Am. & Eng. Enc. Law, 680; Langford v. Railroad Co., 144 Mass. 431; Murphy v. Walters, 34 Mich. 180; Johnson v. Maxon, 23 Mich. 128; Ward v. Cozzens, 3 Mich. 252. See, also, Love v. Wood, 55 Mich. 451; Hill v. Taylor, 50 Mich. 549. Under this record, the action for false imprisonment cannot be sustained.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    McDONNELL v. RIGNEY.
    Principal and Agent — Contracts—Public Policy.
    An agreement for the sale of real estate on commission, whereby the agent is to make a colorable purchase of certain lotsYor the purpose of inducing others to buy, he concealing from them his real interest in the transaction, is void as against public policy.

      Error to Houghton; Hubbell, J.
    Submitted January 8, 1896.
    Decided February 7, 1896.

      Assumpsit by Simon McDonnell against John J. Rigney to recover commissions on the sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Dunstan & Hcmchette, for appellant.

      Chadbourne & Bees, for appellee.
   Long, C. J.

The court charged the jury in this case as » follows:

“ It appears from the testimony in the case given by the plaintiff himself that he made an arrangement or an agreement with the defendant whereby he was to be paid a commission for the sale of certain real estate which the defendant was offering for sale; that, pursuant to the agreement so made, he was to subscribe for certain lots at meetings of persons solicited to become buyers, and that the defendant was to take off his hands such subscriptions as he made, if he did not wish to retain .them. It appears further that this arrangement, both with respect to the compensation he was to receive, and with respect to his colorable subscriptions for lots, was concealed from the buyers, or those .who proposed to be buyers, and that he attended meetings of proposed buyers, and talked with persons thought likely to become buyers, with a view to induce them to become such, concealing from them both of said arrangements with the defendant. Such an arrangement is contrary to the policy of the law and to sound morals, in that it tends to deceive persons so dealt with, by inducing them to rely upon advice which they supposed to be disinterested, but which was in fact interested advice. The law will not permit him to recover the compensation agreed upon for the fulfillment of such a contract, and your verdict must therefore be for the defendant.”

Plaintiff brings error.

The plaintiff’s own testimony, given in the record, shows the facts as stated in this charge. We think the court was warranted in directing verdict in favor of the defendant, upon the plaintiff’s own showing. The courts will enforce no contracts grounded in turpitude, or opposed to upright and fair dealing, which are opposed to public policy. This rule is followed in Thomas v. Caulkett, 57 Mich. 392; Humphrey v. Transportation Co., 107 Mich. 163. The question is so fully covered by these cases that any further discussion of the principle is unnecessary.

The judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MARTIN v. SMITH.
    1. Justices op the Peace — Certiorari.
    A justice’s judgment will not be reversed on certiorari because of the admission of testimony which was not the best evidence of the facts sought to be proved, where no objection was made to the reception of such testimony upon the trial.
    2. Bills and Notes — Presentment—Custom op Bankers.
    A promissory note payable at the I. bank was left with the C. bank for demand and protest. In an action upon the note, the testimony tended to show that it was the custom among the banks of the city to send messengers once a day to one of the banks for the purpose of adjusting their accounts; that it was the duty of each messenger, on receiving claims against the bank represented by him, to take the same to such bank, to be passed on by the cashier; that, on the day the note in suit matured, it was delivered to the messenger of the I. bank. It further appeared from the clearance books of both banks that, on the day in question, there was a balance of a certain amount in favor of the C. bank, but that an item corresponding with the amount of the note in suit was rejected by the I. bank, and the account adjusted by the giving of a check to the C. bank for the difference between the two amounts. A certificate of protest was made on the same day by the cashier of the C. bank, as notary public. Held, that the evidence was sufficient to warrant a finding of due presentment, demand, and refusal of payment of the note.

      3. Same — Notice of Dishonor — Evidence.
    Evidence of a notary who had made a certificate of protest of a promissory note, that, while he does not recollect mailing notice of dishonor to the indorser, he has no doubt, from the fact that it was his habit to mail such notice upon protesting a note, that he did so upon the occasion in question, as recited in his certificate, is competent as' tending to show notice of dishonor.
    Error to Ingham; Person, J.
    Submitted January 8, 1896.
    Decided February 7, 1896.

      Assumpsit by George B. Martin against Robert Smith, impleaded with M. D. Skinner, on a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Jason E. Nichols, for appellant.

      C harles F. Hammond, for appellee.
   Hooker, J.

Martin, being the owner of a promissory note given by M. D. Skinner to Robert Smith, and by him transferred to Martin by indorsement, left the same with the City National Bank of Lansing for demand and protest. The note was payable at the Ingham County Savings Bank of Lansing. This is an action brought by Martin upon this note. He recovered in justice’s court, and at the circuit upon certiorari. It is now brought to this court by writ of error, by Smith, the indorser. The errors alleged are: First, that a proper and legal demand was not shown; second, that the testimony did not support the judgment.

Plaintiff sought to prove demand and protest, by the certificate, in the usual form, of a notary. Plaintiff also introduced the following testimony:

Fred J. Hopkins: “I am the assistant cashier of the City National Bank of Lansing, Michigan, and was such cashier on September 26, 1894, and am the notary public who protested the note introduced in evidence. I signed this certificate attached to the note as such notary public. I did not go in person to the Ingham County Savings Bank on the 26th day of September, 1894, or at any other time, to demand payment upon this note, and never demanded payment of M. D. Skinner. The note in question was left at our bank on or prior to September 26, 1894, for protest, and I protested it in the usual and customary manner of protesting paper at our bank and in the other banks in this city, as I understood it, which was as follows: On September 26,1894, and for some time prior thereto, the several banks in the city.of Lansing had, by an agreement among themselves, established what might be called a custom of meeting once a day, at 1:30 p. m., at one of the banks, for the purpose of adjusting the accounts between such banks, or what might be styled-a clearance. This was done by the various banks’ making up a list of accounts against, the other banks in a clearance book, and bundling the checks, drafts, and claims against the other banks severally, and sending some employe of the bank to the place of meeting that week for the purpose of adjusting such accounts. This was never done by the cashiers of the banks, but by some of the employés. The week in September in which the 26th day occurred, the meeting was at our bank. The agent from the Ingham County Savings Bank came to ours, or the City National Bank, and there was delivered to him, among other checks and accounts against the Ingham County Savings Bank, the note in question It was a further custom, by agreement among the said banks, that at the meeting of the agents of said banks at 1:30 p. m., as aforesaid, the checks, accounts, and notes against each bank, with a list of the same on the clearing book, was taken back to the bank, to be passed on by the cashier of such bank, and the same being honored and allowed, or dishonored and rejected, by said cashier. Our clearance book and the books of the bank show that on September 26, 1894, there was a balance due to our bank from the Ingham County Savings Bank of the sum of $510.09. This is also shown by the clearance book in the Ingham County Savings Bank. Both books show that the item of $100, which I believe this note represented, was rejected by the Ingham County Savings Bank, and we were given a draft on New York for $410.09 by that bank to adjust the accounts of that day. I do not know, of my own knowledge, other than what I gather from our clearance book and the clearance book of the Ingham County Savings Bank, that any demand was made at the Ingham County Savings Bank for payment ,upon this note. I mailed a notice of protest in this case on that day, addressed to Robert Smith, Lansing, Michigan. I do not remember of mailing it, but testify from my habit of mailing letters notifying indorsers when I make a protest on a note, as I did in this case.”

Adelbert Baker, a witness produced and sworn on the part of the plaintiff, testified as follows:

“I am assistant cashier of the Ingham County Savings Bank. I have no remembrance of any demand being made at our bank on September 26, 1894, for payment on the note in question. The clearance book of the Ingham County Savings Bank on September 26, 1894, shows that there was an item on the said date of $100 that was rejected. Whether this was the note in question I am unable to say. I have no remembrance of seeing the note in question, and have no knowledge concerning it, whatever, other than I stated.”

There is evidence tending to show that the note was seasonably sent by the City National Bank to the Ingham County Savings Bank, for presentation and demand, through the messenger of the latter bank; that the officers of the latter bank received it, and recognized the demand, and refused to pay. If the note actually reached the Ingham County Savings Bank, during banking hours of the proper day, under circumstances which both banks understood to be intended as presentation and demand of payment, and such understanding was acted upon by the Ingham County Savings Bank by returning the paper rejected, there was a compliance with the law. Nichols v. Goldsmith, 7 Wend. 160.

It is contended that no witness testified that the note was taken to the bank, or received there; but, while it is true that there is no direct evidence of those particular facts, there is proof of circumstances which tend strongly to prove them, as well as the understanding of both that this was a presentation and demand of payment, .and refusal.

Both of the bank officers testify that their testimony rests upon what the books of their respective banks show as to demand, at the Ingham County Savings Bank, or, in other words, that they do not testify to the facts from recollection, but from what the books show; and it is said .that this was insufficient evidence to establish the fact that the note was taken to the Ingham County Savings Bank, inasmuch as it rested entirely on the statements of others. But the evidence does not appear to have been objected to, and we have held that a case should not be ■reversed because the testimony admitted by the justice was not the best evidence, where it was not objected to on the trial. See Hart v. Tp. of Port Huron, 46 Mich. 428; Forbes Lithograph Manfg. Co. v. Winter, 107 Mich. 116.

It is further objected that the record does not show that notice of dishonor was given. In our opinion, the effect 'of the testimony of Mr. Hopkins is that he does not remember of mailing the notice, and that he testified that he did so from his memoranda and his habit of mailing notices when, as in this case, he made certificate of protest. It was equivalent to ’ saying that, from the certificate of protest made by him, which recites the fact, he had no doubt that he mailed the notice as therein stated. This was evidence tending to show notice. 2 Phil. Ev. p. 549 (Cowen and Hill’s Notes); Miller v. Hackley, 5 Johns. 375 (4 Am. Dec. 372); Bank of Monroe v. Culver, 2 Hill, 531; Fisher v. Kyle, 27 Mich. 454. But the certificate of protest was presumptive evidence of presentment, demand, and notice of dishonor,' under the statute (1 How. Stat. § 632), if, as the certificate states, it was under the notary’s seal of office. We think that there was evidence to support the judgment.

The judgment of the circuit court must therefore be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    MOORE v. THOMPSON.
    Appeal — Sufficiency of Pleadings —Objections not Raised Below.
    Where, during two trials in the circuit court and upon an appeal to the Supreme Court, a declaration has been treated by all parties as containing a count for false imprisonment, it is too late, upon a second appeal, to raise the point that it does not contain such count, and that the count relied upon is in fact a count for malicious prosecution.
    Error to Livingston; Person, J.
    Submitted January 9, 1896.
    Decided February 7, 1896.
    Case by Kate T. Moore against Wilford B. Thompson for slander and false imprisonment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry C. Waldron (Thompson & Harriman, of counsel), for appellant.

      Saioyer & Knowlton, for appellee.
   Moore, J.

This case has been in this court before, and is reported in Moore v. Thompson, 92 Mich. 498, wherein is contained a full statement of the facts, from which this record does not differ materially. The law as settled in that case must control this one, in so far as it is applicable.

It is urged by the counsel for appellant that the declaration does not contain any count for false imprisonment, and that the last count of plaintiff’s declaration is a count in malicious prosecution. This case has been tried twice in the circuit court and once in this court. In the former trial in this court, Montgomery, J., who wrote the prevailing opinion, stated the case as being “ an action for slander and false imprisonment.” 93 Mich. 501. Grant, J., who wrote the dissenting opinion, wrote, “ The declaration in this case contains two counts, — one for false imprisonment, and the other for slander.” In both of the trials in the circuit court, the counsel for the defendant treated this count as one for false imprisonment, and offered several requests to charge, in which he characterized the count as one.for false imprisonment. No other claim has been made until the case is brought here this time. In the case of Advertiser & Tribune Co. v. City of Detroit, 43 Mich. 116, it was held that the objection relied upon as error must be brought to the notice of the trial court. Also, see case of Howry v. Eppinger, 34 Mich. 30, and the many cases cited there. We do not intimate that the count is not a count for false imprisonment; but, if it is not, it is too late to raise the question now.

Objection is made to some portions of the charge of the trial judge, but an inspection of his charge as an entirety does not disclose any material error. We think it in harmony with the law of the case as decided when the case was here before.

The judgment of the court below is affirmed.

The other Justices concurred.


text:
    FENLON v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    1. Railroad Companies^Negligence — Inexperienced Employe —Failure to Instruct.
    Where, in an action against a railroad company by a brakeman for injuries received while attempting to couple cars supplied with double deadwoods, it appears from the plaintiff’s own testimony that he saw and recognized the danger, and attempted to couple the cars in the manner in which he claims it should be done, it cannot be said that the accident happened by reason of defendant’s failure to instruct him how to perform such service.

      2. Same.
    Plaintiff having represented, at the time of seeking employment from the defendant, that he had had 27 days’ experience, there was no negligence in failing to warn him of the danger in coupling such cars.
    3. Same — Assumption op Risk.
    The risk of injury in the manner stated was assumed by the plaintiff, he having been in defendant’s employ for several weeks, during which time such cars were in constant use.
    Error to Mackinac; Adams, J.
    Submitted January 9, 1896.
    Decided February 7, 1896.
    Case by Thomas Fenlon against the Duluth, South Shore & Atlantic Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry Hoffman (A. B. Hldredge, of counsel), for appellant.

      O. W. Bertch and J. J. Brown, for appellee.
   Hooker, J.

The plaintiff lost an arm in attempting to couple cars supplied with double deadwoods.

As the danger was obvious, and plaintiff’s own,testimony shows that he saw and recognized the danger, and ■attempted to couple the cars by reaching under the dead-woods, in the manner that he testified that it should be done, it can hardly be said that the accident happened by reason of the failure of the defendant to instruct him how to couple such cars.

He sought employment, saying that he had 27 days’ •experience. "We may reasonably presume that he meant that the defendant should understand that he had 27 days’ experience as a brakeman, as that was the kind ■of a job he obtained, and that was the kind of experience that he had previously. There was nothing to indicate to the defendant that he was familiar with but •one kind of car, or that he was unfamiliar with double «deadwoods. He worked from some time in June until August 5th on a road where such cars were in common use, and it is shown that he frequently worked upon trains containing them. He admits that he saw them, and does not deny that he worked on a train that had ‘ ‘ a whole lot of those cars,” but does not remember of coupling any of them. We think that there was an absence of evidence tending to establish negligence - upon the part of the defendant. A similar case is that of Kohn v. McNulta, 147 U. S. 238.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    FINDLAY v. RUSSEL WHEEL & FOUNDRY CO.
    1. Master and Servant — Scope of Employment.
    It is not without the scope of the employment of one employed in a car factory to do general work, — such as carrying timbers, painting, lifting, etc., — to assist in hoisting a car upon its trucks by means of a block and tackle apparatus, especially where he has been accustomed to render such service whenever called upon to do so.
    2. Same — Obvious Danger.
    A master is not bound to inform an employe of dangers that are open to ordinary observation.
    3.Same — Fellow-Servants.
    The foreman of a department in a factory, who works with the ihen under his charge, is a fellow-servant of'the men as to all acts which it is riot the duty of the master to perform.
    Error to Wayne; Carpenter, J.
    Submitted January 9, 1896.
    Decided February 7, 1896.

      Case by William Findlay against the Russel Wheel & Foundry Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Moore & Moore (Russel & Campbell, of counsel), for appellant.

      John G-. Hawley, for appellee..
   Hooker, J.

The plaintiff was engaged in the manufacture of cars at the defendant’s car shop. The car bodies were placed upon trucks by the use of a rope, both ends of which extended to a point near the ceiling, where they passed through a double block, after which the ends united in a ring. A drum or winch was situated near, from which a rope proceeded through a sheave just above the floor. The rope had a hook at the end, which was used to hook into the ring mentioned. Winding the rope upon the drum had the effect of drawing itjthrough the sheave, and, in turn, would draw the double rope through the double block above, thus lifting the car or weight. A' chain five or six feet long was fastened by one end near the sheave. At the other end of the chain was a hook. When the weight was raised sufficiently high, the chain was passed through the ring, and the hook was hooked into or about the chain, thereby holding and taking the weight off from the sheave or winch, permitting the rope to be withdrawn. It is apparent that the rope could only be unhooked from the ring after the chain had been passed through and fastened, and the testimony shows that it was sometimes disengaged with difficulty, by jerking.

The accompanying diagram will aid in an understanding of the situation.

On the day in question, the plaintiff was called by the foreman in charge of the room to aid in hitching and unhitching the rope, and to assist in placing a flat car upon its .trucks. The foreman was in the habit of working with the men, there being about 14 in his department. After the chain was fastened, the plaintiff attempted to unliook the rope, giving the signal, by saying “All right,” which, he says, meant that the foreman, King, who had charge of the winch, should slacken the rope by unwinding the rope from the drum. Plaintiff states that, instead

thereby winding up the rope and raising the weight, and that he (the plaintiff) had his hand upon the rope, and it was drawn down into the sheave, resulting in the loss of two fingers. He recovered a judgment against the defendant in an action for negligence, and the defendant has appealed. The only errors assigned are the submission of the case to the jury and the refusal to direct a verdict for the defendant.

The plaintiff contends that he should recover — First, because the defendant’s vice principal was guilty of negligence in the use of the winch, by starting it up without notice; second, because the plaintiff was called upon to perform a dangerous service, without reasonable caution, when the plaintiff was unaware of the peril, which service was not within the scope of his employment.

We think that the evidence shows, beyond dispute, that the plaintiff was not called to work outside of his line of duty. He testified that he ! ‘ was working in the car shop,

and was carrying timber, painting, and other general work of that kind, and lifting, and such like.” He said, further, that it was customary for the foreman to call upon himself and fellows to render this service, and he had rendered it on several occasions. It does not appear that he was employed to do any particular part of the work, but to do general work, including lifting. The work was not only in the line of his duty, and work with which he was familiar, from observation and experience, for the period of two years, but it should have been obvious to the most casual observer, or the veriest tyro in mechanics, that the winding of the rope upon the drum would raise the weight, and draw the hand into the sheave, if not removed, and that injury would result.

We cannot say that the plaintiff was negligent. His hand was within two or three feet of the sheave. If started suddenly and rapidly, in a different direction from what was expected, there was little time to think; and there is nothing to indicate that it was negligent to take hold of the rope to disengage it.

But one question remains, viz., was the foreman, King, a fellow-servant ? This question has been frequently before the court of late, and we have repeatedly held that a foreman of a department, who takes part in the performance of labor with his men, is a fellow-servant, as to acts which it is not the duty of the master to perform. Beesley v. F. W. Wheeler & Co., 103 Mich. 196; Schroeder v. Railroad Co., Id. 213.

The. court should have directed a verdict for the defendant.

The judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    RUELL v. CITY OF ALPENA.
    1. Municipal Corporations — Salaries of Officers — Waiver.
    The salary of a municipal officer, when once fixed in the manner prescribed by law, can be changed only by a like compliance with the statutory conditions; and by accepting a smaller amount than that to which he is entitled the officer does not waive his right to recover the full salary.
    2. Same — Ordinances—Repeal.
    A city council was by charter vested with the power to appoint, regulate, and maintain a police force, and, as well, with the power to determine and regulate the compensation of all officers, elective or appointive. Under this charter, the council adopted an ordinance providing for the appointment of certain police officers, tand fixing their salaries. After-wards, by an amendment of the charter, the general control of the police department was transferred to a board of commissioners, but the power to fix salaries was not conferred upon the board or taken from the council. Held, that the amendment did not operate to repeal the provisions of the ordinance in relation to salaries, and, no other action having been taken by the council upon that subject, an appointee of the commissioners was entitled to receive the salary fixed by the ordinance.

      Error to Alpena; Kelley, J.
    Submitted January 14, 1896.
    Decided February 7, 1896.

      Assumpsit by Edward A. Ruell against the city of Alpena to recover a balance alleged to be due him for salary as sergeant of police. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    By the charter of the city of Alpena prior to 1891, the general police power was vested in the common council. So, also, was the power “to determine and regulate the compensation of all officers elected or appointed.” Under that charter the council passed an ordinance providing that the council should have power to appoint a chief of police, a sergeant of police, and patrolmen, to divide the city into precincts, and “assign sergeants of police to each of the said precincts.” The salary of the sergeant was fixed by the ordinance at $2.50 per day. In 1891 the charter was amended by act of the legislature, providing for the appointment of a board of police commissioners, in which, when organized, was vested the general control of the police department. Act No. 393, § 9, subd. 36, Local Acts 1891. By the amended charter the power to fix salaries was not conferred upon this board nor taken away from the common council. The board was duly organized in May, 1892, and adopted rules and regulations for the government of the department, and in them provided for a chief of police and a first and second sergeant. It appointed plaintiff first sergeant, and reported its action to the common council, with the recommendation that “his salary be fixed and remain as at' present, $50 per month.” He had previously been employed upon the force as patrolman at that salary. This report was placed on file by the council, and no further action was taken upon it. Plaintiff entered upon the duties of his office, and continued therein until March, 1894, when he was discharged. About two months after his appointment, he presented, a communication to the council claiming Ms salary under the above ordinance at $2.50 per day. The council took no other action than the reference of the demand to the board of police commissioners. In February, 1894, he made a similar demand, and thereupon the board discharged him. He then instituted this suit to recover the difference between $50 per month, which he had received, and $2.50 per day, which he claimed as his right under the' ordinance.
    J. D. Turnbull, for appellant.

      I. S. Canfield, for appellee.
   Grant, J.

(after stating the facts). Under both the old and amended charters, the exclusive power to fix salaries was in the common council. The provisions of the ordinance, enacted under the old charter, fixing the salaries of the police officers, were not repealed by that provision of the amended charter authorizing the formation of a board of commissioners and giving it control of the police department. The council had taken no other action fixing the plaintiff’s salary, and it was therefore governed by the ordinance. Miller v. Board of Auditors, 41 Mich. 4. See, also, People v. Board of Police, 75 N. Y. 38; Kehn v. State, 93 N. Y. 294; Ryce v. City of Osage, 88 Iowa, 558.

Reversed, and new trial ordered.

The other Justices concurred.


text:
    CLEE v. VILLAGE OF TRENTON.
    Municipal Corporations — Taxes—Injunction.
    A municipal corporation will not be restrained from collecting a tax merely because it was levied, in part, to replace funds illegally expended.
    Appeal from Wayne; Carpenter, J.
    Submitted January 14, 1896.
    Decided February 7, 1896.
    Bill by John Clee and others against the village of Trenton and others to restrain the collection of taxes. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Washington I. Robinson, for complainants.

      James H. Pound, for defendants.
   Long, C. J.

The opinion of the court below, filed in this case, sufficiently states the facts, as follows:

‘ ‘ Complainants are taxpayers in the village of Trenton. They seek an injunction restraining the village from collecting the tax assessed against each and all of them, upon two grounds: First, that it is the intention of the village to remit the tax of one O’Donnell, a manufacturer; and, second, that a portion of the tax is made necessary by the fact that the council built sidewalks which should have been built by private individuals.
“I am satisfied that the council will not refund the tax of O’Donnell. Moreover, the fact that it might have had the intention to do that could not have afforded grounds for the injunction restraining its collecting any tax. The proper remedy would have been a bill to have prevented. the refunding of said tax.
“Respecting the second contention, as I stated when the case was submitted to me, I am of the opinion that the council did build sidewalks which should have been built by private individuals, and, in my judgment, it was not authorized to build such sidewalks, under the circumstances, at tbe public expense. It appears by the testimony, however, that the council bought the material and employed the labor, and apparently have paid for these walks. The tax, therefore, is raised, not to build walks nor to pay for building them, but to raise a fund to replace what has been expended by budding these walks. The case stands as if the city of Detroit, having made an unwarranted expenditure out of funds in its possession, is thereby prevented from raising by tax the amount which it has unlawfully expended. There can be but one answer to this question. If the money has been taken out of the city treasury, and the necessities of the city require it, the only proper way to raise it is by taxation. The complainants’ remedy in such a case is an injunction, which prevents the village from paying for the improvement out of the public funds.
“It results, therefore, in my opinion, that the bill must be dismissed. ”

The testimony fully supports the facts stated by the •trial coui’t. The defendants disclaimed any intention to refund the taxes to O’Donnell, and it appeared conclusively that the moneys sought to be raised were necessary to carry on the affairs of the village. These moneys sought to be raised were not for an illegal purpose, and the mere fact that moneys had been wrongfully and illegally expended would not make the present tax void.

The decree must be affirmed.

The other Justices concurred.


text:
    GUMZ v. GIEGLING.
    1. Bills and Notes — Indorsement before Delivery —Joint Maker.
    One who indorses a promissory note before it is uttered, and before the payee has indorsed it, is liable as a joint maker.
    2. Same — Parol Evidence.
    In an action against such person, evidence that he was induced to sign the note by the promise of the payee that he should not be held liable thereon is inadmissible, as tending to vary the terms of a written contract by parol evidence.
    Error to Manistee; McMahon, J.
    Submitted January 15, 1896.
    Decided February 7, 1896.

      Assumpsit by Rudolph Gumz and others, as copartners, doing business under the firm name of R. Gumz & Co., against Henry J. Giegling and Cornelius A. Waal, on a promissory note. From a judgment for plaintiffs on verdict directed by the court, defendant Waal brings error.
    Affirmed.
    This suit was brought upon a promissory note for $700 dated August 14, 1893, payable to the order of R. Gumz & Co.,’ one year from date, indorsed by defendant Waal. The defendant Waal pleaded the general issue, with notice that the note was given for a prior indebtedness of defendant Giegling; that Waal, when applied to by plaintiffs to indorse the note, refused to do so, and was induced to indorse the same on the representation of plaintiffs that his signature was to be a matter of form, and not for the purpose of creating any liability on his part, but was to be used only to enable them to have an additional argument and lever to use upon Giegling to induce him to pay the note; and that plaintiffs promised that no claim or demand should be made on him for payment, and that his signature should not be considered as creating any lía- ' bility. At the conclusion of the proofs, the court directed a verdict in plaintiffs’ favor.

      George L. Hillilcer, for appellant.

      Dovel & Smith, for appellees.
   Grant, J.

(after stating the facts). Plaintiffs had sold meat to defendant Giegling, who kept a meat shop in Manistee. The account was an open one, and had been running between four and five months previous to the date of the note. They refused to sell him any more goods unless the account was paid or secured. Giegling was unable to pay, and Mr. Schaaf, plaintiffs’ agent, asked him to give a note with an indorsement. Mr. Giegling suggested that they see defendant Waal, and that he might indorse a note for him. The two went together to Mr. Waal’s office. Mr. Waal gave evidence to sustain the facts set up in his notice. It, however, conclusively appears from his own testimony, as well as that of Mr. Schaaf and Mr. Giegling, that all the conversation upon which he relies as a defense occurred before the note was made out and signed. It is therefore sought to vary the terms of a plain written contract by parol evidence of what took place before its execution. Mr. Waal himself testified, “After the talk was had all round, we all came in there; and the note was drawn up and signed at once, and handed over to Mr. Schaaf.” Time for the payment was extended one year. Giegling told Mr. Waal that, if plaintiffs got this note, they would sell him more meat.

Waal was not the payee upon the note, and indorsed it before it was uttered, and before the payee had indorsed it. He is therefore a joint maker. Rothschild v. Grix, 31 Mich. 150. If the note had been executed by Giegling, and delivered to plaintiffs, and they had afterwards secured the indorsement of Waal, without consideration, this defense would have been open to him, under the authority of Kulenkamp v. Groff, 71 Mich. 675. That decision, however, expressly holds that under the facts of this case the defense cannot be sustained. See, also, Aultman & Taylor Co. v. Gorham, 87 Mich. 233.

The learned circuit judge was correct in directing a verdict for plaintiffs.

The judgment is affirmed.

The other Justices concurred.


author: Long, O. J.

text:
    WHEELER v. MEYER.

    1. Action on Bond — Evidence—Sufficiency.
    Testimony that an inventory was attached to a bond at the time of its execution by the principal, that the principal took ■ the bond away with him in that condition for the purpose of obtaining the signature of the surety, and that, when he returned it with the surety’s signature, the inventory was still attached to the bond, when taken in connection with the fact that the bond contained a reference to the inventory as “hereto attached,” is sufficient to justify a finding that the inventory was attached to the bond when the surety signed it, even though several witnesses testify positively that it was not attached at that time.
    2. Same.
    1 In an action upon a bond given by a mortgagor to the mortgagee, conditioned that the former should account for the proceeds of the mortgaged property sold by him, the admission in evidence of the notes to secure which the mortgage was given is not error, where the only purpose of such evi-. dence is “to establish the consideration and show the history of the transaction.”
    Error to Wayne; Frazer, J.
    Submitted January 15, 1896.
    Decided February 7, 1896.

      Assumpsit by Russell Wheeler and another against Louisa Meyer and John F. Guilloz on á bond. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Albert J. Chapman, for appellants.
    Corliss, Andrus & Leete, for appellees.

       Rehearing denied March 24, 1896.

   Long, O. J.

This case was before this court at the January term, 1893, reversed and remanded for new trial, and reported in 95 Mich. 36. It was again tried in the circuit court of Wayne county in October, 1893, and brought to this court and heard at the June term of 1894, was again reversed and remanded for new trial, and is reported in 101 Mich. 465. It has been again tried, and comes to this court upon writ of error by defendants. The facts have been so fully stated in the former opinions that it is unnecessary to restate them here.

The first objection relates to the admission of the bond and inventory in evidence, and counsel for defendants contends that there was no proof which authorized the court to permit them to be received in evidence, for the reason that the daughter of Mrs. Meyer testified that the inventory was not attached to the bond at the time Mrs. Meyer signed it. We think there was some testimony given by the plaintiffs which tended to show that the inventory was attached to the bond when Mrs. Meyer signed it. Judge Lillibridge testified that he drew the bond, and cut from one of the notices of sale the description or inventory of the property, and pinned the same to the bond, and that, when Mr. Guilloz signed the bond, this inventory was pinned to it, and Guilloz took it to get the other signature, and that when it came back to him it was signed by Mrs. Meyer, and the inventory was still pinned thereon. This, taken in connection with the fact that the bond recited that “therefore, if said John F. Guilloz shall well and truly take possession of said stock of goods and chattels, an inventory of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof,” is some evidence that the inventory was attached at the time Mrs. Meyer signed her name. It is true that Mr. Guilloz also testified that the inventory was not attached, but the court submitted that question to the jury, as follows:

“This suit is brought upon this bond in question, and the principal question for you to determine is the liability of John F. Guilloz and of Mrs. Meyer upon this bond, and that is all the matter you are to adjust in this trial. It seems that one of the principal questions arising in the case is whether there was a certain paper attached to the bond at the time it was executed. It is claimed on the part of the plaintiffs in this suit that this bond was executed by John F. Guilloz, and at the time it was executed there was a certain paper, which was an inventory of the property, attached or pinned to the bond, and it is claimed that that inventory was pinned to the bond at the time it was delivered to John F. Guilloz, and that Guilloz took the bond with that paper pinned to it, and returned it with the signature of Mrs. Meyer to it. Mrs. Meyer claims that, at the time she executed this bond, this paper was not pinned to the bond at all, but that she signed it at the request of her son-in-law, Mr. Guilloz, and that she did not know or read or understand the contents of this paper, and that it was not pinned to the bond at all. When you come to deliberate on this case, one of the questions for you to determine is whether this exhibit, — ‘A,’ I believe, is the title of it, but at any rate you will know it by being an inventory or a list of property that was claimed to be turned over to John F. Guilloz, and for which he was to account under the .terms of this bond, — you are asked to decide whether this paper was attached to the bond at the time it was signed by Mrs. Meyer. The law of the case, as I understand it, is this, in regard to that particular: If you shall find that this paper was attached, — whether you shall find that this paper was attached or not to the bond, John F. Guilloz is liable in this action for a proper disposition of this property under the bond, for all this property, — but if this paper was attached to the bond at the time Mrs. Meyer signed it, then Mrs. Meyer is liable for the proper disposition of the property described in this inventory Exhibit A; but if it was not attached to the bond at the time she signed it, then she is only liable under this bond for such property as was actually turned over to John F. Guilloz. She is not liable for any property that was not turned over to John F. Guilloz, if she did not know the contents of this paper and it was not attached to the bond at the time she signed it.”

We think this was a fair submission of the question to the jury.

It is contended, further, that three certain notes should not have been admitted in evidence. A bill of sale was executed by Guilloz Bros, to plaintiffs December 27,1888, and given to secure the payment of these notes. When the notes were offered in evidence, .counsel stated that they were offered “ simply for the purpose of establishing the consideration and of showing the history of the transaction.” The court admitted them for that reason, and no other. We see no error in this.

We have examined the other assignments of error and the charge of the court with much care, and are of the opinion that the case was tried substantially upon the theory set out in the former opinions,' and in accordance with the rules there stated. The charge of the court fully protected the rights of the defendants, and was open, full, and fair in all respects.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


text:
    PILLARD v. DUNN.
    1. Witnesses — Competency—Matters within Knowledge oe Decedent.
    Where, in an action by an administrator upon a promissory note belonging to the deceased, the execution of which is denied by the defendant, the plaintiff introduces testimony that the defendant signed the note in the presence of the deceased at a certain time and place, the defendant, notwithstanding the statute excluding his testimony as to matters equally within the knowledge of the deceased, may testify that he was not at such place at the time stated, but was at another place, that he never signed a note in the presence of the witness and of the deceased, and that he di4 not sign the note in suit.
    S. Same. ,
    In such action, plaintiff having introduced a letter written by defendant to the deceased in her lifetime, acknowledging an indebtedness to the deceased, defendant may testify that the letter had no reference to the note in question.
    3. Expert Testimony — Handwriting.
    Evidence that a witness can read and write, and would know his own signature, is not a sufficient foundation to permit him to testify as an expert on handwriting.
    Error to Wayne; Lillibridge, J.
    Submitted January 9, 1896.
    Decided February 7, 1896.

      Assumpsit by George F. Pillard, administrator of the estate of Elizabeth Dunn, deceased, against James Dunn, on a promissory note. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Moore & Moore, for appellant.

      Wilkinson & Post, for appellee.
   Long, O. J.

Plaintiff, as administrator, sued the defendant, declaring on the common counts, with copy of note of 1200 attached, and claimed in the bill of particulars an additional $200 for moneys loaned. The defendant pleaded the general issue, with notice of the statute of limitations as to the claim for money loaned, and attached his affidavit denying the execution of the note.

On the trial the plaintiff produced a Mrs. Seacord, who testified that the note was signed by the defendant in the presence of the deceased. The note was then given in evidence. The plaintiff also offered in evidence a letter, and the envelope in which it was sent, written by the defendant to the deceased in her lifetime, which were objected to because they were not dated, and there was no showing as to what they referred to. On cross-examination the witness Mrs. Seacord testified that the note was signed on the day of its date, February 17, 1890, at Romulus, Wayne county, this State. The plaintiff also called Mrs. Bourquen, who testified that she knew the defendant’s handwriting, and that the note, as well as the letter and envelope, were in the defendant’s handwriting. The plaintiff was sworn in his own behalf, and testified that he knew the handwriting, and that the signature to the note was the defendant’s. The defendant then introduced as a witness one George Brink, who testified that from January 31 to June, 1890, the defendant was at Munith, Jackson county, and he was there every day, and that he saw him every day; that on February 17, 1890, the defendant and witness paid to one Sutton $12.50, and took a receipt, which witness produced. The defendant was then called, and testified in his own behalf that he was in Munith, Jackson county, every day from January 31 to June, 1890; that on the 17th day of February, 1890, he was at Munith, and remembered the fact of the money’s being paid to Mr. Sutton as testified to by the witness Brink; and that he (the defendant) furnished the money to make that payment, and was present when the payment was made. Counsel for plaintiff then moved to strike out the testimony of the defendant as to his being at Munith, Jackson county, for the reason that it was immaterial, except as it bore on the question of the execution and delivery of the note, and, as the execution and delivery' of the note must'have been equally within the knowledge of the deceased, defendant could not testify in regard to it. The court sustained the objection, and struck out all of the defendant’s testimony as to his whereabouts from January to June, 1890. The defendant was then asked whether he was at his mother’s house, in Romulus, on February 17th, or on February 16th, 17th, and 18th, or on either of those days, or at any time during February, 1890, and whether he was present at any time when any note was signed, and whether he ever signed a note promising to pay his mother $200. The defendant was also asked, as an expert, if, in his opinion, the signature was his. He was further asked if the letter which was offered in evidence had any reference to the note in question. All these questions were excluded upon the ground that they were facts equally within the knowledge of the deceased, and incompetent under the statute.

The court was in error in striking out the testimony given by the defendant, and in refusing to receive the testimony offered, except as hereinafter stated. It is well settled in this State that an opposite party can testify, unless the particular fact testified to was equally within the knowledge of the deceased. It cannot be said, because Mrs. Seacord testified that the defendant signed the note in the presence of his mother (the deceased) on February 17, 1890, at Romulus, Wayne county, that it was true. It may or may not have been true. That would be a question for the jury, if it was disputed or denied, and certainly the defendant may be permitted to testify that it was not true. In Ripley v. Seligman, 88 Mich. 177, it was held that the opposite party could testify that he had purchased warrants and scrip to enter lands for the deceased, and that he selected the lands, as these acts were not done in the presence of the deceased.

The precise question involved here was involved in Pinney v. Orth, 88 N. Y. 447. There suit was brought by the representative of the deceased against Orth to recover a claim for alleged services rendered by the deceased to Orth. On the trial a witness testified to an alleged conversation between Orth and the deceased. Thereupon Mr. Orth took the stand, and proposed to deny the conversation. The testimony was excluded. Speaking of this, the court said:

“We think that Mr. Orth, for instance, was competent to testify that he was not in the city of New York at the time referred to by the witness, or that the witness was at some other place, or that he never met the witness at the office where the conversations are alleged to have occurred; and, on the same principle, we see no reason why he should not have been allowed to testify that the witness was never present at that office when any conversation took place between Mr. Orth and the deceased, so long as he refrained from testifying as to anything that was or was not said between him and the deceased. The fact that the interviews between the party and the deceased did not occur at the place named by the witness, but in a different room, we think, was an independent fact, inquiry as to which did not trench upon the rule. It was not testimony as to the transaction itself, but as to the fact whether the witness saw the. party and the deceased together at the placed named by the witness. A party surely ought to be allowed to testify that he never was in a particular house or room, or never met the witness or the deceased there, for' the purpose of contradicting the witness who testifies to a transaction between them at that place.”

The court further stated, in speaking of the provisions of the act, that the prohibition “does not preclude the survivor from testifying to extraneous facts or circumstances which tend to show that a witness who has testified affirmatively to such a transaction or. communication has testified falsely, or that it is impossible that his statement can be true; as, for instance, that the survivor was at the time absent from the country when the transaction is stated to have occurred.”

So in the present case. The defendant had a right to testify that he was not in Romulus on February 17, 1890, but was at Munith, Jackson county, this State. This was not necessarily a fact equally within the knowledge of the deceased, and the fact was not established simply because Mrs. Seacord testified to it. The court was also in error in not permitting the questions propounded to the witness in reference to the letter and envelope to be answered by him.

We know of no rule of evidence that would permit the defendant to testify, as an expert, that it was not his handwriting upon the note, as no foundation was laid upon which it can be said that the defendant was an expert in handwriting. He was simply asked if he was •able to read and. write, and if he would know his own signature when he saw it. We think this question was properly excluded.

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

The other Justices concurred.


text:
    LANSING LUMBER CO. v. INGHAM CIRCUIT JUDGE.
    Mandamus — Discretion of Circuit Judge — Equity Practice.
    While the Supreme Court will hesitate to act in matters involving the discretion of a circuit judge, a mandamus was issued to compel the vacation of an order closing proofs in a chancery case, where it appeared that the issues were important, and ought not to be disposed of without proofs being taken on both sides, and that the failure to take proofs on the part of the relator was due to the illness of one of its solicitors.

      Mandamus by the Lansing Lumber Company to compel Rollin H. Person, circuit judge of Ingham county, to vacate an order closing proofs in a chancery case.
    Submitted January 28, 1896.
    Granted February 7, 1896.

      M. V. & B. A. Montgomery, for relator.

      George P. Wanty and Jay P. Lee, for respondent.
   Moore, J.

In 1894 the Michigan Trust Company, complainant, filed a bill against the Lansing Lumber Company and Orlando M. Barnes, defendants, in the circuit court for the county of Ingham, in chancery. Such proceedings were had in that case in the circuit court and in the Supreme Court as resulted in an order being entered on the 18th of March, 1896, providing for the taking of proofs within 60 days. At the end of the 60 days another order was entered, extending the time for taking proofs 60 days. On the 10th day of June the complainant began taking its evidence, and continued from time to time up to and including July 9th, when it closed its proofs, and the further taking of proofs was continued until July 31st, on which day another continuance was had until August 6th. On August 6th the relator applied to the circuit court commissioner for an order extending the time in which to take testimony, which order was granted. Six days later the Michigan Trust Company, thinking the circuit court commissioner had not the authority to enter such an order, entered an order closing proofs. The relator then applied to the circuit court for a vacation of the order closing proofs, which application was denied. Thereafter another petition was filed in the circuit court, asking for a rehearing of the former one, and again asking that the order closing proofs be set aside, and the relator be allowed to take its testimony. This petition was denied, and the relator now asks for a writ of mandamus compelling the circuit judge to vacate the order closing the proofs.

It is with great hesitation that this court acts in a matter involving the discretion of a circuit judge, and it would not depart from the rule, were it not apparent now that the failure to take testimony on the part of the relator was due to the illness of one of its solicitors, Mr. M. Y. Montgomery, and because of the importance of the issues involved in the case, which ought not to be disposed of without the proofs on both sides being taken. It is made a condition of this order that the proofs on the part of the relator be put in within 20 days from this date, with the leave to put in rebutting proofs on the part of the Michigan Trust Company, complainant, within 10 days thereafter, and upon the further condition that the case of The Michigan Trust Company v. The Lansing Lumber Company and Orlando M. Barnes, in chancery, be put on the calendar for hearing at the first term of the circuit court for the county of Ingham, without further notice, and to have precedence over all other cases on the chancery calendar, without costs in this court.

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


text:
    PEOPLE v. WIRTH.
    1. Criminal Law — Trial—Remarks op Counsel.
    Where the testimony in a criminal case is conflicting, the result depending upon which witnesses the jury And to be truthful, it is not reversible error for the prosecuting attorney to state, in his argument to the jury, that he believes the evidence shows the witnesses for the defense to be ‘ ‘ a lot of liars. ”
    S. Same — Credibility op Witness — Cross-Examination.
    Upon a prosecution for an assault, a witness for the respondent testified that he was present at the assault, and that it was not made by the respondent, but by another person. Held, that it was proper to show on cross-examination, as affecting the credibility of the witness, that he attended the preliminary examination of the respondent and of such other person, who were jointly charged with the offense, heard the latter swear that he did not commit the assault, and yet permitted him to be discharged, and the respondent held for trial, without disclosing his knowledge.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted January 31, 1896.
    Decided February 7, 1896.
    August "Wirth was convicted of assault and battery, and sentenced to imprisonment in the Detroit House of Correction for 90 days.
    Judgment affirmed.

      George F. Robison, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Grant, J.

Under an information charging the respondent with assault with intent to do great bodily harm less thhn murder, he was convicted of assault and battery.

1. It is first insisted that there was no evidence that the respondent participated in the assault, and that therefore the court should have directed an acquittal. We think there was evidence upon this point for the consideration of the jury, but it is not important to state it.

2. Complaint is made that the assistant prosecuting attorney, in addressing the jury, said, “I believe the evidence shows that they [the witnesses for the defense] are a lot of liars,” Two witnesses, aside from the respondent, were sworn for the defense. Their, character and conduct in relation to the alleged assault were before the jury. Upon them the attorney based the argument that they were not worthy of belief. While the language was severe, we cannot hold that it was not justified. We are not. aware of any decision which holds that an attorney-may not state to the jury his belief that a witness is or is not entitled to credence, in a case where the testimony is conflicting, and the result depends upon which witnesses the jury find are truthful. A broad latitude must be allowed in such cases.

3. One John St. Clair was sworn as a witness for the respondent, and testified he was present at the assault; that one Montgomery made it, and that respondent was in the saloon at the time. On cross-examination, the prosecuting attorney elicited from the witness the fact that he was present at the examination of Montgomery and respondent, both of whom were charged with making the assault, and that he heard Montgomery swear that he did not make it. We think this testimony was competent, While the witness was under no legal obligation to disclose to the prosecution what he knew about the case, yet the fact that he did know and permitted the guilty party to escape and an innocent party to be held for trial without imparting his knowledge of the transaction, was competent evidence to affect his credibility.

The conviction is affirmed,

The other Justices concurred.


author: Grant, J. Hooker, J. Montgomery, J.

text:
    SHIETART v. CITY OF DETROIT.
    Municipal Corporations — Defective Sidewalks.
    Pursuant to notice from the common council of a city, all of the lot owners but one in a given district constructed sidewalks in front of their lots. Plaintiff was injured after passing over the open space in front of this lot, by catching his foot in the walk on the other side. Held, by Grant and Lon», JJ., that there was no more danger in walking over the sidewalk than over those built with steps to cross-walks and streets; that plaintiff had no right to assume that no walk higher than the ground existed beyond the open space; that the case was not one where a sidewalk was out of repair, but where none had ever been built; and that a municipality is not liable for injuries resulting solely from a failure to construct a walk or a part thereof.
    Hooker, J., concurred in reversing the judgment for plaintiff, and in refusing a hew trial, on the ground that, if the walk was unsafe, its condition was apparent to the most casual observer; that in such cases the circumstances must be exceptional to authorize a recovery; and that no such circumstances were shown to exist in the case at bar.
    Montgomery, J., dissented, holding that while, as a general proposition, the statute does not make a city liable for failure to construct a sidewalk, the walk which caused the injury complained of was constructed and existing; that the city was responsible for its care; that its abrupt termination, which was the cause of the injury, was neither necessary nor contemplated as a part of the plan of construction; and that it was a question for the jury whether this constructed walk was in a condition reasonably safe and fit for public travel.
    Error to Wayne; Hosmer, J.
    Submitted December 6, 1895.
    Decided February 18, 1896.
    Case by August Shietart against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John J. Speed, for appellant.

      Fink & O'Connor, for appellee.
   Grant, J.

The city gave notice to lot owners to construct this sidewalk. All but one complied with the order. The sole ground of negligence upon which it is sought to hold the city liable is the failure to construct this Walk in front of this lot. The walk was in a sparsely settled part of the city. The ends of the walk opposite the open space were a few inches above the ground. We do not think the statute covers this case. In most cities and villages sidewalks are constructed with steps to the cross-walks and streets. There was no more danger in walking over this sidewalk than over those constructed so that travelers are compelled to frequently step up and down. The plaintiff safely stepped off the walk. He had no right to assume that there was no walk beyond higher than the ground. The sidewalk was not out of repair. It had not been built. We see no reason why a municipality should be held liable solely for a failure to construct a walk or a part thereof.

The judgment must be reversed, and no new trial ordered.

Long, J., concurred with Grant, J. McGrath, C. J., took no part in the decision.

Hooker, J.

(concurring). I think that if the walk in this case was defective, and not in a condition reasonably safe for travel, its condition was apparent to the most casual observer. It was perfectly safe to all except the heedless, and the public should not be required to make walks so smooth that people cannot stub their toes upon them. Sidewalks in many places require steps, single or in flights, and cross-walks are often upon a different level from the sidewalks which they join. Manholes for sewers must have covers which are above the level of the pavement. Wooden sidewalks become uneven by wear, and must be repaired by planks thicker than the half-worn planks which they adjoin, and flag-stones are thrown out of level by the freezing of the ground. In all such cases, where the defect is obvious, the circumstances must be exceptional to authorize a recovery. I think they are not shown to be so in this case, and therefore concur in the result reached by my Brother Grant.

Montgomery, J.

(dissenting). The common council of Detroit ordered sidewalks to be constructed, on the east side of Fisher avenue, from Jefferson avenue north, a distance of about 2,000 feet. The entire walk was constructed in the fall of 1892, with the exception of about 30 feet in front of one lot. Plaintiff, while traveling along the walk on the evening of the 12th of April, 1893, towards the north, stepped from the walk to the ground, and, after traveling the distance across the lot, caught his foot in the same, and fell, receiving the injuries for which he recovered in this action.

No question is raised over the care exercised by plaintiff, nor is it open to question that, the work having been undertaken by the city, and the walk north and south of this section having been completed months before, the city had ample notice of the condition of the walk. Defendant’s contention is that the statute does not make a city liable for failure to construct a sidewalk; that liability arises only upon and for a failure to keep its sidewalks, etc., in repair; and in this construction we think the learned counsel is- right, so far as he asserts a general proposition. Williams v. City of Grand Rapids, 59 Mich. 51; Alexander v. City of Big Rapids, 76 Mich. 282. But what is meant by a defect in a sidewalk already constructed? This sidewalk which caused the injury was constructed and existed. The city was responsible for its care. Its abrupt termination was the cause of the injury, and this was neither necessary nor contemplated as a part of the plan of construction. Shippy v. Village of Au Sable, 85 Mich. 280. Under these circumstances, it was a question for the jury whether this constructed walk was in a condition reasonably safe and fit for public travel. If it was not, the responsibility of the city was none the less, because to render it safé it became necessary to build 30 feet of walk, than it would have been if a single plank needed supplying, provided the city had ample notice and reasonable time to repair the defect.

I think no error was committed in submitting the case to the jury.

Judgment should be affirmed.


author: Montgomeby, J.

text:
    LOUDEN v. VINTON.
    1.Chattel Mortgages — Acceptance—Sufficiency.
    A mortgagee, on being informed of the execution and filing of the mortgage, which had taken place without her knowledge, but pursuant to the agreement of the mortgagor to give her security, authorized her attorney to take possession of the property in her interest, which he did by a third party, and was in actual possession when the property was attached by creditors of the mortgagor. Held, that there was a sufficient acceptance of the mortgage.
    2.Same — Evidence.
    On the trial of a suit brought by the mortgagee to recover the value of the property, she was asked whether she was still satisfied with what her attorney had done in taking the mortgage, and answered that she was “if she got her pay, and not before.” Held, that this did not contradict her testimony that, with knowledge of the mortgage, she gave her attorney authority to take possession of the property.
    3.Same — Trial—Order of Proof — Note Secured by Mortgage.
    An objection to the introduction of a mortgage in evidence on the ground that the note which it was given to secure, and which is referred to therein, is not offered with the mortgage, and has not been proved, goes only to the order of proof, and is properly overruled. In such case, however, the party is entitled to have the note produced or its absence accounted for; but, if he fails to insist upon such right, he cannot afterwards be heard to complain.
    4.Same — Uncertainty.
    The recital in a chattel mortgage of a desire on the part of the party of the first part to secure to “said first party” the pay* ment of the sum named therein does not invalidate the secur ity as to the mortgagor’s creditors, where the mortgage ac knowledges a consideration received from the party of the second part, and the grant is made to said party.
    5.Same — Sufficiency of Description.
    The property covered by a chattel mortgage was described as “all the stock in trade, goods, wares, and merchandise, furniture, and fixtures, of every name and nature, situated in the building now occupied by said first party in the village of T.5 and all goods and wares and merchandise and personal property that may hereafter be acquired by us, and placed in said store building, excelling from the terms and conditions of this mortgage such property as is by law exempt from levy and sale upon execution, hereby reserving the right to make selection of said exempt property.” Held, that, applying the test laid down in Willey v. Snyder, 34 Mich. 60, the description was sufficient.
    6. Same — Continuation op Business-Sales by Mortgagor.
    A mortgage on a stock of goods is not void as against the creditors of the mortgagor merely because it contains a clause permitting the latter to sell in the usual course of trade.
    7. Same — After-Acquired Property.
    A chattel mortgage may lawfully cover after-acquired property.
    8. Same — Evidence.
    Where a chattel mortgage is given to secure the mortgagee against liability on certain notes given by her for the mortgagor’s debts, the notes are competent evidence for the purpose of fixing the amount of the indebtedness.
    9. Same — Fraud—Excessive Consideration.
    The amount found due on a chattel mortgage given to secure a debt to the mortgagee, and also to secure her against liability on notes given for the mortgagor’s debts, was less than the amount of the mortgage. The mortgagor testified that he supposed, at the time he made the mortgage, that the indebtedness to the mortgagee amounted to the face of the mortgage, and the mortgagee testified that she had not figured up the amount at the time she accepted the mortgage. Held, that the fact that the mortgage was given for more than the amount due was a badge of fraud, but not conclusive evidence thereof, and that the question of the bona Jides of the transaction was properly submitted to the jury.
    10. Same — Damages—Rights of Surety.
    As against a stranger or wrong-doer, a mortgagee who is secured as surety on notes of the mortgagor has the right to hold the property, or in lieu thereof, in a suit for its value, »to recover a sufficient amount to indemnify her, although she has not paid the notes.
    11 Trial — Remarks of Counsel,
    A judgment will not be reversed because of a statement by plaintiff’s counsel in his opening argument to the jury that the defendant was a wealthy corporation, bent upon crushing the plaintiff, where counsel did not thereafter persist in that line of argument, and no request for an instruction on the subject was preferred by the defendant.
    Error to Grand Traverse; Corbett, J.
    Submitted January 7, 1896.
    Decided February 18, 1896.
    Trover by Clara Louden against Medad Vinton, sheriff of Grand Traverse county. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dodge & Oovell, for appellant.

      Foster & Crotser and Pratt & Davis, for appellee.
   Montgomeby, J.

Defendant is sheriff of Grand Traverse county, and as such levied two attachments upon a stock of hardware as the property of one Anthony Pohoral, at the suits, respectively, of Buhl Sons & Co. and the Pritzlaff Hardware Company. These suits proceeded to judgment, and executions were issued, and defendant, acting as sheriff, made a sale of the property to Buhl Sons & Co. The plaintiff claims under a chattel mortgage made and signed on the 1st day of November, and filed on November 17, 1894, both dates being earlier than the attachments. The mortgage was made without the intervention of plaintiff, and in pursuance of an agreement on the part of Pohoral to secure her for indebtedness owing to her, and indebtedness against hér on account of certain obligations which she had incurred as surety. It does not very clearly appear as to just when the plaintiff learned that the mortgage had been executed, although it is clear from her testimony that it was before the attachments, and she also testified that she accepted it; and it would seem that possession was taken on her behalf before the levy. The mortgage was given for $3,500, and, as Pohoral testifies, was intended to cover his indebtedness to plaintiff, amounting to $1,140, and to secure her against liability on a note given by her for Pohoral’s debt, to one James A. Venn, of $700 and interest, and to indemnify her against liability on a note of $1,106.30 given to Rathbnn, Sard & Co., also as surety for Pohoral. The contention of defendant, before the trial court, was: First, that the mortgage was fraudulent in fact; second, that the fact that the mortgage was given for a larger amount than was actually owing made it fraudulent in law; third, that the mortgage was invalid for want of sufficient description; fourth, that it was invalid as to creditors, because it covered after-acquired goods, and permitted sales from the stock. In addition to these main contentions, it is insisted that error was committed in the admission of testimony and in the refusal to charge as requested. There are a large .number of assignments of error, which we find it unnecessary to refer to in detail, but think it better to deal with the questions presented substantially in the order adopted in appellant’s brief.

The first four assignments of error relate to rulings upon testimony offered to show the identity of the goods levied upon by the defendant with those described in the declaration in this case. We discover no error in these rulings. The proof is so clear as to leave no room for question about the facts.

The .fifth assignment -relates to the ruling of the circuit judge admitting the mortgage in evidence, the objection being that there had not been a delivery and acceptance by the plaintiff. There was testimony, however, that plaintiff was informed of the execution and filing of the mortgage after it was filed, and that, through her attorneys, she authorized a Mr. Huellmantel to take possession of the stock of goods in her interest, and that he was actually in possession when the attachments were levied; and plaintiff further testified that she thought the mortgage and note were brought to her before the levy was made. This constituted a sufficient acceptance. Stress is laid upon testimony of the plaintiff, given in one part of her examination, in answer to the question, ‘ ‘whether you are still satisfied with what your attorneys did in taking that mortgage of $3,500 for you on that stock of goods,” as follows: “Well, I am satisfied if I get my pay, and not before.” This did not contradict her testimony that she, with knowledge of the mortgage, gave her attorneys authority to take possession of the stock.

A further objection to the admissibility of the mortgage in evidence was that it referred to an accompanying note, and this note was not offered with it, or proven before the offer of the mortgage was made. We think this objection to the introduction of the • mortgage in evidence was not good, at the time. It, at best, only went to the order •of proof; and, while the defendant had the right to demand the production of the note or have its absence accounted for, he seems not to have taken this course, but the plaintiff was subsequently interrogated by him about the note, and neither party offered it in evidence. See Hill v. Merriman, 72 Wis. 483.

It is further contended that the mortgage should not have been received, for the reason that no proof had been made connecting it with the subject-matter in the cause, and it is claimed that no such proof was afterwards made; but we think that there is abundant evidence making the •connection, and do not deem it profitable to set it out at length in this opinion.

It is next asserted that the mortgage is too uncertain to be valid as against creditors. The mortgage, after reciting that it is made between Anthony Pohoral, of the first part, and Clara Louden, of the second part, witnesseth that, whereas, said party of the first part is indebted to .said Clara Louden in the sum of $3,500; and whereas, ■said party of the first part desires to secure to said first party tine payment of said sum of money: Now, therefore, the said first party, in consideration of the above sum ■of money to him paid by the party of the second part, etc., does grant, bargain, and sell unto said party of the second part, all and singular, etc. It is contended that the recital of the desire to secure the first party to the instrument is evidence of a trust in his own favor. It is conceded that the subsequent provision seems to express a different intent, but, it is seriously asked, “How shall the real intent be determined?” We answer, by reading the mortgage. It is perfectly plain that, whatever error was committed in reciting the desire (and it was an error which corrected itself), the mortgage acknowledged a consideration received from the second party, and the grant was to the second party.

It is next urged that the description of the property in the mortgage is not sufficient to lead to its identity. The description is as follows:

“All the stock in trade, goods, wares, and merchandise, furniture, and fixtures, of every name and nature, situated in the building now occupied by said first party in the village of Traverse City, Michigan, and all goods and wares and merchandise and personal property that may hereafter be acquired by us, and placed in said store building, excepting from the terms and conditions of this mortgage such property as is by law exempt from levy and sale upon execution, hereby reserving the right to make selection of said exempt property.”

The rule, as stated in Willey v. Snyder, 34 Mich. 60, is that the written description is to be interpreted in the light of the facts known to and in the minds of the parties at the time, and that a subsequent purchaser or mortgagee is supposed to acquire a knowledge of all the facts, so far as they may be needful to his protection, and he purchases in view of that knowledge; that descriptions alone do not identify, — they only furnish the means of identification. Applying this test, the description is sufficient. See Wade v. Strachan, 71 Mich. 459.

It is also contended that the mortgage is void, for the reason that it covers after-acquired property, and for the reason that, as it permits the mortgagor to sell from the stock, and apply the proceeds to his own use, it creates a trust in his favor, contrary to section 6184, 2 How. Stat. The permission to sell in the usual course of trade does not invalidate the mortgage. People v. Bristol, 35 Mich. 28; King v. Hubbell, 42 Mich. 597. And a mortgage can be given covering after-acquired property. Curtis v. Wilcox, 49 Mich. 425.

Defendant objected to tbe introduction in evidence of the notes upon which plaintiff was liable, as evidence of the indebtedness secured. Plaintiff’s testimony, and that of Pohoral, tended to show that the mortgage was given to secure the indebtedness, and these notes were competent for the purpose of fixing the amount.

The amount found due plaintiff was less than the amount of the mortgage. Pohoral testified that he supposed, at the time he made the mortgage, that the indebtedness to plaintiff amounted to the face of the mortgage, and plaintiff testified that she had not figured up the amount at the time she accepted the mortgage. The fact that the mortgage was given for more than was due was a badge of fraud, but not conclusive evidence of fraud. Jones, Chat. Mortg. §§ 92, 339; Bush v. Bush, 33 Kan. 556; Wood v. Scott, 55 Iowa, 114; Lyon v. Ballentine, 63 Mich. 102; Brace v. Berdan, 104 Mich. 356. The circuit judge charged the jury that—

“The giving and taking of a chattel mortgage for more than the actual amount owing to the mortgagee is, on its face, a badge of fraud, and, if not explained as being the result of honest mistake or honest want of knowledge on the part of the parties thereto, it becomes conclusively fraudulent as to other creditors who are hindered thereby; and in this case, in determining the question of intent, you must take into consideration the fact that the parties had the means at hand of computing the exact amount due the mortgagee.”

It is also urged that the plaintiff, although she was a mere surety on the notes, was permitted to recover the amount, when it did not appear that she had paid them. But, as against a stranger or wrong-doer, she had the right to hold the property, or, in lieu thereof, sufficient to indemnify her.

Complaint is made that the circuit judge instructed the jury that certain facts were undisputed; but we think the record justified this instruction as to the points covered, as we discover no dispute as to the facts upon the points involved. The charge of the court was full and fair, and we think covered every phase of the case. The exceptions to refusals of requests are numerous, but a careful examination of them, in connection with the charge as given, convinces us that the defendant has no just ground of complaint. Many of the objections urged in this case were technical in the extreme, and relate to questions which, in the ordinary trial of a lawsuit, would be considered facts. No one connected with the case, it is fair to assume, doubted the identity of the goods seized by defendant with those named in the declaration,- or the actual execution of the mortgage, or of the notes produced. Substantially the only question to be litigated was the bona fides of the plaintiff and Pohoral, and the chief badge of fraud was the naming of an excessive consideration in the mortgage. Counsel should understand that a case is not strengthened by multiplying objections.

Complaint is made of the language used in the argument of plaintiff’s counsel. The reference to defendant’s wealth, accompanied by a statement that defendant was trying to crush the plaintiff, was not warranted, and counsel should have been reprimanded. This statement was made in the opening argument, and it does not appear that the line of argument was persisted in, as was the case in Bedford v. Penny, 58 Mich. 424, cited by defendant’s counsel; and no request to instruct the jury on the subject was preferred. We are not convinced that this indecorum was prejudicial.

Judgment will be affirmed.

The other Justices concurred.