text:
    SUPREME TENT KNIGHTS OF THE MACCABEES OF THE WORLD v. PORT HURON SAVINGS BANK.
    1. Banks — Drafts.
    In an action against a bank to recover the amount of a certain draft alleged to have been wrongfully issued by plaintiff’s finance keeper, who was also cashier of defendant bank, and not credited to plaintiff, evidence examined and held that the court should have instructed that the amount of certain other drafts in plaintiff’s favor should be deducted from any claim of the plaintiff against defendant on the first draft,
    3. Same — Officers—Misappropriation of Funds.
    Where the president and cashier of defendant bank knew that a certain draft was procured by its assistant cashier with plaintiff’s funds, and that he had no right to use any of such funds to pay. his individual debt, the question as to whether defendant was a bona fide holder of such draft in an action to recover the proceeds thereof was immaterial, -since, if it was used to pay the individual indebtedness of the assistant cashier to defendant, and not to reimburse defendant for money used by him to pay warrants or other items properly charged against plaintiff, defendant was liable.
    3. Same — Evidence—Res Gestae.
    Where defendant’s cashier, who was also plaintiff’s finance keeper, after having drawn certain drafts on defendant’s foreign correspondents, was questioned by defendant’s officers concerning the same, and thereupon stated that the drafts had been drawn to cover proper charges against plaintiff, and that a draft from plaintiff’s funds would be deposited to cover, the same, which the bank subsequently received, such statement by the cashier was admissible as res gestee in an action by plaintiff against the bank to recover the proceeds of the draft deposited on the ground that such proceeds had been misappropriated by such assistant cashier and finance keeper.
    4. Same — Evidence —Admissions —Statements in Furtherance of Interest.
    Since plaintiff claimed that the cashier was using the draft for the purpose of concealing a deficit in his accounts as assistant cashier, such statement was a statement made in his own interest, and therefore was inadmissible to establish a claim by defendant against plaintiff.
    Error to St. Clair; Law, J.
    Submitted April 14, 1904.
    (Docket No. 60.)
    Decided October 4, 1904.
    Assumpsit by the Supreme Tent Knights of the Maccabees of the World against the Port Huron Savings Bank for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Stevens & .Graham (John B. Mcllwain, of counsel), for appellant.

      Lincoln Avery and P. H. Phillips (BeVere Hall and D. D. Aitken, general counsel, of counsel), for appellee.
   Moore, C. J.

This is an action of assumpsit. It was tried before a jury. The circuit judge directed a verdict in favor of the plaintiff for $56,223. The case is brought here by writ of error.

The plaintiff is a fraternal beneficiary association. From 1883 until 1901 Charles D. Thompson was its finance keeper. During the period from 1883 until November 30, 1900, he was assistant cashier of the defendant. Until the transactions arose involved in this case, Mr. Thompson had the confidence and esteem of the officers of the fraternal society, and also of the bank. On the morning of December 1, 1900, a draft for $50,000 on a New York bank was delivered by Mr. Thompson to the defendant under circumstances which will be stated later, upon Which draft defendant received $50,000.

It is the claim of plaintiff that the obtaining the funds for this draft by Mr: Thompson created a deficit of $50,-000 in his account as plaintiff’s finance keeper and that the draft balanced his irregularities as assistant cashier of the bank. On the other hand, it is claimed that the draft simply represented cash or its equivalent which was furnished by defendant to the plaintiff.

The record discloses that on Thanksgiving Day, November 29, 1900, Mr. Harrington, cashier of the bank, discovered Mr. Thompson had detached from the New York draft book of the bank a draft without filling in the stub. Mr. Harrington immediately wired the New York bank an inquiry and a direction to withhold payment until further advised. After the close of business on November 30th, Mr. Harrington discovered Mr. Thompson had ■drawn a New York draft for-$15,000, which did not appear upon the business of the day. He at once sent for Mr. Thompson, and questioned him about the drafts. As to the first one, he said it was for $20,000, and had been sent to the Bankers’ National Bank of Chicago, one of the depositories of plaintiff, and placed to the credit of the Maccabees, and that his failure to fill up the stub was an inadvertence. As to the $15,000 draft he said it went to the Commercial Bank of Port Huron, another depository .of the plaintiff, and was placed to the credit of the plaintiff. This conversation was in the presence of Mr. Mc-Morran, the president of the bank. As before stated, on the morning of December 1st the draft for $50,000 was given to the defendant bank, Mr. Thompson saying it covered the two drafts mentioned, and also $15,000 cash, of defendants, which he had used for Maccabee purposes* warrants of the plaintiff, and other items properly paid in its behalf. The cash was gone over at this time, and it is. claimed the statement of Mr. Thompson was verified. After this was done, the New York bank was telegraphed by Mr. Harrington to honor the two drafts. They were paid, and placed to the credit of the plaintiff. The defendant bank afterwards realized $50,000 on the draft delivered to it by Mr. Thompson.

If this was- all there was of the transaction relating to the two drafts, it would seem to be very unjust for the plaintiff to repudiate the act of its finance keeper, and at the same time get the benefit of credits amounting to the sum of $35,000 of the money of the defendant, which resulted from the transaction. It, however, is claimed by the plaintiff that these drafts were necessary to make good a deficit which existed on the part of the bank in its transaction through Mr. Thompson with the plaintiff. In support of this claim counsel have prepared a somewhat detailed statement of credits and debits between the plaintiff' and the bank commencing with an item of $20,000 March 12, 1900, by which it is made to appear that it was necessary to include the two drafts to balance the account on November 30, 1900. The trouble with this statement of account is it does not commence early enough. If the commencement of the account had been January 12* 1898, it would show that up to November 30th defendant had received from plaintiff $331,400, and had paid out a like amount, without including either of the drafts in controversy. Taking the record as we find it, we think it clear the circuit judge should have said to the jury that the amount of the two drafts should be deducted from any claim the plaintiff might have against defendant.

This leaves the remaining $15,000 to be considered. Before entering upon that discussion, we think it well to consider some legal questions presented by counsel. Stated briefly, it is the claim of plaintiff that defendant, in order to defend against the claim of plaintiff, must show it was a bona fide holder of the $50,000 draft. On the part of the defendant it is claimed plaintiff must show mala fides on the part of defendant before it can sustain its action. In our view of the case, neither of these questions is involved. There can be no reasonable doubt Mr. McMorran, the president, and Mr. Harrington, the cashier, of the bank, knew the $50,000 draft was procured with the funds of plaintiff. They also knew Mr. Thompson could not properly use any of those funds to pay his individual debt. In our judgment, the question as relating to the remaining $15,000 is a simple one of fact, to wit, was it the individual debt of Mr. Thompson which the money paid, as claimed by plaintiff, or was it to reimburse the bank for money used by Thompson to pay the warrants or other items properly chargeable against the plaintiff, as claimed by defendant. This was a question to be submitted to the jury upon the testimony under proper instructions.

When the plaintiff traced $50,000 of its funds into the hands of the defendant, as it did by showing defendant received a draft bought with its funds, of which defendant’s officers had knowledge, and obtained the money thereon, it made a prima facie case. It then became the duty of the defendant to show plaintiff had received full value for this amount. We have already seen that, as the record is presented, it did account for $35,000 of this amount.

It is claimed by plaintiff that Mr. Thompson’s statement to the officers of the bank at the time of the transaction is not competent. . Defendant claims it is competent, not only as part of the res gestee, but also as an admission which should bind the bank that the $15,000 was used to pay the warrants of the plaintiff and other proper charges against it. We have no doubt the conversation was admissible as part of the res gestae. Whether it was admissible as tending to establish a claim against plaintiff presents a much more difficult question. Upon the proposition that it is admissible for that purpose counsel cite Oakland County Sav. Bank v. State Bank of Carson City, 113 Mich. 284 (71 N. W. 453, 67 Am. St. Rep. 463), State Sav. Bank of Ionia v. Montgomery, 126 Mich. 327 (85 N. W. 879), and many other authorities. If the only persons interested in the transaction were the plaintiff and defendant, doubtless the contention of counsel is sustained by these authorities. But if the claim of plaintiff is true that Mr. Thompson was using this draft for the purpose of covering up a deficit in his account with the plaintiff, then he is a party in interest, and his statements would be made in his own interest. In State Sav. Bank of Ionia v. Montgomery, supra, after a detailed analysis of several authorities and the citation of a great many others, it was held that the knowledge of the agent would not be imputable to the principal where in the particular transaction his interests were adverse to the interests of the principal. The same principle is involved hei’e. Mr. Thompson may have been actuated by self-interest in making these statements, and for that reason they should not bind the plaintiff.

' The other questions have been considered, but we do not deem it necessary to discuss them.

For the reasons stated, the judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Carpenter, J. Hooker, J.

license: Public Domain

text:
    BARNARD v. PATERSON.
    1. Mortgages — Mortgagee in Possession — Disbursements—Repairs.
    A mortgagee in possession is not entitled to reimbursement for expenditures for repairs not necessarily made to save the estate from loss and injury.
    2. Same — Rents—Collection—Compensation.
    A mortgagee in possession is not entitled to compensation for collecting rents, where he collects them for his own benefit, and there is no express agreement that he shall be compensated for such services, and no evidence from which such an agreement may be inferred.
    S. Same — Rate of Interest — Estoppel.
    Two years after certain mortgages matured the mortgagee’s agent furnished defendants a statement of account, in which interest on the overdue principal was computed at the rate of 7 per cent, per annum, and defendants’ solicitors objected to such statement only in so far as it contained charges for disbursements, and requested a corrected statement, eliminating such items. Nearly two years later another statement was rendered, in which interest was also computed at 7 per cent. Held, that complainant, having induced defendants to remain her debtor in the expectation that interest would be charged at a rate not exceeding 7 per cent., was estopped from thereafter claiming a higher rate. Hooker, J., dissenting.
    •Appeal from Wayne; Mandell, J.
    Submitted April 5, 1904.
    (Docket No. 12.)
    Decided October 4, 1904.
    Bill by Mary E. Barnard against John Paterson, Hattie W. Paterson, and the Wayne County Savings Bank to foreclose certain mortgages. From a decree for complainant for less than the amount prayed for, she appeals.
    Affirmed.

      Wilkinson, Post & Oxtoby, for complainant.

      Corliss, Andrus, Leete & Joslyn, for defendants Paterson.
   Carpenter, J.

This is a bill to foreclose two mortgages given to the complainant by the first two named defendants. The sole question involved relates to the amount due on said mortgages.

December 2, 1897, before the mortgages became due, and while an installment of interest was unpaid, the first-two named defendants executed and delivered to complainant a paper which read as follows:

“In consideration of our indebtedness to MaryE. Barnard, we do hereby assign, set over, and convey to her, said Mary E. Barnard, all rents accrued and accruing to and from the 1st day of December, 1897 [then follows the description of the residences described in the mortgage], to be had and received by her until our indebtedness in her favor is extinguished; further right being-hereby given to her to rent and re-rent said house as often as occasion shall require while said indebtedness remains unpaid.”

Under the authority given by this writing, complainant collected the rents for several years. She claims that she expended therefrom the amount of $292.16 for necessary repairs, and she asks in this suit to be allowed for these disbursements. She also asks for commission of 5 per cent, for collecting said rents, and that the interest on the mortgages, which became due in 1898, should since that time be computed at the rate of 8 per cent, per annum. Each of these claims was disallowed by the trial court.

•Disbursements for Repairs.

It is contended by complainant that she occupied the position, and had the authority, of a mortgagee in possession. A mortgagee in possession—

“ Has no authority to make the estate better at the expense of the mortgagor, but is bound to use reasonable means to preserve the estate from loss and injury. He cannot charge the mortgagor with expenditures for convenience or ornament. The rule is sometimes stated to be> that the mortgagee must preserve the estate in as good condition as that in which he received it. But he may properly, under some circumstances, go beyond this, and supply things that were wanting at the time of entry, as where the doors or windows of a house are gone, he is justified in supplying these, in order to put the estate in condition for occupation.” 2 Jones on Mortgages, § 1126.

See, also, Woodwards. Phillips, 14 Gray, 132; Robertson v. Read, 52 Ark. 381 (14 S. W. 387, 20 Am. St. Rep. 188).

Tested by this rule, we think the trial court properly disallowed the items of complainant’s account for repairs. Many of those items are entirely unsupported by evidence. The other items should be rejected because it is satisfactorily shown respecting some items, by complainant’s own testimony, and respecting the others by the weight of the testimony, that the expenditures were not made to preserve the estate from loss and injury.

Commission for Collecting Rents.

It is held by some courts (see Brown v. Savings Bank, 148 Mass. 300 [19 N. E. 382]; Bradley v. Merrill, 91 Me. 340 [40 Atl. 132]; Waterman v. Curtis, 26 Conn. 241) that a mortgagee in possession is entitled to such commissions, or, as it is sometimes said, charges, for taking care of the estate; but the great weight of authority is against their allowance. See French v. Baron, 2 Atk. 120; Elmer v. Loper, 25 N. J. Eq. 475; Turner v. Johnson, 95 Mo. 431 (7 S. W. 570, 6 Am. St. Rep. 62); Allen v. Robbins, 7 R. I. 33; Benham v. Rowe, 2 Cal. 387; Harper v. Ely, 70 Ill. 581; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334.

We think the rule established by the weight of authority the proper rule to apply in this case. Complainant collected these rents for her own benefit. There was no express agreement that she should be compensated for this service, and no evidence from which such an agreement might be inferred. Under these circumstances, we think the defendants had a right to understand that there would be no charge for such services.

Rate oe Interest.

The important question, however, relates to the complainant’s claim that she is entitled to charge interest at the rate of 8 per cent, per annum since the maturity of the mortgages. The mortgages obligate the mortgagor to pay interest at the rate of 8 per cent, per annum, semiannually, upon all overdue interest and principal from the time of its or their maturity. About two years after the mortgages matured, and some time in 1900 (the exact date is not shown by the record), complainant’s agent furnished defendants a statement of account, in which was stated in detail the rents collected and the items claimed to have been disbursed. In this statement interest on the overdue principal was computed at the rate of 7 per cent, per annum. December 29, 1900, defendants’ solicitors wrote complainant that they objected to the charges for disbursements, and desired “a correct statement of the amount due, eliminating those items.” In 1902 complainant’s agent rendered another statement, in which interest was computed at 7 per cent. Complainant contends that this computation should be regarded as a proposition to settle on condition that defendant should pay the items disbursed, and, as defendant rejected this proposition, such computation has no force. We cannot accede to this view. It is quite apparent that defendant’s letter of December 29,1900, objecting to the disbursement for repairs, proceeded upon the assumption that the interest should be computed at 7 per cent.; in other words, complainant was informed by this letter that defendants were dealing with her upon the assumption that interest would be computed, as stated in the aforesaid statement, at 7 per cent. Complainant was not bound to acquiesce in this assumption. She might very properly have said, “If you decline to pay my disbursements, I will withdraw my proposition to accept interest at 7 per cent. ” This, however, she did not do. She remained silent for nearly two years, and then rendered a second statement, in which interest was again computed at 7 per cent. Defendant Paterson was warranted by this conduct in believing, and it may be assumed that he continued to remain complainant’s debtor because he believed, that interest on the overdue principal would be computed at 7 per cent. Complainant, having thus induced defendant to remain her debtor in the expectation that interest would be computed at 7 per cent., is, in my judgment, estopped from exacting a higher rate.

‘ ‘ There is no rule more necessary to enforce good faith than that which compels a person to abstain from enforcing claims which he has induced others to suppose he would not rely on.” Faxton v. Faxon, 28 Mich., at page 161.

We hold, therefore, that interest was properly computed at 7 per cent. See. Vereycken v. Vanden Brooks, 102 Mich. 121 (60 N. W. 687).

It results from these views that the decree appealed from should be affirmed, with costs to defendants.

Moore, C. J., and Grant, J., concurred with Carpenter, J.

Hooker, J.

(dissenting). I am of the opinion that there is nothing in this record justifying the denial of interest to complainant at the stipulated rate of 8 per cent., there being an absence of circumstances amounting to an estoppel. I think the cause should be reversed ánd a decree entered for the'complainant as prayed in the bill.

Montgomery, J., did not sit.


author: Per Curiam.

text:
    CITY OF MONROE v. BOARD OF SUPERVISORS OF MONROE COUNTY.
    1. Certiorari — Objections Reviewable.
    On certiorari to review the granting of a mandamus, relator cannot object to the consideration of a finding below on the ground that it contradicts an averment in his answer on which no issue was taken, unless he assigns it as error in his affidavit for certiorari.
    2. Same — Findings Below — Mandamus.
    The court cannot disregard the findings of the court below . though they are contrary to statements in respondent’s return on which no issue was taken.
    3. Health —Contagious Diseases — Claims—Power of Supervisors — Aot of 1903.
    Boards of supervisors have ho power, under Act No. 7, Pub. Acts 1903, to reject a claim for services rendered by order of a board of health, without giving the claimant an opportunity to be heard and to present proof in its support.
    4. Same — Police Services.
    A claim presented to a board of supervisors by a city for the services of a “special policeman” in “smallpox cases,” cannot be peremptorily rejected on the ground that the claim shows on its face that it was for “ policing ” the city.
    Certiorari to Monroe; Lockwood, J.
    Submitted May 17, 1904.
    (Calendar No. 20,470.)
    Decided October 4, 1904.
    Mandamus by the city of Monroe to compel the board of supervisors of Monroe county to fix a time and place for the hearing of evidence respecting a certain claim. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      John J. Kiley, City Attorney ((7. A. Golden, of counsel), for relator.

      Thornton Dixon and Willis Baldwin, for respondent.
   Per Curiam.

A writ of certiorari was issued to bring before us a mandamus proceeding instituted in the circuit court for the county of Monroe. That court •awarded a mandamus requiring respondent to fix a time and place for the hearing of evidence to be produced be■fore them respecting a certain claim of relator’s which it once rejected. Respondent asks us to vacate said order.

The facts, as appear from the petition of relator, answer of respondent, and findings of the lower court, are these:

In May, June, and July, 1903, two cases of smallpox appeared in the city of Monroe. Relator’s board of health took charge of these cases, and, besides engaging physicians and nurses, it employed a watchman to„prevent communication between the afflicted persons and the public. The bill for the services of the watchman, after having been paid by said relator, was by it presented to said respondent. It described the services as those of a “ special policeman” in a “smallpox case,” and named the indiwidual at whose residence they were performed. Attached to the bill was a formal certificate, signed by the president and secretary of relator’s board of health. It was therein certified that the services were rendered in pursuance of an order of the board of health; that they were rendered to prevent the spread of smallpox, and for the safety of the inhabitants of said township; that the sums charged are reasonable and just; that the person for whom rendered, his parents, or other persons liable for his support are unable to pay for the same; and that the bill had been examined and approved by said board of health. Respondent rejected said bill without taking any testimony or making any investigation except that the chairman of its committee on claims and accounts made a casual outside inquiry of some of relator’s citizens.

The trial court also found, as appears from the order complained of, as well as from the opinion filed:

“ That before the said claim of relator was rejected the relator offered to produce before the respondent * * * evidence tending to prove the legality of said claim, and it further appeared from the evidence that subsequent to the rejection of said claim the relator again offered to produce evidence before the respondent board tending to show the legality of its said claim, which offers, were ignored by the respondent board.”

Appellant objects to our considering the latter finding because it is directly contrary to an averment in respondent’s answer upon which no issue was taken. In our judgment, respondent cannot insist upon this objection, because it is not raised by any of the assignments of error in its affidavit for the writ. See Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572 (37 N. W. 872). Nor can we disregard this finding — which is supported by testimony— and say, as requested by appellant, that full opportunity was given relator to have witnesses sworn. See Hyde v. Nelson, 11 Mich. 353; Linn v. Roberts, 15 Mich. 443; Lynch v. People, 16 Mich. 472.

The circuit judge made the order complained of upon the ground that the method of procedure adopted by respondent did not give relator the opportunity of being heard, to which by law it was entitled. What, if any, opportunity of being heard, did the law give relator? This depends upon the proper construction of the following part of Act No. 7 of the Public Acts of 1903:

‘ ‘ The said board of supervisors shall, as soon as may be, proceed to audit the said bill, and if found that the ex-' penses were necessarily incurred, the services actually and necessarily performed, and the amounts claimed for such expenses and services are severally just and reasonable under the circumstances, the said board of supervisors shall allow the same or such parts thereof as the. majority of the members-elect of said board shall deem just, and provide for their immediate payment by the said county, and in auditing" such accounts, said several boards of supervisors shall have full power to examine into the merits of all claims presented to them in accordance with the provisions herein contained, and may subpoena witnesses and take any other measures necessary to arrive at the truth of the same.”

It was intended by this law to give the boards of supervisors the right, which they did not theretofore have (see Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 453 [25 N. W. 461, 55 Am. Rep. 706]), of determining the propriety and reasonableness of bills incurred by local boards of health. It is conceded by the relator and by the circuit judge that under the new law above quoted the decision of boards of supervisors which have legally investigated such bills is final. But can such a bill be rejected without giving to the claimant who presents it an opportunity of being heard ? While the statute does not expressly provide that this opportunity shall be given, such a provision is necessarily implied. See Miller v. Hoffman, 135 Mich. 319 (97 N. W. 759); Gilson v. Munson, 114 Mich. 671 (72 N. W. 994). See, also, Mixer v. Board of Sup’rs of Manistee Co., 26 Mich. 422; Hickey v. Board of Sup’rs of Oakland Co., 62 Mich. 94 (28 N. W. 771).

While it is difficult to say precisely what opportunity of being heard must be given a claimant, we must regard it as settled by our decisions that the opportunity of presenting proofs which tend to establish the validity of his claim cannot be denied him (see Mixer v. Board of Sup’rs of Manistee Co., supra) in any case in which he has offered to produce such proof. See Hickey v. Board of Sup’rs of Oakland Co., supra.

It may be that cases may arise where courts might properly say that the denial of the right to introduce testimony was not prejudicial. Perhaps this would be such a case if relator’s claim appeared on its face, as respondent contends, to be a claim for “policing ” the city of Monroe. It might forcibly be argued in such a case that it is so obvious from the inspection of the bill that the charge is improper that relator is not prejudiced by not being permitted to introduce testimony. The bill in question, however, does not appear on its face to be for policing the city. It appears to be for the services of a “special policeman” in “smallpox cases.” If it cannot be inferred from the bill and the certificate thereto attached that such services were necessary, surely that fact might be established by testimony.

It follows that, in our judgment, respondent, in ignoring relator’s offer to produce evidence tending to prove the legality of its claim, denied the latter the opportunity of being heard, to which by law it was entitled. The decision of the trial court was therefore right, and should be affirmed.


author: Moore, C. J.

text:
    OLIVER v. JESSUP’S ESTATE.
    1. Work and Labor — Evidence—Decedents’ Estates.
    Where a claim is made against the estate of a deceased person, on the theory that the services rendered decedent and his wife became more onerous after the execution of a contract and lease, and decedent orally promised further compensation, evidence of what the entire services, including those compensated by the lease, were worth, is inadmissible.
    2. Same — Evidence—'Unsigned Codicil.
    An unsigned codicil is likewise inadmissible to show the value of the alleged additional services, in the absence of evidence as to the circumstances under which it was written, or whether decedent expected it to take the place of the lease or whether it was intended as a voluntary gift.
    3. Trial — Conduct of Counsel.
    Failure of counsel to acquiesce in the rulings of the court is to be condemned.
    4. Work and Labor — Value of Services — Excessive Verdict.
    Evidence examined in a case where a claim was made against the estate of a deceased person for compensation for additional services of a more onerous nature performed after the execution of a contract and lease, and held that a verdict for $930 was excessive. •
    Error to Lenawee; Chester, J.
    Submitted June 9, 1904.
    (Docket No. 7.)
    Decided October 4, 1904.

      ■ Charles H. Oliver presented a claim against the estate of Charles E. Jessup, deceased, for services rendered. The claim was allowed by the commissioners, and the estate appealed to the circuit court. There was judgment at the circuit for claimant, and defendant brings error.
    Reversed.

      Fellows & Chandler, for appellant.

      John E. Bird and John L. O’Mealey, for appellee.
   Moore, C. J.

The claimant produced testimony tending to show that he and his sister, younger than himself, entered the family of deceased when claimant was about 13 years old; that they were cared for, clothed, educated, and treated as decedent’s children; that when claimant reached the age of 21 he and his sister continued in the Rouse of decedent; that decedent’s wife was in ill health for about two years and a half prior to her death, which occurred in May, 1899; that.decedent died suddenly of heart failure, in 1901. His testimony further tended to show that decedent expressed satisfaction with the services performed, and said that claimant would get his pay for the same; that at one time he stated that claimant had talked some of leaving, but he told him if he would stay he would compensate him. He also gave testimony tending to show the value of the services performed. No suggestion was made in putting in his case that he had a life lease.

The estate claimed these services were performed under a, written contract; that the claimant and his sister had accepted the terms and consideration of this contract, and had agreed to perform these services for an agreed consideration, and that claimant had been paid in full; that on January 29, 1898, after Mrs. Jessup had been ailing something over a year, the decedent and his wife executed to the claimant and his sister a life lease of his real estate, consisting of 127 acres of land, to take effect at the death of decedent and wife, the consideration of which was as follows:

“This lease is made in the consideration of the faithful service rendered by the parties of the second part [claimant and his sister] to the parties of the first part, and the further agreement of the parties of the second part that they are to remain with, care for, and serve the said parties of the first part during the lifetime of the said first parties, as they have heretofore done.”

This paper was in the possession of claimant, and it appeared that after decedent’s déath claimant and his sister took possession of the premises, recorded the life lease,, and had ever since been in possession of these lands.

The case was tried by a jury who rendered a verdict in favor of claimant of $930. The defendant has brought the case here by writ of error. It is insisted there was error in relation to the following: First, admissibility of testimony; second, conduct of counsel; third, the estate’s requests and the charge of the court; fourth, the motion for a new trial.

It was the claim of defendant that all the services were rendered under this agreement, and that a verdict should have been directed in its favor. It was the contention of claimant that after this agreement was drawn the character and amount of the service required was changed from what had heretofore been done; that Mrs. Jessup had a cancer, which made the care of her more and more burdensome and disagreeable, and required so much care from himself and sister they had decided they must quit the work, when Mr. Jessup said to the claimant if he would remain he would pay him a further sum for his services.

Upon the trial claimant was allowed to show not only what the value of his services was during the illness of Mr. and Mrs. Jessup, but for five or six years prior thereto. At this time nothing had developed in relation to the lease, and in the claim filed pay was not asked for services prior to the commencement of the sickness of the Jessups. We do not think it can be said there was no testimony tending to show that the services required of claimant became more onerous after the lease was made, and that there was an agreement for additional compensation. Goebel v. Linn, 47 Mich. 489 (11 N. W. 284, 41 Am. Rep. 723). If the jury found that fact was established, the claimant was entitled to a judgment, not for the full value of his services, for some of them were taken care of by the provisions of the lease, but to what the additional services were reasonably worth, less an offset, which we will mention hereafter. The testimony, fromG any aspect of the case, was incompetent.

In 1878 Mr. Jessup made a will. Claimant was allowed to show that attached to this will, under date of December 1, 1900, Mr. Jessup had written:

*‘To Charles H. Oliver I bequeath the sum of five hundred dollars ($500), and the two horses, and whatever farming tools belongs to me Charles Edward Jessup, Senior.”

This was followed by showing that in the inventory the horses and farming tools were appraised at $350. It is said this was in the nature of an admission that the services were regarded by Mr. Jessup as worth $850 at least, and this was so argued to the jury. This paper was not signed by Mr. Jessup. It is not shown under what circumstances he wrote it — whether he expected it would take the place of the lease or whether it was a voluntary gift. It is clear that, whatever he had in mind, he did not see fit to give it effect by attaching his signature. It should have been excluded.

Error is assigned as to the conduct of counsel. As the case is to be reversed for other reasons, we will content ourselves with saying that the conduct of counsel in not acquiescing in the rulings of the court is to be condemned. We have expressed our opinion of similar conduct in Thompson v. Railway Co., 91 Mich. 255 (51 N. W. 995), Cavanagh v. Township of Riverside, 136 Mich. 660 (99 N. W. 876), and Hillman v. Railway Co., ante, 184 (100 N. W. 399).

We do not deem it necessary to discuss the assignments of error in relation to the charge, as the errors naturally grew out of the improper admission of the testimony. .

A motion was made for a new trial. It was overruled. It has already appeared that in consideration of the life lease certain services were to be rendered. It is, not shown when this agreement was modified. Mrs. Jessup lived only 15 or 16 months after the lease was made. The lease bound the claimant to continue to render to Mr. and Mrs. Jessup during their lifetime such services as he-had heretofore rendered them. After Mrs. Jessup died, the claimant worked for Dr. Vaughn by the month. What attention he gave to Mr. Jessup was rendered either in the evening or at night. There was no competent testimony which would warrant the jury in rendering so large a verdict. It should have been set aside because it was excessive.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    NUGENT v. PETERMAN.
    Adverse Possession — Character of Holding — Minors—Notice.

      Where a father deeded land to his daughter as a gift, but remained in possession and paid the taxes several years out of funds in his hands belonging to her, but after her death, leaving infant children, allowed the land to be sold for taxes and purchased it at the sale, limitations would not run against the title of the minor children until actual notice to-them of the adverse character of his possession.
    Appeal from Jackson; Peck, J.
    Submitted- June 10, 1904.
    (Docket No. 10.)
    Decided October 4, 1904.
    Bill by Catherine Nugent against Jacob L. Peterman to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Parkinson & Campbell, for complainant.

      Charles A. Blair and Charles E. Townsend, for defendant.
   Montgomery, J.

This case concerns the title to the south 33 feet of lot 2, block 32, of Ford’s Extension to the City of Jackson. The father of the complainant, James Nugent, was in 1872 the owner of the whole of lot 2. On April 29th of that year he conveyed the south 33 feet to his daughter, Mary Ferguson, as a gift. Mary Ferguson for a time lived with her husband, Peter Ferguson, in her father’s house on the north part of the lot, paying rent for the same. Some stone were landed on the south 33 feet of the lot by Peter Ferguson, the purpose being to build a house thereon. In 1874 or 1875 Mrs. Ferguson removed to Grand Rapids, leaving the premises in charge of her father, who made use of them for a cow and chicken yard, and paid the taxes out of money owing by him to Mrs. Ferguson. In 1877 Mrs. Ferguson died, leaving four daughters, all of whom were minors; the youngest being but a few months of. age. No change of possession followed upon Mrs. Ferguson’s death. James Nugent continued to occupy the land as before. Peter Ferguson paid the taxes of 1877. The taxes of 1878 were not paid, and James Nugent became the purchaser at auditor general’s sale, obtaining his deed in November, 1880. After 1883 the 33-foot strip was assessed to James Nugent until 1893, when for a time it was assessed to complainant. James Nugent, on December 5, 1891, conveyed the 33-foot strip to his daughter, the complainant, who lived with him on the north portion of the lot. James Nugent continued to occupy the entire premises as before until 1898, when he died. The defendant acquired the title of the heirs of Mrs. Ferguson.

It is apparently conceded that the tax title was originally invalid; the complainant’s contention being that the defendant’s title had been defeated by adverse possession. The circuit judge ruled against this contention, and complainant appeals.

We think the ruling of the circuit judge should be sustained. The occupancy of James Nugent began in subordination to the title of Mrs. Ferguson, and unquestionably so continued to the time of her decease. The title to to the 33-foot strip then vested in minor heirs of Mrs. Ferguson. There was no ouster as to them by any actual notice, either during their minority or afterwards. There was no change in the character of the occupancy. It is true there is evidence of assertions of ownership made by James Nugent to others, but no notice is brought home to the owners of the legal title, even if such notice would be availing during the minority of the children; there having, clearly, been no ouster of their ancestor. The case is, in many of its features, like that of Paldi v. Paldi, 84 Mich. 346 (47 N. W. 510), and is ruled by that case.

Complainant’s counsel ask what more James Nugent could have done to show his holding to be adverse. The answer is that if the possession held in subordination to the title of the ancestor could be changed into an adverse possession as against these minors, it must also follow that notice of the purpose to so change the holding might have been given to them. Under section 9718, 3 Comp. Laws, these infants were under disability. When they severally attained their majority, notice of adverse holding might have been given, but it was not.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    THORNE v. FOLEY.
    1. .Limitation of Actions — Express Trust.
    Limitations do not run in favor of the trustee of an express trust except where he repudiates the trust, and assumes an adverse position with notice to the cestui que trust.
    8. Trusts — Enforcement—Repudiation—Laches.
    A bill on behalf of certain cestuis que trust, against defendant as the alleged trustee, alleged that year by year the original trustee and his successors in office represented to such cestuis que trust and their heirs and representatives, both expressly and by implication, that the title to the property was vested in such trustee and his successors by virtue of the statute of limitations; and that a certain decree quieting such title was a final adjudication and determination of all the rights of such cestuis que trust, their heirs and representatives, and was an absolute bar to any proceedings by them or for their benefit to recover the premises. The bill also set up the recent discovery of a certain ancient deed to defendants, which was unrecorded, but which, if recorded, would only have shown that defendants held subject to a different trust than that claimed by complainants, and adverse to them. Held that a delay of more than 45 years by complainants in bringing suit was such laches as deprived them of relief.
    Appeal from Wayne; Rohnert, J.
    Submitted June 10, 1904.
    (Docket No. 13.)
    Decided October 4, 1904.
    Bill by Charles Thorne and others against John S. Foley and others to enforce a trust. From a decree sustaining a demurrer to the bill, complainants appeal.
    Affirmed.

      Jasper G. Gates (Louis J. Rosenberg, of counsel), for complainants.

      Keena & Lightner, for defendant Foley.
   Montgomery, J.

This case is before us on appeal from a decree passed in favor of the defendants on a hearing on demurrer to the bill of complaint. The bill is essentially a bill to declare and enforce a trust. The complainants^ case is grounded upon a deed of the premises in question, known as the “Melchers Farm,” made in April, 1808, by Francis Paul Melchers to Louis Beaufait, Joseph Cerre dit St. Jean, Benoit Chapaton, Charles Rivard, and Francis Rivard, acting as attorneys for the inhabitants of the Cot© N. E. in the district of Detroit. The bill sets out at length, the terms of this deed, which it is claimed were apt to create a trust in favor of the inhabitants of the Cote N. E. It is also averred that the complainants are descendants of the then inhabitants of the Cote N. E., and have succeeded to their rights, and that in this right they are entitled to have this trust enforced in their favor.

The bill also avers that in April, 1833, Louis Beaufait and Francis Rivard, being then the only survivors of the-trustees named in the Melchers deed of 1808, made a conveyance of the farm to Rev. Frederick Rese, then the-archbishop of the diocese of Cincinnati, and to his heirs and assigns, but in trust for religious and literary purposes. This last-mentioned deed was not recorded until August, 1901. The bill also alleges that at a date prior to 1857 Jacob M. Howard, Addison Mandell, William P, Wesson, and others associated together and obtained deeds of conveyance from certain of the inhabitants of the Cote N. E. other than the ancestors of the complainants.

The bill further alleges that in 1857 Peter Paul Le Fevre, then exercising the office of bishop of the Roman Catholic Diocese of Detroit, filed a bill of complaint in the Wayn© circuit court, in chancery, against William P. Moore, in whom had been vested the Howard and Mandell title, praying, among other things, that the court decree that a full and absolute fee of said premises was vested in and held by said Peter Paul Le Fevre in trust for the use and benefit of said Roman Catholic Church, free and clear of all claim of right thereto on the part of said Moore. In this suit James Abbott, Victor Moross, and Louis L. Beaufait were joined as defendants. The bill averred that the inhabitants of the Cote N. E. were so numerous that it would be impracticable to make them parties.

The present bill avers that this latter allegation was untrue, and that the whole proceeding in 1857 was collusive and fraudulent, and that the decree was taken under an agreement that the farm should be divided between the bishop and the Howard and Mandell syndicate, which was in fact done after the decree was entered. The decree was entered in accordance with the prayer of the bill, and the bishop has since used and controlled the property.

The circuit judge was of the opinion that, if the rights of complainants under the original Melchers'deed be assumed to have been as stated, those rights have been cut off by the statute of limitations and by complainants’ laches. Our first inquiry should be directed to this question.

The claim of the complainants is that the Melchers deed created an express trust, and that the statute of limitations does not run as against a cestui que trust and in favor of the trustee of an express trust. Such unquestionably is the general rule. 2 Perry on Trusts, § 863. But it is equally well settled that, where the trustee repudiates the trust, and assumes an adverse position with notice to the cestui que trust, an action to recover land is barred. Id.; Wood on Limitations, § 200, p. 464; Speidel v. Henrici, 120 U. S. 377 (7 Sup. Ct. 610); Naddo v. Bardon, 51 Fed. 493, 2 C. C. A. 335.

The bill in this case alleges:

“ And also that year by year, and every year since the making of said decree, either said Bishop Le'Fevre, or some of his successors in office, did by themselves and by and through the several and various priests who have from time to time been in charge of and who have officiated in the said churches, stated and represented to said persons, said ‘ inhabitants’ and their heirs and representatives, both expressly and by implication, that it was under and by virtue of the statute of limitations of this State that the legal title to said ‘ farm’ was vested in said Bishop Le Fevre and his said successors; and, further, that said decree was a final adjudication and determination of all the rights of said ‘ inhabitants’ and their heirs and representatives in and to said ‘farm,’ and an absolute bar to any and all suits and proceedings by them or on their behalf in the premises.”

This averment imparts knowledge of the decree, and that the defendants were claiming title adverse to the claim of complainants. But it is said that, had the deed of 1833 been recorded, it would have disclosed that the defendants took the farm subject to the trust declared by the deed of 1808, and that the concealment of this deed and of the agreement between Howard and Mandell and Bishop Le Fevre prevents the bar of the statute. Had the deed of 1833 been recorded, it would have disclosed to the complainants that defendants were claiming to hold the land in question by virtue of a deed declaring a trust other and different from that which the complainants claim — a trust adverse to complainants. This claim of defendants, at least so far as it was based upon the decree of 1857, was well known to complainants. It is said that, if this deed had been' recorded, it would have disclosed that Bishop Rese took the title of the trustees subject to the burdens of complainants’ rights. How else could the bishop have taken the title? The bill is particular in averments to show that no adverse possession existed prior to 1857. Complainants did not require a view of the deed of 1833 to assure them of their rights under the Melchers deed. The utmost that can be claimed is that the defendants made broader claims as to their rights than the law would sustain them in, but all the time complainants were in possession of knowledge of the facts affecting their title, and since 1857 knew that that title was disputed. This delay of more than 45 years bars their remedy.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    LOVELY v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Appeal and Error — Discretion of Trial Court — Refusal of New Trial.
    The case must be a very clear one, affording very strong evidence that the verdict is the result of bias or prejudice, to justify this court in overturning the decision of the trial judge adverse to a new trial on the ground that the verdict is opposed to the great weight of evidence.
    2. Trial — Instructions—Credibility of Witnesses.
    An instruction that in weighing the testimony of the witnesses any interest of the witnesses may be considered, but in the same connection cautioning the jury against drawing an unfair inference because the witnesses are in defendant’s employ, does not invade the province of the jury.
    Error to Mecosta; Palmer, J.
    Submitted June 14, 1904.
    (Docket No. 18.)
    Decided October 4, 1904.
    Case by James Lovely against the Grand Rapids & Indiana Railway Company for the negligent killing of a steer. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. J. O’Brien and James H. Campbell, for appellant.

      Charles A. Withey {J. E. Richardson, of counsel), for appellee.
   Montgomery, J.

The plaintiff brought an action against the defendant to recover the value of a steer killed by defendant’s train at Paris, Mecosta county. On the trial at the circuit, a recovery for the value of the steer was had. The case is brought here on error.

It is first urged that the circuit judge was in error in refusing to grant a new trial on the ground that the verdict was opposed to the great weight of evidence in the case. We have carefully considered the testimony of the various witnesses, and do not think that the preponderance is so great in favor of the defendant as to overcome the inference that the circuit judge reached the correct conclusion. The case must be a very clear one, affording very strong evidence that the verdict is the result of bias or prejudice, to justify this court in overturning a decision of the trial judge adverse to a new trial on this ground. He has the advantage of having seen the witnesses, and of having noted their appearance on the stand.

The second point urged is that the circuit judge erred in his instructions relative to the witnesses for the defense. The instruction, as given by the circuit judge, was as follows :

“You may take the testimony of these railroad men; you may take their appearance upon the stand; you may take into consideration any interest which they might have that would in any way influence their testimony here, but no inference unfair to men should be drawn because they are in the employ of the railroad company; you will take into consideration the testimony of the plaintiff — and then weigh up the testimony on both sides, and say where, in your judgment, the truth lies, and what your duty would be in giving weight to testimony.”

We see nothing objectionable in this language, taken as a whole. None of the cases cited by defendant’s counsel supports their contention that the circuit judge was in this instruction invading the province of the jury. It is true the jury were told that in weighing the testimony of the witnesses the interest of the witnesses might be considered ; but in the same connection the court cautioned them against drawing an unfair inference based upon the fact that these witnesses were in the defendant’s employ. The question is ruled by McDonell v. Rifle Boom Co., 71 Mich. 61 (38 N. W. 681), in which case the case of Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51 (7 N. W. 209, 40 Am. Rep. 453), relied upon by counsel, is analyzed and distinguished.

There is no error. Judgment affirmed.

The other Justices concurred.


text:
    HINCHMAN v. SPAULDING.
    1. Justices op the Peace — Removal op Causes to Circuit 1 Court — Title to Land.
    Under 2 Comp. Laws, §§ 782-784, providing for transfer to the circuit court of causes begun before justices where the title to land comes in question, a justice does not lose jurisdiction by the filing of a notice and bond and the deposit of a sum not sufficient to pay the accrued costs on a day between the return and adjourned day.
    3. Certiorari — Conolusiveness op Return.
    The return of a justice to a writ of certiorari, being responsive, and covering the points of error appearing in the affidavit for certiorari, is conclusive.
    Error to Berrien; Coolidge, J.
    Submitted June 15, 1904.
    (Docket No. 23.)
    Decided October 4, 1904.
    Trespass quare clausum fregit by George Hinchman against J. Harvey Spaulding. Plaintiff had judgment in justice’s court, and defendant brought certiorari to the circuit court. The circuit court set aside the judgment of the j ustice, and plaintiff brings error.
    Reversed.

      James O'Hara, for appellant.

      <lore & Harvey, for appellee.
   Montgomery, J.

Plaintiff brought a suit in trespass in justice’s court by summons returnable October 12, 1903. On the return day the parties appeared, and joined issue, and the cause was adjourned until the 19th of October. On the 17th of October the defendant presented to the justice a written plea accompanied by a notice that the title to land would come in question 'on the trial, at the same time handing to the justice a bond in the sum of $200, signed by himself as principal and Charles F. Parrin as surety. At the time the justice gave to the defendant a receipt reading as follows:

“Receivedof J. Harvey Spaulding for costs of suit and certified transcript of docket to the circuit court up to date, wherein George Hinchman is plaintiff and J. Harvey Spaulding is defendant.”

On the adjourned day — October 19th — the defendant did not appear before the justice, and, after waiting on© hour, the plaintiff proceeded with his proofs, and the justice pronounced judgment in plaintiff’s favor. Defendant thereupon sued out a writ of certiorari from the circuit court of Berrien county, and upon the coming in of the justice’s return the circuit court set aside the judgment of the justice upon certain conditions (of which the plaintiff could not, perhaps, complain). This judgment of the circuit court is brought before us for review on error.

The rules of law involved are not intricate, nor are they much in dispute. The statute (1 Comp. Laws, § 782) provides that:

“In every action where the title to land shall in any wise come in question, the defendant may give notic© thereof, under the general issue, upon the return day or any adjourned day of such action.”

The next section prescribes the requirements of such, plea and notice.

Section 784 provides for a bond, to be approved by the justice, and for the payment of plaintiff’s costs up to the time, and also $1 for return and #2 entry fee.

If these conditions are complied with, it is made the duty of the justice to certify the case to the circuit; if not, he retains jurisdiction to try the case. It is to be noted that the plea and notice were not tendered on the return day nor on the adjourned day. This is not of consequence except in this: The defendant was not able, nor was the justice, to learn what costs had been incurred by the plaintiff after the adjourned day and prior to the 17th of October. Undoubtedly, if a sufficient sum had been paid in to cover the costs actually incurred, and had this, together with, an approved bond, been retained-by the justice in his possession on the adjourned day, the statute would have been sufficiently complied with. In this case it appears, however, that the amount of costs tendered was insufficient to cover certain items of disbursement previously properly made by the plaintiff.

The circuit judge was of the opinion that the defendant had the right to rely upon the justice’s receipt. We need not determine whether in any case the defendant might so rely upon an acceptance of a stated sum by a justice, deposited at a time when, in the very nature of things, he would not be better able to fix the amount than would the defendant; for in this case the justice returns that he informed the defendant that he did not know what the costs were, and could not inform him until the adjourned day; that the plaintiff had subpoenaed witnesses; that the defendant insisted upon his taking $5 and giving the receipt above quoted, and that he (the justice) thereupon gave it. The justice further returns that he repeatedly-told defendant to be present on the adjourned day and justify a legal bond; that he did .not give defendant to understand that the bond was satisfactory to him, or that he accepted and approved said bond. This return is conclusive. Traverse City, etc., R. Co. v. Seymour, 81 Mich. 378 (45 N. W. 826). The circuit judge recognized this rule, but evidently was of the opinion that the return, taken as a whole, negatived the statements above referred to. We are not able to so read the return.

The defendant having failed to comply with the requirements of the statute, the judgment of the circuit court is reversed, and that of the justice affirmed, with costs of all the courts to the plaintiff.

The other Justices concurred.-


author: Grant, J.

text:
    GAY v. BERKEY.
    1. Tenancy in Common — Services of Co-Tenant — Compensation.
    In the absence of an agreement, one tenant in common in lands cannot recover of his co-tenant for services rendered in connection therewith.
    2. Accounting — Interest—Agreement—Mutual Accounts.
    In a suit for an accounting brought by heirs against one who had had business dealings with deceased, but not as a partner, resulting in a mutual account, evidence examined, and in connection with the prayer of defendant’s answer and cross-bill, “that the court shall make and state the account between the parties hereto, and tl\at it compute the interest thereon at the legal rate, but without annual rests,” held sufficient to show an agreement to pay interest on the mutual account at the rate provided by law, in the absence of stipulation for a different rate.
    8. Interest — Compound Interest — Agreement.
    An agreement, made before interest becomes due, to compound it, is void.
    4. Same — Agreement After Interest Due.
    An agreement to pay interest on interest, made after the interest becomes due, is valid; the forbearance to enforce payment and extension of time being a sufficient consideration.
    5. Same — Computation—Evidence.
    The fact that two persons, in their dealings with a corporation in which each was interested, assented to settlements, with annual rests and compound interest, is insufficient to show that in their dealings with each other they made an agree- • ment to pay it, or that they settled on that basis as to mutual accounts of their business dealings.
    6. Accounting — Interest—Computation—Application of Con- ■ neotiout Rule.
    In a suit for an accounting by heirs against one who had had business dealings with deceased, but not as a partner, resulting in a mutual account, where defendant admitted that he paid a certain sum on the account, and made other payments fully satisfying the account, and that certain taxes paid by him were paid on the agreement, as stated in the bill of complaint, that one-half of the amount so paid should be credited by deceased to defendant in the mutual accounts between them, he is in no position to claim the application of the Connecticut rule in the computation of interest — that is, simple interest on the items of each side of the account from the date of the items — the sole basis for making such claim being that the items of credits to defendant were not - payments, but independent items.
    Cross-appeals from Kent; Wolcott, J.
    Submitted June 15, 1904.
    (Docket No. 24.)
    Decided October 4, 1904.
    Bill by William H. Gay, individually, and as administrator of tbe estate of George W. Gay, deceased, and Gertrude A. Carman against Julius Berkey for an accounting. From the decree rendered, all parties appeal.
    Modified and affirmed.

      Butterfield & Keeney, for complainants.
    Burlingame, Belden & Orton (Benton Hanchett, of counsel), for defendant.
   Grant, J.

George W. Gay and the defendant, Berkey, formed a partnership about the year 1865 for the manufacture of furniture. In 1873 they merged the partnership into the Berkey & Gay Furniture Company, of which Mr. Gay was the secretary and treasurer up to the time of his death, September 13, 1899. Mr. Berkey was president during the same time, and is still its president. They were engaged in other transactions, but not as partners. They formed a corporation known as the Oriel Cabinet Company. They bought lands in Texas and Louisiana, which they held as tenants in common. They were "interested in a corporation known as the Furniture Caster Association, and several other enterprises unnecessary to mention.

A mutual account existed between them for about 20 years prior to Mr. Gay’s death. This account began in November, 1880. Neither kept a book account of their dealings. Unfortunately they never had a settlement, and death has sealed the lips of Mr. Gay, and the statute has sealed those of Mr. Berkey. The items are not numerous, but large. This may account for lack of accurate accounts and of settlements.

Some of their joint lands in the South were sold, but at Mr. Gay’s death they were still the owners, as tenants in common, of considerable tracts of land in Texas. Mr. Berkey evidently looked after the payment of the taxes, and had general care of the southern lands. It appears it was incumbent upon him to pay the taxes. He failed to pay them some years upon the Texas lands. They were sold, and Mr. Berkey bought up the tax titles, taking them in his own name, instead of the names of himself and Mr. Gay. The title thus stood at Mr. Gay’s death.

Complainants are the children and sole heirs of Mr. Gay. They failed to secure an accounting with Mr. Berkey, or to obtain from him a deed of their half interest in the tax titles. They thereupon filed this bill for an accounting, and for a removal of the cloud from their title. The bill sets up the various items upon which an accounting is sought, and the claims of the complainants in regard to them. The answer made an issue of fact as to some of these items, but upon the hearing and proofs, taken in open court, the claims of the complainants were conceded, and certain payments by the defendant conceded, and the only items left in dispute are four: (1) One-half of $200, which defendant claims to have expended in a trip to Texas in 1899, to look after the lands owned by the two. (2) One-half of $2,000, for services in his attempt to find a purchaser for these lands. (3) A credit for an interest claimed to have been sold by defendant to Mr. Gay in what is known as the Caster Patents and the Caster Furniture stock. (4) Interest,

The items are so few that the issue might as well have been tried at law as in equity, but for the cloud upon the complainants’ title caused by the tax titles standing in defendant’s name. At the hearing defendant admitted that the complainants were entitled to a release of the tax titles upon their one-half interest.

The court disallowed the first three items.

The item of $200 was disallowed because defendant owned other interests in Texas, and the testimony was too indefinite to show how much, if any, of that was actually spent in looking after the lands owned by Mr. Gay and Mr. Berkey.

The court gave the same reason for disallowing the-$2,000. We thoroughly agree with the conclusion reached by the court below. In addition to that, it may be said that no agreement was shown for the payment of services by Mr. Gay to Mr. Berkey in looking after these lands. They owned them as tenants in common, and, in the absence of an agreement, neither could recover for services against the other, rendered in connection therewith.

It is unnecessary to enter into a detailed statement of the facts in regard to the claim on the part of Mr. Berkey for the interest in the Castér Patents, and the stock which he claims he sold to Mr. Gay, and for which he claims that he had never received payment. If he was entitled to recover anything, it was the full value of a quarter interest in the patents at the time of the sale, which was only $450. It proved to be very valuable, and the stock of the company organized to manufacture the casters became very valuable. We, however, agree with the conclusion reached by the circuit court that this interest was owned and sold by Mr. Fox to Mr. Gay, and not by Mr. Berkey to Mr. Gay.

The only remaining and important question relates to the interest. Complainants claim the right to compute interest at going bank rates, with annual rests. The defendant claims: (1) That no interest can be computed, except from the date of the filing of the bill. (2) That there is no foundation for compounding the interest. (3) That if ■interest is to be allowed prior to the filing of the bill, it must be computed according to what is known as the Connecticut rule, i. e., simple interest upon the items of .each side of the account from the date of the items.

The court in its decree considered the credits in the defendant’s account, except certain taxes and expenses pertaining to the Texas lands, as payments, and computed the interest according to the rule adopted by the United States, the Massachusetts courts, and this court, viz., the rule of partial payments. As to the taxes and expenses pertaining to the Texas lands, the court decreed that they were made to third parties, and interest should be computed under the Connecticut rule. The decree for the complainants was $21,307.98.

Complainants base their claim for interest upon an agreement between Mr. Berkey and Mr. Gay. If there was such an agreement, it becomes unnecessary to determine when interest begins to run upon an open mutual account.

On March 9, 1892, Mr. Berkey rendered an account to Mr. Gay. Mr. Gay rendered an account to Mr. Berkey on the following day. Both statements were brief and the items few; neither exceeds two pages of the record. Each computed interest upon the account rendered — one upon the basis of 7 per cent., the other upon the basis of 8. None of the items in Mr. Gay’s statement, except the method of computing interest, were disputed by Mr. Berkey. Two or three items in Mr. Berkey’s account were disputed by Mr. Gay; the principal one being a credit claimed by Mr. Berkey for the one-fourth interest in the Caster Patents, stated in the account at $5,929.61. This was the only account ever rendered by the parties each to the other. No book account or statemant of any kind was found among the papers of Mr. Gay throwing any light upon the claim. The character and the history of the dealings between these parties, as shown in the accounts rendered and by other testimony, is of importance in determining whether there was an agreement to pay interest. The first item of the account is the sale by Mr.. Gay to Mr. Berkey of Oriel Cabinet Company stock for-$9,500, November 1, 1881. Standing alone, this item would bear interest. Whether the parties at that time-contemplated mutual dealing in the future, and an open account therefor, we do not know. Mr. Berkey recognized his obligation to pay interest upon this amount in a letter to Mr. Gay dated July 18, 1882:

“I write this to show that I acknowledge that I am personally indebted to you for the stock that I hold in the Oriel Cabinet Company, less $500 difference in purchase, with interest from organization of said company.”

The next items in the account are the rents due on a lease by Mr. Gay of a building in Grand Rapids for three years, at $3,200 per year, dated April 15, 1884, payable monthly. These items constituted the entire debit side of Mr. Gay’s statement to Mr. Berkey. Both are found in the statement of Mr. Berkey.

The date of the first item — a small one, $250 — in Mr. Berkey’s statement, claimed to apply on his indebtedness to Mr. Gay, is June 2, 1882. The next is an item of October 1st of the same year, of $421. No other payments were made by him until August 28, 1885, as appears by the accounts. A claim found in the statement dated May 1, 1884, known as the “ Clock Company rent,” for $414.40, was abandoned by Mr. Berkey upon the hearing. It is now conceded that upon the amount due for the Oriel Cabinet Company’s stock Mr. Berkey should pay interest. Thus for about four years Mr. Berkey was indebted to Mr. Gay in the sum of $9,500, with only two small offsets or payments.

The lease was also a separate transaction. If the rent was not paid, it bore interest just as certainly as though it had expressly provided for interest. It was a separate and distinct item in the account, bearing interest, with the evident understanding that when they settled, the items for rent under the lease should be included. If the lease had provided “with interest,” it would then have been upon the same basis as the amount due for the Oriel Cabinet Company stock; But, as already stated, each installment of rent bore interest from the date it became due. The dealings between these parties did not constitute a strictly mercantile account. The transaction was rather this: Mr. Gay virtually loaned Mr. Berkey money. He gave him a lease, with an annual rental, payable monthly. Mr. Gay stood in the position of a creditor loaning money and leasing property, and defendant in the position of a debtor and tenant. The injustice in holding that Mr. Berkey should have this amount of Mr. Gay for so long without interest is apparent. Each recognized this obligation in the accounts rendered, and we think Mr. Berkey in his answer conceded it. Without quoting the allegations of his answer and cross-bill, he prays:

■ “That the court shall make and state the account between the parties hereto, and that it compute the interest thereon at the legal rate, but without annual rests; and, further, that if the court should determine to compute said interest in a different method, that the same rule be applied to both sides of the account between the parties hereto.”

We therefore conclude with the circuit judge that there was an agreement to pay interest.

We also think it clear that there was no agreement as to the rate "of interest, but that both parties contemplated the interest provided by the law, where there is no stipulation for a different rate. There is nothing prior to the rendition of these statements in 1892 to indicate any agreement as to the rate of interest. Mr. Berkey in his statement computed it at 7 per cent.; Mr. Gay in his at 8 per cent. We think this conclusive that no rate other than that provided by law was agreed upon.

It is vigorously urged by the complainants that there was an agreement to compute the interest with annual rests, and thus compound it. The sole evidence upon which this claim is based is the accounts rendered in 1892. There had up to that time been no settlement, and no striking of annual balances carried into a new statement for the next year. The parties disagreed upon these accounts, and unfortunately nothing was done towards a settlement until one had died. If, as urged with much force by the defendant, the bill alleges an agreement, before the interest became due, to compound it, such an agreement is void and unenforceable. Hoyle v. Page, 41 Mich. 533 (2 N. W. 665); Voigt v. Beller, 56 Mich. 140 (22 N. W. 270).

Complainants deny that the bill is susceptible of such a construction. We find it unnecessary to determine the question. After interest becomes due, an agreement to pay interest upon interest is valid; the forbearance to enforce payment and extension of time being a sufficient consideration.

What conversation had taken place between Mr. Berkey and Mr. Gay prior to the rendition of these accounts is of course unknown. There was evidently an attempt to settle, and the claims of each were put into a statement and delivered to the other. Mr. Berkey in his statement computed compound interest, adopting the Connecticut rule. Mr. Gay adopted the Michigan rule. We do not feel justified in saying that this, in view of all the circumstances of the case, amounted to an agreement to compound interest upon the basis of a valid agreement after interest had become due. No accounts were rendered by Gay and assented to by Berkey which would, in our judgment, justify such a holding. We do not think the case comes within the rule of some cases, holding that where certain specific items in an account rendered are objected to and others not, the statement becomes an account rendered as to those unobjected to. Mr. Gay may have said to Mr. Berkey, “ I will agree to compound the interest under the rule of partial payments.” Mr. Berkey may have said to Mr. Gay, “ I will agree to compound interest if we adopt the Connecticut rule.” We cannot say that they agreed to ■either, or that such statements are evidence upon which fo base an agreement to pay compound interest. The fact that Mr. Berkey and Mr. Gay, in their dealings with a corporation, assented to settlements with annual rests and compound interest, is no evidence that in their dealings With each other they made an agreement to pay it, or that they settled upon that basis.

The method of computing interest in case of partial payments is recognized by counsel for both sides to be as stated in Wallace v. Glaser, 82 Mich. 190 (46 N. W. 227, 21 Am. St. Rep. 556). The sole basis for claiming the application of the Connecticut rule is that the items of credits to the defendant were not payments, but independent items. This, of course, cannot be true of several items, which were direct payments to apply on his indebtedness, including one-half the amount received by Mr. Gay for the sale of the Louisiana lands, for which credit-was given to Mr. Berkey. It was evidently the understanding between these parties that the amounts paid out by Mr. Berkey in the various transactions in which both were interested should be considered as payments on the amounts he owed Mr. Gay; otherwise, the statute of limitations would have run against the indebtedness due from Mr. Berkey to Mr. Gay, and it is unreasonable to say that Mr. Gay, an. experienced business man, would permit it. Defendant’s answer, we think, is a complete refutation of his claim that these items were not intended to be payments, but were independent items, upon which he might at any time have sued Mr. Gay. The defendant in his answer admits that “he paid $2,000 to apply on said account, and made other payments from time to time thereafter, fully satisfying said account, as hereinafter more fully set forth.” He also admits that the taxes paid by him upon the Texas lands were “upon the agreement, as stated in said bill of complaint, that one-half of the amounts so paid should be credited by said George W. Gay to defendant in the mutual accounts between them.” Under these and other allegations of the answer, Mr. Berkey could not have sued Mr. Gay for any of the items he expended in behalf of Mr. Gay. He paid them upon the express understanding that when made by him they were to be a credit to him to apply on his indebtedness to Mr. Gay. The only error made by the court below was in computing the interest on the taxes according to the Connecticut rule. They should have been computed like the other items, on the partial payment rule.

The decree will be so modified, and,' as modified, will be affirmed, with costs to the complainants.

The other Justices concurred.


text:
    CALDWELL v. CITY OF DETROIT.
    Highways and Streets — Defective Sidewalks — Injuries to Pedestrians — Instructions.
    In an action against a city for injuries on an alleged defective sidewalk, an instruction that' the city was required to keep its walks “in suitable repair,” so that persons traveling over them, using ordinary care, might do so in safety, is erroneous, as imposing a higher degree of care on the city than is required by the statute (1 Comp. Laws, § 3441).
    Error to Wayne; Frazer, J.
    Submitted June 16, 1904.
    (Docket No. 3.)
    Decided October 4, 1904.
    Case by George E. Caldwell against the city o£ Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    P. J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellant.

      William M. Mertz (Dalton, Mertz & Benaud, of counsel), for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment of $1,000 for injuries sustained by stepping into a hole in a defective walk. The defendant brings error.

The circuit judge charged the jury as follows:

“ The law requires the city to keep its sidewalks in suitable repair, so that persons traveling over them, exercising ordinary care, may do so with safety. It is essential that this should exist at all times, and unless the city of Detroit does this, and anybody suffers an accident or injury on account of it, they would be liable in damages to the person so injured. If the sidewalk on Frederick street was in a defective condition, it is essential that the city would have had knowledge of this defective condition, and this knowledge should be either by actual notice to the city authorities, such as somebody seeing it and reporting it to some city authority, or it must have existed so long that the city was bound to take notice of the defect. This latter form of notice is what is known as constructive notice; that is, that the city shall be deemed to have known of this defect if it had existed for an exceptional length of time, for them to have known of it by an ordinary fair inspection of it.”

It is contended that this charge fixed a higher standard than is required by 1 Comp: Laws, § 3441. It is undoubtedly true that, speaking in the abstract, the duty imposed by the statute is that of keeping the sidewalk and street in reasonable repair, and in a condition reasonably safe and fit for public travel. Indeed such is the language of the statute, and it has often been pointed out that a broader rule ought not to be given to the jury. Shippy v. Village of Au Sable, 65 Mich. 494 (32 N. W. 741); Bigelow v. City of Kalamazoo, 97 Mich. 121 (56 N. W. 339); Weisse v. City of Detroit, 105 Mich. 482 (63 N. W. 423); Yotter v. City of Detroit, 107 Mich. 4 (64 N. W. 743); Gilson v. City of Cadillac, 134 Mich. 189 (95 N. W. 1084).

It is urged, however, that the instruction in the present case could not have misled the jury, as the testimony-given on behalf of plaintiff was not disputed. The jury are to judge, however, as to whether the sidewalk in the condition described was in reasonable repair, and in a condition reasonably safe and fit for public travel. The question is one for the jury, and not for the court, except in a case altogether free from doubt. In determining this question, the jury have the right to consider the location of the walk, whether in a greatly frequented part of the city, or in a less traveled place. We are not able to say that the misdirection may not have affected the result.

The other questions are unlikely to occur on another trial.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    BRYANT v. WILCOX.
    1. Garnishment — Payment into Court — Effect of Judgment.
    A garnishee defendant who has disclosed that B. claims the fund, vouched him in, paid the fund into court, and been discharged, as provided by the statute (1 Comp. Laws, § 1017), ■ may plead the judgment thereafter rendered in bar of any further proceedings against him on the part of B., though he prompted the creditors to bring the garnishment proceedings, and prior thereto B. had brought trover against him for the fund.
    2. Fraud — Remedy—Parties in Pari Delicto.
    One who has placed money in the hands of another for the purpose of perpetrating a fraud on the creditors of a third person will not be assisted by the law to recover it.
    Error to Hillsdale; Lockwood, J., presiding.
    Submitted June 16, 1904.
    (Docket No. 22.)
    Decided October 4, 1904.
    Trover by Ira N. Bryant against Amos Wilcox. There was judgment for plaintiff for less than the amount claimed, and both parties bring error.
    Reversed.

      Frankhauser & Cornell, for plaintiff.

      F. A. Lyon, for defendant.
   Montgomery, J.

OneOzon M. Keith was, in October, 1901, indebted to different parties in the sum of about $400. Keith, to secure the defendant for an indorsement of a note of $81, gave a chattel mortgage, which the testimony tends to show was given with the purpose of defeating Keith’s creditors. The mortgage purported to secure an indebtedness of $500. One of Keith’s creditors sued out an execution against Keith’s property. Defendant, Wilcox, claimed to such creditor that he held a mortgage of $500, but notwithstanding this claim, and in defiance of it, the creditor levied. Keith thereupon requested defendant to bring replevin, but it appears that defendant declined to assert in court the validity of the mortgage for its full amount. The plaintiff was then called in, and it was arranged that the mortgage should be assigned to him, and that he should interpose between Keith and his creditors. Some claim is made that the assignment was also to secure plaintiff for his indorsement of a note of $250, given by Keith and secured by a mortgage to the Thompson Savings Bank; but at all events the testimony tends to show a purpose of asserting the mortgage as against the intervening creditor’s lien and for its full face. The testimony further tends to show that for the purpose of making it appear to the levying creditor that the mortgage really secured $500, the plaintiff gave to the defendant his check for $500, which defendant was expected to exhibit to Coggswell, Keith’s creditor, to convince him of the bona fides of the mortgage, or, at the option of the defendant, he was to draw the money on the check, and exhibit that to Coggswell. It was agreed that after this use of the check, either that or the money should not remain with defendant. Plaintiff claims it was to be returned to him. Defendant claims it was to be paid over to Keith. Upon this question the jury found with plaintiff. The defendant did not return either the check or money. Plaintiff brought this suit in trover to cover the amount of the check.

After suit was brought, two of Keith’s creditors instituted garnishee proceedings to reach the fund. Defendant disclosed, showing that plaintiff was a claimant. Plaintiff was cited to appear and make good his claim, under section 1017, 1 Comp. Laws, but failed to appear. Judgment went against the defendant in the garnishment proceedings for amounts aggregating nearly $400. Defendant was permitted to plead such proceedings in bar. The circuit judge held that the garnishment proceedings were a bar pro tanto, and submitted to the jury the question whether the defendant agreed to return the check or money to plaintiff, with instructions that if he did, the plaintiff was entitled to recover the balance. Both parties bring error.

The plaintiff contends that the garnishment proceedings constitute no bar. The defendant asserts the bar of the garnishment proceedings, and further contends that the plaintiff is not entitled to recover any sum whatever, on the ground that the transaction was against public policy, and the law will leave the parties where it finds them.

1 Comp. Laws, § 1017, provides that when the examination or disclosure of the garnishee shall disclose that any other person or corporation than the defendant claims in whole or in part the money, property, or indebtedness due by him or in his possession, and the name and residence of such claimant, the garnishee defendant may deliver such money, property, or indebtedness to the justice, who shall cause to be served on such claimant a written notice to appear in such court and maintain such claim. The statute further provides that such deposit of money or property shall discharge the garnishee, and that from that time the case shall proceed against the claimant. The proceedings in the present case were admittedly regular. The case falls within the plain words of the statute, and the judgment is res judicata, unless some of the reasons urged against the binding force of the judgment are to prevail.

It is contended that the defendant colluded with the creditors of Keith to cause the proceedings tobe instituted. This contention may have some support in the testimony, and would be of importance, but for the fact 'that without regard to the manner of instituting the suit, the defendant has had his day in court. The very purpose of the statute was to give to the claimant such an opportunity to try the question of his title to money or goods, and whatever may have preceded the notice to him, he was by that notice afforded the full opportunity which the statute contemplates.

But it is contended that the status of the parties was fixed when the plaintiff elected to bring trover, and that a subsequent garnishment could not defeat the action. The institution of the trover suit did not pass the title to this money to defendant. It was still the plaintiff’s. Unquestionably the defendant might have paid over the money to plaintiff in mitigation of damages in the trover suit, and we think that, as long as it remained plaintiff’s, property, defendant, having it in his hands, had the right to deposit it with the justice, and cause plaintiff to be vouched in under this statute.

The more comprehensive question is whether the plaintiff is in position to maintain a suit at all, under the circumstances as indicated by the testimony of defendant. We think this «question must be answered in the negative. By this testimony the money was placed in defendant’s hands for the sole purpose of effectuating a fraud upon the creditors of Keith. The law will leave the parties to such a transaction where it finds them, and will not, where both are equally culpable, engage itself to determine the right of the matter as between them. Smith v. Hubbs, 10 Me. 71; Boatner v. Yarborough, 12 La. Ann. 249; Fisher v. Transportation Co., 136 Mich. 218 (98 N. W. 1012).

The judgment will be reversed, with costs of this court, and a new trial ordered.

The other J ustices concurred.


text:
    PEOPLE, ex rel. DEAN, v. ANN ARBOR RAILROAD CO.
    Appeal and Error — Injunction—Violation—Contempt.
    The Supreme Court will not review the determination of a circuit judge refusing to punish for contempt in violating an injunction.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 17, 1904.
    (Docket No. 33.)
    Decided October 4, 1904.
    Petition by the People of the State of Michigan, on the relation of Sedgwick Dean and Henry S. Dean, against the Ann Arbor Railroad Company and others, to punish respondents for contempt in violating an injunction. From an order denying the relief, petitioners appeal.
    Dismissed.

      Jasper O. Gates, for petitioners.

      A. J. Sawyer & Son (Alexander L. Smith, of counsel), for respondents.
   Montgomery, J.

The relators, having obtained a decree granting a perpetual injunction against the respondents, restraining them from interfering with relators’ ingress and egress to and from certain premises owned and occupied by them, by means of filling of the street in front of the premises, subsequently filed the petition in this matter, alleging a violation of the terms of this injunction, and asking that the respondents be punished as for contempt, and that costs and damages be awarded relators.

The circuit judge upon a full hearing denied the relief, finding that the acts complained of were not within the contemplation of the terms of the final decree; “ that First street has not been closed, nor has travel thereon been in the least impaired, but rather improved, and there has been no material invasion of the rights of the relators in the matter of ingress and egress to and from their property, unless it be in the slight rise of the approach to their property, which does not seem to me to be important or material. ”

From this order the relators appeal to this court.

We find it settled by the previous decisions of this court that this court will not review the determination of a circuit judge refusing to punish for contempt. The question arose first in Schwab v. Coots, 44 Mich. 463 (7 N. W. 61), in which the subject is treated at some length by Justice Campbell, and the conclusion reached that certiorari would not lie to review such action. The question arose in the same form in Montgomery v. Booming Co., 104 Mich. 411 (62 N. W. 561), and the same conclusion was announced, following Schwab v. Coots. In Rasch v. Sheppard, 105 Mich. 667 (63 N. W. 968), the question arose in an appeal from an order in a chancery proceeding refusing to find the defendant guilty of the contempt charged, and the court held, in an opinion by Mr. Justice Long, that the complainants had no right of appeal; citing and following the two cases of Schwab v. Coots and Montgomery v. Booming Co.

We are not able to distinguish this case from the cases cited, and the appeal will be dismissed, with costs.

The other Justices concurred.


text:
    WILSON v. HENRY.

    1. Creditor’s Suit — Issues—Evidence to Sustain.
    A judgment creditor’s bill is not sustained by proof merely of the judgment, execution, and return unsatisfied; it must be shown that defendant has property, either legal or equitable,
    ■ either in hand or due from some one else, or that he has legal title to real estate which he withholds from the record, where that is alleged in the bill.
    3. Same — Amendment—Error—Right to Allege.
    Refusal to permit at the hearing the amendment of a judgment creditor’s bill, to more particularly describe the judgment, if error, is not available to complainant where he failed to offer evidence to support his bill either as originally filed or as amended.
    Appeal from Wayne; Eohnert, J.
    Submitted June 17, 1904.
    (Docket No. 35.)
    Decided October 4, 1904.
    Judgment creditor’s bill by Ira Wilson against Adam Henry. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James H. Pound {May, O’Brien & Baluss, of counsel), for complainant.

      John E. Moloney, for defendant.

       January 30, 1905. On rehearing. A further showing being made by the circuit judge, in connection with the motion for rehearing, from which it appeared that the failure to offer further proofs arose from a misapprehension of the court’s rulings, and it appearing to the court that a mistrial occurred through no fault of complainant’s counsel, ordered that the cause be remanded to the circuit court in chancery, with directions to proceed to a hearing de novo; no costs to either party in this court.

   Moore, C. J.

On the 10th day of March, 1898, the complainant filed a judgment creditor’s bill. In paragraph 1 complainant alleges:

“On the 11th day of January, A. D. 1898, in the circuit court for the county of Wayne, State of Michigan, by the consideration and judgment of said court, your orator recovered against Adam Henry the sum of $307.28, as well for damages which he had sustained by reason of the nonperformance of certain promises and undertakings of the said Adam Henry, as for the costs and charges of your orator about his suit in that behalf expended, as by the record of said judgment, reference being thereto had, will more fully appear.”

Then follow several other paragraphs, alleging the issuance of an execution and the return of same unsatisfied. Then follow the usual allegations of a judgment creditor’s bill.

The defendant filed an answer, and, among other things, denied complainant had obtained a judgment against him, as set forth in the bill of complaint. The other material allegations of the bill of complaint were neither admitted nor denied. A replication was filed. On the 7th day of October, 1903, this cause was brought on for hearing, when the following occurred:

Mr. O’Brien: We ask to have it appear of record that the court says that he will hear the judgment credit- or’s bill first.
“Mr. Baluss: I will first offer in evidence the files in Ira Wilson against Adam Henry, and the affidavit and transcript and the execution and the return. If there is any question about this judgment being a circuit court judgment, I ask for leave of the court to amend the bill in that respect, to allege that it is upon a transcript, instead of the words ‘A judgment in the circuit court for the county of Wayne.’
The Court: This answer has been in since March 28, 1898, and I think it is rather late to ask for an amendment on the day of the trial. If I do that, I will have to give them further time to answer.
“Mr. Moloney: They cannot make their proofs under the allegations, because they have no judgment of the circuit court for the county of Wayne.
“ The Court: I will refuse the motion to amend at this time.
“Mr. O’Brien: We ask leave to amend, and we offer to allow defendant time in which to file an amended answer, if necessary. The court has refused to allow either an extension of time or to allow an amendment at this present time.
The Court: Just put down that it appears that this bill was filed March 10, 1898, and that issue was raised by the answer, which was filed March 28, 1898, upon the point with regard to which plaintiff wishes to amend, so that he cannot be surprised by reason of that fact. This case has been on call to be tried for some time in this court, and the court has arranged its business in such a way as to take up this matter this morning, to the exclusion of other litigants in this court. The court does not consider that the plaintiff has been surprised, and I consider that he has delayed his application for an amendment to a time when the court cannot in justice grant it.
“ Mr. Moloney: We object to the amendment anyway. We object to the introduction of the transcript of a judgment, on the ground that it does not disclose a circuit court judgment.
The Court: I hold that it is not a circuit court judgment. I hold this, that it would have the force and effect of a circuit court judgment if it had been properly entered. The bill will be dismissed.
“Mr. O’Brien: I move that I be allowed to amend to the extent of showing the preliminary steps leading up to the transcript, and I offer to hold the matter up for a sufficient length of time to allow Mr Moloney to file an answer in any way he sees fit.
The Court: I will rule the same way for the same masons. I will deny the motion. Note an exception.”

The court then called upon both parties for further tes-timony. Both sides resting, the bill was dismissed.

Counsel for complainant say two questions are presented: First. Is a judgment transcript a circuit court judgment ? .Second. If not, should the court have allowed an amendment ?

A copy of the files offered in evidence is here. They ■show a judgment regularly obtained in justice’s court. An .affidavit meeting the requirements of section 845,1 Comp. Laws, and a transcript were made. This transcript and the proper affidavit were filed with the clerk of the circuit (Court, who indorsed on the back thereof: “Entered and filed January 11, 1898,” but it does not appear that the clerk entered and docketed the judgment, as required by section 846, 1 Comp. Laws. If it be conceded that the court was wrong in his opinion that it was necessary to-enter and docket the judgment to give it validity as a-circuit court judgment, see Udell v. Kahn, 31 Mich. 198, and if it also be conceded the court was wrong in refusing leave to amend the bill of complaint, still the complainant has fallen far short of making a prima facie case.

When called upon by the judge for further testimony, none was offered. It was not made to appear that defendant had property, either legal or equitable, either in hand or due from some one else, nor was it shown he had legal title to real estate, which he withheld from the record, as stated in the bill of complaint.

The decree is affirmed.

The other Justices concurred.