text:
    THOMASMA v. CARPENTER.
    1. Account Stated — Definition—Words and Phrases.
    An account stated is defined as an agreement between parties wbo have had business dealings that certain items of account arising out of their mutual transactions and the balance struck are correct, together with an express or implied promise of payment.

    2. Same — Brokers—Admissions—Statement of Account.
    In an action for commissions due to brokers under an alleged special contract denied by defendant, the trial court erred in charging the jury that if they found plaintiff sent two or three statements of his claim at intervals of about a month, which were received by defendant and that the latter did not protest but allowed them to stand unquestioned, that fact might be treated as an admission of liability on defendant’s part; since a claim for commissions due under a special agreement was in no sense an account stated, the fact of any contract or dealing at all being denied by defendant.
    3. Same — Contracts.
    A claim which is disputed in its entirety by defendant, should not be treated as an account stated when it did not arise out of mutual dealings or a balance struck and agreed upon: the rule that the receipt of statements sent at intervals, without protest, amounts to an admission of their correctness, applies only to an account stated.
    Error to Kent; Brown, J.
    Submitted April 11, 1913.
    (Docket No. 54.)
    Decided May 28, 1913.
    Assumpsit by Harry Thomasma against Richard E. Carpenter for services performed. .Judgment for plaintiif. Defendant brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      John J. McKenna and Charles M. Owen, for appellee.

       The authorities on the question what constitutes an account stated are gathered in a note in 27 L. R. A. 811. And as to the effect of statement of amount due on instrument for payment of money to sustain action as on stated account, see note in 24 L. R. A. (N. S.) 1287.

   Stone, J.

This is an action of assumpsit brought upon an express verbal contract alleged to have been entered into between the parties, on or about August 1, 1911. The plaintiif was the agent for the sale of a vacant factory building in Grand Rapids, known as the “Oeker & Ford property,” and he was to receive from the trustees for the owners of the property, if he succeeded in making a sale, a commission of $1,000. The defendant was attempting to organize a corporation for the manufacture of Paris green and other products, and looked at the property with a view of having his proposed corporation buy it. Plaintiif was desirous of selling the property, as in that case he could earn his commission of $1,000. With that end in view, and at the suggestion of one of the trustees, he interested himself in procuring subscriptions to the capital stock of defendant’s proposed corporation, and went with defendant on several occasions to interview prospective subscribers. In interviewing different parties it was found that some raised objections to the purchase of the Ocker & Ford property.

The following is plaintiff’s testimony of the making of the alleged contract:

“So after one or two of these objections had been raised, Mr. Carpenter said:
“ ‘Now, this is going to handicap us, to tell everybody that we are going to buy this plant. While I know when we get around to it we will take the plant, I do not think it is a wise thing to tell these people, or insist that we are going to buy this plant. I will tell you what I will do with you. If, for any reason, I should not buy this plant, then I will pay you the $1,000 that you are getting out of the sale of this plant, providing you help me go ahead with this proposition.’
“This was when we were driving along in the buggy, and at that he reached over and shook hands with me on that proposition. I said: ‘All right, Mr. Carpenter ; we will continue to go to it!’ ”

The defendant denied such conversation or the making of such contract. He testified on direct examination:

“I never agreed to pay Mr. Thomasma anything for his assistance in obtaining subscriptions to the stock.”

This conversation, which was alleged by plaintiff to amount to a contract, is not claimed to have occurred until after plaintiff had spent several days going about with defendant interviewing prospective subscribers to stock in defendant’s proposed company, and trying to induce them to subscribe. Plaintiff did not claim to be working, under any agreement with defendant before that time. He had been assisting defendant in the hope that, if sufficient stock were subscribed so that the company could be organized, such company would buy the property he had to sell, and he would so earn his commission, which was to be paid by the owners of the property.

The declaration contained a count upon a special contract, which was fully set forth in the first count, and under which the plaintiff claimed damages in the sum of $1,500. To this declaration the common counts were added, among them the count for an account stated. The plaintiff’s bill of particulars was as follows : “To amount due for services and assistance in procuring subscriptions to the capital stock of the TJdell-Carpenter Company in accordance with agreement, $1,000” — to which was added a claim for interest. Before this suit was brought, plaintiff mailed to defendant two or more statements reading as follows: “To services rendered, $1,000.”' After receiving these statements, and a few weeks before this suit was brought, defendant told plaintiff that he owed him nothing.

Defendant’s testimony on cross-examination on this subject is as follows:

“Q. And you never told him you would pay him?
“A. No.
“Q. And you never told him you would not pay him?
“A. I did tell him I would not pay him anything.
“Q. What?
“A. I told him that I would not pay him anything. The last conversation we had he demanded his money, and I said: T don’t owe you anything; I won’t pay you anything.’
“Q. That was the last conversation before this suit was commenced?
“A. Yes, sir.”

The plaintiff testified that he had two or three telephone conversations with defendant in which the latter promised to call at his office and settle up; but, in the last conversation before suit was brought, defendant said he was not going to pay plaintiff anything.

It will be noted that there was a distinct issue of fact between these parties as to whether defendant had ever promised plaintiff to pay the claim sued upon, and whether there was any indebtedness from the defendant to the plaintiff. The court charged the jury as follows:

“I charge you that where statements of goods sold or services rendered, showing the balance claimed to be due, are presented monthly and allowed to pass unnoticed or unquestioned, satisfaction with the same and acquiescence in the amount will be implied. So that if you find the plaintiff, Harry Thomasma, called the defendant, Richard E. Carpenter, over the telephone and stated to him that he (the defendant) was indebted to him in the sum of $1,000, and that the defendant then and there promised to call at the office of the plaintiff and pay him said amount, and if you further find from the evidence that the plaintiff mailed to the defendant statements of his account showing the amount claimed to be due plaintiff from the defendant for services rendered as claimed in this case, and that said statements were sent on two or three different occasions at intervals of one month, as claimed by the plaintiff, and were received by the defendant, and that defendant did not protest against the same, but allowed them to pass unnoticed and unquestioned, you have a right to treat this conduct on the part of the defendant as an admission on his part that he was then and there indebted to the plaintiff in the amount and manner claimed in said statements and that he was satisfied with and acquiesced in the claim. I will add this part: But if the defendant upon being called by the plaintiff by telephone, and, at or about the time of receiving the statement from plaintiff, denied to the plaintiff that he owed the plaintiff anything, told him he did not owe him anything, and refused to. pay plaintiff anything — denied owing the plaintiff and denied all liability to plaintiff — then the sending of statements will not be considered as any evidence of obligation or liability on the part of the defendant to the plaintiff. The plaintiff claims that defendant, after the company was organized, stated to him over the telephone that he would pay him $1,000 in a short time. The defendant denies this statement of plaintiff and claims .that he never admitted any liability to plaintiff, and that he told plaintiff over the telephone he owed him nothing and would not pay him anything. So you will consider this evidence with the other evidence in the case in determining your verdict."

The trial resulted in a verdict and judgment for the plaintiff, against the defendant, for $1,032.93 damages and costs to be taxed. The defendant brings error, and error is assigned on the charge: (1) Because the principles governing an account stated are not applicable to this case, for the reason that it is an action upon an express contract, and not upon an open account. (2) The charge gives to the fact of mailing a statement the effect of evidence to prove the making of the contract and liability thereunder. It gives to it the effect of an admission on the part of the defendant that he made the contract, and that he was liable to pay the plaintiff the sum of $1,000. The errors assigned upon this charge may well be considered together.

The evidence was to the effect that before the suit was brought defendant had distinctly informed plaintiff that he did not owe him anything, and refused to pay his claim. And it is urged by appellant’s counsel that the question of acquiescence in the statements rendered was not in the case and should not have been submitted to the jury. It was urged that under the issue joined there could be no recovery upon an account stated, and for that reason it was error to submit any question involving the subject of an account stated to the jury. It is the claim of the plaintiff that he was not seeking to recover upon an account stated; that he had declared upon his original contract, and offered proof of the same. And it is urged that, taking the charge together, the trial court charged the jury that plaintiff must prove his original contract before he could recover. In our opinion, the infirmity in the charge is in this: That the trial judge applied to the sending by the plaintiff of his claim, and the fact that the defendant did not for some time thereafter repudiate the claim, the rule which applies to a stated account, or an account rendered, and the jury were told that if they found—

“That said statements were sent on two or thre'e different occasions at intervals of one month, as claimed by the plaintiff, and were received by the defendant, and that defendant did not protest against the same, but allowed them to pass unnoticed and unquestioned, you have a right to treat this conduct on the part of the defendant as an admission on his part that he was then and there indebted to the plaintiff in the amount and manner claimed in said statements and that he was satisfied with and acquiesced in the claim.”

In 1 Am. & Eng. Enc. Law (2d Ed.), at page 437, it is said:

“An account stated is an agreement, between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance.”

In Abbott’s Trial Evidence (1st Ed.), p. 458, that author says:

“An account t stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions and promising payment.”

See, also, 1 Cyc. p. 364.

The rule laid down by the trial court does not apply to a claim that an express contract exists. Such claim is in no sense an “account,” within the meaning of the rule as applied to an account stated, or an account rendered. The very fact of the account, between the parties implies a dealing, which, as matter of fact, was denied by the defendant in this case. The giving of this portion of the charge may be said to be begging the whole question whether there was any contract relation existing between the parties. The rule invoked by the court was not applicable to the case. The case nearest in point, to which our attention has been called, is that of Valley Lumber Co. v. Smith, 71 Wis. 304 (37 N. W. 412, 5 Am. St. Rep. 216). It is there said that the rule of law that, where an account is rendered and no objection taken, it is prima facie evidence of the correctness of such account, has no application where the claim is the subject of a special contract. Orton, J., said, speaking of the trial court:

“The court, in charging the jury, after reciting the testimony of Carson, the president of the company, that he had presented to the defendants a bill or account containing this charge of $200 for the use of the camps, and that the defendants made no objection to it, but kept the bill, said to the jury:
“ ‘Where a statement oí account is rendered, and nothing is said about it, and no objections made, of course that is prima Jade evidence of the correctness of the bill. * * * It is a sort of admission on his part of the correctness of the bill.’
“Aside from the fact that this claim is not a matter of book account, or of an account rendered, or bill presented, but the subject of a special contract, and such a principle of law has no application to it, it was unfair for the court to ignore or suppress the testimony of the defendant Smith that he did at the time object and insist that he had never hired or rented the camps.”

There is much learning in the books upon the subject of an account stated. Some of the courts have refused to extend the rule beyond controversies between merchants. Such, probably, is not the rule of today in most of the States.

In the case of Anding v. Levy, 57 Miss. 51, it was held that the doctrine of liability from retaining a stated account without objection was only applicable between merchants. This case is found reported in 34 Am. Rep. at page 435, where there will be found a note upon this subject.

In White v. Campbell, 25 Mich. 463, Justice Graves discusses the doctrine of acquiescence and says:

“The rule itself is said to have been founded originally on the practice of merchants, and in Lord Hard-wick’s time it was stated to be a rule among merchants and in equity.”

But the doctrine seems to have been applied in that case to others.

In the early case of Stevens v. Tuller, 4 Mich. 387, it was held necessary, to apply the rule which was invoked in this case, to show some existing antecedent debt or demand between the parties respecting which a balance was struck.

In Gooding v. Hingston, 20 Mich. 439, it was held that the rule of an account stated and acquiescence therein has never been extended to the case of such compulsory adjustments of demands, as the law may make against the will of the party.

It was held in Quincey v. White, 63 N. Y., at page 370, that:

“To give to an account delivered the force of an account stated, because of.silence on the part of the party receiving it, the circumstances must be such as to justify an inference of assent, upon his part, to its correctness. Where he has disclaimed all liability upon the account, he is not bound to examine the items, upon its delivery to him, and his omission to object will not be taken as an admission of their correctness, and is not prima facie proof of the account.”

See Young v. Hill, 67 N. Y. 162 (23 Am. Rep. 99).

An “account stated” means a balance struck between the parties on a settlement; and where a plaintiff is able to show that the mutual dealings which have occurred between the parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance. This rule was held not to apply to a case where the contract was in dispute in Kusterer Brewing Co. v. Friar, 99 Mich. 190 (58 N. W. 52). See, also, Watkins v. Ford, 69 Mich. 357 (37 N. W. 300); State Bank of St. Johns v. McCabe, 135 Mich. 479 (98 N. W. 20).

The error pointed out was not cured by any other portion of the charge, for the reason that the charge still left it to the jury to consider the evidence of mailing the statement as bearing on the admission of defendant. The record shows that the whole claim of the plaintiff was disputed by the defendant; and we are constrained to hold that the court erred in that portion of its charge above indicated, and that such error was prejudicial. The other questions argued by counsel are not likely to arise upon a new trial.

For the error pointed out the judgment of the circuit court is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    ATTORNEY GENERAL, ex rel. SHEEHAN, v. BOARD OF EDUCATION OF CITY OF DETROIT.
    Schools and School Disteicts — Board on Education — Powers—
    Purchase and Sale on School Books.
    Under the local act creating the hoard of education of the city of Detroit, granting power to make hy-laws and ordinances relative to regulation of the schools and hooks to be used therein and relative to anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city and the welfare of the public concerning the same (Laws 1869, Act No. 233), and conferring power to sell and convey real and personal property, the board of education is not empowered to buy school books for the students of the' Detroit high schools and sell them at cost.
    Appeal from Wayne; Hosmer and Murfin, JJ.
    Submitted April 8, 1913.
    (Docket No. 6.)
    Decided May 28, 1913.
    Bill by the attorney general on the relation of John V. Sheehan and James F. Macauley against the Board of Education of the city of Detroit and others for an injunction restraining defendants from buying and selling high school text books. From a decree for complainants, defendants appeal.
    Affirmed.

      Edmund Atkinson, for appellants.

      Bowen, Douglas, Eaman & Barbour, for appellees.
   Ostrander, J.

A resolution of the board of education of the city of Detroit instructed the secretary of the board—

“To purchase a supply of such high school textbooks, as are not furnished free on the usual terms on which the board purchases text-books, sufficient to supply the needs of high school pupils during the first semester, and to arrange for the sale of the books at cost to high school pupils; the secretary to act in conjunction with the superintendent and the committee on text-books and course of study and finance.”

Bids for books to be furnished under this resolution were solicited. Asserting that the board of education has no power to engage in the purchase and sale of text-books, the attorney general, upon the relation of two taxpayers of the city, who are also dealers in books, filed in the circuit court, in chancery, a bill to restrain contemplated further proceedings in accordance with the resolution. An issue was made by answer and replication; there was a hearing at which testimony was taken in open court; the court granted the permanent injunction prayed for in the bill; and the defendants have appealed from the decree. The question presented is whether the board of education has power to do what the resolution contemplates shall be done.

It is conceded that the defendant board has no express power to carry out its resolution unless it is conferred in the following language of the act creating the school district:

“The board of education shall have full power and authority * * * to make by-laws and ordinances * * * relative to regulation of schools, and the books to be used therein; * * * relative to anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city, and the welfare of the public concerning the same.” Act No. 233, Laws 1869, § 8.

Relying upon this, defendants also point out that section 5 of the act gives to the board of education power to sell and convey real and personal property as the interest of said free schools may require. It is said, too, that, in the absence of express power in this behalf, power to do what the board desires to do may fairly be implied, and that the exercise of the power is demanded by the circumstances disclosed. The circumstances related and claimed to be established by proofs are that there are 5,500 pupils in high schools in Detroit; the number increasing at the rate of 500 annually. Dealers in school books are fewer in number than formerly; there being now two dealers where in former years there were five. The large majority of pupils reside at considerable distances from the bookstores of the city at which textbooks have been heretofore obtained. The journey from six of the seven high schools to the bookstores and back to the school is five miles long. The books required are not always obtainable when wanted, the local dealers ordering an inadequate supply, and the time and money spent in securing the books is considerable. The prices charged by local dealers are excessive, and the board of education can buy and sell the necessary books so as to effect a considerable saving of money. These and other circumstances and conditions are presented to support the proposition that the proposed action, of the board of education is in the interest of education, the prosperity of the schools, and the welfare of the public concerning the same.

Broad as the terms employed in the act are, we cannot admit that what is proposed to be done is “anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city, and the welfare of the public concerning the same,” within the meaning and purpose of the statute. It is familiar doctrine that school districts are State agencies with limited powers, confined, generally, to those expressly enumerated and those necessarily implied. And, although in general terms powers may be broadly given, the character of the corporation itself and the purposes for which it was created supply limitations in view of which the language employed must be read. Powers could not be conferred in broader terms than are found in the section of the act which has been referred to. And yet it is apparent that the power to make by-laws and ordinances “relative to anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city, and the welfare of the public concerning the same,” is variously limited. When read with the specific enumeration of powers otherwise conferred in the act, the very universality of the grant is itself a limitation of the grant. It may be admitted that this general grant of power takes on a meaning today, and has an effect, which could not have been contemplated by the legislature which enacted the law. Boards of education, supported by public sentiment and interest, now commit school districts to various measures and activities which our fathers would have regarded as revolutionary and intolerable. Measures which were once discarded, if they were ever considered in educational affairs, are demonstrably efficient in advancing the interests of education generally. Manual training schools and domestic science schools are examples of comparatively new approved departures in methods of public school training.- Lumber and flour, glue and condiments, are materials which must now be purchased by the school board along with chalk and globes and maps. Having power to prescribe the courses of study, the board has authority, undoubtedly, to provide the means necessary for pursuing the courses. Knabe v. Board of Education, 67 Mich. 262 (34 N. W. 568). We are impressed, however, that the grant we are considering was not intended to empower the board of education of the city of Detroit to do everything whatever that may advance the interests of education in the city of Detroit, but only such things as it may do without changing its character as a board of education, without, for example, assuming nr taking on the character of a commercial or trading corporation. Otherwise the activities of the board may occupy the almost limitless field of ascertaining and correcting influences and conditions which retard the interests of education. The reasons which are urged in support of the exercise of greater powers than are herein indicated should be urged upon the legislature.

The decree of the court below is affirmed. No costs of this appeal are awarded to either party.

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


text:
    BROWN v. BROWN.
    Partnership — Accounting—Estates oe Decedents.
    While averments of complainant’s bill, charging that a partnership existed between her deceased husband and his brothers in certain business ventures described in the pleading, entitled her, if true, to an accounting, as administratrix of her husband’s estate, the trial judge correctly dismissed her bill upon evidence that tended strongly to disprove the existence of a partnership.
    Appeal from Huron; Beach, J.
    Submitted April 16, 1913.
    (Docket No. 68.)
    Decided May 28, 1913.
    Bill by Addie F. Brown as administratrix of the estate of Walter Brown, deceased, against Albert Brown and Frank Brown for an accounting. From a decree for defendants, complainant appeals.
    Affirmed.

      James H. Hall (Frank W. Atkinson, of counsel), for complainant.

      George W. Bates and George M. Clark, for defendants.
   Ostrander, J.

The bill of complaint is filed by the widow and administratrix of the estate of Walter Brown, deceased, against Albert and Frank Brown. The record and briefs are wrongly entitled, since Levi Brown is not a party to the suit. Defendants answered the bill, a replication was filed, and proofs were taken. There was a decree dismissing the bill. The following is the statement of facts found in the brief for complainant, appellant:

“Complainant is the administratrix of the estate of Walter Brown, her husband, who died April 23, 1907. Defendants are brothers of her husband. At the time of his death, Walter Brown and defendants were engaged in the fishing business at Harbor Beach. They were commonly known as the Brown Fish Company. Levi Brown had been a partner in the company, but had sold his interest, and on April 23, 1907, defendant Albert Brown had a one-fifth interest in the business, and Walter Brown, Harvey Brown, and Frank Brown owned in equal shares the remainder. Shortly prior to April 23, 1907, the company had sold the tug ‘Jones’ for $2,500 and had purchased a boat called the ‘Searchlight,’ leaving a balance in cash from the proceeds of the ‘Jones’ of $1,250. Other property in the fishing business had been accumulated, and the partnership owned a brick block which stood in Albert Brown’s name, valued at $4,500. Walter Brown and Harvey were drowned when the ‘Searchlight’ was lost on Lake Huron April 23, 1907. Complainant has demanded an accounting from Albert and Frank Brown, the surviving partners, which has been refused. Complainant as personal representative of her husband, Walter Brown, deceased, has filed her bill of complaint for an accounting, and a decree has been entered dismissing said bill of complaint.. Complainant has appealed.”

From this it would appear that an accounting should be ordered.

The corrections to this statement, found in the brief for appellees, show that the essential fact that a partnership existed is disputed, and that it is denied that complainant’s decedent ever owned any interest in the tug “Jones,” the “Searchlight,” the brick block, or in any partnership property whatever. Questions of fact only are presented. All record evidence is opposed to complainant’s contention, and an examination of all the testimony does not convince us that the court below reached a wrong conclusion.

The decree is affirmed, with costs.

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


author: Bird, J.

text:
    BROWN v. BROWN.
    Partnership — Evidence.
    Evidence examined in a suit for a partnership accounting instituted by the wife of deceased 'as administratrix of his estate, and held, to sustain the finding of the circuit court that decedent had no interest in the firm transactions as a partner.
    Appeal from Huron; Beach, J.
    Submitted April 16, 1913.
    (Docket No. 69.)
    Decided May 28, 1913.
    Bill by Addie F. Brown as administratrix of the estate of Walter Brown, deceased, against Albert Brown, Levi Brown, Frank Brown, and George Brown, for an accounting. From a decree for defendants, complainant appeals.
    Affirmed.

      James H. Hall (Frank W. Atkinson, of counsel), for complainant.

      George W. Bates and George M. Clark, for defendants.
   Bird, J.

The complainant states in her bill that she is the widow of Walter Brown, and that she has been appointed administratrix of his estate, and charges that in the year 1906 the deceased, Walter Brown, with his father, Levi Brown, and his four brothers, George, Albert, Harvey, and Frank, purchased the schooner Jennie Ward for $1,800; each contributing $300 toward the purchase price; that the use to be made of the boat was to carry lumber on the Great Lakes, and that one cargo of lumber was purchased by them at Cheboygan and taken to Harbor Beach where they resided; that in April, 1907, Walter and Harvey were drowned, and soon thereafter the schooner was sold by George for $1,800, and the cargo of lumber was disposed of by him at a profit. She further charges that the father and five boys were copartners in the deal, and that since the death of her husband they have refused to account to her for her husband’s interest in the boat and cargo. The bill prays for an accounting and a winding up of the affairs of the copartnership. The answer denies that any copartnership existed, and denies that Walter had any interest in the boat and cargo, and asserts that the boat was purchased by George, Harvey, and Albert and was conveyed to them, and that subsequently Harvey and Albert released their interest to George, who had in fact furnished all the money that went into the boat.

After the testimony had been presented to the chancellor at the hearing, he denied relief and dismissed the bill, giving as a reason therefor that in his opinion there was not competent evidence upon which to base a decree for complainant. From this decree complainant appeals.

The father (Levi), George, and Albert were called as witnesses by complainant, and they all testified that George, Albert, and Harvey were the owners of the boat. The father and Frank testified that they never had any interest in either the boat or cargo. The complainant testified that each of the six put in $300 to purchase the boat, and that after Walter’s death George consulted her about selling the boat for the same as they had paid for it, and after it was sold she demanded Walter’s interest, but he refused to turn it over to her on the ground that if he should do so the court might make him pay it again to the children. Complainant shows no facts nor circumstances in corroboration of her claim that Walter put money into the boat. There is no showing that he had $300 nor that he was one of the vendees named in the bill of sale, and no proof was offered to show that he furnished any of the money to purchase the lumber, nor that it was sold at a profit, although complainant says that' she thinks “the load made money.” Her testimony has the appearance of being based largely upon hearsay, although no objection was made to it on that ground. The testimony of George was very unsatisfactory and is entitled to little credence; but, if we were to disregard it altogether, we would still be obliged to hold with the trial court that complainant had failed to establish the material allegations in her bill.

The decree made in the trial court will be affirmed, with costs to defendants.

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


author: Steere, C. J.

text:
    SCOTT v. BROWN.
    1. Appeal and Error — Certiorari—Record—Authentication.
    If no bill of exceptions is settled or required on error to the circuit court, it is not necessary to obtain any certification of the record aside from the certificate of the clerk, signed and sealed, that the copies of the record returned are true copies and his indorsement on the writ of error under seal showing the execution of the writ; and the printed record although faulty is sufficient without any certificate of the judge or clerk, and may be prepared and printed without giving the appellee an opportunity to offer corrections or suggestions.
    2. Same — Certiorari—Justices oe the Peace.
    The return of the justice in certiorari to the circuit court must be taken as true and conclusive as to material facts stated.
    3. Justices oe the Peace — Return Day — Discontinuance.
    In justice court proceedings, failure of a plaintiff to appear within the hour after the time stated in a summons taken out by him, operates as a discontinuance and divests the justice of jurisdiction.
    4. Same — Request eor Continuance.
    Plaintiff’s oral request by telephone, made before the return hour, to hold the case open until his return later in the afternoon from a journey, was of no force and did not prevent a discontinuance of the case for failure to appear at the proper time under 1 Comp. Laws, § 836 (5 How. Stat. [2d Ed.] § 12284).
    5. Same.
    A judgment for plaintiff, entered by the justice without any waiver on defendant’s part of such nonappearance, should have been reversed on certiorari.
    Error to Cass; Des Voignes, J.
    Submitted April 17, 1913.
    (Docket No. 87.)
    Decided May 28, 1913.
    Assumpsit by Emery Brown against Squire Scott in justice’s court. From a judgment for plaintiff, defendant removed the case to circuit court by certiorari. Judgment for appellee. Defendant brings error.
    Reversed.

      Clarence M. Lyle, for appellant.

      Walter C. Jones, for appellee.
   Steere, C. J.

This case is before us on writ of error to review a judgment of the circuit court of Cass county in affirming a justice’s court judgment, brought to that court for review by a writ of certiorari issued to Joel J. Nash, a justice of the peace.

On April 5, 1912, said justice rendered a judgment in favor of Emery Brown, defendant in certiorari and appellee here, against Squire Scott, Jr., plaintiff in certiorari and appellant here, for the sum of $107.97.

The errors alleged and complained of in the affidavit for writ of certiorari are, briefly stated, that said justice had no jurisdiction to render said judgment, because a copy of the summons was not served upon said Scott, the original summons being served upon him, and not returned to the justice or filed in the cause; because on the return day neither party appeared within one hour after 10 o’clock a. m., the time set for appearance, nor until after 5:30 o’clock in the afternoon, when the plaintiff only appeared, at which time said justice had lost jurisdiction; because the court heard no testimony, and none was offered, to prove the indorsement of the payee on the back of a note offered in evidence, and on which judgment was rendered, and there was no evidence before the court that said note was assigned to the plaintiff Brown, and defendant Scott did not appear in said cause at any time.

The return of said justice to the writ of certiorari issued from said circuit court, as found in the official return filed with the clerk of this court, is as follows:

“I, Joel J. Nash, of the township of Marcellus, Mich., the justice of the peace named in the writ hereto annexed, do certify to the circuit court of the county of Cass that before coming to me of the said writ, to wit, on the 28th day of March, 1912, at the request of Emery Brown in the said writ named, I issued a sum-mons directed to any constable of the said county, ’commanding him to summon Squire Scott, Jr., at my office in the township of Marcellus on the 5th day of April, 1912, at 10 o’clock in the forenoon, to answer to the said Emery Brown in a plea of trespass on the case upon promises, to his damage of $300 or under, which summons on or before the return thereof was delivered to S. W. Winters, a constable of said county, who did not return the said original summons to me, but returned a purported copy of said original summons, with the said constable’s return indorsed on said copy of said summons signed by him, and that I am unable to state whether or not said summons was personally served upon said Squire Scott, Jr., except as appears by said return, but that the original of said summons so issued by me was personally served upon said Squire Scott, Jr., instead of said copy. I have not the said original summons in my files in said cause, and have not had the same since its issue, and that said original summons is attached to the affidavit annexed to said writ.
“And I do also certify that at the time and place above specified for the return of said summons on April 5, 1912, at 10 o’clock in the forenoon, I called said case, and neither of said parties appeared before me, and held the same open one hour, and, neither of them appearing before me during said hour, but by request of plaintiff at some time prior to 10 o’clock in the forenoon of said day, made by said plaintiff to me, I held said case open until 5 o’clock in the afternoon of said day, April 5th last, when said Emery Brown, the plaintiff, appeared in person for the first time on said day. Emery Brown, the plaintiff, was sworn, and gave evidence regarding a certain note given by the defendant to G. P. Worden, dated January 17, 1908, and assigned to the said plaintiff, said note being for the sum of $84.92, and the interest on said note at 7 per cent, for 4 years 2 months and 18 days, to wit, the sum of $24.05, and asked for judgment for the sum of $108.97, and thereupon said plaintiff rested his case, and, the said defendant not appearing, and nobody appearing in his behalf, I did forthwith render judgment in favor of said plaintiff, and against the said defendant for the sum of $108.97 damages and also $2.20 costs.
“And in further answer to the facts set forth in the copy of the affidavit on which the said writ of certiorari was allowed, I do further certify and return in answer to allegation No. 1 in said affidavit I think I had jurisdiction of said cause. In return to the second allegation that the original summons was personally served upon said Squire Scott, Jr., and the copy thereof was returned to me instead of the original summons I think I had jurisdiction of said cause and had right to render said judgment. In return to the fourth allegation therein, I return that the original summons was served as alleged, and is attached to said affidavit and marked ‘Exhibit A.’ In return to-the fifth allegation, I certify that the original summons was not returned to me. In return to the sixth allegation, I certify that on return day of said writ I called the case at 10 o’clock and held it open one hour, and neither of said parties appeared, and I held the same open until half past 5 o’clock in the afternoon, when said Emery Brown appeared for the first-time on said day, and said defendant did not appear at all on said day. That the reason I held said case open after 11 o’clock on said day was that some time prior to 10 o’clock on said day said Brown told me that he was going to Cassopolis and would not return until 5:30 that afternoon. That at half past 5 o’clock in the afternoon said Brown appeared and gave evidence in said case as aforesaid. Nobody appeared in said case on said day except said plaintiff. In return to the seventh allegation, I certify and return that said Brown testified that he bought the note, but did not testify that it was G. P. Worden’s signature-on the back of (the) said note. In return to the eighth allegation, I certify that it was fully answered above. In return to the ninth allegation, I certify and return that the defendant did not appear in said case. I return the foregoing to said writ. I herewith return said copy of said summons marked ‘Exhibit B.’
“Given under my hand, the 25th day of May, 1912.
“Joel J. Nash,
“Justice of the Peace of Marcellus Township,
“Cass County, Mich.”

The affidavit mentioned in said return as the one to which Exhibit A is attached is the affidavit for writ of certiorari served upon said justice with the writ. Said Exhibits A and B, made a part of the justice’s return, are identical as they appear in the record, except one is marked “Original” and the other “Copy,” and present no peculiarities rendering it necessary to set them out at length. They bear the same date, and both purport to be signed by Joel J. Nash, Justice of the Peace. The indorsement, indicated on Exhibit B, which is designated “Copy,” is as follows:

“State op Michigan, ) ~~ .
“County of Cass, j
“I certify that I served the within summons on the 28th day of March, A. D. 1912, on Squire Scott, Jr., the defendant therein named, by delivering to him a copy thereof at the village of Marcellus within the said county. *
“S. W. Winters, Constable.
“Fee, $0.45.”

Counsel for appellee urge, at the inception of this inquiry, that no questions are properly raised for this court to pass upon, and the case should be dismissed with costs, because the record was prepared and printed without appellee having any opportunity to see the same or offer any corrections or suggestions; there is no assignment of error; no exception to findings of the trial court; the record is in fact inaccurate and imperfect, and not authenticated by any certificate of the trial judge or other competent officer. The printed record purports to contain the affidavit for writ of certiorari, the return to the writ, the summons in controversy, and a copy with the return of the constable indorsed thereon, and the judgment of the circuit judge. It contains no certificate of the judge or clerk of the court, or anything to suggest that it has any official authentication. An examination of the original return filed in the clerk’s- office, certified to by the clerk of Cass county as being true copies of “the original files and judgment and dates of filing in the case of Squire Scott, Jr., v. Emery Brown,” shows that the printed record is not a true copy of the same, being not only defective and inaccurate in numerous nonessentials, but containing matter which does not appear in the original, and omitting some substantive things which do appear in the original, including in the latter classification the opinion of the circuit judge. Where the record is relied upon and no bill of exceptions is to be settled, the execution of p> writ of error is made to appear by a return to this court of the writ with a transcript of the record annexed, officially certified by the clerk of the court, presumptively, in the absence of anything to the contrary, done under authority and direction of the judge to whom the writ runs. In addition to certifying properly and officially, under the seal of the court, that the various documents attached are true and correct copies of the originals of record in that court, the clerk has also indorsed upon the back of the writ, under his official seal, that “The execution of the within writ appears by the transcript of record hereto annexed.” We think the record is officially authenticated.

In Lickly v. Bishopp, 150 Mich. 256 (114 N. W. 69), it is said:

“In view of the decisions of this court (referring to certain of them) and of apparent lack of uniformity in the practice, it is proper to say that errors assigned in the affidavit for the writ of certiorari will be considered sufficiently assigned for the purposes of a review by this court, upon writ of error, of a judgment rendered in the circuit court involving errors so assigned.”

No suggestion is made that the return to the writ of error does not contain true copies of the files and records in the case, and no application is presented asking further return, for correction of mistakes or to supply omissions. The return of the justice to the writ of certiorari issued by the circuit court must be taken as true and conclusive as to the material facts there stated. No copy of his docket entries is made a part of his return according to the record. He returns unequivocally, and reiterates, that neither plaintiff nor defendant appeared at the time and place said summons was made returnable, nor within one hour thereafter; that defendant did not appear at any time, and plaintiff not until after 5 o’clock in the afternoon, when the case was heard and a judgment entered in plaintiff’s favor.

Section 836, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 12284), provides:

“Judgment of nonsuit, with costs, shall be rendered against a plaintiff prosecuting an action before a justice of the peace, in the following, cases: 1. If he discontinue or withdraw his action; 2. If he fail to appear on the return of any process, within one hour after the same was returnable; 3. If, after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made.”

Under this statute it has been repeatedly and positively held that the failure of plaintiff to appear within the hour operates as a discontinuance and divests the justice of jurisdiction to take any further action, except to render a judgment of nonsuit, as the statute directs, and the appearance of the plaintiff within one hour of the time named on the return day of the summons must be affirmatively shown by the docket entries, where there is no appearance of the defendant, or jurisdiction is lost. Redman v. White, 25 Mich. 523; Brady v. Taber, 29 Mich. 199; Johnson v. Dexter, 38 Mich. 695; King v. McKenzie, 51 Mich. 461 (16 N. W. 813); Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297) ; Post v. Harper, 61 Mich. 434 (28 N. W. 161) ; Talbot v. Kuhn, 89 Mich. 30 (50 N. W. 791, 28 Am. St. Rep. 273); Cagney v. Wattles, 121 Mich. 469 (80 N. W. 245) ; Schulte v. Kelly, 124 Mich. 330 (83 N. W. 405); Barlow v. Riker, 138 Mich. 607 (101 N. W. 820).

The only reason given by the justice for not entering nonsuit according to the statute is that some time prior to 10 o’clock of that day plaintiff told him he was going to Cassopolis and would not return until 5 or 5:30 in the afternoon, and requested him to hold the case open until plaintiff’s return. Although it is stated in the opinion of the trial judge that this communication was by telephone, and counsel state in their brief that it was some time before 10, 8 o’clock in the morning, because the train left for Cassopolis at that time, the record discloses no circumstances of the communication beyond the statement of the justice found in his return as given. It is shown, however, to have been some time before 10 o’clock, the return hour of the summons, and would therefore have no more legal force than if made several days previous. During the hour when the justice was required to keep the case open, he had nothing before him, or with him, to justify a failure to observe the requirements of the statute, but the memory of what the plaintiff had said to him.

It is claimed that this course was authorized by Wagner v. Kellogg, 92 Mich. 616 (52 N. W. 1017). In that case plaintiff had filed with the justice a written request for a continuance, which, the court held, when presented to or in the hands of the justice within the hour, could be regarded as an appearance in the case. In that case defendant Kellogg, accompanied by plaintiff Woodhouse, had met the justice on his way to his office and discussed the matter, Kellogg saying to the justice, “Give him a judgment, and let him get away.” This court said, speaking of the meeting upon the street, that, inasmuch as there was an appearance in writing, “It is unnecessary to determine whether the conduct of the defendant Kellogg would operate as a waiver if the jurisdiction had been lost.”

In the case of Charles Bakrow & Co. v. Totten, 146 Mich. 59 (109 N. W. 31), plaintiff while going to attend court was detained at a railroad crossing. He telephoned the justice that he was on his way and the occasion of the delay. This was during the hour following the time to which the case had been previously adjourned by consent. Defendant was present, and the justice told him of the message and cause of plaintiff’s delay. Plaintiff arrived five minutes after the hour had expired. Defendant remained in court, and made no motion to dismiss the case until plaintiff’s arrival, and was then told by him just what caused the delay. Subsequently a motion was made to dismiss for the reason that plaintiff did not appear within the hour. Though plaintiff, while on his way to court, called up the justice by telephone during the hour and personally asked for a brief extension of time to get there, owing to his unavoidable detention, this court did not see fit to hold that he had appeared within the hour, but disposed of the case on the ground of waiver, saying:

“When a defendant does not appear, jurisdiction may be lost by plaintiff’s absence, but defendant’s presence and omission to either leave, or move to dismiss, before plaintiff’s arrival, may justly be treated as a waiver of the point.”

' In the case at bar defendant never appeared, consented to nothing, and waived nothing; plaintiff did not appear in person, by agent, or written request, and1 the justice, during the hour in which the case is required by the statute to be held open, had nothing before him, oral or written, in the nature of an appearance. The cases in which this question has been passed upon since the case of Wagner v. Kellogg indicate no disposition to relax the rule beyond the holding in that case. In Barlow v. Riker, supra, where plaintiff had procured defendant’s consent to a further adjournment, the court held that it was the duty of the plaintiff to appear and have the case adjourned or jurisdiction would be lost. Plaintiff having failed to do so, the justice waited one hour and, neither party appearing, announced a judgment of nonsuit. Although he had not yet entered the judgment, it was held to be his duty to subsequently do so on demand of the defendant, and that on refusal the entry could be enforced by mandamus.

In reviewing the authorities and discussing the principles involved in this question, Justice Hooker, in Schulte v. Kelly, supra, says:

“And we think, also, that, where a plaintiff fails to appear and prosecute his suit, his nonappearance should be held to be voluntary. Neither the opposite party nor the justice is responsible for it, and he stays away with the full knowledge of the legal consequences. The merits of his case are in no way compromised. If he is unavoidably absent, the misfortune is his, rather than another’s, and usually his right to bring another action is ample protection.”

To hold that the justice can, where neither party has appeared within the hour, continue a case at his pleasure because the plaintiff has orally, and privately, requested him to do so at some previous time is contrary to the clear provisions of the act and the spirit of our decisions. It would amount to saying that the justice could do so whenever he thought the plaintiff would be convenienced thereby or desired it. If he had before him at that hour the written appearance of the plaintiff requesting a continuance there would be something tangible, in the records or files of the case, to substantiate his action. To go further than this would be to negative the purpose and effect of the statute as construed by previous decisions. We think the justice lost jurisdiction at the expiration of the hour, and had no alternative but to enter a nonsuit according to the statute.

As these conclusions necessitate a cancellation of the judgment for want of jurisdiction, it becomes unnecessary to further consider- the other questions raised.

The judgment is reversed.

Moore, McÁlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    HEFFERNAN v. BURNS.
    1. Fraud — Equity Jurisdiction — Adequate Remedy at Law.
    The concurrent jurisdiction that is exercised in chancery in cases of fraud does not extend to the granting of relief for fraudulent representations for which an action at law affords an adequate remedy.
    2. Same — Contracts—Saues—Equity.
    Accordingly, the buyer under a conditional contract of sale of personal property connected with a rooming house, concerning which it is alleged the seller made false representations, is not entitled to a money judgment in equity where the purchaser remains in possession of the property and may set up the defense of fraud in any proceedings at law brought for the enforcement of the contract; nor will equity make a new contract for the parties by entering a decree that the seller accept the money paid, in full satisfaction of the price, and execute a bill of sale to complainant, as prayed in the bill.

      Appeal from Wayne; Codd, J.
    Submitted April 9, 1913.
    (Docket No. 8.)
    Decided May 28, 1913.
    Bill by Mary Heffernan against Anna Burns and another for equitable relief based on fraud. From a decree for defendants, complainant appeals.
    Affirmed.

      James H. Pound, for complainant.

      McIntyre & Wheeler, for defendant Burns.
   Steere, C. J.

In this case complainant appeals from a decree of the Wayne county circuit court in chancery, dismissing her bill of complaint, which alleges that she was fraudulently induced to enter into a contract for the purchase of certain furniture in connection with the good will and business of a rooming house. Her prayer for relief asks cancellation of said contract and the restoration of money paid by her thereon, or, as an alternative, that a bill of sale of said furniture be ordered given her for the consideration already paid, and that an injunction be granted restraining defendant Anna Burns and her agent Lee from attempting to enforce said contract by a seizure of the furniture, now in complainant’s possession, or by any other proceedings. Defendant Lee only figures in the case as defendant Burns’ agent, by reason of a power of attorney which he held from her to collect deferred payments according to the terms of the contract.

The contract in question, dated August 31, 1911, is in its nature, a conditional bill of sale. It purports to sell to complainant the furniture, fixtures, and other personal property constituting the contents of a rooming house in the city of Detroit for the sum of $1,000, $500 down and the remainder in monthly installments of $40. In its preparation a blank form of “contract and conditional sale” appears to have been used, which is somewhat elaborate and freighted with various conditions'. It provides for retention of title in the seller, prohibits removal of the property from where located, provides for repossession in case of default, with power to declare the purchase forfeited, and to sell the property at public or private sale for any deficiency of payments. An attorney fee of $50 is provided for in case of default and resale. It retains title in the vendor according to the usual form of installment plan conditional bills of sale. The scrivener appears to have been sadly confused as to who were parties of the first part or second part, but it seems to be conceded by all parties that the property in question was sold by defendant Anna Burns to complainant Mary Heffernan and the document was signed by the contracting parties. An inventory of the property sold was attached to the contract.

The failure of counsel to comply with rule 35 of this court renders it difficult to ascertain the dates of various proceedings, but apparently this suit was begun in January, 1912, and heard on pleadings and proofs taken in open court some time before May 3, 1912, on which date a decree was rendered dismissing the bill and cross-bill with costs in favor of defendant. On November 9, 1912, a record of the case was settled and signed for review in this court, time for doing so having been extended on application of complainant’s present counsel, on a date not given, but on her affidavit of September 19, 1912, stating as reason for the delay that, though desirous of appealing, she—

“Did not know what to do, or how to do it, until recently, because her solicitor of record was so busy in politics that he had not time to make up his mind, so that petitioner and deponent got another.”

The record contains some lengthy historical affidavits in connection with this application, made after the case wag heard and decree rendered, which appear to be treated as evidence in the case, under what authority we are not advised. The confusion which this leads to is illustrated by the statement of complainant’s counsel: That she insists—

“Defendant Anna Burns sold certain of her property to complainant by a conditional sale, upon false and fraudulent representations, as claimed. That defendant got $500 of complainant’s money; has got her furniture, which complainant did not own, which defendant had given to her (complainant) with one hand and taken it away with the other; sold it, defendant says, for $60, and still has a claim of about $500 against complainant.”

When this bill was filed complainant was in possession of the property in question, and had obtained a temporary injunction restraining defendant from enforcing, or attempting to enforce, the contract in question; the record shows that this injunction was in force February 27, 1912, a motion for its dissolution having been denied, and there is nothing in the record to indicate it was not in force until final decree. We are constrained to assume that this decree must be reviewed and the case decided on the testimony and record before the trial court at the hearing and when the decree was made. If there are subsequent events, which in any aspect of the case are competent to consider, they should have been presented to the trial court in supplemental proceedings.

In her bill complainant alleges the false representations by defendant and her agent to be that the rooming house was bringing in a steady income from the roomers of $160 t© $175,per month; that all the rooms were occupied by permanent roomers; that all the furniture was in good repair; that the house contained no vermin; that there was a change of linen and spreads for all the beds; that defendant’s reason for selling was poor health; and that the house could be rented for $55 per month. Whereas in truth and in fact the house was then bringing in only from $50 to $60 per month; and only three rooms were occupied by five roomers; that complainant was required to pay $60 per month rent; that much of the furniture was old and out of repair, and it was impossible to use it at all; that there was not a change of linen and spreads nor the necessary comfortables for each bed in the house; that said defendant had substituted inferior and scant linen and bedding and worn-out and broken furniture for some good beds in the house at the time of the purchase; that the house was infested with bugs.and rats; that defendant was not giving up the business because of poor health, but was, had been, and still is engaged in the business of starting rooming houses, furnishing them with old, second-hand furniture bought at auction and special bargain sales, and disposing of the same at great advantage to herself.

While there is no allegation in the bill of any representations made by defendant as to the value of the furniture sold, it is alleged that an expert furniture man has fairly valued it at $343, and she has therefore already paid nearly twice as much as it is worth.

Defendant’s answer admits (and reiterates as true): That she represented the house was bringing from $160 to $175 per month when sold; that she was paying $55 per month rental for the house; that the furniture was in good condition; that there was a change of linen for all the beds, but not of spreads; avers that the unoccupied rooms in the house were brought to the attention of complainant; denies that she agreed to get the house for complainant for $55 rental; avers that the inventory attached to the bill of sale was made at the time of the sale in complainant’s presence and complainant had knowledge of every item in it; denies that the house contained, or that she was ever bothered with, bed bugs or other vermin; avers that she was at the time of the sale contemplating an operation in Chicago, and afterwards underwent such operation, paying therefor nearly all the $400 she received from the sale of her furniture in this transaction; denies she purchased the furniture at auction sales, or that she was in the business of starting rooming houses to sell; avers that part of the consideration for the $1,000 provided for in the contract was surrendering the lease and possession of the rooming house for which she had a three-year lease, together with the good will of the business which she had established there; that the price to be paid was a very reasonable amount for the property, possession, and good will, and that all negotiations were open and aboveboard, without fraud or misrepresentation, complainant being taken through the house and shown the property, and fully satisfying herself as to the amount and quality of the same, and all surrounding conditions; and by cross-bill asks affirmative relief from the court to enable her to collect the amount yet unpaid on said contract.

It is shown that the premises in question were in charge of the Hannan Real Estate Agency, a firm of long standing in the city of Detroit, which had, in connection with its business of buying and selling, a rental department. Defendant had rented the house from this agency, and subsequently listed it there for sale at a price of $1,500 or $1,600; the selling of rooming houses, as testified by an experienced salesman of the firm, including the furniture and other personal property belonging to the tenant, the good will, lease, and right of possession all entering into the deal. The agency advertised this rooming house in the public press in connection with other property it had for sale, and complainant, who had been considering the purchase of a rooming house and looking at different propositions throughout the city, seeing the Hannan 'advertisement in the papers, visited the office and made inquiry. This property was talked over with a representative of the agency, and, complainant being favorably impressed by its location, the parties to this contract were brought together.

Complainant and her sister were escorted by the sales agent of the real estate firm to the house. Negotiations resulted in an agreement of purchase and sale for $1,000, followed by complainant making a payment of $500 on the contract, which was drawn in duplicate, and signed by the parties, each receiving a copy. The rental department of the agency looked after the transfer of the lease, taking up that of Mrs. Burns and issuing a new one to complainant for $60 a month, the rent being increased $5 per month because of changes which had been demanded, an archway being put in, bathtub, and some other improvements, at whose request is a matter in dispute. Complainant took possession of the premises on the 2d day of September, 1911. After taking possession of the property complainant defaulted in her contract. It is claimed she did so because she had been deceived and defrauded in the deal, and when proceedings to enforce payment on the contract were threatened by defendant’s agent she filed this bill.

It is stated in the brief of complainant’s counsel that one of the grounds for asking extension of time in which to appeal this case was:

“No opinion of the court filed giving any reasons for the decree of the court, as required by law.”

Counsel says in said brief:

“With the decision of the circuit court there is no law upon the question in this case. The learned court is simply wrong in his conclusion upon the facts. That an infamous fraud has been perpetrated upon this complainant, I submit, cannot be gainsaid upon this record. * * * She appeals to a court of chancery for relief and proves her case, and is turned from out thereof, because the court thinks the representations are merely expressions of opinion and the volume of trade is a personal asset, upon which no relief can be granted; surely this cannot be the law. This coujt knows better. This decision seems to be the result of an unargued case.”

The printed record does not disclose when, if ever, the pleadings, opinion, and decree found therein were filed, but whatever presumptions as to filing are permissible would apply with equal force to all. This record contains an opinion of the trial judge, purporting to be over his signature, “giving reasons for the decree of the court.” In our view of the law applicable to this case it is not necessary to review the reasoning of the opinion further than to note, in passing, that the record discloses testimony to support the conclusions reached by the trial court in his discussion of the facts, and whether or not complainant “proves her case,” and satisfactorily shows that “an infamous fraud has been perpetrated upon her,” is a question upon which honest minds might differ. This result was reached in said opinion:

“I do not believe that such testimony has been adduced in this case as to warrant the court in doing anything except entering a decree dismissing the bill. As to the prayer of the cross-bill, I do not think the court should take cognizance of the prayer for relief. There is an adequate remedy at law”—
in harmony with which a formal decree was signed and entered.

While it is recognized as a general rule that chancery and law courts have, in this State, concurrent jurisdiction in case of fraud, it is now well settled that false representations are a basis for equity jurisdiction, only in those cases where relief cannot be obtained in proceedings at law. Smith v. Walker, 57 Mich. 456 (22 N. W. 267, 24 N. W. 830, 26 N. W. 783); Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209), and numerous cases there cited.

“Relief will be denied to a party who seeks the aid of a court of equity against pending or threatened proceedings at law, where it appears that the matters relied upon are such as if established would constitute a defense in the law action, and where the complainant’s right will be fully protected by a successful defense; that is, where no wrong is threatened beyond the assertion of the legal demand, open as it is to such defense.” 16 Cyc. p. 57.

The fraud alleged in this case relates to a contract for the sale of personal property. The relief asked is a money judgment, or, as an alternative, that the court make a new contract for the parties and decree that defendant give an unconditional bill of sale of the chattels for the money already paid. Neither courts of law or equity can make contracts for litigants. Their powers and scope of action, when called upon to adjudicate between contracting parties, are confined to interpreting contracts the parties have made, awarding money damages, cancellation, or specific performance of such contracts. Complainant was in possession of the property at the time of filing her bill, and obtained an injunction restraining interferencé with her possession pending this litigation. The fraud she alleged was available as a defense in proceedings against her, or in an action by her for damages. We do not think this is a case for equity jurisdiction. As was said in Teft v. Stewart, 31 Mich. 367:

“If the right contended for and carried out by the decree can be maintained, no reason is perceived why, upon the same principle, a party claiming to have been cheated in a horse trade, or in a purchase of any chattels where the amount is sufficient, may not at his election proceed to sue in chancery for damages, and preclude an investigation before a jury.”

In the case at bar the evidence is in sharp conflict on many of the material questions of fact, and there is opportunity for honest argument in favor of the claims of each of the contending parties, making a case particularly adapted to, and well suited for, investigation by a jury, whose peculiar and special function is to decide issues of fact with the parties and their witnesses personally present, to be seen and heard and their truthfulness investigated under circumstances most favorable for a full understanding.

The decree of the circuit court dismissing complainant’s bill is affirmed, with costs, but must be construed, or modified, to be without prejudice to any proceedings at law complainant may desire to take, or to any defense she may desire to make in any proceedings which may be instituted against her by defendant.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Bird; J.

text:
    BARRY v. METZGER MOTOR CAR CO.
    Constitutional Law — Automobiles.
    That portion of the motor vehicle law providing for an absolute liability of the owner for negligence of any person driving the car except in case of theft, is unconstitutional, being a deprivation of property without due process of law. Act No. 318, Pub. Acts 1909, subd. 3, § 10 (2 How. Stat. [2d Ed.] §2496, subd. 3), following Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615).
    Error to Macomb; Smith, J., presiding.
    Submitted April 24, 1913.
    (Docket No. 34.)
    Decided May 28, 1913.
    Case by Thomas Barry against the Metzger Motor Car Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Brennan, Donnelly & Van De Mark (Henry L. Lyster, of counsel), for appellant.

      Silas B. Spier, for appellee.
   Bird; J.

On the night of July 13,1910, plaintiff was driving on the Gratiot road with a horse and cart, on his way from Detroit to Mt. Clemens. As he was nearing Mt. Clemens, one of defendant’s automobiles approached from the rear at a high rate of speed and collided with his cart, throwing him out and severely injuring him. The servant, Garfield Colter, who was driving the car, was a “tester” for defendant. Late in the afternoon of the day of the accident Colter was ordered to take Mr. Everitt, the president of the company, to the Michigan Central station in one of the company’s automobiles standing in front of the factory. He complied with this order, but instead of returning the car at once to the factory, as he was directed to do by Mr. Everitt, he picked up a party of friends and took them on a ride which lasted until after midnight, when the collision occurred. It was made to appear by the defendant that Colter was using the car at the time of the accident without its knowledge or consent, and contrary to the positive instructions of Mr. Everitt, and that he was at the time on no business of the company. This testimony does not seem to be disputed. The plaintiff planted his case on the statute (Act No. 318, Pub. Acts 1909 [2 How. Stat. (2d Ed.) § 2496, sub. 3]), and recovered a judgment in the trial court. The defendant has assigned error in this court; the principal contention being that subdivision 3 of section 10 of the act is unconstitutional and void.

After the verdict was rendered in the trial court, but before the assignments of error were argued in this court, the case of Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615), was decided by this court, holding subdivision 3 of section 10 unconstitutional. Nevertheless counsel urged the constitutionality of the law with much earnestness upon the hearing; and, while we were much impressed with his able and interesting argument, we are of the opinion that Daugherty v. Thomas was rightly decided, and therefore we must hold that this case is ruled by it.

The judgment of the trial court is reversed and no new trial granted.

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


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    L. STARKS CO. v. BIGLER.
    Liens — Accounting—Following Trust Funds.
    Complainant, who charged that defendant in a hill for accounting had appropriated to his own use funds furnished to buy potatoes by complainant, had the burden of showing that he had used the money in improving his real property in order to entitle the complainant to a lien on the realty, and where defendant denied so employing the funds entrusted to him but testified as to the source from which he had procured them, in the absence of evidence to overcome his claim, the court rightly denied a lien in favor of complainant.
    Appeal from Oceana; Sessions, J., presiding.
    Submitted April 21, 1913.
    (Docket No. 194.)
    Decided May 28, 1913.

      Bill by the L. Starks Company against Clark O. Bigler for an accounting. From a decree for complainant, denying part of the relief claimed, complainant appeals.
    Affirmed.

      Hall & Grillaré, for complainant.

      Cross, Vanderwerp, Foote & Ross, for defendant.
   Ostrander, J.

The bill was filed for an accounting, and, besides claiming that complainant furnished defendant considerable money for the purchase of potatoes, which was not accounted for, charges that some of the money was used by the defendant in the construction of certain buildings, upon which, and upon the land they are built upon, complainant prays it may be decreed to have a lien. After a hearing upon the merits the court found that defendant is indebted to complainant for $3,832.99, and that the proofs do not sustain the right to a lien. Decree was entered accordingly. Complainant has appealed, questioning the court’s conclusion that it is not entitled to a lien. Defendant has not appealed, and no brief has been filed in this court in his behalf.

What relief should have been granted, in case complainant had shown that its funds were actually used by defendant to pay for the property upon which the lien is claimed, we need not determine. We agree with the court below that upon this subject the testimony does not support complainant’s theory. The case of Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554), relied upon by complainant, is, in its facts, very much unlike the case at bar. In that case defendant declined to offer any explanation for his possession of a sum of money claimed by his employer to have been stolen from him. Defendant’s circumstances, wages, and expenses negatived his legitimate possession of such a sum of money. A small part of it was marked money; his taking which was conclusively established. In the case at bar defendant tells where and how he obtained the funds. His story, if true, might have been corroborated, and in most respects was not; but, having made his statement, it was presumably open to complainant to dispute it.

We affirm the decree, with costs of this court to the appellee.

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


text:
    LEDER v. NATIONAL UNION FIRE INSURANCE CO.
    1. Appeal and Error — Saving Questions eor Review — Evidence.
    A mere statement of the trial court that he did not consider a witness competent as an expert on value, not passing on any particular question or ruling out testimony offered, was not error of a reversible character, since it did not affect any right of defendant.
    2. Same — Exceptions.
    Assignments of error not based on any exception or relating to motions to strike out testimony, the grounds or reasons for which were not mentioned on the trial, present no reviewable questions.
    3. Evidence — Insurance—Loss—Value.
    In an action on an insurance policy the value of personal property destroyed and covered by the policy may be shown, if no market exists, by the evidence of the pertinent facts usually taken into consideration by buyer or seller, such as original cost (if it was bought in good faith), cost of duplication, age, use to which it has been put, and the condition of the property at the time in question: opinions of witnesses based on facts disclosed are competent.
    4. Insurance — Trial—Defenses.
    Wbere defendant set up in defense of a suit on a policy of insurance, intentional and wilful overvaluation of the property on the part of plaintiff and asked the court to instruct the jury that intentional and wilful misrepresentation would avoid the contract, no ground was presented for the claim that the court should have charged that an innocent overvaluation would avoid the policy, and having made no such request to charge, the defendant could not review the point on error.
    Error to Bay; Collins, J.
    Submitted April 17, 1913.
    (Docket No. 82.)
    Decided May 28, 1913.
    Assumpsit by John Leder against the National Union Fire Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Asher L. Cornelius, for appellant.

      E. E. AnneJce and W. B. Henry, for appellee.
   Ostrander, J.

In an action upon a policy of fire insurance (Michigan standard), which insured a gasoline launch and a boathouse, defendant gave notice with its plea that it would show in its defense: (1) That the insurance was procured by reason of false and fraudulent representations of plaintiff as to the value of the property, he knowing the representations to be false, and intending, in making them, to deceive defendant; (2) that in submitting proofs of loss plaintiff stated under oath that the launch was worth $600 at the time of the fire, when in fact it was worth less than $200; (3) that plaintiff set the fire which destroyed the property with the purpose of defrauding the defendant. The matter of special defense last stated was abandoned. The value of the property at the time of the fire (it was a total loss) was in dispute, and upon this issue, and those suggested by the notice of special defenses, testimony was presented to the court and a jury.

In answer to special questions, the jury found that, when he applied for the insurance, the plaintiff represented to the defendant’s agent that the launch was worth $600 and the boathouse $200, and that the said agent issued and delivered the policy of insurance sued upon, relying upon plaintiff’s said statements. By the policy, indemnity was secured against loss by fire upon the boat for an amount not exceeding $550, and on the boathouse $100, not exceeding, either, the actual cash value of the property destroyed. The jury found the cash value of the insured property to be $450, and there was a verdict and judgment in favor of plaintiff for that sum. A motion for a new trial, one ground of which was that the verdict was against the weight of the evidence, was overruled.

The policy of‘insurance was issued September 29, 1910, and the fire occurred January 4, 1911. The boat was purchased by plaintiff from an owner who had himself bought it four or five years before the trial, not from the manufacturers, but from persons who then owned it. The hull was old-fashioned, of a type formerly, but not in late years, approved. Plaintiff paid $200 for the boat and its equipment and the boathouse, and agreed with the vendor that he might for three years occasionally, and as he wished to do so, have the use of the boat. Plaintiff spent little on the boat and had considerable difficulty with it before laying it up for the winter. To prove its value, the plaintiff introduced testimony tending to prove the size of the boat, the kind of engine and other equipment; that it was in good condition in September, 1910; that he was offered $600 for it; what it would cost to build the hull; what the engine was worth in September, Í910 — all this without objection and by the testimony of - the first witness called for the plaintiff. The wife of plaintiff’s vendor, who said she was really the one who made the sale, testified over objection:

“We just asked Mr. Leder $500 for the boat and boathouse. We finally sold it for $200 and the use of it for three years whenever we wanted it. The sale would not have gone through had it not been for that provision. When we sold the boat to Mr. Leder it was in A 1 condition.”

Defendant moved to strike out that part of the answer which related to the condition of the boat. The motion was overruled. The witness was asked, “After you returned in the summer, was your husband then sick?” and replied: “That I can’t remember. He is always supposed to be sick from the 21st of August, until frost time, and very seldom able to run. a boat.” Defendant moved to strike out, assigning no reason.

A witness for defendant being interrogated, the following occurred:

“Are you familiar with the value of boathouses along the river there at that point?
“A. Well, I have built some buildings myself; I never built a boathouse.
“Q. Do you know what boathouses have sold for along there; what people have paid in buying them?
“A. Yes.
“Mr. Anneke: I object to that unless there is some similarity of size or kind.
“Mr. Cornelius: Well, the ordinary size of boathouse.
“The Court: This witness is not a carpenter and he had not handled these things himself personally. I do not think he is competent on the question of value of a boathouse.
“Mr. Cornelius: Well, we will withdraw that. I will ask you this question and have the court overrule it and take an exception.
“The Court: You have a ruling and you may have an exception.
“Mr. Cornelius: Give me an exception to the ruling of the court.”

Of the first exception it is said in argument that the witness could not state what she asked for the boat; that “what the final bargain resulted in is the important part.” No reason was given for the objections upon which the second and third exceptions are based. As to the last exception referred to, no right of defendant was affected. The witness had answered the last interrogatory put to him. No question was pending. The objection which was made for plaintiff did not call for or suggest the ruling. The court may have anticipated counsel, but reversible error must be made out, not merely suspected or assumed.

Assignment of error No. 11 is not based upon an exception.

Assignment No. 2 is based upon the following:

“Q. What would it be worth to place an engine like that in the hull V
“Mr. Cornelius: To that I object, to that line of questioning; the sole question is the value of the property at the time the fire occurred.
“The Court: That is true, but the elements that go to make up the-value can be proved separately. (To which ruling defendant’s counsel duly excepted.) ”

It does not appear that second-hand boats of the size, style, and equipment of the particular boat had a market value in the community, and does appear that second-hand gasoline boats were sold, perhaps frequently, there. In such cases the value of particular personal property at the particular time being in dispute, and being a fact to be found by the jury, such pertinent facts as are usually inquired about and taken into consideration by the ordinary buyer and seller of similar property may be shown. They are not conclusive, but are intended to aid the jury. The original cost, if purchased in good faith, the present cost of duplication, the age and the use to which it has been put, the condition of the property at the time at which the value is to be fixed, may be inquired about. Opinions of witnesses, based upon the facts disclosed, may be taken. The rule of evidence is well established and, so far as the rulings of the trial court have been properly questioned, does not appear to have been violated.

We are not satisfied that the verdict is so clearly against the weight of the evidence that this court can interfere to set it aside.

The remaining questions arise upon the facts found by the jury and upon the charge of the court. They must .be considered with the instructions asked for by defendant and the notice of special defenses. The instructions asked for were the following:

“(1) Lines 7 and 8 of the policy upon which this suit is based provide as follows:
“ ‘That this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject-matter thereof.’
“If you should find from the evidence that the insured in applying for said insurance concealed or misrepresented any material fact or circumstance concerning the insurance or the subject-matter thereof, and that by reason and because of such concealment or misrepresentations defendant issued said policy of insurance, then in that case even I instruct you that plaintiff could not recover on such policy, and your verdict must be, ‘No cause of action.’
“(2) Gentlemen of the jury, one of the issues in this cause is whether or not John Leder, the plaintiff herein, at the time he applied for the policy of insurance upon which this action is based, represented to Albert Buchanan, defendant’s agent, that the launch Summer Girl was worth $600 and that the boathouse insured by such policy was worth $200. If you should believe from all the evidence that such representations were made by the said Leder to the said Buchanan, and that they were made falsely for the purpose of deceiving the said Buchanan, and that the said Leder, at the time they were made, knew they were false, and if you should further find the fact to be that said launch was not worth $600, or substantially that sum, and that said boathouse was not worth $200, or substantially that sum, then in that event I instruct you that the plaintiff, in procuring said policy, would be guilty of such fraud as would avoid the policy of insurance, and your verdict must be, ‘No cause of action/ ”

The requested instructions were given, and in deciding the motion for a new trial the court said, among other things:

“The verdict of the jury assessed the loss at $450 by its verdict saying, in substance, that that was the value of the property at the time of the fire. Upon this point the defendant makes certain contentions by reasons 4, 5, 6, and 7, which will now receive attention; the intention being clearly to cover the points involved. The defendant now contends, among other things, that this made a substantial overvaluation of the property, and that such overvaluation of the property avoided the policy, regardless of the motives of the insured. Whether this statement, which is seriously contended for, is the law, the defendant, by propounding the request above given and having that request given by the court, made a different rule of law in this case. The defendant, by tendering and by the giving of that request, authorized the jury to find that, even if there was a substantial overvaluation, they were authorized to find for the plaintiff unless the representations made by Leder to Buchanan were made falsely for the purpose of deceiving Buchanan, and that at the time Leder made the same he knew they were false.
“It may be conceded for the purposes in hand that there was a substantial overvaluation, in fact; that the statements as to overvaluation were, in fact, made by plaintiff to Buchanan, and that the statements were false in fact, and that the jury reached this conclusion; but their general verdict shows that they also concluded that the said representations made by plaintiff to Buchanan were not made falsely for the purpose of deceiving Buchanan, and that Leder did not know that they were false when made. It follows from this situation that the general verdict of the jury is not opposed to the answers to the special questions and it appears to me that the general verdict and the answers to the special questions did not require or logically lead up to a verdict of no cause of action. As it now appears, interrogatories 3 and 5, submitted to the jury, were immaterial unless there had been coupled with them a further interrogatory calling for the conclusions of the jury upon the other point above indicated, involved in the quoted request of the defendant given on his behalf. Defendant’s request above quoted, as given, presents the theory advanced in the notice of defense attached to the defendant’s plea. The notice attached to defendant’s plea does not set out as a defense an overvaluation at the time of the insurance, not a fraudulent overvaluation, and the theory advanced in the argument on this motion, to the effect that an unintentional material overvaluation would defeat the policy, is not stated in defendant’s plea and was not brought up on the trial of the cause.”

It is said in defendant’s reply brief:

“There is a radical difference between the instruction upon which said error is assigned and the one requested by appellant. The instruction requested by appellant, reduced to its simplest form, states that a misrepresentation as to the value of the property which was made wilfully, for the purpose of deceiving the defendant, would avoid the policy. This instruction does not state that all of these facts must be present in order that the policy shall be avoided. It only goes to the length of stating that if those elements are found in connection with the misrepresentation, the policy will be thereby avoided. On the other hand, the instruction given by the court stated that not only would such misrepresentation as was described in appellant’s said instruction avoid the policy, but that all of such elements were essential in order to work a forfeiture of the policy. The fact that the defendant stated in said instruction that intentional and wilful misrepresentation would avoid the policy is by no means equivalent to saying, as the court stated in the instruction complained of, that no other misrepresentation, except that made wilfully and fraudulently, would avoid the policy. This instruction requested by appellant presents appellant’s view of the law of the case in event the jury should find that the representations were made wilfully and intentionally with intent to deceive. Defendant’s instruction No. 1, requested by defendant and given by the court, was intended to cover all other misrepresentations, including constructive fraud. It will therefore be seen that instructions were requested by the defendant on both the intentional and the nonintentional theories as to plaintiff’s representations, and defendant is certainly not estopped to urge at this time that an unintentional misrepresentation will avoid the policy.”

This argument loses sight of the requirements of Circuit Court Rule 7, subd. “d” of the special defenses pleaded, and of the reasoning of the trial court used in denying the motion for a new trial. If an instruction was desired to the effect that an overvaluation of the property, innocently made, would avoid the policy, such a request should have been framed and presented. Considered together and with reference to the order in which they were presented, the requests preferred and given seem to negative the idea that counsel for defendant relied upon the rule of law now contended for. Usually counsel are satisfied when the trial court charges the jury as requested and in the language of the requests preferred.

We do not find reversible error, and therefore affirm the judgment.

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