text:
    CHURCHILL v. HOWE.
    Liens — Trusts—Resulting Trust — Equity.
    Where complainant loaned money to defendants, in reliance upon a deposit in escrow of a deed with complainant, who had charge of the collection of the purchase price to be paid for the property conveyed, and defendants, dealing with the grantee direct, obtained the payment to them of nearly all the amount due, which they invested in real property and later traded the place for another, there was no violation of trust shown which would entitle complainant to a lien upon the realty obtained by the defendants; nor did the transaction fall within the exception to section 8837, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10677), abolishing resulting trusts except in case of violated trust or wrongfully taking title to lands in the name of the agent or trustee.

      Appeal from Emmet; Mayne, J.
    Submitted January 8, 1914.
    (Docket No. 24.)
    Decided April 7, 1914.
    Bill by Charles L. Churchill against George Howe and Ella Howe for the enforcement of an equitable lien on real property. From a decree for complainant, defendants appeal.
    Reversed

      A. S. Hinds, for complainant.

      Halstead & Halstead, for defendants.
    The bill in this case is filed for the purpose of having the sum of $616.55 declared to be a lien upon certain real estate now owned by defendants, as tenants by the entireties, and, in case of nonpayment of said sum, for the sale of said premises. The facts giving rise to the litigation are briefly as follows: Prior to 1908 the two defendants owned a farm in Oceana county which they sold to one John W. Jackson for the sum of $4,000. Some defects appearing in the title, Jackson refused to pay the full purchase price until they were remedied, whereupon the deed was deposited with the complainant in escrow. Mr. Jackson paid various amounts, including a mortgage, aggregating $2,125. On April 21, 1908, there remained unpaid on account of the deed $1,123.25. Prior to this the defendant George Howe wrote several letters to the complainant, complaining about Jackson’s delay in paying the balance of the purchase price, and asserting that he was badly in need of money. On April 3, 1908, he wrote as follows:
    “I do need some money, as the man that I bought of wants to go west, and is waiting for me to settle. Now, if you can advance me $680, and leave the rest until it’s settled, I can get along all right, and not get into any trouble here. I will be very thankful indeed if you will do that.”

      Again on April 16th, he wrote:
    “Some two weeks ago I wrote you for some money at your suggestion. Now, I am very liable to lose what I have put into this place, $750, if I do not get this money from you. The people I bought of are living with me at my expense, and I can’t see why my money is held by you, and is not paid. Now, I want to know what to expect from you by return mail. This has been a trouble and expense to me all winter. If you had done as I wanted you to do, and paid Mr. Bell $25 for a quitclaim deed, I would have been money ahead. Now, Mr. Churchill, I have got to have this money right away. I would rather you would pay this $25 to Geo. Bell, and settle the matter up at once.”
    Following this, and on April 21st, complainant sent to defendant George Howe a draft for $750fwhich was cashed by defendant on April 27, 1908, and the proceeds thereof paid upon the property he was then purchasing. Later, and on February 17, 1910, defendants traded this land for the land now owned by them described in the bill of complaint upon which it is sought to attach a lien. It is conceded by defendants’ counsel that the exchange of properties has no effect upon the rights of complainant; that is, if complainant was entitled to a lien upon the property first purchased, he has the same right as to this property. After receiving the $750 from the complainant, defendant Howe corresponded with Mr. Jackson/ personally urging him to pay the amount still due upon the escrow deed directly to him, and on February 2, 1909, Jackson sent his check to the defendant Howe for $900. Instead of reimbursing the complainant out of the moneys received upon said check, defendants appropriated it to their own use. After the $900 was paid, there still remained $133.45 unpaid on the escrow deed. As soon as complainant learned that Jackson had paid this sum directly to the defendants, he sent his attorney to them and demanded a settlement. Although admitting that they owed the amount of money claimed, they declined to secure its repayment by executing a mortgage on the property or otherwise. Complainant thereupon notified Jackson to pay no more money to the defendants, and he did pay the $133.45 to the complainant, thus reducing the $750 loan to $616.55, the amount for which the lien is claimed. Insolvency of the defendants is charged in the bill. Defendants caused their appearance to be entered in the proceeding; but neither answered nor demurred. After a hearing in open court, in the course of which the facts as set out in the bill were proven by the complainant, the court below entered a decree declaring the said sum to be a lien upon the lands described in the bill, and now owned and occupied by the defendants, ordering repayment, and, in default thereof, the sale of the property. From this decree, defendants appeal.
   Brooke, J.

(after stating the facts). It is the claim of counsel for the appellants that assuming, as we must, the truth of all the allegations contained in the bill of complaint, no case is here made out for equitable relief. Uses and trusts are abolished by section, 8829, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10669), except as they are saved by statutory enactment. Section 8837 provides that section 8835 shall not extend to cases where the alienee named in the conveyance (1) shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or (2) when such alienee, in violation of some trust, shall have purchased the lands so conveyed, with money belonging to another person. The claim of the complainant is that this case falls within the terms of the exception stated in the latter part of section 8837 (4 How. Stat. [2d Ed.] § 10677); that is, that the defendants in this case in violation of some trust purchased the lands described in the bill of complaint, or at least those which were exchanged for said lands. We find ourselves unable to agree with complainant’s position. It would seem to be quite obvious that the title to the land first purchased was taken in the names of the defendants with the knowledge of the complainant, for the letters indicate that the $750 was advanced for the purpose of aiding defendants to complete the purchase of those lands.

We are unable to discern under the admitted statement of facts any trust violated by the defendants in the purchase of the first lands. The money was advanced by the complainant to the defendants' for that purpose. It is true that complainant believed that in advancing said money he would be able to reimburse himself from the moneys to be paid by Jackson on the escrow deed. He, however, made no conditions with the defendants when the money was paid over to them, and in using it as they did, and acquiring the title to the property in question in their own names, they certainly violated no trust. It is not apparent nor inferable from their acts that at that time they even entertained a disposition to defraud the complainant. Their fraudulent conduct commenced when later, through correspondence, they induced Jackson to pay the $900 directly to them, disregarding their obligation to the bank. While their conduct in the premises is concededly dishonest, disreputable, and fraudulent, we are of opinion that under the admitted facts they violated no trust and committed no fraud at the time the purchase of the lands was made. Thompson v. Marley, 102 Mich. 476 (60 N. W. 976); Wheeler v. Reynolds, 66 N. Y. 227.

The decree of the court below will be reversed and the bill of complaint dismissed, but without costs.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CONRADSEN v. OSCEOLA CONSOLIDATED MINING CO.
    Master and Servant — Negligence—Warning—Mines and Mining — Duty to Notify Servant óf Danger.
    Where plaintiff was one of a crew which was sinking a winze in a copper mine, and two of the men worked in the day shift and two at night, and the duty of determining whether or not blasts consisting of several charges of dynamite had fully exploded rested upon the miners, and where it was impossible to tell from the number of explosions, which often occurred simultaneously, whether or not some of the charges- remained unexploded, and it appeared from the evidence that the day shift, which preceded plaintiff at the work, had drilled seven holes and had heard two blasts, and they made an examination and believed that all the charges had been fired, but were mistaken, and plaintiff sustained injuries after making an examination of the condition in the pit, and it was not shown what information, in addition to that which plaintiff was able to learn from inspection, could have been given him by the preceding shift, which would have apprised him of the danger, or that more skillful inspectors could have been employed, a verdict should have been directed for the defendant mining corporation.

    Error to Houghton; O’Brien, J.
    Submitted January 8, 1914.
    (Docket No. 18.)
    Decided April 7, 1914.
    Case by Helmer Conradsen against the Osceola Consolidated Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Alim F. Rees (Rees, Robinson & Petermann, of counsel), for appellant.

      N. A. Ruonavaara (A. W. Kerr, of counsel), for appellee.

       As to servant’s assumption of risk of unexpected explosion, see 19 L. R. A. (N. S.) 360.

   Ostrander, J.

While it is alleged in the declaration that it was defendant’s duty, among others, to have adopted, promulgated, and vigilantly enforced a rule for notifying miners of the condition in which the place in which they were required to work was left by miners working in the same place, on another shift, the case as made and as it was submitted to the jury, and the legal propositions presented in this court, may be gathered from that portion of the charge of the court which is here set out:

“The plaintiff has brought this suit to recover damages for personal injuries which he received while in the employ of the defendant mining company on or about the 16th day of February, 1911. He claims, and has introduced evidence tending to show: That he was working as a miner sinking a certain winze from the twenty-second level to the twenty-third level of defendant’s South Kearsarge mine. That there were two shifts of men working company account and not .on contract, on opposite shifts, in and about the sinking of said winze. That the plaintiff and his partner worked on one shift, and that on the other shift his opposite partners, consisting of two miners, worked in and about the work of sinking this winze downward along the vein. That, on the week when plaintiff was injured, he was working with his partner on the night shift, as I recollect the evidence. That on the preceding shift, which was the day shift, his partners on the opposite shift worked taking up a sink, as it has been called in the evidence, which is done by drilling holes in the solid ground or face of the rock at the bottom of the winze and blasting the same for the purpose of taking out a cut or taking up a sink in order to push the winze further downward. That, on the said day shift, seven holes were drilled by the opposite partners of the plaintiff, and that at the end of the shift the miners working on such shift, and who were known in the evidence as the opposite partners, blasted the seven holes. That, in and about the business of blasting holes in that mine, dynamite, fuse, and caps are used. That the fuses by which the holes are fired or exploded are usually, as in this place and at that time, cut in different lengths for the purpose of exploding the holes in succession. That the holes are then exploded or blasted by firing the fuse, which explodes a primer or cap contained in the dynamite or in one of the sticks, and is supposed to explode the charge of dynamite. That sometimes as many reports or blasts are heard as the number of holes drilled and attempted to be blasted, and sometimes a less number of reports are heard, varying from one or two to any number less than the full number of blasts or attempts at blasting holes. The plaintiff further claims, and has introduced evidence tending to show, that, when a less number of reports are heard in blasting under such conditions as existed in that winze, it was the duty of the miners so doing the blasting to so report the fact, that there were a less number of explosions or reports heard by them, to the men coming on to work on the succeeding shift, or to the shift boss, so that the latter could see that timely warning and notice thereof would be given to the succeeding shift unless such miners so doing the blasting had satisfied themselves that there were no missed holes or unexploded blast, by means of a careful inspection, investigation, or examination of the premises subsequent to the firing of the holes.
“The plaintiff claims: That, on the day shift immediately preceding the night of his injuries, his opposite partners drilled and attempted to blast seven holes in making a sink in the bottom of the winze where plaintiff was employed. That, when said blast was made, the miners who were doing the blasting heard only two reports. That such miners, after a reasonable time had expired, looked over and investigated said winze, but were not able to satisfy themselves that either there was or that there was not a missed hole; it being -the claim of the defendant, however, that such miners did satisfy themselves that there were no missed holes. That thereupon it became the duty of such miners to report that fact that they heard only two reports to the plaintiff, or to the shift boss, so that it would be eventually reported to the plaintiff, who would and did come to work on the succeeding shift, of the possible existence of missed holes or unexploded powder in the bottom of that winze. • That the plaintiff’s partners on the other shift (that is, the miners who were doing the blasting, as aforesaid) failed to notify him or send him word or warning to the effect that only two explosions were heard, and that plaintiff went to his place of work without any knowledge of the existence of any unexploded dynamite in the bottom of the winze, and while exercising due and ordinary care for his own safety, and without having assumed the risk, he and his partner drilled into unexploded dynamite then and there in the bottom of the winze, which thereby caused an explosion, as a result of which the plaintiff received the injuries of which he complains in this case.
“That is substantially the claims of the plaintiff in this case. And, furthermore, the plaintiff claims: That his injuries so received are a result of negligence on the part of the men working on the opposite shift in failing to notify him that only two reports were heard, and failing to warn him of the possibility of the existence of unexploded dynamite in the winze, and that the defendant is responsible for the negligence of the miners on the opposite shift. That there was no want of ordinary care on the part of the plaintiff which contributed proximately to his injuries, and that the injuries which' resulted to him were not assumed by him and were not and are not one of the inherent risks of the service which he assumed in entering upon and continuing in the employment of the defendant.
“On the other hand, the defendant claims: That there was no negligence on the part of the defendant. That the miners on the other shift satisfied themselves, from an examination and investigation of the situation in the bottom of the winze after the blasting, on the day shift, that there was no missed hole or unexploded dynamite in the winze. That the inspection and investigation which they made was the usual, reasonable, and ordinary investigation that would be made under such conditions, and that by reason thereof the miners working on the day shift became perfectly satisfied that there was no missed hole in that winze or any unexploded dynamite, and that therefore there was no occasion on their part and no duty to warn the partners who would succeed them, the plaintiff and his partner, or to warn the shift boss, of the existence or possible existence of any unexploded dynamite in the bottom of the winze.
“The defendant denies that it was the custom under the conditions which obtained in that winze, and especially in making a sink and taking up á sink, as they express it, to depend upon the number of reports to determine whether there was any unexploded dynamite left after the blasting, and that such number of blasts was no evidence either one way or the other as to what had occurred with reference to missed holes or the existence of unexploded dynamite.
“The defendant further claims that the miners,' even if they did neglect their duty in this case, are fellow-servants of the plaintiff, for whose neglect they are not responsible in this case. The defendant also claims that the risks, under the circumstances of this case, of unexploded dynamite in the winze, from which the plaintiff was injured, was one of the inherent and ordinary risks of the service which he assumed and entered upon when he went into the employment of the defendant,' and for which the defendant in law is not responsible. The defendant also claims that, if there was any negligence on the part of the defendant or upon the part of any one for whom the defendant is responsible, there was also negligence on the part of the plaintiff himself in not making a sufficient examination- of the premises in the bottom of the winze before he went to work, in order to determine for himself whether or not there was any missed holes or unexploded dynamite in the bottom of that winze, and the defendant therefore denies any liability to the plaintiff, and claims that it should recover a verdict in this case, by reason of any and all of those claims.
“Now, you have heard, gentlemen of the jury, the claims of the parties as near as the court can recollect them, and the first question for you to determine will. be whether or not there is any negligence on the part of the defendant which caused the injuries to the plaintiff in this case. Negligence is usually defined as the failure to exercise ordinary care under the circumstances. That is, the failure to exercise such a degree of care for the safety of another as a reasonably prudent person would have exercised under like conditions and circumstances.
“Now, as you have already heard, the claim of negligence made by the plaintiff in this case is that the defendant has failed to warn and notify the plaintiff of the existence or possible existence of missed holes or unexploded dynamite in the bottom of that winze before he went to work there on that night shift that he was injured. The plaintiff claims it was the duty of the defendant to have warned him of its existence, if you have found that it did exist, of missed holes or unexploded dynamite in the bottom of the winze; and the plaintiff claims it was the custom in that mine for men who were going to work to rely upon the opposite shift, the men who had worked upon the preceding shift, to give that warning, if the men working on the preceding shift had reasonable opportunity to become aware that missed holes or unexploded dynamite was existing, or liable to exist, in the premises where the succeeding shift was to come on to work, and that that custom was applicable to this case and to the circumstances of this case; and the plaintiff further claims that, when the number of reports were not heard equivalent to the number of holes attempted to be exploded, that was evidence from which the men doing the blasting should have determined that there was a possibility of missed holes, and the fact that a less number of explosions were heard than the number of holes attempted to be blasted should have been brought home to the knowledge of the men on the succeeding shift, and that that custom has application to the facts in this case.
“I say to you, gentlemen, if you find by a fair preponderance of the evidence that such custom existed, then it will be your duty to say that the defendant was guilty of negligence in failing to give the plaintiff warning that there was a possibility of missed holes or unexploded dynamite in that winze prior to his going to work on that night shift, and it makes no difference whether it was the duty of the men working on the preceding shift to give that warning, or the shift boss. He was not a fellow-servant of the plaintiff; he was an agent of the defendant, and for whose neglect in that regard the defendant would be liable in this case; and it will be for you to determine whether there was such a custom or not prevailing in that mine. It is denied by the defendant, and you have to find by a fair preponderance of the evidence, as I outlined it to you and as claimed by the plaintiff, whether it existed, and that it was applicable to the conditions pertaining in that winze. It would not make any difference whether the custom existed in other conditions in the mine, if it did not exist and was not applicable to the conditions prevailing in that winze at the time the blasting was done and at the time the plaintiff went to work succeeding the blasting on the next shift. If you find that such custom existed by a fair preponderance of the evidence, then proceed to the next step in the case. If you do not find such custom, then I charge you it is your duty to render a verdict for the defendant; you need not consider any other question in the case. If you do find that such custom existed, then you may proceed to determine whether or not, if that warning had been given, the plaintiff in this case would have been in any better position. In other words, would it have prevented the injury which occurred? Would it have prevented the explosion in the winze at that time? If you further find that, if the plaintiff had that warning and knew that there was a less number of blasts reported than had attempted to be exploded, it would have prevented his injuries, if you find that to be a fact, then, gentlemen of the jury, you can say, and it will be your duty to determine, then, as a matter of fact, that the negligence of the defendant was the proximate cause of the injury to the plaintiff; and if you have not so determined that, even had such a custom existed, it would have done the plaintiff any good had he got that notice, then you should find for the defendant.”

The jury returned a verdict for plaintiff, upon which judgment was entered. Defendant at the close of plaintiff’s proofs, and when all proofs were concluded, asked for a peremptory instruction in its favor. The grounds of the motion were: (1) There is no proof of the custom or duty relied on by plaintiff. There is no proof of any negligent fault or failure of the miners who worked on the opposite shift with respect to any duty or custom. (2) Assuming there was a duty resting upon the miners in the opposite shift and a default on their part, it was the fault of fellow-servants of plaintiff.

Errors are assigned which raise other questions, but the argument of counsel for appellant is directed principally to the propositions just stated. On the other hand, after a quotation of testimony from the record, counsel for appellee admirably and concisely state their position as follows:

“We cite this testimony merely for the purpose of showing that at least there was some evidence before the court and before the jury which tended to show that there was a custom that it was the only means of protection furnished the plaintiff or people in a like situation; that this was known, or must have been known, to the defendant; and that it was evidence upon which a jury could base its verdict, and evidence which it is the duty of the jury to pass upon under the proper instructions of the court. It cannot be brushed aside merely with the statement that there is no evidence in the case.
“There was undoubtedly some testimony in the case showing the practice or custom among the miners with regard to submitting information relative to the conditions of the missed holes, and so on. As long as the defendant required work of the extremely hazardous character of that performed by the plaintiff in this case, and did not choose to provide a system of rules and a system of inspection looking to the protection of its men, but acquiesced in the custom or practice, loose as it might be, which the men themselves had established, it is bound by that custom. It cannot, because it failed to provide a more perfect method than it had permitted the men to work, out for themselves, be heard to say that they are absolved from all duty because the men did work out some system, though a crude one.
“There is hardly any ground for argument that the defendant company owed the plaintiff the duty to warn him of the latent danger in the place in which he was to work. If there had been any doubt on this ground, it was settled in the case of Panela v. Castile Mining Co., opinion dated December 20, 1913 [177 Mich. 669]. A reading of that opinion renders the citation of other authorities on this proposition unnecessary.
“The appellant’s second contention, viz., that the negligence in this case, if any is to be imputed to any one, was that of a fellowTservant, is completely disposed of by the case of Panela v. Castile Mining Co. The duty claimed by the plaintiff in the case at bar is exactly the duty placed upon the shift boss in the case of Panela v. Castile Mining Co., and it is there held by the court that the duty to give this warning was the nondelegable duty of the master. * * *
“It was held in Panela v. Mining Co., 165 Mich. 336 [130.N. W. 689], that it was the duty of the defendant to warn plaintiff if the members of another crew left explosives in the shaft. The court said:
“‘All crews used explosives. It was the duty of defendant to notify plaintiff if the members of another crew left explosives in the shaft, because, if such notification was not given, there would exist an unknown, and perhaps undiscoverahle, hazard to which plaintiff should not he exposed. This is the reasonable meaning.’ ”

We are referred by appellee also to Shannon v. Mining Co., 24 Wash. 119 (64 Pac. 169) ; McMillan v. Mining Co., 32 Wash. 579 (73 Pac. 685, 98 Am. St. Rep. 908) ; Blaisdell v. Paper Co., 75 N. H. 497 (77 Atl. 485, 139 Am. St. Rep. 735) ; Coffeyville, etc., Tile Co. v. Shanks, 69 Kan. 306 (76 Pac. 856). The case of Panela v. Mining Co., reported in 165 Mich. 329 (130 N. W. 686, 144 N. W. 528), is not decisive of the case at bar. The case was here first on error to review an order sustaining a demurrer to. the declaration, and we found in it averments sufficient in form and substance to require the admission of testimony. In an analysis of the language employed in the declaration, the issues presented were stated. No rule of law affecting the duty of the defendant was announced, and the last sentence of the quotation from the opinion, found in appellee’s brief and above set out, does not appear in the opinion. What the court said was, “This is the reasonable meaning,” referring to the language of the declaration, and it did not say, as counsel have made it appear, “This is the general rule.” Upon the second appearance of the case in this court, after a trial in the court below, where a verdict for defendant had been directed, there was presented the question whether, viewing the testimony in a light most favorable to plaintiff, there were issues of fact for a jury. A statement of facts is incorporated in the opinion, and among them the one that:

“The duty of so warning them [the men] was imposed by defendant on the foreman of each crew. It was customary to so give such warning where there were several crews working at the same place.”

In other respects, the facts which in that case the testimony offered by the plaintiff tended to prove were vitally different from the testimony offered in the case at bar. And it was not decided that the master owed to the miners the nondelegable duty to warn them of unexploded dynamite left in the mine by fellow miners working on another shift. It is true that four of the justices, resting the duty upon the doctrine of the rule of safe place, were of opinion that it was nondelegable. But only four of the justices agreed to the conclusion. Nor are the other cases cited by appellee controlling here, as an examination of them will discover.

The facts shown by the record are simple, and not disputed, and, briefly stated, they are as follows: Four experienced miners were employed by defendant in sinking a winze, 4 by 4% or 5 feet in size, in rock. Two of them worked on the day, and two on the night, shift. These men did the drilling, blasting, and cleaning out of the winze as they proceeded. They had been at the particular work for some weeks, and had proceeded more than 30 feet into the rock. Having squared up the sides and leveled the floor, the miners on the day shift had drilled in the rock 7 holes from 5 to 6 feet in length and an inch and a half in diameter. One of these holes was substantially in the center of a circle made by the other 6; the diameter of the circle being perhaps 14 or 15 inches. The center hole was drilled vertically into the rock, the others at an angle; the rock within the drill holes being roughly in form a cone. That is, in making the six holes, the drills were so directed as to gradually approach the center of the circle; one hole sometimes intersecting another or others. Into the seven drill holes dynamite was introduced, the fuses lighted, the men left the pit, and the action of the explosion, if the desired result was accomplished, was to break up, so that it could be removed, the rock inside the drill holes.

Thereafter drilling and blasting proceeded both from above and from the inside of the opening thus made until the rock inside the walls of the winze had been removed. In this way the process was repeated. But while seven caps and seven fuses were used, one to each drill hole, and were cut and fired in such a way as if further removed from each other, to produce a series of explosions, the charges of dynamite were so close to each other that in fact one explosion was all that sometimes could be heard, two or more at other times. The fact that a less number than seven explosions could be counted was not evidence that any charge remained unexploded. All of these miners knew this. Sometimes, and it was true on the particular occasion, the explosion will break up the rock inside the circle of drill holes, but will not lift or blow it out of the hole. It will be, and in this case it was, left, except for a few inches at the collar, or stop, so closely packed that another blast was required to loosen it. Whether, in such a case, below the surface of what remained in the hole there is unexploded dynamite may and may not be discoverable. Sometimes, perhaps most of the time, the results of a blast were left in the pit to be cleaned out by the men in the oncoming shift. They take conditions as they find them, with such warning as the outgoing shift may leave for them, make such examination as they choose, and go on with the work. In short, the miners are the men upon whom rests the duty to do all that is required to be done about the matter. It does not appear that more skillful inspectors can be employed. Upon the particular occasion the miners who set off the blast went back into the pit, after hearing two explosions, made an examination, satisfied themselves that all of the charges had exploded, and quit work. They were mistaken. But it does not appear that any one could have been more certain. The plaintiff and his companion, coming' to work, saw the conditions. They did not know whether the other miners had been able to hear one or more explosions. They could see and understand everything else that the others could have told them. They knew how the drilling had been done; they saw the hole plugged with material; they knew what such examination as could be made disclosed. They had precisely the same information that the miners on the outgoing shift had, except the information that but two explosions had been heard. But that information, as has been stated, would not be evidence that all of the charges had, or that they had not, been exploded. And it was a part of plaintiff’s knowledge, derived from his experience, that it was unlikely that there had been seven or any considerable number of explosions. It is not perceived how anything that defendant or the miners on the preceding shift could have told plaintiff would have improved his situation. What those miners saw, he could see. Such inspection as they might have made, he could make.

It does not appear that the method of excavating rock pursued was not an approved and wholly proper method. Unless, then, we are to hold, as matter of-law, that the defendant owed to plaintiff the duty to discover and notify him that there was unexploded dynamite in this rock, there is no evidence of any negligence on the part of defendant or on the part of the miners who did the blasting. We find neither authority nor reason for such a ruling. We may go further and say there is in this record no evidence of a custom of miners to notify other miners of the possible existence of unexploded dynamite where work such as plaintiff was doing is carried on. At best, the evidence is that, when the miners who set off the blast discovered or believed such a condition existed, they were in the habit of giving notice of it. Where mining for ore was carried on, and holes for dynamite were drilled at various distances from each other from a foot and a half to greater distances, a series of explosions was expected, and miners were able to count them, and thus learn whether all of the charges had been exploded. We are not here dealing with such a case.

The judgment is reversed, and, as it does not appear that any rule which defendant could formulate and enforce would have better protected plaintiff under the circumstances, no new trial will be granted.

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


author: Kuhn, J.

text:
    RAYNER v. SLIGH FURNITURE CO.
    1. Appeal and Error — Certiorari—Industrial Accident Board —Contributory Negligence — Personal Injuries — Master and Servant.
    In reviewing a decision of the industrial accident board, awarding compensation for the accidental injury and resulting death of an employee, a finding that the injury did not arise from the intentional and wilful misconduct of the deceased will not be reviewed, if there was evidence to support it. Act No. 10, Extra Session 1912, §12, pt. 3 (2 How. Stat. [2d Ed.] § 3980).
    2. Master and Servant — Industrial Accident Board — Course oe Employment.
    Injuries resulting in the death of an employee, in the factory of defendant, from colliding with another servant while the decedent was running to punch the time clock, a duty imposed by the master, was an industrial accident, within the meaning of Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.). McAlvay, C. J., dissenting.
    3. Same — Proximate Cause.
    If not the proximate cause of decedent’s injuries, the performance of such duty so contributed to the accident as to constitute a concurring cause.
    Certiorari to the industrial accident board by the Sligh Furniture Company to review an order awarding compensation to Lida Rayner for the accidental death of her husband, Adelbert Rayner.
    Submitted January 8, 1914.
    (Docket No. 26.)
    Affirmed April 7, 1914.

      Francis D. Campan (William A. Mulhern, of counsel), for appellant.

      Norris, McPherson & Harrington, for appellee. •
   Kuhn, J.

This case is brought here by certiorari to the industrial accident board. Adelbert Rayner, the applicant’s husband, was injured while in respondent’s factory in the city of Grand Rapids. About 100 carvers and cabinet workers were employed on the third floor of the factory, and, on the blowing of the noon whistle, each workman was required to proceed to the end of the room and punch the time clock before leaving for dinner. Mr. Rayner, who was working on this floor, about 150 feet from the time clock, on November 5, 1912, when the whistle blew at noon, started on a run from his bench to the clock to punch it. After proceeding about 30 feet, he collided with Martin De Vos, a fellow employee, whom he could not see because of drawers which were piled up on the floor. This resulted in Rayner fracturing or injuring one or more of his ribs. The injury to his side and ribs affected the pleura of his lungs, and from the inflammation or irritation which followed • the lungs became affected, resulting in Mr. Rayner’s death.

There had been no general notice printed or posted of a rule against running to the time clock, but, about a year previous to the accident, Rayner had been told by his foreman, Hicks, not to run to the clock. There was testimony that the rule against running had not been enforced, and no employee had been discharged because of doing so. An award to claimant, who was left as his dependent, was made by a committee on arbitration, and upon review was affirmed by the industrial accident board.

It is the contention of the respondent and appellant that the facts indicate that the accident and the resulting injury arose out of an act independent of the employment, in direct violation of a rule of the company, and solely for his own pleasure or convenience. With reference to the rule, the commission made a finding that such a rule had not been enforced, and its general violation had been acquiesced in by the' employer. There being evidence to support this finding of fact, by the terms of the act (part 3, § 12. Act No. 10, Public Acts, Extra Session 1912) it becomes conclusive, and as a result eliminates the consideration of the question as to whether the injury arose by reason of the intentional and willful misconduct of Rayner. Rumboll v. Colliery Co., 80 L. T. 42, 1 W. C. C. 28.

At the time of the accident, Rayner was in the performance of a duty imposed upon him by his employer. When the noon whistle blew, it was obligatory upon him, before leaving the place of his employment, to punch the time clock. The performance of this duty, if not the proximate cause, was a concurring cause of his injury. In Fitzgerald v. Clarke & Son (1908), 99 L. T. 101, 1 B. W. C. C. 197, Buckley, L. J., stated the rule as follows:

"The words ‘out of and in the course of the employment’ are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning ‘out of,’ that is to say, ‘in the course of.’ The former words must mean something different from the latter words. The workman must satisfy both the one and the other. The words ‘out of’ point, I think, to the origin or cause of the accident; the words ‘in the course of’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words ‘out of’ involves, I think, the idea that the accident is in some sense due to the employment.”

We are well satisfied that the accident was an industrial accident within the meaning of the compensation act, and arose “out of and in the course of his employment.” Whitehead v. Reader, 2 K. B. 48 (1901).

The judgment and decision of the industrial accident board is affirmed, with costs against appellant.

Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred with Kuhn, J.

McAlvay, C. J. I do not think that this was an industrial accident within the statute.

       2 How. Stat. [2d Ed.] § 3939 et seq.


author: Steere, J.

text:
    CITY OF ADRIAN v. WHITNEY CENTRAL NATIONAL BANK.
    1. Bills and Notes — Title—Bona Fides — Negotiability.
    A purchaser in good faith acquires valid title to negotiable bonds payable to bearer, although they may have been stolen by the prior holder.
    2. Same — Evidence—Burden of Proof.
    Such holder has the burden of proving that he is a holder in due course, within the meaning of the negotiable instruments law. Act No. 265, Pub. Acts 1905 (2 How. Stat. [2d Ed.] §2672 et seq.).

    3. Same.
    Where defendant bank made a loan to the manager of a hotel on the security of two municipal sewer bonds, payable .to bearer, and the bank ascertained before taking the pledge that he was in fact manager of the hotel, but had no notice that his title was bad or the bonds had been stolen by him, it was a bona fide purchaser and acquired the title as against the owner who had intrusted the securities to him for safe keeping while living as a guest at the hotel.

      Appeal from Lenawee; O’Mealey, J.
    Submitted January 9, 1914.
    (Docket No. 35.)
    Decided April 7, 1914.
    Bill by the city of Adrian against the Whitney Central National Bank and Anna M. Weiss for an order of interpleader. From a decree for defendant bank, the other defendant appeals.
    Affirmed.

      Baldwin & Alexander, for appellant.

      D. B. Morgan, for appellee Whitney Central National Bank.
   Steere, J.

In this case Anna M. Weiss has appealed from a decree of the circuit court of Lenawee county, rendered on a bill of interpleader filed by the city of Adrian, for the purpose of protecting itself against conflicting claims of defendants, and to have determined which of them is entitled to receive the principal and interest due and to fall due on two sewer bonds for $1,000 each, issued by said city of Adrian on November 1, 1906, to bearer, and payable on the 1st day of November, 1923, with interest at the rate of 4 per cent, per annum, payable semi-annually.

The two bonds in question, numbered 99 and 100, were, at the time of issuing the series to which they belonged, purchased by Frank X. Weiss, since deceased, and by the terms of his will became the property of defendant Anna M. Weiss, his daughter-in-law. The bonds of that issue were in short and simple form, appropriate for sale to the general public; the portion material here being as follows:

“The city of Adrian, a municipal corporation, hereby promises and agrees to pay to bearer the sum of one thousand dollars, together with interest thereon at the rate of four per cent, per annum as evidenced by the annexed interest coupons.
“This bond is one of a series of seventy-five thousand ($75,000) dollars bonds for public sewer purposes, said bonds being numbered from 1 to 124 inclusive.
“The same is due and payable at the city treasurer’s office of the city of Adrian on the 1st day of November, 1923.
“Pay to the bearer the amount of each of the interest coupons hereto attached, as the same shall severally become due.”

On November 1, 1910, the Whitney Central National Bank, of New Orleans, La., presented the coupons then due upon the two bonds in question to the Adrian city treasurer for payment, making claim that it was the lawful holder, in due course, of said bonds and coupons. Previous to this, the city treasurer had received two letters from defendant Anna M. Wiess claiming said bonds had been stolen from her, and requesting that, if any one presented them .for payment, they should be taken up, and the party presenting them arrested.

Payment being refused, the Whitney Central National Bank commenced an action at law against the city of Adrian in the circuit court of Lenawee county to recover the amount due on the two coupons, which had become due and payable. Complainant, declaring itself ready and willing to pay the amount due on said bonds to the proper parties, filed this bill, asking the aid of the court to determine who is entitled to demand and receive payment, and that in the meantime an injunction issue restraining further prosecution of said suit instituted against it to recover the amount of said coupons. Both defendants answered.

The Whitney Central National Bank claimed to have become the holder of said bonds and coupons in due course of business, in good faith, for value, without any notice of infirmity or defect of title in the party negotiating the same; said party being one E. C. Gray, the apparent owner, who presented said bonds at the banking office of defendant, in the city of New Orleans, on August 6, 1910, claiming to be the owner, and there negotiated and delivered them to said bank, as collateral to secure certain notes given for loans made to him, which loans have not been paid.

Defendant Anna M. Weiss, answering, claimed that the bonds belonged to her, and were taken from the safe of a hotel in New Orleans at which she was a guest, without any authority from her and under such circumstances as to make the taking larceny; that she was subsequently informed the clerk or manager of said hotel took them from the safe and “put them up with the Whitney Central National Bank as collateral to his note for a loan to pay a gambling debt to one of the officers of said bank.” She also requested in her answer that the issue be tried by jury. A jury was called, but, it being subsequently agreed between counsel that the case should be heard and determined by the court, the services of the jury were dispensed with.

The testimony shows that E. C. Gray, who negotiated the bonds with defendant bank, was then manager of the De Soto Hotel in New Orleans, having assumed that position some time in June, 1910, going there from Detroit, where he had held a position in the Detroit Club. Defendant Anna M. Weiss was a resident of the city of Adrian, and quite intimately acquainted with him. She testified that she had known him for about a year before he went to New Orleans, and had joined him at the De Soto Hotel under a previous arrangement that she was to go down there and have a position as cashier; that there was an understanding between them they might some time be married, although she knew he had a wife and child living in Detroit, but he had assured her he would get a divorce from his wife; that she took her private papers with her, including the bonds in question, and, on her arrival in New Orleans, she was met at the station by Gray, who took her to the De Soto Hotel, where he registered her under the name of Mrs. Du Bois, of Chicago, introducing her as his niece; that, while in New Orleans, she went by that name at his request, and they occupied adjacent rooms in the hotel, with a door between; that he told her there was a safety deposit vault in the hotel for guests to put their valuables and papers in, and she should put hers there; that she gave them to him for that purpose, and he put them in the safe; that she had confidence in him at that time and paid very little attention to it; that she never was employed in the hotel, but remained as a guest as long as Gray was there. It was while they were living at the De Soto Hotel that Gray negotiated the bonds with the Whitney Central National Bank.

As to the circumstances of the negotiation, it appears undisputed that on the 6th of August, 1910, Gray applied at the bank to negotiate a loan of $750, stating that he was manager of the De Soto Hotel in that city, and would give as collateral for the loan the bonds in question, which he produced. He further stated that he was related to a Mr. Smith, assistant to the president of the First National Bank of Detroit, Mich., that these bonds represented money which he had saved in the past, and, having temporary need of money, he desired to borrow, using the bonds as collateral. After examining the bonds and discussing the matter with him, the president of the bank telephoned the De Soto Hotel and ascertained that Gray was manager there, as he had represented. Relying upon the information thus obtained, believing Gray’s statements, and knowing that bonds of this character were sought after and considered desirable, as they were payable to bearer, and there were no suspicious circumstances in connection with the offer, the bank made the loan of $750 to .Gray, taking one of the bonds as collateral security. Gray deposited the money in the bank, and checked it out from time to time. On the 27th of August, 1910, he applied to the bank for a further loan of $500, offering as security the other bond. No suspicious circumstances having arisen in the meantime, the loan was made; the money being deposited and checked out as before. On September 10, 1910, he borrowed $250 more on his note, secured by the second bond which the bank held. This loan was negotiated with the vice president of the bank, who, since the other loans were made, had returned from abroad, and was living at the De Soto Hotel, thus becoming acquainted with Gray as its manager. He testified Gray impressed him favorably, and, so far as he could judge by seeing him around the hotel, his habits were correct, and he knew nothing to the contrary until after Gray had left the city. The notes Gray gave were what are generally known as collateral notes, pledging the bonds attached as security, with authority to sell in case of default, covering any and all indebtedness which he might owe to the bank, and all costs which might be incurred in connection therewith.

On the 8th of October, 1910, Gray presented to the Whitney Central National Bank a check drawn on Adrian State Savings Bank for $300, payable to bearer, and purporting to be signed by Anna Weiss. He indorsed this check, and the bank cashed it for him. The bank then forwarded the same through the usual channels to the Adrian State Savings Bank for collection, and payment was refused because the genuineness of her signature was questioned.

All officers of the bank who had anything to do with making these loans testified that they never heard or had any intimation of Gray’s gambling or of anything wrong in relation to him or any question as to his ownership of the bonds until after payment of the $300 was refused. About this time Gray lost his position at the De Soto Hotel and left New Orleans, going to Covington, La., where he assured defendant Anna Weiss that he expected to get a position. She joined him there, and they stopped for some time at the Southern Hotel in that city. She testified she remained there a month or a little more; that one day he informed her he had a position as manager or assistant manager of the Battle Hotel, Mobile, and departed for that city, stating that he would get her a position in the hotel at Mobile and send for her, when she should come on and bring his trunk which he had left with her. While she was waiting at Covington, the trouble arose over nonpayment at Adrian of the $300 check purporting to be signed by her, which Gray had negotiated with the Whitney Central National Bank. It was in that connection she first discovered, as she states, that the bonds were not among her papers, which she had taken with her when she left the De Soto Hotel, and she then notified the city treasurer of Adrian that the same had been stolen. It was her testimony that she never authorized Gray to hypothecate these bonds or to sign any check for her; that she had confidence in him and believed him honest until after the matter of the $300 check came up and she went back to New Orleans, when she first learned from the bank officials that Gray was a gambler, and the full measure of his perfidy. Of her final disillusioning she testifies: “Gray had turned against me, and his wife was there, and I was all alone.”

If, at the time Gray hypothecated the bonds which she had put into his hands, she, with her intimate acquaintance and knowledge of him, believed him honest and trusted him implicitly, as she states, she is, at least, at a disadvantage in urging that the bank was not an innocent party and acted in bad faith when accepting the bonds, payable to bearer only, presented by him under the circumstances shown, as security for a loan.

Several bank officials of Adrian testified in behalf of defendant Weiss as expert witnesses to the effect that custom and good usage in the banking business demanded greater precautions than those shown to have been taken by the defendant bank; the contention upon that proposition being stated in her counsel’s brief as follows:

“We have shown by the testimony that in the usual and ordinary course of banking business, that the appearance of a stranger in a bank with bonds such as these bonds was a circumstance in itself which has come to be recognized by bankers as a danger signal, and that good bankers in due course do not purchase or loan money to strangers upon bonds of which they have no knowledge, either as to the title or as to the value.”

In support of which is cited Smith v. Mechanics’ & Traders’ Bank, 6 La. Ann. 610. The facts in that case are not in harmony with those under consideration. There the plaintiff, a broker, discounted, without inquiry, for an entire stranger a forged bill purporting to be drawn on and accepted by a commercial house of New Orleans, and gave a check on the defendant bank payable to the order of the supposed acceptors of the bill. The broker, the bank, and the commercial house were all located in the city of New Orleans. It was held the plaintiff did not exercise due caution in taking the bill from a stranger without inquiry, and that making out his own check to the order of the supposed acceptors of the bill instead of the party to whom the bill was discounted was not in the usual course of business. Here the party presenting the bonds was ascertained to be a resident of the city, occupying a responsible business position. He produced the bonds, payable to bearer, with no other payee named, and was presumptively the owner of them; no indorsement or signature being required to transfer title. In Consolidated Ass’n of Planters v. Numa Avegno, 28 La. Ann. 552, the attitude of that court in a case more closely analogous to this is shown. It is there held that bonds, with coupons attached, payable to bearer are negotiable securities, having all the qualities of commercial paper, and pass as such by delivery. That, though stolen from a bank by burglars, the purchaser, acquiring them in good faith, before maturity, for value, in due course of business, is unaffected by want of title in the vendor. In Wylie v. Railway Co. (C. C.), 41 Fed. 623, it was said of stolen bonds:

“The bonds being negotiable, the promise to pay runs to the holder, and, if he has acquired them bona fide and for value, the plaintiff’s title is gone, and the promise is satisfied by the payment to the holder according to their tenor.”

The law is well settled by abundant authority that a purchaser of stolen negotiable bonds before maturity, without fraud or bad faith, obtains good title thereto. Welch v. Sage, 47 N. Y. 143 (7 Am. Rep. 423) ; Seybel v. National Currency Bank, 54 N. Y. 288 (13 Am. Rep. 583) ; Evertson v. National Bank, 66 N. Y. 14 (23 Am. Rep. 9).

The cardinal principles upon this subject have been condensed and crystallized into statute law in many States by the uniform negotiable instrument act. This has been enacted in both Michigan (Act No. 265, Pub. Acts 1905, 2 How. Stat. [2d Ed.] § 2672) and Louisiana (Gen. Assem. Acts 1904, No. 64). The rights of the contesting parties here are to be determined by the provisions of this statute, which, however, this court has held, introduced no change in the rules relative to a holder in due course. Graham v. Smith, 155 Mich. 65 (118 N. W. 726).

It must be taken as undisputed that, though Gray came lawfully into possession of these bonds, he did not have title to them. On their face they were regular and complete, payable to bearer only, were negotiated and delivered by him under claim of ownership to the defendant bank, before maturity, for value, with no notice that they had been previously dishonored, or that there was any infirmity or defect in his title to them.

It is claimed in behalf of defendant Anna Weiss that the bank failed to prove that it was “a holder in due course;” it having the burden of proof on that question under section 61 of said negotiable instrument act, which provides as follows:

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.”

Section 54 of said act provides:

“A holder in due course is a holder who has taken the instrument under the following conditions: First, that it is complete and regular upon its face; second, that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; third, that he took it in good faith and for value; fourth, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Section 58 provides:

“To constitute notice of an infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

The numerous authorities upon a holder in due course are found on pages 309 and 310 of Ogden on Negotiable Instruments, and it would be superfluous to review them here.

In Jones on Corporate Bonds and Mortgages (2d Ed.), § 200, using the following language, quoted with approval by this court in Toledo, etc., R. Co. v. Peters, 177 Mich. 76 (143 N. W. 18), it is said:

“A purchaser may have had suspicion of a defect of title, or knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or he may have disregarded notices of stolen bonds; and yet, if he has purchased for value in good faith, his title cannot be impeached.”

In this case the evidence is conclusive that the bank officials had no such suspicion, knowledge, or notice at the time the bonds in question were negotiated.

Testing the obligations, duties, and risks of the defendant bank by the statute and authorities cited, in the light of the facts and circumstances proven, we are constrained to hold that it is shown to have acted without bad faith, and to be the holder of said bonds “in due course.”

The result reached by the learned circuit judge is well supported by reason and authority, and his decree is affirmed.

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


author: Moore, J.

text:
    VERIDEN v. McLEOD.
    1. Conspiracy — Elections—Illegal Count — Public Officers..
    A declaration averring that plaintiff, a saloonkeeper, became a candidate for election as a trustee of the village of Grosse Pointe Shores, that the defendants were the village council and were inspectors of election, that defendants did not want a saloonkeeper upon the board and conspired together to deprive him of the election, that they counted the votes dishonestly, and although plaintiff was elected by a plurality of two votes they declared his opponent elected to the office, that one of the defendants pushed a ballot cast for the plaintiff into the box with the point of a pencil and thereby placed a distinguishing mark upon it, that the defendants failed to seal the ballot boxes as required by law and refused to recount them on petition of the defeated candidate because the boxes were not locked and sealed, sufficiently alleged facts constituting a cause of action.
    2. Same — Definition—Combination.
    A conspiracy is a combination of two or more persons by some concerted action to accomplish a criminal or unlawful purpose, or to accomplish a purpose not unlawful by criminal or illegal means.
    3. Same.
    Where the evidence did not establish a joint assent of the minds of two or more defendants to effect the unlawful purpose of keeping plaintiff out of office as village trustee it was insufficient to sustain a verdict.
    Error to Wayne; Mandell, J.
    Submitted January 16, 1914.
    (Docket No. 105.)
    Decided April 7, 1914.
    Case by Frank S. Veriden against Alexander I. McLeod and others for conspiracy to deprive plaintiff of a public office. Judgment for defendants, on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      William M. Mertz and Frank N. Renaud, for appellees.
   Moore, J.

This case was commenced by declaration, the material parts of which are as follows:

“Frank J. Veriden, plaintiff in this suit, by James H. Pound, his attorney, comes into this court and complains of Alexander I. McLeod, Abner Larned, George Osius, Julius Hagar, William E. Roney, and Louis J. Girardin, defendants herein, in an action of trespass on the case, for that whereas, the defendants and this plaintiff are all residents of the village of Grosse Pointe Shores, * * * and are all citizens thereof, and the defendants are its village council, also were the inspectors of election at the village election, on the 8th day of April, 1912. * * * And whereas, plaintiff is a dealer in a legal business authorized to do business in the county of Wayne, * * * the defendants did, plaintiff avers, enter into a certain illegal, corrupt, and unlawful act, and series of acts and conspiracies, not only to deprive this plaintiff from carrying on his legal business, but plaintiff avers that he being in fact legally and lawfully nominated as a village trustee of said village of Grosse Pointe Shores, and striving for the said office, and the said defendants, and each of them, not wanting a saloon-keeper upon the board of village trustees, resolved to wrongfully keep him (plaintiff) from out thereof. * * * And plaintiff avers that defendants successfully did so keep him (plaintiff) out of said office of village trustee by the following unlawful, illegal, and wrongful acts: * * * They (the defendants) * * * wrongfully violated their oaths, and tricked plaintiff out of a recount, and out of the office of village trustee, to which he avers that he was legally elected, to wit, the village trustee of the village of Grosse Pointe Shores, in the manner following, amongst others: They did not honestly count the ballots cast at said election, except the first time, when plaintiff was elected by a plurality of two votes, but purposely counted them dishonestly, and pulled and hauled and marked them at different times during the day, and counted plaintiff out of his honestly elected office of village trustee. By also deliberately not counting for this, plaintiff ballots which were cast for him, and counting against him ballots that had been cast in his (plaintiff’s) favor by which wicked, cruel, wanton, and crafty acts upon defendants’ part, and particularly the action of defendant Alexander I. McLeod in pushing plaintiff’s employee’s ballot into the ballot box with a sharp-pointed lead pencil, point downward, plaintiff was deprived of several ballots'by claimed distinguishing marks. Also in permitting the defendant William E. Roney, although disqualified to act upon said board of election inspectors, to act as their clerk. By all of which means this plaintiff avers that the defendants, and each of them, wholly deprived plaintiff of the office of village trustee of the village of Grosse Pointe Shores for a period of two years from a certain date, to wit, April 8, 1912. And plaintiff avers that, the said inspectors having canvassed the said vote at the spring election of the village of Grosse Pointe Shores, it then and there became and was their legal duty, as election inspectors, and officers, to seal the said election boxes in the manner and form prescribed by law, and to lock them and care for them in a certain manner prescribed by the statutes of the State of Michigan, which course of procedure prescribed by law plaintiff avers that the defendants, to conceal their crime, they (the defendants) conspired one with the other not to do. And in pursuance of such criminal agreement did not in fact do. And plaintiff avers that he, in due form of law, demanded a recount and paid his money therefor, to wit, $10, and that, after divers days had been set for a hearing, plaintiff forced a hearing, when, lo and behold, the defendants, to whom the matter of a recount had been referred by the village council of Grosse Pointe Shores, as well as by the statutes of his State, these men (the defendants), who had violated the law, and who were criminals, refused to open the boxes and recount the ballots for the reason that they themselves, and each of them, had with criminal intent themselves disobeyed the law, and used that as a fulcrum to deny to this plaintiff a recount, for the reason that they (the defendants) had not properly locked and sealed the election box or had it cared for thereafter. That this plaintiff avers it to be true that the integrity of this country depends upon an honest count, of an honestly cast ballot. That this homely maxim has become honored in its breach rather than in its observance in Michigan. And that, to wit, on a certain day, namely, April 10, 1912, defendants, and each of them, did advisedly nullify an election, disobey a statute of this State, and commit treason to this State, by robbing the electorate of the village of Grosse Point Shores of the fruitage of a regular village election held in the village of Grosse Pointe Shores, on a certain day, to wit, April 8, 1912; they (the defendants), and each of them, thereby depriving this plaintiff of the office of village trustee for the ensuing two years from a certain date, to wit, April 8, 1912, and of all the honors, profits, and emoluments arising by or therefrom, by denying to him (plaintiff) an honest count of said election ballots in the first instance, and a recount and an honest certification of the ballots cast at said election.
“And plaintiff avers that the defendants to the plaintiff then and there other wrongs and injuries did, to plaintiff’s damage of $5,000, and therefore he brings this his suit.”

The defendants pleaded the general issue.

When the case came on to be heard, counsel for defendant objected to any testimony being received for several reasons, among them:

“The more specific reasons that we base our objection to receiving testimony in this case are, as a matter of law, the plaintiff in this case was not shorn of his office, nor was he shorn of his * * * remedy by a count, or by recount having been denied. That this is a collateral proceeding, and an election cannot be inquired into in a collateral proceeding, whereas it could have been inquired into in a proper proceeding at that time, namely, quo warranto proceedings.”

The objection was overruled, and nine witnesses were sworn on the part of the plaintiff. The petition of plaintiff for a recount was introduced in evidence. The record of the election proceedings was also produced, and Mr. Pound read into the record, “Moved that two doubtful ballots be rejected.” The record book was received in evidence, but is not made a part of the bill of exceptions. After the plaintiff rested, the court directed a verdict in favor of defendants, because plaintiff had failed to make a case. The suit is brought here by writ of error.

It is so difficult to state clearly the contention of counsel for appellant that it may be well to quote from his briefs.

The following appears in his original brief:

“Plaintiff is an American citizen, a native of the township of Grosse Pointe, in the county of Wayne, and a resident of the village of Grosse Pointe Shores. He was regularly nominated, and was a candidate for the office of trustee of the village of Grosse Pointe Shores, located in the counties of Wayne and Macomb, facing upon Lake St. Clair, at the village of St. Clair Heights charter election, in the year 1912. The defendants were the board of election inspectors and its clerks. The election inspectors being Alex. I. McLeod, Abner E. Larned, George Osius, and Julius Hagar. The clerks being Louis J. Girardin and William E. Roney. The last named, who was instructor as to ballots, assistant clerk, and general assistant at all points of the election, who succeeded in getting himself counted into office, when he was fairly beaten in spite of all his efforts by a majority of three in the plaintiff’s favor. To do this, defendant McLeod put a distinguishing mark upon the ballot of Louis Devroy. By refusing to count a ballot for Mr. Veriden, which was plainly his, and by some other wrongful actions, which are not made clear, but Veriden’s majority was not shown to have been overcome, except by an unjustifiable announcement. Plaintiff legally and properly demands a recount, which the law expressly gives him, and it is seemingly acceded to, when lo, these wrongdoers refuse to grant it, because they themselves had disobeyed the law in not sealing the locked box. Not having any sealing wax, I suppose. * * * The plaintiff has a case for the jury, not only against all the defendants, but against Alex. I. McLeod, for two different torts committed by himself upon this record, without remonstrance from the other - codefendants. * * * There is abundant circumstantial evidence in this case to warrant the submission to the jury of the question whether defendants did not conspire together to wrongfully, illegally, and criminally deprive plaintiff of the office to which he was duly elected by his fellow villagers, and to rob him (plaintiff) of his office. The defendants being for this purpose a band of election manipulators in the strongest sense of the term. I therefore, as a debt due to the laws of the State of Michigan, insist upon the reversal of this case, with costs in plaintiff’s favor, that the law may rule, which, for sonie inexplicable reason, it is contended, it has not done so far in this case.”

The following appears in the supplemental brief:

“Had there been a recount, I concede that for all I know there might have been no further trouble. There certainly would not, had Mr. Veriden not appeared to have a clear majority of the ballots, or had it been explained to him how his 47 votes legally shrunk to less than 44. Mr. Veriden wants no election he is not honestly entitled to. He is no ballot box manipulator, nor will he countenance any irregular action by others in his behalf. All he desired was a daylight count. He was entitled to it. Did he get it? No. And that, too, by reason of the confessed action of the defendants in not sealing the ballot box. And the worst part of the matter is that they (the defendants) had the physical power to open the box. It was in their possession. Plaintiff asking his rights under the statute. They or one of their number had the key. And the plaintiff was still insisting on the recount. He would not object, and could not be heard to complain, if the recount had been had, being done at his own demand and solicitation. But defendants would not give it. Why? Because they themselves had not done their ministerial duty in sealing the ballot box is the sole reason given for the refusal, and that objection is waived by the party most in interest. The one who has been dispossessed of his office, and upon whose objection? Why that of the person who promoted this violation of legal duty. The man who has gotten the office. What a shame! And then to say that we have no remedy for such an action. It is a reflection on the law itself, I submit. I deny that I have changed my position, which I have occupied in this case from the first. I do maintain that, plaintiff having attempted to follow the remedy provided for him by the law, and having been prevented from obtaining the relief the law gave him by reason of the wrongful acts of omission in the not sealing of the ballot box by the inspectors of election, and of commission by marking and not counting the ballots, and the whole board by not counting those ballots which were cast for plaintiff, plaintiff has a cause of action against them for such damages as a jury may deem the honor of the office to be worth, as well as the inconvenience put upon the plaintiff by defendants’ actions, together with at least nominal damages for the wrong itself. Counsel cannot, or perhaps will not, understand me. I ask no court to put the plaintiff into the office of village trustee of Grosse Pointe Shores which he might be ousted from, by a hostile board of trustees, in the village of Grosse Pointe Shores at any time immediately after the roll call. Plaintiff was, if elected, entitled to the certificate of election, to show that fact, viz., that he had been elected to this responsible office. The law of this State guaranteed to him a recount, if he made a proper demand and deposited his money, which he concededly did. This he did not get, through defendants’ wrongful actions. And I do claim that I have a right in this case, as the counsel for the plaintiff, to show the true facts as I might in any other action of tort. That I may show all the defendants did, or any of them did, to plaintiff’s injury, and to recover such damages therefor as may be deemed by them to be just, under the evidence, offered against the defendants, or any of them rendering them liable in this case. * * * No person is trying to hold election inspectors liable for every irregularity, but when they by their act deny a candidate for office a right the legislature and governor of our State has given them, making it into a law, then there certainly should be a recovery. And if the inspectors were like the one who was sworn, Mr. Harger, the less the State have of such men the better.”

It is also claimed the court improperly excluded testimony.

The defendants again urge that plaintiff is not pursuing his proper remedy, citing a great many authorities to be found in their brief. They also urge that the trial judge made a right disposition of the case.

We think it, upon this record, unnecessary to consider whether plaintiff is pursuing the proper remedy. A perusal of the record shows a willingness upon the part of the trial court to try the case upon the merits and to let in all the testimony except that which he thought was hearsay. It is possible that it might have been well to permit an answer to several questions, of which the following is an example:

“Q. Did you hear the announcement made by the clerk?
“A. I heard it. But I could not say how.
“Q. You heard an announcement?
“A. Yes, sir.
“Q. Do you recollect from the announcement that you heard read by the clerk. Do you know whether —do you know from that who the three were that were elected? (Objected to.)
“The Court: I will exclude it.
“Mr. Pound: Note an exception.
“Mr. Pound: I am only asking for what the clerk read off.
“The Court: That will be excluded.”

Evidently the court thought, if the witness did not know how he heard the announcement which the clerk made, that it would be hearsay, and that he also thought that, if the clerk read from something, the paper from which he read would be the best evidence of what he read, because the court repeatedly ruled that what was done by the board might be shown.

Plaintiff was permitted to show, and did show, that as the result of the first count of the ballots it was announced that Mr. Veriden received 47 votes and Mr. Roney 44; that Mr. Roney requested that the votes be counted again; and that they were counted at least once more, when it was announced that Mr. Roney received more votes, the number being stated, than Mr. Veriden and was declared elected.

Giving the testimony the most favorable construction possible for the plaintiff, it shows that, when one of the ballots was received and put in the ballot box, Mr. McLeod pushed it in with the sharpened end of a lead pencil; that, when the votes were counted, what we have above recited occurred; and one of the witnesses, who testified he was 10 or 15 feet away when it occurred, says the ballot which was pushed into the box with the pencil was rejected. The record also shows that plaintiff demanded a recount in due form and that a day was set for the hearing; that the plaintiff, Mr. Roney, and Mr. Jewett each appeared before the board with their respective attorneys; that Mr. McLeod moved to proceed with the recount, when objection was made by the attorneys for Mr. Roney and Mr. Jewett to a recount because the ballot boxes had not been sealed as the law required them to be sealed. The record also shows that plaintiff’s counsel and the counsel for Mr. Roney and Mr. Jewett were heard at length, and that, after hearing them, the board decided not to make the recount.

We have already quoted at length from the declaration, and, as we understand it, the defendants are charged therein with a conspiracy by means of illegally rejecting ballots, and by illegally refusing a re- ' count, to deprive plaintiff of an office to which he was legally elected, which conspiracy it is averred was carried out. This is a very grave charge and requires proof of a substantial nature to substantiate it.

There are many attempts to define the word “conspiracy” in 2 Words and Phrases. We quote one of them:

“The most satisfactory definition of ‘conspiracy’ to be found in any of the adjudicated cases is perhaps that given by Shaw, J., in Commonwealth v. Hunt, 45 Mass. (4 Mete.) 111 (38 Am. Dec. 346), in which he says:
“ ‘Without attempting to review and reconcile all the cases, we are of the opinion that as a general description, though perhaps not a precise or accurate definition, a conspiracy must he a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal, by criminal or unlawful means. We use the terms “criminal” or “unlawful” because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution, and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment.’
“He further adds:
“ ‘But yet it is clear that it is not every combination to do unlawful acts to the prejudice of another which is punishable as conspiracy.’ Hart v. Hicks, 129 Mo. 99, 105, 318 (31 S. W. 351, 352).”
“Conspiracies are of two kinds: (1) Against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade; (2) against individuals, such as have a tendency to injure them, in their persons, reputation, or property. Clinton v. Estes, 20 Ark. 216, 224.”
“The essentials of a conspiracy are: (1) A combining of two or more minds; (2) the purpose of the combining. Commonwealth v. Grinstead, 108 Ky. 59 (55 S. W. 720, 725 [57 S. W. 471]).”

It is also said at page 1458, Id.:

“In order to establish a conspiracy, evidence must be produced from which a jury may reasonably infer the joint assent of the minds of two or more persons to the prosecution of the unlawful enterprise. Drake v. Stewart (U. S.), 76 Fed. 140, 142, 22 C. C. A. 104.”

Giving every reasonable inference to what was shown or what was proposed to be shown by plaintiff, we think it falls far short of showing concerted action on the part of any of the defendants to do plaintiff any wrong.

Judgment is affirmed.

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


text:
    VAN HAAREN v. TIERNEY.
    Estates of Decedents — Claims—Executors and Administrators —Time to Present Claims — Equity.
    No remedy in equity exists in favor of an infant claimant who failed to present her claim against an estate of a decedent before the time for presenting claims had expired under section 9380, 3 Comp. Laws (4 How. Stat. [2d Ed.] §11091), in the absence of mistake, ignorance, or fraud.
    Appeal from Bay; Collins, J.
    Submitted January 15, 1914.
    (Docket No. 94.)
    Decided April 7, 1914.
    Bill by Catherine Van Haaren against Teresa Tierney for a lien upon lands of John Coryeon, decedent. From an order sustaining a demurrer to complainant’s bill, she appeals.
    Affirmed.

      W. A. Collins, for appellant.

      Gillett & Clark, for appellee.
   Kuhn, J.

The bill of complaint filed in this cause alleges, in substance, that complainant, who was born on April 17, 1887, was taken from the St. Vincent’s Orphan Home in Saginaw, at the age of 7, and placed in the home of John Coryeon, where she remained until she was 17 years old, when, it is alleged, she was forced to leave and compelled to shift for herself; that while at this home it was represented to her that she was a legally adopted child, but that she has been unable to find that any proceedings for adoption have been taken; that she was illtreated and compelled to labor beyond her strength and years. John Coryeon died March 23, 1906, and by his will bequeathed his estate, real and personal, to his wife, Christine Coryeon, who died before this bill was filed, and to his daughter, Teresa Tierney. Commissioners on claims were appointed in the estate, but no claim was presented by or on behalf of the complainant. The administrator of the estate was discharged May 15, 1908. The complainant asks to have $1,000 allowed to her for services rendered, and prays that the court decree a lien for the same upon certain lands received from the estate of John Coryeon by Teresa Tierney.

The demurrer filed by the defendant alleges:

(1) That there is no equity on the face of the bill; (2) that the bill of complaint fails to state a cause of action within the jurisdiction of the court; (3) that under the facts stated in the bill defendant is subject to no liability for the indebtedness, if any, of John Coryeon, deceased; (4) that complainant’s claim, if any, is barred because of her failure to seek her remedy in the probate court; (5) that complainant is guilty of such laches as to bar relief in equity; (6) that no agreement for compensation is alleged; and (7) that there is nonjoinder, in the failure to join the heirs or representatives of Christine Coryeon, deceased.

Section 9380, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11091), provides:

“(9380) Sec. 14. Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”

This statute has been construed by this court and its terms enforced. See Winegar v. Newland, 44 Mich. 367 (6 N. W. 841); First Nat. Bank v. Sherman’s Estate, 117 Mich. 602 (76 N. W. 97) ; Benjamin v. Early, 123 Mich. 93 (81 N. W. 973) ; Draper v. Brown, 153 Mich. 120, 135 (117 N. W. 213) ; Thurber v. Aldrich, 167 Mich. 656 (133 N. W. 620).

The bill of complaint contains no allegations of fraud, ignorance, or mistake.

Did the minority of the complainant change the legal situation and excuse failure to proceed as required by the statute? Section 9380 being “a statute of nonclaim,” a different rule has been applied by the authorities than in case of “a statute of limitations.” The general rule is laid down in 18 Cyc. p. 467:

“The limitation of time within which claims must be presented for allowance in the probate court is inseparable from the peculiar procedure prescribed in each jurisdiction; it is a part of that procedure and so not like a general statute of limitations, and can only be applied to persons who are bound by such special mode of procedure. But where the statute of nonclaim makes no exception as to any persons or class of persons, the courts can make none; and hence in the absence of some provision to the contrary, the statutes of nonclaim run against nonresident as well as resident, and infant as well as adult claimants, and also against insane persons, and the estate of a deceased creditor.”

Our statute makes no exceptions as to persons or classes of persons, and under the rule the minority of the claimant did not suspend the application of the statute. See Morgan v. Hamlet, 113 U. S. 449 (5 Sup. Ct. 583). Because of this conclusion it will be unnecessary to discuss the other grounds of demurrer.

The decree of the court below is affirmed, with costs to the defendant.

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


text:
    DUDLEY A. TYNG & CO. v. CONVERSE.
    1. Contracts — Offer and Acceptance — Meeting of Minds.
    Before a contract can be completed there must be an offer and acceptance.
    2. Same — Construction—Sale—Principal and Agent.
    Where defendant wrote to plaintiff corporation to buy certain stock at a price mentioned, and later told plaintiff’s representative over the telephone to let the offer stand, that defendant would be glad to get the stock at that price any time, although plaintiff’s version of the conversation was disputed by the defendant, there was sufficient evidence to sustain a finding that the defendant had given a standing order for the purchase of the stock.
    3. ' Same — Frauds, Statute of.
    An offer may be accepted by telephone or telegraph.
    4. Same — Place of Acceptance — Conflict of Laws.
    The place of a contract is generally determined by the place at which the acceptance is given: the contract is made where the acceptance is posted.
    5. Same — Telephone—Acceptance—Private International Law.
    An acceptance of an offer made by telephone completes the contract as of the place where the acceptance is communicated.

      6. Same — Frauds, Statute of.
    Illinois having no statute of frauds, an offer accepted by ■telephone from Chicago is valid, although the amount of property involved exceeds $50.
    7. Same.
    In order to hind the plaintiff, it was not essential that it should have title to the stock which it hound itself to secure.
    Error to Jackson; Parkinson, J.
    Submitted January 12, 1914.
    (Docket No. 54.)
    Decided April 9, 1914.
    Assumpsit by Dudley A. Tyng & Company, a foreign corporation, against Warren T. Converse for breach, of contract of sale: Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Wilson & Cobb, for appellant.

      Price & Whiting, for appellee.
   Kuhn, J.

The plaintiff, an Illinois corporation, brought an action in assumpsit against the defendant to recover the difference between the agreed price of $138 per share and the price received at a sale, $120 per share, for 50 shares of the common capital stock of the American Fork & Hoe Company. The defendant, who had traded in this stock, on March 31, 1911, sent plaintiff the following letter:

“Dudley A. Tyng & Co.,
“Chicago.
“Gentlemen:
“I will buy any part of 50 shares American Fork & Hoe Com. at 138 per share. Advise me promptly if you have anything to offer at this price.
“Very truly,
“W. T. Converse.”

In reply he received the following:

“Chicago, April 1, 1911.
“Mr. W. T. Converse,
“Jackson, Mich.
“Dear Sir:
“We note that you have raised your offer on American Fork & Hoe common, and will buy any part of 50 shares at $138 per share, and we will keep the same open until canceled.
“We regret we were unable to fill the last order we had from you, but other people bid our client a higher price than we could afford to pay and stock got away from us.
“We thank you for your business to date however and hope we may serve you in the near future.
“Yours truly,
“Dudley A. Tyng & Co.,
“By A. M. Andrews.”

Between the 5th and 8th of April, Mr. Andrews, in Chicago, representing the plaintiff company, and the defendant, in Jackson, had a conversation over the long-distance telephone. There is no dispute that such a conversation took place, but some controversy is had as to what the conversation was. It is contended by Mr. Andrews, that his company had carried on its books for the defendant what is known as an open order for 50 shares of the stock at $138 per share; that while carrying this order the defendant bought 28 shares of the common stock of the same company at $145 per share; and that when the talk occurred by which the defendant ratified this order for 28 shares at $145 each, he asked the defendant if he wanted to cancel his order for 50 shares at $138, and that the defendant replied, “No, let it stay in. I will be very glad to get it at that price any time .1 can get it;” and that he replied, “Very well, we will leave it open as it stands.” Mr. Converse, on the other hand, claims that when asked by Mr. Andrews in the telephone conversation concerning the so-called order for 50 shares he said that while he would have been glad to get that stock, he was at the time well supplied and had all he could handle, and denied that he made the statements testified to by Andrews. On April 19th plaintiff sent defendant this telegram:

“W. T. Converse,
“Amn. Fork & Hoe Co.,
“Jackson, Mich.
“Sold you fifty American Fork Hoe hundred thirty-eight as per your open order can possibly supply fifty more.
“Dudley A. Tyng & Co.
“1234 p. m.”

—and received in reply:

“Dudley A. Tyng & Co.,
“184 La Salle St. Chgo.
“Cannot accept the fifty shares. Have bought all can handle.
“W. T. Converse.”

On the same day the following letters were exchanged between the parties:

“Chicago, April 19, 1911.
“Mr. W. T. Converse,
“American Fork & Hoe Co.,
“Jackson, Mich.
“Dear Sir:
“We hereby confirm wires passed between us today: ‘Sold you fifty American Fork Hoe hundred thirty-eight as per your open order. Can possibly supply fifty more.’ Your reply: ‘Cannot accept the fifty shares. Have bought all can handle.’
“In the writer’s subsequent conversation with you over the long-distance telephone you acknowledge having given us this order and that you had bought the stock some place else without canceling it.
“We have acted in good faith and up to this time our deals with you have always been satisfactory. We had no reason to suppose that you were in any trouble or were not in a position to take stock for which you gave us orders. We believe you to be an honorable man and ready to take care of your obligations when possible. We have therefore offered to carry this stock for you if you will give us $500 or
$1,000 on account to take care of the matter until you can get straightened around.
“The writer particularly asked at the time we sold you the last block of stock whether or not you wanted this order canceled at $138 and you told him no, if we could get it at that price you would be glad to take it.
“We hope you will see your way clear to take care of us, as we do not wish to go to our attorneys about a matter on which the right and wrong is so* obvious.
“We are unable to get a bid for the stock this afternoon but will try the first thing in the morning and are awaiting your letter which you have promised to write us tonight.
“Yours very truly,
“Dudley A. Tyng & Co.,
“By A. M. Andrews.”
“Jackson, Mich., Api. 19 — 11. “Dudley A. Tyng & Co.,
“Chicago.
“Gentlemen:
“Confirming our phone conversation will say I am very sorry I did not cancel my order with you. But since placing the order have bought two lots of you at much higher prices, and have also taken small lots from other houses, and now have all I can handle. If I had the wherewith to pay for same would be glad to get several hundred shares at present prices. Am very sure it would be a good investment. The stock I have recently bought has all been put with the bank, and I have gone my limit. Cannot take more at present at any price.
“Very truly,
“W. T. Converse.”

Mr. Andrews testified that after receiving the telegram in which defendant refused to take the 50 shares he called him by long-distance telephone, and Mr. Converse said, in substance, that he was sorry he had forgotten to cancel the order, but that he was unable to purchase the stock and would write fully about it that night. It is plaintiff’s claim that when defendant refused to take the stock they offered it on the market and sold it on April 21st at the best price obtainable, $120 per share. Plaintiff, in the trial court, had a verdict for $943.12, the difference between the price contracted for and the price received at the sale, and interest thereon. It is the contention of the defendant that the letter of March 31st was a present offer to buy, and that to have made a binding contract it would have been necessary for plaintiff to accept the offer without any terms or conditions, and that the letter of April 1st was not such an acceptance. It is the theory of the plaintiff, and it was upon this theory that the case was tried and submitted to the jury, that the correspondence and telephone conversation created an open or standing order which was accepted when the plaintiff notified the defendant that it had sold him the stock as per such open order. It is an elementary proposition that before an offer can become a binding promise and result in a contract it must be accepted. While there is dispute as to what the telephone conversation in the early part of April was, the claim that there was an open or standing order, and that it was so understood by the parties, received its strongest corroboration in the letter of April 19th, in which defendant says:

“Confirming our phone conversation will say I am very sorry I did not cancel my order with you.”

This is a direct admission that he considered that he had an open order with plaintiff which he failed to cancel. There can be no question that if plaintiff had failed or refused to deliver the stock after agreeing to furnish in the telegram of April 19th, it would have been liable in damages to the defendant.

It is contended by the defendant that if there was a contract it was a Michigan contract, and that if the telephone conversation is held to be binding, it should be governed by the laws of Michigan, which provide that an oral agreement to purchase property of the value of $50 or upwards is not binding unless in writing. Section 9516, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11400). There is no question in our minds that if there was an acceptance of the offer it was accepted in Chicago. An offer may be accepted by telegram or by telephone. Bank of Yolo v. Flour Co., 141 Cal. 314 (74 Pac. 855, 65 L. R. A. 90).

Elliott, in his work on Contracts, vol. 1, § 46, says:

“Contracts may be consummated by means of telephonic conversations. When a person places himself in connection with another by means of the telephone system he thereby invites communication relative to his business through that channel. In a recent case, referring to an argument against the validity of such a contract, it is said:
“ ‘If by this Is meant that a contract cannot be made by telephone conversation, it is too late to so argue. A large part of our business transactions are, in this century, carried on by telephone. Our courts have long ago held that contracts made by telephone are as effective and binding in law as if made verbally between the parties standing face to face and carrying on the conversation which culminates in the contract.’ ”

Also, at section 62:

“The place of the contract is also usually determined by the place where the acceptance is given. Thus, an order to make certain bets having been transmitted by postal telegraph from the plaintiff without the city of London to the defendant within it, he telegraphed from the city that the order had been obeyed. It was held that the contract of agency was made in the city. And where an offer was made in Boston, and accepted by telegram from Providence, it was held that the contract was made in Rhode Island, although to be performed in Massachusetts. Likewise the contract is made at the place when the acceptance is mailed. If the communications are had over the telephone the contract is deemed to have been made at the place where the offer of one is accepted by another. The place of contract is material as prima facie denoting the law by which it is to be construed and regulated.”

It is clear that if a contract was established it was an Illinois contract (Douglass v. Paine, 141 Mich. 485 [104 N. W. 781]), and it was conceded upon the trial that there is no statute of frauds in Illinois in reference to the sale of goods, wares, and merchandise.

It is further contended that if there was a binding contract plaintiff did not, at the time, have control of the stock, and could not have delivered it. The .plaintiff had bound itself to deliver the stock, and the defendant refused to accept it. It was not necessary for plaintiff, in order to bind itself in the way that it did, to have had title .to the stock. Gregory v. Wendell, 40 Mich. 432.

We have examined the assignments of error with care, and we are of the opinion that the issue involved was properly submitted to the jury without prejudicial error.

Judgment affirmed.

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