author: Bird, J.

text:
    DUFFINY v. DETROIT & MACKINAC RAILWAY CO.
    1. Appeal and Error — Evidence — Former Testimony — Leading Questions. • „
    The objection by defendant’s counsel that testimony offered on plaintiff’s direct examination relative to former statements made upon a previous trial was incompetent, was not a sufficient ground for reversing the case upon appeal where the real nature of the objection was that plaintiff’s counsel elicited the testimony by leading questions and the ground of the objection was not stated at that time.
    2. Carriers — Negligence — Contracts — Carrying Passenger by Destinatión.
    Where defendant’s conductor carried plaintiff and her three children past the station at which she intended to alight, and the conductor suggested that he would give her a ticket to return to the point where she should have alighted, and plaintiff replied that she would prefer to return home because there would be no one to meet her and night was coming on, but finally consented to accept the ticket, and the conductor of the returning train assured her that he would hold the train until she could inquire whether any one was there to meet her or take-such other steps as might be desired, the failure of defendant’s servant to hold the train amounted to negligence, entitling the plaintiff to damages for being compelled to remain all night in the open air.
    3. Same — Principal and Agent — Authority of Conductor.
    It was within the authority of defendant’s conductor to make the arrangement claimed by plaintiff to have been made, and defendant was charged with the exercise of reasonable care to perform it.
    4. Pleading — Carriers—Counts—Cause of Action.
    Plaintiff alleged in her declaration that defendant had negligently carried her past her station and caused her damage, and in another count averred that it had violated its statutory duty and claimed the penalty under section 5254, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6699). The trial court submitted both claims to the jury who returned a verdict of $500. On motion for a new trial counsel for defendant objected to the submission of both questions to the jury, and the court being of the opinion that both issues should not have been submitted, ordered that $100 be remitted from the judgment or a'new trial be granted. Held, that after the deduction of $100 from the amount of the judgment defendant had no ground to complain of the action of the court; also that it was not ground for reversal to misstate in the pleading the section of the statute, referring to a repealed statute instead of the one that applied to plaintiff’s claim.
    Error to Cheboygan; Sharpe, J.
    Submitted June 19, 1914.
    (Docket No. 41.)
    Decided June 7, 1915.
    Case by Mary Duffiny against the Detroit & Mackinac Railway Company for injury to her person. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of ■counsel), for appellant.

      Maxwell W. Benjamin, for appellee.
   Bird, J.

Plaintiff, who resided at Cheboygan, took passage, with her three small children, on defendant’s south-bound passenger train on August 6, 1910, leaving Cheboygan at 2:30 in the afternoon, to go to Waveland, a flag station 20 miles away, to visit her sister. She was carried by Waveland, as she claims, by reason of the failure of the train men to announce the station. The conductor suggested that she leave the train at Posen, and return to Wave-land on a north-bound train which would arrive there at 6:50 p. m. Plaintiff expressed a desire to go back to Cheboygan on account of the lateness of the hour of arrival at Waveland, but she finally accepted transportation back to Waveland. She expressed the same desire to the north-bound conductor, explaining to him that her sister had expected to meet her upon the arrival of the south-bound train, and consequently would not be there. She claims the conductor assured her that he would hold the train until inquiry could be made as to the location of her sister’s home. It is charged that no attempt was made by the conductor to keep this promise, but started his train as soon as she had alighted. At Waveland she was unable to make inquiry of tne station agent, as there' was neither station agent nor station house. She inquired of three passengers who alighted from the train, but they could give her no- information. Finding herself in this position, she chose one of the highways leading from the station, and set out with her children to find her sister’s dwelling. After going a short distance in the woods, she soon discovered that the road she had selected led into a swamp, and she returned to the flag station with her children, and remained all night in the open air. As a consequence of the exposure and dampness, she claims that an existing malady with which she was afflicted was greatly aggravated. In the declaration and on the trial a claim was made for the statutory penalty for failure to announce the station, and also for damages for injury to her health by reason of the exposure to which she was subjected. The jury returned a verdict in her favor of $500.

1. The defendant’s counsél caused a transcript to be made of plaintiff’s testimony on a former trial of the same case, and upon her cross-examination he read portions of her previous testimony, and interrogated her as to whether she so testified, and if they were true. Upon redirect examination plaintiff’s counsel took the transcript and read the following to her:

“I had a conversation with the conductor on the train coming north.
“Q. What did he say to you?
“A. He says, ‘How’s that, that they passed Wave-land and you didn’t hear them call off the station?’ ‘Well,’ I says, ‘there was no one come in there.’ ‘Well,’ he says, ‘that’s — ’ * * *
“Q. Go ahead. What else was said?
“A. And then he says, ‘Well, I will see that you Will get over there all right.’ ‘But,’ I says, ‘that won’t do me any good.’ I says, ‘with my children; I’ve got maybe a mile to- walk out in the woods, and I don’t know where I am going to go. I know there won't be anybody there now to take me over there,’ I says. T would rather go back to Cheboygan than to stay there, for,’ I says, ‘I am positive there is nobody there now for me.’
“Q. Then what did he say?
“A. ‘Well,’ he says, T will see that you will get off all right;’ and he says, T will see some one, that you will be able to get your way over there all right.’ I said, T would rather go back home than to stop here now.’
“Q. Well, when he told you that he would see somebody that would show you the way over there, did you rely on that?
“A. Yes, sir; I did.”
Counsel then interrogated her as follows:
“Q. Do you remember testifying to that on the first trial?
“A. Yes, sir.
“Q. Was that true?
“A. Yes, sir.”

No objection to this manner of examination was made at the time, but subsequently, and after the next witness had been dismissed, defendant’s counsel moved that it be stricken out, which objection was overruled. It is now claimed that the court erred in refusing to strike it out. No reason was given to the trial court at the time why it should be stricken out, but it is now claimed that the testimony was incompetent. The testimony was not incompetent by reason of its not being relevant or material. Its incompetency arose by reason of the method of getting it before the jury. If the defendant’s motion had prevailed, plaintiff would have been permitted to testify to the same state of facts that she did on the first trial; in fact, she had already testified to substantially the same effect. The most that can be said of it now is that relevant and material testimony was gotten into the case by an aggravated form of leading questions. The objection goes to the form, rather than the substance. Had counsel assigned the reason for his objection at the time, it would doubtless have been corrected. Not having done so, they should now be precluded from taking any advantage of its admission. Phillip v. Heraty, 135 Mich. 446 (100 N. W. 186).

2. It is urged that defendant was not shown to be guilty of any negligence. We are unable to assent to this. Plaintiff was defendant’s passenger. She had been carried past her destination by defendant’s neglect. Having done so, the defendant owed her some duty to assist her in returning. The conductor suggested what should be done. She expressed a wish to return home, because she disliked to be left at a flag station in the woods with her three children just as night was coming on, without knowledge of the direction in which her sister lived. To overcome this objection, the conductor- assured her that the train would be held until inquiry could be made, and we think that she had a right to infer from the conversation that took place that, if nothing was learned when Waveland was reached as- to the location in which her sister lived, she would be taken on to her home in Cheboygan. The conductor in charge of the train had a right to make this arrangement, and, after making it, he was chargeable with the duty of performance. It is charged, and the testimony tended to show, that he made no effort to discharge this duty which he had created by his own agreement. Whether he made the agreement, and, if he did, whether he made a reasonable effort to carry it out, were questions for the jury.

3. As heretofore stated, the trial court submitted the case upon the common-law cotmt, and' also upon the statutory one. Subsequently, a motion for a rehearing was made, and one of the points made therein was that the declaration contained two distinct causes of action. After a hearing thereon, the trial court was of the mind that vboth causes of action should not have been submitted to the jury, and he made an order that, in the event that $100 of the judgment should not be remitted by the plaintiff, a new trial would be granted. The plaintiff complied with the suggestion, and remitted upon the record $100 of the judgment. It is now insisted that, even though the amount of the penalty was remitted, the error was not cured. The amount of the penalty fixed by the statute' is $100. Section 5254, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6699). When this sum was deducted from the verdict, we think that the defendant had no cause for complaint. It is further - insisted that section 5254, 2 Comp. Laws, was repealed by section 6237. If counsel are correct in this contention, it is of little importance, as the wording of the sections is the same with reference to the grievance complained of. The mere fact that the declaration misstated the number of the section is no ground for reversal.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    BARLOW v. LINCOLN-WILLIAMS TWIST DRILL CO.
    1. Garnishment — Assignment—-Abuse oe Process — Validity.
    The owner of a right of action against a foreign corporation is entitled to assign his claim to a person within • the State and thereafter the assignee becomes the legal owner and entitled to bring suit and to garnishee the assignor or any one else whom he believes- to be indebted to the principal defendant. It was not an abuse of process to cause the writ of garnishment to issue against plaintiff’s assignor where neither the defendant nor his property was inveigled into the State by fraud, or attached under process of the court issued for one purpose but used for another. 3 Comp. Laws, §§ 10054, 10600 (5 How. Stát. [2d Ed.] §§ 12704, 13436).
    2. Pleading — Variance—Contracts—Instruction.
    Proof that defendant agreed to do everything possible to take certain steel within a reasonable time was not such a variance from the declaration which alleged that the defendant contracted to accept the steel within a reasonable time, as to require the court to direct a verdict on that ground upon the objection of the defendant; and, in any event, where the defendant claimed it refused to accept the steel because of its -inferior quality, the objection was without force.
    3. Sales — Contracts—Breach—Reasonable Time.
    Where the defendant entered into a contract to purchase 25 tons of “high speed” steel at a stated price, and to do everything possible to take it within a reasonable time, and, during a period of a year and eight months, only a small amount of steel was used, much less than the amount contracted for, the defendant assigning as a reason that the steel was not up to standard and the evidence tending to show that the capacity of defendant’s mill and the volume of business was such that the entire amount of steel for which defendant had contracted might have been used, also that in the course of the correspondence the defendant gave as a reason for failing to buy the steel that plaintiff had refused to pay for drills received from the defendant; held, to present issues for the jury upon the question, of reasonable time and of the good faith of defendant in rejecting the material.
    4. Same — Breach—Evidence.
    Where defendant refused to. accept any further steel because it was inferior in grade and in fact, it had bought less steel than the contract called for, the question .whether a reasonable time had elapsed within which to comply with the contract was' immaterial to plaintiff’s right to recover.
    . 5. Same — New Trial.

      Held, that the verdict was not against the weight of the evidence.
    Error to Wayne; Hally, J.
    Submitted January 21, 1914.
    (Docket No. 20.)
    Decided June 7, 1915.
    Assumpsit by Adolph Barlow against the Lincoln-Williams Twist Drill Company for the breach of a contract of sale. Judgment for plaintiff. .Defendant brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      ■Sloman & Sloman, for appellee.
   Bird, J.

This is an action to-recover damages from defendant for its refusal to accept and - pay for" 25 tons of high-speed steel, which it contracted for in writing, with the firm of Lowenthal & Co., on June 25, 1910. The defendant is a resident of Massachusetts. Lowenthal & Co. are residents of New York, with an office in Detroit. Lowenthal & Co. assigned their cause of action to Adolph Barlow, a resident of Detroit, and he brought this suit, and at the same time garnished Lowenthal & Co., his assignors, who were owing defendant $1,000 for drills. ‘ Substituted service was made in pursuance of .the statute on the defendant in Massachusetts, and it subsequently appeared by attorney and pleaded the general issue. The trial resulted in a verdict for the plaintiff, and defendant has assigned several errors thereon.

1. Error.is assigned on the refusal of the court to dismiss the proceeding. During the progress of the trial, defendant moved the court to dismiss the suit on the ground that it appeared that the assignment was made to the plaintiff to enable him to garnishee the assignors; that the assignee was merely a nominal plaintiff; that, as garnishee proceedings in Michigan are adversary proceedings, Lowenthal & Co. could not be both plaintiff and defendant; that to make such use of the writ of garnishment was an abuse of process for which this suit should be dismissed.

There seems to be no question but that Lowenthal & Co. had a cause of action against the defendant. If they did, they had a lawful right to assign it (3 Comp. Laws, § 10054, 4 How. Stat. [2d Ed.] § 12704), and, after the assignment was made, the plaintiff was the legal owner thereof. When he became the legal owner, he could bring suit thereon, and garnishee Lowenthal & Co. or any one else within the jurisdiction of the court whom he suspected of being indebted to the defendant. 3 Comp. Laws, § 10600 ét seg. (5 How. Stat. [2d Ed.] § 13436). It does not appear that any step was taken which was not authorized by the law, and, if such is the' case; abuse of process could not result therefrom. See Leeman v. McGrath, 116 Wis. 49 (92 N. W. 425). Neither the defendant nor his property was inveigled into this State by artifice or fraud, as was the case in Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690), nor whs process taken out for one purpose and used for another which was unlawful, as was done in Antcliff v. June, 81 Mich. 477 (45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533). As to the claim that garnishment proceedings are adversary in this State, it is perhaps true after they reach a certain stage. If the garnishee plaintiff, is content with the answer of the garnishee defendant, the proceedings are not adversary. If he is not content with the answer, the statute then puts it in his power to make an adversary proceeding of it, but it is not an adversary proceeding until it reaches that stage. We think the trial court properly denied the motion.

2. A variance between the declaration and proofs is claimed. The declaration counts upon the promise of defendant to accept the steel within a reasonable time, whereas the proofs, as evidenced by the contract, show that the defendant’s promise was to “do-everything possible to take it up within a reasonable time,” and counsel observes that there is a marked difference between a promise to do a thing within a reasonable time, and a promise to do everything possible to do it within a reasonable time. This distinction has more force when first stated than it has when we consider that, if the defendant did everything possible to accept the steel within a reasonable time, the same reasons which prevented the acceptance would operate to show that a reasonable time had* not expired, as the question of reasonable time must be determined in either event from all the circumstances attending the contract. But, whatever force this objection may have, it is rendered rather unimportant by the fact that the defendant claims it refused to accept any more of the steel because of its inferior quality before this suit was instituted.

3. It is argued that "there was no evidence at the time the suit was commenced that the time had -arrived when, under the contract, Lowenthal & Co. could rightfully require defendant to take any portion of the 25 tons of steel, and that therefore the action of the trial court in submitting that question to the jury was error. The material portions of the contract bearing on this question are:

“We expect to use at least twenty-five tons of this steel, but owing to the large quantity of high-speed steel that we now have on hand, and contracts that are in force, it is impossible for us at this date to limit the time that we will take the above twenty-five tons, although we will do everything possible to take it up within a reasonable time. It is understood that you are to carry the inclosed sizes in stock for us, and we are to order from time to time such quantities as we may need. Regarding quality. We are to be the sole judge of the quality,, and if we find that the quality is not equal to steel we are now using, it will be our privilege to cancel any arrangements that have been made.”

The proofs show that the contract was closed on June 25, 1910. This suit was not begun until February 20, 1912. Only a small amount of the steel was ordered during that period, notwithstanding the correspondence shows that defendant promised' repeatedly that orders for the same would be forthcoming. Finally, defendant refused to order any more of it, assigning as a reason upon the trial that the steel did not stand the test. Testimony was introduced showing the capacity and output of defendant’s mill, and the volume of business it was doing, and these were such that a jury might infer therefrom that the entire amount of steel contracted for could have been made use of within the time which elapsed. At least one reason why the steel was not ordered appears to be disclosed 'by a letter written by defendant to Lowenthal & Co. January 17, 1912, in which, among other things, it is said:

“Now, how is it possible, looking at the matter from our point of view, for us to continue to buy steel from you, when you have, up to the present'time, refused to pay for the drills you have had from us? If this was settled, there is no doubt but what we could continue to do business together pleasantly. You certainly cannot feel that you are encouraging us to place orders for steel.”

These items of proof, taken in connection with the other testimony in the case, were sufficient to justify the trial court in submitting to the jury the question of “reasonable time,” and also the question of “good faith” in passing upon the quality of the steel. But counsel again argues that a contract to perform within a reasonable time differs from one agreeing to “do everything possible to perform within a reasonable time.” The trial court appears to have recognized the particular elements which the contract made necessary in determining that question. The jury were instructed, in part, that:

“What was a reasonable time would depend largely upon the situation of ,the parties, the quantity of steel they had on hand, what they had contracted for, the capacity of the defendant’s factory to use up steel in the manufacture of drills, and any other facts or circumstances that the parties, had in mind at the time of the making of this contract for the purpose of determining what was a reasonable time.”

The defendant stipulated that it would do everything possible to perform within a reasonable time. Whether it did so was a question to be determined by the jury under all the circumstances, and especially with reference to the conditions mentioned in the contract having a direct bearing thereon. These things were specifically called to their attention in the foregoing instruction. The parties surely intended that the defendant should order the steel within some period, and they stipulated that an effort should be made to do it within a reasonable time. Whether the defendant did so was without doubt a question of fact.

But, as we have heretofore indicated, we are unable to appreciate the importance of the question as to whether the time for ordering the steel had expired, inasmuch as defendant itself made proof that it refused to accept any more of the steel, because it was below the contract grade. If defendant had concluded to accept no more of the steel, further compliance with the contract on its part was at an end, and whether the words “reasonable time” meant 18 months or 28 months would be a matter of no importance.

4. The verdict was not so decidedly against the weight of the evidence as to call for a reversal.

The other assignments of error have been considered, but we find no reversible error in them.

The judgment of the trial court is affirmed.

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


author: Steere, J.

text:
    SAGINAW MILLING CO. v. SCHRAM.
    1. Trial — Appeal—Justices op the Peace — Amendment.
    It was within the discretion of the trial court to refuse to permit the defendant, in an action for breach of a contract to sell certain hay, to amend his pleadings on appeal from justice’s court so as to cover the objection made by plaintiff that the notice of defense was insufficient and that if defendant relied upon any subsequent promises or representations of the plaintiff as a release from the contract it should have been pleaded.
    2. Pleading — Recoupment—Breach of Contract.
    Defendant, having pleaded in justice’s court that plaintiff failed to take certain hay which it had bought, and having claimed a recoupment, the pleadings, though sufficient as a defense for breach of the contract to take the hay, were insufficient to permit defendant to recover damages, and only entitled him to make proof that he was prevented from delivering the hay by the acts of the plaintiff, but where the parties had stipulated that the declaration, plea and notice were sufficiently broad to admit proof of breach of the contract, the objection was not tenable as a ground for excluding evidence of a trade usage for the purchaser to furnish a baler and pay the expenses of baling the hay.
    3. Customs and Usages — Contracts—Sales—Evidence.
    Where a contract of sale of a quantity of hay stated the ordinary terms of sale and contained the phrase, “we pay for baling,” being signed by both parties, testimony tending to show a usage or custom for the buyer to provide balers and pay the expense of baling the hay before delivery was admissible to explain the ambiguity.
    4. Same.
    Evidence of usage is admissible in connection with such informal meagre contracts, void of details as to be uncertain or ambiguous, not to ' contradict the well expressed intent of the parties but to explain or clear up doubtful provisions or even to supplement omitted or tacitly implied conditions incident to the expressed terms.
    5. Same — Pleading—Recoupment.
    A general custom need not as a general rule be pleaded but as the basis of an affirmative defense in recoupment it should be specially pleaded under Circuit Court Rule 7 in order to permit a recovery for the breach of a contract of sale made with reference to such custom.
    Error to Sanilac; Beach, J.
    Submitted January 5, 1915.
    (Docket No. 12.)
    Decided April 19, 1915.
    Assumpsit in justice’s court by the Saginaw Milling Company against John Schram for breach of a contract of sale. Judgment for defendant for an alleged recoupment. Plaintiff appealed to the circuit court which directed a verdict in its favor. Defendant brings error.
    Reversed.

      C. F. Gates, for appellant.

      H. O. Babcock and E. L. Beach, for appellee.
   Steere, J.

This case was begun in a justice’s court of Sanilac county, where judgment was rendered in favor of defendant under his claim of recoupment for $225.86, from which plaintiff appealed to the circuit court of said county where, on retrial by jury, a judgment was rendered in its favor on a directed verdict for $105.85, and defendant in turn has now removed the case to this court by writ of error with many assignments, which all condense to the question of whether the trial court erroneously excluded a line of testimony on which defendant relied, and without which he could not prevail. If the court rightfully excluded such testimony, the directed verdict for plaintiff was right.

The action was brought on the following contract, the italicized words being in writing and the remainder in print:

“Saginaw Milling Company agrees to buy and receive from John Schram, of Sandusky, and said John Schram agrees to sell and deliver in cars or shed at Sandusky before Dec. 15, about 80 tons baled hay at the. following p'rices: Per ton $9.75 loose. We pay for baling. No damaged hay to be accepted. Advance payment of one hundred dollars ($100.00) on the above is hereby acknowledged.
“Dated Oct. 22, 1912.
[Signed] “Saginaw Milling Co., Buyer, “By Timothy Simmons.
“Seller: John Schram.”

On joining issue in justice’s court both parties pleaded orally. Plaintiff declared on all the common counts in assumpsit and especially for $100 cash paid defendant on the contract, with interest and for damages sustained by reason of his nonfulfillment of the contract, making a total of $300. Defendant pleaded the general issue and gave notice of a claim by way of recoupment for damages he had suffered owing to plaintiff’s refusal to take the hay contracted for, obliging him to market his hay elsewhere at a reduced price, the market having fallen before plaintiff refused; and, on plaintiff’s demand for a bill of particulars of such claim of recoupment, stated items, for loss on decline of market, commission on resale, work and labor, storage, cost of baling hay and interest, totaling $761.25.

When the case came on for trial in the circuit court the following stipulation was filed:

“It is hereby stipulated and agreed by and between the parties to the above entitled case, by their respective attorneys, that upon the trial of said case in the justice court that the following agreement was made: ‘It is agreed by and between the parties hereto that the declaration, plea, and notice of the respective parties to this suit are sufficient, broad, and specific enough to admit of the proof of any damages that can be shown by either party for any and all breaches of the contract sued under.’ And it is agreed that the same stand in this court as though returned by the .justice.”

Upon the trial plaintiff made proof of the contract, the payment to defendant of $100 upon it and that the hay was never delivered to plaintiff nor offered for delivery after being pressed, and thereupon rested.

On defendant’s part it was claimed that the written memorandum of agreement was incomplete in certain particulars, requiring, for a correct understanding of its meaning, that it be bead and construed in the light of attending circumstances, well established and known customs of buying and marketing hay, and what was said between the contracting parties as to matters essential to performance of the contract, not mentioned nor specifically provided for; his defense and affirmative claim for damages under the plea of recoupment, to establish which he sought to introduce evidence, being, so far as important here, in outline, that by well-established custom prevailing in that market, well known to both contracting parties and regularly followed by plaintiff, hay purchased “loose” by dealers from farmers to be delivered baled was pressed at the expense of the purchasers by. pressers selected or approved by them; that this contract was made with this custom in view, talked over and understood between the parties at the time of the purchase, and that Simmons, plaintiff’s agent who made the purchase for it and signed the contract, in discussing the matter said to defendant, “We have our press, the Wedge boys do our pressing; all you have to do is to deliver the hay after it is pressed, and board the men while pressing hay;” that all the hay purchased by plaintiff in that locality was purchased under the same form of contract, with blanks for which its agents were supplied, and that it was pressed at plaintiff’s expense by whom and as it dictated; the reason and importance of the custom being that different sized bales were made for different markets, and it was in plaintiff’s interest for it to have authority to direct the size of bales, time and style of pressing, weighing, price, etc.; that defendant could not dictate the time of pressing and was not obligated to deliver it unless baled, nor after December 15, 1912; that he was anxious to deliver the hay within the time specified, being at all times ready and willing to do so, but was prevented by the fact that plaintiff did not send a press and men to bale it, though Simmons had promised at different times both before and after December 15th,to do so; that on January 6, 1913, defendant again interrogated Simmons in regard to the matter and was then informed for the first time that plaintiff would not receive the hay, instructions having been received from headquarters to receive no more; that the price of hay had then fallen, and on the next day plaintiff served a written notice on plaintiff that if it did not comply with the contract at once he could sell the hay elsewhere at best price obtainable and require it to make up the loss he sustained by reason of its breach of the contract.

Proofs offered by defendant to sustain this line of defense were objected to on the ground that the contract was complete, not uncertain nor ambiguous in any respect; that oral evidence could not be admitted to change or vary a written contract; that defendant could not prove a custom nor show that a written contract was changed after its execution without proper notice under his plea of general issue. This view was adopted by the trial court, most of the offered testimony being excluded during the interrogation of witnesses and the claimed effect of that which was admitted was nullified by a directed verdict for plaintiff.

The written agreement provides for delivery of “baled hay” in sheds or ears at Sandusky, bought at $9.75 per ton “loose.” “We pay for baling.” It is silent as to how, when or where or at what price the baling is to be done, or who is to be employed to do it. Grammatically “we” could neither refer to plaintiff or defendant, both parties signing being in the singular, nor could it reasonably be interpreted as meaning that the price of baling should be equally divided.

Amongst other ' questions asked of defendant and answers not permitted are the following:

“Was there anything said at that time (when the contract was entered into) as to who was to pay for the baling of the hay and how it was to be done?
“Do you know anything about the custom under these memoranda as to who does the baling?
“Were there any arrangements made as to whether they were to be large or small bales?
“Now, were there any arrangements made at that time as to when the baling was to be done?
“Was there any statement made at that time as to what press if any the plaintiff would furnish?
“Were there any arrangements or agreements made as to who was meant by ‘we,’ when it says, 'We pay the baling?’
“Counsel: Do I understand the court shuts out anything that was said touching that phrase, 'We pay for the baling?’
“The Court: Yes; I think so.”

Defendant having testified to seeing Simmons • at different times after the contract was made, was not allowed to apswer any questions touching conversations between them relative to subsequent promises and agreement claimed to have been made. Of this line of inquiry defendant’s counsel said to the court, when arguing the objections:

“We wish to show that at that time the plaintiff company agreed that they would send their press there and that Mr. Schram informed them that he was ready for it at different times, that he expected they would send it there, and that Mr. Schram went to see them at different times, from that time to the 6th of January.”

Simmons, called under the statute by defendant, having testified that he made various other contracts of like nature using the blank forms, was asked, amongst others, the following questions, objections to which were sustained:

“Who did the pressing of the hay you bought under those contracts ?
“Did you at that time have a presser engaged to press the hay you purchased under these memoranda taken from that book as you filled them out?
“Was it not the custom in this county, not only with the plaintiff company, but with all the other buyers of hay, to have a press to press the size bales they-wanted for the market?
“Did you state to defendant, at the time of making the contract, that you had a gasoline press, and if he sold the hay to them he would have to buy no fuel as you furnished your own gasoline?”

Other witnesses, including hay dealers of experience in that locality and elsewhere, were called and interrogated as to the general custom and usages of trade in buying and selling hay, but not allowed to answer.

In charging the jury the court stated that there might be some uncertainty as to who was to pay for this baling, but it was the opinion of the court “we” meant plaintiff; but that defendant was precluded from making his proposed proofs and claimed defense because “the issue made by the pleadings is simply a straight issue, denying that the defendant refused or neglected to deliver the hay. If the defendant intended to claim here, or had a right to claim in the face of the explicit terms of this contract, that he was prevented from delivering it by representations or promises made by plaintiff after the contract was made, that should have been set up in the pleadings.”

Defendant’s counsel then interposed and moved that the case be then opened and the pleadings amended to cover the suggestion of the court, claiming the point had not been raised in objections of plaintiff to questions and offers of proof. It was held that this motion was too late. This ruling was clearly within the discretion of the court.

We are impressed that, as applied to defendant’s affirmative plea in recoupment, where he virtually became a plaintiff seeking to recover damages for breach of contract, there is force in the contention that his pleadings are lame; but considered as a negative plea in defense of plaintiff’s action for damages against him, his oral pleadings in justice’s court as outlined, when construed with the stipulation quoted, entitled him in his defense to much of the testimony offered to negative the claim of plaintiff by showing that it, and not he, was in default.

To that end we think it was competent for defendant to show, if able, not in contradiction but in explanation, the manner in which' the parties themselves construed the indefinite “we” as inserted in a separate sentence of the contract, and any subsequent promises of plaintiff to the same effect; and also to show a custom of the trade known to both and in relation to which they contracted, if such general custom existed. Evidence of usage is permissible in connection with such informal and meager contracts void of details, not to vary or contradict the well-expressed intention of the parties so far as clearly expressed in writing, but to explain doubtful provisions of the contract, and even to supplement omitted but tacitly implied incidents to those actually expressed. Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); 12 Cyc. p. 1082.

A general custom need not as a rule be pleaded. Fish v. Manufacturing Co., 120 Mich. 500 (79 N. W. 793); Miller v. Insurance Co., 1 Abb. N. C. (N. Y.) 470; but as an affirmative defense, for the purpose of recoupment, it undoubtedly should be specially pleaded, not only under the general rules of pleading, but especially under Circuit Court Rule 7. While the trial court rightly held that under the pleadings defendant could not maintain his plea of recoupment, and the testimony excluded was not admissible for that purpose, we think much of it was admissible in defense, against plaintiff’s claim, under the plea making’ general denial of liability and charging that plaintiff released defendant by first breaching the contract.

Although the trial court did not abuse its discretion in ruling that the motion to amend came too late at the stage of the trial then in progress (Hermann & Co. v. Department Store, 160 Mich. 224 [125 N. W. 49]), inasmuch as a retrial must be granted, the court may, and we think should, in view of the stipulation as to the pleadings, grant a timely made motion to amend defendant’s plea.

The judgment is reversed, and a new trial granted.

Beooke, C. J., and McAlvay, Kuhn, Stone, Osteandee, Bied, and Mooee, JJ., concurred.


author: Me Alva Y, J.

text:
    SHELDON AXLE CO. v. LANDMAN.
    1. Parties — Joint Defendants — Service of Process — Statutes.
    Under 3 Comp. Laws, §§ 10373-10375 (5, How. Stat. [2d Ed.] §§ 13087-13089), authorizing the commencement -of suit against joint promissors and authorizing plaintiff to proceed against the defendant upon whom service could he obtained, it is not necessary to show that plaintiff was unable to obtain service upon the codefendant.
    2. Guaranty — Sales—Delay—Time.
    Mere delay in the shipping of goods beyond the date fixed in the order did not operate to relieve the guarantors of the payment of the purchase price where defendants signed the guaranty with full knowledge that the plaintiff required the same before the order would be filled, and any delay caused in filling the order was attributable to neglect to furnish such guaranty.
    Error to Kent; Perkins, J.
    Submitted January 8, 1915.
    (Docket No. 30.)
    Decided June 7, 1915.
    Assumpsit by the Sheldon Axle Company, a foreign corporation, against John W. Landman and George Van Antwerp upon a guaranty. Judgment for plaintiff. Defendant Landman brings error.
    Affirmed.

      William J. Landman, for appellant.

      Cleland & Heald, for appellee.
   Me Alva Y, J.

This suit was brought by the plaintiff against the defendants to recover upon a certain agreement in writing whereby they guaranteed the payment of a certain order for goods purchased from the plaintiff by the Van L. Commercial Car Companjr of Grand Rapids. A trial was had before the court without a jury, and a judgment recovered by plaintiff against defendants for the full amount of its claim. Defendant John W. Landman has removed the case to this court for review upon errors assigned.

The facts in the case are as follows: The Van L. Commercial Car Company, a Michigan corporation, of Grand Rapids, of which the defendants were respectively president and treasurer, on October 12, 1911, through Mr. Russell, a salesman of plaintiff, gave an order for the purchase of certain goods manufactured and sold by plaintiff, amounting to the sum of $878.71, terms net 30 days, to be shipped to arrive at Grand Rapids, Mich., on or before November 1, 1911. The order was taken on the order blanks of plaintiff and accepted in writing by the Van L. Commercial Car Company by defendant Van Antwerp, who was its president. The main office and business of plaintiff was located at Wilkesbarre, Pa., with a branch office at Chicago.

This order was sent to the Chicago office, and from there forwarded to the home office in Pennsylvania by a letter written by the salesman, who took the order. This letter contained the following statement:

“They have referred us to R. G. Dun & Co. and wish us to discount their bill. Please do not hold their order up for reference.”

The record shows that all matters of credit were passed upon at plaintiff’s home office. The result of an investigation made by plaintiff of the credit of the Van L. Commercial Car Company appears from the following letter which was sent by the Chicago office to said company and its president, October 18, 1911:

“Me. Geoege Van Antweep,
‘Van L. Commercial Car Co.,
“Grand Rapids, Mich.
“Dear Sir:
“We are this day in receipt of a telegram from our home office to the effect that they are unable to find anything in the commercial reports which would warrant proceeding with your order and would therefore suggest arrange as on your previous order.
“We regret the necessity of writing to you to this ■ effect but the earlier our treasurer receives satisfactory information as to your credit the earlier the order would be entered in the mail.”

In reply to this letter, the following communication, dated October 19, 1911, was sent by the defendants to the Chicago office of plaintiff:

“Sheldon Axle Company,
“68 E. 12th St.,
“Chicago, 111.
“Gentlemen:
“Attention Mr. Russell. Yours of the 18th at hand and note that your company at Wilkesbarre, Pennsylvania, were unable to find satisfactory rating to warrant proceeding with order.
“We have not turned in any statement either to R. G. Dun or Bradstreet, which is no doubt the reason your company cannot find our standing. _ Mr. John W. Landman, treasurer of our company, is perfectly willing to go good on this order and the writer is personally willing to do the same.
“Hoping this will be satisfactory to you and to your company, we, the undersigned, personally will guarantee the' above.
“Yours very truly,
“Geoege Van Antweep, President, “John W. Landman, Treasurer.”

The foregoing is the guaranty upon which suit is brought and was received by plaintiff at the home office at Wilkesbarre, Pa., October 27, 1911.

The record shows that the delay in manufacture and shipment of these goods was accounted for by the delay in obtaining satisfactory assurances as to credit; that it is plaintiff’s practice not to put on an order until it is satisfied as to the credit of the purchaser. These goods named in the order were all shipped to, received and accepted by, the Van L. Commercial Car Company, of which these defendants were president and treasurer. No witnesses were sworn or testimony given on the part of the defendants. The findings of fact and questions of law were filed by the court with the result already stated.

The questions involved and errors upon which appellant John W. Landman relies, as stated in the brief of his counsel, are as follows:

“(1) Appellant claims that it was error to permit the taking of any testimony in the case until service was made on defendant Van Antwerp, or proper showing was made of inability to serve him.
“(2) Appellant claims that it was error to find that he was bound as a guarantor for the payment of goods on orders which read that the goods named therein were to be shipped so as to reach Grand Rapids on or before November 1, 1911, when none of said goods, according to the undisputed facts, were shipped before November 14, 1911.
“(3) Appellant claims that it was error to find as a fact that the goods named in the order were duly received and accepted by the Van L. Commercial Car Company with the knowledge and consent of defendants herein in the absence of testimony to that effect.”

1. In this case service of the declaration by which the suit was commenced was made only upon defendant Landman. It is his contention that by such service the court did not obtain jurisdiction to hear this case, and upon this contention the first group of errors assigned is based. It is contended that it is necessary that, before evidence can be introduced in a case against joint defendants, there should be a showing made that the defendant not served cannot be ■ found.

Plaintiff contends that these proceedings were regular and authorized by the following statute:

“Where an action against two or more persons upon any joint obligation, contract or liability, shall be commenced by the filing and service of a declaration, and it shall appear by the certificate of the sheriff, or by due proof, that the same has been served upon either of such persons, the defendant so served shall answer to the plaintiff, and the judgment in such action, if rendered in favor of the plaintiff, shall be against all of the defendants, in the same manner as if all had been served with such declaration; which judgment shall have the like effect, and execution thereon shall be issued as if process had been served on one of them.” Section 10375, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13089).

The last clause of the above section refers to the provisions relative to issuing executions in cases where but one of the joint defendants is served with process, provided for in the two preceding sections, 10373 and 10374. There is no dispute in the case but that appellant Landman was duly and regularly served with a copy of the declaration in this case. The statute in question was enacted in 1839. It was declared constitutional in Brooks v. McIntyre, 4 Mich. 316. It has frequently been before this court in cases where service has been had upon one joint defendant and the jurisdiction of the court upheld. Judgments entered in form against joint defendants have been held good where service by virtue of this statute was had upon but one defendant. It has been held not applicable as against joint garnishee defendants. It was not necessary under this statute for plaintiff to make a showing of inability to obtain service upon defendant Van Antwerp. The court was not in error in receiving the testimony offered on the part of the plaintiff.

2. Appellant’s second contention is that delay in shipment of these goods beyond the date in the order worked a release of the guarantors. The delay in shipment was not caused by the plaintiff, but by the purchaser of these goods and these defendants. Notice that the date of delivery would depend upon the receipt of a satisfactory guaranty was given in the letter which notified them the goods would not be sold unless the account was guaranteed, as follows:

“The earlier our treasurer receives satisfactory information as to your credit the earlier the order would be entered in the mail.”

The defendants in this case signed the guaranty with full knowledge that the plaintiff required it and that the earlier it was furnished the earlier the goods would be shipped. This guaranty was part of a letter which they, as officers of this company, engaged in carrying on its business, were writing to the plaintiff company in answer to a demand for a guaranty of the payment of this order and in which they made no claim to cancel or rescind the order on account of delay in delivery, and by so doing acquiesced in whatever delay might occur in the delivery of these goods. Plaintiff, after the receipt of this guaranty, on October 27, 1911, at once set about filling the order and began shipment of the goods on November 14, 1911. The court, therefore, was not in .error in holding appellant bound as a guarantor and that the delay in shipment did not work a release.

3. The third contention of defendant relates to one of the findings of fact by the court, claiming that it was not supported by the evidence. This finding reads:

“All of the goods were duly received and accepted by the said Van L. Commercial Car Company with the knowledge and consent of the defendants herein.”

From an examination of all of the evidence in the case we are satisfied that it warranted this finding. The trial court was therefore not in error.

The judgment of the circuit court stands affirmed.

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


author: McAlvay, J.

text:
    FLEMING v. FLEMING.
    Divorce — Alimony — Children — Husband and Wife — Earnings of Wife.
    An award of $9 a week alimony out of $18 earned by the husband weekly was n.ot unreasonably low in favor of the wife, who was able to earn upwards of $7 a week, and it was not improper to refuse permanent alimony out of real property owned by the husband in value not to exceed $1,300, where there were three children to be cared for and the husband had no other sources of income except the property and Ms labor as a teamster.
    Appeal from Wayne; Mandell, J.
    Submitted January 22, 1915.
    (Docket No. 132.)
    Decided June 7, 1915.
    Bill by James Fleming against Catherine Fleming for divorce. From a decree for defendant, awarding a divorce upon her cross-bill, defendant appeals, claiming the alimony awarded to be inadequate.
    Affirmed.

      McHugh, Gallagher, O’Neil & McGann, for complainant.

      Edward Pokorny, for defendant.
   McAlvay, J.

Complainant filed his bill of com-, plaint against defendant for the purpose of obtaining a divorce, upon the ground of extreme cruelty. Defendant answered in the nature of a cross-bill, praying for a decree of divorce in her favor, also upon the ground of extreme cruelty, for the care, custody, and control of the three minor children, and for a portion of the property of defendant for the support of herself and children. Complainant answered this cross-bill. Issues were joined upon these pleadings.

The cause came on to be heard before the court, and resulted in a decree in favor of defendant, granting to her a divorce from complainant on her cross-bill, and giving her the care and custody of the three children. The decree ordered the complainant to pay defendant the sum of $9 per week permanent alimony for the care, support, education, and maintenance of the three children, making such payments a lien upon the real estate of complainant which these parties had occupied as their home. Defendant has appealed, and in the brief of her counsel it is stated that such appeal is from that portion of the decree fixing alimony.

The facts, briefly stated, are that these parties, now getting toward middle life, were married in 1902, and have three minor children, the eldest being nine years of age; that their married life has not been, at least for a considerable portion of it, a pleasant one. It appears that defendant filed a bill of divorce against him in October, 1907, on the ground of extreme cruelty; that their difficulties were in a measure reconciled, and she withdrew this proceeding, and they went to living together again; that she has separated from him several times; that some time in the year 1908 complainant filed a bill for divorce against his wife, which resulted as the first one referred to filed by her. It was withdrawn, and they again lived together as husband and wife. Finally, before the bill of complaint in this cause was filed by him in March, 1912, defendant took from their house all of the furniture she desired, together with a piano which he had purchased for her, and the three children, without his knowledge, while he was at work, going to the house of her sister to live, where she was at the time he filed this bill of complaint.

Complainant was a teamster, owning a horse and wagon, having constant employment for a good concern, earning $18 a week. It is not disputed that according to his ability he provided for his family during the years since the parties were married, nor that he is a good worker, constantly employed. His employment, above stated, still continues, and she is earning at regular employment $7 per week. The only property he has is the house mentioned, which he owned when they were married, and which is considerably out of repair. The estimated value of this property, according to the record, considering its condition, is about $1,300.

Upon the merits of this case we are not called to pass, except so far as the question of the sufficiency •of the provision in the decree as to alimony is concerned, to which question both parties in their briefs before this court confine their arguments.- It is claimed upon the part of complainant’s counsel that the actual allowance of alimony by the court was $8 per week, and that the provision in the decree for $9 per week was a mistake. However that' may be, attention of this court was called to it only since the case was submitted, and as we find from the decree, as certified in the original files, it is, as first stated in this opinion, $9 per week permanent alimony for the care, support, education, and maintenance of the minor children until further order of the court. The learned trial judge before whom this cause was heard saw these parties and the witnesses and heard all the testimony in the case. It is claimed, and not denied, that at his request further testimony was taken relative to the value of this property of complainant.

Complaint is made on the part of defendant and appellant that no permanent alimony was allowed by the court to her. It is apparent from a careful examination of the record that the court took into consideration the relations of these parties to each other, the small amount-of property held by complainant, the necessity for him to continue to be a producer, and, if anything is to be realized eventually out of the property in favor of these children, the necessity of having it preserved free from incumbrance, which the lien of the allowance to the wife for these children practically insures. This would be impossible if he were required to make payment of permanent alimony to her, as his only resource for obtaining money outside of his wages is this little property. It was not acquired by the joint efforts of these parties, and the record shows she has persistently desired for several years to get the title in her name. Whatever may be said of complainant’s habits, he did not appreciably squander his income and provided well for his family.

Our opinion is that the trial court arrived at a fair and equitable conclusion upon the question of alimony, considering the small amount of property owned by complainant and the earning capacity of both parties to this litigation.

The decree of the circuit court is affirmed, without costs to either party.

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


text:
    EDWARDS v. MUDGE.
    1. Life Estate — Deeds—Construction—Lost Instruments — Evidence.
    In a suit to determine the interest of the various parties in certain real estate, wherein complainant claimed that a certain lost instrument granted only a life interest to the grantee, a son of the grantor, defendant contending that the instrument conveyed a life estate to the son with remainder over to- the grandson, evidence reviewed and held, to sustain the contention of the defendant that a life interest with remainder over was conveyed by the lost deed.
    2. Same — Wills—Interpretation—Intent.
    In construing a will the entire instrument should be considered to ascertain what was the intent of the testator.
    3. Same.
    Where the view presented by complainant’s contention was contrary to the settled principle for construing wills, that the testator will not be presumed to have intended that any portion of his property should be left undisposed of by his will, and where the evidence of the testator’s acts and the estates granted by his will tended to show that he wanted his property to be divided in the manner claimed by defendant, the decree of the trial court granting relief to the complainant is reversed, and an estate in remainder in the property, held, to have vested in the testator’s grandson.
    Appeal from Barry; North, J., presiding.
    Submitted November 6, 1914.
    (Docket No. 146.)
    Decided June 7, 1915.
    Bill by Gertrude Mudge Edwards against Royal Mudge, Jr., and others, for partition and other equitable relief. From a decree for complainant, defendant Royal Mudge, Jr., appeals.
    Reversed.

      Frank A. Dean, for appellant Royal Mudge, Jr.

      Colgrove & Potter, for appellee.
   McAlvay, J.

The bill of complaint in this cause was filed by complainant against these defendants for the purpose of determining their respective rights in and to certain real estate in the city of Hastings, in Barry county. The questions involved are principally questions of fact, which for the most part are not in dispute. The history of the property involved in this litigation, as far as it is connected with any of the members of the family now seeking to determine their interests, therein, is as follows:

In September, 1890, Dorr L. Mudge, now deceased, purchased of one Valentine Lyons on a contract the property in question, agreeing to pay therefor the sum of $1,680. At this time he was engaged in the clothing business with his father in Hastings, and so continued until the year 1894, when the young man retired. In January, 1894, he owed $300 on this contract. During the preceding year Dorr L. Mudge had some disagreement with his father, Royal Mudge, Sr., growing out of their business relations, and on January 3, 1894, being in arrears in his payments on this contract, his father paid the balance due thereon and took a deed of the premises from Lyons and wife to himself. The dispute in this case arises out of the disposition at once made of this property.

It is claimed on the part of the defendant Royal Mudge, Jr., son of Dorr L. Mudge, that on the same date his grandfather, Royal Mudge, Sr., conveyed the title to said premises by a good and sufficient instrument in writing then executed and delivered, giving to Dorr L. Mudge a life lease thereof, with remainder over to his son, Royal Mudge, Jr. It is admitted by complainant that Royal Mudge, Sr., executed and delivered at that time to his. son, Dorr L. Mudge, a life lease.

It may be stated here that the principal question, and practically the only material one in dispute in this case, is whether this was a life lease to Dorr L. Mudge, or a life lease to him, with remainder over to Royal Mudge, Jr., his son. Dorr L. Mudge had married June 30, 1887. His son, Royal Mudge, Jr., was born December 19, 1888.

After the purchase of these premises under contract by Dorr L. Mudge, he moved into the house and resided there with his family, including Mrs. Ingram, his wife’s mother, for about four years. In 1895 Dorr L. Mudge and his. wife separated, and were divorced in 1896. During all the time after the purchase of these premises, with the exception of about two years, when he and his wife were separated, this family, or all of it except Dorr L. Mudge, occupied these premises, until November, 1901, when the wife of Dorr L. Mudge married Mr. Sylvester and went to Charlotte, after which it was occupied by Mrs. Ingram and Royal Mudge, Jr., until 1902, when the boy went to Charlotte to live with his mother, Mrs. Sylvester.

In 1902, several years before the dispute involved in this suit arose, negotiations were pending between Dorr L. Mudge and one of the present solicitors for complainant relative to the purchase of his interest in these premises, but no sale was made. On December 13, 1904, Dorr L. Mudge quitclaimed his interest in this property to Alonzo E. Kenaston, who at once went into the possession and control thereof and collected rents until the death of Dorr L. Mudge, which occurred October 28, 1907, when Mr. Kenaston surrendered such possession to Royal Mudge, Jr., giving him the keys of the premises, and he has had control and possession of the property continuously since that time.

The instrument in question was never recorded. It was given by Royal Mudge, Sr., to his son, Dorr L. Mudge, and was in the possession of and kept for him by Mrs. Ingram, his wife’s mother, from 1894 to 1902. She then delivered it to Dorr L. Mudge upon his request. It was in his possession after that, and in September, 1902, was seen, read, and examined by one of the solicitors for complainant with a view to purchasing his interest. He still had it on December 13, 1904, the time he quitclaimed his interest in these premises to Mr. Kenaston and delivered it to him. The record shows that it was last in his possession, and that he made diligent search for it and could not find it. He died May 9, 1910. The bill of complaint in this, cause was filed on or about January 26, 1911.

This court must determine the character of this lost instrument. For this purpose we will first examine this record to ascertain what the grantor, Royal Mudge, Sr., during his lifetime, has said it was, or how he considered and treated it in making final disposition of his estate, as appears from his last will and testament, executed only a few months after the lost instrument. We find that Royal Mudge, Sr., died November 18, 1894, leaving four children, who were the complainant, Mrs. Edwards, Dorr L. Mudge, and two younger daughters. He was a man of considerable property, and left a last will and testament, dated September 17, 1894. His will was probated December 21, 1894, and Daniel Stryker, the executor named therein, was appointed executor. Soon after his appointment Mr. Stryker died, and Alonzo E. Kenaston was appointed administrator de bonis non. It will be necessary only to copy one paragraph of this will, and to refer generally to its other provisions. The first provision therein, disposing of any of his property, reads as follows:

“Item. Having heretofore given to my son, Dorr L. Mudge,_ a life lease of the house and premises of which he is now possessed and situate in the city of Hastings aforesaid, and being desirous that each of my four children should have an equal share of my property, to make the shares of each of my other three children equal with that already given to my son Dorr L., I therefore give, grant, devise and bequeath to my youngest daughter, Lena Mudge, the homestead upon which I now reside, situate on the southeast corner of Green and East streets and being lot number three and the west half of lot number two in block number eight, in the city of Hastings aforesaid, with all the appurtenances, including the house and all the furnishings therein, to have and to hold the same for and during her natural life, the reversion and remainder I give, devise and bequeath to the heirs of her body, to have and to hold forever.”

The devises of real estate to the two remaining daughters, Maud Mudge and Gertrude Mudge (the complainant), each contain the same language as to the estate devised, as follows:

“To have and to hold the same for and during her natural life, the remainder and reversion to the heirs of her body, to have and to hold the same forever.”

The testator made further provision for these two daughters, Maud and Gertrude, for a building upon the premises devised to each, as they reached the age of 21 years, a dwelling house to cost at least $1,700 complete, and to each the additional sum of $1,000 for furnishing said dwelling. He made provision for the sale of the stock of goods in the store building and for renting the store, and for the disposition of such other real estate of which he might die seised. He also made a final disposition that after debts were fully paid and his estate settled, and after each of the three daughters had reached the age of 21 years, as follows:

“So long as there shall remain anything of said estate my executor shall pay to my children, Dorr L. Mudge, Gertrude Mudge, Maud Mudge and Lena Mudge, each, the sum of three hundred dollars annually and such fractional part of said sum as shall remain for the final or last payment.”

In this closing paragraph of his will he emphasizes the nature of the estates in lands devised, by saying:

“It is especially understood that the devises herein to each of my said daughters herein are intended to devise and bequeath to each of them an estate in said lands * * * for and during their lives respectively, and that after the termination of said life estates the remainder shall revert to their respective next of kin and heirs at law, to have and to hold to them and their heirs forever.”

A careful examination of this will discloses without question the expressed desire and intention of this testator that each of his four children should share equally in his property, and clearly states that he has already given to his son, Dorr L. Mudge, his share, described by him as “a life lease of the house and premises of which he is now possessed and situate in the city of Hastings aforesaid.” And later in his will he carries out this intent to equally divide his estate among his children by the equal division among them of the rest and residue thereof not already specifically given, devised, and bequeathed. In this division his son, Dorr L. Mudge, partakes share and share alike with his three sisters.

’ It will be further noted that the devises of property made by the testator in this will in each instance create only a life estate in each of the three children there mentioned, with remainder over to the heirs of the body of each of them. The expressed intention by the testator, which is unambiguous and too clear to be questioned, to divide his estate equally, would fail of execution if the lost instrument made no disposition of the remainder over after the expiration of the life estate created in his son, Dorr, as is contended by the complainant.

It is a fundamental rule of the construction of wills that the intent of the testator must be found from the entire instrument. Applying this rule, no other conelusion can be drawn than that he intended to equally divide his estate; that he had in mind a perfect plan and intention relative to the division of his estate among those entitled to his bounty, which was formed and present at the time he gave to his son, Dorr, his share, and was completely carried out at the time he executed his will.

If the contention of complainant that this instrument created but a life estate in the son, Dorr L. Mudge, is accepted, we find that it is contrary to another well-settled rule for the construction of wills, namely, that it will be presumed that the testator did not intend to die intestate as to any of his property, for the reason that such construction would leave Royal Mudge, Sr., intestate as to a one-fourth interest in the property in dispute. This rule will not be violated, unless the presumption'is rebutted by the provisions of the will, or evidence to the contrary. In the instant case neither of these conditions is present.

The only witness in the case who has given testimony as to statements made by Royal Mudge, Sr., relative to the character of the lost instrument, is Mrs. Ingram, the mother of the first wife of Dorr L. Mudge. It appears from her testimony, and it is undisputed, that this instrument was handed to her by Dorr L. Mudge at or about the time he received it from his father, and that it was kept by her in her possession for eight years thereafter. She knew its contents, and heard it read' and discussed several times in the family. She is not a party to this litigation, and is in no way interested in the matter, or disqualified from testifying as to the statements made by Royal Mudge, Sr., or Dorr L. Mudge.

Very soon after this instrument was executed by Royal Mudge, Sr., she had a conversation with him relative to it, in which he said to her that he had provided a home for his son for his lifetime, and that if he had given him the right to squander it he would not have had a cent at the end of the year; that as it was fixed there was something left to protect his wife and child. She testified positively that the lost instrument gave a life lease of the premises to Dorr L. Mudge, and that upon his death the property was to go to Royal Mudge, Jr., his son. She also testified that, when his father gave this instrument to Dorr L. Mudge, he came to the house with it and was very angry because he had only a life lease in the property, and then it was to go to his son; that he said, “I have got the deed, but I will burn it up.” He said that his father asked him to have it recorded, and told her never to let it go on record, “to show the people of Hastings that I am not capable of running my own business, that I have got to have a life lease and to know that my — that I can’t take care of my son and have it go to him.”

The witness, in describing this instrument, said she remembered that across the top of it on the back it read, “Royal Mudge to D. L. Mudge,” and also that she remembered the name of James Sweezy was on the instrument. Mr. Sweezy was a member of the bar of that county in good standing, and is one of the witnesses to the will of Royal Mudge, Sr.; the other witness being a woman. A natural inference is that Mr. Sweezy drew both the will and the lost instrument. He died before this suit was brought.

Mr. Kenaston, who acquired the interest of Dorr L. Mudge in these premises December 13, 1904, is the same person who has been appointed administrator de bonis non-oí the estate of Royal Mudge, Sr., and was so acting at the time. After the death of Dorr L. Mudge, Mr. Kenaston at once surrendered his possession and delivered the keys, of the property to Royal Mudge, Jr., who, claiming ownership of the title thereof, has since that time had exclusive control and possession. Mr. Kenaston, during the years after he received the quitclaim deed from Dorr L. Mudge, and while he was administrator de bonis non of the estate of Royal Mudge, deceased, never made any claim on behalf of said estate that these premises belonged to and were a part thereof, although he continued to administer said estate until it was finally settled and closed by him on July 28, 1909. He died on May 9; 1910.

This suit was instituted by complainant, who is the only member of the Mudge family interested in her contention that this lost instrument conveyed only a life lease to Dorr L. Mudge; the two sisters, Maud and Lena Mudge, having quitclaimed any interest they might have to Royal Mudge, Jr., for the nominal sum of $1 in December, 1907, a few weeks after the death of Dorr L. Mudge.

Defendant A. A. Anderson is administrator of the estate of Alonzo E. Kenaston, deceased. Defendant Eva Kenaston is his widow and the mother of his minor son, Leland Kenaston, of whom she is guardian. These persons are made parties defendant to this cause upon the theory of complainant that Alonzo E. Kenaston acquired a one-fourth interest in' these premises by virtue of the quitclaim deed to him from. Dorr L. Mudge.

All of the defendants filed answers, upon which issues were joined; but Royal Mudge, Jr., is the only one who made any contest. The cause was heard before the court, and resulted in a decree in favor of the complainant. From this decree, defendant Royal Mudge, Jr., has appealed to this court.

Considerable of the testimony in the case was objected to on various grounds — for example, the testimony given by Judge Clement Smith, of Hastings, and four or five other men of character and standing, who testified relative to conversations had with Mr. Kenaston in regard to the nature of this lost instrument, and which testimony was objected to as incompetent, as was also testimony of other witnesses relating to other matters. Such testimony has not been considered.

We have carefully considered all of the evidence in the case which is not subject to objection, and we find, from the will of Royal Mudge, Sr., from his statements made relative to this lost instrument, and the statements of Dorr L. Mudge, together with other testimony, abundant evidence which convinces us that the lost instrument conveyed to Dorr L. Mudge a life lease, with remainder over to his son, Royal Mudge, Jr. While it is true that this instrument was not recorded, there is undisputed testimony accounting for the same, at least, up to the time he made his conveyance by quitclaim to Mr. Kenaston.

The record shows that Royal Mudge, Sr., felt that his son spent too much money and too much time in hunting and fishing; that he was an idler, and that at or about this time he dissolved their business relations. It shows, that, when he gave his son, Dorr L. Mudge, this instrument, it made the son angry. His. language indicates that he felt humiliated, and for that reason, although his father had told him to have it recorded, he instructed his mother-in-law not to let it go on record. It is undisputed that she kept it from that time for eight years, until he came for it, when he was having negotiations with different parties relative to selling his interest. It is undisputed that he kept this instrument until he sold his interest.

Mr. Kenaston has indicated, by his conduct in surrendering these premises as soon as Dorr L. Mudge died, how he regarded this instrument. He was a real estate attorney and could construe it. The fact that he did not record it is strong evidence in favor of the conclusion at which we have arrived — that it was a life lease, with, a remainder over. Under no other theory can the fact that he did not record it be accounted for. As owner of the life estate in possession, he had no other interest in the fee to protect against subsequent purchasers. This conclusion is the only one which harmonizes the material evidence in the case; which carries out the undoubted intention of the grantor in the matter of the equal distribution of his estate to his family, and leaves the investigator of these facts satisfied that such conclusion is the only one consistent with the great weight of the evidence.

The decree of the circuit court is therefore reversed, and a decree will be entered in this court, in accordance with this opinion, in favor of the defendant Royal Mudge, Jr., and against complainant, dismissing her bill of complaint, with costs of both courts in favor of said defendant.

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


author: Kuhn, J.

text:
    CASE v. RUDOLPH WURLITZER CO.
    1. Pleading — Declaration ■ — ■ Counts — Election—Inconsistent Claims.
    On tlie trial of an action of assumpsit based upon tbe claim that plaintiff’s assignor bad a special contract with defendant for a percentage of sucb business as he might procure from the sale of musical instruments, where plaintiff included a count in her declaration upon a special contract and joined therewith the common counts in assumpsit, the court did not err in refusing to require plaintiff to elect upon which theory she would go to the jury.

      2. Contracts — Commissions •— Express Contract — Quantum Meruit.
    Plaintiff was entitled to have the case submitted to the jury upon evidence tending to show that he was a musical instrument dealer in the section in which he resided; that defendant secured information from him which led to the sale of certain musical instruments to persons known to the plaintiff, and although the jury found against plaintiff’s claim that an express contract of agency for the exclusive handling of defendant’s goods was in existence between the parties, evidence that plaintiff was the procuring cause of the sale and defendant knowingly accepted and availed itself of his services sufficiently sustained the verdict of the jury.
    3. Same — Implied Contracts — Compensation.
    The law will ordinarily imply a contract to pay a full and reasonable compensation to one who was the procuring cause of a sale and of whose services the vendor knowingly availed himself.
    4. Trial — Argument—Opening oe Counsel.
    Although plaintiff’s counsel was not justified in his opening statement to the jury in making an argument that he was not asking a verdict because his client was a woman and the defendant a corporation, and though in arguing his case to the jury he improperly referred to an assignment or writing made by an alleged agent to plaintiff in which it was stated that the commission due him was $1,000, the alleged errors were not so prejudicial as to require the reversal of the judgment in plaintiff’s favor..
    5. Evidence — Contracts—Secondary Evidence.
    Objections on the part of defendant that preliminary negotiations and correspondence were offered by plaintiff and. received in evidence tending to show the execution of a contract and that the court erred in allowing secondary evidence of the contents of the alleged special agreement between the parties because of insufficiency of the proofs of its loss, were not fatal when the finding of the jury awarded the sum plaintiff was entitled to recover under the common counts, instead of under his claim of a special contract, thereby rendering the objections untenable and the error, if any, harmless.

      Error to Berrien; Bridgman, J.
    Submitted January 27, 1915.
    (Docket No. 116.)
    Decided June 7, 1915.
    Assumpsit by Ada Case against the Rudolph Wurlitzer Company for commissions earned by plaintiff’s assignor. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cady & Andrews, for appellant.

      John J. Sterling, for appellee.
   Kuhn, J.

The plaintiff is the widow and assignee of B. R. Case, who was formerly the proprietor of a retail music store in St. Joseph, Mich., and the defendant is a manufacturer of automatic musical instruments, with its principal offices at Cincinnati, Ohio. It appears that in November, 1905, Case wrote a letter to the defendant, and thereto received a reply offering Case the exclusive sale in his section of certain goods manufactured by them. It is the claim of the plaintiff that as a result Case and the defendant entered into a written contract in November, 1905, in which it was provided that Case should have the exclusive right to sell all Wurlitzer goods within Berrien county, on a basis of 20 per cent, commission on the list price in the catalog. It is claimed that this contract was executed in duplicate, and that the copy retained by Case was lost. The defendant denies that any such contract was ever executed or ever existed.

In April, 1906, William C. Broadwell, who was defendant’s agent for Michigan, came to St. Joseph, and called on Case, and inquired of him whether he knew of any prospective purchasers of automatic band organs. Case spoke of Drake & Wallace, who were in the amusement business, and took Broadwell down and introduced him to them. As a result Drake & Wallace purchased a military band organ, for which service Case received a commission. In the summer of. 1906, Broadwell again called on Drake & Wallace, and interested them in an instrument which was to be used for dancing, and took them to Cincinnati in February, 1907, with the result that they purchased an instrument for which they paid $2,754; the list price being $3,400. It is the claim of the plaintiff that this instrument was listed in the catalog in the year 1905, at the time it is claimed the contract was signed, at $5,000, and suit was brought by plaintiff for 20 per cent, commission on this list price of $5,000. On the trial of the case a verdict was rendered by the jury in the sum of $360.35, upon which judgment was duly entered, and the defendant brings the case here by writ of error.

In the plaintiff’s declaration there is found a special count, based on the express contract, and there are also found the common counts. The case was submitted to the jury upon the theory that the plaintiff might recover either on the special count on the contract, in which case the plaintiff would be entitled to 20 per cent, commission on the list price, or under the common counts, on the theory that, if it was found that plaintiff’s assignor was the procuring cause of the sale, the plaintiff would be entitled to recover the usual and customary rate of commission, which in the instant case, it was testified to, was 10 per cent.

It is clear, from the. amount awarded plaintiff by the jury, that the claim of the plaintiff under the special count of the declaration was entirely disregarded, and that the amount allowed plaintiff was the 10 per cent, commission on the price paid for the instrument and interest thereon. It is the contention of the appellant that under the facts in this case the plaintiff could recover only upon the contract relied upon in the declaration, and that the defendant’s request to require the plaintiff to elect between the special count and common counts, which was denied by the court, should have been granted; that there is no proof of any agency between the parties, excepting by virtue of the contract; and, the jury having found against the existence of any such contract, that there is nothing in the record upon which to base the verdict arrived at. We do not think that this position of the appellant is tenable. The defendant strenuously disputed the existence of such a contract, and the question of fact thus brought into issue was determined by the jury against the plaintiff. In the case of Hathaway v. Vaughan, 162 Mich. 269 (127 N. W. 387), cited by the appellant, the existence of an express contract was not disputed, and it was held that the existence of an express contract executed upon both sides precludes recovery upon an implied contract relating to the same matter. Here, however, the existence of the contract was in dispute, which clearly distinguishes the case before us from the case just referred to.

We think that there was enough evidence in the case to submit the question to the jury as to whether or not Case was the procuring cause of the sale and the defendant knowingly accepted and availed itself of his services, and it is well settled that under such circumstances the law will imply a promise to pay a fair and reasonable compensation therefor. 15 Am. & Eng. Enc. of Law (2d Ed.), p. 1083; 40 Cyc. p. 2808. It is admitted by Broadwell, defendant’s agent, that Drake & Wallace were secured by Case as a customer in the first instance, and he received a commission for his services on that sale. The plaintiff testified that her husband had worked up and solicited the second sale. Taking into consideration, also, the correspondence had, we think there was no error in submitting this question to the jury.

Error is assigned upon the following proceedings at the opening of the trial:

“During Mr. Sterling’s opening statement to the jury the following proceedings were had:
“Mr. Sterling: One other word, in view of the fact that counsel interrogated you, gentlemen, about a woman and a corporation: I do not stand here asking a verdict at your hands, if the evidence warrants it, or does not warrant it, because the defendant is a corporation organized under the laws of the State of Illinois—
“Mr. Cady: We do not think that is a proper- opening remark, and take exception to it.
“Mr. Sterling: My client asks you to render a verdict for her—
“Mr. Cady (interrupting): We do not think that is a proper opening, and take exception to it.
“Mr. Sterling: I do not care to comment on his exception. He has a right to take those.
“Mr. Cady: Let’s have a ruling on it.
“The Court: I see no serious objection to the opening, Counsel.
“Mr. Cady: Take an exception.
“Mr. Sterling: After the evidence is in, if the facts warrant it, we ask a verdict at your hands, not because my client is a woman, not because the defendant is a .corporation and organized under the laws of some other State than this, but ask a verdict at your hands because of the fact that the defendant is indebted, justly indebted, to my client, regardless of who they are or where they hail from.”

Error is also assigned upon the argument of counsel to the jury in referring to the assignment to plaintiff by her assignor, which is as follows:

“There is a paper taken at B. R. Case’s house, when he was staring the open grave in the face; died three weeks later; knew he had to die; never got out of his bed afterwards. On the 9th of March he put his signature to that paper, but not until he had read it and indicated that it was more than $500 commission, that it was $1,000, and before he signed -it those words ‘five hundred’ were scratched out, and the figures $1,000 put over the top of them in ink, and it is the same ink with which he signed his name.”

Error is assigned, also, upon other parts of the argument; but upon objection thereto the court did not rule, nor was an exception taken, which raises no question for our consideration. Patterson v. Gore, 177 Mich. 591, 599 (143 N. W. 643). While we do not approve of plaintiff’s counsel calling attention in his opening to the fact that his client was a woman and the defendant a foreign corporation, we do not think it can be said to have been prejudicial error in the instant case. Neither do we think that the argument of counsel complained of, while undoubtedly improper, can be said to have been prejudicial. The fact is not in dispute that an assignment was. made to the plaintiff by her assignor, and the argument complained of related solely thereto. We are not satisfied that the argument contributed to the result in this case. Houser v. Carmody, 173 Mich. 121, 135 (139 N. W. 9); City of Kalamazoo v. Paper Co., 182 Mich. 476 (148 N. W. 743).

It is also contended that the court erred in admitting in evidence over the objection of counsel the circular letter sent by defendant to Case, because it appears conclusively that this letter was written prior to the contract, and that it would be conclusively presumed that the contract itself contained all prior terms of agreement. It is also claimed that the court erred in allowing secondary evidence of the execution and contents of the contract, because sufficient proof was not offered as to its being lost before such secondary evidence was admitted. However meritorious these claims may be, we are not impressed that they can have much force at the present time, for the jury’s verdict was not based upon an express contract, and, if there was error in connection therewith, it must be said that it was error without prejudice.

The case having been properly submitted to the jury, and no prejudicial error being found in the record, the judgment is affirmed.

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