text:
    DETROIT LAND CONTRACT CO. v. GREEN.
    1. Taxation — Land Conteacts — Mortgage Tax — Basis of Computation.
    Under section 3, Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4270), providing for a tax to be computed and collected by tbe county treasurer upon tbe offering for record of a land contract, the tax should be computed upon tbe amount shown upon tbe face of tbe contract to be owing, and if that fails to show tbe first payment to have been made before tbe execution of tbe contract, then tbe tax must be paid on tbe full consideration therein.
    2. Same.
    Indorsements on tbe back of tbe contract are no part of it, and should not be considered by tbe treasurer in computing tbe tax.
    3. Same — Extrinsic Proof as to Amount — Statutes.
    Section 6 of tbe act authorizing affidavits or other extrinsic proof to be made of the amount of principal remaining unpaid applies only to those instruments which were recorded.before Act No. 91, Pub. Acts 1911, took effect.
    Certiorari to Wayne; North, J., presiding.
    Submitted June 18, 1918.
    (Calendar No. 28,402.)
    Decided July 18, 1918.
    Mandamus by the Detroit Land Contract Company to compel William H. Green, treasurer of Wayne county, to accept a sum as payment of a mortgage tax, and to issue a certificate showing the amount secured. From an order granting the writ, defendant brings certiorari.
    Reversed, and writ dismissed.

      Goodenough & Long, for plaintiff.

      Charles H. Jasnowski, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for defendant.
   Stone, J.

The single question presented in this proceeding is the amount of the mortgage tax which is payable to the county treasurer upon the offering for record of the land contract described. The stipulated facts are that George and Sarah McLean, on October 24, 1914, entered into a contract with Charles and Ida Barkume for the sale of a certain described lot of land in the city of Detroit for the sum of $1,900, the exact wording of the contract being in part as follows:

“The said parties of the first part, in consideration of the sum of Nineteen Hundred ($1,900) dollars to be to them duly paid, hereby agree to sell unto the parties of the second part,” etc. And further: “for the sum of Nineteen Hundred ($1,900) dollars, which the said parties of the second part hereby agree to pay the parties of the first part as follows: One Hundred ($100) dollars at the date hereof, and the remaining eighteen hundred dollars in monthly installments of twenty ($20) dollars or more per month including interest,” etc. Also: “Said monthly payments to start on delivery of this contract,” etc.

On the reverse side of the contract was indorsed the following:

“Received the $100.00 on delivery hereof.
[Signed] “George McLean.”

The vendors, on June 6, 1917, executed and delivered a deed of this property to the relator, also showing the contract to said relator.

On February 18, 1918, relator tendered the contract and $9 to the county treasurer and requested him and his deputies to accept same and give a certificate in compliance with section 3, Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4270). It was the contention of the relator that this sum was the correct amount upon which a mortgage tax could be charged upon said contract. The deputy treasurer in charge of the collection of mortgage taxes, advised later that the mortgage tax was computed according to the treasurer’s directions at the sum of $9.50. A petition for a mandamus was filed in the circuit court of Wayne county setting forth the facts and praying that respondent show cause why an order should not be entered directing him to accept said sum of $9 as payment of the mortgage tax upon said land contract in accordance with the statute, and give to relator a certificate showing that the sum of $1,800 is the amount secured by said contract, and the sum of $9 is the tax thereon.

An order to show cause was duly made and served upon respondent, who answered the petition, and the matter was heard upon the stipulated facts. The circuit court held with the relator, and the respondent brings the matter here by certiorari for review.

The amount here involved is small, but it is claimed by both parties that the question raised is one of considerable importance to the State, and to parties desirous of recording land contracts, and that there is at present no uniformity among the various counties in the method of computing the tax. The question is, What was the principal debt or lien secured by this contract when it was signed?

Section 1 of the act of 1911 provides that for the purposes of the act all indebtedness secured by liens upon real property should constitute that class of credit upon which the act imposes a specific tax, and that the word “mortgage” should include every mortgage or other instrument by which a lien is created over, or imposed upon real property, and shall include executory contracts for the sale of real property.

Section 2 provides that a tax of fifty cents for each one hundred dollars, and each remaining major fraction thereof of the principal debt or obligation which was, or under any contingency might be, secured by a mortgage upon property situated within this State, recorded on or after January 1, 1912, was imposed on each such mortgage and should be collected and paid as therein provided, with certain exceptions which are not material here.

Section 3 provides that the tax shall be paid to, and collected by the treasurer of the county, to whom it shall be presented, who shall as one of his official duties compute and collect the taxes due thereon, and shall certify on said mortgage the amount secured thereby, and the amount of taxes received by him; which certificate shall be recorded by the register of deeds as a part of the record of the mortgage.

Section 6 of the act provides that the owner of any mortgage which then was, or which might be recorded before January 1,1912, might present to the county treasurer an affidavit setting forth the amount of principal secured thereby which was unpaid, and might pay a like tax upon such amount.

The contract in question appears to have been signed at its date. When it was delivered does not appear. It has been held that actual delivery of a contract is not essential to its validity; and that any overt act like signing, which may be fairly deemed to express the obligor’s intention to be bound, is sufficient.

It is manifest that at the time the contract was signed by the parties thereto, nothing had been paid thereon. It provided that the sum of $1,900 was to be paid in the future, the language being: “Nineteen hundred dollars to be to them duly paid.” Under the terms of the statute it is “the' amount secured thereby” which controls. It would be cpnceded, of course, that if the $100 was not paid when the contract was executed then it stood as security for $1,-900. It seems to us. that by the terms of the contract there was a period of time after its signing when it was security for $1,900.

Had the $100 been paid at any time subsequent to the signing, even on the same day, or subsequent to the delivery of the contract, there would have been a time when the sum secured by the contract was $1,-900. If a contingency had arisen by which the $100 was not paid at all, the same result would follow. It is the language of the contract which should control. Had the contract stated in substance “$100 which sum has been heretofore paid,” or $100 the receipt of which is hereby acknowledged,” we would have a different question before us.

It seems to us that the county treasurer can only be guided by what appears upon the face of the instrument; and if that fails to show the first payment to have been made before the execution of the contract, then the tax must be paid on the full consideration stated therein. Nor do we think that the county treasurer can be governed or controlled by the indorsement on the reverse side of the contract. It is no part of the contract, and should not be considered by that officer. It is only as to those instruments which were recorded before the act took effect, where the treasurer can consider affidavits, or other extrinsic proof as to the amount of principal which is unpaid, and collect a tax thereon only, as appears by section 6 of the act. In our opinion the amount secured by the contract was the sum of $1,900, and the tax due and payable thereon was $9.50.

•The judgment of the circuit court is therefore reversed and the writ of mandamus dismissed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PEOPLE v. RIVERSIDE SCRAP IRON & METAL CO.
    1. Municipal Corporations — Detroit Charter — Powers — Ordinances — Junk Dealers.
    The common, council of the city of Detroit, under the police power conferred by its charter, has the power to license and regulate wholesale junk dealers.
    2. Same.
    The provisions of an ordinance of the city of Detroit “to license and regulate the business of junk dealers,” held, to include all who buy junk, whether at wholesale or piecemeal, and whether it is the main business or merely incidental.
    3. Same — Validity.
    The provision in the ordinance prohibiting the sale of any article until the same has been in the dealer’s possession at least five full days, held, not to be such an unreasonable and arbitrary interference with the dealer’s business as to require the court to declare it void, although loss might be occasioned by reason of variance in price during the five days.
    See notes in 32 L. R. 116; 24 L. R. A. (N. S.) 1168.
    Error to recorder’s court of Detroit; Jeffries, J.
    Submitted June 5, 1918.
    (Docket No. 36.)
    Decided July 18, 1918.
    The Riverside Scrap Iron & Metal Company was convicted of violating an ordinance, and sentenced to pay a fine of five dollars.
    Affirmed.

      Robert M. Brownson and Denton Guinness, for appellant.

      Divie B. Duffield, Corporation Counsel, and Vincent M. Brennan, Assistant Corporation Counsel, for the people.
   Kuhn, J.

An ordinance of the city of Detroit, which, is entitled,- “An ordinance to license and regurlate the business of junk dealers,” provides in part as follows:

“Section 1. No person, partnership or corporation shall engage in the business of a junk dealer for the purchase or sale of what is commonly called junk, rags, paper, bagging, -iron, brass, copper, tin, zinc, aluminum, scrap metal, bottles and other articles, whether manufactured or in the process of manufacture, or raw material, whether old or new, nor transport through the streets or alleys of the city of Detroit any conveyance for the purpose of collecting or disposing of such articles without a license from the mayor as herein provided.
“Section 2. The mayor is hereby authorized to grant a license to any person, persons or corporation of good character and standing, being a resident and citizen of the city of Detroit, to engage in the business, of a junk dealer, for the purchase and sale of the articles mentioned in section 1, on paying into the city treasury the sum of one dollar ($1.00) and executing a bond to the city of Detroit in the penal sum of two hundred dollars ($200.00) with one or more sureties to be approved by the mayor, conditioned thgit he will faithfully observe the provisions of this ordinance.
“Section 3. The mayor is hereby authorized to grant a license to any person of good character being a resident or citizen of the city of Detroit to engage in the business of buying and selling articles mentioned in section 1 with a cart, wagon or other vehicle on his paying into the city treasury the sum of fifty cents ($.50) and every person receiving such license shall have the number of his license placed in a conspicuous place on each side of said vehicle by means of two tin labels, such labels to be furnished by the license collector, of suitable pattern, which pattern shall be changed on the first day of June of each and every year for the use of the succeeding year.”

The defendant, a Michigan corporation, was convicted in the recorder’s court of the city of Detroit for violation, of said ordinance, because of failure to take out a license. The defendant buys scrap iron, mostly from manufacturers and dealers, and it is claimed that at least 60 per cent, of its business never comes into its warehouse or yards. That about 35 per cent, is iron bought directly from factories and manufacturers in Detroit and that about 5 per cent, is brought into the yards by licensed junk gatherers. Its business is wholesale, and it has nobody in its employ who goes out with a wagon and buys and collects; the purchases being made by the wagonload from the licensed junk gatherers.

On'this appeal it is the principal contention of respondent’s counsel that the defendant is not a “junk dealer” within the meaning of the ordinance. Admittedly the defendant engages in the purchase and sale of junk, at least as to 5 per cent, of its business, but it is said that because defendant purchased in wagonloads at wholesale rather than in smaller quantities, the terms and provisions of the ordinance do not apply. An examination of the provisions of the ordinance above set forth discloses that in section 1 the words “junk dealer” are used in a comprehensive way and would, it seems, include all who buy junk, whether at wholesale or piecemeal. Section 2 provides for the licensing of junk dealers upon the payment of a fee of one dollar and upon the filing of a bond in the sum of $200, while section 3 makes provision for the licensing of persons buying and selling junk by wagon or other vehicle upon the payment of a license fee of 50 cents and without being required to file a bond. It can be admitted that section 3 applies only to junk gatherers, and for them apparently it is only necessary to pay the 50-cent fee and, upon satisfying the mayor of good character, the applicant will be entitled to a license. An examination of section, 2, however, shows that it is more comprehensive and, provides, in addition to the fee of one dollar, for a bond of $200 with one or more sureties to be approved by the mayor. In our opinion this provision covers all dealers in junk, whether they are engaged by wholesale or retail. In the case of Weadock v. Judge of Recorder’s Court, 156 Mich. 376, the meaning that should'be given to the words “junk dealer” was under consideration, and the court said:

“He buys old junk from the owner or from the junk gatherer, and keeps the same in his yard or place of business until sales can be made.”

The defendant in this case admittedly buys the same sort of property as the licensed junk gatherer buys, but simply buys it in much greater quantities. The common council, under the police power conferred by the charter provision, has unquestionably the power to license and regulate wholesale junk dealers. See Weadock v. Judge of Recorder’s Court, supra. If the construction insisted upon by defendant’s counsel could be given to the terms of this ordinance, considerable of the value of the ordinance would be destroyed, because if part of the property it was sought to trace got into the hands of the wholesale dealer, it would become immune from police visitation and regulatory measures. In City of Grand Rapids v. Brandy, 105 Mich. 678, it was said, with reference to this class of business:

“The necessity of a rigid control over this business in our large cities is clear. Convictions are difficult, though the public authorities may be well convinced that stolen goods are bought and sold at these places. The business is not necessary to the welfare of society or the public. The common council, with the knowledge of all the facts béfore them to a greater extent than courts can possibly have, have determined that it is well, in their judgment, to require these conditions. While the exercise of any arbitrary power may seem harsh, still we are of the opinion that this requirement is not so unreasonable as to require the courts to declare it void.”

It is also insisted that the junk business of the defendant is purely incidental to its main business, inasmuch as it consists of only 5 per cent, of its total business. We do not see how it is important that the junk business done by the defendant constitutes only a small percentage of its total business, for while, relatively, the percentage may be small, nevertheless the purchase of junk in wagonloads could hardly be called a negligible activity. Being engaged in the business admittedly of buying junk as a dealer, it clearly comes within the provisions of the ordinance, and a license should be required.

It is also insisted that the court should have permitted the effect of this ordinance on its business to be shown, as in section 6 of the ordinance it is provided :

“No person licensed under the provision of this ordinance shall sell or remove from his place of business any article or articles purchased until the same has been in his possession at least five full days,”

—and the defendant complains of not being permitted to testify that junk handled by it would vary in price during, the said period of five days. Conceding for the purpose of this contention that the defendant would suffer some loss by being obliged to hold the junk five days, it does not follow that the questions asked were necessarily relevant. It is true that a regulation of this kind under the police power may entail pecuniary loss upon the person engaged in the regulated business, but it is rather for the legislature to determine whether the benefits to society on the one hand outweigh the pecuniary loss to the licensee on the other. We are not impressed that the regulation was such an unreasonable and arbitrary interference with the defendant’s business as to require the court to declare it void.

. We have examined the other points raised by counsel, and deeming them without merit, they will not need further discussion.

Judgment of the lower court is affirmed.

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


text:
    BROMELING v. BROMELING.
    1. Cancellation of Instruments — Deeds—Parol Contract.
    On a bill for tbe cancellation of certain deeds alleged to have been deeded in violation of tbe provisions of an oral contract, evidence examined, and held, sufficient to support tbe finding of tbe court below that said contract was made.
    2. Frauds, Statute of — Parol Contract — Performance.
    An oral contract between plaintiff and bis foster father whereby tbe latter was to bave tbe use and benefit of land belonging to plaintiff during bis lifetime, and at bis death tbe land in controversy belonging to tbe foster father was to go to plaintiff, having been fully performed by plaintiff, the' statute of frauds has no application.
    Appeal from Eaton; Smith, J.
    Submitted June 6, 1918.
    (Docket No. 55.)
    Decided July 18, 1918.
    Bill by Merton P. Bromeling against Mary A. Bromeling and another to set aside certain deeds. From a decree for plaintiff, defendant Bromeling appeals.
    Affirmed.

      Joseph B. Hendee, for plaintiff.

      Elmer N. Peters, for appellant.

      The plaintiff, who was the nephew of Philamon K. Bromeling and Adelia E. Bromeling, his wife, was adopted by them on September 4, 1873, when he was five years of age. He had inherited, with his brother, George Pettit, 40 acres of land from his mother. This was by common consent divided at an early day so that George was to have the west 20 acres and Merton the east 20 acres thereof. When Merton became of age, this arrangement was ratified by an exchange of deeds, and soon after Philamon K. Bromeling became the owner of the west 20 acres by purchase from George Pettit. In 1871, Philamon K. Bromeling had become the owner of 40 acres of land, which was the homestead, and is the land in controversy in this litigation. Adelia Bromeling became the owner by purr-chase of 30 acres ,of land. These various parcels of land are contiguous and constitute one farm of 110 acres of land. In 1891 they learned of the action of this court in holding the statute under which they had adopted the plaintiff to be void and thus nullifying their attempt to make him their heir at law. In December, 1891, Adelia conveyed by warranty deed to the plaintiff the 30 acres belonging to her of the 110-acre farm, which deed was duly delivered and recorded. The proofs also show that at about the time this deed was made Philamon K., Bromeling made his will, devising and bequeathing to the plaintiff all of his property. Adelia E. Bromeling died April-24, 1898, at which time the plaintiff possessed in his own right 50 acres and Philamon K. Bromeling 60 acres of the 110-acre farm. On June 21, 1899, Philamon K. Bromeling married the defendant Mary A. Bromeling, who had lived with the family some time before the death of the first wife. On January 6, 1900, Philamon K. Bromeling made another will, by the terms of which he revoked all former wills and gave to his wife, Mary A., certain property which she would have inherited without a will, and the rest, residue and remainder of all his property he gave to his “adopted son, Merton P. Bromeling.” On June 5, 1912, he and his wife, Mary, conveyed the 40 acres comprising the homestead to Heileman Miller, who on the same day conveyed the same to Philamon K. Bromeling and Mary A. Bromeling as husband and wife, thus creating an estate by the entirety in the husband and wife. These conveyances were not recorded until March 5, 1914, and on April 5,1914, Philamon K. Bromeling died. His last will was duly admitted to probate and as no appeal was taken, it stands as his last will. This bill is filed praying that the deeds creating the estate by the entirety be set aside and that the land conveyed thereby be restored to the estate of Philamon K. Bromeling, to be administered in accordance with the terms and provisions of his last will and testament. It is plaintiff’s claim that after the death of Adelia and before the marriage of Philamon K. to the defendant in this cause, a contract or oral agreement was made between himself and Philamon K. to the effect that in consideration of the use of the 30 acres of land conveyed to hirp by Adelia, the possession of which did not come to him until Adelia’s death, and a continuance of the use of the 20 acres inherited by the plaintiff from his mother, so long as said Philamon K. should live, upon the death of said Philamon K. all property of the said Philamon K. should be and become the property of the plaintiff; that the ^contract was performed and executed on the part of the plaintiff. It is denied by the defendant that any such contract was ever made, but the contentions of the plaintiff were sustained by the learned trial judge. From a decree made in accordance with the opinion filed by the judge, the defendant Mary A. Bromeling appeals. The other defendant entered no appearance in the court below and his default was duly entered.
   Kuhn, J.

(after stating the facts). It is the contention of plaintiff’s counsel, and the trial judge also so determined, that there are really but two questions to be decided in this case, which are questions of fact, viz., first, Was the contract made as claimed by the plaintiff? and second, Was there a substantial per-r formance of this contract or agreement on the part of the plaintiff? It is the contention of counsel for the defendant that, while the proofs unquestionably show a purpose and intent on the part of Philamon K. that the plaintiff should have the right of an heir in his property and that it should go. to the plaintiff at his death, and that such intention had existed from the time of the attempted adoption of plaintiff by the Bromelings in 1873 down to the time of creating the estate by the entirety, yet that there is not sufficient proof of a specific contract and agreement as would be legally enforceable. This is urged for the reasons, first, that there was in fact no actual contract, but that it was a mere family intent and expectation, and secondly, that if there was such a contract, it was not made during the interval between the death of the first wife of Philamon K. Bromeling and his marriage to the second wife, and would therefore be void as to the 40 acres in question, for the reason that it was the homestead of the Bromelings, and, being a homestead, a verbal agreement to convey it would be void. It is also contended that the proofs do not show such performance on the part of plaintiff as would take the case out of the statute of frauds, and that the enforcement of the alleged agreement would be unfair, inequitable, and unjust. The trial judge, who had the benefit of seeing and hearing the witnesses, after a careful review of the facts, sustained the plaintiff’s contention as to the existence of the special contract. Upon a review of this record we are of the opinion that the evidence is ample to sustain the finding that it was made at the time and in the manner claimed by the plaintiff. It would not. be profitable to attempt to review all of the testimony, but it will be sufficient to call attention to certain pertinent facts. In the fall of 1898 the Bromeling farm of 110 acres, including plaintiff’s 50 acres, was rented to Mr. Fred Hall. Shortly after Mr. Hall took possession of the farm, Philamon K. moved out of the house on his 40 acres and Mr. Hall moved in. Philamon K. then took up his residence with the plaintiff at Eaton Rapids. Hall remained upon and worked the farm until some time in June, 1899, and until the marriage of Philamon K. to the defendant, Mary A., when he sold all of his interest to Philamon K. and moved off of the farm and Philamon K. moved into the house that had been vacated and continued to keep possession of the whole 110 acres from then until his death; his own 60 acres as well as plaintiff’s 50 acres which he had before leased to Hall. Mr. Hall testified that when Philamon K. was living at Eaton Rapids, he frequently came to the farm, and that he had several conversations with him in which he said that if anything happened to him, he (Hall) should go right on with Mert (plaintiff) *as Mert took all the property when he (Philamon K.) was through with it. The record shows that these conversations occurred before the marriage with the defendant, Mary, took place. The testimony of George C. Morgan-also proved conversations had with the deceased, which showed that Philamon K. Bromeling had voluntarily told him of an agreement existing between himself and the plaintiff relative to the use he was having of the lands of the plaintiff and what the plaintiff was to have in consideration of such use. As to the existence of this contract, the trial judge found specifically as follows, which in our opinion is justified by the record:

*T am, however, without doubt from the proof in, the case, that a contract such as is claimed by the complainant was made, and that it was carried out by the complainant. The fact that Philamon K. has had the use of this land for so many years, without payment of rent, used it as his own, built the fences as he did, and treated the entire one hundred ten acres as a farm by itself, his statements on many occasions, that it was to be Merton’s after he was through with it, the fact that he made no accounting to complainant for its use, and complainant required none, the fact that he made a will giving to defendant her legal rights as his widow and disposed of the remainder in consonance with the terms of this claimed contract, and that the conveyance and disposition of the land in controversy so many years, is in my judgment strong evidence that he recognized and in a way acknowledged the contract which it is claimed was entered into.”

The contract relied upon and proven by the plaintiff is not an executory contract, but rather one that has been substantially executed and performed on the part of the plaintiff. In the case of Ruch v. Ruch, 159 Mich. 231, 235, this court said with reference to this class of contracts:

“Contracts for the conveyance of land, though resting entirely in parol, have been repeatedly held by this court and others not to be within the statute of frauds where one party has executed the parol contract in whole or in part.”

The contract having been substantially performed on the part of the plaintiff, under the authority of Ruch v. Ruch, supra, and kindred cases, the statute of frauds has no application. A reading of this record has not satisfied us. that the result reached by the court below is unjust or inequitable, and the decree is therefore affirmed, with costs to the plaintiff.

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


text:
    YOUNG v. PHILLIPS.
    1. Sales — Reservation of Title — Action to Recover the Debt.
    When the absolute title to personal property sold on contract is reserved, retention thereof by the vendor is inconsistent with an action to recover the debt.
    2. Same — Conditional Sale — Reservation of Title as Security.
    Where plaintiff received $250 and notes for $500 to be paid at the rate of $100 a month for the purchase of an automobile, and the contract of sale contained a clause that “the title to said property and right of possession thereto shall be and remain in said first party until said sum of $750 and interest and any judgment rendered therefor shall be paid in full,” held, that the title to the automobile was reserved as security merely, and did not amount to an absolute reservation of title in the vendor.
    3. Same — Chattel Mortgages — Recording Contract — Void as
    Against Creditors.
    A contract for the sale of an automobile reserving title in the vendor as security merely, which was never filed with the city clerk in conformity with the terms of section 11988, 3 Comp. Laws 1915, providing for the filing of chattel mortgages, was absolutely void as against creditors of the mortgagor or person giving the security.
    Error to Wayne; Davis, J., presiding.
    Submitted June 4, 1918.
    (Docket No. 13.)
    Decided July 18, 1918.
    Replevin in justice’s court by Mathew A. Young against Andrew T. Phillips and another for the possession of an automobile. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Barbour, Field & Martin, for appellant.

      Welsh, Bebout & Kahn, for appellees.
   Kuhn, J.

In this suit it is sought by replevin to recover possession of an automobile upon which the defendant Phillips, as constable, levied an execution on a judgment in favor of the defendant the Detroit Free Press, and against one Charles E. Smith. The judgment was for $222.98 and $1.75 costs. The plaintiff, on the same day that the constable took possession of the automobile under the execution, made a demand on him for possession, which was refused. The plain-* tiff thereupon commenced this suit before a justice of the peace, and appealed from his judgment to the circuit court, where a judgment was entered for the defendants.

It is the contention of the plaintiff that on April 21, 1917, he sold the automobile in question, which is a Mitchell roadster, to Smith for $850, and that on August 9, 1917, he, through his agent, traded with Smith a Mitchell touring car, valued at $750, for said roadster, and that said roadster was delivered to him at his place of business in Detroit and remained in his possession until later in the same day, when he> through his agent, sold the roadster to Smith for $750 on what it is claimed was a conditional sale contract. This contract was in terms as follows:

“This agreement, made this 9th day of Aug., A. D. 1917. by and between Mathew A. Young, 754-756 Woodward ave., Detroit, Mich., of the first part, and Mr. Chas. E. Smith, 698 Cass avenue, of the second part, witnesseth:
“First. That said first party shall and will sell to said second party the following described property, to wit: One Mitchell 6 of 17 No. 67770 Roadster, upon and after full payment therefor by said second party of the sum of $750.00 dollars, with interest, at the rate of six per cent, per annum, in the manner following........................dollars upon the execution and delivery of this agreement, and $250.00 to be paid in one note and the balance of $500.00 to be paid in notes at the rate of $100.00 per month. Notes given as collateral security, with interest as above mentioned.
“Second. That said party shall and will pay for said property said sum of $750.00 dollars and interest, at the time and manner above mentioned, at........ ..................in the said city of Detroit, Mich.
“Third. That the title to said property and right of possession thereto, shall be and remain in said first .party until said sum of $750.00 dollars and interest, and any judgment rendered therefor shall be paid in full.
“Fourth. That in case of default in any of the payments of principal or interest, when due as above specified, the said first party shall thereupon forthwith have the right to declare this contract at an end, and to take immediate possession of said above described property, and in such case, the said property, as well as all payments of principal or interest which shall have been made hereon, shall belong to and be retained by said first party as liquidated damages for nonperformance of this contract on the part of said second party and for use of and injury to said property.
“Fifth. That said second party shall not sell, transfer or dispose of above described property without the written consent of the first party.
“Sixth. The said second party further agrees that during the life of this contract, and until fully paid and satisfied to insure the above described property against fire and theft to the amount of $750.00, loss, if any, to be paid to the first party as his interests may appear.
“In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written..
“M. A. Young (Seal)
“Mutchler
“Charles E. Smith. (Seal).”

On the trial the plaintiff was permitted to submit testimony tending to show that this contract was what it purported to be, and that it was not intended as' security. Defendants introduced testimony tending to show that the instrument was not a conditional sale contract, but was security, and this special question was submitted to the jury by the court, the jury finding that the contract was taken as security and not as a conditional sale.

The, defendants on the trial called Mr. Mutchler, who signed the sales contract as plaintiff’s agent, under the statute for cross-examination as an adverse witness and obtained from him an admission that he had testified on, the trial béfore the justice of the peace that the so-called conditional sale contract for the roadster was taken by the plaintiff as security for the payment of the purchase price of the touring car and that he had since learned that he was mistaken in so testifying. It is the principal contention of the-appellant’s counsel in this court that there was absolutely no evidence that the so-called conditional sale contract was taken as security, but on the contrary that the evidence was that it was a conditional sale as it purports to be, and that the testimony of Mr. Mutchler in support of the defendant’s theory could only be admissible for impeachment purposes and had no other effect as evidence. In our opinion it becomes unnecessary to discuss the question of the admissibility of the testimony of Mutchler, or its effect, as from an examination of the contract of sale it appears that the title to the property was reserved to the vendor as security merely and that the conditions therein did not amount to an absolute reservation of title in the vendor. In the recent case of Atkinson v. Japink, 186 Mich. 338, this court, speaking through Mr. Justice Ostrander, said, with reference to this legal question:

“An examination of our own and of the decisions of other courts leads to the conclusion that they sustain, in the main, two propositions: First, that when the absolute title is reserved, retention thereof by the vendor is inconsistent with an action to recover the debt.”

It will be unnecessary to refer to the second proposition for the purposes of this case. An examination of the third clause of the contract here in question shows that it was the intention of the parties that an action might be brought to recover the debt and that the title to the property might still remain in the vendor to secure the payment of the debt, because it says in terms that:

“The title to said property and right of possession thereto, shall be and remain in said first party until said sum of $750.00 dollars, and interest, and any judgment rendered therefor shall be paid in full.”

See, also, the recent case of Luce v. Stott Realty Co., 201 Mich. 587.

- The court might, therefore, very well have directed the jury that the contract in question showed that the title to the property was retained in the vendor simply for security, and have thus determined the very question which was submitted to the jury to determine under the special question, against the contention of the plaintiff and appellant. It being admitted that the contract, which we hold was taken as security, was never filed with the city clerk of the city of Detroit, it became absolutely void as against creditors of the mortgagor or the person giving the security, by virtue of the terms of section 11988, 3 Comp. Laws 1915.

Being, therefore, of the opinion that the defendant Phillips had a right to levy upon the property and was rightfully in possession thereof, it follows that the judgment must be, and is hereby affirmed.

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


text:
    SIMONS v. McCORMICK.
    1. Boundaries — Ejectment—Evidence—Question for Jury.
    In ejectment proceedings, where the evidence as to the location of an old highway, determining the boundaries of a school house lot, was contradictory, the question was properly submitted to the jury.
    2. Adverse Possession — Definition.
    Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts that will satisfy the legal definition.
    3. Same — Evidence—Inference—Hostile Possession.
    The doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear and cogent proof. .

      4. Same — Evidence—Inference—Question for Jury.
    Where the open, notorious, and hostile possession of defendants was not clearly established by the evidence, but was left to inference, the court below was in error in submitting the question of adverse possession to the jury.
    Error to Wayne; Mandell, J.
    Submitted June 11, 1918.
    (Docket No. 86.)
    Decided July 18, 1918.
    Ejectment by David W. Simons against Frank E. McCormick and others. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Albert McClatchey (Charles C. Simons, of counsel), for appellant.

      George O. Tackles (Joseph B. Hendee, of counsel), for appellees.
   Kuhn, J.

The plaintiff is seeking to recover, in an action of ejectment, a certain parcel of land on Oakland avenue in the city of Detroit, of which he claims to be the lawful owner and entitled to possession, by virtue of the following conveyances. On May 30,1865, Ralph Phelps, being the owner in fee of 80 acres of land described as the west *4 of quarter section 43 of the 10,000 acre tract, Wayne county, Michigan, sold and conveyed by warranty deed to school district No. 11 in the township of Hamtramck, Wayne county, a portion of said land described as,—

“Commencing at the intersection of the west line of quarter section forty-three (43), in the 10,000 acre tract, and the northerly line of a public highway known as the Holbrook ditch road; thence northwesterly along the said west line of said quarter section, six (6) rods; thence northeasterly on a line parallel with the north line of said public highway or road, five (5) rods; thence southeasterly on a line parallel with said west line aforesaid six (6) rods to said northerly line of said public highway or road; thence southwesterly along said northerly line of said highway or road five (5) rods to the place of beginning, containing thirty (30) square rods; the aforesaid parties of the first part do not sell, warrant or defend the improvements put upon said tract of land since ■■ taken possession of by said second party.”

The school district apparently had taken possession of said land prior to the date of the deed, built a fence around it, and erected a school house on the land, facing the Holbrook ditch road.

The legal title to this property appears to have remained in the school district, and the building appears to have been used continuously as a district school house, until, by virtue of Act No. 324, Local Acts 1891, approved May 13,1891, the portion of the township of Hamtramck in which the school house was located, became a part of the city of Detroit, and, by the provisions of section 9.of said act, the title to the school house lot vested in the board of education of the city of Detroit on July 1, 1892. The building was used as one of the public schools of the city for some years thereafter, but a new school having then been erected on a different site in the neighborhood, the old building was torn down, and on, September 12, 1907, the board of education, of the city of Detroit, by warranty deed conveyed the old school house lot to the Hannan Realty Company by exactly the same description by which it was deeded by Ralph Phelps to the school district. On November 6, 1908, the Hannan Realty Company conveyed, by warranty deed, the north half of the premises to William J. Crake and Mary, his wife, by the following description:

“The north half (%) of the following described property: Commencing at the intersection of the west line of quarter section forty-three (43), in the 10,000 acre tract, and the northerly line of a public highway known as the Holbrook ditch road; thence northwesterly along the said west line of said quarter section, six (6) rods ; thence northeasterly on a line parallel with the north line of said public highway or road, five (5) rods; thence southeasterly on a line parallel with said west line aforesaid six (6) rods to said northerly line of said public highway or road ; thence southwesterly along said northerly line of said highway or road five (5) rods to the place of beginning,”

and on the same day. conveyed the south half of the school house lot by a similar description to one Larraway, who conveyed to Julia Newell. Plaintiff acquired the north half of the .school house lot by warranty deed from Crake and wife containing the same description as above quoted. When he went to look over his property, he found a shortage of about 33 feet in the north and south dimension of his lot. A frame store building had been erected on the portion claimed by Julia Newell under her deed, and to the north of plaintiff’s lot was a double brick house. Plaintiff first brought ejectment against Julia Newell, but the court having directed a verdict in her favor, plaintiff is now proceeding on the theory that the owner of the property to the north has encroached upon his land.

About a year after the conveyance of the school house lot to the school district, Ralph Phelps subdivided the remainder of said west % of quarter section 43, and the plat of his subdivision was recorded April 20, 1866, in Liber 1, page 65, of plats. This plat shows the school house lot, 99 by 82.5 feet, in the southwest corner of lot 4 of said subdivision. The south line of lot 4 and of the school house lot is shown to be the north line of the Holbrook ditch road. On the plat the widtli of this road is not indicated by figures, but the width of an intersecting road is marked 66 feet, and the two roads are represented as being of exactly the same width. The ditch from which the road took its name is shown on the plat as located within the highway limits and on the southerly side of the road.

On April 21, 1866, Ralph Phelps and wife conveyed lots 3 and 4 of his subdivision (and other lots) to Frederick Baisch, and on August 5, 1873, Frederick Baisch and wife conveyed the same lots to Amos Crowton.' On, December 3, 1889, Amos Crowton sold, on land contract, to James Galloway and James D. Butterfield lots 3 and 4 of the said Phelps subdivision, excepting therefrom the school house lot in the southwest corner of said lot 4. During the same month Galloway and Butterfield subdivided said lots 3 and 4, and a plat of their subdivision was recorded December 26, 1889, in Liber 13, page 59, of plats. This plat was made on the theory that the south line of said lots '3 and 4 was the center line of Holbrook avenue as it existed at the date of said plat (the street being then 66 feet wide), and shows the school house lot as only 66 feet in length from the north line of Holbrook avenue. It also shows 33 feet taken off the westerly side of said lot for the opening of Oakland avenue, leaving the width of the lot 49.5 feet.

The respective interests of Galloway and Butter-field under the land contract were eventually acquired by one Daniel J. Smith (Mr. Butterfield’s father-in-law) and, after various proceedings in the probate court in the matter of the estate of Amos Crowton, who had deceased in the meantime, the Crowton interest was finally deeded to said Smith.

The school house.lot, as represented on Galloway & Butterfield’s plat, adjoins on the south lot 24 of said subdivision and occupies the space between lot 24 and Holbrook avenue. Lot 24 is shown as being of equal width with the school house lot and extending northerly therefrom 57.06 feet to an alley. Lot 24 remained vacant and unsold until about August 6, 1906. On this date one Walter Preston took out a building permit for the erection of a double house thereon, and on September 3,1906, Daniel J. Smith and wife conveyed the lot to Preston by warranty deed, under the description of “the northerly 57.06 feet of lot 24,” etc. A quitclaim deed by Smith to Preston on September 26, 1906, describes it as lot 24. Immediately after taking out the building permit, Preston erected the double house now on the premises. Some further conveyances follow, all of which describe the property as the “northerly 57 feet of lot 24,” but eventually the title vested, by foreclosure of a mortgage, in the Springport State Savings Bank of Springport, Jackson county, Michigan. The bank then took a quitclaim deed from Preston and wife describing the property as “lot 24.” The bank conveyed lot 24 to Mathew A. Krausman, Jr., and Ida, his wife, two of the defendants herein. The defendant Frank E. McCormick was the occupant of the premises at the time this suit was started.

It is the claim of defendants that lot 24 does not overlap the old school house lot, but that the missing 33 feet was taken off from the front of the school house lot in widening, or changing the location of, the old Holbrook ditch road. They make the further claim that, even if lot 24 does encroach upon the school house lot, they have acquired title to the portion occupied by them by adverse possession for the statutory period. On the trial in the circuit court, the jury found in favor of the defendants, and a motion for a new trial was denied.

Plaintiff’s showing as to the size and location of the school house lot was as follows: The Phelps .plat, made after the lot was conveyed to the school district and after the school house was built and the lot fenced, showed the Holbrook ditch road 66 feet wide, with the ditch occupying the southerly portion of this width, and showed the lot in question as extending 99 feet northerly from the north line of this, highway. Mr. Jerome, a surveyor and civil engineer, who was connected with the city engineer’s office at the time Holbrook avenue was paved in 1906 and conducted the paving operations, testified that the paved portion of the street extended part way over the old ditch, the south curb being at about the center of the ditch; that they had to fill in the ditch as they went along. Holbrook avenue is 66 feet wide. In order to show the length of the school house lot at the time of the Galloway & Butterfield plat, plaintiff produced several witnesses who testified to measurements and distances tending to support his claim that the lot was 99 feet long at that time, and even later.

The defendants’ evidence to show that the location of the old Holbrook ditch road and the present Holbrook avenue differed, consisted of, first, the plat of Galloway & Butterfield’s, subdivision, which shows the north line of Holbrook avenue as 33 feet north of the original south line of the school house lot and of lots 3 and 4 of the Phelps subdivision; second, the testimony of Mason L. Brown, surveyor and civil engineer, who made the survey and plat-of said subdivision; third, certain testimony as to the location of the fence along the rear of the school house lot.

The principal contention of appellant is- that the court should have directed a verdict in his favor, for the alleged reasons,—

(1) That there was no question for the jury as to the location of the north line of the Holbrook ditch road, but that it was shown beyond controversy that Holbrook avenue and the Holbrook ditch road were one and the same.

(2) That defendants failed to show sufficient evidence of adverse possession to warrant the submission of that question to the jury.

Were the defendants entitled to go to the jury on the question of the location of the old Holbrook ditch road? After a careful study of all the testimony, it is our conclusion that the court did not err in submitting this question to the jury. While the testimony offered by the defendants on this point is somewhat weak and unsatisfactory, we do not think the court would have been justified in disregarding it altogether. Notwithstanding the fact that the testimony of plaintiff’s witnesses as to the location of the pavement of the present Holbrook avenue with reference to the old ditch, when considered in comparison with the showing of the Phelps plat as to the location of the ditch and the width of the road, seems to support the contention that the city street coincided with the old township highway, sufficient doubt and uncertainty has nevertheless been thrown upon the matter by defendants’ evidence to require the submission of the question to the jury. We think that the plat of Galloway & Butterfield’s subdivision, taken in connection with the testimony of Mr. Brown, who made it, fairly raises a question. Mr. Brown testified, in part, as follows:

“I made the survey of what is now known as the ' Galloway & Butterfield subdivision. I made the plat that appears in liber 13, page 59. There is reserved from this plat a lot at the southwesterly corner having a dimension of 66 feet north and south and 82.50 feet east and west, measuring from the center line of Oakland avenue, that was what was known as the school house lot in that neighborhood.
“Q. Where did you drive your stakes for marking the southerly line of the lots which front on the north side of Holbrook avenue?
“A. On the north side of Holbrook avenue as laid out.
“Q. As laid out by whom?
“A. As laid out by that plat.
“Q. Are you acquainted with what used to be known as Holbrook ditch road?
“A. Why, yes, more or less, I thought I was.
“Q. What do you say the Holbrook ditch road and the Holbrook avenue was one and the same?
“A. It was my opinion that they were not.
“Q. On what did you base your opinion?
“A. By the location of the old school house fence and by the fact that the ditch was on the side of the road.
“Q. And according to your understanding and measurements what was the relative location of the north line of the Holbrook ditch road and the north line of Holbrook avenue?
“A. Well, I can only give you an opinion, my opinion on it as indicated by the lines of the traveled roadway, they were not the same.
“Q. To what extent were they not the same?
“A. Approximately 30 feet. * * *
“Q. You have not any other thing to base your statement that the north line of Holbrook ditch road and the north line of Holbrook avenue were other than the same, except purely an opinion?
“A. That as I have already stated owing to the fact that there was a fence on the line.
“Q. When you platted the Galloway & Butterfield subdivision, you, of course, knew that there were 99 feet or six rods in the school house lot?
“A. I presume I did from the abstract.
“Q. You figured the 99 feet beginning from the middle of what is the Holbrook avenue?
“A. No, I figured it beginning from the north side of the Holbrook ditch road.
“Q. That is your line in. the middle of the Holbrook avenue?
“A. That is what I construed it and where it was and where the fence showed it at that time.”

In our opinion, the fair inference to be drawn from Ms statement as to fixing the location of the old highway by the location of the school house fence is that he found that measuring 99 feet from the rear fence of the school house lot brought him to the middle of Holbrook avenue as it then existed, and this is what his plat shows. It is true that he does not say the rear fence, but it is obvious that he could not have referred to' the front fence, for his statement would then amount to this, that the front fence of the school house lot was in the middle of Holbrook avenue.

There was some testimony also that there existed, as late as 1909, the remnants of an old board fence a short distance south of the brick house constructed by Preston on lot 24 and in about the place where defendants claim the rear fence of the school house lot stood. While the effect of this testimony is somewhat uncertain, in view of the fact that all the witnesses on either side who claimed to have been familiar with the old school house property seemed to agree that the school house fence had entirely disappeared before the Preston house was built, and the witnesses who claimed to have seen this remnant of a fence were unable to identify it with the school house fence, having never seen the place before, still in our opinion it had some weight as evidence tending to support the defendants’ theory as to the location of the rear line of the school house lot.

In the consideration of whether, under the evidence in this case, the court erred in submitting the question of adverse possession to the jury, there should be borne in mind a fundamental rule which early received the sanction of this court. It was said in Yelverton v. Steele, 40 Mich. 541:

“The doctrine which sanctions the divestiture of the true owner by hostile' occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear and cogent proof.”

Again, in Paldi v. Paldi, 95 Mich. 410, this court said:

“Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts that will satisfy the legal definition.”

It is the claim of the defendants that the testimony showed that Amos Crowton had the land from 1873 and used it as a farm as far as the north school house fence until 1889, when he sold it to Galloway & Butter-field. Both Butterfield and Smith, who was the.subsequent owner of the Galloway & Butterfield subdivision, said that they never took possession' of any land nor made any use of it, but merely let it lie as vacant lots from 1889 to 1906, 17 years, and unless this occupancy by them for the period of 17 years satisfies the requirements of the rule to establish adverse possession, the possession begun by Crowton was not continuous, and there was no further adverse possession until Smith transferred the title to- Preston, who built on the lot in 1906. From 1906 until the commencement of the suit was less than 11 years, which period would not be sufficient to establish the title by adverse possession. So that unless it can be found that the mere platting and subdividing of the property by Galloway & Butterfield is. sufficient to satisfy the requirements of the rule, the court erred in, submitting this theory of the defendants to the jury. Counsel for the defendants say in their brief:

“Every real estate man with a subdivision sees to it that his ownership, possession and control of the subdivision is the most notorious thing apparent in the vicinity. It is safe to infer that if there was a subdivision, there was open and notorious possession of it. The signs and corner stakes of the boundaries of the lots, streets and alleys of a subdivision are evidence enough of that.”

It may be true that if testimony had been introduced to show that Galloway & Butterfield went onto the property, staked it, placed signs on it, and actually occupied it, such testimony might have been sufficient evidence of open, notorious, and hostile possession to raise a question for the jury, but the infirmity of the defendants’ case is that these facts were not established, and counsel ask that they-should be inferred. As we have before stated, a case of adverse possession cannot be made out by inferences, but must be established by clear and cogent proof. This, in our opinion, the defendants have clearly failed to do, and there being an absence of proof of an actual, continuous, visible, notorious, distinct, and hostile possession for the statutory period, the court was in error in submitting this theory to the jury. It being impossible to determine which of defendants’ theories the jury accepted in rendering its verdict, it will be necessary to reverse the case and order a new trial. .It is so ordered, with costs to the plaintiff.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.
      Sec notes in 15 L. R. A. (N. S.) 1189.


text:
    HICKEY v. DETROIT UNITED RAILWAY.
    1. Evidence — Street Railways — Cross-Examination — Testimony at Coroner’s Inquest.
    In an action against a street railway company for the death of plaintiff’s decedent caused by a collision at a street crossing between decedent’s automobile and a street car, where the motorman in charge of the car, called by plaintiff for cross-examination under the statute, testified that the details as to speed, distances, etc., were fresher in his mind within a week or two after the accident than at the time of the trial, it was proper to use his testimony given at the coroner’s inquest for the purpose of refreshing his memory, and, upon his denying the correctness of his previous testimony, for the purpose of testing his credibility.
    2. Street Railways — Death—Evidence—Negligence — Contributory Negligence — Question eor Jury.
    Testimony that decedent, before attempting to cross a street car track, brought his automobile down to a speed of six or seven miles an hour, and looked in the direction of an approaching car, when he accelerated his speed and attempted to cross, that the street car was being operated at the extreme limit of speed in a thickly settled district of the city, that when the car was at least 100 feet from the crossing the motorman realized that the automobile was attempting to cross the track ahead of him, and he did not take extreme measures to stop the car because he judged that it had time to cross safely, held, to present questions for the jury as to defendant’s negligence and decedent’s contributory negligence.
    3. Trial — Instructions.

      Held, that the issues were clearly and fairly presented to the jury, with proper instructions.
    4. New Trial — Weight oe Evidence.
    There being sufficient evidence to sustain the verdict for plaintiff, the court did not err in denying the motion for a new trial based upon this ground.

      Error to Wayne; Hosmer, J.
    Submitted June 12, 1918.
    (Docket No. 71.)
    Decided July 18, 1918.
    Case by Annie R. Hickey, administratrix of the estate of John P. Hickey, deceased, against the Detroit United Railway for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and William G. Fitzpatrick (Thomas T. Leete, Jr., of counsel), for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   Kuhn, J.

On July 4, 1915, plaintiff’s intestate, John P. Hickey, a man about 60 years of age, was driving an automobile in a southerly direction along Twelfth street in the city of Detroit, and while attempting to -cross the tracks of the defendant company on Porter street, was struck by one of defendant’s street cars and received injuries from which he died a short time afterwards.

The track on Porter street is a single track, over which the Sherman-street cars travel in a westerly direction. Ordinarily no other cars use this portion of the track, but on the day of the accident the Baker-street cars, owing to some obstruction in their usual line of travel, had been re-routed so as to make their trip west along this part of Porter street, and it was a Baker-street car which collided with the automobile of the deceased. The block extending from Twelfth street easterly to Tenth street is an unusually long one, Eleventh street not being opened at Porter street, and most of the way along this block the cars run on a down grade. About 450 feet west of Twelfth street (and just beyond Vermont avenue) there is a high bridge upon which the street cars pass over some railroad tracks, and the rise in the grade from a point about 213 feet west of the center of Twelfth street to the top of this bridge is quite steep. The width from curb to curb on Porter street varies from 28 feet just east of Twelfth street to 29.4 feet just west of Twelfth street, and the distance from the car track to the curb on either side is about 12 feet. Twelfth street from curb to curb is about 30 feet wide at this point.

Mr. Hickey had been driving down Twelfth street at a speed estimated between'-lO and 15 miles an hour, but, as he approached Porter street, slowed down to 6 or 7 miles an hour and looked in the direction of the approaching car, which was then about 125 feet east of the east curb of Twelfth street. He was then about 15 feet from the car track, and almost immediately accelerated the speed of the automobile and attempted to cross. The street car was going at a high speed, estimated by some of the witnesses as at least 30 miles an hour. The motorman was called by the plaintiff as an adverse witness for cross-examination. He testified that the car was going at full speed and down grade, but estimated the speed as 18 or 20 miles an hour, stating that he did not believe the car could go any faster than that. He admitted having testified at the coroner’s inquest that the car was going 30 miles an hour, but insisted that he was mistaken and from' later experience and observation believed that 18 or 20 miles an hour was a more correct estimate. He admitted that the car was going as fast as any he ever operated, and that he had never seen a street car in the city of Detroit travel faster than he was going at the time of the accident. He further testified that he first saw the automobile when he was about 150 feet from Twelfth street; that it was slowing down and was about even with the north curb of Porter street; that- it traveled a few feet before its speed began to accelerate, at which time his car was about 100 feet from the east curb of Twelfth street; that he then began to do something to stop his car, but not all that he could have done, because at that time he “judged it was going to get across the track;” that when he was within 50 feet of the east curb of Twelfth street he came to the conclusion that the automobile could not get across safely, and that he then threw off the current and reversed the car and kept the reverse on until the car came to a stop about 100 feet beyond the west curb of Twelfth street.

At the close of. the testimony the defendant moved the court to direct a verdict in its favor, which motion being overruled, the court was thereupon requested to reserve final decision of the question under the Empson act (Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568 et seq.), and such reservation was made. The case was submitted to the jury, who returned a verdict for the plaintiff of $7,000, upon which judgment was duly entered. Defendant thereupon filed a motion for a new trial or for judgment non obstante veredicto. This motion was denied, and defendant filed written exceptions to the decision of the court thereon.

Appellant’s counsel have argued the 25 assignments of error under eight heads. We think the following discussion will fairly dispose of the case.

The first four assignments allege error in connection with the examination pf the witness Percy Morgan, the motorman of the car, who was called by the plaintiff under the statute for cross-examination. He had been a witness at the coroner’s inquest, and his testimony at the trial of the present case varied somewhat from that given at the inquest. Concerning these inconsistencies he was closely questioned by plaintiff’s counsel. Complaint is made that counsel did not confine his efforts to showing previous contradictory testimony, but that, without first bringing out any affirmative statements on the point in question, he tried to bring out and read into the record as affirmative evidence the testimony of this witness before the coroner. An examination of the record discloses that when reference was first made to this prior testimony, the witness had just stated that he did not know whether or not the speed of the car he operated at the time of the accident was 30 miles an hour. He explained that more than two years had elapsed since the accident, and that some of the details had slipped Ms mind; that the details as to speed, distances, etc., were fresher in his mind within a week or two after the accident than at the time he was being questioned in this case. It was then that plaintiff’s counsel began to read to Mm certain questions and answers from his testimony at the inquest, manifestly for the purpose of refreshing his recollection as to these details. But the witness, instead of either verifying his estimate of 30 miles an hour as given at the coroner’s inquest, or reiterating his former statement that he did not know, shifted his ground and asserted quite positively a new estimate of the speed, claiming that while he had given his testimony at the inquest in perfect good faith, yet further experience as a motorman had convinced him that he had then overestimated, and wished to state that he would fix the maximum speed of the car at 18 or 20 miles an hour. He could give no definite basis for this belief, had made no tests or anything of the kind, but insisted that that was his best judgment at the time of the trial.. We are unable to discern any effort on the part of counsel to make the questions and answers given at the coroner’s inquest affirmative evidence in this case, but are clearly impressed that the original purpose in referring to them was to refresh the memory of the witness, and ; upon his denying the correctness of Ms previous testimony, to use it in testing the credibility of the witness. There was other affirmative evidence as to the speed of the car.

Assignments of error 6 to 11 relate to the refusal of the court to direct a verdict in favor of the defendant on the ground that there was no proof of negligence on the part of defendant and also for the reason that plaintiff’s intestate himself was guilty of negligence contributing to the injury. Cases in which a plaintiff has been injured by being struck by a car while attempting to cross the tracks ahead of it, fall into two classes, first, those in which the circumstances clearly show an entire failure on the part of the plaintiff to look for the car, or at best a mere careless glance, or else evident recklessness in making the attempt to cross. See Borschall v. Railway, 115 Mich. 473; Hilts v. Foote, 125 Mich. 241; Merritt v. Foote, 128 Mich. 367; Colborne v. Railway, 177 Mich. 139; Miller v. Railway, 200 Mich. 388; second, cases where the plaintiff saw the approaching ear and decided there was sufficient time to cross ahead of it, under circumstances which do not clearly show recklessness in the formation of such judgment. See Ryan v. Railway Co., 123 Mich. 597; Chauvin v. Railway, 135 Mich. 85; Gaffka v. Railway, 143 Mich. 456; LaLonde v. Traction Co., 145 Mich. 77; Seebach v. Railways Co., 177 Mich. 1; Hildebrandt v. Railway, 200 Mich. 52. In cases of the first class we have held that a verdict should be directed for the defendant, and it is this line of cases upon which appellant’s counsel rely, particularly the case of Colborne v. Railway, supra. But in the latter case it is expressly stated:

“This is not of that class of cases in which the car has been seen, and the plaintiff, reasonably believing a crossing could safely be made, has attempted to cross, and been injured, owing to the fact that the car was run at an excessive rate of speed, or being otherwise negligently operated, and therefore the question of whether plaintiff, in the exercise of common prudence, might have reasonably judged there was sufficient time to pass became a question of fact, upon which opinions might reasonably differ.”

The quotation well describes the second class of cases above referred to, and we think it is clear that the instant case falls within this class. Here the motorman was admittedly operating his car, in a thickly settled district of the city, at the extreme limit of its speed;, he admits that he realized, when he was at least 100 feet from the crossing, that the automobile was attempting to cross the track ahead of his car,, yet he not only failed to reduce the speed sufficiently to avoid the collision, but did not succeed in bringing his car to a stop short of 100 feet beyond the west curb of Twelfth street. He admits that he did not at once take extreme measures to stop the car, because he judged that decedent had time to cross safely. Yet, under these circumstances, defendant takes the position that the motorman’s conduct was not negligent, but that decedent, in relying upon a similar judgment on his own, part, was, as a matter of law, guilty of contributory negligence. Deceased had brought his automobile under control on approaching Porter street, had looked towards the approaching car, and apparently had reached the conclusion that there was ample time to cross in safety. From the fact that the automobile was struck at the hub of the rear wheel it is apparent that, had the car been going at almost any speed less than its extreme limit on a down grade, his judgment would have been correct. In such cases the question is one for the jury.

Some complaint is also made concerning the charge of the court, and that the verdict is against the weight of the evidence. In view of our conclusion that the question of the negligence of the defendant and the contributory negligence of plaintiff’s intestate were questions properly to be submitted to the jury, an examination of the charge is convincing that the issues thus presented were clearly and fairly presented to the jury with proper instructions, and there was sufficient evidence to sustain the verdict. The court did not err in denying the motion for a new trial based on this ground.

We find no error, and the judgment is therefore affirmed.

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


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    PEOPLE v. DE GOENAGA.
    1. Criminal Law — Trial—Argument oe Counsel.
    In a prosecution for adultery, where the defense was an alibi, the defendant claiming to have been in New York city, at the home of his sister, at the time the offense was alleged to have occurred, where the court excluded testimony offered to explain the absence of defendant’s sister, it was reversible error for the prosecuting attorney, in his closing argument to the jury, to comment upon the failure of defendant to have his sister in court, and to insist that the failure to produce the witness in itself should be sufficient for the jury to find defendant guilty.
    2. Evidence — Secondary Evidence — Contents oe Letter.
    Testimony as to the contents of a letter addressed to defendant was inadmissible, in a criminal prosecution, in the absence of a showing that the original was not in existence.
    3. Same — Unsigned Letter — Identity of Writer.
    The letter being unsigned, and no effort being made to identify the handwriting, testimony as to its contents was inadmissible.
    See notes in 46 L. R. A. 641; 34 L. R. A. (N. S.) 811.

      Exceptions before judgment from Kalamazoo; Weimer, J.
    Submitted June 13, 1918.
    (Docket No. 99.)
    Decided July 18, 1918.
    Augusto De Goenaga was convicted of adultery.
    Reversed.

      Earl L. Burhans and W. J. Barnard, for appellant.

      Frank F. Ford, Prosecuting Attorney, for the people.
   Kuhn, J.

The respondent was convicted on an information charging him with having committed the crime of adultery on the 14th day of January, A. D. 1917, with one Luella M. Keller. The case is brought here on exceptions before sentence.

The defense in this case was an alibi, and it was sought to show by witnesses that at the time the offense was alleged to have occurred, the respondent was in New York city at the home of his sister, Mrs. Lewis Seller. Upon the trial, while the respondent was upon the stand, his counsel attempted to show the reason for her absence from the trial, and the following occurred:

“Q. Was she to be a witness here for you?
“Mr. Ford: Object.
“Mr. Barnard: I just want to show her absence.
“Mr. Ford: I object to the question, calls for hearsay entirely.
“Mr. Barnard: I show your honor here a letter since the trial begun—
“The Court: I think I will sustain the objection to that last question.
“Mr. Barnard: An exception.”

(Exhibit “L” marked.)

Witness presented with Exhibit “L,” stated it is a letter he received from his sister in New York, Mrs. Seller. “I received it a couple of days ago, since the trial started; yes, sir.

“Q. I will ask you whether you were informed that it would be impossible for her to be here on account of the sickness of her husband?
“A. Yes, sir.
“Mr. Ford: Just a minute. I object to that and ask that answer be stricken out.
“The Court: It should go out. Objection sustained. The jury will pay no attention to it.”

During the prosecutor’s closing argument to the jury he, over repeated exception taken by respondent’s counsel, commented upon the failure Of respondent to have his sister in court, and in part said as follows:

“Mr. Ford: I say to you, gentlemen, it is perfectly proper for you to consider that proposition, and the court will charge you to that effect, and if he will not, he will stop me in any incorrect argument I make. I say to you this defendant’s sister from New York should have appeared here if the defendant saw fit to have her.
“Mr. Barnard: I take an exception.
“Mr. Ford: And if she had not been produced, and could not be produced, my brother can talk about what the law permits, it allows the defendant to take a deposition in the city of New York or any witnesses that cannot come here, and to serve notice upon the prosecutor to go to New York with him and take a deposition of a material witness in this case; they could have done that. Why didn’t they? Gentlemen, I think that point and that alone is sufficient to enable you to find this respondent guilty. Where is the sister’s testimony? It is absolutely absent. We don’t know whether she wanted to come or whether she didn’t want to come to bolster up this, defendant’s case.
“Mr. Barnard: I take an exception to this line of argument.
“Mr. Ford: But we know she didn’t come. She probably^ would have come personally to help out her brother in this. If she could have testified that he was there, and if she could not have come by reason of sickness or something else; her deposition could have been taken in a month upon my brother’s serving notice upon our office to go there and take depositions that could have been introduced here.”

Irrespective of whether the court acted properly in excluding the testimony by which it was sought to explain the absence of the witness, the testimony having been excluded and the respondent having been denied the opportunity of making an explanation, it was clearly improper and highly prejudicial to respondent’s case to allow the prosecuting attorney in his closing argument to dwell upon the failure to produce the witness and to insist that the failure to produce the witness in itself should be sufficient for the jury to find the respondent guilty. This, in itself, in our opinion, is sufficient error to cause' a reversal of this conviction.

On the trial, during the examination of the witness Burton Parkhurst, who had been called for cross-examination, the prosecutor offered, and the witness was allowed to testify, as to the contents of a letter which was addressed to the respondent and which was opened and read by the witness before delivering it to the respondent. It' appears that it was an unsigned communication, and no proof was offered to identify the handwriting. The court stated, when objection was made, “It is the claim of the people it was from the Keller girl.” In our opinion, no evidence as to the contents of this letter should have been allowed to be produced, as it was not shown that the original was not in existence, and further, if secondary evidence of its contents were permissible, it being an unsigned communication, no effort was made to show that it was in the handwriting of the Keller girl.

As the other incidents of the trial which are made the subject of assignments of error will, in all probability, not occur again upon a new trial, it will be unnecessary to discuss them in this opinion.

For the errors above discussed, which it must be said denied the respondent that fair and impartial trial to which he is entitled under our Constitution and laws, and which it also must be said resulted in a miscarriage of justice, the conviction will be reversed and a new trial granted.

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


text:
    HASELHUHN v. MACOMB CIRCUIT COURT.
    Criminal Law — Practice and Procedure — Effect of Judicature Act.
    Since the title of Act No. 286, Pub. Acts 1913, under which the commission was appointed tp draft the judicature act (Act No. 314, Pub. Acts 1915), provided for the revision and consolidation of the general laws relating to civil practice and procedure, and the title of the judicature act expressly limits its operation to civil practice and procedure, the 14-day notice required by section 5, chap. 18, of the judicature act (section 12577, 3 Comp. Laws 1915), does not apply to a criminal case where the defendant is bound over to the circuit court for trial at the present term of court, and the case is not oh the calendar; and the defendant may be tried at once under the former practice, unless there are other reasons for adjournment.
    Mandamus by Charles Haselhuhn to compel James G. Tucker, circuit judge of Macomb county, to enter an order striking a cause from the calendar.
    Submitted June 4, 1918.
    (Calendar No. 28,359.)
    Writ denied July 18, 1918.

      George W. John (William Van Dyke, of counsel), for plaintiff.

      Lynn M. Johnston, for defendant.
   Kuhn, J.

In this proceeding-it is sought by mandamus to compel the respondent to enter an order granting the motion made by relator’s counsel to strike a cause in which relator was respondent, from the calendar.

The relator was bound over to the circuit court February 26,1918, on the charge of retailing liquor without a license. The recognizance called upon him to appear at the present term of the circuit court February 26, 1918, the then February term of the circuit court having commenced February 4, 1918. The next term of the circuit court would commence May 6, 1918. The relator appeared on February 26, 1918, as required by his recognizance, but no proceedings took place in court. On March 1st the justice made his return, and on March 16th an information was filed by the prosecuting attorney. On March 16th the relator was sent for and, according to the records of the court, was arraigned, the reading of the information was waived, and a plea of not guilty was entered. On March 18th, the relator’s attorney, being in court, was informed by the circuit court to be ready for trial forthwith, as the case would be taken up immediately after two other jury trials, were concluded. Relator’s attorney thereupon moved to have the case stricken from the calendar on the ground that it was improperly placed thereon. This motion was denied by the respondent.

Section 5, chap. 18, Act No. 314, Pub. Acts 1915 (judicature act, 3 Comp. Laws 1915, § 12577), provides :

"Cases in which issue shall be joined, or appeal filed, after the fourteenth day before the first day of any term of any court, may be placed upon the calendar at any time before or during the term, at the request of the attorney for any party thereto, which said attorney shall forthwith give notice in writing to all of the parties to said cause, or their attorneys, of the fact of placing such cause upon the calendar, and upon the giving of such notice, after the lapse of fourteen days the same shall stand for trial the same as other cases.”

It is agreed by counsel that the only question of law involved in- this proceeding is as to whether or not the provision of the judicature act above quoted applies to criminal cases; that is, if the defendant in a criminal case is bound over to the circuit court for trial at the present term of court, and the case is not on the calendar, does the 14-day notice required in civil cases apply, or can the respondent be tried at once unless there are other reasons for adjournment?

As the February term of the court has now passed, it is apparent that in the instant case this has now become a moot question. However, because of the public importance of the question involved, we will determine it upon its merits.

The act (Act No. 286, Pub. Acts 1913) by which the commission was appointed to draft the judicature act, is entitled:

“An act to provide for the appointment of a commission to prepare and report bills for the revision and consolidation of the general laws of this State relating to civil practice and procedure, domestic relations, and transactions (probably a misprint, and should be taxation) and other general laws, and to prescribe their duties and provide their compensation.”

' Section 1 of the act reads:

“It shall be the duty of the governor to appoint a commission consisting of three persons, not more than two of whom shall belong to the same political party, whose duty it shall be to prepare separate bills for the consolidation and revision of the general statutes of this State upon the following subjects:
“(a) The law relating to civil practice and procedure;
“(b) The law relating to domestic relations;
“(c) The law relating to general taxation;
“and to report the same to the governor on the completion thereof.”

While it is true that the commissioners were, by section 2 of said act, authorized to prepare revisions of the general statutes on such other subjects as they might consider in need of revision and consolidation, yet it was specifically provided that each subject with which they dealt should be embodied in a separate bill. The judicature act was the result of their work under subdivision (a.) of section 1 above quoted, which was confined to civil practice and procedure. The title of the judicature act expressly limits its operation to civil practice and procedure:

“An act to revise and consolidate the statutes relating to the organization and jurisdiction of- the courts of this State; the powers and duties of such courts, and of the judges and other officers thereof; the forms of civil actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with, or contravening any of the provisions of this act.”

The only reference to criminal cases in the judicature act to which counsel have called our attention, in connection with the subject under consideration, is in the section prescribing the order in which the clerk shall place cases on the calendar, likewise found in Circuit Court Rule No. 40. That, however, has no significance. In order to insure to the accused the “speedy trial” to which he is entitled by the Constitution, it has always been the rule that criminal cases should have the preference and be first disposed of at each term. In a statute relating to the making up of a calendar of cases, it is of course impossible to provide that civil cases shall follow the criminal cases, without providing that the criminal cases shall come first. Hence the reference to criminal cases in this section. A similar provision was found in the statutes prior to the judicature act, and also in the court rules.

Prior to the judicature act, a person accused of a crime, arrested and examined by a magistrate during a term of the circuit court, might be bound over to appear at the present term of the court, and might be tried at that term. In Tiffany’s Criminal Law, pages 145, 146, it is said:

“The condition of the recognizance must show the court to which the accused is bound to appear, and must require him to appear at a time when the court will be in session; and it is said that if it bind him to appear on a day when the court does not sit, it will be void. If the court in which the case is to be tried is sitting at the time when the recognizance is taken, it ought to be for the appearance of the party at the present term or session of the court; and if not in session, then • for the first day of the next term thereof.”

And in foot-note 58, p. 432, it is stated:

“The information may be filed at the same term during which the complaint was made. It may be filed as soon as is found convenient. People v. Haley, 48 Mich. 497. It may be filed at the same term during which the respondent was held for trial for a felony ‘at the next term of the court.’ People v. Mason, 63 Mich. 510.”

In the last cited case, notwithstanding the respondent’s motion for a continuance, the trial was had during the afternoon of the same day on which the information was filed, which was but three days after the respondent was examined by the magistrate and bound over. It was. held this was not error.

In many States the rule is explicitly covered by statute, some requiring that the accused.be tried at the same term as arrested, if the court is then in session, others providing for bringing on cases by notices of trial. In Kansas the statute requires the trial to be at the present term, and the decisions have held that this must be done, even when the wording of the recognizance or of the magistrate’s return is “at the next term.” Where the matter is not covered by statute, the courts seem to hold that the accused may be tried at the present term. See Allen v. State, 9 Ga. 492; Page v. Commonwealth, 27 Grat. (68 Va.) 954. In the latter case it is said:

“The Code, it is true, provides that the commitment for trial, &c., "shall be in the next term of the circuit court for such county’; but that does not prevent a trial from being had at an existing term of the court, if one be then in existence. The object of the law is to have a speedy trial of a felony, and it therefore provides that the accused shall, unless good cause be shown for a continuance, be arraigned and tried at the first term of the court to which he is remanded or sent on for trial. Code, chap. 202, secs. 1 and 2. It might be very inconvenient and injurious, as well to the accused as to the commonwealth, to delay a trial necessarily to a future term of the circuit court, when there was one in existence at which it might just as well be had.”

Because of our conclusion that the terms of the judicature act providing for the 14-day notice do not apply to criminal cases, it follows that the relief here sought by relator must be denied.

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