author: Montgomery, J.

text:
    George V. Lincoln v. The City of Detroit.

      Municipal corporations — Defective street — Contributory negligence —Evidence—Privileged communications.

    1. Plaintiff was injured at the intersection of two streets in the city of Detroit by stepping on the edge of the iron covering of a manhole, situated just outside the sidewalk, and at the corner formed by the intersection of the two crosswalks with the sidewalk. The evidence tended to show that the covering to the manhole rested upon a stone which formed a rim, and that either because the stone had worn away, or because originally too large for the purpose, whenever a person stepped on the edge of the iron covering, the natural result was to force the rim far enough away so that the edge would drop down, and let the traveler into the manhole. Plaintiff was, at the time of the accident, attempting to cross diagonally from the north-west corner of the intersection of the streets to the south-east corner, and claims to have been injured in the manner indicated. And it is held:
    a — That it was the duty of the defendant to render the manhole reasonably safe, having reference to the probable use which the public would make of it; and that 3 How. Stat. § 1446e, making it the duty of cities to keep their public streets “in reasonable repair, so that they will be reasonably safe and convenient for public travel,” is broad enough to cover all portions of the street in question.
    b — That, while it would not be required of the city to construct a smooth surface for travel at the point where the manhole was situated, and while it was not necessary that the manhole should be on a level with the sidewalk, yet it was neither extraordinary nor negligent for pedestrians, in crossing the street, to cross at other points than the crosswalks, and to pass over such manhole, using due caution; and, if there was such a defect as is described in the testimony, a pedestrian would be quite unlikely to discover it, even if using due care; and it was therefore a question for the jury whether the place in question was reasonably-safe.
    c — That an instruction that “it was the duty of the defendant to keep the manhole, in just as safe condition as the sidewalk itself, conceding that it was riot a part of the sidewalk,” if justifying the inference on the part of the jury that the space covered by the manhole must be kept as smooth and present as perfect a surface as the sidewalk, was incorrect and misleading; that the jury should have been instructed that a pedestrian about to cross such a point in the street must take notice of the uneven surface and declivities, and use such care as the situation would suggest to an ordinarily prudent person.
    2. The plaintiff testified on his cross-examination that he was under the influence of liquor at the time of the accident, and it was also claimed by the defendant that his testimony tended to.show that he paid no attention to where he was going, and did not use due care, and that this was attributable in part to his intoxicated condition. And it is held that an instruction that the testimony of the plaintiff himself was that he was not under the influence of liquor was directly opposed to his own testimony, and, as the question related to a material point, it cannot be said that such a statement of the testimony, coming from the court, was not calculated to mislead the jury in prejudice of the defendant’s case.
    8. A physician testified in behalf of the defendant that he made an examination of the plaintiff after he was injured, and was then asked to state whether, at the time of such examination, the plaintiff was under the influence of liquor. The witness declined to answer on the ground of privilege, and was sustained by the court, although no objection was made by the plaintiff to the proposed testimony. And it is held that it was error to exclude the testimony; that the privilege claimed was that of the plaintiff, and not of the witness; and, besides, it did not appear that the information as to plaintiff’s condition was necessary in order to enable the physician to prescribe for his ailment.

    Error to Wayne. (Reilly, J.)
    Submitted on briefs April 12, 1894.
    Decided June 26, 1894.
    Negligence case. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      John J. Speed {T. T. Leete, Jr., of counsel), for appellant.

      Edgar Weeks (Osear M. Springer, of counsel), for plaintiff.

       For cases bearing upon the construction of How. Stat. § 7516, which makes certain information acquired by. physicians privileged, see Dittrich v. City of Detroit, 98 Mich. 245, and note.

   Montgomery, J.

Plaintiff recovered for an injury received at the intersection of Franklin and Rivard streets, in Detroit. The theory of the plaintiff was that the injury occurred from his stepping on the edge of the iron covering of a manhole, which was situated judt outside the sidewalk, and at the corner formed by the intersection of the two crosswalks with the sidewalk. The evidence tended to show that the covering to the manhole rested upon a stone .which formed a rim, and that either because this stone had worn away, dr because originally too large for the purpose, whenever a person stepped on the edge of the iron covering, the natural result was to. force the rim far enough away so that the edge would drop* down, and let the traveler down into the manhole. This is the way .the injury is claimed to have occurred in the present case. The plaintiff was at the time attempting to cross diagonally from the north-west corner of the intersection of the two streets to the south-east corner.

It is contended by the defendant that the city is not. required to keep the whole width of its highway for pedestrians, and, if the portion devoted to travel is safe, this is. sufficient. Counsel cite, as sustaining this contention, the case of Keyes v. Village of Marcellus, 50 Mich. 441. That case is, however, clearly distinguishable from the present. The street considered in that case in which the defect existed was said to be little more than a country highwav, and it was held that it accommodated, public travel conveniently and safely. We think in the present case it was a duty to render this manhole reasonably safe, having reference to the probable uses which the public would make of it. The statute is broad enough to cover this portion and all portions of the street. 3 How. Stat. § Iéá6e. While' it would not be required of the city to construct a smooth surface for travel at the point where the manhole was situated, and while it was not necessary that it should be on a level with the sidewalk, yet it is not either extraordinary or negligent for pedestrians, in crossing the street, to cross at other points than the crosswalks, and to pass over such manholes, using due caution; and, if there was such a defect as is described in the testimony, a pedestrian would be quite unlikely to discover it, even if using due care. It would be well calculated to result in serious injury. We think, therefore, that it was a question for the jury whether the place in question was reasonably safe.

The circuit judge charged the jury as follows:

“I think from the situation, as exhibited by the map drawn by the engineer of the city, and presented in evidence, that it is the duty of the city to keep that manhole in just as safe condition as the sidewalk itself, conceding that it is not part of the sidewalk."

We think this instruction may have misled the jury. If the jury were justified in inferring from this that the ¡space covered by the manhole must be kept as smooth .and present as perfect a surface as a sidewalk, it is certainly incorrect and misleading. On the contrary, a pedestrian about to cross such a point in the street must take notice of the uneven surface and declivities, and use .such care as the situation would suggest to an ordinarily prudent person.

In the present case the testimony tended to show that the plaintiff was more or less under the influence of liquor at the time of the injury. In fact, he himself testifies on cross-examination that he was under the influence of liquor. It was also claimed by defendant that his testimony tended to show that he paid no attention to where he was going, and did not use due care; and that this was attributable in part to his condition. The circuit judge, in charging the jury, stated.

The testimony of the plaintiff himself is that he was not under the influence of liquor.”

This was directly opposed to his testimony given on cross-examination; and, as the question related to a material point, we cannot say that such a statement of the testimony, coming from the court, was not calculated to mislead the jury in prejudice of the defendant’s ease.

We do not think the case should have been taken from the jury upon the question of plaintiff’s contributory negligence, as requested.

The other questions involved need not be discussed.

It should be remarked, however, that the ruling of the court excluding-' the testimony of Dr. Stewart, as to the condition in which the plaintiff was, was erroneous. No objection was made to the testimony by the plaintiff, and it was not the doctor’s privilege which was in question, but the plaintiffs; nor did it appear that the information as to his condition was necessary in order to enable the physician to prescribe, for his ailment.

For the errors pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Henry Heinlein v. The Imperial Life Insurance Company.

      Life insurance — Surrender of policy — Fraud—Revival—Tender of premium — Insurable interest — Wager policy.

    1. The president and secretary of a life insurance company, aided by the local agent, — who had secured insurance upon the life of a mother, payable to her son if he survived her, and, if not, to her estate, — by falsely representing to the son that the insurance was graveyard insurance, and therefore void, induced the son to surrender the policy on receipt of the premiums, which he had paid in behalf of his mother, he having general charge of her affairs. And it is held that the facts bring the case within the rules laid down in Tabor v. Insurance Co., 44 Mich. 324, and that a bill will lie in behalf of the son to revive the policy, the same not being a wager contract.
    2. It was urged as a defense to the suit to revive the policy that a premium fell due after the surrender of the policy, and had not been paid or tendered. And it is held that this contention should not prevail, because:
    a — Payment or tender of payment of premiums is not necessary where the insurers have already declared the policy forfeited, or done any act which is tantamount to a declaration on their part that they will not receive it if tendered; citing May, Ins. § 358.
    b — Prior to such surrender and to the maturity of said premium the defendant, by its .president, had sent a written notice to the insured that the premiums on her policy would be thereafter collected at the home office, instead of at a certain bank in the city where she resided, and where they had been formerly paid, and that she would receive due notice of the day when the premiums would become due, and the amount of the same, which notice was not given.
    Appeal from Bay. (Cobb, J.)
    Submitted on briefs April 13, 1894.
    Decided June 26, 1894.

      Bill to revive a life insurance policy. Complainant-appeals.
    Decree reversed, and one entered restoring the policy, and for the amount thereof.
    The facts are stated in the opinion.

      Tarsney é Wic/cer, for complainant.

      Hoyt Post, for defendant.

       With this case as reported m 25 L. R. A. 627, is a note on wager insurance policies.

   McGrath, C. J.

This is a bill to revive a life insurance policy, issued December 22, 1890, on the life of Margaretha Heinlein, and payable to Henry Heinlein, Jr., her son, if living; if not living, to the executors, administrator, or assigns of the said insured.”

One Smith, an insurance agent, applied to Henry Heinlein to take out insurance. Heinlein replied that he did not desire to take out a policy, but that his mother had spoken to him about insurance, and he thought that she wanted insurance. Smith requested him to see his mother, and let him know. Afterwards Smith, who was accompanied by a physician, met Heinlein, and asked if the latter had seen his mother. Heinlein replied that he had, and Smith suggested that they go right up to the house, and they did so. The application was filled out, and the medical examination made. The defendant company declined to take the full amount, viz., $10,000, but issued a policy for $5,000, and the Berkshire Life took a policy for $3,000; a new application being made out, and another medical examination having been made. The first premium was paid by check on a bank at Saginaw, signed “M. Heinlein, by Henry Heinlein.” The insured resided at East Saginaw, and it would appear from the testimony that Henry Heinlein also resided there at the time the policy was taken out. The subsequent premiums were payable quarterly, and were # paid by Henry Heinlein, although he testified that he had general charge of his mother’s affairs, and paid the premiums in her behalf. The policy seems to have lapsed in 1891, owing to the failure to pay the premium promptly, but a health certificate was furnished, and the policy was restored.

Margaretha Heinlein was taken sick in the spring of 1892, and died July 2 of that year. On June 14, 1892, the president of the defendant company and the secretary thereof and the general agent of the Berkshire Life Company went to Bay City, where complainant then resided, and secured both policies from Henry Heinlein, refunding to him the amount of the premiums paid. It appears that, before going to Bay City, the officers of these companies had been to East Saginaw, and had there learned of the illness of the insured. Upon arriving at Bay City, they sought out Smith, who had solicited the insurance, and secured his services to aid in recovering the policies. The interview with Smith is described by him as follows:

“We went up to a room, Mr. Angus and Mr. Oliver and Mr. Early and myself, and Mr. Angus, I think, was the one who broached the subject to me, and told me that they were there to see what could be done with the Heinlein matter. As near as I can remember, Mr. Early showed me the papers, and asked me as to the certificates of health, etc., and wanted to know if I knew that that was graveyard insurance. I told him, ‘no, sir;’ I didn’t consider it in that light; that the insurance was solicited in the regular way. He says: ‘I understand that this, where the party is paying the premium on his mother, makes it graveyard insurance or speculative insurance.’ I told him I didn’t think that that was the case, — that this was a case of that kind,; — because, in Mr. Heinlein’s statement to me previous to this, he told me what his mother wanted the insurance for, — to protect the property of some minor children; that is what she was taking this insurance for. And Mr. Angus said to me, or Mr. Oliver, — I could not say which one; the conversation was between the two of them, — they said it was graveyard insurance, and that, if he pressed it, they should put it into the courts, and it would be a question whether they would get anything or not, and stated to me that they wanted to take them up, and would pay for the taking up of the policies, and wanted to know what I thought about it. I says: ‘ Gentlemen, if I have done anything wrong in any way, shape, or manner, I am willing to right it.’ They wanted to know how I was willing to right it. I told them I was willing to go to Mr. Heinlein, and state to him- their statements, and the only condition that I would go would be that they would pay the premiums in full that Mr. Heinlein had paid. And Mr. Early and Mr. Angus talked together, and wanted to know if I would go and do that, and I told them I would,.and Mr. Angus signed a check for Mr. Oliver, and Mr. Early signed a check payable to my order.”

He says, further:

“I told Mr. Heinlein that, as I understood it, we had got ourselves in trouble with that insurance; and he wanted to know how, and I told him Mr. Oliver says we had made a mistake in writing the insurance in that way, making him the beneficiary, as it came under the head of graveyard insurance, and that they wanted to settle the matter, and they would do so by paying him back the entire amount of his premiums that he had paid if he would release the policies, both for the Imperial and for the Berkshire; and Mr. Oliver says to him, ‘ That is the facts in the case,’ as near as I can remember what he said. f It comes under the head of old folks’ insurance, and ain’t legitimate business.’”

Complainant testifies that he met Oliver and Smith in the street, and “Smith said: “’You are the man we are looking for.’ We went into a store, and Smith says: 'We have got ourselves in a nice box. We have got ourselves in trouble.’ I asked him in what way.” Oliver is then introduced, and he proceeds to assert that the policies are void; that it was graveyard insurance; that Heinlein didn’t have any insurable interest in his mother, and she had no insurable interest in him; that, if the insured should die, Heinlein could recover only the premiums paid in; that they would refund the premiums if he would surrender the policies; that, unless he accepted, they would throw it into the courts, and then he would get nothing; that he had insured his mother for a speculation; that they were in haste to leave the city. Heinlein suggested that the Insurance Commissioner lived in the city, and that he would go to him for advice; but Oliver said: “There is no use going to him. He cannot help you any in this matter, and, if you don’t take what we offer you, why, we will take it, and throw it into the court, and you will not get anything.” The matter seems to have been closed out within a few hours. Heinlein went to the office of Shepard & Lyon, attorneys. The parties went with him. Neither Shepard nor Lyon was in. Heinlein then went to the office of a justice of the peace. They went with him, and the matter was then. concluded. From the time that Oliver and Smith met Heinlein until the policies were received by them, Heinlein was not out of their sight. Heinlein had a short talk with the justice about the matter. Oliver and Smith were in the room, and Oliver reiterated the. assertions as to speculative and graveyard insurance, and exhibited to the justice a pamphlet containing some reference to the subject of speculative insurance, and read ■therefrom.

.We think that the facts bring the case within the rules laid down in Tabor v. Insurance Co., 44 Mich. 324, and that complainant is entitled to the relief prayed. See, also, Renard v. Clink, 91 Mich. 3. There is no ground for the claim that this was a wager policy. It affirmatively appears that the first premium was paid by the insured, and the fact that the check for the premium was signed as it was, and was, as thus signed, presented and honored, supports Heinlein’s claim that he was acting for his mother, had general charge of her affairs, and for her forwarded the other premiums. Mr. May says, at section 112, if the person whose life is insured pays the premiums, there can be no doubt as to the validity of the policy, even if the beneficiary has no interest, since his own interest supports the policy. Campbell v. Insurance Co., 98 Mass. 381; Hogle v. Insurance Co., 6 Rob. (N. Y.) 567; Scott v. Dickson, 108 Penn. St. 6; Amick v. Butler, 111 Ind. 578. It is apparent from the policy itself that the mother’s regard for the son’s interest was not the only motive for its procurement. The record discloses that the policy was made payable in the event of the death of Henry Heinlein to the estate of the insured, at the special instance of the insured. This fact tends to corroborate- what Smith says as to the purpose of the policy.

It is urged, however, that a premium fell due July 1, following the surrender, which was not paid or tendered. There are two reasons why this contention should not prevail:

First. Payment or tender of payment of premiums is not necessary where the insurers have already declared the policy forfeited, or done any act which is tantamount to a declaration on their part that they will not receive it if tendered. May, Ins. § 358.

Second. On February 12, 1892, the company, by its president, had sent a written notice to the insured, which contained the following:

“Your premiums on insurance with this company will be collected hereafter at this office, instead of Saginaw bank, and must be here before 12 o’clock noon on day of maturity. You will receive due notice of day when due, -amounts, etc.”

'See May, Ins. §§ 356, 356c.

The decree of the court below will be reversed, and a decree entered here for the complainant, restoring the policy, and for the amount thereof, with costs of both courts.

The other Justices concurred.


text:
    Allen Shelden v. The Township of Marion.

      Taxes — Validity—Payment under protest — Records of board of supervisors — Omission of cleric's signature — Amendment.
    1. The failure of the clerk of the board of supervisors to sign the record of the board in relation to the equalization of the assessment rolls and the apportionment of taxes will not affect the validity of the township and school-district taxes; citing Chamberlain v. City of St. Ignace, 92 Mich. 332.
    2. In order to warrant a judgment for the plaintiff in a suit brought to recover taxes paid under protest, there must have been such jurisdictional defect as to render the tax void, and not a mere irregularity in spreading the tax, or informality in the warrant for its collection.

    3. Plaintiff sued to recover taxes paid under protest, and on the trial the validity of the State and county taxes was assailed for want of the signature of the clerk of the board of supervisors to the record of the board in relation to the equalization of the assessment rolls and the apportionment of taxes for the year in question. The record was authenticated by the signature of the chairman of the board of supervisors, and the person who was clerk of the county and of the board of supervisors at the time the record was made, and who had personal knowledge of the facts, was deputy county clerk at the time of the trial, and the rights of third parties had not intervened. And it is held that it was proper to permit said deputy county clerk to amend the record by affixing the omitted signature thereto.
    4. The question whether school taxes paid under protest may be recovered back cannot be made to depend upon the formality or informality of the certificate furnished the supervisor as to said taxes, but must depend upon "the question of whether in fact said taxes were authorized by the district.
    5. Where in a suit to recover taxes paid under protest, including school taxes, the findings of fact fail to show the amount of such school taxes, the bill of particulars of the plaintiff, which purports to show the amount, cannot be used to supply the place of such omitted finding.
    Error to Osceola. (Judkins, J.)
    Argued April 24, 1894.
    Decided June 26, 1894.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      O. M. Beardsley, for appellant.

      Frederick S. Wheat (Lloyd L. Axford, of counsel), for plaintiff.

       For cases bearing upon the question of the recovery of taxes paid under protest, see Canfield Salt & Lumber Co. v. Township of Manistee, 100 Mich. 466, 473, and note.

   Montgomery, J.

Plaintiff is the owner of 1,000 acres of land in the defendant township. In the year 1892 there was assessed against these lands the sum of $262.43. Plaintiff paid the tax to the treasurer of the defendant township under protest, and within 30 days brought this suit to recover back the amount, with interest. . He prevailed in the court below, and the defendant brings error.

The ground upon which the plaintiff recovered below was that the tax was levied without jurisdiction, for the reason that the record of the board of supervisors in which appeared the equalization and apportionment of taxes was not signed by the clerk of the board. The signature of the chairman of the board of supervisors was attached. On the trial of this case, the question being brought to the • attention of the court, the person who had been clerk in 1892, and who was at the time of the trial deputy clerk of the county, was permitted to sign his name as clerk nunc pro time. The circuit judge after-wards held that the clerk had no authority to make the amendment to the record of the board of supervisors, and entered judgment for the plaintiff for the full amount of the taxes. This judgment was not authorized, in any view of the case. The failure to apportion the taxes did not affect the township or school-district taxes. See Chamberlain v. City of St. Ignace, 92 Mich. 332.

It is contended that the certificates furnished the supervisors of the amount of taxes to be levied upon the township of Marion were irregular and insufficient. But this failure does not go to the validity of the tax. See Robbins v. Barron, 33 Mich. 124; Upton v. Kennedy, 36 Id. 215; Boyce v. Sebring, 66 Id. 218; and Auditor General v. McArthur, 87 Id. 463. It is to be kept in mind that this action is an equitable action in assumpsit, for money had and received; and in such case mere irregularity in action, which does not prejudice the party, cannot justify a recovery. There must have been such jurisdictional defect as to render the tax void, and not a mere irregularity in spreading the tax or informality in the warrant. See Gratwick, etc., Lumber Co. v. Village of Oscoda, 97 Mich. 221.

The State and county taxes were, however, affected by the action in permitting an amendment, and it becomes important to determine whether such an amendment was justified; as, if it was not, then there was no equalization, and it would be impossible to determine what portion of the taxes of the county and State should have been spread upon the assessable property in the township of Marion, and obviously it would be impossible to determine how much valid tax was imposed upon the lands of the plaintiff. The courts are not agreed upon the question as to when the custodian of a record may be permitted to amend the same in accordance with the facts. It is, we think, generally held that the clerk whose duty it is to make the record may make amendments of the same while in office, and when no rights have been built up on the faith of the imperfect record. See 1 Dill. Mun. Corp. §§ 294, 295; Beach, Pub. Corp. § 1300. See, also, Boyce v. Auditor General, 90 Mich. 314. There is respectable authority for holding that the clerk may make such an amendment after having retired from office (Gibson v. Bailey, 9 N. H. 168; Kiley v. Cranor, 51 Mo. 541); and, where this is not permitted, it has been held that one who has retired from office, and has been since re-elected, and has custody of the record, may properly make the amendment, Welles v. Battelle, 11 Mass. 477; Mott v. Reynolds, 27 Vt. 206. In the -present case the amendment consisted simply in affixing the signature of the clerk. He was at the time in the sworn custody of the records as deputy clerk, and could act, within the reasoning and principle of the cases which permit a clerk on re-election to amend a record made up during a former term. He was properly permitted to make the amendment. We do not decide what would be the effect if a third person had acquired rights to the property taxed before the -attempted amendment. But such is not the case here. As before stated, this is an equitable action for money paid, and no hardship is done to plaintiff in permitting the amendment. In Boyce v. Auditor General, supra, we held that the chairman and clerk could, while still in office, affix their signatures. The case of Auditor General v. Hill, 97 Mich. 80, is cited as supporting the doctrine that, after having retired from office, the chairman and clerk could not properly affix their signatures to the record. Such a holding is not necessarily in conflict with the views herein expressed, but it should perhaps be stated that the point was not argued or considered in the case of Auditor General v. Hill. On the contrary, as appears by the opinion, it was admitted that, if the proceedings were not signed until after the chairman and clerk had retired from office, the record was void. The Court therefore determined the case solely upon the question of fact. The case of Weston v. Monroe, 84 Mich. 342, was a case in which no attempt was made to correct, the omission, and was also a case in which the rights of third persons had arisen, which distinguishes it from the present. The amendmerit here was made before the rights of any third parties had intervened, and was made by a lawful custodian of the record, and upon his own knowledge. See, as further bearing upon this question, Cooley, Tax’n (2d ed.), 320, 321; Parish v. Golden, 35 N. Y. 462.

. It is argued in the brief of counsel for plaintiff that the school taxes were illegal, for the reason that the certificate furnished the supervisor, as required t by law, was not sufficiently full. The record does not show what portion of the tax paid was school taxes. It is true that the bill of particulars of plaintiff purports to show this, but we cannot act 'upon that without a special finding. We think the proper course will be to remand the cause for a new trial; but it is proper to say that, upon a new trial, the question of whether the school taxes may be recovered will not depend upon the formality or informality of the certificate required to be made, but upon the question of whether in fact these taxes were authorized by' the district. If such is the fact, there would be no propriety.in permitting a recovery of this tax when it would at once become the duty of the authorities to again spread the tax upon the identical lands of the plaintiff. Whatever may have formerly been the rule in determining actions of ejectment prior to a judicial determination of the validity of the tax, and where land had been sold ex parte, in actions of this nature the policy of the law has been to ignore mere formal defects, and to permit a recovery only in case equity and justice require it. See Cooley, Tax’n (2d ed.), 808.

The judgment will be reversed, with costs to the defendant, and the case remanded for a new trial.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not'sit.

       The deputy county clerk testified that he himself transcribed the records of the board in the journal, and neglected to sign said record.


author: Grant, J.

text:
    Henry A. Gardner v. Byron Burch.

      Contract — Railroad aid note — Construction—Performance of condition.

    A note given for the purpose of aiding in the construction of a railroad between two designated cities, via an intermediate city, and payable upon the first arrival of a regular passenger train at such city from another intermediate city, is payable when that condition is performed, although nothing has been done towards the construction of the remainder of the road, except to mate a survey of the line; citing Gardner v.

      Walsh, 95 Mich. 505, and cases there cited.
    Error to Midland. (Dodds, J.)
    Argued April 24, 1894.
    Decided June 26, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Hatch & Cooley, for appellant.

      M. J. Cue and William D. Gordon, for defendant.
   Grant, J.

Plaintiff’s suit is based upon the following note:

“$30.00. Midland, Mich., July 18, 1888.
“For value received, and in consideration that the' Battle Creek & Bay City Railway Company will construct a railroad from Bay City to Battle Creek, via the city of Midland, I hereby promise and agree to pay to the order of said company the sum of $30, at the State Bank of Midland, Michigan, upon the first arrival of a regular passenger train at Midland from West Bay City, over the road of said company, provided such passenger train shall so arrive on or before the 15th day of January, 1889.
“Byron Burch.”

The road from West Bay City to Midland was constructed, and passenger trains commenced to run over it December 27, 1888, since which time regular daily trains have been run. . The road, however, was not completed from Midland to Battle Creek, and, at the time of the trial, nothing had been done towards its construction except to make a survey of the line. .The court directed a verdict for the defendant.

It is argued in behalf of the defendant that the consideration for the note was the construction of the entire road, and the running of a regular passenger train from West Bay City to Battle Creek, and that these were conditions precedent to the right of recovery. Three similar contracts have been before this Court for construction, in the following cases: Stowell v. Stowell, 45 Mich. 364; Toledo & Ann Arbor R. R. Co. v. Johnson, 55 Id. 456; Gardner v. Walsh, 95 Id. 505. In Stowell v. Stowell, the note was as follows:

“In consideration of the construction of the Chicago & Canada Southern Railway through or within one-half mile of the village of Dundee, in the county of Monroe, State of Michigan, within three years of this date, and the building of passenger and freight depot at Dundee, Mich., I promise to pay to the treasurer of said railway company, or bearer, the sum of $50 in SO days after said road and depot are constructed as aforesaid.”

In Railroad Co. v. Johnson, as follows:

“For the purpose of promoting and aiding the construction of the Toledo, Ann Arbor & Northern Railroad, and in consideration of the benefits to be derived therefrom, I do hereby pledge and agree to pay to the order of the Toledo, Ann Arbor é Northern Railroad Company the sum of $100, payable in six months after the first cars run over the road from Ann Arbor to Toledo. Payable on or before the above time specified, without interest.”

In Gardner v. Walsh, as follows:

“"For the purpose of promoting and aiding the construction of the Battle Creek & Bay City Railroad, and in consideration of the benefits to be derived therefrom, I do hereby promise and agree to pay to the order of George H. Young, trustee, the sum of $25, payable when the road is constructed and the cars are running thereon from Midland to West Bay City, Michigan.”

In all these cases the right of recovery was sustained, notwithstanding that the road in each case was not completed. We think they are conclusive in the present case. While the language of each contract is different, still in each the termini were fixed, and it was contemplated that the road' should be eventually completed between them. But it was held that the notes became due before that time. In the present case it is clear that a complete construction before payment was not in the minds of the parties. The only condition precedent was the construction of the road from West Bay City, which was not a terminus, to Midland, another intermediate station. To complete the road to Bay City would require the building of a costly bridge, with a draw, over the Saginaw river. The expression “ the first arrival of a regular passenger train at Midland from West Bay City, over the road of said company,” cannot, under the facts, be fairly construed to mean the running of a train over the entire length of the road. This was an aid note, and the time of payment was limited to the running of a regular train between the two places named. Had the completion of the entire road been in contemplation, the parties certainly would have used other language to indicate their purpose than the provision for the arrival of a regular train from one station to another.

We pass no opinion upon the question of recoupment, as, under the instruction of the court, it is not before us. Judgment reversed, and new trial ordered.

The other Justices concurred.


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    Duncan McEacheran v. The Michigan Central Railroad Company.

      Carriers — Liability beyond line of road — Bill of lading — Evidence.
    A shipper delivered two car-loads of lumber to a railroad company, consigned to a point beyond its line of road, and received a bill of lading, in which it was stated that the lumber was received for transportation to its destination, if upon the railroad company's line of road, — otherwise, to the place where it should be received by the connecting carrier, — upon the terms .and conditions on the back of the bill of lading. Among said conditions was one providing that the railroad company, in :forwarding the lumber from the point where it left its road, was to be held as a forwarder only. And it is held that the mere fact that the railroad company gave the shipper a through rate for freight would not, in view of the terms expressed in the bill of lading, and upon which it received the lumber, make the railroad company liable as a carrier beyond its own line; citing Detroit & Bay City Ry. Co. v. McKenzie, 48 Mich. ■609; Rickerson Roller Mill Co. v. Railroad Co., 67 Id. 110.
    Error to Wayne. (Brevoort, J.)
    Argued April 24, 1894.
    Decided June 26, 1894.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      D. F. Glidden (Brennan, Donnelly & Van DeMarTc, of counsel), for appellant.

      Henry Russel {Russel & Campbell, of counsel), for defendant.
   McGrath, C. J.

Plaintiff delivered to the defendant company two car-loads of lumber, and received a bill of lading therefor, which reads as follows:

“Essex Center, Feby. 13, 1885.
“ Received from D. McEacheran, in apparent good order, except as noted, the packages marked, consigned, and described as below (contents and value otherwise unknown), for transportation by the Michigan Central Railroad Company to destination, if upon said company’s line of railroad, — otherwise, to the place where said property is to be received by the connecting carrier, — upon the terms and conditions on the back hereof, which are a part of this contract. Marked and consigned: J. 0. Carpenter & Co., 59 John Street, New York, N. Y. Description of articles: Two cars lumber. Said to weigh 11,421 and 10,835. B. Line. (Lighterage free.) Pay duty and ch’d ford.
“J. G. Beodie, Agent.”

Among the terms and conditions upon the back of the bill of lading was the following provision:

“ This company does not undertake to carry said property by any particular train, or in any time for any particular market, but only with such reasonable dispatch as its general business will permit, and, in forwarding said property from the point where it leaves its road, is to be held as a forwarder only.”

The lumber was carried by the Michigan Central Railroad to its terminus at or near Buffalo, where it was turned over to the New York Central Railroad, which latter road carried the cars to New York city. There they were tendered to the consignees, who refused to accept them. Plaintiff then went to New York, and demanded the lumber of the New York Central Railroad, which company refused to deliver it without the surrender of the original bill of lading. Subsequently, the original bill of lading having been lost, plaintiff obtained a duplicate bill of lading, and again demanded the lumber from the New York Central Eailroad Company, which demand was refused for some reason not appearing upon the record.

Plaintiff declares upon a contract to transport the lumber to New York, and testifies as follows:

“In the year 1885 I did some business with the Michigan Central Railroad Company, shipping lumber. I made a contract at Buffalo with W. H. Perry, general eastern freight agent of the Michigan Central Railroad, by which I was to receive a through rate on lumber from Essex Center to New York city of 23|- cents per 100’ lbs., including lighterage limits; that is, if I wished to send it to Brooklyn, Jersey City, Staten Island, or Long Island, it would not cost any more than 23-J- cents per 100 lbs. I had been shipping lumber from the same locality since 1874, over the Michigan Central Railroad, and had become personally acquainted with Mr. Perry, and had done business with him' as general eastern freight agent. I went to him for the express purpose of making this contract to shij* this lumber to New York. It was 11,784 feet of hickory, oak, and ash, for wagon stock,’ and I delivered it to the Michigan Central Railroad at Essex Center, consigned to J. O. Carpenter & Company, No. 59 John St., New York.”

It is apparent from the proofs that plaintiff knew that the defendant would carry only over its own road, and that some other road would carry the lumber to its destination. The mere fact that .defendant had given a through rate for freight would not, in view of the terms expressed upon which it received the lumber, make defendant liable as a carrier beyond its own line. The plaintiff has failed to show any express undertaking to carry the goods beyond its own line. Detroit & Bay City Ry. Co. v. McKenzie, 43 Mich. 609; Rickerson Roller Mill Co. v. Railroad Co., 67 Id. 110.

The judgment is therefore affirmed.

The other Justices concurred.


text:
    Robert Haughton v. William C. Busch.

      Logging contract — Common-law lien — Trover—Part performance of contract — Quantum meruit.

    1. One who performs labor in cutting, hauling, and driving logs for another, under a contract which gives him the right to retain possession of the logs until he is paid for his services, has a common-law lien on the logs for such services.
    3. Where logs upon which a contractor has a common-law lien are taken from his possession by the general owner without his permission, trover is an appropriate remedy for the wrong done.
    3. The modern doctrine that, even where one has failed to comply with the terms of his contract, he may recover, upon a quantum meruit, the value of his services, less such damages as the other party may show have been occasioned by his breach, cannot be extended so as to entitle a contractor to maintain a common-law lien upon logs in his possession under a contract for the cutting, hauling, and driving of the same, when he has failed to comply substantially with 'the terms of his contract.
    Error to Marquette. (Stone, J.)
    Argued May 2, 1894.
    Decided June 26, 1894.
    Trover. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      F. 0. Clark, for appellant, contended:
    1. The rules of the common law are not to be changed by doubtful implication; citing Meek v. Pierce, 19 Wis. 303; and at common law laborers engaged in cutting, hauling, and driving timber had no lien thereon; citing Jones, Liens, § 702; Oakes v. Moore, 34 Me. 214; Oliver v. Woodman, 66 Id. 54; Arians v. Brickley, 65 Wis. 26.
    2. There can be no lien without a continuous possession; citing Story, Ag. § 361; Jarvis v. Rogers, 15 Mass. 389; Randel v. Brown, 2 How. 416; Danforth v. Pratt, 42 Me. 50; Stevens v. Faucet, 24 Ill. 483; Bailey v. Quint, 22 Vt. 474; Golwell v. Iron

      Co., 36 Mich. 51; Bank v. Cumber Co., 91 Id. 342; and a lien of an artisan upon an article manufactured by him is lost by a voluntary abandonment of the possession of the property; citing King v. Canal Co., 11 Cush. 231; McFarland v. Wheeler 26 Wend. 467.

      Charles R. Brown & Bon, 'for plaintiff.
   Montgomery, J.

This is an action in trover for the conversion of a quantity of logs removed from the mouth of Salmon Trout river by the defendant. The defendant was general owner of the property. -The plaintiff claimed a lien upon the logs for the work of cutting, hauling, and rafting, under a special contract. In 1888 the parties had an agreement in writing, by the terms of which Ilaughton agreed to cut, haul, run, and deliver certain other logs at the mouth of Pine river, on or before September 1 following; the defendant agreeing, as fast as scaled and delivered, to pay $4.50 per 1,000. This agreement is only important as it is claimed on both sides that some of its provisions were designated by the oral agreement as the provisions which should control the contract in question. In the spring of 1889 the contract in question was made, which was verbal. The plaintiff claims that the contract was to perform the work according to the same terms provided in the written agreement the previous year, except one, — that plaintiff was required to drive the logs out by September 1, if the state of the water was such as to admit of it; while 'the defendant claims that th°e terms of the contract were that they were to be driven out by September 1 in any event. Under the agreement in question, the logs were put in, but were not run to the mouth of the stream until the spring of 1890. The defendant also claims to have offered testimony tending to show that, even if the agreement was as plaintiff contended, — viz., that the logs should be run as soon as possible, — the agreement had not been complied with, as the logs might have been run in October, 1889. The defendant, in the spring of 1890, without making any tender of the amount due, and against the plaintiff’s protest, took the logs, and rafted them to Huron bay. There were also included in the logs, as is claimed by the plaintiff, $185 worth, which were his individual property. The case .was tried before a jury, and a verdict was awarded to plaintiff of $1,720. The defendant appeals.

It is not claimed that any steps were taken to enforce the statutory lien, either before or since the defendant took possession of the property; so that the question turns upon whether the plaintiff had, at the time the property was taken from his possession, a common-law lien upon the logs. It is contended by. the defendant—

1. That there is no lien, at the common law, in favor of one who cuts, hauls, and rafts logs.

2. That if, in any case, there is such á lien, the contract in this case did not contemplate it, as it was not contemplated that possession should be retained by the plaintiff.

3. That, if any lien existed at any time in favor of the plaintiff, it could only be maintained by him upon the performance of the contract upon his part, and that, upon a substantial breach of the contract in any respect not waived by the defendant, his lien would be discharged without tender.

It was held in Phillips v. Freyer, 80 Mich. 256, that the statute which gives a lien to any person or persons who perform any labor or services in manufacturing lumber, etc., was intended to provide an additional remedy to one already existing, and was not intended to abrogate the common-law lien in favor of manufacturers. We are convinced that it should be held that one who, by contract, has bestoived labor upon the property of another, such as cutting, hauling, and rafting logs, and by the terms of which contract he is entitled to retain possession up to the time of payment, is entitled to a lien thereon for his services. The general rule is stated to be that a bailee, who, by his labor and skill, has imparted additional value to the goods, has a lien. upon the goods for his reasonable charges. This rests on principles of natural equity and commercial necessity, prevents circuity of action, and gives security and confidence to agents. 2 Kent, Comm. 634. It has been held that a raftsman of lumber is entitled to a lien on the lumber which he rafts for another. Farrington v. Meek, 30 Mo. 578. It is true, as stated in Jones,. Liens, § 702, that, at the common law, laborers engaged in cutting, hauling, and driving timber had no lien thereon. But this is upon the ground that possession is not ordinarily committed to such laborers, and it is stated in the text that—

“It is indispensable to the continuance of such a lien that it should be accompanied by possession. * * * A laborer cutting, hauling, and driving logs could retain possession only by placing them upon his own land, or upon the land of another under agreement that such other should hold possession for him. Practically, the laborer cannot retain possession.”

But it is said in the same section that—

“ If it be agreed between the parties that the laborer or contractor shall cut timber, and deliver it upon the owner’s premises, and it be further stipulated that the laborer or contractor shall have a lien upon the logs until he is paid, he may resume possession, and assert his lien.”

And it is also said, in section 703:

“ One who has cut and hauled to his mill a quantity of timber from the land of another, under a contract with him, has a lien at common law, for his labor, upon the lumber in his possession remaining manufactured from the timber, and also upon the logs unsawed; ” citing Palmer v. Tucker, 45 Me. 316.

We think the circuit judge was right in holding that under the contract in question the law would raise a lien in favor of the plaintiff, upon the performance by him of the contract. We also think, under the testimony in the case, that it was a question of fact for the jury as to whether the plaintiff had retained possession until taken from him by the defendant without his permission, and tortiously; and, if so taken from his possession, trover is an appropriate remedy. 4 Amer. & Eng. Enc. Law, 117, and cases cited.

But the circuit judge charged the jury, unqualifiedly:

“I advise you, gentlemen, as requested by plaintiff’s first request, that the plaintiff was entitled to a lien upon these logs for the labor he and the persons in his employ had performed upon them under this contract, providing you shall find, under the testimony of the case, that these logs remained in the possession of the plaintiff down to the time of the taking of them away by the defendant.”

This instruction is excepted to, and it is apparent from the further instructions given that it was intended that the jury should understand from the instruction quoted that the plaintiff was entitled to a lien, even though he had not substantially performed his contract; for, in another portion of the charge, it is stated:

If the plaintiff has not substantially performed it [the contract], and the defendant has suffered damage by reason of it, you have the right to recoup or take from the claim of the plaintiff so much as you shall say, under these instructions, the party has suffered.”

We think these instructions were misleading and erroneous. The remedy afforded by the common law to one who is given a lien for services performed is a harsh one, and cannot be maintained where he has failed to comply substantially with the terms of his contract. The modern doctrine, obtaining in this State, — that, even where one has failed to comply with the terms of his contract, he may recover, upon a quantum meruit, the value of his services, less such damages as the other party may show have been occasioned by his breach, — has never, we think, been extended so as to entitle one to maintain a lien upon property in his possession where he is thus in default. We express no opinion as to whether one may, under a quantum meruit, entitle himself to a statutory lien where he has failed to perform his contract substantially. This question would depend upon the terms of the statute giving the lien. But at the common law, when the lien holder is entitled to withhold possession from the true owner, this right only exists up to the time when payment or tender of the amount due is made. If, then, one failing to perform his contract could still assert a lien on the quantum meruit, the right of the owner to discharge the lien by tender would be cut off. There is no method by which he can ascertain with certainty the amount necessary to tender. It is stated in Jones, Liens, § 1029:

One who has undertaken to perform certain labor, and has failed to fulfill his contract, and performed only a part of the service, has no lien for what he has done. The other party is entitled, if he elects, to recover damages for the non-performance of the contract; and, these damages being of uncertain amount, it is uncertain whether the person who has undertaken to perform the labor will, on final adjustment, receive anything for the labor he has done.”

See, also, Hodgdon v. Waldron, 9 N. H. 66; Hilger v. Edwards, 5 Nev. 84.

The principle is that stated by this Court in McMaster v. Merrick, 41 Mich. 505:

“A lien is waived by implication if privileged and unprivileged claims are commingled in the same dealings, so that the lien is not kept ascertainable without restating and charging the accounts.”

There are indications in the record that the jury found that the contract had been substantially performed by the plaintiff, but we are not able to say that this so conclusively appears that we would be justified in holding that the error in the instruction, did not prejudice the defendant’s rights.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


text:
    John H. Pinkerton v. Joseph E. Staninger et al., Supervisors of Montmorency County.

      Election — Removal of eounty-seat — Determination by supervisors',

    1. The action of a board of supervisors under How. Stat. § 491, in canvassing, and determining and entering upon their records the result of, the votes cast upon the question of the removal of the county-seat of the county, is .conclusive, and no judicial review is provided by law; citing Attorney General v. Board of Supervisors, 33 Mich. 289; Attorney General v. Board of Supervisors, 34 Id. 211; People v. County Treasurer, 41 Id. 6; Hvpp v. Board of Supervisors, 62 Id. 456; Attorney General v. Board of Canvassers, 64 Id. 612; Double v. McQueen, 96 Id. .39.
    2. Such determination cannot be defeated in the courts by showing that the board of supervisors acted upon ex parte affidavits, alleging colonization of many illegal voters, and certain illegal acts on the part of the inspectors of election.

      Mandamus.

    Argued June 5, 1894.
    Denied June 26, 1894.
    Relator applied for mandamus to compel respondents to convene as a board of canvassers, and canvass all the votes cast at a certain election held in said county upon the question of the removal of the county-seat to the village of Lewiston, their prior determination that said' proposition had not carried being based upon the rejection of the vote of a certain township.

      W. E. Depetv, for relator.

      G. E. Williams and John E. Mills, for respondents.
   Grant, J.

The respondents, acting as a board of canvassers under How. Stat. § 491, rejected the vote of the township of Albert on the ground of fraud.

It has been settled by the repeated decisions of this Court that the decision of the supervisors in canvassing and determining the vote upon the question of the removal of the county-seat is conclusive, and that no judicial review of their action is provided by law. Attorney General v. Board of Supervisors, 33 Mich. 289; Attorney General v. Board of Supervisors, 34 Id. 211; People v. County Treasurer, 41 Id. 6; Hipp v. Board of Supervisors, 62 Id. 456; Attorney General v. Board of Canvassers, 64 Id. 612; Double v. McQueen, 96 Id. 39.

It is true that in this case the supervisors acted upon ex parte affidavits, alleging colonization of many illegal voters and certain illegal acts on the part of the inspectors of election. They have, however, acted and made a canvass and declared the result. Their acts may be unwarranted by the facts, but, until the Legislature shall provide some method for a judicial review of their action, the courts cannot interfere.

The writ must be denied.

The other Justices concurred.


text:
    Frank McGuire v. Robert B. McKnight, Circuit Judge of Saginaw County.

      Log-lien law — Attachment—Service—Inventory—Logs in transit.

    1. Where, in an. attachment suit under the log-lien law of 1887 (Act No. 229), the attached property consists of saw-logs afloat in a stream, no inventory any more full or complete than the statement in the writ of attachment need be made or served.
    2. In such a case the court can take judicial notice of the fact that it would be impossible to make an accurate inventory, and the law does not contemplate or require it.
    8. In case of the attachment of logs in a drive with others, the service of the writ amounts to a seizure of all the logs answering the description in the writ; and as there can be no assorting of the logs, if the provisions of the act are followed, until they reach the terminus of the drive, a reference in the memorandum of the sheriff to the quantity of logs must be taken simply as an estimate of the amount attached.

      4. The case of White v. Prior, 88 Mich. 647 (where attachment proceedings under the log-lien law of 1887 were held void for the reason, among others, that the return of the officer did not show the service of a certified copy of the inventory of the property seized upon either the principal defendant or the owners of the attached property), is not necessarily inconsistent with the holding in Federspiel v. Johnstone, 87 Mich. 303 (that it is not necessary to serve a certified copy of the inventory upon a log-owner who is not a defendant in the suit, but that service upon him is governed by section 6 of the act, which provides for the service upon such a log-owner of a copy of the attachment on or before the return-day), as in White v. Prior the case does not show that the property was in transit, or that there was any impediment to the making of an inventory.

      Mandamus.

    Argued June 5, 1894.
    Granted June 26, 1894.
    Relator applied for mandamus to require the respondent to set aside an order vacating an attachment in a log-lien suit. The facts are stated in the opinion.

      M. J. Oonnine, for relator.

      O. E. M’Gutcheon, for respondent.
   Montgomery, J.

This is an application for a mandamus to require the circuit judge to set aside an order vacating an attachment brought under the log-lien act, on the ground that there was no proper service of the writ upon the principal defendant or upon the log-owners or those in custody of the logs, for the reason that no copy of an inventory was served, as required by the general attachment statute, nor was any made.

The general statute (How. Stat. § 7991) requires a service of the copy of inventory, and in all cases, except under the log-lien law, the failure to make such service is fatal to the lien. Stearns v. Taylor, 27 Mich. 88. Section 11 of the log-lien law (3 How. Stat. § 8427k) provides:

All writs of attachment issued under the provisions of this act, by any of the circuit or justice courts of this State, shall be served and returned as ordinary writs of attachment are served and returned in said courts, respectively, except as herein otherwise provided.”

It is argued that the other provisions of the statute are inconsistent with the requirement of an inventory in a-case like the present, where the logs were at the time of the service afloat in a stream and in transit.

Formerly, under the log-lien law of 1881, it was in terms provided that it should not be necessary to make any inventory or appraisement of the property attached. (How. Stat. § 8422.) This was for some reason omitted from the later act, but section 6 of the act (3 How. Stat. § 8427f) provides:

“If the defendant in said attachment is not the owner of the property or products described in said writ, then the officer executing said writ shall serve or cause to be served a copy of said attachment on or before the return-day mentioned in said writ upon the owner of said products, or any of them, their proper agent or attorney.”

This section contains the further provision that—

“No sheriff or other officer shall seize upon and detain any such property or products [named in the writ] when in transit from the place where banked or deposited for shipment on the railroad, or for floatage in the stream or streams; * * * but in case such products are in transit, or are in possession of any booming company or other person or corporation for the purpose of being-driven or sorted and delivered to the owners, or to satisfy any statutory lien, then levy and attachment of said property or products may be made by serving a copy of said attachment upon the person or corporation driving or holding the same, who shall, from the time of such service, be deemed to hold the same both on their own behalf and in behalf of said sheriff or other officer to the -extent of said attachment lien until the same can be driven and sorted out.”

These provisions were somewhat considered in Federspiel v. Johnstone, 87 Mich. 303, 305, and it was said, quoting the provision of section 6 relative to service:

“It will be seen that the service of an inventory is not required, or that the copy of the writ shall be certified. This section 6 is the only section, except section 11, relating, to the service of the writ, and no especial mode of service is anywhere mentioned to be made upon the defendant in attachment, except in section 6, where it provides that he shall be summoned to appear before said court,;1 at the time and place therein specified, the same as in ordinary writs of attachment in circuit and justices' courts. "We are of the opinion that the service mentioned in section 11 is not required in. the case of a log-owner who is not the defendant in attachment, and who is notified of the proceedings, so that he may protect his interests in the products attached; and that the notice to be given is the one provided for in section 6.”

The case of White v. Prior, 88 Mich. 647, is not necessarily inconsistent with the language quoted from the case of Federspiel v. Johnstone, as in White v. Prior the case does not show that the property was in transit, or that there was any impediment to the making of an inventory.

We think it would render the provisions of section 8427/ nugatory if it should be held that an inventory any more full or, complete than the statement in the writ should be required. The purpose of the provisions of this section is to avoid the necessity of taking possession of the property by the sheriff in case of logs afloat in a stream in a mass with other logs. The court can take judicial notice of the fact that it would be impossible to make an accurate inventory, and we think the law does not contemplate or require it.

But it may be urged that, as the return shows that the offlcer seized a certain number of logs contained in a certain drive, he might have inventoried them in this manner, and that the levy which he in fact made indicates that he did not seize all of the logs. We think it was the intention in the case of logs in a drive with others that the service of the writ should amount to a seizure of all the logs. No other construction can be placed upon section 6. There can be no specific levy upon any other than all the logs answering the description. As before pointed out, there could be no sorting *bf the logs, if the provisions of this act were followed, until they reached the terminus of the drive. In this view the reference to the quantity in the memorandum of the sheriff must be taken simply as an estimate.

We think the circuit judge erred in dismissing the, proceedings, and the writ will be granted to reinstate them.

The other Justices concurred.


author: Hooker, J.

text:
    Joseph A. Thibault v. Herbert A. Sessions and W. Arthur Phipps.
    ■ Libel and slander — Pleading— Privilege — Evidence—Maliee—Jury¡ as judges of the lato — Damages.
    1. An article which, to the common understanding, charges that. the principal of a school has heen guilty of taking indecent and criminal liberties with the persons of his pupils, and that the plaintiff, who sues the publishers of the newspaper in which the article was published for libel, has assisted the teacher in so doing, is actionable per se; citing Bourreseau v. Journal Co., 63 Mich. 425; Randall v. Evening News Ass’ny 79 Id. 278; Belknap v. Ball, 83 Id. 591.
    2. The defendants gave' notice that they would give in evidence in their defense that they had learned that the teachers in said school were in the habit of sending to saloons for liquors, to be taken to the school, to the knowledge of the plaintiff;, that defendants had been credibly informed of the grossly immoral conduct of the plaintiff as such teacher, and of his habit of having intoxicating liquors in the school, and of his. immoral conduct in other respects while engaged as such teacher; that a co-teacher, who was referred to in said article, had prosecuted defendants for criminal libel, and they had been acquitted; and that, believing the facts alleged against, plaintiff to be true, defendants published the article complained of as a matter of great public interest and concern, and therefore should insist that it was privileged. And it is. held that the facts set forth in the notice, if true, do not support the charge published, and the court was justified in striking the notice from the files.
    3. An objection to the introduction in evidence of a subsequent article published by the defendants, containing a letter from the plaintiff demanding a retraction, which was refused, was properly overruled.
    4. Evidence that the plaintiff had liquor in the school, and gave it to the pupils, unless supplemented by proof connecting such facts with the acts charged against him in the article complained of, was properly excluded.
    5. The constitutional provision (article 6, § 25) that, in all prosecutions for libel, the jury shall have the right to determine the law and the fact, does not deprive the trial judge of the power to rule upon 'the introduction of evidence in libel cases, either civil or criminal.
    6. In an action for libel only the general reputation of the plaintiff can be shown in mitigation of damages.
    Error to Houghton. (Haire, J., presiding.)
    Submitted on briefs June 7, 1894.
    Decided June 26, 1894.
    Case for libel. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      W. F. Riggs (.Alfred A. Sessions, of counsel), for appellants.

      Chadbourne & Rees, for plaintiff.
   Hooker, J.

The defendants appeal from a judgment in an action of libel, brought against them by the plaintiff, who was a teacher in a parochial school at Lake Linden, in the county of Houghton. The alleged libel consisted of an article published in defendants’ newspaper, a copy of which is set forth in the declaration, which reads as follows:

“State on Michigan.
“In the Circuit Court for the County of Houghton.
County of Houghton — ss.:
“Joseph A. Thibault, the plaintiff in this suit, complains of Herbert A. Sessions and W. Arthur Phipps, the defendants herein, they having been duly summoned to answer the plaintiff herein, of a plea of trespass on the case.
“For that whereas, the said plaintiff, before and on the 18th day of February, 1893, was a person of good name, credit, and reputation, and deservedly enjoyed the esteem and good opinion of many persons; and that previous to the said date, namely, from about the month of September,. 1890, to the month of June, 1892, was one of the teachers in the parochial school at the village of Lake Linden, in said county of Houghton, and has since then been engaged at the city of Chicago, in the state of Illinois, in the study and practice of dental surgery and dentistry; and that during all of said time was of good name, credit, and reputation, and deservedly enjoyed the esteem and good opinion of many persons as such teacher as aforesaid and in his last profession.
“Yet the said defendants, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, and bring him into public scandal and disgrace, heretofore, to wit, on the 18th day of February, 1898, at the county aforesaid, falsely and maliciously did compose and publish, and cause to be composed and published, of and concerning him, the said plaintiff, a certain false, scandalous, and malicious libel, containing the false, scandalous, and malicious matters following of and concerning the said plaintiff, that is to say:
“‘Devils. [Meaning thereby said plaintiff and others.]
“‘Hanging is Too Good for Them. [Meaning thereby said plaintiff and others.] Worse than Brutes. [Meaning thereby said plaintiff and others.] Gignac run out of Lake Linden.
“ ‘ Two Lake Linden School Teachers Guilty of Horrible Crimes. [Meaning by said two Lake Linden school teachers the said plaintiff and others.] Over Thirty Children Outraged. Proofs and Particulars.
“‘From several Lake Linden parties came to the Conglomerate the pitiful cry, “Come down and help us.” And none of the wicked cities of history could recite a more revolting story of crime and bestiality. A Conglomerate reporter set to work on the case, and, besides confirming many rumors and obtaining absolute proof of thpm, unearthed facts still more revolting that had not been even whispered among those most deeply concerned. But a small part of the terrible story, because of its horrible filth, can be repeated in these columns, but proofs so certain and sure of the most damnable crimes are held in this office that, were they known by the general public, the perpetrators would not now be alive.
‘“August Joyal was interviewed by a Conglomerate reporter. He stated that his boy and others that he knew of were implicated, —sons of M. Marchand, M. Amie Lanctot, Mr. Golden, M. N. Gregory. Messrs. Marchand and Golden, finding their boys very sick, questioned them closely as to the cause of it. At first they would tell nothing, and after severe threats they told how they had been used by Gignac, the head teacher. He had been guilty of the most atrocious proceedings against their persons. Last Sunday evening he first found about his own boy by information given by Messrs. Marchand and Golden. He couldn’t face his own boy to ask him the questions, but, cautioning him to tell nothing but the truth, he trusted the task of questioning the boy to a friend. The boy confessed that he, too, had been treated in the same manner. He added, too, that his son’s health and constitution was ruined. On getting his son’s confession, Mr. Joyal and his friend, after demands, found that Mr. Gregory’s boy had been treated the same way. A committee of- five waited on Fr. Mesnard, who was utterly prostrated by their statements.
“ ‘ The committee sent Gignac a letter, which did not reach him. Receiving no response, Mr. Joyal called on Gignac, and stated his business. The brute turned white at the statement. Joyal told him of the confession of the boys, and the worst of the story, and then asked: “Are you guilty or not guilty?” Gignac responded, “I am not guilty,” and abjectly added, “But the boys are all against me. What can I do?” Joyal said: “If you are an innocent man you will stay here, and I’ll help you fight it. If you are guilty, we’ll have justice, and hang you like a dog.” Gignac showed such conclusive signs of guilt that Joyal ordered him to leave the town immediately on peril of his life. The following morning the committee found that Gignac had not gone, and at half past four they again, waited on Er. Mesnard. They asked the reverend gentleman why Gignac had not gone, and insisted that he must go, or they would serve him as they did McDermott. It will be remembered that McDermott was driven, naked, in the dead of winter, from Lake Linden to Dollar Bay, and lashed with heavy whips. His crime was inhumanly torturing his wife on her death-bed by pouring alcohol on her, setting fire to it, biting great pieces of flesh from’ her body with steel pincers, and showing other such proof of conjugal affection. It is needless to add that Gignac stood not on the order of his going, but took the five o’clock train for parts unknown.
“‘The Conglomerate reporter unearthed proofs that over 25 other cases, both girls and boys, have been so used by these teachers [meaning thereby the said plaintiff and others], striking some of the most respectable families of Lake Linden. These children range in age from 8 to 18 years. This work has been going on for 4 years, according to the information received by the Conglomerate. Gignac has been ably assisted in his horrible work. Two devils, Vandestine, Thibeau [meaning by the said Thibeau, the said plaintiff]. The latter [meaning the said plaintiff] is now in Canada. In addition to these atrocities, Gignac has even advised the children that it was no harm to commit incest, and in two cases his hellish advice has been acted upon by children under ten years of age. Van--seems to have paid more especial attention to the girls, and not only the little girls from 8 to 12 came under his baneful influence, but older daughters of respectable families have been his toys. He was ordered to leave last night.’
“In consequence of the committing of which said acts by the said defendants, the said plaintiff has been and is damaged and injured in his good name, credit, and reputation, and in his good name, credit, and reputation as a teacher as aforesaid, and in his said profession of dental surgery and dentistry, and has been and is brought into public scandal and disgrace, and has been and is shunned and avoided by many persons, and has been and is damaged and injured in his said business and profession, and has been and is otherwise greatly damaged and injured, to the damage of the said plaintiff $10,000; and therefore he brings suit, etc.”

Counsel for the defendants contend that the declaration states no cause of action, in that it does not allege what specific crime is imputed to the plaintiff. The caption of this article, set up in the declaration, says: “Two Lake Linden School Teachers Guilty of Horrible Crimes.” The pleader, adds by way of innuendo: “Meaning by said two Lake Linden school teachers the said plaintiff and others.” Passing several sentences, which in a greater or less degree imply that indecent liberties had been taken at the school with the persons of pupils, we come to the following:

Messrs. Marchand and Golden, finding their boys very sick, questioned them closely as to the cause of it. At first they would tell nothing, and after severe threats they told how they had been used by Gignac, the head teacher. He had been guilty of the most atrocious proceedings against their persons. Last Sunday evening he first found about his own boy by information given by Messrs. Marchand and Golden. He couldn’t face his own boy to ask him the questions, but, cautioning him to tell nothing but the truth, he trusted the task of questioning the boy to a friend. The boy confessed that he, too, had been treated in the same manner. He added, too, that his son’s health and constitution was ruined. On getting his son’s confession, Mr. Joyal and his friend, after demands, found that Mr. Gregory’s boy had been treated the same way. A committee of five waited on Fr. Mesnard, who was utterly prostrated by their statements.”

And again:

The Conglomerate reporter unearthed proofs that over 25 other cases, both girls and boys, have been so used by these teachers [meaning thereby the said plaintiff and others], striking some of the most respectable families of Lake Linden. These children range in age from 8 to 13 years. This work has been going on for 4 years, according to the information received by the Conglomerate. Gignac has been ably assisted in his horrible work. Two devils, Yandestine, Thibeau [meaning by the said Thibeau, the said plaintiff]. The latter [meaning the said plaintiff] is now in Canada.”

The common understanding of this language would be that the principal, Gignac, had been guilty of indecent and criminal liberties and practices with the persons of his pupils, and that the plaintiff had assisted him therein, which language is clearly actionable per se. Bourreseau v. Journal Co., 63 Mich. 425; Belknap v. Ball, 83 Id. 591; Randall v. Evening News Ass’n, 79 Id. 278.

The defendants pleaded the general issue, accompanied by the following notice:-

To the Above-Named Plaintiff:
“Please take notice that on the trial of the above cause the defendants will give in evidence in their defense under the general issue above pleaded:
“1. That the Calumet Conglomerate is a £>ublic newspaper printed and published in said county.
“2. That before the publication of the article complained of, and in the months of January and February, 1893, the statements and charges therein contained were rumored in and about Lake Linden, in said county, and came to the knowledge of these defendants; that neither the public authorities nor the authorities of the said school had taken any action to learn of the truth or falsity of the said charges, although the people of the State of Michigan, and more especially the people of Houghton county, were largely interested in the good name, fame, and credit of the said school, and in the pupils attending said school; that these defendants, in a proper way and manner, caused an investigation of such rumors, and from such investigation learned that gross immorality, wickedness, and crime were prevalent in the said school, and had extensively prevailed therein for a long space of time; that these defendants learned that all the teachers roomed in the said school, and had regularly lodged therein during the period of time they were engaged therein as teachers, and that this practice had existed ever since the existence of said school; that spirituous and intoxicating liquors were constantly kept and used in the said school by teachers and scholars; that teachers in the said school were in the habit of sending to saloons for liquors to be taken to the said school, to the knowledge of plaintiff and the other teachers therein; that teachers and pupils, at various times and on various occasions, were drunk together in said school; that these drunken debauches took place in the day-time as well as in the night-time; that the detestable crime of sodomy was practiced by the principal upon the pupils attending said school; that these defendants, well knowing the premises and the injury such reports would have upon the said school, and the actual injury being done, and believing the attention of the people should be called to the matter, published the alleged libelous article as a matter of great public interest and concern; and therefore insist that the article was privileged.
“ 3. That these defendants were credibly informed of the grossly immoral conduct of this plaintiff as a teacher in said school, and of his habit in having intoxicating liquors in said school, and of his immoral conduct in other respects while engaged as such teacher, and the foregoing facts existing in said school, and, believing the said facts to be true, published the alleged libelous article as a matter of great public interest and concern, and therefore insist that the article was privileged.
“4. That Edward Yandestine,-one of the said teachers in said school, referred to in the alleged libelous article, and being a co-teacher with plaintiff in said school, commenced and prosecuted these defendants in an action of criminal libel for the publication of said' alleged libelous article, which last-mentioned action was tried before a jury in justice's court before M. Finn, Esq., one of the justices of the peace in and for said county, and these defendants were acquitted.
“5. That the statements in the alleged libelous article were true.”

After the opening of the case, and upon motion of the counsel for plaintiff, the notice was stricken from the files, except the fifth section. Defendants’ counsel allege error upon this ruling, claiming that such notice set forth a qualified privilege on the part of defendants, making it incumbent upon the plaintiff to prove both falsity and malice. We do not discover in the notice any statement of fact that connected the plaintiff with the affair, except the following, viz.:

“That teachers in the said school were in the habit of sending to saloons for liquors to be taken to the -said school, to the knowledge of plaintiff and the other teachers therein; * * * that these defendants were credibly informed of the grossly immoral conduct'of this plaintiff as a teacher in said school, and of his habit in having intoxicating liquors in said school, and of his immoral conduct in other respects while engaged as such teacher, and the foregoing facts existing in said school, and, believing the said facts to be true, published the alleged libelous article as a matter of great public interest and concern, and therefore insist that the article was privileged.”

In addition to the above it was alleged that Edward Yandestine, one of the teachers referred to, and a co-teacher with plaintiff, had prosecuted defendants for libel, and that they had been acquitted.

The defendants, then, upon information that plaintiff knew that other teachers were in the habit of sending for liquors to be taken to the school, and that he was guilty of grossly immoral conduct in the school (whatever that may mean), and of' his habit of having intoxicating liquors in said school, and of his immoral conduct in other respects while engaged as such teacher, took the liberty of charging that he was guilty of indecent practices with his pupils. We think the ‘circuit judge was right in holding that these things, if true, did not support the charge .that was published, and he was therefore justified in striking the notice from the files. They constituted no defense to the action. Before there is any occasion to discuss the question of privilege, something must appear upon the record to raise such privilege.

Objection was made to the introduction of three articles published by defendants after the publication counted upon. They were offered as tending to show malice. The first contained a letter from the plaintiff, demanding a retraction, which was refused. This was clearly admissible. The others, if read in the light of this and the article sued upon, might have that tendency. Counsel say that the effect was to injure the defendants by getting their attacks upon Gignac and Yandestine before the jury. One of them reported an acquittal of defendants upon a charge of criminal libel growing out of the affair, while the other apparently ascribed persecution as the motive actuating the plaintiff in pushing this action to a trial after the disclosures made upon the trial of the criminal case. We cannot say that it was error to admit them.

TJpon cross-examination the plaintiff was asked concerning his intimacy with Gignac and Yandestine, and his knowledge concerning the use of liquors in the school, and his own connection therewith, and his knowledge that the boys and girls of the school went to Gignac’s room in the night. These questions were said to be -asked to show the character of the plaintiff. The court permitted a searching examination upon his conduct and knowledge concerning what took place at the school, and defendants have no room for complaint that his character was not placed before- the jury, so far as it could be ascertained by cross-examination.

Counsel complain that they were not permitted to show that the plaintiff had liquor in the school. The court repeatedly said that, if there was an expectation of connecting such liquor with the acts referred to in the article complained of, the evidence would be received; but counsel seem to have been contending that the giving of liquor to the children would have led up to or facilitated the acts of Gignac, and that would justify the statement that plaintiff assisted him in the commission of the acts alleged. The jury should not have been permitted to find that the plaintiff aided and abetted from that fact alone. Counsel were persistent in. the effort to prove that plaintiff had liquor. The following colloquy shows that the court was disposed to admit the proof if it could be made material:

“Mr. Riggs: That is very true. Ordinarily it would not, but, if there was drugged liquor there in the school, and it was used, and this witness knows of it, and, from the effect of the use of it, it became so notorious as we expect to show it, I think we have a right to put it in.
“The Court: Now, you always stop -right there. If you stop there, it hasn't anything to do with the case. It seems that is the extent of the testimony. I have kept ruling on that right along all day long, and I am going to continue on ruling that way until I am convinced that I am wrong. The fact that drugged liquor was there, unless you can show that this man gave it to those children, and, in addition to that, aided these other men in committing this crime, I don't see how you can show that even that is material in the case. If, in a debauch, this man administered the liquor, and aided these other men in committing the crime, knowing it himself, being near where it was done, and knew all about it, then I presume you could charge that he assisted; but the mere fact, of having liquor in the house, even if he gave it to the children, would have no tendency to show that he committed this crime, or assisted others in doing it.
“ Q. Did Thibault ever give you any of that liquor? (Objected to as immaterial. Objection sustained.)
“ Q. Did Mr. Thibault ever give you any drugged liquor? (Objected to as immaterial. Objection sustained.)
Q. Do you know of your own knowledge of the horrible crime of sodomy being committed in that building? (Objected to as immaterial.)
“ The Gourt: By whom, — by Thibault? If you put that on,' I will allow the question; otherwise I will sustain the objection.
“Mr. Riggs: Exception.
“ Q. I understand you that you had some of that drugged liquor. Now, may it please the court, I wish to show by this witness that he was put in that condition, and in that condition that crime was committed upon him.
“ The Gourt: By Thibault? If it was, you can show it.
“Mr. Riggs: I am not certain just now.
“ The Gourt: Ask him the question if Mr. Thibault ever committed this crime. I will allow you to ask the direct question.
“ Q. Was that crime ever committed on you there by reason of your having liquor and being made drunk? • (Objected to.)
“ The Gourt: That is not the question.
“ Q. Was that crime committed there upon you, in the school building there? (Objected to.)
“ The Gourt: By Thibault? If you put that in, it is material in this case. If it was somebody else, it has nothing to do with this case.
“ Mr. Riggs: If I can show by this witness that he was intoxicated by the one teacher —
“The Gourt: And then somebody else got him in that condition and committed this crime,— would that be material to show that this man committed this crime?
“Mr. Riggs: Yes, sir.
“The Court: If you can show that he got him intoxicated for the purpose of having this other man do that, that may be material, but we cannot be allowed to guess at it.
“Mr. Riggs: This is a question for the jury, I should say. Well, I shall have to ask the privilege of making an' offer of evidence.”

Counsel assert that under article 6, § 25, of the Constitution, the jurors were the judges of the law, as well as of the fact, and the judge so charged the jury. An exhaustive discussion of this subject will be found in Cooley, Const. Lim. (6th ed.) p. 566 et seq., where the cases are collected. While some cases in England, followed by the case of Shattuck v. Allen, 4 Gray, 540, indicate that the doctrine extends to civil eases in England and Massachusetts, the current of American authority is to the contrary. These are discussed in an. interesting opinion by Mr. Justice Sharswood in the case of Pittock v. O’Niell, 63 Penn. St. 253, where a similar, provision was held to apply to criminal prosecutions only. The language of our Constitution (article 6, § 25) is broader than that of Pennsylvania, in that it covers “all prosecutions” for libel, instead of “all indictments.” Apparently, it was taken from the constitution of New York, where the same provision is found, and this was construed in the case of Hunt v. Bennett, 19 N. Y. 173, and other cases cited with approval by Mr. Justice Sharswood. Snyder v. Andrews, 6 Barb. 43; Green v. Telfair, 20 Id. 11. Although Hunt v. Bennett was decided after the adoption of our Constitution, and it cannot, therefore, be said that we adopted the construction approved in that case with the constitutional, provision, we think it sound in principle. But, counsel invoke this provision to aid in reversing the case, because the court assumed to exclude certain evidence offered on behalf of the defendants. We pass the subject with the remark that, whatever may be the true rule as to the authority of a jury to determine whether alleged defamatory writings come within the definition of libel- in civil cases, no authority is cited to sustain the proposition that this constitutional provision deprives the trial judge of the power to rule upon the introduction of evidence in libel cases, either civil or criminal.

After the various rulings had been made, counsel for defendants made the following statement:

“ Mr. Biggs: I offer this whole line of evidence, and offer to repeat it, on the question of damages. I offer to show the conduct of this teacher as a school teacher on the question of damages.
“ The Court: His general reputation you may show.”

Notwithstanding this ruling, counsel proceeded to repeat his effort to get before the jury the various circumstances explicitly ruled out before, to the exclusion of which he excepted. The court was correct in his ruling; general reputation only could be shown. Bathrick v. Post & Tribune Co., 50 Mich. 630; Farrand v. Aldrich, 85 Id. 600; Lamos v. Snell, 6 N. H. 413; Sawyer v. Eifert, 2 Nott & McC. 511; Randall v. Holsenbake, 3 Hill (S. C.), 175, 177; Fisher v. Patterson, 14 Ohio, 418, 425; Ridley v. Perry, 16 Me. 21; Bowen v. Hall, 20 Vt. 232; Thompson v. Nye, 71 E. C. L. 181, and note; Smith v. Buckecker, 4 Rawle, 295; Long v. Brougher, 5 Watts, 439; Steinman v. McWilliams, 6 Penn. St. 170; Jones v. Stevens, 11 Price, 235; Parke v. Blackiston, 3 Har. (Del.) 373.

We have examined the other errors alleged, and think that it is unnecessary to discuss them further than to say that we find nothing in them calling for a reversal of the cause.

Judgment affirmed.

The other Justices concurred.


text:
    Harriet D. Peters v. Melvin E. Peters and Frank L. Peters.

      Want of mental capacity — Assignment in extremis.

    The conclusion of the circuit judge that complainant’s husband, who, while on his death-bed, assigned notes and mortgages amounting to over $16,000 without her knowledge, she having retired for the night, was mentally incompetent to transact business of that nature, is sustained.
    Appeal from Branch. (Padgham, J., presiding.)
    Argued June 6, 1894.
    Decided June 26, 1894.
    Bill to set aside assignments of certain notes and mortgages. Defendants appeal.
    'Decree affirmed.
    The facts are stated in the opinion.

      Campbell é Johnson and Henry C. Loveridge, for complainant.

      John B. Shipman (N. A. Reynolds, of counsel), for defendants.
   Montgomery, J.

The bill in this ease is filed by the widow of William J. Peters, deceased, to set aside assignments of notes and mortgages amounting to upwards $16,000, which were made by deceased while confined to his bed by his last illness. The bill avers undue influence exerted by the defendants, and also a lack of mental capacity on the part of decedent to transact business of that nature. Belief was granted complainant below, and defendants appeal.

The case involves only questions of fact, and it would not be profitable to enter into an extended discussion of the testimony, which we have examined with care, and are fully convinced that the conclusion reached by the circuit judge, who determined that the decedent had not, at the time of executing the instruments, sufficient mental capacity, is correct. While it is true that the complainant’s witnesses were not present at the time of the execution of these papers, there was testimony as to decedent’s mental condition both before and after, which supports complainant’s contention as to the fact of incompetency, and which, when taken in connection with the nature of the disease, the occasion of the act, which was in the middle of the night, and after complainant, who was in the house, had retired to bed, and the fact that no information of the intended transfer was conveyed to her, although she was presumably deeply interested in the subject of her husband’s condition, as well as ,of any deathbed disposition of his property which he should make, is sufficient, as we think, to show a preponderance of testimony.

The decree will be affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred. McGrath, O. J., did not sit.

       Death resulted from double pneumonia.


text:
    Harvey H. Austin v. Mary A. Dolbee and Nathaniel C. Austin.

      Deed — Sufficiency of description.

    One of three heirs conveyed by warranty deed to his brother 50 acres of land, which had been set off to him on a partition by the heirs of their father’s estate. Immediately after the description in the deed of the 50 acres appeared the following clause: “Also all my right, title, and interest in and to my father’s estate at law.” And it is held that the latter description was sufficient to convey the reversionary interest of the grantor- in the portion of the heirship land set off on such partition to the widow for her life.
    Appeal from Yan Burén. (Buck, J.)
    Argued June 7, 1894.
    Decided June 26, 1894.
    Bill for partition. Complainant appeals.
    Decree reversed, and one entered granting the prayer of complainant.
    The facts are stated in the opinion.

      Titus & McNeil, for complainant.

      Break Bros., for defendants.
   Hooker, J.

One S. S. Austin having died intestate August 5, 1879, his property, consisting of 200 acres of land and some personal property, was divided by' his widow and heirs by mutual quitclaim deeds, whereby each received 50 acres in fee, except the widow, who took 50 acres for life. Each of the three heirs consequently had an undivided one-third interest in the reversion. On April 30, 1881, Nathaniel C. Austin, one of said heirs, executed and delivered to his brother, Harvey H. Austin, a deed of his 50 acres, in which deed the description of said 50 acres is followed by the following language, viz.:

Also all my right, title, and interest in and to my father’s estate at law, in S. S. Austin’s estate.”.

The widow died in 1893, at which time Nathaniel was living upon the premises, and still remains there, claiming to own an undivided one-third. Complainant filed a bill for partition against his sister, Mary A. Dolbee, who demurred, upon the ground that Nathaniel was a necessary party; and Nathaniel was made . a party upon his own petition, alleging ownership of one-third of the premises, and praying partition. The case was heard upon pleadings and proofs* and a decree was made that said premises be partitioned equally among the three.

Two questions are involved:

1. Thp sufficiency of the description to convey Nathaniel's share.

2. Fraud in causing it to be included in the deed when signed* or afterwards inserted.

The "case was disposed of in the circuit court upon the first of these* the court holding that the description was inadequate to convey Nathaniel's interest. In this opinion we are unable to concur. The land was a part of the estate of S. S. Austin, which was susceptible of identification as such. It was conveyed by a warranty deed, duly signed* sealed* and acknowledged. It is not necessary that a conveyance shall specifically describe premises sought to be conveyed. It is sufficient if its terms are such as to permit them to be identified. Such descriptions are more common in wills than deeds, and are uniformly held good. Persinger v. Jubb, 52 Mich. 307; Rood v. Hovey, 50 Id. 399.

It is said by counsel for defendants that—

•“There is an entire absence of references or other identifying circumstances, or, if it was intended to convey land by the clause in question, it leaves its identity wholly uncertain, and the grant is void."

The deed describes the land as all of the grantor’s right, title, and interest in and to S. S. Austin's estate at law. There could be no great difficulty in ascertaining what S. S. Austin’s estate at law was. A number of authorities in point are cited in the brief for complainant, among them Devl. Deeds, § 1013; Jackson v. DeLancey, 11 Johns. 365; Brantly v. Kee, 5 Jones' Eq. 332; Nichols v. Johnson, 10 Conn. 192; Hurley v. Brown, 98 Mass. 545.

The circuit judge, who saw the witnesses, expresses no opinion upon the question of fact, and we have not the benefit of his opinion. We are satisfied that the clause in dispute was contained in the deed when it was executed, and do not feel justified by the evidence produced in setting aside a deed duly executed and attested, upon the claim that it was not understood.

The prayer of complainant's bill will be granted, with costs of both courts.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, O. J., did not sit.