source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
      In re CONNERY’S ESTATE. CONNERY v. CONNERY.
    1. Wills — Execution — Trial — Evidence — Statutory Requirements — Time.
    Where the contestant, in proceedings to probate a will, conceded that decedent had signed the instrument in question, claiming- that the statutory requirements had not been observed, and that the execution of the will had been procured by fraud, and the attesting witnesses differed as to the time of signing, it was not error to charge the jury that if it was executed about the date named in the instrument the will was valid, that if it was not executed in accordance with the statutory formalities, as stated at length in the charge, the will was not entitled to probate; nor did the court commit reversible error in refusing to permit proponent to answer questions on cross-examination relating to the claims as to • date of execution made by the parties in probate court, in which, it was contended by appellant, inconsistent testimony to that given on appeal had been given by proponent, who, on cross-examination, had fully covered the claimed discrepancy and his reasons for changing his testimony.
    2. Same — Charge to Jury.
    On conflicting evidence of the attesting witnesses to a will which one subscribing witness testified had been' executed in strict conformity with statutory requirements, and the other stated had not been attested in the presence of testatrix, it was proper to instruct the jury that the witnesses must sign in the presence of decedent, but that did not mean in the same room if they were where she could see them, or practically in the same room, that they must be where she could see them sign and that even if the witnesses denied their signatures or had forgotten the facts, if their signatures could be proved, the due execution of the will might be established.
    3. Same — Alterations—Erasures.
    It is commonly presumed that, if nothing suspicious appears on the face of a deed except that an erasure has been made, the change was made before the writing was executed; and so, where proponent testified, without contradiction, that he had erased the word “fore” and corrected it to “four,” the court did not err in refusing to give requests to charge presented by contestant that if proponent had failed to account for the erasures the jury should consider that failure in determining upon their verdict, that they might examine the will and the erasures and consider them in relation to the part proponent took in its execution, that if the word “two” appeared under the “four” they should consider the fact in weighing proponent’s testimony, and the burden was on proponent to explain the erasures, and if not satisfactorily accounted for the instrument was not the will of decedent.
    4. Same — Revocation—Subsequent Will.
    Testimony tending to show execution of a subsequent will, afterwards destroyed by testatrix, did not prove revocation of the previous testament, without proofs that the later instrument contained an express revoking clause.

    5. Same.-
    Evidence offered by contestant as to decedent’s relations with her sons and other members of the family, such as money supplied to one of them for his education, authority given by letter to purchase property and other matters, having no reference to a will or proposed change in the will, was properly excluded as immaterial.
    6. Same — Compromises.
    Nor was it error to exclude from the consideration of the jury evidence of an agreement effecting a settlement between the sons of testatrix, not signed by another beneficiary named under the will offered for probate, since no disposition of his interest in the estate could be effected without his consent and it was necessary to probate the will in order to obtain his bequest.
    7. Same — Evidence—Revocation.
    Alleged admissions of the testatrix that she had destroyed her will and ought to make another were objectionable under the rule that a duly executed will may not be shown to be inoperative by declarations of testatrix that she did not intend it to be a final disposition of her estate.

      Error to Saginaw; Gage, J.
    Submitted April 15, 1918.
    (Docket No. 65.)
    Decided May 28, 1913.
    James A. Connery presented for probate the last will of Christina Sutherland Connery, deceased, which was admitted to probate. Contestant, William S. Connery, appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Eaton, Holland & Smith, for appellant.

      Frank E. Emeriok and Emmet L. Beach, for appellee.

       The question of the revocation of a will by a subsequent will is discussed in a note in 37 L. R. A. 561.

   STONE, J.

This case is in this court for the second time. When first here it will be found reported in 166 Mich. 601 (132 N. W. 448). The case was reversed and sent back for a new trial. Another trial has been had resulting in a judgment in favor of proponent, admitting the will of Christina Sutherland Connery, deceased, bearing date August 15, 1904, to probate, and the contestant has brought error.

The testatrix died January 18, 1908, leaving surviving her a husband, James A. Connery, who is proponent of the will, two sons, William S. Connery, who is contestant, and J. Alfred Connery, all of Saginaw, Mich., and also a brother, John Sutherland of Virginia, Minn. It is undisputed that another and later-will was executed by testatrix in 1905.

Upon the trial in the circuit court the proponent, after testifying to the execution of the will of August 15, 1904, on direct examination, testified on cross-examination as follows:

“The will that has been shown to me was not the last will that my wife executed. Probably about a year, maybe two years afterwards, she executed one other; that was witnessed by Mr. West and Mr. Dennert, downstairs in the dining room. There were no other wills after this one, except that.”

Proponent testified that, while he was driving his wife to the hospital for the operation which resulted in her death, she said she had destroyed "that will,” or “a will,” and he testified as follows:

“Q. At the time she told you she had destroyed the will, didn’t she say to you that she ought to make another will?
“A. I don’t know that she did, but we had talked it over several times.
“Q. You won’t say she didn’t say that, will you, Mr. Connery? Didn’t you testify to that in the probate court?
“A. We might have talked it over; I am not positive.
“Q. Well, isn’t it a fact that she said on the way over that she destroyed the will and that she ought to make another?
“A. We talked it over several times; we might have, coming up.
“Q. You might have on the way over?
“A. We might.”

Testatrix and proponent had a tin box in which they kept their papers. Either one of them had a key when they wanted to use it. Proponent testified that at the time of the execution of the will dated August 15, 1904, either he or his wife put it in the tin box; that the box was put in a piece of furniture originally made for a library, and later used for a clothes press; that proponent still had the tin box; and that both wills were together in the box. He testified as follows:

“Q. You stated to your two sons that you had two wills, one of which practically cut off William S. and the other divided the property equally between them?
“A. I don’t think I said so. I testified yesterday I told them there were two wills. I didn’t say how the distribution, or anything else, was.
“Q. You knew what the wills were, didn’t you?
“A. Well, I don’t know that I do remember them all.
“Q. _ But you knew most of what everything was in the will, didn’t you? You knew the substance of the will?
“A. Practically.
“Q. They had been in that tin box; you had looked them over, and read them over, and talked them over?
“A. Yes, I had looked them'over.
“Q. You meant what you said when you told them that you had two wills?
“A. Yes, sir.”

Proponent told his sons that his wife did not want the will probated for a year after her death. When the year was up, and about January 30, 1909, the two sons went to their father and asked him to have the will probated. He said that he did not have the will in his possession, but that it was in the safety deposit vault. William then asked him if he would get it before the bank closed, and he replied that he would not. Then William said, “Will you tomorrow?” and he said, “Maybe I will;” but he did not, and left the city on February 3d. Proponent testifies that he found the will in October or November, 1908. The two sons then entered into the agreement Exhibit B, which was as follows:

“Whereas, Christina Sutherland Connery, mother of the undersigned, departed this life on January 18, 1908, leaving surviving her James A. Connery, husband, and the undersigned, William S. Connery and Alfred Connery, sons and sole heirs at law, and whereas our mother, the said deceased, died seized and possessed of certain real and personal estáte regarding the disposition and descent of which she had expressed her wishes by will and at later date by stating her wishes, and whereas, being desirous of carrying out the intentions and wishes of our mother and for the saving of any and all questions that might lead to or require a legal decision to determine as to the legality of said wishes and former will and its revocation, and as - a means of adjusting and settling the rights of the undersigned as sons and heirs of deceased, and in consideration of the foregoing^ and the amicable and friendly settlement of mutual interests as sons and heirs, it is hereby mutually agreed by and between the undersigned that in lieu of any and all rights as heirs, devisees, and beneficiaries of deceased, as follows:
“(1) We agree that our father, James A. Connery, shall enjoy the use of the property known as the Flats, corner of Johnson and Washington streets, Saginaw, Mich., during the term of his life, to the extent that the will or written wishes of our mother provided he should enjoy the same, but in any event for his life only, he paying legacies and debts.
“(2) We agree to receive, as heirs and devisees in lieu of all provisions by will or wish and in satisfaction of any such rights, an undivided one-half interest to each in and to all estate, real and personal, of our mother; that is, to receive and inherit said property as equal tenants in common.
“(3) We authorize the probate court for Saginaw county to make any and all orders necessary to carry the foregoing into effect and to distribute and administer said estate in accordance therewith.
“In witness whereof, we have hereunto set our hands and seals this 29th day of January, 1909.
“Wm. S. Connery. [l. s.]
“J. Alfred Connery, Jr. [l. s.]
“Witnesses:
“Fred L. Eaton.
“Charles Wintermeyer.”

This agreement was excluded by the court on the objection of proponent’s counsel that it was incompetent, irrelevant, and immaterial, and in no way attempting to disprove the validity of the will, and because this court, when the case was here before, sustained the former ruling of the trial court excluding it. The court said:

“This agreement was offered and the court ruled it out on the former trial, and the contestant took an exception. The Supreme Court in no way passed upon that, and it certainly would be an important matter in a new trial. If they knew it was coming back for a new trial, they would indicate their views in regard to it.”

Whereupon the objection was sustained, and counsel for contestant excepted.

Proponent filed the petition for the probate of the will in controversy in the probate court of Saginaw county, and contestant filed his objections, claiming, among others, that the signature of the witness Dennert to said will was procured through the fraud and misrepresentation of James A. Connery. A further objection was filed, after the probate court excluded the agreement, Exhibit B, covering that point. Proponent testified that in October or November, 1908, while taking out his wife’s clothes from a chiffonier to air them, he' found the will in question in the bottom drawer of the chiffonier; that the clothes were resting on a newspaper under them, and the will was under the newspaper; that when his wife died he went and looked in the box in which he had seen the will placed, but could not find it; and that there were no other wills in the box, but there were other papers, such as deeds, releases of mortgages, and receipts for taxes.

The will in question was drafted in 1902 by Alfred Newton of Saginaw, who died in the latter part of that year. Proponent testified that testatrix preserved this draft and on August 15,1904, executed the same, and that proponent and one Fred W. Dennert affixed their names as witnesses at the time of its execution by testatrix and in her presence.

The witness Fred W. Dennert, whose name appears as a subscribing witness, testified that since the fall of 1905 he had lived in Detroit; that he had lived in Saginaw from 1903 until about October 17, 1905; and that during all the time he lived in Saginaw he had rooms in the Connery Flats. On direct examination he testified as follows:

“Q. Mr. Dennert, I show you Exhibit A [the will in question] and ask you whether you recognize any of the signatures on that paper?
“A. Yes, that is my signature, F. W. Dennert, Jr.
“Q. Will you state to the court and jury the circumstances under which you signed this paper?
“A. I was requested to sign the paper by Mr. Connery, and to come into their living apartments, or into their bedroom. He requested me to come into their room and witness a will. He was there at the time, but I don’t recollect whether his wife was there at the time. I walked down after him.
“Q. When you went in there, who was there?
“A. He was there at the time. I don’t remember whether his wife was there or not.
“Q. You can’t recollect as to that?
“A. No, sir.
“Q. State the circumstances under which the paper was signed.
“A. Upon request; he asked me to sign it, and I signed it. I didn’t read it over. I didn’t know the nature of it. It was represented to me as a will; they told me it was; and I signed it.
“Q. Where was the paper, on the table, or what?
“A. I refreshed my recollection some extent when I was there yesterday morning. I am rooming there with him during the time of this trial. He said, ‘Fred, here, this is that chiffonier.’ Showed me the dresser and the drawers, and then I said, ‘Yes, I recollect that.’ He came out in the other room; he said, ‘There is the table we had.’ He showed it to me. I should judge the chiffonier came pretty near up to my shoulder. There was an ordinary standing table. I signed it upon a small table.
“Q. Do you remember Mr. Connery signing the paper?
“A. That I cannot say.
“Q. Or Mrs. Connery?
“A. Some eight years, not possible.
“Q- Now, you remember Mrs. Connery signing it?
“A. I can’t.
“Q. You can’t recollect Mrs. Connery being in the room?
“A. I don’t remember whether she was there or not.
“Q. You wouldn’t say definitely?
“A.' No, sir. I have no interest in the matter and gave it no attention afterwards. I cannot recollect the day of the week or the day of the month; I simply signed my name, to the best of my recollection. I think it was in the evening.
“Q. What do you say now?
“A. I cannot change my testimony.
“Mr. Eaton: I object to counsel leading the witness. (Objection sustained.)
“Mr. EmericJc: I want to get his very best recollection.
“The Court: I sustain the objection.
“Q. State what the facts are, whether or not you testified, as to whether it was morning or evening you signed it.
“A. I believe it was in the evening. I couldn’t state positively.”

Cross-examination (by Mr. Eaton):

“I have been employed a number of years as clerk in the department of parks and boulevards, practically charge of Belle Isle. I don’t regard it as a highly responsible position, just a clerk; a man of ordinary capacity could fill it. I was 17 or 18 years with R. G. Dun & Co., and then with the New York Life Insurance Company. I regard my memory as up to the average, and under ordinary circumstances have a pretty fair memory, and on the evening in question I was not under the influence of liquor or anything like that, but was in the full possession of my senses. I don’t know positively what time of day or night it was, but think it was the evening. I cannot state whether or not the lights were lighted. I was never in this room before, except once or twice, when I went to the door to pay my rent. I was there this morning. It is a small room.
“Q. If at that time Mrs. Connery had been sitting on the bed and asked you to sign that will and had signed in your presence and put her name on that instrument, is there any reason why you would not remember it?
“A. I simply don’t remember it.
“Q. You never signed but one other will besides this in your life as a witness, have you?
“A. Subsequent thereto, not before.
“Q. You never signed but two wills in your life as witness?
“A. That is all. [Continuing:] One was the instrument just described, and the other was a will signed by Mr. West, another roomer at the Connery Flats, at a later date. Those are the only two times in all my life that I signed a will as a witness, and the only time I was in this room to sit down was on this occasion now referred to.
“Q. And you remember Mr. Connery being in this room at that time?
“A. Yes, sir.
“Q. You remember seeing him sign the will, do you not?
“A. That I don’t know.
“Q. Do you remember signing the will yourself?
“A. Yes.
“Q. But you didn’t read it?
“A. No, sir; I didn’t read the contents of it, not that I know of. I had lived at the Connery Flats for probably two years and a quarter and was well acquainted with Mr. James Connery and Alfred Connery, but did not know Dr. William S. Connery so well. I think he has been living on the west side for several years.
“Q. You say you were over there yesterday?
“A. Yes. Mr. Connery asked me to go and showed me the chiffonier. I am positive I sat in a chair at this table and signed the will.
“Q. You didn’t see anybody else sign?
“A. I don’t remember that positively.
“Q. You testified in the probate court, and also on the other trial in this court, to the best of your recollection this was in the evening?
“A. Yes. To the best of my recollection it was in the evening.
“Q. As far as your memory went, you don’t know whether Mrs. Connery was there or not?
“A. Yes.
“Q. Isn’t it a fact the claim was never made in this case that this will was signed in the morning, either by you or Mr. Connery, until the case was tried in the circuit court? (Objected to as incompetent, immaterial, and irrelevant. Objection sustained. Exception.)”

Redirect examination (by Mr. Emerick):

“I lived there from the early summer of 1903 until about the middle of October, 1905. Mrs. Connery, at that time, was mentally competent.
“Judge Beaeh: We insist that the will we have offered in evidence be received in evidence.
“The Court: The will may be received.
“Mr. Eaton: Note an exception.”

In the probate court the proponent had testified that the will was executed in the evening. Upon the trial in the circuit court he testified as follows, on cross-examination:

“Q. After your testimony was given in the probate court, we introduced evidence to show that your wife went away in the morning of the 15th of August, did we not?
“A. You did.
“Q. It was not until this case was tried in the circuit court that you testified positively that you knew it was in the morning?
“A. Not until it was tried in the circuit court.
* * *
“Q. And Mr. Dennert testified as well in the probate court that he believed that it was in the evening, didn’t he?
“A. I don’t know what he testified to.
“Q. And it was the claim made by you and Mr. Dennert, on your examination in the probate court, that this will was executed on the night of the 15th of August, 1904? (Objected to as incompetent. Objection sustained. Exception.)”

There was a red line drawn through a portion of the signature of testatrix in the will, which contestant claims was not satisfactorily explained. The only testimony on the subject appears in the cross-examination of proponent, as follows:

“Q. I call your attention to the red line that is drawn through a part of your wife’s signature Christina and the first part of the word Sutherland.
“A. I have seen it before.
“Q. Don’t you want to look at it ?
“A. No, sir; I know all about it.
“Q. Will you tell us how that line came there?
“A. Yes, it was there, and my wife signed over it. I said at the time, ‘You should not have signed on that red line.’
“Q. I notice an erasure of the word ‘four.’
“A. Yes.
“Q. Did you make that erasure?
“A. Yes.
“Q. What was there before the word ‘four’ was written?
“A. Four, only it was spelled wrong. I spelled it ‘fore.’ I spelled it wrong and erased it. I spelled it ‘fore’ and changed it to ‘four.’ The date wasn’t filled in when it was drafted.
“Q. As a matter of fact, wasn’t the word ‘two’ written in there? Isn’t that what you erased?
“A. No, sir. I know it wasn’t.
“Q. Isn’t that why the will . was drafted in 1902, didn’t you erase the word ‘two’?
“A. No, sir; I filled in the date.
“Counsel for Contestant; I offer this will for the inspection of the jury.
“Counsel for Proponent: Counsel doesn’t claim that is not Mrs. Connery’s signature?
“Counsel for Contestant: We have never denied it.”

Contestant testified that there was no question in his mind that the signature to the will was his mother’s

Proponent testified that testatrix’s physical and mental condition was good at that time; and on cross-examination he testified: That it was after the date of this will that Alfred went to Ann Arbor, where he was given a professional education, and since that time had become a practicing dentist.

“Q. And it is a fact that he was provided with money in order to complete his education, wasn’t it? (Objected to as incompetent and immaterial by proponent’s counsel. Objection sustained. Exception.)”

Sixteen of the 24 assignments of error are discussed by appellant under the following heads:

(1) Was the date of the will important? (2) Was the presence of testatrix important? (3) Were the erasures important? (4) The effect of the later will. (5) Whether relations and changed conditions are material; the execution of the will being denied? (6) The effect of the agreement between the two.sons. (7) The materiality of ante mortem statement of testatrix that she had destroyed a will, and ought to make another.

1. Was the date important? Under this head counsel for appellant discuss the following assignments of error:

“(1) The court erred in charging the jury as follows:
“ ‘If this will was executed at the date it bears, or at about that time by the testatrix, and signed by these two witnesses, James A. Connery and Mr. Dennert, in her presence, or where she could have seen them sign, then it is her last will and testament.’
“(2) The court erred in charging:
“ ‘The proponent claims that this will was properly executed, and that it is a valid will of Mrs. Connery, and that she made this will at or about the time stated in the will, which is the 15th day of August in the year 1904.’
“(3) The court erred in charging the jury as follows (after stating the manner in which the statute requires a will to be executed):
“ ‘If it was not signed in that way, then it would not be signed in the manner pointed out by the statute, and therefore the will would not be a valid will. I don’t know whether there is any dispute here about the date of this will or not, if it was a will at all. Do you gentlemen agree it must have been executed the 15th day of August?
‘Judge Beach: Yes.
“‘Mr. Eaton: That is the claim, it was executed the 15th.
“‘Judge Beach: Mr. Dennert said he might have signed it the night before.
“‘Mr. Eaton: I desire to take an exception to that, that he might have signed it the night before. I ask the court to charge the jury that there is no evidence in this case, or any claim on the part of any witness, that it was signed on any other day excepting the 15th.
“‘The Court: I hardly think an instruction of that kind is warranted, because in Mr. Dennert’s testimony he says it was signed in the evening; he thought it was signed in the evening; he wasn’t sure. Mr. Connery’s testimony, as I recollect it, was positive it was signed on the morning of the 15th.’
“ (4) The court erred in not permitting the question to be asked of proponent as to the claim made by him and Mr. Dennert in the probate court that the will was executed on the night of August 15th.”
“(20) The court erred in refusing to permit the following question to be answered by the contestant:
“ ‘Q. Now, you may state whether or not they made any claim, that it was claimed by counsel it was in the morning, until after you had brought evidence to show that your mother had left for Minnesota on the morning of the 15th of August. (Objected to.)
“‘The Court: So far as the claim is concerned, X sustain the objection.
“‘Mr. Eaton: Exception.
‘“The Court: I sustain the objection on the ground that the claim of the party is incompetent.’
“(201/2) The court erred in refusing to permit the witness Dennert to answer the question put to him on cross-examination whether the claim was ever made that the will was signed in the morning, either by the witness or proponent, until the case was tried in the circuit court, as above set forth in the testimony of the witness.”

It is conceded by counsel for appellant that where the only question involved is the observance or nonobservance of statutory requirements, and the main fact of the execution of some sort of an instrument is conceded or proven, it may be true as the court charged that the date is unimportant, and that under such circumstances the entire lack of a date ought not to, and does not, invalidate the instrument. But it is urged that another question arises when fraud is claimed, and it is denied that any instrument was executed; and that, if the theory of contestant is true, it could not better be proven than by showing that testatrix was not in the city at the time the subscribing witnesses swear she executed the instrument. It is said that the original claim was that the testatrix executed the will on the evening of August 15, 1904, but it was made to appear that the testatrix left the city early in the morning of the 15th. It is urged that proponent recognized the unimpeachable character of this evidence and changed his testimony, and admitted that he changed it in the circuit court. He there testified that the will was executed in the morning early, before the testatrix left the city. The witness Dennert testified, as above shown, that he believed he affixed his signature to the instrument in the evening, but was not sure, and could not state positively. From this record it appears that appellant was given all reasonable latitude to show when the will was made.

The evidence shows that Mrs. Connery had been in the city for some time until she left her home for Virginia, Minn., on the morning of the 15th. The proponent testified at great length on cross-examination and on redirect examination, giving in detail the reasons why he changed' his testimony. This was all before the jury. There having been great latitude given in the cross-examination of the witnesses as to what they had testified to in the probate and circuit courts relating to the execution of the will, we do not think there was error in refusing to permit answers to the questions covered by assignments of error 20 and 201/2 as to the claim made by them or by counsel. It seems to us that this whole subject was before the jury, was discussed, and we have a right to suppose was considered by them. That there was “a change of front,” on the part of proponent, as claimed by counsel for appellant, was apparent, and the reasons therefor, whether good or bad, were in evidence, and we are unable to say that the court erred in its rulings or charge here complained of.

2. Was the presence of testatrix important? Under this head it is claimed in the fifth assignment of error that the court erred in charging the jury as follows:

“As I have already said, the witnesses must sign in her presence; and when I say ‘in her presence’ it does not mean that they be right in the same room, providing they are practically in the same room where she can see them sign if she desires, and is able to do so. That is, they must be where the party making the will can see them sign as witnesses.”

Here, also, appellant’s counsel concede that the charge here complained of was sound in the abstract, but inapplicable here, because of the claim of fraud; that the issue was narrowed down to the sole question of the truth of proponent’s testimony that his wife was in the room and signed the will; that, if she was not in this small room at that time, proponent lied, and the fraud was established; and that no one claimed that testatrix was near at hand, and out of sight, as is sometimes the case. It is urged that the result of applying this abstract proposition to the facts in the case utterly deprived the contestant of any benefit whatever from the testimony of the disinterested witness Dennert to the effect that he had no recollection that the testatrix was present and could not remember that she signed. In this connection attention is called to the charge of the court complained of in the sixth assignment of-error:

“The fact of the execution of a will may be shown even against the testimony of a witness or witnesses; it may be shown that they did sign it notwithstanding that they deny the signatures, or have forgotten, if it can be proven that that is the signature of the parties signing it. The due execution of a will may be shown even against the direct testimony of subscribing witnesses.”

It is claimed that this part of the charge was erroneous when applied to this case, and reference is made to section 9279, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10992).

It should be borne in mind that it is- conceded that the name signed to this will' was the genuine signature of the testatrix, and the signatures of the witnesses were admittedly genuine. Both witnesses were examined at great length. One witness testified to a state of facts that would show strict compliance with the statute. We have set out in full the testimony of the other witness, Dennert. He testified that Mr. Connery requested him to come into a room and witness a will.

“He was there at the time, but I don’t recollect whether his wife was there at the time. I walked down after him.
“Q. When you went in there, who was there?
“A. He was there at the time. I don’t remember whether his wife was there or not.
“Q: State the circumstances under which the paper was signed..
“A. Upon request; he asked me to sign it, and I signed it. I didn’t read it over; I didn’t know the nature of it. It was represented to me as a will; they told me it was; and I signed it.”

This is not a case where one witness only was examined. Both testified, and the jury had the benefit of this testimony.

This court held in Abbott v. Abbott, 41 Mich. 540 (2 N. W. 810), that the probate of a will is not dependent upon the recollection or veracity of a subscribing witness. In the brief of defendant in error in the case cited will be found a collection of authorities to the effect that, if one of the subscribing witnesses testifies that all the statutory formalities were observed, the will may be admitted to probate, even though the other does not remember that they were observed.

We find no error in this part of the charge, nor in that part complained of in the seventh assignment of error.

3. Were the erasures important? Under this head counsel consider the sixteenth, seventeenth, eighteenth, and nineteenth assignments of error, which complain of the refusal of the court to give contestant’s requests to charge, as follows:

(k) I charge you that in arriving at your verdict as to whether or not the will presented was the last will of Mrs. Connery, and whether it was executed as required by law, you may consider all the circumstances surrounding its execution, and, if there are erasures in the will, it is the duty of the proponent to account for them; and, if in this case the proponent has failed to account for any erasures, you should consider such failure in arriving at your verdict.
“(1) In weighing the testimony regarding any erasures, you may inspect the will and take into consideration the appearance of the erasures in connection with the relations of the proponent to the will, and the part that he took in its execution.
“(m) The proponent has testified that the word ‘four,’ written in the date of the will, was written by him in the blank left for that purpose, and improperly spelled in the first instance, and that he thereupon erased the word ‘four’ and wrote it in as it now appears, and that the word ‘two’ had not previously been written therein, or erased. I charge you that you may examine the will and if from an inspection of the same you are satisfied that the word ‘two’ had originally been written and then erased, and the word ‘four’ written as it now appears, that you should take this fact into consideration in weighing the testimony of the proponent regarding the execution of said will.
“(n) I charge you that, if a will is presented and offered for probate, the proponent has the burden of accounting for any mutilation or erasure appearing in said will, and, if the proponent fails to account for such erasure or mutilation, you should find that the proposed will is not the last will of deceased.”

In view of the uncontradicted testimony of the proponent upon the subject of erasures, which we have set out in full, we think the court did not err in refusing to give the requests as here complained of.

This court held in Munroe v. Eastman, 31 Mich. 283, that the writing of a word over an erasure in a deed may or may not be suspicious. The presumption commonly is, where nothing suspicious appears on the face of the deed beyond the fact that an erasure is manifest, that the alteration was made before the deed was executed. See authorities cited in note to this case. Sirrine v. Briggs, 31 Mich. 443. It was a fact to be considered by the jury.

4. The effect of the later will. Under this head counsel for contestant say that it is undisputed that a will was made by testatrix in 1905, and that under the authorities, if it contained a revoking clause, all former wills ipso facto were revoked. There is no claim that there was any evidence that the later will did, as matter of fact, contain a clause of revocation. But counsel ask us to abandon the doctrine that a revoking clause must be proved to arrive at this result, and to hold that, on due proof of the execution of a will, a presumption arises that it is a revoking will. In other words, we are asked to hold that the execution of a will raises a presumption that it was done animo revocandi. We have held that one who claims that a will was revoked by the subsequent execution of another will, which was afterwards destroyed by the testator, has the burden of proving that the latter will contained an express clause of revocation. Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499); Scott v. Fink, 45 Mich. 241 (7 N. W. 799); Stevens v. Hope, 52 Mich. 65 (17 N. W. 698); Dudley v. Gates, 124 Mich. 440 (83 N. W. 97, 86 N. W. 959). We see no reason for changing the well-settled rule in this State.

5. Whether relations and changed conditions are material; the execution of the will being denied. This matter is presented under the following assignments of error:

“(9%) The court erred in refusing to permit proponent to answer the following question:
“ ‘And it is a fact that he (Alfred) was provided with money in order to complete his education, wasn’t it?’
“(10) The court erred in excluding the letter referred to in the following questions and answers in the testimony of contestant:
‘Q. I show you exhibit C, a letter dated August 21, 1904, and ask you whether or not you produced that letter in the probate court, after your father and Mr. Dennert had testified that this was executed in the evening of August 15th?
‘A. Yes, sir.
‘Q. You may state whether or not you received that letter from your mother while she was away.
‘A. I did.
‘Q. I ask you whether or not at this time your relations with your mother were friendly?
“‘A. Yes, sir.
“‘Q. You may state whether or not she had arranged with you to assist in the purchase of a home on the east side of the river? (Objected to as incompetent, irrelevant, and immaterial. Objection sustained. Exception by contestant.)
“‘Mr. Eaton: I offer that letter in evidence. (Same objection, ruling, and exception.)”’

There is no claim by counsel that there was a word in this letter about the will, or a will, or that testatrix was going to change a will. It was a letter about the value of property that she desired her son to purchase. This letter was Exhibit C in the former record in this court, and the same question was presented in appellant’s brief. It was not noticed or referred to in the opinion. We think the matter was immaterial, and the court did not err in its rulings.

6. The effect of the agreement between the sons (twenty-second assignment of error) relating to the exclusion of the agreement between contestant and his brother. In the third paragraph of the will it bequeaths to testatrix’s brother, John Sutherland, of Virginia, Minn., certain real property in Virginia for the term of his natural life. This agreement was only between and was signed by the brothers. It was necessary to probate the will in question to enable John Sutherland to get his interest in the property, and he could not be cut off by any agreement between the brothers. Counsel for contestant refer to the case of Bean v. Bean, 144 Mich. 599, on page 631 (108 N. W. 369). In that case this court said:

“In the case before use there is produced and put in evidence an agreement executed by all the parties in interest. In terms it is an agreement to have done the precise thing which proponent is seeking to do, and which the other parties are seeking to prevent.”

That was a proceeding to probate a will.

Here contestant is trying to prevent a will being probated, and offers this agreement in evidence. We are of opinion that the agreement was immaterial and had no bearing upon the issue. The record in the former appeal shows that the same offer was made and ruling had. The fact is stated in our former opinion, but the question was not specifically passed upon. Had we considered the ruling erroneous, we should have so held, as the case was sent back for a new trial.

7. As to the claimed, statements of testatrix that she had destroyed a will and ought to make another. Under this head counsel discusses the eighth assignment of error relating to the ruling of the court in sustaining the objection of proponent’s counsel to the following question asked proponent on his cross-examination:

“At the time you were driving her over in the cutter, didn’t she say something about making another will?”

This was objected to as immaterial and irrelevant, and the objection sustained and exception noted. In its ruling the court said:

“I exclude that on the ground that any talk about the making of some other will would have no bearing upon the question of the validity of this will.”

In view of the cross-examination that had been permitted, we do not think the court erred in this ruling. We have held that a will executed by a testator in due form and properly witnessed may not be shown to be inoperative by testimony as to declarations of the deceased that he did not intend it to be a final disposition of his estate.

We have examined all the questions discussed by counsel, and are of opinion that there is no reversible error in the record, and the judgment of the circuit court is affirmed.

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


author: Stone, J.

text:
    BURGARD v. BURGARD.
    1. Judgment — Defaults—Setting Aside.
    The provisions of Circuit Court Rule 12, subd. 6, limiting the time for opening a default to six months “where personal service has been made upon a defendant, and proceedings taken after default on the strength thereof’’ apply to the entry of judgment on the strength of a default, that being a proceeding within the language of the rule.
    2. Same — Waiver—Stipulations.
    Oral negotiations to adjust the differences of plaintiff and defendant, resulting, as claimed by one party and denied by the other, in a proposition to be acted on in two weeks, or, if not, that defendant’s default should be set aside, could not be treated as a waiver of the provisions of said rule, in the absence of a written stipulation.
    Error to Macomb; Tappan, J., presiding.
    Submitted April 22, 1913.
    (Docket No. 116.)
    Decided May 28, 1913.
    Trespass vi et armis by Lillian Burgard against Henry Burgard for assault. Defendant suffered default. Judgment for plaintiff. Defendant .moved to vacate the default, and reviews an order denying the motion on writ of error.
    Affirmed.

      Watson, Safford & Shepherd (Eugene /. Falk, of counsel), for appellant.

      Warren S. Stone, for appellee.
   Stone, J.

This case presents the sole question whether the circuit court erred in refusing to set aside a default and a default judgment for plaintiff, where the motion was made more than six months after personal service was had upon the defendant, and a judgment had been entered on the strength of the default. The material facts as to the dates are not in dispute. The writ of summons was personally served upon the defendant the same day the writ was issued, viz., May 15, 1911, and his default for not appearing was received, filed, and entered October 18, 1911. Judgment for plaintiff was entered June 21, 1912. Defendant’s special appearance and motion to have the default and judgment set aside were filed and entered October 28, 1912, being one year and ten days after the default was entered, and over four months after the judgment was entered.

It is the claim of defendant that some time prior to the month of March, 1912, in addition to the alleged cause of action stated in the declaration, there were other—

“Matters in dispute between the parties growing out of the settlement and adjustment of the estate of one William Burgard, deceased. In March, 1912, the parties, through their attorneys, got together in the city of Detroit and tried to adjust their differences. It was finally agreed that certain propositions should be considered by Mr. Burgard (the defendant), and, if not acted upon within two weeks, the default would be set aside.”

This is denied by plaintiff, who claims that the only “differences” existing between the parties arising out of the settlement and adjustment of the estate of William Burgard, deceased, was the claim of plaintiff for services rendered deceased during his lifetime; that the meeting in Detroit, in March, 1912, was brought about at the solicitation of the defendant, or his counsel, and the final proposal was an offer on behalf of defendant which was to remain open for plaintiff’s acceptance for two weeks; that it was never discussed, agreed, or understood that the matter of settlement, or bringing said cause to trial, was to be indefinitely prolonged, but was to be finally determined and acted upon at the expiration of said two weeks; that on or about June 15, 1912, after a delay of a number of months, plaintiff’s attorney informed defendant’s attorneys that he would wait no longer, but intended to proceed to judgment in the case.

Counsel are far apart as to their understanding of the facts, as appears by their affidavits set out in the record. Unfortunately their agreement was not in writing, as required by Circuit Court Rule 39, and the circuit court was of opinion that the case was controlled by subdivision “b,” Circuit Court Rule 12, which provides that, where personal service has been had upon a defendant, and proceedings taken after default on the strength thereof, default shall not be set aside unless application is made within six months after service, and that the circuit court had no discretion in the matter. The defendant urges that the plaintiff had by her conduct waived the provisions of the rule.

We are of opinion that the ruling of the circuit court was correct, and finds support in the following cases: Petley v. Wayne Circuit Judge, 124 Mich. 14 (82 N. W. 666) ; Carpenter v. Judge of Superior Court, 126 Mich. 8 (85 N. Y. 265) ; Biensteadt v. Clinton Circuit Judge, 142 Mich. 633 (105 N. W. 875); Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480 (120 N. W. 6); Steele v. Bliss, 170 Mich. 175-190 (134 N. W. 1013, 135 N. W. 931). In Carpenter v. Judge of Superior Court, supra, it was held that the entry of a judgment was a “proceeding taken after default on the strength thereof,” within the meaning of this rule. The essential purpose of the rule is to set a limit to the time within which the court may act.

The judgment of the circuit court is affirmed.

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


text:
    WESTINGHOUSE ELECTRIC & MANUFACTURING CO. v. HUBERT.
    1. Evidence — Cross-Examination—Rebuttal.
    Following cross-examination of defendant to show the • relation of the witness who was joined as a party defendant with the firm from which he claimed to have retired before plaintiff sold the goods in question, it was not erroneous to permit defendant’s attorneys to examine the witness at length and in detail concerning his arrangement in withdrawing from the copartnership.
    2. Same — Directed Verdict — Partnership.
    Nor did the court err In refusing to determine, as a matter of law, that the defendant remained liable as a partner by estoppel, after his retirement from the firm, of which plaintiff’s credit man, as defendant claimed, had received actual notice.

      3. Partnership — Liability by Estoppel — Dissolution.
    Notice to plaintiff’s agent, whose duties included investigating credit of customers and their financial standing and to report the facts to plaintiff’s credit department, was notice to plaintiff of all matters within the scope of the agency, so that it was bound by knowledge obtained by its agent concerning defendant’s retirement as a partner from a firm with which it had never previously dealt.
    4. Same.
    Hence it was not error prejudicial to plaintiff to submit to the jury the issue whether notice was in fact given, and to charge that if they found plaintiff’s agent received such notice and communicated it to plaintiff, the latter could not recover.
    5. Same — Evidence.
    Undisputed testimony of a defendant and of a succeeding member of the firm showing that said defendant had withdrawn from the firm before credit was extended to it, warranted the court in treating the fact as established in his instructions to the jury.
    Error to Kalamazoo; Knappen, J.
    Submitted April 21, 1913.
    (Docket No. 102.)
    Decided May 28, 1913.
    Assumpsit by the Westinghouse Electric & Manufacturing Company, a foreign corporation, against Louis M. Hubert, Charles S. Kressler, and Herbert E. Congdon, copartners as the Celery City Electric Company, for goods sold and delivered. Judgment for defendant Congdon and in favor of plaintiffs as to other defendants. Plaintiff brings error.
    Affirmed.

      Robert L. Campbell, for appellant.

      Jackson & Fitzgerald, for appellees.
   Stone, J.

Early in the year 1909 Louis M. Hubert and Charles S. Kressler formed a copartnership under the name and style of the Celery City Electric Company, to carry on the business of selling electrical supplies and doing a general electrical business in the city of Kalamazoo. W. H. Beattys was a traveling salesman for the plaintiff, and the testimony of defendant Kressler shows that, during the early part of 1909, Beattys called upon the firm, but they gave him no orders at that time. In February, 1909, plaintiff wrote defendant Herbert E. Congdon, making inquiry as to the financial responsibility of the Celery City Electric Company. This letter was not answered by Congdon. On the 10th day of March, 1909, defendant Congdon wrote the plaintiff the following letter:

“March 10, 1909.

“Westinghouse Electric & Manufacturing Company:

“In reply to yours of this date will say, delayed answering yours of 2/9 pending arrangements to take an interest in the business of the Celery City Electric Company, which I have since done, and I think you will find satisfactory references in Dun and Brad-streets.

“Yours most respectfully,

“H. E. Congdon.”

Defendant Congdon was cross-examined by plaintiff under the statute, and testified that he became a member of the defendant partnership about the 8th or 10th of March, 1909, and that he retired from the partnership about the 16th of April following, and sold his interest in said firm to defendants Hubert and Kressler.

In the latter part of April the plaintiff received by mail, from the Illinois Envelope Company, located at Kalamazoo, an order for a motor, and about April 27th or 28th the plaintiff billed the motor to the Illinois Envelope Company at the sum of $195. This order from the Illinois Envelope Company was obtained through the efforts of defendants Hubert and Kressler and of plaintiff’s sales agent, Mr. Beattys. It is the claim of defendant Congdon that at the time he was not in any way connected with the Celery City Electric Company, was not a partner in the business, and that Beattys, the traveling salesman of the plaintiff, was so advised before the order was taken.

It seems to be undisputed that the defendants Hubert and Kressler carried on the business in the same name, after the retirement of Mr. Congdon, as before, to wit, the Celery City Electric Company. It seems also to be undisputed that the sale of the motor to the Illinois Envelope Company, having been brought about as above stated, was to be treated as a sale by the Celery City Electric Company, as agents, and that this last named company was to have the benefit of the commissions. So within a day or two after the sale to the Illinois Envelope Company, and before the motor was shipped, the plaintiff, acting under the advice of its traveling salesman, Beattys, the first billing was canceled, and the said motor was billed to the Celery City Electric Company at the price of $175.50. Thereafter other goods were sold to the Celery City Electric Company, until the amount sold to this concern by the plaintiff was $306.78. The amount sold to it by the plaintiff after June 29, 1909, amounted to $42.50.

In November, 1909, the Celery City Electric Company, as copartners, a.nd Louis M. Hubert were declared bankrupt, and upon a composition offered by Hubert, plaintiff received a dividend of 12% per cent, on its claim. There was claimed to be an unpaid balance of $322.43, and for the recovery of this balance this action was brought against the three defendants above named.

Defendant Hubert pleaded his discharge in bankruptcy; Kressler was not served with process in the suit, so that the question in the case finally resolved itself, upon the trial, into one of defendant Congdon’s liability to the plaintiff for all, or a part, of the unpaid amount owing the plaintiff. It is the claim of the plaintiff that the goods sold by it to the Celery City Electric Company were sold upon the strength of Congdon’s letter stating that he was a partner, and that until June 29, 1909, plaintiff had no notice, diréctly or indirectly, that he (Congdon) was no longer connected with this concern. It was admitted on the trial by plaintiff that for goods which were shipped to the Celery City Electric Company after June 29th, when it received word, through the Bradstreet Mercantile Agency that Congdon no longer was a partner, Congdon would not be liable. But for the goods which were shipped to the Celery City Electric Company previous to that time it is the claim that Congdon was liable, and that a judgment should have been directed by the court in favor of the plaintiff, and against the defendant Congdon for the amount of these items, giving him credit for payments which had been made on account, and for the amount which had been received as a dividend in the bankruptcy court.

It is claimed on the part of the plaintiff (appellant) that the court erred in receiving testimony regarding matters which occurred between Congdon and the other partners, and of which plaintiff had no knowledge ; that it erred in allowing testimony to be given by the witnesses Kressler and Congdon against plaintiff’s objections and exceptions, and in refusing to grant plaintiff’s motion to strike out such testimony; that there was error in overruling plaintiff’s motion for a directed verdict, and in submitting the question of Congdon’s liability to the jury under the charge as given by the court; that there was error in refusing several of plaintiff’s requests to charge, and in giving some of defendants’ requests; and that the court erred in its general charge in the various particulars stated in the assignments of error.

W. H. Beattys was sworn as a witness for the plaintiff, and he testified that for a number of years prior to March 1, 1911, he had been in the employ of the plaintiff in the capacity of salesman for portions of the States of Michigan and Indiana. He swore to his personal acquaintance with all of the defendants. He testified that both Mr. Hubert and Mr. Kressler accompanied him to the plant of the Illinois Envelope Company, where the sale of the motor was agreed to. He testified that it was understood between the Celery City Electric Company and himself, at the time they were there, that the defendant company would obtain the order, as agent for the plaintiff, under a motor agency agreement which had been entered into. He explained about the cancellation of the first order and the billing of the goods to the defendant company. He further testified as follows:

“A little earlier than this time I had a conference with the defendant Herbert E. Congdon. On that occasion I was introduced to Mr. Congdon by Messrs. Hubert and Kressler, who were occupying the building owned by Mr. Congdon, and he was introduced to me as a partner of the firm, and he stated to me that it was true that he was a partner in the Celery City Electric Company. This conversation took place in the office of the Celery City Electric Company, and the three copartners, Louis M. Hubert, Charles S. Kressler, and Herbert E. Congdon, were present. I met Mr. Congdon once after that time, but I don’t think any matters of business were discussed. I just met him and passed the time of day. To the best of my recollection this conversation in which Mr. Cong-don told me he was a partner in the Celery City Electric Company took place about a month prior to April 29,1909.”

On cross-examination he testified, among other things, as follows:

“My duties as salesman are not confined entirely to the sale of goods, because I look after the welfare of my customer after the sale is made. I have no authority to give credit. I did business with no member of the partnership known as the Celery City Electric Company on April 29, 1909. The order was sent in by mail. I saw them earlier in the month. I saw Hubert, Kressler, and Congdon. My custom when selling goods, as to finding out the credit standing of the customer, is to get what facts I can learn and refer them to the credit department of the Westinghouse Electric & Manufacturing Company, to which all such matters are referred. * * * Mr. Congdon did not tell me that he was no longer a member of the firm.”

This witness testified positively that none of the defendants at any time, up to and including the 29th day of April, 1909, advised the witness, by word of mouth or by writing in any way, directly or indirectly, that Herbert E. Congdon had withdrawn from the firm of the Celery City Electric Company. And the credit-man of the plaintiff testified that neither he nor the plaintiff, to his knowledge, ever received any notice up to and including April 29th that Mr. Congdon had withdrawn from the defendant company. There was a sharp conflict in the evidence upon this subject.

The defendant Kressler testified that, at or about the time of taking the order for the motor shipped to the Illinois Envelope Company, he had informed Mr. Beattys that Mr. Congdon was no longer' a member of the firm. He testified that the conversation took place at Portage street at the store.

“As I recall it now, the conversation that I had with Mr. Beattys about this was that I told him that Mr. Congdon was out, and asked what he was going to do about the credit business. Why, he said it would have to be billed to the Illinois Envelope Company; he had no authority whatever to extend us credit, but it would be later taken up, or words to that effect, but after-wards the bill' came to us, and I was satisfied that perhaps he had made arrangements.”

It was claimed by defendant Congdon that, inasmuch as plaintiff had not sold goods to the Celery City Electric Company when he was actually a partner, and that he had actually retired from the firm before any credit was extended, he could not be liable to plaintiff in any amount, that notice of his retirement had been given to the salesman of the plaintiff, whose duty it was to report the matter to the plaintiff, and that this was done before any order for any of the goods in question was made.

The case was submitted by the court to the jury, and a verdict was returned, in favor of defendant Congdon, and against the plaintiff, of no cause of action, upon which judgment was subsequently entered against the plaintiff for costs; and the plaintiff has brought the case here upon a writ of error.

The numerous assignments of error are discussed by appellant’s counsel in his brief under the following subdivisions:

(1) Errors relating to the admission and rejection of testimony; (2) errors alleged in the trial court’s refusal to direct a verdict for the plaintiff against defendant Herbert E. Congdon, and in refusing to give the requests proffered by the plaintiff, and in modifying these requests; (3) errors in the charge of the court.

1. We have examined with care the rulings of the court relating to the admission and rejection of testimony; and, in view of the scope of the testimony of defendant Congdon, drawn out upon the statutory cross-examination conducted by plaintiff’s counsel, in which it appeared that the defendant Congdon had withdrawn from the firm about the 16th of April, and he having been interrogated as to the arrangement made by him for the payment of bills of the firm owed at that time, we are of opinion that this subject had been so far opened up by the plaintiff that no error was committed by the court in permitting the defendants to follow up that question and show in detail what had been done by said defendant in the way of the payment of the debts of the firm at the time he withdrew from it.

2. In view of the testimony of the plaintiff’s witness Beattys as to his duty and custom of finding out the credit standing of customers, of learning what facts he could, and referring them to the credit department of the plaintiff, to which all such matters were referred, we do not think the court erred in refusing to direct a verdict for the plaintiff, or in refusing plaintiff's requests to charge.

3. This brings us to the consideration of the important question in the case. The position of the plaintiff is that alleged communications to the salesman regarding matters of credit, or credit standing, or notice of an alleged withdrawal of a partner, will not bind the plaintiff unless such notice has been communicated to the plaintiff. Upon that subject the court charged the jury as follows, and error is assigned thereon:

“If you find that Mr. Kressler did notify the plaintiff’s traveling salesman, Mr. Beattys, before any credit was extended to the Celery City Electric Company, that Mr. Congdon had withdrawn from the firm, then I instruct you that Mr. Congdon would not be liable in this action, regardless of whether or not Mr. Beattys communicated that fact to the plaintiff, for Mr. Congdon would not be liable by failure of the plaintiff’s agent to perform his duty towards the plaintiff.”

Upon this point plaintiff’s counsel relies upon the case of Neal v. M. E. Smith & Co., 116 Fed. 20, 54 C. C. A. 226. The opinion in that case was by Thayer, Circuit Judge. The statement of facts shows that there was testimony introduced at the trial which tended to show that on a given date the plaintiff’s traveling salesman, by the name of Tracey, called at the place of business of the defendant and solicited the defendant Cushman to order some goods; that in the course of this interview Cushman said, among other things, that he had “bought Mr. Neal (the other partner) out now” and was “running on his own hook.” The testimony to this effect was given by the defendant Neal, who claimed to have been standing by and to have overheard the conversation between Tracey and Cushman. The other defendant, Cushman, testified that at a given date he was in the city of Omaha where the plaintiff company did business; that Tracey took him into the plaintiff’s place of business and introduced him to the plaintiff’s credit manager as, “Mr. Cushman, of Charter Oak, the whole cheese of the Charter Oak Mercantile Company.” The goods, it appears, on account of which the suit was brought, were sold at various times subsequent to the first interview. The court said:

“The sole question which arises upon the record is whether this evidence necessitated the submission of the case to the jury to determine whether Smith & Co. had received notice, prior to the sale of the goods, of Neal's withdrawal from the firm. The defense which Neal made was that he retired from the firm in the month of March, 1898; that notice was given to all persons with whom that firm had previously dealt of his retirement; that such notice was given to the plaintiff company ; and that the goods sued for were sold after his retirement from the firm. The lower court withdrew the case from the jury, holding that there was not sufficient evidence to warrant a finding that a notice of Neal’s withdrawal from the firm had been given to the plaintiff company before the goods were sold. The witness Tracey denied that he ever informed plaintiff company of Neal’s withdrawal from the firm, or that he was ever advised of that fact himself prior to the sale of the goods.
“Under these circumstances, the point to be determined is whether the notice given to Tracey, assuming that it was so given, or that a jury would have so found, was notice to the plaintiff company, since there is no substantial evidence that notice of the alleged withdrawal was otherwise communicated to it. The statement, if it was made, that Cushman was ‘the whole cheese’ cannot be accepted as a proper or sufficient notice of the dissolution of the firm. It might mean that or something else. And the question whether notice given to Tracey was adequate to bind the company depends, necessarily, upon the scope of his agency. The testimony on this latter point was to the following effect: That Tracey was simply a traveling salesman of the plaintiff company; that his duties were to sell goods or solicit orders; that after taking an order it had to be submitted to his employer for its acceptance or rejection; and that he had no other duties than these, or authority to make arrangements binding upon the company.
“When a person retires from a firm with which he has been connected, it is his duty to advise all persons with whom the firm has previously had dealings that he has so withdrawn, if he would absolve himself from liability for credit subsequently extended by such persons to the firm from which he has retired. The law casts this burden on the retiring member; and, where the firm name remains unchanged, it does not compel those who have previously dealt with it to ascertain, each time that credit is extended, whether the membership thereof remains the same as before. In the absence of a notice to the contrary, they may assume that it does. This doctrine is elementary. * * * We are of opinion that the notice said to have been given by Cushman to Tracey was inadequate, and not binding upon the plaintiff, because Tracey’s sole duty, as the evidence shows, was to take orders and submit them to his employer for acceptance or rejection, while he had not been armed with authority to extend credit or to determine to what extent customers were trustworthy; nor had it been made a part of his duty, so far as the record discloses, to ascertain who composed the firms with which his employer dealt, or to take note thereof, or to make report of changes therein. These duties, as it seems, had been devolved upon the credit department, and not upon the salesmen.”

Conceding that this case states the correct rule, we think that it is easily distinguishable from the instant case. In this case we think it should be said that it appears undisputed that Mr. Congdon had retired from the firm before any credit was extended to the defendant company, and the plaintiff cannot be said to have had prior dealings with the company. We think that the language, which we have already quoted from the undisputed testimony of the witness Beattys, wherein he said, “My custom when selling goods, as to finding out the credit standing of the customer, is to get what facts I can learn and refer them to the credit department of the Westinghouse Electric & Manufacturing Company, to which all such matters are referred,” shows that if such information was given to him, the same was acquired by him in the course, and within the scope, of his agency. The doctrine seems well established by the authorities that the failure of an agent to communicate to his principal information acquired by him in the course and within the scope of his agency is a breach of duty to his principal, but as notice to the principal, it has the same effect as to third persons as though his duty had been faithfully performed. Cox v. Pearce, 112 N. Y. 637 (20 N. E. 566, 3 L. R. A. 563).

We think the weight of authority is to the effect that, where notice is given to an agent in the discharge of his duty, and within the scope of his agency, it must operate as notice to the principal. In such a case knowledge of the salesman is knowledge of the firm. Mechem on Agency, § 721; Straus, Gunst & Co. v. T. O. Sparrow & Co., 148 N. C. 309 (62 S. E. 308).

The principal is charged with all notice or knowledge, relating to the subject-matter of the agency, which the agent acquires or obtains while acting as such agent and within the scope of his authority. Jenkins Bros. Shoe Co. v. G. V. Renfrow & Co., 151 N. C. 323 (66 S. E. 212, 25 L. R. A. [N. S.] 231).

This subject is fully discussed in this case, and there is a lengthy citation of authorities, among others that of Goodspeed v. Plow Co., 45 Mich. 322 (7 N. W. 902). In that case Goodspeed, the defendant, as appears by the printed record, testified that on or about the date in question he informed one Woodford, the general agent of the plaintiff, who took the order for the goods, that he and Fales had dissolved their partnership, and he- did not desire any goods shipped to Fales & Goodspeed on his account, and that such partnership was actually dissolved February 13, 1879. The plaintiff gave evidence tending to dispute the notice to the agent of dissolution. Justice Campbell speaks of the notice in the following language:

“On the 13th of February the firm was dissolved, and on the same day the agent was informed of the dissolution. * * * The shipment of the goods was not made in accordance with the terms of the order, and was not made until the order had been rescinded by notice of the dissolution.”

This indicates that the notice of dissolution to the agent was held to be notice to the plaintiff.

It cannot be consistent with any just conception of fair dealing to subject a retired partner to the payment of debts contracted after the notice of dissolution has been , given to the creditor extending credit. Such a creditor cannot assume the status of partnership to be unchanged, when he has actual notice of a change imputed to him from the knowledge of his agent, where the agent was such an agent that notice to him was notice to the principal. See, also, D. June & Co. v. Doke, 35 Tex. Civ. App. 240 (80 S. W. 402) ; Hier v. Odell, 18 Hun (N. Y.), 314. See, also, collection of authorities in note at foot of Bush v. W. A. McCarty Co., 127 Ga. 308 (56 S. E. 430), reported in 9 Am. & Eng. Ann. Cas. at page 244.

The most of the remainder of the alleged errors discussed in plaintiff’s brief are disposed of under the authorities cited, that notice to the agent was notice to the plaintiff, and the trial court left the question of notice to Beattys as one of fact to the jury; for, if given, as said in the case of Cox v. Pearce, above cited, “such notice was in law a notice to the principal, although it was never communicated to him.”

It is true that the trial court submitted to the jury the question whether such notice had been actually communicated to the plaintiff. This part of the charge was more favorable to the appellant than the law of the case would warrant under the authorities above referred to, and we do not think the plaintiff can complain because of such submission.

It is further contended by counsel under this subdivision of his brief that there is no question that the plaintiff actually extended credit to the Celery City Electric Company upon the strength of Congdon’s connection. We think that this was an immaterial matter, provided the jury found that notice had been given to Beattys, the agent; for, if this traveling agent of plaintiff had actual knowledge of the withdrawal, as the jury must have found, it is not important whether plaintiff sold the goods relying upon Cong-don’s connection with the defendant firm or not.

Counsel also complains of the charge because the court stated that the undisputed evidence showed that Congdon had retired from the partnership previous to the time when the credit was extended by the plaintiff. A reading of the record satisfies us that the court was clearly correct in this statement. The testimony of Mr. Congdon and Mr. Kressler was not disputed in any way as to the time when he withdrew. Both of them fixed the time as previous to that when any credit was extended, and particularly with reference to the sale of the motor, which was the first item for which credit was extended.

Error is also assigned upon that portion of the charge with reference to the subsequent dealings of the plaintiff with the Celery City Electric Company after it was conceded the plaintiff had notice of the withdrawal of the defendant Congdon. We do not think, in view of the course which the trial took, that there was any error in submitting this question to the jury.

In our opinion there was no reversible error on the trial of which the appellant can complain, and the judgment of the circuit court is affirmed.

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


text:
    KOVACS v. MAYORAS.
    1. Evidence — Hearsay—Cross-Examination.
    On cross-examination of plaintiff, in an action for libel, the trial court erred in permitting the witness to testify that a third party, had approached him, claiming to act in defendant’s behalf, to propose a compromise.
    2. Same — Libel—Retraction.
    Nor was a letter admissible in evidence, to plaintiff from the editor of a newspaper which published the alleged libel, containing criticisms of defendant who was shown to have caused the objectionable article to be published.
    3. Same — Reputation—Libel and Slander.
    Specific facts shown by testimony and admitted by plaintiff in a libel suit on cross-examination must stand against him as qualified or explained by him, although the evidence tends to impeach his good reputation, and it is not permissible to introduce evidence in rebuttal showing his good reputation in the community. The rule that defendant may show bad reputation does not authorize plaintiff in the first instance to open the door by general evidence of his good reputation.
    4. Libel and Slander — Pleadings—Damages.
    For damage to plaintiff’s feelings because of libelous statements relating to himself and wife, proper averments in the pleading are required in order to authorize a recovery and it is error to permit the jury to assess damages by reason of what was published concerning his wife, if complaint is only made in the declaration in so far as it related to him.
    5. Same.
    A married woman may bring a sole action for slander; and her action is not barred by the recovery of damages by the husband for slanderous statements concerning himself and wife.
    6. Same — Justification—Truth as Defense.
    It is sufficient for the defendant to justify so much of the defamatory matter as constitutes the sting of the charge: it is unnecessary to justify every word thereof so long as the substance be justified. But when the article is indivisible and the facts asserted are dependent on each other to impute the defamatory charge then each material allegation must be justified or plaintiff may recover for the part not justified. Where a full and complete justification cannot be made of each item constituting the libel, the facts as they exist may be shown in mitigation of damages, and if such facts are substantially the same, or not materially variant from those alleged, they will reduce the damages to a minimum.

    7. Same.

      Held, that the court erred in charging the jury that there was no evidence of justification.
    Error to Muskegon; Sullivan, J.
    Submitted April 25,1913.
    (Docket No. 84.)
    Decided May 28, 1913.
    Case by Steve Kovacs against Peter Mayoras for libel. Judgment for plaintiff. Defendant brings, error.
    Reversed.

      R. J. Macdonald and William H. Simpson, for appellant.

      Turner & Turner, for appellee.

       The authorities on the question of truth as a defense to a civil action for libel or slander are collated in a note in 31 L. R. A. (N. S.) 132.

   Stone, J.

This is an action on the case for libel. The libel claimed was the publication of a newspaper article in the Hungarian language, in a paper published at Cleveland, Ohio, in that language. The article is set out, both in the Hungarian and English languages, in the declaration. The inducement, or introductory part of the declaration, is in the common form in such action, as to the proper conduct and behavior of the plaintiff in the community, and that he had not ever before been suspected to have been guilty of the offenses and misconduct therein charged, etc. The declaration proceeds in this language:

“Yet the said defendant, well knowing the premises, but greatly envying the happy state and condition of the said plaintiff, and contriving, and wickedly and maliciously intending to injure the said plaintiff, in his good name, fame and credit and to bring him into public scandal, infamy, disrepute and disgrace with and among all his neighbors and other good and worthy citizens of this State, and to cause it to be suspected and believed by those neighbors and citizens that he, the said plaintiff, was a bad man, was in the habit of getting drunk, and when drunk threatened to shoot people, and that he had been arrested for the same, etc., to vex, harass, oppress, impoverish and wholly ruin him, the said plaintiff, heretofore, to wit, at the city of Muskegon Heights, said county, did on or about, to wit, the 28th day of April, 1911, compose and write a certain article in the Hungarian language of and concerning said plaintiff and sent the same to the Hungarian paper published at Cleveland, • Ohio, called the ‘Szabadsag,’ the English of which is ‘Liberty,’ which Hungarian paper has a large circulation among the Hungarians at Muskegon Heights and elsewhere where plaintiff resides, and caused the same to be printed in said paper and so circulated as aforesaid, and did falsely, wickedly and maliciously compose and publish, and cause and procure to be published of and concerning the said plaintiff in said paper aforesaid the following: ‘Stephen Kovacs Pogany of Szalona (Borsod county) got tipsy, together with his wife Susanna Vecsei to the great disgrace of the Hungarians who live soberly, in peace, the alcohol made them to lose their reason, and after they had had enough of their amusement Kovacs Pogany rushed out to the street with a loaded revolver and threatened to shoot everybody. Luckily, the pistol did not go off, and thus could not do any damage in human life. His example was followed by his wife whose revolver did not refuse to go off, but the intervention of the police prevented any greater mishap.’ (Meaning thereby that said plaintiff and his wife had got drunk to the great disgrace of all their race and rushed out into the street and tried to shoot everybody.) In another part of which said libel there is contained also the following, to wit: ‘The couple that so forgot themselves were taken to the city jail and after a hearing they were set free, the woman did not wait for the sentence of the judge but arranged another scandal and attacked her neighbor, Mrs. Miklos, who was in the family way, knocked her to the ground, tore her hair and kicked her and only the intervention of an English family who lives in the neighborhood saved the unfortunate woman from death. She was then treated by a doctor that was called. Mrs. Kovacs will get her punishment, but it remains very deplorable that Hungarians should thus disgrace their countrymen.’ (Meaning thereby that the wife of said plaintiff was taken to jail and arranged another scandal and knocked a woman down; and but for the intervention of an English family would have killed her; meaning that such Hungarians as said plaintiff and his wife were a disgrace.) And said plaintiff avers that by means of the committing of which said several grievances by the said defendant as aforesaid, he, the said plaintiff, hath been and is greatly injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace with and amongst all his neighbors and other good and worthy citizens of this State in so much that divers of those neighbors and citizens to whom the innocence and integrity of the said plaintiff in the premises were unknown have on occasion of the committing of the said grievances by the said defendant as aforesaid from thence hitherto suspected and believed, and still do suspect, the said plaintiff to have been and to be a person guilty of the misconduct above set forth, and have by reason of the committing of the said grievances by the said defendant as aforesaid from thence hitherto wholly refused and still do refuse to have any transaction, acquaintance, or discourse with him, the said plaintiff, as they were before used and accustomed to have and otherwise would have had, and the said plaintiff hath been and is by means of the premises otherwise greatly injured, to wit, at the city of Muskegon Heights, said county, to the damage of the said plaintiff of $2,000.”

The defendant pleaded the general issue, and gave notice thereunder that he, upon the trial, would insist and give evidence that the article as printed and published in the newspaper mentioned in said plaintiff’s declaration was true, in the ordinary meaning and generally accepted sense thereof.

Upon the trial of the case there were numerous translations by different witnesses submitted to the jury.

Upon the cross-examination of the plaintiff he was permitted, against the defendant’s objection and exception, to testify that a man named Steve Hobi told him that defendant sent him to plaintiff to make a settlement between plaintiff and defendant. This testimony defendant’s counsel moved to have stricken out, which request the court denied. The plaintiff was also permitted, against defendant’s objection and exception, to introduce and read in evidence, without any proof of signature, a letter purporting to be written to the plaintiff by the editor of the Hungarian paper in which the claimed libelous article was published, in answer to a letter written by plaintiff to the editor. That letter was in substance as follows:

“Cleveland, Ohio, May 2, 1911.

“Sir Kovacs:

“We received your letter and we are your service any time you please in this matter. The article was sending by a man Peter Mayoras. We are willing to send his letter back and you can get on the track who was the man who sent this article in. We are pleased Mr. Kovacs, after you get done with this letter to be kindness to send it back to us and write soon how this stands. Of course we are willing to write it in the paper that that man is make a fool out of us. Please believe us, the man who is do such a thing with his friend he ain’t worth much to look at him. Please you not to get discouraged. You should believe that his work is wrong and it was worse for him than anything else. If we asking you for the letter of Peter Mayoras to send it back, we will wait for it and wait for instructions, so that we want to know something about it.

“Yours truly,

“The Editors.”

The court permitted this letter to be read in evidence, for the reason that it was based on the cross-examination of the plaintiff. He had stated upon cross-examination that the newspaper “didn’t give me no retraction at all yet, the paper didn’t; the paper just sent me the letter back what he wrote.”

During the trial a witness for plaintiff was permitted to testify on rebuttal, against defendant’s objection and exception, as to plaintiff’s general reputation in the community where he lived.

Many witnesses were called by the defendant and gave testimony tending to show the truth of the publication. The defendant, when upon the stand as a witness, admitted that he had written the article declared upon, and had sent it to the newspaper already named for publication.

At the close of the testimony the defendant requested the court, among other things, to charge the jury as follows:

“(6) The plaintiff cannot recover in this case any damages for anything that was published in the article mentioned in the declaration in reference to his wife.
“(7) If you find from the evidence that the defendant has proven under his notice of justification by a preponderance of evidence that the statements made in the claimed libelous publication are true, then he has made a complete defense, and in that case your verdict should be no cause of action.
“(8) The defendant requests the court to charge the jury that if they find that the defendant has justified to any part of the article, as to that part no recovery can be had.”

The court in its charge to the jury used the following language:

“So here we have an article that gives one continuous transaction, or a sequel growing out of the first transaction there, and when they come to make their defense the defendant does not claim at all that he has made a defense to the article as published. The court would be in error in telling you that they had made a complete defense, because the shooting of the woman was a long time after the taking of the'revolver by the man. The attack upon Mrs. Miklos, if anything of that kind was done, did not refer to the same transaction at all. So in making their defense they have not made what the law requires them to do. That is, they must put in evidence that tends to prove that the very publication, the ordinary meaning to be drawn from the publication, is true, and they haven’t done that, so that the defense of justification of truth, I am bound to tell you, has not been made out, and for that reason the matter comes right up to this: When you have taken what I have said altogether it comes to this: Did this man publish this article? Now, anybody, no matter who it is, that writes an article, or any person that puts it up in print,_ or the owner of the newspaper that publishes the article, all of them, are guilty of the publication, and each of them are liable for the necessary result of the publication, and so when the defendant was put upon the stand he testified that that part of the article that appeared in the paper was written by himself, so we have the proof, and admitted in the testimony, that the article was published in the paper. I have told you that it was libelous; I have told you that the defense of justification hadn’t been made out, and the defendant has told you that he was the author. So there we have the whole case before you, for the ease has been made, the main case has been made, and it is an injury to one’s good name to have a libel published of him. * * * There has been something said to you about Mrs. Kovacs; she isn’t here as a plaintiff at all. You cannot and ought not to render any verdict because of any mental suffering that she has sustained in this case. That isn’t here for you. It is only the suffering that may have been sustained, so far, was probably sustained by Mr. Kovacs, and only the damage that was reasonably probable that he sustained by the publication, and that publication mentioned his wife in there. Now you have got a right, to take that into consideration as far as the injury occasioned him is concerned, but no injury that was done to his wife. It is only the feelings and the reputation of Mr. Kovacs that you are concerned with.
“A Juror: There is one question I didn’t understand. Does that mean you can take into consideration a husband’s feelings because his wife has been spoken about?
“The Court: Yes, you can take into consideration a husband’s feelings because his wife is spoken about —all that he suffered in relation to the publication. You have got a right to consider that, and it is your duty to consider that, but anything that Mrs. Kovacs herself may have suffered, that isn’t before us here in this case.”

There was a verdict for the plaintiff for $100 damages to plaintiff’s reputation, and for $400 for injury to his feelings, and judgment was thereupon rendered for the sum of $500. The defendant brings the case here upon writ of error, and by his assignments of error has raised the questions that we have referred to.

(1) By the third assignment of error it is claimed that the court erred in permitting the plaintiff on cross-examination to testify to what the man Hobi had told him. This seems to have been hearsay pure and simple, and should not have been admitted. We think the court erred in refusing to strike the same out on motion of defendant’s counsel.

(2) We think it was error to admit the letter in evidence. Not only did it appear that this letter was not authenticated in any way, but it was entirely incompetent and immaterial as evidence. It was from a stranger and was hearsay. ' It may well be claimed that it was damaging to the defendant, because it assumed to exonerate the plaintiff and condemn the defendant. The opinions and many expressions in the letter could not have been testified to by the writer if he had been sworn as a witness. The reason assigned by the trial judge for admitting the same in evidence was not a good reason. This point is covered by the fourth assignment of error.

(3) The fifth assignment of error complains of, or relates to, the ruling of the court permitting a witness, against objection and exception, on rebuttal, to testify as to the general reputation of the plaintiff in the community where he lived. This evidence was clearly inadmissible under the rulings of this court. Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474). This court said, in the case above cited, after referring to many authorities:

“Nor can the fact that inquiries are made, upon cross-examination, in relation to specific facts that may tend to weaken his (plaintiff’s) good character and lessen his good reputation, change this rule. Such specific facts cannot be met, either as a part of the main case, or upon rebuttal, with evidence of general reputation in the community where he lives. If, upon ■such cross-examination, he admits the existence of such specific facts, they must stand against him for what they are worth, except as they may be explained and qualified by evidence or explanations in his behalf. If they are denied by him, and the defendant introduces testimony tending to establish them, he has the right in rebuttal to deny them, and establish their falsity or nonexistence.”

See, also, Howard v. Patrick, 43 Mich. 121 (5 N. W. 84) ; Fahey v. Crotty, 63 Mich. 383 (29 N. W. 876, 6 Am. St. Rep. 305); Munroe v. Godkin, 111 Mich. 183 (69 N. W. 244).

Plaintiff’s counsel contend that this testimony was proper and competent under the decisions of this court, and they cite the case of Georgia v. Bond, 114 Mich. 196 (72 N. W. 232). We think that counsel have misapprehended the scope of that decision. That is to the effect that the defendant may show plaintiff’s bad reputation for honesty and uprightness in a place when; he had formerly lived. This rule was recognized by us in Wells v. Toogood, 165 Mich. 677 (131 N. W. 124), where we referred to authorities, including the one cited by plaintiff’s counsel. The rule that defendant may show the general bad reputation of the plaintiff in an action of this nature does not permit the plaintiff, in the first instance, to open the door by general evidence tending to show his good reputation. We think the court was in error in admitting this testimony.

(4) The tenth, thirty-third, and thirty-fourth assignments of error raise the question as to plaintiff’s right to recover in this case any damages for anything that was published in the article mentioned in the declaration in regard to his wife.

We think the court should have given plaintiff’s sixth request to charge, and erred in that portion of his charge relating to damages by reason of what was said in the article about the wife. The ground of this holding is because of the condition of the pleadings in the case. We recognize the rule as one well established that, where the language published concerns husband and wife, the husband may sue alone for the injury to him, and that a recovery by the husband for slanderous words spokén of himself and wife is not a bar to another action by the wife for the same slanderous words. 21 Cyc. p. 1529; Townshend on Slander 6 Libel (4th Ed.), §§241, 302; Gazynski v. Colburn, 11 Cush. (Mass.) 10; Bash v. Sommer, 20 Pa. 159; Ebersoll v. Krug, 3 Binney (Pa.), 528; Hart v. Crow, 7 Blackf. (Ind.) 351.

This court held, as early as the case of Leonard v. Pope, 27 Mich. 145, that a married Woman may bring a sole action for slander.

The difficulty in the instant case is that the only allegation in the declaration is for injuries on account of things said of and concerning the plaintiff, and we think, under this declaration, recovery could only be had for things said of and concerning him, and recovery cannot be had for things said of and concerning his wife. We have above specifically referred to portions of the declaration. Both in the inducement and in the concluding portion of the declaration complaint is made of the article in so far as it related to the plaintiff only, and it nowhere claims any damage to the plaintiff by reason of what had been said of the wife. It is true that the article as published referred to the wife, and the innuendoes refer both to the husband and wife. But no complaint is made of these, and there is no claim in the declaration that the plaintiff suffered any injury because of the allusions to the wife. The object of pleading is to apprise the opposite party and the court of the precise cause of action or tort complained of. And here the only tort complained of is the injury to the plaintiff because of what was said of and concerning him. We think therefore that the court erred in submitting that question, under the pleadings, to the jury.

(5) We think the court should have given defendant’s seventh and eighth requests to charge, and that it erred in that portion of the charge covered by assignments of error numbered 20 to 26, inclusive, in that it withdrew the subject of justification from the jury. We have read the testimony in this case with care upon this subject, and we do not think that the court was warranted in holding that there was no evidence tending to show justification. The most that can be claimed as libelous in the article is that it charged plaintiff and his wife with getting drunk; of losing their reason; of threatening to shoot everybody; of being taken to the city jail and after having a hearing were set free; of the wife attacking her neighbor, Mrs. Miklos, who was in a family way, knocking her to the ground, tearing her hair and kicking her, and by the intervention of an English family the unfortunate woman was saved from death; that the woman was treated by a doctor; and that it was deplorable that Hungarians should thus disgrace their countrymen. More than half a score of witnesses gave testimony tending to show the truth of these charges, and we think that it is not a case where it can be said there was no evidence of justification to be submitted to the jury.

In the case of McAllister v. Free Press Co., 85 Mich. 453 (48 N. W. 612), and 95 Mich. 164 (54 N. W. 710), this court said:

“It is sufficient for the defendant to justify so much of the defamatory matter as constitutes the sting of the charge, and it is unnecessary to repeat and justify every word of the alleged defamatory matter, so long as the substance of the libelous charge be justified. But when the article alleged to be libelous is indivisible, and the facts asserted are dependent on each other to impute the defamatory charge, then each material allegation must be justified, or the plaintiff will be entitled to his damages suffered on account of the portion not justified. It is also settled law in this State that, where a full and complete justification cannot be made of each item which goes to make up the libelous article, the facts as they exist may be shown in mitigation of damages, and if such facts are substantially the same, or not materially variant from those alleged, they will reduce the damages to a minimum. Sullings v. Shakespeare, 46 Mich. 413 [9 N. W. 451, 41 Am. Rep. 166]. It is laid down in Odgers on the Law of Libel and Slander, at page 170, that, if the substantial imputations be proved true, a slight inaccuracy in one of its details will not prevent the defendant’s succeeding, providing the inaccuracy in no way alters the complexion of the affair, and would have no different effect on the reader than that which the literal truth would produce.”

The article naturally divides itself into two subjects —the conduct of the plaintiff and the conduct of plaintiff’s wife. We think it was a proper case to apply the rule announced in Hay v. Reid, 85 Mich. 296 (48 N. W. 507), where this court held that the trial court should have given the following requests to charge:

“If you find evidence to sustain one or more of these charges, as contained in the said publication, which charges I have now enumerated, but do not find evidence to sustain the truth of all of them, still the plaintiff would be entitled to a verdict at your hands, and the effect of justifying as to a part of the charges, and not the whole, would be only to mitigate or reduce the damages which the plaintiff would otherwise be entitled to recover at your hands.”

We have looked through the record in vain to find any language that justified the trial judge in instructing the jury that “the defendant does not claim at all he has made a defense to the article as published.” We think the subject of justification and partial justification, or justification of separate charges, should have been submitted to the jury with proper instructions.

We have examined the other assignments of error, but are of opinion that the questions discussed will not arise upon another trial, in view of what we have here said.

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

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