text:
    STOLZ v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Master and Servant — Railroads—Negligence — Track and Roadbed — Culverts.
    Evidence tending to show that plaintiff’s decedent, an engineer in the employ of defendant, was killed in a wreck caused by the settling of the track and roadbed after a heavy storm, that the accident occurred at a point where the track crossed a deep ravine, that the culvert there located had been cracked for a considerable time, and sand and dirt had sifted through and the water had undermined it until the roadbed had been rendered unsafe, sufficiently presented a question of fact as to defendant’s negligence in maintaining and inspecting the roadbed.
    '2. Same — Inspection—Requirements.
    Where, after admitting testimony relating to the failure of defendant to conform to one of its rules requiring its section hands to make an examination of its track after the storm which caused the washout, the court informed the jury that plaintiff could not complain of that omission, and later cautioned the jury not to consider such testimony, the error, if one was committed, did not prejudice defendant.
    Error to Genesee; Wiener, J.
    Submitted February 24, 1911.
    (Docket No. 120.)
    Reargued October 6, 1911.
    Decided November 3, 1911.
    Case by Frances Stolz, administratrix of tbe estate of William Stoiz, deceased, for the wrongful killing of decedent. Judgment for plaintiff. Defend ant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      Seth B. Terry {Brown, Farley & Selby, of counsel), for appellee.
   Bird, J.

Plaintiff’s husband was killed while in the employ of defendant, and this suit was commenced by the widow under the death act to recover damages therefor. She recovered a judgment in the trial court, and the defendant has brought it here for review.

The deceased was employed by defendant as a locomotive engineer. In the early morning of April 19, 1909, he was going east over defendant’s line hauling a freight train. Just before reaching Fuller Station, and while crossing a deep ravine on a high embankment, the track and roadbed suddenly settled, thereby derailing the locomotive, wrecking the train, and causing his death. The ravine was very deep, and had been filled with a 30-foot embankment. The embankment was 17 feet on top and sloped at the sides at an angle of 45 degrees. A culvert constructed of limestone, 90 feet long, 4 feet wide, and 4£ feet high, extended through the embankment, with wing walls, 8-feet long, built out at the south end to hold in place the embankment and to keep the dirt from washing out and sliding down. The top of the culvert was formed by placing iron rails across on top of the walls and laying brick and mortar between the flanges. Above this was a stone' arch. The floor was paved with hard heads.

The negligence relied upon by the plaintiff was the failure of defendant to furnish the deceased with a reasonably safe roadbed and track upon which to perform his work; and the particular negligence complained of was the failure of defendant to give the culvert and roadbed reason-» able and proper inspection and to make necessary and reasonable repairs. It was the theory of plaintiff that, through a crack in the east wall of the culvert, directly under the track, the sand and dirt had sifted through into' the culvert and been carried out by the action of the water, and that this had gone on until the roadbed had become so undermined and weakened that the weight of the train broke through it.

The defendant’s counsel introduced a large amount of evidence showing that there was a very severe storm and. an unusual rainfall on the night in question. It was also' shown by him that there were frequent inspections of the-culvert by those upon whom that duty rested. It was counsel’s theory that the unprecedented rainfall on the roadbed had washed it out and caused it to slide down at' the south end of the culvert, and that the accident was due to the act of God, rather than the negligence of the defendant. The trial court charged the jury that there was no testimony that the culvert was improperly constructed, but left it to them to determine whether the culvert, roadbed, and track had been maintained in a reasonably safe condition, and whether proper inspection and repairs had been made. Defendant’s counsel insists this was error, and he argues that there was no competent testimony from which the jury could find that the culvert was not properly constructed or maintained. As this is the main question in the case, it will require an examination of some of the evidence to determine whether counsel is right in this assertion.

Mr. Harry Fellmer testified that he was a farmer and owned the land adjacent to the north end of the culvert; that he went to the wreck soon after it occurred. In speaking of the condition of the culvert, he said:

“ I have seen that it has been crumbling and breaking down for the last four years. * * * I first noticed this limestone was commencing to crumble away about four years before the wreck, and that condition was increasing as time went on. There was nothing to hold the wings at the south end at all. With the water going over there it took the dirt away from under the sides, and took it down in the ditch. There is one piece of that broke off and fell in, that I stepped on to get in that weighed over 200 pounds. * * * I should judge it had worked back in from the end of the culvert about six feet, somewhere around there. From where that wing connected to the end of the culvert would be crumbled away about two feet. * * * I had observed the action of the water on the other pieces that had crumbled off there. They came through there every time it rained. They would go further and further. I have lived there 11 years.”

The plaintiff’s theory of the cause of the accident was likewise supported by the testimony of Albert Wilson, a farmer, who had lived near the culvert for many years, and who examined it more or less critically in November, 1908. He testified that the wing walls at the south end had disintegrated and the east one had nearly disappeared, and that as a result of it the water had worked around in the rear of the east wall, and that the action of the water had also washed out a reservoir at the outlet of the culvert, which would hold about 150 barrels of water. With reference to the sand sifting through into the tunnel, he testified, in part, as follows:

“ I saw some places in there, about the center, I should judge, nearly under the track, where there had some dirt sifted down through there, ran down beside the wall, at pretty near the top of it. It was dark, and I could not see where it came from. The sand apparently seemed to have run in there, certainly on one side.”

This same witness, with many others, testified that after the wreck, in the roadbed, immediately east of the culvert, there was a large hopper-shaped hole, about 12 feet across the top, and tapering as it went down into the culvert. This hole was filled with the wreckage of the cars. When the wreckage was removed, the north wall of the hole and a part of the south wall remained intact. This tended to strengthen the theory that the roadbed had been undermined in accordance with plaintiff’s theory. It was argued by defendant’s counsel that the hopper-shaped hole was made by spiles driven by the wrecking crew. We do not so read the testimony. Several of the witnesses distinguished the holes made by the spiles from the large hole in question. Mr. Wilson also testified to other defects in the walls of the culvert at the south end.

Defendant’s counsel criticises Mr. Wilson’s testimony, and charges that no reliance can be placed upon it because he has so mingled the facts with his theories. Mr. Wilson was in a position to know the condition of the culvert, and, so far as the record discloses, he was a disinterested witness, and related his testimony with apparent candor. His testimony about the defective condition of the culvert is corroborated in part by several witnesses, and we see no reason for saying that his testimony is unworthy of belief. It was for the jury to say what credit should be given to it. His testimony was sufficient to carry to the jury the question as to whether the culvert had been maintained in a reasonably safe condition. The testimony was such, if believed by the jury, to justify them in finding as they did, and we think the trial court was not in error in refusing to find that the verdict was against the weight of the evidence.

Error is also assigned because the trial court admitted testimony of the failure of the sectionmen to patrol the track after the storm and before the coming of the train. This failure was counted on in the declaration as one of the grounds of negligence, and testimony was admitted in support of if. At the close of the proofs, the trial court, being of the opinion that no recovery could be had on that ground, said to the jury in the opening paragraph of his charge that:

“ Lest I should neglect to call your attention to it later on, I think I will say to you on the start that there has been some evidence admitted into this case in regard to a rule of the railroad company requiring, in substance, that certain of its employés, after severe storms of rain or wind, should pass over the track and know that it was in a safe condition. Upon examination of the law and argument had during your absence, I became satisfied that under the law the plaintiff could not complain of that, that the decisions are such that the plaintiff would not be entitled to complain of the fact that those people did not go over the track immediately after this rainstorm, so that branch of the evidence you will give no consideration.”

Before finishing his charge, he again cautioned them not to consider the testimony. In view of these warnings, we are persuaded that the admission of the testimony was cured, and that it worked the defendant no injury.

We have examined the other errors assigned, and we are of the opinion that they are not well taken.

The judgment of the trial court is affirmed.

Ostrander, O. J., and Steere, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    POWELL v. BEEBE.
    1. Wills — Construction by Beneficiaries — Possession of Realty — Devises.
    Where testator devised certain property to his widow during her lifetime and the remainder in equal parts to his two sons, one of whom resided on the devised property for many years after testator’s death with the widow, the other son being an incompetent, the acts of the parties could not be treated as a practical construction of the devise on the theory that they permitted the devisee to go into possession, as he could claim no possessory right until the death of the widow.
    2. Same — Intent.
    Where one of the sons of the testator was a helpless cripple and the other an incompetent, and it appeared from the will that decedent intended to make an equal division of certain ' real property between them, such intent will be given effect although the description of the part devised to one son was defective.
    8. Same — Evidence—Presumptions.
    The presumption that a testator did not intend to die intestate as to any part of his estate cannot prevail contrary to the express intention shown by the will.
    Appeal from Cass; Des Voignes, J.
    Submitted April 7, 1911.
    (Docket No. 41.)
    Reargued October 9, 1911.
    Decided November 3, 1911.
    Bill by Gardner Powell, administrator with the will annexed of the estate of Sarah A. Beardsley, deceased, against Hamaline Beebe for the construction of a will. From a decree for complainant, defendant appeals.
    Reversed.

      D. O. French, for appellant.

      Clarence M. Lyle and M. L. Howell, for appellee.
   McAlvay, J.

A bill was filed for the construction of the will of Abel Beebe, executed July 31, 1876. He died May 6, 1881, leaving surviving him a widow, Mary Beebe, and three adult children, Lafayette, Hamaline, and Sarah Ann. At the time of the execution of this will, and also at the time of his death, Abel Beebe was the owner in fee simple of the following described lands in Porter township, Cass county, viz.: The S. E. i of the S. E. i (except one acre in the southeast corner thereof sold for a cemetery), the S. W. i of the S. E. ¿, and the S. £ of the N. W. i of the S. E. i, all of section No. 21; and the W. of the N. E. and the W. ■§- of the N. W. ¿ of the S. E. ¿, all of section 22. No dispute arises relative to the testamentary disposition of the land located on section 22. It was used all together as a farm with the buildings near the southwest corner of the 80-acre description. The above-described 99 acres of land situated on section 21 constituted the home farm of the testator, the house and buildings of such farm being located upon the S. E. J of the S. E. £ of said section. These lands on this section were purchased by the testator in 1840 by deed, in which they were described as the “southeast quarter of the southeast quarter of section 21, and also the west half of the southeast quarter of said section 21, town 7 south, of range 18 west.” He later sold the N. £ of the N. W. í of the S. E. i of said section and one acre for cemetery purposes situated in the southeast corner of the S. E. ¿ of the S. E. ¿ of said section.

The will we are asked to construe reads as follows:

“ In the name of God, Amen. I, Abel Beebe, of the township of Porter, in the county of Cass, and State of Michigan, of the age of sixty-seven years and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following, that is to say:
“First. After the payment of all just and legal demands against my estate, I do give and bequeath unto my wife, Mary Beebe, the use of all my real estate so long as she remains my widow, together with the provisions the law makes for her in my personal estate. To my daughter Sarah Ann Beardsley, I give and bequeath the sum of six hundred dollars ($600.00) over and above all sums of money she has heretofore received out of my estate or any notes now held by my son, Lafayette Beebe. The aforesaid sum of six hundred dollars to be paid to my daughter, Sarah Ann Beardsley, by execution of this my last will and testament as soon as convenient after my decease.
“To my son Lafayette Beebe, I give and bequeath, after the decease of my wife Mary Beebe, the following described real estate, viz.: The south part of the west half of the southeast quarter of section number twenty-one, also the west and north part of the southeast quarter of section number twenty-one, also the west half of the northwest quarter of southeast quarter in section number twenty-two. All in township number seven south of range number 13 west in the county of Cass and State of Michigan.
“ To my son Hamaline Beebe, I do give and bequeath the use during his natural life of the following described real estate, viz.: The west half of the northeast quarter of section number twenty-two in township number 7 south, of range thirteen west in the county of Cass, and State of Michigan, but at the decease of the said Hamaline Beebe the said real estate last described to be equally divided amongst his children if he leaves any, and in case he leaves no children then said real estate last described to be equally divided amongst my heirs that may be living after his decease.
“ To Elizabeth Beebe, wife of Hamaline Beebe, I do give and bequeath the sum of ten dollars ($10) to be paid to her by the execution of this my last will and testament as soon as convenient after my decease.
“ Lastly, after the payment of all lawful demands against my estate at the time of my decease and the widow’s right therein of my personal estate, if any there be left, is to be equally divided between my two sons, Lafayette and Hamaline Beebe. And I do hereby nominate and appoint my wife, Mary Beebe, to be the executrix of this my last will and testament, hereby revoking all former wills by me made.
“ In witness whereof I have hereunto set my hand and seal this 31st day of July A. D. 1876.
“Abel Beebe. [Seal] ”

An attestation and publication clause is added, signed by two witnesses.

The files and records in this estate show that this will was admitted to probate June 15, 1881. The widow filed her bond as executrix, qualified, and entered upon the duties of such office. Appraisers and commissioners on claims were appointed and made and filed their reports. No other proceedings were ever had in said estate. The executrix up to the date of her death never filed any report, and was never discharged. After her death no proceedings were taken to close the estate. The son Lafayette was a helpless cripple, who had always lived at his father’s house, and, after the father’s death, continued to live there with his mother until his death. He was born in 1837 and died in 1893. The son Hamaline was about three years younger than Lafayette, and is still living. He is mentally incompetent, and now represented by a guardian. He was permitted to marry twice. One of his children was also an incompetent. The daughter Sarah Ann Beardsley was the eldest child of the testator. She died in 1908, aged 74. The administrator of her estate is complainant in this suit. During her lifetime the widow lived upon the farm homestead, and under the will had and was possessed of a life estate in all of the real estate of the testator. Upon the death of Lafayette, who never married, his estate and interest in these lands under the will (subject to her life estate) was inherited by his mother. It appears from the record that his estate was never probated or his interest under the will determined. The mother and no other person had always been in possession of all testator’s real estate after the testator’s death, and so continued in possession until her death in 1898. In 1895 the widow, Mary Beebe, described as “sole heir at law of Lafayette Beebe, deceased,” “in consideration of the'sum of one dollar, of love and affection, and for the purpose of making a division of the lands inherited from her son Lafayette,” undertook to convey to Sarah A. Beardsley and Hamaline Beebe, under certain conditions and limitations, the land which complainant contends was devised by the testator to his son Lafayette. It purported to convey to Mrs. Beardsley the entire homestead farm and to Hamaline Beebe the 20 acres on section 22. This deed was made subject to many limitations and conditions on the part of Mrs. Beardsley. It was made while the aged grantor was sick in bed, and there is evidence (tending to show that it was induced by undue influence. Hamaline at this time was under guardianship. Mrs. Beardsley died November 3, 1908, testate, and complainant administrator with the will annexed, claiming to have been licensed by the proper probate court to sell her real estate to pay debts, ascertained that claim was made by Hamaline Beebe that he was the owner of an undivided one-half of the S. E. J of the S. E. i of section 21. He also ascertained what is claimed to be the faulty description in the will of this land in dispute. He then filed this bill to quiet title, and remove cloud therefrom, and to have this will construed. Hamaline Beebe was made sole defendant. He has by his guardian answered, traversing and denying the material allegations of the bill of complaint, and claiming fraud on the part of his deceased sister in getting possession of his property. Issue was joined, and the hearing of the case resulted in a decree for complainant. Defendant appeals.

The contention of complainant is that the will in question devised the S. E. £ of the S. E. ¿of section 21 to his son Lafayette. Defendant contends that this description was not included in the will. This is the only question in the case, and must be determined by a construction of the will to ascertain the intention of the testator in describing the devise to the son Lafayette. Testator owned two farms of 100 acres each (except one acre out of the corner of the homestead farm), and also personal estate of an amount not shown, but evidently in his opinion enough to warrant a provision for the equal division of a balance (after paying all lawful demands and $600 to his married daughter) between his two sons. He had formerly owned all the S. E. J of se’ction 21, except the N. E. J. He had sold the N. £ of the N. W. of this quarter section and also one acre out of the southeast corner of the S. E. £ thereof. The following diagram shows all the lands owned by testator at the time of his death, and the acreage of the different descriptions:

“To my son Lafayette Beebe, I give and bequeath, after the death of my wife, Mary Beebe, the following described real estate, viz.. The south part of the west half of the southeast quarter of section number 21; also the west and north part of the southeast quarter of section number 21; also the west half of the northwest quarter of the southeast quarter in section number twenty-two.”

Complainant’s contention is that the clause of this devise, “Also the west and north part of the southeast quarter of section number twenty-one,” describes the remaining 39 acres of the S. E. £ of the S. E. £ of said section; in other words, the homestead 40 on which the farm buildings were located. Defendant urges that this is a forced, and not a natural, construction; that taking this devise as a whole, and applying it to the land testator owned on that quarter section, a reasonable construction would be that the testator intended “the south part of the west half of the southeast quarter of section number twenty-one ” to describe the south 40 acres of the said W. £; that the nest clause, “Also the west and north part of the southeast quarter of section twenty-one,” was intended to describe the south 20 acres he owned in the N. W. £ of such quarter section; that it is the only west and north part of that quarter section he owned at the time, and cannot be construed to describe the S. E. £ of the S. E. £ (less the one acre); that to give such construction would require a substitution by construction of words he did not use in his description of this land, and with meaning directly opposite to those used by the testator.

Complainant also urges that the practical construction given by the parties and their acquiescence therein for many years should be considered as of great weight, and insists that the son Lafayette at once went into possession of the 99 acre farm, and so continued during the remainder of his life without protest or disturbance. This claim is not founded in law or in fact. The widow during his entire life, after the death of testator, was by right under the will entitled to the absolute possession of all the real estate to the exclusion of every other person, and, in fact, maintained such actual possession. The son Lafayette made his home with her during his entire life. No estate in possession of this land by the terms of the will could come to him as a remainderman during the continuance of the mother’s life estate. The incompetency of the other son, Hamaline, forbids any construction by acquiescence on his part. His incapacity is not disputed. It was recognized by complainant’s decedent, Mrs. Beardsley, and the widow in the deed under which she claims title which is the basis of this suit, and the record shows that the first guardian of Hamaline Beebe never read the will or knew its 'contents, except from hearsay, and during the 13 years he acted obtained no other information, or made any attempt to ascertain his ward’s rights in the premises. There is evidence in the case tending to show that the testator, some years before he made his will, expressed an intention of giving the homestead farm to Lafayette and the other farm to Hamaline, and also of statements made by the widow, Lafayette, and perhaps Hamaline that such was the disposition made by the will. The latter is of no force at all because of Hamaline’s ineompetency and the former fails, because in making the will the testator, even under the construction claimed by complainant, took part of the other farm from Hamaline and gave it to Lafayette.

No assistance appears to be given to us in this construction outside of the instrument itself. There is one feature of this instrument to be considered and which should materially aid in this construction. If this will indicates a general intention or plan on the part of the testator as to the provisions he intended to make for his unfortunate sons, the fair and reasonable construction which would accord with such intention should be followed. It is apparent that they were equally entitled to his sympathy and his bounty. From the will it appears that the residue of all his personal estate was to be divided equally between them. He provided that they should take certain real estate after the life estate of the widow ceased. It is reasonable to suppose that equal provision was intended to be made for them out of such real estate.

The construction defendant contends for would make such equal provision, and in our opinion is the proper and reasonable construction which should be given to this clause of the will. He gave 80 acres of land of practically equal value to each son. His will did not dispose of the 39 acres of the homestead farm upon which the buildings were located.

While it is presumed that a testator did not intend to die intestate as to any of his estate, and if a will is susceptible of two constructions the courts will prefer the construction by which the whole estate is disposed of, yet such construction must be reasonable and consistent with the general scope and provisions of the will and with a fair construction of its terms. To follow this presumption of intention in the instant case would be contrary to the intention we find expressed by the testator, which is never permissible.

Our construction is, therefore, that Abel Beebe, as to the remainder over after the expiration of the life estate of his wife in the S. E. ¿ of the S. Fj. | of section 21, died intestate, and said land descended to his heirs at law; defendant taking one-third, and, upon the death of the mother (whoinherited one-thirdfrom Lafayette), one-sixth, making one-half of said description, and complainant’s decedent, Mrs. Beardsley, taking in the same manner the other half. Complainant, therefore, was not entitled to the relief prayed for and granted.

The decree of the circuit court is reversed and set aside, and a decree will be entered according to this opinion, with costs of both courts to defendant.

Ostrander, C. J., and Bird, Steers, Moore, Brooke, Blair, and Stone, JJ., concurred.


text:
    McRAE v. BARBER.
    1. Taxation — Tax Titles — Notice—Redemption—Statutes.
    Notice to the holder of the title of record of the purchase of State tax lands bid in and held by the State prior to Act No. 229, Pub. Acts 1897, 1 Comp. Laws, § 3959, is required under the provisions of that act as to conveyances made by the State to the purchaser subsequent to the time when the act went into effeot.
    2. Same.
    Such notices are invalid for failure to show the State, county, and township in which the lands are situated.
    3. Same — Descbiption.
    And they should show the amount paid for each parcel described and assessed separately.
    Error to Ogemaw; Sharpe, J.
    Submitted April 4, 1911.
    (Docket No. 9.)
    Reargued October 9, 1911.
    Decided November 3, 1911.

      Ejectment by John McRae, Lucy McRae, and Samuel Anker against William Barber and Mariette Barber. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      William T. Yeo, for appellants.

      Foster L. Snodgrass, for appellees.
   McAlvay, J.

Plaintiffs have brought this case to this court upon a writ of error from a judgment entered upon a directed verdict against them, in an action of ejectment.

A full statement of the titles to the lands involved in this suit claimed by the respective parties thereto would be of too great length, and not necessary to the consideration of the case. Plaintiffs claim to be the owners in fee through the original chain of title. Defendants Barber and wife claim by virtue of certain State tax deeds, under which they claim to have gone into possession. We may consider, for the purposes of this case, that plaintiffs made proof, prima facie, of ownership under the original title. This is in effect the view of the trial court in determining the case, holding the title of defendants good under at least one tax deed, and directing a verdict for them.

The plaintiffs were not attacking the validity of all of defendants’ titles, but contended that before defendants were entitled to enter into and hold possession of said lands, even if any or all of the tax titles were valid, notice was required to be given as provided by Act No. 229, Pub. Acts 1897 (1 Comp. Laws, § 3959), the purchases of the State tax bids having been made, and the deeds to defendants’ grantors having been executed, subsequent to the going into effect of said act, and said deeds each containing the proviso “that this indenture is subject to the relevant conditions imposed by Act No. 229 of the Public Acts of 1897.”

One of the deeds from the State, under which defendants claimed title and right of possession, was for the taxes of 1882, 1883, 1884, and 1885, and the court held that the deed was valid as to the taxes of 1885, in his charge to-the jury saying:

“ The question is as to whether or not the first of those-deeds for taxes which ripened into title in the State under the old law is applicable to the provisions of that law which required the giving of notice.”

Relying upon the case of Briggs v. Gulich, 143 Mich. 457 (107 N. W. 269), the trial court held that notices under the act invoked by plaintiffs were not required. The-principal assignment of error is based upon such holding.

An examination of the opinions in Briggs v. Gulich, supra, shows that plaintiff in ejectment sought to recover possession of land to which he claimed title by virtue of a certain tax deed upon a sale made in October, 1887, for taxes assessed for the year 1885. There having been no redemption of the land, it was placed upon the State tax list, October 1, 1888, where it remained without having been offered for sale until April 14, 1903, when it was sold, and a State tax deed was issued May 2,1903. The validity of this tax title was questioned by defendants, on the ground that the tax was illegal. Plaintiff insisted that, having given the requisite six months’ notice, and no suit having been begun within the time limited, defendants were “barred from questioning the validity of the tax title or tax deed.” Defendants did not question that the notice had been given, but insisted that they had never had their day in court; and as to sales made under the old system, before the adoption of the present system of foreclosure of tax liens in courts of chancery, the limitation of the right of action created by the notice under the present system did not apply.

This was the only question decided in the case, as to the application of the present tax law or its construction, and upon this proposition both opinions in the case state that the requirements of the present law relative to notice and limitation of the right of action did not apply. The word “notice” was used because it is the necessary step to be taken in order to start the running of the statute of limitations, and is therefore; inseparable from it. This court, in G. F. Sanborn Co. v. Alston, 153 Mich. 456 (116 N. W. 1099), did not discredit or overrule Briggs v. Gulich, supra. The question decided in the later case was that the notice provided by Act No. 229, Pub. Acts 1897 (1 Comp. Laws, § 3959), as amended, requiring tax purchasers to give the record owners the prescribed notice, and allowing the owners six months after such notice to obtain a reconveyance upon the specified conditions, applies as well to lands which before the passage of the act has been bid in to the State, and to which the State as the law then stood had an indefeasible title, as to lands subsequently bid in. The court in so holding used the following language:

“The title to many thousands of acres of land was in the State at the time the act of 1897 was passed. The title to many other thousands has since been acquired by the State. We think it was clearly the intention of the legislature to give to all the original owners of land the right conferred by the act of 1897, viz., to obtain a reconveyance of their land thereafter purchased, whether from the State directly or at tax sales, by paying the tax title purchasers the amounts provided thereby. Such, we think, has been the understanding of the profession. Many cases have been before the courts where the title has been acquired from the State in the same manner as that acquired by the defendant Alston, and no question has before been raised as to the right to the benefit of the act.”

The original record and briefs in that case show that the attention of this court was called to the case of Briggs v. Gulich, supra.

The trial court was in error in holding that a notice by the tax title purchaser, as required by the present fax law, was not necessary to be given in the instant case, and in directing a verdict for defendants. As the court cannot finally dispose of the case, for the reason that the record is not sufficiently clear to inform the court of all the necessary facts, other questions presented will not be considered, except to say that the notices required by the tax law, which were claimed to have been served upon some of the plaintiffs, did not conform with the statutory requirements, • in that they did not give the State, county, or township in which the lands were situated. Tucker v. Van Winkle, 142 Mich. 210 (105 N. W. 607); G. F. Sanborn Co. v. Alston, supra. Nor did they give to each parcel of land described and assessed separately the amount paid for each description. Jackson v. Mason, 143 Mich. 355 (106 N. W. 1112). It was error for the court to admit these notices in evidence over the objections of plaintiffs.

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

Ostrander, O. J., and Bird, Steers, Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Mooke, J.

text:
    LUTZ v. ROHN. SPANIER v. ROHN.
    Deeds — Undue Influence — Evidence.
    Evidence held not to sustain the decree and finding of the circuit court that defendant procured by undue influence and improper means the change of beneficiary in her husband’s policies of insurance, or wrongfully obtained the execution to her husband and herself of a deed by the entirety conveying certain of his real property.
    Appeal from Wayne; Donovan, J.
    Submitted April 18, 1911.
    (Docket No. 28.)
    Decided November 3, 1911,

      Bills by Mario Lutz against Mary Rohn and others, and by Anna Spanier and Frederick Rohn against said defendants to set aside certain deeds and the transfer of beneficiary under certain policies of insurance of Joseph Rohn, deceased. From a decree for complainants, defendant Rohn appeals.
    Reversed and bills dismissed.

      Schmalzriedt, Spaulding & Herald, for complainants.

      James H. Pound, for defendant Rohn.
   Mooke, J.

The two bills of complaint in these cases were filed to set aside conveyances made by the late Joseph Rohn, who died December 29,1909, to the defendant Mary Rohn, his wife, on the ground of fraud and undue influence. Complainant Mrs. Marie L. Lutz was a stepdaughter of Joseph Rohn, and up to about the time of his marriage to defendant, September 16, 1909, was named as the beneficiary of two fraternal insurance policies on his life, one for $1,000 in the Schiller Bund and one for $500 in the German order of Hari Gari. These certificates were surrendered by him and new certificates issued in favor of defendant Mary Rohn in September, 1909. The bill prays that the reissued certificates be set aside, and that the complainant as beneficiary in the original certificates be declared entitled to the proceeds of the insurance. The complainant Mrs. Anna Spanier is the daughter, and Frederick Rohn, who was originally made a defendant, but afterwards, by order of the court, joined as a co-complainant, the son, of Joseph Rohn, and the two, together with defendant as widow, are his only heirs at law. Joseph Rohn was the owner of a house and lot on Brandon avenue in the city of Detroit. On September 16, 1909, the day of his marriage to defendant Mary Rohn, he executed a deed of the real estate to defendant Charles P. Grosfield, who immediately reconveyed to Joseph Rohn and Mary Rohn, his wife, as tenants by entireties. Mr. Grosfield disclaims any interest in the property. The bill prays that the deeds be set aside, and the property decreed to belong to the estate of Joseph Rohn. The grounds of both bills and the evidence in support of them being identical, the two cases were consolidated at the trial and heard together. The circuit judge granted a decree according to the prayer of the bills of complaint. The caBe is brought here by appeal.

The deceased, Joseph Rohn, at the time of his marriage to the defendant Mary Rohn, was 57 years of age. She was 10 years younger. He was born in Prussia, and had lived in Detroit 17 or 18 years. His first wife was the mother of Mrs. Spanier and Frederick Rohn. His second wife was a widow with six children by her former husband, one of whom was Mrs. Lutz. After the death of his second wife in February, 1908, Mr. Rohn made his home with Mrs. Lutz until about September 1, 1909. In July or August, 1909, he became acquainted with the present Mrs. Rohn, who had twice before been married, and was a divorced woman with seven children by her first husband. All of these children lived with her at her home, which was directly in the rear of the home of Mrs. Lutz; only the alley being between the two properties. The defendant Mary Rohn was also a native of Prussia. The evidence indicates that some differences arose between Mrs. Lutz and her stepfather Joseph Rohn, and he commenced to live at the home of Mary Rohn, who also had at least one other boarder besides her grown children. About the 1st of September Mr. Rohn and the defendant became engaged and were married before a magistrate on September 16th. ' It had been their plan to be married on September 14th, but it is claimed the defandant had trouble in having her wedding outfit ready at that time. Plans had been made for a wedding celebration on September 14th, and, as the food and other refreshments had been prepared, the wedding celebration was held at that time.

It is the claim of complainants that Joseph Rohn was plied with intoxicating liquors at that time, and that Mrs. Rohn also became intoxicated, and that while he was in that condition the transfers of the certificates of insurance and of the real estate were made. In December Mr. Rohn was taken ill, and on the 14th of that month a doctor was called. He made two or three visits, but found nothing serious the matter. Mr. Rohn was not able to go to his work, but was about the house. On the morning of December 29th, when Mrs. Rohn, who was busy with her washing, her invalid son John, and her husband, were all in the kitchen, Mr. Rohn complained of not feeling well, and went into the bedroom. Shortly thereafter it is the claim of Mrs. Rohn that she went into the bedroom, and that Mr. Rohn’s appearance was such as to greatly alarm her, and that, as her son was not able to go for the doctor, she did. When the doctor arrived, Mr. Rohn was dead. The doctor thought he discovered indications of diluted carbolic acid poisoning, and the coroner was notified. An inquest was held in the presence of the assistant prosecuting attorney. The county physician and the coroner were of the opinion that there was carbolic acid in the stomach of the deceased. The stomach was removed by the doctor, and sent to Dr. Clark for analysis. Dr. Clark was not sworn as a witness. The result of the analysis is not shown. The analysis was not introduced in evidence. The record is silent as to the verdict of the coroner’s jury, and it does not appear that any arrests were made. There is nothing in the record to show that the relations of Joseph Rohn and the defendant were meretricious before their marriage.

It is the claim of the complainants that defendant Mary Rohn by her dominating will secured the conveyances which they seek to set aside, and that she then slowly poisoned her husband by administering to him carbolic acid in the whisky he drank, and caused his death. These are grave charges, and, before they are sustained, should be based upon some substantial proof. There is testimony on the part of complainants that Mr. and Mrs. Rohn sometimes drank more than was good for them, and that he sometimes became drunk, and that Mrs. Rohn urged him at times to drink. No proof is given that Mrs. Rohn ever asked him to make these conveyances, or that he did not make them on his own motion, except the testimony of one woman who was living apart from her husband, who testified as follows:

“ When I went in the back Mrs. Bruski asked me if I had any money for a can or a bottle.
“Q. You mean Mrs. Rohn?
“A. I said I did not have any money, and she said, ‘ Have you got 10 cents ? ’ and I said, ‘ I have 10 cents if you want it. I will give it for beer, and not for whisky.’ And her daughter Anna went and got a can of beer and a bottle of whisky, and then she was telling me the story about her having, how many husbands she had, and she told me she had had Mr. Bruski, and she said she was not satisfied with him, and she fired him out, and then she was married to Mr. Kasmareck, and she said, when she got his money, she fired him, and then she married Mr. Rohn, and I asked her how it is she has such luck in getting married, and she says that she was the seventh sister in her family, and born with a veil on her face, and she say, ‘ That is how I have such luck; I can get a divorce and fire one and marry another.’
“Q. Did she give you any advice about your husband ?
“A. I think on Monday or Tuesday I was down there and as she was in bed late, and she said she was sick, and I went in the bedroom, and she asked me if I would give 10 cents for whisky and I did give 10 cents. Not for whisky. Her daughter went for it, and she went after it, and she drank two glasses out of it and her daughter one, and I think one of the sons was in there and had a glass of whisky, too.
“Q. What was it she said about trouble with your husband?
“A. I was parted with him, and at the time.he accused me of being filthy when I was not, and she told me my husband talked very bad about me.
11Q. What was it she advised you to do ?
“A. She advised me to do away with my man, and I says, ‘ You would not give him anything to get rid of him, in a short while,’ and she says, ‘Any kind of poisoning, carbolic acid,’ she says. ‘ Marry a man like I did that has lots of money,’ and this was the same day that she told me that she would never have married Mr. Bohn. She said the three weeks that she had lived with him before he signed the money — and she would not live with him.
“Q. Tell that again. I do not think that is quite clear.
“A. She told me it was less before.
“Q. That is right. You started right.
“A. She told me that she lived with him three weeks before she married, and she would not have married him until she got the money signed on her or she would not have married him. But sooner— And she told me that he signed the house to her and |1,500 insurance.
“Q. Did she say anything more about poisoning at the time?
“A. Well she was telling me the day that I was there, the day that I told you I went through the alley, and she says she is married to this man, but she thinks he will not live long. Well, I did not like to say because I did not like to get so far in anything. I did not want to do that. There is only one person there. It is not right for me to tell it.
The Court: I want to know. It is for me.
"A. She told me she was going to give him a dose of carbolic acid, and she told me ‘ I was not living with my man.’ That my husband wanted her son to swear against me, and he would give him $50, and she says, ‘ If I was you, I would poison him the same way I am going to;’ and that is what she told me. * * *
“Q. Was there anything said more than you have already said about who was boss ?
“A. Mrs. Bruski always said that she was boss and she was going to be boss, and she did not want anybody else to be boss of her house. That day when I walked out of the house and by Daniel he is right there. I said he should go in the house and make them stop, and not let them fight that way, and he says, ‘ Let her show who is boss.” • “Q. Was there anything said between Mr. and Mrs. Bohn about who was boss at the time the fight was going on?
“A. Yes, sir. She hit him, and then she says, ‘Now tell me who is boss?’ Ido not know how many times, and he says, ‘You are boss.’ But I do not knowhow many times. But he said it in German. He could hardly speak.”

The further examination of this witness showed she was not on friendly terms with defendant; that she did not warn Mr. Rohn of his peril, though she saw him 10 or 12 times after the alleged conversation; that she knew the police pretty well; that she did not tell any of them.

“I did not tell anybody. I never told it to my father until today in this courtroom.”

She was a witness at the inquest, and said nothing at that time about the poisoning. The record shows that it was admitted that this woman was at some time arrested and convicted of disturbing the peace, and that sentence was suspended. Testimony was introduced tending to show improper relations with a man not her husband, which may or may not have been true. We are satisfied from a reading of her entire testimony that it is not entitled to very much weight.

The record discloses that, when Joseph Rohn took out the certificates of insurance, his second wife was named in them as beneficiary. When she died and he went to live with his stepdaughter Mrs. Lutz, he surrendered the certificates, and new ones were issued in which Mrs. Lutz was named as beneficiary. When married the last time, he again surrendered them, and had the defendant Mary Rohn made beneficiary. In view of the fact that Mrs. Lutz was no blood relation of his and was a married woman having a home of her own, that his son Frederick Rohn was an adult and his only son, and had enlisted against his father’s wish, and had absented himself from home since he was 18 or 19 years old, and was still away at the time of his lather’s death, the arrangement made by Mr. Rohn would seem to be a natural one. Mrs. Rohn denies all the damaging accusations made against her. Her grown children who lived with her and an adult boarder who lived with her from the time she married Mr. Rohn until his death say they were always kind to each other.

The secretaries of the two societies whose certificates were transferred say it was done at Mr. Rohn’s request, and that he understood perfectly what he was doing. One of the secretaries visited him several times during his last illness and was alone with him, and no suggestion was made of regret at his marriage, or the change of beneficiaries. Felix A. Lemkie, who had been a magistrate in Detroit 30 years, who performed the marriage ceremony, testified the parties were not under the influence of liquor at that time. The scrivener who drew the deeds had been alderman of his ward and State senator, and says the deeds were drawn as Mr. Rohn desired them drawn, and that he understood fully what he was doing. We think the case has completely failed on the part of complainant. See Palmer v. Mason, 42 Mich. 146 (3 N. W. 945); Schofield v. Walker, 58 Mich. 96 (24 N. W. 624); Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882); Prentis v. Bates, 88 Mich. 587 (50 N. W. 637); Hodges v. Cook, 93 Mich. 577 (53 N. W. 823) Hammond v. Welton, 106 Mich. 244 (64 N. W. 25); Geer v. Traders' Bank of Canada, 132 Mich. 215 (93 N. W. 437); In re Shepard's Estate, 161 Mich. 441 (126 N. W. 640).

The decree is reversed and one may be entered here dismissing the bills of complaint, with costs of both courts.

Me Alva v, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    MONROE v. CARTER.
    1. Quieting Title — Execution Levy — Estate by the Entire-ties — Statutes.
    A bill to quiet title may be maintained, under Act No. 256, Pub. Acts 1909, to set aside an execution levy upon land of husband and wife owned by the entireties, where the execution issued upon a judgment against the husband.

      3. Same.
    Nor is the bill dnmurrable because the notice of levy was filed by the sheriff in the regular course of bis effort to collect the judgment, not by defendant.
    Appeal from Newaygo; Palmer, J.
    Submitted April 12, 1911.
    (Docket No. 88.)
    Decided November 3, 1911.
    Bill by Katherine Monroe, Charles Roe, and Phoebe Roe against William E. Carter to quiet title to certain lands. From an order overruling a demurrer to the bill of complaint, defendant appeals.
    Affirmed.

      Anderson & Branstrom, for complainants.

      E. L. Brooks, for defendant.
   Blair, J.

This is an appeal from an order overruling a demurrer. The bill of complaint sets out, in substance, that on the 7th day of May, 1910, complainants Roe, being seised as husband and wife of an estate by the entireties in certain lands, conveyed the same to complainant Monroe by warranty deed; that on April 15, 1910, the defendant Carter having theretofore obtained a judgment against complainant Charles A. Roe, “a writ of fieri facias was issued out of the said circuit court for the county of Newaygo in pursuance of the aforesaid judgment, and directed and delivered to the sheriff of the said county of Newaygo, who, by virtue thereof,'did on the 15th day of April, A. D. 1910, make a levy upon all the estate, right, title, and interest of the said Charles Roe in and to the property described heretofore in paragraph 1 of this bill of complaint; that on the 20th day of April, A. D. 1910, the said levy was received for record by the register of deeds for the said county of Newaygo, and recorded in liber 1 of Levies on page 411; ” that because of the character of the estate of said Charles A. Roe in said lands said levy was hull and void.

“Your complainants further represent that, because of the reasons aforesaid, the said levy made and recorded as aforesaid upon the land as aforesaid is a cloud upon the title of your complainant Katherine Monroe in said premises, and that it tends to greatly depreciate the value thereof, and ought, therefore, to be set aside and declared null and void.”

The demurrer is as follows:

“(1) That there is no equity in the face of said bill.
“(2) That there is sufficient remedy at law.
“(8) That a notice of levy is not a cloud upon the title within the meaning of the statute providing for the removal of clouds from titles.
“(4) That the notice of levy was not filed by William E. Carter, the defendant, but was filed by David Moote, sheriff of the county, as a notice only, and that hence William E. Carter is not a proper defendant in this case.
“(5) That the notice of levy filed and recorded is only a notice of levy upon all the estate, right, title, and interest of the said Charles Roe in and to the real estate, therein mentioned, and amounts to nothing if the said Charles Roe has no interest, right, or title, and was made in the regular process of collecting upon the execution, and, if set aside or attacked, must be set aside and attacked in the court from which the same originated.
“(6) That the levy is nothing but a naked pretense of title and therefore there is no reason for applying to a court of equity to get rid of it on the ground of any apprehended injury from it.”

Section 9224, 3 Comp. Laws, relative to levies of executions on real estate, provides that—

“Such levy shall be a lien thereon from the time when such notice shall be so deposited [in the office of the register of deeds].”

First Nat. Bank of Durand v. Phillpotts, 155 Mich. 331 (119 N. W. 1). Act No. 256, Pub. Acts 1909, authorizes “any person claiming the legal or equitable title to lands * * * whether in possession or not ” to institute a suit in chancery to clear his title, “ against any other person not in possession, setting up a claim of title thereto in opposition to the title claimed by the complainant or who is named as grantee in any deed or mortgage to said lands of record in the county in which the lands be, or any other instrument or paper purporting to convey said lands or to claim a lien upon said lands either by way of mortgage or otherwise.”

Although it may not be technically accurate to say that the defendant c< is named as grantee ” in any other instrument or paper purporting to claim a lien upon said lands, we think he falls within the spirit and intent of the provisions, and that it was the intention of the legislature to subject such liens to the remedy provided for.

This disposes of all of the reasons for demurrer except the fourth, and we think that assignment has no merit. The execution levy and the lien obtained by filing the notice of levy were for the benefit of the defendant, and he was not only a proper, but a necessary, party.

The order is affirmed, with leave to defendant to answer in accordance with the rules and practice of the court.

Ostrander, C. J., and Bird, McAlvay, and Stone, JJ., concurred.


author: Bird, J.

text:
    CRIBB v. GREAT LAKES ENGINEERING WORKS.
    1. Master and Servant — Assumed Risk — Common Laborer — Warning and Instructing Servant.
    A common laborer, engaged in the work of removing hatch covers on a boat, after having removed two of them with the assistance of three other laborers, assumed the risk of the danger that if they were pulled over the combing they would fall through the hatchway into the hold, and it was unnecessary to warn the workman of such danger, which was open ' to ordinary observation.

      2. Same.
    And plaintiff was not entitled to recover because defendant did not furnish clubs to use in doing work that was done in a manner commonly adopted in similar establishments and could be done safely if proper care were employed.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1911.
    (Docket No. 99.)
    Reargued October 10, 1911.
    Decided November 3, 1911.
    Case by James Cribb against the Great Lakes Engineering Works for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial granted.

      human W. Goodenough, for appellant.

      Edward H. Kennedy, for appellee.
   Bird, J.

Plaintiff was employed by defendant as a common laborer, and assigned to work with a gang of from five to eight men, of whom John Bregg was foreman. The work done by this gang was common labor around defendant’s shipyard. Bregg was ordered, on the morning of the accident, to take his men to the steamer Presque Isle, which was in winter quarters in the yard, and remove some scaffolding from the hold of the vessel, which had been in use to do some painting in one of the compartments. Before the scaffolding could be taken out, it became necessary to remove three of the hatch covers. These hatch covers were 3£ feet wide and about 7 feet in length, with a 4-inch iron ring in each corner to aid in handling them. One hatch cover nearest the edge of the boat was first removed by four of the men. The second one was placed on the first. The third one was taken hold of and raised up by plaintiff and his companion before the men on the other end could get hold of the rings. This had the effect of pulling the opposite end off from the coaming and causing it to drop into the hold. Plaintiff’s companion released his hold, but plaintiff was unable to extricate his gloved hand from the ring, and in consequence thereof was carried to the bottom of the hold, about 30 feet below, with the hatch cover. He sustained injuries which were more or less serious, and he brought this suit and recovered a judgment of $1,000 in the trial court. The theory upon which the recovery was had was that defendant was negligent in failing to provide the men with hatch clubs to place in the rings to facilitate in carrying them.

The defendant asks for a reversal of the judgment because—

(a) No negligence on the part of the defendant was shown; (6) that, even though defendant was remiss in its duty in failing to provide hatch clubs, the danger of working without them was obvious, and should have been appreciated by him; (c) that plaintiff and his companion were guilty of negligence in raising their side of the cover before the men on the other side were ready.

We are of the opinion that the injury suffered by plaintiff was one of the risks included in his contract of employment. The work was in the line of his duty, and the method of doing the work was the usual one employed by the defendant. If the dangers attending the removal of the covers were not apparent to plaintiff before the work was begun, they must have been after he had assisted in removing two of them. After the two covers were removed, he must have known how heavy they were; how they were fastened to the deck; that the hold was beneath, and how deep it was; and that if the covers were pulled over the coaming they would drop into the hold. It was unnecessary for any one to call his attention to these things, because they were open to his observation.

The plaintiff urges that hatch clubs should have been furnished, and that defendant was negligent in failing to provide them. We do not think that plaintiff made such a case on the question of the negligence of the defendant as entitled him to argue that question to the jury; but if we concede his proposition that defendant was negligent in that regard, the position of the plaintiff remains unchanged as to his assumption of the risk, because the dangers, such as they were, were obvious, and should have been appreciated by him. The record shows that the method of removing the covers was the one usually followed, not only in "defendant’s yard, but in other shipyards, and that the work could be safely done without the use of clubs, if proper care were used. The most that can be said of plaintiff’s contention is that, had defendant furnished the clubs, the work would have been less hazardous. This alone is not sufficient to permit plaintiff to recover. Bailey on Master and Servant, § 505.

The judgment of the trial court is reversed, with no new trial. •

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


author: Brooke, J.

text:
    MUSKEGON TRACTION & LIGHTING CO. v. CITY OF MUSKEGON.
    1. Municipal Corporations — Sinking Fund — Charters — Statutes — Muskegon Charter.
    Act No. 344, Local Acts 1901, authorizing the city of Muskegon to establish an electric lighting plant and to create a sinking fund to provide for the bonds, does not require the creation of the fund in advance of the election authorizing the bond issue: the plant was not established, within the intent of the statute until the council, after all preliminary steps had been taken, provided for the issuance and sale of the bonds.
    2. Same — Words and Phrases — Definition.
    To establish means to originate and secure the permanent existence of; to create and regulate; to make stable and firm.
    3. Same — Bonds—Provisions for Fund.
    In providing that the full amount of the bond issue should be paid into the sinking fund in yearly installments, without making an allowance for accumulated interest earned by the moneys so paid in, the council did not exceed its authority: since it could not be assumed that the money would earn four per cent, continuously; nor should it be presumed that after the fund became sufficient to liquidate the indebtedness further installments would be paid in.
    4. Same — Construction of Charter.
    The provisions of the city charter requiring the council to determine the amounts to be paid into the sinking fund from, the revenues of the plant and from the contingent fund of' the city mean that the council shall, from time to time, fix the several sums to be taken from each source.
    5. Constitutional Law — Deprivation of Property — Charters. —Corporations.
    The action of the city of Muskegon in establishing a municipal lighting plant was valid, and the provisions of its charter, authorizing the same, were constitutional and did not unlawfully deprive of its property rights a complainant power and lighting corporation which had an unexpired charter and franchise to use the streets, alleys, and publio places for a number of years.
    6. Municipal Corporations — Franchises—Monopolies.
    Complainant’s franchise did not create a monopoly, or an exclusive right to occupy the streets,
    Appeal from Muskegon; Sessions, J.
    Submitted June 22,1911.
    (Docket No. 74.)
    Reargued October 13,1911.
    Decided November 3,1911.
    Bill by the Muskegon Traction & Lighting Company against the city of Muskegon and the mayor and members of the common council thereof, and others, to enjoin the establishment of a municipal lighting plant. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Cross, Vanderwerp, Foote & Boss (F. A. Nims and Willard Kingsley, of counsel), for complainant.

      John A. McLaughlin {James F. Sullivan, of counsel), for defendants.
    The bill of complaint is filed in this cause for the purpose of enjoining the city of Muskegon and its officers from issuing bonds of said city in the sum of $75,000 for the construction of an electric lighting plant for the purpose of supplying the city of Muskegon and the inhabitants thereof with proper lights for municipal, domestic, and other purposes, and from selling, or attempting to sell, such bonds; also to have declared void all of the proceedings taken by the council of said city in the matter of said municipal electric lighting plant, including said proposed issue of bonds. At the time the defendant city took the proceedings which are questioned, the complainant, a Michigan corporation, had a contract with it for municipal lighting, which by its terms would expire June 1, 1911. While this contract between complainant and defendant city was in force, the charter of the city of Muskegon was amended by Act No. 344, Local Acts 1901. Section 42 of title 7 of the charter is as follows:
    “ It shall be lawful for the city of Muskegon to purchase, or to construct and to operate and maintain an electric or other lighting plant, for the purpose of supplying the city and the inhabitants thereof with proper lights, for municipal, domestic and other purposes. It may borrow on the faith of the city not to exceed seventy-five thousand dollars and issue its bonds therefor, to be used for such purposes and for no other purposes. No limitation in this act contained as to the amount of the bonded indebtedness of said city shall apply to bonds which may be issued under the provisions of this section. Such bonds shall be signed by the mayor and countersigned by the recorder, and issued in such denominations as the council shall direct. They shall run for a period not exceeding twenty years and shall bear interest at a rate not to exceed four per cent, per annum, and shall be sold under the direction of the council for not less than par value: Provided, that nothing in this section contained shall be construed to authorize the incurring of any bonded indebtedness on the part of the city unless the qualified electors of said city voting on such question at any regular election, or special election called for such purpose, shall have authorized the incurring of the same by a majority of their votes cast upon such question. Provided further, that in case such a plant shall be established there shall, at the time of the establishing thereof, be created a sinking fund for the purpose of paying the principal of the bonded debt for the purpose of constructing such plant; and from the revenue received from the users of such lights a certain fixed amount, to be determined by the council, shall be paid into such sinking fund at regular stated periods to be fixed by the council. And there shall also be paid into such sinking fund, annually, from the contingent fund of said city, a certain amount to be determined by the council. Such sinking fund shall be kept inviolate and be used for the payment of the principal of said bonded debt and for no other purpose.”
    The defendant city took the following proceedings under the foregoing statute:
    (1) On March 7, 1910, the council passed a resolution reciting that the council deemed it for the best interest and welfare of the city that it should construct, operate, and maintain an electric lighting plant for the purpose of supplying the city and its inhabitants with proper lights for municipal, domestic, and commercial purposes, and resolving that the council deemed it necessary to issue bonds of the city in the amount of $75,000 for the purpose of constructing said plant; the bonds to be of the denomination of $1,000 each, to draw interest at 4 per cent, per annum, payable January 1st of each year, the bonds themselves to become payable $15,000 on the 1st day of January of each year from 1926 to 1930, inclusive, and to be sold under the direction of the council for not less than par. The resolution further provided for an election to be held on April 4, 1910, to authorize the issuance of said bonds.
    (2) The election was held on April 4,1910, and the issuance of said bonds was authorized by a large majority.
    (3) On April 7, 1910, the returns of the votes on the bonding proposition were duly canvassed, and it was determined that said proposition had been duly carried.
    (4) On August 15, 1910, the city council adopted the following resolution:
    “Resolved, that the city of Muskegon shall construct, operate and maintain in said city an electric lighting plant for the purpose of supplying said city and the inhabitants thereof with proper lights for municipal, domestic, and other purposes; and that proper proceedings be taken to secure the sum of $75,000 to be used for the purpose of establishing said plant by the issue of the bonds of the city of Muskegon. It is further resolved, that there shall be and there is hereby created a lighting plant sinking fund for the purpose of paying the principal of the bonded indebtedness hereinbefore mentioned; that from the revenue received from the users of such lights and from the contingent fund of said city, there shall be paid into said sinking fund not less than $4,000 annually from the 1st day of January, 1911, to the 1st day of January, 1929, and the sum of $3,000 on the 1st day of January, 1930; that such sinking fund shall be kept inviolate, and be used for the payment of the principal of the bonded indebtedness hereinbefore mentioned and for no other purpose.”
    (5) On the same day the council passed another resolution, which, after reciting all the steps taken, provided for the issuance of the bonds, their number, date, and method of payment, rate of interest, method of sale, and form of bond.
    (6) On October 17, 1910, the city council adopted a resolution authorizing the mayor to have the bonds printed and to enter into negotiations with brokers with a view to selling the bonds at par. When the defendant city had proceeded thus far with its enterprise, and on October 25, 1910, complainant filed its bill of complaint, and secured an injunction temporarily restraining further action. Upon a full hearing a few days later, a decree was entered dismissing the bill of complaint.
    From this decree complainant appeals.
   Brooke, J.

(after stating the facts). Appellant states the vital questions presented as follows:

“(1) The character and validity of the so-called lighting plant sinking fund attempted to be created by the council of said city.
“(2) Whether the above-quoted section 42 of title 7 of the charter of said city is null and void as against the rights and franchises of complainant, in that said section is in violation of section 1 of article 14 of the Constitution of the United States, for the reason that at the time of the granting of the aforesaid franchises now owned hy complainant, and in reliance upon which it has made large expenditures, there was no authority of law and no provision in the then charter of said city of Muskegon authorizing it to purchase, or to construct and to operate and maintain an electric or other lighting plant, for the purpose of supplying the city and the inhabitants thereof with proper lights, for municipal, domestic, and other purposes, and such right cannot be lawfully conferred upon said city so long as the franchises of complainant remain in force.”

Under the first subdivision we understand complainant’s position to be that the action of defendant in creating or attempting to create a sinking fund should be held to be nugatory for three different reasons:

First. Because the action of the council in creating the sinking fund was not taken seasonably. The statute provides :

“That in case such plant shall be established, there shall, at the time of the establishing thereof, be created a sinking fund,” etc.

Complainant urges that:

“ The entire scheme of the council for the establishment of a municipal lighting plant, including the creation of a sinking fund and. the proposed issue of bonds, should have been submitted to the qualified electors of said city for their ratification or rejection.”

We search the charter in vain to find language requiring the sinking fund to be created in advance of the election. It cannot be said, as contended by counsel for complainant, that the plant was established by the affirmative vote of the people upon the bonding proposition alone, that was one of the necessary statutory steps in the proceeding, but we think it clear that the plant was not established in any legal sense until August 15, 1910, upon which date the council, after reciting the preliminary steps, definitely authorized the issuance of the bonds, and provided for the sale thereof. Upon the same day the resolution creating the sinking fund was passed. This was, in our opinion, the earliest moment at which this action could legally have been taken. The electors, in voting upon the proposition, could not have been misled, for the resolution of March 7,1910, providing for the election, fully advised them of every fact material to the issue. No reason, therefore, exists for holding that the action of the council in providing for the sinking fund was taken too late. It might, indeed, be urged that the action was taken too early, upon the theory that in using the words, “at the time of the establishing thereof,” the legislature had reference rather to the physical act of creation than to the legal step necessarily preliminary thereto. “ To establish ” means “ to originate and secure the permanent existence of; to found; to institute; to create and regulate; to make stable and firm.” We are of opinion that the legislature used the word “establish” in this statute to characterize a legal, rather than a physical, act. The case of Ketchum v. City of Buffalo, 14 N. Y. 356, cited and relied upon by complainant, has been examined, but it does not, in our opinion, militate against our present holding.

Second. It is next urged that, in providing for the payment into the fund of the full amount of $75,000, the council has acted illegally, in that it has ignored the earning power of the money in the fund from time to time. Complainant shows that if the payments are made into the fund, as provided by the resolution creating it, and the money is kept invested at 4 per cent, per annum compounded until the last bond is paid, there will remain in the fund after such payment the sum of $32,707.33. It is therefore claimed by complainant that the council acted unlawfully in calling upon the taxpayers to raise that sum in excess of the amount needed to retire the bonds at maturity. This contention assumes that two things will occur, neither one of which is likely to happen. In the first place, it assumes that the custodians of the sinking fund will be able to invest the money at 4 per cent. This, it seems to us, is an assumption wholly unwarranted. The first consideration involved in the care of such a fund is the absolute security of the principal. While the earning capacity of the fund should not be ignored (Commissioners v. Walker, 6 How. [Miss.] 143 [38 Am. Dec. 433]; Sinking Fund Cases, 99 U. S. 725), it can only be realized upon under such limitations as eliminate entirely the element of speculation. This necessarily involves investment in securities bearing a low rate of interest, and it is conceivable that during a portion of the time, perhaps even during all the time, such might not be available. Again, it assumed that payments will be made into the fund after it has reached a sum adequate for the retirement of all the bonds. We can scarcely conceive of such a course being taken. The law provides:

“Such sinking fund shall be kept inviolate and used for the payment of the principal of said bonded debt and for no other purpose.”

It is not to be supposed that the city, through its responsible officers, would continue to tax itself for money to put into a fund already sufficient to meet the purpose of its creation, and particularly is this true when we consider that the excess fund so created cannot be devoted to any other purpose.

Third. The use of the words “not less ” occurring in the resolution creating the fund is criticised. It is urged that under this resolution payments may be made into the fund largely in excess of $4,000 per annum, the sum named in the resolution. What we have said in answer to the second objection is pertinent here. Counsel for complainant neglect to'point out any possible reason, and we are able to apprehend [none, why the defendant city should tax itself to create a fund largely in excess of any demands which can be made upon it, when the law distinctly points out the only use to which the fund may be devoted.

Again, it is claimed that, in providing for the sinking fund, this resolution should have determined a “certain fixed amount” to be taken from the revenue received from the users of such lights, and a “certain amount ” to be paid from the contingent fund of the city. Instead of doing this, the resolution provides for the payment of not less than $4,000 annually into the fund from both sources. We must assume that the legislature did not intend to require an impossible thing to be done. In advance of the installation and actual operation of the plant, the council can have no information as to the number of users of the lights or the approximate .'revenue to be derived therefrom. It must be borne in mind that complainant now has in operation a completely equipped and extensive plant which is giving service to the individual consumers as well as to the city. How many of these will patronize the municipal plant in preference to that of complainant can be known only by experience. Aside from these considerations, we are of opinion that the charter itself does not bear the construction contended for by complainant. It evidently means that, with the necessary information in hand, the council shall, from time to time, fix the several sums to be taken from each source.

We now come to the consideration of the claim of the complainant that the charter provision under consideration is unconstitutional and void, and against the vested rights of the complainant. This claim was not urged in the court below, and was not there-passed upon. It is, however, fully urged here. It seems to be the contention of complainant that, because the ordinance permitting it to use the streets, alleys, and public places in the defendant city under certain restrictions, was approved May 8, 1900, and has still nearly 19 years to run, therefore the city is precluded from undertaking the erection of a municipal plant which will become a competitor with complainant for business. To agree with this position would be to hold that, in passing the ordinance in question, the defendant city had placed itself in the hands of ■ a monopoly for the period during which the ordinance is operative. We cannot so hold. It would, we think, scarcely be contended that the city might not license another competing company to use its streets, etc., for the purpose of furnishing a necessity to the inhabitants thereof. Detroit, etc., R. Co. v. Railway, 171 U. S. 48 (18 Sup. Ct. 732); City of Joplin v. Light Co., 191 U. S. 150 (24 Sup. Ct. 43); Knoxville Water Co. v. Knoxville, 200 U. S. 22 (28 Sup. Ct. 224). If it may do this, why may it not itself engage in such competition ? Sections 23 and 24 of article 8 of the Constitution of 1909 clearly clothe cities and villages with the necessary authority to engage in such enterprises under the restrictions there imposed. But it is said by complainant:

“ It does not appear to be seemly that there should exist a condition of affairs which is certain to bring about competition between the city and private parties, bringing loss to all concerned, without profit or advantage to the city or anybody else.”

The “certainty of loss to all concerned” apprehended by complainant rests solely upon supposition. There is no evidence to support the prediction. But, even if it were conclusively proven that this undertaking would result in loss to the city as well as to complainant, the courts would be powerlesB to restrain the city from its proposed course. Its power is complete and undoubted, its electors are dealing with their own money, and, if they choose to invest it in losing enterprises, so long as they comply with the law, it is their own concern. See Hamilton Gaslight & Coke Co. v. City of Hamilton, 146 U. S. 258 (13 Sup. Ct. 90);. Knoxville Water Co. v. Knoxville, supra. We are of opinion that the learned circuit judge reached a proper conclusion.

The judgment is affirmed.

Ostrander, C. J., and Bird, Steere, Moore, MoAlvay, Blair, and Stone, JJ., concurred.


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    TOMS v. VREELAND.
    Trial — Conduct of Court — Prejudicial Remarks of Trial Judge.
    In an action brought by a sister-in-law of defendant to recover for board and other services furnished to defendant’s wife, it was error for the court to state, during the taking of testimony, that plaintiff had proved her theory, that defendant was bound to pay for his wife’s board, etc., and to intimate by other remarks his opinion that plaintiff was entitled to recover.
    Error to Wayne; Donovan, J.
    Submitted June 19, 1911.
    (Docket No. 94.)
    Reargued October 16, 1911.
    Decided November 3, 1911.
    Assumpsit by Sarah S. Toms against Charles T. Vreeland for services, etc., rendered to defendant’s wife. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Edward M. Pining, for appellant.

      James H. Pound, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant in an action of assumpsit for services claimed to have been rendered in boarding, caring for, and providing clothing, medicines, and the services of a physician for the wife of defendant. Defendant asks for a reversal by this court on account of errors claimed to have been committed by the court during the course of the trial. (

The record shows that defendant and his wife lived on a small farm of 30 acres, owned by the entireties, near Eloise, in Wayne’County. The wife was somewhat mentally unbalanced. He desired her cousin, a Mr. Reed, who with his wife lived in Detroit, to take Mrs. Vreeland into his home for a short time to see if they could do something for her, and for the purpose of treatment at Detroit, and asked Reed and his wife to come out to his place and bring Mrs. Vreeland back with them. Defendant had told them that his wife was not in her right mind, and that she had left his home and gone to the house of a neighbor. She was found there by Mr. Reed, and went to her own home with them, and from there was brought by them to Detroit. Defendant told them that when they could no longer keep her to send for plaintiff, her sister, to take her. Mrs. Vreeland remained at Reeds’ two or three weeks, and during the most of that time was very sick. Plaintiff was sent for by them. She came and helped nurse her sister until she could be moved, when she took her to her own home.

Afterwards, on April 14, 1904, and while Mrs. Vreeland was at the home of plaintiff, Mr. Reed wrote to defendant a letter, in which he stated:

I just want to see you in regard to Jane [Mrs. Vreeland], and see which is the cheapest way to treat her, if she is to be treated. I think we can devise some plan when I see you.”

The record does not show that anything resulted from this letter, and defendant’s wife remained with plaintiff. In June, 1904, it appears from the record that the parties to this suit had a settlement in full to that date for all services and charges of plaintiff. The foregoing facts appear to be undisputed. The claim of the plaintiff is for board, etc., furnished from June, 1904, until December, 1907, for which she recovered a judgment for $1,541.55. She testified that defendant left his wife at her home, and never came there afterwards, or had any dealings with her in relation to his wife.

Defendant claims that on June 4, 1904, he paid the plaintiff in full to June 17th, and at the same time told her he could not afford to pay any longer; that on or before the date last mentioned he notified plaintiff by registered letter that he would not pay his wife’s board any longer, and produced the receipt card signed by her; that he also advertised in the Detroit Times that he would pay no debts of his wife’s contracting, and sent plaintiff by mail a marked copy. He also claims that he has always been ready and willing to support and care for his wife at home; that they never quarreled, and plaintiff broke up his home; that on June 15, 1904, his wife wrote him the following letter in evidence:

“Dear Charlie:
“We intend to come out Sunday, June 19, 1904, if nothing happens. Please be there and meet us at Eloise station at 2 o’clock in the afternoon. Please write soon and let me know how you are. Goodbye, from your wife, Jennie.”

Upon the facts in the case, which are in dispute, there was a sharp disagreement between the parties.

Many errors are assigned upon the remarks of the court, interjected during the trial, in commenting and passing upon objections in the presence of the jury, claimed by defendant to have been clearly prejudicial to him. Sufficient of these statements will be quoted to indicate their character, as follows:

Plaintiffs Attorney: The theory is that this woman was taken away at the request of the defendant, and that he never got her back.
Defendant’s Attorney: There are two theories. Mr. Pound has one, and I have the other.
The Court: He has proven his one.
“Defendant's Attorney: I am trying to prove by cross-examination mine.”

Further colloquy occurred, and the court said:

“We are suing for the time when he said, ‘Reed, you take her home, and when you cannot take care of her turn her over to Mrs. Toms.’ Passed her off his hands. You might just as well engage pasture for a horse or feed for a cow. Made a bargain. He said, ‘ You go and take care of her,’ and he was bound to pay for her so far.”

Later the court said:

“ You go on and put in your case, and you will never get your case out of their side. You will have to make it yourself.”

To which statement defendant excepted, and the court added, “If you have a case.” Later, when counsel for defendant was cross-examining plaintiff, the court interposed the following:

The Court: Did he, either by talk or act, express to you that he wanted her taken care of, or did he want her turned out like an animal to die ? Tell the jury that.”

From the foregoing quotations, it clearly appears that the jury must have understood the attitude and personal opinion of the court upon the subject under consideration. Such conduct, to say the least, was unfortunate and without excuse, and constituted prejudicial error. We find nothing in the conduct of the attorney which will warrant the criticism which may be inferred from some of the remarks of the court. This court has held much less pointed statements made by the trial judge, both as to the facts and the treatment of an attorney in a case, not permissible. Wheeler v. Wallace, 53 Mich. 355 (19 N. W. 33, 37); People v. Hare, 57 Mich. 505, 515 (24 N. W. 843); McDuff v. Journal Co., 84 Mich. 1, 9, 10 (47 N. W. 671, 22 Am. St. Rep. 673); Williams v. West Bay City, 119 Mich. 395 (78 N. W. 328); In re Stockdale’s Estate, 157 Mich. 606 (122 N. W. 279), and cases cited; Fors v. Fors, 159 Mich. 159 (123 N. W. 579), and cases cited.

Some errors were assigned to portions of the charge which would warrant the application of the same rule, but, as a repetition upon another trial is improbable, the matter requires no discussion.

The judgment is reversed, and a new trial ordered.

Ostrander, O. J., and Bird, Steers, Moore, Brooke, Blair, and Stone, JJ., concurred.


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    LYTLE v. PETERS.
    1. Trover and Conversion — Actions—Conversion oe Monet.
    Plaintiff procured from the tenant of a fruit farm a note and a mortgage securing an indebtedness due him covering the tenant’s interest in the grapes grown upon the farm that season. Under the tenant’s lease the landlord had a mortgage lien upon the produce of the farm, and it provided that one-half the crops should be delivered at a specified market, and all fruit should be shipped in the name of the landlord; in accordance with the provisions of the lease the tenant shipped the grapes to a fruit growers’ association in the landlord’s name. Thereafter, plaintiff got an order from defendant, the tenant, to the fruit growers’ association to pay plaintiff the amount of his claim. The landlord refused to consent to or sign the order, and caused the funds to be paid to him. Held, in trover against the landlord for conversion of the grapes, that plaintiff had misconceived his form of action, and no conversion of the fruit was shown.
    2. Same.
    The refusal to pay over the money was not such a conversion as to support an action of trover.
    Error to Van Burén; Des Voignes, J.
    Submitted June 19, 1911.
    (Docket No. 99.)
    Submitted to full bench October 16, 1911.
    Decided November 3, 1911.
    Trover in justice’s court by David Lytle against the Southern Michigan Fruit Association, Fred Young, and James N. Peters. From a judgment for plaintiff against defendants Peters and Young, said Peters appealed to the circuit court. Discontinuance as to the Southern Michigan Fruit Association was entered. Judgment for plaintiff. Defendant Peters brings error.
    Reversed, and no new trial ordered.

      L. A. Tabor, for appellant.

      David Anderson, for appellee.
   Blair, J.

On the 22d day of November, 1906, James N. Peters, the defendant, entered into a contract with one Fred Young, whereby he leased to Young 247 acres of land in Van Burén county, containing a vineyard, for the term of three years. In consideration of the lease, Young agreed ‘5 to farm all said land and work it in due time and in a good, thorough, workmanlike and farmerlike manner, and plant and sow and.raise such crops as said parties shall mutually agree upon from time to time, and deliver one-half of everything raised on said farm at market in the village of Lawton in due season.” By a further provision of the lease, “all fruit is tobe shipped in the name of first party. ” The lease also contained a mortgage clause covering “all the produce of the said tillable land, whether harvested or not,” to secure compliance with its terms. On February 6, 1909, Young, being indebted to plaintiff, David Lytle, executed a note to him for $50, and, to secure the payment thereof, executed a chattel mortgage covering “his share of the grapes grown on the farm he has rented of J. N. Peters.” Young shipped the grapes grown on the leased land through the Southern Michigan Fruit Association.

“ I harvested the grapes in 1909. I harvested all that were picked. After I picked them, I drawed them to the association and unloaded them, and shippped them in Mr. Peters’ name. The receipts were taken in Mr. Peters’ name. I directed them to be taken in his name. I don’t know who sold the grapes I delivered in Mr. Peters’ name. I don’t think Mr. Peters sold them. Mr. Peters did nothing personally in relation to the grapes. In harvesting and delivering the grapes in 1909, I suppose I was acting under my contract witji Mr. Peters.”

After the delivery of the grapes to the association, an attorney for plaintiff obtained Young’s signature to the following written order:

“To the Southern Michigan Fruit Association: Please pay to Mr. Lytle the sum of $53.25, and charge the same to Mr. Young.”

This order was presented to defendant Peters, and he refused to sign it. The net proceeds of the grapes were paid by the association to defendant Peters.

Plaintiff brought an action of trover in justice’s court against the Southern Michigan Fruit Association, Fred Young, and James N. Peters for the alleged conversion of his interest in the grapes, but entered a discontinuance later on as against the association. Young made no defense in the circuit court on appeal, and verdict was returned and judgment entered against him and Peters. Peters brings the case to this court for review.

The declaration was as follows:

“For that whereas, on, to wit, the first day of December, 1909, at the township of Porter, in said county, said defendant Fred Young was justly and legally indebted to this plaintiff in a large sum of money, to wit, one hundred dollars, which was then due and payable, and said plaintiff also held as security for said indebtedness a certain chattel mortgage, duly executed and delivered by said Fred Young to this plaintiff, and duly filed for record by or on behalf of plaintiff in the office of the town clerk of Porter township, said county, which said chattel mortgage covered all the interest, of said Fred Young in and to the grape crop for the year 1909, growing and being on the farm of said defendant James N. Peters, in said township of Porter, where said defendants Young and Peters then and there resided; and plaintiff avers that while said indebtedness was still unpaid, and while said chattel mortgage was a valid and subsisting lien on said property, the said defendants above named did convert the said interest of said Fred Young in and to said grape crop to their own use, and, although said indebtedness is still unpaid, did refuse and have refused and neglected to deliver said property so covered by said chattel mortgage to this plaintiff, although often requested so to do, to the damage of plaintiff one hundred dollars, and therefore he brings suit.”

Such rights as the plaintiff acquired under his mortgage were subordinate to the rights of the defendant Peters under the contract with Young. The contract not only authorized, but required, all fruit which was shipped to be shipped in the name of Peters, and, by implication, that the net proceeds should be paid to Peters. What was done by Young was in strict accord with Peters’ contract rights, and in no wise constituted an unlawful conversion of the grapes, or of Young’s interest therein. If there was a conversion, it resulted from the refusal to pay over upon demand Young’s share of the money. But the refusal to pay over the money did not constitute such a conversion as to support an action of trover. Furthermore, the declaration does not count upon a conversion of the money received upon sale of the fruit, but upon an unlawful conversion of the fruit itself. Alfred Shrimpton & Sons v. Culver, 109 Mich. 577 (67 N. W. 907).

We are therefore of the opinion that the circuit judge erred in instructing the jury upon the subject of demand as follows:

“ Now, as to the question of the demand, I can’t see the difference between the notice that was sent in the pattern case which you have cited ([Galvin v. Iron Works] 81 Mich. 16 [45 N. W. 654]), a Michigan case, where they wrote á letter, saying, ‘You will please deliver to John Doe the patterns. [Describing them.] ’ I can see very little difference than what is conceded in this case, when the attorney for the plaintiff said in this case — said to the defendant, presenting him with a paper written as follows: ‘ Southern Michigan Fruit Association: You will please pay to Lytle the sum of $53 — and it clearly appears and is undisputed that the defendant declined to sign that order. I think from that it is clearly manifest in the light of the decisions that there was a demand, and it may be construed and considered as one.”

Although there was actually no occasion for any demand as a basis for suit, the reason is not that assigned by counsel for plaintiff, viz., that, there having been an unlawful conversion, and the grapes having passed out of the control of defendants, a demand would have been an idle ceremony, but because the grapes had been lawfully converted into money, for which an action of trover would not lie. In our opinion, the plaintiff has misconceived his form of action, and we therefore refrain from discussing the other interesting questions involved.

The judgment is reversed as to defendant Peters, and no new trial ordered.

Ostrander, O. J., and Bird, Steers, Moore, Mc-Alvay, Brooke, and Stone, JJ., concurred.