text:
    WHITE MARBLE LIME CO. v. CONSOLIDATED LUMBER CO.
    1. Specific Performance — Adequate Remedy at Law.
    On a bill for specific performance, where defendant breached its contract to furnish to plaintiff slabs and edgings cut into four-foot lengths so far as the production of its mill would enable it to do so, by contracting its product to another concern, plaintiff in reliance upon said contract haying built a large and expensive plant, the finding "of the court below that plaintiff's remedy at law is inadequate, held, correct.

      2. Same.
    That defendant voluntarily contracted its product to plaintiff and another, both innocent parties, and placed itself in a position where it cannot fulfill both contracts, is no reason why the plaintiff, whose contract came first in point of time, should not have specific performance.
    3. Same.

      Held, that the contract, when construed in the light of the circumstances existing at the time it was made, is not ■ uncertain or ambiguous.
    Appeal from Schoolcraft; Fead, J.
    Submitted February 6, 1919.
    (Docket No. 91.)
    Decided May 29, 1919.
    Rehearing denied July 18, 1919.
    Bill by the White Marble Lime Company against the Consolidated Lumber Company and the Thomas Berry Chemical Company for the specific performance of a contract. From a decree granting partial relief only, plaintiff appeals.
    Modified and affirmed.

      Warner & Sullivan and. William J. Morgan, for plaintiff.

      A. E. Miller and E. A. Macdonald, for defendant lumber company.

      Beaumont, Smith <& Harris, for defendant chemical company.
   Stone, J.

The bill of complaint herein was filed to compel the defendant Consolidated Lumber Company to perform a contract for the sale and delivery to the plaintiff of certain slabs and edgings, and to enjoin the sale of said slabs and edgings to any other party than the plaintiff, or the conversion by the said defendant of said slabs and edgings to its own use. From a decree granting partial relief only, plaintiff has appealed. Neither of the defendants has appealed.

In a general way the salient facts are as follows:

On August 7, 1889, the Chicago Lumbering Company, a Michigan corporation, was engaged in lumbering and operating sawmills at Manistique, Michigan, and owned a large part of what now constitutes the city of Manistique, including certain undeveloped limestone lands. In its sawmills it produced a large quantity of slabs and edgings which it used largely in building docks and for fuel, selling what it could, and had such a surplus that it was put to considerable expense in burning them, and it still had large quantities thereof on hand. Under these circumstances, in order to rid itself of the expense of disposing of its slabs and edgings, and to develop the said limestone lands and get lime for its own use in its building operations, and to help to build up the town in which it was largely financially interested, it entered into the contract of 1889, set forth in the bill of complaint, to which attention is called.

This contract was the reason for, and basis of, the organization of the plaintiff corporation. Pursuant to the plans and agreements of the parties, the Chicago Lumbering Company paid for half of the stock of the plaintiff, which was issued to the stockholders of the lumbering company pro rata, who in that way subsequently received their share of all the profits made by the plaintiff company. Relying upon this contract the plaintiff built a large and expensive plant at Manistique and has developed a large business. The plant was built upon land adjacent to the yards of the lumbering company, and a narrow-gauge railroad track was built for the purpose of conveying the slabs and edgings to the plaintiff’s plant, and was used continually for that purpose until the defendant Consolidated Lumber Company refused to make further delivery. About August 6, 1902, the plaintiff purchased the land theretofore leased and a modification of the contract of 1889 was agreed to, which is also set forth in the bill of complaint, and the relevant part of which is as follows:

“And the party of the first part hereby agrees to furnish to the party of the second part, slabs and edgings cut into four-foot lengths and delivered on cars or wagons to the premises of the party of the second part, in such quantities as the party of the second part may require for their lime kiln business at Manistique and Marblehead, to be taken directly from the mill so far as the production of their mill may enable them to do so, which said second party agrees to pay for at the rate of sixty-five (65) cents per cord delivered, reserving what wood the said first party may need for its own use.”

In 1912, the Chicago Lumbering Company and the Weston Lumber Company made an agreement with W. S. Crowe and Louis Yalomstein by which the latter were to form a corporation, the evident purpose of which was to take over the business of such concerns for a consideration and under conditions therein named, among them being the assumption of the slab contract of 1902. In pursuance of such agreement the Consolidated Lumber Company was organized, in 1912, with Messrs. Crowe, Yalomstein and V. I. Hixon, their attorney, as stockholders, directors and officers. Formal transfers of the title to the real estate, and certain personal property were provided for in the agreement, and were duly made by the lumber companies to Crowe and Yalomstein, and by the latter to the Consolidated Lumber Company. On January 3, 1916, George H. Brusie, acting for himself and associates, entered into a contract with the Consolidated Lumber Company, and organized the Thomas Berry Chemical Company for the purpose of building a plant .and operating under said contract. The contract was 'assigned to, and assumed by, the chemical company, andxa plant constructed at large expense in reliance upon said contract; by which contract the lumber company agreed, among other things, for a term, of 15 years, with an option in the chemical company for renewal for ten years, “to sell and deliver to the chemical, company at the boiler room of said chemical company, or at a bin to be built adjacent to said boiler room, hogged fuel, from its sawmill, sufficient to furnish steam and fuel required by the chemical company in its. still house and retort plant, to be erected as hereinbefore stated, at 50 cents per cord; and to sell and deliver to the chemical company all of the mill wood suitable for retort wood, that said lumber company may produce in said sawmill, and that said chemical company may require in its business,” at $8.00 per cord. The chemical company plant was completed, and began operations about November 1, 1916.

The plaintiff had no knowledge of the intention of the lumber company and the chemical company to make a contract, the enforcement of which would interfere with the lumber company’s performance of its slab contract with the plaintiff; and it is claimed by the plaintiff that it had no reasonable ground for believing that the chemical company was about to enter into a contract that would interfere with the plaintiff’s rights.

The Chicago Lumbering Company, in 1889, and until about 1908, was engaged principally in the cutting of soft wood. Thereafter, it cut hard wood, in constantly increasing quantities as its supply of soft wood timber diminished, and, it having been conceded that plaintiff’s contract, by reason of the practical construction of it by the parties, did not cover hardwood, the amount of slabs and edgings furnished plaintiff necessarily decreased with the decreasing production of the mill.

In 1913 the defendant lumber company installed improved machinery, which began effective operation in 1915, the result of which was to further reduce the amount of slabs and edgings produced in the mill. The plaintiff concedes that it has no fault to find with the failure to furnish slabs due either to the diminishing supply of soft wood or the installation of this improved machinery.

It will be noted that- the contract of 1916, between the defendants, calls for the furnishing of hogged fuel by the lumber company to the chemical company, “sufficient to furnish steam and fuel required by the chemical company in its still house and retort plant.” In connection with this deal with the chemical company, the lumber company, in March or April, 1917, installed a new hog of large capacity, discontinued the burner and rearranged and extended its conveyor system to make more room for sorting out slab wood, short lumber and wood for lath, etc. This change in the conveyor system gave more room for picking out the slabs and edgings, and conveyed the material to the hog automatically; whereas, before the change, all material for the hog had to be handled by hand. The change made it possible to take more material from the conveyor. Since the change was made the defendant lumber company has been taking from the conveyor soft wood slabs for the manufacture of lath, heavy soft wood slabs, hardwood slabs for the manufacture of squares, hardwood slabs for mill wood and soft wood slabs for fuel.

It is plaintiff’s contention that its contract calls for the delivery of (soft wood) slabs and edgings cut into four-foot lengths, in such quantities as it may require for its lime kiln business, so far as the production of the lumber company’s mill may enable it to do so, reserving what wood the lumber company may need for its own use.

Prior to the contract with the chemical company this reservation did not materially affect the delivery of soft wood slabs and edgings to plaintiff, but the sale of hogged fuel to the chemical company has resulted in entirely cutting off plaintiff’s supply of fuel under its contract with defendant lumber company, no slabs or edgings having been furnished plaintiff in 1917 or 1918.

It is claimed by defendant lumber company that its failure to furnish plaintiff slabs and edgings under its contract is due to the fact that they are needed for its own use for fuel, and, therefore, come within the express reservation of the contract.

Plaintiff’s position, as stated in the opinion of the learned circuit judge, is as follows:

“As the defendant has the right to make proper changes in its method of operation, even to the plaintiff’s detriment, it must be evident that the converse of the proposition is true, and the plaintiff is entitled to the benefit of any change which will decrease the amount of four-foot slabs which it is necessary to use for fuel. There has. been no release by concession, or shown in the testimony, on the part of the plaintiff, of the hardwood product other than slabs and edgings. The plaintiff, is entitled as against the defendant lumber company, to have all the hogged fuel applied by defendant to its own use before it may resort to the soft wood slabs and edgings.”

The plaintiff claims to be so entitled as against both defendants.

Upon the hearing below the defendants claimed that plaintiff was not entitled to relief for the following reasons:

(1) Thd'6 the contract was uncertain.^

(2) That the contract was void for want of mutuality.

(3) That the plaintiff had an adequate remedy at law.

(4) That the contract was never assumed by the ■ Consolidated Lumber Company.

(5) That the testimony failed to establish a breach of the contract.

(6) That a decree for specific performance would be impracticable, because it would require continuous supervision of the court.

(7) That specific performance would be detrimental to the public interest.

(8) That specific performance is refused where the rights of innocent third parties have intervened.

The first six of these defenses were found against the defendants in the court below, and we are satisfied that such finding was supported by the evidence, and we agree with the circuit judge in the disposition of these questions.

It may be said that the question of public interest has been taken out of the case by the practical termination of the war, and so much of the record as refers to the orders of the war industries board may be disregarded.

Although the defendants have not appealed, it is their position that, although they are concluded by the decree as. it stands, they are still permitted to question any decision of fact or law by the lower court which bears upon the question whether further relief should be granted; and with that end in view, to wit, to cut off any further relief, the claims of the defendants are argued at length by counsel in this court.

We fully agree with the court below upon the subject of adequate remedy at law, and approve of the following language in the opinion:

“That plaintiff’s remedy at law is not adequate is plain. The limited nature and uncertainty of the market, the necessity for going into other markets where competition is keen for a supply, the inconvenience and labor of finding a supply, the disarrangement of plaintiff’s business and calculations for the future, the impracticability of determining the damages accurately, and the multiplicity of suits which would be necessary to obtain recompense, render the situation one which cannot adequately be compensated at law. 16 Cyc. p. 41, et seq.”

Upon the subject of the remedy the circuit judge, among other things, said:

“It would, manifestly, require the constant supervision of the court for a long time to enforce a decree which would order the defendant lumber company, for the next eleven years, to saw into four-foot lengths and pile out, all the soft wood slabs and edgings capable of being so sawed. It is impossible to frame a decree which would determine the size in thickness of the slabs covered by the contract, or would specify the amount of slabs needed by the lumber company for fuel, or would determine in advance the method of manufacture which would be .proper to be used in the mill.
“This difficulty in framing a decree which would cover all the rights of the plaintiff in the contract, prohibits full relief to it. In such case, the plaintiff is entitled to partial relief, if it so elects. A decree may be prepared by plaintiff along the following general lines, the details to be worked out and presented for settlement by counsel:
“1. The defendant lumber company be prohibited from selling or disposing of any soft wood slabs, other than four-foot, except such as it may convert into hogged fuel, or may itself use direct for fuel.
“2. It be prohibited from selling or disposing of hogged fuel except to the chemical company under its present contract, or to use as fuel in its own plant.
“3. It be prohibited from selling or disposing of its four-foot soft wood slabs and edgings, except for use by itself as fuel in its plant after exhausting its supply of hogged fuel, and soft wood slabs and edgings other than four-foot, and except in the manufacture of lumber and lath by itself.
“4. It be required to deliver to plaintiff under the contract all four-foot soft wood slabs and edgings, after providing for its manufacturing and fuel requirements as above.
“In case plaintiff shall not elect to accept such partial relief and present a decree for settlement within thirty days, a decree dismissing the bill may be presented by defendants.”

A decree was finally settled and signed within the thirty days, from which plaintiff has appealed.

The questions of the continuing rights of the plaintiff and of the Thomas Berry Chemical Company, and the claim that plaintiff must be deprived of its rights because the rights of an innocent third party have intervened, should be considered. After a careful examination of this record, it appears to us that the defendant Thomas Berry Chemical Company has no superior equities which should deprive the plaintiff of its right to an enforcement of its contract. The defendant Consolidated Lumber Company having agreed to sell and deliver all its soft wood slabs and edgings to the plaintiff, if needed, so far as the production of the mill would enable it to do so, and reserving what wood the said defendant might need for its own use, after carrying out that contract for a time, found another and probably more profitable method of disposing of such slabs and edgings under its contract with the defendant Thomas Berry Chemical Company. The, plaintiff’s contract was first in time, therefore first in right.

The decree of the court below gives, the chemical company paramount rights as against the plaintiff. In our opinion it has no such rights; its contract was subsequent to that of the plaintiff, and the plaintiff is entitled to have its contract performed independent of the contract with the chemical company, and as though that contract had never been made. It may be said that both the plaintiff and the chemical company are innocent parties, but that does not meet the question, or dispose of the right of the plaintiff to have its contract performed by the Consolidated Lumber Company. It appears that the defendant Consolidated Lumber Company has made two contracts, both of which it is obligated to perform, and both of which were made with innocent parties; that with the plaintiff being first in time. If the defendant Consolidated Lumber Company is not complying with both contracts, it is because it has placed itself voluntarily in that predicament, and there is no reason why the plaintiff should not have specific performance of its .contract according to its spirit and letter. The conjtract, when construed in the light of the circumstances [existing at the time it was made, is not uncertain or ambiguous. Ardis v. Railway Co., 200 Mich. 400, 411.

The language of the contract with plaintiff provides that the defendant Consolidated Lumber Company shall furnish slabs and edgings so far as the production of its mill may enable it to do so; not so far as its other subsequent fuel contracts may enable it to do so. It is urged by plaintiff, and we think rightfully, that the production of the lumber company’s mill would enable it to furnish the plaintiff practically all of the soft wood slabs and edgings it produced, were it not for the requirements and demands of the Thomas Berry Chemical Company. We approve of the following language of the circuit judge in his opinion:

“The contract renders plain the obligation of the defendant to dispose of no soft wood slabs or edgings except for the benefit of the plaintiff. The defendant is obligated to use the soft wood slabs, other than four-foot, for its own fuel purposes before resorting to the four-foot slabs. And it has no right to sell of dispose of them elsewhere, if, by so doing, it would necessitate the use of four-foot slabs for fuel. The defendant is bound to furnish four-foot slabs and edgings to plaintiff as far as the production of the mill will permit, which requires the use of other waste first.”

The objections to the specific performance of this contract, as now asked for by the plaintiff, are, in our opinion, theoretical rather than practical. An amendment of the decree appealed from, substantially as indicated by the plaintiff, would not require the supervision of the court, would protect the rights of the plaintiff under the contract, and would be doing substantial justice by carrying out the intention of the parties.

There is no evidence in this record that the defendant Consolidated Lumber Company is not financially responsible and able to respond in damages to the chemical company if the former has breached, or shall breach, its contract with that company. In its contract with the chemical company it does not reserve to itself the right to use any material that it might need for its own use. If there must be loss or damage, equity requires that it should fall upon the party responsible for the condition which makes the loss inevitable. In our opinion the equities of the case are with the plaintiff.

The decree below will be modified in accordance with this opinion, and as so modified will be affirmed, with costs to the plaintiff against the defendant Consolidated Lumber Company.

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


source: Caselaw Access Project

author: Kuhn, J. Ostrander, J.

license: Public Domain

text:
    PRESTON v. PRESTON.
    1. Husband and Wife — Witnesses—Reformation of Instruments —Deeds—Statutes.
    On a bill by a daughter against her father to reform a deed conveying an estate by the entireties to himself and wife to conform to an oral contract between the parents whereby they agreed that, on condition the mother release her dower and homestead rights in a farm, the deed to the premises to be received therefor should convey to them a life estate with remainder over to the daughter,” held, that the situation presented rendered inapplicable the provisions of 3 Comp. Laws 1915, § 12555, providing that a wife shall not be examined as a witness for or against her husband without his consent, and that the testimony of the daughter and others as to the conversation between the husband and wife, the latter being dead at the time of the hearing, was properly received to establish the contract.
    2. Frauds, Statute of — Parol Contract — Performance.
    An oral contract between a father and mother whereby the latter released her dower and homestead rights in a farm on condition that the deed to lands to be received therefor should convey the title to the daughter subject to a life estate in the parents, having been performed by the mother, the statute of frauds has no application in an equitable proceeding to enforce the contract.
    3. Contracts — Parties—Right of Third Party to Maintain Suit —Statutes.
    Under 3 Comp. Laws 1915, § 12361, providing that “in all equitable actions, persons having an interest in the subject of the action and in obtaining the relief demanded, may join as plaintiffs,” a daughter, in whose interest a contract between the father and mother was made, could maintain an equitable proceeding against the father to enforce the contract, although plaintiff was not a party thereto. Ostrander and Stone, JJ., dissenting.

    4. Equity — Reformation of Instruments — Deeds — Mistake — Voluntary Conveyance — Consideration.
    The rule that “a court of equity will refuse its aid to rectify a místate In a conveyance that is voluntary and without consideration unless all of the parties consent,” has no application in proceedings to reform a deed to comply with a contract, whereby the mother released her dower and homestead rights in a farm on condition that the deed in question convey land to the daughter subject to a life estate in the parents.
    Appeal from Newaygo; Barton, J.
    Submitted January 29, 1919.
    (Docket No. 48.)
    Decided May 29, 1919.
    Opinion on rehearing, 207 Mich. 681.
    Bill by Nettie Preston against Shinar Preston and others -for the reformation of a deed. From a decree for plaintiff, defendants appeal.
    Affirmed.

      William, J. Branstrom and Charles B. Cross, for plaintiff.

      White & Beber and Cogger & Cogger, for defendants.

      See notes in 25 L. R. A. 257; 2 L. R. A. (N. S.) 783.

   Kuhn, J.

An appeal is taken from the following decree, which sufficiently sets forth facts for a proper understanding of the case here presented to us:

“This cause having come on to be heard upon the pleadings and proofs taken therein, the proofs having been taken in open court as in a suit at law, and having been argued by counsel for the respective parties, and the court having had the same under advisement and having duly considered the same, doth find:
“1st. That Nettie Preston, the complainant, is the daughter of Shinar Preston and Eugenia Preston, now deceased, and that for a great many years the said Nettie Preston has been physically incapacitated to care for herself, due to the loss of her eyesight and other physical ailments.
“2nd. That on or about April first, 1913, the said Shinar Preston and Eugenia Preston made arrangements with their son, Kearney Preston, for the exchange of certain properties, more fully described in the bill of complaint in said cause, and the court doth find that the said Eugenia Preston, who at that time was the wife of Shinar Preston, and who at that time, because of being such wife, had a dower interest in all the real estate of Shinar Preston, before she would sign a deed conveying to her son, Kearney Preston, real estate owned by her husband, Shinar Preston, demanded of her husband, in consideration of her signing said deed:
“First, that she receive $1,000 in cash.
“Second, that her daughter, Nettie, receive $1,000 in cash.
“Third, that Shinar Preston care for Nettie Preston as long as he live.
“Fourth, that the deed conveying lot four (4) of block twelve (12) of the Empire Company’s plat of the city of Fremont, Michigan (property to be taken in exchange for real estate sold Kearney Preston by Shinar Preston), from Kearney Preston and wife to Shinar Preston and wife, be fixed in such a way that after the death of Shinar Preston and his wife, Eugenia, the said property would revert to Nettie Preston, or in other words, Shinar Preston and Eugenia Preston to have a life estate, with remainder, to Nettie Preston.
“3rd. That before the real estate dealings were concluded between Kearney Preston and his father, Shinar Preston, the said Shiner Preston agreed to and with his said wife, Eugenia Preston, that for and in consideration that she join in executing a deed to certain real estate- then owned by Shinar Preston and proposed to be conveyed to Kearney Preston, that he would:
“First, give his wife, Eugenia Preston, $1,000.
“Second, give his daughter, Nettie, $1,000.
“Third, he would support Nettie as long as he lived.
“Fourth, that he would have the deed conveying lot four (4) of block twelve (12) of the Empire Company’s plat in the city of Fremont, Michigan, from Kearney Preston and wife to Shinar Preston and wife, Eugenia, in such a way that he and Eugenia Preston would take a life estate, jointly, and the remainder over to Nettie Preston.
“4th. That the deeds of conveyance were prepared at the suggestion of the said Shinar Preston, but instead of having the deed of conveyance from Kearney Preston and wife to Shinar Preston made in accordance with the said agreement between Shinar Preston and his wife, Eugenia Preston, the same was made out conveying the property jointly to Shinar Preston and Eugenia Preston as of an estate by the entireties, which was knowingly and fraudulently done on the part of Shinar Preston in direct violation of his agreement with Eugenia Preston, and in fraud of the rights of the complainant, Nettie Preston.
“5th. That after the said deeds of conveyance had been exchanged between Shinar Preston and wife and Kearney Preston and wife, the said Eugenia Preston returned to her home and informed the complainant, Nettie Preston, that the papers, meaning the deeds of conveyance, had been fixed up in accordance with the said agreement between her and Shinar Preston; that the said Shinar Preston also returned to his home and informed his son, Albert Preston, who was then working for him, that the papers, meaning the deeds of conveyance, had been fixed up in accordance with the said agreement between himself and his wife, Eugenia Preston.
“6th. That the said Shinar Preston paid his wife, Eugenia Preston, $1,000, that he paid his daughter, Nettie Preston, $1,000; that he maintained Nettie Preston until shortly after his marriage with his second wife,_ Hannah V. Preston, since which time, the said Nettie Preston has been a charge and care upon others.
“7th. That just prior to the commencement of this suit, the said Shinar Preston, in a conversation with several of his sons, admitted making an agreement such as is herein stated with his wife, Eugenia Preston ; that at the time of the dealings between Kearney Preston and Shinar Preston the papers were not fixed up in accordance with the agreement; that he would do as he agreed; that he and his second wife, Hannah V. Preston, were going away on a pleasure trip, and that as soon as they returned, he, the said Shinar Preston, would make the matter right with Nettie Preston.
“8th. That on the day following said conversation the said Shinar Preston procured deeds of conveyance to be so executed as to apparently vest title in and to lot four (4) of block twelve (12) of the Empire Company’s plat in the city of Fremont, Michigan, in the name of Shinar Preston and Hannah V. Preston, husband and wife, as of an estate by the entireties, all of which was done for the purpose of further complicating the situation and defrauding Nettie Preston of her just rights in and to said property.
“9th. That at and prior to the time of the execution of the deeds of conveyance last above mentioned, the said Hannah V. Preston had knowledge of said agreement between the said Shinar Preston and the said Eugenia Preston, and of the rights of said Nettie Preston in and to said property.
“10th. That the equities in this 'cause are all with the complainant; that the said agreement made between her deceased mother, Eugenia Preston, who was so solicitous for her welfare, and the said defendant, Shinar Preston, should be performed to the letter by the said Shinar Preston.
“Therefore, upon due consideration thereof, and upon motion of William J. Branstrom and Charles B. Cross, attorneys for complainant, it is ordered, adjudged and decreed, and the court now here doth order, adjudge and decree that the deed conveying that parcel of land described as lot four (4) of block twelve (12) of the Empire Company’s plat of the city of Fremont, Michigan, from Kearney Preston and wife to Shinar Preston and Eugenia Preston, being recorded in liber 108 of deeds, at page 128, in the office of the register of deeds in and for Newaygo county, Michigan, and all subsequent deeds of conveyance to the same parcel of land wherein the said Shinar Preston is grantor or wherein Shinar Preston and Hannah V. Preston are grantees, either as of an estate by the entireties or otherwise, be and the same hereby are declared null and void.
“It is further ordered, adjudged and decreed that Kearney Preston and wife execute a warranty deed conveying lot four (4) of block twelve (12) of the Empire Company’s plat in the city of Fremont, Michigan, to Shinar Preston for and during the rest and remainder of his natural life, with the remainder over to Nettie Preston, forever.
“It is further ordered, adjudged and decreed that the said Shinar Preston make suitable provision for the support and maintenance of Nettie Preston during his lifetime, and that upon his failure to do so, the said Nettie Preston may apply to this court for an order establishing and creating a lien upon the property of said Shinar Preston.”

Counsel for the defendants and appellants, Shinar and Hannah Preston, urge that this decree ought to be set aside for the following reasons:

“First: That even if this were a proper case for granting reformation on the ground of fraud, there was not sufficient competent evidence of fraud on the part of the defendant Shinar Preston.
“Second: That, even if there was sufficient competent evidence of fraud on the part of the defendant Shinar Preston to justify the court in decreeing a reformation of an instrument as between the parties thereto, still the plaintiff has no right to relief in this case, because a contract made between two persons for the benefit of another, a stranger to the consideration, will not support any action by the latter, either at law or in equity.
“Third: That equity will not reform a deed or other instrument for a volunteer without the consent of all parties thereto.”

1. It seems to be the contention of counsel for the appellants that all the testimony which was offered as to the agreement between Shinar Preston and his wife was inadmissible and improper because of section 12555, 3 Comp. Laws 1915, which says that a wife shall not be examined as a witness for or against her husband without his consent, and that if admissions made by the wife to third persons are admitted in evidence through the testimony of such third persons, the effect of the statute could be easily evaded. We are of the opinion that the situation presented by.this record does not bring the testimony offered within the scope of this statute. The testimony of the plaintiff and other witnesses was offered to show the agreement between the father and mother. Plaintiff, who is the real party in interest in the subject-matter of this litigation, in order to sustain her claim was forced to show the contract upon which she relied. Her testimony with reference to the conversation which she overheard on the day that the deeds were made, between her father and mother, seems clearly competent. We think that there was sufficient evidence to show that the contract was made, as claimed by the plaintiff, and that there was a substantial performance of this contract upon the part of the plaintiff, or on the part of the person through whom or by reason of whose act the plaintiff asserts her claim. The case presented is brought from under the statute of frauds, in accordance with the following decisions: Pike v. Pike, 121 Mich. 170 (80 Am. St. Rep. 488); Shearer v. Gibson, 128 Mich. 467; Ruch v. Ruch, 159 Mich. 234; Friend v. Smith, 191 Mich. 99; Bromeling v. Bromeling, 202 Mich. 474.

2. In support of the second contention advanced by counsel for appellants, it is broadly contended that the agreement made between two persons for the benefit of a third person, a stranger to the consideration, will not support any action by the latter either at law or in equity, and various decisions of this court on this question are cited and commented upon. In answer to this contention we think it is only necessary to call attention to section 10, chap. 12, Act No. 314, Pub. Acts 1915 (judicature act, 3 Comp. Laws 1915, § 12361), which provides :

“In all equitable actions, all persons having an interest in the subject of the action and in obtaining the relief demanded, may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant.”

This section is new, and was enacted since the decisions of this court relied upon by counsel for appellants. The plaintiff, clearly having an interest in the subject of the action and in obtaining the relief demanded, by virtue of this statute properly becomes a plaintiff in this equitable action.

3. In support of the third contention made by counsel for appellants, the case of Tuthill v. Katz, 174 Mich. 217, is relied upon, where this court said:

“It is a well-established rule that a court of equity will refuse its aid to rectify a mistake in a conveyance that is voluntary and without consideration unless of the parties consent.”

Clearly this rule of law is not applicable to the situation now before us. Eugenia Preston, according to plaintiff’s claim, which is substantiated by the evidence, was determined not to release her dower and homestead rights in the farm unless her husband had incorporated in the deed from the son the provision creating a life estate in herself and remainder over in her daughter in the property thereby acquired. Her signing the deed under these circumstances, furnished ample consideration for the agreement which is hereby sought to be enforced and takes it from under the rule relied upon.

''After a reading of this record we are satisfied that the decree of the court below reaches a most just and equitable result. The decree is affirmed, with costs to the appellee.

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

Ostrander, J.

(dissenting). Whatever feeling the physical Condition of plaintiff arouses, the case must nevertheless be determined according to applicable rules of law.

It is a novel idea that a statute, plainly intended to affect procedure only, may be used to change a settled rule of the law of contracts, to confer upon a person a legal right and interest in subject-matter where there was none before the statute was enacted. The idea is not advanced by counsel in the briefs. As mere matter of interpretation, the statute, section 10, chap. 12, Act Ño. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12361), negatives the idea. The words,—

“All persons having an interest in the subject of the action and in obtaining the relief demanded,”

■ — do not refer to persons having no legal interest in the subject-matter of the action, nor legal interest in obtaining relief. Can any one suppose that the legislature intended by this, statute to enact that hereafter, in equity courts, contracts (not creating trusts) made by two persons for the benefit of a third, not a party thereto, and from whom no consideration moved, may now enforce those contracts? The reason why a contract of two persons made for the benefit of a third person cannot be enforced by the third person is not that the third person could not become a party to an action to enforce it, but because the third party is not entitled by the contract itself to demand performance of any duty under it. See Knights of Modern Maccabees v. Sharp, 163 Mich. 449 (33 L. R. A. [N. S.] 780); Signs v. Bush’s Estate, 199 Mich. 192; Edwards v. Thoman, 187 Mich. 361.

I am impressed that plaintiff is without remedy and that her bill should be dismissed.

Stone, J., concurred with Ostrander,- J.


author: Ostrander, J.

text:
    HALLETT v. TAYLOR.
    1. Insurance — Beneficial Associations — Changing Beneficiary —Vested Interest — Contract Rights.
    While the general rule is that assured in a mutual benefit policy may change the beneficiary at pleasure, yet a beneficiary may acquire, by agreement with the assured, and by performance of the agreement, a vested interest in the policy or its proceeds, precluding assured from changing the beneficiary.1
    2. Same — Express Contract-Evidence — Sufficiency.
    Evidence held, insufficient to establish an express contract precluding assured from changing the beneficiary from plaintiff, her sister, to defendant, her husband.
    3. Same — Changing Beneficiary — Duress.
    Evidence held, insufficient to sustain the charge that the change was made under duress.
    4. Same — Promise to Pay Premiums — Vested. Interest — Contract Rights.
    A promise to pay the premiums is insufficient to create in the beneficiary a vested interest in the proceeds of the policy precluding the assured from changing the beneficiary.
    5. Same — Consideration—Membership in Local Lodge.
    The contention that a consideration moved to the assured by the continuance of her membership, entitling her to the social privileges of the local lodge by reason of the payment of dues and premiums by plaintiff, cannot be sustained, since this consideration would be present in every case where a beneficiary paid the dues and premiums.
    1See notes in 12 L. R. A. (N. S.) 1207; 33 L. R. A. (N. S.) 773.
    Appeal from Kent”, Perkins, J.
    Submitted January 21, 1919.
    (Docket No. 77.)
    Decided May 29, 1919.
    Bill by Anna Hallett against L. D. Taylor to establish her claim to the proceeds of a policy of insurance. From a decree for plaintiff, defendant appeals.
    Reversed.

      Irving H. Smith (C. C. Coburn, of counsel), for plaintiff.

      Smedley & Linsey, for defendant.
   Ostrander, J.

Ella Taylor, who was sister of the plaintiff and wife of the defendant, was insured by the Equitable Fraternal Union, the certificate naming the defendant, her husband, as beneficiary, the certificate being dated October 10, 1906. That certificate was surrendered and canceled and a new certificate insuring the life of the said Ella Taylor was issued by the said Equitable Fraternal Union, in which the plaintiff was named as beneficiary; this in February, 1908. Still later, upon the application of Mrs. Taylor, and in August, 1915, the beneficiary was again changed to the defendant, husband of the insured. The assured died in April, 1917. The plaintiff filed her bill in this cause, making the beneficiary, Taylor, and the insurer parties defendant, claiming the proceeds of the certificate. The insurer paid the money into court, and is not concerned with the result of the litigation.

The learned trial judge filed an opinion, the pertinent portions of which are here set out:

“The disputed and controlling question in this case is as to what took place between the assured and the plaintiff before the plaintiff was formally made beneficiary in this policy and the reasons that led the assured to make such change.
“The plaintiff claims, and there is competent testimony to support such claim, that in a conversation with her sister, at which the defendant Taylor was present, it was stated by the deceased, in substance, that her husband, the defendant and beneficiary, would no longer keep up the payments on this policy; that she was anxious to have the payments kept up so that she could receive the social advantages the maintenance of the policy would give her. That if the plaintiff would agree to make the payments and keep them up she would have her named as sole beneficiary and would not thereafter change the policy in this respect. Plaintiff claims that later she agreed to this proposition; that pursuant to such agreement the policy was changed and she was named as beneficiary; that she thereafter paid in advance the premiums and assessments until the beneficiary was later changed without her consent and the company would no longer accept payments from her.
“The defendant denies this agreement and claims that no such conversation took place as claimed by plaintiff. He claims that the payments made by the plaintiff on this policy were voluntarily made and that the right of the assured to change the beneficiary at any time she chose was never limited or abrogated by any agreement on her part made with the plaintiff.
“The change of the beneficiary from the defendant, Taylor, to the plaintiff, in 1908, while the assured was still in good health; the friendly relations existing between the assured and her sister, the plaintiff, until shortly before the change of the beneficiary to the defendant, Taylor, in 1915; the prompt payment of the premiums and assessments by the plaintiff during all these years; the fatal disease which later attacked assured, making certain her early death; the change of the beneficiary to the defendant while assured was in feeble health, and the refusal of the plaintiff to deliver up the policy which had been delivered to her on request, all convince me that the plaintiff’s claims are true — that she made these payments with the express understanding and agreement with the assured that she should be made the sole beneficiary. She has complied with her part of this agreement and has thereby acquired a vested interest in this policy.”

In accordance with the conclusion announced, a decree was entered.

Counsel do not disagree about the general rule that in such cases the insured may change the beneficiary at pleasure. They agree that a beneficiary may acquire, by agreement with the insured, and by performance of the agreement, a vested interest in the policy or certificate or the proceeds of it, precluding the insured from making a change in the beneficiary. It is the contention of the plaintiff that she acquired, by •agreement with the insured and by performance of the agreement on her part, a vested interest in the proceeds of this certificate. What is presented, then, is, first, a question of fact. What evidence is there to support the conclusion that there was an express contract founded upon a valuable consideration (moving to the assured) between the assured and the plaintiff? Schiller-Bund v. Knack, 184 Mich. 95, 105. Going first to the bill of complaint, we find it charged therein that the husband of the assured having declined to any longer pay the cost of maintaining the insurance, the assured—

“persuaded your oratrix to take upon herself the responsibility of paying all bills, premiums and special assessments in the future to become due upon the life insurance policy heretofore named, upon the life of said Ella Taylor, and that said Ella Taylor said to your oratrix that her husband, L. D. Taylor, refused to pay the special dues and premiums on said policy and said that same would go down unless your oratrix paid them; that said Ella Taylor said if your oratrix would pay said dues and premiums, she, the said Ella Taylor, would take out a new policy and have same issued to your oratrix, and that your oratrix thereupon agreed to pay said premiums and dues and to take said policy and have your oratrix named as beneficiary in said policy, and that thereupon and on,, to wit: the aforesaid 10th day of October, 1906” (February 19, 1908), “your oratrix and said Ella Taylor in accordance with said agreement and understanding,”

—did cause the new certificate to be issued, naming plaintiff as beneficiary, delivered it to plaintiff, who has since paid all premiums to January 1, 1916. It is further charged that—

“it was always the intention, desires and wishes of the said Ella Taylor that your oratrix be the beneficiary of the policy covering her life, and that she should reap the benefits therefrom,” and that “it was expressly and distinctly understood between herself and Ella Taylor, that she, your oratrix, was to be the sole owner of said policy and have all the benefits accruing thereunder.”

The case which the bill then proceeds to state is that against the wishes and protests of the insured the defendant coerced her into making a change of beneficiary when she was ill, and by duress and unfair means brought about the issuing of the last certificate naming defendant as beneficiary.

We think that if all that is charged in the bill with respect to the understanding upon which the certificate was issued was admitted as true it would fall short of establishing an express contract between the insured and the plaintiff precluding the insured from ■changing her beneficiary. Schiller-Bund v. Knack, supra; Modern Brotherhood of America v. Hudson, 194 Mich. 124. See Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 60 (55 Atl. 497); Leaf v. Leaf, 92 Ky. 166 (17 S. W. 354, 854). What is charged in the bill, if admitted, goes little, if any, farther than the implication which the certificate upon its face and the payment of premiums by the beneficiary give rise to. It is, of course, wholly unimportant what the motive of the wife, or of defendant, was in causing the last change to be made, if the insured had the right to make it, and the evidence fails, we think, to sustain the charge that the change was made under duress.

The testimony for the plaintiff appears to somewhat overrun the charge made in the bill. A witness testified:

“In the year 1908, Mrs. Hallett was living in Wisconsin, and that year she came to visit me in Grand Rapids. I went with Mrs. Hallett to visit Mrs. Taylor in Coopersville in the fall of 1908. We were there all day and had dinner at Mrs. Taylor’s place. Mr. Taylor, Mrs. Taylor, Mrs. Hallett and myself were present at dinner time. On that day I had some conversation with Mrs. Taylor relative to the insurance of the Equitable Fraternal Union. I heard some conversation that day between Mrs. Taylor and Mrs. Hallett in reference to naming Mrs. Hallett as the beneficiary in this policy of insurance.
“I heard Mrs. Taylor say that they didn’t want to carry this any more, they didn’t want to pay for it any more, because Mr. Taylor could use his money for something else, and she asked her sister to take it, and her sister hesitated, and then we went to the dinner table and the conversation was resumed, and we were all talking about it, Mr. and Mrs, Taylor and all of us, Mrs. Hallett still hesitated on taking it, and Mr. Taylor said that if she would pay the premium on that, that he never would change it.
“Q. What did Mrs. Taylor say at that time?
“A. She wanted her sister to have it.
“Q. What, if anything, was said about the reason for her desiring to continue this policy?
“A. She wanted the sociable side of it there at Coopersville.
“Q. Just what did she say about it, do you recall?
“A. She said the town was small and she didn’t have no place to go, and she would like to keep it up.
“Q. What, if anything, did Mrs. Taylor say about the beneficiary, if Mrs. Hallett would take it?
“A. She said she never would change it, Mrs. Hallett could always have it.
“Q. What did Mrs, Hallett say?
“A. She hesitated again, and then when Mr. Taylor said she could always have it, he would never change it, why she said, ‘all right.’ ”

On cross-examination the witness said:

“I was living on Ellsworth avenue in Grand Rapids the time that Mrs. Hallett came here to visit me from Wisconsin. It was in the fall of 1908.
“Q. How do you know it was 1908 ?
“A. Because I moved in the flat in 1906, and it was two years following.
“She visited me for one day, and the next week we went to Coopersville. I was there one day.
“Q. What month was that, do you say?
“A. That was in September.
“Q. September, 1908?
“A. Yes.
“Q. You are sure about that?
“A. I surely am.”

As the certificate which named plaintiff beneficiary was issued in February, 1908, the testimony of this witness must be viewed with some caution, because she testifies to an understanding arrived at six months or more after the certificate was issued.

The learned trial judge had the benefit of seeing the witness, and we disagree with him about the weight to be given testimony only after reflection and an attempt to properly value the testimony. We are not satisfied that the preponderance of the evidence sustains the fact, not charged in the bill, that there was a promise made by the assured to the .plaintiff that the beneficiary would never be changed. Beyond this, it. should be said that this court has never held that a contract between the insured and the beneficiary creating a vested interest in the beneficiary in the proceeds of the certificate may be made by the promise of the insured, relied upon by the beneficiary, that if the beneficiary paid the premiums the beneficiary would never be changed; nor are we now prepared to so hold.

It is contended that a consideration moving to the assured was the continuance of her membership in the insuring association which entitled her to social privileges with other local members of the association. It is matter of common knowledge that a large number, if not all, of fraternal organizations which insure the lives of members have a lodge system and that they cultivate sociability among members. The right to attend the lodge goes along with membership in the organization. This right, and therefore this consideration, would be present in every case where a beneficiary paid the dues and premiums.' The contention was refused in Modern Brotherhood of America v. Hudson, 194 Mich. 124, 131, 132, and for reasons there stated we must affirm the conclusion there reached.

We are constrained to reverse the decree of the court below and to enter one here for the defendant, the beneficiary named in the last certificate, with costs of this appeal.

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


author: Ostrander, J. Fellows, J.

text:
    OCEANA FARMERS’ MUTUAL TELEPHONE CO. v. UNITED HOME TELEPHONE CO.
    1. Telegraphs and Telephones — Carriers—Michigan Railroad Commission — Jurisdiction.
    Where a controversy had arisen between two telephone companies as to the performance of a contract for physical connection between the properties of the two companies, jurisdiction was conferred upon the Michigan railroad commission by the filing with it of a petition for a hearing upon the matters in controversy by defendant company, and the court of equity was thereafter without jurisdiction to entertain a suit for specific performance of the contract.
    2. Same.
    Resort should in the first instance be had to the railroad commission, unless the ease is exceptional.

      3. Same.
    Under Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6689 et seq.), telephone companies are declared to be common carriers and their general control is placed with the railroad commission.
    4. Same — Physical Connection — Railroad Commission — Powers.
    Under section 3 of said act (2 Comp. Laws 1915, § 6691), giving the railroad commission power to prescribe the standard of construction and equipment that shall be maintained by any person, copartnership, or corporation doing a telephone business and maintaining physical connection with the property of any other owner, physical connections made by virtue of contracts as well as those made by order of the commission were contemplated.
    5. Same — Statutes—Validity.
    Section 6 of said act (2 Comp. Laws 1915, § 6694), authorizing the railroad commission to require that physical connection between telephone properties be made, is valid.
    6. Same — Railroad Commission — Exclusive Jurisdiction.
    Where the question involved is one of adequate service growing out of physical connection between two telephone companies, and the railroad commission had acquired jurisdiction before the institution of any proceedings in court, such jurisdiction is to the exclusion of that of the courts except as provided by Act No. 145, Pub. Acts 1915 (2 Comp. Laws 1915, § 8134).
    7. Same — Statutes—Constitutional Law — Impairment op Contracts.
    Act No. 206, Pub. Acts *1913 (2 Comp. Laws 1915, § 6689 et seq.), giving the railroad commission general supervision over telephone companies, held, not in violation of the constitutional inhibition against the impairment of contracts. Grand Raqñds, etc., R. Go. v. Cobbs & Mitchell, 203 Mich. 133.
    Ostrander, J., dissenting.
    Appeal from Oceana; Barton, J., presiding.
    Submitted January 28, 1919.
    (Docket No. 102.)
    Decided May 29, 1919.
    Bill by the Oceana Farmers’ Mutual Telephone Company against the United Home Telephone Company for the specific performance of a contract. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      A. S. Hinds, for plaintiff.

      Cross, Foote & Sessions, for defendant.
   Ostrander, J.

(dissenting). The Michigan State Telephone Company, described as the party of the first part, and the Oceana Farmers’ Mutual Telephone Company, second party, on the 18th of May, 1910, made an agreement which was reduced to writing and signed by them, respectively. The fifteenth clause of the contract reads:

“In case of failure to carry out any of the provisions embodied herein, and if continued without remedy or repair for thirty days after written notice or demand from either party to the other, said party complaining may terminate this contract by written notice.”

The Michigan State Telephone Company, so it is charged, in June, 1916, sold to the United Home Telephone Company all of its territorial and other rights in Oceana county and conveyed and assigned to it all its contracts, rights and liabilities, and thereby substituted the said United Home Telephone Company as party of the first part in the contract above referred to. Under date March 5, 1918, the United Home Telephone Company notified the plaintiff that the switching service it had been rendering plaintiff under the contract would be discontinued on April 1, 1918, and again, on April 17, 1918, notified plaintiff that the said service would be discontinued on May 1, 1918. Plaintiff filed its amended bill of complaint on April 30, 1918, in which it asks, among other things, for an order restraining the United Home Telephone Company from suspending or discontinuing the switching service aforesaid. It asked for other and further relief, and made the Michigan railroad commission a party defendant, it having been advised that the United Home Telephone Company had invoked the jurisdiction and action of said commission. The United Home Telephone Company answered the bill, insisting that it had the right, under the terms of the contract, and because of the default, etc., of the plaintiff, to declare the said contract forfeited, and it avers that the said commission has jurisdiction over the subject-matter of the controversy, setting out that it had made complaint to the commission, in which complaint it had stated that it would not suspend switching services until after a hearing by said commission on its said complaint and a determination by said commission as to the merits of the controversy. But it is nevertheless insisted that the contract was terminated by the notice of its cancellation. It is sufficient to say that the contract referred to specifies the respective duties and obligations of the parties thereto, that the plaintiff charges that it has performed on its part and that the United Home Telephone Company has not, and that no real reason exists for forfeiting the contract, while the defendant telephone company avers that plaintiff has not performed and is not in condition as to equipment, and otherwise, to perform the contract on its part.

The answer having been filed, the defendant telephone company gave notice that it would bring on for determination before the court the questions raised by its answer whereby the right of plaintiff to bring or maintain the action is challenged, namely:

“1. Plaintiff has a complete, adequate and exclusive remedy for its grievances without resorting in the first instance to a court of chancery, and it cannot properly complain to a court of equity until it has first exhausted such other remedy.
“2. The Michigan railroad commission is the only tribunal having jurisdiction to hear the complaint of plaintiff.
“3. Plaintiff’s equitable remedy, if it has any, can only be resorted to after it has first made complaint to the Michigan railroad commission, has been given a hearing thereon, and finds itself dissatisfied with the final order of said commission.
“4. Under the facts as stated in the amended bill of complaint and the answer of this defendant; the Michigan railroad commission has exclusive jurisdiction over the subject-matter of this suit.
“5. Inasmuch as defendant had filed a petition with the Michigan railroad commission prior to the commencement of this suit, complaining about the condition of plaintiff’s telephone lines and equipment, and asking said commission for a hearing in said matter and that upon final hearing an order be made requiring said plaintiff to improve the condition of its lines and equipment so that the service that should be furnished over said defendant’s lines would not be impaired and its efficiency interfered with, the filing of such petition gave jurisdiction to the Michigan railroad commission to act on said petition and, therefore, precludes this court from taking any action in said matter.
“6. The threatened action of defendant to discontinue switching service to plaintiff was based entirely on the improper and defective condition of plaintiff’s lines and equipment and its failure to pay for service over the lines of defendant, and is, therefore, a subject over which the Michigan railroad commission alone has jurisdiction to investigate and pass upon.”

At the hearing, counsel for defendant telephone company stated:

“We take this position,, if your honor please, upon the whole record — that the amended bill of complaint in this case ought to be dismissed for the reasons set forth in the notice and the reasons set forth in our answer, but that in any event, if we are not entitled to an absolute dismissal- of the bill of complaint that the only possible relief that the plaintiff company is entitled to at this time or will ever be entitled to would be an order in which your honor should hold that the matters in controversy here, the complaints of the plaintiff against the United Home Telephone Company and the complaint of the United .Home Telephone Company against the plaintiff as voiced in the petition on file with the Michigan railroad commission, are matters to be submitted to the Michigan railroad commission for investigation and determination, and that an order should be entered that all proceedings in this case be held in abeyance until these matters can be heard by the Michigan railroad commission, and that pending the hearing before the railroad commission of the matters in controversy here that the temporary injunction be allowed to stand.”

The court entered the following order:

“In the above entitled cause, the said defendant, United Home Telephone Company, upon notice given pursuant to section 4 of chapter 14 of the judicature act of nineteen hundred fifteen, having brought up for determination by the court, questions raised in the answer of said defendant challenging the right of the said plaintiff to bring or to maintain this action against said defendants, and the court having heard counsel 'for the respective parties, with reference thereto, and being fully advised in the premises,
“It is hereby ordered that said questions be and the same are hereby determined adversely to the said defendant, United Home Telephone Company, and that this court has jurisdiction to hear, try and determine the issues set forth in the pleadings in this cause.
“It is further ordered that said plaintiff do recover costs against said defendant, United Home Telephone Company, including an attorney fee of ten dollars.”

From the order an appeal was allowed, on application of the defendant telephone company.

After the hearing in this court, the appellant filed in this court the following paper, giving due notice thereof to counsel for plaintiff:

“Upon the oral argument of this case, a member of the court suggested to counsel for appellant that if the United Home Telephone Company would waive its claim of forfeiture of contract with plaintiff, there would then be no reason why this controversy should not be heard and disposed of by the Michigan railroad commission. In view of this suggestion, and if now permitted by the court, the said defendant and appellant, United Home Telephone Company, will and hereby does waive any and all claims which it has, or which it may have heretofore made, that the contract mentioned and described in plaintiff’s amended bill of complaint under which appellant was obligated to furnish switching and other service to plaintiff has been forfeited. Appellant makes and files this declaration of waiver for the further sufficient reason that it is informed and believes that it had no right or power to declare a forfeiture of said contract until after appellant’s grievances against plaintiff had been presented to, passed upon, and adjudicated by, the Michigan railroad commission, and plaintiff had thereafter failed or refused to comply with the orders of said commission.”

This paper writing evidences a misconception of the suggestion made upon the argument, which suggestion, in the form of a question or questions put to counsel for appellant, was that if appellant insisted upon a forfeiture of the contract and its threat to discontinue switching services the remedy of the plaintiff, and its only remedy to preserve the status quo, was an injunction, to grant which the couit below had jurisdiction, the point of the suggestion being that but for the action of the defendant, forfeiting the contract, there would have been no law suit. The paper writing evidences another thing, however, of which plaintiff may choose to avail itself, namely, it admits that it had not the right to declare the contract at an end, which declaration brought about the beginning of this suit. See, in this connection, City of Monroe v. Railway, 187 Mich. 364.

In the brief for appellant it is said:

“The question presented for determination involves the right of a circuit court, in chancery, to enjoin action by the Michigan railroad commission in matters exclusively within its original jurisdiction.”

The position and attitude of the Michigan railroad commission is not disclosed by the record. No appearance has been entered in this court by said commission, and it does not appear that it answered the bill.

We are of opinion, as we were at the hearing, that the court below had and has jurisdiction to determine whether the appellant should be permitted to discontinue the furnishing of the service which in the said contract it agreed to furnish, interrupting and limiting, perhaps destroying in some degree, the business of the plaintiff, until the merits of the controversy, the issues tendered by the bill, are determined. We do not consider any question of the jurisdiction of the Michigan railroad commission, and certainly are not required to determine whether it ought to be relieved from the operation of an injunction about which it does not complain. We do not consider whether, if appellant had invoked the action of the Michigan railroad commission in the first instance, existing differences could have been determined by the order of the commission. The position of appellant in the court below — one position — was that it had the right, without consulting the Michigan railroad commission, to cancel the contract herein referred to and discontinue the rendering of services stipulated therein.

Under the circumstances, I affirm the jurisdiction of the court and its order, with costs to appellee.

Fellows, J.

While the bill filed in this case sets up a notice given to plaintiff by the defendant on March 5, 1918, that further switching service would be refused on April 1st, the letter of April 17th contained an insistence that the matters in dispute growing out of switching services be taken up> by the railroad commission and contained the following:

“We have no objection to this matter being referred to the railroad commission, in fact, we insist that this be done, if we continue to switch your telephones.”

The bill also sets up- a letter to plaintiff’s secretary written by defendant’s general manager on April 23d containing the following language:

“We have no desire to inconvenience you, your company or your patrons, and it seems to us that we have-used every means to bring this matter to some sort of a settlement, but since you insist that we take the matter to the railroad .commission, we wish to inform you that we are making application to the railroad commission for a hearing in the matter and are asking them to take what steps are necessary to bring the matter to a propér conclusion. We shall be governed by the orders'and advice of the commission.”

Apparently to forestall action by the railroad commission this bill was filed, but it was not filed until after the defendant, pursuant to its letter of April 23d, had filed its petition with the railroad commis-. sion. This petition was sworn to April 24th and was filed with the railroad commission on April 25th. The bill in this case was filed April 27th and the amended bill, making the commission a party, was- filed April 30th. We, therefore, have, as I understand the case, the question of whether a court of equity may be appealed to by a public service corporation, a telephone company, for a decree for specific performance of a contract with another telephone company after the-railroad commission has acquired jurisdiction of the controversy between the parties, and where the matter in difference between them grows out of a question of adequate service. The provision of the contract sought to be specifically enforced having reference to the physical connection between the properties of the two utilities.

I do not understand that my .brother Ostrander’s opinion questions the regularity of . the petition filed by the defendant with the commission. Jurisdiction was conferred upon the commission when it was filed. That resort should in the first instance be had to the commission, unless the case is exceptional, is established by the decisions of this court. City of Owosso v. Union Telephone Co., 185 Mich. 349; City of Traverse City v. Citizens Telephone Co., 195 Mich. 373; City of Cadillac v. Citizens Telephone Co., 195 Mich. 538; City of Traverse City v. Michigan Railroad Commission, 202 Mich. 575. Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6689 et seq.), declares telephone companies to be common carriers and places their general control with the railroad commission. By section 3 of the act it is provided:

* * * “and the commission shall have power to' make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service or facility; and it shall likewise prescribe the standard of construction and equipment that shall be maintained by any person, copartnership or corporation maintaining a physical connection between the lines and facilities of any such person, copartnership or corporation, and the lines and facilities of any other person, copartnership or corporation.”

I apprehend this contemplates physical connections made by virtue of contracts as well as those made by order of the commission. By section 6 of the act the commission is authorized to require that physical connection between telephone properties be made. This section is valid. Michigan State Telephone Co. v. Michigan Railroad Commission, 193 Mich. 515.

It must be borne in' mind that these two telephone companies, parties to this litigation, are public utility corporations; that their properties are charged with a public interest; that the question of quality of service is one in which the public is vitally interested. One of the prime purposes served by the enactment of legislation creating boards and commissions to supervise the activities of these and similar companies, was that such public interest might be safeguarded by these public boards. Upon the hearing of defendant’s petition the railroad commission may make such order as the rights of the parties and the public interest require. If the plaintiff is furnishing adequate facilities to comply with the contract and to discharge its duty to the public, defendant’s petition will undoubtedly be denied. If it is not, the commission may require it to furnish such facilities as will not only require it to perform the terms of its contract but also perform its duty to the public. On the other hand, should this case run its course it will ultimately be determined whether defendant had ground for a forfeiture of the contract, whether plaintiff is performing its part of the contract and is furnishing adequate facilities. If plaintiff maintains, its case a decree for specific performance will be entered. If it fails, its bill will be dismissed, defendant’s forfeiture will become effective, it will be relieved of its contract obligation to perform switching service, and the public served by the two companies will be deprived of the benefit of the physical connection of the properties by a proceeding in which it is not a party. This situation was sought to be avoided by the creation of the railroad commission and the bestowal of broad powers upon it. I think it sufficient that we hold in the instant case, and that we should hold, that where the question involved is one of adequate service growing out of physical connection between two telephone companies, and the railroad commission had acquired jurisdiction before the institution of any proceedings in court, that such jurisdiction is to the exclusion of that of the courts except as provided by Act No. 145, Pub. Acts 1915 (2 Comp. Laws 1915, § 8134).

Considerable space in the brief of plaintiff’s counsel is devoted to a discussion of the validity of the railroad commission act, and the constitutional inhibition against the impairment of contracts. The validity of the railroad commission act as against the objections here urged has been repeatedly sustained. We have so recently considered the question whether the hands of the State in the exercise of its police power may be tied by existing private contracts (Grand Rapids, etc., R. Co. v. Cobbs & Mitchell, 203 Mich. 133), that we content ourselves with calling attention to that case and the authorities there cited.

I think the order of the circuit court should be reversed and the bill dismissed, with costs of both courts to appellant.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn,‘ JJ., concurred with Fellows, J.


text:
      In re CRANE’S ESTATE.
    1. Domicile — Question fob Court.
    Where the owner of personal property in Ohio and Michigan died intestate in Ohio, the question of his domicile was properly one for the Michigan courts to decide, in proceedings in this State to administer his estate, notwithstanding the courts of Ohio had determined that he was domiciled in Ohio.
    2. Same — Question of Fact — Intention.
    That there was no conflicting testimony does not make the issue of domicile one of law merely, where consideration of all of the testimony still left the matter one of the intention of the deceased; the probative value of his actions, declarations and interests being for the court.

      3. Appeal and Error — Circuit Court Rule — Requested Findings —Weight oe Evidence — Review.
    Where, in a case tried by the court without a jury, in view of the fact that Circuit Court Rule No. 45 was not complied with, there being no request for findings of fact and law, it is doubtful if the record presents any question for determination in the Supreme Court, and, upon review, it cannot be said that the findings of fact are against the clear weight of the evidence, the conclusion of the court below will be affirmed.
    Error to Lenawee; Chester, J., presiding.
    Submitted January 23, 1919.
    (Docket No. 126.)
    Decided May 29, 1919.
    George N. Jones presented his final account as administrator of the estate of Arthur P. Crane, deceased, and asked for an order of distribution. The account was allowed and an order of distribution entered in the probate court, and Charles H. Colvin and others appealed to the circuit court. Judgment sustaining the order of the probate court. • Contestants bring error.
    Affirmed.

      Herbert B. Clark, Elmer E. Davis, and Henry I. Bourns, for appellants.

      Baldwin, Alexander & Bussell, for appellee administrator.

      Bert D. Chandler, for appellees Knapp and Duryea.
   Ostrander, J.

Arthur P. Crane, a bachelor, died April 28, 1911, at Toledo, Ohio, intestate, his relatives being first and second cousins of the whole and half blood. He left real and personal estate in Lena-wee county, Michigan, and personal estate in Lucas county, Ohio. Proceedings to administer his estate were begun both in Ohio and in Michigan, in which latter State they have proceeded, to a point where the administrator, after paying all proven debts and the expenses of administration, has on hand, in cash, nearly $10,000, and in his final account he asks that this be ordered 'distributed and he discharged. The probate court for Lenawee made an order May 16, 1917, distributing the money to the first cousins of the deceased, 16 in number, denying the joint petition of Charles H. Colvin, a second cousin of deceased, of the whole blood, living in Lenawee county, and the Ohio administrators, and refusing them leave to offer testimony to prove that the deceased died domiciled in Lucas county, Ohio; denying, also, an order that the personal estate be turned over to the Ohio administrators for distribution and that the estate be distributed in accordance with the laws of Ohio. From the order entered, these petitioners claimed and were allowed an appeal to the circuit court for Lenawee county. In that court testimony was introduced which tended to prove that the deceased had been for 25 years before, and was at the time of, his death domiciled in said Lucas county, Ohio. There was testimony introduced which, while not contradicting the circumstances relied upon to prove an Ohio domicile, tended to prove that after the death of his surviving parent (in 1901), who lived in. Adrian, Lenawee county, Michigan, by whose death the deceased came into possession and ownership of the Adrian home, a store building, several lots in Adrian, and two farms in said Lenawee county, he elected to treat, and did treat and regard, Adrian as his home, although continuing to practice law in Toledo. The issue was tried in the circuit court without a jury. It does not appear that either party asked for findings of fact and law. The cause was brought on to be heard December 20, 1917, and at some time, the date not appearing in the printed record, the court filed an opinion and on April 1, 1918, entered an order in conformity therewith. The opinion is as follows:

“Arthur P. Crane died in Toledo, Ohio, April 28, 1911. His parents lived, for many years, on a farm in Lenawee county, and the latter part of their lives they lived in Adrian in Lenawee county. In his childhood life and younger years, Arthur lived with his parents on the farm and in Adrian. Arthur was an only child, and succeeded to all the estate of his parents. From the death of his parents, Arthur has kept a large part of the farm and real estate in Adrian that he inherited. Arthur never married, studied law and eventually went to Toledo to practice his profession. From the death of the survivor of his parents, he owned and maintained the old home of his parents in Adrian as his home. ' The only home he owned and kept up in any place was the old homestead at Adrian. This he did at considerable expense. He called it home, referred to it as his home, returned to it, for long or short periods of time, several times during each year.
“In Toledo he roomed and boarded and maintained a business office in the practice of his profession; and for the purpose of pursuing his professional business in Toledo, he exercised the privilege there of voting, serving on election boards and holding a notarial commission.
“During this time it was his fixed intention to return to Adrian to live in the home of his parents and give his whole time to looking after his farms and other real estate and personal property in Lenawee county, this home that he had maintained and kept up for years as his real home.
“Does the fact of voting in a particular place establish a residence in that place?
“Our own court, in the case of Beecher v. Common Council of Detroit, 114 Mich. 228, affirmed a decision establishing a residence in a county other than where the party voted. This decision, in effect, is that the fact of voting in a county does not, in itself, as a matter of law, fix the residence in the county where he voted. This being true, under the holding of our court, I am unable to see how the circumstance of serving on an election board or holding a notarial commission would, as a matter of law, establish a residence. The testimony shows that Arthur P. Crane, for the latter part of his life, considered and treated Adrian as his home, his domicile, and the Lenawee county probate court so found.
“The question of Mr. Crane’s residence, under the petition for administration of his estate in Lenawee county, was one to be determined by the probate court of Lenawee county. That court determined that question, and no appeal was taken.
“Under the facts and circumstances of this case and the finding of the probate court, I do not feel that this court should disturb the order of the probate court of Lenawee county.
“The appeal may be dismissed and the proceedings certified back to the probate court of this county for further proceedings.”

The printed record shows a paper, dated April 18, 1918, in and by which appellants except—

“to the findings of fact and findings of law made by the court, such findings being against the clear weight of the evidence, contrary to the evidence and contrary to the law.”

Thereafter, assignments of error were filed, a bill of exceptions settled, and a writ of error sued out.

Appellants had earlier invoked the aid of a court of equity, had filed a bill in the circuit court for the county of Lenawee, in chancery, seeking a decree sustaining the contentions they now make, save only the one that the facts show a domicile in Ohio. They disclaimed that the question of domicile could be inquired into and determined by the court. There was a demurrer, sustained in the court below and in this court. Colvin v. Jones, 194 Mich. 670. In the opinion given in Colvin v. Jones, it was said, among other things:

_ “We must therefore deny the contention of plaintiffs that the decision of the Ohio court conclusively establishes that the domicile of the decedent was in the State of Ohio,”

And further it was said:

“It must be admitted that in either jurisdiction the personal estate should be distributed to the persons who are by law entitled to it, and that title to the personal estate is determined by the law of the domicile of the intestate.”

The order appealed from was affirmed “without prejudice to the rights of any one interested, advised thereto, to take other or further proceedings.”

As has been related, the plaintiffs in the equity proceeding, after the decision in Colvin v. Jones was handed down, petitioned the probate court for Lena-wee county either to order the personal estate of deceased in the hands of the Michigan administrator to be turned over to the Ohio administrators or to order a distribution thereof to be made by the Michigan administrator in accordance with the law of Ohio. They, for the first time, tendered in a Michigan court the issue whether Mr. Crane was in fact domiciled in Michigan or elsewhere when he died. The probate court refused to determine this issue, holding that it had been determined before the Michigan administrator was appointed: the circuit court, on appeal, determined the issue, as one of fact, adversely to the appellants.

The reason for this litigation is found in the fact that by.the Ohio law a class.of persons are proper distributees who are not recognized • as such by the 'Michigan law, and if the Ohio law is controlling the shares of the persons to whom the estate has been assigned will be smaller. The value of the personal property of the deceased in Ohio is not disclosed. It may be assumed that if the great bulk of decedent’s personal estate was in the possession of the Ohio administrators there would be no objection on the part of the first cousins to turning over the Michigan estate to the Ohio authority.

The questions presented in argument are interesting, and some of them novel in this jurisdiction. Some of them are considered, arguendo, in Baker v. Baker, Eecles & Co., 242 U. S. 394 (37 Sup. Ct. Rep. 152), a case presenting, primarily, the question whether full faith and credit had been given by the courts of Kentucky to certain judicial proceedings of the State of Tennessee. In the opinion of the court it is observed:

“In many forms, and with much emphasis, the plaintiff in error présses the argument ab inconvenienti. Starting from the proposition that the entire personalty of an intestate decedent wherever in fact located is a unit, having its legal situs at the owner’s domicile, and that its distribution ought to be in accordance with the law of that domicile, it is argued: How is it‘possible to judicially determine that domicile under the theory of the Kentucky court of appeals in the case of. an intestate entitled to personalty in several States having different laws of distribution, and with parties claiming to be distributees residing in different jurisdictions? Assuming a lawful grant of administration in each State wherein part of the personalty is located and some of the possible distributees reside, how, it is asked, is any one of these administrators, or any one of the claimants of a share in the whole estate, to have the place of the intestate's domicile settled authoritatively and the lawful distributees ascertained? The answer is clear. Unless all possible distributees can be brought within the jurisdiction of a single court having authority to pass upon the subject-matter, either by service of process or by their voluntary appearance, it must in many cases be impossible to have a single controlling decision upon the question. In some cases, the ideal distribution of the entire personal estate as a unit may thus be interfered with; but whatever inconvenience may result is a necessary incident of the operation of the fundamental rule that a court of justice may not determine the personal rights of parties without giv-. ing them an opportunity to be heard.”

In a general way, the observation is pertinent here, and answers some arguments which are made to us.

It has resulted, however, that, interesting and important as some of the questions mooted are, the case does not, in our opinion, call for their consideration or determination. It is plain that neither in form nor in fact is the administration proceeding in Michigan ancillary to the one carried on in Ohio. Assuming, what appellants contend, that the personal estate of Mr. Crane should be distributed according to the law of his domicile and that the court should determine his domicile; that if he was domiciled in Ohio the probate court ought to order a distribution to those who are by the Ohio law entitled to the residue, it has been determined that the deceased was domiciled in Michigan. That the Michigan courts have the right to determine the question is too clear for argument. That there is no conflicting testimony does not make the issue one of law merely. Consideration of all of the testimony still left the matter one of the intention of the deceased. All of his actions, his declarations, his interests, affecting the question, were for consideration, the probative value of them was for the court. If no error prejudicial to appellants was committed, the matter is settled. Whether prejudicial error may be found depends, first, upon whether any question of error is presented by the record.

It is doubtful if the record presents any question for our determination. Plainly, the simple practice marked out by Circuit Court Rule No. 45, in cases tried by the court without a jury, has not been pursued. If any question is presented, it is this, namely, Are the findings of fact against the clear weight of the evidence? Chapter 18, §§14 and 15, judicature act (3 Comp. Laws 191?5, §§ 12586, 12587). Upon reviewing the testimony, we are not prepared to hold that it does not fairly sustain the conclusion of the trial court. See, generally, Beecher v. Common Council of Detroit, 114 Mich. 228.

We therefore affirm the order made below, with costs to the estate.

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


author: Bird, C. J.

text:
      In re ZICK’S ESTATE.
    1. Depositions — Irregularities—Waiver—Lost Will.
    In proceedings to establish and probate a lost will, any irregularities in the taking of the deposition of an aged and infirm witness (3 Comp. Laws 1915, § 12494), who it was claimed had drawn the will, were waived, where attorneys for contestants were present and made no objection when said deposition was received in evidence upon the trial in the probate court.
    2. Same — Admissibility—Prejudice.
    Where no claim was made that the rights of contestants were in any wise prejudiced by irregularities in the taking of the deposition, it was properly received in evidence.
    3. Evidence — Hearsay—Res Gestje.
    Testimony as to what was said and done by testatrix and her lawyer in the presence of witness when the will was being prepared was admissible as part of the res gestm, and was not objectionable on the ground of hearsay.
    Error to Wayne; Cross, J., presiding.
    Submitted January 22, 1919.
    (Docket No. 93.)
    Decided May 29, 1919.
    Proceedings by Mary Sehloemp to establish and probate a lost will alleged to have been made by Wilhelmina Zick. The will was disallowed in the probate court, and proponent appealed to the circuit court. Judgment for proponent. Contestants bring error.
    Affirmed.

      Condon, Nellis & Condon (George M. Lehman, of counsel), for appellants.

      William Look and Duncan C. Death (Keena, Lightner, Oxtoby & Hanley, of counsel), for appellee.
   Bird, C. J.

This is a proceeding to establish and probate a lost will alleged to have been made by Wilhelmina Zick, of the city of Detroit. The proffered will was denied allowance in the probate court. On appeal to the circuit court the jury found in favor of the will and the contestants raise two questions in this court which they argue should reverse the judgment of the trial court.

1. Application to the probate court to have the lost will allowed was made on December 9, 1915, and by reason of foreign heirs being interested the hearing was postponed to February 16, 1916. On December 15th, Mary Schloemp, the proponent and sole legatee under the lost will, filed a petition in probate court, in which she set up the fact that the lost will was drawn by Mr. Meyer B. Breitenbach, an elderly attorney, of Detroit, who was then past the age of 86, and that he was in poor health, and by reason thereof prayed that his testimony might be taken before the probate court , in accordance with section 10136, 3 Comp. Laws Í897 (3 Comp. Laws 1915, § 12494). This petition was. filed and indorsed by or under the direction of the probate court, as follows:

“Petition of Mary Schloemp, legatee of deceased, praying for order to take testimony of Meyer B. Breitenbach, subscribing witness to will.
“Filed December 15, 1915.
“Charles C. Chadwick, Probate Clerk.
“Take testimony December 22, 11 a. m.”

Agreeable to this petition and order, notice was served upon the attorneys for the resident heirs that the testimony of Meyer B. Breitenbach would be taken before the Honorable Edward Command, judge of probate, on December 21, 1915, at his court room, in the city of Detroit.

The testimony appears to have been taken on December 21st instead of the 22d, presumably by agreement, as the attorneys for the foreign heirs and some of the resident heirs were present at the examination on that date. The witness, Meyer B. Breitenbach, was present, sworn and first examined by Judge Command. Afterwards he was examined and cross-examined by counsel for the respective parties. The testimony was taken by the court stenographer and transcribed by him. Subsequently, at the hearing, the testimony was read by the court stenographer, without objection by any of the contesting parties. The will was disallowed and an appeal was taken to the circuit court. When the deposition was offered in evidence in the circuit court it was objected to for the following reasons:

“Mr. Kane: I hereby admit that if the stenographer who took the shorthand minutes of the testimony given by Meyer Breitenbach, on December 21, 1915, were here in court with his notes, that he would testify that the paper marked Exhibit 8 is a correct and true transcript of the stenographic notes of that evidence, subject, however, to the following express objections: First, That said testimony was not taken in such a way as provided for by 'the statutes of the State of Michigan. Second, Said stenographer’s minutes are incompetent, irrelevant and improper to be received as evidence on this hearing. Third, That section 10136 of the Third Compiled Laws of 1897 does not authorize or provide for the taking or perpetuating of testimony in the way that the testimony of Meyer Breitenbach was taken; that the record shows that no notice of the taking of said Meyer Breitenbach’s evidence on December 21, 1915, was served on Charles Ahnert, Emma Pellerin and Mrs. Elizabeth Kramer, three of the parties to this matter; and that they were not represented or present at the taking of said testimony; that no order was ever made by the probate court for the county of Wayne, upon the petition of Maria Schloemp, granting said petition to take the testimony of Meyer Breitenbach for the purpose of perpetuating it, or fixing any time for the taking of said testimony; that said testimony was not taken on the hearing of the pending contest over the admission to probate of the alleged lost will of Wilhelmina Ziek, but was solely taken for the purpose of perpetuating the testimony of Mr. Meyer Breitenbach; that said testimony of Meyer Breitenbach, by the record, never to have been transcribed under the direction of Judge Command, who took same; that it never has been signed by Meyer Breitenbach, never has been certified to be correct by the official before whom it was taken; that none of the requirements of section 10139 of the Third Compiled Laws of Michigan for the year 1897 have been complied with.”

It will be unnecessary, we think, to consider these objections in detail. The cardinal purpose of giving notice of the taking of a deposition is to enable the adverse parties to be present and cross-examine the witness. The notice which was served in this case appears to have been effective in bringing counsel for the contesting heirs to the examination. They took part in the proceeding and one of them cross-examined Mr. Breitenbach and the others had opportunity to do likewise. Afterwards, at the hearing of the petition in probate court, the testimony of Mr. Breitenbach was read by the court stenographer who took it, without objection from any one, notwithstanding all of the attorneys in the case were present except Judge Hanley, who was not then connected with the case. No one of them made any objection or entered any protest against the admission of the deposition. As the deposition was read objections were made to specific questions and answers and they were ruled upon by the court in the same way as though the witness were present and testifying. At that time Mr. Breitenbach was living, but was slightly indisposed. Afterwards when the trial was had in the circuit court he was dead. Under these circumstances it would be manifestly unjust to hold the testimony incompetent because the formalities prescribed for taking depositions had not been strictly observed, and especially is this s’o since no claim is made by the contestants that their rights were in any wise prejudiced by the irregularities complained of. 'The trial court was quite right in holding that contestants 'had waived their right to complain of them. See Matson v. Melchor, 42 Mich. 477; Edwards v. Heuer, 46 Mich. 95; In re Alexander, 136 Mich. 518.

2. Lizzie Poggansee, an old friend and neighbor of testatrix, testified that she was with testatrix at Breitenbach’s office when the will was made; that testatrix came to her house and requested, witness to accompany her. In the following testimony she relates what was done and said in her presence:

“Q. What did she tell him? Tell in your own way just what she told him and what she wanted done. * s¡¡ *
“A. She told him she wanted to have a will made, in my presence.
Q. What kind of a will?
“A. She said she wanted all her property to go—
“Mr. Kane: Same objection.
“Q. Tell us.
“A. ' — all the property and cash money to go to Maria Schloemp, a stepdaughter, after her death.
“Q. And after she told Breitenbach that in your presence, what did Mr. Breitenbach do?
“A. He done as she told him.
“Q. Wrote a will?
“A. Yes, sir. After she told Mr. Breitenbach that in my presence, Mr. Breitenbach wrote a will. After he wrote it, he read it to us.
“Q. What did the will provide?
“A. She wanted everything to go to her stepdaughter, Maria Schloemp — the property and cash money. After he read this paper to her, Mrs. Zick signed her name to it, when me and Mr. Breitenbach were present. After she signed her name, I signed mine in Mrs. Zick’s presence, and Mr. Breitenbach’s presence. Mr. Breitenbach also signed in my presence and Mrs. Zick’s presence. We were in just one room on this occasion. All I have related took place in that one room.
“Q. What did Mrs. Zick say in your presence before this paper was signed?
“A. I don’t know that she said anything much. She said the paper was her last will. I signed my name because Mr. Breitenbach asked me to.
“Q. All this conversation and these acts were performed in her presence?
“A. Yes, sir. The only statement she made to Mr. Breitenbach before the paper was signed, that I can remember, is that she wanted to have her will made. After the paper was signed he put it in a large envelope and wrote something on it — I don’t know what, and handed it to Mrs. Zick, who took it along with her, and we went together in the street car. We were in Mr. Breitenbach’s office, I should judge, about an hour.”

It is argued that this testimony is hearsay and should have been stricken out upon contestants’ motion. We cannot agree with counsel that the testimony was objectionable for the reason stated. The witness did not undertake to testify to the contents 'of the will. She made no attempt to. restate what testatrix told her concerning its contents, she simply related what was done and said by testatrix and her .lawyer when the paper was being prepared. Her tesItimony had reference to the res gestse and was competent and material.

’ Finding no error in the record, the judgment must be affirmed.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.