author: Ostrander, C. J. Fellows, J.

text:
    SCHILD v. PERE MARQUETTE RAILROAD CO.
    1. Master and Servant — Workmen’s Compensation Act — Limitation of Action — Effect of Limitation — Condition Precedent.
    The provision of section 15, part 2, of the workmen’s compensation act (section 5445, 2 Comp. Laws 1915), provi d- .. ing that “no proceedings for compensation for an injury under this act shall be maintained * * :!: unless claim for compensation * * * shall have been made within six months after the occurrence of the same,” is a limitation affecting not only the remedy but the right of an injured employee; the condition of giving notice of a claim for .compensation, controlling the right to demand the same. Podkastelnea v. Railroad Co., 198 Mich. 321.
    2. Same — Personal Injuries — Statutory Notice — Risht to Recover.
    In case of doubt as to whether an injured employee’s right to recover falls within the Federal employers’ liability act or the Michigan workmen’s compensation act, in order to preserve the right to recover under the latter act the statutory notice must be given.
    3. Same — Workmen’s Compensation Act — Limitation oe Action —Notice.
    Where an injured employee refused compensation under the workmen’s compensation act; and brought suit against the employer under the Federal employers’ liability law, later submitting to a nonsuit, after which claim was made under the Michigan act, but not until after the expiration of six months from the date of the accident, an award was barred by section 15, part 2, of the act (section 5445, 2 Comp. Laws .1915).
    Certiorari to Industrial Accident Board.
    Submitted January 17, 1918.
    (Docket No. 110.)
    Decided March 27, 1918.
    Frank L. Schild presented his claim for compensation against the Pere Marquette Railroad Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and award set aside.

      Parker, Shields & Brown (Charles E. Ward, of counsel), for appellant.

      Nichols & Shaw (James K. Nichols, of counsel), for appellee.
   Ostrander, C. J.

There is involved no question of fact. Claimant was employed by the plaintiff in certiorari and on March 23, 1918, received the injury for which he asks and has been allowed compensation. Plaintiff in certiorari reported the accident to the industrial accident board. In time the board made inquiry of the claimant and was informed that he refused to accept the “provisions of the compensation law and anticipates securing the services of an attorney to file suit against this company.”

Again, later, the board addressed another inquiry to claimant, whose attorneys replied that—

“We have advised him that his claim comes under the Federal act in relation to employees engaged in interstate commerce and we have notified the Pere Marquette receivers of this fact but have had no reply. It is not his contention [intention] at the present time to make any claim for compensation under the Michigan act.”

No such claim was made until March 3,1917, nearly a year after the injury was received. Meantime, claimant began his suit in the Federal court, issue was joined and a trial thereof was begun. In the course of the trial, the Federal judge called the attention of counsel to the decision in Minneapolis, etc., R. Co. v. Winters, 242 U. S. 353, decided by the Federal Supreme Court January 8, 1917. Plaintiff thereupon, on January 22, 1917, submitted to a nonsuit, with leave to move to set it aside, and later, satisfied there could be no recovery under the Federal act, the nonsuit became absolute. On April 1, 1916, and again on April 11,1916, compensation was offered claimant under the Michigan act and was refused.

The board having allowed him compensation in an order made April 12, 1917, the question presented for decision is whether the claim for compensation should have been made within six months after the injury and, not having so been made, the right to compensation is lost.

The language of the act answers the question. It is provided that—

“No proceedings for compensation for an injury-under this act shall be maintained, * * * unless the claim for compensation with respect to such injury shall h,ave been made within six months after the occurrence of the same.” 2 Comp. Laws 1915, § 5445.

This provision the board construed and treated as if it read:

“No proceedings for compensation for an injury under this act shall be maintained unless the claim for. recompense with respect to such injury shall have been made within six months after the occurrence of the same.”

Saying, further:

“In a broad sense the application made claim. In the narrow sense of the act he did not. We prefer to hold that he made all the claim he was required to make until the Supreme Court shall decide otherwise. We also think that under the circumstances of this case, the conduct of the respondent was such as to waive the making of .a claim by the applicant. The applicant could not file any formal claim within the six months without endangering what he considered his right to recover under the Federal employers’ liability law. Section 1, of part 6, of the workmen’s compensation law (2 comp. Laws 1915, § 5488), provides:
“Tf the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act flies any claim with, or accepts any payment from such employer, or any insurance company carrying such risk, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.’
“As long as the applicant thought he was entitled to recover under the Federal employers’ liability act, he could not safely accept any money under the workmen’s compensation law, nor could he file any notice of claim with the industrial accident board. If he did so his action would have constituted a release to the employer of all claims he thought he had under the Federal employers’ liability act.
“Section 6, of part 3, of the workmen’s compensation law (2 Comp. Laws 1915, § 5459), reads as follows:
“ ‘If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may he, and the employee fail to reach an agreement in regard to compensation under this act, either party may notify the industrial accident board, who shall thereupon call for the formation of a committee of arbitration. The committee of arbitration shall consist of three members, one of whom shall be a member of the industrial accident board, and shall act as chairman. The other two members shall be named respectively by the two parties.’
“Under that section, the respondent employer might have called for the formation of a committee of arbitration. It could have notified the industrial accident board that it owed the applicant; it could have demanded arbitration. It did fail to reach an agreement in regard to compensation with the applicant. If it had applied for arbitration in the matter the presumption would legally follow that the industrial accident board would have held that the employee was not an interstate commerce employee and would have made an award along the lines contended for by the respondent.”

We consider, and have in substance held, that the statute provision referred to is a limitation affecting not only the remedy but the right of an injured employee. Podkastelnea v. Railroad Co., 198 Mich. 321. The judicial power does not extend to setting aside the plain terms of the law. The proceeding is special. The condition of giving notice of a claim for compensation, controlling the right to demand the same, is clear. There is no room for construction, and the difficulties attending upon a judicial variance from the legislative rule are obvious. Perhaps the legislative rule ought to be changed: a question for the legislature. But I can see no difficulty in such a case if the right to compensation under the Michigan law is preserved by notice, although the right way be doubtful. If the case falls within the Federal statute, remedy under that statute is exclusive; if within the Michigan law, the Federal law has no application. But if a right , under the Michigan law is claimed, notice of the claim must be given within six months after the injury is received.

The order awarding compensation is set aside, with costs to plaintiff in certiorari.

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

Fellows, J.

I think this case is ruled by Cooke v. Furnace Co., ante, 192; Kalucki v. Foundry Co., ante, 604; and Dane v. Traction Co., ante, 612. For the reason stated in these cases I concur in the reversal of this case.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    DREIJER v. DREIJER.
    Divorce — Separate Maintenance — Absolute Divorce — Discretion op Court.
    Where a wife filed a bill asking for separate maintenance, defendant filing an answer in the nature of a cross-hill asking for a decree of divorce, and a decree was entered providing for separate maintenance and ordering defendant to pay plaintiff $5 a week; and about a year later defendant moved to modify the decree by granting an absolute divorce and reducing the amount of alimony, in view of the record before this court, settled by agreement, showing that defendant admits his adulterous conduct charged in the original bill,, and that he is in default in the payment of alimony, neither the best interests of the parties nor any consideration of public policy requiring the exercise by the court of its discretion to grant an absolute decree, and, tbe amount of alimony being reasonable, tbe order of tbe court below denying tbe motion will be affirmed.
    Appeal from Kent; Gilday, J., presiding.
    Submitted January 15, 1918.
    (Docket No. 77.)
    Decided March 27, 1918.
    Bill by Susie Dreijer against George Dreijer for separate maintenance and alimony. Defendant filed a cross-bill asking for a divorce. A decree was entered for plaintiff and the defendant’s cross-bill dismissed. From an order denying defendant’s motion to amend, defendant appeals.
    Affirmed.
    Filis & Ellis, for plaintiff.

      H. Monroe Dunham (Arthur R. Sherk, of counsel), for defendant.
   Ostrander, C. J.

Plaintiff is 44, and defendant 47, years of age. They were married in November, 1890, have had five children, four of them — three girls and one boy — living and married. In August or September, 1915, plaintiff filed her bill against defendant asking a decree for separate maintenance and for general relief. In the bill she charges defendant with sexual commerce with other women and shameful conduct. He answered the bill and in his answer asked for affirmative relief, namely, for a decree of divorce. He denied the charges made by his wife and accused her of listening, willingly, to gossip about himself, making unfounded reports the basis of her charges, and unwifely behavior. She answered his cross-bill.

The cause was heard upon pleadings and proofs and a decree made, February 3,1916, divorcing the parties from bed and board and providing for the separate maintenance of plaintiff by defendant, who is ordered to pay her the sum of $260 a year, beginning January 26, 1916, in weekly payments of $5 each. Plaintiff is also given possession and use of all household furniture. Costs and a solicitor’s fee of $50, defendant is also ordered to pay.

About a year after the decree was made, the defendant moved the court to modify and amend it so as to grant an absolute divorce and' so as to reduce the amount of alimony. There was an answer to the petition and various affidavits appear to have been presented to the court. The prayer of the petitioner was denied by an order dated April 24, 1917. When this order was entered does not appear beyond this, that the notice of appeal therefrom describes it as entered May 9, 1917. The. record before us was settled by agreement — at least appellee did not oppose and did approve it — and the certificate made thereto by the circuit judge reads:

“The foregoing are all the pleadings in said cause and the affidavits, petitions, exceptions and orders made therein, and it being herein admitted that the material allegations in the bill of complaint and the answer to the cross bill contained are true, and that the said defendant is guilty of the extreme cruelty and misconduct therein charged, and that the material allegations made in the answer and cross bill of the defendant are not true, and that the petition to amend the final decree was heard on answer and affidavits in open court, and denied as herein set forth, therefore, on this 17th day of July, A. D. 1917, said proceedings above set forth, showing the pleadings, decree, petitions, affidavits and other papers on file and of record in said cause and the facts, being the entire case outside of the evidence taken in court therein, are settled and signed as a case-made and settled, pursuant to the statute and within the time prescribed by law.”

We have before us none of the testimony given at the hearing of the divorce suit, but have, as is above indicated, the admission of defendant that the charges made by his wife are true and his counter charges unfounded.

What appellant desires is a decree for divorce and it being admitted that the bill was not filed pursuant to 3 Comp. Laws, §§ 8686, 8687 (3 Comp. Laws 1915, §§ 11479, 11480), he invokes the rule that the-discretion of the court may be exercised, in such a case, to grant an absolute divorce against plaintiff’s protest, if it seems to be for the best interests of the parties to do so. Burlage v. Burlage, 65 Mich. 624; Horning v. Horning, 162 Mich. 130. See, also, Utley v. Utley, 155 Mich. 258; Coon v. Coon, 163 Mich. 644; Lacey v. Lacey, 189 Mich. 271; Cole v. Cole, 193 Mich. 655. We said in Burlage v. Burlage, supra, that the authority, where a case is made out for a permanent separation, to grant an absolute divorce, if it appears proper to do so, was not exercised

“To meet the desire of the parties, but on grounds of public policy, to prevent the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married or unmarried.”

The discretion of the court in these, as in other, cases will be moved as the facts seem to demand. Defendant is not charged with personal abuse of the plaintiff or with failure to support her. He is charged with having committed adultery and with parading his adulterous conduct and his paramour to the shame of his wife and children. He admits the charges. Before this suit was begun, another suit was instituted, for a like reason, but it would appear the evidence to sustain the charges was not available, or it was by her assumed that it was not. In any event, upon defendant’s denials she discontinued the suit and marital relations were resumed, to be again broken off when defendant’s conduct forced her to take some action.

Defendant says his earnings are insufficient to support himself and pay the stipulated alimony. He is now in default in this behalf. It does not appear that his financial condition will be improved by his remarriage. He was, when the decree was granted, a traveling salesman, earning, he says, about $65 a month. He now earns, he says, $14 a week. I am impressed that the provision for alimony is reasonable and that the order appealed from should stand. In view of all disclosed circumstances, public policy will be fairly served if defendant is permitted to continue the modest payments in aid of the support of his wife which the decree below provides for.

Order affirmed.

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


text:
    NORTHRUP v. NORTHRUP.
    Divorce — Extreme Cruelty — Evidence—Sueeioiency.
    On appeal from a decree dismissing the husband’s bill for divorce, evidence on the part of plaintiff that defendant’s constant nagging, scolding, and fault-finding rendered it impossible for them to live together, although plaintiff was not entirely without fault, held, sufficient to mate out a case of extreme cruelty requiring reversal of the decree of the court below and one entered granting divorce.
    Appeal from Wayne; North, J., presiding.
    Submitted January 10 1918.
    (Docket No. 44.)
    Decided March 27, 1918.
    Bill by LeRoy Northrup against Cora May Northrup for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      Welsh, De Foe & Kahn, for plaintiff.

      James J. Noon, for defendant.
   Ostrander, C. J.

. This cause was heard in April, 1916. At that time the plaintiff was 36 years of age. The parties were married in 1904, and lived together until 1914. In the ten years of cohabitation there have been three children born, but one of whom, the first born, a hopelessly deformed and physically deficient, but mentally bright, daughter, a great care, is living. The plaintiff charges his wife with extreme cruelty. Acts of physical violence are charged and the testimony for plaintiff, particularly his own testimony, tends to prove that the defendant, upon occasions, employed her hands and feet upon him in inflicting personal injury, and her tongue in vilifying and abasing him and his father. On the other hand, defendant, who denies the charges of cruelty, and who seeks no relief from the marriage contract, claims that she has been obliged to defend herself, by force, from threats and from attempts of plaintiff to strike her — to slap her. An analysis of the testimony shows that whatever either party did personally, to the other, was as a rule the result of disagreements, the climax of wordy disputes. Both are reputable; the plaintiff a hardworking man, of good habits, home-loving, economical, the defendant a good housekeeper, clean and capable in a housewifely way. They had a good home, well furnished, convenient. Help, when it was needed, defendant always had. From a material standpoint, they should have prospered, as they did for a time, should have accumulated a competence, and in the course of time have been able to dismiss anxiety for the future. Their trouble, primarily, seems to be one of mismating; secondarily, the inability of one or both of them to compromise and to adjust differences — to adapt themselves to each other. As I have said, the physical encounters-were usually, if not always, the conclusion, the result, of wordy wars. Plaintiff contends that defendant’s conduct, “Nagging, faultfinding, scolding, pestering the life out of me,” as he puts it, with no prospect of ultimate peace, resulted finally in reducing him to a state in which he could not go on, effectively, with his business, lost his ambition, and seriously affected his health. He claims to have been fairly driven from his home by her, unable there to escape her petulant persecution, day or night. He left home once, in the night, going to a hotel for rest. He left home, finally, taking a journey of some length and a rest of some duration. Judgments were taken against him and property he owned was sold to satisfy creditors, or those he claims were creditors. He is blamed for this by counsel for defendant. That he might have avoided this, might have gone on accumulating, paid his debts, saved his property, I have no doubt, if his courage and ambition had continued.

Some excerpts from defendant’s testimony throw light upon the situation:

“Q. Now, on the occasion this tea-cup was thrown, you said Mr. Northrup came around the table to slap you, he was going to, but he didn’t?
“A. He did.
“Q. He did slap you that time?
“A. Yes, he did.
“Q. And did he slap you with his open hand?
“A. Yes, sir.
“Q. Where did it strike you?
“A. Well, on the face, I don’t remember particularly.
“Q. On which side?
“A. I don’t remember.
“Q. Did he leave any marks?
“A. No.
“Q. Did you throw the cup afterwards or before he started?
“A. As I think it over, he went back and sat' down at his place and I picked up the cup, and as I picked it up the tea went back on the wall; I threw the cup and it broke on the radiator.
“Q. The cup broke back of where you were sitting?
“A. Yes, sir.
“Q. So the cup struck over his chair and not over yours?
“A. I don’t know whether it struck the chair or not.
“Q. Over the chair, on the wall back of the chair?
“A. It didn’t strike on the wall, it struck the radiator; there is no wall; the window is over the radiator.
“Q, Where was the radiator, back of Mr. Northrup’s chair?
“A. Yes, sir.
“Q. You threw the cup after he slapped you?
“A. Yes, sir.
“Q. What led up to that, do you recall?
“A. I don’t remember.
“Q. He had gone back and sat down?
“A. Yes, sir.
“Q. And some time elapsed before you threw the cup at him?
“A. No, as soon as he sat down I picked up the tea and threw it at him.
“Q. Now, at the time of this accident when you cut your arm, he was going to strike you on that occasion?
“A. Yes, sir.
“Q. He didn’t strike you?
“A. No, he didn’t. * * *
“Q. Now, you said when you lived with Mr. Northrup’s parents he slapped you at other times with his open hand?
“A. Yes, sir.
“Q. Can you recall any specific occasion?
“A. No, I can’t.
“Q. How were those blows, did he push you with his open hand or leave his hand flat ?
“A. No, he walked right up to me and slapped me.
“Q. Without any provocation?
“A. Well, I presume we were probably having words.
“Q. Well, did lie strike you hard?
“A. Yes, he struck me hard.
“Q. Leave any marks?
“A. No.
“Q. Did you speak to him about it at the time?
“A. No, 1 didn’t.
“Q. Was any one ever present when he struck you?
“A. No one but the children.
“Q. Who was present?
“A. A small cousin of Roy’s once.
“Q. Who was that?
“A. Madeline Thomas.
“Q. When was that?
“A. Oh, I couldn’t tell you when it was; it was perhaps a year before Roy went away.
“Q. Well, did you speak to any one about that?
“A. No, I didn’t.
“Q. Well, now, do you remember any other occasion?
“A. Not anything in particular; he slapped me a number of times.
“Q. Do you recall an occasion where he took hold of your hands and arms and held you on the floor during one of these times when you were having words?
“A. No, I do not.
“Q. Well, did he ever do that?
“A. Not that I remember.
“Q. He never held your arms?
“A. He has taken hold of my arms and taken hold of my wrists hard; he would be angry. I never went to Mr. Northrup; he came to me.
“Q. He took hold of your hands on several occasions and held them tightly?
“A. Yes, he did.
“Q. Why did he do that?
“A. Because he was angry.
“Q. Is that all?
“A. Why, yes; he was angry.
“Q. Were you angry, too?
“A. I perhaps wasn’t very good-natured, any more than he.
“Q. And you have taken him by the ears on one occasion?
“A. Yes, sir; the day he went away.
"Q. And that was in the morning before he was dressed?
“A. Yes, sir.
“Q. While he was dressing?
“A. Yes, sir.
“Q. And you had bitten him on the arm once?
“A. I think I bit him; it was because perhaps he was abusing me.
“Q. But you have bitten him on the arm?
“A. But not enough to hurt him.
“Q. But you bit him?
. “A. I attempted to in self-defense.
“Q. And another time you attempted to strike him with a fork?
“A. In self-defense.
“Q. He had noticed that you would strike him or bite him or something like that?
“A. I never- offered to.
“Q. But he knew you had done these things, and isn’t it a fact he took hold of your arm and hands to stop you from doing any damage?
“A. No; he would take hold of my arms and hands and he would pinch very hard.
“Q. On those occasions would he strike you?
“A. It is likely he would strike me.
“Q. Isn’t it likely you would keep those things in mind?
“A. No, I tried to forget those things.
“Q. Can’t you fix the time, Mrs. Northrup, when any of these occasions, happened — they must stand out in your mind with a certain amount of distinction?
“A. Well, I can’t tell you any certain instance, but I remember every time and very often when I would approach Roy to ask him about affairs, which I thought I had a right to understand and know, he would say ‘what difference does it make?’ and I would say, ‘I think I have a right to know.’
“Q. What were those things?
“A. Property affairs, and about his business that I really should know, and' he says, 'Well, all you want to do is quarrel, you just want to pick a quarrel,’ and I would say, ‘Roy, you know better, that is only right, you know I should know it,’ and he would spring at me and he ran clear out of his office and slapped me in the face if I would insist on knowing.
“Q. If you would insist on knowing?
“A. Yes, sir.
“Q. You became very firm in your manner of insisting?
“A. After I had been refused and refused.
“Q. How would you insist on knowing these things —what did you say to him?
“A. I would say, ‘Roy, won’t you please tell me about things’ I wanted to know about, about what he took in when they were in business, and all he wanted me to know was the $10 or $15 he handed to me in an envelope, and when I would want to know he would say, ‘You want to quarrel, but it isn’t any of your business,’ and I would say; ‘No, I don’t want to quarrel, Roy,’ and he would say, ‘Oh, yes, you do, you just want to quarrel,’ and so I would drop it; I would think, I will wait, and at another time I will approach him again kindly, and I would ask him; he would again tell me I wanted a quarrel and I would drop it.
“Q. When would you insist on having this information?
“A. When I continued to keep asking him, I would ask him at night, and these are the occasions when he speaks of my renewing the same.
“Q. These are the occasions that continued over a long course of time ?
“A. Yes, because he wouldn’t give me any satisfaction whatever.
“Q. And those are the times when he would become angry and strike you?
“A. Yes, sir.
“Q. Well, you can’t remember any definite one?
“A. No, not any definite one; every time I would ask him.
“Q. When he would come to you and hold your hand, would he stand close to you or at arm’s length?
. “A. He would come and grab hold of my wrists, shake me.
“Q. Would he stand off at a distance or close to you?
“A. Well, naturally as any one would stand under the circumstances.
“Q. Did he stand close to you or at arm’s length?
“A. Well, I couldn’t tell you exactly, like that.
“Q. You kicked him on occasions?
“A. When he was abusing me; yes.
“Q. You kicked him in the shins?
“A. Yes, sir.
“Q. And you also kicked him in the abdomen ?
“A. Well, I don’t know.
“Q. Well, you tried to?
“A. Because he was abusing me, I tried to in self-defense, as I told you before; I never approached Roy only in self-defense; I never offered to touch him only as he came at me.
“Q. You tried to kick him in a part of the body which, if you were successful, would cause him great pain and suffering?
“A. Why, I kicked him any place it happened, so long as he was abusing me, in self-defense.
“Q. So when he took you by the wrists he would hold you out at arms length?
“A. I don’t remember. He might have. * * *
“Q. So the only complaint you could have had was because he didn’t tell you about the property, isn’t that so?
“A. Well, I didn’t like him to slap me all the time.
“Q. Well, you never spoke to anybody about it?
“Á. I considered it serious enough to keep it to myself.
“Q. But that isn’t so serious in your mind as the fact he didn’t let you know about his business?
“A. 1 considered that was quite serious.
“Q. Not so serious as the curiosity about his property, in other words you were speaking to him more about the property than you were about him slapping you?
“A. Yes, because I didn’t care to keep that in mind, about the slapping.
“Q. The more important part was about the property and not the fact he slapped you, isn’t that so?
“A. I don’t know that I made any complaint.
“Q. Well, I mean in your own mind, your attitude would be governed when you tried to determine the relative importance of these matters, you think his secrecy about his property was most that caused you more pain and suffering than the matter of striking you?
“A. I thought enough of Roy that I felt I would like to have him treat me as a companion and I felt that he would consider that I should be interested.
“Q. So I say the important thing in your mind was the secrecy he maintained, that is the most important thing?
“A. Yes.
“Q. And not of striking you, that was incidental?
“A, Well, I considered that was quite serious; I wouldn’t care to have it happen any more.”

At the hearing, two years after separation, it appeared that defendant had meantime occupied the home and had received her support from plaintiff. She testified:

“Q. How did you feel when Roy left, were you disconcerted and unhappy?
“A. I felt very badly.
“Q. Were you unhappy?
“A. Yes, indeed.
“Q. Did you tell any one you were dissatisfied or unhappy, you hoped he would come back?
“A. Yes, a good many times.
“Q. Who did you tell?
“A. I have told Mrs. Jones and I have told my sister Mrs. Degner right here. I have said if Roy wants to stay away and he supports us, all right I will make the best of it; I can get along all right. I have never said I didn’t want him, I said if he really prefers to be away from me it is all right, if he just gives me the money.
“Q. And you would be perfectly satisfied?
“A. I am not perfectly satisfied, no indeed.
“Q. Well, you haven’t been perfectly satisfied during your marriage relations any time?
“A. Why yes I have if Roy had been kind to me I would have been.”

The testimony of other witnesses, if true, shows her present attitude to be one of satisfaction so long as she is supported by her husband. That she visited her husband’s place of business and there publicly entered upon wordy controversies with him is established.

Plaintiff testified that he never had slapped defendant, although he admits having threatened to do so. The weight of evidence is, I think, the other way and requires the finding that he has in moments of exasperation slapped her face. That defendant feared him is not true. Her attack upon him while he was dressing upon the morning when he finally left home, when she took him by the ears and shook his head, is evidence of this.

The testimony tends to prove, and requires the finding, that defendant used in talking to her husband language not generally regarded as proper for either man or woman to use, in speaking of plaintiff’s father.

A witness for defendant, her brother, _ whose testimony impresses, me as that of an observing man, gave the following testimony:

“Q. Now, as, a matter of fact, Mr. Melling, Mr. Northrup came to you at various times and told you Mrs. Northrup and he were having troubles and she was nagging him, he counseled with you in regard to what to do?
“A. He told me at various times they were having trouble and she was nagging at him and would keep at him and jaw at him and he couldn’t go to sleep.
“Q. And put it up to you what he could do, how he could get over it?
“A. No, I can’t say he did. I did go to Mrs. Northrup and talk to her about these things, about their troubles, and try to have her stop it, and told her they should not occur any more. I told Roy the same thing, but he didn’t ask me for it. . As near as I can recall, the occasion I told her I was sorry they couldn’t get along a little better, that I had talked to Roy and I wanted to have a little talk with her and see if there wasn’t some way they could get together, compromise and live together without quarreling and scrapping all the time.
“Q. It was your desire, as well as Roy Northrup’s desire, to get along without scrapping?
“A. That was my desire.
“Q. Didn’t Mr. Northrup tell you he didn’t like to live that way; he didn’t like to have quarreling in his house?
“A, He did tell me he didn’t like it.
“Q. He didn’t enjoy this life he was living?
“A. I don’t see how he could.
“Q. As a matter of fact, wasn’t he down-hearted and down-spirited all the time and dejected over the quarrels he was having?
“A. Apparently so.
“Q. Very much troubled and nervous, he couldn’t stand it; it bothered him in his work and his bookkeeping and work at his office?
“A. I don’t know to what extreme it affected him.
“Q. Wasn’t he — wasn’t it noticeable when he was having these troubles; he was nervous, very moody ■ and quiet?
“A. He was.
“Q. Brooding over them apparently?
“A. I would say so.
“Q. Now, when you went to Mrs. Northrüp and told her about these things, did you tell her to cut out the nagging, to get along without it and live without these quarrels?
“A. No, I told her — as a matter of fact, I told her as I had sized the situation up, from what I had seen and heard, that one was to blame as much as the other, and if each one of them did their part I thought they could live together just the same as any other family was living.
“It seemed to me that they were both in trouble, and each one would have to do their end if they ever came together. The way I expressed it to her was that she must come half way and he should come the other half; that there were no two persons alike, and they would have to both compromise; perhaps there were things he did that she didn’t like and there were things that she did that he didn’t like, but they would have each to overlook a certain amount of it and try to get together.
“Q. Do you know, Mr. Melling, as a matter of fact, do you know what the disputes were over, how they arose or what they were over?
“A. Well, I don’t know very much about that, but it always occurred to me that a great deal of it was on account of Roy working so much.
“Q. He was working too long hours to be really a home man?
“A. That is the idea exactly. He was home, but he was confined to his office, and the way it always occurred to me, that he was too busy ever to sit down and visit or take a walk and go and visit somebody else i- he was confined right there, and he just came home and got his meals and did his work and went to bed.
“Q. In other words, he wasn’t a social enough being?
“A. No, he didn’t spend enough time with his family, in my opinion.
“Q. He was a worker?
“A. Absolutely.
“Q. Well, now, coming back again, you have heard these little disputes — little words, as you call them?
“A. Very few of them.
“Q. When you heard them what do you find they were quarreling about, having words over, what was the real foundation of them?
“A. As a matter of fact, I don’t think there was very much foundation to any of them.
“It looked to me as though they were disagreeable. It looked to me as though neither one of them had to do or say very much to start something. Mrs. ’Northrup is a woman who can sit down and argue a subject without getting angry, but I don’t know whether she can with Roy, I couldn’t say.
“Q. You don’t know, Mr. Melling, at any time, of your own knowledge, of any time that Roy Northrup ever abused or mistreated Mrs. Northrup, of your own knowledge?
“A. I never saw anything of the kind?”

This witness knew little of the home life of the parties from observing it, and the advice he gave would undoubtedly be valuable in most cases of domestic infelicity. I am impressed, however, that here the situation is a more serious one. The nature of a man’s domestic troubles, or of a woman’s, domestic troubles, may be evidenced by its effects. Men like the plaintiff do not work hard for ten years or more to get and maintain a home and acquire a competence and then sacrifice home, family and business as plaintiff has done for a whim or out of spite or revenge merely. There is a driving, compelling cause for such action. And when the cause is, admittedly, domestic trouble, the action is evidence of desperation, lost hope, insupportable conditions.

I should have been more sure of my conclusions if I had seen the parties, and other witnesses, as the trial judge did. Upon this record, I am compelled to disagree with his conclusion and to hold that plaintiff has made out a case of extreme cruelty practiced by defendant. It may be true, as the court below found, that the burden incident to caring for the child has done much to make defendant irritable. It does not excuse the conduct of defendant who has, I believe, no affection for plaintiff and no purpose to assist in rebuilding and carrying on, if it were possible, a pleasant or peaceful home. It is not possible, I think, for them to live together.

The decree must be reversed and one entered divorcing the parties. The custody of the child should be given the mother, presently at any rate. The record does not permit us to fix the alimony, if any ought to be allowed. The defendant is at liberty to apply to the court below for permanent and temporary alimony.

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


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    PEOPLE v. DAY.
    Indictment and Information — Embezzlement—Variance—Evidence. .
    An information under section 15315, 3 Comp. Laws 1915, charging that defendant embezzled money belonging to another, the vendee in a land contract, was not supported by evidence showing that said money was received by defendant as the executor of the estate of the vendor, deceased, in said contract, although at the time the information was drawn the contract had been set aside by the court and a decree entered for the repayment of the money by the estate.
    Exceptions before judgment from the recorder’s court of Detroit; Connolly, J.
    Submitted January 17, 1918.
    (Docket No. 192.)
    Decided March 27, 1918.
    Ebenezer Day was convicted of embezzlement.
    Reversed and respondent discharged.

      John Galloway and Henry M. Du. Bois, for appellant.

      Charles H. JasnowsM, Prosecuting Attorney, and Robert T. Speed, Assistant Prosecuting Attorney, for the peoplé.
   Ostrander, C. J.

The information alleges that respondent did receive and come into the possession of $520, lawful money, of the personal property, goods and chattels of Edwin Becker, and afterwards, and while the said goods and chattels were in his possession, he feloniously and fraudulently embezzled and converted the same to his own use, and thereby he the said property did feloniously steal, take and carry away. There is also a count charging larceny of goods and chattels of the value of $520. The information was filed July 5, 1916. Respondent was convicted by the verdict of a jury and reviews the proceeding upon exceptions before sentence.

There is no “statement of facts” in the brief for respondent, although various facts are stated, but it is said that the respondent is in the same situation here as he was in a former case reviewed by this court and reported 185 Mich. 68; that there is involved the same subject-matter and the same testimony: The brief in no respect complies with the rule of this court.

The brief for the people contains the statement:

“The case was before this court at the March term, 1915, and is reported in 185 Michigan, page 68. ' By reference to that case it will be seen that respondent was convicted of the charge of embezzlement, growing out of the same state of facts appearing in the record now before the court. It was there held that the respondent, who was acting in the capacity of an executor, should not have been charged under section 11591, of the Compiled Laws of 1897 (3 Comp. Laws 1915, § 15336), which relates to the conversion by agents and clerks of moneys entrusted to them, it being intimated that if any offense was committed, it should have been prosecuted under section 11610 (3 Comp. Laws 1915, § 15375), relating to embezzlement by executors and administrators.”

A reference to People v. Day, 185 Mich. 68, discovers the fact that in that ease respondent was charged with being the agent and clerk of Edwin Becker, a fact which the testimony absolutely disproved, and with receiving, while he was such clerk and agent, by virtue of his said employment, money belonging to Becker, which money he converted to his own use. The information in the case now before us is filed, it is assumed, under 3 Comp. Laws 1915, § 15315, which reads:

“If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”

An examination of the record, which is made because the liberty of respondent is involved, discloses the following facts, not disputed: Alonzo F. Anscomb and his wife, Anna Anscomb, were owners of a farm and a house and lot, all of the property situated in Wayne county. (In what proportions the property was owned by each does not appear; nor what the estate of the wife in the property was.) They contracted to sell the farm to one Edwin Becker March 9, 1907, for $6,000, some, at least, of the payments being deferred and by agreement to be made from time to time. To February, 1911, when Mrs. Anscomb died, payments were made on the contract to the vendors. By her will, respondent was named the executor of her estate and qualified as executor. After her death, one payment of $540 was made to some one other than respondent, and thereafter payments were made to him. He executed receipts, signing the same as “Executor of Anna M.’ Anscomb estate,” and he so gave a receipt for $520 paid to him April 8, 1912, “to apply on land contract on the Anscomb farm.” This is the sum of money respondent is said to have stolen. Other sums paid to him on this contract were $530 and $510. The Anscombs also deeded the house and lot to Becker and of the purchase price he paid to respondent $1,570. Some time after the death of his wife, Mr. Anscomb was declared to be an incompetent, and one Boden, a brother-in-law, was appointed guardian. The guardian instituted an action to set aside these sales, and respondent was made a party defendant. Under date February 11, 1913, a decree was made in that action setting aside the sales, determining that Becker had paid $4,259.36, which ought to be repaid to him, and containing the provision that of this sum $3,854.90 should, be paid to Becker by respondent. This was the sum, with interest, which it was found had been paid by Becker to respondent. Five days before the decree was signed, respondent filed in probate court his account as executor. In it he admitted total receipts of $4,825.91, claimed his disbursements and fees were $2,675.82, and stated the balance due the estate to be $2,150.09. On March 17, 1913, the probate court made an order in the matter of the estate of Anna M. Anscomb, deceased, which disallows most of the sums claimed to have been disbursed, which states no sum as due from the executor to the estate, and contains the provision:

“Executor is not charged with the various items of cash received upon Becker land contract, deed and bill of sale, said money not being a part of the estate of Anna M. Anscomb.”

Respondent, a witness in his own behalf, upon the trial of this case, testified that lie had received a total of $3,130 from Becker, that the balance he contends he ought to account for is $2,150, and that he would pay that amount to Becker when his attorney told him to do so. He testified further that he had used some of the money in his own business, and it appears that he deposited some or all of it to his own credit, and not in a special account. '

I have examined respondent’s exceptions. I do not find that he was prevented from presenting the facts upon which his theory depends. His contention was stated to the court in the absence of the jury, and was overruled. Whether this ruling was correct is, upon this record, the question presented for decision. The statement and motion made for him was:

“At this stage of the trial, if your honor please, the people having rested, and in consideration of the evidence therein adduced, it is clearly apparent that the money the respondent is charged with embezzling came to his possession and control as executor of the estate of Anna M. Anscomb, deceased. Such money being one of the instalment payments under a land contract which came into the respondent’s control was part of her estate in personalty, — a contract executed by Mrs. Anscomb for the sale of her farm to Mr. Becker, the complaining witness, some four or five years beforé she died, — on the stipulated payments, as therein provided, till it. matured, as it did, during Mr. Day’s administration of her estate. The money he is charged with embezzling is $520, one of the instalments collected by Mr. Day on that contract; collected by him in his official capacity, precisely as he had collected all the others since Mrs. Anscomb’s decease, including, notably the instalment of $540 of which he was also charged with embezzling under 3 Comp. Laws, § 11591, and of which charge he was held not to be guilty by the Supreme Court, because not charged under section 11610, relating to executors, administrators, and others controlling money coming into their possession in a trust capacity.
_ “Now in this trial the respondent is charged practically under the same section as in his former trial, the only difference being the omitting of the word agent, clerk, apprentice of the complaining witness, and the statement he was not under the age of sixteen years thus leaving the information as to its sufficiency weaker than it was in his former trial. Therefore we here move for the respondent’s discharge at this time.
“Further, we here also move, under the evidence adduced at this time in the trial, clearly disclosing that the respondent obtained possession and control of the items of money here charged against him as an item in the aggregate of the entire money he was entitled to and did collect, and had in his. possession in his capacity as executor, did so in every respect identically as with his collections of the preceding instalments collected on said contract, viz., the $540 as charged against him in his former trial resulting in his acquittal, entitles him to be discharged on his plea now here presented of his former jeopardy.”

This may be fairly treated as presenting the point that the evidence does not support the charge made in the information. The statute under which the information is filed reaches the person- who, while holding, having possession lawfully of, the. money or goods of another, converts the property to his own use. It is evident that no money belonging to Mr. Becker was ever delivered to respondent within the meaning of the statute, and he never, being possessed of Becker’s money, converted it. It was not paid to or received by respondent as Becker’s money, at all, but was paid and received in discharge of a debt which Becker owed, for which payment Becker received the desired and proper credit. In the hands of respondent, the money was treated as a part of the estate of his decedent, to be accounted for by him as executor; precisely the- situation contemplated when the money was paid to him. Becker not only had no title to the money he paid but he had no right to demand repayment of it and could not have enforced repayment. It was not until the court, at the instance of the other party to the contract, set aside the contract upon which the payment had been made and determined that in equity Becker ought to have his money back, with interest, that any right to demand it arose. Argument might be extended and illustrations multiplied without adding to the force of what has been said. The trial court should have directed an acquittal.

The conviction must be set aside and the respondent discharged.

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


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    MOORE v. HARNECK.
    1. Appeal and Error — Evidence, Failure to Introduce — Conduct oe Court.
    Where, after the court’s suggestion that defendant offer additional proofs to perfect the record was not acted upon by counsel, a verdict was directed against him, it cannot be contended in the appellate court that defendant was stopped by the court from offering additional testimony considered by him to be material.
    2. Telegraphs and Telephones — Replevin—Rebate—New Contract.
    In an action of replevin for a telephone which defendant had ordered out, and then refused to surrender after the termination of his contract on the theory that a rebate was due him, evidence that plaintiff told defendant to go to the bank and get his rebate, held, not sufficient to establish a new contract.
    3. Same — Right to Possession.
    A promise to repay money to defendant would not affect plaintiff’s right to possession of the telephone on the expiration of the rental contract.
    4. New Trial — Evidence—Omitted Testimony — Trial.
    A motion for a new trial because of omitted testimony was properly denied where said testimony, if received, would not have changed the result.
    5. Same — Discretion—Attorney and Client.
    It was not an abuse of the court’s discretion to deny a motion for a new trial because of counsel’s unfamiliarity with the details of the testimony, he not expecting to try the case, but only to assist.
    Error to Sanilac; Beach., J.
    Submitted January 18, 1918.
    (Docket No. 144.)
    Decided March 27, 1918.
    Replevin in justice’s court by William J. Moore against William Harneck for the possession of a telephone. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      W. H. Burgess, for appellant.
    Plaintiff, in the year 1911, was owner of a telephone system, with a central office at Marlette and a line in the highway in front of defendant’s farm. Defendant was a subscriber, using a telephone installed in his home by plaintiff, belonging to plaintiff. There was a contract, expiring February 1, 1915, and defendant had paid his telephone rental to that .date. The testimony tends to prove that in July, in the year 1914, with a change of system, certain persons at one time on the line — persons with whom defendant had business relations and needed often to call by telephone— were put on another line. As early as August, 1914, defendant complained to plaintiff about the said change and also about the service. Under date of August 8, 1914, he wrote to plaintiff a letter in which he says—
    “I would like to have you move your telephone poles off my farm as I want to plow and level the ground where they stand. Please move at once. If you have a right to part of my farm lets see your papers. * * * Please put him” (Frank Heifner, one of the parties changed over to another line) “back on our line and fix my phone, or come and pay money back, take poles and phone off my place at once.”
    The details of the trouble are not very important. This excerpt from the letter of August 8th indicates, fairly, the attitude of defendant. He did not recall nor amend the order or request contained in this letter. Under date August 15, 1914, he again wrote to plaintiff, concluding his letter by saying,
    “So please put the Heifner boys phone back on this line, or come and pay my money back, take poles and phone off my place at once. vNo need of waiting any longer as I mean whatl say about the matter.”

      Differences were not arranged. Defendant did not renew, or offer to renew, his subscription, and it is plain that he did not intend to do so.
    Possession of the telephone having been refused February 18th, on February 24,1915, plaintiff sued out in justice’s court a writ of replevin and upon the writ an officer took the telephone and attachments. In the replevin suit pleadings were filed, there was a trial and a judgment for plaintiff. Defendant appealed to the circuit court and in that court plaintiff’s testimony tended to prove, among other things, the admission by plaintiff that defendant had not had, for some period of time, proper service and the offer of plaintiff to allow defendant a rebate. Defendant’s testimony tended to prove that upon one occasion plaintiff told him that he was entitled to about six months’ rebate ahd told him to go to the bank and “get the rebate.” No rebate was in fact called for at the bank or was paid, and none was otherwise tendered. It is doubtful if the testimony, all of it, can be construed as proving an open or unconditional offer to pay, or allow, a rebate; rather, it tends to prove an effort to have defendant continue to rent his telephone and that the offer was made as an inducement to him to do so.
    Before plaintiff rested, the court called upon counsel for a statement of theories and counsel for defendant said:
    “We claim we paid, and it is admitted we paid, up to the first day of February, 1915. We claim that we were entitled under the arrangements by which they had the telephone there and also by the statement of the plaintiff himself, to a rebate of six months — about $6.00 or a little better, and that we had not been paid that money back, and consequently we are entitled to the telephone for a further period of time or the money back. If he came and paid us the money he was entitled to his telephone, but if he didn’t pay us the money we were entitled to hold the telephone and use it during that time.”

      Defendant, called as a witness in his own behalf, gave some testimony. While-he was upon the stand, after a colloquy between court and counsel, the court said,
    “I think, Mr. Burgess, you may make an offer of such additional testimony as you think you will require to perfect your record, but I think the character of the holding was such as to preclude any recovery, on his part.”
    The right to make further offers of testimony was again expressly given to defendant. No offer was made, and the court directed a verdict for plaintiff and there was a judgment entered on the verdict. Defendant moved for a new trial, stating as grounds therefor, (1) that defendant was- stopped by the court from giving further testimony, (2) if permitted, defendant would have given evidence tending to show that plaintiff had extended the time for which defendant had paid for the use of the telephone beyond the date of the issuance of the writ in this case, (8) the court prevented defendant “from producing the evidence necessary to sustain his theory in the case.” This is not the language of the motion but its material substance. Affidavits were filed with the motion, one made by defendant, one by his- wife, and one by counsel who tried the cause. Those of defendant and his wife were to the effect that if they had been interrogated upon the subject they would have testified that plaintiff had told them in December, 1914,
    “That he wanted me as his customer and he would fix this phone matter up and make it satisfactory and if he couldn’t do so he would take the phone out in the spring, pay me back my rebate and remove the poles from in front of my place. Mr. Moore on that occasion said he knew we had not had service and I was entitled to a rebate of about six dollars and that we could have the. phone till we used up the rebate.”

      The affidavit of counsel is to the effect that he had not expected to try the cause, but only to assist in the trial, and he was not as familiar with the details of the testimony to be presented for defendant as otherwise he would have been, and had a mistaken idea of the character of some of the evidence, and, although prompted by defendant’s wife while defendant was on the stand, failed to get the significance of her advice that there was the parol offer above referred to. The motion was denied.
   Ostrander, C. J.

(after stating the faets). In the brief for appellant (no brief has been presented by appellee) there is a contention made which proceeds upon the theory that the court stopped defendant from giving testimony. Upon the merits it is contended that defendant was entitled to the possession of the telephone for six months after February 1, “to use up the rebate of 6 months allowed him by the plaintiff; that this was plaintiff’s usual method of adjusting rebates.” It is further contended that the allowance of the rebate had the effect to renew the contract for the period for which the rebate would.pay, and this independent, of plaintiff’s alleged express promise; that a new trial should have been granted, that whether—

“The conditions between plaintiff and defendant with reference to this telephone were such as to justify plaintiff in revoking defendant’s contract was a question of fact to be determined by the jury.”

Finally, it is said:

“There was enough testimony of defendant’s theory of the case in the evidence to make an issue upon plaintiff’s right to possession of the telephone sufficient that the jury should have been permitted to pass upon same; and we think it was error for the court to refuse it.”

Defendant’s counsel argues none of these, contenting himself with their statement. It is obvious that the court did not stop defendant from giving testimony, and there can be no question concerning the duty of counsel, upon the suggestion of the court, to state, to offer to prove, facts believed by him to be material to the issue. I assume that if he had been informed he would have offered to prove, either by statement or by interrogating the witness, the facts set up in the motion for a new trial. As it was, it does not appear there was any available testimony, known to him, which was not given.

There is no testimony tending to prove that plaintiff had any method of adjusting rebates. There was no rebate allowed to defendant. But if there was a parol promise to repay him money, or to pay him money, it cannot affect the right of plaintiff to possess himself of the telephone and its attachments. There is no testimony tending to prove that defendant ever agreed to accept the use of the telephone in place of some sum due him as a rebate, or claimed by him to be so due, or offered to him as such. On the contrary, if the testimony establishes any fact beyond doubt, it is the fact that defendant did not want the telephone at all unless the Heifner boys were on the line, and, accepting his testimony as true, he never had proper, and often had no, service after August, 1914. The theory of a new contract is not only not supported by testimony but it is disproved by defendant’s testimony. He testified that in January, 1915:

“I talked with Mr. Moore from Marlette over the telephone about the rebate, and also about placing the Heifner boys back on the line with me. He told me I could go to the bank and get the rebate.”

It was not error to deny the motion for a new trial, because if the omitted testimony had been received it could not have changed the result. Nor can this court say it was an abuse of discretion for the trial court to refuse the excuse offered for the failure to offer the testimony, at the trial.

Error is not made to appear, and the judgment is affirmed.

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


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    BRADWAY v. MILLER.
    1. Evidence — Admissions—Abstracts—Title to Land — Question of Law.
    An admission of counsel at the hearing that the title shown by an abstract was not marketable is not one which would bind the court, since the question is one of law.
    2. Vendor and Purchaser — Abstracts—Marketable Title — Contracts — VAUDITY.
    An agreement for a title to be shown to be marketable by an abstract thereof is good.
    3. Specific Performance — Land Contracts’ — Abstract—Title to Land — Performance.
    Specific performance of a contract for the sale of land is not a matter of strict right, but is a question for equitable consideration, and it will not be decreed at the instance of the vendor where the contract called for a marketable title to be shown by the abstract, and the abstract showed defects which it is more or less probable might be remedied by a decree quieting title if all discoverable, recordable facts under Act No. 123, Pub. Acts 1915 (3 Comp. Laws 1915, §§ 11736-11738), were presented to a court.
    4. Vendor and Purchaser — Mortgages—Foreclosure by Advertisement — Power of Sale — Marketable Title.
    Where the abstract shows that the title rests upon the foreclosure of a mortgage by advertisement, but does not show that the mortgage contained a power of sale, a marketable title'is not shown, since a foreclosure by advertisement is valid only where the mortgage contains a power of sale.
    5. Evidence — Mortgages—Foreclosure—Sheriff’s Deed.
    The recital in a sheriff’s deed that a mortgage contains a power of sale is no evidence of that fact.
    6. Vendor and Purchaser — Marketable Title — Description In Deed.
    A title is not marketable which rests upon a deed which essentially misdescribes the property conveyed.
    7. Same — Abstracts—Marketable Title — Performance—Specific Performance.
    An agreement by the vendor in a land contract to furnish an abstract showing a marketable title is -not complied with by evidence of adverse possession which might prevail in an ejectment suit or secure decree correcting the records, entitling him to specific performance of the contract. .
    8. Same — Abstracts—Marketable Title — Time to Perfect Record Title.
    Plaintiff’s request for time to perfect his record title was properly denied by the court below, in proceedings at his instance for the specific performance of a land contract in which he agreed to furnish abstract showing marketable title. Distinguishing Bchwartz v. Woodruff, 132 Mich. .513.
    Appeal from Oakland; Smith, J.
    Submitted January 22, 1918.
    (Docket No. 155.)
    Decided March 27, 1918.
    Bill by Albert Bradway and another against Frank P. Miller for the foreclosure of a land contract. Defendant filed a cross-bill to rescind the contract and for an order for the return of thé amount paid thereon. From a decree for defendant, plaintiffs- appeal.
    Affirmed.

      Henry B. Graves, for plaintiffs.

      Albert McClatchey and Firmón Lush, for defendant,

      Plaintiffs, husband and wife, claim to have acquired title to, and in the year 1889 they moved to and made their home upon, land in Royal Oak township, Oakland county, described as the west half of northwest quarter and west half of east half of northwest quarter of section 7, town 1 north, of range 11 east, 120 acres, more or less. They were living on the land in March, 1916. By a writing dated March 25, 1916, defendant offered to buy the land from them and pay for it $700 an acre — $1,000 on acceptance of the offer, $2,000 on or before 10 days "from the time I am presented with an abstract of title to the said property certified to a date not earlier than the date of this agreement,” $2,000 within 15 days from the expiration of the time for the payment of the above mentioned $2,000, $2,500 on May 1, 1916, and $17,500 on or before June 1, 1916, the balance, $59,000, more or less, to be paid by a mortgage due in 5 years, bearing interest at 6 per cent. The writing contains the stipulation and condition that the abstract be either a Crawford or Mathews abstract and that the same show a good and merchantable title to the said premises. An easement in the land is mentioned, and some other matters, not material here. On the same day this offer was accepted by plaintiffs, in writing, and $1,000 was paid on the purchase price. On the part of plaintiffs, the negotiations were carried on by their son, Judson Bradway.
    A Crawford abstract, certified to March 30, 1916, was delivered to defendant April 1, 1916. Defendant paid $2,000 April 11, 1916, and $4,500 May 1, 1916, a total of $7,500. He paid no more. The bill in this cause was filed September 6, 1916.
    Setting up the contract, the bill charges performance by plaintiffs of everything required to be done by them, willingness to complete performance of the contract on their part, default of defendant. It is prayed that defendant be decreed to perform and in default' that the land may be sold and the proceeds applied to satisfy the.amount due to plaintiffs, and for a decree for any deficiency arising upon such sale. Defendant answered and denied that an abstract conforming to the contract stipulation had been furnished him, alleging that in consequence and the rescinding of the agreement by defendant plaintiffs owe him $7,-500, which sum, with interest therein, the court is asked to order plaintiffs to pay him. The answer also says that plaintiffs’ authorized agent represented that the land was well worth $700 an acre and could be sold at any time for that price, that other land in the immediate vicinity of that in question and similarly located was selling for $700 and more an acre, and that defendant relied upon these representations when he entered into the agreement; that he has learned that the value of the land is less than $400 an acre, and that other as well located land in the immediate vicinity is for sale at $400 an acre. The answer does not specify the infirmity or infirmities of title shown by the abstract. The cross-bill was answered, the cause was heard in open court, the court made and filed a short opinion, and a decree was entered May 7, 1917, refusing plaintiffs relief and requiring them to pay to defendant $7,500 with interest from April 24, 1917, the day the cause was heard. A lien upon the land to secure payment of that sum is given to defendant.
    The opinion filed by the trial court April 25, 1917, reads as follows:
    “This is an equity action to foreclose a land contract. On March 25, 1916, plaintiff, Albert Bradway was the owner of the farm in question, about 120 acres. For farming purposes only, it may have been worth $100.00 per acre.
    “From the fact that he sold unto defendant for $700.00 .per acre he must have understood it was being bought for platting into lots or for some other speculative purpose. The contract recites that the defendant bought upon the condition, ‘that the abstract * * * shall show a good and merchantable title to the premises.’
    “A merchantable title is synonymous with the term marketable title. A marketable title has been defined by the. courts of many States. It is unnecessary to refer to them. I find the abstract does not show a marketable title. Upon the argument plaintiffs’ counsel frankly' conceded the title as shown is not free from doubt and not merchantable. But he insists that the court should follow the disposition made of Schwartz v. Woodruff, 132 Mich. 513-, and allow plaintiffs some such period as six months in which to remove the clouds upon the title, and to tender a new abstract. Inasmuch as this would delay the platting of the property and sale of lots until 1918, it might result in serious or irreparable loss to defendant. The circumstances appear to be different from those of Schwartz v. Woodruff. The conclusion reached is that defendant is entitled to have the contract rescinded and the money he has paid returned to him together with his taxable costs.”
    Plaintiffs have appealed, and, accepting the definition of merchantable title given by the trial court, insist (1) that the abstract shows a merchantable title, (2) that defendant has precluded himself from claiming that the abstract does not disclose a merchantable title. No testimony tending to prove any deceit or misleading of defendant having been offered, the defendant, appellee, says that the question involved is whether the title shown by the abstract is doubtful.
    Appellants deny that in argument in the court below it was “frankly conceded” that the abstract does not show a marketable title, while appellee says that the concession was in fact made and that the statement in the opinion, about the fact, must be accepted by this court.
    The abstract shows title to the land in George Blumburd, or George Blumberg, or George Bloom-burg (the name is spelled in different instruments as is indicated), in 1859. In 1872, a sheriff’s deed, based upon an execution sale, was made to Philo Parsons. The judgment was obtained May 14,1869, and the levy was made February 3, 1870. George Bloomburg and wife mortgaged the land November 13,1868, to Stephen Baldwin, to secure payment of a debt due two years after that date, who assigned the mortgage January 2, 1869, to Reuben Adams. It does not appear that the mortgage contained a power of sale. It was foreclosed by advertisement, the land sold in two parcels, and a sheriff’s deed given, dated May 9, 1874, which, however, describes the premises as being in town 2 north. The published notice of sale described them, as in town 1 north. Reuben Adams, the assignee of the mortgagee, was the vendee, and in April, 1875, he gave a quitclaim deed of the premises in question to Israel Bickford,
    “Hereby intending to convey all the right, title and interest the first party has acquired in said premises by reason of the foreclosure of a mortgage given by George Bloomburg and wife to Stephen Baldwin, recorded * * *, and the said party of the first part authorized the said second part to receive all moneys paid for the redemption of said premises or any part of the same as he might of done.”
    A quitclaim deed was made April 10, 1875, in which Philo Parsons and Ann Eliza Parsons are described as grantors, conveying the land to Israel Bickford; Philo Parsons only signed and acknowledged the deed. Israel Bickford and wife conveyed the land in February, 1876, to Rollin Bickford, and Rollin Bickford alone conveyed to plaintiff Albert Bradway in March, 1883. The deed does not state whether Rollin Bickford was a married man. The abstract, as printed in the record, contains also two affidavits, appearing therein as numbers 18 and 19, made apparently in March, 1916, but showing no recording date. The first of these is to the effect that1* Reuben P. Adams, of Southfield, Oakland, county, Michigan, “who died about the year 1892,” left surviving him a wife, who died “about 1896.” The' other is to the effect that the wife of Rollin Bickford died while living upon the premises in question and prior to March 7, 1883.
    It is not claimed that defendant ever pointed out particular defects in the title, and both plaintiffs and Judson Brad way testified that no complaint was ever made to them about the abstract or the title or that delay in making payments and in closing the transaction was the result of a delay in making an examination thereof by defendant’s attorney. It was at the hearing that defendant first pointed out the alleged defects. But defendant testified that the payments were made before the abstract had been examined, in reliance upon an assurance given by Judson Bradway that the title was good, and if not, money paid would be refunded. He testified further that he explained to Albert Br-adway that the delay was caused by the absence of his attorney, that when he received the opinion of his attorney he notified Judson Brad-way by ’phone shortly after June 6, 1916, that the title was defective, referred him to his • attorney, said he would not purchase, and was .told that no better title would be furnished. The defects alleged are (1) that the 'deed from Philo Parsons to Israel Bickford, not signed by Ann Eliza Parsons, is suspicious, and if the land was a homestead, and she was his wife, it was void, (2) the mortgage from George Bloomburg and wife to Stephen Baldwin contained no power of sale (as shown by abstract) and therefore the foreclosure by advertisement was presumptively void, (3) the deed given in the foreclosure proceeding misdescribes the land, (4) the deed from Rollin Bickford to Albert Bradway is not signed by the wife of Bickford and the property may hav^ been a homestead and the deed therefore void; the affidavit of Lydia Blodgett to the effect that the wife died before the deed was made was suspicious because sworn to before Judson Bradway, (5) the deed from Adams to Israel Bickford is a limited quitclaim deed and does not purport to convey all of the right, title and interest of the grantor but only so much as he acquired by reason of the foreclosure proceeding; it does not appear whether Adams was a married man.
   Ostrander, C. J.

(after stating the facts). 1. Whether an abstract shows a title is a question of law. Lawyers may differ in opinion, but nevertheless the question when presented to a court must be answered as the applicable law requires. Therefore, an admission of counsel at the hearing, if one was made, that the title shown by the abstract was not marketable, while it would naturally affect the court and perhaps prevent further examination of the question by the court, is not one which would bind the court.

2. An agreement for a-title to be shown to be marketable by an abstract thereof is good. Lake Erie Land Co. v. Chilinski, 197 Mich. 214; Ogooshevitz v. Arnold, 197 Mich. 203. See, also, Ford v. Wright, 114 Mich. 122, 130; Walker v. Gillman, 127 Mich. 269.

3. Specific performance of a contract for the sale of land is not matter of strict right and whether it will be ordered is a question for equitable consideration. A purchaser may suffer a loss if compelled to take a doubtful title, while the vendor can usually suffer only the inconvenience of delay, if his title is good and the purchaser is released. Maupin on Marketable Title, p. 708. Nor, in a case like this, should what appears upon the abstract be confused with or enlarged by what it is more or less probable would appear if all discoverable, recordable, facts were presented or with provable facts showing a title good in law but not of record; as, for example, a title by adverse possession. In this connection, it is to be observed that although the statute, Act No. 123, Public Acts of 1915 (3 Comp. Laws 1915, §§ 11736-11738), permits affidavits detailing certain facts to be recorded and makes such recorded affidavits prima, facie evidence, in courts, of the facts and circumstances contained, such affidavits may and often do merely point to evidence which would, if not disputed, support á decree quieting title or one reforming an instrument.

4. A foreclosure of a mortgage by advertisement is valid only where the mortgage contains a power of sale, and an agreement like the one before us is not complied with if the title rests upon a foreclosure by advertisement, and the abstract does not show that the mortgage contained a power of sale. The recital in the sheriff’s deed that the mortgage contains the power is no evidence of the fact. Bryan v. Straus Bros. & Co., 157 Mich. 49. This was an action of assumpsit by vendors upon a land contract.

5. A title is not marketable which rests upon a deed which essentially misdescribes the property conveyed; as when, as in this case, the land is described in the deed as being in a township other than the one in which the land which is abstracted lies.

6. Plaintiffs say that inasmuch as Reuben Adams, vendee in the deed given in the foreclosure proceeding, afterwards executed the conveyance to Israel Bickford, who also acquired such title as Philo Parsons took upon the execution sale, it is immaterial as affecting title whether the foreclosure was valid or invalid, or whether the foreclosure deed correctly describes the land. Parsons, the purchaser at execution sale, had the right to redeem from the mortgage which Reuben Adams owned. Israel Bickford acquired Parsons’ interest and right and also acquired Adams’ interest. Adams’ quitclaim deed, if not a conveyance of title, may be treated as at least an assignment, of the mortgage. There was then no outstanding interest or. title. It is further the argument of plaintiffs that the mortgage was either foreclosed or it was not. If not, it became due in November, 1870, since which date more than 45 years have elapsed. But, clearly, plaintiffs’ title rests either upon the foreclosure of a mortgage or upon the deed from Mr. Parsons, or upon both, and the validity of each is doubtful. That plaintiffs as defendants might maintain title in an ejectment suit or secure decrees correcting the records, does not answer the specifications of the contract which calls for a title shown by the abstract- of title to be merchantable. One informed about all the facts might be willing to purchase the land, accepting a deed from plaintiffs, but that is not the test to be applied. See Ford v. Wright, Walker v. Gillman, supra; Stange v. Gosse, 110 Mich. 153.

7. In Schwartz v. Woodruff, 132 Mich. 513, the action was like the one at bar, but there was no question there of an abstract title. The agreement there was for a good and sufficient conveyance in fee simple, free and clear, etc. The purchase price being all due and a conveyance tendered the purchaser, he declined to accept it upon the sole ground, that he did not have the money. There was, in fact, a defective title of record, but the defect was one which the vendor could remedy. And so it was held that as an injustice would result to the defendant purchaser if he was compelled to pay the difference between what could be obtained for a questionable title and what he had agreed to pay for a title free from question, the decree required the vendor to obtain and record the conveyance which would perfect the record title. ,In the case at bar, the plaintiffs ask for time to perfect their record title. The court below refused this for a reason stated in the opinion. This reason seems to me to be based upon facts fairly inferable from, the evidence in the case and to be sufficient.

The decree is affirmed, with costs to defendant.

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


text:
    WILLIAMSON v. HANNAN.
    1. Fraud — Misrepresentations—Materiality—Rooming House.
    Representations in the sale of a rooming house business and furniture as to tbe income and respectability of tbe place, if false, were material.
    2. Same — Brokers—Conspiracy—Evidence—Sueeiciency.
    In an action by tbe buyer against tbe broker, bis agent and tbe owner of a rooming bouse business for fraud in tbe sale of same, evidence examined, and field, insufficient to sustain tbe allegation tbat tbe representation tbat tbe neighborhood was respectable was false, tbat tbe broker’s agent represented, as a fact, tbe income, and tbat tbe owner and broker’s agent were in confederation to deceive plaintiff.
    3. Same — Notice—Silence—Evidence.
    In tbe absence of evidence tbat defendant broker’s agent bad any knowledge of tbe reputation or character of any of tbe roomers of a rooming bouse, bis silence on tbat subject, and as to whether they would remain in tbe bouse for any length of time, was no evidence of fraudulent design on bis part, in making a sale of tbe business.
    4. Same — Contracts—Disaeeirmanoe—Trial.
    In an action for damages for fraud and deceit in tbe sale of a rooming bouse business, it is immaterial, as affecting the cause of action, whether plaintiff did or did not dis-affirm. the contract, hence the action of the court below in submitting that question to the jury, limiting the damages to the amount paid, with interest, was not reversible error.
    5. Same — Brokers — Misrepresentations — Intent — Trial — Instructions.
    In such action, the broker and his agent being joint defendants with the owner, requested' instructions that the broker and his agent could not be held liable unless the statements made by the agent were known by him to be false and were made with intent to deceive and defraud, should have been given.
    ' Error to Wayne; Chester, J., presiding.
    Submitted April 13, 1917.
    (Docket No. 148.)
    Decided September 27, 1917.
    Reargued February 1, 1918.
    Former opinion vacated March 28, 1918.
    Assumpsit by Margaret Williamson against W. W. Hannan, William Devlin, and others for fraud and deceit in the sale of a rooming house business. Judgment for plaintiff. Defendants bring error.
    Reversed as to all but defendant Devlin.

      Stellwagen & MacKay and Daniel E. Wade, for appellants.

      Edward Pohorny, for appellee.
    In this cause an opinion affirming the judgment was filed September 27, 1917. The opinion has not been published, a motion for a rehearing having been made October 6, 1917, by defendants other than Devlin, and a rehearing granted. Being convinced that a wrong conclusion was reached; the former opinion is withdrawn, the following to stand as the opinion of the court:
    In a declaration, to which no formal objection was made, plaintiff alleges, in substance and effect, that defendants, on February 23, 1914, with intent to cheat and defraud her, and. induce her to purchase from the defendant Devlin the good will and contents of a certain rooming house — furniture, fixtures, carpets, rugs, etc., — at No. 485, Grand River avenue, Detroit, and to pay to said Devlin therefor the sum of $1,650, falsely and fraudulently represented to her
    “That the said rooming house business was located in a desirable and respectable neighborhood, and the roomers in said rooming house were respectable and hard working people, and that the income of said rooming house business was two hundred and fifteen ($215.00) dollars per month; whereupon and by means of said false and fraudulent representations of the said defendants the said plaintiff was induced to and did purchase said rooming house business and contents therein of the said defendant, William Devlin, and then and there paid to said defendant, Martin F. Gainey, in the form of a check payable to the order of W. W. Hannan, for and on behalf of the said defendant, William Devlin, for the purchase price of said rooming house business and contents therein, a large sum of money, to-wit, nine hundred ($900.00) dollars, and for the balance of the purchase price to-wit, seven hundred and fifty ($750.00) dollars, gave a chattel mortgage on the contents of said rooming house business to said defendant, William Devlin.”
    The alleged fraudulent representations are negatived, it being alleged that the rooming house is in an undesirable and disreputable neighborhood, the roomers therein drunkards, and the female roomers women of disrepute and bad character; the monthly income was only $125 a month. Damages “in her property rights” to the amount of, to wit, $2,000,- are alleged, and she pleads 3 Comp. Laws, §§ 10421, 10422 (3, Comp. Laws 1915, §§ 12350, 12383), as a provision; permitting her to maintain an action of assumpsit to recover said damages. The defendants are W. W. Hannan, his clerk and agent, Gainey, and Devlin, the owner of the property. Devlin listed the property for sale with Hannan, who conducts a rental agency and real estate exchange. As is usual, a card was made for the use of the office, describing the property. This was but one of several like properties so listed for sale with the defendant Hannan.
    The plaintiff gave testimony tending to prove that she is a widow, with four children, and that she came from Boston to Detroit February 12, 1914, with the purpose of buying a lodging house. By a friend she was introduced at the Hannan office, made her desire known and that she had $1,000 in cash. She did not see and did no business whatever with Mr. Hannan personally. Mr. Gainey gave her several addresses, and with her friend plaintiff visited three of them and found them hot satisfactory. She returned to Mr. Gainey, who gave her other addresses and took her to see several houses. She was not pleased with them. Then he took her to No. 485, Grand River avenue, where she met Mr. Devlin. There were 19 rooms in the place, which was in the business section, and occupied two floors above the street floor. She saw ‘all of the rooms, all of which were furnished. She asked Mr. Devlin if it was a respectable house and he replied, “thoroughly so.” She was told by Mr. Devlin, “You never hear or see any more than you do now,” and that the roomers were-steady roomers, all of them having been there when a Mrs. Shoemaker, of whom he had purchased, had the house. Plaintiff liked the rooms, and it appeared a respectable place. She, however, went to see three other rooming houses, but they did not please her as well as 485 Grand River, which she was told she could buy for $1,600. This occurred on Monday, February 16. Monday' evening, plaintiff went to the head of the Young Women’s Christian Association and talked with her, and with her visited No. 485 Tuesday morning. She had lived in Detroit seven years, and expressed the opinion that the neighborhood was respectable. However, plaintiff asked to see other rooming houses and with Mr. Gainey saw one other. She suggested then that an inventory be taken of No. 485. One was taken, everything being listed. Everything was inspected by her, or was open for inspection. She was told what each room rented for, what the lease she would assume called for, and what the other fixed expense charges were, as for lights, water, etc. At her request, Mr. Gainey made some figures showing income and disbursements, according to which the rents then were $215 and the expenses $130 monthly. Gainey made the figures from Devlin’s statements, made in her presence. She was to have possession when it appeared that her check had been honored. She did not close the transaction or sign any papers until Tuesday, February 24. On the morning of that day, she, with Gainey and Devlin, went a second time over the inventory. She went over herself the rents and expenses as they had been represented. She could not, she says, arrive at the result Gainey had arrived at. She then, she says, on Tuesday afternoon, before taking possession, before executing the necessary papers, told Mr. Gainey that he had cheated her and that she wanted her money back.
    “I says, ‘There isn’t the money in that house you said there was for me,’ and he says, ‘Woman,’ he says, ‘you are excited,’ he says. ‘With them rooms empty that stood upstairs,’ he says, ‘You have $65.’ ‘Well, then,’ I says, T must have missed some of the rooms, for I couldn’t get it like that.’ ”
    He asked her to sign the papers, she said she was too nervous, but signed them, but did not know what she signed. Then she went up and took possession. One roomer who paid $12 a month for her suite moved out on February 25. On that day she saw Mr. Gainey and told him she was cheated. He said she was not and went with her to see the friend who had introduced her to the agency. Gainey said to the friend,

      “ ‘Mrs. Williamson thinks she has been cheated with the house but she hasn’t. I- will sell it again and get more than she paid for it.’ I said ‘Mr. Gainey, sell it. I only want what I gave you.’ ”
    Plaintiff later became convinced, she says, that some of the women roomers were not respectable. Some of them drank beer and smoked cigarettes in their rooms. Telephone calls for some of them were not infrequently answered by her, and she heard parts of conversations they carried on by ’phone. Others of the roomers moved out. The income for the first month was $110, the second month $60, the third $66.50. She had agreed to make deferred payments for the furniture, and had the rent to pay. In March, she called on Devlin, telling him “to come and take his stuff, I wanted nothing to do with it.” The landlord asked her to move because her rent was not paid. She did move, with the furnishings, to Brooklyn avenue, and later on, when Devlin learned where she was, he replevined his property and sold it. Hannan, agent for Devlin, received out of the money paid by plaintiff a commission for services.
    When plaintiff rested, motions were made to direct a verdict for defendants, and were overruled. The motions were renewed and denied when defendants rested. Plaintiff then moved, and over objection was granted leave, to amend the declaration by an allegation that on or about February 26th plaintiff
    • — “offered to the defendants to return the property which they had sold to her and demanded the payment ,of her money.

      “The Court: And the surrender of the contract, was that included?

      "Mr. Polcorny: Yes, your Honor, the surrender of the contract.”
    It does not appear that the amendment was actually made. The jury returned a verdict against all of the defendants for $900 and interest — in all, $973.37, and judgment was entered on the verdict.
    Much of the testimony given by plaintiff is disputed and contradicted by testimony for defendants. Their motions for a new trial were denied. There are 13 specific assignments of error. Those argued are based upon the denial of a directed verdict, refusals to charge as requested, and the charge as given, the denial of the motion for a new trial.
    The court was requested by the attorneys for Han-nan and Gainey to charge the jury:
    “34. I charge you that even though you find that this plaintiff is entitled to recover damages in this case, you cannot render a verdict against Mr. Gainey —Mr. Hannan — The Hannan Real Estate Agency, or the Hannan Rental Agency, unless you find that Mr. Gainey personally had knowledge of the false and fraudulent representations and that he made them knowingly and with the intention to deceive and defraud this plaintiff.
    “35. I charge you that if you find that Mr. Gainey did make these statements and representations to plaintiff, and that they were false and fraudulent, and that Mr. Gainey was only repeating what Mr. Devlin had told him, Mr. Gainey not knowing they were false and fraudulent, then your verdict must be against Mr. Devlin alone, and not against Mr. Gainey, Mr. Hannan, The Hannan Real Estate Exchange, or the Hannan Rental Agency.”
    Neither these nor the equivalents of them were given. The jury was told, among other things:
    “Gentlemen, you are instructed that the Hannan Real Estate Exchange is composed of W. W. Hannan alone, and that W. W. Hannan and the Real Estate Exchange are identical; and you are instructed that Mr. Gainey was the agent of W. W. Hannan for the purpose of selling this rooming house; that they were the agents of Mr. Devlin, and in this connection you are instructed that any material representations made by Mr. Gainey in the course of his employment binds himself as well as Mr. Hannan, and it binds Mr. Han-nan as well as himself; but if these representations were not made in the course of his employment it would not bind Mr. Hannan, but would bind himself. * * *
    “With reference to the relationship of Mr. Gainey and Mr. Hannan and Mr. Devlin. Mr. Devlin was the principal owner of this property, he placed this property with Mr. Hannan, Mr. Hannan was his agent. Mr. Gainey was in the employ of Mr. Hannan and was Mr. Hannan’s agent and indirectly Mr. Devlin’s agent in disposing of this property. Plaintiff claims that Mr. Gainey made certain representations about which I have instructed you. If Mr. Gainey made those false representations under the instructions I have given you and it was within the scope of his employment then that would bind his principal, Mr. Hannan, and also the principal Mr. Devlin. In this connection I charge you if Mr. Gainey received information from Mr. Devlin regarding this rooming house and believed it and repeated it to this plaintiff after explaining that he had no personal knowledge of the facts, he isn’t guilty of fraud. Therefore, if you find that Mr. Gainey received such information from Mr. Devlin and repeated that information to this plaintiff and explained to her the source of his opinion, he isn’t guilty of fraud if he acted honestly and in good faith, and under those circumstances your verdict would be no cause of action as against Mr. Gainey and Mr. Hannan.”
    Error is assigned upon the refusal to charge as requested and upon the charge. Separate requests to charge were presented on behalf of defendant Devlin. Without setting them out, various of the contentions of appellant, argued in the brief and orally at the hearing, are answered in the opinion.
   Ostrander, C. J.

(after stating the facts). What was purchased by plaintiff and sold to her was not merely furniture and furnishings for a rooming house, but was the furniture and furnishings of a rooming house doing business — the furniture and furnishings in use by tenants in a rooming house. It is true the contract, reduced to writing, does not mention good will, or business, as consideration for what plaintiff was to pay. It does describe the property as per inventory and as “contained in the rooming house located at No. 485 Grand River avenue, second and third floors, Detroit, Michigan.”

We cannot say, therefore, that if representations such as are alleged to have been made were made, and were false, they were not material. I doubt, however, if it can be fairly said there is testimony tending to ’ sustain the allegation that the representation that the neighborhood was respectable was false. It is doubtful, too, whether defendant Gainey is shown by the testimony to have represented, as a fact, the income of the rooming house business. The testimony indicates, rather, that for the information concerning the rates for which rooms were rented, as well as for that concerning the cost of operation, Gainey, to the knowledge, and in the presence, of plaintiff, relied upon— -that both relied upon — the representations of Devlin. That would be the usual thing to do. I think there is no evidence of the confederation of Gainey and Devlin to deceive plaintiff.

I do not find testimony tending to prove that Mr. Gainey made any representations concerning the character of the inmates of the house, or that he expressed the opinion that any roomer would remain in the house for any period of time. There is no testimony tending to prove that he knew the reputation or the character of any roomer. His silence, therefore, upon that subject would be no evidence of fraudulent design.

In the motion for a new trial, one reason assigned is that the verdict was against the weight' of evidence. But in the brief no point is made that there ought to be a reversal here because the verdict is against the weight of evidence.

Plainly, the plaintiff’s case is one for damages for injury suffered on account of the alleged fraud and deceit practiced by the defendants. As affecting the cause of action, it is immaterial whether plaintiff did or did not affirm or disaffirm the contract, whatever may have been the effect, as evidence, of the alleged disaffirmance. It is to be noticed, too, that when the alleged disaffirmance was made, or attempted, plaintiff had not learned either that the neighborhood or the roomers were not respectable, and did not make either of these facts a reason for believing herself defrauded. The evidence is convincing that she did not disaffirm at any time, but the course taken at the trial upon this subject and the submission to the jury of the question whether there was a rescission was not, I think, reversible error since, taken with the instruction concerning the measure of damages, it was harmless. The defendants requested the court to charge upon the subject of damages (protesting, of course, that no verdict for plaintiff ought to be returned), and the court instructed, that the recovery must be limited to the sum of nine hundred dollars, with interest and costs, concluding the request with the statement, “There is no' testimony of any other damages incurred.”

The position taken by counsel for the defendants other than Devlin, the position indicated in requests to charge and in various motions, was that they could not be held liable unless the statements made by Gainey were known to be false and were made with intent to deceive and defraud. Upon this point the trial court did not entirely agree with them as the requests to charge refused and the charge given show. The requests preferred, or the substance and effect of them, should have been given. Aldrich v. Scribner, 154 Mich. 23.

As to defendant Devlin, there is testimony tending to prove some of the alleged representations and their falsity. No reason appears for reversing the judgment as to him. As to the other defendants it is reversed and á new trial granted. As defendants joined in the appeal and in presenting the case here, no costs will be awarded.

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