Volume 225 — Michigan Reports

<p>Error to Tuscola; Williams (William B.), J., presiding.</p> <p>Assumpsit by Sam Lackovic and another against William P. Campbell and another for money paid on a land contract. Judgment for plaintiffs on a directed verdict. Defendants bring error.</p>

, presiding. Bill by Delia M. Barton against Samuel B. Molin for the specific performance of a land contract. From a decree for plaintiff, defendant appeals.

<p>Exceptions before judgment from Ionia; Hawley (Royal A.), J.</p> <p>Carl Kramer was convicted of violating the liquor law.</p>

<p>1. Insurance — Contractual Relations Not Created by Estoppel.</p> <p>While this court has frequently held, that insurance companies are estopped by their conduct under certain circumstances from claiming the benefit of forfeitures and breaches of condition when they do not put their refusal to pay on such grounds, it has not gone so far as to bring into being a contract of insurance by estoppel alone.</p> <p>2. Same — Denial of Contractual Relations — Estoppel.</p> <p>A letter from the secretary-treasurer of an automobile insurance company to plaintiff, in response to a claim for the theft of an automobile, stating that no- application covering said car had been received, and denying liability “until we have definite proof that the application was made and put in the mail before the car was stolen,” held, not to estop the company from denying contractual relations with plaintiff.</p> <p>3. Same — Apparent Authority of Agent Not Limited by Secret Limitations.</p> <p>If the agent of defendant insurance company was held out by the company and by it clothed with the apparent authority of a general agent, and plaintiff relied upon such apparent authority, and so dealt with him, defendant could not defeat recovery by secret limitations of the agent’s power.</p> <p>4. Same — Limited Agent Not a General One.</p> <p>Authority of an agent limited to solicit business only does not make him a general agent for all purposes; but even though his authority be limited he is the agent of the insurer, not of the insured, and this rule applies to mutual as well as to stock companies.</p> <p>5. Same — Agent Usually Has Authority to Effectuate Insurance.</p> <p>The agent of an insurance company is usually clothed with at least apparent authority to transact the business in hand, i. e., the effectuating of insurance.</p> <p>6. Same — Assumptions oe Insured as to Authority oe Agent— Notice. *</p> <p>Although insured would be bound to assume, from the language of the application and the blank form of the policy, that the agent was not authorized to deviate from the form of policy then in use by insurer, he. was not bound to know, where not otherwise informed, that the agent was without authority to bind his principal in strict accordance with the provisions and conditions of the policy.</p> <p>7. Same — Authority oe Agent to Act Generally — Question for Jury.</p> <p>As to whether an agent of defendant insurance company was clothed with apparent authority to act generally for defendant in perfecting insurance, held, under the evidence, a question for the jury.</p>

<p>1. Corporations — Yearly Franchise Fee — Computation—When Year Begins.</p> <p>Under Act No. 85, Pub. Acts 1921, as amended by Act No. 233, Pub. Acts 1923, requiring tbe payment of a yearly corporation franchise fee, in advance, during the months of July or August, the year should be computed as beginning on August 31st, since that is the earliest date when the State could legally demand payment.</p> <p>2. Same — Fee to be Computed Under Amendatory Statute.</p> <p>Since said amendatory act took effect on August 30, 1923, and the State could not legally demand payment of the corporation franchise fee until August 31, 1923, a corporation filing its report on the latter date was entitled to have the fee payable by it computed under the provisions of said amendatory act.</p>

Assumpsit by Tola Bovin against Isaer Sandelman and others for the amount of an award of arbitration. Judgment for plaintiff on a directed verdict. Defendants bring error.

<p>1. Limitation of Actions — Mutual Open Account — Accrual of Action — Statutes.</p> <p>Under 3 Comp. Laws 1915, § 12324, in actions brought to recover the balance due upon a mutual and open account current, the cause of action is deemed to have accrued at the time of the last item proved in such account.</p> <p>2. Same — Essentials of Mutual Account.</p> <p>It is essential to a mutual account that there be reciprocity of dealing; the items must not be all on one side; there must be mutuality.</p> <p>3. Same — Delay in Adding New Items to Account for Statutory Period Bars Recovery — Last Item: Within Statutory Period Saves Items Beyond.</p> <p>Where there has been a delay for the statutory period in making or adding any new items to an old mutual account, it may operate as a bar, but if the hiatus is less than the period of limitations, it will not have this effect, and if the last item is within the statutory period, it draws after it items beyond that time.</p> <p>4. Samis — Unauthorized Payments on Account by Third Party Not Binding on Debtor.</p> <p>Where payments on an open account eoncededly were not made by defendant, and the relation of the party making them is not shown, and it does not appear that defendant authorized them, it cannot be said, as a matter of law, that he made or authorized such payments.</p> <p>5. Same — Evidence—Application of Payment — Directed Verdict.</p> <p>Where, in an action on an open account, it appears that recovery for most of the items of the. account would be barred by the statute of limitations unless a payment made by defendant was authorized to be applied on the old account, as claimed by plaintiff and denied by defendant, the trial court was in error in directing a verdict for plaintiff.</p>

), J. Assumpsit in justice’s court by James Bramble against James H. Kellogg and others on a bond. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

), J. Richard Savage was convicted of violating the liquor law, and sentenced to imprisonment for not less than 6 months nor more than 1 year in the State prison at Jackson.

<p>Error to Muskegon; Vanderwerp (John), J.</p> <p>Assumpsit by Thomas McCambridge against the Crosby Transportation Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Fraud — Misrepresentation as to Amount of Capital Stock is Material — Rescission—Tender.</p> <p>A statement to a prospective purchaser of stock in a corporation that its capitalization is but $50,000 when it is $250,000 is a misrepresentation of a material fact, and, if made to induce the purchase, and the purchase is made in reliance thereon, is ground for rescission, and, after tender hack, recovery may be had of the money paid.</p> <p>2. Same — Burden of Proof — Fraud Not Ineereed.</p> <p>One alleging fraud has the burden of proof, and when relief is sought on said ground it must be proven clearly and conclusively; it may not be lightly inferred, and the defrauded party must have made prompt complaint when the facts came to his knowledge.</p> <p>3. Same — Evidence—Proof—Burden of Proof — Directed Verdict.</p> <p>Although plaintiffs testimony as to said fraudulent misrepresentations, which were denied by defendants, was not supported by any other witnesses, it cannot be said, as a matter of law, that recovery is thereby precluded, where there are other facts and circumstances in the case which support plaintiffs’ claim, since the rule applies to the weight of the evidence, and not to the character of the proof necessary to sustain the charge made.</p> <p>4. Same — Evidence—Sufficiency.</p> <p>Evidence held, sufficient to justify a finding that the salesman, who was a stockholder in defendant corporation, in selling said stock to plaintiffs, was acting for the corporation and in pursuance of an arrangement between himself and the president of the corporation; that the claimed false representations were made, and that plaintiffs were deceived thereby.</p> <p>5. Same — Evidence—Par Value of Stock Immaterial.</p> <p>In an action to recover money paid for stock in a corporation whose capitalization was fraudulently represented to be $50,000, while in fact it was $250,000, the question as to whether the stock was worth par is immaterial, since it is apparent that stock in a corporation capitalized at $50,000 is of greater value than if the capitalization be $250,000.</p> <p>On rescission for fraud or misrepresentation in procuring subscription to stock, see note in 33 L. R. A. 721.</p> <p>On validity of subscription induced by false statements that certain other persons were to invest in the enterprise, see note in 29 L. R. A. (N. S.) 477.</p>

), J. Annie Gies presented for probate the last will of John Vhay, deceased. The will was allowed in the probate court, and Arthur J. Vhay and another appealed to the circuit court. Judgment for contestants. Proponent brings error.

<p>Husband and Wife — Married Woman Not Liabee on Contract Guaranteeing Payment of Debt of Another.</p> <p>The married woman’s act (3 Comp. Laws 1915, § 11485) permitting married women to deal with their own property as if single, held, not broad enough to validate the contract of a married woman guaranteeing the payment of . the gas bills of another; said contract not being in reference to her separate estate.</p>

), J. Bill by Charles Nechman and others against William Ross to restrain the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

<p>1. Searches and Seizures — Constitutional Law — Premises to be Searched and Thing to be Seized Must be Described.</p> <p>Under the constitutional provision prohibiting unreasonable searches and seizures, search warrants may issue only on probable cause supported'by oath or affirmation, and they must describe the place to be searched and the person or thing to he searched for and seized if found.</p> <p>2. Same — Search Warrant Limits Okbtoer’s Duty.</p> <p>The duty and rights of an officer executing a search warrant are strictly limited to its mandate, both as to place and thing.</p> <p>3. Same — Search Warrant — Authority to Seize Beans No Authority top. Seizing Whisky.</p> <p>That an officer was lawfully upon premises with a search warrant to search for and seize stolen beans would not authorize him to seize a quantity of moonshine whisky, found thereon.</p> <p>4. Same — Intoxicating Liquors — Evidence Unlawfully Seized Not Admissible.</p> <p>In a prosecution for the unlawful possession of intoxicating liquors, moonshine whisky found and seized on defendant’s premises by virtue of a search warrant authorizing the search for and seizure of stolen beans, was not admissible in evidence, since its seizure was unlawful, constituting the officer a trespasser.</p>

), J. Bill by Perry Klasky against Mary M. Burkheiser for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

Louis Peranio was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

), J. Donald Williams and Goebel Baker were convicted of breaking and entering dwelling houses in the nighttime with intent to steal, and sentenced to imprisonment for not less than iy% nor more than 15 years in the State prison at Jackson.

), J. Case in justice’s court by Isadore Dunsky against Benjamin Kaufman for fraud. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant non obstante veredicto. Plaintiff brings error.

Clair; Tappan (Harvey), J. Bill by Laura G. Moran, administratrix of the estate of James N. Phillips, deceased, against Everett Beson and another to set aside a deed. From a decree for plaintiff, defendants appeal.

), J. Case by William Pratt against the Detroit Taxicab' & Transfer Company for loss of services of his minor son. Judgment for plaintiff. Defendant brings error.

Appeals from Van Burén; Des Voignes (L. Burget), J. Bill by Oscar E. Anderson against Charles W. Thompson to remove a cloud upon the title to land. From the decree rendered, both parties appeal.

Emma Waite and others presented their claim for compensation against the Fisher Body Corporation for the accidental death of their decedent in defendant’s employ. From an order awarding compensation defendant and the Employers’ Liability Assurance Corporation, insurer, bring certiorari.

Ella Reed presented her claim for compensation against the Bliss & Van Auken Lumber Company and the Michigan Mutual Liability Company, insurer, for the accidental death of her husband in defendant’s employ. From an order denying compensation, plaintiff brings certiorari.

<p>Appeal from Wayne; Richter (Theodore J.), J.</p> <p>Bill by Frank G. Bennett and another against Fred W. Haines and others to enjoin the forfeiture of a sales contract, and for an accounting. From the decree rendered, plaintiffs appeal.</p>

), J. Bill by Sam Elbom and another against Albert Pavsner and others to enjoin the forfeiture of a land contract, for specific performance, and for an accounting. From a decree for plaintiffs, defendants appeal.

), J., presiding. Bill by Della Griffin against Charles S. Griffin and others to establish an interest in certain real estate, and for a divorce from defendant Griffin. From a decree for plaintiff, defendants appeal.

), J., presiding. Summary proceedings by Julius Steinberg against Harry Fine for the possession of leased premises. There was judgment for defendant, and plaintiff appealed to the circuit court by writ of certiorari. Judgment for plaintiff. Defendant brings error.

), J. Bill by William Adadow and another against Milton H. Perry and others for the rescission of a land contract. From a decree for plaintiffs, defendants appeal.

), J. Assumpsit by Louis H. Krieger, administrator of the estate of Wallace Lovewell, deceased, against Seymour Cunningham upon a promissory note. Judgment for plaintiff. Defendant brings error.

), J., presiding. Case by Russell G. Patterson and another, administrators of the estate of Egbert G. Patterson, deceased, against Charles G. Brater for the loss of certain moneys in defendant’s possession. Judgment for defendant. Plaintiffs bring error.

Case by William Gibbard, administrator of the estate of Beatrice Gibbard, deceased, against Edmund Cursan and another for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

), J. Petition by Don E. Minor against Frank Fick to establish a lien upon a judgment for legal services. Judgment for petitioner. Defendant brings error.

<p>Trial — Instructions—Preponderance op Evidence — Number op Witnesses.</p> <p>Where the trial court, in instructing the jury as to the preponderance of evidence, evidently intended to charge that “a fair preponderance of the evidence does not necessarily mean a greater number of witnesses,” but he inadvertently omitted the word “necessarily,” said omission, if error, held, not reversible, in view of the context, wherein the court made clear to the jury what their province was, and that the plaintiff must produce such evidence as convinced them of his claim.</p>

<p>Case-made from Kent; Brown (William B.), J.</p> <p>Assumpsit by Daniel J. Greene, assignee of Peter Viergever, sheriff of Kent county, against Theresa Hertzig and another on a statutory bond. Judgment for plaintiff. Defendants appeal.</p>

<p>1. Landlord and Tenant — Judgment of Restitution Conclusive Evidence of Unlawful Holding — Double Damages.</p> <p>In an action against a tenant under 3 Comp. Laws 1915, § 13251, for double damages for the unlawful withholding of leased premises, a judgment for plaintiffs in proceedings for restitution under 3 Comp. Laws 1915, § 13240 et seq., in which they alleged that defendant “holds said premises unlawfully and against the right” of plaintiffs, held, conclusive evidence thereof.</p> <p>2. Same — Notice to Quit Necessary.</p> <p>A tenant holding over after the expiration of his term has a right to presume that he will be required to pay only actual damages until the landlord, by notice to quit or demand of possession, in effect apprises him that if he remains longer, he will be subject to the double damages provided in section 13251, and double damages may therefore be recovered only from the time of said notice or demand.</p> <p>3. Same — Commencement of Proceedings for Restitution Sufficient Notice to Quit.</p> <p>The beginning of proceedings before a circuit court commissioner for restitution of premises alleged to be held unlawfully, held, to be sufficient demand of possession to entitle the landlord to double damages from the date of serving summons therein.</p> <p>4. Same — Evidence—Question for Jury.</p> <p>Where there was a dispute as to defendant’s right under an option contained in the lease to renew, and defendant sent a check for the rent for the first month after the lease expired, which was returned to him, whether certain letters written to defendant were intended to be a demand for possession on the expiration of the lease on the part of plaintiffs, and were, or should have been, so understood by defendant, held, under all the circumstances, ' a question of fact for the jury.</p> <p>5. Same — Security for Rent Passes to Landlord’s Grantee.</p> <p>A deposit of money, made by a tenant to secure performance under the lease, was in the nature of a continuing security, and, on a sale of the premises subject to the lease, passed to the grantees with the title, and, on the expiration of the lease, it was their duty to return it to the tenant.</p> <p>6. Set-off and Recoupment — Tort.</p> <p>Recoupment of damages may be had in actions of tort, where defendant’s claim arises out of the same transaction.</p> <p>7. Same — Landlord an,d Tenant — Amount Deposited for Performance of Lease May be Recouped in Action for Double</p> <p>Damages.</p> <p>Plaintiffs having failed to return to defendant the amount deposited with plaintiffs’ grantor for faithful performance under the lease, recoupment for same will lie in an action for double damages for unlawful holding of the premises after' expiration of the lease.</p>

), J., presiding. Assumpsit by Evelyn Stanaback against William McFadden for services rendered. Judgment for defendant non obstante veredicto. Plaintiff brings error.

), J., presiding. Bill by Ethel Harris Jones against John Ireland, Albert S. Harris and others for the specific performance of a contract. From a decree for plaintiff, defendant Harris appeals.

<p>Error to Wayne; Goff (John H.), J.</p> <p>Case by Walter Pilch against the Yellow Taxicab Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Genesee; Brennan (Fred W.), J.</p> <p>Fred Murel was convicted of an assault with intent to commit murder and sentenced to imprisonment for not less than 20 nor more than 40 years in the State prison at Marquette.</p>

Mandamus by Ralph Phelps and another to compel Frederick W. Mayne, acting circuit judge of Wayne county, to vacate an order granting a new trial in an action of ejectment.

Case by Frank M. Steele and another against John H. Banninga for fraud in the sale of real estate.' Judgment for plaintiffs. Defendant brings error.

), J. Bill by M. Ralph Carrier and others against the State administrative board of the State of Michigan and others to enjoin the expenditure of certain money. From an order denying a motion to dismiss, defendants appeal.

<p>Appeal from Washtenaw; Sample (George W.), J.</p> <p>Bill by Louis E. Fisk against the State Savings Bank of Ann Arbor and another to quiet title to land. Defendants filed a cross-bill to establish a judgment lien. From a decree for defendants, plaintiff appeals.</p>

<p>Mandamus by Richard Kammeier and others to compel John Vanderwerp, circuit judge of Muskegon county, to vacate an order dismissing an action at law.</p>

Certiorari by Adelaide .DeGuzman against Frank Shepherd, acting circuit judge of Wayne county, to review an order denying motions to se.t aside justice’s court judgments, to vacate an order permitting an amended return to an execution, and to vacate an order appointing a receiver.

Case by Roy K. Gunther against tne board of county road commissioners of Cheboygan county and another for personal injuries. On motion of defendants the action was dismissed. Plaintiff brings error.