HOOKER, J. The defendant, in presence of others, said to the plaintiff, "You thief; you d-n thief; you are a thief, and I can prove it." Being held liable in an action for slander, the defendant has brought error, and the brief of his counsel states that there are but two points to be considered: (1) That the declaration sets forth no cause of action, and therefore no testimony should have been admitted against the defendant's objection, and his request to direct a verdict for the defendant should have been given. (2) There was neither allegation nor proof of injury to feelings, and a verdict should have been directed for the defendant, and the court should not have allowed the jury to find a verdict upon the ground of injury to the plaintiff's feelings. These contentions are based on section 1, Act No. 216, Pub. Acts 1895, which reads as follows, viz.: "The people of the state of Michigan enact, that in cases brought for the recovery of damages for libel or slander in this state, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation or feelings." The declaration concludes with the averment: "By reason of the speaking, publishing, and uttering of which said false, scandalous, malicious, and defamatory words, the said plaintiff is greatly prejudiced in his good name, fame, credit, and reputation; wherefore the said plaintiff says that he is injured and has sustained damage to the amount of five thousand dollars, and therefore the said plaintiff brings suit," etc. The testimony showed that the language complained of was used boisterously, several times, and in the presence of several persons. The learned circuit judge held the allegation sufficient, and that the jury might infer injury to feelings from the testimony stated.

Injury to feelings has always been included among the things for which general damages are recoverable, and no special allegation has been considered necessary. A statement of the slander, with a general ad damnum clause, was sufficient. And the law presumed the injury to the feelings from the proof of the slander, and the jury were allowed to determine the amount of the damage without opinion evidence thereon. These things are not changed by the statute. It is not necessary to specially plead injury to the feelings, nor does the law require proof beyond the proof of the slander before it will presume injury to the feelings. We find no error in the record, and the judgment is affirmed. The other justices concurred.

FEIGE v. BURT et al.1 (Supreme Court of Michigan. Sept. 27, 1898.) EXECUTION-PROPERTY SUBJECT-STOCK-PLEDGES

-CONVERSION-DEMAND-TENDER.

1. Under How. Ann. St. § 7697 et seq., authorizing a levy of execution on shares of stock,

1 Rehearing denied January 24, 1899.

and requiring the officer in charge of the records of the company to give a certificate of the number of shares held by the debtor, shares owned by the debtor, but standing in the name of a third person on the books of the company, are not subject to levy on execution.

2. A sale of shares of stock by a pledgee thereof, without notice to the pledgor, is a conversion. 3. When a pledgee of stock wrongfully sells it, the pledgor may sue for the conversion without first tendering the debt or demanding a return of the stock.

Error to circuit court, Saginaw county; Byron A. Snow, Judge.

Trover by Ernest Feige against Wellington R. Burt and another. There was a judgment for defendants, and plaintiff brings error. Reversed.

Weadock & Purcell, for appellant. Humphrey & Grant, for appellees.

MOORE, J. Plaintiff sued defendants, in an action of trover, to recover the value of 20 certificates, representing 800 shares of stock in the Feige-Silsbee Furniture Manufacturing Company, claimed by him to have been unlawfully converted by defendants. The circuit judge directed a verdict in favor of defendants. Plaintiff has appealed the case to this court.

Prior to 1888 the plaintiff was one of the incorporators of the Feige-Silsbee Furniture Manufacturing Company. He was a borrower of the defendant bank. November 8, 1888, he pledged to the bank the certificates of stock already mentioned, he indorsed them in blank, and at the same time a paper was executed reciting the deposit of the certificates "to be held by said bank as collateral security for any obligation which I may now have or hereafter have" in said bank. May 1, 1895, Mr. Feige gave his note to the bank in the sum of $6,650, due in three months. The defendant Burt became a stockholder in the furniture company some years ago. He was its president when this note was given, and continued to be its president from that time on. Mr. Feige was a director, and for some time had been manager, of the company. Mr. Burt was also president of the bank. It is the claim of the plaintiff that Mr. Burt and the bank conspired together to depreciate the value of the stock, and to deprive him of it without compensation, and to displace him from his position as director and manager of the company. He says on February 10, 1896, the bank, without notice to him, through its president, Mr. Burt, surrendered the 20 certificates of stock, and 1 certificate in lieu thereof was issued to the bank for the 800 shares, and the 20 certificates were canceled. He claims the certificate so issued was never returned to the furniture company. He says Mr. Burt, as president of the company, refused to recognize him as a stockholder at the meeting of the stockholders of the company, in February, 1896; that he was then displaced as director and manager; that he was refused access to the books of the company; and that the sec

retary of the company and Mr. Burt declared he had no interest as a stockholder or otherwise in its affairs. He further claims that, in the annual report made to the secretary of state, it was reported the 800 shares of stock which had been previously represented as held by him were owned by the bank. He claims that what was done was done, not for the purpose of collecting the debt, but for the purpose of depriving him of his stock. It is the claim of Mr. Burt and of the bank that what they did was done in good faith; that, for the purpose of making the bank secure against possible levies by creditors, the bank had a right to surrender the certificates, and have one issued in its name; and that it did not claim to be the absolute owner of the stock as against plaintiff, but always recognized his right to it upon his payment of the debt to secure which it was turned out. May 18, 1896, the bank obtained judgment upon the note given by Mr. Feige, and caused an execution to be issued and placed in the hands of a deputy sheriff, who served a copy of it upon the secretary of the company, who on June 10, 1896, issued the following certificate: "C. Dingman, Deputy Sheriff for Saginaw County, Mich.-Dear Sir: You are hereby notified that, as appears by the books of the Feige Desk Company, of Saginaw, Michigan, a corporation, Ernest Feige is the owner of eight hundred shares of the capital stock of said company, of the par value of twentyfive dollars each, subject, however, to the interest therein as pledgee of the Home National Bank of East Saginaw, Michigan. Said stock is represented by certificate No. 100, issued February 10th, 1896, to said Home National Bank. Yours, truly, G. R. Burt, Sec. and Treas. of the Feige Desk Co." As a matter of fact, the stock at this time stood upon the books of the company in the name of the bank. The stock was advertised and sold by the sheriff for $400, and this amount was paid over to the bank. Before suit was brought, no tender was made of the debt and no demand made for the stock. It is the claim of plaintiff that what occurred in February amounted to a conversion of the stock, and that the court erred in refusing to submit to the jury the question of whether there had been a conversion or not.

Where stock is pledged to secure the payment of a debt, in default of payment the pledgee may not at once convert the stock to his own use, but he may give notice to the pledgor of an intent to sell the stock, and may so sell it, without any judicial proceedings, and apply the proceeds to the payment of the debt. Cook, Stocks & S. § 476. A sale without a notice is a conversion of the stock, and, in the absence of any agreement, the sale must be at public auction.

It the claim of defendants that there was no attempt to deprive the plaintiff of his stock in February, and that the pledgee of shares of stock has a right to have the stock 77 N.W.-59

transferred, and new shares issued in his name, and that doing so does not amount to a conversion; citing Coleb. Coll. Sec. § 288; Day v. Holmes, 103 Mass. 306; Heath v. Griswold, 18 Blatchf. 555, 5 Fed. 573; Heath V. Smelting Co., 39 Wis. 146; Rich v. Boyce, 39 Md. 314; Cook, Stocks & S. § 466. These authorities sustain the position of counsel, but it is the claim of plaintiff that defendants went further than this; that they used the stock as though it was the stock of the bank, and denied that plaintiff had any right in it or in the company. Plaintiff gave testimony tending to support his claim. We think there were sufficient facts shown so the question should have been submitted to the jury.

Was there a conversion by the levy upon and sale of the stock? A share of stock is in the nature of a chose in action, and at common law a chose in action could not be reached by or made subject to a levy of execution. Consequently it has been uniformly held by the courts that at common law a levy of execution could not be made on shares of stock. Cook, Stocks & S. § 480; Van Norman v. Jackson Circuit Judge, 45 Mich. 204, 7 N. W. 796. As the levy upon execution is authorized only by virtue of the statute, its provisions must be substantially observed. Cook, Stocks & S. § 482. How. Ann. St. § 7697, provides that any shares or interest of a stockholder in any joint-stock company may be taken in execution. The next section provides that a copy of the execution shall be left with the person having the custody of the books or papers of the company. The next section reads: "The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein shall

be bound to give a certificate of the number of shares or the amount of the interest held by such judgment debtor." As we have already seen, none of the certificates of stock stood upon the books of the company in the name of Mr. Feige after February 10th. This was known to the secretary of the company, and to the bank; but, knowing this, the bank levied upon the stock as though it stood in his name, sold it, and took the avails of the sale. This sale cannot be justified as an execution sale by a creditor of Mr. Feige. Blair v. Compton, 33 Mich. 441; Van Norman v. Jackson Circuit Judge, 45 Mich. 208, 7 N. W. 796; Stucco Co. v. Kent Circuit Judge, 97 Mich. 631, 57 N. W. 191.

Can the sale be justified as a sale by the pledgee? We have already seen the sale cannot be made until notice has been given to the pledgor of the intention to sell. "A sale without a notice is a conversion of the stock." Cook, Stocks & S. § 477. In Stearns v. Marsh, 4 Denio, 227, it is held. if the pledgee sell the property, without calling on the pledgor to redeem, the latter may maintain an action for the value of the thing

pledged, without tendering the debt, because by the wrongful sale the pledgee has incapacitated himself to perform his part of the contract, that is, to return the pledge, and it would therefore be nugatory to make the tender; citing Story, Bailm. (2d Ed.) 349; McLean v. Walker, 10 Johns. 472. In such case the pledgee may recoup the amount of his debt. The sale made was an unlawful sale, and amounted to a conversion. The plaintiff was entitled to recover the value of the shares of stock, less the amount of the debt. The judgment is reversed, and a new trial granted.

MONTGOMERY, J., did not sit. The other justices concurred.

127, 56 N. W. 365; Richardson v. Medbury, 107 Mich. 176, 65 N. W. 4. It is also significant that Mr. Bolam dealt with others, and. among other transactions, gave a mortgage to John Ward and Sidney J. Miller, two reputable members of the bar. We find that the value of the property conveyed did not exceed the price paid but slightly, if at all. There was no overreaching, by way of driving a hard or unconscionable bargain. The transactions must be set aside, if at all, on the ground of mental incompetency. We are satisfied that the circuit judge was right in holding that the complainants had failed to show by a preponderance of the evidence that Mr. Bolam was incompetent. The decree dismissing the bill will be affirmed. The other justices concurred.

CORBY et al. v. MORAN et al. (Supreme Court of Michigan. Jan. 20, 1899.) BILL TO SET ASIDE DEEDS-DISMISSAL REVIEW.

On a bill to set aside deeds on the ground of grantor's incompetency, a dismissal of the bill for failure to show the incompetency by a preponderance of the evidence will not be disturbed, it appearing that the value of the property exceeded the price paid slightly, if at all. Appeal from circuit court, Wayne county; Willard M. Lillibridge, Judge.

Bill by Abby Corby and others against Frances A. Moran and others. From a decree dismissing the bill, complainants appeal. Affirmed.

John Atkinson (O'Brien J. Atkinson and William F. Atkinson, of counsel), for appellants. Edwin F. Conely, Orla B. Taylor, Stewart & Wenzell, and James C. Smith, Jr., for appellees.

MONTGOMERY, J. The complainants are the heirs at law of Thomas Bolam, who died in 1891, aged 70 years. This bill is filed to set aside four deeds made by him in his lifetime,-one to William B. and Charles G. Moran, April 3, 1873; and the other three to William B. Moran, dated, respectively, September 3, 1877, April 29, 1878, and October 8, 1878. The claim of complainant is that Thomas Bolam was, at the several dates when these deeds were executed, mentally incompetent, and that the consideration paid was in each case inadequate. It is not claimed that Mr. Bolam was an imbecile, but it is contended that he was simple-minded, and unable to understand the effect of the transactions involved, and that this want of capacity was known to the grantees. A large number of witnesses appeared on either side who had known Mr. Bolam for many years, and the usual conflict appears. The case is not free from doubt. The fact that the relatives of Mr. Bolam, knowing of his ownership of this property, permitted him to deal with it unrestrained for a long term of years, and took no steps to have a guardian appointed to care for his estate, is significant. Burt v. Mason, 97 Mich.

GALLAGHER v. BOARD OF SUP'RS OF
CHEBOYGAN COUNTY.
(Supreme Court of Michigan. Jan. 20, 1899.)
MANDAMUS AGAINST COUNTY BOARD-ALLOWANCE
OF CLAIMS-ANSWER.

On an application for mandamus against a county board of supervisors to compel them to pass on relator's claim, a sworn answer disclosed that, on receiving the order to show cause, the respondents met, notified relator of a time and place for hearing his claim, and disallowed the same. Held, that the answer must be taken as true, and the writ denied.

Petition for mandamus, on the relation of Cornelius A. Gallagher, against the board of supervisors of Cheboygan county. Writ denied.

Shepherd & Reilley, for relator. S. B. Roe and H. W. Harpstor, for respondents.

GRANT, C. J. Relator's petition sets forth that the respondents, being authorized to purchase a site for a court house, purchased what is known as the "Horne site," for $6,360, of which $4,690 was paid by the county, and $1,670 by respondents and other subscribers. the relator contributing $100. The respondents paid the $4,690, and received deeds for the property. Subsequently the respondents decided upon another site, and made an exchange with the owners for the Horne site. Relator presented his claim to respondents. who, by resolution, referred the matter to the electors, to be voted upon at the next election. He asks for a writ of mandamus to compel the respondents to pass upon his claim. The sworn answer, signed by the chairman and clerk of the board of supervisors, denies all the material allegations of the petition. It sets forth the resolution of the board for the purchase of the Horne site, for the sum of $4,690, and the reasons for making the change; denies that the board had knowledge of or entered into any arrangement with relator or others by which they were to pay a part of the consideration: alleges that, at the time the board passed the resolution selecting the other site, relator

It

and those interested with him filed a protest claiming an equitable interest in the Horne property; and that this was the first time respondents learned of any such claim. further sets forth that, upon receiving the order to show cause in this case, respondents met, and notified relator of the time and place for hearing his claim; that they met, rescinded their former resolution submitting it to the electors, and disallowed the relator's claim. The answer must be taken as true, and the writ must therefore be denied. other justices concurred.

BISSELL v. MOORE.

(Supreme Court of Michigan.

The

Jan. 20, 1899.) AUTHORITY OF AGENT TO RETAIN ATTORNEY

EVIDENCE.

Plaintiff testified that a third person had retained him on behalf of defendant to conduct a suit, that he had refused to be retained unless his claim against the person against whom the suit was to be brought was fixed up, and that defendant gave his note for the amount and took an assignment of the claim; that he afterwards discussed the suit with defendant, who asked him to consult with his regular attorney and take part in the trial, and told him, "You must remember you are my attorney." Defendant requested plaintiff to send his bill, which he did, and to a subsequent demand for settlement defendant replied that he had not retained him. Held, that plaintiff was entitled to go to the jury on the question of the authority of the third person to retain him for defendant.

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Edward J. Bissell against Charles W. Moore. Judgment for plaintiff, and defendant brings error. Affirmed.

John Atkinson, for appellant. Edward J. Bissell, in pro. per.

LONG, J. This action was brought to recover the amount claimed to be due the plaintiff as a retainer and for services in a suit brought by the defendant. Plaintiff is an attorney at law, and resides at Milford. Defendant resides in Detroit. Plaintiff's claim is that one Colgrove came to him at Milford, and stated he was the agent for Mr. Moore, the defendant here, and was authorized by him to retain the plaintiff in a suit against one Ainsworth; that plaintiff made briefs in the case, and performed certain other services therein, for which he claimed compensation. On the trial, the defendant contended that Colgrove was not his agent, and had no authority to make the agreement. This was the main issue on the trial, and which the court below left to the jury to determine. Plaintiff had verdict and judgment for $250. Defendant brings error.

Defendant claims here that there was no evidence tending to show that Colgrove had authority to make a contract with plaintiff for his services or to agree upon a retainer. The plaintiff was called as a witness, and testified substantially that Colgrove came to Milford,

and told him (plaintiff) that Moore had authorized him to retain plaintiff in the case against Ainsworth; that Colgrove said he had told Moore it would cost him $200 or $250 for a retainer; that he (plaintiff) before this time had had some trouble with Ainsworth, in which he claimed the latter owed him $500, and he would not be retained unless Colgrove or Moore fixed that up; that this was settled for $300, Moore giving his note to plaintiff for that amount, and taking back from him an assignment of plaintiff's claim against Ainsworth; that plaintiff then agreed to be retained against Ainsworth; that he afterwards saw defendant, Moore, in Detroit several times, and had some conversations with him about what had taken place between himself and Colgrove, and that defendant then desired him to confer with Col. Atkinson,-who was then Moore's attorney in the matter,and to take part in the trial of the case; that he did confer with Atkinson repeatedly in the matter, and made briefs and sent them to Atkinson; that upon one occasion he complained to defendant of something Colgrove had said or done, and defendant said, "You must remember you are my attorney, and not Colgrove's." It appears that, after matters were settled between defendant and Ainsworth, defendant wrote plaintiff to send him his bill. This plaintiff did, but, getting no response from it, about a month later he wrote defendant to send him a part of it if he could not send the whole. Shortly after this defendant wrote plaintiff, claiming he was not indebted to him, and had never retained him in the case, and that it was a matter of Mr. Colgrove's, and he must settle with Colgrove. Mr. Colgrove in his testimony admitted that in a conversation with plaintiff he told him he had had a talk with defendant, and that defendant wanted plaintiff to appear in the Ainsworth case, and that plaintiff had better go up and see him. It cannot be said, under these circumstances, that there was no evidence to go to the jury on the question of the authority of Colgrove to make this contract for defendant with the plaintiff. The court submitted the question very fairly to the jury. Some other questions are raised, which we have carefully examined. We find no error on the trial of the cause. The judgment is affirmed. The other justices concurred.

ANTISEPTIC FIBER PACKAGE CO. v.

KLEIN.

(Supreme Court of Michigan. Jan. 20, 1899.) FRAUD OF AGENT DAMAGES.

An agent, directed by his principal to buy machinery, furnished some which he had purchased and paid for in part, causing payment for the entire price to be made to the manufacturer of the machinery, who, after retaining the balance due, delivered the rest of the money to the agent. Held, that the principal, on retaining the machinery, with knowledge of the transaction, could only recover from the agent the

amount which he had received in excess of the entire value of the machinery.

Error to superior court of Grand Rapids; Edwin A. Burlingame, Judge.

Action by the Antiseptic Fiber Package Company against Eugene Klein. There was a judgment for plaintiff, and it brings error. Affirmed.

Brown & Adams, for appellant. Taggart, Knappen & Denison, for appellee.

The

HOOKER, J. In 1896, the plaintiff, a corporation, was formed for the purpose of engaging in the manufacture of "Antiseptic Fiber Packages," under patents theretofore owned by the defendant and his wife. capital stock was $10,000. The patents were put in at $5,000, stock being taken therefor; and the defendant Klein was made manager, at a salary of $15 per week, and he was instructed by the directors, at a regular meeting, to purchase the necessary machinery, at the lowest cash price. The machinery was delivered, and the company's checks were made therefor, payable to a Mr. Tannewitz. Tannewitz met Klein at the bank, and drew the money upon these checks, and retained a portion, the rest being paid over to Klein. The plaintiff asserts that, of this money, Klein received and kept $444.14, and this action was brought soon after it discovered the fact. The undisputed evidence shows that, about a year before the corporation was formed, Klein hired Tannewitz to make these machines, he (Klein) furnishing designs, and supervising the work of Tannewitz, and making payments to a considerable amount. The machines were completed before the defendant was employed as plaintiff's manager, and, when he was directed to procure machinery, he caused these machines to be delivered to the plaintiff, and payment to be made, as stated, by checks payable to Tannewitz, who deducted the unpaid balance due to him, turning the remainder of the proceeds over to Klein, who thereby reimbursed himself for money which he had expended, and time spent, in the construction of the machines, which he claims that he was justly entitled to do. The plaintiff's declaration alleges that it purchased these machines from Tannewitz, through its agent Klein, and that the price paid to its agent was $444 more than the agent paid to Tannewitz, and that, by reason of the agent's deception, it suffered damage, the measure of which is the difference between the amount received by Klein and that paid by him to Tannewitz. The evidence failed to support this theory, for it showed that Klein did not buy the machines of Tannewitz for the plaintiff, for Tannewitz did not own them. At the most, he had a lien upon them for a small balance, and we are not advised that he even claimed a lien. But it did show that Klein turned over to the company machinery belonging to himself, at a price fixed by him; and there is testimony tending to show that he concealed the facts from the officers and

stockholders of the company, though he testified that it was understood. There is nothing in the record to show that the machinery was not of good quality, or that it was in any way unsatisfactory. The plaintiff kept it, and apparently found it acceptable. While it is true that the agent could not bind the company by such a contract as he made on its behalf, unless its other officers chose to ratify the bargain, it does not follow that it could keep the machinery, and compel a return of the money paid. It might return the property, and recover the consideration, or it might perhaps keep the property, and recover the excess paid over its reasonable value, upon a proper declaration. Counsel requested the court to direct a verdict in favor of the plaintiff for the full amount of the checks, less the amount retained by Tannewitz, upon the theory that this was the price paid for the machines. The court properly refused this request, for it was clearly shown that the cost of the machines was more than this, Tannewitz having received considerable money upon his labor and material furnished before the plaintiff directed the defendant to procure the machines; and this was as much a part of the cost of the machines as that paid afterwards. No good reason has been suggested why the plaintiff should not pay the full cost of the machines if it chooses to keep them, at least so long as such cost did not exceed the reasonable value of such machines. The jury rendered a verdict for the plaintiff for $45.24, and the plaintiff has brought error.

It is contended on the part of the defendant that it is unnecessary to consider the assignments of error, for the reason that the uncontradicted evidence shows that the court should have directed a verdict for the defendant. It is urged that the testimony did not support the declaration, failing to show that it purchased the machinery of Tannewitz, but showing clearly that Klein attempted to sell machinery of his own to the plaintiff; and it is maintained that if the variance could be disregarded, and the declaration treated as sufficient, the plaintiff failed to prove a case, because there was no testimony tending to show that the plaintiff paid more than the machines were worth. Counsel for the plaintiff lay great stress upon the concealment by the defendant of the fact that he sold his own machines to the company, and insist that the plaintiff was entitled to keep the machines, and pay therefor only a small fraction of their actual value, viz. the small balance paid Tannewitz; but we think there is much force in the defendant's contention that it must pay the reasonable value of the machines, having decided to keep them. It is true, as counsel for the plaintiff maintains, that the law does not permit an agent to bind his principal by a purchase from himself, without the principal's assent, such contracts being void, or at least voidable; but, on the other hand, it does not permit the principal to keep property so pur