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pledged, without tendering the debt, be- 127, 56 N. W. 365; Richardson v. Medbury, cause by the wrongful sale the pledgee has 107 Mich. 176, 65 N. W. 4. It is also signifiincapacitated himself to perform his part cant that Mr. Bolam dealt with others, and, of the contract, that is, to return the among other transactions, gave a mortgage pledge,-and it would therefore be nugatory to John Ward and Sidney J. Miller, two to make the tender; citing Story, Bailm. reputable members of the bar. We find that (2d Ed.) 319; McLean v. Walker, 10 Johns. the value of the property conveyed did not 472. In such case the pledgee may recoup exceed the price paid but slightly, if at all. the amount of his debt. The sale made was There was no overreaching, by way of driving an unlawful sale, and amounted to a conver- a bard or unconscionable bargain. The transsion. The plaintiff was entitled to recover actions must be set aside, if at all, on the the value of the shares of stock, less the ground of mental incompetency. We are amount of the debt. The judgment is re- satisfied that the circuit judge was right in sersed, and a new trial granted.

holding that the complainants had failed to

show by a preponderance of the evidence that MONTGOMERY, J., did not sit. The oth- Mr. Bolam was incompetent. The decree er justices concurred.

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 DeeD8-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.



op 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.

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.

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 and those interested with him filed a protest and told him (plaintiff) that Moore had auclaiming an equitable interest in the Horne thorized him to retain plaintif in the case property; and that this was the first time against Ainsworth; that Colgrove said he had respondents learned of any such claim. It told Moore it would cost him $200 or $250 for further sets forth that, upon receiving the or- a retainer; that he (plaintiff) before this time der to show cause in this case, respondents had had some trouble with Ainsworth, in met, and notified relator of the time and which he claimed the latter owed him $500, place for hearing his claim; that they met, and he would not be retained unless Colgrove rescinded their former resolution submitting or Moore fixed that up; that this was settled it to the electors, and disallowed the relator's for $300, Moore giving his note to plaintiff for claim. The answer must be taken as true, that amount, and taking back from him an and the writ must therefore be denied. The assignment of plaintiff's claim against Ainsother justices concurred.

worth; 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 BISSELL Y. MOORE.

about what had taken place between himself (Supreme Court of Michigan. Jan. 20, 1899.) and Colgrove, and that defendant then deAUTHORITY OF AGENT TO RETAIN ATTOKNEY- sired him to confer with Col. Atkinson,-who EVIDENCE.

was then Moore's attorney in the matter,Plaintiff testified that a third person had re- and to take part in the trial of the case; that tained him on behalf of defendant to conduct a

he did confer with Atkinson repeatedly in the suit, that he had refused to be retained unless his claim against the person against whom the

matter, and made briefs and sent them to suit was to be brought was fixed up, and that Atkinson; that upon one occasion he comdefendant gave his note for the amount and plained to defendant of something Colgrove took an assignment of the claim; that he afterwards discussed the suit with defendant, who

had said or done, and defendant said, “You asked him to consult with his regular attorney must remember you are my attorney, and not and take part in the trial, and told him, “You Colgrove's." It appears that, after matters must remember you are my attorney." Defend

were settled between defendant and Ainsant requested plaintiff to send his bill, which he did, and to a subsequent demand for settlement

worth, defendant wrote plaintiff to send him defendant replied that he had not retained him. his bill. This plaintiff did, but, getting no reHeld, that plaintiff was entitled to go to the

sponse from it, about a month later he wrote jury on the question of the authority of the third person to retain him for defendant.

defendant to send him a part of it if he could

not send the whole. Shortly after this de. Error to circuit court, Wayne county; Rob

fendant wrote plaintiff, claiming he was not ert E. Frazer, Judge.

indebted to him, and had never retained him Action by Edward J. Bissell against Charles

in the case, and that it was a matter of Mr. W. Moore. Judgment for plaintiff, and de

Colgrove's, and he must settle with Colgrove. fendant brings error. Affirmed.

Mr. Colgrove in his testimony admitted that John Atkinson, for appellant. Edward J. in a conversation with plaintiff he told him he Bissell, in pro. per.

had had a talk with defendant, and that de

fendant wanted plaintiff to appear in the LONG, J. This action was brought to re- Ainsworth case, and that plaintiff had better cover the amount claimed to be due the plain- go up and see him. It cannot be said, under tiff as a retainer and for services in a suit these circumstances, that there was no evi. brought by the defendant. Plaintiff is an at- dence to go to the jury on the question of the torney at law, and resides at Milford. De-authority of Colgrove to make this contract fendant resides in Detroit. Plaintiff's claim is for defendant with the plaintiff. The court that one Colgrove came to him at Milford, and submitted the question very fairly to the stated he was the agent for Mr. Moore, the jury. Some other questions are raised, which defendant here, and was authorized by him to we have carefully examined. We find no crretain the plaintiff in a suit against one Ains- ror on the trial of the cause. The judgment worth; that plaintiff made briefs in the case, is affirmed. The other justices concurred. 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 is


KLEIN. sue on the trial, and which the court below left to the jury to determine. Plaintiff had

(Supreme Court of Michigan. Jan. 20, 1899.) verdict and judgment for $250. Defendant


An agent, directed by his principal to buy Defendant claims here that there was no

machinery, furnished some which he had pur

chased and paid for in part, causing payment evidence tending to show that Colgrove had for the entire price to be made to the manufacauthority to make a contract with plaintiff for turer of the machinery, who, after retaining the his services or to agree upon a retainer. The

balance due, delivered the rest of the money to

the agent. Held, that the principal, on retaining plaintiff was called as a witness, and testified

the machinery, with knowledge of the transacsubstantially that Colgrove came to Milford, tion, 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.

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. The 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 mak. ing 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 testi. fied 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. So 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 reasonabie 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

chased, and refuse to pay anything therefor. paid the $350, when the policy sued upon The evidence clearly shows that this machin- was issued to him. In the application for ery could not have been procured any cheap- the insurance the question was asked, "Is the er. It also shows, and the jury must have property incumbered by mortgage or otherfound, that the plaintiff had no claim upon wise?" to which the plaintiff answered, “Yes; the interest that the defendant had in it, to the amount of $350." By the terms of though they gave the plaintiff a verdict for the policy, the application is made a part of $45, apparently placing a less value on the contract, and is to be construed as a warKlein's services than he did. We are of the ranty by the insured of the truth of the facts opinion that the verdict is quite as favorable therein stated. The contention of counsel to the plaintiff as the facts and pleading war- for defendant is that the omission to state rant. The judgment is therefore affirmed. this $500 mortgage given by the plaintiff's The other justices concurred.

brother amounts to a fraudulent concealment of a material fact, and avoids the policy. Counsel for plaintiff insists that this question

is ruled by Insurance Co. v. Gilbert, 27 Mich. NILES v. FARMERS' MUT. FIRE INS. CO.

429. That case, however, is not controlling. OF GRAND TRAVERSE, ANTRIM,

There Gilbert had purchased by contract AND LELEENAU COUNTIES.

from one Prentice the 80 acres upon which (Supreme Court of Michigan. Jan. 20, 1899.)

the insured buildings stood. The purchase INSURANCE-INCUMBRANCE-CoxCEALMENT.

price was $4,000, and only $50 of it had been Insured held, under a land contract where

paid down. Prentice covenanted to convey a by he was to pay $350, a portion of a tract mort

good title, free of incumbrances. At the time gaged for $500. His application stated that the of this conveyance, and at the time of the property was incumbered for $350. Held to be loss, there was an outstanding mortgage on a concealment avoiding the policy, since the land was mortgaged for $150 more than divulged.

the land to one Smalley for $300. The ap

plication stated the value of the house at $4,Error to circuit court, Antrim county; Ros

000, and asked for $2,500 insurance, and on coe L. Corbett, Judge.

the barn $250. The application also stated: Action by Cyrus Niles against the Farmers'

“Loss, if any, payable to mortgagee, so far Mutual Fire Insurance Company of Grand

as his interest may appear.

John Prentice, Traverse, Antrim, and Leleenau Counties.

mortgagee.” The application then proceeds There was a judgment for plaintiff, and de

to ask: "What is the title? A. Article of fendant brings error. Reversed.

agreement.” “Is your property incumbered, Leavitt & Guile, for appellant. H. B. Hud- / -by what, and to what extent? A. By mortson and N. C. Weter, for appellee.

gage for $4,000." "If incumbered, what is

the whole value of your real estate, including LONG, J. This is an action on a fire in. buildings and land? A. $8,000 or more." surance policy held by plaintiff in the de- The policy referred to the application, and fendant company. The policy was issued made it a part of it, and a warranty by the December 2, 1893, and covered $750 on dwell

insured. In reference to the Smalley morting house, and $250 on furniture, etc., there- gage, the court below stated to the jury, in in. The premiums were fully paid, and the substance, that inasmuch as Prentice, by his bouse, furniture, etc., were destroyed on contract, had undertaken to convey to plainMarch 3, 1897. On the trial the jury return- tiff a good title, and was therefore bound to ed a verdict in favor of plaintiff for $562.50 pay off the amount due on this mortgage, and on dwelling house, and $187.50 on furniture, would not be entitled to this $4,000 from the etc. Several defenses were interposed, but plaintiff until he did so, and could recover most of them were settled by the verdict on only the $4,000, less the sum due on that questions of fact, which were properly sub- mortgage, the latter was in legal effect inmitted, and will not be discussed.

cluded in the statement of the $4,000 mortIt is contended that the policy was void gage to Prentice. This charge was held to because a certain mortgage of $500 was not be correct. In the present case, however, disclosed to the insurance company. It ap- the representation was that the incumbrance pears that the plaintiff purchased by land was only $350. This did not include the $500 contract 10 acres of land from his brother, mortgage with which the 80 acres was inupon which was located the dwelling house cumbered, and was not so intended. The insured. He paid nothing upon the contract, $500 incumbrance was not stated. It is apbut went at once into possession of the prop- parent that the property was incumbered for erty. At or before the time of this purchase $150 more than stated in the application. by the plaintiff, his brother had mortgaged The insurance company had the right to be bis farm of 80 acres (and of which this 10 informed of the total amount of the incumacres formed a part) for $500. By the terms brance. By the terms of the contract, the of plaintiff's contract, he was to make cer- statements in the application were made wartain additions to and improvements upon the ranties, and the company had the right to rely house, and upon the payment of $350 was to upon them as true. The court below was in have his deed of the premises. He had made error in holding that such representations the additions and improvements, but had not were immaterial. The court should have di

rected the verdict in favor of defendant. 1. Section 1 of the act of 1897, above reThis policy was issued before Act No. 167, ferred to, confers authority upon the judge Pub. Acts 1897, took effect.

of probate to issue a license and perform the We find no error in the record, aside from marriage ceremony in certain specific cases, this. Judgment is reversed, and a new trial viz.: "Where the female is with child, or awarded. The other justices concurred. where she has been living with some man as

his wife, in cases in which the application for such license is accompanied by the writ.

ten request of the parents of both parties, it PEOPLE v. SCHOONMAKER.

living, and their guardian or guardians, if (Supreme Court of Michigan. Jan. 20, 1899.) either or both of the parents are dead, or by MARRIAGB - VALIDITY · AVOIDANCE- · MixORS - the written request of the parent or guardian RAPE-EVIDENCE-HARMLESS ERROR.

of the minor where only one of the parties 1. Pub. Acts 1897, No. 180, 81, confers au- is under the marriageable age now fixed by thority on the probate judge to issue a license

the statute, when according to his judgment and perform the marriage ceremony when the female is with child, or when she has been liv

such marriage would be a benefit to public ing with some man as his wife, where the ap- morals." The circuit judge held, in effect, plication for license is accompanied “by the that this statute conferred a special authority written request of the arent or guardian of the minor, when only one of the parties is under the

upon the judge of probate, and, before that marriageable age fixed by statute." Held that,

officer is authorized to act, the conditions when there is no parent and no guardian of a fixed by the act must be complied with. We minor applicant, a guardian must be appointed, think this ruling right. This statute had a else the judge cannot act. 2. Under How. Ann. St. § 6224, providing,

special purpose, and the marriage of young in case of marriage of parties either of whom is children, under the age of consent fixed by under the age of consent, that if they shall sep- the general statute, was safeguarded by a arate during such nonage, and not cohabit to

requirement that there be a consent by the gether afterwards, the marriage shall be deemed void. without legal process, the marriage is

parent or guardian. It is contended that the to be deemed void whenever, after the minor statute should be so construed as to require comes of age, the question of its validity may the assent of the guardian in case the infant arise, and it appears that there has been no actual cohabitation from a time during the nonage,

already have a guardian; but such a construcunless the failure to cohabit is due to desertion

tion would, in our judgment, amount to an of the minor by the other spouse.

extension of the statute. The provision re3. In a prosecution for statutory rape, it may

quiring the assent of the guardian was doubt. be shown, to enable prosecutrix to testify, that no lawful marriage ever took place between her

less inserted with the view that the guardian and defendant, though they went through the would have opportunities not afforded a proceremony.

bate judge for making investigation of the 4. The admission of incompetent evidence of a fact otherwise established is harmless.

character and ability of the contracting par

ties, with a view to determining the proprieExceptions from circuit court, Emmet coun

ty or desirability of a marriage between them. ty; Oscar Adams, Judge.

2. The witness Maude Breen was at the Earl Schoonmaker was convicted of stat

time of the ceremony under the age of 16 utory rape, and he brings exceptions. Al- years, and incapable of making a full contract firmed.

of marriage, under sections 6209 and 6210, Fred A. Maynard, Atty. Gen., and Clay E. How. Ann. St. The question is therefore Call, Pros. Atty., for the People. B. T. Hal- presented whether, under section 6224, the stead, for respondent.

voidable marriage was avoided at the time

the testimony was given on this trial. This MONTGOMERY, J. This case has once section provides that in case of a marriage been before this court for review. The opin- solemnized where either of the parties was ion on the former hearing will be found re- under the age of consent, if they shall sepported in 75 N. W. 439. On the second trial arate during such nonage, and not cohabit the respondent was again convicted. On the together afterwards, the marriage shall be second trial it appeared in evidence that the deemed void, without any decree of divorce parties went through the ceremony of mar- or other legal process. In the case of Peo. riage before the judge of probate, and that ple v. Slack, 15 Mich. 193, it was held that a this marriage took place on petition of Maude marriage between two parties, one of whom Breen, without any consent by a guardian; was under the legal age of consent, was that after the ceremony the parties made ar- voidable merely, and not absolutely void, and rangements to go to housekeeping, but never when, as appeared in that case, the party to in fact lived together, either before or after the marriage who was of full age deserted the witness arrived at the age of consent, she the other, the marriage had not ceased to be being, at the time the testimony was given, binding upon him; the court treating the 16 years and 3 months of age, or thereabout. word "separation," as used in the statute, as Two questions are presented: First, whether signifying a voluntary separation. Upon this the marriage was a valid marriage, under Act point there was an able dissent by Mr. JusNo. 180 of the Public Acts of 1897; and, sec- tice Campbell, but the rule of the majority ond, whether the marriage was void, under opinion has too long prevailed to be now open the general statute.

to question. In that case, however, there

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