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Opinion of the Court.

We have searched the record in this case in vain for evidence that the plaintiff brought about this settlement by any fraud, misrepresentation or undue influence. Undoubtedly the defendants had confidence in Mr. Chandler's integrity, his knowledge of business, and his acquaintance with these estates; it is possible that he was better informed of the amount of Edward's estate than they, but there is nothing to indicate that he made use of this information to deceive them as to its value. Their motive in entering into this agreement was doubtless an honorable one. They had been engaged in a long and apparently bitter quarrel with their brother Edward over the supposed misappropriation of their father's estate. George had been, to use Mr. Morrison's own language, “practically disinherited by the father. His sisters had not broken the father's will and reinstated him. This had made George very sore. The aunt and uncle suggested and pressed upon the ladies the fact that they then had the opportunity to bring about a perfect reconciliation and peace with their brother; that if litigation was stopped and all that there was divided up equally among the three, what was left, that this desirable result would probably be accomplished.” The sisters had themselves been excluded from Edward's will, and there was at least a possibility that his estate would be large enough to make an equal division of both estates advantageous to them. Under these circumstances, and for the sake of peace, they agreed to the settlement. If equality be equity, we see no reason why it should be disturbed. From a financial point of view the agreement may have been a mistake. They acted, however,

. not without deliberation, and with at least an opportunity of consulting with counsel and with Mr. Morrison, in whom they seem to have perfect confidence. But if the venture turned out unfortunately for them, it is difficult to see in what particular plaintiff was to blame.

Much stress was laid by the court below upon the fact that Mr. Chandler advised the sisters not to consult with a lawyer with regard to the proposed settlement. This was strenuously denied by Chandler; but whether this be so or not, it is evident that the first proposal not to consult with a lawyer came

Opinion of the Court.

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from Julia herself in her letter of March 12 to her brother George, in which she makes the distinct proposal to “do away with all lawyers.” But at any rate, the fact is indisputable that they did consult their counsel, Mr. Shoudy; and that the plaintiff accompanied them to his office, and handed him a copy of the agreement, which he retained over night, although Mr. Shoudy testifies that his advice was not sought as to the propriety or advisability of the agreement. He seems, however, to have made no objection beyond the suggestion “that it was a leap in the dark,” and if the defendants had any doubts themselves about its propriety, they should have consulted him upon the subject.

Reliance is also placed upon the frequent use, both in the correspondence and in the oral testimony, of the words

dividing up what was left.” These words are, however, susceptible of two constructions; they may refer, as contended by the defendants, to the residue of the estates after laying aside the trust funds; or they may refer to what was left over and above what the children had spent or Edward had lost, if any, in speculation. Indeed, these words are so ambiguous as to be an unsafe guide in ascertaining the actual intent of the parties.

In order to justify the court in refusing to enforce a family settlement of this kind upon the ground that it was obtained by an active or covert misrepresentation, or that it failed to express the real intent of the parties, the testimony should establish the fact clearly and satisfactorily. In this case, however, all or nearly all the written testimony tends to corroborate rather than to impeach the agreement, and it is only by resort to oral evidence of facts asserted by one party and denied by the other that any doubt whatever is thrown upon the intent of the parties. That Mr. Cowles, who was one of the first to talk with the sisters regarding the settlement, did not suppose the trust funds were to be excluded is manifest from a letter written by him to George P. Pomeroy, March 18, before he left for Europe, in which he says: “The girls have made this proposition in order to settle the litigation: That you give up your claim to the annuity you have,


Opinion of the Court.

they give up their claim to the special legacy of $100,000 left them in your father's will, and that all property, landed and personal, be divided equally among all three of you.” It was apparently upon the basis of this letter and his subsequent conversations with Mr. Cówles that Pomeroy cabled his acceptance of the proposition. The letter was written after his interview with the sisters, and in all probability he stated the agreement as he understood it from them. He would scarcely have ventured to impose upon George by manufacturing a different story. Under the circumstances it seems to us very improbable that the parties could have contemplated that securities to the amount $130,000, worth $142,000, should be withdrawn and not taken into account in the division, or that George would ever have consented to the agreement with that reservation.

We do not find it necessary upon this appeal to put a construction upon this agreement, to determine whether it applies to the principal as well as the income of the trust funds, or whether in this suit the court may proceed to a partition of the real estate. These questions will arise more properly upon the settlement and enforcement of the decree. It is sufficient for the purposes of this case to hold, as we do, that the settlement was a valid one, and that the defendants should be required to account under the written agreement so to be construed. The decree of the court below will be reversed and the case

remanded, with instructions to enter a decree for the plaintiff, and for further proceedings in conformity with this opinion.

Statement of the Case.




No. 1031. Argued and submitted January 20, 1892. – Decided February 29, 1892.

The act of the legislature of Michigan of June 28, 1889, (Public Laws of

1889, pp. 282, 283,) fixing the amount per mile to be charged by railways for the transportation of a passenger, violates no provision in the Con

stitution of the United States, so far as disclosed by the facts in this case. A legislature has power to fix rates for the transportation of passengers

by railways, and the extent of judicial interference is protection against

unreasonable rates. Whenever, in the pursuance of an honest antagonistic assertion of rights,

there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must determine whether the act be constitutional or not; but it never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legis

lative act. Courts should be careful not to declare legislative acts unconstitutional

upon agreed and general statements, and without the fullest disclosure of all material facts.

In 1889 the legislature of the State of Michigan passed an act, number 202 of the Public Acts of that year, pages 282 and 283, by which, among other things, section 2333 of Howell's Statutes, being a part of the railroad law of that State, was amended. So far as affects the matters in controversy here, it is enough to quote from the ninth paragraph, referring to the powers and liabilities of railroad companies. That is as follows:

“Ninth. To regulate the time and manner in which passengers and property shall be transported and the tolls and compensation to be paid therefor; but such compensation for transporting any passenger and his or her ordinary baggage, not exceeding in weight one hundred and fifty pounds, shall not exceed the following prices, viz. : For a distance not exceeding five miles, three cents per mile ; for all other distances, for all companies the gross earnings of whose passen

Statement of the Case.

ger trains, as reported to the commissioner of railroads for the year one thousand eight hundred and eighty-eight, equalled or exceeded the sum of three thousand dollars per mile of road operated by said company, two cents per mile, and for all companies the earnings of whose passenger trains reported as aforesaid were over two thousand dollars and less than three thousand dollars per mile of road operated by said company, two and a half cents per mile, and for all companies whose earnings reported as aforesaid were less than two thousand dollars per mile of road operated by said company, three cents per mile.”

Prior thereto the regular fare charged on plaintiff in error's road from Port Huron to Battle Creek was $4.80, the distance being 159 miles. On the very day on which the law took effect, to wit, October 2, 1889, the defendant in error, plaintiff below, went to the defendant's office in Port Huron, and tendered $3.20 for a ticket from that place to Battle Creek, which was refused. Thereupon he brought this action in damages, to which the railroad company promptly answered; and on November 22, 1889, less than two months from the time the law went into effect, the case was tried and a verdict and a judgment entered in favor of the defendant in error for the sum of $101, an amount sufficient to take the case to the higher court. On the trial it was agreed that the railroad company's earnings on its passenger trains for the year 1888 exceeded three thousand dollars per mile; that its capital stock was $6,600,000, and had been fully paid in; that its bonded debt was $12,000,000, one half bearing six per cent and the other half five per cent interest, payable semi-annually; that the capital stock and mortgage debt represented an actual amount paid into the corporation; that the railroad property was at the time worth more than the capital stock and mortgage debt; and that in addition to the mortgage debt there was a floating debt of the amount of $896,906.40. Further, the following tabulated statement of the earnings and expenses for the year 1888 was admitted to be correct:

“7th. That the total earnings and income of the defendant from all sources for the year 1888 was $3,228,338.17.

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