James Swan, for appellant.

Harry H. Wait, for appellee.

MCALVAY, J. Plaintiff brought suit in justice's court against four defendants, copartners, doing business under the name of Cement Era Publishing Company. The action was in assumpsit for goods sold and delivered. Plaintiff recovered a judgment for $200.25, damages and costs of suit. Defendant Kranich appealed to the circuit court. Before stating the result of the trial in that court, it will be helpful to the understanding of the controversy to give certain material facts. D. Z. Curtiss, on May 12, 1906, and for some time previous, was the owner and publisher of a certain publication in Detroit, called the "Cement Era." On that date, for a cash consideration of $1,000, he sold to defendant Kranich an undivided onethird interest in said publication, together with good will, accounts, and property belonging thereto, by a written bill of sale warranting title free from all liens, and agreeing to pay all claims, if any, of prior date. Afterwards, on the same or the following day, he entered into a written contract with the defendants Schmidt, Wolfrom & Sovereign, who were a copartnership, to sell them an undivided two-thirds interest in said "Cement Era," and all the property, etc., belonging thereto, for the sum of $1,000 to be paid in monthly installments of $50 each, according to 20 promissory notes executed by them; title being reserved in Curtiss until paid, and said parties to have possession and use of the property in the ordinary course of business so long as not in default.

The firm of Schmidt, Wolfrom & Sovereign chose Wolfrom to manage this business, which duties he at once assumed and continued as long as they were interested in the property. The record shows that Kranich made this purchase as an investment, and that he was never actively engaged in the conduct of this publication, and there is no evidence in the case tending to show co

partnership relations between Kranich and the other defendants. Plaintiff is proprietor and manager of a printing business in Detroit, and his claim against defendants is for paper, wrappers, cuts, etc., furnished in printing and mailing the Cement Era for the months of May and June, 1906, amounting to $430.25, upon which Wolfrom and Baumgartner, the party who purchased the entire property, June 30, 1906, made payments amounting to $230. Defendant Kranich was seriously sick at the time of the trial, and not able to attend and testify. Upon the trial of the case the court instructed the jury that no copartnership relations between Kranich and the three other defendants had been shown; nevertheless the four were joint owners of the property, that it appeared that they intrusted active management of the property to Mr. Wolfrom, and that there was an agreement between the four joint owners that they were to share in the profits, if any, according to their interests, and such agreements made them, as joint owners, liable for any goods furnished and used in the publication of their paper. He further charged the jury that Kranich was the only defendant in the case, and, though the only defendant, he would be liable for the amount and value of the items of plaintiff's claim which were proved in the case as actually delivered and used in the publication of the paper. From a judgment against him alone, entered upon a verdict for the amount claimed by plaintiff, defendant Kranich brings the case to this court by writ of error.

The errors assigned which will be necessary to consider relate to the holdings and charges of the court above outlined. These defendants were proceeded against jointly, upon a joint agreement declared upon, and a judgment was entered in justice's court against them founded upon such agreement. The general appeal of defendant Kranich was authorized by the statute, and brought the whole case to the circuit court upon the issue made and tried in justice's court. The instruction of the court in this case

157 MICH.-22.

seems to have gone upon the theory that, because but one defendant had appealed, the joint obligation upon which a recovery was had, and which was asserted in the court of original jurisdiction, was changed into an individual liability in the circuit court. Plaintiff could not in this case have discontinued against the other defendants and recovered against Kranich alone. The only theory of plaintiff's case was that of joint liability. Anderson v. Robinson, 38 Mich. 409; Fay v. Jenks, 78 Mich. 312 (44 N. W. 380), and cases cited. There are some exceptions to this rule, where disability of infancy or bankruptcy, etc., may exist. The action of the court was, in effect, doing what the parties could not do. Wright v. Reinelt, 118 Mich. 638 (77 N. W. 246). The instruction complained of was erroneous.

The court found that this was not a copartnership, and the record sustains such finding. It also found and instructed the jury "that defendant Kranich owned an undivided one-third interest, and the other three jointly owned an undivided two-thirds in this property, and that the four joint owners intrusted the management of the paper to Wolfrom, and that there was an agreement between the four that they were to share in any profits," etc. The record shows that these parties did own the interests as designated, but it does not show that there was any agreement relative to sharing profits. It appears that Kranich never knew anything about this account, or was consulted about it or any other accounts. There is no agreement, express or implied, that defendant Kranich ever agreed with the others to pay any accounts. Kranich was not known to plaintiff. The court charged that these agreements made them liable as joint owners for any goods furnished by plaintiff. It already appears that the record does not show the agreements the court relied on, and the mere fact that defendant Kranich owned an interest in this property, which, as far as this plaintiff was concerned, was his only relation to it and to this transaction, would not make him liable upon contracts

made by the other owners, in which he took no part, and with which he was not connected. The court was in error in so holding and charging the jury, and under the evidence should have instructed a verdict for defendant, as requested, on the ground that no joint liability had been shown.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

BLAIR, C. J., and GRANT, MONTGOMERY, and BROOKE, JJ., concurred.

DUNKLEY v. CITY OF MARQUETTE.

1. APPEAL AND ERROR-SPECIAL APPEAL FROM JUSTICE'S COURT -RECORD IN SUPREME COURT.

Where the record of appellant fails to show the basis of a special appeal from justice's to circuit court, the proceedings, appearing to be in due form, will be held to be regular.

2. CONTRACTS ASSIGNMENTS OF SALARY OF PUBLIC OFFICERS PUBLIC POLICY.

An assignment by a city comptroller of salary due and to become due him is void as against public policy.1 Granger v. French, 152 Mich. 356, followed and approved.

3. GARNISHMENT-PUBLIC OFFICERS-SALARY.

By an equally divided court, the decision of the circuit court that Act No. 257, Pub. Acts 1899, authorized the garnishment of salary due to municipal officers, is sustained. BLAIR, C. J., and MONTGOMERY, MCALVAY, and OSTRANDER, JJ., dissenting.

'As to validity of assignment of future wages or salary, see note to Rodijkeit v. Andrews (Ohio), 5 L. R. A. (Ň. S.) 564.

Error to Marquette; Stone, J. Submitted April 8, 1909. (Docket No. 10.) Decided July 6, 1909.

Garnishment proceedings by Joseph Dunkley against the city of Marquette, garnishee defendant of Shields McCarthy, and Elizabeth Kitts, claimant. A judgment for plaintiff is reviewed by claimant on writ of error. Affirmed by an equally divided court.

J. L. Heffernan, for appellant.
W. S. Hill, for appellee.

BROOKE, J. This is an action of assumpsit brought by the plaintiff against the defendant McCarthy before a justice of the peace of Marquette county. The declaration was on the common counts, and judgment was rendered by said justice in favor of said plaintiff and against said defendant, Shields McCarthy, for the sum of $89.85 damages and $3 costs, on February 26, 1908. On the 29th of February a summons in garnishment was issued to the city of Marquette, and duly served. On the 4th of March, 1908, the said garnishee defendant filed with said justice its written disclosure setting forth that it was indebted to said Shields McCarthy, principal defendant, for services as city comptroller in the sum of $125 over and above all legal set-offs, and that said indebtedness was for the salary of said comptroller of said city for the month of February. The disclosure also made note of the claim of Elizabeth Kitts as assignee under a written assignment, and the sum of $125 was paid into the hands of the justice. Thereupon the said Elizabeth Kitts was served with notice and with a copy of the disclosure, citing said claimant to appear before said justice at his office in the city of Marquette on the 25th of March, 1908. On March 27, 1908, the parties appeared before said justice. Plaintiff declared on the common counts in assumpsit, and specially on the judgment herein before mentioned, claiming damages $300, etc. Defendant pleaded the gen