WOJNOWSKI v. COMMON COUNCIL OF cient to confer jurisdiction upon the circuit

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property.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 166, 167; Dec. Dig. § 89.*]

Error to Circuit Court, Berrien County; George W. Bridgman, Judge.

state need not take notice of the records in | defendant August 27th for a three year old another state with respect to the mortgaged colt, worth perhaps $150, and $125 cash. With the horse said Milo Prior gave a bill of sale, warranting his title. Defendant had no Plaintiff knowledge of plaintiff's interest. finally found the horse in defendant's possession, demanded possession, which was refused, and began this suit. Upon the ground that he was a bona fide purchaser of the horse, defendant asked for a peremptory instruction in his favor. Denying this, the court advised the jury that plaintiff, and not Campbell, had the title to the horse after default, and therefore neither Campbell nor the Priors had any interest to convey to defendant. A verdict for plaintiff was directed.

Action by James Allison against Ira Teeters. Judgment for plaintiff and defendant brings error. Reversed, and new trial granted.

Argued before STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

Coolidge, Riford & White, of Niles, for appellant. Burns & Hillman, of Niles, and J. H. Bibler, of Rochester, Ind., for appellee.

OSTRANDER, J. Plaintiff at one time owned the horse which defendant claims now to own, and on March 23, 1910, sold it to one James F. Campbell, taking a chattel mortgage on the animal because a part of the purchase price was not paid. The mortgage was recorded in Fulton county, Ind., where the horse then was, on April 8, 1910; the vendee having possession of the horse. In December, 1911, the mortgagee began proceedings in the circuit court for said Fulton county to foreclose the mortgage, the complaint setting forth that said Campbell by his promissory note, made March 23, 1910, promised to pay plaintiff $600 one year after date, and to secure payment executed to plaintiff a chattel mortgage on two described horses, one of them the horse in question, that the note is past due and the conditions of the mortgage broken. The relief prayed for is a judgment for $300, the foreclosure of the mortgage, and an order for the sale of the property therein described. The defendant answered the complaint, and later, and on April 22, 1912, judgment for plaintiff for $230.75 was entered, the mortgage was declared to be foreclosed, and the property therein described was ordered to be sold to satisfy the costs and judgment. A præcipe or writ was issued, directed to the sheriff of said county, by virtue of which, as appears by his return, he sold the property September 17, 1912, at public auction to the plaintiff for $297.05 and returned the writ satisfied.

[1] Apparently, this ruling was grounded upon the provision in the mortgage that Campbell should retain the possession of the horse until the note "hereby secured becomes due," and if it is not paid at maturity "said James Allison shall then have the right to take and keep possession of said property wherever it may be found, without any process of law, and the same shall become the absolute property" of the mortgagee. If we have apprehended the reason for the ruling, it is not, in our opinion, a sound one. We need proceed no further than to say that it appears that the mortgagee, after default, did not exercise, or seek to exercise, any right based upon this provision of the mortgage. On the contrary, without retaking or seeking to retake the animal, he instituted proceedings to foreclose the mortgage, secure a judgment, and sell the horse in satisfaction thereof. Without retaking the horse, he became the purchaser at the execution sale which was made after defendant had bought the horse. We notice, too, that the mortgage gives the mortgagee power, upon breach of the conditions of the mortgage, to retake the property and to sell it to the highest bidder. But it is contended by the appellee that the ruling of the trial court is right and should be affirmed because (1) Campbell, under the law of Indiana, had never any title which he could convey, the execution and delivery of the chattel mortgage operating as a conveyance of the absolute title to the mortgagee; (2) by the terms of the mortgage Campbell was a bailee of the horse and could convey no title to it; (3) having agreed with plaintiff to deliver him the horse on a day certain, Campbell was The testimony tends to prove that when thereafter the agent of plaintiff and held posthe writ was issued to the sheriff, which was session for him; (4) the judgment, or decree, May 7, 1912, the horse was in Campbell's pos- of the Indiana court foreclosing the mortgage session. The sheriff did not take the horse, barred the rights of Campbell in the property and plaintiff arranged with Campbell that and should be held by the courts of this state the horse should be turned over to plaintiff, to be conclusive of Campbell's and of defendor the judgment paid, on August 14, 1912. | ant's rights. These propositions may be conBefore that date, and after August 10th, sidered together. Campbell sold the horse to one Jack Prior, who sold it to his brother, Milo Prior, who took the horse to Niles, Mich., on August 21st, put him in a stable and traded him to

It does not appear that any one having knowledge of the law of Indiana testified to the state of the law upon the point relied upon. It does appear that various reports of

Plaintiff has made out no right to the property superior to that of defendant, and the judgment must therefore be reversed and a new trial granted.

FREDRICK et al. v. WILLIS et al.
(Supreme Court of Michigan. July 9, 1913.)
APPEAL AND ERROR (§ 1106*)-REFERRING TO
TRIAL COURT TO TAKE ADDITIONAL EVI-

DENCE.

the opinions of the Supreme Court of that | session of the horse, after he bought him of state were introduced in evidence. It was plaintiff, was not disturbed. held in Lee v. Fox, 113 Ind. 98, 14 N. E. 889, that: "A chattel mortgage is at law a conditional sale, which vests the legal title, and prima facie the right of possession, to the things mortgaged in the mortgagee"-referring to previous decisions of the court. The same case also affirms the doctrine that the right of the mortgagor to discharge the mortgaged property from the claim of the mortgagee after condition broken is abundantly settled. "Unless the right to redeem has been waived, the mortgagor may assert his right at any time after forfeiture, and before the mortgage has been foreclosed, by paying or tendering the debt and interest, and redeeming the title. This right is called his equity of redemption, which may be barred or foreclosed in either of two ways, at the election of the mortgagee. It may be foreclosed by a decree in chancery, or by taking possession of the mortgaged property, and selling it at public auction, in pursuance of legal notice to the mortgagor." We are not attempting by this reference to the decisions of the Supreme Court of Indiana to ourselves determine the state of the law in that jurisdiction at the time the chattel mortgage was given. Lee v. Fox was decided in 1887, and, if the point was material, the law may have been changed since the decision was rendered. Assuming the law to have remained without change, and that in legal effect there was a sale of the horse by Campbell, the mortgagor, to plaintiff, the mortgagee, there was no change of possession of the thing sold.

[2] In this state, and, it may be inferred, in Indiana, when chattels are sold or mortgaged and are not delivered, something is required to stand in the place of change of possession, or else creditors of, and subsequent purchasers from, the vendor, without notice, dealing with the property, are not affected by the sale or mortgage. In jurisdictions where anything is permitted to take the place of the usual change of possession of chattels claimed to have been sold or mortgaged, a public filing or recording of some instrument is required.

[3] And if it is assumed that in this respect, as to the property in question here, the law of Indiana was satisfied, a citizen of this state dealing with the property and its apparent owner in this state is not required to take notice of the records in Indiana. Montgomery v. Wight, 8 Mich. 143; Boydson v. Goodrich, 49 Mich. 65, 12 N. W. 913; Corbett v. Littlefield, 84 Mich. 30, 47 N. W. 581, 11 L. R. A. 95, 22 Am. St. Rep. 681. We hold that defendant's rights are unaffected by the existence and record in Indiana of the plaintiff's chattel mortgage. We do not perceive that defendant's rights are in any manner affected by the decree of the Indiana court and the proceedings thereunder. Campbell's pos

foreclose a lien for the amount due them under Where, in a suit by building contractors to a contract for the construction of a house, the owner, although claiming that there were grave defects in the work, gave no satisfactory testimony as to the cost of making the defects good, and the trial court, who not only heard the witnesses but inspected the building, found that there was a substantial compliance with the the trial court to enable the owner to introduce contract, the case would not be referred back to additional evidence as to the cost of making the defects good.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4386-4398, 4585; Dec. Dig. 1106.*]

Appeal from Circuit Court, Wayne County, in Chancery; Joseph W. Donovan, Judge. Action by George H. Fredrick and another From a against Martha Willis and others. judgment in favor of the complainants and the defendant John P. Berry Company, the defendant Willis appeals. Affirmed. STEERE, Argued before C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

James H. Pound, of Detroit, for appellant. Andrew C. Paterson, of Detroit, for appellees.

MOORE, J. The bill of complaint in this case is filed by George H. Fredrick and Edward C. Bleich, the contractors, and crossbills are filed by Ternes Coal & Lumber Company, materialmen, and John P. Berry Company, a subcontractor, to foreclose their respective liens on property of Martha Willis for labor and materials furnished for the construction of a house on her real estate in the city of Detroit. The contract is a written one, but was so carelessly drawn that it is not surprising that it gave rise to controversies. The contract price for the house was $2,084. The contractors were not to furnish any paint or do any painting or finishing of the woodwork, Mrs. Willis agreeing to do the painting, and to finish the woodwork. The work was commenced in December, and was prosecuted during the winter months. It is claimed the house was completed about March 10, 1910, excepting some things that were left to be done after the frost was out of the ground. It is claimed by complainant that extra work was done of the value of $48. The contract was un

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PALMER-STEVENSON CONST. CO. v. WITHEY, Circuit Judge. (Supreme Court of Michigan. July 9, 1913.) 1. NOTICE (§ 10*)-TO ATTORNEY-SERVICE BY MAIL.

[Ed. Note. For other cases, see Notice, Cent.

Dig. §§ 22-24, 30, 32-36; Dec. Dig. § 10.*]
2. MANDAMUS (8 16*)-DISCRETION OF COURT

-PEREMPTORY MANDAMUS.

usual, in that it did not require Mrs. Willis | opportunity for Mrs. Willis to show what it to make any payments until the house was would cost to make good the alleged defects, completed. Controversy arose between the if any existed. As before stated, the trial parties. Mrs. Willis commenced proceedings court not only listened to the witnesses, but before a circuit court commissioner to get saw and examined the building. An exampossession of the house, and when Mr. Fred- ination of the record has not satisfied us he rick found on April 23, 1910, a notice from erred in the decree rendered. the circuit court commissioner tacked on the The decree is affirmed, with costs. door of the house, summoning him and Mr. Bleich to appear in the office of the commissioner, the 22d day of April, 1910, he sent the keys of the house to Mrs. Willis, who took possession of the house on or about April 28, 1910, and has occupied the house ever since. The defendant Mrs. Willis claims defective construction and inferior materials used in the building, while complainant when the attorney for the adverse party resides Under circuit court rule 28, providing that, claims that, if the woodwork had been paint- or has his office in the same city or village, paed in due time and properly finished, there pers shall be served by delivery to him personalwould have been little cause for complaint. ly, or by leaving them at his office with a clerk After hearing the testimony, the trial judge ness hours in some suitable place in the office, or person in charge, or by leaving them in busivisited the premises, and, making an ex- or, where the office is closed, by leaving them amination of the building, he rendered a de at his residence, or, under subdivision "e," by cree in which he sets off the claim for ex- dressed and fully prepaid, the service by mail depositing them in the post office plainly adtras and deducts an additional $30 from the is independent of any contingency, and may be contract price, $2,084, for deficiencies in con- made without resorting to the other modes of struction, leaving a balance of $2,054 and in-service, the fact that the specified time of service might thereby be lessened by part or all of terest, and on May 13, 1911, granted a decree a day being a defect to be remedied by amendallowing the complainants a lien for $2,- ment of the statute rather than by restrictive 108.87, and John P. Berry Company a lien for construction. $52.50. Mrs. Willis has brought the case here by appeal. Her solicitor urges that the house be removed from the real estate; or, if this is not done, that a rebate of $500 be made because of defective construction. One of the special grievances of the defendant Mrs. Willis is that she did not get the furnace described in the written contract. The record discloses by a fair preponderance of testimony that a neighbor of hers was selling a different make of furnace from that mentioned in the contract, and urged her to buy his furnace, and the change was made with her knowledge and approval. The trial court had the great advantage of inspecting the premises. The questions in- Mandamus, on the relation of the Palmervolved are questions of fact. While Mrs. Stevenson Construction Company, against Willis claimed grave defects, she gave no Charles A. Withey, Mason Circuit Judge. satisfactory testimony as to what it would | Alternative cost to make these defects good. What testimony was offered upon that subject was hearsay. Counsel for Mrs. Willis recognize this may be urged, and suggest that, if the evidence is not clear enough in that regard, the case should be referred back to the trial court to take additional evidence. This suggestion does not appeal to us. The complainant has put his labor and material into this building, claiming a compliance with his contract. The circuit judge, after inspecting the premises, finds there was a substantial compliance with the contract. defendant has had the use of this building since April, 1910, without making any payment thereon. We have a record of more than 200 printed pages. There was ample

The

Where respondent judge in good faith made return to a writ of alternative mandamus, sought chiefly to obtain an authoritative conattorneys residing in the same city or village, struction of the rule as to service by mail upon and before determination adverse to the respondent the circuit court term at which his order striking the case from the calendar was tive order peremptory would be ineffectual, the made had passed, so that to make the alternacourt in its discretion would not make the order peremptory.

[Ed. Note.-For other cases, see Mandamus,

Cent. Dig. §§ 48, 59, 60; Dec. Dig. § 16.*]

Argued
MOORE,

writ not made peremptory. before STEERE, C. J., and MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ. A. A. Keiser, of Ludington, for relator.

STEERE, C. J. The object of this proceeding is to obtain a construction of subdivision "e" of circuit court rule 28, relative to service of papers by mail.

The material and undisputed facts which present the question are, briefly, as follows: An action was pending and at issue in the circuit court of Mason county between A. E. Cartier Sons Company, plaintiff, and Palmer-Stevenson Construction Company, defendant; A. A. Keiser being attorney of record for defendant and Robert J. Quail at

torney of record for plaintiff. The residence | six in the morning and nine in the evening, and business address of each was Ludington, in some suitable and conspicuous place in Mich. Plaintiff had noticed the case for such office. (d) Or, if the office be not open, trial at the January, 1913, term of said so as to admit of service therein, then by court, but defendant had not done so. Plain- leaving the same at the residence of the attiff countermanded its notice before the com- torney with some person of suitable age and mencement of the term, and the case was, discretion. (e) Or, by depositing the same on motion, stricken from the calendar. The in the post office of the city, village or townfirst day of the succeeding term of court in ship, inclosed in an envelope, plainly adMason county was April 1, 1913. Each no- dressed to such attorney, with postage fully ticed the case for that term. Plaintiff's no- prepaid." This rule is a substitute for fortice was countermanded. Defendant's no- mer circuit court rule 7, which made no protice was served by mail. Proof of this serv- vision for service by mail when the attorice was duly filed in the case, and shows that neys resided or had their place of business a notice, the form of which is not ques- in the same city, village, or township. It is tioned, was served on the 15th day of March, a rule of general application for service of 1913, upon the attorney of record for plain- papers between members of the bar of the tiff, "by depositing the same in the post of- same locality in matters wherein they repfice in the city of Ludington in an envelope resent opposing parties in the circuit court. securely sealed and plainly addressed to said The saving of time, convenience, and general Robert J. Quail, at Ludington, Mich., and desirability of service by mail was recogthat the postage thereon was fully prepaid nized by adding subdivision "e" when the to the place of destination." The case was rules were revised in 1899, and to the same duly placed on the calendar of the April purpose it was required by other rules then term of said court, and upon the first day adopted that counsel in beginning suit or of said term plaintiff's attorney moved the giving notice of appearance should furnish court to strike the cause from the calendar their business address. Attorneys who prefor the reason that no legal notice of trial ferred for any reason to follow the former had been served upon him, filing an affidavit methods were authorized to do so. They stating that he first received the notice in could search out opposing counsel, wherequestion by taking it from his box in the post ever he might be, and deliver the paper to office on the morning of March 18, 1913; also him personally, or, at their option, go to stating that his office was open with a clerk his office, and leave it with some one in in charge from 9 a. m. until 5 p. m. March charge. Failing in finding any one present, 15th and 17th, and that he was personally and only on condition no one was present, present in his office a large portion of March the paper could be left in the office in a 15th until 6 p. m. The court, after hearing suitable place during business hours, if the arguments of counsel for the respective par- office was open. If it was closed, then, and ties, struck the case from the calendar, for only then, if the residence of the attorney the reason that the same had not been propwas known or could be found, by going erly noticed for trial. there and leaving it with some person regarded as of suitable age and discretion.

[1] In answer to an alternative writ of mandamus issued from this court, respond- No such conditions precedent are imposed ent states that the case was stricken from on serving by mail. There is nothing in the calendar because in the opinion of the subdivision "e," or the rule in its entirety, court service under subdivision "e" of rule to suggest that previously provided methods 28 is permissible only in case personal serv- must be exhausted before mailing is resorted ice is not feasible; that an effort should be to. With improved and perfected mail facilmade to make personal service before resort- ities, attended by prompt distribution or ing to the other modes specified in the rule; prompt delivery, service by mail can now that no additional time is provided for in well be recognized as reasonably safe and case of service by mail, and, if the construc- satisfactory, when the message is plainly tion contended for by relator is adopted, it addressed and postage prepaid. The use of legalizes, in effect, shortening the time of the disjunctive conjunction "or" in that conservice of notice one day, which can always nection naturally indicates an alternative, or be accomplished by mailing the notice after a substitute, giving a choice between debusiness hours of the last day. Rule 28 pro-livery to the attorney personally, delivery to vides: "When the attorney for the adverse a clerk or person in charge of his office, and party resides or has his office in the same city, village or township as the attorney making the service, papers shall be served as follows: (a) By delivering the same to the attorney personally. (b) Or, by leaving the same in his office with his clerk, or with a person having charge thereof. (c) Or, when no person is to be found in his office, by leaving the same, between the hours of

mailing to his address with the postage prepaid; those three authorized methods of service being specified in the rule without any restrictive contingencies. To make service by mail contingent upon inability to make service by the preceding specified methods would nullify subdivision "e," for the possibility of service by those methods exists, and resort to them cannot be held to