crime. For $700 Dr. Greene assigned the land contract to defendant, and left the state. Afterwards he was in Grand Rapids. The property interests between Dr. Greene and his wife were adjusted out of court. Among other things, he gave her a quitclaim deed to the Barclay street property. The divorce suit was heard, and a decree granted.

Upon the hearing of the case at bar a large mass of testimony was taken, Dr. Greene coming from outside of the state to testify on behalf of his wife. It would profit no one to incorporate in this opinion what is shown by the record. Not only has the complainant failed to show by a preponderance of evidence that the Barclay street house at the time of the assignment of the land was a homestead, but it is shown by a preponderance of evidence that it was not a homestead.

The decree is affirmed, with costs of this court.

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

GOODSPEED et al. v. HILDEBRAND. (Supreme Court of Michigan. Sept. 17, 1902.) SALES-CONTRACT-REPLEVIN-INSTRUCTIONS. 1. Plaintiff sold defendant a stock of goods, the contract providing that defendant should turn over the proceeds of sales each night, and that after payment of store expenses the balance should be credited on the price. There were other provisions as to reports, etc., and it was provided that, on failure to comply with the terms, plaintiff might repossess himself of the stock. In replevin plaintiff relied on a failure of defendant to comply with various provisions of the contract, and the evidence on such issue was conflicting. The court charged that if defendant was paying within a reasonable time, and that that time had not arrived when the suit was brought, and defendant was not otherwise in default, plaintiff could not recover. Held error, there being no question of reasonable time involved.

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Herschel Goodspeed and another against George Hildebrand. From a judgment for defendant, plaintiff brings error. Affirmed.

A. J. Sawyer and Clark, Durfee & Allor, for appellants. J. W. Bennett, Arthur Brown, and M. J. Cavanaugh, for appellee.

GRANT, J. Plaintiff brought replevin to recover a stock of goods for a violation of the following contract, dated July 21, 1898: "The said George Hildebrand agrees to buy the tailoring stock and fixtures belonging to Goodspeed & Son, as per invoice, and on the following conditions: To pay down, as security for faithful performance of contract, three hundred dollars. To report each night amount of sales, and upon what terms were made, together with stock number of goods sold; and to turn over

amount of cash received. Settlements to be made every week, and after store expense is paid, the said Goodspeed & Son to place balance, if any, to credit of said George Hildebrand, to apply on purchase price of goods. No outside debts to be made on credit of store, and no credits given, without sanction, of said Goodspeed & Son. Any failure in performance of this contract or agreement on the part of said George Hildebrand forfeits all rights and all payments made, and, furthermore, if said George Hildebrand fails to comply with all the conditions of this contract or agreement, the said Goodspeed & Son have the right to enter said store and repossess said property without process of law, and said George Hildebrand hereby waives any right of demand for said goods. The said stock of woolens, trimmings, fixtures, etc., to remain absolutely the property of Goodspeed & Son until paid for. Inventory of said stock and fixtures to be made every six months, and same reported to Goodspeed & Son, and the said Goodspeed & Son hereby have the privilege of checking and proving said inventory at their option. The said George Hildebrand is not to sell this contract or agreement without the written consent of said Goodspeed & Son."

We think the attack made by the defendant's counsel upon Adelbert C. Goodspeed in his cross-examination, and the remarks made to him by one of the attorneys, were unjustifiable, and constitute reversible error, within Gould v. Gregory (Mich.) 85 N. W. 1077; Coan v. Brownstown Tp. (Mich.) 86 N. W. 180; People v. Gotshall, 123 Mich. 474, 82 N. W. 274; and many other decisions of this court. It is unnecessary to quote these questions. They are of the same character as those in the cases cited, and equally as prejudicial.

The court instructed the jury that, inasmuch as the contract did not provide any specific time for the full payment of the stock, a reasonable time was intended, and if they should find that the defendant was paying for such stock of goods within a reasonable time, and that that time had not arrived when the suit was brought, and defendant was not otherwise in default, they must find for the defendant. There was no question of reasonable time involved. No claim was made by the plaintiffs that defendant did not act within a reasonable time. They based their suit upon the violation of the provisions of the contract, upon which there was a sharp conflict of testimony. Were this the sole error in the case, we might hold that it was not prejudicial, but we decide the point in view of another trial.

Judgment reversed, and new trial ordered.

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

In re ANGELL et al. (Supreme Court of Michigan. Sept. 17, 1902.)

RECEIVERS-REMOVAL-COMPENSATION-
REDUCTION-SURCHARGING.

1. The court will not be held to have abused its discretion in removing the receiver, it being clear he did not accomplish what he ought to and would have accomplished had he exercised the diligence of a prudent man in winding up his own business.

2. The court, after making an ex parte order, without being advised of the facts, allowing a receiver certain compensation, may reduce the

amount.

3. A receiver will be charged with claims, where had he been diligent he would have learned of the death of the debtors, and could have collected the claims from their estates.

4. A receiver should not be surcharged with part of the attorney's fees paid by him after obtaining approval of the bill by the court.

5. Even if Comp. Laws, § 9438, providing certain commissions on collections as compensation for executors and administrators, applies to a receiver, yet the allowance of $125 per month for a receiver cannot be held error; the statute authorizing such further allowance as the judge may deem just and reasonable for any extraordinary services, and the assets available to the receiver consisting of the right to levy and collect assessments of the 2,000 members of the insolvent association, and he having been obliged to institute legal proceedings against them, and follow one of them to the supreme court, before he could collect a large proportion of the assessments.

Appeal from circuit court, Kent county, in chancery; Willis B. Perkins, Judge.

In the matter of the petition of Crawford Angell and others, trustees of the Masonic Life Association. From an order, petitioners and the receiver of the association appeal. Modified.

Rood & Hindman, for appellant beneficiaries. Crane, Norris & Drew, for appellant Calkins.

MOORE, J. December 12, 1896, Charles W. Calkins was appointed receiver of the Masonic Life Association by the circuit court of Kent county, in chancery, and entered upon the discharge of his duties. In September, 1899, he presented his report to the court appointing him, purporting to contain a statement of his receipts and disbursements up to that time. He asked that he be allowed a salary of $125 a month as receiver. One of the circuit judges indorsed upon said report as follows: "The foregoing report and statement examined and approved, and the receiver's account as therein stated is allowed as correct this 14th day of September, 1899. Wm. E. Grove, Circuit Judge." The receiver in June, 1900, presented a second report, which showed the receipts and disbursements from the 12th day of September, 1899, up to and including the 12th day of June, 1900. The receiver's affidavit, annexed to the account, stated that the same was a true account "from the 12th day of September, 1899, up to and including the 12th day of June, 1900," and that he had served in the capacity of receiver "from September 12,

1899, to June 12, 1900, a period of nine months." The receiver asked for a salary of $125 per month for five months to February 1, 1900, and "$200 per month for the remaining four months embraced in that report for services." The circuit court made the following indorsement: "The foregoing report and statement examined and approved, and the receiver's account as therein stated is allowed as correct this 20th day of June, 1900, and his compensation is fixed as therein set forth. Willis B. Perkins, Circuit Judge." Thompson & Temple were the receiver's counsel. Their first bill against the receiver was presented September 14, 1899. That bill was intended "to cover all services to March 1, 1899, rendered said receiver." It amounted to $1,140. That bill contained an item: "To assisting, preparing, and signing 1,850 circular letters, looking after replies from the same, consulting with parties in the office that called in response thereto." The circuit judge indorsed that bill as follows: "The foregoing bill allowed at $1,000, dated September 14, 1899. Wm. E. Grove, Circuit Judge." Thompson & Temple rendered a second bill to the receiver. The second bill was for services "from March 1, 1899, to June 12, 1900." That bill contained an item on its face for "writing and mailing 1,907 letters to collect assessments after the decision of the supreme court." The circuit judge indorsed this bill as follows: "O. K. Willis B. Perkins, Circuit Judge." On June 19th it was paid in full by the receiver. .August 17, 1900, the petitioners filed a petition, asking for the removal of Mr. Calkins and an accounting. A hearing was had in open court. October 9, 1900, the court made an order removing Mr. Calkins, and also passing upon his account. He reduced the compensation of $200 a month for four months, which he had allowed the receiver by the previous order, to $125 a month for all of the time which he served as a receiver. also reduced the amount allowed by him in June, 1900, to Thompson & Temple to the sum of $500. He directed the receiver to file a final account. Mr. Taft was appointed a receiver, and Mr. Calkins was directed to turn over all the books and assets to him. Later Mr. Calkins filed a petition, in which he recited what had been done in the proceeding, and stated, among other things: "And your petitioner is ready and willing to comply with the order of the court, and turn over to his successor all property in his hands, or under his custody or control, belonging to the said Masonic Life Association;" and prayed, among other things, "that on filing the receipt of the new receiver for the balance, if any, of the funds and property in your petitioner's hands, as determined after the allowance of said account and this petition, your petitioner's bond as receiver may be canceled, discharged, and surrendered." The final account was passed upon in February, 1901. March 23, 1901, the petitioners appealed. The receiver also appealed. The receiver claims that under the

He

evidence the court should not have removed him. On the part of the petitioners it is urged that not only was the circuit judge justified in removing the receiver, but that the latter did not take his appeal from the order of removal in time, and also that, as he stated in his petition of October he was ready to comply with the order of the court which removed him, he is now estopped from raising the question.

It is not necessary to pass upon the last two contentions stated. In Beach on Receivers (section 782), it is said: “Inasmuch as the appointment and removal of a receiver are matters which rest essentially in the discretion of the court, it is a general rule that a court of appeal will not review the questions which have been passed upon by a lower court in relation thereto; and the rule is the same whether the one party or the other-the party of the receiver or the party opposed-attempts to prosecute the appeal." It is not necessary to say, if it clearly appeared the circuit judge had abused his discretion in removing the receiver, we would not review his action. The circuit judge filed a written opinion, in which he said, among other things: "A review of the proceedings in this case convinces me that at no time since his appointment has the receiver acted with that diligence and promptitude required of him, under the plain terms of the statute and the well understood rules of law regulating the duties of receivers; but, on the contrary, steps looking toward the performance of his duties have been delayed from time to time, until the expenses of the receivership have become and are out of all proportion to the services actually rendered." Four years had elapsed after the appointment of the receiver, when the judge made the order of removal. We think it clear from the record that, though there was much for the receiver to do, he did not accomplish what he ought and would have accomplished had he exercised the diligence of a prudent man in winding up a business of his own. We are not inclined to say the circuit judge did not properly exercise his discretion in removing the receiver.

It is said the court, after making an order granting the receiver $200 a month for four months, could not afterwards reduce the amount to $125 a month. The record discloses this order was made ex parte. No one interested in opposing it had notice the court proposed to make such an order. The circuit judge in his later order states he was not advised of the facts when he made the ex parte order, and that had he been he would not have made the additional allowance. When the final order was made, the receiver was still an officer of court, and was in the administration of the trust. The compensation allowed was generous for the work done. We do not think the court erred in modifying the earlier order.

The judge charged the receiver with several assessments which had been made and not collected. The persons against whom the

assessments were made are dead, and left estates from which the assessments could have been collected, if the claims had been properly presented. It is urged on the part of the receiver that he did not know of the death of these persons, and ought not to be charged with the assessments. The office of a receiver is not a perfunctory one. It was his duty to learn why the assessments were not paid, and in these instances, had he been diligent, he might have collected these claims. The court did not err in charging him with them.

We now come to the action of the court in surcharging the receiver with part of the attorney's fee paid by him to Thompson & Temple after their bill had received the O. K. of the circuit judge. A receiver is an officer of court, and amenable to it for a proper discharge of the trust confided to him. When he is in doubt as to what he ought to do, he should take the advice of the court. In this case, before paying the counsel's fee, the receiver presented it to the court, which passed upon it favorably before it was paid by the receiver. Under such circumstances, the receiver ought not to be charged back with funds paid out by him, and the order should be modified in that respect.

The remaining question to be considered is, did the court err in fixing the compensation of the receiver at $125 a month? It is the claim of petitioners that the receiver is operating under the provisions of chapter 300, Comp. Laws, and that section 10,870, reading as follows: "Such receivers shall, in addition to their actual disbursements, be entitled to such commissions as the court shall allow not exceeding the sum allowed by law to executors and administrators,"-fixes the measure of compensation, and the receiver should receive only 5 per cent. on the first $1,000 collected and accounted for by him, and 21⁄2 per cent. above that amount to $5,000, and for all above $5,000 at 1 per cent., in addition to a per diem charge of $1 per day. It is not conceded by counsel for the receiver that this proceeding is governed by chapter 300, Comp. Laws, but it is contended that it comes under the organic act, providing for the organization of the association (see section 7518, Comp. Laws), and that the court may not only appoint the receiver, but may fix the amount of his compensation. We do not deem it necessary to decide which of these contentions is the proper one. Section 9438, Id., relating to the compensation of executors and administrators, reads as follows: "When no such compensation shall be provided by the will or the executor shall renounce all claim thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by him, as follows:

For the first thousand dollars at the rate of five per cent.; for all above that sum and not exceeding five thousand dollars, at the rate of two and one half per cent.; and for all above five thousand dollars at the rate of one per cent.; and the same commissions

shall be allowed to administrators; and in all cases such further allowances may be made as the judge of probate shall deem just and reasonable, for any extraordinary services, not required of, an executor or administrator in the common course of his duty." Should it be conceded the provisions of this section should govern this proceeding, does it follow the court did not have the right to grant to the receiver the compensation he did? The work done by the receiver was not according to the common course of the duty of an executor or administrator. The assets available to him consisted almost wholly of the right to levy and collect assessments for the purpose of paying liabilities. This involved dealing with nearly 2,000 people. The record discloses that the members of the association early decided not to pay any assessment, and it became necessary to institute legal proceedings to compel them to do so. It was not until one of those cases was followed by the receiver to this court (Calkins v. Angell, 123 Mich. 77, 81 N. W. 977), that the receiver was able to collect a large proportion of the assessments. All this called for extraordinary services on the part of the receiver, for which he should be paid. Wisner v. Mabley's Estate, 70 Mich. 271, 38 N. W. 262. No one is in a position to know what allowances should be made, so well as the court appointing the receiver. We think the compensation fixed by the court was earned, and should be paid. The other questions raised have been considered, and will not be discussed.

The order will be modified as indicated, and affirmed.

LONG and MONTGOMERY, JJ., did not sit. The other justices concurred.

ESPER et ux. v. MILLER et al. (Supreme Court of Michigan. Sept. 17, 1902.) SALES OF LAND-LIABILITY AS PURCHASERS -CORPORATIONS.

1. Persons united to form a corporation to buy land, and contributed money with the understanding that a corporation was to be formed for this purpose, and stock issued to them for their contributions. M., a real estate agent, was informed of this, and told if he could acquire title to E.'s land the corporation would take it from him. M. obtained a contract, and made the first payment with money contributed for the corporation, and received a commission from E., who knew he was acting for others. The corporation, when formed, took an assignment of the contract, and issued stock to those who had contributed. Held, that the individuals who contributed to the corporation were not personally liable on the contract, but that the corporation was liable thereon, it having, after its formation, recognized that M. was acting for it.

Appeal from circuit court, Wayne county, in chancery; George S. Hosmer, Judge.

Suit by Mathias Esper and wife against

1. See Corporations, vol. 12, Cent. Dig. § 1790.

MOORE, J. This is a bill filed for the purpose of foreclosing a land contract made between the complainants and Charles T. Miller. The defendant the Fairview Land Company and the complainants have appealed. The other defendants are content with the decree as it stands. The testimony, when considered as a whole, fairly shows that prior to the making of the contract a number of gentlemen were of the opinion that certain real estate was likely to appreciate in value, and agreed among themselves to form a corporation for the purpose of acquiring real estate and selling it again. A number of them contributed sums amounting in the aggregate to $8,500, with the understanding that a corporation was to be formed, and stock issued to them for the money subscribed by them. Dr. Sherrill was most active in the enterprise. He saw Mr. Miller, who was a real estate agent, and informed him of the proposed formation of a company, and that, if he could acquire the title to certain real estate, the proposed association would take it from him. Mr. Miller entered into negotiations for the purchase of lands owned by the complainants. On the 15th of February, 1893, a contract under seal was made between Mr. and Mrs. Esper, parties of the first part, and Charles T. Miller, party of the second part, wherein the Espers agreed, for a consideration of upwards of $32,000, to sell to the party of the second part certain real estate. This contract was in the usual form of land contracts. At about the time it was executed the Espers were informed by Mr. Miller that the parties for whom he was acting were responsible, but they were not informed who they were, and Mr. Miller himself did not know the names of the persons except Mr. Sherrill and Mr. Rathbone, who were to go into the proposed corporation. At the time the land contract was executed Mr. Miller paid upon the contract $4,000, which he received from Mr. Sherrill and Mr. Rathbone, less his commission of $649.45, which was paid to him by the Espers, they indorsing upon the land contract a payment of $4,000. Shortly after the land contract was signed, the Fairview Land Company was duly and properly organized. On the 29th of March, 1893, Mr. Miller assigned the land contract to the Fairview Land Company. A copy of this assignment was afterwards indorsed on the copy of the land contract in the possession of the Espers. Several indorsements were made in 1893. Six indorsements were made in 1894 upon the contract, and one in 1895, signed by Mathias Esper. These payments were all made by the Fairview Land Company. The other pay

ments called for by the land contract were not made, and this bill was filed. The circuit judge made a decree dismissing the bill as to all of the defendants except Mr. Miller and the Fairview Land Company, fixing the amount due upon the contract, and providing for a sale of the land, a report upon the amount of the deficiency, if any, and for a personal decree for the deficiency against the Fairview Land Company.

The first question demanding consideration is whether a personal decree should have been rendered against the individuals who subscribed for stock and became members of the corporation which was afterwards formed. In Ferris v. Snow, 124 Mich. 559, 83 N. W. 374, it was held that a party not named in a sealed instrument cannot be made liable upon it in the absence of some act of subsequent ratification. See the authorities cited in the opinion. It is claimed on the part of the complainants that when the contract was assigned to the corporation and stock was issued to and accepted by the individuals this was a ratification of the acts of Mr. Miller in buying the land. We cannot agree with that conclusion. Who of the individuals expected personally to pay $32,000 for the land, or as individuals expected to get any title to the land? Mr. Miller was not buying the land for himself. He did not understand he was buying it for Dr. Sherrill, or for any other individual, but he understood he was buying it for an association which was afterwards to be formed, and which was in fact formed, and to whom he assigned the contract. No individual subscribed any money to buy an individual interest in land, the title to which was to be held by them as individuals, but the subscriptions were made for stock in a corporation afterwards to be formed, which was to issue stock for the money subscribed. individual ever did get any interest in the land as an individual. The fact that the money which was subscribed for stock was used in making the $4,000 payment did not give the persons who paid in that money any interest in the land. Comp. Laws, § 8835. We think the circuit judge was right in holding a personal decree could not be rendered against the individuals. Was he right in holding that a personal decree could be rendered against the Fairview Land Company? It is said the pleadings are not such as to warrant such a decree. The bill of complaint set out the understanding of the complainant. In the prayer, among other language used, was the following: "And that this court will ascertain from the proofs and determine who were the real principals as vendees in said land contract, *** and that the true principals in said land contract, whoever they may be found to be, shall be decreed by this court shall be liable to your orators on said land contract personally for said purchase moneys remaining due and unpaid on said land contract, and that the said land contract be enforced in all respects against the true prin

No

cipal vendees, and against all persons liable thereon, and liable to your orators on account thereof, and for such purchase moneys, and that the persons personally responsible be decreed to make payment to your orators of the amounts remaining unpaid upon said land contract to your orators, * $ and that

your orators may have such other relief or further relief as the premises will warrant.” We think this prayer sufficiently broad. Proctor v. Plumer, 112 Mich. 393, 70 N. W. 1028. It is urged upon the part of the Fairview Land Company that, as it was not in existence when the contract was made, it cannot be bound by the acts of Mr. Miller. It must be conceded the authorities are not in harmony upon this proposition. It has already appeared that the complainants regarded Mr. Miller as acting for them as well as for his undisclosed principal. They paid to him upwards of $600 in the way of commissions for making the sale. He and they knew he was not acting for himself. He knew he was not acting for individuals, but for a corporation, which was to be called into being later; and when it had a corporate existence in fact he assigned the land contract to it, making the transaction, so far as he was concerned, as between himself and the corporation, a completed one. His knowledge was imputable to the complainants. We think there can be no reasonable doubt the corporation, after it had been formed, recognized Mr. Miller had been acting for it, and took over such title as he had in the contract, for which money had been paid in by prospective stockholders, to whom stock, for the money paid in, was issued. Mr. Miller paid no money of his own. He never expected to pay any, and it was not expected he would pay any. There was abundant evidence the corporation undertook to ratify his acts. Hammond v. Hannin, 21 Mich. 373, 4 Am. Rep. 490; Hanchett v. McQueen, 32 Mich. 21. It is certainly not equitable that a company called into being for a definite purpose, for whom property has been acquired by a written contract, can take over that property, by receiving an assignment of the contract and exercising acts of ownership over the property, without performing that part of the contract which is unperformed; and such we do not understand to be the law. We think the decree holding the Fairview Land Company liable under the facts disclosed by the record is sustained by Whitney v. Wyman, 101 U. S. 392, 25 L. Ed. 1050; Railroad Co. v. Christy, 79 Pa. 54, 21 Am. Rep. 39; Manufacturing Co. v. Small, 40 Md. 395; Van Schaick v. Railroad Co., 38 N. Y. 346; Battelle v. Pavement Co., 37 Minn. 89, 33 N. W. 327; Messinger v. Saddle Co., 44 App. Div. 26, 60 N. Y. Supp. 431; and Manufacturing Co. v. Munger, 106 Mich. 90, 64 N. W. 3, 29 L. R. A. 63, 58 Am. St. Rep. 468. Decree is affirmed, with costs.

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