*1 Vogleb Roney v. William C. & to the in order to seller, make a case against him, plaintiff must prove that he knew that the sale of the stock had not been approved by the commission. There is no evidence It the record. is all to the contrary. Not having established that neces- sary element in it his case, follows cannot recover in action. And as this this is decisive it issue, unnecessary becomes to discuss the other involved. questions judgment affirmed, costs to the de-

fendants.

Clark, C. J., Potter, Fead, and Butzel, concurred. Wiest,

WILHELM AUTO KING FINANCE CO. op Duress—Mortgages—Husband 1. Cancellation Instruments — Wipe Policy —Public —Contracts. Where practiced no fraud on deceit was married woman to mortgage induce her to execute on her home to make restitu- money tion obtained her husband pretenses, under false ground she not entitled to have it canceled on duress, nor, circumstances, acceptance under improper, restitution although accompanied by promise of defendant’s attor- ney to use influence to have criminal her husband dropped, and were subsequently dismissed. Equity—Tender. 2. Same — Where, at time married woman mortgage executed home on her money to make restitution for obtained her husband under pretenses, false possession obtained of chattel equitably husband, not en- signed by berself she is *2 notes. said JJ., dissenting.

McDonald, Potter, Wayne; Campbell (Allan), Appeal J. Sub- from April (Docket 136, 1932. No. Calendar 15, Decided mitted 36,465.) September 16, No. by against King Fi- Eleanor Wilbelm Auto

Bill corporation, Company, Michigan a and others nance mortgage. estate Bill dismissed. to cancel a real appeals. Affirmed. Plaintiff Berger Berger, plaintiff. & (William George A. John Van W. Clifford Dyke, counsel), of for defendants. (dissenting). This bill was filed McDonald, discharge a real the estate secure cancellation given ground it that under on the if not duress, or, that constitute circumstances agreement' illegal that renders under an duress, and void. undisputed the facts are that defendants

The plaintiff’s husband, the Arthur arrest the caused money charge obtaining under Wilhelm, on a ’ jail pretenses. After had false he been confined days, a was made which the for 55 plaintiff gave settlement King Auto Finance defendant,

the Company, note for secured mort- $16,000 city gage on her home Hamtramck. When completed, Wilhelm was released, the settlement days prosecuting later, motion a few on attorney, criminal were dismissed judge. of the circuit order Finance Wilhelm disputed alleged agreement The facts relate to an plaintiff promised, in which the claims she was as giving mortgage, an inducement for that her hus- pros- band would be released from further deny ecution would be stifled. The defendants promise, they agreed made such but admit prosecuting attorney use their influence with the stop proceed- secure his release and to the criminal ings. hearing judge

On the found that the prayed was not entitled to the relief for, dismissing and entered a decree her bill. She has appealed. plain. issue as the facts is

says gave mortgage because of definite *3 promise attorney, from Mr. John, defendants’ who negotiations conducted the for them, that he would secure the release of her husband and have the crimi proceedings against plain nal him If dismissed. tiff’s version of the transaction is true, she is en discharged titled to have the canceled and of record. Buck v. First National Bank, Mich. 27 293; Wisner v. 38 Mich. Bardwell, 278; Meech v. Lee, Miller Mich. v. Minor Co., Lumber 98 Mich. 274; 82 Rep. 524); Am. St. Benedict v. Roome, 106 (39 Vauconsant, Mich. Koons v. 129 Mich. 260 (95 378; Rep. 438); Surety Am. St. National Co. v. McLeod, 240 Mich. ’ The defendants version of the transaction differs plaintiff only

from that of the as to the extent of promise. It claim that Mr. who John, acting promise for them, did not to get secure her husband’s release and to the criminal proceedings promise dismissed; but that he did bring use his influence about that result. .to Trombley, prosecuting attorney, Mr. the assistant shortly very testified that after- Arthur Wilhelm inquired prose- if was arrested Mr. of him the John attorney drop cuting consent to the criminal would proceedings if a settlement He told him was made. go they negotiation “to ahead and and if make notify were and have successful the office Mr. request asking Beecher/ make a to the circuit court dropped.” these be Mr. Beecher was company. an officer the defendant inquiry fact that Mr. The John made this prosecriting attorney assistant indicates that he negotiating to use the intended information in settlement. Tie did going it. use When asked if were get “Why, Wilhelm released, he said: I every going hap- have pen; reason believe that .to Trombley.” will,

I believe that it but I will call being get belief in That his able to him released was immediately well founded is shown the fact that completed telephoned after the settlement was he Trombley, and Wilhelm was released at once.

But whichever version the transaction we ac- cept, there is no doubt executed the understanding with the and in that it would the belief secure her husband’s release stop proceedings pending from the criminal got understanding him. Whether she positive promise bring from defendants’ it about promise or from their to use their influence to that legal not end does matter. effect is the same. agreement that Mr. John would use his influ- *4 get ence to the to release officers Wilhelm from con- prosecution finement in the and from further illegal was mortgage. and furnished no consideration for the agreements “It has been held that to use influ- tending encourage or ence, the use of influence, Finance Wilhelm attorney respect prosecuting in to criminal with the prosecutions Ay illegal.” 183 N. Gill, cock v. C. are 1449), (111 E. 24 A. L. R. cases cited. 342, S. agreement in v. First A was involved Buck similar party supra. had In that case Bank, National charged arrest and was under robbed the bank gave promissory crime. relatives Certain good In an ac- on its loss. notes to make the bank relatives claimed that tion on the notes these given prom- in consideration of a were void because prosecuted. The that the accused would not be ise but consideration, that such was the bank denied 'petition agreed to the court for admitted it had strongly leniency Speaking in con- in sentence. agreement, Mr. Justice of such an demnation Cooley, writing court, for the said: ‘‘ give pecuniary party consideration, One sign, equivalent that another would was,

and promise petition, likely sign, sign, more or be punishment. mitigation It is that such a transaction is of a criminal for too argument plain for requisites legal only wanting in the of a contract, not but tendency per- immoral in its nicious.” point might be cited from this cases

Other jurisdictions, but to do so .and from other court opinion. unnecessarily this extend rule would National Bank has been in Buck v. First announced consistently our decisive court, followed instant case. correctly disposing trial of the issue the court In application but erred facts, determined prayed law. The the relief is entitled to bill, *5 one entered reversed,. be The decree should opinion. with this here accordance have costs of both courts. should with Mc- concurred Potter J. Donald, cir- in the I think entered the decree rea- that sufficient affirmed,

cuit court should be following portion in the sons therefor are set forth by judge: opinion filed opinion transaction that the -“The court is of the subject being for the voided in reason that by is not obtained was the defendants’ to have to the court

duress. There does not seem any with relation been bad faith in what was done undoubtedly guilty, was and he to Wilhelm. He family undoubtedly sought make restitution proceedings dropped. having with a view to acceptance improper, in no restitution was sense practiced upon the court and no fraud or deceit was upon judge prose- the court officials. The and the If, cutor both knew what had been done. their judgment, proper drop proceedings, it was public protected, has been as far as the law contem- plates. plaintiff, If the law were as contended for impossible any injured it would be make a settlement which defrauded subsequently repudiated proceed- could not be a ing justice I like this. do not believe demands such a rule. why “There is another reason Eleanor Wilhelm’s equity. party, bill lacks herself She as in- original obligations. making dorser, on the In mortgage, securing discharge

new of her previous obligations. probable own It is that she might original have defended in action an on the obligations pleading coverture, but the fact re- moving there was a mains consideration to her in ’’ extinguishment. Finance Wilhelm *6 notwithstanding might be added that To above possession through of counsel secured in lieu of which the of husband notes canceled, in absence tender to have said titled

notes herself and given, mortgage time neither at the in suit here any filing complaint nor at time since of her of bill thus return of the notes she of all has tendered The least secured from the defendants. her grant- of condition could be asked of as a equitable ing be the return to de- her relief would chattel notes which of fendants all by giving the which from them she secured Because have canceled. now seeks sought, equity the relief she is denied to do failure in court af- the decree entered and appellees. with costs firmed, J.,C. Fead, Butzel, Wiest, Clark, concurred LAKE RAILWAY. & SUPERIOR MUSGROVE MANISTIQUE Liability Negligence—Employers’ Act Master Servant — por Jury. Usages —Railroads—Customs Question — company employers’ railroad under Federal In action liability seq.~) alleged negligent (45 USCA, 51 et for act § killing engaged making plaintiff’s decedent while lie was in held, jury coupling nighttime, evidence to take in sufficient requiring there custom of whether was established , moving cars, have man on defendant forward end switching operations nighttime, purpose signaling for operation making engine making for more safe one crew coupling. inadequacy personal injuries damages On excessiveness or resulting switchman, see in 48 A. R. 860. death of annotation L.