"The Cadwell Company replied to the notice | assigned, and would not have made a contract of assignment October 25, 1912, sending its re- extending credit to the plaintiff." ply to both the assignor (the B. & O. Company) There are two questions presented for conand the assignee (the Little Company). The reply was as follows: 'We hereby notify you sideration: (1) The assignability of the conthat the said assignment is in breach of the tract; (2) The application of the laws relatsaid contract, as you have no right to assigning to monopolies. the same. We hereby declare said contract forfeited. We have further notice that the con [1] 1. Is the contract assignable? Counsel with another who, for any reason, was so objectionable that he would not originally have entered into contract relations with him. If, for example, the defendant had had business dealings with the plaintiff, and its experience had been such that, because of unfair dealings and disregard of contract obligations on the part of the plaintiff, the defendant would not again voluntarily have entered into con tract relations with such company, it clearly would be grossly unjust to compel it, without its consent and at the instance of the obnox. ious party to do so. The contracting party also has a right to decide to whom he will extend credit, without giving any reason therefor. tract made between the Superior Sand & Gravel say it is not consistent with the rights and Company and yourselves has been assigned to interest of the contracting party to be comthe C. H. Little Company. We therefore fur-pelled, by assignment against his will, to deal ther notify you that the said assignment is in breach of clause 6 of our said contract, whereby you undertake to assign to us all such contracts, as security for the payment of the sums of money due us, from time to time. We now declare the said contract made between us forfeited and of no force and effect.' The Superior Company at the same time replied to the notice of assignment of its contract with the B. & O. Company, stating: 'We hereby declare the same canceled and at an end, for the reasons: First, that said contract is not assignable, and second, because the action was taken in violation of the statutes of the state of Michigan respecting the creation of monopolies.' "During the navigation season of 1912, after October 21st, the steamer Cadwell was seen unloading sand on the Superior Company's dock. The Little Company, at the time of the taking over of these contracts, was ready to have them carried out according to their terms. If the Cadwell Company had gone on with the contract, instead of canceling it, it would have been required to deliver 3,500 yards per week for the remainder of that season in quantities of substantially 1,400 yards of gravel and 2,100 yards of sand. The question of the assignability of contracts had the attention of this court in the case of Northwestern Lumber Co. v. Byers, 133 Mich. 534, 95 N. W. 529. That case came to this court from the circuit court of which Justice Stone, now of this court, was then presiding judge. He filed a written opinion in the case which reviewed the authorities so fully and accurately that it was adopted by this court. The case is so recent and so accessible that it is unnecessary to do more than refer to it. "The plaintiff offered to show that if the defendant had notified the plaintiff that the defendant would not deal with the plaintiff on credit, the plaintiff would have paid cash. This was excluded. The plaintiff also offered to show that it was its intention that the Cadwell Company should go on delivering sand to the Superior Company under the contract. This likewise was excluded. With reference to the taking over of the contracts by the Little Company it The same question arose again in the case appeared that the B. & O. Company approached the general manager of the Little Company, of Voigt v. Murphy Heating Co., 164 Mich. and that after consultation with the board of 539, 129 N. W. 701. In this case the bills directors it was decided to purchase the conwere payable monthly, and the heating tracts. A number of leases for sand and gravel beds were taken over at the same time. If the company had the right to require security Little Company could not have furnished the for the payment of the steam expected to be Solvay dock for the unloading of the gravel for consumed. It was claimed, as in the inany reason, the Little Company had other stant case, that the contract was personal docks which would have answered the description in paragraph 1 of the Cadwell contract, and and could not be assigned. This court held had railroad facilities and docks upon which otherwise, and cited the case of Northwestthe sand and gravel could have been delivered ern Lumber Co. v. Byers, 133 Mich. 534, 95 just as conveniently as at the Solvay dock. N. W. 529, and the last edition of the fifth "The defendant, under the third paragraph of its plea, sought to introduce testimony which it volume of American and English Encyclowas claimed would tend to show that the plain- pedia of Law and Practice, at pages 885, 886, tiff did not in fact intend to carry out the con- and 906. It is difficult to see how the pertract with the Cadwell Company. This was ex-sonal element entered into the contract inIcluded over the objection and exception of the defendant, on the ground that it was not within the averments of the plea. The defendant likewise sought to show that the plaintiff had breached the contract of the Superior Company, in that the plaintiff had refused to deliver any more gravel under the terms of the contract, or to deliver any gravel except at a higher price than in the Superior contract. This was exIcluded because not stated as a reason for the rescission by the Superior Company at the time it received notice of the assignment and rescinded the contract. volved here. What difference could it make to the defendant whether the sand and gravel were furnished by the B. & O. Sand & Gravel Company or by the plaintiff. As to the matter of payment defendant could insist upon being made secure if it thought C. H. Little & Co. was not responsible. In the instant case the plaintiff took the contract subject to the liabilities of its assignor. The defendant, if it desired, could "Defendant further sought to show that it require an assignment of the contracts for would not have entered into such a contract the sale of the sand and gravel carried by as the contract in question with the plaintiff either at the time the contract was entered into the Cadwell Company. If it required such it would be bound to make it just the same as the B. & O. Company would have been required to make it if the contract had not been assigned by them. There is no claim that the C. H. Little Company were less responsible than the B. & O. Company, and by assigning the contract the B. & O. Company were not released from its performance. See Lumber Co. v. Byers, supra, and Voigt v. Murphy Heating Co., 164 Mich. 539, 129 N. W. 701. [2] Counsel say: "The plaintiff is not entitled to enforce the assignments, even if otherwise valid, because they were obtained for an unlawful purpose." It is urged that the assignment was procured for the purpose of doing away with a competitor, and is therefore unlawful. It was proposed to show this by testimony outside of the written contract and the assignment. Certainly there is nothing upon the face of the contract or the assignment that would indicate an unlawful purpose. If this litigation was between the original parties to the contract, for some failure to perform, the defense attempted here could not be made. We think this feature of the case is within the principles stated in International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55, 127 N. W. 695, 30 L. R. A. (N. S.) 580, Ann. Čas. 1912A, 1022. The other questions have been considered, but do not call for discussion. Judgment is affirmed, with costs to appel lee. OSTRANDER, STONE, and STEERE, JJ., concur with MOORE, J. mine with whom he will contract, and cannot have another person thrust upon him without his consent. In my opinion it could not be said to be "consistent with the rights and interests of the adverse party" to take away from him the right to decide to whom he will extend credit. It should be borne in mind that the Superior Sand & Gravel Company, whose contract with the B. & O. Company was likewise assigned to the C. H. Little Company, was the active competitor in business of the C. H. Little Company. The effect of the assignment of the contract between the B. & O. Company and the defendant in this case was to compel the Superior Sand & Gravel Company to accept deliveries from an active competitor. Arkansas Valley Smelting Co. v. Belden Co., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; Hardy Implement Co. v. South Bend, 129 Mo. 222, 31 S. W. 599; Boston Ice Co. v. Potter, 123 Mass. 29, 85 Am. Rep. 9; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144, Ann. Cas. 1915D, 287. Because of this conclusion it will be unnecessary to determine whether because of the lack of novation it should be said that the situation between the plaintiff and defendant lacked mutuality of obligation or contract. The judgment should be reversed, and no new trial' granted, with costs to appellant. BIRD, J., concurs with KUHN, C. J. MERRILL v. MYERS. (No. 91.) (Supreme Court of Michigan. July 26, 1917.) 1. TAXATION 705-REDEMPTION FROM TAX SALE-NOTICE-SERVICE. 270, service of notice by purchaser to one whose By express provision of Pub. Acts 1909, No. land has been sold for taxes of right to redeem may be made on a resident of the state by leaving it at his residence with a member of his family of mature years. KUHN, C. J. (dissenting). On the trial of this case an offer was made by the defendant to introduce testimony to show that at the time the contract was entered into, it would not have made such a contract with the C. H. Little Company, and that it would not have been willing to extend credit to that company. This testimony was excluded by the court. In my opinion this was clearly admissible under the rule announced in a Where notice advised plaintiff, whose land case cited in the opinion of Mr. Justice had been sold for taxes, that he could redeem Moore, Northwestern Cooperage & Lumber by making payment, within a certain time, to Co. v. Byers, 133 Mich. 534, 95 N. W. 529, where Mr. Justice Stone, then circuit judge, stated the rule to be as follows: [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1424.] 2. TAXATION 699 REDEMPTION FROM TAX SALE-EXTENSION OF TIME. either defendant, the purchaser, or the register in chancery, and stated the amount necessary to redeem "plus sheriff's fees," the amount of which was not given, time to redeem was not extended by defendant, in reply to plaintiff's "I think that the true doctrine is that where letter, asking to be advised of amount of lien, an executory contract is not necessarily person-writing that plaintiff must settle with the counal in its character, and can, consistent with the ty treasurer, but plaintiff was required to ascer rights and interests of the adverse party, be tain amount of fees from the register, and hav fairly and sufficiently executed as well by the ing taken no further steps till after lapse of assignee as by the original contractor, and time to redeem, though having plenty of time, when the latter has not disqualified himself he lost right to redeem. for performance of the contract, it is assignable." (Italics mine.) [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1402-1405.] Exclusion of this testimony was clearly reversible error, but I am also satisfied that Appeal from Circuit Court, Emmet County, the court should have directed a verdict for in Chancery; Frank Shepherd, Judge. the defendant upon the record as made, for Suit by Homer F. Merrill against Rufus the rule should be and is that a contract- L. Myers. Decree for plaintiff, and defending party has the right to select and deter- ant appeals. Reversed and dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The bill in this case is filed for the purpose of compelling defendant, upon the payment of $27.10, to reconvey to the plaintiff certain lands, the title to which defendant had secured through purchase at the annual tax sales in the year 1913; the tax having accrued in the year 1910. On August 18, 1914, the following notice was served on plaintiff: "To the Owner or Owners of Any and All Interest in or Liens upon the Land Herein Described: "Take notice that sale has been lawfully made of the following described land for unpaid taxes thereon, and that the undersigned has title thereto under tax deed or deeds issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after return of service of this notice upon payment to the undersigned, or to the register in chancery of the county in which the lands lie, of all sums paid upon such purchase, together with one hundred per centum additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description, without other additional cost or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land. "Description of land: State of Michigan, county of Emmet, north half of southeast quarter Sec. 36, town 35 north, range 4 west. Amount paid, $9.05. Tax for year 1910. Amount necessary to redeem, $23.10, plus the fees of the sheriff. Rufus Myers, "Place of Business: Alanson, Michigan. "To Homer F. Merrill, Last Grantee in the Regular Chain of Title of Such Lands, or of Any Interest Therein, as Appearing by the Records in the Office of the Register of Deeds of Said County." The sheriff's return of service follows: "State of Michigan, County of Cheboygan-ss.: "I do herby certify and return that on the 18th day of August, A. D. 1914, I served a notice of which the within is a true copy upon Homer F. Merrill, to whom said notice is addressed, by personally delivering such notice to the said above-named person in said county of Cheboygan, the said person being a resident of said county. Byron M. Watson, "Sheriff of the County of Cheboygan. "My fees, $4.00." Proof of service was filed with the county clerk on the 27th day of August, 1914. The proofs disclosed that service of the notice was not made personally upon plaintiff, Homer F. Merrill, but was on said date (August 18, 1914), left with the wife of said plaintiff, Anna-Merrill, with the request that she hand it to her husband; he being absent at the time. The bill avers that plaintiff's wife, instead of calling the notice to his attention, mislaid the same, and that he did not learn of it until some time later, to wit, "on or about the 15th day of December, 1914." Plaintiff wrote the defendant, for the purpose of redeeming said parcel of land, and requested defendant to advise him of the amount of defendant's lien, which letter was addressed to the defendant at Alanson, Mich. To this letter, which was forwarded to defendant in Kansas, defendant made the fol "Arcadia, Kan., Jan. 30, '15. "H. F. Merrill, Millington, Mich.-Dear Sir: Your letter was forwarded to me here. In understand it. You must settle it at the county reply would say I cannot settle with you as I treasurer's office at Petoskey. "Yours respectfully, "Rufus L. Myers, Alanson, Mich." Plaintiff thereafter, and on March 22d, wrote the following letter: "Millington, Mar. 22. "The County Treasurer, Petoskey, Mich.Dear Sir: I wrote to R. L. Myers in regard to the taxes on the eighty acres inclosed. He said I would have to settle with you, so wish you would look it up and let me know as soon as possible how much there is to be paid, and I will fix it right up. Thanking you, "Yours truly, "H. F. Merrill, Millington." This letter was handed to the county clerk, who replied as follows: "Petoskey, Mich., Mar. 24, 1915. "Mr. Homer Merrill, Millington, Mich.-Dear Sir: Mr. White, the county treasurer, has handed me your letter to him relative to the redemption of the inclosed tax matter. say that this matter has passed the period in In reply will which I have the authority to settle. The matter is now between you and Mr. Myers. The tax notice was filed in this office Aug. 27, 1914, and you then had six months, or until Feb. 27, 1915, in which to redeem through this office. The amount necessary to redeem during that time was as follows: A. "Because the service of the notice of reconveyance, by leaving the same with the wife of the plaintiff, during the latter's temporary absence from home, is not such a service as is contemplated by the law." B. "Because it was the duty of defendant to furnish the plaintiff, when requested, with a statement of the amount due him from the latter in order to entitle said plaintiff to a reconveyance, and that defendant's refusal to furnish such information operated as an extension of the time of redemption until such information was furnished." The court below held against the plaintiff upon the first proposition, but in his favor upon the second, and made a decree providing for a reconveyance upon the payment of the sum of $27.10. From this decree defendant appeals. Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ. Halstead & Halstead, of Petoskey, for appellant. C. J. Pailthorp, of Petoskey, for appellee. BROOKE, J. (after stating the facts as above). [1] Under the conceded facts, the service in this case was good, and was within "That such service may be made upon any resident of this state by leaving such notice at his usual place of residence with some member of his family of mature age." Act 270, P. A. 1909. [2] According to the averment of the bill of complaint, plaintiff had actual notice of the situation more than two months before the expiration of the six months period provided by the statute for redemption. By his own showing he must have received defendant's letter, referring him to the county treasurer, more than three weeks before the expiration of said time. The period of redemption expired on February 27th, yet we find that he did not write to the county treasurer until March 22d, after said period had expired. With reference to the notice the learned circuit judge said: "Plaintiff had to know the amount of the sheriff's fees before he could redeem. The notice did not furnish the information. He could not be expected to decide by his own investigation, and decide correctly, at the peril of losing his land for not tendering a large enough amount, or of losing his money if he tendered too large an amount. There might be a very serious question as to what was the correct and legal amount of the sheriff's fees. Two sources of information were open to him, the defendant and the county clerk, or register in chancery. He could not redeem without this knowledge. He sought it from the defendant, who had caused the notice to be given, and who, in effect, refused to give the information. By his conduct he reduced the number of places where the statute provided redemption might be had from two to one. Such action should extend the period of redemption, so as to allow the plaintiff in this case to redeem." But it was inadmissible to show the agent's construction of the word "vacant" as used in the policy. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1687, 1688, 1699.] 5. INSURANCE LIABILITY. 378(1)—FIRE INSURANCE time the policy was issued that the premises Where the agent of the insurer knew at the were vacant, and they were consumed by fire while vacant, though they had been occupied in the interim between the issuance of the policy and the loss, the company was liable. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 968, 975-997.] Error to Circuit Court, Allegan County; Orien S. Cross, Judge. Action by Catherine Gordon against the St. Paul Fire & Marine Insurance Company. Judgment on directed verdict for plaintiff, and defendant brings error. Affirmed. Angued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ. Norris, McPherson, Harrington & Waer, of len & Ten Cate, of Holland, for appellee. Grand Rapids, for appellant. Diekema, Kol With this conclusion we are unable to agree. The notice advised the plaintiff that he could make payment either to the undersigned or to the register in chancery of the county. Plaintiff could have readily ascertained the amount of the fees from the register, and it was his duty to have done so. It is impossible to escape the conclusion that in this case the plaintiff was guilty of the grossest laches, and that, having through such FELLOWS, J. On June 7, 1913, defendant laches lost his right to redemption within the issued to plaintiff a Michigan standard form time fixed by the statute, the courts are pow- insurance policy for $1,200 on a dwelling erless to aid him. Paine v. Boynton, 124 Mich. 194, 82 N. W. 816; Rousseau v. Riihini-distance from Saugatuck and beyond fire house and $100 on a woodshed located a short emi, 186 Mich. 653, 153 N. W. 23. The decree of the court below must be reversed, and the bill dismissed, with costs to appellant. protection of that village. While a new policy was issued, it was a renewal with a small increase of the amount then carrieu. The policy was for three years, and took effect June 20th. The property was worth from $2,700 to $3,200. The agent of defendant GORDON V. ST. PAUL FIRE & MARINE solicited the insurance, and suggested that INS. CO. (No. 136.) (Supreme Court of Michigan. July 26, 1917.) 1. INSURANCE 548-FIRE INSURANCE-POLICY-VALIDITY. A condition of a fire policy avoiding liability if the assured refuses to submit to examination on oath is, as a general rule, valid and enforceable as against one who refuses without cause to submit to examination. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1354.] plaintiff take out insurance in a larger amount than she did, but she declined. The agent inquired if the house was vacant, and was told that it was. He asked if it would be vacant long and was told by plaintiff's husband that he did not think so. Plaintiff, over defendant's objection, was permitted to give evidence. that she inquired of the agent whether she would get anything if anything happened while the house was vacant, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was told by him that it would not be vacant within the policy if she had some furniture in it, and visited it every ten days or two weeks. A tenant moved into the house in June and occupied it for some time, after which it was vacant again. Different tenants occupied it periodically. The last tenant moved out some five or six months prior to the total loss by fire on June 12, 1916, the cause being unknown. Proof of loss was filed, and defendant denied liability. Such further facts as may be important will be detailed in connection with the discussion of the questions involved. The facts are not in dispute, and at the close of the case both parties asked for a directed verdict. After argument of the questions the court directed a verdict for the plaintiff for the amount of the policy with interest, and defendant brings the case here. Two questions are presented on this record for review. One relates to the right to maintain the present action; the other goes to the whole merits of the case and reaches the right of the plaintiff to recover in any event. The policy contains the following provisions: [1] The provision of the policy above quoted is a valid one and as a general rule enforceable, and one who without cause refuses to submit to examination should be precluded from maintaining an action on the policy. The purpose of the examination is to elicit the facts in order that the company may determine whether it will defend or adjust the claim. It is not to be used solely to obtain partial, unfavorable, or inaccurate admissions from a party, to be used in future litigation. [2] In all cases arising under it the party to be examined is entitled to the presence of his or her attorney. Thomas v. Burlington Ins. Co., 47 Mo. App. 169; American Central Ins. Co. v. Simpson, 43 Ill. App. 98. This is a reasonable condition, and changes no stipulations of the contract. The contract does not provide for a private examination of the insured, and there can be no reasonable objection to a bona fide request that such examination be conducted in the presence of the insured's attorney. In the instant case the plaintiff did not refuse to submit to an examination if it could be had when her attorney could attend. He was in Columbus, Ohio, the day fixed by defendant for the examination. He returned shortly. Under the circumstances of this case the request of the plaintiff that her attorney be present when such examination took place did not amount to a refusal to submit to an examination so as to preclude her right of recovery. The other question grows out of the fol On September 8th, following the fire, de-lowing provision of the policy: fendant wrote plaintiff a letter demanding an "This entire policy, unless otherwise providexamination under oath, and fixed Septem-ed by agreement indorsed hereon or added hereto, shall be void * ber 13th, at 2 o'clock in the afternoon, at plaintiff's residence as the time and place for such examination. Upon receipt of this letter she turned it over to her attorney. On the day fixed he had arranged to be in Columbus, Ohio, and gave her a letter to show defendant's attorney, stating that he had a previous engagement and advising her to state to him that she desired her attorney present at such examination. She declined to submit to an examination in the absence of her attorney. On September 14th, plaintiff's attorney wrote the company that he had commenced suit, but stated he would be glad to arrange for an examination of plaintiff. No examination of plaintiff was had, nor was any further attempt made by either side to arrange for one. Some heat appears to have been engendered over some of the negotiations preliminary to this suit, including the question of examining plaintiff. It is quite likely that counsel might, by consultation, have been able to arrange a day mutually agreeable for this examination and avoided any acrimony. We are concerned, however, with the legal rights of the parties, and do not feel called upon to determine for counsel the legal ethics involved in their controversy. The plaintiff was a witness upon the trial, and fully testified on both direct if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days, provided a such breach of condition continues or such loss shall occur on the property insured while breach of condition is the primary or contributory cause of the loss." [3, 4] We have already stated the conversation between the plaintiff, her husband, and defendant's agent at the time the insurance was negotiated. It was admissible for plaintiff to show that defendant's agent had knowledge when the policy was written that the premises were vacant. It was inadmissible to show the agent's construction of the word "vacant" as used in the policy. Whether under a given state of facts a house is vacant within the meaning of the contract of insurance presents a question of law, and the agent's opinion could not bind the defendants or the courts. In this case the admission of this testimony was not prejudicial to the defendant as the case in the final analysis became one for the court. [5] Upon the undisputed facts the premises were vacant and unoccupied, to the knowledge of defendant's agent, and therefore to its knowledge, at the time the policy was issued, and at the time it took effect. Under the undisputed facts the premises were vacant and unoccupied at the time of the fire. In |