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titioner, and by another who was its Ala. 204, 46 So. 261; Southern R. Co. vice president and managing director, v. Tharp (1898) 104 Ga. 560, 30 S. E. to an assessor of the city of Boston, 795; Indiana Union Traction Co. v. as to the value of that petitioner's Benadum (1908) 42 Ind. App. 121, real estate, rightly was excluded. It 83 N. E. 261; Louisville & N. R. Co. v. does not appear that these officers White Villa Club (1913) 155 Ky. 45 were authorized by the corporation to 159 S. W. 983 (obiter). speak for it on that subject, or that After the decision in Cincinnati, H. such statements
within the & I. R. Co. v. McDougal (1886) 108 scope of their official duty." Brackett Ind. 179, 8 N. E. 571, infra, III. b, the v, Com. (1916) 223 Mass. 119, 111 N. statute was changed (1891) so as to E. 1036, Ann. Cas. 1918B, 863.
require the owner to state the value The owner's valuation for assess of his personal property for taxation, ment has been admitted as a decla and such list was held admissible as ration or admission against interest. contradicting the owner on the quesShoemaker Co. v. Munsey (1911) 37 tion of value. Indiana Union TracApp. D. C. 95; Southern R. Co. v. Tharp tion Co. v. Benadum (1908) 42 Ind. (1898) 104 Ga. 560, 30 S. E. 795; App. 121, 83 N. E. 261, an action for Western & A. R. Co. v. Tate (1907) injury to a racing mare while being 129 Ga. 526, 59 S. E. 266; St. Louis, 0. loaded on defendant's car for shipH. & C. R. Co. v. Fowler (1898) 142 ment. The court points out that the Mo. 670, 44 S. W. 771.
above change in the statute was eviIn an action to fix the value of real dently overlooked by the court in property between landlord and tenant, German Mut. Ins. Co. v. Nieweddle the affidavit of value of the landlord's (1894) 11 Ind. App. 624, 39 N. E. 534, agent in listing the property for tax where it was held that a personalation some two years before was held property tax list sworn to by the ownadmissible as a declaration against er is not admissible to contradict interest. Shoemaker Co. v. Munsey him as to the value of stock, in an ac(D. C.) supra.
tion on a fire insurance policy on the In an action for damages in firing stock. timber by sparks, it was held that the In a condemnation proceeding the return of a taxpayer, as contained in court said and held: “There is conthe tax receiver's digest, may be con flict upon affidavits filed as to what sidered by the jury on the issue of the the omitted testimony in fact was; value of the property therein included, but, accepting the petitioner's version as an admission. Western & A. R. Co. as entirely correct, it could, in no view v. Tate (Ga.) supra.
of the case,
have been material. The value of land as set down in Henry, one of the defendants, testified his tax list by a tenant in common is that he swore his property before the evidence in eminent domain proceed assessor at much less than he valued ings against him, and also against his it before the commissioners. As to cotenant, when they had stipulated the estimate for taxation, unfortuthat they were cotenants and that one nately too common a course. but one half of the damages was to be as which could have no weight in detersessed to each, St. Louis, O. H. & C. mining the value of the property in R. Co. v. Fowler (Mo.) supra.
question, incompetent in fact for that So, the assessed valuation of per purpose, though perhaps admissible sonal property based on the owner's to tend to contradict his testimony in sworn valuation is admissible as an chief; if any stress was given that, admission; not, however, conclusive there should have been none, as the as to value. Daniels v. Fowler (1898) evidence was entirely irrelevant, bas123 N. C. 35, 31 S. E. 598.
ing as it does the claim for compensaThe owner's valuation for assess tion mainly upon the fact of special ment has also been admitted in con injury to respondent's present busitradiction of his testimony. Gayle v. ness." Virginia & T. R. Co. v. Henry Court of County Comrs. (1908) 155 (1873) 8 Nev. 165.
b. Cases excluding the evidence. H. & I. R. Co. v. McDougall (1886) 108 In some cases it has been held that Ind. 179, 8 N. E. 571. See also Wray the owner's valuation was not evidence v. Knoxville, L. F. & J. R. Co. (1904) of value. Burdick v. Valerius (1912) 113 Tenn. 544, 82 S. W. 471. 172 Ill. App. 267; Bartlesville Inter A tax list is “not competent, either uban R. Co. v. Quaid (1915) 51 Okla. for or against the lister, as original, 166, L.R.A.1918A, 653, 151 Pac. 891. substantive evidence, to establish the
In an action for damaging an auto value of a particular article of propmobile, it was held not error to ex erty for purposes other than taxation. clude a personal property tax sched
This is especially so in a case ule purporting to have been made out where it is sought to arrive at the by the plaintiff. Burdick v. Valerius value of one article, by proving the (Ill.) supra.
value of others with which that in In Bartlesville Interurban R. Co. v. question was listed." Cincinnati, H. Quaid (Okla.) supra, it was held that & I. R. Co. v. McDougall (1886) 108 "assessors' lists are not admissible as Ind. 179, 8 N. E. 571. admissions against interest as to value In Putnam v. White (1920) of property listed for assessment, Ala. App. —,88 So. 355, an action for where the issue as to value is raised damages for setting fire whereby the in a civil action between the owner plaintiff's barn, etc., was burned, the and parties other than the state.” The court said: “The evidence showed court said: “The stress of the law is that the barn was burned on the 4th laid upon listing, and not on valuation, of March, 1918; that it, together with by the owner; and the fixing of the other buildings, was a 60-acre valuation is the duty of the assessor.
tract of land owned by plaintiff. It is the duty of the assessor to re
There was clearly no error in sustainquire the owner to make a statement ing plaintiff's objection to the questo him of the value, but the assessor tion on cross-examination, 'Whether may not place the value on the lists at he assessed the place for taxation for the amount stated by the owner; and
the year 1917, and for what sum.' it is often the common experience of
This was not the proper way to prove the citizen that his opinion as to the
the market value of the farm at the value differs greatly from that of the time it was burned, or at any other assessor, but the opinion of the asses time." (The court does not say that sor in this particular prevails to the the owner was not required to value taxpayer's discomfort. Such lists are the property for assessment, but it competent as a solemn declaration, seems that he was not so required, as under oath, as to whether certain
it was of the same year (1917) to property was listed, or was claimed by which the decision in the Goodloe the taxpayer; but to admit said lists as case related.) an admission against the owner as to
IV. Complaints to assessing authorities. value of property listed would be to
That an owner said to the assessor admit irrelevant evidence, for the reason that the statement when signed
that the appraised value was more was made for the purpose of listing
than the property was worth is admisthe property, and not for the purpose
sible in eminent domain proceedings a of fixing the value of the property.”
year later as an admission against And the owner's valuation, in ren himself. Patch v. Boston (1888) 146 dering property for assessment, has Mass. 52, 14 N. E. 770, 772. been held not admissible as evidence See also Gossage v. Philadelphia, B. of value where the law does not re & W. R. Co. (1905) 101 Md. 698, 61 S. quire him to value it. United States W. 692, supra, II. c. v. Goodloe (1920) 204 Ala. 484, 86 So is a pencil memorandum of value, So. 546; San José & A. R. Co. v. Mayne handed by the owner to an assessor, (1890) 83 Cal. 566, 23 Pac. 522; Mar admissible in eminent domain protin v. New York & N. E. R. Co. (1892) ceedings. Manning v. Lowell (1899) 62 Conn. 331, 25 Atl. 239; Cincinnati, 173 Mass. 100, 53 N. E. 160.
17 A.L.R. - 12.
An unsworn statement of an owner of property were put on by the asmade to the appeal tax court was held sessor, and not by him, as their only admissible in an eminent domain pro effect was as evidence of an admission. ceeding, in Baltimore V. Himmel The court said: “As presented, the (1919) 135 Md. 65, 107 Atl. 522. valuations appeared to be either the
acts of the plaintiffs, or those of V. Special statutes.
the assessor acquiesced in by plainAlthough the statute makes a tax tiffs.
They were therefore adassessment evidence of value, the
missible.” court held it error to admit it where,
An owner's valuation in a list for in condemnation proceedings, a part of
assessment is not evidence of value. two lots was taken, saying: “Ordi Gulf, C. & S. F. R. Co. v. Abney narily, the assessment offered should
(1888) 3 Tex. App. Civ. Cas. $ 414 be limited to the particular property
(condemnation proceeding); McLane involved in the proceeding; for, when
v. Paschal (1889) 74 Tex. 20, 11 S. W. two or more pieces are combined, there
837 (homestead); Ft. Worth & R. G. is no certain means of knowledge R. Co. v. Kell (1890) 4 Tex. App. Civ. affording ground for a just and fair
Cas. 214, 16 S. W. 936 (condemnation apportionment, unless the land is all
proceeding); San Antonio V. Diaz of the same quality and appears to (1901) - Tex. Civ. App. 62 S. W. have been valued by the acre or the 549 (action for damages for contamilot." Gauley & E. R. Co. v. Conley nation of water). Contra: Burton (1919) 84 W. Va. 489, 7 A.L.R. 157, Lumber Co. v. Houston (1907) 45 100 S. E. 290.
Tex. Civ. App. 363, 101 S. W. 822; Returns made to the state tax com
Hengy V. Missouri, K. & T. R. Co. missioner by a corporation are not (1908) Tex. Civ. App. 109 S. W. evidence of value in eminent domain 402; Gulf, C. & S. F. R. Co. y. Koch proceedings, when the statute pro (1912) Tex. Civ. App. –, 144 S. W. vides that such return “shall be open 1035. only to the inspection of the tax com In an action for damages to propmissioner, his clerks, and assistants,
erty by the construction of a tunnel and such other officers of the com
and its approaches, the court said: monwealth as may have occasion to "The proposition under this assigninspect it for the purpose of assessing ment is, in substance, that a tax renor of collecting taxes." Brackett v. dition which purports only to give a Com. (1916) 223 Mass. 119, 111 N. E. correct list of property without any 1036, Ann. Cas. 1918B, 863.
statement of value by the party renIn Williams v. Brown (1904) 137 dering is inadmissible as against such Mich. 569, 100 N. W. 786, it was held party on the issue of the value of the that a person may not be asked on property. The rendition was made by cross-examination what value he put the general manager of appellant, on certain mill property in his tax list and, while the valuation of the prop(he did not own the land), where the erty is not sworn to by him, there is statute provided that no tax statement nothing on the face of the record of made by a taxpayer "shall be used for said rendition to indicate that the any other purpose except the making valuation was not made by him, or, if of an assessment for taxes as herein made by the assessor, that he did not provided, or for enforcing the pro acquiesce therein, and ... it was visions of this act."
admissible in evidence as an admission
by plaintiff as to the value of the propVI. Texas cases.
erty at the time the rendition was It was held in Boyer v. St. Louis, S. made. Of course such admission was F. & T. R. Co. (1903) 97 Tex. 107, 76 not binding on plaintiff, and could S. W. 441, an action for damages for only be admitted as a circumstance construction of a railroad, that it was tending to show the value of the properror not to permit the owner to state erty.” Burton Lumber Co. v. Housthat the valuation on his renditions ton, supra.
The owner's valuation for assessment is admissible in condemnation proceedings as an admission. Hengy v. Missouri, K. & T. R. Co. supra.
In an action for damages for blocking ingress, etc., it was held that the owner's valuation for taxes was admissible as evidence of value and also as an admission against interest. Gulf, C. & S. F. R. Co. v. Koch, supra.
In Crystal City & U. R. Co. v. Isbell (1910)
Tex. Civ. App. 126 S. W. 47, it was held that such valuation, while no criterion of value in condemnation proceedings, is admissible as tending to contradict the owner's evidence.
In an action for damages by fire, it was held (obiter) that the owner, in
cross-examination, might be asked, in contradiction of his testimony, at what value he had rendered the property for taxes. Ft. Worth & D. C. R. Co. v. Hapgood (1918) Tex. Civ. App. —, 201, S. W. 1040.
In an action for damages for killing an animal, the owner's valuation of the same for taxes was held admissible as an admission and as contradiction. Ft. Worth & R. G. R. Co. v. Chisholm (1912) Tex. Civ. App. 146 S. W. 988.
In condemnation proceedings, the owner's valuation for assessment was held admissible in contradiction as an admission. Trinity & B. V. R. Co. v. Orenbaum (1915) Tex. Civ. App. 173 S. W. 531.
B. B. B.
IRA L. MILLER, Piff. in Err.,
Michigan Supreme Court — June 6, 1921.
(- Mich. — 183 N. W. 24.)
Landlord and tenant — assignment of lease – taking partner.
Taking a partner into a business is not a violation of a covenant against assignment of the lease of the property where the business is conducted, if the lessees retain their interest in the business and continue active in its management.
(See note on this question beginning on page 183.]
ERROR to the Circuit Court for Genesee County (Brennan, J.) to review a judgment in favor of defendant in a summary proceeding brought to recover possession of certain leasehold premises. Affirmed.
The facts are stated in the opinion of the court. Mr. Harold Goodman, for plaintiff objection to the withdrawal of old in error:
ones. Yet even that is a conveyance Taking in a partner to a lease vio of an interest in the lease. Logically lates the covenant against assignment. viewed, it is a breach of the covenant
Roe ex dem. Dingley v. Sales, 1 against assignment. Maule & S. 297, 105 Eng. Reprint, 111; Varley v. Coppard, L. R. 7 C. P. 505, Emery v. Hill, 67 N. H. 330, 39 Atl. 26 L. T. N. S. 882, 20 Week. Rep. 972; 266; Glendening v. Western U. Teleg. Langton v. Henson, 92 L. T. N. S. 805; Co. 163 App. Div. 489, 148 N. Y. Supp. Loveless v. Fitzgerald, 42 Can. S. C. 552; Blessing v. Fetters, 40 Cal. App. 254, 2 B. R. C. 809, 17 Ont. L. Rep. 471, 181 Pac. 108; Re Georgalas Bros. 254; Tober v. Collins, 130 Ill. App. 245 Fed. 129; 16 R. C. L. § 330.
333. If the contention of the defendant Mr. George W. Cook, for defendant is sustained, that new partners to the in error: lease may be taken in, there can be no The sale of a two-thirds interest in
the business of Ische Brothers to the same “to be occupied for a generElwyn Pond did not violate the cove al shoe store" at a rental of “$1,000 nant in the lease against assigning or each year, payable monthly in adtransferring the lease, or subletting
vance," and in case the provided the premises or any part thereof.
privilege of release for five years 24 Cyc. 969; McAdam, Land. & T. § 141; Underhill, Land. & T. $ 627; Tay
more is exercised the rental is speclor, Land. & T. $ 426; Livingston v.
ified as "the sum of $6,000 payable Stickles, 7 Hill, 253; Jackson ex dem. $1,200 each year, payable monthly Stevens v. Silvernail, 15 Johns. 278; in advance." The lessees are reRiggs v. Pursell, 66 N. Y. 193; Roose quired to keep the premises in revelt v. Hopkins, 33 N. Y. 81; Hargrave pair, etc. The instrument also prov. King, 40 N. C. (5 Ired. Eq.)_430, 8 vides: "Said parties of the second Mor. Min. Rep. 408; Boyd v. Frater
part further covenant that they will nity Hall Asso. 16 Ill. App. 574; Ma
not assign or transfer this lease or loney v. Smith, 16 Ala. App. 595, 80
sublet said premises, or any part So. 169; Schroeder v. King, 38 Conn. 78; Presby v. Benjamin, 169 N. Y. 377,
thereof, without the written assent 57 L.R.A. 317, 62 N. E. 430; Randol v. of the parties of the first part.' Scott, 110 Cal. 595, 42 Pac. 976; Spangler v. Spangler, 11 Cal. App. It further contains the customary 321, 104 Pac. 995; Swartz v. Bixler, 261 provision, that in case rent is not Pa. 282, 104 Atl. 591; White v. Huber paid when due, or "if default shall Drug Co. 190 Mich. 212, 157 N. W. 60.
be made in any of the covenants Steere, Ch. J., delivered the opin- herein contained, then it shall be ion of the court:
lawful for said party of the first Plaintiff instituted summary pro- part, her certain attorney, heirs, ceedings before a circuit court com- representatives, and assigns, to remissioner of Genesee county to re- . enter into, repossess the said premcover possession of certain leasehold ises, and the said parties of the secpremises known as No. 527 South ond part, and each and every other Saginaw street in the city of Flint. occupant to remove and put out." The case was retried on appeal to On January 6, 1920, the Ische the circuit court of Genesee county Brothers sold to defendant, Elwyn before the court without a jury on Pond, a two-thirds interest in their stipulated facts, and judgment ren stock of goods, for which a bill of dered for defendant.
sale was given, and took him into So far as material to the question partnership with them. By the paraised, it was shown that prior to pers which they executed the shoe January 6, 1920, plaintiff was own business was to be continued under er by assignment from the lessor of the firm name of Ische Brothers at a written lease given by Sarah E. 527 South Saginaw street for a term Burr, of Flint, to Charles E. Ische of one year and four days, Pond to and Will Ische, dated January 10, act as manager, for which he was 1911, running for five years, with to draw $25 per week, and the Ische the privilege of renewal for an ad Brothers were to "act only in an additional five years from January 10, visory capacity” in the management 1916. They were partners when the of the business. No mention was lease was made and thereafter in made of the lease in the papers possession of the leased premises, which they executed between them. operating a shoe store under the On learning of the agreement befirm name of Ische Brothers. The tween Ische Brothers and defendant lease runs to “Ische Brothers, Will Pond plaintiff gave notice of forC. Ische, and Charles E. Ische, co feiture of the lease "for breach of partners.” The property leased is the covenant against subletting and described as "the first floor and assigning," and demanded possesnorth half of the basement of store sion of the premises from the three building at No. 527 South Sag- partners. On their failing to surinaw street, second ward of Flint," render possession the summary pro