Dutcher vs. Dutcher. right, only so far as the right is to be implied from the grant of jurisdiction to the courts, in terms permissive only; the public interest being concerned that the exercise of the jurisdiction should be subject to a sound judicial discretion. See Winship v. Winship, Williamson v. Williamson, supra; Barrere v. Barrere, 4 Johns. Ch., 187; Van Veghten v. Van Veghten, id., 501; Smith v. Smith, 13 Gray, 209; Smith v. Smith, 4 Paige, 432; People v. Dawell, 25 Mich., 247; Bennett v. Bennett, 28 Cal., 599. We do not mean to put the policy of the courts above the policy of the legislature; or to hold that the courts should exercise any discretion to refuse divorces authorized by the statute. But we do hold that, whatever apparent claim there may be to divorce, resting on mistake or collusion of the parties or other accident, the courts of this state are vested by the statute with judicial discretion to withhold judgment of divorce, in cases not within the statute upon their merits. We understand just such a discretion to have been claimed by the chancellor in New York in Smith v. Smith, supra, under the statute on which ours is modeled, and before it was adopted here. So, too, SHAW, C. J., speaking of an action for divorce, says: "If this were a mere private action or suit, in which the personal rights of the parties alone were concerned, there would be a strong reason for applying the doctrine of estoppel to the act of the husband in resisting the present motion of the wife. But a suit for divorce is of a very different character; it is one in which the public have an interest, and in the conduct and result of which the best interests of society are concerned." And the court therefore refused to apply the doctrine of estoppel, as in ordinary cases. Smith v. Smith, 13 Gray, 209. It concerns the public welfare that the state should not be made a free mart of divorce for strangers; and that, amongst her own people, divorce should not become matter of free will as much as marriage; a personal right independent of public Dutcher vs. Dutcher. right and inconsistent with public welfare. Divorces without the letter and spirit of the statute in fact, but made to look within it by design or mistake, or accident, are frauds upon the statute and offenses against public policy. And it is the duty of the courts, ex officio, as WALWORTH, C., has it, to look closely into actions for divorce, and to direct inquiries into the facts, when necessary, and finally to deny all divorces which would be abuses of the statute. This case evidently proceeded in good faith upon a misconstruction of the statute; but the judgment, if affirmed, would be none less in legal sense a fraud upon the statute. We regret that it is our duty to reverse it; but we are not sorry that the occasion of enforcing this rule places it above all possibility of bias, because all sympathy must be with the respondent. It appears quite conclusively that the respondent had not such residence here as would support her right to bring the suit in the court below. It appears also that she had notice of the adulterous cohabitation of the appellant more than three years ago; but this does not appear so conclusively, and she may be able to make a better case in another suit. We therefore think it right that the judgment against her should be in abatement, and not in bar. The judgment will therefore be reversed, with directions to the court below to permit the answer to be amended, or to consider it as amended on the trial, so as to raise the defense in abatement; and to dismiss the complaint upon the sole ground of the respondent's nonresidence at the commencement of the suit; the costs in this court and the court below to be of course paid by the appellant. We trust that this judgment will not be received as license for loose pleading or practice in actions for divorce. It is only when the public interest is involved, that the rules governing other cases will be relaxed in cases of divorce. As between the parties, the rules of pleading and practice will be Kelly vs. Berry and others. enforced as in other cases. Barker v. Dayton, 28 Wis., 367. By the Court.-Judgment reversed, and cause remanded for judgment in the court below in accordance with this opinion. KELLY VS. BERRY and others. SALE OF LOGS. (1) Waiver by vendee of objection to delivery on account of liens on the property. (2) Contract of sale construed; appraisal of logs by third person; no inspection required. REVERSAL OF JUDGMENT. (3) No reversal for casual remark of judge, not injurious to appellant. 1. Where, at the time of the vendor's offering to deliver property to the vendee according to contract, there are adverse liens upon the property, but the vendor furnishes security against them to the vendee's satisfaction, and the latter refuses to accept the property on the sole ground that it is of defective quality, this is a waiver of the objection founded on the existence of the liens. 2. A contract for the sale of logs fixed $10.50 per M. as the price of such of them as should average 250 feet each, and provided that a limited quantity of smaller logs might be delivered on the contract, the same to be appraised by a certain person, "the value to be based on the value of the $10.50 logs." Held, that this did not require an inspection of the smaller logs by the person named, to determine their value with reference to their quality; but he was to determine the value of the merchantable logs of the smaller sizes, on the basis that merchantable logs averaging 250 feet were worth $10.50 (the contract implying that all the logs were to be merchantable); and he might ascertain such sizes from the scale bills. 3. A judgment will not be reversed for a casual remark of the judge to the jury, which, even if inaccurate, had little importance in the case, and could not have misled the jury. APPEAL from the Circuit Court for St. Croix County. The complaint alleges that on the 6th of November, 1872, plaintiff entered into a contract with the defendants to cut and deliver, rafted in strings, all the saw logs he should cut Kelly vs. Berry and others. during the ensuing winter, at prices fixed by said contract, and to have said logs rafted by the first day of June, ensuing; that he duly performed all the agreements to be by him performed, by the terms of said contract, and had rafted, and ready for delivery on said day, all said logs so cut; that the defendants, being duly notified that such logs were so ready, refused to receive them or pay for them according to said contract, whereby the plaintiff sustained damage to the amount of $733.41. The answer denied that the plaintiff had performed his agreement, and alleged that he had been paid all that he was entitled to receive under such contract; and further alleged that an agreement was entered into subsequent to that mentioned in the complaint, whereby it was agreed by the plaintiff, defendants and certain other parties, on account of certain liens having been filed on said logs, and certain of said logs being of inferior quality, and not in accordance with the terms of said contract, that, in order to give the defendants a good title to the logs, the plaintiff was to transfer and sell them to Coon & Barlow and L. North, and that the amount agreed by said subsequent agreement to be paid therefor should be paid to said Coon & Barlow and L. North; and that the amount so agreed to be paid was paid to said Coon & Barlow and L. North, with the assent of the plaintiff. Upon the trial plaintiff claimed, and introduced testimony tending to prove, that the defendants, being notified of his readiness to deliver all said logs according to the contract, declined to receive them upon the ground that there were liens upon them; that thereupon he procured and delivered to the defendants an undertaking signed by Coon & Barlow, A. H. Baldwin & Co., the National Savings Bank and L. North, to receive said logs from plaintiff and deliver them to defendants upon the payment of the money to the National Savings Bank; that, upon the receipt of said undertaking by the defendants, they waived all objection to the title of the logs, but refused Kelly vs. Berry and others. to receive them upon the ground that they were not such logs as the contract called for. The contract provided that the price of such logs as should "average four to the M. feet" should be $10.50 per M. feet, and that a limited quantity of smaller logs might be delivered under the contract, "to be appraised by the surveyor general of Stillwater district, the valne to be based on the value of the $10.50 logs." The testimony, although conflicting, tends to show that the logs in question were merchantable. The rulings of the court on the trial are sufficiently stated in the opinion. The plaintiff recovered; and the defendants appealed. 1. The defendants were perfectly justified in refusing to take the logs, so long as the liens existed. It is of the essence of the contract in such cases, that the vendor have a perfect and unincumbered title to the goods sold. Dresser v. Ainsworth, 9 Barb., 619; 2 Broom & Had. Com., 146, note 515; 11 Johns., 528. On failure of title, the vendee may rescind the sale, and recover the purchase money paid. 1 Bouvier's Inst., secs. 950, 953. 2. It was error to charge the jury that defendants "could have safely taken a delivery of the logs." This was not a question to be passed upon by the court; the only question being whether they were legally bound to take a delivery under such circumstances. And the lien law referred to by the court has nothing to do with this question. 3. It was error to admit the testimony of the surveyor general as to fixing the value of the small logs under the contract. An inspection of the logs by him was necessary, unless waived by the parties. H. A. Wilson, for respondent, argued, inter alia, that when property is incumbered by a lien, and the vendee expressly waives that objection, and absolutely refuses to receive the property upon another ground, thereby inducing the vendor to omit making the title clear, the vendee cannot be heard to object to the title. |