text:
    CULLIGAN v. ALPERN.
    1. Partnership — Evidence—Reputation.
    It is not error, in an action on a promissory note, brought by an accommodation indorser who had paid the note, to admit in evidence for the purpose of showing the defendant’s liability as a partner, testimony that the general understanding in the community was that the defendant was a member of the firm, the partnership having been shown to have at one time existed, and been subsequently dissolved without notice to the indorser or the public.

    2. Same — City Directories as Evidence — Estoppel.
    In such action city directories containing the defendant’s name as a member of the firm, are admissible, not to prove the creation of the partnership, but to show how much notice had been given the public of its termination.
    3. Same.
    Under evidence that an admitted partnership had been dissolved without notice to the public, and that plaintiff indorsed a note at the request of the managing partner of the firm, relying on its continued existence, sufficient evidence of liability by estoppel is shown as against the retired partner.
    4. Trial — Directing Verdict —Request by Both Parties for Direction of Verdict — Questions of Pact and Law.
    In an action where the evidence is undisputed and the parties both ask the court for a directed verdict, neither indicating a desire to submit the case to the jury, it is not error to determine the questions as matter of law.
    Error to Alpena; Emerick, J.
    Submitted January 20, 1910.
    (Docket No. 55.)
    Decided March 5, 1910.
    Assumpsit by Patrick Culligan against Morris Alpern upon a promissory note. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Charles JR. Henry, for appellant.

      O’Brien & Francis, for appellee.

       As to necessity of actual notice of retirement of member of firm to relieve retiring member from liability on obligation renewed after his retirement, see note to Gross v. Breckinridge Bank (Ky.), 4 L. R. A. (N. S.) 800.

   Moore, J.

The questions involved in this proceeding are so clearly stated by the trial judge in his direction to the jury that we quote therefrom as follows:

“ The action is one brought by Patrick Culligan against Morris Alpern. For a number of years prior to April 10, 1902, Casper Alpern and his stepson, Morris Alpern, had been associated as copartners in the fish business here in this city under the firm name of Alpern & Co. On that day they dissolved that copartnership, and the copartnership relations never thereafter existed between them. That dissolution was evidenced by a written contract which has been put in evidence. This contract provided that Morris Alpern should be paid certain sums, amounting, I think, in the aggregate, to $3,600, evidenced by certain notes, due from time to time. It seems that those notes were paid, and it would make no difference whatever whether they were or not, the partnership that day ceased, and thereafter the only relation which Mr. Morris Alpern had to his stepfather, Casper Alpern, his former copartner in the firm of Alpern & Co., was that of a creditor.
“That being the condition of affairs between them, on the 8th day of January, 1906, Casper Alpern applied to the Alpena County Savings Bank for a loan of $300. Mr. Culligan was president of the bank. The note would not be accepted or discounted by the bank unless it was indorsed by some responsible party, and Patrick Culligan, at the request of Casper Alpern, did indorse the note and became liable thereon as indorser; that is to say, his contract was that if the note was not paid at 'maturity, and he was notified of its dishonor, that he would pay it. The note was renewed. The renewal note was dishonored. Mr. Culligan’s liability was fixed by notice of protest, as we term it, and he paid the note, and then he brought this suit against Morris Alpern. Morris Alpern has always denied liability upon the note, from the very time of its being brought to his attention, on the ground that at the time of its inception he was no longer a partner and was not liable thereon. And he was not liable, gentlemen, upon that note because of the fact that he was a partner, for he was not. He can only be held liable upon the ground of estoppel, that he has permitted himself to be held out as a continuing member of that firm.
“ Now, the facts about that are these: Casper Alpern, although Morris had retired on the 10th day of April, 1902, continued to do business himself, alone, as sole owner, but under the name of Alpern & Co.; and there is one of his cards that he used in his business, in this case, which Miss Millie Alpern testifies were printed in December, 1903. ‘Alpern & Company,’ this business card says, ‘Casper Alpern, Sole Owner, Alpena, Michigan.’ But the name that he continued to do business under was Alpern & Co. The evidence has been put into this case of the city directories for the years 1903 and 1904, and 1905 and 1906. In each of these directories Morris Alpern was carried as a reputed member of the firm of Alpern & Co. For instance, for the year 1906, I find here in the directory before me, first, all the individuals under the head of ‘Alpern.’ ‘Alpern, Morris.’ Then in parenthesis after that ‘(Alpern & Company) Fish. 223 North Second Avenue. Boards 108 East Dunbar.’ A little lower down I find, ‘Alpern & Company, Casper;’ then in parenthesis ‘(Casper & Morris Alpern) Wholesale Fish, North Second Avenue, near the bridge.’
“ It has been put in evidence here in this case that it was the general reputation in the city of Alpena that Morris Alpern continued to be and remain a member of the firm of Alpern & Co. The evidence is, in my judgment, conclusive upon that point, that that was the established reputation of Morris Alpern here in the city to such an extent, upon that branch of the case, that, should the verdict of the jury be contrary to the finding upon that one question, I would promptly set it aside. Now, if Morris Alpern, after retiring from the firm of Alpern & Co., knew that his stepfather continued to do business under the name of Alpern & Co. — and he must have known it; he has established it conclusively here today by evidence showing a business carried on of considerable volume and of general publicity — if he knew that, I think we would have a right to infer that he in fact must have known that it was the general reputation in this community that he remained a member of that firm; and in that case those who dealt with that firm upon that belief, and in reliance upon that fact, would have a right to recover against him. The only question that I have had any doubt about in the case, after an examination of the law and hearing the evidence this morning, is whether Mr. Culligan had shown himself possessed of a knowledge of that reputation before the transaction in question. It is possible, gentlemen, that would raise a question of fact which I should submit to you. But on the whole, and from the position of the counsel, one wishing a verdict directed for the plaintiff and the other wishing it directed for the defendant, I have concluded to pass upon it as established from the evidence, and I direct you to find a verdict for the plaintiff for the amount due upon this note. That would be the amount of the note, with interest, less the payment that has been made.”

He then directed a verdict. The case is brought here by writ of error.

Counsel for appellant insists here, as he insisted in the court below, that a verdict should have been directed for appellant. It is claimed that error was committed in allowing plaintiff to testify to the general understanding in the community that the members of the firm of Alpern & Co. were Morris Alpern and Casper Alpern. The objection was that the testimony was immaterial, not that the witness was incompetent to give it. Later, when it appeared that some of his information was obtained from Casper Alpern, who is now dead, the testimony as to what was learned from him was stricken out because within the knowledge of the deceased partner.

Reference is made in the charge to the city directories. It is said they should not have been admitted, as Morris Alpern testified that he had not seen them, and did not know what they contained about the firm of Alpern & Co. These directories were published yearly, and were known as_ “Polk’s Alpena City Directories,” and were in general use by-the public who had occasion to use directories, and were the only directories published in Alpena. It should not be forgotten that defendant testified, and the fact was established, that he at one time was a member of the firm of Alpern & Co., and that Casper Alpern was the active manager of the firm, and that after the partnership was ended the name of the firm was not changed. He also testified that he had taken no method of advising the public that his connection with the firm had ceased. We think the directories were competent, not as substantive proof of the creation of the partnership, but as bearing upon the question of how much notice had been given of its termination.

We quote from the brief of counsel:

“The circuit judge was in error in his premises when he stated:
“ ‘ It has been put in evidence here in this case that it was the general reputation in the city of Alpena that Morris Alpern continued to be and remain a member of the firm of Alpern & Co. The evidence is, in my judgment, conclusive upon that point that that was the established reputation of Morris Alpern here in the city to such an extent upon that branch of the case that, should the verdict of the jury be contrary to that finding upon that one question, I would promptly set it aside.’
“ The only admitted evidence in this case of general reputation was the city directories; so far as the reference to the defendant in such directories went, neither the plaintiff nor the defendant knew thereof at the time this note was given.”

We think counsel are in error in this. The plaintiff, who was an active business man and president of a bank, testified that he knew of the formation of the partnership, of its engaging in business, the manner of conducting it, and that he never heard of any change in the partnership until defendant denied his liability on the note. The cashier of the bank testified to substantially the same thing, only more in detail. We think there was an abundance of evidence for the statement of the judge. We have a case, then, of an admitted partnership, which was known to the plaintiff; of its secret dissolution, so far as the public was concerned; of no notice given to the public or the men who had dealt with the firm of its dissolution; of the indorsing of a note at the request of the managing member of the old firm, and the obtaining of the money at the bank without any notice on the part of the bank, or of the indorser, of the dissolution of the firm. It was not enough for Morris Alpern to withdraw from the firm. He should have given publicity to his withdrawal.

In Burgan v. Lyell, 2 Mich. 105 (55 Am. Dec. 53), the court said:

“Whether a member who had sold out his shares in the company stock would be relieved from liability without notice, before the work was done, or from the payment of debts created subsequent to such sale, propounded to the court for decision * * *. The answer is, that each member of the partnership will continue liable to third persons for any debts or liabilities incurred in the transaction of their legitimate company business, until a dissolution of the co-partnership, and notice thereof. (Story on Partnership, §§ 334-336, together with cases therein noted); and that a dissolution, by one of the partners silently withdrawing, or assigning his interest in the company stock to another, cannot legally have the effect to relieve such partner from liability for work done before, or debts contracted after, thus silently withdrawing or assigning.”

See, also, Johnson v. Emerick, 70 Mich. 215 (38 N. W. 223); Hall v. Heck, 92 Mich. 458 (52 N. W. 749); Solomon v. Kirkwood, 55 Mich. 256 (21 N. W. 336).

As neither of the attorneys wanted the case submitted to the jury, but insisted upon a directed verdict, we think the judge made a right disposition of the case.

Judgment is affirmed.

Montgomery, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    JOHNSTON v. FREDERICK STEARNS & CO.
    1. Specific Performance — Contracts — Consideration — Accounting.
    Sufficient consideration to support a contract by an employer to convey stock in the concern to a valued employé as an inducement to his remaining and taking an interest in the business, is inferable from an agreement to give the employé twenty shares of stock to be paid for out of the earnings of the stock and subject to the employer’s right of purchase reserved in the instrument, which will justify proceeding in equity for an accounting and the specific performance of the obligation
    2. Same — Accounting—Bailment—Pledge.
    By a clause in the agreement stipulating that the employer may retain control of the stock as security, the relation of pledgor and pledgee is created, warranting an accounting in equity from the latter who controlled the sole means of ascertaining the state of the account, to determine whether and when the stock had been fully paid.
    3. Same — Mutuality—Relief.
    While a provision in the instrument requiring the complainant to offer the stock to the employer before transferring his interest to third parties may not be specifically enforceable as to the employé, the fact will not relieve the other party from his obligation to transfer the stock to the defendant after being fully paid for it.

      Appeal from Wayne; Murphy, J.
    Submitted February 9, 1910.
    (Docket No. 128.)
    Decided March 5, 1910.
    Bill by Leonard Johnston against Frederick Stearns & Company for an accounting. From an order overruling a demurrer, defendant appeals.
    Affirmed.

      McDonald & Fowler, for complainant.

      H. F. Spalding, for defendant.
   Montgomery, C. J.

In 1885 it appears that the complainant was employed by the defendant corporation as foreman in a box manufacturing establishment. On the 27th of March of that year an agreement was entered into between the parties, which we quote at length:

“ March 27th, 1885.
“Leonard Johnston:
“ In consideration of your position here and the value of your services to us, we will sell you 20 shares of our capital stock at $50.00 per share and will issue a certificate to you therefor when this stock shall have been paid for by you out of your share of the total net earnings of the business.
“When said net earnings shall have equaled $1,000.00 such certificate shall be delivered to you but until such time the company shall hold said certificate as collateral for such payment and thereafter you shall be entitled to such dividends as may be declared thereon.
“F. Stearns & Co. reserve the right of preference to purchase your stock should you desire to sell it for any reason whatsoever.
“We expressly reserve the right in case of your leaving our employ for any reason whatsoever, or in case of your death, to buy back from you or your heirs as the case may be this amount of stock at the amount already credited to you in its favor if not entirely paid for or if paid for entire at its face value plus earnings not paid you. We do not bind ourselves to purchase any stock but reserve the privilege or preference to do so if we desire. We expect in return for this concession on our part that your increased interest in us and our affairs may repay us for this interest taken in you.
[Signed] “F. Stearns & Co.
“ I buy said twenty shares of stock at $50.00 a share upon the terms and conditions of the above proposition made by F. Stearns & Co. and I further agree in consideration of said sale to me to bind myself to the following conditions:
“(1) This transaction shall not be mentioned, written or communicated by me to any one except by written permission of F. Stearns & Co.
“ (2) I promise not to divulge in any way at any time anything relating to the business of F. Stearns & Co. either of their works, their office, their meetings or anything pertaining to their affairs.
“(3) I agree if I leave their employ from any cause whatsoever or am discharged for cause before this stock is fully paid for to offer it back to F. Stearns & Co. for the amount already credited to me on its account and I do bind my heirs in case of my death to do the same. If I have paid for it in full and it is in my possession, I agree to offer it to F. Stearns & Co. in case I leave their employ at its original cost plus undivided earnings due me at the time of my leaving.
“ (4) I will never offer my stock for sale after it comes into my possession until I have offered it first to F. Stearns & Co. and I will never offer my stock or sell it to any one while I remain in the employ of F. Stearns & Co. unless it be to F. Stearns & Co.
“ (5) It is further understood and agreed by me that in case of my being convicted of any crime while in the service of F. Steams & Co. and before I have fully paid for this stock, or in the event of my violating the business rules of this company in such manner as it is proven by the directors to be of serious financial or other injury to the company, then in such event this stock to revert back to F. Stearns & Co. without any liabilities or obligations on the part of F. Stearns & Co. to pay the earnings already credited to me upon said stock.
“ March 27th, 1885.
[Signed] “Leonard Johnston.”

On the same date a statement was handed to Mr. Johnston in the following terms:

“Detroit, Mich., March 27th, 1885.
‘£ Leonard, Johnston :
“This is to certify that we have this day sold to you twenty shares of our capital stock at fifty dollars a share, the certificate of which has been made out in your name, and is to be held by us as collateral until the items and conditions enumerated in our agreement of this date shall have been faithfully carried out by you.
[Seal] “I. Stearns & Co.
“Frederick. Stearns,
“Detroit, Mich.”

The complainant continued in the employ of the defendant until the first day of May, 1890, and soon after called upon defendant for an adjustment of the stock account, which was refused, and thereupon a bill was filed, which was subsequently amended, and both the amended and the original bill prayed for an accounting to be taken under the direction of the court of the net earnings of the business of the defendant from and after March 27, 1885, and of the proportion of the earnings which should be credited to the account of the stock purchased by complainant; that in the event the stock was found to be fully paid for the court should decree specific performance; and that all dividends declared by the company from and after the date when the court should determine that the stock was fully paid for should be paid to the complainant, together with interest thereon; and that complainant be restored to all the rights and privileges of a stockholder in the company. To this bill of complaint the defendant interposed a demurrer, specifying with sufficient particularity the grounds of demurrer. The demurrer was overruled, and the defendant brings the case here for review.

The contentions made by defendant’s counsel are, first, that there is no such consideration for the company’s agreement that it should be specifically enforced in equity; second, that the terms of the agreement upon complainant’s part to be performed are such that they could not be enforced specifically against the complainant, and that, therefore, the contract is not mutual and could not for this reason be specifically enforced; third, that the option given to the company to pay an amount to Johnston measured by the stock earnings, instead o£ conveying the stock, in the absence of anything showing that the remedy in damages at law is inadequate, precludes relief in equity.

The first inquiry is as to the legal effect of this agreement. We think there is little difficulty in determining this and at the same time answering the contention that the agreement is without consideration. When the relations of the parties are considered, it is manifest that this agreement on the part of F. Stearns & Co. was a tender to complainant of an opportunity to become the owner of 20 shares of defendant’s capital stock upon the terms of continuing in the employment of defendant until the net earnings of the stock should equal its face value. A provision was likewise made for a proportionate allowance in case he left the employ of the defendant without violating the business rules of the company. It was not a gratuity. It was a continuing offer. So far as the bill discloses, there was no contract obligation on the part of the complainant to remain with the defendant for any length of time under any previously existing contract. The contract discloses the purpose to compensate the complainant and to enlist his greater interest in his future employment by this bonus of stock, terms of employment not found unusual in business and when resting upon the adequate consideration of services to be rendered in the future, supportable upon every principle of justice and law. See Price v. Minot, 107 Mass. 49; Sword v. Keith, 31 Mich. 247.

The other points made are based, as we think, in part upon a misconception of the theory of the complainant’s case. At the time this contract was made, these shares of stock were set aside, and a certificate was given to the complainant showing that they had been so set aside for complainant, and that they were held by the company as collateral security for the performance by him of the engagements necessary to entitle him to receive the stock. This is the clear import of the certificate quoted above. But it is to be noted that the means of ascertaining whether and the time at which the net earnings of these shares had amounted to sufficient to cancel the obligation were necessarily within the control of the defendant. We can conceive of no reason, therefore, why the complainant is not entitled to have an accounting of the business sufficient to determine the question of whether these shares have been fully paid or if not what proportion have been paid, and, if paid out of the earnings of the company, at what time such payment was concluded. This to our mind is the chief purpose of this bill. The accounting is not, as is suggested, merely incidental to a specific performance of the contract. It is the real basis, or at least a sufficient basis, for the interposition of a court of equity. The bill avers that the defendant did in fact issue the shares of stock, but retained possession thereof as collateral security, and further avers the performance of all the conditions of the contract by the complainant. The defendant is therefore by this averment to be treated as a pledgee of this stock, and as such liable to account, and the accounting can be prayed for in equity. Cochrane v. Adams, 50 Mich. 16 (14 N. W. 681); Richardson v. Welch, 47 Mich. 309 (11 N. W. 172); Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554). See, also, Price v. Minot, 107 Mass. 49.

As to the scope of the relief which complainant is entitled to, it is perhaps not essential that that be determined on this hearing; but we see no difficulty such as is claimed by the defendant exists. It is suggested that the court cannot decree specific performance by the complainant of the provision that he shall not offer this stock to others for sale until after it has been offered to the defendant. While this may not entitle the complainant to the stock, relieved of such a condition, it certainly does not relieve the defendant of the obligation to transfer the stock upon being fully paid, and the court would have full power to protect the defendant in that respect by its final decree.

The bill makes a case entitling the complainant to relief in equity, and the decree will be affirmed, with costs.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Moore, J.

text:
    REED v. MARTIN.
    Highways — Automobiles—Motor Vehicle Law — Negligence— Contributory Negligence — Bicycles—Law of Road.
    In an action for negligent injuries claimed to have resulted from the collision of a bicycle and an automobile, the owner of which was shown by undisputed evidence to have failed in complying with Act No. 196, Pub. Acts 1905, requiring the driver of a motor vehicle to keep to the right of street intersections in turning comers, while the bicyclist was claimed to have been negligent, under disputed testimony, in failing to avoid the accident, the questions of negligence and contributory negligence were questions of fact.
    Error to Bay; Collins, J.
    Submitted February 15, 1910.
    (Docket No. 152.)
    Decided March 5, 1910.
    Case by William Reed against Joseph Martin for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      L. P. Cowmans and James Donnelly, for appellant.

      8. G. Houghton, for appellee.
   Moore, J.

The plaintiff recovered a judgment of $125 for injuries received by him in a collision with an automobile driven by defendant. The case is brought here by writ of error.

It is claimed a verdict should have been directed in favor of defendant, first, because it was not shown that the negligence of the defendant was the proximate cause of the injury; and, second, because plaintiff was guilty of contributory negligence. If these two claims were to be submitted to the jury at all, it is not claimed they were not fairly submitted. It was the claim of plaintiff that he was riding his bicycle north on Washington street, and was about to cross Tenth street, which crosses Washington street at right angles. At this time a wood wagon with a high box was on his left, and was also journeying north. It is his further claim that defendant came with his automobile from the north on Washington street, and, when he reached Tenth street, that instead of keeping to the right of the intersection of these streets as required by section 16, Act No. 196, of the Public Acts of 1905, he drove his machine diagonally southeast across these two streets, and that he drove his machine suddenly before the team of horses going north, and before plaintiff who claims he attempted to avoid any collision, but in spite of all his efforts the automobile collided with him and he was thrown from the wheel and injured. He claims his injury was caused by the negligence of defendant, and that he was free from negligence. Defendant admits he did not keep to the right of the intersection of these streets, but claims that plaintiff lost his head and his control of his bicycle, and that this was the cause of the accident.

The testimony was in dispute, and we think that each phase of the case presented a question of fact for the jury.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    ALBERT GALL CO. v. DOWAGIAC GAS CO.
    1. Mechanics’ Liens — Application op Payments — Personal Property — Fixtures.
    In a suit to enforce a mechanics’ lien for lumber and materials furnished to decorate defendant’s office, partly furnished by complainant with personal property for which a sufficient payment had been made on the account, no error is committed in decreeing a lien for the amount remaining due on that portion of the account clearly owing for decorations and fixtures. 3 Comp. Laws, §§ 10710-10736.
    2. " > me — Evidence—Suppioienoy.
    ic was not error to grant the complainant relief under some testimony concerning the values and amounts furnished defendant in performance of the contraot, in view of the admissions in defendant’s answer and letters written the materialman acknowledging the debt and postponing time of payment.
    Appeal from Cass; Des Voignes, J.
    Submitted February 15, 1910.
    (Docket No. 167.)
    Decided March 5, 1910.
    Bill by the Albert Gall Company against the Dowagiac Gas Company to enforce a mechanic’s lien. From a decree for complainant, defendant appeals.
    Affirmed.

      Charles E. Sweet, for complainant.

      Coy W. Hendryx, for defendant.
   Moore, J.

This is a proceeding in chancery for the purpose of enforcing a mechanics’ lien against the defendant as lessee of certain real estate in the city of Dowagiac. The defendant answered. In the answer is the following:

“ That the said complainant did do some work for said defendant at the city of Dowagiac in the way of counters, and in and about some furniture in the office, of platforms, shelving, and other things; that the said complainant agreed that the same should be done in a workmanlike manner and from the best of materials, but that, instead of doing the same in a workmanlike manner and from good material, it was done in an unworkmanlike manner and from poor material, so that the work has shrunk, and left cracks and openings therein, and other things, which render its use and availability as a decoration of little use to the defendant, by reason whereof the defendant has sustained great injury and damage to a large amount, to wit, the sum of $1,000, which said damages the said defendant will recoup against any claim that may be proved against it by the said complainant on the hearing of this case, and will apply the same, or as much thereof as may be necessary, to the satisfaction of the said claim, if any, which the said complainant may prove.”

A replication was filed, a hearing was had in open court, and a decree entered in favor of complainant. The case is brought here by appeal.

The solicitor for the defendant discusses the question involved under two propositions, as follows:

“First. That the property in question is not of the character contemplated or that can be reached by the statute under which the bill is filed, but complainant’s remedy is under the statute providing for liens on personal property.
“Second. There is no competent proof shown by the testimony tending to prove any of the contentions of complainant. While there is testimony none of it rises to the dignity of proof.”

The complainant has brought the proceeding under sections lOilO-lOTSe, 3 Comp. Laws. It is the contention of defendant that, as the work done was upon personal property, and the material furnished was also personal property, the complainant has selected the wrong remedy. The defendant did not aid the court in determining the character of the work done and the materials furnished, as it swore no witnesses. It appears in the record that defendant had a lease of certain real estate in Dowagiac for a term of years, and that it entered into a contract with complainant to decorate the walls and fit the same up as a place of business, and that this contract was carried out. It appears affirmatively that the walls were decorated; that the store front was painted; that a large quantity of fixtures and furniture were made expressly for the place of business of defendant, and attached permanently, so there can be no possible question that complainant is pursuing the proper remedy as to the bulk of its claim. On the cross-examination it did appear that 12 shades were furnished of the aggregate value of $18. It also appeared that there was one pedestal top, two pedestals, three window seats, and one wrapping table that were movable, and should be regarded as personal property. The payment which was made upon the contracts would much more than pay for what is clearly shown to be personal property, so that we cannot say the court erred in establishing a lien for the amount, and as stated in the decree.

It is urged complainant’s case must fail for want of competent proof. We have already quoted from the answer sufficient to show that defendant admitted therein that complainant did work and furnished material for defendant, and claimed it was poor material and bad workmanship, and claimed the right to recoup therefor. Upon the trial, no effort was made to show such a condition as would entitle defendant to recoup.

Complainant put in considerable testimony tending to establish the case stated in the bill of complaint. After the work was completed, and under date of December 19, 1907, the president of defendant company wrote complainant inclosing a check for $150 and closing with the statement:

“We expect to make payment of all or a larger part of this account within a short time.”

Under date of December 31, 1907, the president of the company again wrote complainant, and in the letter was the following:

“ I note your statement that you expect the balance of the Dowagiac Gas Company account settled before the 1st of January. Such payment is impossible. In this connection I would state that we have already paid this month all that can be spared from current receipts. Further payment will be made next month after we have made our collections and the whole account will be paid if an impending bond sale is completed, which is held back by the banks of the country having the lid on so tight. All this I have explained to your Mr. Albert Gall.”

Mr. Gall testified to the conversation referred to in the letter to the effect that the account was examined by the president, and approved, and that he was assured it would be paid soon. We do not think there was any failure to make a case.

Decree is affirmed, with costs.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    BRANDT v. BROWN.
    Cancellation of Instruments — Contracts — Rescission for Fraud — Purchaser in Good Faith.
    In a suit to set aside a deed of a right of way formerly owned by the complainant, and of considerable value, a decree for the complainant on the ground that the deed was obtained by fraud, is supported by testimony showing that the defendant promised, as a consideration for the release of the right of way, to convey to the complainant a right of way across other land which he had previously sold without complainant’s knowledge, and the decree as to a joint defendant is justified by evidence that the right of way was reconveyed by complainant for the benefit of the joint defendant, whose wife assisted in procuring the same.
    Appeal from Van Burén; Des Voignes, J.
    Submitted February 15, 1910.
    (Docket No. 5.)
    Decided March 5, 1910.
    Bill by Agnes Brandt against Philo M. Brown and Hattie B. Brown to set aside a deed on the ground of fraud. On petition, Lewis F. Algrem was permitted to appear as a party defendant. From a decree for complainant, defend Algrem appeals.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      Barnard & Lewis, for appellant.
   Moore, J.

The complainant filed her bill of complaint against the defendants Philo M. Brown and Hattie E. Brown, setting forth in substance that a right of way was deeded by defendants Brown to herself and husband by the entireties, and that afterwards the defendant Philo M. Brown procured a deed of the same from complainant and her husband on the promise that he would secure them a right of way across the premises known as the “ Reece land.” The defendant Algrem was not made a party defendant by said bill. Philo M. and Hattie E. Brown filed their answer to the complainant’s bill of complaint, denying therein any such promise or undertaking on their part. Afterwards, on the 5th day of November, the defendant Algrem, by his agent, Mrs. Algrem, filed a petition in said cause praying therein for leave to appear and defend in said cause, and on the 14th of November, A. D. 1908, an order was made granting the prayer. Thereafter the said defendant Algrem filed an answer to the bill of complaint in said cause and specifically averred therein that he owned the land by virtue of a contract dated September 9, 1905, over which said right of way extended, and that the complainant had notice and knowledge of the fact that he had purchased the lands claimed by them. An answer was filed to this answer by the complainant. The case was heard in open court. A decree was granted in favor of complainant as prayed. The case is brought here by appeal.

The accompanying plat will aid in understanding the situation:

Prior to September 9, 1905, the defendant Philo M. Brown was the owner of the four parcels of land, and the right of way shown in the plat. On September 9, 1905, he made a written contract to sell to defendant Algrem the Algrem tract. This contract was recorded June 27, 1906. Mr. Brown testified that when he made the contract he reserved a right of way to the tracts shown on the map as the Brandt tracts. The Reece tract was sold by Mr. Brown July 30, 1907.

March 10, 1906, Mr. Brown sold and deeded to the complainant and her husband by the entireties the two parcels of land shown as the Brandt tracts and the right of way shown on the map. Some dispute arose between Mrs. Algrem and Mr. Brown about the land contract. On September 7, 1907, Mr. Brown procured from the complainant and her husband a quitclaim deed to the right of way, which deed was recorded September 14, 1907. Later this right of way was conveyed to Algrem by Brown. Mr. Brandt died October 15, 1907. This suit was begun December 5, 1907. The bill of complaint contained the following averment:

“Your oratrix further shows unto the court that some time prior to the 7th day of September, A. D. 1907, the said Philo M. Brown sought out your oratrix and her said husband and implored and requested them to enter into an arrangement and understanding to deed back to him, the said Philo M. Brown and his said wife, the said right of way, and while endeavoring to procure the making of said agreement, held out many promises to your oratrix and her said husband, and eventually agreed with your oratrix and her husband that, if they would convey to the said Philo M. Brown the said right of way, he, the said Philo M. Brown and his wife, Hattie B. Brown, would convey to your oratrix and her said husband a strip of land sufficiently wide to give them passage to and from said lands so purchased by them to said Eighth street, that said way so promised would extend across the west 11J acres of the northeast quarter of the southwest quarter of said section 29, which said lands the said Philo M. Brown had before that time deeded and conveyed to Carl Reece and his wife, as hereinbefore set forth; that in compliance with said arrangement, and relying upon the promises and agreements made by the said Philo M. Brown and his ability to perform the same, your oratrix and her said husband reconveyed said right of way to the said Philo M. Brown and Hattie B. Brown, his wife.”

Mr. and Mrs. Brandt and Mr. Algrem are German, and do not speak English well. The witnesses are not at all agreed as to what occurred. It is the claim of Mr. Brown that late in August or early in September Mrs. Algrem appeared. We quote from the testimony of Mr. Brown:

“Q. Was there anything said at anytime about fencing this right of way up on Algrem’s side ?
“A. Not until Mrs. Algrem come out and said that— Well, do you want me to tell what she said ?
“Q. Yes.
‘A. She came out and said her husband had transferred the right of — the papers to her, the contract, transferred it to her — Mr. Algrem had, and that she wouldn’t have a road there. Well, I told her I didn’t knowhow she could hinder herself — Mr. Brandt had a deed of it. Well, she said she wouldn’t have it. ‘ Well,’ I says, ‘ I paid your husband for it,’ and it would have to stay right there— have no trouble. Well, she wouldn’t have it. Well, I told her that the only way for her to get out of it would be to make some bargain with Mr. Brandt, and have him throw it up; otherwise, it would remain right where it was.”

He further testified that Mrs. Algrem entered into negotiations with Mr. Brandt and obtained from him an agreement to surrender the deed; that—

“Mr. Brandt told me to come over, and we would make out the papers — that is how I got it into my head to take Harry Huff and go over to Brandt’s. That was the first thing that he said about making out the deed.
l‘Q. How did he come to say that to you ?
“A. Why, they was talking. Mrs. Algrem had been to him, and he had agreed to surrender the deed, and he told me to come over and we would fix the matter up. That is the reason that I went over there; yes, sir.”

Mr. Brown further testified :

“He got that right of way in'his deed, and he deeded it back to me; yes, sir. And then, and then only, did I give a deed to Algrem.
Q. What negotiations, if any, passed between you and Mr. Brandt for the purpose of having that right of way deeded back to you ?
“A. Only conversation that we had that he didn’t like the private right of way, and that he would like a public road, and I told him I would use my influence in getting him a public highway. He asked nothing further of me; no, sir. I promised him nothing further than that I would use my influence to get a public right of way; that was all.”

Again we quote from his testimony:

“Q. That Mrs. Algrem was saying she wanted that scratched off ?
“A. Yes, sir. I told Mrs. Algrem I had no power to get the right of way back for her. The only way for her to do would be for her to make some arrangements with Mr. Brandt to throw up the right of way. It made no difference to me whether the right of way was thrown up or not; I didn’t have any interest in it one way or the other. I didn’t consider I was under auy obligations to get that back for Algrem; no, sir. Or that it would be any advantage to me in any way to do it.
“Q. Why or how did you take any interest in the matter whatever ?
“A. Nothing; only I sold to Mr. Brandt, and I wanted him to have a right of way out. That is the reason I sacrificed money to give him one.
“Q. Why did you have any interest, or take any interest, in getting the matter that Mrs. Algrem was talking about fixed up ?
“A. Well, she was out there in the neighborhood of a week, I think, and harping the thing continually. She had been over there to see Mr. Brandt alone — that is, I wasn’t there — and she claimed that Mr. Brandt misused her. I guess that they had a little ‘flare up.’ I had no interest in the matter myself, except to get the matter settled between Algrem and Brandt; that is all. There was no talk between myself and Brandt as to where I would try to get, or use my influence to get, the new right of way in any particular place; no, sir.”

Mrs. Algrem had a different version of the transaction; she testified:

“ I signed a petition to have my husband made a party to this suit. I know Mrs. Brandt and Mr. Brown. Have known Mr. Brown ever since my husband bought this land. I came to Pine Grove with my husband at the time he contracted for the land; yes, sir. I was representing my husband, then; yes, sir. He sent me over. I had some talk with Mr. Brown; yes, sir.
“Q. About a right of way there ?
“A. No, about my own land that I bought from Mr. Brown. The contract run to my husband. I talked with him about the contract; yes, sir.
“Q. And you had a talk about a deed that he had given to Mr. Brown ?
“A. No, I told him that I wanted my land back, for I paid for it. That is what I told Mr. Brown.
“Q. Well, you knew that he deeded it to Mr. Brandt ?
“A. Yes, he did.
“Q. You knew that, didn’t you ?
“A. No, I didn’t know it, but I found out after a while. I found it out when I came over a year ago last September.
“Q. And then did you know that you got it back from Brandt ?
“A. Yes, I knew after a while. He promised to give it back to me. I remained there until he got it back from Brandt; yes, sir. I didn’t know how he got it back from Brandt — I don’t know. I know he got a deed. He talked with me and Mrs. Brandt when I went over there a year ago last September. I couldn’t just tell you, but it was in the early part of September. There was a deed made while I was over there. I stayed there, yes, sir, until the deed was made.
“Q. And you had Mr. Brown go and get it, did you?
“A. Yes, Mr. Brown had to get it. I told Mr. and Mrs. Brandt when I went over there that I wanted my land back, and they said that they had it on their deed. It was signed to them by Mr. Brown. I said to them: ‘ They have signed my husband’s land away.’ I said that to Mr. and Mrs. Brandt. He was living then. I talked with both of them.”

Cross-examination:

“I had a talk with Mr. and Mrs. Brandt. They were both at home; yes, sir. I went over and see Mr. Brandt at one time when his wife was away; yes, sir.”

There can be no reasonable doubt that Mrs. Algrem was representing her husband, and that she and Mr. Brown were acting in concert in getting the deed of the right of way from Mr. and Mrs. Brandt. Mrs. Brandt testified that after they bought the two tracts of land and the right of way they built a house and some barns, and that when the dispute arose between Mr. Brown and Mrs. Algrem, and relying upon the promise of Mr. Brown to procure for them a right of way across the tract owned by Mr. Reece, “The other road was to be straight through the orchard,” and without any other consideration they made the quitclaim. We quote from her testimony:

“ Before I signed the deed, and when I met Mr. Brown, I told him what my husband told me; yes.
“Q. What did he say to that, then ?
“A. Well, he says he promised my husband other road. The other road was to be straight through the orchard. Reece owns the land that that would cross now. Mr. Brown didn’t pay me any money — not a cent. I was not at home when Mr. Brown and Mr. Huff came there. Mr. Brown was down there many times before that. He was having trouble with Mrs. Algrem. She was going to sue him. And I please my husband to give him this road for other one, and my husband has done it to help him not to have trouble. Mr. Brown many times come over on my place. I say: ‘What you want, Mr. Brown?’ He says, Mr. Brown, please me to help him be a witness, then I go to Chicago — then I come back. My husband says: ‘ I deed the road back to Mr. Brown.’ The trouble he had with Algrem he got not enough acres. Mrs. Algrem says she got just 10 acres, and the deed calls for 12 acres. Mrs. Algrem come over one time. I had a talk with her. She said: ‘ I come and close that road.’ She says to my husband and me: ‘ I close you the road.’ My husband he say: ‘Why?’ ‘Well,’she say, ‘I got not enough acres. I buy 12 and I got just 10 acres, and my deed call for 12 acres.’ My husband says: ‘My street is deeded in Paw Paw, you could not close me the road;’ and then she told me about what neighbors come to my husband and speak it over. I think Mrs. Algrem began coming there in August. My husband and Mrs. Algrem down to Mr. Brown.”

It will be seen that the testimony is very contradictory, but there are some things about which there is no dispute. In March, 1906, Mr. and Mrs. Brandt paid Mr. Brown nearly $1,700 for the two tracts of lan,d and the right of way which was deeded to them, and soon thereafter took possession thereof, and used the right of way, and built upon the land near the lake a house and barns of considerable value. Mr. and Mrs. Brandt declined to buy the land unless they could also buy the right of way. When Mr. Brown obtained from Mr. and Mrs. Brandt a deed of this right of way, the Brandts were without any way of ingress or egress to this very valuable property. It requires a great deal of credulity to believe this valuable right would be deeded upon the bare promise of Mr. Brown to use his influence toward getting a public highway.

It is urged that it is not shown Mr. Algrem did any wrong or was to blame in any way. Mr. Brown testified:

“ I had some talk with Mr. Algrem about the making of the deed of this land. I was to sell Mr. Brandt a piece of land in back, and I told Mr. Algrem I couldn’t sell him the land west of Mr. Brandt’s unless I could have a right of way out for Mr. Brandt. He says: ‘ I am perfectly willing that you should have a right of way, as I have to have a road up and back;’ and he was perfectly willing that Mr. Brandt should use it and have nothing for it. ‘ Well, now,’ I says, ‘for fear that there should be something come up that might damage, interfere with your interest, I will throw off $5 an acre for this right of way— 12-foot right of way.’ Mr. Algrem was perfectly willing to do that, and we done so. That made §60 for the right of way, which fetched the land down to $70 an acre. He was to pay $75, I threw off $5 on an acre. That was before I made the deed to him; yes, sir. The contract was entered into with that understanding; yes, sir. * * * I think Mr. Algrem wanted once to buy the land that Mr. Brandt now owns — the one on the lake. I don’t just remember what the trouble was that I didn’t sell. The right of way over the Algrem land was for the benefit of land back of it — no matter whom I sold to; no, sir. And when I did sell the land, I sold the right of way; yes, sir —as part of the consideration for the conveyance; yes, sir.
“Q. And Algrem understood that that is what would be done ?
“A. That is what he did.
“Q. And his wife understood it ?
“A. Yes, sir.
CiQ. And they were paid for that right of way in making the bargain as you have heretofore stated ?
“A. Yes, sir.
“Q. They have never since paid you back that extra five dollars per acre ?
“A. No, sir.
“Q. Neither did they, so far as you know, pay Brandt anything ?
“A. No, sir.”

Mr. Algrem was in court, and neither he nor Mrs. Algrem denied the testimony just quoted. The trial judge had the great advantage of seeing the witnesses. We think the complainant very clearly established her case.

The decree is affirmed, with costs.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


text:
    GERSTLER v. WEINBERG.
    1. Master and Servant — Neolig-ence—Cement Construction— Presumption prom Accident — Res Ipsa Loquitur.
    Removing the curbing from green cement shortly after the wall is constructed and after a heavy rain, whereby the wall falls and injures a servant, evidence being introduced to show that the person removing the curbing was in charge of the work and had been advised of the danger, creates a presumption of negligence in prematurely removing the support.
    2. Same — Fellow-Servant—Cement Work.
    The relation of fellow-servant cannot be said, as a matter of law, to exist between the person so removing the support and the injured servant.
    Error to Washtenaw; Kinne, J.
    Submitted February 16, 1910.
    (Docket No. 32.)
    Decided March 5, 1910.
    Case by Emil Gerstler against Fred C. Weinberg for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Lehman, Riggs & Lehman, for appellant.

      Fred L. Vandeveer, for appellee.
   Moore, J.

This action is brought to recover for injuries received by plaintiff while in the employ of the defendant by the falling of a cellar wall. The trial judge directed a verdict for the reason that plaintiff had failed to show that defendant was negligent. The case is brought here by writ of error.

The defendant had the contract to build the cement walls for a cellar about 20 feet wide and 60 feet long. Thursday morning he commenced to build the north wall. The plaintiff worked at the mixer, but was not at work upon the wall. The wall was built by pouring concrete between curbing, and was one foot thick, backed by an earth filling. The north wall was finished Saturday night. There was testimony that it rained hard on Saturday night and Sunday, and that the rain from an adjoining building was thrown upon the ground adjacent to, and on the outside of, this wall. One of the teamsters employed to draw earth from the cellar testified that on Monday morning the earth was so wet it would not stay on his wagon, and for that reason he suspended his work. On Monday morning plaintiff was directed by a brother of the defendant, who had charge of the work, to assist in removing the curbing on the inside of the wall. As the plaintiff and others were removing the last of the curbing, a large portion of the wall fell into the cellar, and plaintiff was badly hurt. One of the witnesses testified that just before the foreman directed the curbing to be taken away that he told the foreman the wall was too green to take the curbing away. The defendant testified:

“Q. What, in your opinion, caused that wall to go down ?
“A. On account of the rain off the house next to it, which ran in behind the wall and saturated the ground, and made the earth heavy and crowded it over from the outside.
“Q. And there was no way to have discovered that?
“A. No, sir.
“Q. The only way that would have been indicated would be if the wall had been leaning toward the cellar ?
“A. You could have told by the settling of the dirt or the tipping of the wall.”

In Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33), Justice Morse, speaking for the court, said:

“ In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of an injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. For instance, if the wall of a building falls down and injures a person walking along the street or standing beside the building, the clear presumption is that the building was negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight. * * * Therefore, without any other showing than that it suddenly gave way, slipped, or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed.”

The same principle is stated in Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081), and in the case of La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353), and the many cases cited therein. A cement cellar wall properly constructed would not be expected to fall into the cellar upon the removal of the curbing if it was not prematurely removed. We think it cannot be said, as a matter of law, that no negligence was shown.

It is said the directed verdict should stand because Carl Weinberg in giving the order to remove the curbing was a fellow-servant of the plaintiff. We think this cannot he> said, as a matter of law.

Judgment is reversed, and new trial ordered.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
    SIEGEL v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Master and Servant — Negligence—Duty to Inspect Instrumentalities — Railroads.
    Under uncontradicted evidence that torpedoes placed on a railroad track failed to explode, resulting in a collision in ' which plaintifii’s intestate was killed, that the torpedoes were purchased of a reputable manufacturer, and properly stored, and that the usual mode of inspection was by use, and a visual inspection would not necessarily have disclosed any defects which were conjectural only from the failure to explode, an occurrence of the kind not having previously happened to defendant, no duty to inspect can be inferred.
    3. Same — Safe Appliances.
    The duty of a master to furnish safe appliances, imposes only reasonable care in the selection of the article and in its required inspection, and does not amount to insurance of its safety.
    3. Same — Presumption from Accident.
    The mere fact that such accident occurred, resulting in injury to an employé, raises no presumption of negligence on the part of the master.

      Error to Shiawassee; Miner, J.
    Submitted February-16, 1910.
    (Docket No. 4.)
    Decided March 5, 1910.
    Case by Margaret Siegel, administratrix of the estate of Clark Hughes, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Odell Chapman, for appellee.
    Plaintiff’s decedent was a brakeman employed by defendant. He was a member of the crew of extra freight train No. 1089, running from Durand to Detroit, acting as forward brakeman. The train left Durand about 10 o’clock p. m., and proceeded towards Detroit, doing local freight work. At 5:15 a. m. it had reached Drayton Plains, where it stopped to pick up some cars of ice. At that time regular freight train No. 66, likewise running from Durand to Detroit, was due at Drayton Plains. As soon as the extra freight stopped, Conductor Snover sent the rear brakeman, Taylor, back to protect the rear of the train. Taylor went back about three-quarters of a mile, taking with him signal flag and torpedoes. He remained there for 15 or 20 minutes for the purpose of flagging No. 66 upon its approach. At the expiration of that time, No. 66 had not arrived, and his own train signaled him by a whistle to come in. He thereupon placed two torpedoes upon the track about a rail length apart, and ran back to his train. At the time he reached it, it was already in motion. He climbed upon the rear platform, where Conductor Snover was, and held some conversation with Snover. The morning was extremely foggy, and objects could not be discerned at any considerable distance. After the train had gone about a half a mile and had acquired speed of 10 or 12 miles an hour, Snover and Taylor from their position on the back platform heard No. 66 approaching from the rear. Plaintiff’s decedent, Hughes, was at that time sitting at the desk in the caboose. Snover warned him of the danger, and jumped. The engine of No. 66 crashed into the caboose before Hughes could get out, and he was instantly killed.
    Immediately after the accident, Taylor and Snover (who were witnesses for plaintiff) went back upon the track to the point where Taylor had fixed the torpedoes, and found them there, flattened out by the passage of No. 66, but in their opinion not exploded. Taylor testified that he had taken the torpedoes from the usual receptacle in the caboose, and that he had used other torpedoes from the same receptacle during the night at Gaines, where they had properly exploded. The negligence counted upon by the plaintiff is that the defendant furnished plaintiff’s decedent with worthless torpedoes, which would not explode, and so give warning to the approaching train, and, further, that the defendant had negligently failed to properly inspect the torpedoes so furnished.
    Defendant proved that it purchased its torpedoes in lots of 10 to 25 gross monthly from the Railway Signal Company; that they were kept in a dry room at Battle Creek; that from there each month a supply was sent to Durand, where they were kept in a box on the wall, and in the dry. No complaints had ever been received by the storekeeper, at either Battle Creek or Durand, that the torpedoes failed to explode. The president of the company which manufactured the torpedoes testified that at the time of the accident his company furnished 90 per cent, of the torpedoes used by the railroads of the United States, Canada, and Mexico, and that he had never heard of one of them failing to explode; that no inspection of the torpedoes is necessary; that they can only be inspected by use, in which ■event they are consumed.
    At the close of the testimony, defendant’s counsel moved for the direction of a verdict upon the grounds:

      (1) That no negligence on the part of the defendant had been proven.
    (2) That the defendant, having purchased the torpedoes from a reputable manufacturer, ready for use, was under no obligation to inspect them.
    (3) That there was no way by which a person of ordinary knowledge could tell by inspection whether or not the torpedo would explode.
    Other grounds for a directed verdict were urged by defendant, which need not be considered here. Defendant’s motion was overruled, and the court upon the'point in question charged the jury as follows:
    “It is for you to determine whether under all of the circumstances and evidence in the case whether the defendant used ordinary care and skill to discover the defects in these torpedoes, if there were any. If it did use ordinary care and skill to discover the defects, and it did not discover them, notwithstanding there were defects, plaintiff could not recover. For instance, if he used the ordinary care and skill such as an ordinary person would have done under like circumstances, and he did not discover the defects, then, gentlemen, plaintiff could not recover. Or if the defects were such, whether he investigated it or not, if they were such that a person using ordinary care and skill would not have discovered the defects in the torpedoes, then plaintiff cannot recover. Or, in other words, the defendant was obliged to use the same ordinary care and skill that any other person under like circumstances would have used, no more or no less. He is not required to use the greatest skill or the greatest care, but ordinary care — ordinary skill — and, if he used that and did not discover any defects, then plaintiff cannot recover, or, if you find there were no defects that could have been discovered by ordinary care and skill, then plaintiff cannot recover. It is only when there were defects such as could have been discovered after they came into the possession of the defendant and had remained in its possession a sufficient time, so that a person of ordinary skill and prudence by examining them would have discovered it, it is only in such a case that the defendant can be claimed to have been negligent.”
    A judgment having resulted in favor of plaintiff, defendant brings the case here by writ of error.

       As to injury to railroad employé by torpedoes on the track, see note to Mize v. Railroad Co. (Ky.), 16 L. R. A. (N. S.) 1084.

   Brooke, J.

(after stating the facts). The sole question for our determination in this case is whether or not the defendant owed to plaintiff’s decedent the duty of inspection. The record shows that the torpedoes failed to explode. It is absolutely silent as to the cause of that failure. The president of the company which manufactured them testified:

“We purchase the tin from which the shells of the torpedoes are made from the American Tin Company, which practically controls the market. We buy the best tin we can. It is possible that there might be some little defect in the tin that could not be discovered by the eye. * * * I am only giving a possibility, the only way I could conceive of a thing happening. I have never known of a case where this did happen, but it is about the only way that I know of that could happen to bring about this result. * * * Manufactured tin is not always perfect. There are at times little flaws in it, and the coating wearing off the top may leave a small hole in the case which is almost impossible to detect. Moisture or oil may soak through and destroy the contents. * * * We japan all our goods ourselves. I have known of millions of torpedoes, manufactured by our company, and they have always exploded properly. To my knowledge, they have never failed. I think our composition and manufacture of them is as perfect as human agency can produce. * * * We have furnished torpedoes to defendant for 10 or 15 years prior to 1905. Our long experience has brought about every possible safeguard in the manufacture of these goods. Every torpedo is made by hand, and filled by hand. They go through a process, and it is almost impossible to have any defects in a torpedo. * * * It would be dangerous for one unfamiliar with their manufacture to inspect a torpedo by trying to separate it. The ordinary way of inspection is to put them on the road, and try them out. It is not safe to strike one with a hammer, or anything of the kind. That has been done in some cases with disastrous results. They are prepared and sold by us, for immediate use, to the various railroads, and there is nothing for the railroad company to do after we have prepared them, except to take care of them and use them. * * * A chemical change will not take place through age which will prevent them exploding.”

The uncontradicted testimony showed that, after coming into possession of defendant, the torpedoes were properly stored in a dry place. We have then an article of commerce, dangerous in its character, in general use upon all of the railroads of the country, made by a reputable manufacturer, sold to the defendant ready for use, the ordinary mode of inspection of which, in the hands of the consumer, is by use and consumption.

Under these circumstances, we are asked to say that it was proper to permit the jury to determine “whether the defendant used ordinary care and skill to discover the defects in these torpedoes, if there were any.” We are unable to agree with this contention. Even assuming that the torpedoes in question were properly placed, as testified to by Taylor, and that they failed to explode, there is still no evidence in the record tending to show the cause of such failure. The jury might surmise that the tin casing had become rusted, or was originally defective, and, further that an inspection by the eye might possibly have discovered such defect. No evidence of either fact was offered, and the conclusion of the jury to that effect would be based upon conjecture only. Touching the necessity for inspection by defendant, if inspection in the ordinary acceptation of that term were possible, we find that defendant had no knowledge or notice of any defects in the torpedoes or any information, which would impose upon it a duty of inspection, never before undertaken. Its experience, covering a period of 10 or 15 years, in the use of these appliances, was such as to indicate that, when properly placed, they invariably exploded. The experience of the manufacturer but adds weight to that of the defendant. The mere fact that there is a bare possibility that the casing of one torpedo out of many thousands may be constructed of defective tin, thus permitting the tin to rust through and admit water and oil, if brought in contact therewith, is not sufficient to warrant a finding that the defendant was negligent in failing to so inspect as to discover the fault. Siegel v. Heating Co., 143 Mich. 484 (106 N. W. 1127); Clement v. Rommeck, 149 Mich. 595 (113 N. W. 286, 13 L. R. A. [N. S.] 382, 119 Am. St. Rep. 695). A valuable discussion of the principle here involved will be found in Shea v. Wellington, 163 Mass. 364 (40 N. E. 173).

Defendant owed to plaintiff’s decedent the duty of furnishing safe appliances. This duty does not amount to an insurance to the employe that the appliances so furnished shall be absolutely perfect. Having used reasonable care in the selection of the article, and such vigilance in its inspection as is consistent with the character of the article, and with good railroading, the defendant has discharged that duty, and a jury may not be permitted to speculate in such case. Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51 (7 N. W. 209, 40 Am. Rep. 453); Smith v. Hockenberry, 138 Mich. 129 (101 N. W. 207). The mere fact that an accident has occurred resulting in the injury of an employé raises no presumption of negligence on the part of the master. Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938).

The judgment is reversed, and a new trial ordered.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


author: Stone, J.

text:
    WICKHAM v. DETROIT UNITED RAILWAY.
    1, Master and Servant — Safe Place — Street Railways — Negligence of Fellow-Servant.
    The act of a co-employé of defendant’s conductor in temporarily leaving a wheelbarrow so near the street car track that it struck the plaintiff who was collecting fares on the running board of the car, is not a breach of the master’s duty to provide a safe place.
    2. Same.
    While the master is liable for failure to provide a safe place to work or reasonably safe appliances, it does not follow that he can be held responsible for the transitory negligent act of a co-employé of the plaintiff in using a proper tool or instrumentality, where the master could have had no knowledge of the negligence.
    Error to Wayne; Murphy, J.
    Submitted February 10, 1910.
    (Docket No. 131.)
    Decided March 5, 1910.
    Case by Fred L. Wickham against the Detroit United Railway for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Proctor K. Owens and Lehman, Biggs & Lehman, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Stone, J.

This is an action on the case for damages for a personal injury to the plaintiff. On June 30, 1906, the plaintiff was a street car conductor in the employ of the defendant. He was 35 years old, and had acted as conductor over 5 years. On the day in question he went on duty at the Dix avenue car barn about noon. He was conductor on what was known as the “ Baker line,” which extends from said car barns to the railroad track on North Chene street. At the time of the injury, the plaintiff’s oar was running in an easterly direction along Dix avenue between Scotten and Hubbard avenues. It was an open car, with seats extending entirely across it, and, in the discharge of his duties, he was required to be on a running board extending along the right-hand side of the car. He was on the south side of the car. Immediately before he was injured, the plaintiff was collecting fares, which required him to look north, or into the car. While thus engaged his legs came in contact with a loaded wheelbarrow, a part of which extended over the running board of the car, and his feet were knocked from under him. He fell upon the pavement, and sustained the fracture of two ribs and other injuries. On the day and at the place in question, the sectionmen of the defendant were engaged in repairing the tracks, and the facts showed that while these repairs were in progress a wheelbarrow loaded with brick was left at such a point upon the pavement that, when the car in question came' along, a collision between the wheelbarrow and the car occurred. The only reasonable inference is that the wheelbarrow was left temporarily in the position in which it was by one of the sectionmen of the defendant. Upon the close of plaintiff’s case the trial judge directed a verdict for the defendant, on which ruling error is assigned by the plaintiff, and the case is here upon writ of error.

As we understand the plaintiff’s position, no claim is made that the wheelbarrow which caused the injury had been left in the position in which it was at the time the injury occurred for a sufficiently long time to give the defendant constructive notice of its presence, and no claim is made that any of the servants of the defendant were incompetent, and, no defect in the roadbed nor instrumentalities furnished the defendant’s servants appearing, we come to the question of defendant’s liability.

The learned circuit judge, in his charge directing a verdict for the defendant, said:

“It, perhaps, is a reasonable inference to say from the proofs — reasonable at least for the purpose of this motion —that the wheelbarrow was left in the position in which it was at the time of the collision by one of the defendant’s employés. Now, gentlemen of the jury, was the act of that employé in placing that wheelbarrow where it would come in collision with a passing car the act of the defendant company? It had provided a safe place for the plaintiff here to work when it gave him a proper car, and when it provided for the operation of that car á proper roadbed. Was that safe place so provided made unsafe by the act of the workmen in leaving that wheelbarrow where it would overlap an approaching car? That is to be answered, probably, in the affirmative. The act of the workman in that respect in leaving that wheelbarrow in that precise position was an act of negligence on his part. But was it such an act of negligence as makes the defendant company responsible for the workman’s misconduct ? In my view that question must be answered negatively. Why ? Bearing in mind that the roadbed was a safe place, any change in its condition which made it unsafe grew out of the temporary act of that workman leaving that wheelbarrow in that particular position. The danger arose, not from any permanent condition of that track, but grew out solely and alone of a transitory act of a workman while engaged in repairing the track. * * * There is nothing in this record from which it could b8 inferred that that wheelbarrow had been there for any length of time; for all that this proof shows that wheelbarrow may not have been there for a minute at the time that car approached. Consequently there can be no claim that the defendant company knew that the wheelbarrow was there. Nor can there be any claim that the wheelbarrow, in point of fact, had been-there sufficiently long so that the company should have ascertained its presence. These features are not present in this case.”

To support his position, the plaintiff has cited a large number of cases in this court upon the question of the nondelegable duty of the employer to provide a safe place to work, among which is the case of Balhoff v. Railroad Co., 106 Mich. 612 (65 N. W. 592). An examination of that case will show that the plaintiff was injured by reason of a permanent defective condition of the track, allowing the formation of ice on the track and rails, and the question of the defendant’s negligence in not foreseeing the probability of such a condition, from the attending circumstances, was left to the jury. Justice Grant, in a concurring opinion in that case, said:

“This is not the case of an obstruction suddenly placed upon the track, or of a sudden defect in the roadbed, without the fault of the defendant, and for which it is not liable unless it had actual or constructive notice.”

We think that the numerous cases cited by the plaintiff can all be distinguished from the case at bar. We have not the space here to notice all of them.

Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598), involved the failure of the defendant to furnish a safe place to work, and the negligence consisted in leaving a ditch, which had been dug the night before, unguarded, the digging of which had been performed under the direction of a vice principal of the defendant.

Gillespie v. Railway Co., 150 Mich. 303 (113 N. W. 1116), involved the failure of the defendant company to remove gravel from between and outside its rails, the same having been allowed to remain there for a period of from two to four days. The question of notice was also in the case.

McClarney v. Railway Co., 80 Wis. 277 (49 N. W. 963). We do not think that this case is in point, as the negligence of the defendant consisted in allowing old snow and ice to accumulate on the tracks. The court said:

“ This condition of things had continued nearly all winter, and snowbetween the tracks was piled up to the depth of two or three feet. * * * The learned circuit court held, and, as we think, properly, that, if the accident was caused by the new fallen snow of the previous night, no negligence could be imputed to the company for not having removed it, because it had not had a sufficient time to do so before the accident.”

We think that there can be no question as to the law in this State in a case like the one presented in this record. The authorities cited by the plaintiff relate to the rule that the master, in the performance of the nondelegable duty of providing a safe place for his employes to work, cannot invoke the defense of fellow-servant to evade liability. This is a sound doctrine when applied to situations where the master has failed to provide a reasonably safe place to work, or has failed to supply reasonably safe appliances. It does not follow, however, that the employer can be held responsible for the transitory negligent act of a co-employé of the plaintiff, which negligence occurs in the use of a proper tool or instrumentality in a negligent manner, where the defendant, in the nature of the case, could have no knowledge of the condition, or the act of the fellow-servant. Had the plaintiff been injured by a defective condition of the roadbed upon which the car was traveling at the time of the injury, or had the defendant company provided unsafe instrumentalities for the use of the sectionmen in the work of repairing the track, there would be force in the plaintiff’s claim. We have held that where a master provides a reasonably safe place for his servant to work, and has provided reasonably safe appliances with which to work, and provides reasonable inspection to see that the instrumentalities and premises are kept in a reasonably safe condition, he has fulfilled his obligation to his servant. The master, however, is not an insurer for the negligent transitory act of a workman who uses an admittedly safe appliance in a negligent manner. Miller v. Railroad Co., 123 Mich. 374 (82 N. W. 58). In the case cited the foreman of a section gang was injured by the improper loading of a freight car by its crew. There was also the negligence of the station agent in failing to properly inspect the loaded car. A timber projected from one of the cars and struck the section foreman, who was working with his men surfacing the track of the defendant company. Justice Moore, in an opinion reversing a judgment for the plaintiff, said:

“ The trial judge was in doubt as to whether he ought to have charged the jury that the conductor and the station agent, who were responsible for the loading of the timber, were fellow-servants with the plaintiff or not. He expressed himself as of the opinion that the eases decided in this court were not harmonious, and that under the later cases he ought to allow the case to go to the jury. He doubtless referred to the cases of Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585); McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597). A reference to these cases will show that each of them announced the doctrine that it was the duty of the master to provide a reasonably safe place to work, and machinery, tools, or appliances in a reasonably safe condition with which to work, and that this was a duty which could not be delegated by the master, so as to escape liability. If the master has provided a safe place to work, or tools, machinery, and appliances reasonably safe with which to work, these cases do not indicate that the negligent use of these things by a fellow-employé would make the master liable. These cases, as applied to the testimony in the case at bar, restricted as it was by the court to the third count in the declaration, did not justify a submission of the case to the jury upon the theory that the station agent and conductor were not fellow-servants. In that respect the case is controlled by Dewey v. Railway Co., 97 Mich. 329 (52 N. W. 942, 56 N. W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348); Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32); Loranger v. Railway Co., 104 Mich. 80 (62 N. W. 137); and Frazee v. Stott, 120 Mich. 624 (79 N. W. 896). The last-named cases all relate to the negligent use by fellow-servants of cars, machinery, or appliances which were reasonably safe for the purposes for which they were intended. Under such circumstances, it is held that the negligence of the fellow-servant does not make the master liable. If the distinction we have pointed out is borne in mind, we think it will be found the decisions are not inharmonious.”

In Loranger v. Railway Co., supra, it was held that a brakeman and sectionman are fellow-servants, and Justice Grant, speaking for the court, in passing upon the question of the duty of the master to provide a safe place, employed the following language:

“ The defendant had furnished a good roadbed, and in this respect had done its duty in furnishing a safe place. It was rendered unsafe temporarily by the act of a fellow-servant. In order to bind defendant, actual notice of the obstruction must be shown, or it must be shown to have existed for such a length of time that the law will imply notice. Neither is shown or claimed. This is another attempt to avoid nonliability for the acts of a fellow-servant by invoking the doctrine of a safe place. Jarman v. Railway Co., supra, and authorities there cited; Pittsburgh, etc., R. Co. v. Adams, 105 Ind. 163 (5 N. E. 187).”

A strong case in point is that of Haskell & Barker Car Co. v. Przezdziankowski, 170 Ind. 1 (83 N. E. 626, 14 L. R. A. [N. S.] 972, 127 Am. St. Rep. 352).

In the case at bar the trial court clearly pointed out why the defendant is not liable to the plaintiff, and distinguished the situation here, where the negligent act is a transitory, momentary one, occurring from the very work of making the premises safe, by improper use of a safe appliance, from the position taken by the plaintiff.

We find no error in the record, and the judgment below is affirmed.

Ostrander, McAlvay, Brooke, and Blair, JJ., concurred.


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      In re McLAUGHLIN'S ESTATE. APPEAL OF HINCKLEY.
    1. Estates of Decedents — Presentation and Allowance of Claims — Commissioners on Claims — Return of Findings — Probate Practice.
    • It is erroneous to dismiss an appeal from the findings of commissioners on claims, in a proceeding where the creditor, pending the judgment of the commissioners, made application to the probate court to remove them for alleged misconduct, and, pending a hearing on the application, the commissioners attempted to make a return disallowing claimant’s claim, which the probate court refused to accept until the determination of the removal proceedings; when the application was subsequently denied and the report filed, the claimant appealing from the disallowance of claim within sixty days from the date of such filing but not from the date of leaving the report with the probate judge. 3 Comp. Laws, §§ 9377, 9386, 1 Comp. Laws, § 667.
    2. Same — Report of Commissioner — Date of Return.
    Such return was not made, within the meaning of the statute, until the finding was unprovisionally accepted and filed by the probate court, in accordance with the arrangement and understanding made when it was left with the probate judge.
    Error to Jackson; Parkinson, J.
    Submitted February 8, 1910.
    (Docket No. 122.)
    Decided March 5, 1910.
    Frederick P. Hinckley presented a claim against the estate of Miar McLaughlin, deceased, for the amount of a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. An order dismissing the appeal is reviewed by claimant on writ of error.
    Reversed.

      Richard Price and W. K. Sagendorph, for appellant.

      Wilson & Cobb, for appellee.
   Stone, J.

The claimant and appellant presented a claim against the estate of Miar McLaughlin', deceased, to the commissioners on claims appointed by the probate court for the county of Jackson. The claim consisted of a promissory note signed by the deceased, bearing date April 13, 1903, for the sum of $10,000, with interest at 8 per cent, per annum. The claim was for $11,647.40. It appears from the record that on the 34th day of December, 1908, the attorney for the claimant appeared before the commissioners, and asked for an adjournment of the hearing. This being refused by the commissioners, the attorney for the claimant then stated to the commissioners that he should apply to the probate court for an order removing them. He immediately, and on the same day, made application to the probate court for the removal of the commissioners upon certain grounds stated in the application. Upon filing of said application, and on December 34th aforesaid, a citation was issued returnable December 30, 1908. After this application had been made and citation issued, one of the commissioners, Richard A. Hobart, on said December 34th, brought a report of the commissioners to the probate office, in which the claim of said claimant was wholly disallowed. What then and there occurred, and about which there is no dispute or denial, except as hereinafter stated, is set forth by the probate judge in his affidavit which appears in the record in the following language:

“Deponent [theprobate judge] informed him [the commissioner] that an application had been made for the removal of the commissioners, and that he, deponent, would prefer not to receive or file such report until such application was disposed of; that, if he desired to do so, he could leave the report there, and after the application was disposed of, and if the commissioners were not removed, it could be filed, and, if they,were removed, of course, it would not be filed; that this was agreeable to the said Hobart, and he went away with that understanding, and deponent subsequently told Richard Price, one of the attorneys for Mr. Hinckley, that such was the understanding; and that the report was not to be filed until the application for removal was disposed of.
“ Deponent further says that W. S. Cobb appeared for the commissioners in opposition to said application, and asked for and secured at least one adjournment, and possibly more; that neither Mr. Cobb nor the commissioners claimed that their report had already been made, but Mr. Cobb questioned the jurisdiction or power of the probate judge to remove commissioners on claims for any cause, and desired to look up the law on that question.
“ Deponent further says that his blotter or day book shows that the hearing on such application for removal was adjourned from time to time, until the 5th day of March, 1909, when an order was entered denying the application, and on the following day, being the 6th day of March, 1909, the said report of the commissioners was filed.
“ Deponent further says that the report of the commissioners was never treated by him or by his office as having been received or returned until the day it was filed; that his understanding was that the time within which an appeal could be taken from the decisions of the commissioners ran from that date, being the 6th day of March, 1909, and with that understanding he made the order allowing the appeal upon the application of said Hinckley.”

Mr. Cobb, attorney for the appellee, filed an affidavit in. the circuit court, in which he stated, among other things, that on the return day of the citation he went to the probate office in answer to a telephone call from the judge of probate; that the judge there stated that no notice of the proceedings had been served upon the administratrix, and that in his opinion she was entitled to notice; that thereupon he, Mr. Cobb, stated to the court that he would appear for the administratrix without the formality of service of notice upon her; that he had received no notice of the proceedings, and, if he was to take part in the matter, he would want an opportunity to investigate the questions involved, and expressed a doubt as to the jurisdiction of the judge of probate to remove the commissioners; that, after' some discussion, he stated that he would prepare for the commissioners an answer to the petition, and the hearing was thereupon adjourned. He further states that he was not in the probate office again in connection with said hearing, and that he gave the matter no further attention except to prepare answers for the commissioners; that as to the statement contained in Judge Smith’s affidavit that neither the commissioners nor Mr. Cobb claimed that the report had been filed, he says that the matter was in no way referred to, and there was no occasion to make any statement in relation thereto. We do not think that the affidavit of Mr. Cobb conflicts with the affidavit of Judge Smith in any material particular or matter. As stated in the affidavit of the judge, of probate, the proceedings upon the petition for removal of the commissioners were adjourned from time to time until the 5th day of March, 1909, when an order was entered denying the application, and on the following day, being March 6, 1909, the report of the commissioners on claims was filed in the probate court. The claimant desiring to appeal from the disallowance of his claim against the estate, went to the probate office, and was there informed that he would have 60 days from said March 6th in which to appeal. On April 27, 1909, he filed his application and bond, which bond was approved by the judge of probate, and an order made allowing his appeal.

The appeal having been filed in the circuit court, the administratrix moved the court for an order dismissing the appeal for the reason that the report of the commissioners on claims was made and returned to the probate court on December 24, 1908, and application for appeal was not made until April 27, 1909, and more than 60 days after the return of said report to said probate court. The circuit judge, after hearing arguments, decided in favor of the motion, ruling that the appeal was not timely, and dismissed it. Exception was taken by the claimant, error was assigned, and the case is now here upon a writ of error to review the ruling of the circuit court.

The statute (section 9377, 3 Comp. Laws) provides that the commissioners on claims “at the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims presented, shall make a report of their doings to the probate court,” etc. It is also provided by statute (section 9386, 3 Comp. Laws) that any creditor may appeal from the decision and report of the commissioners to the circuit court “if application for such appeal be made in writing, filed in the probate office within sixty days after the returning of the report of the commissioners.”

The question is presented: What is meant by this returning of the report of the commissioners? Did the arrangement with the judge of probate by which “ the report was left with him, until after the application was disposed of, and if the commissioners were not removed, it could be filed, and if they were removed, it could not be filed,” constitute the returning of the report within the meaning of the statute ? We think that it did not. In our opinion the report was lodged with the judge of probate provisionally or conditionally, to depend upon the result of the application to remove the commissioners.

The statute (section 667, 1 Comp. Laws) provides that any—

“ Warrant or commission * * * for examining claims against estates * * * may be revoked by the judge of probate for sufficient cause, and the judge may thereupon issue a new commission, or proceed otherwise therein, as the circumstances of the case shall require.”

Before this report had been made or returned to the judge of probate, an application had been made to that officer for the removal of the commissioners, and a citation had been issued. Can the commissioners by precipitant action, taken afterwards, deprive the judge of probate of his power to examine into the merits of the application for their removal ? We think not. The mere leaving of the report with the judge of probate under the circumstances here shown was not a “ returning of the report of the commissioners ” within the intent and meaning of the statute. That return was made and filed on March 6, 1909. Such was the understanding of all of the parties, and to hold otherwise would be to work an injustice to the claimant. The rules of the probate court would have required the judge, register, or clerk to file the report when returned to that office. The fact that this was not done on December 24th shows the understanding of that office upon this record that this report was not left for the purpose of making it a part of the case at that time.

For the error pointed out, the judgment of the circuit court is reversed, with costa of this court to the claimant against the estate.

Montgomery, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


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    MADAY v. ROTH.
    1. Vendor and Purchaser — Forfeiture—Notice.
    The rights of a vendee of land under a contract providing for the payment of installments are not terminated by a mere default, without notice of the vendor’s intention to rely on the forfeiture.
    2. Same — Notice—Sufficiency.
    A declaration of forfeiture must be clear and unambiguous, conveying an unquestionable purpose to insist that forfeiture has accrued.
    3. Same — Serving a Notice to Quit.
    Intention to forfeit such rights is not deducible from a notice to quit for nonpayment of rent, or to pay the amount due.
    4. Same — Assignment—Waiver.
    The provisions of a land contract prohibiting an assignment without the written consent of the vendor are waived by an oral consent given to a subsequent assignment from the vendee to a third party, lao Mioh. — 19.

      5. Same — Estoppel.
    Even, after a forfeiture in due form, the parol assent of the vendor to an assignment of the vendee’s interest, upon the payment of money therefor in reliance on the consent, would estop the vendor from enforcing the forfeiture.
    6. Same — Re-entry—Possession.
    No forfeiture having been worked, a valid re-entry cannot be made, even if peaceable possession is obtained.
    7. Same — Repossession by Vendor.
    Delivering keys of the premises to a brother and agent of the vendor, for the benefit of the assignee, is insufficient to amount to a re-entry by the vendor, while possession still remains in the vendee’s tenant.
    Appeal from Wayne; Murphy, J.
    Submitted February 11,1910.
    (Docket No. 138.)
    Decided March 5, 1910.
    Bill by Albert Maday against Carrie Pearsall Roth to compel the specific performance of a land contract. From a decree for complainant, defendant appeals.
    Affirmed.

      Chamberlain, May, Denby & Webster, for complainant.

      Jasper C. Gates, for defendant.
   Stone, J.

The complainant filed his bill of complaint in the Wayne circuit court, in chancery, to compel specific performance of a certain land contract dated May 18, 1907, and entered into between the defendant as vendor, and Otto Gregory and Elizabeth Gregory, his wife, as vendees. The defendant answered, and, the cause being at issue, was heard upon an examination of the witnesses in open court. A careful examination of the record and briefs of counsel has led us to the conclusion that the learned circuit judge who heard the cause and saw the witnesses properly disposed of the case, and we adopt the language of his opinion as follows:

“ The defendant was the vendor under a land contract, in which Otto Gregory and Elizabeth Gregory, his wife, were vendees. The latter, being in default upon payments due, were served upon December 21, 1909, with a notice to quit the premises. This notice calls upon the' vendees ‘ to deliver up possession of the described premises which you now hold of me as my tenants or pay to me the rent now due for said premises, for which you are justly indebted to me and’ which you have neglected to pay.’
“ Thereafter the Gregorys opened negotiations with the complainant for the sale of their equity in the contract to him. Before consummating a purchase of their interest, Maday obtained the vendor’s verbal assent to an assignment of the vendees’ right under the contract to himself. Upon obtaining this consent Maday, for a consideration of $100, procured, on December 31,1908, a written assignment to himself from the Gregorys of all their right, title, and interest in and to the affected premises.
‘ ‘ Upon January 2, 1909, the Gregorys vacated the premises, but a tenant holding under them, and from whom they had received rent in payment of a holding to January 18, 1909, remained in possession until the latter date. Upon January 4, 1909, Maday made due tender, as the contract permitted, of all the remaining money due under it, demanded a deed of the premises, and, being refused, filed this bill January 9, 1909, seeking specific performance of the contract. ■ Upon January 2,1909, defendant’s brother obtained the keys to the property from a neighbor, with whom Mrs. Gregory had left them for delivery to Maday.
“ Mere default had not worked a forfeiture at the time the notice to quit was served. Nor did that notice in terms constitute a declaration of forfeiture. A declaration of forfeiture must be clear and unambiguous, conveying an unquestionable purpose to insist that the forfeiture has accrued. No such purpose is deducible from the notice given. Murphy v. McIntyre, 152 Mich. 591 (116 N. W. 197); Miner v. Dickey, 140 Mich. 518 (103 N. W. 855).
“ The parol assent to an assignment of the vendees’ interest was a valid waiver of the provisions of the contract prohibiting a transfer without the written consent of the vendor. Peters v. Canfield, 74 Mich. 498 (42 N. W. 125). Moreover, had there been a valid forfeiture, Maday’s reliance upon Mrs. Roth’s parol assent, and his payment of money by virtue of it, would now estop her from insisting upon any right otherwise accruing from such a forfeiture. She could not be permitted to take inconsistent positions with him to his prejudice, when his own conduct was characterized throughout by entire good faith.
“It is insisted that the vendor had regained peaceable possession of the premises through her brother. No forfeiture having been worked, valid re-entry could not be made, even if peaceable possession had been obtained. Murphy v. McIntyre, supra. However,.it seems to me that no reason exists for construing the brother’s conduct in obtaining the keys as amounting to a repossession. The keys were deposited for delivery to Maday. But more vital still is the fact that the Gregorys’ tenant remained in possession until after the filing of the bill, under a right of occupancy derived through the vendees. This is wholly inconsistent with the claim of re-entry made by the defendant. The tenant’s possession was the possession of the vendees.
“A decree may be taken as prayed.”

The decree of the court below appears to be in due form, and the same will be affirmed, with costs of this court to the complainant.

Ostrander, McAlvay, Brooke, and Blair, JJ., concurred.