author: Hooker, J.

text:
    BELLOWS v. CRANE LUMBER CO.
    1. Logs and Logging — Contracts—Abandonment.
    Where parties entered into a contract whereby each was to drive logs for the other, one of the parties, after performance had begun by him, could not be deprived of his rights by the desire of the other to abandon the contract.
    2. Same — Statutory Action for Expenses — Defenses—Pleading.
    In an action under 2 Comp. Laws 1897, § 5075, to recover the cost of driving the logs of another constituting an obstruction to the stream, defendant, under the general issue, may show that there was a contract between the parties that each should drive the other’s logs.
    3. Same — Instructions—Harmless Error.
    An instruction permitting the jury to find that a parol contract, by which each party was to drive the other’s logs, contemplated a liability for any excess in the value of the services rendered, if erroneous, was not prejudicial to appellant.
    4. Same — Question for Jury.
    In an action under 2 Comp. Laws 1897, § 5075, for expenses incurred in running logs by reason of defendant’s attempt to float certain hard-wood logs, which sank and obstructed the' stream, an instruction that plaintiff could not recover if defendant drove his logs in a reasonable manner, putting on sufficient men, and using all diligence to keep the river clear, was erroneous, there being testimony for the jury as to whether it was reasonable for defendant to undertake to float such logs at the time it was attempted.
    5. Judgment — Costs—Set-off—Appeal.
    A judgment awarding costs to defendant in an action brought in the circuit court, in which plaintiff recovered less than 8100, will not be reversed, on the ground that plaintiff’s claim was reduced below that amount by set-off, unless such fact clearly appears from the record.
    Error to Benzie; Chittenden, J.
    Submitted January 11, 1901.
    Decided May 7, 1901

      Assumpsit by Elwin Bellows and Adelbert Bellows, copartners as Bellows Brothers, against the Crane Lumber Company, for expenses incurred in running logs by reason of defendant’s obstruction of the stream. From a judgment for plaintiffs for less than the amount claimed, they bring error.
    Reversed.

      George Whitbeck and Smurthivaite & Fowler, for appellants.

      D. G. F. Warner, for appellee.
   Hooker, J.

The Betsie river is almost 125 miles long, and is used for floating logs, both hard and soft wood. The parties to this action are lumbermen, and in the spring of 1899 had logs upon this stream; and a Mr. Butler had a quantity also. Butler and the plaintiffs had logs near the head of the river, and the plaintiffs had some about 20 or 30 miles from its mouth, and a short distance below defendant’s logs, which were hard-wood logs. The plaintiffs and Butler - furnished men, and started a drive from the upper waters of the stream, while the defendant put its hard-wood logs in the river, and started a drive from the point where they were banked, called “County Line,” and claims that in doing so it took along with them the plaintiffs’ logs in the river at that point or below.

The plaintiffs have brought this action to recover under the statute (2 Comp. Laws 1897, chap. 129) from the defendant its proportionate share of the expense of bringing down the upper drive, and for expense incurred by reason of defendant’s obstruction of the river by its hardwood logs, — of which it is claimed many sunk by reason of the attempt to run them unseasonably, — and by its failure to bring down the rear of the lower drive. Plaintiffs claim that the defendant, in managing its drive, only took down such logs as naturally floated down, leaving stranded logs and jams for the plaintiffs to break and bring down with the second or upper drive. Plaintiffs claim also that they had charge of the upper drive, and paid all of the help and expenses, and that Butlpr settled and paid them his proportionate share upon the basis of a liability from defendant to the plaintiffs for its proportionate share of the expense.

The defendant asserts: •

First. That the upper drive was a mutual undertaking between the plaintiffs and Butler, and that, if defendant, is liable at all, it is to both plaintiffs and Butler, and not to plaintiffs alone; and that, consequently, there is a nonjoinder of parties plaintiff, which should preclude a recovery in this action.

Second. That a contract was made between plaintiffs and Butler upon the one side and defendant upon the other, whereby the latter undertook to bring down to Frankfort plaintiffs’ logs below the county line, in consideration of their bringing down its logs from above; and that such contract was performed, and that, consequently, there was nothing due to the plaintiffs.

Third. Defendant says that, if it did not “bring down clean ” the rear of its drive, it was because the plaintiffs prevented it by willfully overtaking and running through defendant’s drive with the head of plaintiffs’ drive.

The case went to the jury, who returned a verdict for the plaintiffs of $25, and upon defendant’s motion a judgment for that amount was rendered in favor of the plaintiffs, and a judgment for costs in favor of the defendant. The plaintiffs have brought the case here by writ of error.

As the jury found a verdict for the plaintiffs, we may lay out of the case all questions relating to nonjoinder, and conclude that they found that the plaintiffs alone brought down the upper drive,— a question that was distinctly left to them by the charge.

We are of the opinion that it was proper for the trial court to submit to the jury the question in relation to the alleged contract. The testimony of two witnesses tends to prove it, and, while there is proof that Mr. Bellows changed his mind, and said that he would have nothing to do with it, this was after defendant had begun to run the logs; and, moreover, Bellows’ dissatisfaction does not ■appear to have been communicated to it. At all events, it is not claimed that defendant assented to an abandonment of the contract. If the contract was made, and performance was begun by the defendant, it could not be deprived of its rights under it by a desire to abandon it on the part of the plaintiffs. Plaintiffs’ counsel concede in their brief that the jury must have found that the contract existed. We have no doubt of the right of defendant to prove this contract under the plea of the general issue.

Some allusion was made in the charge to an implied contract, and the learned judge carried the idea that the jury might find an implied promise that the expense of running the other’s logs by the respective parties might be taken, and a balance struck. In other words, he seems to have left it to the jury to determine whether the engagement went so far as to contain an express understanding that the service of one should wholly offset that of the •other, or only to the extent of the value of the service. Being an oral contract, it was proper to leave the question to the jury. Upon that theory the expense accounts of both were admissible. But, in ány event, this instruction, whether justified by the evidence or not, was more favorable to the plaintiffs than to have limited the jury to the •proposition that one service was to have'been in full for the other, if any contract was made. Moreover, as we have said, plaintiffs’ brief concedes that “the jury undoubtedly found that the plaintiffs and defendant agreed to drive each other’s logs;” and it must have been upon ■one or the other of these theories, and we think it was for the jury to say which.

Complaint is made that the court admitted evidence -that the plaintiffs directed their men to hurry their drive, with a view to running through defendant’s drive, and that the defendant drove its logs in a workmanlike manner; and that he instructed the jury that defendant had a right to drive its hard-wood logs when it chose, so long as it put on men enough to keep them moving with the current. These drives started about 100 miles apart, one having to go 35 miles and the other 135, and it is claimed that the latter overtook the former before it had gone over half of its distance. It is claimed that this was due to the-inability of the defendant to move logs which would sink, and that, owing to the condition of the hard-wood logs, a. large proportion of them did sink, and that the attempts-of defendant to bring down the rear of the first drive were-ineffective. On the other hand, it is said that the jams-' were caused by plaintiffs driving their logs into and through defendant’s rear, thereby increasing the quantity of timber in the river, and the amount of labor necessary to bring down defendant’s rear.

3 Oomp. Laws 1897, § 5075, makes it the duty of every person who uses the waters to run logs to put on. men enough to prevent obstruction to navigation, and gives to others the right to compensation for increased labor in floating their logs in consequence thereof. It would be going a great way to say that a man has the-right to attempt to run logs that will sink at any time he chooses, if, by reason thereof, it will be impossible to run them, or necessarily and seriously obstruct navigation.' The court instructed the jury that defendant had a right, to run its hard-wood logs, and that, “if they used all reasonable diligence to get their drive down the river, and employed all the men on the same that was practicable, and did not do anything unreasonable to delay the plaintiffs or obstruct the use of the stream, you then cannot take into consideration the fact that the upriver drive-overtook them, or was hindered by them, for the lower drive had the right of way, so to speak.” He added:: “That is, if you find that the defendant was driving the-logs in a reasonable manner, put on sufficient men, and using all diligence to keep the river clear”

This instruction might be considered correct were it not. for the fact that it is claimed that, owing to the alleged improper attempt to float logs that should have been expected to sink, it was made impossible for any one to keep the river clear. If it is true that a million and a half of these logs could not be floated down the river, and were not, but sunk, and remained along the stream, the fact that the defendant was making great efforts to bring up its rear, and do an impossible thing, should not preclude plaintiffs from recovering the expense in getting their logs by sucli obstructions and the jams formed thereby. In a sense, a man has a right to float logs when he chooses; but it does not follow that he may expect others to suffer because of his unreasonable attempt to float logs which he ought to know will not float. It was a question for the jury whether it was reasonable to attempt to float the logs. It is proverbial that “a stern chase.is a long one,” and significant that defendant’s rear was overtaken by a drive which started 100 miles behind, and substantially at the same time. The fault may have been in the attempt to float logs not in a condition to float; and in such case it was not proper to give the jury to understand that, if the defendant was working all the men practicable, and using all reasonable efforts to clear the stream, the plaintiffs must suffer for its inability to clear the river of Jogs that it should not have attempted to move at that time.

We think a discussion of other questions raised unnecessary, except that in relation to costs. Plaintiffs contend that it “appears that their claim was established at more than $100, and was reduced by set-off.” This cannot be said to affirmatively appear from the record.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    NILES v. MASON.
    Wills — Construction—Perpetuities—Life Estate.

      N. devised all his estate, real and personal, to M., as trustee, with power to sell all his real and personal estate; to invest and reinvest the proceeds thereof as he should deem fit; the trust fund to be used: (1) To pay all his debts and funeral expenses; (2) 8100 to his son Warren, the complainant; (3) a stipulated sum to his sister each and every month during her life, contingent upon her remaining unmarried; (4) to pay annually one-half of the income to his son Charles during his life, and the other half of said income to his daughter during her life; (5) upon the death of his son Charles, to pay one-half of the principal to the children of Charles, but, if no issue survive his son, then to pay one-half to the children of his daughter; (6) upon the death of his daughter, to pay one-half of the principal to her children, but, if no issue survive her, then to pay the same to the children of his son Charles; (7) ux>on the death of either his son Charles or his daughter without issue, to pay the entire net income to the survivor of the two during his or her life; (8) if both of said children die without issue, then his entire estate shall be vested in the brother of the deceased,' and his heirs, forever. Held :

    1. That the devise was for more than two lives in being, and was therefore void.
    2. That the statute against perpetuities applies to a case where the trustee is authorized to sell the real estate and other property of the deceased, but. is required to immediately reinvest it.
    8. The provision for the life estate devised to the sister is good
    Appeal from Wayne; Rohnert, J.
    Submitted January 11, 1901.
    Decided May 7, 1901.
    Bill by Warren J. Niles against Joseph T.. Mason, executor of the last will and testament of Ira Niles, deceased, Charles P. Niles, Lottie Niles Jupp, Arthur Niles Jupp, Sarah M. Niles, and Charles W. Niles, for a construction of said will. From a decree sustaining the will in its entirety, complainant, and defendant Charles P. Niles, appeal.
    Modified.
    Ira Niles died testate, leaving three children, complainant, and defendants Charles P. Niles and Lottie Niles Jupp, a grandson, Arthur Niles Jupp, a brother, and a «ister, the defendants Sarah M. Niles and Charles W. Niles. The will is as follows:
    “I hereby grant, devise, and bequeath all my estate, real and personal and mixed, to Joseph T. Mason, of said ■city of Detroit, as trustee, and in trust for the uses and purposes herein below set forth, to wit:
    “1. To collect all rents, profits, insurance, and other moneys due the estate upon all real and personal property; to buy, sell, lease, repair, and assign any and all of my estate, both real and personal; to invest and reinvest the proceeds thereof in any manner he may deem fit; and to ■do all acts and pay all necessary expenses for the care, protection, and management of my estate in my stead.
    “2. To pay all my just debts and funeral expenses.
    “3. To pay the sum of one hundred dollars to Warren J. Niles, if he makes himself known in person to said Joseph T. Mason within two years from the date of my demise.
    “4. To pay the sum of twelve and 50-100 dollars to Sarah M. Niles upon the first day of each and every month during her life, contingent upon her remaining unmarried. Upon the event of her marriage the said legacy to cease, •and to become part of the income hereinafter provided for.
    “5. To pay annually one-half of the income from my entire estate, real, personal, and mixed, after the payments •above set forth, to my son Charles P. Niles during his life, and the other half of said income to my daughter, Lottie Niles, during her lifetime.
    “6. Upon the death of my son Charles P. Niles, to pay one-half of the principal of my estate to his children in ■equal proportions. If no issue survive him, then the same to be paid to the children of my daughter, Lottie Niles, in equal proportions, upon her death.
    “7. Upon the death of my daughter, Lottie Niles, to pay one-half of the principal of my estate to her children in .equal proportions. If no issue survive her, then the same to be paid to the children of my son Charles P. Niles in equal proportions, upon his death.
    “8. Upon the death of either of my children Charles P. Niles or Lottie Niles, leaving no issue, the entire net income of my estate shall be paid to the survivor of the two during his or her life.
    “9. In the event of the death of both of my children Charles P. Niles and Lottie Niles without issue, my entire estate, both personal and real, shall be vested in my brother, Charles W. Niles' and his heirs, forever.
    “10. The share of any grandchild who may be a minor upon the death of his father, he being my son Charles P. Niles, or of his mother, she being my daughter, Lottie Niles, shall be under the care and direction of said trustee, or his successor, as the agent of said grandchild, during his or her minority.
    “11. In the event of the death of said Joseph T. Mason, trustee, before full execution of this trust, I hereby direct that the trust pass to such person as the court of chancery may direct, as in such case under the statute made and provided.
    “12. I hereby appoint Joseph T. Mason the executor of this, my last will and testament, and desire that his. bond therefor, as well as such bond as he may be required to furnish as trustee hereof, may be merely nominal.”
    The value of the estate as per inventory was $28,325. The income from it, as shown by the testimony, is from $1,400 to $1,600 per year. The court entered a decree sustaining the will in toto.

      Lloyd L. Axford (James H. McDonald, of counsel), for complainant, and for defendant Charles P. Niles.

      H. M. & D. B. Duffleld, for remaining defendants.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The evident intention of the testator was to follow the Palms will, which was in the main upheld in Palms v. Palms, 68 Mich. 355 (36 N. W. 419). The only real difference between the will of Mr. Palms and the will of Mr. Niles is the clause in the latter will by which he devised to his sister an annuity of $12.50 per month during her life, and burdened his entire estate with the payment of that annuity. No such provision is found in the will of Mr. Palms. With that provision eliminated, this case would fall directly within the Palms Case. The claim of the appellants is that this case is ruled by that of Dean v. Mumford, 102 Mich. 510 (61 N. W. 7). In that case the widow of the testator was given a life estate in the homestead, and the executors, who were in fact trustees, as in this case, were to pay the widow $1,500 per year during her life. It was there held, and in fact conceded, that the fifth clause of the will of Mr. Dean restrained alienation for the period of two lives in being. The question, therefore, was, Did the provision for the widow include another life, and render the subsequent provision void, under the statute against perpetuities ? It was held that it did. The construction cannot be influenced by the amount of the annuity. The same conclusion would have been reached in the Dean Case if thé annuity had heen $150 per year, as in this case, or $1,500, as in that. As in that case, so in this, the entire estate was burdened with the annuity; and, if necessary, the entire income must be appropriated to pay it. The circuit judge, in a written opinion, held that, if he applied the rule in the Dean Case, the will must fall. The circuit judge reached his conclusion by holding that section 9 of this will was of no force or effect, and should be considered as though not written in the will, because both of the children Charles .and Lottie were living at the time of his death, and that the provision for his sister, Sarah, would cease upon the •death of both children Charles and Lottie. In other words, he reads into section 4 a further contingency, viz., that if his children Charles and Lottie should die before his sister, then the annuity to his sister should cease. "We think the judge erred in this conclusion. The intent of the testator to provide this amount for his sister during her life is clear. The only condition upon which it was to cease was that she marry. This case is ruled by the Dean Case.

It is urged that the statute is aimed solely at the' alienation of land, and does not apply where the trustees are given the power to sell, although they are given the' power to tie up the proceeds of the sale beyond the time fixed by the statute. Thatcher v. St. Andrew's Church, 37 Mich. 264, is relied upon to sustain this contention. If the language there used be not considered in connection with the facts of the case, there would be much force in the contention. In that case, however, the trust ceased with the alienation of the land by the trustee, and the' trust was at an end. Such was also the case in Robert v. Corning, 89 N. Y. 225. A similar state of facts, existed in Henderson v. Henderson, 113 N. Y. 1 (20 N. E. 814), where the executor was given five years within which to partition the estate. The language of th& Thatcher Case clearly stated the law as applicable to its facts. It was not a case where the trustees were authorized to tie up the proceeds of the land beyond the limitations of the statute. This point was directly involved in the Palms Case, and, we think, settled the rule against the contention of the appellees. The power of alienation was expressly conferred upon the trustees, with the authority to reinvest the same in land or other property, according to their judgment. Justice Champlin, in his opinion, expressly repudiated the doctrine of the Thatcher Case as applicable to the Palms Case, and on page 385-gives his reasons in part as follows:

“ The statutes against perpetuities are directed against provisions in conveyances by will or deed which prevent the vesting of estates in the beneficiaries; and, when-such vesting is postponed beyond the limits allowed by law, the provision is void as being too remote. It can make no difference whether, during the time which shall elapse before it vests in the beneficiary, the estate vests in trustees, or is by them transferred to others than the beneficiary, and the proceeds and avails are held by the trustees subject to the trust. The policy of the law is. defeated unless the contingency happens when the estate shall vest in the beneficiary within the prescribed limits. There would be but little use in statute or common-law restrictions against perpetuities, and the tying up of estates to await the happening of future events, if they can be avoided by merely clothing the trustees with power of sale, but subjecting the proceeds to the trusts declared, and by this simple device such postponement of the vesting of contingent interests be validated.”

He then discusses the Thatcher Case, and cites many authorities to support his holding. This opinion was concurred in by Chief Justice Sherwood. Justice Morse, in his opinion, concurred in by Justice Campbell, does not discuss the question. His opinion is, however, based upon the theory that the statute against perpetuities is applicable, and the case was disposed of upon that theory. We are therefore of the opinion that that case disposes of the question; otherwise, the main contention would have been disposed of by holding, as is here claimed, that the power of alienation was conferred upon the trustees, and therefore the statute did not applyv

It does not follow that this will is void in toto. It was the clear intention of the testator to provide a life annuity for his sister. The subsequent provisions of the will, tying up the estate against the statute of perpetuities, do not invalidate this provision. Counsel for appellants seem to recognize this, for they state in their brief that they have executed a mortgage to the sister to secure this life annuity. It is unnecessary to tie up this entire estate, and prevent those who are entitled to it from receiving the full benefits thereof, during the lifetime of the sister. We think it entirely equitable and just that, upon the execution of a note or bond and mortgage upon real estate, satisfactory to the circuit judge, the trustee should be discharged, and the estate distributed among the children. Decree will be entered accordingly. Under the circumstances, we think no costs should be allowed to either party, either in this court or the court below.

The other Justices concurred.


author: Moore, J.

text:
    SCHULMEISTER v. TOWNSHIP OF BLENDON.
    Highways — Laying Out — Validity of Proceedings — Res Judicata.
    Complainant filed a bill against a township and its highway commissioner to enjoin the opening of a highway across his land. Defendants answered under oath (answer under oath not having, been,waived by the bill), setting up the proceedings to lay out the highway, and asserting their validity. Replication was filed, but not within the time required by the rule; and the cause was heard on bill and answer, and a decree entered dismissing the bill. Held, res judicata as to the legality of the highway proceedings in a subsequent suit for the same relief, brought against the same parties and some adjacent landowners.
    Appeal from Ottawa; Padgham, J.
    Submitted January 10, 1901.
    Decided May 7, 1901.
    Bill by Frederick Scbulmeister against the township of Blendon, Enne Kraai, highway commissioner of said township, Robert Witters, and Ernest Eckleberg, to enjoin the opening of a highway. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Crane, Norris & Drew, for complainant.

      Smedley & Corwin, for defendants.
   Moore, J.

This is an injunction bill, filed to prevent the opening of a new road and the removal of complainant’s fences, and to compel the restoration of an old road and the restoration of fences. The bill was dismissed in the lower court. The case is brought here by appeal. In the court below two maps were introduced in evidence, one of which is shown by the great weight of evidence to be incorrect. The other one was shown by the great weight of evidence to be correct. A copy of it will be found on the opposite page. A reference to it will aid in understanding the situation.

The complainant moved upon the 40 acres of land where his house now is in 1874. No one else lived near there at that time. In that .year proceedings were taken to lay out a highway on the •section line between sections 11 and 14, but the proceedings were defective. To reach his house, the complainant came in from the east over a route corresponding to the old wagon road on the map. For some years this road was traveled no farther than to the house and barn of complainant. Later it was opened to the quarter stake, and still later still farther west. In 1889 complainant purchased the east •40. acres of Mr. Nibbelink. The' east portion of the fence on the north line of this 40 was two rods south •of the section line, but as it went west it crooked about, first north and then south. As the country became more-settled, and it was desired to get the fences on the right line, it was claimed complainant’s fences were too far to-the north. There never has been any dispute about the location of the government stake at the corner of sections 11, 12, 13, and 14; but there is a dispute about the-location of the quarter post one-half mile west of there. A survey of this line was made by Mr. Foster in 1883 or 1884, and it is claimed he fixed the quarter post two rods north of where it is shown on the plat. That claim is. disputed. We think it proper to say that, whatever was-done by Mr. Foster, it is shown by the great weight of testimony that the quarter post as established by the-original government survey is where it is shown to be on the map.

In 1891 the county surveyor, at the request of the highway commissioner, surveyed the line between these sections. Notice was served upon the complainant to remove his fences. He did not do so, and the highway commissioner removed them. The complainant then sued him in an action of trespass. Pending this litigation it is claimed the town authorities and complainant got together, and agreed a new survey should be made, and that all parties should be bound thereby. The town board adopted a. resolution to that effect, but it was not signed by Schulmeister, though he was present at the meeting, and assented thereto. A survey was made showing the situation to be substantially as shown upon the map. Schulmeister was not satisfied with this survey, but wanted two sections surveyed. This was done. The complainant still refused to be bound by it, and the trespass suit, was brought on for trial. The commissioner sought to-defend by showing that a highway had been laid out in 1874. The complainant’s attorney claimed the proceedings were defective; that the fences had been erected 20-years, and were not an encroachment; and that the only way the township could get possession of the land would be to lay out the road, condemn the land of complainant, and pay him for it. The court held the proceedings of 1874 were defective, and charged the jury to find a verdict in favor of the complainant, which was done.

In 1894 proceedings were taken to lay out a highway on the section line, and a highway was laid out. Mr. Schulmeister refused to remove his fences, and the highway commissioner sued him in trespass. The defendant gave notice under his plea as follows:

“And, further, the defendant denies the existence of such highway as claimed in said plaintiff’s declaration, and says that there is not, and never has been, a highway over or upon the premises upon which the alleged encroachment as set forth in said declaration exists. And this defendant further denies the location of the section line mentioned in said declaration as the center of the highway, as no highway has been used or laid out as alleged in said declaration. And this defendant denies wholly the encroachment as mentioned in said declaration, and denies the existence of a legally laid out highway, as in said declaration alleged and set forth, but says that all the land and premises covered by said alleged encroachments are the lands, close, and tenements of this defendant; that he has a right and title thereto; and that it was not, and never has been, any part of any public highway, as set forth in said declaration.”

The case came on for trial, and, because of defective proceedings in laying out the highway, the plaintiff submitted to a nonsuit.

Proceedings were again commenced to lay out the highway, and an attorney was employed by the highway commissioner to assist in conducting the proceedings. The highway was laid out, awarding to the adjacent landowners one and two dollars each as damages, except the complainant, who was awarded fifty dollars damages. This amount was tendered him, but he refused to accept it. It is conceded that, had there been no highway on this section line, the proceedings would be regular but it is now said that, though the proceedings of 1874 were so irregular as to be invalid, because of continuous use there was in fact a highway on the section line, and that a new highway could not be laid out until that highway was vacated. No appeal was taken from the action of the highway commissioner in laying out this highway.

The commissioner then notified all the adjacent owners to remove their fences. They all did so except the complainant. The commissioner then removed his fences, and complainant put them back. The commissioner again removed them, and then the complainant sued him in an action of trespass, and also commenced a chancery case, of which we will speak more in detail later, and obtained an injunction. This injunction was dissolved. The road on the line marked as the new wagon road was turnpiked, brushed, and a new bridge built, and has been in uninterrupted use ever since.

The bill of complaint was filed in this case the last of October, 1898. The record and briefs of counsel are long, and many questions are discussed. There are several reasons why this bill was properly dismissed, but we shall refer to but one of them. In August, 1896, the complainant commenced a suit in chancery making Mr. Pa. ody, commissioner of highways of the township of Blendon, and the township of Blendon, defendants. In it he recited his version of all that had been done in relation to the establishment of this highway, including the proceedings of 1895, and, among other things, stated:

“That it is claimed by said alleged highway commissioner and by the township board of said township that the highway was legally laid out during the latter part of the year 1895, the center line of such highway being the section line which is the northern boundary of the premises of your orator; that such highway as laid out is not upon the line of the old highway, but south of the same; and that the said highway as claimed to be laid out by the township authorities in the latter part of the year 1895, and for which it is alleged your orator was awarded the sum of $50 in damages, includes at least two acres of your orator’s said land in possession of your orator as aforesaid, and also a part of the apple orchard of your orator as aforesaid; and that the said land of your orator so pretended to be a part of said highway so laid out was south of the old highway so opened, worked, and accepted for more than 20 years; that it is claimed by said alleged commissioner of said township that said old highway so worked, laid out, and accepted is not the real highway, but that they did, in the latter part of the year 1895, lay out a new highway over the premises of your orator, as aforesaid; * * * that the highway commissioner of said township has sought to lay out this highway, the center line of which should be the section line bounding your orator’s said premises upon the north side; that he has wrongfully and oppressively claimed that the section line of said township was about two rods south of the said real section line; that your orator cut and removed the timber from most of the said highway next to where said section line actually was 23 years ago, and says that the said section line as established by the government was along the center of said old highway; that the said pretended new highway, the center of which is claimed to be upon the said section line, runs over the premises of your orator, but that the south bounds of said highway, if measured from said section line as to the center thereof, would not take any land of your orator except that originally dedicated and used as a highway; but that it is falsely and fraudulently pretended that said section line lies nearly two rods south of the real section line, and includes nearly two acres of your orator’s land, as before stated. And your orator further says that if the said Lincoln Parody, acting as commissioner of highways or otherwise, is not enjoinded by the order of this court, that he will at once enter upon the premises of your orator, cut down trees, ditch the same, and convert the same into a highway graded and ditched.”

The bill did not waive an' answer under oath, but asked —

“The aid of this honorable court in the premises that the said defendant Lincoln Parody, highway commissioner of said township of Blendon, and the said township of Blendon, may answer this, your orator’s bill, and may show, if they can, why your orator should not have the relief herein prayed; and that the said Lincoln Parody, his attorneys, agents, and counselors and employés, may be enjoined by this honorable court from further proceeding to take the lands of your orator, and from working, grading, or ditching the same, and from cutting or removing trees, and from in any wise interfering with the said lands of yonr orator until the further order of this court.”

The defendants, on the 10th of September, 1896, answered under oath, setting up in detail the proceedings of 1895, and averred:

“That said highway was legally laid out, and all the steps to lay out said highway were regular and legal, and that the order determining and laying out said highway and awarding the damages aforesaid was made on the 21st day of October, 1895.”

Attached to the answer, and made a part of it, were copies of all the proceedings from the filing of the petition to lay out the highway to the service of the notice to the complainant to remove his fences.

Afterwards the following decree was made:

“State op Michigan.
“The Circuit Court for the County of Ottawa, in Chancery.
“At a session of said court held at the court-house in the city of Grand Haven, in said county, on the 20th day of January, A. D. 1897.
“Present, Hon. Philip Padgham, Circuit Judge.
“ Frederick Schulmeister, Complainant,
vs.
Township of Blendon and Lincoln Parody, Highway Commissioner of the Township of Blendon, Defendants.
■ “This cause came on to be heard on bill and answer; ancf it is hereby ordered, adjudged, and decreed that said-bill be dismissed, with costs, to be taxed, and that said defendants have execution thereof.
“Philip Padgham,
“ Circuit Judge.”

When the present bill was filed, Mr. Witters and Mr. Eckleberg were made parties thereto, and, in addition to what was set up in the former bill, it was alleged that they conspired with the highway commissioner to deprive the complainant of his land, and prayed:

“That the highway as laid out and established in 1874 upon said section line, and used for 20 years, be decreed to be the true and lawful highway, and that your orator’s ■fences, as 'the same were originally built and existed for more than 20 years, be decreed to be the boundary line between your orator’s premises and said highway.”

It also prayed that Witters and Eckleberg might be compelled to move back their fences, and for an injunction, and for damages.

To this bill defendants answered fully, and, among -other things, they set up in their answer the proceedings in the former chancery case, and claimed they were res ■acljudicata.

It is now said by complainant:

“The former chancery cause stood for hearing upon bill, answer, and replication; and, when a replication •appears on file, the law will presume that it was filed properly and in due season, unless the contrary be affirmatively shown,” — citing Lyon v. Tallmadge, 14 Johns. 501.

The trouble with this case, as applied to the one at bar, is that the record in this case shows the replication was mot filed in due season. The answer was filed September 10, 1896, and the replication was not filed until 62 days later. Evidently it was treated as filed too late. There is nothing to'indicate it was claimed on the hearing the replication was filed in time, and that the parties were entitled to put in proofs. The case was, in fact, heard in open court upon bill and answer, and a decree entered ■therein, from which decree no appeal was ever taken.

Counsel say a decree dismissing a bill for want of prosecution is not a decree after hearing upon the merits, and is no bar to another bill; citing a number of cases. An examination of the cases cited shows the bill was dismissed in the several cases without a hearing. In one of the cases cited — Loudenback v. Collins, 4 Ohio St. 251 — the learned judge was careful to say:

“I should, perhaps, add, to avoid misapprehension, that, where it appears that the dismissal was upon a hearing of the case, it is to be inferred that it was upon the merits.”

Counsel say the prior bill nowhere alleges the invalidity of the 1895 proceedings, and contains no allegation of the-use of public power for private interests, and that Witters- and Eckleberg were not-made parties. We have already quoted enough from the former bill to show that the right-to open this highway by reason of the proceedings of 1895, or for any other reason, was denied in the former bill. The sworn answer sets up all these proceedings, and insists-that the road in controversy was legally laid out. In Huyck v. Bailey, 100 Mich. 225 (58 N. W. 1002), Justice Montgomery, speaking for the court, said:

“The complainant alleges that the statements of this-answer by way of avoidance * * * were not directly responsive to the allegations in the bill, and that as to-these matters the answer is not evidence for the defendant. The cases cited to support this contention ai’e cases-where an issue was joined upon the answer, and testimony taken. * * * But, where the case proceeds to hearing on bill and answer alone, the answer must be taken as true in all points. See Ruhlig v. Wiegert, 49 Mich. 399, 400 (13 N. W. 791), in which case the authorities are-collated. See, also, Perkins v. Nichols, 11 Allen, 542, 544.”

The case of Borrowscale v. Tuttle, 5 Allen, 377, is in point. Answer under oath was not waived, and an answer under oath was put in. The complainant, without-the knowledge of defendant, dismissed the bill. The court said:

“The complainant had searched the conscience of the defendant by his bill, and had obtained the discovery which he sought and to which he was entitled. The-answer on oath was competent evidence in the cause. The time had passed within which, by the rules of court, the complainant had a right to file a replication and take testimony. As the suit stood, the defendant was entitled to have it heard upon bill and answer. It would have been highly inequitable to allow the complainant, without cause shown and without notice to the adverse party, to-become nonsuit, and so be at liberty to sue again, when he might waive the oath, and deprive defendant of the benefit of his answer,” — and held the decree was res adjudicata.

See, also, Foote v. Gibbs, 1 Gray, 412; Mey v. Gulliman, 105 Ill. 272.

The prior case, then, having been heard in open court upon bill and sworn answer, in which the proceedings of 1895 to lay out this highway were set up, and where their legality was averred, it must be said the case was heard upon the merits, and is res adjudicata.

Decree is affirmed, with costs.

Montgomery, C. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.


author: Grant, J. Montgomery, C. J.

text:
    LINE v. McCALL.

    1. Partnership — Judgment — Assignment of Part Interest — Equity — Settlement.
    L. and A., as copartners, brought suit against defendants, and agreed with two of the complainants to pay them a certain percentage of the amount that might be recovered therein. Judgment was obtained in such suit, and L., with the consent of A., assigned his interest therein to the third complainant. Defendants subsequently, with knowledge of complainants’ claims, compromised and settled the judgment with A. Held, that complainants acquired rights in the judgment which would be protected in equity as against the settlement.
    2. Same — Appeal—Conditional Relief.
    The vacation of the settlement, however, was made conditional on complainants’ assent to the reinstatement of defendants’ motion for a new trial in the suit at law, which was pending at the time of the settlement.
    Grant, J., dissenting.

      Appeal from Ontonagon; Haire, J.
    Submitted February 1, 1901.
    Decided May 7, 1901.
    Bill by Mary Line, Luther M. Packard, and Albert J. Pauli against Alexander McOall and James McBurney to set aside the discharge of a judgment. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Ball & Ball, for complainants.

      Arch. B. Eldredge, for defendants.

       Rehearing denied July 19, 1901.

   Grant, J.

In 1894, and until some time in 1895, Lou J. Le Veque and Henry Alway were copartners; their business, as testified to by Alway, being “making board timber, buying and selling pine lands, looking up lands, estimating timber, taking options, and making waney board timber.” They claim to have made a parol contract with defendants by which it was agreed that they were to get out for the defendants waney pine timber on certain descriptions of land, for which they (the plaintiffs) were then negotiating, and which they claim to have afterwards purchased under the contract with defendants. They also claim for services in acquainting defendants with the fact of there being a large quantity of pine timber upon these same lands.

Le Veque & Alway commenced a suit by attachment January 25, 1895, and caused a large amount of timber belonging to the defendants to be seized. This suit was based upon the alleged refusal of defendants to carry out this contract. The ground alleged for the attachment was that the obligation upon which suit was brought was fraudulently incurred by the defendants. Defendants moved to dissolve the attachment. This motion was heard upon the merits, and the record contains the testimony of Le Veque and Alway, then taken. Defendants denied making the agreement. The attachment was dissolved, and there is nothing in the testimony of Le Veque and Alway to justify their affidavit for the attachment. Issue was duly framed in the suit, and the ease noticed for trial at the June term in the circuit court for the county of Ontonagon. On June 24th the defendants, through their attorney, William S. Hill, made an application for a continuance, which was denied. The attorney of record for Le Veque & A1 way. was not present, but they were represented by one Charles Line, an attorney, and a brother-in-law of Le Veque. ' Hill entered into verbal negotiations with Line and the plaintiffs for a continuance of the case. McBurney was the one with whom plaintiffs claimed that their contract was made, and he was the material witness in the case. He was absent in Canada. Hill testified that he had made an arrangement for a continuance of the case upon payment of $400 upon another claim which plaintiffs had against defendants. Hill returned to Marquette, his home, and sent an order for $400 in accordance with the supposed agreement for a continuance. Plaintiffs denied the arrangement, and took judgment on the 28th of June for $5,902. At the time of rendering the judgment, the court made an order allowing the defendants 20 days in which to file a bond to pay whatever judgment should be recovered on a retrial, and also extending the time until the first day of the next term — October—in which to move for a new trial. This was in accordance with a telegram of the 28th, sent to Mr. Hill by Mr. R. C. Flannigan, one of the attorneys for plaintiffs, who had gone to Ontonagon after Mr. Hill had left. This telegram reads as follows:

“Parties positively will not continue Le Veque case, but, if you wifi give bond satisfactory to us to pay whatever judgment recovered on retrial, and pay costs of this term, will consent that new trial be ordered. This is very best clients permit me to offer. Answer immediately. Court now waiting.”

To which Mr. Hill replied immediately by telegram to the circuit judge:

“Flannigan offers retrial on our giving bond. I prefer trial on Monday. Can I have it? If not, will accept Flannigan.”

Before this telegram was received by the circuit judge,, judgment had been taken. To this telegram the judge-replied:

“Judgment for plaintiff for $5,902. Telegram came too late. Forward your- bond soon. I go home tomorrow.”

To this Mr. Hill replied:

“Give me stay for 20 days to get bond, and till next term to move for new trial.”

To which the judge replied:

“Yes; this is bond under Flannigan’s proposition.”

On July 8th, Mr. Brown, the attorney of record for plaintiffs, sent to Mr. Hill a form of bond in the penal sum of $8,000, with a stipulation for vacating the judgment upon the execution of the bond. In reply to this-Mr. Hill wrote, offering a bond for $3,500, to which Mr. Brown replied, on July 13th, that a bond in the sum of $6,000 would be satisfactory. On July 18th, Mr. Hill entered a motion for a new trial, at the same time filing a bond in the sum of $3,500. Learning that an execution had been issued, Mr. Hill then filed a bond in the sum of $6,000, whereupon the circuit judge, on the 24th day of' July, entered an order reciting the filing of the two bonds, and recalling the execution until the motion for a new trial could be heard. This was superseded by a similar order, made August 6, 1895.

While matters thus stood, defendants and Le Yeque & Alway, through Mr. Alway, entered into an agreement of settlement of this suit and all other differences between them. By this settlement defendants were to pay LeVeque & Alway $1,100. Before the amount was paid, Le Veque & Alway were to produce a release and discharge of all claims by or on behalf of their attorneys. Such releases were obtained from all the attorneys, and on the 11th of September $1,100 was paid, and Le Veque- & Alway gave a receipt in accordance with the agreement. ■of settlement; the receipt being executed in the name of the firm by Mr. Alway. Satisfaction of the judgment was duly executed by Alway in the name of the firm, and was duly filed in the circuit court.

On February 1, 1895, Le Veque & Alway executed an agreement to Luther M. Packard and Albert J. Pauli, reciting a consideration of one dollar and other valuable things, and agreeing to pay said Packard and Pauli “an .amount in money equal to fifteen per cent, of the total amount recovered by us, after paying all legitimate expenses of suit, in a suit commenced by attachment by us ■against Alexander McCall and James McBurney in the circuit court for the county of Ontonagon, January 25, 1895.” The agreement further recited:

“We also agree, for the consideration above mentioned, to allow B. J. Brown, Esq., attorney of record in said case, on the final settlement of the case, either by judgment in our favor or otherwise, to deduct from such •amount the fifteen per cent.,aforesaid, and to pay the same to said Luther M. Packard and Albert J. Pauli; the balance to be paid to us.”

On July 26, 1895, Le Veque made an assignment of his ■interest in the judgment to Mary Line. On the 9th of September a notice of this assignment was served on Mr. Hill. On the same day notice was also served of the .agreement with Packard and Pauli. Subsequently complainants filed this bill to set aside the settlement and satisfaction of the judgment. The case was heard upon pleadings* and proofs taken in open court, and the bill dismissed.

The claims of the complainants are:

1. That there was no legal consideration for the settlement and discharge of the judgment.

2. That it was fraudulent, and therefore not binding.

3. That it was unreasonable, unjust, and a fraud upon -complainants.

4. That Alway had no authority as against complainants to settle and discharge the judgment without the •consent of the complainants.

Complainants invoke the rule that a payment of a part of a liquidated amount is no consideration for an agreement to release the remainder, but is only a payment pro tanto. The rule is conceded. The only dispute is its applicability to the case. Complainants appear to proceed upon the theory that the judgment was conclusive, the amount due determined thereby, that there was nothing to compromise, and that the judgment could only be discharged by payment in full, or its equivalent. The defendants, from the beginning, denied the existence of any such contract as Le Yeque & Alway claimed in the suit. There had been no trial upon the merits. A motion for a new trial had been made, and two bonds filed. The bond for $6,000 was in accordance with a stipulation made by the attorneys, but was not filed within the 20 days, but was filed a few days thereafter. The amount of the judgment, and the circumstances under which it was obtained, were such as would appeal strongly to the court to grant a new trial. Besides, other disputed claims between the parties were included in the settlement. The case was a proper one for compromise and settlement, and they will be sustained, unless they were tainted with fraud, or the rights of other parties interfered to prevent.

The claim is that McBurney and Alway entered into a fraudulent combination to defraud Le Yeque. Alway testified that McBurney paid him $100 to make the settlement for the purpose of defrauding Le Yeque out of his interest. McBurney expressly denies this. It is unnecessary to enter into the testimony in detail. I "think the circuit judge reached the correct conclusion from the facts as they appear upon this record, and that Alway is unworthy of belief. Unless the testimony of Alway is believed, no case of fraud is established. Alway testified, in regard to taking the $100 from McBurney:

“I did not take it as a bribe, but I took it, as I considered, for signing Le Yeque’s name to that document. I had already discovered that signing that would not be lawful, according to the best attorney’s advice in Marquette; that my signing Le Veque’s name was not worth the paper it was written on, as he had made an assignment.”

One who confesses that he knowingly entered into a corrupt and fraudulent bargain is not entitled to much credence. The circumstances of the settlement, as stated by Hill and Rood, two reputable attorneys, and Mr. McBurney, show that there was no concealment, and no attempt to defraud, but that the negotiations were open and fair. The judge, in his opinion, says, “Neither Le Veque nor Alway is worthy of belief when contradicted.” He saw them upon the stand, and was familiar with the history of this litigation from the beginning. I think there is enough upon the record to justify this conclusion without the benefit of seeing the witnesses and noticing their appearance when testifying,— a matter of no little value when the testimony of witnesses is in direct conflict.

Whether the settlement was unreasonable or unjust depends entirely upon the determination of the merits of the controversy between defendants and Le Veque & Alway. These merits are not before us, and it is, therefore, impossible for us to determine them. To hold the settlement unreasonable or unjust would be to hold that Le Veque & Alway had a just claim against defendants for about $6,000,— a claim which they persistently and consistently contested, and which they were so confident of defeating that they gave a bond of $6,000' to pay any judgment that might be rendered against them. It appears that through Mr. Line, their attorney, Le Veque & Al-way, during the negotiations for a continuance of the case, offered Mr. Hill to settle this and another claim against defendants for $2,315. The other claim was $588, of which about $500 was conceded. That was, therefore, substantially an offer to settle this claim for $1,72?. It does not seem credible that Le Veque & Alway, or either of them, would compromise a valid claim of $6,000 for about $600. It is entirely credible that defendants, who are business men, would pay that amount to avoid expensive litigation. We must, in the light of these facts, hold that there is no reason for setting the settlement aside as unreasonable or unjust.

Had Alway the authority to settle and discharge the judgment? The judgment was a partnership asset. It was based upon a declaration alleging partnership, and upon a contract alleged to have been made by and with the partnership. Whether the partnership, at the time of the settlement, had been dissolved, is immaterial. The partnership affairs had not been closed and settled. Either partner, in the absence of any agreement to the contrary, and notice to debtors of such an agreement, had power to compound, settle, and receive payment for partnership debts. The partnership continues for this purpose after dissolution, without any diminution of power. The dissolution terminates the right to make contracts for the future, but not the right to make contracts in settlement of claims of existing creditors and debtors. This power must exist in the very nature of the contract of partnership ; otherwise, resort must be had to the courts to wind up partnership affairs. The rule is concisely stated in Darling v. March, 22 Me. 184:

“The dissolution operates as a revocation of all authority for making new contracts. It does not revoke the authority to arrange, liquidate, settle, and pay those before created.”

See, also, T. Pars. Partn. pp. 386, 392; 2 Bates, Partn. §§ 681, 682; and also authorities there cited.

No notice had been given by complainants of their claimed assignments until after the agreement of settlement had been made. The agreement, being valid when made, could not be avoided by a subsequent notice of these assignments. The settlement did not relate to future contracts by the firm, but to a past partnership transaction. It is not within the principle of Griswold v. Waddington, 16 Johns. 491, and other similar cases cited by the learned counsel for complainants. In that case the partners were citizens of different countries, between which a war had arisen. It was held that the existence of a war dissolved the partnership as to future contracts, but that the partnership continued as to past contracts. The court said:

“The parties were still partners as to those goods which had been actually purchased by them before the war; and the parties, as partners,’were bound to account to each other for the proceeds of those goods, and equally bound, as partners, to pay for them, if not already paid for. A dissolution of a partnership only has respect to the future. The parties remain bound for all antecedent engagements. The partnership may be said to continue as to everything that is past, and until all pre-existing matters are wound up and settled. * * * With regard to things past, the partnership continues, and always must continue.”

It may be said of the arrangement with Packard and Pauli that it gave them no control over the suit or the judgment, and no right to interfere, or to receive any money,. until the amount had been settled, either by a judgment beyond the control of the court and of the parties or by a compromise. The assignment to Mrs. Line did not make her a partner with Alway, or entitle her to a half of the judgment. Under it she was entitled to receive only what remained after the partnership was settled, and it was determined what portion of the judgment would have belonged to Le Veque. A mortgagee or assignee of a partner’s interest can receive only his share of the surplus after the partnership is wound up. 1 Bates, Partn. § 183; Fourth Nat. Bank of New York v. Railroad Co., 11 Wall. 624; Lovejoy v. Bowers, 11 N. H. 404; Rosenstiel v. Gray, 112 Ill. 282; Hutchinson v. Dubois, 45 Mich. 143 (7 N. W. 714); Kunze v. Cox, 113 Mich. 546 (71 N. W. 864, 67 Am. St. Rep. 480). An assignment by one partner of all his interest in the firm dissolves the partnership, and all that such assignee is entitled to is what remains after the credits have been collected, the debts paid, and the remaining assets are ready for distribution. The assignment gives him no right to interfere with the management of the business by the remaining partners, unless such partners are fraudulently conducting it. The same rule applies where the partner has assigned his interest in a single partnership asset. It follows that Alway was the only one who was authorized to-settle this claim. It is conceded by counsel for defendants that Alway was bound to act in good faith, and that fraud on his part would have vitiated the settlement.

The bill does not seek to enforce a lien of complainants upon the amount of the settlement. If this were so, a, different question would arise. We are not prepared to hold that the owner of a judgment may not give-several parties a lien upon that judgment to secure their claims, which might be enforced in a court of- equity, as-was done in Moore’s Appeal, 92 Pa. St. 309. It is not necessary to express an opinion upon this question.

The decree should be affirmed.

Montgomery, C. J.

I cannot agree with the conclusion reached by my Brother Grant. There is no doubt of the fact of the assignment by Le Veque of his interest in the judgment to the complainant Line. It does not appear that any creditor is complaining, and it does appear that Le Veque’s copartner, Alway, assented to-this assignment. In what manner, then, the assignment works any injury to the judgment debtor, I am unable to-see, unless it be true, as contended, that an assignment of a portion of a judgment is of no effect, either in law or equity, as against the judgment debtor. I do not understand this to be the rule. It is true that it has been, held in some jurisdictions that at law an assignment of a portion of a judgment is wholly ineffectual. In Missouri it seems to have been held that it is equally ineffectual in equity. See Love v. Fairfield, 13 Mo. 300 (53 Am. Dec. 148), and Burnett v. Crandall, 63 Mo. 410. But elsewhere the rule seems to be firmly established that an assignment of a portion of a claim is good in equity, and creates at least a trust in favor of the equitable assignee; or, as is said by tbe supreme court of Ohio in Pittsburg, etc., R. Co. v. Volkert, 58 Ohio St. 362 (50 N. E. 924):

“Whatever term is applied to it [the assignment] by way of description, the result reached is to give to the assignee a property right in the thing assigned, — a right which is cognizable by and enforceable in a court of equity.”

In ¡the case last cited it was distinctly held that, after an assignment of a portion of a demand or judgment, the debtor, having notice of the assignment, could not discharge the entire demand, so as to cut off the rights of the assignee. See, also, North Chicago St. R. Co. v. Ackley, 58 Ill. App. 572; Moore v. Robinson, 35 Ark. 293; Beers v. Hendrickson, 45 N. Y. 665.

In my opinion, the previous decisions of this court in principle decide the present case. See Weeks v. Wayne Circuit Judges, 73 Mich. 256 (41 N. W. 269); Potter v. Hunt, 68 Mich. 242 (36 N. W. 58). It is suggested that the Michigan cases are cases in which an attorney’s lien has been enforced; but this is not the ground upon which they rest. In Weeks v. Wayne Circuit Judges it was held that the agreement between the attorneys and their client operated as an assignment of the judgment to the extent of the attorneys’ claims. It was further held that the plaintiff could give no valid discharge of the judgment until the attorneys’ claims were paid; and it was said:

“It is true, courts, as a rule, look with favor upon a compromise and settlement made by the parties to a suit, with the consent of all persons concerned, to prevent the vexation and expense of further litigation; but the rule only applies where the rights and interests of all parties concerned, both legal and equitable, have all been respected.”

In my judgment, complainants are entitled to relief in this case. The decree will be reversed and remanded to take an account of the value of complainants’ interest in the claim represented by the judgment, but with leave to defendants, McCall and McBurney, to apply for a new trial of the case at law; and the relief granted is conditioned upon the complainants’ assent to the reinstatement of the motion for new trial made in the suit at law. Proceedings in this case will be stayed until the disposition of that motion. Complainants will recover costs of this court.

Hooker, Moore, and Long, JJ., concurred with Montgomery, C. J.


text:
    SARGEE v. CLARK CAN CO.
    Injury to Employé — Negligence—Evidence.

       Under the facts presented in this case, there was no evidence of negligence on the part of the defendant, and the cause of the accident rests in mere speculation, unless it is accounted for by the contributory negligence of the plaintiff. Montgomery, C. J., dissenting.
    Error to Wayne; Frazer, J.
    Submitted February 12, 1901.
    Decided May 7, 1901.
    Case by Charles Sargee, by next friend, against the Clark Can Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff recovered a verdict and judgment for an injury to his hand. The declaration sets forth that the defendant used a certain machine, called a “stamp press,” used for stamping teakettle covers, operated by means of r lever, by which the die was moved up and down; that, when it was required to come down, the operator moved the lever by pressing upon it with his foot; that the machine was not in good repair; that the die came down without the plaintiff pressing upon the lever; the duty of defendant to provide suitable means, appliances, implements, utilities, and machinery to enable plaintiff to do his work safely, and to provide proper “safeguards in the connection of the control and protection of the tools,” etc., so that this press would not go into operation when the plaintiff did not step upon the lever; and the duty to furnish reasonably safe appliances, and to use ordinary care to see that said press was at all times in reasonable and safe repair and suitable for the purpose. The negligence charged was the failure to provide these appliances and safeguards, and knowingly permitting said press to be and remain out of repair. It is alleged that the die came down.while plaintiff was placing a piece of tin underneath, and struck two of his fingers; that plaintiff had not pressed upon the lever; and that it came down for some reason, which plaintiff generally charges to a want of repair, but does not specify any part or particular in which the machine was out of repair.
    It is not easy to describe this machine and its operation. Defendant’s foreman, when asked to explain its operation, replied that it was a hard question. The jury evidently had some difficulty in thoroughly understanding it; for, after they had retired and considered the case for some time, they returned into court, and asked permission to see the machine, but were informed by the court that their request could not be granted. The superintendent of the factory thus described it:

      “Q. Will you tell the court and jury on what principle —just how — these machines work, so that they can see whether they are safe or not, and how they can be started, and why they are not dangerous if properly handled ?
    “A. Well, the machine, of course, is constructed of a large casting of iron. There is a shaft about two and a half or three feet long passes from the top, r and on that shaft there is a cross-head placed, with a slide coming down. On the end of the shaft there is a wheel. It is a loose wheel, — not a tight wheel. Inside of that wheel there is a collar. That collar has a recess cut into it, with a piece of steel set into it, so that it will stand the wear and tear. In the wheel there is a clutch pin. There is a spring in behind that clutch pin, and also a little projection extending from the pin as a guy for a dog to catch it. There is a switch rod comes up in under that leads down to the bottom of the press, to the treadle. When the operator steps on that treadle he releases that clutch pin, this switch rod presses down and catches the little pin and releases the clutch pin, the clutch pin comes out and falls into this recess, and it is carried around by the steel. There is a little steel block set in there, and the clutch pin is not released until the machine is to its highest point. Then the clutch pin is released, and it is released at the same point that it enters on, and the machine will stay there then until the treadle is depressed again. That is pretty near as good as I can explain the thing.
    ‘ ‘ Q. Suppose the treadle should break, so that it wouldn’t operate the clutch pin at all; what would be the effect on the machine, — on the stamping part of the machine, — as to its moving around ?

      “A. There wouldn’t be any effect whatever. The press wouldn’t come in operation.

      “Q. It would just simply stand still?

      “A. Yes, sir.

      “Q. There is a brake on this ?

      “A. Yes, sir. The purpose of the brake is simply to steady the sliding motion of the press. It has nothing whatever to do with the starting or stopping of the machine. If this brake was not on, the weight of this machine may probably fall to the other side of the recess; yet it would stand at a certain point, and the clutch pin would come to it and take it up again. When she is going up, it could not fall, — the press could not fall. Under no consideration can this press fall or come down without the power. The brake sometimes gets loose, and needs tightening, because the boys make a little mistake, and get a little too much oil on the press, and get a little in the brake, and it makes it a little slippery. The condition of the brake does not add anything to thp danger of operating the machine. At the time plaintiff was hurt I looked over the machine myself. It was in good condition, just the same as it is today. That machine has been used every day that we have got any work for it, and we have work for it pretty near every day. There have been no repairs at all put on it since that day. Its condition today, as to being in good working order and good repair, is just as good as the day we got it. There is nothing about the machine, or the method of operating it, that would cause it to wear out rapidly, with the exception of what you call the clutch pin; and, when the clutch pin becomes worn, the press won’t work or operate at all. If there should be a defect in the clutch pin, that would not add at all to the danger of operating it. The machine makes about 75 revolutions a minute, and weighs about 1,800 pounds. The machine stands on a hard floor, with a cement floor under it. The cement floor is about six inches thick, if I remember right.”
    ■ Plaintiff introduced two witnesses, himself and one Lavesque, to prove the alleged negligence. Plaintiff testified that there were nine presses in the room; that he had operated the press by which he was injured between one and two weeks, when he first entered the defendant’s employ; that on one occasion the die came down before he stepped upon the lever; that he called the attention of one Nank, the foreman in the room, to it, who then took the wheel off, tightened a couple of bolts on it, and put it on again, after which it worked all right; that he was then put to work upon another press; that after about two weeks he was again placed at work upon this machine, and it operated satisfactorily for about an hour, when he was injured; and that he did not know what the matter was with it. On cross-examination he testified that, at the time he first called the attention of the foreman to the machine, it did not always stop when he took his foot off; that “it went up and down once or twice after I took my foot off, before it stopped.” Lavesque testified that he operated the machine a day or two before the plaintiff got hurt; that it came down and stayed down; that he told the foreman, who tightened up a couple of bolts, and it worked all right. This was the only time he knew of any difficulty with the machine, and with that single exception it started and stopped in obedience to the lever. This witness did not know what was the matter with the machine, or “whether it was in order or out of order.”

      The above is all the testimony bearing upon the condition of the machine. When plaintiff rested, defendant moved for a verdict in its favor. The motion was denied, and defendant then introduced testimony. Mr. Yank, testified that he occasionally tightened the screws when the brake became loose; that the only effect of the brake-being loose would be to make it a little noisier than usual;. that with this exception there never was anything the matter with the machine; that nothing was done to the-machine after the accident; that it was operated continuously from that time to the time of the trial, and was-never repaired. The testimony of the superintendent, as-to the working of the machine, is given above. This witness further testified: “If the clutch was out of repair,, the machine simply failed to operate at all.” Other witnesses who operated it testified that it worked satisfactorily from the time of the injury down to the time of the-trial, without any repairs, or anything being done to it;, that it was then, and had since continued, in good condition and in use.
    The court left it to the jury to determine whether the machine was defective, and in what manner it was defective, saying to them that:
    “ It is essential that the plaintiff should allege and prove-the manner in which this machine was defective, * * * and the defendant must be guilty of such negligence, in examining or looking after the machine, to detect the-difficulty with it, if there was one, which made it unsafe or dangerous for the plaintiff to use it.”

      Moore & Moore, for appellant.

      Lehmann Bros, and F. J. Biggs, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). No fault is found with the character or structure of the machine. These machines are in use and have been for many years, both in this country and in others. No claim is made that the defendant did not perform its full duty towards. its employes in providing a proper and safe machine. It had been in operation several years, and had always worked satisfactorily, except in the two instances referred to in the testimony of plaintiff and Lavesque. No defect or broken or worn machinery is pointed out. No failure to inspect is shown. The sole claim of the plaintiff is that for some reason the machine failed to work properly on the occasion of the accident, and on two other occasions, and therefore there was evidence for the jury to find that there was some negligent act on the part of the defendant which caused the accident. But what was such act? Neither plaintiff nor his counsel inform us. The court in his charge did not inform the jury of the specific acts of negligence claimed. There is no evidence to point out any such act. He who alleges negligence must prove it. He must prove either facts or circumstances from which the jury can point to the specific act of negligence which caused the injury. There are two reasonable theories upon which to account for this accident: (1) That plaintiff, a boy 16 years old, unconsciously or carelessly pressed the lever with his foot when he should not; and (2) that the machine was running properly and safely, but that he failed to remove his hand in time to avoid his fingers being struck by the die. If neither of these be true, then the cause of the accident rests in mere speculation.

“When a servant demands from his master compensation for an injury received in his service, it is necessary that he trace some distinct fault to the master himself. The mere fact of such injury is no evidence of such fault.” The mere breaking of a piece of timber, in consequence of which one fell, was not evidence of negligence. Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240). The failure of a machine to stop by a release of the lever through which its movement is controlled is not. evidence of negligence, where it worked satisfactorily before, Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). The sudden giving way of an elevator is not evidence of negligence. Robinson v. Charles Wright & Co., 94 Mich. 283 (53 N. W. 938). The sudden and unusual parting of a Miller coupler, by which a train was cut in two, will not sustain a finding of negligence. Tuttle v. Railroad Co., 48 Iowa, 236.

This case is not distinguishable from the above, and is ruled by them. The court should have directed a verdict for the defendant.

Judgment reversed, and new trial ordered.

Hooker, Moore, and Long, JJ., concurred with Grant, J.

Montgomery, C. J.

(dissenting). I am not satisfied that the record is wholly devoid of evidence tending to show negligence on the part of the defendant. I do not understand the rule which requires the plaintiff to affirmatively show negligence to go further than this: That it must be shown that the machinery of defendant was in a condition likely to produce injury to an employe before an employer can be made liable.

The present case is distinguished from Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). In that case it was said:

“If there were anything to show that the machine had been out of order, and that its working was spasmodic or uncertain, there might be room for the contention that defendant was negligent in not keeping it in repair.”

There is some evidence of that character in the present record. I recognize that it is slight, but it is enough, in my judgment, to carry the case to the jury.


text:
    McMORRAN v. HALL.

    Contracts — Construction—Rental or Personal Property.
    Where defendant contracted to pay plaintiff a specified sum per month for the use of certain chattels from the time they were taken until they should be returned, and the contract further provided that the property should be returned by a certain date, defendant was liable for the stipulated rental until the property was returned, and not merely for rent up to the time fixed for return, with damages for the failure to return at that time; and this notwithstanding the total rental far exceeded the value of the chattels.
    Error to "Wayne; Hosmer, J.
    Submitted February 13, 1901.
    Decided May 7, 1901.

      Assumpsit by Henry McMorran against Edmund Hall for the rental of certain chattels. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Tarsney, Hayes, Lawson & Fitzpatrick, for appellant.

      F. H. & Cr. L. Canfield, for appellee.

       Rehearing denied June 24, 1901.

   Hooker, J.

The following statement of facts taken from defendant’s brief shows the nature of this controversy :

“The evidence in this case discloses that in the year 1898 one Reid was engaged in the work of attempting to rescue the sunken steamer Cayuga in Lake Michigan. The plaintiff was the owner of pontoons and appliances used in the wrecking business. The defendant was connected with Reid in the undertaking, and on the 10th of August, 1898, a written contract for the hire of certain of plaintiff’s wrecking outfit was made and entered into between the plaintiff and the defendant. The pontoons referred to in the contract were not received or used by the defendant, but certain chain was received, and was kept and retained by the defendant beyond the time limited in the contract for the return thereof, and was not in fact returned to the plaintiff until a short time before the trial of this cause. The plaintiff counts upon the contract, and claims to be entitled to the contract rate of three-quarters of a cent per pound per month during all the time that elapsed from the receipt of said chain by the defendant until the commencement of this suit. The claim in the aggregate is more than twice the actual value of all the chain received by the defendant. The claim is an extraordinary one, in view of the total amount of rental as claimed by the plaintiff, when compared with the value of the property.
“The contention of the defendant is that he is liable to the plaintiff at the contract rate of three-quarters of a cent per pound per month from the time the chain was received by him to and including the 1st day of December, A. D. 1898, and that no other or further recovery can be had in this action for the use of said chain. The defendant concedes that the plaintiff is entitled to recover $1,145.81, with interest thereon from December 1, 1898; while the plaintiff claims that he is entitled to recver $4,922.80.”

The contract is in writing, as follows:

“This agreement made and entered into this 10th day of August, A. D. 1898, by and between Henry Mc-Morran, party of the first part, and Edmund Hall, of Detroit, party of the second part, Witnesseth:
“The said party of the first part does hereby let and lease to said party of the second part his two largest pontoons, now located at Sailors’ Encampment, in Sault Ste. Marie river, together with the necessary chains, toggles, and toggle-blocks for the same, for the sum of one hundred twenty-five dollars per day from the time when the same are taken up to the time they are returned, as hereinafter provided. Said first party also agrees to allow said Hall to take the chain for the same at any time after the signing and delivery of this contract, the charge for the use of said pontoons covering the use of said chains: Provided, that, if the second party does not use the said pontoons, then said second party is to pay said first party the sum of three-quarters of a cent per pound per month for the use of said chain from the time taken until the same is returned. Said second party agrees to hire the said pontoons, chains, and apparatus aforesaid, and to pay said party of the first part for the use of the same as above provided.
“It is further agreed between the parties hereto that, should the said pontoons be in any way damaged by the said party of the second part, or his officers or agents, or by other persons while the same are in his custody and control, that he is to cause the said pontoons to be fully repaired, and placed in as good condition as they were at the time they were taken by him; no charge, however, to be made for the ordinary wear and tear occasioned by their proper use. Should the said pontoons be returned in a damaged condition, said second party shall have the right to use the same for such reasonable time as may be necessary to make the proper repairs; no charge to be made for the use of said pontoons during such time. It is further agreed between the parties hereto that, should the said pontoons become lost or totally destroyed while in possession of said party of the second part, that he will pay to the said party of the first part the sum of eight thousand dollars, such amount to be payable within a reasonable time after their loss, said amount being hereby fixed as the stipulated value for said pontoons.
“It is further agreed that, when the chains and toggles and toggle-blocks are taken by the said party of the second part, that they are to be weighed or measured by the parties hereto, or other persons whom they may designate, so that a correct account of the same may be kept between the parties. It is further agreed that, when the said party of the second part desires to move said pontoons, he shall give notice to the said party of the first part, so as to enable him or his representatives to make a survey of their condition, so that such condition may be fully determined and agreed upon before the same are taken. It is further agreed between the parties hereto that, when the said party of the second part is to return the said chains, toggles, pontoons, etc., he shall return them to the place or places from whence they were taken by him, unless otherwise agreed to between the parties.
“It is also agreed between the parties that the same rule in relation to loss of chains and other apparatus of any kind connected therewith, or taken by said party of the second part, shall apply as in the case of the said pontoons ; said second party agreeing, in case of their loss or damage, to replace the same, or pay the Said first party the value thereof.
“ All of said property shall be returned by the said party of the second part on or before the 1st day of December, A. D. 1898.
“In witness whereof the said parties hereto have set their hands the day and year first above written.
[Signed] “Henry McMorran.
“Edmund Hall.”

The cause was tried without a jury, and findings of fact and law were filed. The court construed the contract in accordance with the plaintiff’s contention, and rendered a judgment for $4,922.80, and defendant has brought error.

It is contended upon his behalf that the proper construction to be given this contract is that the provision that the rental should be paid up to the time when the articles should be returned is qualified by the agreement that all of said property should be returned on or before the 1st day of December, 1898, and that after that time no rent would accrue, but only damages for the failure to return. There is some force in this contention, but we are of the opinion that the clear intent of the parties was that the rental price fixed should be paid until the property should be returned. As all of the other questions discussed in appellant’s brief depend" upon a different construction of the contract, it is unnecessary to consider them

The judgment is affirmed.

The other Justices concurred.


text:
    LACHINE v. MANISTIQUE RAILWAY CO.
    Employment — Extra Services — Settlement—Estoppel.

       Plaintiff kept a boarding house for the defendant for 57 months, for which she was paid monthly, presenting an account each month. After leaving the defendant’s employ, she presented a claim for services for attending a telephone which was kept at the boarding house for the use of the defendant, the plaintiff, and boarders, and for which she had made no claim while in defendant’s employ. Held, that she was estopped to maintain the claim.
    Error to Alger; Steere, J.
    Submitted February 14, 1901.
    Decided May 7, 1901.

      Assumpsit by Abigail J. Lacbine against the Manistique Railway Company for services rendered. From a judgment for plaintiff, defendant brings error.
    Reversed.
    In August, 1894, the plaintiff undertook to keep the boarding house of the defendant at camp 1, under an arrangement whereby she was to run the boarding house, and receive for boarding the men in defendant’s employ $15 per month, which amount was deducted from the earnings of the men, and paid to the plaintiff each month, through the general office of the defendant. Under this arrangement she remained at camp 1 10 months, or until June, 1895, when she removed to another boarding house of the defendant, known as “Camp 9,” where she remained 2% years, or until the fall of 1897, when she removed to another of defendant’s boarding houses, 1-$ miles distant, known as the “Beavers,” where she remained until May, 1899, when she quit the defendant’s employ; making in all 57 months’continuous service, 47 of which was put in at camp 9 and the Beavers.

      The defendant at the time operated a logging railroad from Germfask to Grand Marais, the stations of which were mostly camps and boarding houses, in each of which was placed a telephone; and it was the custom of the defendant to have the inmates of these boarding houses or camps answer and use the telephone, so used in connection with the operation of its general business. The keepers of these boarding houses were given what they could make from boarding the employés at $15 per month, together with the free rent of the buildings, the free use of firewood, telephone, and transportation over the road. The services performed by the plaintiff were practically the same at each of said places. She sent in her accounts for boarding the men each month during this time, and received from the defendant monthly settlements for the same. She. makes no charge for attending the telephone at camp 1 during the 10 months she was there, but seeks to recover $1 per day for attending the telephone during the 4=7 months which she put in at camp 9 and at the Beavers.
    The plaintiff rendered no bill to the defendant for her services in attending the telephone during the 57 months she remained in such service, but did each month render her statements for keeping the boarders, and each month received her pay therefor. When asked on the direct examination what services she performed for defendant, she replied, “Serving telephone, keeping boarders, and section work.” Strangers were allowed to use the telephone, and when they did they paid for it. On one occasion she had collected in this way $1.50. When she offered'to pay it to the proper officer of the defendant, he told her to keep it, saying that he thought she had earned it. After quitting the defendant’s employ, she sent in an account for attending its telephone 47 months, and upon its refusal to pay the same she brought this action, and recovered judgment.

      C. W. Dunton and W. J. O'Brien, for appellant.

      F. H. Peters, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). This case is controlled by Bartlett v. Railway Co., 82 Mich. 658 (46 N. W. 1034), and authorities there cited. See, also, Forster v. Green, 111 Mich. 264 (69 N. W. 647); Goodson v. Detroit Board of Health, 114 Mich. 345 (72 N. W. 185).

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Montgomery, C. J.

text:
    DOW LAW BANK v. GODFREY.
    1. Bills and Notes — Negotiability—Maker : Who Is.
    A third, person, signing his name on the back of a promissory-note before delivery is liable as maker, irrespective of whether the note is or is not negotiable. ■
    2. Same — When Several. '
    A promissory note worded in the singular, but signed by several persons, is several as well as joint.
    3. Same — Payment—Instructions.
    Defendant’s contention that, by agreement between himself and plaintiff, certain moneys belonging to a firm of which defendant was a member, coming into the hands of plaintiff, were to be applied on the note in suit, and that sufficient was received to pay it in full, was held to have been fairly submitted to the jury.
    Error to Berrien; Coolidge, J.
    Submitted February 14, 1901.
    Decided May 7, 1901.

      Assumpsit by the Dow Law Bank against Charles H. Godfrey on certain promissory notes. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George W. Bridgman, for appellant.

      Gore & Harvey, for appellee.
   Montgomery, C. J.

This action is based upon two-promissory notes — one for $2,000, and one for $1,000— given in July, 1895. The notes are in the same form, the first one being as follows:

“$2,000.00 Fort Valley, Ga., July 18, 1895.
“ Thirty days after date, I promise to pay to the Dow Law Bank, or order, two thousand and no one-hundredths dollars, for value received, payable at said bank, with interest from maturity at the rate of eight per cent, per annum, with all costs of collection, including ten per cent, attorney’s fees.
“And each of us, whether maker, security, or indorser on this note, hereby waives and renounces, for himself and family, any and all homestead and exemption rights to-which he or they may in any event be entitled under any provision of the Constitution or laws, State or Federal, as against this note, or any renewal thereof.
“ Witness my hand and seal.
“ W. H. Harris. [L. S.]”'
Note indorsed: “Godfrey & Harris.
“C. H. Godfrey.”

The second note is in the same form, except defendant’s name appears on the face of the note, and those of the other parties on the back. The declaration contained special counts, and also the common counts, with a copy of these notes appended.

The testimony on the trial disclosed that one W. H. Harris and defendant entered into a partnership agreement in the summer of 1895 to engage in the business of canning fruit at Ft. Valley, Georgia, the home of the plaintiff bank. Harris agreed to furnish on the firm’s notes as much as $5,000, the firm paying interest and discounts. They entered upon the business. About $4,000 was furnished on paper payable to the order of Harris, signed by the firm and by the defendant individually. Later on, the two notes in question were given to the Dow Law Bank. The canning season closed about the 5th of August, 1895, and defendant left for his home in the north. He asserted ■ in his defense that Harris, his copartner, was president of the bank, and that the defendant agreed with Harris, as president of the bank, that the bank should pay, with the first money received from the firm of Godfrey & Harris, for canned goods or otherwise, any money, or notes or obligations for money, borrowed from the bank, in regular order, and that the first money realized should be applied upon the notes in question. The defendant testified to this arrangement. Harris disputes it in his testimony, and states that there was no agree-1 ment as to what notes should be first paid.

It appears from the testimony that the obligations given by the firm to Harris for the purpose of raising the $4,000 or thereabouts found their way into'the hands of the bank, and were paid from proceeds of shipments made by Harris, and turned in to the bank. Among the claims made by defendant is the one above stated that this was a misapplication of the money which came into the hands of the bank, and that the money should have been applied to retire the paper in suit. Defendant also contends that this paper was joint paper, that it did not amount to promissory notes, and that no recovery can be had upon them. It is also claimed that the suit should have failed because of the nonjoinder of Harris. And it is also claimed that the record conclusively shows that the bank had received sufficient funds with which to • pay these notes. These are the principal questions presented in the case.

We think it is immaterial that the notes in question are not negotiable notes. They were payable in the first instance to the plaintiff; signed by Harris, also by the firm of Godfrey & Harris, and by C. H. Godfrey, the defendant. It is true that the names of some of the signers were on the back of the note, but, under repeated rulings of this court, the undertaking of all the parties was that of makers. Wetherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Mich. 150 (18 Am. Rep. 171).

But it is said that these obligations were joint, and that there was a nonjoinder of defendants, which could be taken advantage of under the general issue. It is conceded that the general rule is that nonjoinder of defendants must be pleaded in abatement, but it is said that in this case the nonjoinder appears from the declaration, and that the question may be raised' under the general issue. The question of whether a nonjoinder should be pleaded in abatement becomes immaterial, as under the authorities, this undertaking was a joint and several obligation. See 1 Pars. Cont. p. 11, note, where the rule is stated that, ‘ ‘ If an instrument worded in the singular is executed by several, the obligation is a joint and several one;” and cases there cited. See, also, Van Alstyne v. Van Slyck, 10 Barb. 387; Carter v. Carter, 2 Day, 442 (2 Am. Dec. 113); Salomon v. Hopkins, 61 Conn. 47 (23 Atl. 716); Maiden v. Webster, 30 Ind. 317; Hemmenway v. Stone, 7 Mass. 58 (5 Am. Dec. 27); Wallace v. Jewell, 21 Ohio St. 163 (8 Am. Rep. 48).

It will be seen, therefore, that the case narrows itself down to two propositions: First, are we able to say from this record that it conclusively appears that these notes were paid? The counsel for defendant has attempted to state the account between the plaintiff and the firm of Godfrey & Harris, and to deduce therefrom that sufficient funds came into the hands of the bank to pay all the obligations. We have given a careful examination of the record, and are convinced that the question of whether these notes were paid was a question for the jury.

The circuit judge, in charging the jury, stated that the main question was whether the arrangement claimed by Mr. Godfrey to have been made with Harris, as president of the bank, to apply on the paper in suit the first moneys of Godfrey & Harris that came into the hands of the bank, was made. The court charged the jury that Mr. Harris, as president of the bank, had the right to make that agreement, and that the real question for the jury was whether the notes had been paid in some way, or whether the parties had placed themselves in such a condition that the law would treat them as having been paid. We think the jury could not have failed to understand that, if the arrangement in question was made, the first moneys that came into the bank should be treated as payment. The plaintiff, having waived the right to recover anything in excess of one-half of the notes, recovered a judgment for $1,682.63, which is one-half the amount of these notes less an admitted payment of $527.-21. We think the case was fairly submitted to the jury by the trial judge, and we are not able to see that the evidence conclusively sustains the theory of defendant.

The judgment will be affirmed.

The other Justices concurred.