author: Bird, J. Bird, J.

text:
    TYLER v. WRIGHT.
    1. Trial — Special Verdict — Questions.
    Special questions in ejectment so framed that, taken singly or as a whole, they call for findings that may be conclusive of the principal issue, should be submitted to the jury, if proper in form and in substance.
    2. Same — Res Judicata — Evidence—Escrow.
    Plaintiff brought ejectment for a parcel of land that defendant claimed by adverse possession of her predecessor in title. In a suit brought by plaintiff’s grantor* prior to the ejectment proceedings, the court had adjudged a deed invalid that had been deposited in escrow with her father, defendant’s said predecessor, by his wife to his daughter, the court holding that the proof of a sufficient delivery was incomplete. It was again offered in evidence for the sole purpose of showing the attitude of the father, who received it in escrow. Held, that the former judgment, while conclusive of the validity of the instrument, did not bar proof of the mental attitude of the father in relation to any possible claim of title.
    3. Same — Charge—Instructions as to Burden of Proof — Evidence.
    In an action of ejectment instructions that the burden was on defendant to convince the jury by a “fair” preponderance of the evidence that the adverse holder had occupied the premises long enough to acquire title, while objectionable, because the court employed the word “fair,” were not so prejudicial as to require reversal of the judgment for that cause.
    4. Evidence — Res Judicata — Former Judgment — Ejectment.
    It was error to receive in evidence the files, records and judgment entry of a «former judgment in ejectment in the same cause, between the same parties; while it might be competent to show the defendant’s omission to claim title by adverse possession at the first trial, as affecting her good faith in afterwards setting up that claim, the prior judgment ought not to have been brought to the notice . of the jury; and it was not necessarily final of the issues raised upon the new trial.
    Error to Berrien; Barton, J., presiding.
    Submitted January 13, 1915.
    (Docket No. 77.)
    Affirmed December 21, 1915.
    Reargued June 6, 1916.
    Former opinion reversed July 21, 1916.
    Ejectment by Ida Newland Tyler against Addie Wright, Louis Pector, and Jacob Goodman. Judgment for plaintiff. Defendants bring error.
    Reversed.

      W. C. Hicks and W. J. Barnard, for appellants.

      Gore & Harvey, for appellee.
   Bird, J.

Plaintiff filed a suit in ejectment to recover the possession of a portion of lot 6, block 23, as shown by the original plat of the village (now city) of Benton Harbor. Judgment passed in her favor, and the defendants insist in this court that the judgment ought not to stand because of errors in the trial court.

It was conceded that John Thomas, Sr., owned the premises in fee, and that in May, 1863, he conveyed them to his wife, Katherine I. Thomas, who died intestate in August, 1885, leaving two children, a son and a daughter. The interests of these children were acquired by plaintiff, and are the basis of her claim in this suit. Defendant Addie Wright was in possession of the premises, and claimed the right to retain them by virtue of a life lease which she claims was executed and delivered to her by John Thomas, Sr., a short time prior to his death in August, 1901. She was unable, however, to produce the life lease upon the trial by reason of its having been mislaid or lost, but, instead, offered parol proof of its contents. For the purpose of showing the strength of the life lease, it was the claim of the defendants that John Thomas, Sr., had himself occupied said premises as his home and business place for many years, and that he acquired title thereto by adverse possession during the 16 years which elapsed between his wife’s death and his own. It was conceded that plaintiff had the record title. For a further history of the litigation, see 164 Mich. 606 (130 N. W. 205) ; Id. 171 Mich. 579 (137 N. W. 212). The issues in the trial court were two: Did John Thomas, Sr., acquire title to the premises by adverse possession? Did John Thomas, Sr., execute a life lease to defendant Addie Wright?

1. The first assignment of error relates to the refusal of the trial court to submit five special questions tendered by defendants. The two about which the most complaint is made are:

(a) “Was John Thomas, Sr., from the death of his wife in 1885, up to the time of his death in 1901, in the actual, continued, visible, notorious, distinct, and hostile possession of the premises described in plaintiff’s declaration?”

(6) “Did John Thomas, Sr., prior to his death, make and deliver a life lease of the premises mentioned in plaintiff’s declaration to Addie Wright?”

Had question (a) been submitted and answered in the affirmative, it would not have been inconsistent with the general verdict, because the inference would have been that the jury concluded that the life lease was not made and delivered to Addie Wright. Had question (5) been submitted and answered in the affirmative, no inconsistency would have followed, because the inference would then have arisen that the jury concluded that John Thomas, Sr., did not acquire title by adverse possession. Neither question, standing by itself, calls for an answer which would have been controlling. Under the statute which allows the submission of special questions they must be so framed as to call for an answer which may be controlling of the main issue. Balch v. Railroad Co., 78 Mich. 654 (44 N. W. 151) ; Cousins v. Railway Co., 96 Mich. 386, and note (56 N. W. 14) ; Wells v. Railway Co., 184 Mich. 289 (151 N. W. 630).

As the other questions tendered. were subject to the same infirmity, they need not be considered. We conclude that the refusal of the trial court to submit the questions tendered was not error.

2. The admission in evidence of a deed of these premises from Katherine I. Thomas to her daughter, Katherine Sullivan, in December, 1880, is the basis for an assignment of error. After her mother’s death Mrs. Sullivan claimed title to these premises by virtue of this deed which it was claimed had been delivered to her father, with instructions from her mother to deliver it to her. Her brother contested her claim, and was successful in defeating it in this court, on the ground that the proofs failed to show that the deed had been delivered to her father for her benefit. Thomas v. Sullivan, 138 Mich. 265 (101 N. W. 528).

Plaintiff’s counsel offered this deed, and it was admitted against defendants’ objection, together with certain statements made by John Thomas, Sr., concerning the deed. The objection to its admission was based upon the invalidity of the deed, it having been so determined by this court, and that therefore it was res adjudieata, and could not be again litigated. At the time the deed was offered counsel for the plaintiff stated that it was offered for the purpose of showing the mental attitude of John Thomas, Sr., and not for any other purpose. The trial court, in submitting the case to the jury, guarded it with this instruction:

“At the expense of repetition I may again call your attention to.a certain bit of testimony which was admitted and which I will charge you concerning, that concerning the deed, which is argued pro and con, was offered and relied upon, and finally annulled by the Supreme Court. It matters not to you as to whether the .Supreme Court nullified and set at naught that deed. The circumstances of the bringing together of the witnesses, and the discussion in the presence of John Thomas, Sr., and by him, of the deed itself, was allowed to show the mental attitude of John Thomas, Sr., with reference to the title of that land. Now, it was offered for that purpose, and no other. * * * For the purpose of giving you the opportunity of weighing his mental attitude so far as shown by that circumstance that evidence was offered and was admitted, and for no other purpose.”

If the purpose of offering it had been to retry the old issue, undoubtedly counsel’s objection would have been well taken. But it was not offered for that purpose. It was offered for the purpose of showing that what John Thomas, Sr., said with reference to the deed at that time was inconsistent with the claim that the defendant was making for him that he claimed to own the premises. We think the testimony was competent for that purpose.

3. Exception is taken to that part of the charge in which the trial court said to the jury that it was the duty of the defendants to convince them by a fair preponderance of the evidence that John Thomas, Sr., acquired title to the premises by adverse possession. It is argued that, by qualifying the word “preponderance” by the adjective “fair,” the jury were given to understand that something more than a preponderance of the evidence was necessary. The propriety of qualifying the word “preponderance” when used in a charge has been many times considered by this court. In Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668), the language of the trial court complained of was that “the proof must be clear and conclusive.” In Monaghan v. Insurance Co., 53 Mich. 238 (18 N. W. 797), the court instructed the jury that “perhaps they ought to be well satisfied of the truth of the charge.” In Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231), the language complained of was “a clear preponderance of evidence.” In Worden Lumber, etc., Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949), the jury were told that “plaintiff must establish by a preponderance of evidence clear and well defined.” In Silverstone v. Assurance Corporation, 176 Mich. 525 (142 N. W. 776), the objectionable language was “proof which clearly convinces.” In all of these cases the language was held to be objectionable, on the ground that the jury might have been misled into believing that it required something more than a preponderance of the evidence to establish the fact. It is carrying the refinement too far, we think, to say that the jury in this case were misled into a similar belief by the use of the word “fair.” While it is true that there is a slight shade of difference between “preponderance” and a “fair preponderance,” the qualification is so slight that we can hardly presume that the average jury could be misled by it. It undoubtedly would have been better had the qualifying word been omitted, but we are not prepared to say that in this case it was serious enough to call for a reversal.

We find nothing in the remaining assignments which calls for a further consideration of the case.

The judgment of the trial court is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.

On Rehearing.

Bird, J.

Upon the rehearing in this case, counsel for defendants questioned the rule laid down by this court for the submission of special questions to the jury. In holding that the trial court was not in error in refusing to submit the proffered questions, it was said in the opinion:

“Neither question, standing by itself, calls for an answer which would have been controlling. Under the statute which allows the submission of special questions they must be so framed as to call for an answer which may be controlling of the main issue.”

We were persuaded by the discussion had upon the rehearing that this construction given the statute (3 Comp. Laws, § 10237) was rather too restricted. While no express construction of this phase of the statute appears to have been made by this court, we are of the opinion that if the questions proposed, taken singly or as a whole, call for findings which might be controlling of the main issue, they should be submitted by the trial court. The questions in controversy, which are set out in the opinion, taken together, come within this rule, and therefore should have been submitted. The statute appears to be mandatory that questions shall be submitted if proper in form and substance. Zucker v. Karpeles, 88 Mich. 413 (50 N. W. 373). For this error the judgment'must be set aside and a new trial granted.

Inasmuch as the case must go back for retrial, another question will be adverted to. The files and judgment entry of a former judgment in ejectment between the same parties with reference to the same premises were received in evidence and read to the jury, over defendants’ objection. Their admission was urged upon the ground that they showed the bad faith of the defendant Wright in claiming that her grantor had . title by adverse possession, because she had not made that claim on the former trial, and for the further reason that it was a link in the chain of plaintiff’s title. As bearing upon the good faith of the defendant, we see no objection to plaintiff showing by the pleadings or by the cross-examination of defendant that she did not make that claim on the former trial, but we doubt the propriety of permitting the judgment to be read to the jury. The jury should not be advised what the outcome of a former trial was, unless some good reason exists therefor, and,none is apparent here. The record of the judgment was not competent on the other ground assigned, because a single judgment in ejectment is not necessarily final. Rice v. Auditor General, 30 Mich. 12.

Defendants will recover their costs in this court.

Brooke, C. J., and Person, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    BAKER v. KAMANTOWSKY.
    1. Sales — Evidence—Inspection—Official Acts.
    In an action for the conversion of a quantity of pork which defendant claimed had soured or spoiled and consequently deteriorated in value, evidence that the municipal inspector had inspected it three days after the delivery and condemned a portion was inadmissible, though the court properly allowed testimony to be received that it smelled bad and was in poor condition.
    2.. Trial — Appeal and Error — Jury—Argument.
    Counsel’s statement, in the course of arguing the cause to the jury, in an action for the conversion of certain meat, that in the sale of an article of food, a warranty was implied by the law that the article was ñt for the purpose for which it was sold, was inapplicable, and where the court so advised the jury, the appellant was not prejudiced by the ruling, on the ground that he should have been permitted to state his theory to the jury, the rule of law having no proper application to the issues unless it related to defendant’s contention that he had purchased the pork of a wholesale dealer in meat, in which event the rule of caveat emptor would apply as the testimony was undisputed that he was not a consumer but a retail dealer, and had an opportunity to inspect.
    '3.- Same — Caveat Emptor — Sales—Warranty.
    Upon the sale of food by one dealer to another with full opportunity to make an inspection, the law does not imply a warranty of fitness or quality.
    Error to Kent; Connine, J., presiding.
    Submitted January 26, 1915.
    (Docket No. 63.)
    Decided December 21, 1915.
    Trover by Volney Baker against Joseph Kamantowski for conversion of a quantity of pork. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Don E. Minor, for appellant.

      Rodgers & Rodgers, for appellee.
   Bird, J.

Plaintiff, a farmer, Contracted in the fall of 1913 to sell his dressed pork for 10 cents per pound to one Katz, a retail meat dealer in the city of Grand Rapids. A few days after Thanksgiving he killed the hogs, and on the following day delivered them to Katz; but he refused to accept them by reason of the fact that some of them had begun to sour. Plaintiff thereupon placed the pork in the refrigerator of Swift & Co., who were wholesale meat dealers. The understanding under which they were left there is in dispute. Plaintiff returned in a few days thereafter, and found that the hogs had been sold to the defendant, a retail meat dealer, by Swift & Co. He went to defendant’s market and demanded payment, and after-wards demanded the pork. Both demands were refused, and he brought this suit in trover to recover their value. The defendant took the position that he purchased the pork of Swift & Co. for 9½ cents per pound; that upon delivery he discovered that some of the hogs had commenced to sour, and he called Swift & Co.’s attention to it, whereupon the consideration was reduced to 5 cents per pound. This amount defendant was willing to pay. Plaintiff insisted that the hogs were sold without his knowledge, and that he had never authorized Swift & Co. as his agent to sell the pork; that he had simply placed it in their refrigerator in an attempt to overcome the sourness. The trial court left it to the jury to determine which of these two conflicting claims was the true one. They found for the plaintiff on the basis of 9½ cents a pound for the pork.

1. The defendant called the meat inspector, the driver of the garbage wagon, and the city inspector of the city of Grand Rapids, and attempted to show by them that the meat was inspected three days after it was delivered to defendant, and that some of it was condemned and destroyed. The trial court refused to receive this testimony, and defendant argues that its rejection was error. The important thing to be shown was its condition, as bearing upon its value. The trial court permitted these officials to testify as to the condition of the meat, and how it smelled. What official action was taken by them under the ordinance based upon this inspection was not important in this case under the issues as made.

2. While defendant’s counsel was addressing the jury, the following colloquy took place:

“Mr. Rodgers: I desire to object to the statement of counsel for the defendant, as just made to the jury, that there is an implied warranty of the pork in question.
“Mr. Minor: I have just stated to the jury what I understand the rule of law to be.
“The Court: I heard the statement.
“Mr. Minor: I want to get it on the record, your honor; if he wants his objection on there, I want it full.
“The Court: All right.
“Mr. Minor: That in the sale of an article of food, known to be used or going to be used for that purpose, there is an implied warranty that the article is fit for the purpose for which it was sold or intended to be used.
“Mr. Rodgers: I desire to object to that statement, and ask the court to tell the jury not to consider it.
“The Court: Well, speaking generally, that is the law; but I do not think that doctrine applies to the facts in this case.
“Mr. Minor: I take an exception.
“The Court: And it is an error to argue it to the jury.” „

Counsel assigns error because he was not permitted to “state to the jury what he understood the law to be as applied to the facts.” The record shows that counsel did state his theory of the law to the jury, but the court said to them that the rule stated did not apply to the facts in the case. It is quite evident that the court would not have made the ruling at that time, had not counsel invited him to do so by restating his theory and indicating a desire to make a record of it. Counsel also takes issue with the trial court as to the applicability of the law to the facts. It appears to us that the court was right in stating that such rule of law did not apply to the facts. The only application that principle could have would be under defendant’s theory; that theory was that Swift & Co., a wholesale dealer in meats, had sold the hogs to a retail meat dealer. This would be a sale by one dealer to another, and not a sale to a consumer. Under such circumstances the rule of caveat emptor applies, if the purchaser had an opportunity to inspect the meat, which he did in this case. Hoover v. Peters, 18 Mich. 51; Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690). See, also, Uniform Sales Law, § 15 (Act No. 100, Pub. Acts 1913).

We feel that a further consideration of the numerous assignments is unnecessary. We have given them careful attention, and they appear to be without merit. An examination of the record and briefs impresses us that the large number of assignments is principally due to the failure of defendant to recognize that plaintiff had his theory of the case, and had a right to have it submitted to the jury on his theory. It was conceded that the hogs belonged to the plaintiff, and it was likewise conceded that the defendant had the hogs and had not paid for them. If plaintiff’s claim were true, that Swift & Co. had no authority to sell the hogs to defendant, he was entitled to recover from defendant the value of the hogs at the time when they came into his possession; and this would be true, even though Swift & Co. assumed to have the authority to sell the hogs and did sell them to the defendant. On the other hand, if plaintiff authorized Swift & Co. to dispose of the pork, and in pursuance of this authority it after-wards sold it to the defendant, the plaintiff would be bound by such sale. The trial court, in a very excellent charge, submitted these two. conflicting theories to the jury, and they have found for the plaintiff, and their determination must be conclusive of the questions of fact.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

The.late Justice McAlvay took no part in this decision


author: Ostrander, J.

text:
    PURDY v. CITY OF SAULT STE. MARIE.
    1. Municipal Corporations — Cities—Workmen’s Compensation —Repeal oe Charter.
    It is provided by Act No. 10, Extpa Session 1912, that cities shall be subject to the regulations as to workmen’s compensation, and that all acts and parts of acts inconsistent with the statute are repealed. The city of Sault Ste. Marie is governed by and under a charter enacted by the legislature which contains no provision for the payment of claims of such character. In the title to the workmen’s compensation law it is indicated that liability of employers for injuries to their employees is included. Held, that the title, though general, is sufficient to include municipal corporations if they are employers, and that defendant might lawfully provide funds for the payment of awards.
    2. Same — Powers of Cities.

      Held, further, that the title of the statute is sufficient to warrant the repeal of charter regulations in existence at the time the statute went into force.
    3. Same — Written Notice — Master and Servant.
    Under section 18 of the act containing provisions that want of notice in writing shall not bar the proceeding for an award if the employer had notice in fact, testimony showing that the superintendent of public works knew of the accident within a few days, that he brought the claim to the attention of the board of public works, and various city officers knew of the accident, sufficiently met the requirements, and, on giving written notice and bringing his claim to the attention of the city within six months, he was entitled to the benefit of the law.
    Certiorari to the Industrial Accident Board.
    Submitted April 14, 1915.
    (Docket No. 93.)
    Decided December 21, 1915.
    William Purdy presented his claim for compensation under the workmen’s compensation act for injuries sustained as an employee of the city of Sault St. Marie. An order was entered awarding compensation. The award is reviewed by the said city on certiorari.
    Affirmed.

      Lawson C. Holden and John A. McMahon, for claimant.

      F. T. McDonald, for defendant.
   Ostrander, J.

The claimant, Purdy, was employed by the city of Sault Ste. Marie as a street sweeper. He was run down and injured by a conveyance using the street. An award by arbitrators, approved by the Industrial Accident Board, is questioned in this proceeding, the contentions of the city being:

“I. Act No. 10, Pub. Acts 1912, Extra Session, does not apply to municipalities, and appellant is not subject to its provisions.
“II. Said Act No. 10 is compulsory as applied to municipalities and therefore in violation of article II section 1 of the Constitution of Michigan.
“III. To compel payment of compensation under said act would deprive appellant of its property without due process of law.
“IV. Said act makes municipalities insurers of its employees and compels payment of compensation whether or not the injury is the result of any negligence on the part of the municipality.
“V. The legislature is without constitutional power to enact such a compensation act as applying to municipalities.
“VI. The award cannot be sustained because no claim for compensation or notice of injury was presented to' or filed with the appellant as required by Act No. 10, Pub. Acts 1912.”

In argument it is said that the city is governed by a charter granted by the legislature, and, pointing out its provisions relating to the presenting, allowance and payment of claims against it, no authority is to be found for the payment of the award; that the compensation act, so called, contains no provision for paying the award; that the title to the said compensation act does not give notice of any intention to supersede the charter.

In Wood v. City of Detroit, ante, 547 (155 N. W. 592), decided herewith, this point was not presented, and is not referred to in the opinion. However, in considering that case we had the advantage of the briefs in the case at bar and are of opinion that the charter provisions of cities with respect to claims which may be made under the act here in question are superseded by the provisions of the act. Section 5 of part 6 of that act expressly repeals “all acts and parts of acts inconsistent with the act” and “replaced by this act.” The title of the act mentions and indicates that its provisions relate to “liability of employers for injuries or death sustained by their employees.” It is general, as titles of acts must be, and is broad enough to include municipal corporations if they are employers. Our view of the act, as expressed in the opinion in Wood v. City of Detroit, answers the contention that the plaintiff in certiorari may not provide the funds necessary to pay awards made under the act. The other points, except the last, are answered in the earlier opinion.

Upon the last point we have reviewed the testimony. The claimant was hired by Patrick Brady, who was superintendent of public works of the city. He had charge of work on streets. Mr. Brady saw claimant the second or third day after the injury at the hospital' and was told by claimant that while sweeping the street a “rig” ran over him. Mr. Brady mentioned the matter to the board of public works, consisting of the mayor and two members appointed by the council, and in a general way the matter was discussed. An aider-man of the city heard of the injury, called at claimant’s house and told claimant he would take the matter up with the council. He referred to the case in the council, but made no motion. The first written notice of a claim for compensation was addressed to Mr. Brady as “City Commissioner,” is dated April 22, 1913, was served upon Mr. Brady on or about that date, and recites that the injury occurred September 25, 1912. It was brought into the office of the city recorder by some woman May 5, 1913, and left there without any oral statement. It was laid before the council the evening of that day and referred to the city attorney for a report. On May 19th the attorney filed his report. It is conceded that he reported nonliability of the city. Later, on December 1, 1913, a copy of a notice of application to the Industrial Accident Board was served upon the city., Objection was duly made by the city before the arbitration committee to arbitrating the claim. Upon an appeal from the award of the committee the board, upon a transcript of the testimony and the objections thereto made by the city, affirmed the award. To the arbitration committee the city objected to the arbitration “on the ground that no notice of injury was served on” it. The committee disposed of the point, as appears by a written opinion, in the following manner:

“The act in question provides for notice being served upon the city within three months after the happening of the injury, and notice of a claim for damages under the act within six months after death or the removal of physical or mental incapacity. Section 18 of the act provides: ‘Want of written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.’ The testimony discloses that the city officers and members of the common council generally had notice of the injury, in ample time. That no specific notice was officially served upon them until after the expiration of three months must, I think, also be determined from the evidence. However, the object of a notice is to prevent fraud and to permit the city authorities to collect its evidence before the parties having knowledge of the same are scattered and this knowledge lost. I think that it has been sufficiently shown that the city, in its official capacity, and nearly all of the city officers (including the board of public works), had knowledge of the injury, and more or less desultory consultation and conferences had respecting it. I believe this notice to be sufficient. The claim for injury was filed, or left with the recorder, within six months from the date of the injury.”

Upon the subject of notice of injury the statute, in part II, provides:

“Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.
“Sec. 16. The said notice shall be in writing, and shall state in ordinary language the time, place and cause of the injury; and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf.
“Sec. 17. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering said notice to the person on whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to the person or corporation on whom it is to be served, at his last known residence or place of business.
“Sec. 18. A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the inj ury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.”

The notice referred to in section 16 is, clearly, the notice required by section 15 to be given. The word “within” must be supplied in section 15, making the section read:

“Unless a written notice of the injury shall have been given to the employer within three months after the happening thereof.”

No such notice was given. It is apparent, however, that the employer had notice and knowledge of the injury within the shortest period named in the act and, giving effect to section 18 in accord with the evident legislative intent, the claimant was not barred this proceeding.

It follows that there is no error, and that the award must be affirmed.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay took no part in this decision.


author: Stone, J.

text:
    STROH v. BAUMAN.
    Appear and Error — Subrogation.
    Defendant appealed from the decree of the circuit court in chancery entered after the cause had been remanded for modification of the decree settling the affairs of an estate following an appeal to the Supreme Court. He claimed that he was charged with $377.74 for the benefit of complainant that was no proper obligation of and in no way related to the affairs of the estate; that the money was an advance by complainant for his personal benefit, in the adjustment of a private timber purchase and other similar deals. The decree entered on the first appeal contained the provision that complainant and appellant were entitled to liens on the property in question to the amounts of their respective contributions and that the parties should he entitled to he subrogated to the rights of creditors of the estate having liens upon the real property in question. And the final order provided that if it should appear that any part of the contributions of either party was not contributed for the benefit of the estate the court might'make deductions and compute the proportions accordingly. The final decree was entered in the circuit court without making deductions and computing proportions, as ordered by tbe appellate court, and It is held that tbe decree should be modified to conform to tbe former bolding of tbis court, and a deduction be made under tbe unconflicting testimony from tbe amount to be credited to complainant.
    Appeal from Ottawa; Cross, J.
    Submitted April 14, 1915.
    (Docket No. 83.)
    Decided December 21, 1915.
    Bill by Conrad Stroh against Joseph Bauman and others to be subrogated to the rights of mortgagee on property of the estate of Dominic O’Hearn. From a decree for complainant defendant Bauman appeals.
    Modified.

      Farr, Kolyn & Farr and Smedley & Linsey, for complainant.

      Charles E. Soule (C. Edward Soule, of counsel), for defendant Bauman.

      Hatch & Raymond, for other defendants.
   Stone, J.

This is the second appeal in this case. Upon the first appeal the opinion was written by Chief Justice Steere, and is reported in 176 Mich. 164 (142 N. W. 865). That opinion contains such a full and clear statement of the case and the position and rights of the parties, that it will be only necessary to here say briefly that Dominic O’Hearn died testate on September 7, 1898, owning a farm of 180 acres of land in Ottawa county. By his last will and testament he gave and devised all his property, real and personal, except a span of horses, to his wife, Margaret O’Hearn, for life, and after her death the 120 acres south and west of the State road to his son John O’Hearn for life, and the 60 acres north and east of said road to his son Martin O’Hearn for life, and after their death to their heirs; also legacies of $500 each to his daughters Minnie and Agnes, and $1 each to his daughters Lizzie and.Maria, “to be paid from the proceeds of the farm as soon as it will admit, or at the pleasure of my wife, Margaret O’Hearn, should she survive that long, but in no case shall a payment be put off to exceed the term of five years.” For money to pay the debts and expenses of administration, mortgages were given by the administrator by authority of the probate court to Charles E. Chappell, $1,000 on the 60 acres willed to Martin O’Hearn, and $1,050 on 80 acres of the land willed to John O’Hearn. The administrator de bonis non, having obtained license therefor, sold a strip of land 3 rods wide from the 60 acres north and east of the State road and adjacent to it to an interurban railway for $150, and to Frank O’Hearn 40 acres of the 120 which had been willed to John O’Hearn for life. Interest was not paid on the mortgages, and foreclosure was had in chancery, and a decree taken by Mr. Chappell, acting by the same solicitor who represented the complainant in this case. The 60 and 80 acres were likely to be sold on the foreclosure, which would close out the devisees of the land and the legacies. The legatee Minnie was the wife of complainant, Stroh. Defendant Bauman, a neighbor, had been solicited to buy the 60 acres. It was talked over between Stroh, John and Martin O’Hearn, and Bauman that the latter should buy the 60 acres from Martin, pay $2,200 for it on the mortgages, and Stroh was to take a mortgage for $1,300 on John’s remaining 80 acres and pay the rest of the mortgages and legacies, and John was to deed one-half of the 80 acres to Martin to compensate him for his deeding the 60 acres to Bauman to pay the mortgages. After this talk they met at Mr. Farr’s office (Chappell’s solicitor) on March 19, 1904, at which meeting Martin O’Hearn and wife deeded the 60 acres to Mr. Bauman by warranty deed, which amount, $2,200, Mr. Bauman secured Chappell on his mortgages. John deeded the undivided one-half of the 80 acres to Martin, and they two made a mortgage to Mr. Stroh for $1,300. Stroh paid the balance of the mortgages to Chappell, he paying $245.26, making the total amount of the mortgages $2,445.26. (The opinion gives this amount as $2,-309.99, and in settlement of the decree it was made $2,445.26 on account of interest being added, $3,425.26 being the amount given, with $2 added for legacies paid by Stroh.) Stroh paid the two $500 legacies to his wife and her sister, and $1 each to the other sisters, making $1,002 paid by him of the legacies, instead of $1,000, as stated in our decision.

All parties to this transaction acted in the honest belief that Martin and John O’Hearn were devised the land in fee. Stroh also paid at this meeting in Farr’s office $30 to Mr. Farr and the rest of the money, making his $1,300 mortgage to Martin O’Hearn; in other words, he paid the balance of the mortgage to Chappell, $245.26; he paid the legacies, and paid Mr. Farr $30 and Martin O’Hearn $22.74. This makes paid by Bauman to Chappell for the 60 acres $2,200, and by Stroh to Chappell on mortgages $245.26, and by Stroh on legacies $1,002 — total, $3,447.26 — which is the amount decreed by the circuit court as paid on the valid liens against the estate.

The decree as settled in this court upon the former appeal contains the following recital:

“And it further appearing that on the 19th day of March, 1904, said complainant, Conrad Stroh, contributed the sum of $1,625 and defendant Joseph Bauman contributed the sum of $2,200 to the fund of $3,825, of which fund $3,445.26 was apparently applied in liquidation of valid liens against the said estate of Dominic O’Hearn, deceased, and that the said Conrad Stroh and Joseph Bauman became secured creditors of said estate to the amount of said liens, and that they are now entitled to liens against said estate in proportion to their respective contributions thereto as hereinafter set forth.”

The decree also contained the following provision:

“That for the purpose of a determination of the respective amounts of the liens of Conrad Stroh and Joseph Bauman, this cause may be placed on the calendar of the Ottawa circuit court, in chancery, for the November, 1913, or any subsequent term thereof, upon giving the usual notice of hearing required by the rules and practice of said circuit court, and said court shall, in such proceeding, determine the amount of the respective liens of said parties, said Conrad Stroh and Joseph Bauman to be entitled to a lien to the amount of their respective contributions to said fund of $3,-445.26 in proportion to the contributions to the fund of $3,825, of which said Joseph Bauman contributed $2,200 and the said Conrad Stroh contributed $1,625, subject to the following increases and deductions; that in the determination of said liens said court shall allow interest to said parties at the rates borne by the mortgages to which they are subrogated, and at the legal rates as to the legacies, from March 19, 1904, upon the amount of their proportionate contributions to said fund of $3,445.26; provided, however, that if it shall be made to satisfactorily appear that any part of said contribution of either of said parties was not contributed for the benefit of said estate, the court may make deductions and compute the proportions accordingly.”

Upon the final hearing in the circuit court under the above reference and from which decree this appeal is taken, a controversy arose as to the amount which was contributed by the complainant for the benefit of the said estate. The supposed facts upon which the decree of this court is based with regard to a “fund” of $3,825, to which Mr. Bauman is held to contribute to Mr. Stroh’s benefit beyond the $2,200 paid for the 60 acres and in payment of the obligations of the estate, are found in certain allegations in the original bill of complaint, and in the answer thereto, and in the stipulation filed upon the original hearing in the case. Upon these supposed facts the decision and the decree of this court were made. By the decree from which this appeal is taken Mr. Bauman is held to contribute to Mr. Stroh a proportion of his payment, he paying $2,200 and Mr. Stroh $1,247.26 on the actual obligations of the estate, on the $3,825 “fund,” made up of the $3,447.26 paid on the estate obligations and the $325 paid by Stroh for the timber deed from Martin and John O’Hearn, and $30 paid by him to Mr. Farr, and $22.74 paid by him to Martin O’Hearn, which, it is the claim of Mr. Bauman, were Stroh’s own private deals with the parties, and not paid on the obligations of the estate in the total amount of $377.74. This brings us to the one matter contained in this appeal. The record states Mr. Bauman appeals only on matters decided in the final decree as follows:

(1) “From the combining of the $1,002 contributed by Stroh for the payment of legacies, on which the interest rate is 5 per cent., with the $2,200 contributed by Bauman and the $245.26 contributed by Stroh for the payment of the Chappell mortgages, on which the interest rate is 6 per cent. This combination benefits Stroh to the extent of more than $100 in interest, and deprives Bauman of same, which is contrary to the Supreme Court decree as to interest rates on the respective contributions of said parties.”

(2) “From including in the amount to which Stroh is subrogated the $325 paid by Stroh for the timber deed; the $30 paid by Stroh to Mr. Farr for drawing papers; the $22.74 balance paid by Stroh to Martin O'Hearn. These amounts aggregate $377.74, which, with interest for ten years, is credited to Stroh and taken from Bauman contrary to the Supreme Court decree, none of said payments having been made for obligations of the Dominic O’Hearn estate.”

Some incongruities or inconsistent clauses are to be found in the pleadings and stipulations of the parties and the finding by this court with reference to the “fund” of $3,825. It should be borne in mind that, when the original bill was filed in this case, the object was to subrogate Mr. Stroh and Mr. Bauman to rights which it was claimed they had obtained by reason of paying the mortgages and the legacies which were a lien upon the estate of Dominic O’Hearn, deceased, and there was no conflict between them. In that bill Mr. Bauman is made a defendant; and, after alleging the payments of the mortgages and legacies, the fourteenth paragraph of the bill reads as follows:

“And your orator further says that thereupon the said sum of $2,200 so paid by the said Joseph Bauman and the said sum of $1,300 and $325 so paid by your orator were used and expended in the payment of said two mortgages and notes so given to the said Charles E. Chappell, and in the payment of the said legacies to the said four daughters of the said John (Dominic) O’Hearn, amounting to the sum of $1,002.”

While by the decree of the court below, from which this appeal is taken, it is found, as a fact, that the liens which were paid were $3,447.26, consisting of the mortgages, with interest and costs, of $2,445.26, and legacies of the sum of $1,002, which were used for the purpose of discharging valid liens and claims against said estate, and that said Stroh and Bauman are entitled to a lien on the proceeds of the sale of the real estate belonging to said estate for that sum, yet by reason of including the $325 of the timber deal and other items which were not a lien upon the estate the so-called “fund” of $3,825 is created.

It is true that the bill alleges that at the meeting on the 19th day of March, 1904, the arrangement was made by which Martin O’Hearn was to convey to Bauman the premises devised to him in said will for the sum of $2,200 and the timber upon a portion of said premises to “your orator” for the sum of $350, etc., and the answer of Bauman admits the correctness of this allegation. Again, the fourteenth paragraph of the original bill, which we have above quoted, is also admitted by Bauman to be true; and yet it nowhere appears in this record that the $325 paid by Stroh in the timber deal and the other items named were ever a lien against the estate of Dominic O’Hearn. Upon the original hearing of the case a stipulation was filed containing substantially the same statement. Upon turning, however, to the opinion of this court, we find it was distinctly held that the timber deed to Stroh made by John and Martin O’Hearn authorized waste of the fee; and was invalid. Turning to the proceedings upon the original hearing in the circuit court we find the following:

“The Court: That timber deal, as I understand you to say, that didn’t amount to anything, anyway?
“Mr. Farr: No; that didn’t amount to anything. * * *
“Mr. Farr: The point is this, as I have always looked at it, of course, there could be no subrogation in this case except as to money that was used to pay the debts of the estate, and those debts, so far as they are in proof here, as I understand as paid, was this Chappell mortgage and these legacies. I don’t claim anything more than that, because I don’t think we have any proof of any.”

Upon the original hearing the matters that seemed to be most in controversy were the amount of improvements which had been made'upon the premises by Mr. Bauman and the value of the use of the premises, and the amount paid for taxes. Upon settlement of the decree in this court the following clause was inserted upon the motion of counsel for defendant Bauman, to wit:

“Provided, however, that if it shall be made to satisfactorily appear that any part of said contribution of either of said parties was not contributed for the benefit of said estate, the court may make deductions and compute the proportions accordingly.”

The case having gone bacx to be heard upon these matters, it appears by the uncontradicted testimony of both Stroh and Bauman that the $325 had nothing to do with the liens against the estate of Dominic O’Hearn. Upon that subject Stroh testified, among other things, as follows:

“I recollect theconference at Mr. Farr’s office March 19, 1904; was present at it. We were trying to settle the estate and straighten out the 80 and 60 with John and Martin O’Hearn. I recollect how it was settled. I furnished $1,300, and Bauman $2,200. I got a mortgage for my $1,300 from John and Martin O’Hearn. No other money was raised at that time. I did not contribute anything more at that time. John O’Hearn sold timber to Adams of Grand Rapids before we made this deal. I paid Adams and Hart and took a second mortgage on the place signed by John and Martin O’Hearn together. That was not discussed at the meeting at Farr’s office. That was made about a year or so afterwards, I believe. I can’t tell exactly when it was. I believe it was discussed at Farr’s office. I don’t understand that it was a part of the fund that we were raising there. I don’t think we talked about it then. I don’t remember if we did. I don’t remember exactly that it was talked there that they had a timber deed on that property. I think it was a year or so later when we talked the timber deed over. * * * There was no money raised at that time. That $325 was not paid to anybody at that time. I paid it to Adams and Hart, of Grand Rapids, implement dealers there, but it is all recorded. I don’t know just when it happened. I ain’t certain that that $325 was a part of the discussion in Farr’s office when the other deal was fixed up. I know we fixed it up afterwards; I don’t know how long. I let them have the $325.”

On cross-examination he testified:

“I don’t remember if we talked over raising this $325 at the meeting at Farr’s office March 19, 1904. I don’t remember if we talked about it; we might have. I don’t remember whether the $325 for the timber deed, in order to clear the item which Hart and Adams had against it, was talked over and considered or not at this transaction of March 19, 1904. I don’t think it was a mortgage of $325. I think I furnished a little more money. I can’t tell what the mortgage was now. What I took for the $325 was timber deed signed by John and Martin and Martin’s wife. It is on record! here. I don’t think there was a mortgage for $325. * * * I paid at the conference at Farr’s office $1,002 legacies — $500 to one daughter, my wife; $500 to Agnes, another daughter; and $1 each to the two other daughters. Whatever was due to Dr. Chappell was paid; I don’t remember how much. Bauman paid just about $2,200. I paid the rest. Whatever it was we paid and settled it that way. They settled it up, paying the debts against the old man O’Hearn estate and legacies. The $325 timber deal was a matter I settled for John O’Hearn. He had that money from Adams and Hart. That was not paid on any of the debts of the estate, but John sold the timber and gave Adams and Hart a timber deed. I paid Adams and Hart the money, and they turned the timber deed over to me, and later I took a mortgage from John [and] Martin for $600, and gave up the timber deed, and I paid them some money, whatever that figured up, interest and all. There was nothing in the timber deed except John had the money from Adams and Hart and I took it up. I think they owed some debt there. The Mrs. [Margaret O’Hearn] was alive then. I think they owed probably $100 or $200, and Adams and Hart gave them the balance in money. They owed for a horse or tools, or something like that. It wás not the old man O’Hearn’s debt at all; it was a debt on the O’Hearn estate is all.”

Mr. Bauman testified to substantially the same state of facts, and later Mr. Stroh was recalled, and testified further as follows:

“I heard Bauman just testify as to what his understanding was with reference to the meeting at Mr. Farr’s office in 1904. That is my understanding of it. My understanding is that we were together to raise the money to take care of the obligations of the estate —the two legacies and the mortgages.”

It will be observed that there was no conflict in the testimony of these parties with reference to this matter. The facts are shown clearly that at the meeting at Mr. Farr’s office there was no "fund” of $3,825 raised at all; that the "timber deed” was not considered, but was an after consideration and a deal between Mr. Stroh and John and Martin O’Hearn, in which Mr. Bauman had no interest; that deed bore date March 22, 1904, and was acknowledged March 26, 1904; that $2,200 was paid by Bauman and $245.26 by Stroh on the mortgages, and the $1,002 was paid by Stroh for the legacies, making a total of $3,447.26 which was paid on the obligations of the estate, and that amount only. The $30 paid to Mr. Farr, the $22.74 paid to Martin O’Hearn, and $325 for the timber deed paid by Stroh — total, $377.74 — were paid by Stroh in his private deals, and are not a part of any valid claims against the estate.

The court below, after hearing this testimony, did find, as we have above stated, that the amount paid on the liens was $3,447.26 as valid liens against said estate; and it must be said that this is the equivalent of finding that no more was paid as valid liens and claims against said estate; and yet, losing sight of the provision in the decree as settled by this court, and instead of giving Mr. Bauman 6 per cent, on the mortgages paid by him to which he is subrogated as provided in the decree, and Mr. Stroh 5 per cent, on his legacies paid, the amount paid on the mortgages, $2,445.26, and $1,002 on the legacies are figured at 6 and 5 per cent, to March 30, 1914, the date of the decree, and bunched together into one sum of $5,421.38, and Mr. Stroh is given 1625/3825 and Mr. Bauman 2200/3825 of same, being $2,303.21 and $3,118.17, respectively. This error takes away from Mr. Bauman and gives to Stroh $57.24 from the 6 per cent, interest which Mr. Bauman is entitled to on the mortgage to which he is subrogated. Instead of making deductions and computing proportions as required by the decree of this court, and.as shown by the uncontradicted evidence that the $377.74 paid by Stroh to make the $3,825 was not paid for the benefit of the estate, the provision in the decree of this court is disregarded as though this proviso was not contained therein. By this computation Mr. Bauman is compelled to lose, and his money is given to Stroh in the sum of $348.02, making, with the $57.24 in the error in interest, $405.26.' It is for the correction of this error that Mr. Bauman has appealed.

It seems to us, upon an examination of this entire record, that the learned trial judge did not “make deductions and compute proportions accordingly,” as directed in our decree, but the computation is made as though no such provision was contained in the decree. This computation takes nothing from the O’Hearn estate in addition to the circuit court decree. It takes that amount of money ($405.26) from Mr. Stroh and gives it to Mr. Bauman. The amount, therefore, to be deducted from Mr. Stroh’s final credit and added to Mr. Bauman’s final credit, should be the sum of $405.26.

The decree of the court below will be so modified," and in all other respects will stand affirmed. The defendant Bauman will recover his costs in this court from the complainant.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

This case was originally assigned to the late Justice McAlvay.


author: Steere, J.

text:
    BURNS v. ESTATE OF READING.
    1. Compromise and Settlement — Release—Ratification—Fraud.
    In proceedings against a decedent’s estate to secure ’compensation for personal injuries, defendant estate claimed that the injured employee had accepted $250 in full settlement and satisfaction, and had executed a release under seal for his broken leg. The limb, failing to knit, claimant attempted to repudiate the settlement and recover for his injury, which resulted in amputation, charging the physicians with fraudulently misrepresenting to claimant his true condition. He made no complaint of the alleged fraud during upwards of twenty months after the date of the release. Claimant was advised of the falsity of this alleged medical advice within a few days after his executing the release, when his leg was amputated. Another writing was executed by claimant' within a few weeks of the injury, and just before the operation, referring to the compromise and expressly confirming it. Claimant was over 40 years old. He could read and write and was intelligent. Held, that he had ratified the release by long acquiescence and could not repudiate it for fraud after so long a period.
    2. Sam:e — Ratification—Delay.
    One who seeks to rescind a compromise for fraud must act promptly after discovering the wrong and must return the consideration received in full.
    Error to Wayne; Codd, J.
    Submitted June 8, 1915.
    (Docket No. 16.)
    Decided December 21, 1915.
    Fred Burns presented his claim against the estate of Harvey J. Reading, deceased, for personal injuries. From the disallowance of the claim in probate court claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.
    Affirmed.

      William, Jerome Kuertz and Dohany & Dohany, for appellant.

      Dohany & Hersch and Allan H. Frazer, for appellee.
   Steere, J.

This case originated in the probate court of Wayne county where appellant, Burns, filed a claim against the estate of Harvey J. Reading for personal injuries sustained on June 1, 1910, while in the employ of Reading, who then was engaged in the trucking business in the city of Detroit and had a warehouse in which goods were at times stored. On the day of the accident a truck driver named Wilson and appellant, Burns, were sent late in the afternoon to haul some old office partitions from Reading’s office on Wood-bridge street to his warehouse. When they arrived at the warehouse with the load the freight elevator operator at .that building had gone home for the day, but Reading was yet there, and under his instructions the partitions were loaded upon the elevator, of which Reading took charge, and started it with the three men on board for the fifth floor of the building, where it was intended to store the material. Just before they reached the fifth floor the elevator cable broke and the loaded cage with the three men in it fell to the ground floor. Burns and Wilson were seriously injured. The record contains no direct statement as to Reading, though it seems inferable that he was then killed or died soon after, as no mention is made of him alive subsequent to the accident, and only his administrator and other representatives of his estate figure in subsequent events. Burns and Wilson were at once taken to Red Cross Hospital, where they received proper care and medical attention. The bones of Burns’ left leg were bruised and broken in two places between the knee and ankle. He remained in the hospital until the 6th of January, 1911, over seven months, during which time, after the physicians found the bones of his leg would not knit, and two operations had been performed in an attempt to save the limb, it was finally amputated, on November 11, 1910.

The claim was disallowed in probate court, and an appeal taken by claimant to the circuit court, where upon the trial a verdict was directed for defendant. For appellant it is charged that the accident was occasioned by negligence of Reading in not properly managing the elevator; and particularly in failing to seasonably check it before certain projecting portions of the partitions loaded upon it under his supervision came in contact with the roof of the elevator shaft, causing a sudden and heavy strain upon the cable and breaking it. It is also claimed that the cable was worn, crystallized, and weak, so as not to be sufficiently strong to withstand the extra strain which he put upon it by the negligent manner in which he operated the elevator.

In the circuit court defendant filed a plea of the general issue, with notice of settlement of said claim for $250 and payment of the same to claimant in full on July 26, 1910, by Reading’s administrator, which claim was allowed against the estate by the then commissioners on claims, and never appealed, and became absolute long before application for revival of the commission on claims was made and the matter again presented, whereby the same became res adjudicata, and that amputation of Burns’ limb was made necessary because of a diseased condition of his system continuing from previous to the time of his injury and of which he had full knowledge prior to the amputation, to which he consented, at the same time reaffirming the settlement previously made. The court directed a verdict in favor of defendant at the conclusion of appellant’s testimony, on the ground that it conclusively appeared he had settled his claim for all damages against the Reading estate on the 26th day of July, 1910, and was then paid in full according to the terms of said settlement, which he again confirmed in writing and ratified on the 7th day of November, 1910, and, with full knowledge of all the facts, circumstances, and conditions, he had made no complaint, acquiesced in the settlement, and slept upon his rights, if any, taking no steps to rescind for such a period of time that he was barred by delay and laches from prosecuting his claim.

No evidence having been introduced by the defense, only claimant’s testimony presenting his side of the case is before the court. As a verdict was directed against him, his evidence is to be considered in its most favorable aspect, and the question is, when so considered: Does it establish prima facie a cause of action?

It is shown that a Mr. Hawkins, who had been bookkeeper for Reading, and was appointed administrator of his estate, looked after the two injured men, each of whom had a fractured limb. They were taken to the hospital, where they remained and were cared for with proper nursing and medical attention at defendant’s expense so long as their necessities required and until discharged as recovered. Hawkins visited them from time to time, looking after their wants, and showing them various kindly attentions. At about the same time, and before they were discharged, he agreed upon a settlement with each and paid him the agreed amount. Wilson had suffered a broken leg at the ankle, and remained in the hospital two months, as testified by Burns, though other testimony shows a shorter time. For the first two months a Dr. Corville, house physician or surgeon of the hospital, was in charge of Burns’ case and his regular attending physician. He was at times assisted by Dr. Schwanz, who after two months assumed full charge. On July 26, 1910, while Dr. Corville was yet in charge, Hawkins and Burns agreed upon a settlement of any claim the latter might have against Reading’s estate for the sum of $250, which was then paid. Fifty dollars of this Burns sent home, and the balance he had put in the hospital safe for him. At the time of this settlement he signed the following paper:

“Detroit, Michigan, July 26, 1910.
“Know all men by these presents that I, Fred Burns, of Detroit, Michigan, having been injured by the falling of a freight elevator in the warehouse of Harvey J. Reading, now deceased, at the corner of. Sixth and Congress streets, in the city of Detroit, on June 1, 1910, and having received, since that time, medical treatment at the Red Cross hospital in Detroit at the expense of said Reading and his estate, and having made a claim for damages against the estate of said Harvey J. Reading, which claim has been denied by Charles W. Hawkins, administrator of said estate, in consequence whereof a difference has arisen between myself and the said administrator respecting the same, and having, for the purpose of terminating said difference, agreed with the said administrator that I will accept the sum of two hundred and fifty ($250) dollars in full satisfaction and settlement of my claim above stated:
“Now, I do hereby acknowledge that I have this day received from said Charles W. Hawkins, administrator, the sum of two hundred and fifty ($250) dollars, which I hereby accept in full settlement of all claims of whatsoever nature that I have had or may have against the estate of said Harvey J. Reading, deceased, by reason of the injuries received by me as aforesaid, or from any other cause, and in consideration of said medical treatment and said money I do hereby release and discharge the said estate and the said administrator thereof from any and all claim, demand and liability whatsoever.
[Signed] “Fred Burns.”

The broken bones of Burns’ leg refused to knit, and, all attempts to save the limb proving unsuccessful, after a couple of operations and an X-ray examination, it was finally decided by the physician (he then having been in the hospital over five months) that the leg could not be saved, and an amputation was performed, as already stated, on November 11th. Before the amputation Dr. Schwanz, then in charge, discussed the matter fully with Burns, telling him the situation, and that the leg could not be saved, and, after Dr. Cor-ville had also expressed the same view, Burns consented to the operation. Before the operation Dr. Schwanz told him that Hawkins & Harris, defendant’s attorneys, had a paper for him to sign, and proposed that they “talk it over pro and eon,” suggesting that Burns sign it. The paper was handed to him to read, and he subsequently signed and swore to it. The paper is as follows:

“On this 7th day of November, nineteen hundred and ten, I, Fred Burns, make the following statement of facts:
“First. That on June 1, 1910, I received a compound fracture of my left leg, between the knee and ankle joints, in an elevator accident in the warehouse of Harvey J. Reading, now deceased.
“Second. That at the direction of said Harvey J. Reading, I was sent to the Red Cross Hospital for medical treatment.
“Third. That I have since received medical treatment from said institution, -with its physicians in charge, and my limb was treated in the usual manner of fractured limbs expecting that within a reasonable time said limb would'be repaired, all the expense of which treatment has been paid or assumed by the administrator of said Reading.
“Fourth. That during my treatment at said hospital I made a settlement with the administrator of said Reading estate, and released said estate from all liability to me, which settlement I now confirm.
“Fifth. That on or about July 25th the physician in charge, Dr. Charles W. Corville, notified me that the bones were not uniting in the usual manner, and that it would be necessary to perform an operation on the said limb and wire the bones together.
“Sixth. That after due consultation with physicians in charge, Drs. Chas. W. Corville and M. J. Schwanz, I consented to the operation, that the said bones in my limb be wired together, with the expectation that said operation would result in repairment to said limb, and said operation was performed about August 1, 1910.
“Seventh. That on October 1st Drs. M. J. Schwanz and D. H. Newton, after due examination, decided the joints had not united, and in all probability would not unite, on account of the condition of the bone.
“Eighth. That said physicians recommended to me that, in order to save my life whole, I consent to an amputation of the fractured limb:
“Now, therefore, in view of all the facts as herein stated, and after due consideration of them in my own mind, I hereby, of my own free will and consent, exonerating all others connected herewith, agree to allow the said physicians to amputate my left leg at or below the knee joint, and that said amputation is made in the interest of preserving my health and life.
“In witness thereof I have hereto set my hand and seal the day and year first above written.
[Signed] “Fred Burns.
“Witness:
[Signed] “M. J. Schwanz.”

A jurat attached to this shows that it was sworn to by Burns before William C. Harris, as notary, on November 8, 1910.

These instruments, if voluntarily and understandingly signed, are manifestly binding upon claimant and conclusive. The fact that Hawkins, or defendant’s attorney, or any one else solicited or advised him to make the settlement and sign the papers is no ground for repudiating them, unless they induced him to do so by some fraud or misrepresentation. He was then a man over 40 years of age, with a common school education, given to reading, and apparently intelligent. He spent much time reading while in the hospital. He could and did read the release signed by him on July 26th, and testified that he understood every word of it at the time he signed it, but claims he was deceived as to the condition of his leg and the prospect of recovery by Hawkins and Dr. Newton, a physician who was employed by defendant. He does not, however, give any testimony which imputes fraud or deception to the hospital physicians who were in charge of his case. Although he testified that Dr. Corville, who first took charge of the case, told him in reply to his inquiry that it would take the broken limb eight weeks to heal, he also testified that later, when he asked the physician if his leg was healing, he would not answer him.

The circumstances of the alleged misrepresentation and settlement, as told by Burns, are, briefly, as follows: In a talk between him and Hawkins the latter said:

“ ‘Better have two doctors’ word than one to find out how the leg was getting along.’ He said that I would feel more encouraged to have the word of two than one. He said he would bring the doctor of the Reading estate, Dr. Newton.”

/ That following this talk, and three or four days before the settlement, Hawkins brought Dr. Newton to the hospital. That Dr. Newton made an examination of the leg in the presence of Dr. Corville, and said it “was getting along all right, * * * doing fine; ‘massage your leg, and you will be out of here in two weeks,’ ” which encouraging information he believed. That Hawkins, who was present when Dr. Newton made the examination, came in the next day and they talked of a settlement. Of this he testifies in part:

“That is the first time he or any person representing the Reading Company talked to me about a settlement. He said then that he would like to settle with me because he would like to get me off the books, and he did not like to carry me on, but I would be protected. * * * Mr. Hawkins said he had Dr. Newton’s report of the condition of my leg, and it was doing well, and he wanted to settle, and he said that he would like to get me off the books, and I would be protected. And I accepted it. He offered me $250. * * * At the time I signed this release I relied upon the statements of Dr. Newton and Hawkins.”

It is not shown that the physicians in charge of his case ratified what Dr. Newton said or gave him any reason to think his leg was healing. His own testimony tends to the contrary. He knew Dr. Newton was defendant’s medical representative and that Hawkins based his representations on Newton’s report. But, conceding that his claim of reliance upon the representations of defendant’s physician at the time of settlement raised an issue of fraudulent inducement, he had full knowledge that such representations were untrue long before and at the time he signed and swore to the second paper of November 7th, shortly before his leg was amputated. His testimony as to this second paper, signed without protest over three months after the settlement, and when he knew the full measure of the deception he claims was practiced upon him, is equivocal and peculiar. He at first denied signing such a paper, but, on its being shown to him, admitted that he did. sign and swear to it, and testified to circumstances, including the manner of administering the oath to him. Requested to read the paper over carefully and point out anything wrong in it, he did so, pointing out certain matters in the fifth, sixth, and seventh paragraphs as follows: That Dr. Corville did not notify him the bones were not uniting in the usual manner, and that witness did not consent to an operation after consultation with “physicians in charge, Drs. Corville and Schwanz,” but the operation was performed after Dr. Schwanz said it must be done; that the statement in paragraph 7 was incorrect so far as he had knowledge, because Schwanz and Newton were never in consultation in his presence. Having completed his examination of the paper, he was asked:

“Q. Is it all right except as you have pointed out?”

And he answered:

“Except as I have pointed out, everything is all right.
“Q. The rest is tru'e?
“A. Yes. * * *
“Q. You confirm the statement in all its particulars, with the exception of those corrections you have made ?
“A. Yes. * * *
“Q. After you have read it over carefully again?
“A. Yes.”

The following day he modified this by testifying that his attorney had pointed out to him the words “I confirm,” which he did not know the meaning of till it was explained to him, and in answer to further inquiry again said he understood all the other words in the paper with the exception of “confirm,” and the balance was absolutely true, except the discrepancies he had previously pointed out. He also testified in relation to the execution of this paper that at the time he signed it he was weak and sick, had been suffering pain, at times had been given hypodermics to enable him to sleep, and the idea of having his leg amputated frightened him so that he was not in condition to act and think normally; that the matter was first presented to him by Dr. Schwanz, who said that, as his leg was to be amputated, Mr. Hawkins and Mr. Harris had a paper it was desired he should sign, and the doctor proposed that they “talk it over pro and con,” suggesting that he sign it, and it was handed him to read, and he signed it. The paper particularly makes mention of the previous settlement, as to which he then knew, as well as he ever knew later, whether or.not he had been induced by fraud and false representations to enter into and sign the previous release, and he knew the second paper came from the same parties as the first. He offers no proof of any promises, false representations, or inducements by any one as to the second paper. It is difficult to reconcile his claim that his signature to the first was obtained by fraud and deceit with his signing the second after full knowledge of the fraud claimed to have been perpetrated upon him on the former occasion, even though, as he states, he did not understand the word “confirm,” and eliminating the portions which he pointed out as incorrect.

Claimant’s evidence shows that early in August, but a few days after this settlement was made and the agreed sum had been paid to him, while the transaction was yet fresh in his memory, the falsity of what he states Dr. Newton told him, and upon which he says he relied, was strikingly made plain to him by the operation in which his leg was opened and the bones wired because they had not knit, and again brought home to him when, as he testified, Dr. Schwanz, on the day after the wires were removed, told him his leg had to come off. With knowledge of these facts he not only signed the second paper, but remained in the hospital for near two months without raising any question or making any protest in relation to the settlement. He testifies that Wilson visited him, and Hawkins, with whom he continued on friendly terms, called upon him occasionally and went with bim to the train when he started for his home in Ohio, but he never made any complaint to him nor talked about the settlement.

The first knowledge defendant or its representatives had that claimant questioned the settlement was when, in April, 1912, nearly two years later, he filed a petition in probate court of Wayne county to revive the commission on claims followed by a tender back of the money, with interest, paid at the time of the settlement on July 26, 1910. He did not tender or offer to pay the cost of his medical attendance and hospital expenses which had been paid or assumed by defendant for him.

It appears by claimant’s testimony that on July 26, 1910, he settled with defendant’s representative an unliquidated and disputed claim with a clear understanding of the terms of settlement, and was paid in full the agreed amount, signing a receipt and release of his claim. The contract was executed. His contention now is that it was voidable as to him and he has a right to repudiate and rescind it because he was induced to make the contract by the intentionally false and fraudulent professional opinion or statement of the doctor of the adverse party as to the condition of his leg and prospect of recovery, upon which, as stated to him by the doctor and urged by Hawkins, he relied. Taking his testimony as true, and conceding this might have raised an issue for the jury if timely urged, we are confronted with the elementary rule of law applicable to such cases that a party who desires to rescind a contract on the ground of fraud must be guilty of no unreasonable delay, and upon discovery of the fraud act promptly, make or tender restitution, announce his purpose and' adhere to it; otherwise he will be held to have waived the objection and ratified the contract. In the recent case of Bertha v. Motor Car Co., 180 Mich. 51 (146 N. W. 389), cited by appellant, and held to be a case for the jury, the court emphasizes by repetition the fact that immediately on discovering that defendant’s physician had misrepresented the extent of his injury plaintiff repudiated the settlement and tendered back, with interest, what had been paid him.

While no duty exists to repudiate the contract and return the consideration until the fraud is discovered, and in such case intervening time will not affect the complaining party’s rights, this court has said:

“The decisions on fraud all hold in this State that a party defrauded is bound to use active diligence, and to use no unavoidable delay in complaining.” Lewless v. Railroad Co., 65 Mich. 292 (32 N. W. 790).

We are not dealing with, a chancery suit to rescind a contract on the ground of fraud, which comes.within the cognizance of a -court of equity and opens the door for the application of other principles, but an action at law based upon the theory that the party aggrieved has already rescinded it,- as he had the right and legal power to do without the aid of a court, and, in the absence of proof of prompt rescission with return, or offer to return, whatever of value was received in consideration of the settlement, the contract stands as a legal bar to prosecution of the original cause of action.

In Gibson v. Railroad Co., 164 Pa. 142 (30 Atl. 308, 44 Am. St. Rep. 586), plaintiff was injured in a railroad accident, and settled with defendant shortly after he had been under the influence of anaesthetics, as a result of which he claimed to have not been in full possession of his mental faculties. About six months later he repudiated the settlement and brought suit. It developed that he was more seriously injured than at first supposed, and he was confined in the hospital at defendant’s expense for more than three months. Of this the court said in part:

“Whatever may have been the condition of his mind four or five hours after the operation, when the paper was signed, there is no pretense that it was not in a normal condition all the months he was at the hospital. * * * Every day that he retained the money and continued to accept benefits, after a knowledge of the settlement, without regard to how he gained such knowledge, was in affirmance of it. * * * His conduct in keeping the money, in accepting payment of all his bills at the hospital, after restoration to complete mental health, with the undoubted knowledge as to where the money came from, and as to who paid his bills and why, is only consistent with an intention to affirm the contract. It is conclusive evidence of affirmance.”

In justification of the delay it is urged that no release could arise from failure to promptly disaffirm until claimant was informed both of the falsity of the representations upon which he relied in making the settlement and of his right to disaffirm on that ground, citing Alabama, etc., R. Co. v. Jones, 73 Miss. 110 (19 South. 105). We are not prepared to indorse the conclusions reached in that case as applied to an action at law of this nature. There is no proof nor presumption that, claimant at any time believed himself without redress because he had been fraudulently induced to sign a release which he would not otherwise have signed. He was a man of mature years, not ignorant nor illiterate. He stated that he commenced to speak about it with an acquaintance, asking him if he knew of a good attorney, and was referred to the counsel he engaged. He at first stated he consulted counsel in the summer of 1912, but later corrected himself, and fixed the time as the latter part of the summer of 1911. He took no steps, however, to rescind or refund, to the knowledge of defendant or its representatives, until April, 1912. For over 18 months after full knowledge of that of which he now complains he remained silent and treated the matter as a full and final settlement. During that time he ratified the releases he had signed, both by his silence and failure to return that of value which he had received under the contract and by accepting further benefits, without intimation of dissatisfaction, after full cognizance of the facts which he now urges as a ground of rescission. His long acquiescence and failure to complain promptly, as was his duty on discovery of the true conditions operated, as a matter of law, under the undisputed facts, to reaffirm the contract of settlement which has now become a bar to the prosecution of his stated original cause of action.

.The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay, who sat in this case, took no part in this decision.