author: Bird, J.

text:
    EBLING v. EBLING.
    1. Setting Aside Instruments — Deeds—Consideration, Failure of — Evidence of Oral Contract — Modifying Deed.
    Where defendant and her deceased, husband executed a contract in writing to provide support and care to his parents, and in consideration thereof the parents executed a deed of an eighty-acre farm to the son and wife, who failed to carry out the arrangement, and defendant’s evidence tended to show an oral agreement to apply the proceeds of certain real estate which complainant purposed to sell towards the construction of a house on the farm, the decree of the circuit court finding against the alleged oral contract was justified: proof of the subsequent oral contract was inadmissible to modify the written instrument; and if it was not intended to change the contract, defendant’s failure to perform and breach of the agreement to provide support was without justification.
    2. Same — Equity—Decree.

      Held, also, that the decree of the circuit judge based on improvements to the farm less its rental value and the value of certain personal property used by defendant and her deceased husband, and allowance for support to complainants, etc., was justified.
    Appeal from Newaygo; Cogger, J.
    Submitted October 14, 1913.
    (Docket No. 59.)
    Decided September 30, 1913.
    Bill by Henry Ebling against Clara Ebling to set aside and cancel a deed for failure of consideration and breach of conditions contained in the instrument. From a decree for complainant, but granting a lien on the land in defendant’s favor, defendant appeals.
    Affirmed.

      George Luton, for complainant.

      Hatch, McAllister & Raymond, for defendant.
   Bird, J.

By reason of age and growing infirmity, the complainant, Henry Ebling, in April, 1907, conveyed to his son, Anthony, and his wife, Clara, the farm of 80 acres upon which he lived in Newaygo county, in consideration of care and support for himself and wife during the remainder of their lives. At the time of the conveyance, complainant was 73 years of age and his wife 57. There was a small incumbrance of $250 on the farm, which was assumed by the grantees. The son and his wife moved onto the farm and worked it for three years. They moved away from it in April, 1910, and thereafter refused to pay the taxes and interest on the mortgage or to furnish complainant and his wife care and support. Soon after moving away from the premises Anthony died. This bill was filed by complainant to have the deed vacated and set aside on the ground of failure to comply with the terms of the contract. The contest is between the old people and the son’s widow. Considerable testimony was taken upon the hearing, bearing upon the cause of the son’s leaving and also as to the value of the farm when he went into possession and when he went away. The chancellor made a decree setting aside the deed, and upon balancing the equities found the sum of $267 due the defendant, and made it payable on or before nine months from the death of complainant and his wife, or either of them, and further provided that the same should be a lien on the premises. From, this decree the widow has appealed.

There seems to be little question but that the terms of the agreement to support the old people and pay the taxes and mortgage were violated by the defend* ants in leaving the farm. It is practically agreed by both parties that the cause of the trouble which finally terminated in the son’s removing from the place was the refusal of the complainant and his wife to apply the proceeds of the sale of certain real estate owned by them in the village of Newaygo toward the construction of a new house on the farm. The defendant attempts to justify their leaving on this ground, and the controversies which grew out of it. The complainant and his wife insist that they made no such agreement. It is the claim of the defendant that the complainant and his wife made this promise before they moved onto the farm, and, after making a sale of their property, they refused to carry it out.

The record has failed to convince us that such an agreement was made, but if it were made, as defendant insists, proof of it could not be admitted and used to modify the original contract, because that contract was in writing and must be conclusively presumed to contain the entire agreement of the parties.

If it were a subsequent oral agreement, with no intent to modify the original agreement, the refusal of the complainant and his wife to carry it out would not furnish a legal excuse for the failure of defendants to carry out the prior independent written contract.

The dwelling house which was erected by the son was left in an unfinished state and cost about $1,500, according to the contention of defendant. Towards-its construction, complainant and his wife contributed $280 in cash and 8,000 or 9,000 feet of lumber. They retained some of the proceeds of the real estate because, as they stated, their daughter ought to have some of the property.

The trial court found that the defendants had violated their agreement in going away from the place and refusing to comply with its terms, and he decreed a reconveyance of the premises and charged defendant with the rental value thereof for a period of three years, together with the value of certain personal property which was on the farm when they took possession. Also the money contributed by complainant and his wife. As against this the court credited her with the care and support of the old people, the taxes, two years’ interest paid on the mortgage, and also the increased value of the premises by reason of the erection of the dwelling house thereon. This resulted in a balance in defendant’s favor of $247, which is made a lien upon the premises.

Much complaint is made by defendant of the small amount found her due upon the accounting. We have examined with care the separate items allowed each of the parties and are satisfied that the trial court reached a very equitable solution of the whole controversy. We think there is no occasion to go into detail with the separate items making up the accounts.

The decree of the trial court will be affirmed, with costs of this court to complainant.

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


source: Caselaw Access Project

license: Public Domain

text:
    VAN SCEIVER v. KING.
    1. Witnesses — Evidence—Matters Equally Within Knowledge of Decedent — Estates of Decedents.
    Testimony of defendant, in a foreclosure suit, relating to matters equally witliin the knowledge of decedent, mortgagee, was incompetent and could not be considered without violating the provisions of 3 Comp. Laws, § 10212 (5 How. Stat. [2d Ed.] § 12856), as amended.
    2. Evidence — Burden of Proof — Payment—Application.
    It is incumbent upon the creditor to whom payments have been made to show by a preponderance of the evidence what application was made of the amounts received.

      3. Payment — Election to Apply — Equity.
    The debtor may elect which of two or more debts shall be credited with a payment: the creditor has the right to elect if he does not; and if the amount received is not applied by either party, equity may make such application as may be fair between the parties.
    Appeal from Lapeer; Smith, J.
    Submitted November 19, 1912.
    (Docket No. 121.)
    Decided September 30, 1913.
    Bill by Nellie F. Van Sceiver against Robert King to foreclose a mortgage. From a decree for complainant, awarding less than the relief claimed, she appeals.
    Affirmed.

      John Loughnane, for complainant.

      Geer, Williams & Halpin, for defendant.
   Bird, J.

This proceeding was begun to foreclose a real estate mortgage given by Mary Gordon in October, 1887, to James H. Gray, who is now deceased. Complainant is the daughter of James H. Gray, and succeeded him in the ownership of the mortgage. The defendant King is a subsequent purchaser of the premises. The only question raised by the defendant is whether the amount claimed to be due on the mortgage should be reduced by a payment of $150 made by him in November, 1905. It appears that defendant King had been engaged in business for several years, and from time to time had borrowed money from Mr. Gray to meet his business necessities. In Novembér, 1905, when one Lynch came to King to make a payment on a land contract which he had executed with him, King explained to him that he had placed it with Mr. Gray as collateral security for certain loans he had made of him, and directed Mr. Lynch to pay the amount direct to Mr. Gray, at the same time giving him a receipt for Mr. Gray to sign, which was as follows:

“Received of Michael Lynch, to apply on contract, or R. King’s notes held by me as collateral, $150.00.
“James H. Gray.
“November 11, 1905.”

It is conceded by complainant that the money was paid by Lynch to her father, but she contends that it was afterwards applied on King’s indebtedness, but is unable to point out upon what particular loan it was applied. The defendant contends that the payment has never been applied to any of his loans, and as the unsecured loans have all been paid, and as this is the oldest secured obligation that is outstanding, in justice and equity, it ought to be applied thereon.

Defendant King was permitted, over the objection of counsel, to testify as to matters which were equally within the knowledge of the deceased. His testimony cannot be considered in determining the issue, as it was clearly incompetent under the statute, and ought to have been excluded. 3 Comp. Laws, § 10212 (5 How. Stat. [2d Ed.] § 12856).

Passing over this testimony, and other testimony equally incompetent, we are of the opinion that there is enough in the record to warrant the finding that no application of the payment of the $150 was ever made on defendant’s loans. It was asserted by the defendant that on November 17, 1905, he paid $150, which was to be applied on his loans. The complainant concedes this, but insists that it was so applied. While the burden of proof is undoubtedly upon defendant, as complainant insists, to show payment, which he asserts, we think the burden of proof is upon the complainant to show where it was applied.

The rule is familiar that a debtor may elect to which of two or more debts his payments shall apply. If he does not so elect, the creditor may elect. The complainant is here contending, not that the payment was not made, but that it was made and applied. No proof is offered that King elected to have it applied upon any particular loan; therefore, if it were applied, it must have been done by the complainant, and the burden rests with her to show upon which loan it was applied. All of the written obligations in existence at the time of the payment in question were produced upon the hearing, and none of them bore an indorsement of that date, or later, corresponding in amount with the payment.

Complainant indulges in some speculation as to whether the payment may not have been divided and applied upon two loans. This solution of the matter is too uncertain, and does not fairly discharge the burden which rested upon her of showing the application of the payment. We must therefore conclude that the payment was made and never applied in reduction of any of defendant’s loans. No application of the payment having been made by the defendant, and none established by the complainant, the court will apply it as justice and equity may require. Youmans v. Heartt, 34 Mich. 397. Inasmuch as the Gordon mortgage is the only remaining secured loan owing by defendant, it would seem to be equitable to apply it thereon.

The decree of the trial court will be affirmed, with, costs of this court to defendant.

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


author: McAlvay, J.

text:
    CHAMBERLAIN v. WALLACE.
    Garnishment — Jurisdiction—Waiver of Defects.
    Having appeared in garnishment proceedings and made disclosure without raising any objection to the jurisdiction of the court, after a trial in which the garnishee participated and after - the entry of judgment and the lapse of a year and a half subsequent to trial, the garnishee defendant must be held to have waived any objections to the sufficiency of process and of service. Heritage v. Armstrong, 101 Mich. 85 (59 N. W. 439), overruled in part.
    Error to Wayne; Hosmer, J.
    Submitted January 7, 1913.
    (Docket No. 11.)
    Decided September 30, 1913.
    Garnishment proceedings by Alvinzie H. Chamberlain against Carthagenia Wallace. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Corliss, Leete & Joslyn (Paul B. Moody, of counsel) , for appellee.
   McAlvay, J.

The garnishee defendant, against whom a judgment was rendered in favor of plaintiff, has brought the case here for review upon writ of error without settling a bill of exceptions, relying entirely upon the record to show that she is entitled to a reversal. The principal defendant, William E. Wallace, her husband, was a druggist in Detroit and,, together with another defendant, was sued by plaintiff for injuries he sustained because of the mistake of a drug clerk in filling a prescription for him at defendant’s place of business. The trial resulted in a judgment against Wallace for $2,000 on December 15, 1909.

Later plaintiff commenced these proceedings in garnishment against Carthagenia Wallace, wíio, as already stated, is the wife of the principal defendant, by filing an affidavit and upon it issuing a writ of garnishment January 27, 1910. No question is raised by the appellant as to the regularity or sufficiency of this affidavit and writ of garnishment. It was returnable February 11, 1910, placed in the hands of the sheriff on the date of issue, and was regularly returned by the sheriff not served February 14, 1910. On this date a praecipe for an alias writ of garnishment was filed with the clerk and an alias writ issued, returnable February 28, 1910. This writ was not delivered to the sheriff for service. The record shows that a private individual on March 1, 1910, made an affidavit upon the said writ that he had made diligent search and inquiry for the garnishee defendant and was unable to find her, and the writ was filed on that date. On March 7th following, a prsecipe was filed for another alias writ, and the same was issued against this garnishee defendant and Emma M. Hammond,. respectively, as garnishees, and was made returnable March 21, 1910. This writ was not placed in the hands of the sheriff for service. On March 29, 1910, a private individual made an affidavit upon it that he had caused diligent search to be made and had been unable to find either of said garnishee defendants. On said date the writ was filed with the clerk and a prsecipe for a pluries writ of garnishment against the same defendants as were named in the last .preceding writ was filed, and the writ was issued and made returnable April 12, 1910. This was not placed in the hands of the sheriff for service but it was personally served upon appellant, Carthagenia Wallace, March 30, 1910, by a private individual, as appears by his affidavit of service on said writ. Another affidavit shows he later served the writ upon the other garnishee defendant. The record shows but one affidavit in garnishment made and filed at the time the original writ issued against appellant, and no other person is mentioned therein as garnishee.

On April 11th following, appellant filed her disclosure in the case and under oath stated that she had at the time of the service of this writ upon her no money or property in her hands or under her control belonging to the principal defendant, and that she was not indebted to him. After this disclosure, notice was duly given for an examination of this garnishee defendant under the statute, before a circuit court commissioner of Wayne county, on April 28, 1910, and on that daté and on May 9th following the plaintiff, by her attorney, and this garnishee defendant appeared before the said circuit court commissioner, where her testimony was taken at length and was afterwards reduced to writing, read over, and signed by her and certified and returned to the court. None of this testimony is contained in this record.

On June 8, 1910, plaintiff demanded an immediate trial of the statutory issue framed in said cause before the court, which came on to be heard in due course; both the plaintiff and the garnishee defendant and their respective attorneys being present and taking part in said trial. The court having found that at the time of the service of the writ of garnishment upon the garnishee defendant she had received from the principal defendant certain property under a conveyance void as to creditors of the principal defendant, amounting to $3,000 and upwards, and that the principal defendant was indebted to plaintiff upon a judgment to the amount of $2,108, and interest to the amount of $118.57, a judgment in favor of the plaintiff and against said garnishee defendant for the total amount, together with costs, was entered February 8, 1911.

The following additional facts have been stipulated:

“(1) In the principal cause of Chamberlain v. William R. Wallace et al., to which this garnishment proceeding is ancillary, George B. Greening, Esq., appeared as attorney for principal defendant William R. Wallace and Henry B. Graves, Esq., as attorney for another defendant. Garnishee defendant is the wife of principal defendant.
“(2) That on the examination of the garnishee defendant before the circuit court commissioner, George B. Greening, Esq., appeared as attorney for garnishee defendant and took part in such examination.
“(8) The trial of the garnishment issue was heard and submitted before the court July 19 and 20, 1910.
“(4) February 9, 1911, on motion of attorney for garnishee defendant, an order was entered for 20 days stay of proceedings and 60 days to settle bill of exceptions.
“(5) February 18, 1911, plaintiff’s costs against garnishee defendant were duly taxed and filed.
“(6) March 14, 1911, execution was issued against garnishee defendant.
“(7) March 25, 1911, garnishee defendant made a motion to vacate judgment, to permit her to make application for findings of fact and law, and the same was argued and submitted.
“(8) On February 2, 1912, Henry B. Graves, Esq., was substituted as attorney for garnishee defendant in place of George B. Greening, Esq.
“(9) February 6, 1912, motion for new trial, of which copy is hereto attached, was filed in behalf of garnishee defendant. February 10, 1912, affidavit was filed in opposition thereto, and said motion was thereupon heard and denied.”

Two questions are presented by appellant’s brief:

“First. Are there jurisdictional defects in the garnishment proceeding?
“Second. If there are jurisdictional defects in the garnishment proceedings, have they been waived by the garnishee defendant?”

Before proceeding to a discussion and determination of the case, we desire to say that none of the questions raised by the assignments of error were at any time presented to and passed upon by the court below but are raised in this court for the first time.

The appellant relies entirely upon the claimed fatal jurisdictional defects appearing in the record and proceedings in the case and contends a garnishee defendant can raise such jurisdictional defects for the first time before this court after judgment, and that no conduct of a garnishee defendant in the case will operate as a waiver of such defects.

The present dispute is between the plaintiff and the garnishee defendant. The principal defendant is not a party to these proceedings. It is contended on the part of plaintiff and apppellee that this garnishee, by her appearance in the case personally and by her attorney, by making a disclosure, by submitting to an examination before a circuit court commissioner, by being present and participating in the trial of the statutory issue in garnishment personally and by attorney, all without objection of any kind or in any manner to the jurisdiction of the court, by waiting for a year and a half after such trial and a year after the entry of judgment against her in the case before raising any questions of jurisdiction, has waived all irregularities of all kinds in the proceedings and is now estopped from questioning this judgment against her by her own conduct. There is abundant authority in other jurisdictions which supports such contention. Wickham v. Lumber Co., 89 Wis. 23 (61 N. W. 287).

This court in an early case recognized such a contention. In Hebel v. Insurance Co., 33 Mich. 400, Mr. Justice Graves, speaking for the court, said:

“It is material to distinguish between the attitude of these parties and this controversy, and the state of things when the garnishor and garnishee are contending about the consequences and results of garnishee proceedings which have taken place between them. Many things may take place in the course of such proceedings which the garnishee, on the one hand, or the garnishor, on the other, may be bound or estopped by, as between themselves, but which the garnishee may not be able to urge as matter of defense against the suit of the principal defendant. Still there is no question of the right of one prosecuted as garnishee to make many admissions and waivers without endangering his protection. He need not wait to be led by the shoulder into court. He need not wage battle at every step. The law itself not only recognizes his right to suffer default, but provides what the practice shall be in such case, and invests the judgment with the same protective force as it does one awarded after vigorous contest. Still the proceeding must have a beginning agreeable to its nature, in order to hold the principal defendant, and the nature of the proceeding requires that the law shall be brought to bear directly against the right of the principal defendant in the hands or under the control of the garnishee, and the mode, and the only one, provided for this is by service of the process on, or submission to service by, some one competent in law to receive service. The law itself must be caused to attach, and it can be effected in no other way. Independent and spontaneous submission by the custodian or debtor of the right belonging to the principal defendant cannot bind him. The intervention of the law, according to its own substantial appointments, can alone initiate compulsory novation. A garnishee may admit away his own right over which he has power, but he cannot admit away another’s right over which he has no power.”

In Johnson v. Dexter, 38 Mich. 695, at page 697, Mr. Justice Cooley, speaking for the court, in referring to the matter of waiver by a garnishee, said:

“Perhaps as between themselves and Tower & Mills, the garnishees may have bound themselves by their voluntary appearance; but this would have been on the ground of waiver, and they had no power to waive a compliance with the law for Dexter.”

In Lichtenberg v. Wayne Circuit Judge, 106 Mich. 38, at page 40 (63 N. W. 963), Mr. Justice Montgomery, speaking for the court, said:

“There may be cases in which the garnishee cannot set up the judgment as-a defense to the demand of the principal defendant, even though a valid judgment has passed against him. If so, it is not of any concern to the principal defendant that the garnishee defendant has by his own act made possible a valid judgment against himself. Hebel v. Insurance Co., 33 Mich. 400; Johnson v. Dexter, 38 Mich. 695. If it be true, then, that the garnishee may waive irregularities in such manner as to bind him, such waiver binds him finally; and, if it be not binding upon the principal defendant, his remedy is in a suit against his debtor, the garnishee.”

In Keppel v. Moore, 66 Mich. 292, at page 294 (33 N. W. 499), in an opinion written by Chief Justice Campbell, this court said:

“It is substantially admitted that the affidavit is technically defective; and it is also not denied that, usually, a garnishee cannot waive anything affecting the rights of other parties; but there can be no doubt that he can waive any of his own rights.”

See, also, Wellover v. Soule, 30 Mich. 481.

Appellant relies for Michigan authority upon two cases. The first case (Ettelsohn v. Insurance Co., 64 Mich. 331 [31 N. W. 201]) was an opinion by a divided court. The other (Heritage v. Armstrong, 101 Mich. 85 [59 N. W. 439]) relies upon the first case just cited. It is improbable that it was intended to decide the exact point involved in the instant case, because it is exactly opposite to the opinions expressed by this court in the cases from which we have quoted. In Lichtenberg v. Wayne Circuit Judge, supra, decided one year later, the same justices. sitting concurred unanimously. In so far as that case may be considered to conflict with the opinion herein expressed, it must be overruled as not in harmony with the opinions of this court and the weight of the authorities.

Under the undisputed facts presented by this record, we are satisfied that the garnishee defendant waived all irregularities in the issuing and service of garnishment process in the case, and that she cannot question the validity of this judgment.

The judgment of the circuit court is affirmed.

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


text:
    WHITE v. HERRICK PIANO CO.
    Injunction — Levy of Execution — Execution Levy.
    An execution levy, after judgment, on the interest which the debtor appeared from the record to own in certain realty, being regular and valid, it was erroneous to restrain further proceedings by an injunction as to the judgment creditor, who made the levy in good faith without any notice of any defect in the title, or fraud claimed to have been practiced by the debtor in obtaining the deed.

    Appeal from Benzie; Chittenden, J.
    Submitted January 13, 1913.
    (Docket No. 94.)
    Decided September 30, 1913.
    Bill by Jacob I. White and another against the Herrick Piano Company and others for cancellation of certain conveyances. From a decree for complainants, said Herrick Piano Company appeals.
    Reversed.

      D. G. F. Warner, for complainants.

      A. C. Hindman, for defendant Herrick Piano Co.

       On the question of irregularities in execution as ground for injunction against sale under it, see note in 30 L. R. A. 136.

   McAlvay, J.

The complainants, husband and wife, filed their bill of complaint to set aside certain conveyances made by them to defendants Jacob Diefenbacker and Cora Diefenbacker severally, and to set aside a certain mortgage given by Jacob Diefenbacker to defendant Elizabeth Friar, and to set aside a certain execution levy of defendant Herrick Piano Company, upon a judgment in its favor against defendant Cora Diefenbacker, and to enjoin a sale under said levy, claiming that the transfers to the Diefenbackers were procured fraudulently and that the lien of the mortgage and the levy upon the real estate were consequently void. Complainant Nancy White died after the commencement of suit, and, having no interest in the property involved except that of a wife, it was not considered necessary to revive the case as to her. Her death was, however, suggested of record.

The property involved in this case was originally purchased by complainant Jacob I. White under a contract from Maggie Barry, and when full payment was made a deed was executed by her to complainant Jacob I. White and Cora Diefenbacker July 7, 1906, and duly recorded July 18, 1906. Afterwards these parties last mentioned conveyed a half interest in this property to Jacob Diefenbacker.

Cora Diefenbacker was indebted to defendant the Herrick Piano Company, which recovered a judgment in the circuit court for Benzie county, upon which the execution issued, and the levy above mentioned was made by the sheriff January 24, 1908, upon her interest in the land in question. The defendant Jacob Diefenbacker made and executed a mortgage to Elizabeth Friar for $275 upon his interest in said land.

Cora Diefenbacker was the daughter of complainant White, who had been married to and divorced from a man by the name of Sutherland and who had about the time, of this conveyance taken up with the defendant Diefenbacker in a desultory sort of way, claiming that a marriage had been entered into between them, and by the consent of both she was known as his wife in that community. Events proved that their relations were not marital in character; she being the victim of a misplaced confidence. The record also shows that certain contracts were made between White and one or both of the Diefenbackers in relation to this same property and concerning which, so far as the interests of the appealing defendants are concerned, it is not necessary to enter into details.

The bill of complaint was filed March 8, 1908. An injunction upon an ex parte application to a circuit court commissioner, in the absence of the circuit judge from his circuit, was issued March 13, 1908, against defendant Herrick Piano Company, restraining it from proceeding to sell the property upon which its execution had been levied and advertised for sale. This injunction issued without filing any bond to stay proceedings upon said execution. Later a motion was made by the Herrick Piano Company to vacate and set aside this injunction for that reason, which was denied, and complainants were required to file a bond in the sum of $500 to protect this defendant in the matter of its levy and also as security for costs in the pending suit. All of the defendants except Cora Diefenbacker severally answered the bill of complaint. Issue was joined upon the answers, and the cause was heard before the court. The court granted all the relief asked in the bill of complaint except as to the mortgage of Elizabeth Friar, which was held to be a good-faith mortgage and a bona fide lien upon the premises. Defendant Herrick Piano Company has appealed and asks that the determination of the court declaring the execution levy upon the interest of the defendant Cora Diefenbacker canceled and set aside be reversed.

The decree in this case is, to say the least, a peculiar document. It was made and entered without any notice to the appealing defendant. No explanation is made concerning it. It may be said that it contains language which in terms determines questions involved in this case and undertakes to finally dispose of the rights of the litigants. Apparently it has been accepted by all the parties interested, except the appealing defendant. As to the rights and interests of parties not before this court, we are not concerned.

The appealing defendant has brought the case here, claiming that upon the record, as far as its interests are concerned, the decree of the circuit court should be reversed. This appeal brings this matter before this court to be considered de novo. In the decree itself defendant is not properly described, but it is evident from its wording that it was intended to name it in connection with the execution levy which is canceled and set aside. It is therefore necessary to consider this record only with reference to the claims and contentions of this defendant. No question is raised in the record as to the validity of the judgment in its favor against defendant Cora Diefenbacker, upon which the execution issued.

An examination of the entire record does not show evidence of notice of any defect in the title to the interest which Cora Diefenbacker had in the property in question brought home to the defendant Herrick Piano Company or to any other person. This record shows at the time of the levy of the execution at least an undivided one-fourth interest in her. From the time of the execution and record of the deed from Mrs. Barry in July, 1906, until this suit was instituted on March 3, 1908, the record title of an interest in the premises in question stood in Cora Diefenbacker.

There is no testimony in the case tending to show want of good faith on the part of the defendant Herrick Piano Company or to show any irregularity in its proceedings taken under its execution levy to sell its debtor’s interest in this real estate.

The injunction was improvidently issued, and the determination of the court, as far as this appealing defendant is concerned, was erroneous. The decree as to the Herrick Piano Company vacating and canceling the execution levy is reversed and set aside, with costs of both courts to be taxed in favor of this defendant and against complainant. A decree for said costs will be entered against Albert E. Knight, surety for costs; this defendant to have execution thereof against said surety. A decree will be entered in this court in accordance with this opinion.

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


text:
    KEENAN v. CITY OF MOUNT PLEASANT.
    1. Appeal and Error — Brief of Appellant — Statement of Pacts.
    The court will not undertake to perform the duty devolving on counsel for appellant to make a clear and con-else statement of the errors relied upon, the questions involved, and the manner in which they are raised, as required hy Supreme Court Rule 40.
    2. Master and Servant — Instructions to Jury — Trial.
    On the trial of a personal injury case, brought by an employee of the city who was hurt by the caving in of a trench which he was working in, the court covered defendant’s request to charge the jury that if defendant’s agent or officer instructed plaintiff’s fellow-servant to watch the bank and give necessary warning, his failure to do so was the proximate cause of the injury, where the charge as given stated that if plaintiff was negligent, because he assumed an improper or unsafe position, he could not recover, that if he was warned, as defendant claimed, of the danger, or heard the fellow-servant instructed to watch the place and that it was dangerous, he would be chargeable with the duty of using great care, but if he did not hear it, the jury should not consider the testimony on that point, that if defendant’s agent placed a servant to watch the bank for any warning of a cave-in and to give immediate notice to the other workmen, defendant performed its legal duty, and that defendant was only required to furnish a reasonably safe - place to work.

    3. Same — Contributory Negligence — Risks Assumed.
    Upon testimony that plaintiff was assured by defendant’s water commissioner, in charge of its ■ work, that the trench was safe and that the plaintiff did not hear the instructions given a fellow-servant to warn the men of danger, the questions of assumption of risk and of contributory negligence became questions of fact for the jury.
    4. Municipal Corporations — Filing Claim — Defense—Statutes.
    Under 1 Comp. Laws, § 3081 (2 How. Stat. [2d Ed.] § 5603), requiring the filing of a claim for injuries with the council of a city, the failure to present the same is a matter of defense, which defendant must show: plaintiff’s omission to prove the fact did not entitle defendant city to a verdict.
    Error to Isabella; Dodds, J.
    Submitted January 17, 1913.
    (Docket No. 145.)
    Decided September 30, 1913.
    Case by Michael Keenan against the city of Mt. Pleasant for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Francis McNamara and H. A. Sanford, for appellant.

      Frank H. Dusenbury and William M. Smith, for appellee.

       The question of the liability of a municipality for injury to servant in connection with waterworks system is treated in a note in 25 L. R. A. (N. S.) 241.

   McAlvay, J.

This is an action for damages for personal injuries received by plaintiff while employed by defendant, under its proper officer, in laying certain water pipes in a trench, by a caving in of the side of the trench upon him. He recovered a substantial judgment upon the verdict of a jury, and the case is brought here by the defendant for review.

The defendant and appellant in its brief has not complied with the requirements of Rule 40 of this court. Its brief does not contain a clear and concise statement of the facts distinct from argument. It does not contain a statement of the errors upon which appellant relies, nor of the questions involved, nor of the manner in which they were raised. It is not the province of this court in any of these respects to perform the duties devolving upon counsel, and no attempt will be made to do so.

We find in the charge of the court a statement of the claims made by the parties upon the trial, which, for the .purposes of this case, sufficiently states the facts. It is as follows:

“The plaintiff claims that at the time in question, while he was working for the city under the instructions of the street commissioner, Charles McKinnon, he was called from the work he was doing and sent into the bottom of the trench, where they were laying water pipe, to assist in calking the last, or the last two, of the joints of the water pipes where they came together. He claims that it was 5 or 51/2 feet deep, perhaps. The plaintiff claims that, at the time, he had never been in the business of calking — except for a short time before on another street and then only for a short period of time — that when he went in there, as he says, his experience had been only about an hour altogether. He claims that the place was dangerous, and that previous to his going there that day he was assured that it was not dangerous by the water commissioner, and that he relied upon that assurance in going into the trench and in performing the labor that he was attempting to perform, and he claims that while there, ánd while in the performance of his duties, and without any negligence on his part, the bank from the west slipped in on him, and he was covered up and received the injuries which he has claimed here in the case occurred to him at that time. The defendant admits that the plaintiff was injured at the time and place claimed by the plaintiff. It admits that the water pipe that was being laid was about five feet below the surface, arid that the dirt that had been thrown out of the trench was thrown on the west side of the trench, and that the plaintiff was sent into the trench to perform labor by the commissioner. But they also claim that Mr. Drum, one of the men working there, was left upon the bank to watch the bank at that place, and that plaintiff was warned of the danger before he went in there, and that he himself, after being warned, claimed that there was not any danger, and that while in there he assumed a position which increased the danger that there might be by reason of lying down upon the pipe, instead of having his feet kept in a position so that he could rise up in case the bank started to fall in, and that, while the bank did fall in, that if he had been in the proper position in doing his work he could have arisen to his feet and would not have been hurt, and that while there he was warned by Mr. Bemrose and Mr. Dunn — who, they claim, was upon the bank — to be careful, and by Mr. Bemrose that he should not lie down upon the pipe.”

We find from defendant’s brief that reliance is placed upon error assigned, because of the failure of the court to give its fourth request to charge, as follows:

“If you find that the water commissioner instructed Mr. Drum to watch the bank and give any necessary warning, and Mr. Drum failed to give such warning as was necessary, the negligence of Mr. Drum, as a fellow-servant, was the proximate cause of the injury, and the plaintiff cannot recover.”

And charging instead:

“Now, if Mr. McKinnon, as he says, saw some of this sand fall down in the trench, and thought that then there might be danger, and placed Mr. Drum there for the purpose of watching, that was a proper thing for him to do, and if Mr. Drum neglected his duties, the city would not be liable for it, so far as that particular thing is concerned.”

The foregoing excerpt from the charge, taken by itself, does not fairly represent what the court said in his charge upon this subject. The foregoing charge was continued by saying:

“But the plaintiff claims that that was not all that was necessary on the part of the city to make this a reasonably safe place. They say that it ought to have been curbed, or stayed, in some way, inasmuch as the commissioner knew that it was dangerous, and that, as a matter of fact, it was dangerous — and, of course, gentlemen, the result showed that it was dangerous. The commissioner may not have known that it was as dangerous as it was, or that there was any danger at all, and he claims there would not have been any danger if the plaintiff had obeyed the warning given him and stood upon his feet, as he ought to have stood, as they claim, in calking a joint, because they say, if a man stays on his feet and the bank starts to slip, that he may rise up and get out of the way of it, and then he will be covered only for a portion of his limbs; but, if he is lying upon his breast, they claim that he cannot get up, and consequently he will be caught in there, and he is in more danger, and they claim that the plaintiff was negligent by reason of the position that he got into, and that he is liable himself for this. Now, if the plaintiff was negligent by reason of getting into the wrong position, when he could have taken another position, then he cannot recover in this case, even though the place was a dangerous place, because no man can recover in the State of Michigan who is himself guilty of negligence that contributed to the injury that he sustained.
“But this warning that the defendant claims that they gave the plaintiff must be considered in two different phases: First, if everything was done that the defendant claims was done, then you could take that into consideration in determining whether or not the defendant was guilty of negligence; but, if the plaintiff did not hear about that, then it makes some difference in determining whether or not he was guilty of negligence. If he heard Mr. McKinnon tell Mr. Drum that that was dangerous, and to stand right there and watch it, as the defendant claims, then he was put upon his guard, and ought to have been very careful; but if he did not hear that at all, even if it was said, and you could not say that he knew it was dangerous, then you could not take that into consideration in determining whether or not he was guilty of negligence himself. I want you to understand that, gentlemen, because it has a double bearing: If McKinnon told Drum to stand there, expecting he would do it, as it was his duty to do, and he told him that, then, so far as that particular thing is concerned, that would be performance of duty on the part of the defendant. And if the plaintiff heard it, then he would have to take notice of it, and you would have to consider it in determining whether or not he was negligent. But, if he did not hear it, all the effect it would have is to show that the defendant was not negligent in that particular. But, if the plaintiff was not otherwise negligent, and if you find it was negligent of him in lying down on his breast, as some of these witnesses say, and he did do that, when a reasonably prudent man would have done otherwise, then he cannot recover. But, if McKinnon placed Drum there on the bank, with orders to watch the bank on the other side carefully and give warning, as McKinnon says can always be done, because, he says, the bank does always give warning, if that is true, if the bank always does give warning, and he placed Drum there with orders to watch it and give warning immediately, then McKinnon did all that the law requires of him to do in that regard, so far as giving warning is concerned.
“Now, the defendant is required by law to furnish a reasonably safe place for its employees to work. Testimony has been offered here to show that water mains have been laid for a great many years to the depth of five feet, as this one is claimed to be, and that no accident has happened during that whole time, and that it has always been done without curbing. You are to take that into consideration in determining whether or not this was a safe place for the superintendent to send an employee intQ to work who had the same experience that Mr. Keenan had.
“When Mr. Keenan went into the trench, if he had previously heard McKinnon assure him that it was safe, he had a right, as I told you before, to consider that in determining what his action should be in the trench. But if, notwithstanding all that, he got into an unsafe position, where he could not help himself in case of danger, and a reasonably prudent man would not have done that, and he was injured by reason of that, then he cannot recover.”

So large a portion of the charge has been given that it will be readily understood that upon the matter above complained of the court fully and fairly protected the rights of defendant.

It is further claimed by defendant that the court was in error in not directing a verdict in favor of defendant, as requested, upon the grounds:

(1) That the risk was assumed by plaintiff, and was an obvious risk; (2) that there was no evidence of a statement of plaintiff’s claim for injury having been filed with the city clerk, as required by law; (3) that plaintiff was guilty of contributory negligence.

The first and third propositions were disputed questions of fact, which were properly submitted to the jury, and found against defendant’s contention. It appears, without dispute, that plaintiff was not a man acquainted with the work which he was ordered to perform in the trench in calking the pipes, and there was evidence tending to show that he was assured by the commissioner of the safety of the place, as well as evidence that he did not hear the commissioner order the man Drum to warn the workmen.

With reference to the second proposition relative to filing his claim with the clerk, no defense in the case was claimed or presented based upon the plaintiff's neglect in that regard. The question was first raised upon the above motion.

The record shows that upon a motion for a new trial, based upon these same objections, it appeared, from the showing by plaintiff, that within the time provided by law he had fulfilled all the requirements of the statute in regard to filing his claim with the city clerk, which fact the court finds was not disputed. From this it is clear that defendant knew plaintiff had complied with the law, and bases his contention upon the claim that it must be shown affirmatively by plaintiff.

The statute invoked by defendant, which is section 3081, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5603), reads:

“It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city for personal injuries or otherwise, that it has never been presented * * * to the council for allowance.”

The fact that a claim has not been presented for allowance is made by the statute a matter of defense. This statute does not provide that the omission to present any claim shall be a bar to an action against the city therefor, as is sometimes provided by charter, but distinctly states that it shall be “a sufficient defense in any court.” The court was therefore not in error in refusing to direct a verdict for defendant.

The denial of the motion for a new trial is not seriously discussed by appellant. An examination of the reasons upon which it is founded satisfies us that the disposition made of the motion by the court was correct. The record shows that plaintiff was seriously injured; that the case was carefully submitted by the trial court to the jury, and that the verdict of the jury cannot be considered excessive, but was supported by the evidence in the case.

The judgment of the circuit court is affirmed.

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


text:
    O'NEILL v. ANCIENT ORDER OF GLEANERS.
    1. Insurance — Praud or Oppression — Mutual Benefit Policy— Evidence — Remedy Within Order.
    Where the beneficiary, in a mutual benefit policy, filed her petition for a hearing on her claim, which was granted by the society issuing the policy, and at the hearing her attorney submitted no proofs relative to the age of decedent, which the insurer had questioned, but submitted merely an offer of compromise which the insuring body rejected, and it appeared that the attorney for the beneficiary had made no attempt to push the settlement of the controversy after receiving notice that the claim would be considered, and that he filed no complaint relative to its failure to act, but suffered the matter to stand nearly two years after the filing of the petition, when he wrote requesting defendant order to fix a date for hearing, presenting no proofs, as requested by the order at that time, and taking no appeal from the final rejection of the claim, no sufficient excuse on the ground of fraudulent or oppressive action was made out and the defense, available under plaintiff’s policy that the remedies within the order had not been exhausted, was conclusive against the claim.
    2. Same.
    And where the administrator of such beneficiary took no steps after her death to obtain a hearing before the supreme council of the order, he was not entitled to resort to the courts.
    Error to St. Clair; Tappan, J.
    Submitted January 27, 1913.
    (Docket No. 1.)
    Decided September 30, 1913.
    Rehearing denied January 5, 1914.
    Assumpsit by Larry E. O’Neill, administrator of the estate of Julia Breen, deceased, against the Ancient Order of Gleaners upon a benefit certificate. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Charles S. Hampton and James A. Muir, for appellant.

      C. L. Benedict and William R. Walsh, for appellee.
   McAlvay, J.

This is an action brought by the representative of Julia Breen, deceased, who was named as beneficiary in a certain benefit certificate for $1,000 issued by the defendant order to her husband, Maurice Breen, at the time he became a member of said order, and dated June 11, 1900. The trial resulted in a judgment for the amount claimed due. Defendant has removed the case to this court for review.

The following are the material facts in the case: Maurice Breen, a farmer living in St. Clair county, Mich., on May 14, 1900, made the usual application in writing for membership in defendant order, among other things stating and warranting, in answer to questions in said application, that his birthday was July 24, 1850, and also that any untrue or fraudulent answer “in regard to my * * * age, * * * or neglect to pay assessments, * * * shall vitiate my benefit certificate and forfeit all payments made thereon.”

The foregoing benefit certificate was issued to him upon this application in the amount of $1,000, payable to his wife, Julia Breen, in case of his death while a member in good standing, and a further agreement to loan the member $20 per month under certain conditions in case of disability. The laws of this order provided that no person above the age of 50 years could become a member.

In October, 1904, upon the occasion of a visit to the local arbor at Emmett, Mich., of which Maurice Breen was a member, by the chairman of the supreme council of the governing body of the order, the question was brought up regarding the age of Maurice Breen and his right to membership. Inquiry was made by this officer of defendant upon this subject and an investigation was started. Maurice Breen was notified by a letter from the supreme secretary of the order to furnish evidence to substantiate his application as to his age, as follows:

“October 28, 1904.

“Maurice Breen,

“Emmett, Michigan.

“Companion:

“I am directed by the supreme council to inform you that it will be necessary for you- to forward to this office information in the shape of an affidavit or signed statement from those who can furnish such evidence that will substantiate the statement regarding your age as given in your application for membership in this organization. You will understand that in case of your death, absolute information as to the date of your birth must be had, and if an error is found, of course your certificate is invalidated, therefore for your protection, you should see that this affidavit is furnished at once. Kindly give this matter your prompt attention as evidence should be in my hands before the next meeting of the supreme council. Fraternally yours,

“G. H. Slocum.”

He neglected to do anything in regard to the matter and the local secretary was instructed by the supreme council not to receive any further dues or assessments from him. He received this notice in May, 1905, and continued to tender his dues after that date. He died December 26, 1905.

In August, 1906, the beneficiary, Julia Breen, filed her petition with the defendant order for a hearing of her claim under such beneficiary certificate. Before this time she had requested blanks to fill out formal proofs of death and on July 13, 1906, received a communication from the supreme secretary, refusing to furnish such blanks on the ground that Maurice Breen was not a member in good standing at the time of his death. A hearing was granted on this claim September 11, 1908, at which the attorney for Julia Breen was present. He offered and submitted no proofs to sustain the claim but submitted for consideration a proposition for settlement, which was not accepted. Defendant claims that all of the proofs in its possession relative to the age of Maurice Breen at the time he became a member were communicated to this attorney. Julia Breen was not' then living, having died April 4, 1908. Letters of administration of the estate of Julia Breen were granted plaintiff August 26, 1910. The declaration in this case was filed September 10, 1910. The facts relative to this matter which occurred between September 11, 1908, and the commencement of this suit which are shown by the record will, as far as may be necessary, be stated in connection with the discussion upon that proposition.

There are several very important questions raised by the appellant upon the errors assigned. The principal contention of appellant in this case is that plaintiff did not exhaust- his remedy in the forum established by defendant order in its constitution as required of its members, and that no action can be maintained in the courts unless the claimant has been fraudulently deprived of his rights under the laws of the order. The facts established by the record relative to the matter of the petition of Julia Breen have already been stated. The petition was accompanied by a letter dated August 20, 1906, which inclosed the petition and asked for notice, when the matter would come up for hearing.

On August 23d defendant acknowledged receipt of the petition and letter of August 20th, stating that the meeting would probably occur in September or October and that noticq^would be given. With the exception of a letter inquiring about the date of a hearing written according to its date in the record in August, 1906, the claimant took no further steps' in the matter until September 20, 1907, more than a year later, when her attorney wrote the attorney of defendant order relative to the claim, saying that he would like to take it up and get a settlement and asked when they would have a meeting. After that date and before the date fixed for hearing, several letters passed between the attorneys of the parties of like import, relative to the time a date of hearing would be fixed.

As already stated in the recital of facts, the meeting of the supreme council was held September 11, 1908, at which time claimant’s attorney was in attendance. He put in no proof but submitted a proposition of settlement and left the meeting. The minutes of this meeting show that he claimed to appear “for the representatives of both said member and said beneficiary, both deceased.” After the meeting the attorney for Julia Breen wrote two letters, on December 8, 1908, and January 26, 1909, to the attorney for defendant order, asking for information, and on January 26th he also wrote a letter to the general secretary of the order. This letter was answered February 3, 1909, as follows:

“Detroit, Michigan, Feb. 3, 1909.
“Joseph Walsh, Attorney,
“Port Huron, Michigan.
“Dear Sir: Your favor of recent date at hand and in reply will say that I have intended to write you in regard to the Breen case, and think I promised Mr. Wixon that I would do so but the matter entirely escaped my attention.
“At'a meeting of the supreme council held after Mr. Wixon consulted you, I found that the members of the supreme council were divided as to the instructions given Mr. Wixon. There were only two members of the supreme council present at that meeting, and at the last meeting held on the 21st there was a full board present and the matter was again brought up for consideration. All members of the board agreed that Mr. Wixon was instructed to talk with you with reference to this matter and find out just what position you were going to take with reference to this case, and he was to make his report to me. Mr. Wixon, on the other hand, understood that he was to consult with you with reference to an adjustment of the case.
“Now, Mr. Walsh, I can assure you that we are anxious to do what is right in connection with all cases of this kind, but personally I feel that this ought to properly come before the delegates at the biennial meeting and not be adjusted by the board. We were perfectly sincere in our efforts to get Mr. Breen, during his lifetime, to furnish us evidence as to his age, and having taken action that we considered fair and legitimate, it does seem wrong for us to now when both the member and his beneficiary are dead and gone, to adjust this matter and thereby acknowledge that we did wrong while this member was alive. I am sure that the board would be willing to allow you to present the matter to the delegates at the coming biennial meeting, and I would suggest that you present the matter to them asking them to take this up, first presenting it to the supreme council and then asking to come before the delegates at a biennial meeting assembled. However, should you like to appear before the board and present this matter again when you have plenty of time, and go thoroughly over the matter, I should be glad to advise you of the date of their meeting. You will remember that when you were here there was a ball game on and neither yourself nor Mr. Wixon had time to go thoroughly into the details of the case.
“Awaiting your further desires in regard to this case, I am, Fraternally,
“G. H. Slocum.”

There is further correspondence claimed to have been carried on between the two attorneys, but the letter of February 3, 1909, from the general secretary was never answered.

On June 16, 1910, the attorney who represented Mrs. Breen during her lifetime wrote the following letter to defendant order:

“Port Huron, Mich., June 16, 1910.
“Ancient Order of Gleaners,
“Gleaner Temple, Woodward Ave.,
. “Detroit, Mich.
“Gentlemen:
“It is quite a long while since I submitted the claim of Breen against the Gleaners to your committee for their consideration, and although I have written your Mr. Slocum and other officers of your organization, I have been unable to find what action you have taken upon the matter. Will you kindly advise me what you intend to do? Yours truly,
“Joseph Walsh.”

Which was answered by the general secretary as follows:

“Detroit, Mich.,
“July 1, 1910.
“Joseph Walsh,
“Port Huron, Mich.
“Dear Sir:
“Your favor was received at the office during my absence and has just been presented to me for my consideration. Attorney Wixon, at Caro, certainly must have informed you of the action of, the supreme council with reference to the so-called Breen claim. He was informed that the supreme council did not feel that they should assume any liability under this claim, and they refused to settle for $250.00, the amount agreed upon between yourself and Mr. Wixon.
“I would suggest that you write direct to him for any further information you may desire.
“Sincerely yours,
“G. H. Slocum.”

From the history of this correspondence and the letters themselves which have been given at as great length as the necessities of the case required, must be established the contention of plaintiff that he has been deprived of a hearing on this claim by fraud and oppression practiced on the part of the officers and agents of defendant order.

The petition of Julia Breen was filed August 20, 1906. Its receipt was promptly acknowledged by letter to her attorney, stating why a meeting could not be held until September or October following. With the exception of one letter written soon after the petition was filed, no effort was made on her part or by her attorney to prosecute this claim until one year and one month later, to wit, September 20, 1907. Between the last-mentioned date and the date of her death, which occurred April 4, 1908, but two letters were written by her attorney to the attorney of the order making inquiry relative to a hearing upon this claim, in neither of which is any complaint made because of delay, and in one it appeared that the delay had been caused by this attorney for the purpose of accommodating his friend, the attorney of the order, because he had an election on his hands. We do not find in this correspondence, from the time of filing the petition until the death of claimant, anything whatever to indicate an unwarranted delay caused by defendant or that fraud and oppression were contemplated or practiced by it against Julia Breen. After her death up to the time of the meeting of September 11, 1908, but one letter was written by Mrs. Breen’s attorney to the general secretary of defendant requesting that a date be fixed for the hearing “in the matter of Breen v. Gleaners This was dated July 16, 1908 (more than three months after her death), and was answered July 24, 1908, to the effect that the date of the meeting when fixed would be given him by the attorney, and on August 3d following the attorney wrote that such meeting would be held soon in Detroit and the exact date would be given.

The meeting called to hear this claim was held September 11, 1908. As far as the record shows, the death of Julia Breen was first made known to defendant order at this meeting when the attorney who ha’ always represented her in the matter of her claim stated that he appeared “for the representatives of both said member and said beneficiary, both deceased.” This is the meeting of which plaintiff in this suit complains and charges that no proofs were introduced on the part of defendant. The attorney, who had charge of the claim from the time of filing the petition and under whose supervision it had been prepared, knew, as stated in the petition, the reason the defendant order refused to pay the claim, and also that during the lifetime of Maurice Breen, after the order had requested him to furnish proofs of his age, his standing in the order was questioned. He had been consulted about the matter, and as a witness in the instant case testified:

“I knew they attempted to suspend him because he did not furnish the proof of his age.

“Q. Do you know of any attempt on the part of Maurice Breen during his lifetime to be reinstated into the order?
“A. Why, no, there was no such attempt. I advised Mm that he didn’t have to be, and that they didn’t have any authority to put him out at all.”

The following is article 5, § 1, subd. 15, of the constitution of the order:

“(15) The supreme council shall have power to pass upon all death and permanent disability claims, and if in their judgment any such claim is not on its face a valid one, they shall notify the beneficiary or beneficiaries of the deceased member thereof in case of death claim, and the insured member thereof in case of permanent disability loans, and give them or their attorney an opportunity to appear before the supreme council within sixty days thereafter and present such evidence as they may have, to establish the justice of said claim, and the supreme council shall try, hear and decide upon the justness or validity of such claim, and such decision shall be binding and conclusive upon said claimant unless an appeal is taken to the biennial meeting of the supreme arbor. The notice of the appeal from the decision of the supreme council must be filed with the supreme secretary within sixty days thereafter. The decision of the biennial meeting shall in all cases be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary against the supreme arbor.”

Under defendant’s constitution such hearings were held for the purpose of giving claimants an opportunity to present such evidence as they might have to establish the justice of their claims. At this hearing this attorney submitted no proofs, as he testified:

“Q. You didn’t furnish any proof whatever to the order when the order requested it with reference to the age of Maurice Breen?
“A. Nothing at all. I didn’t deem it at all necessary that we should furnish them any proof.”

He only made an offer for settlement and left the meeting. This offer of settlement was not accepted. It is apparent from the record that the supreme council held this meeting under subdivision 15 of the constitution, supra, and it is also apparent that claimant made no attempt to establish her claim. Plaintiff in his declaration charges that afterwards, without notice to Julia Breen, or plaintiff, or his attorney, the supreme council met and rejected the entire claim fraudulently and oppressively and without evidence.

After September 11, 1908, letters passed between the parties. The attorney for Julia Breen wrote two letters to the attorney and one to the general secretary of the order asking for information, which the secretary answered February 3, 1909. This last letter is already given at length, upon reading which we conclude that it contains no evidence of a desire to deprive the attorney of a hearing or to defraud and oppress the claimant. On the contrary, it will bear no such construction. No reply was ever received to this letter, although it called for a reply. Later correspondence before the commencement of this suit does not require consideration as it is not important and has no bearing upon the immediate proposition under consideration.

Our conclusion from all of the evidence in the case upon the question we are considering is that Julia Breen was not by fraud and oppression deprived of her right to be heard upon her claim as beneficiary of Maurice Breen, and that she had not exhausted her remedy in the forum of the order, and that neither during her lifetime nor afterwards is there any evidence of the practice of any fraud or oppression in this matter on the part of defendant order. The facts have been presented and discussed which occurred after the death of Julia Breen for the purpose only as bearing upon the conduct of defendant and its officers charged to have been fraudulent and oppressive in dealing with Julia Breen.

As far as the plaintiff in the instant case is concerned, his right and authority to represent the estate of Julia Breen was created after all the occurrences already recited. Letters of administration were not issued to him until August 26, 1910. The record is barren of any evidence showing or tending to show that he, or any one in his behalf, has applied to defendant order or taken any steps or proceedings whatever looking toward a hearing before its supreme council, the body authorized to hear, determine, and allow for him, as the representative of the estate of Julia Breen, beneficiary, deceased, this claim against the defendant order, arising upon the certificate issued to Maurice Breen. He must therefore be held not to be entitled to resort to the law courts, on his own showing, not having availed himself of or exhausted his remedy provided by the order.

The circuit court was in error in not granting the motion made on the part of defendant and appellant to direct a verdict in its favor upon that ground.

The judgment of the circuit court is reversed and set aside, and no new trial will be granted.

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


text:
    STATE SECURITY & REALTY CO. v. SHAFFER.
    Specific Performance — Equity—Value.
    Specific enforcement, being a discretionary remedy, will not be granted to compel an exchange of real property, where complainant’s property was shown to be of little, if any, value, above an incumbrance outstanding against it, although it had been represented to defendants as worth from $7,000 to $10,000 more than the debt secured; and where defendants’ property was worth $10,000 or upwards.

      Appeal from Gratiot; Searl, J.
    Submitted January 30, 1913.
    (Docket No. 73.)
    Decided September 30, 1913.
    Bill by the State Security & Realty Company against John R. Shaffer and another for specific performance of a contract to exchange real property. From a decree for defendants, complainant appeals.
    Affirmed.

      George A. Safford and Ralph B. Wilkinson (George P. Stone, of counsel), for complainant.

      Thomas A. Conlon and O. G. Tuttle, for defendants.
   McAlvay, J.

The bill of complaint in this cause is filed to enforce specific performance of the following contract:

“Detroit, Michigan, April 15, 1910.
“State Security and Realty Company,
“814 Majestic Bldg.,
“Detroit, Michigan.
“Gentlemen:
“We herewith submit the following proposition:
“For and in consideration of the covenants hereinafter mentioned, we agree to turn over to you by bill of sale and a good and sufficient deed, free from all incumbrances, the following property, to wit:
“Stock of merchandise, consisting of dry goods, clothing, furnishings, notions, boots and shoes, hardware, agricultural implements, harnesses and collars, stationery, confectionery, crockery, drugs, paints, oils, sundries, etc., etc., invoicing at about $5,000, contained in what is known as the store building and all other outlying buildings hereinafter mentioned, -or upon the premises belonging to us in the village of Elm Hall, Sumner township, Gratiot county, Michigan, or any other place or places where said stock may happen to be stored.
“Also the real estate with appurtenances [thereunto] belonging or in any wise pertaining known as the store building (two stories and basement), wing (one story and basement), barn (two stories), and what is known as the Grove House (two stories) with wing (one story), and what is known as the Iron-sides House (two stories) with new barn, also what is known as the Hill House (two stories), also what is known as the Gill barn (two stories), and the wing (one story), and what is known as the Red-Shed (two stories), the granary and corn crib (two stories), the Strayer barn, and what is known as the Blair Shed, together with all lands fenced or otherwise belonging to any of said property, for which we are to receive from you in payment thereof by good and sufficient deed the following property situated on the northwest corner of Piquette and St. Antoine streets in the city of Detroit, Wayne county, Michigan, and more particularly described as the south ninety-three (93) feet in depth of lot five (5), and the south ninety-three (93) feet in depth of the east thirty-five (35) feet of lot four (4), being eighty (80) feet on Piquette by ninety-three (93) feet on St. Antoine street, of Emily Campau’s subdivision of section thirty-one (31), upon which incumbrances exist to the amount of $10,000.
“In further consideration for which we agree to pay as follows:
“Twelve hundred dollars ($1,200) cash when the documents are passed between us closing the deal, which shall be within thirty days or as much earlier as the necessary papers can be executed, we to assume a mortgage for an amount which it will be necessary for you to make on which to raise money to retire any part of the present incumbrance of $10,000, and to execute a mortgage to you for an amount equal to the difference between the $15,000 due you in settlement (after the cash payment of $1,200 before mentioned), and the mortgage which you execute on said property.
“The terms of the above mortgage or mortgages shall be such that we will pay $1,000 six months from the closing of this transaction and interest on the full amount of $15,000 at six per cent., and $500 every six months thereafter, with interest on all sums remaining unpaid at the rate of six per cent. The full amount to become due five years from date. We to have the privilege of paying as much in excess of the above payments at any interest date as we may so desire to do, or if you choose to give us a warranty deed, we will execute a mortgage to you for the sum cf $15,000 on the same terms as above.
“Both parties to furnish abstracts showing clear title to all* properties mentioned herein with the exception of the incumbrances already existing, and to be made as herein stated.
“We also agree to operate the store until such time as you can place someone in charge of the property making returns of all sales and caring for the business and property the same as if we were still the owners of the same, for which we shall receive a reasonable compensation, the property to remain under our care not longer than thirty days.
[Signed] “John R. Sharper,
[Signed] “Tillie A. Sharper
“Accepted this 9th day of May, 1910.
“State Security & Realty Co.
[Signed] “F. E. Bushman,
“President.”

The defendant John R. Shaffer, a physician, had resided at the village of Elm Hall for 85 years. Desiring to exchange his property there for Detroit property, he listed his holdings with William E. Landers, of Detroit, as a real estate agent. Landers, who was manager of an insurance agency, had turned over his real estate business to Arthur D. Brooks under an agreement that all commissions should be equally divided. Brooks brought defendants’ property to the notice of Franklin E. Bushman, who is president of the complainant company. A trade had been made between defendant John R. Shaffer and Bushman, in which one of Shaffer’s farms was disposed of to Bushman. During the negotiations involved in this trade, Bushman went to Elm Hall and became acquainted with defendants’ property. Later Bushman, through Brooks, offered different trades to defendants for this property and finally on April 15, 1910, suggested a trade for the Piquette avenue property. The terms were discussed and Shaffer returned to his home, having instructed Bushman to draw up a proposition. The contract in question was drawn by Bushman in duplicate or triplicate and all copies handed by him to Brooks, who forwarded them to defendants at Elm Hall. The proposition was at once executed by the two defendants and returned to Brooks, who in turn handed one of the copies to Bushman. No notice of acceptance (in express terms) was given to the defendants by Bushman, Landers, or Brooks, but on May 9th Brooks wrote defendants that the abstracts were ready and that they should come in as soon as convenient. Accordingly they went to Detroit on May 13th, with the expectation that the deal would be closed. Bushman had arranged for a mortgage for $15,000 upon the property with one Barnard. This mortgage was to be executed by the defendants and was by them so executed on the afternoon of the 13th; it being expected that the papers would be passed the following day. In the meantime some irregularities had been discovered in the abstract of the Piquette avenue property by defendants’ attorney, and complainant’s attorney discovered some omissions in the deed which defendants had executed. On the evening of the 13th and the morning of the 14th defendants visited the Piquette avenue property, made some inquiries as to the value, and concluded it was worth much less than the sum of $28,000, the price at which they had proposed to trade for it. Defendant John R. Shaffer went to complainant’s, office, repossessed himself of his abstract, and walked out. A deed was tendered to him by complainant which he refused. Brooks had an arrangement with Bushman, by the terms of which he was to receive 1% per cent, from Bushman if the deal went through. Landers’ agreement with defendants was for 2 per cent, commission. Defendants had no knowledge that Brooks, who was associated with their agent, was being paid a commission by Bushman, one-half of which was to go to Landers. It would seem from the record that neither Landers nor Brooks had any authority to act for or bind the defendants. At the time the negotiations were in progress, there were two mortgages upon the Piquette avenue property, one for $6,000 to the Dime Savings Bank, and a second one which was in process of foreclosure. In order to secure a loan of $15,000 on the property, Bushman agreed to pay a commission of $1,500. He likewise agreed to give a mortgage as further security upon some 16 vacant lots valued by him at $300 each, as well as to sign the $15,000 note himself and secure the signatures of his wife and one or two associates. Witnesses for complainant estimated the value of the Piquette avenue property at from $22,000 to $25,000.

On behalf of defendant some seven witnesses were sworn as to value. The value of complainant’s property as given by these witnesses (and they seem to be reasonably competent and reliable) varies from $12,400 to $16,700; the average being about $15,000. Defendants valued their Elm Hall property at $11,800. Complainant contends that this valuation is grossly exaggerated. The court below dismissed complainant’s bill, and it has appealed.

In support of the decree defendants contend that the contract cannot be enforced because of lack of mutuality. Hollingshead v. Morris, 172 Mich. 126 (137 N. W. 527, 41 L. R. A. [N. S.] 310), and cases cited. We find it unnecessary to consider this phase of the case for the reason that we have concluded that the contract in question is one which should not be enforced in equity. Assuming the valuation of complainant’s property given by defendants’ witnesses to be correct, it is apparent that the mortgage for $15,000, subject to which defendants were to take it, represented practically the entire value. The fact that complainant agreed to pay a commission of $1,500 upon a $15,000 loan and was obliged to give other security as well is to our minds rather convincing proof that the Piquette avenue property was not worth much more than that sum.' So that, if the contract is specifically enforced, defendants would be compelled to transfer their property (be it worth little or much) to complainant practically for nothing.

Specific performance is not a remedy of right but is within the legal discretion of the court. Chambers v. Livermore, 15 Mich. 381; Chapman v. Morgan, 55 Mich. 124 (20 N. W. 820); Cox v. Raider, 138 Mich. 249 (101 N. W. 531). And will be refused' where it is inequitable to grant it. Rust v. Conrad, 47 Mich. 449 (11 N. W. 265, 41 Am. Rep. 720); Rathbone v. Groh, 137 Mich. 373 (100 N. W. 588). See, also, 26 Am. & Eng. Enc. Law (2d Ed.), pp. 67, 68.

The decree of the court below is affirmed, with costs.

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


author: Moore, J. Kuhn, J.

text:
    KING v. GRAND RAPIDS RAILWAY CO.
    1. Street Railways — Contributory Negligence — Subsequent Negligence — Last Clear Chance.
    The doctrine of subsequent or discovered negligence is applicable to an action for personal injuries sustained by plaintiff who stopped his automobile on defendant’s street car tracks to permit a third person to get in, remaining about half a minute in that situation after looking for a car and seeing none approaching, the engine of the automobile running and the car coming up without giving a signal, striking the machine as plaintiff was trying to clear the track, the evidence showing that the motorman had a clear view of the track for 340 feet. Steere, C. J., and Moore and Brooke, JJ., dissenting.
    2. Same — Trespassers—Negijgence.
    Plaintiff was in no sense a trespasser, and if the motorman, after discovering that plaintiff was on the track, failed to take reasonable precautions to avoid injuring him, the precedent negligence of plaintiff was no defense.

    Error to the superior court of Grand Rapids; McDonald, J., presiding.
    Submitted January 13, 1913.
    (Docket No. 93.)
    Decided September 30, 1913.
    Case by George W. King against the Grand Rapids Railway Company for personal injuries. Judgment for defendant, on a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Lombard, Hext & Washburn, for appellant.

      Kleinhans & Knappen (M. L. Dunham, of counsel), for appellee.

       On. tbe question of tbe duty of operator of automobile wben near street cars, see note in 38 L. R. A. (N. S.) 493.

   Moore, J.

(dissenting). From a directed verdict in favor of the defendant, this case is brought here by writ of error.

Hall street in the city of Grand Rapids runs east and west. It is intersected by Madison avenue running north and south. The plaintiff is a physician and had an office on the west side of Madison avenue about five doors north of Hall street. On the north side of Hall street, a short distance east of Madison avenue, is a garage in which plaintiff kept his automobile. The defendant company has a double track in Hall street upon which it ran its cars. The street was practically level east of the garage for a distance of about 340 feet, after which there was a hill to Union street, where the car line turned south. A person upon the street car track in front of the garage had an unobstructed view to the east for at least 340 feet, and of course the motorman of a street car had a like unobstructed view of the track to the west.

On the 2d day of June, 1911, the plaintiff with a young man went to the garage for the purpose of obtaining his automobile. The plaintiff drove his automobile out of the garage into the street with his machine headed slightly toward the east, as he was expecting to go in that direction. Upon reaching the street he looked in both directions and there was no street car in sight. He thereupon stopped the car upon the west track and turned about, watched the young man close the door to the garage, and waited for him to come to the machine. He left the engine running during this time. This occupied approximately one-half minute. Just as the young man got into the automobile, the plaintiff discovered a street car coming at what he says was a high rate of speed. He immediately attempted to get clear of the track. His machine responded but not in time to escape being struck. As the result of this collision, the automobile was crushed and the plaintiff injured. This occurred in broad daylight.

Upon the trial of the cause, after the testimony offered in behalf of the plaintiff was in, defendant swearing no witnesses, the trial judge directed a verdict of no cause of action upon two grounds:

First. That the plaintiff was guilty of contributory negligence as a matter of law in stopping his car upon the street car track and remaining there during the time mentioned.

Second. That the principle of subsequent or discovered negligence would not apply because the plaintiff was guilty of concurrent and continuous negligence.

The only question is: Did the court err in directing a verdict? Counsel discuss two propositions:

“(1) That the plaintiff was not guilty of contributory negligence as a matter of law.
“(2) If he was guilty of contributory negligence as a matter of law, yet the defendant was guilty of subsequent and discovered negligence.”

We will discuss these two propositions in the order named. Under the first head counsel say:

“There is no rule of law requiring one to give a street car an absolute right of way. We concede that it would have been his duty to get off the track as soon as he could consistently, after discovering the approach of the car, and the evidence here shows that he made every effort to get away as soon as he knew ofthe presence of the car. Upon this question we call the court’s attention to the following cases where it seems to us the propositions we have stated are fully sustained: Rascher v. Railway Co., 90 Mich. 413, 415 [51 N. W. 463, 30 Am. St. Rep. 447]; Laethem v. Railway Co., 100 Mich. 297 [58 N. W. 996]; Manor v. Railway Co., 118 Mich. 1 [76 N. W. 139]; Quirk v. Railway, 130 Mich. 654, 656 [90 N. W. 673]; Ablard v. Railway, 139 Mich. 248 [102 N. W. 741]. These cases hold that street railway companies do not possess the exclusive right to that portion of the highway covered by their tracks, but that the ordinary traveler upon the highway has the right to use every portion of the highway, including the strips between the rails. And he is only required to yield this right when his presence upon the track will unnecessarily blockade or delay the passage of cars.”

A reference to these cases undoubtedly discloses the rule to be that street cars do not have an exclusive right to the street, but none of them suggest that, where one knows, as did the plaintiff, that a street car might appear at any time having the right to run under the ordinance at the rate of 15 miles an hour, he might without’ negligence stop his automobile on the street railway track in the middle of 'the block without any reason for doing so and remain-with his head turned so he could not see an approaching car for a half minute or more. We think it may be said this was not the act of a reasonably prudent man. See Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139); Merritt v. Foote, 128 Mich. 367 (87 N. W 262), and the many cases cited therein; Cardinal v. Railway Co., 165 Mich. 155 (130 N. W. 627); Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451).

2. Was the motorman shown to be guilty of subsequent or discovered negligence? It already appears that no witnesses were sworn for defendant. There is nothing in the testimony to indicate that the motorman had reason to suppose the machine was stalled upon the track and that it would not at once move away. There is nothing to show that, after the motorman discovered that plaintiff would not drive off the track in time to avoid a collision, the motorman failed to do what he could to avoid an accident. Can it be said that negligence on the part of the motorman, if there was negligence, to discover that the plaintiff was in danger is the equivalent of discovered danger?

In Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), Mr. Justice Montgomery, speaking for the court, said among other things:

“But it is said that there was testimony from which the jury might have inferred that the plaintiff’s position was discovered in time to enable the defendant to avoid the collision. It is a rule recognized by repeated decisions of this court, and maintained by text-writers, that the fact of a precedent negligence of plaintiff, resulting in producing a situation or a condition known to defendant, who, after the discovery of such condition, may, by the exercise of care, avoid injury, is not a contributory cause to an injury thereafter produced by the disregard of this discovered condition. One of the earliest cases to lay down this rule is Davies v. Mann, 10 Mees. & W. 546. This rule is well stated in Bish. Non-cont. Law, § 466:
“ ‘It is sometimes very correctly said that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which he is liable to the other for the damages which follow from his own want of care, for, however nearly related two separate negligences may be, tbe one cannot bar an action for the other unless it is contributory, and, though an unseen position might contribute to an accident, a discovered one cannot.’ ”

• In Drown v. Traction Co., 76 Ohio St. 234 (81 N. E. 326, 10 L. R. A. [N. S.] 421, 118 Am. St. Rep. 844), the court said in part:

“The doctrine of the ‘last chance’ has been clearly defined by a well-known text-writer as follows:
“ ‘Although a person comes upon the track' negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so.’ * * * 2 Thompson, Negligence § 1629.
“* * * Now, it must be apparent, upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of ‘the last clear chance.’ * * *
“It is clear, then, that the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. * * * But further, there is testimony tending to prove that the plaintiff’s team was driven upon the street railway track in the nighttime, ahead of the car, and that it continued on the track for a distance of 250 feet until .struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding the accident, yet the plaintiff’s negligence was continuous and was concurrent at the very moment of the collision. It proximately contributed to the collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant which was independent of the concurrent negligence and which made the latter remote. Therefore there was no place in the case for the doctrine of ‘the last clear chance.’
“There is a case, which was decided in the sixth circuit, which will illustrate our views, and a reference to it may save some further discussion. It is the case of Lake Shore, etc., R. Co. v. Callahan, 2 Ohio Cir. Ct. R. (N. S.) 326; s. c., 15 O. C. D. 115. A railroad section man, in obedience to an order by his foreman, started to walk along the track with his back to a locomotive 200 or 300 feet away, but without observing whether the engine was standing still or running backward, and he walked along the track for 75 feet without paying any further attention to the engine, which was in fact backing toward him, and was struck by it and injured. The court held that it was a case of concurrent negligence, continuing to the moment of the injury, that the doctrine of ‘the last chance’ did not apply, and that plaintiff was guilty of contributory negligence.”

In O’Brien v. McGlinchy, 68 Me. 552, the court said in part:

“Generally, it is a defense to an action of tort that the plaintiff’s negligence contributed to produce the injury. But in cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant. This rule applies usually in cases where the plaintiff or his property is in some position of danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot and the defendant can prevent an injury. * * * But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.”

See Fort Worth, etc., R. Co. v. Shetter, 94 Tex. 196 (59 S. W. 538); 2 Nellis on Street Railways (2d Ed.), § 462; Bennichsen v. Railway Co., 149 Cal. 18 (84 Pac. 420).

In the instant case the plaintiff stopped in the middlle of the block upon a street railway track where a car running at the rate of 15 miles an hour might be expected at any moment, with the engines of his car running so that in a second of time he might have reached a place of safety, and remained in that position, with his head turned so that he did not see the approaching car until it was too late. The original act of negligence was continued until the catastrophe happened.

Judgment is affirmed.

Steere, C. J., and Brooke, J., concurred with Moore, J.

Kuhn, J.

I cannot agree with the conclusion reached by my Brother Moore that the doctrine of subsequent or discovered negligence does not apply in this case. While no witnesses were sworn for the defendant, it appears from this record that at the place where the collision occurred the track of the defendant company was straight and there was no difficulty for the motorman to see at least a distance of 340 feet. It also appears from the testimony of the plaintiff that no warning was given by the motorman of the approach of the car, and that he did not know that the car was upon him until it was within a few feet of his automobile. The motorman must have seen, if he was properly attending to the work devolving upon him in operating the car, the dangerous situation of the plaintiff, and he could easily have stopped the car after discovering the same and thus avoided inflicting the injuries which resulted from the collision.

This court has held that the rights of the railroad company and the drivers of other vehicles upon the highway are mutual, and it seems to me that it was the duty of the motorman, considering the fact that the physical conditions were such that he had a clear view for 340 feet, when he discovered the situation of danger that the plaintiff was in, to bring his car to a stop and thus avoid the accident.

In the case of Quirk v. Railway, 130 Mich. 654, 656 (90 N. W. 673), this court said:

“This is not a steam railroad. The plaintiff was in no sense a trespasser. This railroad company occupies a portion of the public highway. Travelers have the right to continue to travel upon this highway, and are not to be treated as trespassers; and if, after discovering that the plaintiff was upon the track, the motorneer failed to take proper precautions to prevent injury to him, a precedent negligence of the plaintiff, if there was any, constitutes no defense.”

See, also, Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139); Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Ablard v. Railway, 139 Mich. 248 (102 N. W. 741); Cooley on Torts, p. 674.

This question should have been submitted to the jury, and I am therefore of the opinion that the case should be reversed and a netv trial granted.

McAlvay, Stone, Ostrander, and Bird, JJ., concurred with Kuhn, J.