text:
    SAKOL v. RICKEL.
    Master and Servant — Dangerous Machinery — Assumption of Risk — Contributory Negligence.
    An employé who, in the line of his duty, has frequently oiled a revolving shaft at a point within four inches of a set screw, although required to enter a dark recess for that purpose, cannot recqver for injuries received by reason of his clothing coming in contact with the screw while he was leaning over the shaft, without a light, to perform another service.
    Error to Wayne; Donovan, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.
    Case by Martin Sakol against Henry Rickel for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      S. E. Engle, for appellant.

      Brennan, Donnelly & Van De Mark and Bernard B. Belling, for appellee.
   Montgomery, J.

Plaintiff sues for negligent injury. The defendant is one of the firm of H. W. Rickel & Co., engaged in running a malt elevator in the city of Detroit. The plaintiff was employed in the elevator, which was separate from the rest of the establishment of defendant. Louis Kemm was foreman of the entire plant. Whenever it was necessary to start the machinery in the elevator, it was also necessary to let the grain into the hopper, and the starting of the machinery and the running of the grain in the hopper made up part of the duty of the plaintiff. The slide by means of which the grain was permitted to pass into the hopper was in a recess of the main building of the elevator, and contained at one side the shafting upon which the main belt ran. The slide was above the shafting. Upon one end of the shaft there was a collar designed to keep the shaft steady, so that the cogs would match properly, and, to keep the collar on, a set screw was employed. The set screw was right at the entrance to the recess, and was in plain sight, and projected a scant inch. The plaintiff had worked in the little room containing this machinery during the entire winter of 1894-95, and during the fall of 1895, for several weeks, before he was hurt. He testified that, although he had never cleaned the shaft, he was the one who constantly oiled it and set it in motion. Plaintiff testified that he was the only man who worked on the machinery, with the exception of three weeks just before plaintiff was injured; “then there was another man, who mostly kept things clean; that was his work; he did not open the slide nor oil the shaft.”

It was claimed by plaintiff that he did not see the set screw, because it turns around the shaft, and sometimes it might be up and sometimes down, and he could not see; that there were dust and oil and sprouts there covering it up; that he oiled the bearings some days once and may be twice a day, sometimes once in two days, as necessity arose; that he generally oiled the machinery while it was running, and in such a case used a lamp; that he used a lamp while it was running, because it was dangerous then; that he oiled the machinery in four places, one of which was three or four inches from the set screw; that he never noticed the set screw, because he never looked for it; that he had nothing to do with it.

The testimony on the trial was to the effect that plaintiff went into the little room while the machinery was running (he having started it himself) without a light, although he knew that it was dangerous to approach the running machinery in the dark. He then mounted the stepladder and leaned over the running machinery. His loose jeans jacket caught in something, supposedly the set screw, and he was wound around the shaft until the belt flew off. The plaintiff offered no proof that there was a safer manner of holding the collar upon the shaft. The circuit judge directed a verdict for defendant, and plaintiff brings error.

We think there was no error in this ruling. The case is on all fours with Rooney v. Cordage Co., 161 Mass. 153. See, also, Goodnow v. Emery Mills, 146 Mass. 261; Michigan Central R. Co. v. Smithson, 45 Mich. 212; Lamotte v. Boyce, 105 Mich. 545.

Judgment affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    UNION TRUST CO. v. MABLEY & CO.
    Insolvent Corporations — Claims—Promise op Receiver — Consideration.
    An insolvent corporation executed a mortgage upon its goods and chattels in trust for certain creditors, and, upon application, a receiver was appointed. Other creditors attacked the transaction as fraudulent, among whom was a city, which threatened to take legal steps to secure a claim for taxes. The receiver thereupon assured the attorneys for the city that a prospective purchaser of the stock covered by the mortgage insisted, as one of the conditions of purchase, that the taxes be paid, and promised, if the city would forbear interfering with the sale by an attempt to enforce payment of the taxes, to reserve out of the proceeds the amount due. Upon the completion of the sale, the receiver, at the demand of the preferred creditors, denied liability upon the promise. Held, that the retention of the benefits of the sale, effectuated through the city’s forbearance, rendered the agreement binding.
    Appeal from Wayne; Donovan, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.

      Bill by the Union Trust Company against Mabley & Company to foreclose certain mortgages. The city of Detroit intervened, praying that certain taxes due to it be paid from the proceeds of the sale. From an order granting the prayer of the intervener, complainant appeals.
    Affirmed.
    The following facts are agreed to:
    “On November 23, 1896, Mabley & Co., a corporation ■doing business in the city of Detroit, executed and delivered to the Union Trust Company, as trustee, three mortgages covering the goods and chattels owned by it in the ■city of Detroit, in trust for the benefit of its creditors, who were named in the mortgages. The trustee accepted the trust. On November 23, 1896, a foreclosure bill in the usual form, praying for the appointment of a receiver and a sale of the property, was filed by the mortgagee. On the same day the answer of Mabley & Co. was filed, admitting the allegations of the bill. An application was on the same day made for the appointment of a receiver. The application was granted, and the Union Trust Company appointed receiver. The receiver at once, on November 23, 1896, took possession of the mortgaged property. On December 5, 1896, after presentation of testimony, the court made a decretal order that the property in the hands of the receiver be sold for $160,000, except the property claimed by Cane, McCaffrey & Co., and, as to that, to sell whatever interest Mabley & Co. had in that property. On December 7, 1896, the Union Trust Company reported to the court that the order above mentioned had been complied with, and, a sale had been made to W. S. Peck & Co. for the sum of $160,000, and on the same day the court made an order confirming said sale. January 19, 1897, a final decree was entered, directing the distribution to the creditors of $157,000, as their interests appeared, leaving the $3,000 in controversy in this proceeding in the hands of the receiver.”
    Mabley & Co. was at the time indebted to the city of Detroit in the sum of $2,626.30 for taxes, which were due July 1, 1896. Upon the completion of the sale under the order of the court, the $3,000 was left in the hands of the receiver, under the circumstances hereinafter detailed. The receiver, at the demand of the creditors, refused to-pay the taxes, and the city filed its petition, asking the-court to direct it to pay them.
    The facts are to be found in the affidavits of Arthur Webster, and Charles D. Joslyn, counsel for the city, attached to the petition, and of Mr. Hance, attached to-the answer -of the receiver. Mr. Webster states that he went, a few days after the trust company had taken charge of the business, to its office, and was referred to its secretary, Mr. Hance; that he informed Mr. Hance of the amount of the taxes, and that, “ while the city did not wish to cause Mabley & Co. any more trouble, still it would be necessary, in order to protect the city’s interests, to levy upon the stock of Mabley & Co., and to-take such steps in court as might be necessary to insure-the payment of said taxes. Deponent was informed by said Hance that a settlement of the affairs of Mabley & Co. was even then pending, and that arrangements were being consummated to sell the stock of goods to W. S. Peck & Co.; that if the city levied upon the stock of Mabley & Co., or took any other steps to enforce the payment of these taxes, this would spoil the proposed sale, and he requested deponent not to take such steps. Said Hance assured deponent that the sum of $3,000 had been or would be laid aside with which to pay said taxes, interest, and charges in full.” Deponent informed Mr. Joslyn of this interview, and they both then went to see Mr. Hance, who then assured them “that all the creditors, except those represented by Sloman, were cooperating to bring about the sale to W. S. Peck & Co., and knew that said amount had been reserved for the city; that no one-would object, except possibly those represented by Sloman & Groesbeck, and they could not make any trouble, as the goods which they had sold Mabley & Co. were set apart, so that, if they were successful in their litigation, the goods could be returned to them; that said Hance then agreed that, if no steps were taken by the city of Detroit to enforce payment of said taxes, the said amount of $3,000 would be reserved to pay the said taxes, interest, and charges due the city from Mabley & Co. as soon as the sale to W. S. Peck & Co. was closed, to which said Joslyn and this deponent agreed.”
    Mr. Joslyn’s affidavit is to the same effect, and says: ‘ ‘ Said Hance assured deponent that the purchaser insisted, as one of the conditions, that the taxes be paid,” and that he had several interviews afterwards with Mr. Hance in which he promised to pay.
    Mr. Hance, in his affidavit, says that the statements made by Webster and Joslyn “are substantially correct, with the exception that this deponent did not give either of said parties to understand that said taxes would be paid by him as receiver, unless, as receiver, he had the legal right to do so; that deponent gave them to understand, and supposed that said Joslyn and Webster did understand, that the city would lose none of its rights by refraining from levying upon the stock of goods. Deponent did not intend to be understood as promising to pay the tax if the city had no right to levy upon the goods or to collect the tax by legal proceedings at that time. Deponent further says that he was well aware at the time that his powers as receiver were not broad enough to permit him to make a payment to the city of Detroit of moneys in his hands, unless the claim upon which the money was to be paid constituted a lien upon the property in his hands as receiver superior to that of the mortgages upon the same; and if said Webster and said Joslyn understood deponent to make any promises to pay said taxes in case they were not liens and could not have been collected at the time a levy was threatened, they entirely misunderstood deponent. Deponent further says that he did induce the representatives of the city of Detroit to refrain from making a levy upon the property of Mabley & Co. upon the 24th day of November, 1896, and that the rights of the city of Detroit should be determined as though a levy had been made upon that day, and that the city ought to lose no rights whatever by reason of its action in refraining from making a levy at the time above mentioned.”
    The contention on behalf of the creditors is thus stated:
    “1. That any lien which the city could have acquired by a levy, after the receiver was in possession, would have been subordinate to the lien of the mortgage; and that, since the fund was held until the rights of the city could be determined, it suffered no harm by complying with Hance’s request that it should not attempt to interfere with the goods.

      “2. That the record shows no promise by the receiver to waive the paramount right of the beneficiaries under the trust mortgage to the goods and the fund arising from their sale.
    “3. That, if Mr. Hance did promise to waive that right, he exceeded his authority, and the beneficiaries are not bound thereby.”

      Russel & Campbell, for complainant.

      Moore & Moore, Wells, Angelí, Boynton & McMillan, and Elliott G. Stevenson, for creditors, and of counsel for complainant.

      C. D. Joslyn, for intervening petitioner.
   Grant, J.

(after stating the facts). The city had no lien upon the .goods, because no levy had been made, and, if the collector had threatened to levy, the receiver could have paid under protest, and maintained a suit to recover the money paid. Lyon v. Receiver of Taxes, 52 Mich. 276. It must follow that the receiver could not, of his own motion and without consideration, agree to the existence of a lien, and give it preference over the secured creditors. The difficulty is one not of law, but of fact. The situation was this: Mabley & Co. had failed. They had favored some creditors by mortgage. Other creditors attacked the transaction as fraudulent. Among them was the city, which threatened to take legal steps to secure its claim. The receiver was trying to make a sale. The secured creditors were anxious that the sale should 'be made. If the city took the action it proposed to, the sale could not he accomplished. The city would forbear action only upon the condition that the receiver would retain from the amount of the sale sufficient to pay these taxes. The purchaser would buy upon this condition only. The receiver agreed to it. Action by the city was forborne. The sale was accomplished and the money retained. The creditors cannot retain the benefit of the sale, and repudiate the terms upon which it was made, even if the receiver, acting for them, exceeded his authority. Mr. Hance does not deny the positive statements made by Webster and Joslyn. He only seeks to avoid their effect by giving his interpretation of them. This he cannot do. If we give the conceded statements their natural interpretation, we cannot escape the conclusion that the agreement to withhold this money for the payment of the taxes was made, and that without it the sale would not have been consummated. The arrangement was favorable to all parties interested, and must be sustained.

Order affirmed, and the receiver directed to pay the taxes out of the amount in its hands.

Long, O. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.


author: Long, C. J.

text:
    McDONALD v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    Railroad Companies — Killing Stock — Fences.
    Where it is necessary, for the common convenience of the public and a railway company, that the latter should leave unfenced a portion of its right of way where a spur joins the main track, it incurs no liability by reason thereof to the owner of a steer which strays upon the track through the opening, and is killed.
    Error to Schoolcraft; Steere, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.
    Case by Andrew McDonald against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company to recover the value of a steer killed on defendant’s track. From a judgment for defendant on verdict directed by the court; plaintiff brings error.
    Affirmed.

      Virgil I. Hixson, for appellant.

      Q. W. Dunton and JS. C. Chapin, for appellee.
   Long, C. J.

Defendant built a spur track off its main line, extending about two miles to what is called ‘ ‘ White Marble Lime Company’s Works.” This spur track was never fenced, though built in 1892. At the point where the spur joined the main track, there was an opening in the fence of about 50 feet. This junction was used continuously in making up trains, though no station house was built there. On July 20, 1894, the plaintiff’s steer strayed upon this spur track at the opening, and, going thence upon the track, was killed. On the trial the court below directed the verdict in favor of the defendant.

Under the undisputed evidence in the case, the court was not in error in this instruction. It appears that the defendant was carrying on quite an extensive business at this spur. Large quantities of wood, cedar and hemlock ties, lime, and logs had been banked there during the winter of 1893-94, some of them being banked within two or three hundred feet of the place where the spur left the main line. The switch was used every day for switching passenger trains and for like purposes. It was a public, open switch, and constructed for the convenience of the general public. There was no other spur or siding within four miles of that point, and the nearest station was six miles distant. It is apparent, from the undisputed evidence, that it was necessary to keep this switch open and unfenced for the convenience of the public, who were delivering forest products there. The rule in such cases is stated in Chicago & Grand Trunk R. Co. v. Campbell, 47 Mich. 266:

“The policy of state legislation is against cattle roaming at large, and on a railroad track they are trespassers. The statute, for reasons of general protection, makes a railroad company liable for their destruction where the fencing is neglected, and they wander upon the track in consequence; but there is no statutory neglect when the place is one which the common convenience of the public and the railway company requires should be open for the transaction of their mutual business. ”

The case is so fully covered and ruled in principle by Schneekloth v. Railway Co., 108 Mich. 1, that no further comment need be made.

The judgment below is affirmed.

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


author: MoOR-E, J.

text:
    POTTER v. TOLBERT.
    1. Partnership — Dissolution.
    A partnership is dissolved when it ceases to do the business for which it was organized. So held where a banking firm closed the doors of its bank, and did no business thereafter except to collect its accounts and liquidate its debts.
    2. Same — Settlement of Affairs — Firm Notes.
    The partner intrusted with a settlement of the partnership affairs after the dissolution of the firm is not authorized to give notes in settlement of partnership debts, unless such right is conferred upon him by the other partners.
    Error to Montcalm; Daboll, J., presiding.
    Submitted June 10, 1897.
    Decided June 28, 1897.

      Assumpsit by Thomas J. Potter against James Tolbert and Leroy Moore upon a promissory note. Erom a judgment for plaintiff, defendant Tolbert brings error.
    Reversed.

      Humphrey & Grant, for appellant.

      N. O. Gristvold (E. J. Bowman, of counsel), for appellee.
   MoOR-E, J.

This suit was commenced the latter part of 1895 to recover a balance claimed to be due upon a note dated January 8, 1887, signed by “Leroy Moore & Co.,” upon the back of which was an indorsement of “$500 paid January 9, 1892.” Defendant Tolbert filed with his plea a denial under oath of his execution of the note. The case was tried by a jury, who rendered a verdict for the full amount claimed by the plaintiff. Defendant Tolbert appeals, and claims that under the proofs a verdict should have been directed in his favor.

The plaintiff’s testimony tends to show that, for some years prior to 1884, defendant Tolbert was a member of the firm of Leroy Moore & Co., who were engaged in the banking business at Greenville, Mich.; that the plaintiff was a depositor in the bank, which suspended payment and closed its doors in June, 1884; that the plaintiff was one of a committee of creditors and depositors; that the committee met with Moore and Tolbert at or about the time of the suspension, and were told by Tolbert that he was a full partner in the business; that at this meeting there was a proposition made by the committee to call the creditors together, and recommend that they should take CO cents on the dollar, and that Mr. Moore and Mr. Tolbert refused, saying that they had always paid 100 cents on the dollar, and that all they wanted was time to liquidate; that, after this time, plaintiff was paid interest on the face of the account up to the date upon which the note was given. The plaintiff further testified that Mr. Moore had the active management of the bank during the time Moore & Co. were in business, and had the active management of liquidating their affairs; that there was due him on this deposit January 8, 1887, the amount stated in the note which he took on that date. He says that he had no knowledge after the suspension of the bank, and prior to the taking of the note, that Moore & Co. had dissolved partnership; that the note was signed and delivered to him by Leroy Moore; that there was paid to plaintiff by Leroy Moore $500, January 9, 1892; and that at that time he had no notice of the dissolution of the firm.

On the cross-examination he testified that he knew the firm Leroy Moore & Co. from the time they started business in Greenville until they suspended payment, and at times was a borrower of them; at the time of the suspension he was a creditor; that they carried on no business in Greenville but the banking business; that plaintiff was a lumberman, and handled a good many thousands of dollars each year through the bank of Leroy Moore & Go.; that their business was carried on at the corner of Cass and Lafayette streets in Greenville; that they closed their doors permanently in June or July, 1884, and that he had no recollection of their opening again, or of their doing business, after that. He further testified that this banking firm was succeeded by the City National Bank of Greenville in the summer of 1884, which bank occupied the place of business formerly occupied by Leroy Moore & Co.; that he kept an account and made his collections through the City National Bank, of which Moore was first cashier, and then president; that, after Moore became president, he had active charge of the affairs of the City National Bank, and spent practically all of his time with it, and that the City National Bank continued to do business in the same rooms formerly occupied by Leroy Moore & Co. until 1893, when it suspended.

He further testified that prior to 1884 Leroy Moore & Co. had a sign on their banking place during the entire time they were in business, reading “Leroy Moore & Co,;” that, when the City National Bank occupied the rooms, the sign “City National Bank” was put up, and the sign “Leroy Moore & Co.” disappeared; and that the note in suit was the only note he ever had for his deposit. He further testified that it was well known that Leroy Moore & Co., after the suspension, were not doing any business in Greenville except liquidating their old indebtedness, which was attended to by Leroy Moore. He further testified on the direct examination that when the committee met with Moore and Tolbert in June, 1884, it was arranged that Mr. Moore would continue in charge of the business of the firm, collecting the accounts and liquidating the debts; that no time was specified or agreed upon within which this was to be done, but the understanding was that they were to pay the debts in full.

It does not appear from the testimony of the plaintiff that he ever talked with Mr. Tolbert after this meeting in June or July, 1884. ■ Mr. Tolbert denied the material statements contained in the plaintiff’s testimony. He denied that after the bank suspended he ever authorized Moore to give notes of the firm for any indebtedness, either old or new, and claimed that he had no knowledge of the giving of the note in controversy, or of the payment of $500 made upon it, until shortly before the suit was brought.

The questions involved are:

First. Did the suspension of the bank dissolve the partnership ?
Second. After the dissolution of the partnership, was Leroy Moore authorized to give the note of the firm for the debt of the firm which existed at the time of the suspension ?

Giving the testimony of the plaintiff the most favorable construction possible, the evidence is too plain for controversy that the firm of Leroy Moore & Co. ceased to do a banking business in Greenville in June or July, 1884, and that plaintiff knew of it. The law is pretty well settled that a partnership is dissolved when it ceases to do the business for which it was organized. 3 Kent, Comm. 52; Pars. Partn. 384; Spurck v. Leonard, 9 Ill. App. 174; Bank of Montreal v. Page, 98 Ill. 109; Ligare v. Peacock, 109 Ill. 94.

As to the second question: It has long been settled in this State that the partner who is intrusted with the settlement of partnership affairs is not authorized, after the dissolution of the partnership, to give notes in settlement of partnership debts, in the absence of authority conferred upon him by the other partners to do so. The liabilities of the partners might be greatly increased, and their rights greatly impaired, if the partner who is settling the partnership affairs might make partnership paper which is payable a long time in the future, without being authorized to do so. It was assumed in Farmers & Mechanics’ Bank v. Kercheval, 2 Mich. 504, that the law was well settled that no such implied authority existed. In Smith v. Shelden, 35 Mich. 42, it was said: “We think it much safer to require express authority, when such obligations are contemplated, than to leave one party at liberty to execute at discretion new contracts of this nature, which may postpone for an indefinite period the settlement of their concerns, when a settlement is the very purpose for which he is to act at all.” Atwood v. Gillett, 2 Doug. (Mich.) 206; Pennoyer v. David, 8 Mich. 407; Matteson v. Nathanson, 38 Mich. 377; Jenness v. Carleton, 40 Mich. 343; Carleton v. Jenness, 42 Mich. 110; Goodspeed v. Plow Co., 45 Mich. 237; Johnson v. Emerick, 70 Mich. 215.

The record discloses an entire absence of authority conferred by Mr. Tolbert upon Mr. Moore to sign notes- for the firm after the dissolution of the partnership. There is also no proof of authority to make the $500 payment, which had the effect of taking the note out from the running of the statute of limitations. As the case stood when the proofs were closed, the jury should have been instructed to return a verdict for the defendant Tolbert.

Judgment is reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    MUNROE v. MERRELL.
    Mechanics’ Liens — Payments at Owner’s Risk.
    An owner who makes payments to a contractor without requiring of him the statement as to the amount due or to become due to material men, which, under section 4 of the lien law (Act No. 179, Pub. Acts 1891), he may lawfully demand, does so at his own risk (Act No. 199, Pub. Acts 1898, § 1); and the fact that he believed at the time that moneys previously advanced by him to material men on the contractor’s order had paid such claims in full will not relieve the property from a lien for the balance due, there having been no misrepresentation on the part of the claimants.
    Appeal from Wayne; Steere, J., presiding.
    Submitted June 11, 1897.
    Decided June 28, 1897.
    Bill by William Munroe against Joseph Merrell and another to enforce a mechanic’s lien. From a decree for complainant, defendant Merrell appeals.
    Affirmed.

      Anderson & Rackham, for complainant.

      James H. Pound, for appellant.
   Montgomery, J.

Complainant filed a bill to enforce a mechanic’s lien. The record shows that all the statutory steps were taken by complainant to preserve and perfect his lien. Defendant, however, contends that it is inequitable for complainant to be permitted to retain his lien.

The circumstances relied upon by defendant to defeat the lien are as follows: It appears that, before complainant had furnished the material which his contract called for, he obtained an order of the contractor, and presented it to defendant Merrell, the owner, and received pay upon it. Defendant says that he at that time supposed that the order took everything in, not being led to believe otherwise, and that he thereafter guaranteed to pay for timber required to complete the building, for the reason that he found it necessary to do so, as the contractor was apparently unable to. It is not claimed that the complainant actively misled the defendant by any false statement. It does appear that the defendant paid moneys which went to the personal benefit of the contractor, and it further appears that he did not require of the contractor the affidavit which he is authorized by statute to call for as a condition to making payments to the contractor. By section 1 of Act No. 199, Pub. Acts 1893, it is provided that “the risk of all payments made to the original contractor after he [the owner] shall have received the notice above mentioned, or before the contractor shall have furnished him with a statement as hereinbefore provided, shall be upon the owner.” The “statement hereinbefore provided” for is the statement of the contractor under oath; showing the number and names of subcontractors, etc. Act No. 179, § 4, Pub. Acts 1891. It must be held that the defendant made the payments at his own risk.

The decree sustaining the complainant’s lien is affirmed.

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


text:
    WHITE v. WHITTAL.
    Assault and Battery — Evidence—Appeal.
    The Supreme Court declined to disturb a judgment for the defendant in an action to recover damages for injuries received in a street fight, the jury having found, upon competent evidence, that plaintiff was the assaulter, or was at least a willing participant in the affray.
    Error to Kent; Grove, J.
    Submitted June 11, 1897.
    Decided June 28, 1897.
    Case by Edward White against Thomas Whittal for assault and battery. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      C. O. Smedley (Benn M. Corwin, of counsel), for appellant.

      McKnigM & McAllister, for appellee.
   Grant, J.

Plaintiff and defendant had a disgraceful fight in the public highway, in the presence of their own children and neighbors, on their way home from a school meeting. The language used was also disgraceful. Each charged the other with commencing the assault, and introduced testimony tending to sustain the charge. There is also testimony tending to show that the fight was mutual, each being “eager for the fray.” Plaintiff was worsted in the fight. He entered a criminal prosecution for assault and battery against defendant, who was acquitted upon the trial. He then brought this action for damages, and the jury again found against him, either upon the theory that he was the assaulter or that the fight was voluntary. The court fully explained to the jury the claim of each party and the correct rules of law governing the case. A discussion of the points raised would be of no benefit to any one.

We find no error, and the judgment is affirmed.

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


text:
    ATTORNEY GENERAL v. CITY OF DETROIT.
    Municipal Corporations — Salaries—Board op Estimates.
    Under Act No. 366, Local Acts 1895, § 4, empowering the board of estimates of Detroit to disallow any items or parts of items of the various estimates referred to it, and making it unlawful for the common council to expend any moneys as to items thus specifically disallowed, the city has no authority to pay an official the salary fixed by the common council after the board of estimates has reduced the amount.
    Appeal from Wayne; Lillibridge, J.
    Submitted June 10, 1897.
    Decided June 28, 1897.
    Bill by Fred A. Maynard, attorney general, to enjoin the city of Detroit from paying to James McQueen and James Barker, as assistant boiler inspectors, larger salaries than the amounts allowed by the board of estimates. From a decree for complainant, defendants appeal.
    Affirmed.
    • John J. Speed, for complainant.

      C. D. Joslyn, for defendant city of Detroit.

      Gorliss, Andrus & Leete, for defendants McQueen and Barker.
   Long, C. J.

As provided by the charter of the city of Detroit, the controller submitted his annual estimates to the common council, and, among other purposes for which estimates were made and included in the general fund, was a sum for the salary of two assistant boiler inspectors at $1,200 each. The common council adopted the estimates, including these salaries, but the board of estimates reduced the amount $600; making the salary as. allowed for the first assistant $1,000, and for the second assistant $800. Notwithstanding the action of the board of estimates, the council resolved to pay each inspector a salary of $1,200. This bill was filed to enjoin the city from paying a larger salary than the amount allowed therefor by the board of estimates.

By Act No. 366, Local Acts 1895, § 4, it is provided:

“The said board [of estimates] shall have the power, and it shall be its duty, after careful consideration of the various estimates referred to it, if it shall deem it advisable so to do, to disallow any item, items, or parts of items in the different funds, as well as in the gross amounts thereof, as the said board may deem advisable; and it shall be unlawful for the common council of said city to create any expenditure or expend any moneys as to items specifically disallowed and disapproved by such board of estimates.”

In Robinson v. City of Detroit, 107 Mich. 168, it was said by this court:

“The legislature has seen fit to place this power in the hands of the board of estimates, as a restriction upon the power of the common council, and to declare that it shall be unlawful for the latter to create expenditures or expend any money as to items disallowed and disapproved by the board of estimates.”

These officers were created by the common council, and that body has no power, under the charter, to pay the salary of such officers unless there be money for that purpose. Moneys are raised only for the fiscal year and for particular purposes, and must be paid out for the purposes for which they are raised, and no other; and, if any balances, such balances are paid into the sinking fund at the close of the year. The money for these salaries could not be raised except by the action of the board of estimates. That board is clothed with power, under the act of 1895, to cut out any item, items, or parts of items. In the exercise of that power, the board cut out a part of these very items. There is therefore no money in that fund to -pay beyond $1,000 and $800, respectively, to these inspectors.

The court below very properly held that the city should be enjoined from paying more' than these amounts. That decree will be affirmed.

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


text:
    GRANDORF v. DETROIT CITIZENS’ STREET RAILWAY CO.
    Personal Injuries — Obstructed Sidewalk — Assumption op Risk.
    One who, in the daytime, attempts to pass over paving stones which she sees scattered across the sidewalk, assumes the risk of injury.
    Error to Wayne; Donovan, J.
    Submitted June 11, 1897.
    Decided June 28, 1897.
    Case by Dorotoe Grandorf against the Detroit Citizens' Street Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William Stacey, for appellant.

      Brennan, Donnelly & Van De Marie, for appellee.
   Montgomery, J.

This is an action for personal injuries. According to the claims of plaintiff, the defendant was engaged in paving between its tracks in the fall of 1895, and for this purpose used stone from 8 to 14 inches long-, 4 inches thick, and from 7 to 7-J- inches deep. The stone for this purpose were piled along the street, and left there for some little time. Some were piled up loosely inside the curb, and projected over the sidewalk about a foot and a half. It was claimed that the sidewalk was shaky; that, when people walked along it, their weight would loosen some of the stone piled on the walk, and they would fall down on the walk; that the stone were left scattered over the walk in different places; that people along the line of the street were accustomed, notwithstanding the presence of the stone, to habitually pass along the walk; that, at the place of the accident, the sidewalk was' only a 4 or 4|- foot walk, and that a foot and a half of that was taken up by the pile of stone; that, on the day in question, plaintiff, in company with two other ladies, had occasion to pass along the north side of Gratiot avenue, between Chene street and Grandy avenue; that the plaintiff, carrying a child in arms, and one of the other ladies, were walking abreast, and, when about the middle of the block, they encountered six or seven loose stones upon the sidewalk; that these stones were lying separate from each, other, and extended across the entire walk; that the plaintiff saw these stones, and continued on her way; that she had stepped over one stone, and, when in the act of stepping over another, stubbed her toe, fell, and was severely injured. The injury occurred in the daytime, and the plaintiff saw the stone. The circuit judge charged the jury that the plaintiff was guilty of contributory negligence, and could not recover. Plaintiff brings error.

We think this ruling correct. Plaintiff cites the case of Laughlin v. Railway Co., 62 Mich. 220, and other cases, in which it is held that knowledge of an obstruction or defective condition of a street does not make it negligence per se for the plaintiff to continue to attempt to pass over such defective way. But none of these cases go the length required here, where the nature of the obstruction and the steps necessary to avoid it are both apparent and in the mind of the plaintiff at the very moment of the accident. If this had been a defect of which the plaintiff simply had had previous knowledge, and which knowledge was not in her mind at the time, or if her attention had been diverted from the obstruction, there would be ground for the plaintiff to stand upon. See Graves v. City of Battle Creek, 95 Mich. 266 (35 Am. St. Rep. 561). But she not only knew of the presence of this stone in the way; she knew how to avoid stubbing her toe against it. For, aside from the fact that the court might well assume that any person would know the effect of stubbing the toe against an obstruction, it appears that this plaintiff knew how to avoid it, from the fact that she had stepped over other stones in similar position, before reaching this. The condition was perfectly apparent to her. There were no latent defects. She knew precisely the risk she assumed, and assumed it. The case falls within Black v. City of Manistee, 107 Mich. 60.

Judgment affirmed.

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


author: Grant, J. Per Curiam.

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    HAMMOND v. RATHBONE.
    1. Appeal — Chancery Issues.
    The conclusion of the circuit judge, who saw the witnesses, upon a direct issue of fact as to the ownership of a mortgage sought to be foreclosed, is entitled to great weight on appeal.

      2. Same — Settlement of Case — Cumbersome Becord.
    The practice of settling chancery cases by including all of the testimony, immaterial and otherwise, and setting it forth by questions and answers, is condemned.
    on rehearing.
    Appeal — Discussion oe Contentions — Omission from Original Brief — How Cured.
    A contention that the evidence in foreclosure proceedings shows the property to have been occupied by the mortgagor and his wife as a homestead, and therefore to be exempt from sale under a mortgage signed by the husband alone, will not be treated as abandoned because the discussion thereof is inadvertently omitted from defendant’s original brief, if it is thereafter urged in a supplemental brief, and the omission explained.
    Appeal from Ionia; Davis,' J.
    Submitted June 11, 1897; original opinion, for affirmance, June 28, 1897. Rehearing granted September 23, 1897;
    final opinion, modifying the earlier decision, June 28, 1898.

    Bill by Ambrose Hammond against George W. Rathbone and others to foreclose a mortgage. From a decree for complainant, defendants Rathbone appeal.
    Modified.

      R. A. Hawley, for complainant.

      V. H. & H. H. Smith, for appellants.

       A subsequent application by complainant for a rehearing was denied September 87, 1898.

   Grant, J.

The purpose of this bill is the foreclosure of a mortgage for $250, dated April 1, 1889, due two-years from date, and executed by defendant George W. Rathbone to defendant Jesse S. Cahoon. Mr. Cahoon was indebted to complainant on a promissory note for $171.50. Complainant alleges that the mortgage and note in question were delivered to him by Cahoon as security for the debt due from Cahoon to complainant. The defendants Rathbone alone appeared and answered. In their answer they aver, upon information and belief, that the indebtedness from Mr. Cahoon to complainant was paid. As to the other material allegations, the answer either admits them, or simply denies knowledge in regard to them, and leaves complainant to his proofs thereon.

The bill alleges that the mortgage was given to secure part of the purchase price for the land. The answer denies this, and claims a homestead in the land; but the Rathbones were not sworn, and introduced no evidence to sustain this averment or denial. This claim is practically abandoned, for in their original brief the counsel for the Rathbones do not mention it. The bill was filed December 22, 1893. When the answer was filed does not appear, and it must be assumed that it was within the time fixed by the rules. Upon the hearing, and after the testimony was introduced, defendants Rathbone were permitted to amend their answer by alleging that Mr. Cahoon did not own the note and mortgage at the time they were delivered to complainant, but that they belonged to Frank W. Clark, and that they were delivered to complainant at Clark’s request for an entirely different purpose than the one alleged in the bill. August 20, 1894, two years before this case was heard, the Rathbones conveyed the land to Clark. Clark was the principal witness for the defendants. A direct issue is presented, whether this mortgage belonged to Mr. Cahoon, and was delivered to complainant to secure his indebtedness, or whether it was delivered by Mr. Cahoon at the request of Clark for the purpose claimed by him. The question is one of fact. The circuit judge saw the witnesses, and, as we have often held, is in better position to determine such questions than is the appellate court. After a careful examination of the testimony, we see no occasion to reverse his conclusion.

This case was settled by including the entire testimony, by question and answer. Some of the witnesses were recalled eight or .ten times. The practice of thus settling chancery cases is to be condemned. ■ The record contains much immaterial testimony, which should have been eliminated, and the case put in narrative form. There is no necessity of putting this court to the labor and time of examining so long a record.

The decree is affirmed, with costs.

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

ON REHEARING.

Per Curiam.

This was a suit to foreclose a mortgage, and the main controversy was over the question of complainant’s ownership of the mortgage. That question was determined in favor of the complainant upon the first hearing, and need not be further considered. Hammond v. Rathbone, ante, 499.

It appears that the mortgage covers two village lots, and the answer of the defendants alleges that lot No. 103 was the homestead of the mortgagor, and that the mortgage was void as to this lot, for the reason that his wife did not sign it. The evidence shows that the south lot was occupied as a homestead, if both were not, which does not clearly appear. This point was not made in the defendants’ first brief, but our attention is called to a supplemental brief, filed before the former hearing, in which the claim of homestead rights was made, and the omission to mention it in the first brief explained as an inadvertence; but this escaped our attention before. Lot 103 should therefore be exempted from the decree, which will be modified accordingly.


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    SCHULZ v. SCHULZ.
    1. Trial —Action on Note — Evidence—Compromised Claim— Instructions.
    Defendant was charged by the administrator of his mother's estate with a loan of §500. In a conference at the probate office, defendant admitted having received §350, and produced notes for the amount, signed by him'self, which he claimed had been returned to him by the deceased upon her receiving payment. The probate judge pronounced the notes forgeries, and a new note for §350 was finally given by defendant and accepted by the administrator. Held, that evidence of these facts in an action upon the note warranted an instruction as to the law governing compromises of disputed claims.
    2. Same.
    In any event, the instruction as to compromises could not have been prejudicial to defendant, where the jury were also' charged that if it should be found that he gave notes to deceased for the §350 which he borrowed of her, and that he paid these notes, he would not be liable in the case.
    3. Same — Repeating Instructions — Remarks of Court.
    After giving the instruction last referred to, the court read a request of the defendant which covered the precise point in different language, and said: “I think I will decline it. It is good law, but I do not think it necessary for that language.” Held, equivalent to saying that he did not deem it necessary to repeat an instruction already given.
    4. Same — Modification of Request.
    An instruction that the fact that defendant, at a specified time four years before the trial, took §208 from his house, and soon after returned without the money and with a §200 note, was evidence of its payment, was properly modified by stating that this would be true if in fact the jury should “believe that he did so,” there being evidence that the §200 note produced by defendant as the same note was freshly written.
    5. Same — Evidence—Declaration oe Purpose — Res Gestje.
    Evidence that defendant, on leaving the house with the money, stated that he was going to pay his mother, was not admissible as part of the res gestee.

    6. Same — Motives.
    Evidence that defendant, who claimed to have destroyed the notes produced at the conference because he was told by the probate judge that he might be “put through” for retracing them, destroyed other notes at the same time, was admissible, as bearing on the probability of the reason assigned by him.
    7. Same — Witnesses — Undisputed Testimony — What Constitutes.
    It is only in a case where the testimony of a witness is not only unopposed by direct evidence, but where it is not in conflict with the just and proper inferences to be drawn from other facts proved in the case, that it is proper for the court, in giving his instructions, to treat the evidence as wholly undisputed.
    Error to Saginaw; Kendrick, J. Submitted
    June 11, 1897.
    Decided June 28, 1897.

      Assumpsit by Julius Schulz, administrator of the estate of Maria E. D. Schulz, deceased, against William Schulz, upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Davitt and H. E. Naegely, for appellant.

      Fred H. Allen (E. L. Beach, of counsel), for appellee.
   Montgomery, J.

This is an action upon a promissory note for $350 made by defendant to plaintiff as administrator. The execution of the note was not denied. The defenses were failure of consideration and duress.

It appears from the testimony that defendant in April, 1890, had borrowed money of deceased, who was his mother, and that at the time of the execution of this note, August 17, 1895, a conference was held at the office of Judge Brucker, who was at the time probate judge of the county, relative to the claim of the estate against defendant. There were present at this conference Judge Brucker, the defendant, the plaintiff, and Rudolph Schulz, another brother. Defendant’s testimony tended to show that upon borrowing the money of his mother in 1890 he had given two notes, of $150 and $200, respectively, and his theory was that the notes had been paid to his mother in her lifetime, and were in his possession at the date of the conversation in question. Two notes signed by defendant, and purporting to be the notes executed to his mother, were produced at this interview. The testimony on the part of the plaintiff tends to show that these notes had been recently written, that the ink was fresh, and that they could not have been in existence since 1890. Defendant testified that the notes that he had given had become obscure, and that he retraced the writing on the notes before they were presented at this interview; that in the conversation Judge Brucker told defendant that, if he could not adjust the matter with his brothers, it meant a lawsuit; and that Judge Brucker, in effect, pronounced the notes forgeries. Defendant says that, when Judge Brucker charged that the notes were recently written, “it struck me right away, because I had retraced them,” and further testifies that Judge Brucker then said, “Did you know your brothers could put you through for that?” This last statement is disputed by the plaintiff’s witnesses. It was also in evidence that the brothers of defendant claimed at the interview that defendant had had other moneys of the deceased. The assignments of error relate to the charge and refusals to charge, and to rulings upon evidence.

The circuit judge charged the jury that the law favors compromises, and that if a bona ficle claim with a color of right is made by one party, honestly and in good faith believing it to be a valid claim, and the other party, disputing the amount of the claim, agrees upon a settlement, such settlement is binding. It is complained of this instruction that there is no evidence tending to show that this transaction amounted to a compromise of a disputed ■claim. While we think the question not very material, in view of other instructions in the case, we think there was some evidence to show, not only that plaintiff claimed that defendant had received more than the $350, but that ■defendant admitted that he had received more than that amount from his mother. It is true that, by the great weight of the testimony, the matter in controversy would appear to have been only this $350; but the record is not ■destitute of testimony of other and further claims. Judge Brucker testified that the administrator made a claim that William had borrowed at different times something like $500 or $600, and had not paid it back; that he owed it to the estate. It is said that there is no evidence that this $350 was received as a settlement of anything other than the amount borrowed in 1890. But we think, in view of the claim that was made, and the giving of this note, it was at least a question for the jury as to whether it was not received in settlement of all the claims put forth by the plaintiff in these negotiations. Indeed, we think the inference almost irresistible that such was the intention of the parties. But a further answer to the complaint of defendant in this respect is that the circuit judge charged the jury that if it should be found that the defendant gave notes to his mother for the $350 which he borrowed of her, and that he paid these notes, defendant would not be liable in this case. It is difficult to conceive how the jury could have been misled by any instruction on the subject ■of a compromise.

After giving the instruction last above referred to, the court read a request of the defendant which covered the •same point precisely, in different language, and said: “I think I will decline it. It is good law, but I do not think it necessary for that language.” This is complained of. We do not think this could have worked any injury to the defendant, as it was no more than saying that the court did not deem it necessary to repeat an instruction already given.

Defendant and his wife testified that on or about the 5th of April, 1891, defendant’s wife let him have $208, which he took from the house, and returned with the note of $200. Defendant testified that when he returned home he did not have the $208 in his possession, but only $2, and that he had the $200 note above referred to, and that he got the $200 note while he was away from home that day. Defendant preferred a request as follows: “The fact that on the 5th of April, 1891, defendant took $208 from his house, and returned, after being absent some hours, without the money and with the $200 note, is evidence of its payment. ” The court gave this instruction, adding: ‘ ‘ That is true. If in fact you believe that he did so, it would certainly be evidence for you to consider as to the correctness of that fact.” It is contended that’ this modification, “if in fact you believe that he did so,” was strongly calling in question the undisputed testimony of the witnesses. But the testimony was not undisputed. It is in conflict with the theory of the plaintiff and with the testimony of plaintiff’s witnesses, which tended to show that the note which was produced at the conference in 1895 was freshly written, and which defendant testified was the same note which he had brought home April 5, 1891. The modification of this instruction was not only proper, but necessary. The request preferred by defendant assumed the statement embodied in it to be a fact established. It would have been error to give the instruction in the form presented.

Two requests were presented in which the judge was asked to state to the jury that certain facts testified to by defendant’s wife were undisputed, and that this testimony should be accepted by the jury as true. It is only in a case where the testimony of a witness is not only unopposed by direct evidence, but where it is not in conflict with the just and proper inferences to be'drawn from other facts proved in the case, that it is proper for the court to treat the evidence as wholly undisputed. As before pointed out, the testimony of Mrs. William Schulz, in material respects, was in conflict with other testimony in the case; and whether, upon these specific questions, she was directly contradicted by any witnesses, is not material, for, if she were shown to have testified falsely upon any material fact in the case, this would so far affect her credibility that the jury would not be bound to accept her unsupported statements. There was no error in refusing these requests.

It appeared in the testimony of defendant that the two notes produced by him in the interview were destroyed. On cross-examination he was asked if he destroyed any other notes at the time these were destroyed. Error is assigned on the ruling admitting this testimony. We think it was proper cross-examination. Defendant had testified that he destroyed the two notes for the reason that Judge Brucker had said to him, “Do you know your brothers could put you through for that?” referring to the retracing of the notes, as he claims. We think it was competent to show that other notes, which he had no reason to suppose could be used as evidence against him, were destroyed at the same time, as bearing upon the probability of the reason he had assigned for destroying those in question being the true one.

The wife of defendant, was asked to state what defendant said at the time he took the money (the $208) and left the house. The evident purpose was to show a declaration that he was going to pay the money to his mother. It is contended that it is part of the res gestee. But it was no more than the declaration of a purpose. It did not characterize an act shown to have been performed, but was an assertion of a purpose to perform an act. Bes gestos are circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate it. We think the testimony was not admissible. See Pinney v. Jones, 64 Conn. 545 (42 Am. St. Rep. 209); Home Ins. Co. v. Marple, 1 Ind. App. 411; Tolbert v. Burke, 89 Mich. 132.

We think no error was committed to the prejudice of defendant, and the judgment will be affirmed.

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


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    HEAVENRICH v. NICHOLS’ ESTATE.
    1. Estates of Decedents — Claims — Revival of Commission— Notice.
    The revival of the commission for the examination of claims against a decedent’s estate, under 2 How. Stat. § 5894, at any time before the estate is closed, upon the payment of costs by the creditor making the application, is a matter not of discretion, but of right, and hence the probate court may enter the order without giving notice of the application to the administrator, heirs, or creditors.
    2. Same — Administrators—Estoppel.
    An administrator who appears before the commissioners at the hearing upon a claim for the examination of which the commission has been revived is not in a position, upon the creditor’s appeal from an order of" disallowance, to raise the objection that no notice of the hearing was served upon him, or upon the heirs or other creditors of the estate.
    8. Same — Delayed Meeting.
    The fact that the meeting of the commissioners was delayed, without the fault of the creditor, two days beyond the time provided in the order reviving the commission, will not defeat the claim.
    Error to Shiawassee; Smith, J.
    Submitted June 11, 1897.
    Decided June 28, 1897.
    Samuel Heavenrich and another, copartners, presented a claim against the estate of Amos W. Nichols, deceased. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for claimants on verdict directed by the court, the administrator brings error.
    Affirmed.
    Mr. Nichols died January 11, 1890, intestate. An administrator was duly appointed. March 3, 1890, commissioners were appointed to hear claims. September 9, 1890, the commissioners filed their report. August 29, 1895, claimants presented a petition to the judge of probate asking for a revival of the commission. September 4, 1895, the probate court made an order reviving the commission to hear plaintiffs’ claim; granting two months for the commission to receive, examine, and adjust the claim. The claim was duly filed within the time. The commissioners met November 6th and disallowed the claim. In their report the commissioners stated that they had notified all parties interested of the time and place fixed by them for hearing the claim. From this decision plaintiffs appealed to the circuit court, and upon the trial the court directed a verdict for them for $1,207.78.

      Selden S. Miner, for appellant.

      John T. McCurdy and Sloman & Groesbeck, for appellees.
   Grant, J.

(after stating the facts). It is contended that the probate court obtained no jurisdiction to make the order reviving the commission, .because no notice was served upon the administrator, heirs, or creditors. The revival of the commission at any time before the estate is closed is a matter of right, and not of discretion. Therefore no notice was necessary. 2 How. Stat. § 5894; Hart v. Shiawassee Circuit Judge, 56 Mich. 592.

It is also urged as a fatal objection that no notice was served upon the heirs or creditors of the estate. The record does not show upon whom the commissioners served notice of the hearing before them. The circuit judge, in instructing the jury, stated that the administrator appeared before the commissioners, and “simply filed an objection to the jurisdiction in a general, way.” It is fair to presume that notice was served upon the administrator by the commissioners. He was a witness, and did not deny service. Whether or not this be so, he appeared, and was not, therefore, prejudiced by want of notice. He made no motion to dismiss the appeal for want of jurisdiction, but proceeded with the trial upon the merits. If the administrator represented the heirs and creditors in this proceeding, notice to him is notice to them. If he does not represent them, then it is sufficient to say that they are not here raising any objection. We think the administrator is estopped to now raise this question under the following decisions: Jenks v. St. Clair Probate Judge, 96 Mich. 122; Bacon v. Kent Probate Judge, 100 Mich. 183.

The fact that the commissioners met two days after the two months provided in the order did not operate to defeat the claim. Claimants were in no wise responsible for this action, and claims against an estate cannot be defeated by the failure of the commissioners to take final action and to make their report within the time fixed by the order.

The judgment is affirmed.

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


author: Hooker, J.

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    SMITH v. JACKSON.
    Evidence — Cross-Examination—Memorandum of Account.
    •A defendant cannot complain because a memorandum of account, used by him to refresh his memory upon a defense of sefe-off and recoupment, was received in evidence after he had been cross-examined upon it.
    Error to Grand Traverse; Corbett, J.
    Submitted June 15, 1897.
    Decided June 28, 1897.

      Assumpsit by Andrew Smith against John A. Jackson to recover a balance due upon a fishing contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Tioeddle & Cross, for appellant.

      George W. Curtis, for appellee.
   Hooker, J.

The plaintiff recovered a judgment of $95 on appeal from justice’s court, and the defendant has brought it here for review upon the proceedings had before the circuit court, where the case was tried without a jury. A bill of exceptions was settled, and questions are raised upon the introduction and exclusion of testimony and upon the findings. The action was brought to recover upon a contract by which the plaintiff engaged in fishing in Grand Traverse Bay with nets furnished, respectively, by the defendant and himself. The fish were sent to the defendant, and payments were made thereon, and goods were furnished by the defendant to the plaintiff. The defense consisted of set-off and recoupment.

The defendant testified in relation to his account, refreshing his memory by a “small memorandum,” upon which he was cross-examined. At the conclusion of this cross-examination, the plaintiff’s counsel was allowed to introduce this paper. It is contended that this paper was not the best evidence of the account, and that the books should have been introduced. This question hardly merits discussion, as the defendant produced and used the paper for his own purposes. The right to cross-examination included a right to see it and have the jury see it. Other-questions relating to the introduction of evidence are unimportant. We find none showing error.

"""The bill shows that exceptions were taken to the findings of fact, though it fails to show when they were taken, or that there were specific exceptions to the several findings. Counsel have argued in their brief that the undisputed evidence shows several of these findings to be unsupported by testimony. We have examined all of these questions that are discussed, and are of the opinion that there was evidence supporting each finding; and, under well-established rules, we cannot review the judge’s conclusion.

It is said that the court erred in not allowing the defendant the value of the hammer belonging to a pile driver, worth five or six dollars, which was not returned. The court found that it was lost during a storm, without the plaintiff’s fault. If, as the defendant’s counsel contend, this was furnished under the contract, the court did not err in his conclusion.

The judgment is affirmed.

The other Justices concurred.


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    BUSH v. ST. JOSEPH & BENTON HARBOR STREET RAILWAY CO.
    1. Street Railways — Collision — Negligence — Question fob Jury.
    The question of the negligence of a street-railway company was for the jury, in an action for personal injuries resulting from a collision, where there was evidence that the plaintiff, who was driving upon the track, was seen by the motorman of defendant’s car for a sufficient distance to have enabled him to avoid the accident had he been more prompt in reversing the car, although it appeared that plaintiff had ample time to leave the track upon hearing the gong, but was prevented by the slipping of the wheels of his heavily-loaded wagon against the rails.
    2. Same-Contributory Negligence — Choice of Hazards.
    Plaintiff’s failure to jump from his wagon before the collision occurred did not constitute contributory negligence as a matter of law, it appearing that, by reason of his efforts, he came within a few inches of driving clear of the car; particularly as he was not bound to exercise the best judgment under the circumstances.
    3. Personal Injuries — Pleadings and Proofs.
    Under a declaration against a street-railway company for personal injuries, alleging negligence on the part of the company in running its car against the plaintiff’s wagon, evidence of the following facts and circumstances was held admissible: That plaintiff was on the track; the rate of speed of the car; that the wagon-box fell on plaintiff, and that he subsequently spit blood; the general condition of the track, and that one track was higher than the other.
    4. Same — Expert Testimony — Form of Question.
    In an action for personal injuries, physicians, called as experts, were asked if certain conditions described by them might be caused by the injury shown.. It was objected that the form of the question should be whether they would “probably” be caused thereby. ■ Held, that the degree of probability was a proper subject for cross-examination, and did not need to be indicated by the question.

      Error to Berrien; Coolidge, J.
    Submitted June 1G, 1897.
    Decided June 28, 1897.
    Case by George Newton Bush against the St. Joseph & Benton Harbor Street-Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. P. Cady and M. L. Hoiuell, for appellant.

      Gore & Harvey, for appellee.
   Hooker, J.

The plaintiff was injured in a collision caused by a street car striking the rear end of his wagon as he was driving off from the track. The court left two questions to the jury besides that of the amount of damages, viz.: (l) Whether the defendant was negligent in not reducing the speed of the car after discovering the plaintiff upon the track; (2) contributory negligence. The jury found specially that the car was reversed before it struck the wagon, and that the motorman was negligent in not reversing sooner; that the car slid on the track for a very short distance before it struck the wagon; that the car was not checked before it was reversed.

The plaintiff was driving upon the track, and, hearing the bell ring, attempted to drive off, but, owing to the slipping of the wheels upon the iron rails, and the heaviness of the load, the horse did not get the wagon off in time, and the car struck the wagon, and injured the plaintiff. There seems to be no doubt that the plaintiff was seen by the motorman for a sufficient distance to have enabled him to stop the car had he attempted to do so at once, and, on the other hand, there was abundance of time for the plaintiff to have driven off from the track before the car reached him had the horse been able to pull the wagon off at once. We have in several cases had occasion to allude to the fact that the uses to which the highway is put render it necessary that wagons shall cross and perhaps sometimes drive upon the street-car tracks, and it is obvious that the car that should be brought to a halt every time that a wagon was seen to be upon or in close proximity to a track would be a long time reaching its destination, and that street railroading upon any such plan would be a farce, and rapid transit impossible. On the other hand, a driver who should never drive across a track before an approaching car might wait a long time for an opportunity. From the very nature of things, the driver must determine when it is safe to cross, and the motorman may run his car towards a wagon upon the track in the expectation that it will be driven out of the way with reasonable expedition. Each, however, must use reasonable caution in view of the circumstances, and, if this is done, no blame attaches. Whether they do this in a given case must usually be a question for the jury, and this case is not an exception.

It is said that the undisputed evidence shows that the plaintiff was guilty of contributory negligence, inasmuch as he might have jumped from the wagon, as others did, when it became plain that a collision must occur. There is evidence that, if the horse had moved the wagon a few inches farther, there would have been no collision, and it is not clear that the plaintiff was not justified in continuing his efforts to get out of the way until it was too late to get off with safety. His companions, having no responsibility, had nothing to delay their escape, while it was his duty to avoid the collision if he reasonably could. Moreover, this claim overlooks the fact that, in an emergency, the best judgment cannot always be exercised.

A series of objections to evidence, and a number of requests to charge, raise questions upon the sufficiency of the declaration, which is said not to be sufficiently specific in its description of negligence. Counsel seem to insist that the law requires that the declaration shall state at length and in detail the circumstances which led up to the accident, and the objection is made that the declaration does not show the specific act of negligence without which the collision would not have occurred. Among these objections were the following, viz.: Objection to evidence that the plaintiff was upon the track; the rate of speed of the car; the fact that the wagon-box fell upon the plaintiff, and that he subsequently spit blood; the fact that one track was higher than the other, and its general condition. All of these things were circumstances which throw light upon the question of defendant’s alleged negligence, viz., that the motorman carelessly ran the car against the plaintiff’s wagon, and its consequences. The only negligence alleged or submitted to the jury was the management of the car, whereby it was permitted to run with great speed and force against the wagon. We discover no defect in the declaration that can be taken advantage of upon the trial, and think the evidence admissible.

Error is alleged upon the form of the questions to the physicians, who were asked if certain conditions described by them might be caused by the injury shown. It is said that they should have been asked if they would probably be caused thereby. We think that when it is shown that an injury is immediately followed by certain physical conditions, and that such conditions might result from such an injury, there is some evidence, though it be slight, for the jury. The degree of probability is a proper subject for cross-examination. The judge did not err in refusing to strike out the physicians’ testimony, or in his charge in relation thereto.

We think it unnecessary to further notice specifically the various assignments. We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


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    PENROSE v. FEHR.
    Personal Injuries — Unguarded Excavation — Running on Sidewalk-Contributory Negligence.
    Running upon the sidewalk, in order to avoid being struck by a snowball, is not per se such an act of negligence as will bar a recovery for injuries received from falling into an unguarded excavation.
    Error to Gpgebic; Haire, J.
    Submitted June 16,1897.
    Decided June 28, 1897.
    Case by Wesley Penrose, an infant, by William Pen-rose, his next friend, against Fred Fehr, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, who was 17 years of age, about 8 o’clock on the evening of December 6, 1894, stood at the intersection of two streets in the city of Ironwood. Several boys were throwing snowballs. Plaintiff, with others, ran along'the sidewalk, to escape the snowballs, and fell into an excavation, which had been made by the defendant. This excavation was 8 feet wide, 12 feet long, and 3 feet 8 inches deep. It was made for the purpose of drawing dirt from an adjoining lot. There were. electric lights at each end of the block, and one near the center. Plaintiff testified that he saw the excavation as he approached it, but not in time to stop. Other witnesses also testified that it'was so light that they could see it. Plaintiff testified that, if he had been walking, he thought he would figve seen it in time to stop. Plaintiff recovered verdict and judgment.
    ‘ C. E. Miller, for appellant.

      Julius J. Fateh (Charles A. Withey, of counsel), for appellee.
   Grant, J.

(after stating the facts). The negligence of the defendant, through his employés, in not guarding the excavation, is admitted. The defendant requested the court to instruct the jury that the plaintiff was guilty of contributory negligence, and could not recover. The question of his contributory negligence was left to the jury, under the usual and proper instructions. The theory of the defendant is that walking is the ordinary method of traveling upon sidewalks, and that, where one falls in consequence of running, the municipality is not liable. The act of running in this case was not per se negligence. One has a right to run upon the streets and sidewalks in order to escape from the assaults of others, and for many other reasons, and in such cases the question of contributory negligence is for the jury.

The judgment is affirmed.

The other Justices concurred.


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    HEIGHES v. DOLLARVILLE LUMBER CO.
    Lessor and Lessee — Conversion of House.
    A lessee of land who is in full possession thereof, and of a house built thereon by him under an agreement that it should remain his personal property, cannot maintain an action against the lessor for the conversion of the house because of the sale of the lots to a third party without reservation, although the purchaser requires of him an additional rent.
    Error to Luce; Steere, J.
    Submitted June 16, 1897.
    Decided June 28, 1897.
    Trover by William Heighes against the Dollarville Lumber Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      F. H. Peters, for appellant.

      S. N. Butcher, for appellee.
   Hooker, J.

The plaintiff’s brief asserts that he rented two lots from the defendant, with the privilege of building a house thereon, which was to he and remain his personal property; that the lease was oral, and the rent reserved, a dollar a year, which he paid so long as defendant owned the premises. Some two or three years later the defendant sold all of its property at Dollarville, including these lots, to the Danaher-Melendy Company, which continued the business previously conducted by the defendant, the plaintiff continuing in the employ of the new, as he had in that of the old, company. The Dana-her-Melendy Company did not evict the plaintiff, who remains in the occupancy of his house, so far as the record advises us; but four dollars per month have been deducted from his pay for rent' since said purchase.

This action is brought for the alleged conversion of the house. The circuit judge directed a verdict for the defendant, upon the ground that the plaintiff is, and has been since the house was built, in the full possession of the house and lots, which is conclusive that it has not been converted. If the house was his, the Danaher-Melendy Company got no title, and the plaintiff has a right to remove it at his pleasure, during the continuance of his lawful occupancy of the lots.

The judgment is affirmed.

The other Justices concurred.


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    PARKS v. KERSTETTER.
    Distrained Animals — Notice—Waiver.
    The owner of animals distrained damage feasant waives the written notice required by the statute, by trying to get the animals, after learning all the facts, before the expiration of the time for giving such notice, and while the person dis-training them is proceeding to take steps under the statute. Norton v. Roehey, 46 Mich. 460, followed.
    Error to Berrien; Coolidge, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.
    Replevin by Sylvester Parks against Wellington R. Kerstetter. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Hammond & Hammond, for appellant.

      James O’Hara, for appellee.
   Grant, J.

The plaintiff replevied from the defendant seven horses which were distrained damage feasant. The defendant found the horses in his wheat field between 7 and 8 o’clock in the morning. On the same day, about 10 o’clock, he notified the plaintiff that he had taken the horses in the wheat field, and informed him that he could have them by paying the damage which they had done, and also paying for their feed. Plaintiff said nothing, and turned away. About noon of the same day, plaintiff went within 20 rods of the defendant’s barnyard, where the horses were, and sent one William Ray to try to get them. Defendant told Ray that plaintiff could have his horses by paying $3, which included the damage they had done, and also the cost of once feeding them. Ray at once informed plaintiff of this offer. He declined to pay this small amount, and at once brought replevin. The court directed a verdict for the plaintiff on the ground that the statute required a written notice of the impounding to be served upon the plaintiff.

The court was in error. The case is ruled by Norton v. Rockey, 46 Mich. 460. Jones v. Dashner, 89 Mich. 246, does not overrule Norton v. Rockey, but .distinguishes the two cases. Defendant had given notice to the town clerk, and was proceeding to take steps under the statute. Before the time had expired for giving such notice, the plaintiff was put in possession of all the facts, and, under the rule of Norton v. Rockey, waived the notice.

The judgment is reversed, and new trial ordered.

The other Justices concurred.


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    UNION BANKING CO. v. MARTIN’S ESTATE.
    1. Bills and Notes — Execution and Delivery — Proof of.
    The execution and delivery of a note is sufficiently shown to permit of its being received in evidence where the payee produces the same in court, and calls a witness who testifies that he has frequently seen the alleged maker write her name, and that, in his opinion, the signature to the note is genuine.
    2. Same — Consideration,
    A note given to procure an extension of time for another upon his individual obligation is supported by a sufficient consideration.
    3. Same — Material Alteration.
    The signing of such a note by the debtor, for whose benefit the instrument was given, after it comes into the possession of the payee, is not a material alteration.
    Error to Berrien; Coolidge, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.

      The Union Banking Company of St. Joseph presented a claim against the estate of Jane Ü5. Martin, deceased, upon a promissory note. The claim was allowed by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      James O’Hara, for appellant.

      Latorence O. JPyfe and N. A. Hamilton, for appellee.
   Long, C. J.

Claimant presented a note* of $2,500, dated January 10, 1894, signed by the deceased and one Warren Ballengee, to the commissioners on claims for allowance. It was allowed, and on appeal to the circuit court the jury found in favor of the claim, and judgment was entered in favor of claimant.

It appears that, prior to the giving of the note in suit, Ballengee was indebted to the bank on three notes, — one of $300, one of $700, and the other of $1,500. These notes were secured by chattel mortgage. The note in suit was taken, and the Ballengee notes were given up by the claimant and canceled. On the day this note was brought to the bank it was signed only by the deceased. Just who brought the note to the bank is not made apparent, but, after it was brought in, Mr. Ballengee came in and signed it,' and took up his three notes and mortgage.

It is contended by defendant here that the court erred in receiving the note in evidence, as there was no proof of its execution or delivery. In this counsel is in error. The claimant called Mr. Kelley as a witness, who testified that he had frequently seen Mrs. Martin write her signature, and that he should say it was her signature to the note. There was also the evidence of the note in possession of the claimant, and its being signed by Mr. Ballengee after it came into its possession. Certainly no other proof was necessary to its being introduced in evidence by the claimant, as it was made payable to it.

The consideration for the note was the extension of time of payment to Mr. Ballengee.

It is claimed that there was a material alteration in the note after Mrs. Martin signed it. This alteration is said to be the signature of Mr. Ballengee thereon. The testimony shows that Mr. Ballengee was the son-in-law of the deceased, and the note was evidently given to procure an extension of time for him to pay his debt at the bank, and relieve his property from the incumbrance of the chattel mortgage. In signing the note after it had passed to the payee, Mr. Ballengee became a maker, and there was no material alteration in it. Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Gano v. Heath, 36 Mich. 441.

The judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. HARRINGTON.
    Criminal Law — Intoxicating Liquors — Appeal.
    A conviction of violating the liquor law, based upon competent evidence and following proper instructions, was affirmed.
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted June 1?, 189?.
    Decided June 28, 1897.
    Albert Harrington was convicted of violating the liquor law.
    Conviction affirmed.

      Clarence Tinker, for appellant.

      Fred W. Brennan, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted of keeping a saloon and selling intoxicating liquors without having paid the tax or given a bond as required by law. The testimony is all in the record, and fully justifies the verdiet. The attorney for the respondent says in his brief: “I have cited no authorities, and it is not necessary. The questions are almost entirely those of elementary law.” The attorney for the people concurs in this view. There is therefore nothing in the case requiring discussion. The learned circuit judge correctly instructed the jury on these elementary principles, and fully as favorably to the respondent as he was justified in doing.

The conviction is affirmed, and the circuit court directed to proceed to sentence.

The other Justices concurred.


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    CARVER v. SCHOOL DISTRICT NO. 6 OF BATTLE CREEK TOWNSHIP.
    1. Schools — Competency of Teacher, — By Whom Determined.
    A district school board has no authority to discharge as incompetent a teacher employed by it under 2 How. Stat. § 5065; the determination of the question of competency being for the board of examiners, which issues the certificate of qualification, and which possesses the power, under 2 How. Stat. § 5155, to annul the same in case of mistake.
    2. Same — Grade Register — Breach of Contract.
    A teacher who complies with the conditions of his contract with the local board in relation to the listing of pupils does not subject himself to lawful dismissal by failing to keep the “grade register” prescribed by the superintendent of public instruction.
    3. Same — Wrongful Discharge — Damages—Burden of Proof.
    A school district has the burden of showing, in an action by a teacher wrongfully discharged, that plaintiff might have obtained other employment in the same line, and thereby reduced his damages. Smith v. School District, 69 Mich. 589, Farrell v. School District, 98 Mich. 43, followed.

      Error to Calhoun; Smith, J.
    Submitted June 17, 1897.
    Decided June 28, 1897.

      Assumpsit by Gerald Carver against school district No. 6 of Battle Creek township, upon a teacher’s contract. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Frank W. Clapp, for appellant;

      Leslie E. Claioson (Herbert E. Winsor, of counsel), for appellee.
   Montgomery, J.

The plaintiff, on the 11th of September, 1893, entered into a contract with defendant, reading as follows:

“It is hereby contracted and agreed between the district board of school district No. 6, in the township of Battle Creek, county of Calhoun, and State of Michigan, and Gerald Carver, a legally-qualified teacher, in said township, that the said Gerald Carver shall teach the school of said district for the term of nine months commencing on the 11th day of September, 1893; and the said Gerald Carver agrees faithfully to keep a correct list of the pupils, and the age of each, attending school, and the number of days each pupil is present, and to furnish the director of the district with a correct copy of the same at the close of school, and to observe and enforce the rules and regulations established by the district board.
“The said district board, in behalf of said district, agrees to keep the school-house in good repair; to provide the necessary fuel; to keep the school-house in comfortable condition; to pay said Gerald Carver for the said services as teacher, to be faithfully and truly rendered and performed, the sum of $250 per year, the same being the amount of wages above agreed upon, to be paid on or before the 20th day of June, 1894: Provided, that in case said Gerald Carver shall be dismissed from school by the district board for gross immorality or the violation of this contract, or shall permit his certificate of qualification to expire, or shall have said certificate annulled or suspended by the county board of school examiners or other lawful authority, he shall not be entitled to any compensation from and after such annulment, suspension, or dismissal.”

Plaintiff; at the time held a third-grade certificate, entitling him to teach in the schools of Calhoun county for one year from September 1, 1893. He began teaching on September 11th, and continued until March 9, 1894, at which time the usual spring vacation occurred. During the vacation the district board discharged him, and when he attempted to resume his labors he found the schoolhouse locked against him. Plaintiff spoke to the county commissioner, and asked him if he could find him a position. He obtained none, and remained at home on the farm, and, at the end of the term for which he was employed, brought this action to recover pay for the spring term. The case was tried before a jury at the circuit, and verdict returned in favor of defendant. Plaintiff brings error.

A large number of assignments of error are found in the record, but counsel has grouped them under a few heads, and really the questions involved depend upon a construction of the contract, and the rights of the respective parties thereunder, when read in the light of the school law. The learned circuit judge expressed himself in doubt as to the true interpretation of the statute, but, being required to decide the important questions involved without opportunity to investigate, gave an interpretation favorable to the contention of defendant. ' The claim made by defendant was that the plaintiff was incompetent; that he lacked in government, and was particularly deficient in his knowledge of grammar and language; that he mispronounced certain words; that he failed on some occasions to have the school-house sufficiently warmed; that he did not get to the school-house early enough in the morning; and that he failed to keep a correct list of the grades of his pupils.

Unquestionably, the failure of the plaintiff to observe the engagements of his contract would justify the school board in rescinding the contract. These engagements were: First, to teach the school for nine months; second, to keep a correct list of the pupils, and of their ages and attendance; and, third, to observe and enforce the rules and regulations established by the district board. The contract provided, in effect, that the plaintiff might be dismissed by the district board for gross immorality or the violation of the contract, in which case his compensation should cease, as also in case his certificate expired, or was annulled by the county board of school examiners or other lawful authority. There was no charge of immorality brought against plaintiff, and no rules for the government of the school were adopted by the school board. The case was narrowed down to the questions of whether he kept correct lists, whether he broke his contract by failure to keep fires, and whether the board had the right to discharge him for incompetency. Indeed, the last question is of supreme importance, as the record indicates that the action of the board was taken on this ground. The circuit judge charged:

“The plaintiff must satisfy you by a fair preponderance of the evidence — that is, a fair weight of the evidence— that he was competent to teach this school, to govern and control it, and to impart his knowledge to the pupils, and that he has been reasonably faithful and diligent in the performance of his duties under the contract with the district. * * * I instruct you further that the fact that plaintiff held a certificate from the county board of school examiners, authorizing him to teach school, would not prevent the school district from legally discharging him, if you believe from the evidence in the case he was incompetent, or unfit to have the management of this school. And I instruct you that the district had the legal right to discharge the plaintiff for incompetency or neglect of duty, even though the county board may not have seen fit to annul his certificate.”

We think these instructions erroneous. Section 5065, 2 How. Stat., provides-

“The district board shall hire and contract with such duly-qualified teachers- as may be required; and all contracts shall be in writing, and signed by a majority of the board on behalf of the district. Said contract shall specify the wages agreed upon, and shall require the teacher to keep a correct list of the pupils, and the age of each, attending the school, and the number of days each pupil is present, and to furnish the director with a correct copy of the- same at the close of the school. Said contract shall be filed with the director, and a duplicate copy of the contract shall be furnished to the teacher. No contract with any person not holding a legal certificate of qualification then authorizing such person to teach shall be valid, and all such contracts shall terminate, if the certificate shall expire by limitation and shall not immediately be renewed, or if it shall be suspended or revoked by proper legal authority. ”

Section 5155 provides that—

“The board of school examiners may suspend or revoke any teacher’s certificate for any reason which would have justified said board in withholding the same when given, for neglect of duty, for incompetency to instruct or govern a school, or for immorality; and said board may, within its jurisdiction, suspend, for immorality or incompetency to instruct and govern a school, the effect of any teacher’s certificate that may have been granted by other lawful authority.”

This contract was made with express reference to these provisions, and the law carefully guards the rights of the patrons of the school, providing for a preliminary examination, and for the annulment of the certificate in case the board of examiners has made a mistake. If anything demonstrating the impropriety of submitting the question of the competency of a teacher to a jury for determination is required, it is furnished in this case. It appears that the board of examiners had a meeting to consider the propriety of annulling the certificate of plaintiff, and declined to do so. And yet pupils were called to give evidence to show that the plaintiff mispronounced certain words, such as telegraphy, Cuba, America, and others. Who is to furnish the standard for pronunciation ? Just how broad must the “a” be sounded in pronouncing Cuba or America ? Should these questions be left to the jury to determine ?

The authorities on this question are not numerous, and the cases which have arisen are generally based upon the provisions of the statutes in force in the different States. The case of Arnold v. School District, 78 Mo. 226, goes to the extreme length of holding that the school board has not, under the statutes in force in that State, power to discharge a teacher for cruel treatment and profane and abusive language used towards pupils. We would not be prepared to follow this case. A better rule is stated in Tripp v. School District, 50 Wis. 651, in which case it was said:

“We think the only power which the board have to discharge a teacher is the power which they may exercise on behalf of the district when the teacher is guilty of some breach of his contract which, at common law, would justify an employer in discharging his servant, or when the teacher has lost all right to teach the school by reason of the annulment of his certificate in the way prescribed by the statute. ”

See, also, opinion of Maxwell, J., in Bays v. State, 6 Neb. 175. There is no difficulty in saying that a teacher is bound to treat his pupils in a humane manner, and that when he fails to do so he is guilty of a breach of his contract. But he contracts, so far as competency is concerned, to use the qualifications which it has been determined that he has, and none other.

Plaintiff also contends that there was error in permitting it to be shown that he failed to build fires and to keep the school-house comfortable. We think the parties themselves placed a construction upon the contract which imposed this duty upon plaintiff, and that he assumed that duty •, that there was, therefore, no error committed in that regard.

Complaint was also made that the plaintiff did not keep a proper grade register. No such register was stipulated for in the contract. The evidence shows that the pupils were graded, but the grade of each was noted on a list alphabetically arranged. The defendant offered testimony to show a rule or regulation of the superintendent of public instruction requiring a grade register; but our attention is not called to any provision of law empowering the superintendent or school examiners to enlarge or modify the contract between the school board and the teacher. If the plaintiff kept such a list as the contract called for, the defendant was not authorized to demand anything more; certainly not until the close of his service. School Directors v. Reddick, 77 Ill. 628.

The other questions do not require discussion. As to the duty of plaintiff to seek other employment, and the burden of showing whether it could have been obtained, the cases of Smith v. School District, 69 Mich. 589, and Farrell v. School District, 98 Mich. 43, sufficiently cover the ground.

Judgment reversed, and new tria.1 ordered.

The other Justices concurred.