author: Moore, J.

text:
    YOST v. GRAND TRUNK RAILWAY CO.
    Parent and Child — Negligence—Loss oe Services — Abandonment by Father.
    Since it is the duty of a child, if it is able, to support its indigent parent (2 Comp. Laws, §§ 4487, 4490), and of the parent to maintain a minor child, if necessary (2 Comp. Laws, § 4495), a wife, whose husband has deserted her and her minor children, may recover for loss of the services of her minor son, caused by the negligent act of defendant.
    Error to Wayne; Murfin, J.
    Submitted October 25, 1910.
    (Docket No. 25.)
    Decided December 7, 1910.
    Case by Sarah Yost against the Grand Trunk Railway Company, a foreign corporation, for negligent injuries to her infant son. Plaintiff obtained judgment in justice’s court, and defendant appealed to the circuit court. A judgment for defendant on verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Clarence P. Milligan and Harry C. Milligan, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Moore, J.

This case was commenced in justice’s court. It is stated in the declaration of the plaintiff, in substance, that the plaintiff is the mother of Harry Yost, a minor, who was wrongfully employed by the defendant at a hazardous occupation, against the knowledge and consent of plaintiff; that while in a position of extreme hazard and danger the minor was injured and deprived of his left hand, by reason of which injury the plaintiff lost the services of the said minor permanently. It is further averred that plaintiff became obligated to pay physician’s bills, nurse bills, and medicine bills for said minor. The defendant pleaded the general issue. A trial was had which resulted in a verdict EÍnd judgment of upwards of $800 in favor of the plaintiff. The case was appealed to the circuit court. Upon the trial in the circuit court the plaintiff gave testimony to the effect that she was the mother of Harry Yost, a minor, who was with his sister living at home with plaintiff and aiding in her support; that plaintiff relied solely upon the earnings of the minor and his sister for her support; that her husband had not supported or lived with her in 15 years; that she did not know his whereabouts and had not heard from him in four years, when he was in Chicago. She further testified that the husband had not supported the children in 15 years. She testified to the injury received by her son, and that by reason of the injury she was deprived of the earnings of her son. The record shows the following:

“After the close of the testimony the defendant moved for a verdict in its favor for the reason that the plaintiff was not entitled to the services of the minor, but that the same belonged to the father, which motion was granted by the judge and a verdict directed for the defendant, to which plaintiff excepted. After the motion for a directed verdict was made plaintiff’s counsel offered to show that there had been a divorce between the plaintiff and her husband, but the court stated that such fact did not in his opinion change the situation.”

The certificate of the circuit judge is to the effect that the bill of exceptions contains all the testimony and proceedings necessary to the proper understanding of the question of law raised. It clearly appears that upon this record the only question involved is whether the mother can recover for the loss of the services of the minor child.

It is the claim of the defendant that the common law is in force in this State; that primarily the father is entitled to the services of the minor; but conceding that by his conduct he may have lost that right, then the son, and not the mother, is entitled to his services. It is conceded that there is no decision of our own court which is controlling. The plaintiff has cited authorities which, it is urged, are in point. The answer of defendant to this contention is that they are not so, by reason of the statutes in the States from which the decisions come.

The case of Thompson v. Railway Co. (C. C.), 104 Fed. 845, was one brought under a statute giving a right of action to the next of kin. In disposing of the case the following language is used:

“The statute of the State which is the basis for the present action has been construed in numerous cases by the supreme court. City of Friend v. Burleigh, 53 Neb. 674 (74 N. W. 50); Orgall v. Railroad Co., 46 Neb. 4 (64 N. W. 450); Chicago, etc., R. Co. v. Van Buskirk, 58 Neb. 252 (78 N. W. 514); Chicago, etc., R. Co. v. Young, 58 Neb. 678 (79 N. W. 556). An analysis of these cases establishes the doctrine that the facts stated in the petition must show that the next of kin were persons who were dependent upon deceased for their maintenance and support, or that deceased was under a legal obligation to furnish such next of kin support and maintenance, and that the facts must support such allegations to entitle the party to recover, under a general claim of damages. If special damages have been sustained by the next of kin, such special damages must be alleged in the petition. They cannot be shown or recovered under a general claim of damages. * * * Under the law in this State there can be no question that the father was the next of kin to deceased, and that the recovery in this case, under the statute in question, can only be had for the damages which it may be reasonably inferred the father has sustained by reason of the death of his minor son. If the petition should be amended, the facts, nevertheless, would remain that the father, more than 10 years prior to the deceased’s death, abandoned his wife and deceased, and gave them no support and protection. Under such state of facts, is the father entitled to the services of the son whom he thus abandoned ? In Rodgers on Domestic Relations, § 467, it is said:
“‘If the father deserts and abandons his family, exercises no control over them, interferes with them in no way, manifests no interest in their welfare, does not communicate with nor look aftei them, the relation of master and servant is dissolved, and the principle of servitude no longer sustains the right of the father to the wages of his infant son. It is as if the father were dead, and the custody of the child and the right to appropriate his earnings thereby devolve upon the mother. If the father refuses to be a parent in act as well as in name, the law will not recognize his right to control the earnings of his infant child, whom he thus casts aside to neglect.’
“The rule is well settled that, if the father emancipates his minor child, he is no longer entitled to the earnings of such child, and emancipation may be inferred by acts. In 17 Am. & Eng. Enc. Law (1st Ed.), p. 397, it is said:
“ ‘If the parent forces the child to leave the house or deserts or abandons him, the child is released from all filial duties which the law will enforce, and may seek his own welfare in his own way. Thus, an emancipation may be accomplished by wrong and violence.’
“And, as stated by Schouler, Domestic Relations, § 267: ‘ This is termed the presumption of necessity.’ In the note to Wilson v. McMillan, 35 Am. Rep. 117 (62 Ga. 16), it is said:
“ 1 Emancipation is always presumed in cases of necessity. Thus, if the parent absconds, expels his child, or leaves him to shift for himself, and refuses or neglects to provide, emancipation is presumed. * * * It would certainly be a great defect in the laws-of any civilized people if they furnished no mode by which the innocence and helplessness of infancy, and the purity and ingenuousness of youth, could be protected from the brutality of an unnatural parent. As a father may forfeit his right to the custody and control of his child’s person by abusing his power, so, by neglecting to fulfill the obligations of a father, he may forfeit his right to the fruits of his child’s labor. If he provides no home for his protection, if he neither feeds nor clothes him, nor ministers to his-wants in sickness or health, it would be a most harsh and unnatural law which authorized the father to appropriate to himself all his child’s earnings. * * * But where the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle but that of slavery which will continue his right to receive the earnings of the child’s labor.’
“Suppose in this case, the motion for a new trial should be sustained, and plaintiff permitted to amend the petition to correspond with the facts, by showing that at the time of the death of deceased his father was living, still plaintiff could not recover as, upon a new trial, the fact must remain the same, that the father abandoned the child years before, in a manner and under circumstances which must be held to be an act of emancipation on the part of the father, and for reason thereof the father is not entitled to, and could not, recover for the services of deceased. Then, under such facts, plaintiff would not even be entitled to judgment for nominal damages. While it is true that, the emancipation on the part of the father being presumed because of his desertion of his child, the right to the earnings of the child would belong to its mother, yet a recovery could not be had in this case, for the reason that the mother was not the next of kin; the father having survived the child.”

In Tiffany on Persons & Domestic Relations, at pp. 261 and 262, it is said:

“A parent is only entitled to the.services and earnings of his child while the child is supported by him. Although the general principle is clear and unquestioned that the father is entitled to the services of his minor child, and to all that such child earns by his labor, yet it seems to be equally clear that, as the right of the father to the services of the child is founded upon his duty to support and maintain his child, if he should fail, neglect, or refuse to observe and perform this duty, his right to the services of his child should cease to exist; and such we hold to be the law. * * * As the father may forfeit his right to the custody and control of his child’s person by abusing his power, so, by neglecting to fulfill the obligations of a father, he may forfeit his right to the fruit of his child’s labor. If he provides no home for his protection, if he neither feeds nor clothes him, nor ministers to his wants in sickness or health, it would be a most harsh and unnatural law which authorized the father to appropriate to himself all the child’s earnings. It would be recognizing in fathers something like that pre-eminent and sovereign authority which has never been admitted by the jurisprudence of any civilized people, except that of ancient Rome, whose law held children to be the property of the father, and placed them in relation to him, in the category of things instead of that of persons.”

At page 256 of the same author the following language is used:

“ There is some authority to the effect that the right to a child’s services and earnings does not vest in the mother, even when the father has deserted her and the child, or is dead; that the mother, even under such circumstances as these, is entitled only to reverence and respect, and has no authority over the child, or right to its services. This, however, is a mistake, due perhaps, to some extent, to following without reason or other authority the dictum of Blackstone and other old writers and judges to that effect, and to a failure to recognize the fact that there is no longer any such principle or doctrine as the old feudal doctrine which, requiring, as it did, the abject subjection and servitude of the wife, was unable to recognize the supremacy of the mother. By the overwhelming weight of modern authority, a widowed mother is entitled to the services and earnings of a minor child to the same extent as the father would be if living. The same rule applies where a wife is deserted by her husband, or he is imprisoned, and she is left to maintain her children, for the same reasons for the rule apply in both cases.”

Many cases are cited in the notes.

Under the provisions of section 4495, 2 Comp. Laws, the plaintiff is under obligation, if it becomes necessary, to maintain the minor child and if she has property it would be liable to seizure to secure his maintenance. If the plaintiff is poor, under the provisions of sections 4487 and 4490, 2 Comp. Laws, it would be the duty of the minor child, if able, to maintain her. If the duty of maintenance of the minor child is upon the mother when living separate from her husband, it would be hard lines to say that if his services could be of any value to her she should not be entitled to them. We think the court erred in disposing of the case as a legal question.

Judgment is reversed, and new trial ordered.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WARD v. WARD.
    1. Partition — Trusts—Estates.
    Partition will not be granted to a beneficiary under a trust instrument, where the purpose of the trust would be defeated or impaired by a division of the property.

      2. Trusts — Wills—Construction.
    Under provisions of a will which creates a trust for a period of twelve years after testator’s death, or until the death after his decease of two children within six years, with powers to the trustees to sell, lease, convey, or mortgage the property, or to terminate the trust after six years from his death, the trust does not terminate of itself while all the heirs are living, after six years from testator’s death.
    3. Wills — Testamentary Trust — Validity.
    A will creating a trust estate in a portion of testator’s property for the benefit of his heirs, for a period of twelve years after his decease, or until the death of two of his children, giving authority to the trustees to terminate the trust after six years, and to convey and control the trust estate, dividing such sums among the heirs annually as can be so divided with regard to the successful conduct of the trust, and containing provisions for the due distribution of the estate at the termination of the trust, is sufficiently definite and complete to be valid, and creates an estate that is inconsistent with partition at the end of six years.
    4. Same — Estoppel—Brief.
    By admitting in his bill of complaint and brief that the trust was valid, complainant estopped himself from questioning its validity.
    5. Same — Statutes.
    Nor has 3 Comp. Laws, § 11015, permitting any person except a remainderman having an estate in possession of lands, to bring partition, abrogated the rule that relief will be denied where it will defeat the purpose of such trust.
    Appeal from Crawford; Sharpe, J.
    Submitted October 25, 1910.
    ( Docket No. 60.)
    Decided December 7, 1910.
    Partition by Charles W. Ward against Willis C. Ward and other heirs of David Ward, deceased, and George K. Root, Willis C. Ward and Franklin B. Ward, executors and trustees of the estate of said deceased. From a decree on demurrer, dismissing complainant’s bill, he appeals.
    Affirmed.

      John H. Patterson (Fred A. Baker, of counsel), for complainant.
    Chamberlain, May, Denby & Webster (Stevenson, Carpenter & Butzel, of counsel), for defendants.
   Hooker, J.

The important questions in this case relate to the validity of a provision of the will of David Ward, deceased, late of Pontiac, and its construction if it shall be found to be valid, and the complainant’s right to partition.

The facts necessary to be stated are, briefly, these: David Ward died May 29, 1900. His will was duly admitted to probate. The twenty-first paragraph of his will Was as follows:

“ (21) All the rest, residue and remainder of my estate of whatsoever kind or character and wheresoever situated, I give, devise and bequeath to my trustees hereinafter named and their successors, in trust, nevertheless, to hold, manage, control, care for, and invest and reinvest the same for the period of twelve years from and after my decease or until the death after my decease and prior to the expiration of said period of twelve years, of two of my children who shall survive me, with the right and option, however, resting in my said trustees, and their successors, to terminate said trust at any time after six years from my decease in their sound discretion, and during such trust period, I direct that my said trustees, and their successors, shall manage, control and administer my said estate as one entire business and property, and I hereby confer upon them and clothe them with all powers and authorities necessary, expedient or desirable therefor, whether of sale, mortgage, leasing, contracting or otherwise, it being my intention to vest them with as ample and absolute powers of disposition, management and control thereof, as I myself exercised over and in respect to the same in my lifetime.
‘ I direct my said trustees and their successors during said trust period to divide annually among my children who shall survive me, share and share alike, such sum, as in their judgment can be so divided and distributed with due regard to the successful, effective and productive management of the said property and estate so held by them in trust.
“Upon the expiration of said period of twelve years from my decease, or upon the death, prior to the termination of said period of the second of my said children dying after my decease or at the option or in the sound discretion of my said trustees or their successors, at any time after six years from my decease, I direct that the trust created by this twenty-first item of my will shall cease and terminate, and the property, funds and estate then embraced in said trust shall vest in my children share and share alike, and I direct my said trustees to pay, turn over and convey, the same to my said children with equal interest and to make, execute and deliver all needful and proper instruments of grant, conveyance, transfer, assignment or contract therefor, but I expressly direct and provide, however, that upon the termination of said trust as hereinabove provided, said property, funds and estate then subject to said trust shall so vest in my said children and be so transferred to them, subject to any contracts or obligations respecting or affecting the same, or any part thereof, before then lawfully entered into or incurred by my said trustees.
“And I further explicitly direct that in any distribution made during the existence of said trust, or in the vesting of the property embraced in said trust upon the termination thereof as above provided, the issue of any child then deceased, shall represent such deceased child and take such deceased child’s share. I also expressly direct that any amounts which shall be found charged on my books of account against any of my children, or that shall be represented by any promissory notes, duebills, or other evidence of indebtedness to me of any of my children, shall not be taken or treated as advancements on account of the respective shares or portion of said children, but shall be can-celled and held for naught, except that in the case of my son, Charles W. Ward, he shall be charged in the settlement and distribution of my estate with an advancement of fifty thousand dollars, the advancement herein directed to be charged against my son, Charles W. Ward, to supersede and stand in lieu and stead of the advancement specified and agreed upon in the agreement between said Charles W. Ward and myself, dated May 25, 1899.”

Charles W. Ward, the complainant, is one of. David Ward’s children, and heirs, of whom there were six, all of whom are now living. His widow is dead. The residuary estate consists in part of 70,000 acres of timbered land in northern Michigan, appraised in probate court at $3,819,587.25. The timber is valuable, and complainant asserts that the land is also of much value, because of its susceptibility to reforestation. Complainant files a bill for partition of this land by metes and bounds, and, a demurrer to the bill having been sustained, he has appealed.

The will of the testator plainly shows an intention that his property should go into the possession and control of trustees and be by them kept together and managed for from 6 to 12 years, with a view to realizing the most possible out of it, and distributing it, during which time none of the beneficiaries should have the right of entry and occupancy. Further, that the trustees should have full rights of management, mortgage, sale, and conversion into other property in the business which he directed that they carry on. If the trust is a valid one in other respects, and the estate in the trustees a mere estate for years, on “term” as counsel call it — which we do not decide — or if the authority to sell and convey land, etc., is a mere power, the partition of the premises at the suit of a beneficiary is inconsistent with the provisions of the will and the purpose of the testator, and that is enough to require the denial of the prayer of the bill, whatever we may think of the nature of estates created by the will and the rights of partition, as applied to other cases.

See Freeman on Cotenancy & Partition, § 439:

“There are many instances in which the right to partition must be denied because the property has been charged with some trust, or dedicated to some purpose which would be defeated or impaired by the division of such property. Thus property may be devised to executors in such a manner as to show that the testator intended them to keep it undivided or to sell it after a stated time and use the proceeds for the benefit of certain designated persons. In these cases the right to partition is necessarily suspended, for it will not be granted in contravention of the will, where its purposes are not forbidden by law or public policy. And, generally, whenever property is vested in trustees, with a power of sale, or any discretionary power, and there are several beneficiaries, none of the latter have a right to treat the trust as terminated and compel a partition of the property. Such partition can be accomplished only by the unanimous assent of the beneficiaries, and we suppose not even with such assent, if the partition would clearly frustrate the objects sought by the creator of the trust.”

Again, it is said in 30 Cyc. p. 185, and note:

“ It may be stated as a general rule that, whenever an estate is subject to a valid trust, the purpose of which would be defeated by its partition, then all applications for the partition of the trust property must be denied. There may, although there is no direction for the sale of property, be a valid prohibition of its partition, either express or implied, in a will or other instrument, creating the cotenancy, although no trust is created. Where, however, a trust is created, by the terms of which the division of the property is postponed to some future date, or where, although there is no express direction for such postponement, the objects of the trust must be made impossible or difficult of accomplishment by a partition, such partition, if applied for, must be denied. Where the trust is merely to secure the payment of loans or other debts, a partition is hot subversive of it, and need not be denied.”

See, also, 30 Cyc. p. 186:

“The exclusion of the right to partition, whether contained in a will or a conveyance, may be implied as well as express, and is implied by any valid direction for the use or disposition of the property which must be thwarted if a partition is permitted.”

Numerous authorities are cited.

The case of Palms v. Palms, 68 Mich. 355, 378 et seq. ( 36 N. W. 419), seems to be consistent with this rule, although that decision is made to rest on the statute. It is held in that case that:

“The trusts contained in this will are express as well as active trusts, and, in so far as they are valid, vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the persons for whose benefits the trust was created take no estate or interests in the lands, but they may enforce the performance of the trust in equity. How. Stat. § 5578. By another section of the statute it is provided that no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest.”

The provisions of that will are in many respects similar to the will in this.case.

It may properly be inferred that it is our opinion that the authority of the trustees is neither limited nor so changed, at the end of the period of six years, as to terminate the trust, or justify partition. Counsel have contended that this will does not create a valid trust, yet he says in his bill and brief:

“Your orator does not contest the validity of said trust or any provisions of the will of the said David Ward, but respectfully insists and submits that, upon a true interpretation thereof, the said timber lands aire subject to division and partition among said children and grandchildren.”

We think that this estops him from claiming that no trust was created. We are of the opinion, however, that the provisions are clearly for the beneficial interest of the beneficiaries, and that the trust is fully expressed and clearly defined, and that the estate taken by the trustees is inconsistent with a present right of partition between the heirs, in view of the requirements of the will and the proper performance of the trust reposed in them.

Counsel for complainant rests his claim to partition on section 11015, 3 Comp. Laws, which provides:

“ Such suit may be maintained by any person who has an estate in possession in the lands, of which partition is sought, but not by one who has only an estate therein in remainder or reversion. Such suit may also be maintained by any person who has an estate in possession in any ores, minerals or metals that may exist or he thereafter discovered in such lands and such last mentioned suit shall be brought only against such persons as may have an estate in possession in such ores, mineral or metals.”

We understand that he does not claim that’ partition can be had, if inconsistent with the powers or trust conferred, but maintains that it need not be. As already appears, we think otherwise, and that the statute has not abrogated the rule above stated.

We have been much interested in the learned discussion of counsel in this case; but we are of the opinion that the reasons given above are an insuperable obstacle to the relief sought, and that a discussion of other questions, not necessary to a decision, should be deferred until they shall become crucial in some ease.

The decree is affirmed, with costs of both courts.

Bird, C. J., and Ostrander, Moore, and Stone, J.J., concurred.


text:
    WILSON v. HUGUS.
    Appeal and Error — Saving Questions por Review — Trial bv Court — Findings op Fact and Law.
    In an action of ejectment tried by the court without a jury, requests for findings of fact and law, and exceptions to the conclusions reached, are necessary to a review of the errors assigned, although the judge renders an, oral decision and opinion on the trial relating to the questions involved. Circuit Court Rule 26.
    Error to Genesee; Wisner, J.
    Submitted October 25, 1910.
    (Docket No. 108.)
    Decided December 7, 1910.
    Ejectment by Samuel J. Wilson against Joel Hugus, John Kiddle, and Charles Sauble. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Brown & Farley, for appellants.

      McFarlan & Wilson, for appellee.
   Moore, J.

This is an action in ejectment. The plaintiff claims to be the owner of the record title to the land in controversy. The defendants are in possession, claiming title by virtue of certain tax deeds. Before beginning the ejectment suit, plaintiff made a tender to the defendants of the amount paid upon their tax purchases, 100 per cent., and $5, and also enough to reimburse them for the taxes upon the property paid by them, with legal interest, a total of $160. The case was tried before the court without a jury. When the judge announced his decision, the following occurred :

‘ ‘ The Court: Now, there is a question of tender in the case. Has that tender been kept good ?
“Mr. Wilson: It was not tendered into court. Under the law you are not obliged to tender before beginning in «ejectment, but you are on the chancery side, but we will consent the court may make it a part of the order that the tender shall be kept good.
The Court: Very well, then, it will be so ordered.”

The case is brought here by writ of error.

There are seven assignments of error. There are insuperable difficulties about considering them. No request was made of the circuit judge for findings of fact or conclusions of law. After the arguments of counsel, the court at once expressed his views generally and his conclusion about what ought to be done. No exceptions were taken to the conclusions announced.

The record as presented does not comply in any essential with Circuit Court Rule 26. See McDonell v. Union Trust Co., 139 Mich. 386 (102 N. W. 953), and the many cases cited therein; Sparling v. Smeltzer, 140 Mich. 461 (103 N. W. 1131); Nichol v. Ward, 156 Mich. 136 (120 N. W. 569).

Judgment is affirmed.

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


text:
    SAGER v. HARTSHORN.
    1. Mortgages — Payment—Burden of Proof.
    The complainant, in a suit to determine the amount due on a mortgage held by defendant, has the burden of proving payments which he avers.
    2. Same — Accounting.

      Held that the weight of the testimony was strongly against complainant’s claim that he had made payments which defendant omitted to indorse on the mortgage note.

      Appeal from Shiawassee; Miner, J.
    Submitted October 26, 1910.
    (Docket No. 123.)
    Decided December 7, 1910.
    Bill by Charles W. Sager against Fred E. Hartshorn to determine the amount due on a certain mortgage, and to require defendant to indorse thereon certain alleged payments. From a decree granting a part of the relief prayed for, defendant appeals.
    Reversed, and decree for defendant entered;

      Odell Chapman, for complainant.

      Albert L. Chandler and George E. Pardee, for defendant.
   Moore, J.

The bill of complaint states, in substance, that complainant and his wife gave a mortgage April 21, 1899, to John Sell for $1,100 on certain real estate owned by them; that complainant has made payments thereon until the mortgage has been reduced to about $750, while the defendant, the present owner, claims there is over $1,100 unpaid. Other statements in the bill of complaint are as follows:

“As your orator is an old man, liable to depart this life at any time, he greatly fears unless he is able to have a proper indorsement made upon said note and mortgage that he may die before the same is fully paid and all such payments as have heretofore been made by him as are not indorsed on his said note and mortgage and for which he does not hold receipts will be lost. And your orator says there are several payments for which he does not hold receipts and which are not indorsed on said mortgage. * * * Your orator further prays * * * that the said defendant may come to an accounting and ascertainment of how much is still due upon said mortgage, and that he may, by an order of this court, be compelled to indorse on the said note and mortgage all sums of money which have either been paid to him or his predecessors in ownership of said mortgage, and that the defendant may be permitted to pay the honest and correct balance found by this honorable court to be justly due from complainant to defendant, and that your said orator may have such other, farther, different, and more complete relief as to this honorable court shall be deemed just and in accordance with equity and good conscience.”

The defendant answered, setting out his version of the situation. A demurrer clause was contained in the answer. A hearing was had, and the court decreed that defendant had made a payment of $85.88 on October 29, 1900, and one of $90, April 26, 1907, for which he should be credited on the note. The defendant has appealed from that decree. Complainant has not appealed.

The questions involved are questions of fact. It was an advantage doubtless for the trial court to see the witnesses, but we are bound to try the case de novo, having in mind the rule that, .as the complainant is averring payments, the burden is upon him to show that he made them.

The record discloses that, after Mr. Sell died, Mr. Bachman, who was a relative of the Sells, had charge of his estate; that Mrs. Sell, the widow, made her home with them for a time; that the mortgage came to Mrs. Sell by reason of the will of her husband. Mrs. Sell sold the mortgage in January, 1908, to Mr. McKenzie, who about one month later sold it to defendant. The bill of complaint was filed in this case October 16, 1909.

- The note accompanying the mortgage reads as follows:

“$1100. Morrice, Mich., April 21, 1899. .
“ Eleven years after date, for value received, we promise to pay to the order of John Sell, the sum of eleven hundred dollars with interest thereon at the rate of six per cent, per annum, payable annually, to wit, on the 21st day of April in each year until this note is fully paid, with the privilege of paying one hundred dollars or more at the end of each year when the interest becomes due and payable according to the tenor of a certain mortgage bearing even date herewith, executed by Charles W. and Cornelia L. Sager, to said John Sell, which mortgage is collateral hereto.
“Charles W. Sager.
“Cornelia L. Sager.”

Indorsements:

“August 14, 1899, received on the within note $50. January 20, 1900, received on the within note, $50. November 22, 1900, received on the within note $100.98. November 12, 1901, received on the within note $45. October 16, 1902, received $100. October 2d, received, $100, 1904; February 21, 1907, received $50. Notice protest waived. W. E. McKenzie. April 4, ’08, Cash $66. Interest in full to April 21, ’08. $66 paid as interest to April 21, ’09. $66 paid April 28, ’10, interest to April 21, 1910.”

Mr. Sager produced upon the trial a receipt purporting to be signed by Hannah Sell, dated October 28, 1900, for $85.88. It will be observed that the note does not bear any indorsement of a payment made that date. It is the testimony of Mr. Bachman that complainant made this payment and at the same time the complainant had sold Mr. Bachman some crates which he manufactured, the exact amount of which they did not at that time know; that later it was learned they amounted to $15.10, which amount Mr. Bachman paid to Mrs. Sell, together with the $85.88, and indorsed on the note November 22, 1900, a payment for $100.98, which amount was made up from $15.10 for crates and the $85.88 complainant had paid in cash. Mr. Bachman’s testimony is very strongly corroborated by the testimony of Mrs. Dewey:

“A. Mrs. Sell came down to visit me in June, 1907, and she stayed some time. She had her papers with her. They remained there and in the safety deposit vault in the bank until Mr. McKenzie purchased them.
“Q. Did Mr. Sager come to see you with reference to the papers?
‘A. He came down, and I told him to bring his papers down and we would go over them; whatever we owed him, that he hadn’t credit for, we would settle for.
“Q. What reply did he make to that, if you remember ?
“A. Why, he said he had some with him, and he showed me this $85 receipt, and I showed him on his note and recalled the circumstance about it, and he said it was the same.
“Q. What payment was that, do you remember?
“A. It was the payment in November; it is credited in November, I think, the 22d, of $100.98.
. “Q. Did you and he talk it over about the $85.88 ?
“A. We did, and I recalled the circumstance to him; he remembered about it; he remembered about the horse running away and his delivering the crates later.”

The cross-examination of the complainant indicates the improbability of his having money to make a payment of $85.88, October 28, 1900, and a payment in excess of $100 less than a month later. There is other testimony bearing upon that payment which we will refer to later.

As to the $90 item: It is the claim of complainant that in April, 1907, he went to the house of Mr. Bachman and found Mrs. Sell alone and paid to her the sum of $100, and she agreed that when Mr. Bachman returned she would send him a receipt for the amount; that a few days later a receipt was brought to him by a little girl; that he put the receipt away and later found it was a receipt for $10, instead of for $100. In testifying about this transaction, he said, among other things:

“Q. What was done, if any time, as”to giving or sending to you a receipt ?
“A. A day or two afterwards, I got a receipt. A little girl brought one to the road. I was going by Mr. — Oh, well, the man that lives on Bachman’s farm there, Ed. Elker, I was going by their house. A little girl comes out. She says, ‘ Here is a paper Mr. Bachman sent over to you.’ I took it and looked at it. I had no glasses or nothing. I looked at it. I see it was a receipt.
“Q. Said Mr. Bachman sent it to you?
“A. Yes, Mr. Bachman. I looked, at it. It looked as if it was $100 indorsed. I said that it was a receipt for $100, I guess. I doubled it up, and put it in my pocket. When I got home, I put it in my drawer where I keep my papers.
“ Q. Did you have glasses with you at that time ?
“A. No, sir; and I supposed it was $100.
“Q. When was the first time that you again looked at that receipt ?
“A. A spell after that, I had a dream, I dreamed one night Mrs. Sell was cheating me out of that hundred dollars and it worried me.
“Q. Don’t tell us what you dreamed. Tell us when was the next time you saw that receipt is what I asked you.
“A. That next morning I went and looked at the receipt and see what it was; I looked and I says it is only $10 instead of $100.
“Q. You mean the next morning after your dream ?
“A. Yes. * * *
“Q. Was that before or after McKenzie got the mortgage ?
“A. No, that was after. Mr. McKenzie had the mortgage then.
“Q. It was after he owned it ?
“A. Yes.”

It will be remembered Mr. McKenzie bought the mortgage in January, 1908. On the cross-examination he testified that he made Mrs. Sell personally only one payment of $100, Mrs. Bachman testified that complainant came to her house when Mr. Bachman was away and paid Mrs. Sell $100, that when Mr. Bachman came home he was informed of the transaction, and Mr. Bachman testifies he sent Mr. Sager a receipt and indorsed the amount on the note, and that it is the indorsement of October 2,1904. It is the testimony of both Mr. and Mrs. Bachman that in April, 1907, on account of her advanced age, Mrs. Sell was never left alone for more than a few minutes at a time. Mr. Bachman testified that the $10 payment was made to him by the complainant, who furnished him a piece of paper upon which he wrote a receipt for $10 and delivered it to the complainant; that it was not indorsed on the note because the note was not at that time accessible to him. Near the close of the case, the complainant, in response to his counsel, gave the following testimony:

“Q. What had been the relations between you and Mrs. Sell up to January, 1908 ? Had there been any trouble between you ?
“A. Nothing very special. I built a house for them and a barn by the job, furnished the material for the house and built it, and then done the work on the barn for them, and they took out about $230 out of my bill; said I didn’t nail the shingles good on the roof, and so on. That was long before I borrowed the money.
“Q. Since the death of John Sell, and since you borrowed his money, has there been any difficulty between, you and Mrs. Sell up to January, 1908 ?
“A. Not any particular, only I didn’t feel very good,, taking $230 out of me.”

The testimony of Mr. McKenzie is that before he bought, the mortgage he called complainant up by phone and asked him to call upon him and ascertain how much was. unpaid; that the complainant called upon him; that neither of them had the note to see the indorsements, but Mr. McKenzie was to get them.

“If I would get those and send them, he would have the teacher figure it over for us.
“Q. What did you do then, if anything, with reference to getting the figures and sending them ?
“A. I went to Mrs. Dewey and got the note, and I think I copied it myself, I am not just sure, but I think I did; if I didn’t she gave them to me, * * * and I mailed him a copy of the dates.
”Q. Did you see this paper that was there ?
“A. Yes, sir.
“Q. What would you think as to that being the one ?
“A. That is the one. I made that out myself, and I made a copy of it, which I have somewhere in my office, but I didn’t have time to find it this morning.
“Q. After you sent him that paper, how long was it before you saw him again ?
“A. He came down I should think perhaps a week,. I should judge. I don’t just remember the exact time, but somewhere along there. It wasn’t long, because I was in a hurry to get this matter closed up, and he brought the figures of the teacher and said he had figured, it over, or the teacher had, and so we compared notes.
“Q. You and Mr. Sager?
“A. Yes. There was at that time * * * when I. was buying the mortgage about $1,150 due, but, when I figured it over, I figured it so as to make it even years and figured it ahead to April 21st, and that is the way the. statement comes there because that was the time he was. going to pay the interest or about that time, so of course, that is the way it figures about $1,170, but it is very nearly $1,150, Well, when we came to figure it, he says the teacher makes it so much, told the number of figures, it was something like 10 or 15 dollars more than I had made it, and I looked the teacher’s figures over. * * * Almost the first item was a mistake of $10 in subtraction. That was in Mr. Sager’s favor, and I called his attention to it. I said there is a mistake right there and showed him the figure; that would make his figures more than mine, and it was a mistake of $10 in his favor. I called his attention to it. I said, ‘ I don’t want to figure this way any more than it is because I am paying for it, and I don’t want to pay only what is on it, and I don’t want you to pay any more.’ So I said there is no use of looking over the teacher’s figures farther because they would be changed all the way through; that $10 would make a big difference in the total amount anyhow. Mr. Sager spoke up when I showed him the $10, ‘ I think probably your figures are about correct.’ He went out, and he said, ‘ When the interest is due, I will pay you.’ I said: * I am away a good deal. If I am not in the office, you. can leave it at the bank, in the Citizens’ Bank.’ It ran along quite awhile, and during this time I thought I had sold the mortgage to Mr. Hartshorn before the interest was due, but I retained the interest and kept that out. I called Mr. Sager up by phone. He says, ‘ I left that interest at the bank.’”

Mr. McKenzie had some trouble in finding the interest, as Mr. Sager had left it for him in the wrong bank. Mr. Sager had in his possession at the trial the paper Mr. McKenzie had furnished him. It is a very significant fact that the amount Mr. Sager left at the bank to pay the interest was the sum of $66, 6 per cent, on $1,100, and that a like amount was paid by him the following year. Mr. Sager was upwards of 80 years old when he was testifying. We have already mentioned some strange things in his testimony. It is apparent he was forgetful, and we think the testimony is strongly against the theory that either of the payments were made.

The decree is reversed, with costs to defendant, and one may be entered here in accordance with this opinion.

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


text:
    FARMERS’ & MECHANICS’ BANK v. CLANCY.
    Banks and Banking — Bills and Notes — Compromise—Authority oe Cashier — Principal and Agent.
    In an action upon a promissory note that the defendant claimed had been compromised by an agreement of plaintiff bank, through its cashier, to accept certain bonds in part payment, where the evidence showed that no direct authority was conferred by the board of directors upon the cashier to accept anything but cash in payment of obligations, and that the discount committee met frequently; that the officers of the bank were diligent, and no special authority could be implied from the course of dealing between the bank and its cashier, the court should have determined on the trial, as a matter of law, that the oashier had no authority to make the compromise.
    Error to Washtenaw; Kinne, J.
    Submitted October 27, 1910.
    ( Docket No. 140.)
    Decided December 7, 1910.
    Assumpsit by the Farmers’ & Mechanics’ Bank against William J. Clancy on a promissory note. Judgment for defendant. Plaintiff brings error.
    Reversed.

      A. J. Sawyer & Son, for appellant.

      Arthur Brown and M. J. Cavanaugh (E. B. Sutherland, of counsel), for appellee.
   Moore, J.

This suit was commenced to recover the amount due on a note given to the Farmers’ & Mechanics’ Rank for $4,378.75, bearing date April 27, 1903, payable six months after date, without grace, with interest at 5£ per cent., signed by the Ann Arbor Brewing Company, by Ernest Rehberg, president, William J. Clancy, secretary, and Herman Hardinghaus, and indorsed by the same persons. The note recites that there were deposited and pledged with the Farmers’ & Mechanics’ Bank, as collateral security for the payment of this note, and any other indebtedness due or to become due to the bank, certain bonds and stock.

At the time of giving the note in suit the Ann Arbor Brewing Company was further indebted to the plaintiff bank upon two notes for $1,000 each, signed by the Ann Arbor Brewing Company, indorsed by Clancy, Rehberg, and Hardinghaus, also one note for $1,000, signed by the Ann Arbor Brewing Company and indorsed by Clancy and Rehberg, also one note for $500, signed by the Ann Arbor Brewing Company, and indorsed by Rehberg and Hardinghaus. On the 4th day of December, 1903, plaintiff’s bank began three suits, one against the Ann Arbor Brewing Company, William J. Clancy, and Ernest Rehberg, to recover upon the two notes of $1,000 each, indorsed by Clancy and Rehberg, one upon said $1,000 note signed by the Ann Arbor Brewing Company and indorsed by Clancy and Hardinghaus, and one against Rehberg and Hardinghaus on the $500 note signed by the Ann Arbor Brewing Company, and indorsed by Hardinghaus and Rehberg. The defendants appeared in each of said cases, pleaded the general issue, and on the 26th day of December, 1903, judgment was rendered in all three of the cases for the amount of the notes, interest, and costs respectively.

The defendant pleaded the general issue, and gave notice of a defense which is stated in the brief of counsel as follows:

“ Defendant was to confess judgment on the three one thousand dollar notes for himself and secure confession on behalf of the Ann Arbor Brewing Co.; he was to pay the judgment rendered upon the note indorsed by himself and Hardinghaus; the bank was to take out execution against the Brewing Co. on the two one thousand dollar notes indorsed by defendant and Rehberg and levy upon its property, and defendant was to bid it in, was to pay all the costs of the suits and the levy, and hold the bank harmless in regard to the whole matter, including the fees of the bank’s attorney, Mr. Norris; and defendant was to release the bank from all liability to him by reason of its unauthorized release of $2,000 worth of the collateral deposited with the note in suit. In consideration of these acts on the part of defendant, the bank agreed to accept the $4,000 of bonds still held as collateral to the note in suit as payment on said note, pro tanto, and release defendant from liability for the rest of the note.”

The case was tried before a jury, which returned a verdict in favor of defendant. The case is brought here by writ of error.

It is apparently conceded that as to the question of whether a contract was made as the defendant and his attorney swear positively it was made, while the cashier of the bank and its attorney swear as positively that no such contract was made, that this would, under proper conditions, present a question of fact to be passed upon under proper instructions. But it is contended by appellant (we quote from the brief):

“The plaintiff claims, that conceding the claimed contract to be as set up in the plea and shown by the testimony:
“(1) That neither Mr. Belser, as cashier, nor Mr. Norris, attorney for the bank in the three suits mentioned, had any authority or power to make a contract of the character and kind mentioned in the testimony, and therefore the bank was not bound by any such contract, if one was made as claimed.
“ (2) That if such a contract was made as claimed by the defendant, there was no consideration for the contract, and it was, therefore, void.
“ (3) The rulings and decisions of the court in receiving and rejecting testimony and remarks of the court made in the presence of the jury were erroneous.
“ (4) The failure and refusal of the court to rule upon objections was erroneous.
“ (5) The remarks of counsel made in the presence of the jury were erroneous.”

Whatever may have been the attitude of counsel in the court below, they apparently agree in this court as to the law of the case. We quote from the brief of counsel for appellant:

‘ ‘A cashier of a bank has no legal authority by virtue of his position to compromise a claim of the bank, or to execute a composition agreement and release therefor. Such a power is discretionary, calling oftentimes for the exercise of considerable reflection, and a high decree of judgment. It is strictly a sacrifice, at least of nominal property of the bank, and is a function of the board of directors, and not of an executive officer'. Magee on Banks & Banking, p. 178 (bottom); Chemical Nat. Bank v. Kohner, 58 How. Prac. (N. Y.) 267; Bank of Commerce v. Hart, 87 Neb. 197 (55 N. W. 631, 20 L. R. A. 780, 40 Am. St. Rep. 479); North Star, etc., Shoe Co. v. Stebbins, 2 S. D. 74 (48 N. W. 833, 834); 2 Comp. Laws, § 6093, subd. 7. The extent of the general powers of a cashier of a bank is a question of law, and not of fact. Farmers’ & Mechanics’ Bank v. Troy City Bank, 1 Doug. (Mich.) 457; Peninsular Bank v. Hanmer, 14 Mich. 208. And a charge is erroneous which refers it to the jury to determine whether a cashier as such has power to accept stock and bonds in payment of notes of the bank. 1 Doug. (Mich.) supra.”

Counsel then proceed to quote at length from the cases cited.

In relation to the proposition of counsel for plaintiff the counsel for defendant reply as follows:

“Appellant argues that Mr. Belser, as cashier, had no authority to make a contract of the character mentioned in the testimony. At the head of its discussion of this point it places the caption, Cashier’s Powers,’ and quotes from Magee on Banks and Banking in respect to the authority which the cashier of a bank possesses by virtue of his office. Now, we do not claim that a cashier as such, and solely by virtue of his office, would have authority to make that agreement which the jury have found was made in this case. The case was not tried on that theory, nor was the jury instructed upon that theory. Appellant says that the power to release an indorser or compromise a claim is not within the power which a cashier possesses by virtue of his position; that the extent of the general powers of a cashier of a bank is a question of law, and not of fact; and that a charge is erroneous which refers it to a jury to determine whether a cashier as such has power to accept stock and bonds in payment of the notes' of the bank. We admit all this. * * * If the testimony had merely shown that Mr. Belser was cashier of plaintiff bank, and it had been contended that upon such a showing as the jury should say whether or not the bank was bound by the compromise agreement, appellant’s argument would have been sound, and its authorities would doubtless have sufficed to demonstrate that the bank was not bound. But the defendant did not show merely that Mr. Belser was cashier. He did not claim that a cashier as such was authorized to compromise a debt. What he did show was that Mr. Belser was intrusted with the entire management of the bank. He might have been the bank’s president, or vice president, or assistant cashier, or merely a director. The position he occupied is unimportant, for no argument as to his authority is drawn from his position. Defendant did not claim that because Mr. Belser was cashier he could bind the bank. He claimed that Mr. Belser could bind the bank because he was intrusted by the board of directors with the bank’s management and had been so intrusted for twenty years. In other words, the case was tried upon a wholly different theory from that which appellant now seeks to inject into it. It was tried upon the theory that the cashier, by the long continued and well understood practice of the board of directors, was authorized by the board to do all acts which could be done by the board itself and which it could lawfully authorize a cashier to do. The principle according to which this case was tried was that stated by this court in Davenport v. Stone, 104 Mich. 521 (62 N. W. 722, 53 Am. St. Rep. 467), where the court says:
“ ‘The directors intrusted the entire management of the bank to the cashier, Mr. Bradley. Therefore, neither the bank nor its receiver can now be heard to deny the authority of the cashier to do any of those acts which it or its directors might lawfully authorize the cashier to do.’
“ The rule is stated by Mr. Morse as follows:
‘“If the directors have for many years allowed the cashier to do, without interference, all the business of the bank, they are held thereby to have conferred upon him authority to do anything and everything on the corporate behalf which the charter or law does not absolutely prohibit and forbid a cashier to do, and so render illegal under all circumstances.’ 1 Morse on Banks and Banking, § 165.
“* * * In the case of Wing v. Bank, 103 Mich. 576 (61 N. W. 1009), this court announced the same rule, and that case was before the trial judge when he charged the jury. In fact he quoted from the opinion of this court in that case in the course of his charge, and this action of the trial judge is assailed by appellant as erroneous. The language of the decision is given at length in appellant’s brief and need not be repeated here.”

As tending to support this contention counsel cite a portion of the cashier’s testimony as follows:

‘ ‘ Q. And as a matter of fact the board of directors of your bank never went back on a single thing that you did, they ratified everything that you did as cashier of that bank when you were left there as managing officer in the absence of the others, you cannot now name one thing they refused to ratify, can you ?
‘A. I don’t know as I can.
“Q. And as a matter of fact they did not. Fred BL Belser as cashier and managing officer of that bank transacted without the aid of any one else at least 60 per cent, of the bank’s business ?
“A. I don’t know as to that, probably I did most of it..
“Q. And as a matter of fact they ratified everything you did, and that was the understanding, was it ?
“A. Not necessarily, no.
“Q. But you did it ?
“A. Once in a while I did something they did not agree with although they ratified it and cleaned those things up.
“Q. And in the absence of the discount committee of that bank or board of directors you did the business for that bank and everything you did for 20 years was ratified, is not that so ?
“A.. I think so.”

Counsel then proceed to argue:

“Mr. Belser, throughout his entire testimony, made every effort to show that he had no authority to make the agreement alleged by Mr. Clancy. He was called by plaintiff for the purpose of proving want of authority in himself to bind the bank, and he declared repeatedly that he had no authority to make any such agreement. The plaintiff’s whole case rested upon its ability to show that Mr. Belser had no authority to make the contract. And yet in the face of all this — against his own interest as a stockholder and against the interest of his bank — he admitted on cross-examination that for 20 years he was managing officer of the bank, and did most of the bank’s business, that during those 20 years there was not one instance which he could recall where the board of directors had failed to ratify his acts, and that although they once in awhile disagreed with him they nevertheless ratified everything he did during those 20 years. It would be difficult to conceive of stronger testimony than this from a hostile and reluctant witness.”

The trouble with this argument is that it is based upon a few statements of the witness which do not correctly represent what he testified to. Prior to giving the testimony quoted, the cashier not only denied the making of the contract, but testified as follows:

“Q. Did you yourself have authority to make any such contract as cashier ?
“Mr. Brown: We object, it is incompetent.
“Mr. Sawyer: A question of agency has arisen; we claim he did not have any authority to make such a contract without the action of the board of directors, and if he did it it was beyond the scope of his authority.
“The Court: You may ask whether he had any special .authority in this matter.
“Q. Did you have any special authority from the bank to make such an arrangement as it is claimed you did make ?
“A. No, sir.
“Q. Did the board of directors ever give you any authority to make such a contract as they claim you did make here ?
“A. No, sir.”

Again he testified:

“Q. I ask once more so there may be no mistake about it at all, Was it within the powers conferred upon you by your authority to receive in payment of any note due to the bank anything except money ?
“A. I had no authority to receive anything else only money for settlements.
“Q. Was there ever any such practice as that in your bank ?
“A. No.
“Q. When any settlement or adjustment of any claim was made or an offer brought there for settlement, what were you compelled to do- about it ?
‘A. I submitted it to the board and they acted upon it.
“Q. Did you ever do it any other way ?
“A. No.
“Q. In that connection I ask you whether or not you ever submitted to this board or to the officers of that bank any proposition made by Mr. Clancy with reference to the accepting of those bonds in payment of his note ?
“A. Never.”

He further testified:

“The discount committee changed from time to time. There are usually three on that committee. And they meet every day, as they happen to come in, usually in the morning.
“Q. Then if you have a meeting of the discount committee in the morning, business that comes in in the afternoon, who looks after that ?
“A. Well, I look after it unless it goes over to the next day.
“Q. Then all the business that comes in in the afternoon after the discount committee has met is acted upon hy the cashier, is it not ?
“A. Yes, sometimes. And that was true all the while I was cashier. So far as I know that is the general practice of banks.
“Q. The cashier is the managing officer of the bank all the rest*of the time, except when the board of directors or this committee are actually in session, the cashier has charge of the bank. Is that true ?
“A. Yes. And that was true all the time that I was there.
“Q. And that was true during all the time that these . negotiations were going on, is that so ?
“A. Yes.
Q. So that if Mr. Clancy came to you in the afternoon, after the discount committee met in the morning, for a loan of say $5,000, that would have been considered a large loan, and in the morning you would have felt it incumbent upon you to submit it to the discount committee ?
“A. I often telephoned to the members.
“Q. If it came in after the meeting of the discount committee, and it was no trouble to the customer to wait until, the board passed upon it for a loan of that size ?
“A. Yes.
“Q. If it came in the afternoon you would act upon it yourself ?
“A. Unless I could telephone to the separate members.
“Q. Do you mean to say you ever telephoned to the discount committee or talked with them about any loan you made to Mr. Clancy ?
“A. Yes, sir.”

He further testified:

“Q. What part — what fractional part — would you say of the discounts that are made, that were made from day to day during all the time that you were cashier of that bank actually passed to the discount committee of the directors before the customer had the accommodation asked for ?
“A. Well, the majority of them.
“Q. A majority of them, what do you mean by that, 60 per cent ?
“A No, there is—
“Q. Do you mean to say that fully 60 per cent, of your discounts were passed upon ? I mean the items, not the total amount of money, but 60 per cent, of the items that make up the day’s business, do you mean to say that a majority of 60 per cent, of that has been passed upon by your discount committee before the customer receives the accommodation ?
“A. Let me explain. The bank has a line of customers —a regular line of customers. Their line of credit is fixed. I was authorized to loan every man a certain amount of money, not to exceed a certain amount of money that the board passed upon. For instance, if Mr. Brown came in there, his line of credit was fixed. We could loan him as high as 13,000. He would get up to that. I had no more right to loan. I had to stop and get the consent of the board or discount committee. Fully 50, 60, 70 per cent, of the paper that came in daily was that kind of paper, that was fixed.
“Q. You never spoke about it to the directors at all ?
“A. They simply approved it when they came in. I put it on the book before they met, and I transacted the business before or after their meeting, and that made no difference. That was customary all the while I was there. Whenever a customer came into the bank, after the discount committee had met for that day, and wanted accommodation I passed upon it, and waited until the next day for the board to O. K. it. And I presume that has been the'custom of the bank all the time.”

He further testified:

“We had in our bank what is known as a discount committee.
“Q. And that discount committee meets how often ?
“A. The rules of the discount committee were as follows : Every Monday morning the discount committee is to meet with the full committee, and all of the papers that were coming due in the week following were examined and the discounts were passed' upon if they were asking for renewals, if they were not asking for that and wanted to pay them they were so marked on the memorandum and I would notify them we wanted the note paid, otherwise, the note would be renewed, and anything I had of importance in the shape of a new note I submitted to them, and we discussed the line of credits; if anybody came in we fixed the line of credits for him.
“Q. What do you mean by ‘line of credits?’
“A. Suppose a new man would come in and open an account, suppose that man wants to borrow some money, we would say we will let him have not to exceed a certain amount of money.
“Q. Inside that line of credit what authority had you ?
“JL I had authority to make that credit to that man.
“Q. If you exceeded that amount ?
“A. Then I went to the discount committee for instructions.
“Q. But if it was inside that line of credit you did not have to consult with the discount committee at all ?
“A. No. Suppose a man was doing business with us, a man we knew, they would say, ‘If that man wants $200 or $300 let him have it.’ I never submitted that to the discount committee before, I did afterwards.
Q. When it was within that line of credit you discounted it to him up to the limit of that line without consulting the discount committee at all, you had that power ?
‘‘A. That was the arrangement we ran on.
“Q. I say that was the authority they gave you, if one made an application for a loan exceeding the limit, then what?
“A. Then I went to the discount committee and they passed upon it before it was made.”

After all this testimony, came the testimony on cross-examination which counsel for defendant have quoted as showing that the cashier was the manager of the bank. Immediately following this cross-examination the cashier testified as follows: Redirect examination:

“Q. Do you mean you had the right to exceed the limit fixed, by the bank ?
“Mr. Brown: I object; that is leading and suggestive.
“Q. Do you mean to say by your answer to Mr. Brown, that in the absence of any authority on the part of the bank for doing it, you had a right to make a settlement with Mr. Hardinghaus and take those bonds in payment of that debt without any action on the part of the bank officials on that subject ?
“Mr. Brown: The same objection, it is leading and suggestive, and is cross-examination. (Which objection was then and there sustained by the court.)
“The Court: I think it is.
“Q. Now, Mr. Belser, I want to know whether or not your authority to make a settlement like that of the acceptance of the bonds on the behalf of Mr. Hardinghaus was' ever granted to you by the bank.
“A. I had this whole matter talked over before the board, the settlement of Hardinghaus and everything was understood before it was ever made. I had no authority to settle without the consent of the board, but they acted upon those things.
“Q. That is what I expected you to say and wondered why you did not say it before.
“A. I made a general statement that I never made any settlement or did any business; of course I did those things.
“Q. You did those things within what limit?
“A. But a settlement of this kind I would always consult them about and the discount committee specially.”

All this testimony was uncontradicted unless it may be said that such is the result of the cross-examination.

At this point it may be well to refer to the cases, relied upon by the defendant, of Wing v. Savings Bank, 103 Mich. 565 (61 N. W. 1009), and Davenport v. Stone, 104 Mich. 521 ( 62 N. W. 722, 53 Am. St. Bep. 467). In the first of these cases Justice McGrath, speaking for the court, said:

“ It is not claimed that any of the other directors or officers of the defendant bank had any actual knowledge of these transactions or took any part in them. Fuller and his relatives and personal friends, all of them nonresidents of Ludington, owned a majority of the stock of defendant bank; and Fuller, as he often boasted, was the sole manager, and could do anything he pleased in relation to the management of the bank. He openly asserted this on different occasions, and his course of conduct lent all possible color to the claim. He advanced the money of the bank to build a clubhouse in the city of Ludington. He took stock in manufacturing companies, and did other extraordinary things for the cashier of a bank to do, without any protest on the part of the resident directors of the bank. The directorate was made up of men totally unacquainted with banking, men engrossed in other affairs, and who had neither time nor inclination to look after the affairs of the bank. They voluntarily left all matters to the discretion of Fuller; seldom held meetings of the directors. * * * It does not appear whether the directors had actually voted to confer unusual powers upon Fuller, but it does appear that he claimed and exercised them without let or hindrance on all occasions. He was by sufferance, if by no other authority, something more than a cashier; he was the manager of the bank.”

In Davenport v. Stone, supra, Justice Grant, speaking for the court, said:

“Mr. Bradley, the cashier, testified that for five years prior to the suspension of the bank he was its financial manager, and that the financial management of the bank was practically left to him by the board of directors. * * * The directors intrusted the entire management of the bank to the cashier, Mr. Bradley. Therefore, neither the bank nor its receiver can now be heard to deny the authority of the cashier to do any of those acts which it or its directors might lawfully authorize the cashier to do.”

It is apparent from these quotations that the two cases are as unlike the case at bar as it is possible for cases to be. In the case before us the officers of the bank were diligent. The bank had a discount committee which met almost daily and was at all times accessible to the cashier. A careful reading of every word of the somewhat voluminous record in this case fails to show that unusual powers were conferred upon the cashier. There is no competent testimony in the case from which it can fairly be inferred that authority, either direct or implied, or by the course of business, was conferred upon the cashier to make the contract which it is claimed he made, and which he says he never made. The court instead of submitting the case to the jury should have given plaintiff’s first request to charge, directing a verdict for plaintiff. It is not necessary to discuss the other assignments of error.

Judgment is reversed, and new trial granted.

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


text:
    CHEYNEY v. CHEYNEY.
    1. Judgment — Divorce—Service—Opening Default — Decree-Equity.
    A decree for divorce obtained on substituted service, set aside on affidavit of the defendant and on an order opening his default and permitting him to file an answer, after the filing of which complainant dismissed her bill, is not a valid, subsisting decree for divoroe.
    2. Divorce — Extreme Cruelty.

      Held that evidence offered by complainant against the defendant, her husband, in proceedings for divorce, did not warrant a decree on the ground of extreme cruelty.
    Appeal from Wayne; Donovan, J.
    Submitted October 27, 1910.
    (Docket No. 132.)
    Decided December 7, 1910.

      Bill by Elmira W. Cheyney against John Passmore Cheyney for divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James H. Pound, for complainant.

      Stellwagen & MacKay, for defendant.
   Moore, J.

This is a proceeding brought to obtain a decree of divorce upon the ground of extreme cruelty. Desertion is also charged. The court made a decree as follows:

“This cause was duly brought on to be heard upon the bill of complaint filed therein, the answer, and the plea to the jurisdiction of said defendant, and upon proofs taken in open court. And, the court being fully advised in the premises, and after hearing arguments by counsel for the respective parties, it is ordered, adjudged, and decreed, and this court, by virtue of the authority therein vested, doth order, adjudge, and decree, that the complainant’s said bill of complaint be and the same is hereby dismissed without prejudice.”

The case is brought here by appeal. The case is peculiar in many ways. We quote from the brief of the solicitor for the complainant:

“Complainant is in a peculiar situation, as shown by this record. After two proceedings in court, she does not know where she is legally. Whether she is married or not married; whether she is or can ever be a citizen of Michigan. She has had two trials or hearings where all legal rules seem to have been violated. She has been divorced and reinstated in her matrimonial state upon an ex parte showing, not by a petition for a rehearing or by a bill of review, and she has been turned out of court in the Wayne circuit court, in chancery.”

It is urged by the solicitor for complainant that this court should hold, first, that the proceedings in Kent county resulted in a valid decree of divorce; or, second, if this cannot be done, that complainant in the subsequent proceeding in Wayne county made a case which entitles her to a decree of divorce. The testimony in the Wayne circuit court was taken at intervals, and in a somewhat informal way. In the record returned to this court appears the following:

“ (Title of Court and Cause.) In signing the record in this case on ex parte appearence of Mr. Pound, solicitor for complainant, it was expressly understood that both the letters of the complainant now fully identified as a part of the evidence in the case, and a certified copy of the-court proceedings at Grand Rapids in the divorce case recently granted and set aside between the same parties be made, and they are each made a part of the record in this cause now in process of appeal to the Supreme Court, and I certify that the same were considered in the decision, which I made herein, and I further certify that, by agreement of counsel on the hearing of this cause, the letter» hereinbefore mentioned and certified copies of the proceeding of the Kent county circuit court, in chancery, were in evidence, and were considered by me before the decision of this case.
“ J. W. Donovan, Circuit Judge.”

A careful reading of the record establishes the following state of facts: The parties were married in Philadelphia in 1885. The defendant was a traveling man, and is still a traveling man. The complainant usually accompanied- him from town to town. For many years they spent a good deal of time in Detroit, making their headquarters at the Hotel Cadillac, and later at the Addison. They lived together until about the 1st of April, 1908. The business of the defendant called him to Ohio. The complainant preferred to remain in Detroit for a time, and it was agreed she should do so. The defendant paid her bill at the hotel until the 1st of May, and gave her a check for $100, it being the agreement that she would meet him at the Colonial Hotel in Cleveland about the 1st of May. Between the 6th of April, 1908, when defendant went to Ohio, and the 30th of the same month, plaintiff wrote him at least 14 kind and affectionate letters, the last one of which ended as follows:

”1 will stop now. I won’t write again from Detroit. I hate to give up these rooms, they are so bright and cheery. Love and kisses from Myra.”

On the 30th of April the complainant wrote defendant from Buffalo a long letter of an entirely different character, giving him to understand she should not live with him, and making statements about herself which it is not necessary here to repeat. Instead of going to Ohio, she went to Grand Rapids and filed a bill of complaint for divorce, which was sworn to on the M day of July.

On the 3d day of July she made an affidavit in the cause to the effect that the defendant was not a resident of Michigan, but was a resident of Cleveland, Ohio. Based upon this affidavit an order was made for bringing in the defendant by publication, which order was published in the Caledonia News. Later upon an ex parte hearing a decree of divorce was granted to the complainant. As soon as defendant learned of this proceeding, he filed an affidavit in the Kent circuit court showing the situation from his viewpoint, and asking that the decree be set aside and for permission to file an answer in the case. The decree was set aside, and leave was given to file an answer. An answer was filed and served. From this order no appeal or other action was taken except that the complainant caused her bill of complaint to be dismissed in Kent county. The proceedings in Kent county being as we have stated, we think it very clear that complainant cannot now be heard to say that there is a valid decree of divorce.

After the proceeding in Kent county was discontinued by the complainant, this proceeding was commenced in Wayne county. Defendant answered, and denied in detail all the averments of the bill of complaint. He denied that complainant was a resident of the State, and that he was a resident of the State. He set out the proceedings in Kent county, and questioned the jurisdiction of the court. The complainant insists the Wayne county circuit court has jurisdiction to try the case, and that she has established upon the merits the case stated in her bill of complaint. Defendant denies both propositions.

We think it unnecessary to discuss the question of jurisdiction. The conduct of the complainant, as disclosed by her testimony and her letters, is utterly inconsistent with the claim stated in the bill of complaint. Without reciting the testimony, we think complainant failed to make a case.

The decree of the court below is affirmed.

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


author: Moore, J. Hooker, J.

text:
    WEADOCK v. SWART.
    1. Innkeepers — Negligence — Loss op Property — Sufficiency of Lock — Statute.
    Under the statute limiting the liability of hotelkeepers for the loss of property of their guests (Act No. 42, Pub. Acts 1905), the question of the suitability of the look on the door of plaintiff, who occupied a room with another, and whose watch and charm were stolen, while, as plaintiff claimed, the other guest was absent from the room, was for the jury, upon a record which showed there was only one key for the lock and the guest who left the room, did not lock the door.
    2. Same — Guest at Hotel — Watch and Chain.
    A gold watch and chain in habitual use by a guest are not jewelry, or personal ornaments, or articles of gold and silver manufacture, within the intent of Act No. 42, Pub. Acts 1905, limiting the liability of innkeepers who maintain a safe ■or vault for the deposit of articles of the character described, when the guest shall not offer to deliver the articles for custody in the safe or vault. Per Moore, Bird, and Stone, JJ.

      Error to Wayne; Donovan, J.
    Submitted October 28, 1910.
    (Docket No. 159.)
    Decided December 7, 1910.
    Case by John 0. Weadock against James H. Swart and William C. Swart for the loss of valuables at defendants’ hotel. A judgment for defendants on verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Thomas A. JS. Weadock, for appellant.

      James McNamara, for appellees.

       As to effect of statute limiting innkeeper’s liability for goods not delivered into his custody, see note to Brewer v. Caswell (Ga.), 23 L. R. A. (N. S.) 1107.

   Moore, J.

Plaintiff was a guest at the hotel of defendants, and was assigned to a room with Mr. Loranger, also a guest, who was recovering from an illness, and both desired to have beds in the same room. Plaintiff carried a gold watch and chain valued by him at $120, a diamond-studded Elk watch charm, which had been presented to him about five years before by the Elks, which cost $200, and $12 in money. There was only one key to the room, as the clerk of the hotel informed plaintiff when the room was assigned. Before retiring plaintiff called a uniformed messenger boy, to whom he gave his trousers to be pressed. He was to return them at 7 o’clock next morning. The tailor was employed by the hotel. Plain-, tiff’s recollection is that the room door had an ordinary single lock. Next morning plaintiff was partially awakened by Mr. Loranger taking a bath, but went to sleep again. He was awakened later by a rapping on the door, which he opened. The boy handed in the trousers, and when .plaintiff reached into his hat on the dresser for his watch which he had put there the night before, the watch, chain, charm and money were gone. These articles were usually carried by plaintiff by day and kept in his room at night, and the amount of money was less than he ordinarily carried. Mr. Loranger arose before Mr. Weadock, and, unlocking the door, left the room for a short walk in the street. When he returned the door was closed. Mr. Weadock asked him if he had seen anything of his watch and money. He said no, and testified on the trial that he did not take them. Mr. Loranger’s watch and money were not taken.

Defendants offered testimony of several witnesses contradicting the testimony as to the condition and kind of locks on the door, and the value of the property stolen. They offered evidence that they kept an iron safe in the hotel office, and had notices posted of the fact, and that plaintiff’s watch, chain, charm, and money were not offered by him to be placed therein for safe-keeping. Mr. William Swart testified that out of two to three hundred guests in the hotel, four to a dozen valuable watches would be placed in the safe by the clerks. There was no fire escape near the windows of the room. The defense relied upon the statute, Act No. 42, Pub. Acts 1905, as a complete defense to the action. The court agreed with the defendants and directed a verdict for defendants.

Act No. 42, Pub. Acts 1905, provides in part as follows:

“Seo. 2. No innkeeper whether individual, partnership or corporation, who constantly has in his inn a metal safe or suitable vault in good order, and fit for the custody of money, bank-notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers and bullion, and who keeps on the door of the sleeping rooms used by his guests suitable locks and bolts, etc., * * * shall be liable for the loss of or injury to any such property belonging to any guest, unless such guest has offered to deliver the same to such innkeeper for custody in such metal safe or vault.”

Mr. Swart in his testimony describes the lock as:

“ * * * A double lock. It is just the same as if you put two locks on a door — a lock for the outside and a lock for the inside of the door. * * * When the door is locked from the inside, there is no way to open it from the outside at all. No one with skeleton keys can open it. * * * The locks have independent bolts. * * * It would be impossible for a man inside to get out. * * * I remember Mr. Loranger testifying that he arose before Mr. Weadock the next morning and went out. , If that door was locked, he would have to unlock it from the inside. He would have to take his key on account of the lock being independent and lock it from the outside, or else wake up the other gentleman and have him lock it from the inside. If he went out and locked it from the outside, the gentleman inside could not get out. * * * ”

The appellant insists upon two propositions: First, that the question of whether there were suitable locks and bolts upon the door presented a question of fact for the jury, and, second, that the statute does not include a watch and chain in habitual use by the guest.

As to the first of these propositions: The recollection of the plaintiff and the defendant who was sworn, differs as to the character of the fastening. It is clear the term “locks,” as used in the statute, is broad enough to include the key or keys that go with the lock or locks. A lock without a key would not comply with the requirement of the statute. The clerk knew the room was to be occupied by two guests who occupied separate beds. These guests might want to leave the room at separate times from each other. When inquiry was made of the clerk for the key or keys he informed the plaintiff there was but one key to the lock. In view of the situation, as shown by the record, we think the suitableness of the locks was not a question of law, but should have been submitted to the jury as a question of fact.

As to the second question, Were the watch and chain included in the statute ? The defendants cite the case of Lang v. Hotel Co., 12 Wkly. Law Bul. (Ohio) 250, as conclusive. This was an opinion rendered in the court of common pleas for Hamilton county, and is not entitled to as much weight as though it was a court of final resort. The learned judge contented himself with saying that if the watch and chain were not jewelry, they were articles of gold manufacture.

On the part of plaintiff many cases are cited, among them Ramaley v. Leland, 43 N. Y. 539 (3 Am. Rep. 728), Jones v. Hotel Latham Co., 62 Misc. Rep. 620 (115 N. Y. Supp. 1084), and Kerlin v. Swart, 143 Mich. 228 (106 N. W. 710), and it is said that the last-named case is conclusive in favor of the plaintiff. An examination of the cases cited by plaintiff shows that the statute under construction in each of them differed from the one now before us. The cases do settle, however, what is now conceded by counsel for defendants, that a watch and chain, in common use, are not “jewelry.”

In the case of Ramaley v. Leland, supra, it was said:

“A watch is neither a jewel nor ornament, as these words are used and understood either in common parlance or by lexicographers. It is not used or carried as a jewel or ornament, but as a timepiece or chronometer, an article of ordinary wear by most travelers of every class, and of daily and hourly use by all. It is as useful and necessary to the guest in his room as out of it, in the night as the daytime.”

Counsel for defendants argue (we quote from the brief):

“As the testimony in this case, given by the plaintiff, says his watch and chain were gold, it is not straining the English language much to say that they must, therefore, of necessity be of ‘ gold manufacture.’ ”

In Ramaley v. Leland, supra, the court said, in part:

“ The statute permits a proprietor of a hotel to relieve himself from his strict common-law liability, in respect to certain classes of property, upon compliance with the prescribed conditions. But the exemption is limited to the particular species of property named, and, being in derogation of the common law, cannot be extended in its operation and effect by doubtful implication, so as to include property not fairly within the terms of the act. The rules of the common law touching the liability of innkeepers, common carriers, and the like, have not been relaxed by the courts and are in full force, except as expressly changed by statute, or as they may be modified by special contract. By statute, the proprietors of hotels may provide a place of safe-keeping of ‘money, jewels, or ornaments’ belonging to guests, and by so doing, and giving notice as directed, they are not liable ‘ for such money, jewels, or ornaments ’ by theft or otherwise. Certain property, particularly valuable in itself, taking but small space compared with its value for its safe-keeping, easy of concealment and removal, holding out great temptation to the dishonest, and not necessary to the comfort or convenience of the guest while in his room, is made the subject of the statutory exemption. Property of a different description, including all that which is useful or necessary to the comfort and convenience of the guest, that which is usually carried and worn as a part of the ordinary apparel and outfit, or is ordinarily used, and is convenient for use by travelers as well in as out of their rooms, is left, as before the statute, at the risk of the innkeeper. The words of the statute must be taken in their ordinary sense, in the absence of any indication that they were used either in a technical sense or a sense other than that in which they are popularly used.”

Apply this rule to the statute before us. Does the sentence, “articles of gold and silver manufacture,” include a watch and chain ? It is' common knowledge that the most important part of a watch, those parts which make it possible to keep time, are neither gold nor silver. If the legislature had intended to include in the statute an article of such general and necessary use as a watch, we think it would have used the word “watch” instead of saying, “articles of gold and silver manufacture.”

Judgment is reversed, and new trial ordered.

Bird, C. J., and Stone, J., concurred with Moore, J.

Hooker, J.

I concur upon the ground that the question relating to the suitableness of the lock was a question for the jury. On other questions I reserve my opinion.

Ostrander, J., concurred with Hooker, J.


author: Ostrander, J.

text:
    HOWCROFT v. DETROIT UNITED RAILWAY.
    1. Trial — Absence of Witness — Withdrawal of Juror —Continuance.
    It is not an improper exercise of discretion for the trial court to refuse plaintiff permission to withdraw a juror, on the ground alleged by plaintiff’s attorney, of the absence of a witness, for which no sufficient excuse is offered.
    2. Master and Servant — Personal Injuries — Fellow-Servant.
    The negligence of a motorman employed by defendant, in starting a car while plaintiff was in the act of boarding it, after his return from noon recess, for the purpose of riding across a street and upon a Y where plaintiff intended to assume charge of the car, in the course of his employment by defendant, was the negligence of a fellow-servant.
    Error to Wayne; Donovan, J.
    Submitted October 28, 1910.
    (Docket No. 155.)
    Decided December 7, 1910.
    Case by George Howcroft against the Detroit United Bail way for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Thomas Hislop, for plaintiff.
    Corliss, Leete & Joslyn, for defendant.
    Plaintiff, injured December 19, 1905, while attempting to board one of defendant’s cars, alleges in his declaration, in substance and effect, that he attempted to board one of said cars standing at the intersection of Mt. Elliott avenue and Waterloo street'at the northerly switch, to ride in a southerly direction on Mt. Elliott avenue; that the conductor carelessly signaled for the motorman to start the car as plaintiff was entering it, and the motorman suddenly started the car, turning on the full current of electricity, throwing the plaintiff against the front part of the car, dragging him from the north to and beyond the south switch on Mt. Elliott avenue, and seriously injuring him. It is alleged that in attempting to board the car plaintiff was in view of both conductor and motorman ; that the motorman was, and was known to defendant to be, incompetent to act as motorman on any car. The duty alleged is to employ careful and competent con-

    ductors and motormen, and to operate cars with due care for the safety of passengers and others entering and alighting therefrom, not to start them when any one was entering or alighting therefrom. The defendant pleaded the general issue. The cause came on for trial March 14, 1910, before the court and a jury, and resulted in a verdiet for defendant, directed by the court. Judgment was entered on the verdict.
    Plaintiff was the only witness sworn, and his testimony, which should be considered with reference to the map or plat here shown, tends to prove the following: At the time he was injured, he was employed by defendant as a motorman, and had been so employed from some time in 1901. He lived on Hunt street, shown in the plat as running west from Mt. Elliott avenue. He had operated a car during the forenoon, taking it at the Kercheval street car barns, and running out Mt. Elliott avenue, returning to Waterloo street, where cars were turned on the Y. He had gone to dinner at his home, intending to resume work at 2:55 p. m., when he would take his car back of the switch on Waterloo street. He walked down Mt. Elliott from Hunt to Waterloo at about 2:50 p. m. His car, in charge of a motorman, whom he was to relieve, and of a conductor, was standing, or came to a stand — having come from the north — on the north side of Waterloo street. Its course there was to the south arm of the Y, then on that arm, backing in on the Y on Waterloo street preparatory to running out again on the north arm of the Y to Mt. Elliott avenue, and north on that avenue. The ride which plaintiff proposed to take was across Waterloo street and on the Y to a point where he, assuming charge of the car, could run it out on the north arm of the Y. He attempted to enter the front vestibule of the car. The car was started, and, while he retained his hold upon the car, he was seriously injured.
    While the plaintiff was giving his testimony, the court intimated that he thought plaintiff was not entitled to recover because he was a fellow-servant of the motorman. When the cross-examination of plaintiff was concluded, the attorney for the plaintiff asked leave to withdraw a juror, stating, in substance, that upon the subject of the incompetency of the motorman a witness was absent, and could not be brought into court. The request was refused. An argument took place concerning the effect of the testimony of the plaintiff, with the result already stated. The court was of opinion, and stated, that the testimony of plaintiff proved that he was, upon the occasion in question, a fellow-servant of the motorman, for which reason he could not recover. Plaintiff has assigned as error that—
    ‘' (2) The court erred in refusing to permit plaintiff to withdraw a juror under the circumstances as shown in this case.
    “(3) The court erred in refusing to permit plaintiff to show the incompetency of the motorman.
    “ (4) The court erred in refusing to permit the plaintiff to submit his case to a jury for its finding whether or not plaintiff was in this case a fellow-servant of the motorman in charge of the car, and in directing a verdict of no cause of action.”
   Ostrander, J.

{after stating the facts). The record does not indicate that the plaintiff asked to have the case submitted to the jury. The court did not refuse to permit him to introduce testimony upon the subject of the incompetency of the motorman, because no such testimony was offered. The court did refuse permission to withdraw a juror, and we cannot say that in doing so sound discretion was not exercised. No excuse whatever was given for not having the witness present in court, except the one that counsel had not supposed the witness would be so soon wanted.

We may treat the record and the brief as presenting the question whether the court was in error in directing a verdict for the defendant upon the testimony of the plaintiff, although strictly no such question is raised by the assignment of error. It is asserted, in the brief, that plaintiff occupied the position of a stranger attempting to enter a car. We are of opinion that the testimony conclusively establishes the fact that he occupied no such position. To infer that he proposedoto become a passenger to ride across Waterloo street and upon the Y, or that any one connected-with the service so supposed, would be unreasonable. To infer that he attempted to enter the car for some purpose connected with his employment is reasonable. It was not claimed that defendant had knowledge that the motorman operating the car was incompetent, if he was so in fact.

The judgment is affirmed.

Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.