author: Blair, 0. J.

text:
      In re STOCKDALE’S ESTATE. APPEAL OF THE CITY OF FLINT.
    1. Judgments — Res Ad'judicata — Probate of Wills — Stipulations for Judgment.
    A judgment of the circuit court, on appeal by a legatee from probate court, admitting a will to probate in pursuance of a stipulation between contesting beneficiaries, is not conclusive of the fact that a subsequent will, which, pending such appeal, the proponent had petitioned the probate court to allow, was not the last will of the deceased.
    2. Appeal and Error — Reversal.
    A case should not be reversed in favor of a party thereto, who is not, in any view of the evidence, entitled to a judgment.
    3. Trial — Cross-Examination — Impeachment — Conduct of Judge.
    It is prejudicial error for a trial court, in examining a witness, to adopt the manner of a hostile cross-examiner, and to so frame questions as to indicate his opinion that the witness is not testifying truthfully.
    4. Wills — Burden of Proof — Proving Lost Instruments — Instructions.
    An instruction to the jury, in substance, that the proponent of a lost will must maintain the issue by a clear and unquestionable preponderance of the evidence, requires too high a degree of proof.
    Error to Genesee; Wisner, J.
    Submitted February 16, 1909.
    (Docket No. 12.)
    Decided July 15, 1909.
    Petition by the city of Flint for the probate of an alleged lost will of Mary Stockdale, deceased. The will was disallowed in the probate court, and proponent appealed to the circuit court. A judgment for contestants is reviewed by proponent on writ of error.
    Reversed.

      De Vere Hall {Homer J. McBride and Harrison Geer, of counsel), for appellant.

      John J. Carton, Mark W. Stevens, Brennan & Cook, Brown & Farley, and Black & Roberts, for appellees.
   Blair, 0. J.

The writ of error in this case is prosecuted to set aside the judgment entered upon the verdict of the jury therein, finding that the said Mary Stockdale did not execute a certain alleged will propounded by proponent as a lost will. Mrs. Stockdale died on April 26, 1905, at her home on her farm just outside the city limits of Flint, and the only will found after her decease was a will drawn by William Stevenson, and properly executed by her on the 10th day of September, 1883. This will appointed William Stevenson and Charles T. Bridgman executors; was filed for probate on April 29, 1905; contested by the heirs at law; and was decreed by the probate court not to be the last will and testament of Mrs. Stock-dale, for the reason that she had revoked it by another will containing a revocation clause. From the decree disallowing the will Charles T. Bridgman, as executor, and the Harper Hospital of Detroit, as a legatee, appealed to the circuit court.

On the 11th day of December, 1906, in pursuance of a stipulation to that effect, entered into by Brown & Farley and Black & Roberts, attorneys for the heirs at law, Carton & Bray, attorneys for the legatees, and Brennan & Cook, attorneys for Charles T. Bridgman, appellant, an order was entered in the circuit court dismissing the appeal of said Bridgman. On the 5th day of April, 1906, an agreement was entered into between the legatees and heirs at law settling the estate on the basis of 40 per cent, to the legatees and 60 per cent, to the heirs at law, and authorizing their respective attorneys—

“To take such steps and proceedings as may be necessary, and which in their judgment may be expedient, either to admit said will to probate, or to disallow the same, so that administration of said estate may be had, and said estate distributed and settled either as a testate or as an intestate estate.”

On the 10th day of December, 1906, judgment was entered in the circuit court in the Harper Hospital appeal upon a directed verdict, adjudging the will of September 10, 1883, to be the last will and testament of said Mary Stockdale, and remitting the cause for further action to the probate court. On February 19, 1906, David D. Aitken, as mayor, filed his petition in behalf of the city of Flint, for the probate of the alleged lost will in issue in this cause. The petition was denied by the probate court, and appeal taken to the circuit court, where the appeal was dismissed. The petitioner thereupon applied to this court for a writ of mandamus to require the circuit judge to vacate his order dismissing the appeal. The writ of mandamus was denied by this court, November 24, 1906, upon the ground that the appropriate remedy was by writ of error. City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769). The record having been brought before this court for review upon writ of error, the order dismissing the appeal was vacated, the appeal reinstated, and the cause remanded for further proceedings. City of Flint v. Stockdale’s Estate, 149 Mich. 214 (112 N. W. 710).

On the 10th day of December, 1906, notice of issuance of a writ of error and a copy of assignments of error were served upon contestants’ attorneys. In the brief for contestants it was set up that the pendency of the appeal of the Harper Hospital and the judgment entered therein were conclusive of proponent’s rights. On January 26, 1907, an order to show cause why proceedings in the Harper Hospital appeal, both in the probate and circuit courts, should not be stayed was entered, and on the 18th day of March, 1907, an order was entered staying all proceedings until the further order of this court, except as to matters necessary to conserve and protect the estate. On the 26th day of December, 1906, contestants moved to dismiss the writ of error issued on December 10th, for the reason, among others:'

First. That the status of the estate of the testatrix and its testacy having been fully adjudicated and established by the verdict and judgment of the circuit court for the county of Genesee, and said judgment being final and binding upon the petitioner and appellant in this cause, said writ of error was improvidently issued, and the proceedings had thereunder of no force, and said writ should be recalled and dismissed.”

The principal witness for proponent was Howard O. Taylor, who testified that he drew a will for Mrs. Stock-dale on November 12, 1898, at the probate office in the city of Flint, he being at the time probate register, and his father, George E. Taylor, judge of probate for Gene-see county; that Mrs. Stockdale executed the will in the presence of himself and father, and they signed it in her presence as witnesses, whereupon he placed the will in a blue envelope, wrote upon it, “Last will and testament of Mary Stockdale,” and delivered it to her. He also testified to the contents of the will, in part, and that his recollection was that it was drawn upon a certain blank form which he had had prepared, and which was put in evidence. This blank contained figures showing it was printed in September, 1899. He had testified in probate court that the blank used was a duplicate of the blank put in evidence. Later on, being recalled, he testified:

“Q. 'Do you know whether these blanks you first acquired, such as Exhibit A, were republished during the years that you were in office ?
“A. Several times.
“Q. Who published them for you F
“A. Well, different ones, depending on who to be ordering goods from.
l‘Q. Do you know what these figures ‘9-99’ means on the top of the Exhibit A ?
“A. Yes.
tsQ. What is it?
“A. That means the date the blank was printed.
(‘Q. Had you used this form prior to that time ?
“A. I should judge about five years before that, four or five.”
Mr. Taylor testified on the trial in the circuit court, concerning the blank form used, as follows:
“Q. What did you use in the draughting of this will, a blank paper written entirely by you, or a blank filled by you?
“A. My memory is it was a blank filled by me.
“Q. Did you have and keep blanks for that purpose in your office?
“A. Yes, sir.
“Q. I show you a blank form, and ask you how the form which you employed agreed with the form which I show you ?
“A. My memory is I used that form, but I would not swear to that positively.
l‘Q. Did you have more than one blank form around ?
“A. I could not swear to that.
“Q. The blank form which you used, where did you procure it ?
“A. It was naturally laying around on some of the desks there.
líQ. I mean who constructed it?
“Ñ. The one I usually used I constructed myself; had it printed.
“Q. What have you to say as to whether your best recollection is that the will, the form which I show you, is the form employed by you in draughting the will ?
“A. I would not say anything more definitely, Mr. Hall, than I have already said on that subject.
“Q. Just repeat it again, please.
“A. I said my impression is I used that form. * * *
“Q. You stated, I think, Mr. Taylor, that Exhibit 3 is the form of will which you draughted for Mrs. Stockdale, November, 1898 ?
“A. No, I didn’t make any such statement. I said I thought it was.
“Q. Well, that is your best judgment ?
“A. That is my best impression it was. It might have been a blank form that was lying around the office there.
“Q. I mean so far as the material and substantial parts of a will are concerned, whether the one which you made differed materially from Exhibit 3 ?
“A. No; it did not differ materially. Very probably that is the form. * * *
“Q. Is it your recollection that the earlier blanks were the same as this ?
“A. That is, no special recollection, a comparison of two blanks of different issues would show what that means. I haven’t any recollection of that.
“Q. Have you any recollection of material change in the blank ?
“A. No recollection at all as to the fact. All I have any knowledge that any issue has the time it is printed on it.
“Q. I do not mean as to the change in this; I mean as to the substantial part of the blank ?
“A. No, sir.
“Q. I will ask you, Mr. Taylor, if you can remember of drawing any will upon any blank other than the blank marked ‘9-99’?
“A. I would not answer that question either yes or no, because I testified here before. It might possibly have been on a sample blank that was in the office.
“Q. Will you swear that you ever did draw any will upon any blank other than blank 9-99 prior to September —prior to Mrs. Stockdale’s death?
“A. Yes, sir; I will swear that I have, several.
“Q. Now, did you ever draw — will you swear that you have ever used a blank in drawing a will prior to the time of getting the blank marked ‘9-99’?
“A. Yes, sir; several.
“Q. Can you give me the names of any of them ?
“A. If I could, you haven’t any right to ask that.
“Q. You can, hut you would not f
“A. I don’t say that; but, if I could remember — I don’t pretend to say I can remember what kind of an individual blank I used for every paper I drew.
“Q. Then you had been using blanks for several years prior to September, 1899?
“A. That is my recollection.
“Q. How many?
“A. I would not undertake to state, Mr. Hall, a matter of recollection; I couldn’t swear to the number.
“Q. Now, in your former testimony, you stated that ' you had used them for a period of four or five years prior to 1899 ?
“A. In that language ?
“Q. The substance of that.
“A. I will say probably that is true now, but I would not swear the exact number of years.
“Q. You also stated on your former examination, as I remember from reading it, that you had this blank marked ‘9-99’ republished several times ?
“A. Yes, sir.
“Q. You are sure about that ?
((A. I can state the circumstances if I have got to, but I would rather not.
“Q. How many did you have published each time ?
“A. That would depend on the generosity of the traveling men that happened to take the order.
“Q. Asa rule, how many ?
“A. Probably from two to four quires. * * *
Q. During what period of time was you using those quires ?
“A. There you are, going back where I wouldn’t undertake to swear again.
“Q. Was it during that period of four or five years you mention ?
“A. Yes, sir.
“Q. Those blanks were used in all wills that you drew?
“A. No; I will not undertake to say that.
“Q. Well, it was your custom to use blanks ?
“A. Usually that was true that is all I could think to use them for, probably I used them.”

Another witness, Betsey Lincoln, testified to taking the will out of the blue envelope and reading it, in the spring of 1902, and that it disposed of property as follows:

“Morey Andrews, city of Flint, 150,000; Louisa A. Dinturff, Syracuse, New York, her niece, $1,000; Carrie Campbell, city of Flint, $1,000; Walter White, home farm, west side of the road, and all the rest of the real estate, personal was to be left to the city-of Flint, for a hospital to be known and called the ‘ Hartshorn Hospital.’ ”

Dr. Sarah Allen also testified to seeing the blue envelope, and that Mrs. Stockdale told her, in effect, that it contained a will drawn by Howard Taylor, and that she had submitted it to his father, Judge Taylor, and it would ‘ ‘ stand law. ” There was other testimony tending to show the presence of the blue envelope in Mrs. Stockdale’s safe down to within a few weeks of her death, and that it could not be found after her death. Mr. Rundell, one of the special administrators, testified that the day following Mrs. Stockdale’s death Mrs. Dinturff, one of the heirs at law, came to his office, and said, "This is an awful thing, isn’t it, this will leaving this property away from us,” and offered him $25,000 if he would make a will, and she would look after it; that she could "write enough like Aunt Mary [Mrs. Stockdale] so that no one could tell the difference.” She also said that she could get witnesses. He said to her that she might find the will "when we come to examine her papers.” She said, "I know you won’t.” She had the keys of the safe at that time, and delivered them to him the next day at the Stockdale house, and he had had them ever since. After the 1st of April, 1905, he went to the safe in Mrs. Stockdale’s house, and Mrs. Holton, a niece of Mrs. Stockdale, got the keys to open the safe. She said that she expected "she would have to look after the keys from now.” He saw a blue envelope there at that time. Mrs. Dinturff came to Mrs. Stockdale’s home two weeks before her death and remained there till some time afterwards. She learned of the 1883 will the day of her aunt’s death.

Samuel Evans testified that on the Sunday following Mrs. Stockdale’s death Mrs. Dinturff called him into the sitting room, and wanted to know if he could not recall signing a will, saying,

" If you could remember of signing a will that was witnessed by somebody else that Mr. Andrews had drawn, there would be $10,000 in it for you, and it would be easier than working for it.”

He suggested calling Mr. White in. She said it was no use because "he has told Mrs. Stockdale had no will.” On May 11th Mrs. Dinturff wrote and mailed the following unsigned letter addressed to Mr. Evans:

“Friends Mr. and Mrs. Evans: I have to leave here today — had hoped to see you again, but if the paper you saw was not the one we were looking for, of course it is no nse. This is a hard thing .to come on us. Say nothing to anyone of what I said and talked to you both — for there is lots of talk, and we don’t know what next, so better ■ keep out of it altogether. I trust you as a friend. Good-by — shall come again.”

Mrs. Dinturff denied absolutely the conversation with Mr. Rundell, or that she was at his office, or had the keys as he stated. She also denied offering any money to Mr. Evans, though she admitted talking with him on the subject of whether he had signed any will, and admitted writing the anonymous letter.

At the close of the voluminous testimony, which is in irreconcilable conflict on nearly every material point, the contestants moved the court to instruct a verdict in their favor, which was denied, and the case went to the jury, who found a verdict against the alleged will.

Contestants’ counsel insist in this court, as they did in the circuit court, that a verdict should have been directed in their favor for the reasons:

“ (1) There was no evidence to go to the jury that the alleged will of November 12, 1898, had been destroyed by anybody other than Mrs. Stockdale during the lifetime of Mrs. Stockdale, or had been destroyed or suppressed by anybody after her death.
‘ ‘ (2) Because the witnesses sworn by the proponent to prove the contents of the will differ materially, and even dispute each other as to what those contents were.
“ (3) That judgment having been rendered in the circuit court for the county of Genesee on December 10, 1906, sustaining the will of September 10, 1883, and admitting it to probate as the last will and testament of Mary Stock-dale, deceased, that judgment determined the status of the estate of Mary Stockdale, deceased, and became final and conclusive upon all persons interested in said estate, so long as the same stood unreversed.”

It is true that a case should^ not be reversed for errors committed against a party who, it is apparent, is not entitled to succeed in any event, and where, upon the whole record, he has not made out a case. 3 Cyc. p. 385, and notes; Barnum v. Stone, 27 Mich. 332; Richards v. Tozer, 27 Mich. 451; Bewick v. Fletcher, 41 Mich. 625 (3 N. W. 162, 32 Am. Rep. 170); Louden v. City of East Saginaw, 41 Mich. 18 (2 N. W. 182). An examination of the record in this case, however, has satisfied us that the circuit court did not err in submitting the questions of fact to the jury as to the destruction of the will and its contents, and that, under the decision of this court reinstating the appeal and the order staying proceedings, the judgment of December 10, 1906, which in reality was a mere ratification of the agreement of the parties, was not conclusive upon proponent, whose proceedings to probate the alleged lost will the contestants were actively combating at the time. As we have reached the conclusion that errors were committed for which the case must be reversed, we shall only discuss the assignments relating to such errors.

Prejudicial conduct of trial judge. At the request of the court, Mr. Taylor was recalled, and examined by the court, as follows:

“Q. I understood you to say, some time during your examination here in this case, that you had had published a number of orders of blank wills ?
“A. Why, that would be my memory, your honor.
“Q. Previous to 1899 ?
“A. That would be my memory; yes, sir.
l‘Q. And I think you stated that those orders consisted from two to four or five quires in accordance as to whether the agent might be liberal or otherwise — is that the substance of the testimony ?
“A. No; I did not say five. It might be two or four.
“Q. Two or four quires?
“A. I should say so.
“Q. That is 48 or double—
“A. Or 98, or three quires.
“Q. And when you got out of blanks, you gave another order and have some more printed ?
“A. Why, that would be my memory.
“ Q. Well, now in the interest of justice, I want you to tell me the name of a single person for whom you drew a will on a blank previous to September, 1899 ?
“A. Well, I can’t tell anything about those things; I don’t remember.
“Q. You don’t, out of all those, out of all those blanks, you cannot give a single name of a person for whom you drew a will ?
“A. Not at present, I am not able to. I may be able to find one.
“Q. Well, now, this caséis liable to last four or five days yet. I want you to investigate, and be able to tell this jury and this court if you can, the name of a solitary individual for whom you drew a will on a blank previous to 1899 ?
“A. Yes, sir.
The Court: That is all at the present time.
“A. I want to make a statement that I don’t swear' that I drew this will on this blank. I don’t remember that.
“The Court: Well, the testimony is here; that is for the jury.
The Court: That is all.
“ Mr. Hall: I will take an exception to the examination of this witness by the court.
The Court: That is all.”

Later in the trial the following occurred:

The Court: You have got Mr. Taylor here today, have you, Mr. Hall ?
“Mr. Hall: I suppose he is here.
“ The Court: Well, you remember I examined him, and I want to examine him again before this case closes.
“Mr. Hall: I want to take an exception to the attitude and statement of the court in regard to Mr. Taylor. He is a subscribing witness to this will, called by necessity.
“The Court: The court wishes to place on the record that here is the most important case that was ever tried in Genesee county, and I want this jury to have every last bit of evidence that can be produced, and I want my self to know every last bit of evidence that can be produced, that this jury may be enabled to determine who is telling the truth among the witnesses in this case, and that they may be able to arrive at a verdict which shall be just and right between the parties. That is the only desire this court has.
“Mr. Hall: Yes, I appreciate that, and I accept it, if it is a criticism on me, the suggestion of the court; but it has been directed unfortunately to our witness.
“The Court: Well, the record will disclose what has occurred, and further why the court has seen fit to examine the witness himself. It is not a question of fortune or misfortune. It is a question of justice.
“Mr. Hall: Note an exception to the statements of the court.”

At the close of the testimony Mr. Taylor was recalled at the instance of the court, and the following occurred:

“ By the Court:
“Q. Since you were here the other day, Mr. Taylor, have you been able to recall the name of any person for whom you drew a will upon this blank ?
“A. No, sir.”

Publishers of legal blanks and their representatives were called with reference to this particular blank to show that it had not been published prior to September 9, 1899, nor had one like it been published prior to that time. Their testimony also tended to show that they had printed no special will blanks for Judge Taylor or his son prior to that time. There was also evidence that the orders for blanks for each month were placed in an envelope, and the envelopes for the year filed in books, and that the envelopes of the year 1899, which would have shown exactly what Mr. Taylor’s order was, were lost.

In the course of his argument to the jury, Mr. Parley, one of the attorneys for the heirs at law, said:

“Of course Howard Taylor may have drawn a will for Mrs. Stockdale, but I don’t believe he knows what was in it, and I don’t know as. Mrs. Stockdale ever signed it. My theory of that matter is that Howard Taylor probably drew a will at the instance of Morey Andrews, and that Morey Andrews took that document up to Mrs. Stockdale and submitted it to her, and she was considering the question of whether she should sign it, because you remember Howard says that Morey went to the office with Mrs. Stockdale and came after her. Now, if Morey knew that she was drawing her will, he would not have told Mr. Evans that Mrs. Stockdale had not made a will. He would not have told Mr. Evans that she was considering a paper that she might want him to sign as a witness. Now, that is my theory of the case. * * * Now, it is true, as Mr. Hall will say to you, that this evidence of Mr. Taylor was evidence upon which we believed to some extent, when we started in with this contest against this will of 1883, but since I have heard the testimony in this case, gentlemen, since I have heard the gentlemen from Detroit and Kalamazoo come up here, and say that Mr. Taylor, when he drew a will upon a blank of that kind, I thank my lucky stars that we made that settlement with those institutions down there in Detroit and Buffalo, because I should feel very shaky for the clients that I represent if we hadn’t done it.”

The jury reported the following verdict:

“We find that Howard Taylor never drew a will for Mrs. Stockdale, and such a will never ought to be probated, and the Stevenson will is the only legal will she ever drew.”

The form of the questions put by the circuit judge being that of a hostile cross-examiner; the singling out of Mr. Taylor and recalling him after his examination and cross-examination, by opposing counsel, had been finished and other witnesses had testified; the reference to the interests of justice and the importance of the case — all tended to indicate to the jury the opinion of the circuit judge that the testimony as to the blank was of the greatest importance; that if the witness were testifying to the truth, he would be able to name some person for whom he had drawn a will on a blank previous to 1899; and that unless he could remember some other will for which he used a blank, his testimony should be discredited. An intelligent juryman could hardly have failed to believe that the judge regarded the failure of Mr. Taylor to name a single person for whom he drew a will upon a form previous to September, 1899, as a serious impeachment of his testimony. The course of the circuit judge also tended to unduly emphasize this question. Whether Mr. Taylor drew the will was the principal question, and his failure, after the lapse of eight or nine years, to be able to name a person for whom he had drawn a will upon a blank, was only material as it affected Ms credibility. Aside from his testimony as to the blanks, at least, Mr. Taylor appears to have been a fair and impartial witness. He testified to the most damaging facts in the case against the proponent. He also squarely contradicted Mrs. Lincoln, the principal witness as to the contents of the will, as to the devise of the home farm to White, and contradicted other witnesses for proponent. He was able to recollect very little of the contents of the will, and, apart from his testimony that he drew the will, his testimony was favorable to the contestants. Mr. Taylor was first called as a witness by Messrs. Black & Roberts and Brown & Farley, on the contest between the heirs at law and legatees over the probate of the will of 1883, for the purpose of proving that the will of 1883 had been revoked, and, based upon his testimony, in part at least, the probate court decreed that that will had been revoked by “ making and publishing another will containing a revocation clause expressly revoking all former wills.” The legatees conceded to the heirs at law 60 per cent, of the large estate, carefully protecting the percentage contracts of the attorneys for both sides, rather than take the risk of further contest, and both sides now make common war upon the principal witness, who testified to the existence of the revoking will.

We do not question the right or the duty of the circuit judge to question witnesses, and to see that the facts are properly brought before the jury, but in so doing it is his duty to so frame his questions as not to indicate his own opinion, and not to lay undue stress upon particular features of a witness’ testimony tending to impeach him. We think that the course pursued by the trial judge in this instance constituted reversible error. Spalding v. Lowe, 56 Mich. 367 (23 N. W. 46); Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Chase v. Buhl Iron Works, 55 Mich. 139 (20 N. W. 827); Wheeler v. Wallace, 53 Mich. 356, 364 (19 N. W. 33, 37); Wilson v. Hotchkiss’ Estate, 81 Mich. 172 (45 N. W. 838); Sterling v. Calla han, 94 Mich. 536 (54 N. W. 495); Cleveland Co-operative Stove Co. v. Mallery, 111 Mich. 43 (69 N. W. 75); Abbott v. City of Detroit, 150 Mich. 245 (113 N. W. 1121); Williams v. City of West Bay City, 119 Mich. 395 (78 N. W. 328); Buell v. Adams, ante, 248 (121 N. W. 752); Hine v. Commercial Bank, 119 Mich. 448 (78 N. W. 471).

Assignment No. 31 challenges the correctness of the following portion of the charge:

“While this is a proceeding to probate an alleged lost or suppressed will, as stated in the requests I have given you, at proponent’s request, it is more than that, gentlemen. It is a proceeding to probate an alleged lost will depending on the verbal testimony, character, honesty and memory of men and women to take the place of a written will and testament, visible before your eyes; and, before you wipe it out by verbal proof, you should be satisfied that truth and justice alone impel you to act, and that proponent’s proofs, upon every point necessary for him to establish, clearly and unquestionably preponderate in favor of each proposition I have charged you it is necessary for proponent to establish.”

This instruction was clearly erroneous under repeated decisions of this court. Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231); Ewing v. McIntyre, 141 Mich. 506 (104 N. W. 787); Walsh v. Taitt, 142 Mich. 127 (105 N. W. 544).

Counsel for contestants contend, however, that the error of this instruction was obviated by correct statements of the rule in earlier portions of the charge. We are unable to agree with this contention. The instruction complained of constituted the last paragraph but one in the charge, and was the final rule of law delivered to the jury by the court upon this subject. It immediately followed the following eloquent and impressive language:

“ Next to those inalienable rights to enjoy life, liberty, and the pursuit of happiness, for which our fathers fought, is that sacred right to have, hold, and enjoy the material fruits of the labor of the hand or brain, and as life’s short day declines, and the shadows deepen around one, and that mysterious darkness falls, and the hand is stretched forth to grasp the blessed hope and promise of the ages, and all material things are laid aside forever, the right to know that all earthly interests are settled and disposed according to the dictates of that mind and conscience whose only right it was to will the same is such a precious right that he who seeks to pervert it, and to that end is influenced by any consideration whatsoever, other than the very act of the testatrix, whether such act meets with his approval or not, is a robber of the living and a defrauder of the dead.”

In view of this solemn adjuration and the contrast between the written and the verbal proof, it cannot be said that the instruction could not have been prejudicial. It would be more reasonable to hold that the instruction that, before the jury would be justified in “wiping” out the written will “ visible before your eyes,” they should be satisfied “that proponent’s proofs, upon every point necessary for him to establish, clearly and unquestionably preponderate in favor of each proposition,” must have been prejudicial.

The judgment is reversed, and a new trial granted.

Ostrander, Hooker, Moore, and Me Alva y, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    NICHOLS v. BUELL.
    1. Limited Partnership Associations — De Facto Organization —Promoters—Fraud oe One Member — Failure to File Articles.
    Defendants attempted to form a limited partnership assooia- ^ tion, but failed to record the articles of association which were signed by them: they stated in the instrument signed by them that the stock was paid by trade-marks, processes, machinery, and property transferred to the company at a stated valuation: complainant was induced to become a stockholder by representations that the other stock had been paid for in the same manner as his own and that the concern owned valuable property and contracts: the representations were untrue and the value of the property was very greatly exaggerated. Held that the complainant was entitled to a rescission and a decree for the repayment of his subscription.
    2. Same.
    The parties to the attempted association were copartners, and liable for the damages resulting from the fraud of one of them.
    3. Same — Estoppel—De Facto Organization.
    No estoppel to deny the existence of a proper organization arises against a party so defrauded.
    Appeal from Branch; Yaple, J.
    Submitted February-25, 1909.
    (Docket No. 22.)
    Decided July 15, 1909.
    Bill by Morey A. Nichols against Darius D. Buell and others for the cancellation of an alleged certificate of stock, and the repayment of its purchase price. From a decree for copplainant, defendants appeal.
    Affirmed.

      Jonathan Palmer, Jr. (Flbridge F. Bacon and Campbell & Johnson, of counsel), for complainant.

      Frank B. Beynolds (John B. Shipman and Mark S. Andrews, of counsel), for defendants.
   Hooker, J.

Defendants associated in a common enterprise at the suggestion of Johnson, one of their number. The scheme was to form a partnership association, limited, for the manufacture and sale of yeast cakes. On June 6, 1902, they held a meeting, and executed alleged articles of association. These were never filed or recorded as required by law, and have been lost or suppressed, probably by Johnson, who was named as secretary, and with whom they remained after the meeting. Oral testimony of the contents was given by a lawyer who drew them. The capital stock was made $400,000, divided into shares of $100 each, $115,000 of which was said to be “paid in, and to be paid” as follows: i. e., all of the $115,000 was stated to be paid in, in personal property, except $5,250, which was to be paid in cash, when it should be called for. The personal property was set forth as follows:

Schedule A, heretofore referred to, and which is made a part of these articles, is as follows, to wit: Trademarks, processes and devices, chemical, mechanical and scientific, for the manufacture of pure food and dry yeast cakes and other cereals. Inventions, mechanical and scientific, of machinery and appliances and combinations of the same, for the manufacture of pure food and dry yeast cakes from cereals. Certain machinery, rollers, cookers, bakers, dryers, etc., now in the city of Detroit, Michigan, completed and in process of completion. A certain contract of employment for five years with an expert manufacturer of pure food and dry yeast cakes from cereals, all of the collective value of one hundred and nine thousand seven hundred and fifty dollars ($109,-750.00). The total paid-up capital is one hundred and fifteen thousand dollars ($115,000), the remáining two hundred and eighty-five thousand dollars ($285,000.00) of the capital stock of this association remains in the treasury to be disposed of from time to time, and to be applied to the purposes of and for the promotion of the interests of the association. The value hereby placed on the property placed in the schedule is the agreed and appraised value of such property collectively by all the members subscribing to the capital stock of this association, and the subscriptions of said parties to said capital stock signifies their approval of said value.”

The $115,000 of stock was divided between the defendants in lots of $10,000. George Oaks (not a party to this record for some unexplained reason) received $5,000.

The plan of these defendants was to obtain this stock at a cost of 5 per cent, par value, which was all they paid or contributed, and depend upon sales of treasury stock for a working capital, and they proceeded to make such sales forthwith. A glowing account of the new company and its prospects was published, and within a few days sales were made, complainant subscribing for 50 shares in writing as follows:

“Union City, Mich., June 10, 1902.
“I hereby subscribe for fifty (50) shares of $100 each of the capital stock of the ‘Peerless Yeast Company, Ltd.’ of Union City, Michigan, and agree to pay $25.00 per share for same to the treasurer of said company when called upon by the treasurer for such payments.
“M. A. Nichols.”

He paid $1,250 in cash therefor, and received a certificate as follows:

“Incorporated Under the Laws op the State op Michigan.
“No. 21. Shares 50.
“The Peerless Yeast Company, Limited.
“ Union City, Michigan.
“ Capital Stock, $400,000.
“This certifies that Morey A. Nichols is the owner of fifty shares of one hundred dollars each of the capital stock of the Peerless Yeast Company, Limited, fully paid and nonassessable transferable only on the books of the corporation by the holder hereof in person or by attorney upon surrender of this certificate properly indorsed.
“In witness whereof, the said corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the corporation at Union City, Mich., this 6th day of August, A. D. 1902.
“The Peerless Yeast Company, Ltd.,
“ Union City, Michigan. [Seal.] “D. D. Buell, President.
“Holmes W. Johnson, Secretary.
“Shares $100 each.”

Complainant filed the bill in this cause for a cancellation of this instrument, and to recover the amount paid by him, on discovering that articles were not filed, upon the ground that he was defrauded by the defendants in this transaction, alleging and producing testimony tending to prove that the defendants represented to him that they paid 25 per cent, of the par value of their stock “ the same as he did,” and that they were a partnership association limited; that they had each subscribed for stock in the identical form asked of him, and the subscriptions were exhibited to him by Johnson. His subscription was made June 10, 1902. The learned circuit judge sustained his contention and granted him the relief prayed, and the defendants (with the possible exception of Johnson, against whom the bill is taken as confessed) have appealed.

The proofs show that all of the defendants joined in the promotion and attempted organization of the company. Johnson, who professed to own the property mentioned in Schedule A, arranged with his codefendants for the floating of the project, and it was agreed that they should subscribe for their respective shares, that but 25 per cent, of the par value should be assessed, and that of this 20 per cent, of the par value should be credited upon such subscriptions as their respective shares of the property and rights included in Schedule A, which he was to furnish. There is testimony showing that Johnson led complainant to believe that the defendants had paid the same price for stock that he was asked, and he had no intimation that but 5 per cent, had been paid in cash. The property mentioned in Schedule A is shown to have been of very little, if any, value.

There was no machinery belonging to Johnson, no trade-marks or devices of any value. It is claimed that Johnson had a formula for making yeast cakes, but it was never communicated to anyone else, and there is reason to believe that all there was of this was in the mind of a person whom he proposed to employ for the concern, under an alleged contract with, such person which he claimed to have, but which never was, transferred to the defendants or said proposed association. Furthermore, no formula was mentioned in the articles, unless it is covered by the terms “ processes and devices ” for the manufacture, etc. Schedule A was a fiction by which to make it appear that certain stock was paid for by the transfer of personal property; and, if it were good between the parties to it, it was a fraud upon purchasers, who were led to buy stock through the misrepresentation that the original stockholders had paid for their stock at the same price charged them. There was ample evidence from which the learned circuit judge might infer that these defendants, knowing that they paid a nominal sum for their stock, expected that later purchasers of stock would be misled as to the value of the assets, which plainly were grossly exaggerated, if not known to all of them to be purely fictitious. See Wood v. Sloman, 150 Mich. 177 (114 N. W. 317).

At the time this subscription was made, these defendants were not a partnership association, limited; for, although it be conceded that they had executed articles of association, they had not been recorded, and the claim that they had then become a de facto partnership association, limited, has no substantial foundation at that time, if such claim could relieve défendants, in a case like this, in any case where the statute as to filing articles had not been complied with — a question we do not pass upon. See Elgin Nat. Watch Co. v. Loveland, 132 Fed. 41; Fredenburg v. M. E. Church, 37 Mich. 476, and note; Doyle v. Mizner, 42 Mich. 332-337 (3 N. W. 968).

In the original enterprise these defendants were copartners, and each was responsible for what was done in the furtherance of the original scheme. They were all liable for the damages resulting from the fraud in the furtherance of their common enterprise, the results of which they were to share in common.

It was contended on their behalf that complainant, having dealt with, defendants as a partnership association, limited, should be estopped from denying its existence as such, and therefore that his suit should have been planted against it as such, and that, if there is any liability at all, it is not against the defendants personally. This contention is practically covered by what has been said. At the time of his purchase there was no lawful partnership association, limited, and the rights which then accrued have not been lost. He accepted his certificate of stock, and retained it in the honest belief, not only that there was a limitation upon his liability as a partner, but in ignorance of the facts of its organization. As soon as ascertained, he took steps to protect himself from the consequences of being a copartner in the concern, and therefore liable for its past or prospective debts as a general copartner or otherwise, and to recover the damages sustained. We think equity has jurisdiction for both purposes. How far any existing creditors may be affected by this litigation we need not inquire, as they are not parties; but, as against these defendants, the complainant is entitled to have the certificate canceled, and to recover his damages. The other defendants in this case were undoubtedly imposed upon by Johnson, who led them into a losing venture, but that does not justify their building a company on air to the injury of others who, relying upon the known character and standing of those connected with and managing the enterprise, are induced to put in their money in ignorance of facts which, to say the least, the defendants participated in, with a view to profit at the expense of others.

The decree of the learned circuit judge is in all things affirmed, with costs.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Brooke, J. Blair, C. J. Hooker, J.

text:
    ATTORNEY GENERAL, ex rel. MAGUIRE, v. WAYNE CIRCUIT JUDGE.
    1. Municipal Corporations — Executive and Legislative Functions — Committees—Injunction—Disbursements.
    The common council of the city of Detroit has no power to pass a resolution directing the mayor to appoint a committee of fifty citizens for an investigation of the street railway situation and authorizing the city controller to pay any bills presented and audited by the mayor out of an appropriation for the purposes of the investigation; and action under the resolution may be enjoined by a taxpayer.
    2. Same.
    The common council of a municipality may conduct its investigating through a committee of outsiders or through the mayor, provided the investigation is made in its behalf, and subject to its control.
    S. Charter of Detroit — Auditing and Allowing Claims.
    A resolution directing the controller of the city of Detroit to pay bills of the investigating committee when audited by the mayor is void, because it is in conflict with mandatory provisions of the charter requiring accounts to be audited by the council.
    Mandamus by John E. Bird, attorney general, on relation of Matthew J. Maguire, to compel Alfred J. Murphy, circuit judge of Wayne county, to issue an injunction.
    Submitted April 6, 1909.
    (Calendar No. 23,313.)
    Reargued June 15, 1909.
    Writ granted July 15, 1909.

      Bishop & Sullivan, for relator.
    P. J. M. Hally, for respondent.
   Brooke, J.

On the 9th day of February, 1909, the common council of the city of Detroit passed the following resolution:

“Resolved, That the sum of five thousand dollars be and is hereby appropriated from the moneys in the contingent fund and placed at the disposal of his honor, the mayor, to investigate the street railway question of the city of Detroit; and the city controller be and he is hereby directed to pay any bills presented and approved by his honor, the mayor, out of said appropriation.”

On the 12th of February, 1909, the attorney general, on the relation of Matthew J. Maguire, a resident citizen and taxpayer of the city of Detroit, filed a bill of complaint in the circuit court of Wayne county for the purpose of securing an injunction against the common council of the city of Detroit “from authorizing the city controller to issue his warrant or any warrant upon the said city treasurer of the said city of Detroit for the payment of said sum of $5,000 or any part thereof, for the payment of any bill or expense of the said committee of 50 out of said contingent fund or any fund of the city of Detroit, or bill or expense incurred or to be incurred by the said mayor under said resolution of February 9, 1909, or any similar resolution theretofore or hereafter adopted by the said common council;” for an injunction against the mayor “from approving said resolution adopted by the common council of Detroit on February 9, 1909, and that he be temporarily and perpetually enjoined from approving any bill or expense under and by virtue of said resolution, and from expending any sum which may be paid to him under and by virtue of said resolution of February 9, 1909, in the payment of any bill or expense incurred and to be incurred by the said committee of 50, and in the event of any or all of said appropriation of $5,000 having been paid to him, the said mayor, that he be temporarily and perpetually enjoined from paying or expending said money so collected by him for any purpose whatever, and that he be ordered, adjudged, and decreed by this court, if any of said money has been paid to him, to account for and turn back into the treasury of the city of Detroit the same; ” against Frank E. Doremus, city controller, “from issuing his warrant or any warrants upon the city treasurer of the city of Detroit for the payment of said sum of $5,000, or any part thereof, as provided for in said resolution of February 9, 1909, for the liquidation of any bill or expense, presented and approved by the mayor of Detroit, under said resolution of February 9, 1909, out of said contingent fund or any fund of the city of Detroit, and from making and issuing any warrant upon the said treasurer for payment of any bill presented and approved, the purpose of which being to defray any bill or expense of the said committee of 50;” against Max C. Koch, city treasurer of the city of Detroit, “from paying out any money from the contingent fund or any other fund of said city upon any warrant or warrants executed by the city controller under and by virtue of the resolution adopted by the common council of the city of Detroit on February 9, 1909, hereinbefore set forth.”

The bill of complaint avers, among other things, that the mayor of the city of Detroit has assumed to create a so-called “committee of 50,” composed of private individuals unconnected with the administration of the city government and not authorized or created by the Constitution of the State or any law of the State, for the purpose of acting with the mayor in investigating the street railways of said city and their rights in and to the streets therein, with the view of advising the mayor and common council as to what action should be taken in reference thereto. The city by its answer admitted the passage of said resolution, and appointment of the committee of 50 by the mayor, and its purpose to use the fund appropriated by said resolution in defraying the expenses incurred by said committee in investigating the street car question in the city of Detroit. Further answering, it avers:

“ That the city of Detroit is a city covering many miles of territory with a population, to wit, 400,000 inhabitants. That in the year 1862 certain rights were granted in the streets in the city of Detroit to certain gentlemen who afterwards organized the Detroit City Railway Company. That in the year 1879 these rights were extended for a period of 30 years. That these grants by the city of Detroit were made under the laws of the State of Michigan. That on the 14th day of November, 1909, the period of extension granted in the year 1879 will have been completed. That for a number of years the street railway question has agitated the public mind, and has been the subject of discussion in political campaigns. That these defendants are informed and believe that the character of the population, the manner in which the city has been built, is such that street railway service is essential in order to accommodate the people from day to day. That it is necessary to take steps to continue the street car service. That the city of Detroit as a municipality is powerless to engage in this enterprise itself, and that it is incumbent upon the officers of the city of Detroit to make an investigation and ascertain, if possible, upon what terms and upon What conditions the city may continue to enjoy street railway facilities. And that the expenditure of money for this purpose is the expending of money for a public purpose.”

The answer denies that it was the purpose of the common council to deprive itself of the right to audit and allow the various items of expense according to the usual manner, but concedes that it is the purpose to defray the proper expenses of the committee of 50 in and to the investigation of the street car question. An order to show cause was issued by the circuit court for the county of Wayne, upon the return of which a preliminary injunction was denied. The case is here on an application for mandamus to compel the circuit judge to issue the injunction prayed for in the bill.

There being no final order or decree in this case, and the writ sought being a discretionary one, it might readily be determined that the relief prayed should be denied without a consideration of the merits. See Kelsey v. Wayne Circuit Judge, 120 Mich. 457 (79 N. W. 694); George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511 (99 N. W. 748). But inasmuch as the matter presents a question of unusual importance, and as the denial of the temporary writ is in effect the denial of all the relief sought in the bill, we will consider the case as if it were here on appeal from a final decree.

Three objections to the action of the city are urged by the complainant:

(1) That the resolution was too vague.
(2) That it was unlawful to expend the money for this purpose.
(3) The resolution seeks to appropriate moneys out of the contingent fund to defray expenses which are not contingent.

We do not think that the first objection urged by the petitioner is tenable. It is a well-known fact, of which the court may take judicial cognizance, that the investigation of the street railway question involves a vast amount of inquiry in many directions. The physical value of the property of the railway company now upon the streets of the defendant city where franchises are soon to expire, the necessity to provide for the present and future demands of the city by additional trackage, the proper and remunerative rate of fare to be charged for the service to be rendered, the proper control of such service and' the making of it adequate, a just and equitable system and rate of taxation, together with many other matters which are clearly of the highest importance to the city of Detroit, but could scarcely be enumerated, all of which, however, are clearly within the expression “to investigate the railway question.” It maybe supposed that the common council used the general language for the purpose of allowing such freedom as the character of the subject and the necessities of the situation might thereafter properly develop.

As to the other point raised, we conclude that there was no such knowledge on the part of the city at the time the budget of 1908 was passed upon by the common council and the board of estimates as to make it improper or unlawful for this appropriation to be made from the contingent fund. It is, as stated by the complainant, true that the city of Detroit knew in 1908 that certain of the franchises of the Detroit United Railway would expire in November, 1909; but the exact manner in which it might thereafter be determined wise to enter upon an investigation of the rights and duties of the city and the railway company as to each other could not have been known. The contingent fund, as its name implies, is one designed for the purpose of giving elasticity to the finances of a municipality and to provide for emergencies such as may arise, a fair example of which is afforded by the case at bar.

The most important question, however, and the one which has given us most trouble, is that which arises from the placing of the money in the hands of the mayor for the designated purpose, but concededly and notoriously to be used by him in the defraying of the expenses incurred by a body of men sustaining no official relation to the city of Detroit, and being responsible to no one for the proper and honest discharge of the obligation it has assumed. A consideration of these facts at first seems to present insuperable obstacles to the carrying out of the project as designated by the common council; but upon further reflection it would seem that the action may be sustained upon broad grounds of public policy. The history of the case discloses the fact that the common council originally passed a resolution placing the fund in question at the disposal of the committee itself, but, upon advice of the corporation counsel, rescinded that resolution and passed the one here in question. There is no doubt that the common council by a committee of its own body could employ and properly compensate experts for the gathering and placing before the council all information absolutely necessary to enable it to intelligently execute the trust reposed in it by the municipality, with reference to this most important question. By its action in the present case we are disposed to the conclusion that it has said in effect that it desires for its guidance information to be gathered by experts selected by and under the direction of the committee. In other words, it has merely entered into a contract with those experts upon the advice and recommendation of a committee of gentlemen in whose judgment it has confidence.

The subject of the right of a municipality to deal with matters of purely local moment in the manner dictated by the judgment of its properly constituted authorities has been before this court on more than one occasion. In the case of Attorney General v. City of Detroit, 26 Mich. 264, it is said:

“ It is the unwarranted use of the money that justifies the interference, and the pretense upon which it was raised is not important to the question of jurisdiction. * * * It should appear that the public has a substantial interest in the question; the right involved should be a public right, or at least not a private right merely; the wrong done or attempted, if it consist solely in a misuse or misappropriation of funds, should be either one involving questions of public policy, or, where that is not the case, the amount involved should be something more than merely nominal.”

In Torrent v. Common Council of Muskegon, 47 Mich. 115 (10 N. W. 132, 41 Am. Rep. 715), it is said:

“ But in saying this we do not assume that it belongs to this court, or any other, to dictate to the city how it shall spend its money. The council must use its own discretion where it will save and where it will spend; and the case must be a very clear one, and the subterfuge very plain, before that discretion can be regarded as having been exceeded so as to show an excess of power under a pretense of keeping within it. It is not the business of courts to act as city regulators, and, unless the authority of the representatives of the citizens has been exceeded, their action cannot be interfered with merely because it may not seem to other persons to be as wise as it might be.”

In City of Port Huron v. McCall, 46 Mich. 565 (10 N. W. 23), the court, through Mr. Justice Cooley, spoke as follows:

“There is a principle of law that municipal powers are ■ to be strictly interpreted, and it is a just and wise rule. Municipalities are to take nothing from the general sovereignty except what is expressly granted; but when a power is conferred which in its exercise concerns only the municipality, and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view to narrowing its construction. If the parties concerned have adopted a particular construction not manifestly erroneous, and which wrongs no one, and the State is in no manner concerned, the construction ought to stand. That is good sense, and it is the application of correct principles in municipal affairs.”

Upon a review of the whole case, considering the magnitude and importance of the issues involved as affecting the rights of the city of Detroit and the future of its citizens, we are of opinion that the case presented is not such an one as would compel this court to say that in the denial of the injunction sought by the complainant the learned circuit judge abused a discretion with which he is clothed.

The writ should be denied.

Hooker and Moore, JJ., concurred with Brooke, J.

Blair, C. J.

I am unable to concur in the result reached by Mr. Justice Brooke in this matter. The solution of the street railway question for the city of Detroit is unquestionably a legislative problem for the determination of the common council. It only concerns the mayor in his official capacity, as all questions of municipal government concern the chief executive, charged with the duty of informing himself as to them and recommending action thereon from time to time. The investigations which the mayor makes are for the purpose of enabling him to properly discharge the duties of his office and are compensated by the salary provided for the office. It is not contemplated by the charter of Detroit, in my opinion, that the mayor shall make extensive investigations requiring the examination of witnesses and the expenditure of- large sums of money for the purpose of equipping himself to recommend action to the common council, and the powers essential to make the investigation effective are not given him therein. Such investigations fall within the domain of legislative action, and the local legislature is given the necessary powers to make them effective. The charter not conferring this power upon the mayor, but, by implication, negativing it, the common council cannot, in my opinion, confer it. Cooley on Constitutional Limitations (4th Ed.), pp. 248-250; 28 Cyc. pp. 463, 464; Union Depot & Railroad Co. v. Smith, 16 Colo. 361 (27 Pac. 329); 1 Dillon on Municipal Corporations (4th Ed.), § 96.

I have no doubt that the common council may choose its own method of collecting information to guide its legislative discretion. Flint, etc., Plank-Road Co. v. Woodhull, 25 Mich. 99 (12 Am. Rep. 233). It may, if it chooses, conduct its investigation through a committee of outsiders or through the mayor, providing the investigation is made in its behalf, in accordance with its directions, and subject to its control, and the results reported to it for its action. State Tax-Law Cases, 54 Mich. 350 (20 N. W. 493).

The resolution under discussion was not for the purpose of aiding the local legislature to perform its duty, but to assist the chief executive to perform his duty. The resolution directs the city controller “ to pay any bills presented and approved by his honor, the mayor, out of said appropriation.” This provision is in contravention of mandatory provisions of the city charter and is therefore illegal and void. McCormick v. Bay City, 23 Mich. 457. The fact, as alleged, that the mayor intends to pursue the charter course for the allowance of his bills, cannot validate this invalid resolution. The resolution must speak for itself unaffected by undisclosed intentions.

The writ will be granted.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred with Blair, O. J.

Hooker, J.

.1 concur with the Chief Justice in the opinion that the council has power to investigate existing conditions and necessities, as regards the street railway of Detroit, and to obtain and pay for professional and expert assistance therein; and I am not prepared to say that it may not call to its aid the business judgment of its citizens, for whose use it may procure, or cause to be procured, such assistance, and may pay the necessary expenses of such persons. I also think it may provide for the payment of the expenses of such persons, whose selection may be made by the council itself, a committee thereof, or confided to the mayor, through whom it may make its investigation. I find nothing in the resolution indicating that the information sought to be acquired was not for the benefit of the council, as well as the mayor, and I am not satisfied that the council has not power to provide for the legitimate expense of the office of mayor, especially in the performance of duties imposed on him by the council. It appears to be conceded by counsel that it could not confer upon the controller the authority to pay money upon the certificate of the mayor alone, and the learned circuit judge has found that there is no cause for apprehension that he will. I therefore concur in the denial of the writ.


author: Montgomery, J.

text:
    BERNSTEIN v. THAYER.
    1. Appeal and Error — Contents of Record — Return prom Justice’s to Circuit Court.
    A paper purporting to amend a certified justice’s return on certiorari to the circuit court, contradictory of the record , and uncertified by the justice, cannot be considered on error.
    2. Justices op the Peace — Adjournments—Cause—Waiver op Objection.
    An adjournment of a justice of the peace, made without a showing of cause, against the objection of the defendant, before . pleading, did not deprive the justice of jurisdiction when security for costs was asked after the adjournment was arranged.
    3. Same.
    Failure of the docket to show whether the adjourned hour was in the morning or afternoon does not invalidate the judgment, where no reasonable uncertainty as to the intention could be entertained.
    Error to Kalkaska; Chittenden, J.
    Submitted April 13, 1909.
    (Docket No. 39.)
    Decided July 15, 1909.
    Assumpsit in justice’s court by Babetta Bernstein against Prank Thayer for the amount of certain time orders. Plaintiff took judgment by default, and defendant appealed to the circuit court by writ of certiorari. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed, and judgment entered for plaintiff.

      JEJ. F. Sawyer, for appellant.

      Withey & Withey, for appellee.
   Montgomery, J.

Plaintiff brought suit in justice’s court before John R. Hudson, justice of the peace, and obtained a judgment in the sum of I21Í.50 and costs. The defendant thereupon sued out a writ of certiorari to review the action of the justice, alleging numerous errors. A return was made to this writ, and, it being deemed unsatisfactory to counsel, a further return was ordered by the circuit judge, requiring him to make a complete transcript of the docket and of the whole thereof, and of all the entries therein made relative to this cause, with a certificate as to the truth or falsity of such entry. Such amended return was made on the 11th of April, 1908. Just when the case was noticed for hearing does not appear ; but, from statements in the briefs of counsel of both sides, the inference is that it was noticed for hearing for the September term, 1908. There appears in the record a paper entitled with the names of the parties to the case, stating that there was a mistake in the amended return, and assuming to state wherein the docket as returned and certified to by the justice in his amended return is inaccurate, and attempting an explanation of how the inaccuracy occurred. This is dated on the 21st day of September. On the 2d of November, 1908, judgment was entered reversing the judgment of the justice. The plaintiff thereupon removed the case to this court by writ of error.

The question is presented whether we can consider this paper as a modification of the return made upon the order of the court. It should be stated that the paper is not merely supplemental, but is contradictory of the return made by the justice in response to the order of the court. We think this must be treated as a mere fugitive paper, and not entitled to outweigh the official return made by direction of the court. Upon the application for filing such an amended return, the attorney for the plaintiff in certiorari was entitled to notice. It would have been within the power of the circuit judge to have required some evidence as to the truth of the statements contained in this paper, before permitting it to be filed as an amendment to the return. A similar question was raised in Powers v. Russell, 26 Mich. 179, where a paper signed by the justice, not purporting to be a part of the return to the writ, and not dated, and not made in obedience to any order for further return, and being inconsistent and contradictory of the return itself, was rejected as no part of the record. This ruling was followed in Hewitt v. Oakland Probate Judge, 67 Mich. 1 (34 N. W. 248). We shall treat the original return, as modified by the return of the docket under the order of the circuit judge, as constituting the record in the case.

The affidavit alleges three grounds of objection:

First. Because the adjournment of the cause by the justice was against the objection of the defendant and without cause shown.
Second. Because said adjournment without pleading and without issue joined or any right reserved to plead later deprived the justice of jurisdiction.
Third. Because no hour on the 1st of August was named to which said cause was adjourned, and, no time other than the day to which said cause was adjourned being stated or shown in said proceedings, the justice had no jurisdiction to proceed further.

As to the first objection, the return shows that plaintiff called for an adjournment, and defendant objected to the same, but stated that, if an adjournment was to be had, August 1st would be a satisfactory date. The court announced such adjournment to August 1st, and the defendant thereupon demanded security for costs, and plaintiff agreed to furnish security for costs on or before the 1st of August. Security for costs was asked for after the adjournment was agreed upon, as shown by the return. We think any irregularity in the adjournment for want . of cause or as having been made before the pleadings were filed was waived by this action taken by the defendant in the cause after, it is alleged, jurisdiction was lost.

The remaining question is whether the justice lost jurisdiction by failing to state the time of the adjournment. The amended return shows that the adjournment was had until the 1st day of August, 1907, at 2 o’clock at the town hall, in the village of Boardman. The criticism of the docket in this regard is that it fails to state whether it was 2 o’clock in the afternoon or 2 o’clock in the forenoon. We think this objection is not tenable. An adjournment to 2 o’clock is an adjournment equivalent to 2 o’clock p. m. of that day. It is inconceivable that any one could suppose it to mean 2 a. m., as that would be so far from business hours as to forbid such an assumption. Such an adjournment would be per se void as unreasonable, and would lose "the court jurisdiction, if the hour had been named 2 o’clock a. m. Had the hour been such as to leave any uncertainty as to whether the forenoon or afternoon was meant, it might have been essential to designate it; but this is not such a case.

We think the judgment vacating the justice’s judgment should be reversed, and that of the justice affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    SPEER v. NALDRETT.
    Contracts — Issues op Fact.
    Under conflicting evidence concerning the waiver of certain provisions in a contract for the sale of timber, the questions involved are held to have been properly submitted to the jury.
    Error to Gratiot; Searl, J.
    Submitted April 8, 1909.
    (Docket No. 21.)
    Decided July 15, 1909.
    Assumpsit by James H. Speer against William T. • Naldrett on a logging contract. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      John T. Mathews, for appellant.

      William A. Bahlke, for appellee.
   Moore, J.

The parties to this litigation made a contract reading as follows:

“ This agreement made this 14 day of October, 1898, between J. H. Speer of Clarence, and W. T. Naldrett of Ithaca, that first party agrees to deliver on cars at Clarence, all the Hemlock logs he has on sec. 35, in town of Reading, Clare Co., at $3.50 per M, the logs to be cut 12 to 24 ft. long, as second party may direct from time to time, and all logs must be of good quality, to be well loaded by first party and scaled one-half with Scribner rule and one-half with Doyle rule, * * * on skids in woods, the second party to pay ($1.00) when scaled & $1.50 more when to the R. R. track, and the balance when loaded or within 60 days & to give a good fair scale, and if parties cannot agree on scale they are to have a disinterested party to scale; that second party is to take 200 M feet as fast as got out — the balance to be loaded as the second party may direct during the month of April and May 1899. Except what first party may want to peel, and they must all be loaded on or before the 15th of June 1899, tobe loaded in coal cars if second party wishes.
“ J. H. Speer.
“ W. T. Naldrett.”

Mr. Speer cut and delivered all the logs. They were all scaled by the Doyle scale, and if that scale, under all the proofs shown by the record, is to control, plaintiff has been paid in full. It is his claim, however, that half of them were to be scaled according to the Scribner rule, and that he has never done anything to waive his right to have them so scaled.

This case originated injustice’s court. It was appealed to the circuit court. Plaintiff recovered a judgment for $124.27. The case is brought here by writ of error. We quote from the brief of counsel for appellant:

“The main contentions of the defendant upon the trial were two, viz.:
“(1) That as a matter of law the plaintiff by his statements and conduct waived his right to have any other or different scale of logs in question than was accorded to him while the logs were in the woods on the skids, and is estopped from claiming any other scale.
“(2) That the differences between the parties were finally settled, compromised, and closed by the payment admitted to have been made January 8, 1900, which was by the giving of a check, upon which was written, ‘ Payment in full for logs.’
“These questions are raised upon the record in a variety of ways; by exceptions and assignments of error to rulings upon motions to direct, requests to charge, and in the charge as given, which will be discussed in their order, under a classification of the assignments.
“Beyond these two questions there are many assignments of error upon the rulings of the court as to the admissibility of evidence, and motions to strike out evidence, which will also be discussed in their order.”

Counsel then proceed to discuss at length the 53 assignments of error under 9 heads. The briefs and the 330 pages of printed record have been examined with care. Nothing occurred after the written contract was made about which the parties are agreed. The testimony in relation to the controlling facts is in direct conflict. It would profit no one to take up in detail the questions raised by counsel and discuss them. The circuit judge directed the conduct of the trial with great care. He sub- . mitted the conflicting claims of the parties fully and fairly to the jury. We find no reversible error in the record.

Judgment is affirmed.

Blair, C. J.,and Ostrander, McAlvav, and Brooke, JJ., concurred.


author: Moore; J.

text:
    MAXWELL v. ELK CEMENT & LIME CO.
    Master and Servant — Fellow-Servants—Negligence.
    An assurance by the superintendent to an employé of the defendant that he had stopped the machinery and it would remain so while plaintiff climbed on it to put out a fire, was an act of a fellow-servant, and the defendant is not liable for injuries received by reason of the unexpected starting of the machinery, in the absence of proof as to the cause.
    Error to Emmet; Shepherd, J.
    Submitted April 26, 1909.
    (Docket No. 97.)
    Decided July 15, 1909.
    Case by Asa G. Maxwell against the Elk Cement & Lime Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      W. 8. Mesick and A. B. Dougherty, for appellant.
    Bundy, Travis & Merrick {Fitch B. Williams, of counsel), for appellee.
   Moore; J.

The plaintiff was injured while in the employ of the Elk Rapids Portland Cement Company. The defendant is the successor to that company, and it is conceded that, if the former company was liable to the plaintiff, he is entitled to a judgment against defendant. The plaintiff was hired by Mr. Bunce, the general superintendent of the mill. He worked at various things about the plant, blacksmithing, putting up buildings, making repairs, millwork, and such things as he was directed to do either by Mr. Bunce or by Mr. Rankin.

It is the claim of plaintiff that he was told by Mr. Bunce that Mr. Rankin was master mechanic, and to obey his orders. His account of the accident is as follows:

“ On the 30th day of December, 1902, in the afternoon of that day, I went into the annex north of the mill. At the beginning we had done a little work there just before dinner, something, I don’t remember just what now. But I had some tools there that I had left there, and I went back in the afternoon after them, and I saw this friction clutch. It had been working a little too tight, and it 5 het ’ and was burning. I could not say whether it was blazing or not at that time. It was smoking at least, and it had to be put out. And he instructed me to get a pail of water. At that time I think the water was all shut off around the plant. It was in the winter time, and the pipes had burst and everything, but I knew where there was a pail, and I went out and got that. There was a ladder standing out there from the concrete pier. It would be hard for me to explain it to you without a drawing or something. I walked up on this ladder until I got up nearly to the top of the pier, and I saw that I couldn’t do anything in that position with the machinery running, and I stopped there, and when Mr. Rankin came back — • He had stepped out and was gone a minute or so, and he came back and asked me why I did not get up and put the fire out.
C‘Q. He had first told you to put out the fire ?
“A. He told me to go up and put out the fire — get a pail of water and put out the fire. But I could not reach the fire from the floor. It was too high up. It ran over my head, and I could not stand on the floor and take the pail of water and get the water on the burning parts. As I only had one pail to work with, my idea was to make the water go as far as I could. It would be troublesome to get another pail of water at that time. Mr. Rankin asked me while I stood in that position on the ladder there why I did not get up and put out the fire. And I told him that I could not do anything with the machinery running. He stood there and looked at me for a minute. I told him that if he would stop the engine I would put it out in a minute. And he disappeared and went in the direction of the engine. The machinery stopped shortly afterwards, but I did not step over until he came back into the door of the annex, and then he asked me why I was not putting out the fire. And then I told him that I wanted to know that the machinery was going to stand still. He said: ‘ She’s all right. She will lay still now.’ At that I stepped one foot on the concrete pier and the other on the shaft, and began pouring water onto the clutch to put out what I could reach. And even from that position I could not reach it all. Mr. Rankin at that time was standing right in front of me. I didn’t see anyone else. I didn’t notice anyone. After I had done what I could I reached out the pail for him, and he was just in the act of taking it when the shaft started, and it threw me into gear, and I was caught and my arm was crushed to pieces.”

No other eyewitness to the accident was sworn. It was shown that the shaft could be stopped either by stopping the engine or by throwing a clutch, the latter method being very easy and very simple. Neither the engine nor the clutch was in the room where the accident happened. It is very clear the shaft was not started by any act of Mr. Rankin, for plaintiff testified that Mr. Rankin was standing just in front of him when the shaft started. There is no evidence in the record as to what started the shaft to revolving after it was stopped. No testimony was offered on the part of defendant. The judge directed a verdict in its favor.

It is the claim of the plaintiff that error was committed in not admitting certain testimony. We do not think these assignments of error are well taken. The important question is whether the case should have been submitted to the jury. It is the claim of plaintiff that it should have been, because he followed the direction of Mr. Rankin, who was the alter ego of defendant. A comparison of the record in this case with that of Guest v. Illuminating Co., 150 Mich. 438 (114 N. W. 226), will make it difficult to distinguish them. See, also, Amoe v. Engineering Works, 151 Mich. 212 (114 N. W. 1010); Corey v. Iron Co., 151 Mich. 558 (115 N. W. 737).

Judgment is affirmed.

Montgomery, Ostrander, Hooker, and Brooke, JJ., concurred.


text:
    HUNTER v. TOWNSHIP OF DWIGHT.
    1. Practice — Supreme Court — Briefs—Points Relied on.
    The brief of an appellant should conform to Supreme Court Rule 40, in stating the errors on which the party relies,
    2. Highways and Bridges — Municipal Corporations — Joint Liability.
    A township which undertakes to keep the bridge in repair, on its line between that and another township, in pursuance of an attempted agreement between the adjoining townships to maintain specified divisions of the highway, is liable for negligence in keeping the bridge repaired. 2 Comp. Laws, §§ 4047, 4067.
    3. Negligence — Notice of Defective Condition.
    Evidence that officers of a township, including the highway commissioner, had been notified of the defective condition of the bridge, and that the condition existed several months, tends to show actual and constructive notice.
    4. Pleading — Negligence—Evidence—Variance.
    A declaration which fully alleges the dangerous condition of the bridge, and the cause of injury, and states that the plaintiff’s horse became frightened, sprang forward and the wagon was suddenly checked because of the defective planks, is sufficiently sustained by proof of the dangerous condition and of the fact that the horse stepped into the holes caused by certain loose plank, and suddenly checked the progress of the wagon, throwing plaintiff forward and injuring him.
    5. Same — Variance.
    An instruction that the plaintiff must beheld in his proofs to something approximating the condition stated in the declaration is not improper when read in connection with following parts of the charge, stating that he must prove his theory by a preponderance of the evidence, and any radical variance would preclude a recovery.
    Error to Huron; Beach, J.
    Submitted April 26, 1909.
    (Docket No. 96.)
    Decided July 15, 1909.
    Case by William H. Hunter against the township of Dwight for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      James H. Hall (Edward Cahill, of counsel), for appellant.

      George M. Clark (Wilbur J. Beach, of counsel), for appellee.
   Hooker, J.

The plaintiff recovered a verdict for $1,000 against the defendant township for injuries sustained upon a bridge, and defendant has appealed.

The appellant’s brief does not conform to the requirement of Supreme Court Rule 40 in the matter of stating the errors relied on. See Ferguson v. Wilson, 122 Mich. 98 (80 N. W. 1006, 80 Am. St. Rep. 543); Carmer v. Hubbard, 123 Mich. 336 (82 N. W. 64, 48 L. R. A. 583); Jones v. Cody, 132 Mich. 14 (92 N. W. 495, 62 L. R. A. 160); People v. Cole, 139 Mich. 317 (102 N. W. 856), and cases cited; People v. Peck, 139 Mich. 680 (103 N. W. 178); Monger v. New Era Ass’n, 145 Mich. 684 (108 N. W. 1111); Eberts v. Railway, 151 Mich. 264 (115 N. W. 43); Haden v. Closser, 153 Mich. 182 (116 N. W. 1001). As we have often said, such omissions are productive of much inconvenience to the court and are hazardous to the interest of appellants.

The plaintiff was a mail carrier, and the bridge in question was upon a highway upon the township line between the townships of Dwight and Huron. The action was brought against the defendant upon the theory that it was under obligation to, and did undertake to, keep the way in repair, and was liable for neglecting to do so. The defendant denied such duty and liability, and this raises the first question discussed.

The defect in the bridge, as alleged in the declaration, was that:

“On, to wit, the22d day of May, A. D. 1905, and for a long space of time prior to said date, carelessly and negligently caused said bridge and allowed said bridge to be and to remain in a condition out of repair and in a condition not reasonably safe and fit for public travel, in this, the top of said bridge, before the time last above mentioned, having been made of boards or planks supported by stringers of wood, the said defendant, at the time of the committing of the grievance, herein mentioned, and for a long space of time prior to said date, carelessly and negligently permitted and allowed a part or all of the planks on said bridge to become and be loose from the stringers, and carelessly and negligently allowed a part of the planks on said bridge to become and be broken and displaced so that said plank so broken and displaced was not properly supported by the stringers of said bridge, leaving the loose ends of said planks so broken and displaced not supported by the stringers of said bridge and not fastened to the stringers of said bridge, carelessly and negligently allowed a part of the planks on said bridge to be loose and unsupported so that in public travel when subjected to the weight of horses, one end of said planks would go down and the other end fly up, carelessly and negligently allowed holes or openings to be and remain unprotected directly in the traveled part of said bridge.”

A second count states that:

“On account of the loose and broken plank and the dangerous condition of said bridge, the horse in attempting to cross over said bridge became frightened and sprang violently forward, and then and there, and because of the entanglement and obstacles to free passage over said bridge, constituted by the loose, broken, and projecting condition of said plank, plaintiff’s wagon was suddenly checked, and plaintiff thereby pitched, jerked, or thrown forward in his mail wagon with great violence.”

The plaintiff testified to the condition of the bridge at the time of the accident (May 22, 1905) that it was the same as in September and October, 1904, and that he informed the officials of the township that it was dangerous in September, 1904, and it is contended in plaintiff’s behalf that there was testimony tending to show actual and constructive notice. This is the second question raised.

Appellant’s counsel contend that the testimony fails to show that the injury was due to the negligence alleged, and that the trial judge should have directed a verdict for the defendant. They also assign error upon the following language of the charge:

“Now the plaintiff has charged in his declaration certain acts of negligence and given a description of the manner in which the bridge was defective and the manner in which he claims that it caused his injury. He must be held in his proofs to something approximating the condition which he states in his declaration.”

This should be read in connection with what followed it in the charge:

“As I understand the declaration, he alleges that there was a broken plank and a hole in the bridge, and that the bridge, the planks of the bridge, and the sleepers were in that condition that when a vehicle and horse passed over them they would sink down. The plaintiff alleges that from this condition his horse was caught, and plunged, tipped up the plank, and first his front leg and then his hind leg went into the hole, and that in the plunging and the violence of the horse’s actions in those conditions, andin his attempt to save himself and control him, he was thrown in the manner in which he described in his testimony, and that as a result he discovered immediately after that he was ruptured. Now I have said to you that the plaintiff must be held, if he is to recover, to produce to you a preponderance of the testimony sustaining that theory of the manner in which he was injured. Any radical departure from that theory would not entitle him to recover because the township would have no notice of any other claim as to the manner in which the injury occurred.”

A motion for new trial was denied, and counsel assign error upon the order.

Defendant’s duty to keep bridge in repair. As already stated, the bridge in question was upon a line of road between two townships which was in existence in 1879. At that time the law provided:

“Upon laying out, altering or discontinuing a highway on the line between adjoining townships, or upon determining what part of such highway shall be made and repaired by each township, the commissioners of such adjoining townships shall act jointly, and application may be made to the commissioners of either township, who shall notify the commissioners of the adjoining township of the time and place of meeting; and said commissioners of adjoining townships shall proceed as before provided and their return shall be filed in the office of the township clerk of each township, and each township shall have all the rights and be subject to all the liabilities, in relation to the part of such highway to be made and required by such township, as if the same was located wholly in such township.” Act No. 163, Laws 1861, § 4.

The clerk of the defendant township of Dwight produced a record from his office containing the following:

“ March 25, 1879. We the undersigned commissioners of the township of Dwight, and the township of Huron, county of Huron, State of Michigan, do hereby divide the town line into half-mile beats commencing at the north end of the township line between Dwight and Huron running south six miles, which is the extent of said road, Dwight taking the first half-mile commencing at the northeast corner of section 1 running southward, Huron thS next half mile, and thence each alternate half mile afterwards.
“Thomas Sullivan,
“ Commissioner of Highways.”

The brief of plaintiff states that this writing conformed to an oral agreement made at the time between the commissioners of the townships of Huron and Dwight, and that under such arrangement defendant township took charge of and maintained its portion, including the bridge. The brief omits any reference to the record, and we take the opportunity of saying that such omissions are productive of much annoyance and trouble to the court, and to request the exercise of greater care by counsel in this particular.

Shark v. Township of Evergreen, 67 Mich. 443 ( 35 N. W. 67), is a similar case to this. There a State road upon a town line was divided by commissioners by agreement, and each township afterwards cared for its allotted share for more than 20 years, although the agreement was never recorded. It was held that the road was within the statutes following:

“Whenever a line road shall have been laid out and established pursuant to the two last preceding sections, the officers or authority having jurisdiction in the premises shall forthwith jointly determine as to the time when the same shall be opened and improved, and shall at the same time determine and allot what portion shall be opened, improved and maintained by either of such townships or municipalities; and such township or municipality shall have all the rights, and be subject to all the liabilities, in relation to the part of such road so allotted, as if the same was located wholly in such township or municipality, and the damages which may be assessed in any case, together with the costs and expenses of the proceedings, shall be apportioned by the joint action of such authorities to, and paid by, the townships or municipal corporations on the line between which said line road may be located, in proportion to the benefit to be derived therefrom by such townships or municipal corporations.” 1 How. Stat. § 1307.
“All State roads, which are now or may hereafter be laid out in this State, shall be under the care of the commissioners of highways of the several townships, through which the same shall pass, and subject to be by them opened and kept in repair in the same manner as township roads, but such State roads shall be altered or discontinued only by the boards of supervisors of the counties in which they may be situated.” 1 How. Stat. § 1321.
“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, cross-walks, and culverts, on the same, in good repair, and in a condition reasonably safe and fit for travel, by the township, village, city or corporation, whose corporate authority extends over such public highway, street, bridge, cross-walk, or culvert, and whose duty it is to keep the same in good repair, such township, village, or city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.” 1 How. Stat. § 1442.

The only substantial difference between that case and this is the requirement that such agreement shall be recorded.

Whether this agreement was in duplicate, each township recording a copy signed only by its own commissioner, was not shown; but such an instrument, signed only by its own commission, was recorded in Dwight township, and ■ it afterwards took charge of its part of the way. We are of the opinion that it should be held liable for derelictions of duty in regard to repairs. Sharp v. Evergreen, supra; Brophy v. Schindler, 126 Mich. 350 (85 N. W. 1114); Bigelow v. Brooks, 119 Mich. 216 (77 N. W. 810); Delta Lumber Co. v. Board of Auditors, 71 Mich. 572 (40 N. W. 1); Wrought-Iron Bridge Co. v. Township of Jasper, 68 Mich. 441 (36 N. W. 213.)

The townships not only had the right, but it was their duty (through their commissioners), to divide the road. They did this by agreement and proceeded to carry out its terms. Dwight has maintained this bridge ever since, and now seeks to take advantage of its own failure to properly make record evidence of the contract. If it be said that the contract was not binding, because not made, it does not help defendant, for it was then jointly liable with Huron. Delta Lumber Co. v. Board of Auditors, supra; Bigelow v. Brooks, supra.

Notice. We are of the opinion that there was evidence of notice sufficient to require submission to the jury. There was certainly constructive notice that the planking was in bad condition.

Variance. The negligence charged in this declaration is, in substance, that defendant maintained a bridge which, by reason of the settling of its foundations, caused some of the stringers to drop down from two to six inches, so that the loose plank, of which the floor of the bridge was made, would teeter and rattle when a horse or vehicle went over them, and that there was a hole or holes in the traveled track upon said bridge, and broken and displaced plank in the floor of said bridge. The cause of the injury appears to be ( as set up in the first count) that, on account of the loose and broken plank and dangerous condition of said bridge (as hereinbefore described, we suppose), the horse—

“ Became frightened and sprang suddenly forward with great violence, and because of his springing suddenly forward as aforesaid, and before plaintiff could regain control of said horse, and because of the loose and broken condition of said plank and bridge, the plaintiff’s wagon was suddenly checked, and the plaintiff then and there was' jerked, pitched, or thrown forward ” and injured.

The proof failed to show that plaintiff’s horse was frightened and sprang forward; but it did show that his feet went through the bridge floor by reason of a plank breaking or tipping when he stepped upon it, and it was possible to find that the horse got both fore and back feet through, that he fell down, and that in consequence the buggy was checked, which would not have been the effect of a spring forward. That would not have cheeked the wagon and would have thrown plaintiff backward instead of forward. The important allegation is that the buggy was suddenly checked, throwing plaintiff forward. The declaration does not fully explain how this was done; but it does say that it was due to the broken and loose plank and holes. We are of the opinion that this declaration might well have been more specific in the description of the accident, but think it alleges in substance the nature and the cause of the accident. The fact that the proof does not clearly show that the horse first became frightened and sprang forward is not fatal; there being testimony that the wagon was suddenly checked, which of itself necessarily implies some momentum, and an obstacle to its progress. Perhaps fright is inferable from the following: Plaintiff testified that, as the horse went on the bridge, he got a tight hold upon the lines, that the horse seemed to watch a hole in the bridge, that when she stepped on the plank opposite the hole, her feet went down by reason of its giving way, and in another place plaintiff stated that the plank turned upon edge and the horse’s feet went through, her head down to the plank, that she plunged and fell, and that occasioned him to go forward against the cover of the rig. The horse rolled over and got up.

It seems clear that the declaration fairly apprised defendant that plaintiff was relying upon an injury arising from the fright of the horse arising from the existence of holes and loose plank. The proof conclusively showed that the horse’s feet went through the plank, causing it to fall and plunge, thus causing the injury. The court charged:

“Now the plaintiff has charged in his declaration certain acts of negligence and given a description of the manner in which the bridge was defective, and the manner in which he claims that it caused his injury. He must be held in his proofs to something approximating the condition which he states in his declaration. As I understand the declaration, he alleges that there was a broken plank and a hole in the bridge, and that the bridge, the planks of the bridge, and the sleepers were in that condition that when a vehicle and horse passed over them they would sink down. The plaintiff alleges that from this condition his horse was caught and plunged, tipped up the plank, and first his front leg and then his hind leg went into the hole, and that in the plunging and the violence of the horse’s actions in those conditions, §,nd in his attempt to save himself and control him, he was thrown in the manner which he describes in his testimony, and that as a result he discovered immediately after that he was ruptured. Now, as I have said to you, that the plaintiff must be held, if he is to recover, to produce to you a preponderance of the testimony sustaining that theory of the manner in which he was injured. Any radical departure from that theory would not entitle him to recover because the township would have no notice of any other claim as to the manner in which the injury occurred.”

We think defendant was not injured by this instruction.

Motion for new trial. We find no error in the denial of the motion for a new trial.

The judgment is affirmed.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.

       2 Comp. Laws, § 4047.

       2 Comp. Laws, § 4067.