author: Moore, J.

text:
    SHAW v. HEHL.
    1. Corporations — Officers and Directors — Deeds—Trust Relations — Good Faith.
    ■ A transfer of all the assets of a building and loan association to the secretary, director, and majority stockholder, by a resolution of the board of directors, which met on notice that was not duly mailed to the proper address of one director, who had been selected without his knowledge to act on the board, and which consisted of this director, a brother of the secretary and defendant secretary, was void, because of the trust relations existing between defendant and the association, although there was a previous deed executed to the secretary and a third party, the latter conveying to the defendant, and though the pretext for the deeds was to secure defendant from liability on certain mortgage indebtedness of the corporation for which defendant was personally liable.
    2. Same — Mortgages—Ratification.

      Held, also, that an earlier deed, which defendant did not appear to have relied on, did not preclude the association from questioning the validity of the subsequent transfer.

      Appeal from Wayne; Codd, J.
    Submitted October 21, 1915.
    (Docket No. 3.)
    Decided December 21, 1915.
    Bill by James A. Shaw, as trustee of St. John’s Court, No. 949, and others, against John P. Hehl and others for an accounting and reconveyance of certain lands. From, a decree for complainants, defendant Hehl appeals.
    Affirmed.

      Felix A. Doetseh, for .complainants.

      Watson, Safford & Shepherd, for defendant Hehl.
   Moore, J.

This is a bill filed under sections 9757 and 9759, 3 Comp. Laws, by the complainants as stockholders of St. Johns Building Association, for the purpose of setting aside a transfer to John P. Hehl of certain real estate and for an accounting of rents and profits. St. Johns Building Association was organized under Act No. 232, Pub. Acts 1903, in October, 1903. In December, 1903, this association purchased lots 1, 2, 3, 4, and 5 of William C. Maybury’s subdivision of lot 10, etc., in Detroit, for the sum of $2,000, and erected a building thereon at a cost of about $6,600. In November, 1904, this property was deeded in the name of the St. Johns Building Association to William I. Wallace, and John P. Hehl as individuals. The ostensible purpose for which this deed was given was to raise money by mortgage to carry on the building operations, it being claimed that the money could be more readily borrowed if the title were in the individuals instead of in the corporation. On the same date, the said William I. Wallace and Elizabeth'Wallace, his wife, deeded an undivided one-half interest in said premises to John P. Hehl, which deed was not recorded until October 9, 1908. Certain mortgages were given, and defendant claims he became personally liable thereon. On December 17, 1909, a warranty deed was placed on record in the office of the register of deeds for Wayne county, which purports to have been executed July 21, 1909, by the St. Johns Building Association, through Louis Hehl (brother of John P. Hehl), as president and John P. Hehl as secretary, to the said John P. Hehl individually, and purporting to convey lots 1 to 5, inclusive. It is claimed by the complainants that these deeds to John P. Hehl were frauds on the building association, and the bill of complaint is filed to have them so decláred, and for an accounting; the bill closing with a prayer for general relief. After a full hearing a decree was entered reading in part as follows:

“(a.) That the deed of July 21, 1909, recorded in Liber 730 of Deeds, on Page 363, Wayne County register of deeds office, and purporting to convey from St. Jffims Building Association as grantor, to John P. Hehl, said defendant, as grantee, the premises described in the bill of complaint herein, namely, lots 1, 2, 3, 4, and 5, of Wm. C. Maybury’s subdivision, * * * be, and the same is hereby set aside, vacated, and declared null and void.
“(b) That the said John P. Hehl be, and he is hereby declared to be, and to have been trustee for the said St. Johns Building Association as to said premises, from and after November 21, 1904.
“(c) That as such trustee he shall account-to said association as to all his dealings with said premises, and shall account for his official conduct in the management and disposition of the funds and property committed to his charge as a director and officer of said association.
“(d) That the said John P. Hehl and Susie Grace Hehl, defendants herein, be directed to reconvey, by good and sufficient'deed, to said St. Johns Building Association, that portion of said above-described premises known as lot 5 thereof, and that, in default of such reconveyance, this decree stand in lieu thereof.
“(e) That in accordance with the stipulation between counsel in open court on the hearing of this cause, said lot 5 be and remain subject to the several mortgages given by said John P. Hehl and Susie Grace Hehl, his wife, on or about December 11, 1909, to the Michigan Commercial Insurance Company of Lansing, Mich., and to Clarence K. Peck, respectively, which mortgages hold priority in the order named, the principal of said mortgage to said Michigan Commercial Insurance Company having been heretofore reduced to the sum of $3,100, and the said mortgage to said Peck being in the sum of $500.
“ (/) That the title to the portion of said above-described premises, known as lots 1, 2, 3, and 4, heretofore on, to wit, October 27, 1911, conveyed by said John P. Hehl and Susie Grace Hehl to the defendant Geo. C. Hoffman, be declared to be in, and confirmed to, said George C. Hoffman, free of any claims on the part of said association, and of the lien of said mortgages, the said Geo. C. Hoffman having paid for said premises to said John P. Hehl as trustee for said St. Johns Building Association the sum of $3,000. That said St. Johns Building Association execute by its proper officers any necessary deed or reconveyance to quiet the -title in said Geo. C. Hoffman, or that, in default thereof, this decree stand as such conveyance.”

The.decree further provided for a reference to a commissioner for an accounting. A hearing was had before the commissioner. Upon the coming in of his report a decree was made finding there was due to the receiver, who had been appointed during the proceeding, from the defendant, the sum of $1,131.15. An appeal is taken to this court from both of these decrees.

It was the claim of the defendant that the affairs of the association were in a bad way financially, that he was liable for any deficiency upon the foreclosure of the mortgages, that .foreclosure was threatened, that no one else would take the property and pay the debts, and that he acted in good faith in taking the deed. We quote from the brief of counsel for the appellant:

“We desire to take up certain points discussed by counsel for complainants, with which we cannot agree, and point out that, although John P. Hehl may have been ill advised and failed to comply strictly with certain technicalities, he has, throughout his course of dealings with the St. Johns Building Association, maintained clean hands and been guiltless of actual fraud on its members.
. “(1) The notices of the special meetings of the stockholders of the St. Johns Building Association were sent to all of the stockholders.
“(2) A meeting of the stockholders was not neces-' sary, as the power lay in the directors to sell this property.
“(3) Director John S. Bourke was notified to be present at the meeting of the board of directors held January 9, 1909.
“(4) Defendant Hehl, although he was a director, had a right to deal with the corporation.
“(5) There was a consideration for the sale of this property from the St. Johns Building Association to John P. Hehl.
“ (6) John P. Hehl, in the course of his transactions with the association, kept well within the rules of fair dealing and was not guilty of fraud.”

Because of the relations of defendant to the association, something more than good faith was required. He should have acted within the law.

Following the grouping of counsel, we think it necessary to refer only to groups 3 and 4.' Counsel cite, in support of group 4, Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Campau v. Driving Club, 135 Mich. 575 (98 N. W. 267); and Webster v. Canning Co., 149 Mich. 489 (113 N. W. 7). A reference to these cases will show they are not controlling.

The instant case may be disposed of upon the testimony of defendant alone. His testimony shows that he owned 60 per cent of the stock; that he caused to be elected as directors his brother, himself, and John S. Bourke; the last named had lived at Joseph Campan street in Detroit, but moved to Logansport, Ind., and was never notified of Ms election as director.

The defendant’s testimony also shows that notice of the directors’ meeting at which the conveyance, to defendant was authorized was given to Mr. Bourke by mail addressed to him at Joseph Campau street, Detroit, when defendant knew he had moved to Logansport, Ind., and that Mr. Bourke did not attend the meeting. There were present, according to the testimony of defendant, only himself and his brother, and, following a resolution that was then adopted, a deed was made to defendant which alienated all of the assets of the building association of which his brother was president and he was secretary.

Our attention has not .been called to any authority which would sustain such a transaction. See Miner v. Ice Co., 93 Mich. 97 (53 N. W. 218, 17 L. R. A. 412); German Corporation v. Aid Society, 172 Mich. 650 (138 N. W. 343); Ervin v. Railway & Navigation Co. (C. C.), 27 Fed. 625, and the many cases cited therein.

Counsel say the decree cannot be sustained because of the deed of November 21, 1904. We think it sufficient to say that the bill of complaint set out fully the relations of defendant with the association, the reason for the giving of the deed, the secret conveyance from Mr. Wallace and his wife to defendant, closing with a prayer for general relief. The record also shows defendant was claiming title, not by virtue of the deed of earlier date, but by reason of having the deed of July 21, 1909.

The decree is affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    HYDREX SILENT EXHAUST WORKS v. SEAGER ENGINE WORKS.
    1. New Trial — Motions—Newly Discovered Evidence.
    On motion for a new trial on the ground of newly discovered evidence to the effect that articles sold by the plaintiff were not specially made, the fact that defendant had over eight months in which it might have discovered the evidence, and that it was cumulative in its nature, furnished sufficient reason for denying the new trial.

    2. Same — Evidence—Materiality.
    Unless the evidence is material and likely to change the result it is not sufficient ground for a new trial.
    3. Appeal and Error — Requests—Saving Questions eor Review —Trial.
    On error to review a judgment at law, the appellant is not entitled to reverse the judgment for failure to charge the jury, if no requests for instructions were filed.
    4. Sales — Actions—Damages—Rights oe Seller.
    The seller of. specially manufactured articles that have been refused by the purchaser has the remedy of retaining the property in the event of their destruction and suing for the entire purchase price, or he may sell the goods and apply the proceeds on account, or keep them and bring an action for the loss sustained.

    5. Compromise and Settlement — Evidence—Collateral Issue.
    Where plaintiff agreed to furnish silencers to be fitted to engines which defendant manufactured for a corporation that had common stockholders and ■ officers with the plaintiff, and defendant claimed, in an action for breach of its agreement to receive the silencers, that plaintiff had compromised its claim with the purchaser of the engines, the court did not err in rejecting evidence of the alleged settlement, since it would tend to raise a collateral issue.

      Error to Ingham; Wiest, J.
    Submitted October 21, 1915.
    (Docket No. 129.)
    Decided December 21, 1915.
    Assumpsit by the Hydrex Silent Exhaust Works against the Seager Engine Works for breach of a contract of purchase. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clarh C. Wood, for appellant.

      Irvin Long (C. F. & E. T. Hammond, of counsel), for appellee.

      Cumulative evidence as basis for new trial is discussed in note in 14 L. R. A. 609.

      On measure of' damages for purchaser’s refusal to accept goods specially manufactured for him, see notes in 4 L. R. A. (N. S.) 740, 18 L. R. A. (N. S.) 613.

   Moore, J.

The trial judge charged the jury in part as follows:

“The plaintiff, the Hydrex Silent Exhaust Works, a corporation, and manufacturers of the Hydrex silent exhaust silencer, claims that the defendant, the Seager Engine Works, a corporation, was employed to manufacture certain gasoline engines for the Lackawanna Manufacturing Company to be equipped with the Hydrex engine exhaust silencer, and to obtain the silencer their plant agreed with plaintiff upon terms of purchase, and gave plaintiff orders for 275 silencers to be specially made; that they manufactured the silencers ordered, and delivered 146 of them to defendant, for which the defendant has paid, and had the remainder for delivery and offered delivery of them to defendant, and defendant refused to take them; that, being a special make, the silencers were held in plaintiff’s storeroom subject to defendant’s order until the storeroom burned in January, 1914, when they were destroyed by fire.
“This suit was brought to recover the value of the silencers ordered by defendant and manufactured on such orders by plaintiff and refused to be taken and paid for by defendant. Defendant denies that it ever entered into contract with plaintiff, and denies that it ever gave orders of purchase of the silencers. It admits making a contract with the Lackawanna Manufacturing Company under which it was to manufacture gasoline engines for the Lackawanna Manufacturing Company to be equipped with silencers; that it was agreed with Mr. Hall, who made the contract for the Lackawanna Manufacturing Company, and also was president and general manager of both the Lackawanna Company and the plaintiff company, that it would be absurd for the plaintiff company to sell silencers to defendant to go with the gasoline engines made for the Lackawanna Company, because, if that was done, a charge of 10 per cent, would have to be added merely for their passing through this shop, and because of the relations between the plaintiff company and the Lackawanna Company the silencers should be furnished to the Lackawanna Company by the plaintiff, and not by the plaintiff to defendant. Defendant also claims that the orders given by its purchasing agent to plaintiff for silencers were not purchasing orders, but were memorandum under the agreement with Mr. Hall that the plaintiff might know what silencers it furnished the Lackawanna Company through the defendant. * * *
“Plaintiff, in order to recover, must satisfy you by a preponderance of the evidence that there was a contract of sale of the silencers to defendant. A contract of sale, to be valid, must designate the kind of articles, the subject of the sale and the price to be paid; and such a contract may be partly in writing and partly verbal, provided it has been performed in part after its making. So in this case the parties were at liberty to contract for the silencers, and to agree verbally upon the price to be paid for the same. And if you find that with an agreement as to the price of the silencers to be paid for on orders given for the same defendant gave written orders for specified silencers, and such orders were accepted by plaintiff and performed in part by delivery of some of the silencers, then there was a valid contract, and, if plaintiff made the silencers under such a contract, then defendant was under obligation to take and pay for the same when offered delivery of what it had ordered. * * *
“You are to have in mind that, in order to make a contract binding between parties, the minds of the parties must have met upon the subject-matter of the contract. One may not be held to have made a contract unless it was his intention to make a contract. That intention is to be gathered from the writings entered into, providing the writing covers the matter. In case the writing does not cover all of the claimed contract, and a part of it is claimed to have rested in mere words passing between the parties, then the jury should take into consideration, not only the writing, but all the evidence disclosed relating to the intention and understanding of the parties upon the question of contract or no contract. * * *
“Was there a contract made between these parties? Was it understood and agreed between the defendant company and the plaintiff company that the silencers to be used upon the Lackawanna gasoline engine should be the silencer manufactured by the plaintiff company, and that this silencer should be sold and charged to the defendant company? * * *
“Was there a contract under which plaintiff was to manufacture for defendant at agreed prices special designs of silencer, and under which defendant was to accept and pay for the same, or was the manufacture of silencers for the Lackawanna Manufacturing Company, and not for defendant, and the dealings between plaintiff and defendant relative to the silencers less than contract relations for the sale by plaintiff to defendant and purchase by defendant from plaintiff of the silencers in question? * * *
“Was it the intention of these parties, the one in giving the order, and the other in making the silencer, that there was a contract binding upon the defendant to buy and take, and upon the plaintiff to make and' to sell, the silencer in question? If any order was given as a purchase.and accepted by the plaintiff, and the goods made and some of them delivered, and the rest of them ready for delivery and tender of delivery made, then there was a good contract. If the order was given, on the other hand, under ah arrangement that it should operate merely as a memoranda, so that it might be known afterwards, in case of inquiry, what silencers, if any, were furnished to go with the Lackawanna Company engine through the shop of the defendant, and without a contract that such silencer should be paid for by the defendant company, then there was no contract upon the giving of these orders. I mean by that this: These orders may be explained. The defendant is at liberty to come in here and explain the circumstances under which they were given so far as such circumstances were known to the plaintiff. The defendant claims that the orders were given after an agreement between the defendant company and the plaintiff company that the silencers should be furnished, not to defendant company, but to the Lackawanna Company. * * *
“If the silencers were made to order, then, when completed and tendered defendant, in case they were tendered, and in case you find there was a valid con-' tract, then they became the property of the defendant, and plaintiff might store them subject to defendant’s order, and in case of their destruction by fire the loss was that of defendant, and does not excuse defendant from paying for the same.
“Now, it is the claim of the plaintiff in this case that this was an order for a specially made silencer, and because of its special make upon the order of the defendant it completed them and tendered them to the defendant company, and upon its refusal to take them, the title having passed, it held them as the property of the defendant company and subject to defendant’s order; that in January, 1914, while they were being stored subject to defendant’s order, they were destroyed by fire. If they were made upon the special order, a special design of silencers, if there was a valid contract between the parties, then it was the duty of the defendant to take them when completed and ready for delivery and, if it refused, and after that they were destroyed by fire, the loss must fall' upon the defendant. * * *
“The item I have just given, being the amount claimed by the plaintiff, is $439.75. The defendant claims it does not owe the plaintiff anything, and that the payments made upon the silencers delivered were not intended as a recognition of an obligation; and the defendant has explained the circumstances under which he claims such payments were made.
“If you find for the plaintiff, then you will determine the amount due the plaintiff, and award the plaintiff the interest at the rate of 5 per cent, per annum from the 20th day of May, 1912. In case you cannot find from the evidence and by a preponderance of it that there was a contract made as claimed by the plaintiff, then your verdict will be that of no cause of action.”

A verdict was rendered for plaintiff, and judgment, entered thereon. Later a motion was made for a new trial. The judge overruled that motion, giving his. reasons in writing for doing so. The case is brought, here by writ of error.

Counsel for appellant say the questions involved are:

(1) Was the verdict of the jury supported by the weight of testimony?
(2) Should the motion of a new trial have been granted on the ground of newly discovered evidence ?
(3) Did the court err in his charge to the jury relative to the special design of the silencers ?
(4) Did the court err in submitting the question of •an oral agreement as to price and design of silencers, to the jury?
(5) ' Did the court err in refusing to admit evidence-as to the terms of settlement between the Lackawanna Manufacturing Company and the defendant and in excluding the Defendant’s Exhibit 6?
(6) Did the court err in refusing to consider the silencers offered as physical exhibit in connection with a motion for a new trial ?
(7) Did the court err in refusing to strike out the Plaintiff’s Exhibits 2, 3, 4, and 5?
(8) Should the defendant have been permitted to show that the Plaintiff’s Exhibit J was a routine letter ?

We approach these questions in the order in which they are presented in the brief:

1. It is argued that plaintiff’s case depends wholly upon the testimony of Mr. Hall, and that the weight of testimony is against him. An examination of the record does not sustain this contention. It shows a sharp conflict in the testimony; witnesses flatly contradicting each other. There are letters and order sheets that standing by themselves tend to support the testimony of Mr. Hall. There is testimony on the part of defendant explaining these letters and the giving of the order sheets, which explanation, if accepted, would do away with that tendency. There were two payments made by the defendant which tend to support the claim of the plaintiff. Explanations are made of the circumstances under which these payments were made, which explanations, if accepted, would remove, that tendency. All this testimony is within the domain of fact, and presented a case for the jury. Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and the many cases cited therein. Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), and the cases cited therein.

2. Should the motion for a new trial have been granted on the ground of newly discovered evidence? In overruling the motion the trial court said:

“The so-called newly discovered evidence is no more than cumulative upon one of the issues presented by defendant at the trial. Defendant’s witness Bert Wood-ruff testified that he examined all the silencers sent out by defendant, and that none of them had a flange, and now to open the case for the purpose of letting others testify that the silencers Woodruff examined and others did not have flanges and to bring some of such silencers into court would only be adding some testimony to that already in the case.”

A reference to the record shows that Mr. Woodruff was employed in the stockroom, and that he examined all of the silencers that ci'me to the stockroom, and that:

“Those silencers were not provided with a flange at the inlet end. * * *
“Q. Then the figure that you have marked here with the pencil is the figure that you identified as being the same as the silencer that you examined?
“A. The same as the silencer I was taking card of in the stock room.
“Q. Were there a large number of these silencers?
“A. The nearest I could remember was something ■near 10 or a dozen that were taken care of especially by me and examined. There may have been more, but not handled by me. All I remember is approximately 10 or 12 that I personally handled.”

The amended declaration was filed in April, 1914. In referring to the contract which is the basis of this litigation, it is said:

“For that whereas heretofore, to wit, on the 11th day of March, 1911, at New York, in the State of New York, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to manufacture and sell to plaintiff (defendant) a quantity of specially manufactured engine parts to wit, 275 Hydrex engine exhaust silencers, and the sai$ defendant agreed to accept and pay for the same the sum of $955.35.”

The case was tried in December, 1914, so that for eight months before the trial defendant knew it was claimed the silencers were of special manufacture. The motion for a new trial was filed within a month after the judgment was rendered. The so-called newly discovered evidence was to contradict the plaintiff when he testified the silencers were of special design and would be along the same line as the testimony of Mr. Woodruff, and is clearly cumulative. It is not explained why, if the same diligence had been used between the filing of the amended declaration and the trial that, was used after the trial, the testimony might not have been produced upon the trial.

In Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), it was said:

“ ‘A motion for a new trial upon the ground of newly discovered evidence is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence/ Elliott, App. Proc. § 857. To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial. Hayne, New Trial & App. §§ 88-92, and many cases there cited; Gray v. Barton, 62 Mich. 186 [28 N. W. 813].”

We do not think there has been such an abuse of the discretion of the trial judge as to call for our intervention. See Burke v. Traction & Electric Co., 147 Mich. 172 (110 N. W. 524); Leonard v. Leahy, 169 Mich. 406 (135 N. W. 335); National Surety Co. v. Grant, 177 Mich. 348 (143 N. W. 5).

3. Did the court err in his charge to the jury relative to the special design of the silencers? It is the claim of counsel for defendant that the court erred in that part of the charge which we have quoted by omitting any reference to the obligation of the plaintiff to minimize the loss. Counsel say it is not sufficient that goods should be “specially ordered,” but it is also essential that the goods should have had no market value. We have been unable to find in the record any request proffered on the part of the defendant asking the judge to charge upon the subject of minimizing the loss.

In discussing the respective rights of the vendor and vendee the following has been stated:

“The vendor of present property in a suit against the vendee, for not taking and paying for the property, has a choice ordinarily of one of three remedies: (1) He may store or retain the property for the vendee and sue him for the entire price; (2) he may sell the property, acting as agent for this purpose of the vendee, and recover the difference between the contract price and the price of resale; or (3) he may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price.” Benjamin on Sales (7th Am. Ed.), p. 820.

In 1 Mechem on Sales, § 754, it is said:

“Under a contract for the manufacture of an article, as for the building of a ship or the construction of any other chattel, not existing in specie at the time of making the contract, it is the general rule that no title vests in the purchaser during the progress of the work, nor until the chattel is finished and delivered, or at least is ready for delivery, and, by tender or other equivalent act is appropriated to the buyer. A few cases hold that the title will not pass until there has been, on the part of the buyer, either an acceptance of the chattel or some “acts or words respecting it from which an acceptance can be inferred.” But, by the weight of authority, acceptance by the buyer is not indispensable. If the chattel is produced at the time, and of the kind and quality specified, and in all other respects in compliance with the order, so that the buyer ought to accept it, the title will pass upon a tender or offer of delivery, even though the buyer refuses to accept it.”

See, also, Whitcomb v. Whitney, 24 Mich. 486; Haynes v. Quay, 134 Mich. 229 (95 N. W. 1082).

In Black River Lumber Co. v. Warner, 93 Mo. 374 (6 S. W. 210), the following language is used in the opinion:

“Where, however, the subject-matter of the contract is a specific article to be manufactured by the vendor for the vendee, and the vendor has completed his contract, and performed all that the contract requires him to do, it is but just and fair that his damages, in case of a refusal of the vendee to accept the article, should be the contract price. The vendor will, of course, in such case, hold the property for the vendee. And so it has been held in a number of cases. As some of them we cite Shawhan v. Van Nest, 25 Ohio St. 490 [18 Am. Rep. 313]; Ballentine v. Robinson, 46 Pa. 177; Smith v. Wheeler, 7 Or. 49 [33 Am. Rep. 698].

See, also, Goddard v. Binney, 115 Mass. 450 (15 Am. Rep. 112), and other cases found in the brief of counsel.

5. Did the court err in his rulings about the settlement between defendant and the Lackawanna Manufacturing Company ? It is true, as contended by counsel, that both companies had the same manager, and some of the same stockholders, though it is a matter of dispute when Mr. Hall severed his relations with the Lackawanna Manufacturing Company, but it is a fact that the corporations were separate entities. To enter upon the terms of settlement between the defendant and a corporation not a party to the record would open a new field of inquiry. Could plaintiff dispute what was claimed by defendant as to the settlement? To ask the question is to suggest that a new issue would be presented which is not the subject of litigation herein. The pivotal question was, Between whom was the contract made ?

We have discussed the important and determining questions, and will content ourselves with saying we have examined the other assignments of error, and think them not well taken.

judgment is affirmed.

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


author: Steere, J.

text:
    PAPINAW v. GRAND TRUNK RAILWAY CO. OF CANADA.
    1. Appeal and Error — Certiorari—Master and Servant — Workmen’s Compensation — Industrial Accident Board — Death.
    Upon certiorari to review an award of the Industrial Accident Board, its findings of fact, in the absence of fraud, are conclusive.
    2. Master and Servant — Duties—Trespassers — Negligence— Railroads.
    Where decedent was a section foreman, having supervision over switches, and was charged with sending reports to his employer of the time-of his crew at regular intervals, and was also required, as part of his duties, to look after the cleaning of the switches in case of a storm, and to attend to this duty at night if necessity required, it could not be found, as a matter of law, that he was off duty one stormy night in winter when he left home, as he, announced, to mail his report, saying that if he was out late he would be working on the switches, and when it was the last night for the mailing of the report and the employee was. found killed, about midnight, on the section of tracks of which he was in charge.
    3. Same — Trespassers.
    In performing either duty, deceased was not a trespasser on the right of way, which he used as a way to reach the depot of the respondent.
    4. Same — Evidence—Burden.
    The burden rested on the master to prove that the accident happened while the employee was not performing his duties, upon proofs tending to show that he was
    5. Same.
    And his position was distinguishable from those of employees who were not compelled to be at the master’s call at any time, but had fixed hours of labor.
    Certiorari to the- Industrial Accident Board.
    Submitted October 21, 1915.
    (Docket No. 11.)
    Decided December 21, 1915.
    Rose Papinaw presented her claim against the Grand Trunk Railway Company of Canada for compensation for the killing of her husband. From an award made, the respondent corporation brings certiorari.
    Affirmed.
    ' W. K. Williams (Harrison Geer, of counsel), for appellant.

      J. C. Lehr, for appellee.
   Steere, J.

The husband of applicant, Alfred Papinaw, who had been for several years section foreman for respondent, was killed during the night of January 30, 1914, on its track between his residence and what is called the Tunnel depot of respondent’s road in the city of Port Huron. On her application for compensation under' Act No. 10, Pub. Acts 1912 (Extra Session), the Michigan Industrial Accident Board found that his death arose out of and in the course of his employment, and therefore awarded her the full compensation provided in such cases.

The known facts and circumstances relating to Papinaw’s death are practically undisputed. Respondent contends that the award was erroneous because it cannot fairly be found as a matter of fact, from any competent evidence'in the case, that his death did so arise.

Deceased’s section commenced at what is known as Tappan Junction, which was about 1% miles west of the Tunnel depot, and extended several miles westerly, toward Detroit. He resided with his family near the east end of his section, about 150 feet north of respondent’s tracks, on the west side of the Junction road which runs north and south, crossing respondent’s tracks a short distance east of Tappan Junction. His daily duties as section foreman required him usually to work upon the track with his section crew from about 7 o’clock in the morning until 5:30 in the evening, the time varying somewhat with the season of the year. It was also his duty to patrol the track Sunday mornings and keep a yard interlocking light burning at night, and relight it in case it went out during the night. Between his section and the Tunnel depot was another section in charge of a different foreman, called the Tunnel freightyard section. In this section were numerous switches, five of which near the Tappan Junction road crossing it was the duty of deceased to look after in case- of storm. It was his custom when nothing out of the ordinary arose, and there was no indication of storm, to retire early. He was subject to be called out at any time of night in case of a wreck or to clean the switches in event a storm rendered it necessary. Another of his duties was to keep the time of his crew and daily enter it on a time book from, which he made out their check pay rolls at his home as opportunity arose, and mailed them at the Tunnel depot to respondent’s superintendent in Detroit. This was required to be done for the first half of each month, in time to reach the Detroit office not later than the morning of the 14th, and for the last half not later than the first day of the ensuing month. The section hands worked by the day with extra pay for overtime, but section foremen were then paid monthly wages of $62.50, which covered, whatever services they rendered during the month, and were required to be on call at all times. If they wished to be away beyond call over night or on Sunday they had to secure permission from the roadmaster, while the section hands were at liberty to go and come as they pleased on nights and Sundays.

There was a street, called Griswold, running east and west on the north side of respondent’s tracks, but not parallel with them, at a distance of about 4 blocks from the Tunnel depot and about 2% blocks from respondent’s west-bound track at the Junction road near where deceased resided. This was outside of the city limits, similar to a country road. The railroad men, including deceased, who resided near Tappan Junction, were accustomed to use the railroad tracks in going to and returning from the Tunnel depot, it being more convenient and direct than by the street.

Deceased’s education was limited and it was hard for him to correctly prepare his pay rolls and reports. He worked at this task the evening before until midnight, and on the afternoon of January 30th, at about half past 3, returned home to complete making them out,, which he practically finished about supper time. After supper he signed the paper and his wife addressed the envelopes containing them. He then left home, at about 6:30 o’clock, for the purpose of mailing them at the Tunnel depot, as was customary and in accordance with his instructions, that they might be received in Detroit the next day. There is no direct evidence of his movements from that time. These papers were mailed that evening at the Tunnel depot and went out on a train which left at 6:55, being received in Detroit the following day. Some time about midnight his remains were found by a switchman on respondent’s tracks, badly mutilated and cut to pieces, portions being scattered along and frozen to the track, at a locality variously stated as from about a block and a half east of Tappan Junction to 1,300 feet east of the Junction road. It was a dark, stormy night with a mixture of rain and snow flying and falling. His wife testified that he seldom went to the city at night and . never to the tunnel except on the nights when it was his duty to mail his pay rolls and reports; that on leaving this night he commented upon its being dark and stormy, telling her that if he was late she could know that he was out working on the switches.

Between when deceased left home and his remains were discovered, the time of his death is necessarily indefinite. The undertaker who was summoned shortly after their discovery and cared for the remains testified that they were strung along the track 75 or 100 feet, some parts frozen to the rails or ties so that he had difficulty in loosening them; that it was a “cold, nasty, raw night,” and he thought from the condition of the body, which he judged had been dead an hour and a half or two hours, that more than one train ran over him; that “one had taken him one way and another brought him back.”

In considering this case we start with the well-settled proposition that if the facts proven are capable as a matter of law of sustaining the inferences of fact drawn from them by the Industrial Accident Board, its findings are conclusive, in the absence of fraud, and the appellate court is not at liberty to interfere with them. Section 12, part 3, of the industrial accident law (Act No. 10, Pub. Acts 1912 [Extra Session]), has been too often and recently so construed by this court to require citation of cases. This is but an application under the statute of the comprehensive and fundamental principle universal in courts of law, that whether there is any competent evidence is for the court to determine, but whether the evidence is sufficient is a question for the jury, the function of the accident board being in that respect those of a jury in actions at law.

This case is readily distinguishable from that line of decisions cited by respondent in which the employee by his contract of hiring was engaged to work during certain hours, and was injured away from his place-of employment, while going to or returning from work, or was absent during some intermission for meals, or otherwise, not then upon his employer’s business nor subject to his control, at liberty for the time to go where and do what he pleased, free from any claim of the employer upon his services. Here it is shown conclusively that by his contract of hiring deceased was at the time of his death required to be within reach, liable at any time to be called to work upon the track, and in that sense on duty subject to his employer’s orders and control. His wife and his fellow foreman, of the section east of his, so testified, as also respondent’s supervisors of tracks who said, in part:

“The section foreman is supposed to be on call at any time, in case of trouble with the switches. * * * I gave him (Papinaw) instructions with reference to those switches because he lived near, and was the nearest man to be called. Sharrard lived near the Tunnel depot. Although it was on Sharrard’s section I gave Papinaw orders that in case of storm to look after the cleaning of those switches. * * * .He was supposed to be on call in case the tracks got in bad condition of repair so that he could get there without tying up traffic. * * * If the foreman has not gone to bed before it starts storming he is supposed to go out himself without being called.”

Especial and extra duties rested upon deceased that night. He was required to be on call. It was a stormy night, of a kind requiring unusual vigilance as to the switches, and it was imperative that he mail his pay rolls at the Tunnel depot before the evening train left so that they would be in Detroit on the day required. He worked upon those papers until supper time and started after supper for the Tunnel depot to mail them, leaving word with his wife which would keep him in touch with his employer during his absence, as near as possible. It is conceded that he mailed the papers that evening, and they reached their destination on time. It was his duty after mailing them to return and either be at home on call or looking after the switches near by. His last words, so far as there is any proof, show such was his intent, and that he left with this duty on his mind. He was in the habit of retiring early when there was no indication of a storm. Under the terms of his employment it was as much his duty to return to his home, or the switches near there after mailing the papers at the Tunnel depot as it was to go there for that purpose. In going he started along respondent’s track, and presumably went that way, as was his custom and that of other employees of respondent, because it was more convenient and the distance to the tunnel shorter than by any other route. He was a section foreman whose special work was to be upon, travel along, and care for his employer’s track. He was .not a trespasser upon its right of way in any sense which would deny relief under this act, and no question of his negligence is involved in this proceeding. The place and cause of his death are readily inferable from the facts proven. Respondent’s counsel say:

“He was in the act of going to his home at the time he was killed.”

If so, under the circumstances of this case, he was performing a duty in the line of his employment out of and in the course of which the accident which caused his death befell him. The accident occurred while he was doing that which a man so employed can reasonably do, and ought to do, and was injured at a place on his employer’s premises where, under the proven circumstances, his combined duties made it reasonable that he should be; and there is no proof that he was there for any other purpose than on his return in completing a trip to the Tunnel depot, in the line of his employment, to the place where his employment required him to be on call or at work, and where he would have been during that evening but for the necessity of the trip.

This claim is by a dependent of a workman who was accidentally killed, and whose evidence is therefore not available. In Grant v. Railway Co., 1 B. W. C. C. 17, it is said:

“If in such a case facts are proved, the natural and reasonable inference from which is that the accident happened while the deceased was engaged in his employment, I think it falls on the employer, if he disputes the claim, to prove that the contrary was the case.”

That an employee, not actually at work, is on duty if required to be at a certain place on call and ready for work, is held in St. Louis, etc., R. Co. v. Welch, 72 Tex. 298 (10 S. W. 529, 2 L. R. A. 839), where it is said of a member of a railroad bridge gang injured while sleeping in a bunk car provided by his employer:

“The plaintiff at the time of the accident was asleep on a car belonging to the company, provided by it for that purpose, which was placed upon its side track. He was liable to be called upon at any moment to go out with his gang upon duty upon the road. We think he must be held to have been upon duty at the time he received the injury. That the accident occurred when he was resting from his labors, we think makes no difference. He was subject to the call of the company at the time, and his case differs from that of other servants who engage for certain hours of employment and who are injured during the intervals in which the master has no claim upon his services.”

The arbitration committee and Industrial Accident Board were at liberty in determining the facts in this case to draw all rational and natural inferences from the evidentiary circumstances shown. To infer and find that the accident, which resulted in Papinaw’s death, arose out of and in the course of his employment, had evidential support, and was neither unnatural nor irrational.

The decision of the Industrial Accident Board is therefore affirmed, with costs to appellee.

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


text:
    MATWICZUK v. AMERICAN CAR & FOUNDRY CO.
    Master and Servant — Notice oe Injury — Compensation—Agency —Ratification.
    Where a brother-in-law of decedent employed an attorney, who gave the employer notice of his death, in compliance with the workmen’s compensation act, within the statutory three months period, and within six months had the wife, who resided in a foreign country, execute a power of attorney ratifying the giving of notice, hut did not receive the instrument within the six months, the notice was sufficient, as it afforded an opportunity to investigate. Act No. 10, Extra Session 1912.

    Certiorari to the Industrial Accident Board.
    Submitted October 12, 1915.
    (Docket No. 62.)
    Decided December 21, 1915.
    Maryanna Matwiczuk presented her claim for compensation under the workmen’s compensation act against the American Car & Foundry Company for the death of her husband. From the award entered, contestant brings certiorari.
    Affirmed.
    L. A. Koscinski, for claimant.

      E. D. Alexander, for defendant.

      On sufficiency of notice of injury under - employer’s liability; acts,, see notes in 21 L. R. A. (N. S.) 233.

   Moore, J.

This is certiorari to review the action of the Industrial Accident Board in confirming an award made in favor of the claimant. The questions involved are so clearly stated in the opinion rendered by the board that we quote from it:

“It is conceded in this case that Joseph Matwiczuk, the husband of the applicant, met his death on May 22, 1918, as a result of the injuries received while in the employ of respondent. It is undisputed that the injuries resulting in his death arose out of and in the course of his employment, and that his widow would be entitled to the compensation .fixed by law, if claim therefor was made within the time fixed by the compensation act. It is undisputed that, on the day following the death of deceased, his brother-in-law, Joseph Postinack, consulted an attorney in the city of Detroit, and that said attorney wrote a letter to respondent, notifying It of the death of Joseph Matwiczuk, and further stating that his death was due to an injury received while working for respondent, that deceased had a wife and four children living in Poland, who were dependent upon him, and closing the letter as follows:
“‘If you care to offer reasonable compensation, in settlement, there is no doubt that it will be considered. Awaiting an immediate reply, I remain. [Signature.]’
“The widow of deceased in fact resided in Poland as stated in said notice, and the brother-in-law of deceased above mentioned assumed to act for her in consulting said attorney and making the aforesaid claim. It is conceded that Postinack, at the time he consulted said attorney, had not been authorized so to do by the widow, as this was done very shortly after the death, and before the widow even had knowledge of the accident; her residence being in a small town in the interior of Poland. It is contended in this case that the claim made through the action of Postinack is a nullity, because he was not authorized so to act, and that the letter from said ■ attorney did not constitute the making of a claim for compensation within the meaning of the law. '•
“In the opinion of the board the provision of the compensation law relative to making claims for compensation should not be technically construed, and that the communication which was sent to the employer in this case was sufficient to fairly apprise it of the fact that compensation was claimed for the death of the decedent. The essential function to be performed by notice of claim for injury under this law is to bring home to the employer at some time within six months after the accident knowledge of the fact that a claim for compensation therefor is being asserted. We think that the letter in question must be held to have fairly apprised respondent of this fact. At the time of making the claim, Postinack had not been authorized to act for applicant as before stated, but about five months after the death of deceased applicant executed at her home in Poland a written power of attorney authorizing Postinack to act in her behalf in all things relating to the prosecution of her claim for compensation. When this power of attorney reached Postinack in this country a little more than six months had elapsed since the death of decedent, and it is contended by respondent that the power of attorney did not take effect until it was actually delivered in this •country, and that being iafter the expiration of the six-months period, it could not operate as a ratification of the previous acts of Postinack. This contention is largely technical and without merit. We are inclined to the opinion that the mailing of the power of attorney in Poland constituted a sufficient delivery. We are •unable to find any provision in the act requiring the person who makes the claim on behalf of the dependents of a deceased workman to be a fully authorized agent. It is the evident intention of the law that such claim may be made by near relatives or friends, without formal authorization from the dependents. To hold otherwise would defeat compensation in many cases where the dependents of deceased workmen live in distant lands, or where such dependents are minors. The decision of the committee on arbitration awarding compensation to the applicant is affirmed.”

Counsel for appellant argue two propositions:

(1) Was the letter sent by Daniel Minock to the American Car & Foundry Company a claim for compensation such as is contemplated by the terms of the workmen’s compensation act?
(2) If this letter was a claim sufficient to comply with the terms of the workmen’s compensation law, was it sufficiently authorized to be binding upon the American Car & Foundry Company?

Under the first of these propositions it is argued that when the attorney sent the letter he was not presenting a claim under the compensation law, but had in mind liability under the common law for negligence. Under the second proposition it is urged that the power ■of attorney did not take effect until after the six months had expired, and that, as the claimant could not file a claim at that time, she could not ratify what has been done before. It is also claimed that the power of attorney related to the future, and not to what had already been done. Counsel for appellant admit that the propositions involved in this case are new and therefore undecided.

It may be helpful to quote in full the letter which was sent:

“Detroit, Mich., May 22, A. D. ’13.
“American Car & Foundry Co.
“Gentlemen:
“Joseph Posternack, who resides at No. 621 Palmer Ave., this city, informs me that his brother-in-law was killed while working in your employ about 1 p. m. Wednesday, May 21, A. D. 1913.
“He claims that his brother-in-law, whose name is Joseph Matfechuck was working on an electric drill, that the electric wires were not properly insulated and that the wires were lying in water, that owing to that fact that when this man came in contact with the wires, he received a shock through his body which finally caused his death.
“This man is married, and his wife and four children are living in Poland, and are and were dependent on him for their support and maintenance. If you care to offer a reasonable compensation in settlement, there is no doubt that it will be considered.
“Awaiting an immediate reply, I remain,
[Signed] “Daniel L. Minock.”

The record discloses that the claimant was advised of the death of her husband. It does not appear whether she was advised of the sending of the letter just quoted. On October 28, 1913, she executed before a notary public a formal power of attorney authorizing her brother Joseph Postinack to look after her claim growing out of the death of her husband. The concluding part of the power of attorney reads as follows:

“Said Mary Matwiczuk hereby consents to and agrees with everything that said Joseph, son of Michael Pasternak, her duly appointed attorney in fact, or his duly selected attorneys, may legally do or perform, and she further ratifies any of their actions.”

By due course this power of attorney reached her brother, Joseph Postinack, though not until more than, six months after the death of her husband.

We may now consider the compensation law (Act No. 10, Pub. Acts 1912). The provisions of the compensation law applicable are section 15 of part 2, which reads:

“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same,” etc.

And section 16, which reads:

“The said notice shall be in writing, and shall state in ordinary language the time, place and cause of -the injury, and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf.”

Section 18 provides:

“Want of such written notice shall not be a bar to proceedings * * * if it be shown that the employer had notice or knowledge of the injury.”

See, also, Purdy v. City of Sault Ste. Marie, 188 Mich. 573 (155 N. W. 597), in which an opinion was handed down this term.

It is clear that what was done gave the employer notice of the injury, thus affording an opportunity for a full investigation. It also gave notice of who were, dependents. We think it is also clear that the company was informed that the brother-in-law, by employing the attorney who wrote the letter giving this information, was seeking to protect the interests of the widow and minor children, who were in Poland, and the inference follows almost as of course that a claim was urged in their behalf, growing out of the' death of the husband and father. The language of the statute indicates that the notice and claim might be' in ordinary language, and might be signed by dependents “or by a person in their behalf,” and what would be more natural than to assume that a brother of the widow in her absence would act for her.

What was done gave to the employer every opportunity to investigate the accident, and knowledge of all material things relating thereto, as fully as though an application had been made in a formal way by the widow upon the day when the letter was written. The next day after the injury the employer was notified of it, the result of it, the time and place and cause of its happening, and of the persons who were dependent. This notice was given, not by an outsider, but through the agency of the brother-in-law of the deceased, the brother of the widow. What was done was notice of a claim by the deceased’s dependents, made by a person in their behalf. We think it too technical to say that a notice and claim made within 24 hours after the accident, caused to be given, as in this case, in behealf of the widow, who could not make the claim herself, because of the distance from where she lived, which action was ratified by her on being advised of the situation, must fail because the ratification did not reach this country within 6 months from the time of the accident. To so hold would not be according to the letter or the spirit of the employers’ liability Act.

The action of the Industrial Board is affirmed.

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


author: Bird, J.

text:
    COOK v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Death — Master and' Servant — Liability for Torts — Negligence.
    Where defendant’s special officer, empowered to police its yards and prevent any one from stealing freight or damaging property, to look out for suspicious characters and to put out persons who were not in the yards on business, was suddenly seized by two men, who seemed to him to be a couple of intruders that he had expelled on the previous day, and who had threatened him with .violence, so that he was excited and lost his head, and shot both assailants, who proved to be acquaintances of the officer, and not the parties he supposed them to be, the right of decedent to recover for the alleged reckless or negligent act of the officer of defendant railway company depended on whether he acted in self-defense only, or in the performance of his duties, having in mind the purpose of protecting his employer’s property.

    2. Same — Questions for a Jury.
    It could not be decided, as a matter of law, which intent actuated the employee in firing upon the persons who assaulted him; the question was one of fact and should have “been submitted to the jury.
    3/ Same — Authority to Eject — Resbondeat Superior.
    Any act done through lack of judgment, discretion, or from infirmity of temper or under the influence of passion, somewhat beyond the strict line of the servant’s authority, is chargeable to the master, and the law will not undertake to fix with precision the line that distinguishes the act of the servant from the act of the individual; so that if in the discharge of his duties the employee lost his head and exceeded the force that he was authorized to use, the defendant was liable.

      4. Same — Evidence—Witnesses—Servant of Defendant.
    A servant and agent of defendant railroad company, called for cross-examination under Act No. 307, Pub. Acts 1909, might be contradicted by tbe plaintiff, as if defendant bad called tbe witness in its own behalf.
    Error to Wayne; Hosmer, J.
    Submitted April 14, 1915.
    (Docket No. 31.)
    Decided December 22, 1915.
    Case by Esther M. Cook, as administratrix of the estate of Frank J. Cook, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed

      Frederic T. Harward (John J. Gafill, of counsel), for appellant.

      J. W. Dohany (Frank E. Robson and Henry Russel, of counsel), for appellee.

      On master’s civil responsibility for the wrongful or -negligent act of his servant or agent towards one who has no claim upon the master by reason of a contract incipient or perfected, see note in 27 L. R. A. 161.

   Bird, J.

In the early evening of August 11, 1911, William Burnett shot and killed Frank J. Cook and Daniel Vreeland in the Michigan Central freightyards in West Detroit. Burnett was a special officer or night watchman for the Michigan Central, and Cook and Vreeland were employed in a like capacity for the Lake Shore & Michigan Southern Railway Company, whose yards lie immediately north of and parallel with the Michigan Central yards, in the vicinity of Junction, Campbell, and Livernois avenues. Cook and Vreeland had entered the Michigan Central yards at Campbell avenue and were crossing them to reach their beats in the Lake Shore yards when the shooting occurred. Burnett’s excuse for shooting them was that he mistook them for two suspicious characters whom he had driven out of the yards by force on the previous evening. The wife of Cook, as administratrix of her husband’s estate, brought this suit against the Michigan. Central to recover for the negligent killing of her intestate.

As there were no eyewitnesses of the shooting save Burnett, he was called by plaintiff for cross-examination under Act No. 807, Pub. Acts 1909. At the close of plaintiff’s proofs, the trial court directed a verdict for the defendant, on the ground that it had not been made to appear that Burnett was acting within the scope of his employment at the time of the shooting. It was the claim of the defendant that Burnett’s act was one purely of self-defense.

1. To determine whether the trial court was wrong in its position, it will be necessary to consider somewhat in detail the material facts attending the shooting, and also the duties and authority of Burnett. Burnett testified that it was his duty “to look after the yard in general to see that no one molested any of the cars, to see that no one took anything out of the yards, except by proper authority, and to see that no suspicious characters whatever were loafing around in the yards, to find out every person’s business who seemed to be suspicious in the yard, and, if they had no business in there, to put them out.” He further testified that Mr. Dwyer, his senior officer, who hired him, instructed him that he was to be “special officer in the yard, to patrol the yard, to examine the cars to see whether the seals were broken or not, to see that no one broke into the cars and stole things, and to keep characters or people who had nothing to do with the railroad company off the property; yes, and to look after the railroad property in general.” Burnett’s version of the affair was that, while he was walking between two rows of freight cars about three feet apart, standing on the yard tracks just south of the main line, these two men came out from the end of a car about six inches ahead of him and took hold of him. That one took hold of his neck and one his arm, and began to tussle with him. Beyond this he does not make it clear what they attempted to do' with him. He further says that they did not try to strike, him, nor did they hurt him, nor did they say anything, except, “We have got you now, old Pal;” that, so far as he knew, they carried no firearms; that he thought they were two men whom he had ejected from the yards in a rough manner the night before at nearly the same place; that without giving them any warning or show whatever, he fired. He aimed at their hearts and shot to kill. They were only about three feet away when he fired. He was armed with an automatic Smith & Wesson revolver, capable of shooting five times. It was dark, and he could not distinguish faces. He had met Cook and Vreeland before and knew they were special officers of the Lake Shore. He admitted that he was rattled and “kind of lost his head.” He claimed he was acting in self-defense.

That the master is liable for the negligence of a servant while acting as such and within the scope of his employment, is a proposition of law that is recognized, by both parties. The variance between counsel arises and the difficulty begins when an attempt is made to apply the rule to the facts of the case. It is contended by plaintiff that at the moment of the shooting Burnett was acting within the scope of his employment. Defendant insists that he was not so acting, but was engaged solely in an act of self-preservation. The test in such cases appears to be: Did Burnett at the time have in mind the furtherance of his master’s business ? If he did, then the master is liable, whether the act was done negligently or recklessly. If he did not have in mind the furtherance of his master’s business, but only his own self-preservation, then the master is not liable. Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250); Layne v. Railway Co., 66 W. Va. 607 (67 S. E. 1103); Magar v. Hammond, 183 N. Y. 387 (76 N. E. 474, 3 L. R. A. [N. S.] 1038); Fleming v. Knitting Mills, 161 N. C. 436 (77 S. E. 309).

In getting at the viewpoint of Burnett, I think we should assume that the parties killed were the suspicious characters whom he had driven from the yard the previous night. And we must assume that Burnett, in doing what he did was actuated by no malice. He says that certain car' seals had been broken and some merchandise taken therefrom, and that he suspected these parties of having done the work, and therefore he forcibly ejected them from the yard. When leaving, they made certain threats against him. They reappeared (as he thought) the second night. They came upon him so suddenly that he had no time to drive them out as he had done on the previous night. He struggled with them for not to exceed 21/á minutes before he fired. During that time did Burnett have in mind to drive them out again, as he had on the previous night? Did he still believe they had evil designs on his master’s property? Did he have in mind his duty to his master to care for its property as well as his own self-preservation? And would, he have fired on them had it not been for his authority as a special officer and as guardian of his master’s property? Or was he unmindful of all these things, and engaged in the struggle solely as an act of self-preservation? These are questions which we cannot answer. They are questions of fact which ought to be determined by a jury. Sharp v. Railroad Co., 184 N. Y. 100 (76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250); Layne v. Railway, 66 W. Va. 607 (67 S. E. 1103); Magar v. Hammond, supra; Fleming v. Knitting Mills, 161 N. C. 436 (77 S. E. 309); Heenrich v. Car Co. (D. C.), 20 Fed 100; Redding v. Railroad Co., 3 S. C. 1 (16 Am. Rep. 681); Winoker v. Warfield, 136 Ga. 742 (71 S. E. 1051); Barden v. Felch, 109 Mass. 154; Rounds v. Railroad Co., 64 N. Y. 129 (21 Am. Rep. 597); 1 Thompson on Negligence, § 615; Bouwmeester v. Railroad Co., 67 Mich. 87 (34 N. W. 414). The testimony was such that the jury might have found either way, that he did or did not have in view his master’s business.

Much reliance is placed by defendant upon the case of Holler v. Ross, 68 N. J. Law, 324 (53 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546), which is somewhat similar on the facts, to show that the question of the master’s liability was one for the court, and not for the jury. The principal difference in the facts of that case and the present one is that the servant in the case cited had no authority to drive any one from the dock. The dock did not belong to his master. The servant’s only duty was to guard his master’s property located upon the dock by permission. In the present case the yards were owned by the master, and Burnett had been authorized to eject certain classes of persons therefrom. These facts in the case cited sustaining the distinction evidently had much weight with Mr. Justice Fort in reaching the conclusion which he did, that it was a question for the court, as he mentions them and comments thereon. One of his associates, Mr. Justice Pitney, dissented. But, even if the present case cannot be distinguished on the facts from the case cited, I am of the view that the facts in the latter one should have been submitted to the jury under the reasoning of the cases heretofore cited.

2. But it is contended that Burnett exceeded his authority given him by the defendant, and that in shooting the men he was acting in pursuance of some purpose of his own. It appears from the testimony that Burnett was placed in the yards and instructed to do certain things, namely, to put stragglers, suspicious persons, and persons having no business with the company out of the yards. He was authorized to eject such. people from the yards, but no instruction was given him as to how much force he should use or in what way he should use it. Much was left to his discretion to decide when and under what circumstances persons were to be ejected and how and in what manner they were to be ejected. Under such authority, if in the discharge of his duty he “kind of lost his head” and went further and used more force than he was authoxized to use, the master is liable. Rounds v. Railroad Co., 64 N. Y. 129 (21 Am. Rep. 597); Howe v. Newmarch, 12 Allen (Mass.), 49; Robards v. Pipe Co., 130 Ky. 380 (113 S. W. 429, 18 L. R. A. [N. S.] 923, 132 Am. St. Rep. 394).

In the last-mentioned case the rule was stated to be that:

“The master who puts the servant in the place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.”

It was further said in this connection that:

“Furthermore, the law, under such circumstances, will not undertake to make any nice distinctions fixing with precision the line that separates the act of the servant from' the act of the individual. When there is doubt, it will be resolved against the master, upon the ground that he set in motion the servant who committed the wrong.’

See, also, South Covington, etc., R. Co. v. Cleveland, 100 S. W. 283, 30 Ky. Law Rep. 1072, 11 L. R. A. (N. S.) 853; New Ellerslie Fishing Club v. Stewart, 123 Ky. 8 (93 S. W. 598, 9 L. R. A. [N. S.] 475; 1 Thompson on Negligence, §§ 554-563.

3. We think plaintiff was entitled to contradict the witness Burnett, either by himself, or by other witnesses. Act No. 307, Pub. Acts 1909, gives the party calling the witness the same rights in that respect as it would had defendant called the witness in its behalf.

In view of the conclusions reached, the judgment must be reversed, and a new trial ordered.

Stone, Moore, and Steere, JJ., concurred with Bird, J.

Brooke, C. J., and Kuhn and Ostrander, JJ., concurred in the result.

The late Justice McAlvay took no part in this decision.


author: Person, J.

text:
    OTTO v. ANN ARBOR RAILROAD CO.
    Railroads — Contributory Negligence — Crossings—Animals.
    The failure on. the part of a boy driving across a railroad track to look for a car, after he had reached a point 90 feet from the rails, barred a recovery for a horse killed, where he looked in one direction and then devoted his attention to the other side, and if he had turned to look again within 70 feet of the crossing he might have seen the approaching car, and where he was 12 years of age and knew the nature of the danger, etc.
    Error to Washtenaw; Kinne, J.
    Submitted October 8, 1915.
    (Docket No. 27.)
    Decided December 22, 1915.

      Case by Gustavus Otto against the Ann Arbor Railroad Company for the negligent killing of a horse. Judgment for plaintiff. Defendant brings error.
    Reversed ; new trial denied.

      Alexander L. Smith and Gustavus Ohlinger, for appellant.

      Arthur Brown (E. R. Sunderland, of counsel), for appellee.
   Person, J.

In the township of Northfield, in Washtenaw county, the tracks of the Ann Arbor Railroad Company run in a northerly and southerly direction across a public highway running east and west, known as the Nannery road. On the afternoon of September 5, 1914, a horse owned by plaintiff, while being driven by plaintiff’s son, Lawrence, was struck by one of the so-called gasoline cars operated on defendant’s road and injured to such an extent that it had to be killed. This action is brought to recover the value of the horse.

The boy was approaching the railroad track from the west, and was very familiar with the crossing; his home being in the near vicinity. When he had come to within from 90 to 100 feet of the crossing, he slowed his horse down to a walk and looked north, but without seeing any car in that direction. ■ He continued to approach the track, but from that time on confined his attention entirely to the south side of the highway. On that side the view was obscured by a field of standing corn and other obstructions, so that a car coming from the south could not be seen until the traveler had reached the railroad right of way. The boy says that it was because of these obstructions that he gave his attention entirely to the track on the south side. The car that struck the horse came from the north, and was not noticed by the boy until it had reached the cattle guards north of the highway. It was then too late to prevent the horse from going upon the railroad track. The car hit the horse on the left front shoulder and broke its left front leg. From the point where the boy looked north, about 90 or 100 feet west of the railroad track, the view was somewhat obscured by trees and a fence with vines growing upon it; but, if the boy had again looked towards the north at any point within 70 feet of the track, the approaching car could have been plainly seen. On the railroad grounds, 40 rods north of the highway, was the whistling post, and a short distance beyond that the track went into a cut some 8 to 10 feet deep. South of the whistling post, and between that and the highway, was another shallower cut, but the car on the railroad track could have been plainly seen at any point within '30 rods of the highway.

The negligence charged against the defendant company was the failure of its servants to give warning of the car’s approach by either sounding the whistle or ringing the bell; and this negligence was fully substantiated by the evidence, inasmuch as the defendant offered no proofs at the trial. The defense insisted upon is that the boy was guilty, upon his own showing, of contributory negligence in going upon the track without again looking north before doing so; and the court was requested to instruct the jury to that effect. This was refused; and the jury gave the plaintiff damages to the amount of $250.

The instruction requested should have been given. It is true that this boy driving the horse was some 3 months under 12 years of age; but from his own testimony it is clear that he understood the dangers in crossing the railroad track as well as any adult would have understood them. He lived nearby, and had made this crossing frequently, not only on foot, but driving as he was this day. He knew fully the necessity of watching for an approaching car, and did, indeed, look towards the north for one, when 90 or 100 feet west of the crossing. The fact that the view to the south was obscured was not a sufficient reason for his failure to cast his eyes again to the north before going upon the track. Had he done so at any point within 70 feet of the crossing, he would have seen the car. His horse was going but little more than 2 miles an hour, was in no fear of the car, and could have been safely stopped almost instantly. From where he did look north, back some 90 or 100 feet, judging by the comparative rates of speed at which the horse and car were going, as shown by the testimony, the latter must have been in, or close to, the deeper cut that has been mentioned. At any rate there were obstacles hiding the view of the car when it was more than 30 rods north of the highway. It was certainly negligence, under the circumstances, for the boy not to look again before getting into a place of danger. The rule, as applied to children, has been so lately and so fully discussed by this court as not to require repetition here. Mollica v. Railroad Co., 170 Mich. 96 (135 N. W. 927); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535); Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271); Henderson v. Railway Co., 116 Mich. 368 (74 N. W. 525).

Judgment must be reversed, and no new trial ordered.

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


author: Bird, J. Ostrander, J.

text:
    MICHIGAN STATE BANK OF EATON RAPIDS v. KERN.
    1. Husband and Wife — Deeds—Estates by the Entireties — Estates in Common.
    A deed executed by a husband to himself and his wife creates a tenancy in common, and not one by the entireties.
    2. Execution — Husband and Wife — Estates in Common.
    The interest of a tenant in common is subject to levy and sale upon execution. 3 Comp. Laws, § 9167.
    3. Fraudulent Conveyances — Execution—Remedies — Equity— Homesteads.
    Where complainant’s bill to set aside a conveyance by a debtor husband to himself and wife was filed on the theory that said conveyance created a tenancy by the entire-ties and was in fraud of creditors, and it does not clearly appear that the husband’s interest in the estate in common which was thereby created is sufficient to satisfy the judgment and costs, the bill will not be dismissed, but in case the husband’s interest in the property is insufficient to satisfy the judgment, complainant may proceed to sell the remainder thereof, except the homestead rights.

    Appeal,from Barry; Smith, J.
    Submitted October 15, 1915.
    (Docket No. 103.)
    Decided December 22, 1915.
    Bill in aid of execution by the Michigan State Bank of Eaton Rapids against George W. Kern and Nettie A. Kern. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      JosephB. Sendee (Thomas Sullivan, of counsel), for complainant.

      Colgrove & Potter, for defendants.

      On creation of tenancy by entireties by conveyance to spouses, one of whom already had an interest in the land or other subject matter, see notes in 30 L. R. A. 325, 25 L. R. A. (N. S.) 167.

   Bird, J.

Defendant George W. Kern purchased a stock of general merchandise from one Guy Rueter, in Onondaga, Ingham county, in March, 1911, for the sum of $4,700. He paid Rueter $2,700 in cash, and gave him his promissory note payable in one year for the balance of the purchase price, amounting 'to $2,-000. Subsequently Rueter sold the note before due and for value to complainant. When the note became due, Kern refused to make payment. Suit was instituted by complainant, and a judgment for damages and costs was obtained against defendant George W. Kern for $2,043.10. An execution was taken out and levied upon certain real property situate in the village of Delton, Barry county, the title to which stood in the names of Kern and his wife. This bill was then filed in aid of execution seeking to have the conveyance set aside as having been made in fraud of creditors. The chancellor granted the relief prayed, and defendants have appealed therefrom to this court. They insist that complainant has failed to establish the fact that the transfer of the real estate was fraudulent as to creditors.

It appears that the real estate involved consists of lots 14, 15, and the south half of lot 13 in the village of Delton; the improvements thereon are three store buildings and a dwelling; that the title thereto stood in the name of George W. Kern at or about the time the indebtedness was incurred; and that it was after-wards conveyed by the ordinary form of warranty deed by George W. Kern to himself and Nettie, his wife, and so recorded. Complainant concluded that this action upon the part of defendant Kern placed the legal title of the realty beyond the reach of an execution creditor, and for this reason it seeks in this action the aid of a court of equity.

It has recently been held by this court that such a deed creates a tenancy in common, and not one by the entirety. Wright v. Knapp, 183 Mich. 656 (150 N. W. 315). See, also, Pegg v. Pegg, 165 Mich. 228 (130 N. W. 617, 33 L. R. A. [N. S.] 166, Am. & Eng. Ann. Cas. 1912C, 925). After the deed took effect, George W. Kern became a tenant in common with his wife, Nettie. His interest as tenant in common was subject to levy and sale upon execution. 3 Comp. Laws, § 9167.

In view of the fact that the case has been heard and determined on the chancery side of the court, and in view of the further fact that it does not clearly appear from the testimony that the separate interest of George W. Kern in said property, after deducting the homestead interest, is of a value sufficient to satisfy the judgment and costs, complainant’s bill will not be dismissed.

The sheriff of Barry county will be advised to proceed to sell the undivided one-half interest of George W. Kern in the premises levied upon, excepting therefrom the homestead interest of defendants, and should insufficient funds be realized upon the sale thereof to satisfy the execution,. the complainant may proceed to sell the remainder thereof, except the homestead. Defendants will recover their costs in this court.

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

Ostrander, J.

(concurring). The bill is clearly one in aid of execution, the theory indicated therein being that the deed of March 22, 1911; whatever its legal effect, was made in fraud of creditors. There is testimony supporting the conclusion announced by the circuit court, namely, that the conveyance was made without consideration and for the purpose of defrauding creditors. This conclusion of fact supports the conclusion of law that as to complainant the deed is without force or effect. Of course, this conclusion does not disturb a homestead interest in the property, if such an interest exists. It simply results in permitting the execution creditor to proceed as though the fraudulent conveyance had not been made.

It turns out, as my brother Bird has pointed out, that the conveyance in question, intended obviously to create an estate by entireties in all of the property described therein, operates to create an estate in common in the judgment debtor and his wife. There is an interest of the debtor which may be reached by execution, whether the deed is or is not set aside. My brother Bird is therefore of opinion that the decree ought to be reversed and the bill dismissed.

I do not think it is clear that a sale of an undivided half interest in the property, exclusive 'of the homestead, will make complainant’s debt and expenses. The testimony leaves the point uncertain. Assuming the conveyance, the validity of which is attacked, to be fraudulent as to complainant, there is no good reason for refusing to set it aside, limiting the creditor to a sale of an undivided interest in several parcels of property, and inviting a further possible application to the court. It must be kept in mind that the bill in this cause was filed July 10, 1912. At that time it was at least debatable whether the form of the conveyance attacked was not sufficient to create an estate in joint tenancy in defendants. See the cases cited in Mr. Justice Bird’s opinion. There was propriety in filing the bill in this cause, in aid of execution, it appearing that the title to the property appeared to rest in a husband and wife. It is my opinion, therefore, that the decree should be affirmed.

One has only to examine Green v. Burghardt, 187 Mich. 136 (153 N. W. 667), to see that it has no application to the state of facts we are now considering. In that case, a court of equity was asked to take over for trial and to determine issues of fact already joined in an action of replevin. There was also another reason for refusing equitable jurisdiction.

The decree should be affirmed, with costs to appellee.

The late Justice McAlvay took no part in this decision.


text:
    McPHERSON v. WESTERN UNION TELEGRAPH CO.
    1., Telegraphs and Telephones — Nondelivery oe Message — Directed Verdict — Damages.
    In an action for damages for the loss of a contract of employment, alleged to have been caused by defendant’s failure to forward a message to plaintiff on board a steamer at M., where the evidence shows that plaintiff did not arrive at M. till the following’day, which was Sunday, and the steamer remained in port Sunday and Monday, and that a delivery on Monday would have enabled plaintiff to secure the position, defendant was not entitled to a directed verdict for the reason that plaintiff was not at M. on Saturday to receive the message had it been forwarded.

    2. Same — Damages—Contract oe Employment.
    Where the proposed contract of employment was definite as to salary and term of employment, and the evidence shows that the employer was desirous of engaging plaintiff and plaintiff was desirous of securing the position, it was sufficiently definite in its terms to furnish a basis for recovery, notwithstanding it gave the employer the right to discharge plaintiff for a violation of the rules, and plaintiff had the right to leave before the end of the term if he chose to do so.

      Error to Wayne; Mandell, J.
    Submitted January 7, 1915.
    (Docket No. 20.)
    Decided December 22, 1915.
    Case by Russell R. McPherson against the Western Union Telegraph Company for damages for failure to forward a message. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and Benj. S. Pagel, for appellant.

      A. Ward Copley, for appellee.

      Generally, on the right of addressee of telegram to sue for delay in delivery, and damages recoverable, see note in 30 L. R. A..(N. S.) 1116.

   Bird, J.

Mr. F. D. Root, of Sault Ste. Marie, sent to plaintiff, at Detroit, a telegram via defendant’s wire, reading:

“Do you want to sail the tug Thompson? If so, wire at once and when you leave?”

The telegram arrived in Detroit between 9 and 10 o’clock on the morning of June 15, 1912. Plaintiff’s dwelling was called by phone, his mother answered, and agreed to and did accept the message. Upon reflection it occurred to her that the message should be forwarded to plaintiff at once, so she called the defendant on the phone, and inquired if the message could be forwarded to plaintiff, and the reply was that it could be. She thereupon directed defendant to send it to plaintiff at Milwaukee, Wis., in care of the “Steamer Wisconsin,” with the further direction “to be sure and send the message, because it meant a lot to my son.” Instead of forwarding the telegram as agreed in the regular way, through some oversight, it never left the Detroit office. Plaintiff had no knowledge of the offer of employment until his boat, the “Wisconsin,” passed Detroit on its way down on June 22d, when he received through the marine post office a letter from his wife informing him that'a position had been offered him at the Soo. Upon obtaining this information he at once resigned his position on the Wisconsin and came ashore. Later he learned that the place offered him by Root had been filled by another. He then accepted employment on another boat for the balance of the season at a much less salary than that offered by Root, and this suit was instituted, counting upon defendant’s negligence, to recover compensation. Judgment passed in his favor in the sum of $487.

1. Appellant takes the position that a directed verdict in its behalf should have followed the conclusion of the proofs, because it was made to appear thereby that plaintiff was not at Milwaukee on June 15th to receive the telegram, had the same been sent in due course of business. It appears that the Wisconsin, instead of arriving at Milwaukee on Saturday the 15th, did not arrive there until early Sunday morning, June 16th, and that she lay in port the 16th and 17th.

The telegram was tendered to and accepted by de^ fendant at Detroit. No further or other address was requested than the one given. It was advised at the time of its acceptance that plaintiff was aboard the steamer Wisconsin, and it thereby became its duty to employ such means to effect its delivery as is usual in making delivery of telegrams addressed to persons en route on railway and steamship lines. The delivery of such telegrams is usually attended with more difficulty than those addressed to persons at their homes or business places. Had the telegram gone forward in due course, defendant’s Milwaukee agent would have doubtless made the usual effort to deliver it, and, had he done so, it is quite likely that it would have resulted in his obtaining information when the steamer Wisconsin would arrive, and where she would dock. It appears to be assumed that, if the telegram had gone forward on Saturday, it could have been delivered had plaintiff been there to receive it. If this be so, and the telegram could have been delivered to the steamer Wisconsin on Saturday, had sne been there, no good reason suggests itself why it could not have been delivered at the same place on Monday morning when she was there; A delivery as late as Monday morning would have enabled the plaintiff to secure the position by wire. At any rate, whether it could have been delivered was a question which was within the province of the jury.

2. The further contention is made that, if plaintiff was entitled to recover, he was entitled to recover nominal damages only, because his contract was uncertain and did not provide for a definite or fixed term of employment. The plaintiff testified that:

“It was customary to continue a sailor in the occupation during the year until the close of navigation, if he is satisfactory.”

Frank G. Root testified as follows:

“I am local manager for the Thompson Wrecking Association and live at Sault Ste. Marie. I have held that position since the spring of 1902. I have known Russell McPherson, of Detroit, since.the spring of 1902, he worked for me. I sent him a telegram in June, 1912, asking him if he wanted to sail the tug Thompson, and if he did to wire me at once. We knew we would have to pay him $125 ($135) a month and his employment would last as long as we wanted to keep that tug in commission. * * * I would not say positively, but I think we kept that tug in commission until the last of November, or something like that.”

Cross-examination:

“Q. Was Mr. McPherson’s employment to be by the month?
“A. No, as long as we could keep the tug in operation and he give satisfaction.
“Q. As long as he gave satisfaction ?
“A. As long as we wanted to use him.
“Q. Were you employing him as long as he was to give satisfaction?
“A. As long as we kept the tug in commission.
“Q. You also said you employed him as long as he gave satisfaction?
“A. He gave satisfaction, yes.
“Q. If he had reported to you on Monday, the 19th day of June, 1912, and had gone to work as captain, and during that week he had done something which you considered a breach of the rule for which you wanted to discharge him, could you have discharged him?
“A. I certainly could. We got a captain for the tug, I think, on the evening of the 17th, and he went to work that evening at 6 o’clock.
“Q. The wage of $135 per month was not payable in advance, was it?
“A. No.
“Q. The man had to complete four weeks’ work before he was entitled to his $135?
“A. No, we paid them every two weeks.
“Q. You paid the men every second week?
“A. Yes, sir.
“Q. They had to complete two weeks before they were entitled to anything?
“A. If he wanted to leave us he could demand pay and we would have to pay him any time.
“Q. For the time he worked up to that time?
“A. Yes, sir.
“Q. Sometimes it happens that a man leaves the middle of the season to go to another position?
“A. The fellow left this boat and that is why 1 wanted to get Russell to take his place.”

From the testimony of these two witnesses, it fairly appears that the contract which they had in mind was that plaintiff should be employed to sail the tug Thompson for the balance of the season at a salary of $135 per month if he gave satisfaction, with the privilege to the employer to discharge him for a violation of the rules, and with the privilege to the employee of leaving before the end of the season if he chose to do so. The chief point raised against this contract was that it was at the will of the employer, and therefore too uncertain upon which to base an action of damages. We do not take this-view of it. In the event that plaintiff gave satisfaction he was entitled to work during the balance of the season of navigation, which in the season of 1912 was about the first of December. Had the manager discharged the plaintiff for any reason except a violation of the rules, or because he was not satisfactory, his company would have been liable in damages therefor. The contract gave the employer the right to discharge him if he violated the rules; but we cannot assume that the plaintiff would have violated the rules, nor can. we assume that he would have voluntarily left before the end of the term, it being an employment which he was anxious to secure. The salary was definite, the term of employment was definite, Root was desirous, of employing plaintiff, and plaintiff was desirous of securing the position, and he testified that, if he had received the telegram in season, he would have accepted the position. We think a contract was. contemplated which was sufficiently definite and certain in its terms to furnish a basis for recovery. For a case very similar on the facts and questions raised, see Western Union Telegraph Co. v. Fenton, 52 Ind. 1. See, also, Robinson v. Telegraph Co., 169 Mich. 503 (135 N. W. 292).

Taking this view of the contemplated contract, it will be unnecessary to consider the other assignments of error.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.