text:
    STARBARD v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    Railroad Companies — Person on Track — Gross Negligence.
    Where, in an action against a railroad company for causing the death of plaintiff’s intestate, it appeared from the undisputed testimony of the engineer and fireman of defendant’s train that they gave proper signals of warning when they saw decedent on the track some distance ahead of the train, and that he, in apparent recognition of the signals, made a movement as if to step out of the way, but resumed his position of danger too late to permit of the train’s being stopped in time to avoid striking him, it was error to permit the jury to find a verdict for plaintiff upon the theory that the failure to stop the train in time was due to the wanton and willful negligence of defendant’s servants.
    Error to'Kent; Adsit, J.
    Submitted October 24, 1899.
    Decided November 22, 1899.
    Case by Jennie M. Starbard, administratrix of the estate of Melvin Starbard, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company, for the alleged negligent killing of her intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      JE. W. Meddaugh (Geer & Williams, of counsel), for appellant.

      John M. Mathewson (Maher & Salsbury, of counsel), for appellee.
   Long, J.

July 16, 1896, the deceased was struck and killed by a train on defendant’s road. This action is brought to recover damages on the ground that defendant’s servants were guilty of gross negligence in not giving him warning of the approach of the train. It appears that the deceased was walking on the defendant’s track, about 12:30 p. m. of that day, near Lowell station. He lived a little east and south of where he was killed, had lived there about six years, and was familiar with the surroundings. He came upon the track near what was called the “County-Line Road,” and had walked west between the rails about 100 rods before he was struck. The track was straight, and he could easily have seen the approaching train if he had looked. . He was an able-bodied man, in full possession of all his faculties. The engineer testified that he blew the whistle for the County-Line crossing about 80 rods east of it; that he blew the whistle for the Lowell station as he passed over the County-Line road, which is a trifle over a mile east of the station, and continued to ring the bell; that, soon after crossing the County-Line road, he saw deceased between the rails, walking in a westerly direction; that, when the train was within about 300 feet of him, he blew the alarm whistle, and deceased stepped to the right "side of the track, and he supposed he would step off, and for this reason did not slacken the speed of the train; that, when the train was within about 10 rods of deceased, he suddenly stepped to the left, and he (the engineer) immediately shut off steam and applied the air brakes and stopped the train, but that it had gone over deceased before the train could be stopped; that he did not see deceased look towards the approaching train, but did see him step to the right side of the track, and, from this movement, supposed he was aware of its approach, and that he would step off in time to avoid injury. This testimony was fully corroborated by the fireman.

The only witnesses who were examined on the part of the plaintiff in relation to the giving of the signals, and when they were given, were Wheeler Hull, Claude West-brook, and Albert Bell. Mr. Hull testified that he heard the signals given for the County-Line crossing, which was about 130 rods east of where he then was, — at a barn, doctoring a horse. He saw deceased on the track just-east of where he was struck. Witness also heard the danger signals, and saw the train go by. His back was towards the train, and he was unable to locate where the train was when the alarm whistles were given; and he says he supposed deceased had stepped off .the track until the train had stopped. Witness said'further: “ I did not then hear them give the station signal. I was not paying attention. I did not hear it at all. I do not say that they did not give it.” Mr. Westbrook testified that he saw deceased come onto the railrpad track at the county line, and he observed him walking down the track towards him; that witness heard the signals given for the County-Line crossing; that he also heard the danger signals, but could not state how far the engine was from deceased when they were given; that he did not hear the station signal; that a portion of the time he was watching Mr. Bell, who was coming across the field. Witness testified further:

“I would he something like 56 or 57 rods west of the King crossing. Looking at the train, I could not tell accurately how far the train was east of Starbard when it gave those signals. * * * I listened when it gave those signals. I went up to the engineer, and told him I thought he made noise enough there. I meant by that I thought the deceased ought to have got off the track. I referred to the alarm whistles.”

Mr. Bell testified:

“I did not hear the train whistle after it passed the county line, not until it blew the danger whistle, when it was just a few feet from him. * * * The first thing that attracted our attention was the alarm whistle. The train was then east quite a little way. After hearing the alarm, we just looked up that way, and saw the man. It gave three or four sharp whistles, the same as for stock or anything on the track. * * * So that, not looking, I could not designate the distance between the man and the train at the time the whistles were given.”

"This last witness was examined at the coroner’s inquest, and on the trial admitted that he there testified that he thought the train was four, five, or six rods from deceased when the alarm whistles were given. He was then asked:

“ That was your best judgment at that time?
“A. Yes, sir.
Q. And you think so now?
“A. Yes.”

Counsel for defendant, at the close of the testimony, asked the court to direct a verdict in favor of defendant. This was refused, but the court directed the jury that the deceased was a trespasser on the defendant’s right of way, and was negligent in his conduct in walking on the track, and not giving heed to the. approaching train, and that ‘ ‘ only defendant’s alleged recklessness, wanton and willful conduct on the part of the engineer, can overcome against the negligence of the deceased.” The court then charged the jury:

“If you find that the deceased, Melvin Starbard, lost his life because the defendant’s train was wantonly, willfully, or recklessly run upon him, with knowledge that he was ignorant or unconscious of his dariger, without the giving of signals or warning until it was too late for him to get to a place of safety, the plaintiff is entitled to recover.
“If you find that the engineer in charge of the train by which Starbard was struck and killed had good reason to believe that Starbard was unconscious of the danger to which he was exposed, and gave no warning signals until it was too late to stop the train before it struck Starbard, and too late for him to escape the danger, then the plaintiff is entitled to recover. ”

This charge was not warranted, under the undisputed evidence in the case. The testimony of the engineer, corroborated by that of the fireman, is not disputed, upon this record, that the station signal was given at the County-Line crossing; nor is it disputed that, some four, five, or six rods before the deceased was struck, the danger signals were given; so that the deceased had sufficient warning of the approach of the train, but, for some unexplained reason, continued to keep along the track. If he heard' the signals, or the approach of the train, it was his. duty to move off the track. If he did not hear them, he was negligent in that respect, for it plainly appears that they were given, not only for the County-Line crossing, but also at the County-Line crossing for the station, and again given as a warning to the deceased. There is no evidence in the case of any gross, willful, or wanton conduct on the part of the engineer. So far as appears from the record, he did all that any prudent person could do to warn the deceased of the approach of the train. He was not called upon to check the speed of the train until he saw that the deceased was giving no attention, and he testifies that, from the movements of deceased on the track, he supposed he meant to step off in time. The engineer had the right, under the circumstances here shown, to believe that the deceased did hear the signals, and would get out of danger. Frost v. Railroad Co., 96 Mich. 470; Bouwmeester v. Railroad Co., 67 Mich. 87; Lyons v. Railway Co., 115 Mich. 114; Redson v. Railroad Co., 120 Mich. 671.

In Johnson v. Truesdale, 46 Minn. 345, the court directed a verdict in favor of defendant. It appeared that plaintiff was walking on the railroad track, between the rails, when he was overtaken, struck, and injured by a train going in the same direction on the same track. He did not hear the bell or whistle, although both were sounded as a warning to him when within 150 to 180 feet distant from him, and afterwards as it approached nearer. He was in possession of all his faculties. He was, however, looking at another engine near him on another track; which was making some noise. The court said:

“The case conclusively showed that the plaintiff was both a trespasser and chargeable with contributory negligence, and hence the defendant is not legally responsible unless the conduct of its servants in the management of the train after they discovered Ips danger was wantonly or willfully negligent. * * * Even if the case shows only want of ordinary care on the part of the defendant’s servants, it would not justify the conclusion that they were intentionally or wantonly regardless of the plaintiff’s safety. All reasonable and proper effort was made to warn him of the approach of the train, which was running at the rate of seven miles an hour. There was no obstacle to prevent him from getting off the track. The defendant’s servants operating the locomotive’ might presume that he was possessed of the ordinary faculties, and that he would heed the signals, and get off the track in time to escape injury; hence they were not required to attempt to stop the train until it appeared to be probable that he would not do so. Erickson v. Railroad Co., 41 Minn. 500. It appears that, when this did become apparent to the engineer, he used all the means in his power to stop. Even if he erred in his judgment as to the probability that the plaintiff heard the signals, and would step aside before the train should reach him, and hence erred as to the time when he ought to have reversed his engine and applied the brakes, there is nothing to warrant the belief that he acted in reckless disregard of the plaintiff’s safety. It is apparent that he tried to warn the plaintiff of the approaching train, and tried to stop the train when he realized the necessity for doing so.”

It is just as apparent in the present case that the defendant’s engineer gave the warning signals as soon as he apprehended the danger the deceased was in, and that he had before that given the signals which the statute requires. In fact, the plaintiff, by her declaration, alleges that —

“They [the defendant’s servants] saw deceased nearly half a mile before the accident. After the engineer knew, or had good reason to know, that deceased was unconscious of the approach of the engine, and did not recognize the peril of his situation and the warnings given, he had ample time, and it was his duty, to stop the train before it overtook said Starbard. ”

The plaintiff therefore did not rest her case upon the claim that no warnings were given in time, but that after such warnings were given, and the engineer saw they were not heeded by the plaintiff’s decedent, there was time then to stop the train and prevent the injury. The testimony most certainly does not sustain the claim.

The court should have directed a verdict in favor of defendant. The judgment must be reversed, and a new trial awarded.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SCHEIBECK v. VAN DERBECK.
    1. Evidence — Letters and Telegrams — Materiality.
    It is not error to exclude from evidence letters and telegrams which merely tend to prove admitted facts, and do not relate to the vital question in controversy.
    2. Contracts — Employment oe Baseball Player — AgencyEstoppel to Deny.
    Where the manager of a professional baseball team referred a player to the captain of the team, with the statement that the captain was his sole manager, and whatever he did “went,” he is bound by a contract for the employment of the player, entered into by the captain on his behalf, whether or not the captain had authority from him to mate it.
    Error to Wayne; Donovan, J.
    Submitted October 25, 1899.
    Decided November 22, 1899.

      Assumpsit by Frank Scheibeck against George A. Van Derbeck on a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George X. M. Collier, for appellant.

      Slomcm & Groesbeck, for appellee.
   Hooker, J.

May 29. Services and labor rendered as per contract

with the defendant-----.------------------$119 28

June .18. Upon express promise of Con Strouthers, captain and manager of Detroit B. B. Club, and agent for the defendant, to pay salary while plaintiff remained physically incapacitated. 170 40

Total--_________________________________$289 68

The defendant filed with his plea a notice of set-off amounting to $76.50. The plaintiff recovered a judgment for $199.51, and the defendant appealed to the circuit. The record states that, upon the trial at circuit, “judgment was duly entered on verdict for plaintiff, on October 25, 1898,” but is silent as to the amount. So, also, is appellant’s brief. The appellee’s brief states that the judgment at circuit was $143.11, and was made up of the first item of $119.28, with interest. He is corroborated in this statement by:

1. A computation.

2. The prcecipe for execution.

3. The charge of the judge, which says that the plaintiff’s claim is $119, with interest, and that the dispute in the case arises over an alleged payment of $75.

4. A request on behalf of the plaintiff that the jury must find a verdict for the plaintiff for $143.11, unless they find that the defendant is entitled to a set-off, and a further request to instruct the jury that there cannot be a recovery upon both items of the plaintiff’s bill of particulars.

We are therefore justified in finding that the first item only was allowed, and that the set-off was not allowed.

The item of $119.28 arises under a written contract, whereby the defendant hired the plaintiff to play ball at a price named, and there is no question but that such sum was earned on May 29th, when the plaintiff was discharged. The set-off is based upon a claim that, at the time the contract was made, plaintiff was under contract with the Washington, D. C., Club, and that both parties to this suit desired his release, which was procured and paid for by the defendant. The defendant asserts that it was agreed that the plaintiff should reimburse him to the amount of $75, while the plaintiff says that he did so upon condition. On his cross-examination, he testified upon this subject as follows:

‘' During April I was to get myself in condition to play schedule games with the Detroit Club, which commenced May 1st. The regular schedule games commenced May 1st. While playing a practice game in April, I was first injured. The first game was played on May 1st in Detroit, with the Toledo Club. I was again injured on that day, and from the 2d of May until the 29th of May I Hid not play with the Detroit Club. I do not know when Van Derbeck procured my release from the Washington Club. I know Washington still had a claim, in April against me. I wanted it off, as I wanted to stay in Detroit. At the time I got the $100 I told Strouthers and Van Derbeck I was anxious to get the same. When I signed the contract I was still owned by the Washington Club.
Q. Did you make any proposition to Mr. Van Derbeck to buy your release ?
“A. In a way. If you want me to tell it, I will. I met him. I do not know whether in his office or out in front. I said, ‘Van, if you can buy my release from the Washington Club, I will give you $75 or $100 towards the money you pay for me if I sign; ’ and he said he would let me know, and that is all there was between him and me. I had a talk with Strouthers. He came up and saw me. After that I never had another talk with Van Derbeck about getting my release from the Washington Club.
Q. You never had another talk with Van Derbeck? Did you testify as follows in the justice’s court:
“ ‘Q. I would like to ask you if you h ad any talk with Van Derbeck after the time at which this question of $75 was discussed between you and Mr. Strouthers and the time when you went to receive your pay.
'“A. I do not know anything of it. I believe I had a little talk with him. I told him I would like to play with the club; I would like to stay here; I did not like to go back to Washington, if I was playing good ball. I said to him, if he would buy me, I would give him $75 towards the money paid to the Washington Club, and I told Van Derbeck that, and also Mr. Strouthers.’
“A. I told Mr. Strouthers—
“Q. Did you so testify in the justice’s court?
“A. I had one talk with Van Derbeck.
“Q. Did you so testify in the justice’s court?
“A. I testified I had a talk with Van Derbeck regarding my release from the Washington Club, and I made the proposition I have just testified to, — that, if he bought me and paid for me, I would pay $75 or $100 towards the money that he paid for me; and then he said he would let me know. I was paid on the 15th of May. Van Derbeck paid me, and at that time he asked me to deduct the $75. I told him if he deducted the $75 I would hold him to his contract with me that Mr. Strouthers had made with me as sole manager at the time. I did not tell him that I didn’t want it deducted at the time because I was hard up.
“Q. Let us have what was said on this 15th of May, when you went there to get your pay.
“A. Well, he paid me, and he drew up a check for $27 and something, and he asked me about the $75, and I told him I did not think he ought to take it out now. I was under the impression I would get pay as long as I was disabled, which my contract called for under Mr. Strouthers as manager, and that is what I told him. I wanted to use the money.
“Q. What was your talk then with Mr. Strouthers?
“A. Well, Mr. Strouthers came up'to the house to see me, when I was laid up with my leg, and he came in, and asked me how I was, and I told him I was in pretty bad shape. He said, ‘I have just bought Mr. Nicholson;’ and he says, ‘I have got a chance to buy you;’ and he says, ‘ How are you feeling ? ’ and I says, ‘ Pretty bad; ’ and he says, ‘What did the doctor say?’ and I said, ‘He says I may be able to play in 10 days, and may not be for six weeks; ’ and he says, ‘ Are you willing to give this $75 and get the release?’ and I told him I did not see how I could; and he said to ‘never mind, old boy, take care of yourself, and you will be paid as long as you are disabled.’ I says, ‘If that is the case, you can take out the $75.’
“Q. Now, when you received the money, on the 15th, did you tell Mr. Van Derbeck the conditions under which you were to pay that $75 ?
“A. No, sir; I did not see why I should; he had his manager. On the 29th of May, when I received my release, I told Van Derbeck, ‘If you take this $75 out of my salary, I will sue you under that agreement I had with Strouthers.’ Van Derbeck wanted me released, and offered me a check for $40. I wanted what I had actually coming, $119; he wanted to deduct the $75.
“Q. And you were the man that got the benefit of this release from the Washington Club, were you not ?
“A. Certainly not; I lost a month’s salary.
“Q. You got the benefit of your release from the Washington Club?
‘A. In what way ?
“Q. In that you could contract with another club if. you wanted to ?
“A. I could not until the season was finished with Van Derbeck.
“Q. You were released on the 29th; after that you could contract with anybody else ?
“A. I suppose so; I suppose if a man is out of a job he can go wherever he wants to; I think so.
“Q. So that what you tell the jury is that Mr. Strouthers said we would pay you $8.52 a day as long as you were disabled, — -at that rate?
“A. He would pay me as long as I was disabled. There was nothing said as to the length of time which I might be disabled. If I was disabled all summer, I was under the impression I would get my salary until the end of the season.
“Q. You were to have your salary all this month, if you gave $75 ?
“A. If I was not able to play I was to have that salary.
“Q. For how many months?
“A. As long as I was not able to play.
Q. How long is the season ?
“A. Five months.
“Q. So that you would have $255 a month, for the season, if you were not able to play ?
“A. I understood that; sure I did. I was to have all that by paying $75. Strouthers thought I was going to play in 10 days; so did everybody else; and I hurt myself again. Nobody could tell how long it would last. It might be 10 days, two weeks, or a month. I want my 14 days’ pay.
‘ ‘ Q. But you do not want to pay the $75 ?
“A. If you want my $75, I have a right to the rest of it, according to his agreement with me.”
Redirect examination:
“Mr. Yan Derbeck told me to go to Strouthers.
“Q. Before you made any contract?
“A. Yes, sir; he told me Mr. Strouthers was the sole manager, and whatever he done went. I got able to play again about the 20th or 25th of June. I went with the Toledo Club, which were transferred the same day, and I went with them to Terre Haute. After that I went with the Washington Club, and finished the season with them, up to October 1st.”

We are satisfied that this testimony made it necessary to leave to the jury the question of Strouthers’ authority, and the determination of the facts in relation to the talk with Strouthers.

We think, also, that it was proper for the learned circuit judge to limit the jury to a consideration of the $75 item, and that the case should not he reversed because he mentioned it as the “$75 payment alleged to have been made to a club in Washington,” etc.

A number of assignments of error relate to the exclusion of testimony which the defendant’s counsel offered, and which, it is said, tended to support the defendant’s claim of set-off. Taking them in their order, they were as follows: Exhibit C, a telegram reading: .

“Mar. 15th, 1895. Cincinnati, 0., 15.
“To G. A. Van Derbeck:
“You may sign Scheibeck providing Washington Club gives consent. B. B. Johnson.”

For this it is claimed that it shows that the assent of the Washington Club was necessary before the contract could be made. We are not pointed to any testimony which shows who Johnson was, or why such consent was necessary. If there is any proof upon the subject, it is to be found in the testimony of the parties, where they . seem to have recognized the desirability — or, possibly, necessity — of a release. This exhibit, however, throws no light upon it, nor does it show that a consent was obtained. Several letters and telegrams were offered show-, ing negotiations in relation to this subject, but they prove no more than the admitted facts, viz., that defendant paid $300 for the release of the plaintiff and another player by the Washington Club. It was clearly proved that the $75 was paid, and the charge does not indicate to the contrary. The vital question was whether the defendant had a right to charge it to the plaintiff.

We do not agree with the defendant that the writings show an obligation upon the part of the plaintiff to Washington. The most that could be claimed is that they show such a claim on the part of the Washington Club, which is no more than unsworn hearsay testimony of the fact that counsel maintains that they prove. Nor do their dates show that plaintiff saw them or knew anything about them.

The defendant was asked to describe the scope or extent of Strouthers’ authority, and his duties, and an objection was sustained. Had the case depended upon that, it may be that the defendant might complain; but the plaintiff’s case rests upon the statement that the defendant gave him the right to understand that he could contract with Strouthers in relation to the matter. He did not say, “Strouthers was defendant’s manager, and therefore I had a right to deal with him,” but that “I tried to contract with the defendant, and he referred me to Strouthers, and said, ' Strouthers is my sole manager; whatever he will do will be business with you;’ ” and, again, “ He told me Strouthers was the sole manager, and whatever he done went.” This, if true, was binding upon defendant, whether Strouthers was his sole manager or not.

We find no error, and the judgment is affirmed.

The other Justices concurred.


text:
    PEOPLE v. BUTLER.
    Criminal Law —Information—Averment of Former Convictions — Omission Cured by Verdict — Sentence.
    3 Comp. Laws 1897, § 11786, provides that, when a person convicted of crime shall have been twice before sentenced in the-State to imprisonment at hard labor for not less than one year each time, he shall be sentenced to imprisonment at hard labor for life, or for not less than seven years in addition to the punishment prescribed for his last conviction. Section' 11924 provides that in statutory offenses, or any offense for which a statute fixes the punishment, the indictment shall be held sufficient, after verdict, to warrant the punishment prescribed by the statute, if it describes the offense in the words of the statute. Respondent was convicted of larceny from a dwelling under an information which charged two former convictions in the language of section 11786, and sentence was imposed under the provisions of that statute, the former convictions being admitted by respondent in open court. Held, that, if the information was defective in failing to state the times and x>laces of the former convictions (a point not decided), it was good after verdict.
    Error to Lenawee; Chester, J.
    Submitted October 26, 1899.
    Decided November 22, 1899.
    James Butler was convicted of larceny from a dwelling as a third offense, and was sentenced to imprisonment in the state prison at Jackson for 20 years.
    Affirmed.

      Parkinson & Campbell, for appellant.

      John E. Bird, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of larceny from a dwelling in the daytime. The judgment recited that it appeared from the information, verdict, and admissions of the defendant in open court that he had been twice duly convicted by a court in this State, and had been twice sentenced thereon to imprisonment at hard labor in the state prison at Jackson, for a period of not less than one year at each time, by a court in this State, and adjudged that he be imprisoned for the period of 20 years. It is claimed on his behalf that said sentence was excessive, for the reason that the information did not state the times and places of said prior convictions.

Section 11786, 3 Comp. Laws 1897, provides that:

“When any such conv-ict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this State, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted.”

The information charged the former convictions in the language of the statute. The record does not show whether the question was raised at circuit or not. In the case of People v. Buck, 109 Mich. 687, it was held necessary, under a similar statute, to charge the offense as a second offense, and that there was a previous conviction, and it was suggested that “properly the information should state at least the date and occasion of such conviction.” But if we should hold that this information should have alleged these things, the statute (3 Comp. Laws 1897, § 11924) applies. It provides that:

“When the offense charged has been created by any statute, or the punishment of such offense has been declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offense in the words of the statute.”

We do not overlook the fact that this statute does not change the rule as to the substantial requisites of an indictment, which are as essential as they were before the statute was passed. The information must inform the accused of the nature of the offense charged. People v. Marion, 28 Mich. 255; Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 438. But usually an indictment is sufficient if it states the crime, and it should not state the evidence. Morrissey v. People, 11 Mich. 330. It is competent for the legislature to provide that an offense may be charged in the language of the statute, provided the elements of the offense are alleged. In this case a requisite is that the defendant has been previously twice sentenced to imprisonment, etc., for one year, by courts of this State or the United States. That is alleged in this information, and, if it is necessary to state the cilcumstances of such convictions, greater particularity is required than is usually necessary in charging other offenses, and in a measure is stating the evidence, which the defendant, by demanding an examination, could ascertain, if necessary to his defense. The legislature might dispense with the necessity of such particularity in the first instance, and has done so after verdict. In Massachusetts it was held that it was necessary to charge the fact of a former conviction. See Tuttle v. Com., 2 Gray, 505. That case alludes to a statute providing that it shall be sufficient to allege briefly that such person has been convicted of a violation of the seventh section of a Massachusetts act, and that the same might be amended, as á matter of right, before final judgment. It appears not to have occurred to that court that this statute was invalid, as it drew from it the inference of an intention on the part of the legislature to require an allegation of the fact of former conviction. In the case of Com. v. Harrington, 130 Mass. 35, it was held that the failure to allege two previous convictions within a year forbade the imposition of the greater penalty. It was said there that the former convictions should be set forth, and there is a possible, though not a necessary, inference that they should be particularly described. See Garvey v. Com., 8 Gray, 382. In Bish. Stat. Crimes, § 981, it is said that allegation of a former conviction is essential under our constitutions, and this is doubtless true. The essential facts are that the accused had previously been sentenced to imprisonment at hard labor for a period of a year by a court of this State. This information is quite as specific in apprising a defendant of what he is to meet as one that charges the larceny of the horse of John Smith at the county of Wayne or city of New York. It used to be required that the subject of larceny should be carefully described, and an allegation that one stole money was not good until made so by statute. It was urged that this statute deprived defendants of a constitutional right, but this court held otherwise. Brown v. People, 29 Mich. 232. The charge of murder was materially abbreviated by a statute which practically eliminated all specific description of the circumstances, yet it was held valid. Sneed v. People, 38 Mich. 248. In Rice v. People, 15 Mich. 9, a charge of assault with intent to murder in the language of the statute was held good. In Durand v. People, 47 Mich. 332, it was held that, while a more full and complete description of an assault with intent to rob might be essential, yet an omission of descriptive averments could not prejudice the accused, and was cured by the statute after verdict. See, also, People v. Taylor, 96 Mich. 576 (21 L. R. A. 287).

We are of the opinion that, if the information was defective (which we do not determine), it is good after verdict. The conviction is affirmed.

The other Justices concurred.


author: Long, J.

text:
    AUDITOR GENERAL v. PATTERSON.
    1. Taxation — Purchase of State Lands — Setting Aside Sale —Refunding Money Paid for Subsequent Taxes.
    Under the provision of the tax law that, where a sale is set aside, “ the amount paid at the time of the sale ” shall be refunded to the purchaser (Act No. 154, Pub. Acts 1895, § 73), a purchaser of state tax land is entitled, on the original sale’s being set aside, to have returned to him, not only the amount paid for the State’s title, but also the amount of the subsequent taxes paid by him as a condition to the purchase, as required by section 84 of the law (.Act No. 200, Pub. Acts 1893); and it is immaterial that the sale had in fact been declared void at the time of his purchase.
    2. Same — Lien of State — Enforcement—Charges to County.
    The lien of the State is not lost as to subsequent taxes so returned, but may be enforced in the usual manner; the further provision of section 73, that the portion of the amount refunded that was originally assessed for county and township purposes shall be charged back to the county, applying only to the taxes for which the sale was made, and not to the subsequent taxes.
    Appeal from Saginaw; Snow, J.
    Submitted October 6, 1899.
    Decided November 22, 1899.

      Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Egbert H. Patterson. From a decree for petitioner, defendant appeals.
    Affirmed.

      Robert Holland, Assistant Prosecuting Attorney, for petitioner.

      G. W. Davis, for defendant.
   Long, J.

The lands in question were returned delinquent for the taxes of 1894, 1895, and 1896, and were included in the petition of the auditor general for the year 1896 for the taxes levied in the year 1894, and at the sale in December, 1896, were bid in by the State. Subsequently the decree of sale was vacated, the bid canceled, and the taxes of 1894 decreed to be void. On December 6,1897, Launt Thompson applied to the auditor general to purchase the State bid on this description of land, and on February 18,1898, paid the taxes on the land for the years 1894, 1895, and 1896. A deed was issued to him under the State bid made for the tax of 1894, the auditor general at that time not having in mind that the decree for that sale had been set aside. This deed was issued February 21,1898. On March 7,1898, respondent, Patterson, wrote the auditor general, asking what had been done about the taxes of 1895 and 1896 on the lands, and received the following reply, dated March 12,1898: “Replying to yours of the 7th inst., the taxes of 1895 and 1896 * * * were paid February 18, 1898.” Thereafter, when the matter of the decree vacating the sale for the taxes of 1894 came to the attention of the auditor general, he canceled the sale, and refunded the money paid by Thompson on the State bid, and also the money paid by him for the taxes of 1895 and 1896. The auditor general then filed his petition for the sale of the lands for the taxes delinquent for the year 1895, which had been previously repaid to Thompson, amounting to $77.53. The respondent, having purchased the land, made and filed his objections to the petition, and claimed that the auditor general was without jurisdiction to include said taxes in his petition, and that the court had no jurisdiction to decree said sum to be a lien on said lands, or to order a .sale thereof in satisfaction of the taxes,' as said taxes had been paid by Thompson, to whom the land had been sold and deeded. The court below on that hearing overruled the objections, and entered a decree of sale, adjudging that the tax of 1895 remained a lien on the land. From this decree the respondent appeals.

It is claimed by the respondent that by the provisions of section 84, Act No. 206, Pub. Acts 1893, Thompson was compelled to pay the taxes of 1895 and 1896 before he would be entitled to take the State bid for the tax of 1894, and that by such payment the lien of the State became extinguished, and could not be revived by the auditor general; that the payment of the taxes of 1895 and 1896 by Mr. Thompson was voluntary, and made after the title and taxes of 1894 had been vacated and canceled, and he was not entitled to have the same refunded; that voluntary payments cannot be recovered back,— citing cases to that effect. .

As a general rule, the proposition is well sustained by the authorities; but provision is made by the tax law to meet such cases. Section 73 of Act No. 206, Pub. Acts 1893, as amended by Act No. 154, Pub. Acts 1895, provides :

“ If a sale made under this act is set aside by any court, the auditor general shall refund to the purchaser the amount paid at the time of the sale, with interest thereon at the rate of eight per cent, per annum from the time of purchase to the time when said sale is set aside, out of the general fund of the State, and charge back to the county the portion of the same originally assessed for county and township taxes, and the interest thereon.”

We think„this section means, by the words “the amount paid at the time of the sale,” the whole amount; not only the amount paid for the State bid, but also the amount paid for the succeeding taxes. Before the party purchasing is entitled to his deed, he is compelled to pay all subsequent taxes which are a lien upon the land. We have repeatedly so held. The auditor general was, therefore, authorized by the section above quoted to refund to Mr. Thompson the amount paid by him for the taxes of 1895 and 1896. It does not follow that the lien of the State upon the lands for the taxes of 1895 and 1896 was discharged by this transaction. It is true that the payment of these taxes by Mr. Thompson would have discharged the lien but for the provisions of the statute. It was undoubtedly the intent of the legislature by this statute to provide for the contingency which arises here. Sales were frequently set aside by the courts for various reasons, even after the State had sold its bid, the payments having been made in good faith by the purchasers; and the tax law was evidently framed to protect such purchasers by providing that the amount paid at the time of the sale should be refunded to them by the auditor general. This leaves the taxes for the subsequent years which have been paid to stand as a lien upon the land, the same as though they had never been paid.

But counsel contends that the ‘ last provision of the section provides another remedy, and that it cannot be said that the lien remains; that is, that these taxes must be charged back to the county, so far as they were assessed for township and county purposes. This provision evidently has reference only to that part of the taxes that is decreed void by the court. Such taxes cannot be charged back upon the land, so that the State, county, and township must each lose its share of those taxes. But the taxes of the subsequent years are not void. There is nothing* in the act by which it can be said that the lien for those years becomes extinguished.

■ The case, cited by counsel, of Iowa Railroad Land Co. v. Guthrie, 53 Iowa, 383, is not in point. In that case it did not appear that there was any statute of that State authorizing the repayment of the subsequent taxes to the purchaser, and the court held that, after such taxes were paid, even by a stranger, the treasurer, after having received the payment of the taxes, could not treat the land as delinquent, and the subsequent sale was therefore void. The court quotes from section 870 of the Code of that State, which provides that the board of supervisors shall direct the treasurer to refund to the taxpayer any tax or any portion of a fax found to have been erroneously or illegally exacted or paid, and then says: “The tax in this case was not ‘erroneously or illegally exacted or paid.’ It was a legal tax, lawfully paid and lawfully received by the treasurer.” The same is true of the Pennsylvania and Illinois cases cited.

We think the court below very properly entered a decree for the sale of these lands. That decree is affirmed, with costs. ’

The other Justices concurred.

        Montgomery v. Meredith, 17 Pa. St. 42; Morrison v. Kelly, 22 Ill. 610; Mason v. City of Chicago, 48 Ill. 420.


author: Montgomery, J.

text:
    HOWEY v. FISHER.
    T. Contributory Negligenoe — Former Appeal — Res Judicata.
    A holding, upon appeal of an action for personal injuries, that the circuit judge was in error in directing a verdict for defendant for the reason stated by him, — that there was no evidence that defendant was negligent, — does not establish plaintiff’s right to go to the jury upon a subsequent trial, wherein she is claimed to have been guilty of contributory negligence, a point not raised on the original appeal.
    2. Same — Ioy Sidewalk — Knowledge oe Danger.
    Where plaintiff, instead of taking advantage of paths to and from the street which would enable pedestrians to avoid an icy place in the sidewalk, which plaintiff knew to be dangerous, attempted, though with caution, to walk across the ice, she was guilty of contributory negligence, precluding a recovery for injuries sustained in falling upon the ice.

      Error to Wayne; Donovan, J.
    Submitted May 10, 1899.
    Decided December 2, 1899.
    Case by Margaret J. A. Howey against Maxwell M. Fisher for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Elliott Q. Stevenson and Robert F. Eldredge, for appellant.

      Frank T. Lodge, for appellee.
   Montgomery, J.

Plaintiff received injuries from stepping on an icy sidewalk. - She brings this action against the defendant, who is the owner of a lot abutting upon the street, claiming that the eaves-trough upon his house situated on this lot had been for a considerable time out of repair, and that the formation of ice which caused the injury was the result of water carried from defendant’s premises to the walk by reason of such defective eaves-trough. The case has once been before the court, and is found reported at 111 Mich. 422. It is contended by plaintiff’s counsel that some of the questions raised by defendant are res judicata by the former decision, and it is said that it was held that the case was a proper one for the jury. A reference to the opinion of Mr. Justice Moore on the former hearing will show that it was held — First, that, in taking a case from a jury, the circuit judge should give his reasons therefor (citing Demill v. Moffat, 45 Mich. 410); and, second, that the case should not have been withdrawn from the jury for the reason given by the trial judge, viz., that there was no evidence of want of repair of the eaves-trough or conductor. The holding related to the question of defendant’s negligence on the record as it then stood, and does not preclude the defendant from contending on this record that the plaintiff was guilty of contributory negligence, or that the defendant was neither in possession of the premises nor under obligations to keep them in repair. ,

On the last trial the plaintiff testified that she went over the spot at about 5 o’clock that same evening, when it was not quite dark, and that the accident happened between 5 and 6; that she knew this place was icy, and had observed it when going into the house, and had taken particular caution.

“Q. Did you regard that as a dangerous place?
“A. Yes, sir.
“Q. Why?
“A. Because the ice was there.
Q. How long had it been there ?
“A. Almost all the time I had been on Duffield street.
“Q. You went by there frequently?
“A. Yes, sir.
“Q. For how long before you got hurt was that ice there, in such-a condition you thought it dangerous?
“A. I could not say.
“Q. Was it there since Christmas?
“A. Yes, sir. * * *
“Q. You say you were walking carefully when you went by there ?
“A. Yes, sir.
“Q. Tell us how you walk when you walk carefully; what you did different from any ordinary walk.
“A. Well, I was watching the ice, and I was taking particular pains to get across it, and knew it was. there, and not a very easy way to get around it, so I walked along.
“Q. No difficulty in going right out in the street from the door, was there?
“A. I do not know. I supposed sidewalks were supposed to be in repair, so that people could walk along them. The street down from the door was paved with cobblestones, and slanted down, and one was as liable to fall* there. I did not notice that night, particularly, that there was ice there. Naturally there would be.
“Q. Was not that used constantly back and forward there beside that door, — milkmen and other folks going in and out ?
“A. I presume they did.
“Q. No difficulty in going in and out there ?
“A. Considerable snow.
“Q. No difficulty in going out where those stones were?
“A. No, sir; it was cleaned off.
“Q■ Any difficulty in going out there where the livery barn was ?
“A. No, sir. * * *
“Q. Mr. Stevenson was asking you about the care you exercised in walking along. Just state what degree of care, if any, you did exercise in walking along that night.
“A. Well, I was going along the street, and I knew the ice was there, and I took care; and, had I known I was going to fall—
“Mr. Stevenson: Just tell what you were doing.
“A. I was taking care,— walking along and watching the ice, and taking care not to fall on it. It was a cement sidewalk, — artificial stone.”

On re-cross-examination witness testified:

“ Q. Do you mean this place where you fell was so slippery and icy you could not walk across it, walking carefully, without falling ?
“A. Yes, sir. * * *
Q. What do you mean by ‘ walking carefully ? ’
“A. I was watching the ice, and taking particular pains not to fall.
Q. Had been that way all winter ?
“A. Yes, sir; of course, the ice cleaned off lots of times.
“ Q. You knew it was there when you went over, and knew it was there when you came back ?
“A. Yes, sir.”

It appeared from other testimony in this case that there was a walk to the street leading from the side door of the house, and that there was a driveway from the street to the barn. One witness, called by plaintiff, testified, “If any one wanted to avoid the ice, they could step out off the walk to the street, go around the icy place, and back by the stable door to the brick barn.” Plaintiff’s counsel calls attention to the statements of this witness to the effect that sleighs and carriages run out of the barn, and, standing there, would prevent one from stepping off the sidewalk into the street. But this witness testified, as to the location of the rigs, that “they stood between the walk from the side door to the curb and the cobblestone way from the barn.”

It is apparent from this testimony that the plaintiff knew of the risk of passing over this icy way, and assumed the risk of doing so, although there was a way to avoid this danger by stepping out into the street for a short distance. The precise danger was before her, and she had it in mind at the time. The case is quite differ-net from those in which it has been held that possessing knowledge of a defect in a way will not preclude recovery, where it appears that the plaintiff was, notwithstanding, in the exercise of due care. Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641, 35 Am. St. Rep. 561); Lozvell v. Township of Watertown, 58 Mich. 568; and cases of this class. In neither of these cases was the plaintiff, at the very moment of the accident, aware that, at the very place where he then was, he was encountering the danger or taking the risk of injury. In the present case there -was nothing to distract plaintiff’s attention. She could and did see the danger. She could have avoided it by going around the icy place. The case of Black v. City of Manistee, 107 Mich. 60, cannot. be distinguished from this, in principle. See, also, Grandorf v. Railway Co., 113 Mich. 496; Cosner v. City of Centerville, 90 Iowa, 33; Bay v. City of Poplar Bluff, 70 Mo. App. 252.

We think that a verdict should have been directed for the defendant, and, inasmuch as this conclusion is based on plaintiff’s testimony, the judgment will be reversed, and no new trial ordered.

The other Justices concurred.


author: Grant, C. J.

text:
    MOORE v. UNIVERSAL ELEVATOR CO.

    1.Corporations — Mortgage to Stockholder — Rights of Bonus Subscribers — Evidence.
    In a controversy between subscribers to a bonus fund, for a corporation and a stockholder to whom the corporate property has been deeded to secure him for advances, the conditions of a private arrangement under which the mortgagee became a stockholder are immaterial.
    2. Same — Capital Stock — Good Faith of Subscriptions.
    Subscribers to a bonus fund for a corporation have a right to assume that the subscriptions to its capital stock were made in good faith, and that they will be paid in money or in money’s worth.
    3. Same — Over-Valuation of Property — Negligence of Di_ rector.
    Where a director in a corporation, who, though not a bona fide stockholder, is held out as such, neglects to examine into the value of property turned over to it in payment of stock subscriptions, and such property proves to be worthless, as between him and those who subscribed to a bonus on the faith of his connection with the corporation, he must be the loser, and he cannot defend upon the ground that he was not an actual stockholder.
    4. Same — Mortgage Deed.
    A deed from a corporation, absolute on its face, but given to secure advances made by a director, is a mortgage, and the corporation may convey the property in payment of its debts, subject to such mortgage, if valid.
    5. §ame — Claims of Bonus Subscribers — Breach of Contract.
    Where corporators, having agreed, in consideration of a bonus subscription, that a stated amount of the capital stock should be immediately subscribed, that a building should be erected and equipped for manufacturing, and that the business should be in active operation within a stated time, procured no bona fide subscriptions to the capital stock, but, in lieu thereof, turned in property at a grossly excessive valuation, equipped the building erected by them with machinery the title to which was retained in the vendors, and failed entirely to put the business into active operation, they were not justified in resisting the claims of the bonus subscribers upon the ground that their subscriptions were not paid in full.
    6. Same — Failure of Business — Statutes.
    The fact that a corporation just organized secures a director for advances by a deed to its property, and also gives a deed to the same premises to secure the bonus givers, before it has fairly commenced the business for which it was organized, does not constitute the failure in business contemplated by Act No.,144, Pub. Acts 1895, § 6, providing that, in case of the. failure of a corporation, bonus givers shall become creditors to the amount contributed.
    7. Same — Priority of Liens — Fraud.
    ■ The lien of a director of a corporation under a mortgage given by it to secure him for advances will be held inferior to that of bonus givers, claiming under a trust deed of the same property, where the bonus subscriptions were induced by fraudulent representations concerning the capital stock, for which-representations the director, even if ignorant of the fraud, was, under the circumstances of the case, responsible.
    8. Same — Remedy—Equity Jurisdiotion.
    It-is not necessary for a defrauded subscriber to a bonus fund, having possession of the corporation’s property under a deed' executed to secure him, to exhaust his claim against the corporation by suit, judgment, and execution returned nulla bona, where he is a party defendant to a suit by a director to foreclose an alleged prior lien, all parties interested being-before the court.
    Appeal from Wayne; Daboll, J., presiding.
    Submitted October 3, 1899.
    Decided December 2, 1899.
    Bill by Charles W. Moore against the Universal Elevator Company, Frank E. and James N. Schoonmaker, William Livingstone, Jr., and others, to determine the priority of liens. From the decree rendered, the above-named defendants appeal.
    Reversed.
    In the summer of 1895 the defendants Frank and James Schoonmaker and Hultgren were copartners, doing business under the firm name of Schoonmaker Bros. & Co. Their business was that of selling engines and elevators and general lines of machines. They owned no property except some interests in certain elevator patents. They sold machinery for other parties, chiefly, if not wholly, as agents for the Otto Gas-Engine Works and the Morse-Williams Elevator Company. None of the partners were pf any financial responsibility.. In July of that year they conceived the scheme of organizing a corporation for the manufacture of elevators under the interests in the patents which they held. They employed one Arthur D. Col-grove to promote the scheme. Colgrove knew complainant, Moore,’ to whom he applied for assistance. Defendant Livingstone and others owned land in North Detroit, where it was proposed to locate the works. The defendant Livingstone was applied to to donate land, and he, as well as other landowners there, was asked to donate money for the erection of a plant. Moore finally consented to assist in the organization of the company, and was the only man of financial responsibility connected with it, except Stanton and Brotherton, who claim to have become stockholders on the same conditions and representations as did Mr. Moore. Early in September, Mr. Colgrove presented to Mr. Moore an agreement for his signature, between him, as trustee, “and the undersigned, of the county of Wayne.” The agreement had no signatures, but the undersigned were to be those who should afterwards subscribe to the bonus fund. The agreement reads as follows:
    “ Whereas, it is contemplated on the part of the said Charles W. Moore, trustee, to organize and establish a stock company in the sum of one hundred thousand dollars capital stock, for the purpose of establishing a factory for the manufacture and sale of elevators and all business incidental therewith;

      “And whereas, it is understood that the said factory shall employ at least seventy-five workmen within ninety days after the said factory shall be completed and in operation, and will employ one hundred workmen within one year after the erection and completion of said factory;

      “And whereas, the undersigned are solicitous and desirous that said factory be located on the acre and a half of land on the southeast corner of. a certain forty acres of land owned by William Livingstone, Jr., and described as the west half of the east half of the northwest quarter of section nine, in the township of Hamtramck, in thé county of Wayne and State of Michigan, said one acre and a half of land to be taken off the southeast quarter of said forty acres, and adjoining the railroad station at the village of North Detroit;

      “And whereas, the undersigned are desirous that the said factory shall be located on the premises hereinbefore mentioned, for the reason that they are property owners and interested in the surrounding territory to said proposed site:

      “Now, therefore, it is agreed between the undersigned, with Charles W. Moore, as trustee, that the said undersigned parties agree to donate the property hereinbefore mentioned as the site for said proposed factory to the said Charles W. Moore, trustee, and such other parties as shall be connected with him in the organization of said proposed stock company, and also to donate the amount set opposite their respective names, to be paid in installments, as hereinafter mentioned, the total amount of said subscriptions to equal the sum of fifteen thousand dollars.
    “And the said undersigned agree to pay the sums set opposite their respective names as follows: Twenty-five per cent, of each subscription to be paid when the foundation in said factory is laid, and an additional thirty per cent, when said factory shall be roofed and inclosed, and an additional'thirty per cent, when said factory shall be completed, and the balance of fifteen per cent, when said factory is in operation.
    . “And it is further agreed upon the part of the said Charles W. Moore, trustee, that the said company shall be organized and work shall be begun on said factory within ten days after said site is furnished to him and his associates, and the total amount of fifteen thousand dollars in addition thereto is subscribed.
    “And it is further agreed by the said Charles W. Moore, trustee, that, before any of the said subscription' shall be paid as aforesaid, he will furnish to the undersigned subscribers hereto a good and sufficient bond in the sum of twenty thousand dollars, conditioned for the carrying out of said agreement, and upon condition, further, that said factory will be kept and remain in operation for the period of five years or more.
    “And it is further understood and agreed that seventy-five thousand dollars of said proposed capital stock shall be subscribed within ten days from the time said bonus is subscribed.
    “And this agreement faithfully to be kept and performed the parties hereto have hereunto set their hands and seals.”
    Moore signed the agreement, which was afterwards signed by defendant Livingstone for $2,000, and several others, the subscriptions amounting in all to $8,500. No further subscriptions could be obtained, and, at a meeting afterwards held, the organizers of the company agreed to accept the amount then subscribed, and proceed with the work. On October 11, 1895, the Universal Elevator Company was organized, with $100,000 capital. The corporators, and the number of shares held by them, as shown by the articles of association, were as follows:
    Name. Shares.
    Charles W. Moore..............-___________________2,500
    Marvin M. Stanton............ 1,000
    Wilbur Brotherton.................................. 675
    James N. Sehoonmaker_____________ 750
    Frank E. Sehoonmaker, trustee................. 700
    Frank E. Sehoonmaker________________ 700
    These articles were immediately filed in the office of the county clerk of Wayne county, and a few weeks after-wards in the office of the secretary of state. Immediately after the execution of the articles of association, and on the same date, a meeting of stockholders was held, and a board of directors elected, consisting of Moore, Stanton, Brotherton, and the two Schoonmakers. Moore was elected president. At the time of the organization, the following proposition from Sehoonmaker Bros. & Co. was presented, and read by the secretary, as appears from the record:
    “To the Universal Elevator Co., Detroit, Mich.
    “ Gentlemen: We, the undersigned, do hereby agree to sell, transfer, and assign to the Universal Elevator Company our entire interest in all elevator patents, also our interest as agents for the Otto Gas and Gasoline Engines, also factory which we propose to- erect, according to the plans submitted,, and all adjoining property connected therewith, and our entire interest incidental with mechanical engineering, for a consideration according to the following estimated values:
    Elevator patents__________________________________$27,000
    Business of the Otto Gas-Engine Co________________ 10,000
    Factory and property_____________________________ 15,500
    Business incidental with mechanical engineering.. 10,750
    Total_________________________________________$63,250
    “ For the value of our business and properties we hereby agree to accept $63,250.00 worth of paid stock in the Universal Elevator Company.”
    This proposition was accepted, and a resolution adopted to carry it out, directing the officers of the corporation to issue to Schoonmaker Bros. & Co. $63,250 of paid-up stock upon receipt of assignment of their business as in such proposition specified. On the same day a certificate for 2,500 shares, the par value of which was $10, was issued to Mr. Moore. On the reverse side of the certificate was an assignment by Moor,e to Schoonmaker Bros. & Co. of the capital stock named in the certificate. This assignment recited' that he (Moore) had bargained, sold, assigned, and transferred the stock to Schoonmaker Bros. & Co. It also contained the following:
    “I do hereby constitute and appoint J. N. Schoonmaker my true and lawful attorney irrevocable, for me and in my name and stead, but to my use, to sell, assign, transfer, and set over all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power.”
    All the other original stockholders made a like assignment of their certificates to Schoonmaker Bros. & Go. On the same day a certificate was issued to Schoonmaker Bros. & Co. to the effect that they “are the owners of 6,325 shares of the capital stock of the Universal Elevator Company.” Schoonmaker Bros. & Co. on the same day indorsed upon the reverse side of this certificate that they had bargained, sold, assigned, and transferred to the following parties shares of the above stock as follows:
    Frank E. Schoonmaker......... 1,750
    James N. Schoonmaker.............. 1,750
    William H. Hultgren............................... 1,750
    Charles W. Moore................................... 500
    Wilbur Brotherton.............. 35
    Marvin M. Stanton.................................. 35
    William R. Johnston................................ 35
    Arthur D. Colgrove_________________________________ 500
    After this, Moore purchased 500 shares of the stock for $100 from Hultgren. One thousand shares of the stock then and still do stand in the name of Mr. Moore. Not a dollar upon the' capital stock was ever paid in in cash. No stock was ever sold, aside from that represented by the $63,250, as above set forth'. There is no reliable' evidence that the interests held by Schoonmaker Bros. & Có. in these patents were of real value. Moore made no investigation into the matter, but testified that afterwards he found them to be of very little value. The $10,000 put in as the business of the Otto Gas-Engine Company was nothing more than an agency held by Schoonmaker Bros. & Co., revocable at any time, and evidently was of no real value. The item of $15,500, called “factory and property,” was represented by nothing except the promises as contained in the above agreement. The land had not been deeded, nor the bonus subscriptions paid. The item of $10,750, put in as “business incidental with mechanical engineering,” had no tangible value, and was a valueless asset. Work was soon after commenced upon the building, and the building erected. Mr. Livingstone deeded the land to the company. Subscriptions to the bonus fund were paid in to the amount of about $4,000. On the 15th day of October, 1895, the elevator company executed a bond to the bonus subscribers in the sum of $20,000, conditioned for the faithful performance of the agreement above recited. This was not such a bond as the agreement provided for, but nine of the subscribers indorsed upon it the following: “So far as I am concerned, I do not care to require any further assurance than the agreement and within bond.” The money paid by these subscribers was used in the construction of the building, and as well other moneys advanced by Mr. Moore. The company could sell no stock, and debts were incurred which required payment. Mr. Moore, at the earnest solicitation of Mr. Schoonmaker, who was the general manager of the corporation, advanced money from time to time, and indorsed notes which he was compelled to pay, the amount of such indebtedness finally being $8,699.2?.
    On May 9, 1896, a resolution was adopted by the directors authorizing the execution of a note and mortgage for $6,000 for the purpose of raising necessary funds until stock could be sold. On June 3d this was rescinded, and the officers authorized and instructed the secretary to execute to Mr. Moore a warranty deed of the factory building and land to secure him for the money he had already raised for the company by indorsing their notes, and such further amount as he might be able to raise for them, and such accounts as he had guaranteed. A deed was executed, a straight warranty in form, but was not recorded, lest it should injure the credit of the company. On August 11th — the time appointed by the by-laws for a regular meeting — no quorum of the directors appeared, and an adjournment was had to the following day at 5 o’clock. Mr. Moore was at that time ill. Meanwhile Mr. Johnston had informed Mr. Moore of the meeting and of the adjournment, and Mr. Moore requested him to be present to see what was done. A quorum was obtained on the following day, and a resolution passed reciting that Mr. Moore had not made the advances which were to be made by him under the terms of the resolution of June 3d; that the parties donating the property and money demanded the return of the same; that the company was unable to perform and fulfill the conditions; that said company was indebted to the Otto Gas-Engine Company in the sum of $1,853.19; and authorizing a deed of the property to Mr. Livingstone to secure such indebtedness. The resolution also provided for the transfer of the property to another company, if one should be organized which should assume and pay the indebtedness of the Otto Gas-Engine Company, and should issue and deliver to Mr. Livingstone shares of its capital stock,- fully paid and nonassessable, equal in value and amount to the property and money donated to the elevator company, in which event said Livingstone was to convey the property to the newly-organized company. Mr. Johnston immediately notified Mr. Moore of the action of the directors. Thereupon he hastened to the office of the register of deeds, and placed his deed upon record. On the following morning the deed of Mr. Livingstone was recorded, and one Thomas went and took possession of the building as the agent of Livingstone. Thereupon complainant filed this bill praying that his lien be declared a valid one, superior to that of the defendant Livingstone; that the property be sold, and applied upon the payment of the debts of said corporation, in accordance with the just rights of creditors; that the defendants be enjoined from interfering with said property ; and for the appointment of a receiver. Mr. Moore, from the organization of the company down to the 12th of August, 1896, continued to act as the president and a director of the company, had attended the meetings of the board of directors, and his office was the office of the company.
    Proofs were taken in open court. Complainant insists that he had no interest in the corporation, and that he went into it, as he himself expresses it, “only to assist these young men to get a business.” He also claims that he told Mr. Livingstone that he had no interest in the concern. It is insisted by the defendants that they were ignorant of the relations existing between Mr. Moore and the other corporators; that they had a right to rely upon him, the only man financially responsible, as a bona fide stockholder; that the organization was a fraud in law and in fact; and that their rights are superior to those of Mr. Moore. The court declined to pass upon the merits of the controversy, saying:
    “I do not think that the question of the rights of the parties who have given money as a bonus to secure the shops at the place located can be litigated in this suit, and that the deed of Mr. Moore, while taken as stated, and for security, cannot, in this cause, be declared valid against the rights of those who paid the bonus.”
    He held that the only way the question could be reached was through the court, under the • direction of a receiver. A decree was subsequently entered dismissing the bill of complaint as to all the defendants except the elevator company, and, the cross-bill of the defendant Livingstone, and declaring that the deed of complainant should have precedence as a mortgage lien from the date of recording the same.

      S. S. Babcock, for complainant.

      Brennan, Donnelly & Van De Mark {Selling & Hatch, of counsel), for appellants.

       Rehearing denied April 3, 1900.

   Grant, C. J.

(after stating the facts). 1. A large part of the record is taken up with, testimony relative to the agreement between complainant and Schoonmaker Bros. & Co. relative to the conditions under which complainant became a stockholder in the corporation. It is immaterial what those private arrangements were. Upon ibis point the testimony is in sharp conflict. It is not necessary to determine what rights Mr. Moore has against his co-corporators and the defendant corporation. That controversy concerns them alone, and is not before us. The controversy now is between Mr. Moore and the bonus givers, and the sole question is, What are the rights of Mr. Moore, under his mortgage deed, as against those of the defendant Livingstone, representing himself and his co-subscribers to the bonus fund?

2. It is essential to keep in mind a few facts in addition: to those above stated:

(a) The organization of this corporation was a fraud in. law, if not in fact. As to the Schoonmakers and Hultgren, it was a fraud in fact. The amount of property which they conveyed to the company, for which they received paid-up stock to the amount of over $63,000, was not .worth any such sum. It was a gross and fraudulent overvaluation, and known by them at the time to be such.

(b) The bonus subscribers had no knowledge or notice of the fraudulent character of the organization. They relied upon Moore’s connection with the corporation as a bona fide one. One of them, before subscribing, caused the articles of association, as filed in the county clerk’s office, to be examined. We are not unmindful of the testimony of Mr. Moore that some time in 1896, prior to the execution of the deed by Livingstone to the corporation,, he told Mr. Livingstone that he had no interest in the business. Moore at that time was a large creditor of the corporation. Mr. Schoonmaker had informed him that Mr. Livingstone refused to give the deed. Moore went to see Mr. Livingstone, and his version of the conversation, is as follows:

“He refused to give the deed at first. I then said to him: ‘Mr. Livingstone, I have no interest in their business at all whatever. I have not a piece of land within five miles of it; and if you gentlemen who own the land out there are not going to take any interest in the matter, I am going to get out, and I will go down to the office, and resign, this morning.’ ”

Just when this conversation took place does not appear,, but it was evidently some time in the early part of 1896. According to Mr. Livingstone’s version of this conversation, nothing was said to indicate to him that Mr. Moore was not a good-faith stockholder, and interested in the concern. Mr. Moore certainly was interested in getting the deed from Livingstone to the corporation, and it was not very long after that the mortgage was made to him to secure his debt.

(c) Defendant Livingstone has contributed $1,700 in cash,'and an acre and a half of land, worth at the time about $2,000.

(d) Moore, by his act in subscribing for the stock, in being a director and president, held himself out to the public and to creditors as a bona fide stockholder, and as liable for the amount of stock subscribed by him.

3. Moore’s subscription contract was absolute upon its face, and, as between him and creditors who were uninformed of the situation, his liability thereunder cannot be changed by other contemporaneous agreements. Creditors are entitled to the full benefit of the stockholder’s contract as he has made and published it in subscribing, executing, and filing his subscription to the stock of the corporation. 1 Cook, Stock, Stockh. & Corp. Law, §§ 137, 138; Williams v. Benet, 34 S. C. 112; Downie v. White, 12 Wis. 176 (78 Am. Dec. 731). Mr. Livingstone and the other bonus givers relied, as they had a right to, upon the agreement which he signed as trustee, and upon his membership in the corporation. His subscription was a trust fund, and those who dealt with the corporation with knowledge that he was a stockholder had a right to rely upon that fund as a bona fide one. As against them, he cannot defend by setting up that he became a mere accommodation, and not an actual, stockholder. As a director he became a trustee for the creditors, and no declaration of trust was necessary; but by his trust agreement he agreed with the bonus givers that $75,000 of the $100,000 of capital stock should be subscribed within 10 days from the time the bonus was subscribed. This was to be a bona fide, and not a mere paper, subscription. It was not contemplated that the building was to be built, machinery purchased, and a full plant erected with the money of the bonus givers, but that stockholders were to be furnished who would contribute to the necessary funds for that purpose. . This was not done. Not a share of stock was subscribed or sold aside from that issued to the original subscribers as fully paid. Efforts were made to get others interested, and to sell them some of the stock. These efforts were ineffectual, and probably for the very good reason that no prudent man would invest in such an enterprise without an examination, and an examination would disclose to him its fraudulent character. There were in fact no bona fide subscriptions.

4. It is urged by complainant that a bona fide stockholder may become a bona fide creditor of a corporation. This is well established. Sargent v. Webster, 13 Metc. (Mass.) 497 (46 Am. Dec. 743); 1 Cook, Stock, Stockh. & Corp. Law, § 11. And he may secure his claim in the same manner as any other creditor. If complainant stood, in this litigation, as such a stockholder, he would be a secured creditor, whose security the law would protect. But he does not stand'before the court as such a stockholder in his dealings with the bonus givers. As trustee under his agreement, and as a director, it became his duty to examine into the character and value of the property proposed to be turned over by Schoonmaker Bros. & Co., to determine its fair value, and to see that it was turned over to the company at such value. Instead, he made not even an inquiry, and for the reason, as he states, that'he did not consider himself actually concerned in the corporation, but only consented to become a stockholder and director and president to accommodate his friends. An inquiry which he did afterwards make disclosed to him the worthlessness of most of the property. We need not enter into the question of the good faith of Mr. Moore in the transaction. If he trusted the Schoonmakers and Hultgren, believing they were honest and would do no wrong, he, and not those who trusted the corporation on the faith of Mr. Moore’s open connection with it, must suffer. As between him and those dealing with the corporation in ignorance of his real connection with it, under his theory he cannot defend upon the ground that he was a nominal party. He does not stand before the court in the light of a bona fide stockholder having a bona fide claim against the company.

5. It is a universal rule that when corporators transfer property to a corporation, for which they receive stock, they must act in good faith, and put in the property at its fair worth. Creditors have the right to rely upon the good faith of the stockholders, and to assume that they have contributed to the stock subscribed in money or money’s worth, or are liable therefor. This liability cannot be evaded by the issuance of fully-paid stock when it is not, or by putting in property grossly in excess of its real value. Peninsular Savings Bank v. Black Flag Stove-Polish Co., 105 Mich. 535; Van Cleve v. Berkey, 143 Mo. 109 (42 L. R. A. 593); Wetherbee v. Baker, 35 N. J. Eq. 501; Coleman v. Howe, 154 Ill. 458 (45 Am. St. Rep. 133); Osgood v. King, 42 Iowa, 478; Camden v. Stuart, 144 U. S. 104; National Tube-Works Co. v. Gilfillan, 124 N. Y. 302. Had Mr. Moore performed his duty in examining into the value of this property, he undoubtedly would not have consented to becoming a party to such a transaction. As already stated, neither Livingstone nor the others would have subscribed if Mr. Moore had not been connected with the corporation, and, as they believed, in a responsible manner.

6. Complainant’s deed was only a mortgage, and the corporation had the right to convey the property in payment of its debts, subject to his mortgage, if valid. The claim that his deed left nothing for the corporation to convey cannot be sustained.

7. Both parties attack the validity of the deeds. We do not deem it necessary to discuss the objections raised. Both deeds are in the nature of mortgages, and as such, we think, were properly executed.

8. It is, however, urged against the claim of the bonus givers that they did not comply with their contracts, and pay the full amount of their subscriptions, although the building was erected, machinery placed in it, some contracts taken, and some men employed. Mr. Moore and his associates had not complied with their contract. He testified: “Practically, there never were any active operations at the factory, so far as I know.” It was not contemplated that this building was to be built, and the machinery purchased, and the entire plant constructed upon the bonus subscriptions. It was understood and agreed that there were to be bona fide stockholders, liable upon their stock for whatever other funds should be necessary to complete the work. Instead of that, the bonus 'givers and Mr. Moore contributed all the funds that had been used. The company did not own the machinery that was placed in the building. All the machinery was obtained under a contract providing that the title remain in the vendor until paid for, and, shortly after this trouble began, the machinery was all taken under these contracts. For this condition of affairs Mr. Moore is responsible. He and his associates had broken their contract, and the bonus givers were under no obligátion to perform on their part. At the time the deed to Livingstone was made, neither he nor the other bonus givers knew of the contemplated action, or knew the financial condition the company was in. It is probably true that one of the purposes of the Schoonmaker brothers and Hultgren in making the deed to Livingstone was to destroy Moore’s security. Whether, in so doing, they acted in good faith, would depend upon whether their version of Moore’s agreement with them was true. Even though it were intended to defraud Moore, and though Mr. Livingstone knew nothing about it at the time, still he would be justified in accepting the deed, and the trust thereby conveyed, to secure himself and the others.

9. Defendants’ counsel rely upon Act No. 144, Pub. Acts 1895. Section 1 of that act makes it unlawful for any corporation to move, abandon, or discontinue in any way, to any material extent, any factory, etc., without repaying and restoring any and all moneys, bonds, lands, and other property which have been given or granted as a oonsideratioD or inducement to its location or construction. Section 6 provides that, in case of the.suspension of any such business on account of the financial failure of the corporation, bonus givers shall become and be creditors of such corporation to the amount contributed, having all the rights of other creditors. Clearly, the first ■section has no application. The sixth contemplates a failure. That is not this case. There had been no financial failure, because the organization had not fairly commenced the business for which it was organized. This case must, .therefore, be disposed of on the general principles of equity applicable to cases of this character.

10. The organization of the corporation was a fraud upon the bonus givers, and complainant, however innocent of intended wrong, was a party to it. He did not perform his contract to organize a company with some responsibility attached to it, and with some tangible assets aside from the bonuses. It was his duty, under his contract, to do this for the protection of the bonus givers. Is it equitable now that he should escape the liability of a stockholder, and be protected in his debt, by taking, the lands and bonuses contributed to pay it ? The bonuses, including the land, amount to about $6,000. Under the theory of the complainant there is not now, and was not then, a stockholder of any financial ability, and he knew this. The land and the building thereon are all the valuable assets left. To them Mr. Livingstone, who was not interested in the corporation, has contributed about $3,700. Is it equitable to permit Mr. Moore to apply this property upon his debt ? Is this such action as will satisfy the conscience of a court of equity? We think not. We think the lien of the bonus givers superior to that of Mr. Moore.

11. It is further insisted that the defendant Livingstone must first exhaust his claim against the corporation by ■.suit, judgment, and execution returned nulla bona. We have not before us the case of an ordinary creditor enforcing his claim against a corporation. This is a case of defrauded bonus subscribers, who have received no consideration whatever for the gifts made. Parties resort to a court of equity to obtain relief when they have no adequate remedy in courts of law. Technicalities cannot be invoked to defeat the ends of justice and of equity, when they form no insurmountable obstacle to relief. Mr. Livingstone has a mortgage deed, the purpose of which was to secure him and the other bonus subscribers. He had possession under that deed. Mr. Moore resorts to a court of equity to foreclose his lien. All the parties interested, both lien holders, the bonus subscribers through Mr. Livingstone, the corporation, and the property itself, are before the court. We see no obstacle to granting relief.

The decree of the court below will be reversed, and decree entered in this court declaring the lien of Mr. Livingstone superior to that of Mr. Moore. It is stated in the briefs that a receiver has already been appointed. If so, he will be directed to take possession, and proceed to sell and dispose of all the property of the corporation, and out of the proceeds pay — First, the costs of such proceeding; second, the amounts advanced by the bonus givers, including the land given by Livingstone at its value when the company was organized; and, third, to pay Mr. Moore. If no receiver has been appointed, the court below is directed to appoint one. The case will he remanded to the court below to carry out the decree in accordance with this opinion. Defendant Livingstone will recover the costs of this court.

The other Justices concurred.


text:
    URTEL v. CITY OF FLINT.
    1. Sidewalk — Defective Condition — Question for Jury.
    Whether a sidewalk which contained a plank broken in such a way as to make a depression of from four to six inches in width, fifteen to eighteen inches in length, and two to three inches in depth, which, when stepped upon, sunk to the ground, a distance of from three to four inches, was reasonably safe for travel, is a question for the jury.
    2. Same — Constructive Notice.
    A city is chargeable with notice of a defect in a sidewalk which had existed for several months, and could be seen for two-rods.
    3. Same — Personal Injury — Contributory Negligence.
    Mere previous knowledge of a hole in a sidewalk does not render one who was injured because of it guilty of contributory negligence in failing to avoid it, without regard to his having it in mind at the time, or to the care which he was^ exercising.
    Error to Genesee; Wisner, J.
    Submitted October 6, 1899.
    Decided December 2, 1899.
    Case by Charles Urtel against the city of Flint for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Ed. 8. Lee (J. 8..Parker, of counsel), for appellant.

      Brennan & Cook, for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment for $450 for injuries sustained by stepping into a hole in a sidewalk, which, it is alleged, the defendant city allowed to become and remain in a dangerous condition. The averment as to the fault of the city is as follows:

“By allowing one of the planks of said sidewalk to be- • come broken and splintered, thereby making a depression on the surface of said walk of from four to six inches wide, and fifteen to eighteen inches in length, and about two to three inches in depth, which depression, when subjected to the weight of a person’s foot and body, caused the splintered portion of said plank, to wit, the depression above described, to sink to the ground beneath the sidewalk, a distance of from three to four inches.”

There was testimony fairly tending to support the plaintiff’s allegation as to the character of the defect, and also tending to show that the sidewalk in question had been in the condition described for at least two months prior to the injury to plaintiff.

Defendant’s counsel contend that such a depression is not a dangerous place, and is reasonably safe and fit for travel, within the meaning of the statute. The question was raised by objection to proofs under the declaration, and also by request to charge. Counsel cite, in support of this contention, Weisse v. City of Detroit, 105 Mich. 482, and Yotter v. City of Detroit, 107 Mich. 4. In each of the cases cited, the defect alleged was a rise in the sidewalk. In the first case it was stated that the fact that the plank was not nailed down did not seem to have caused the injury. It was the same as though it had been nailed, but was li to 2 inches above the other, so thát the question was fairly presented whether such a rise was a defect in the walk so that it was not reasonably safe. It was said, in disposing of the case:

“If the plaintiff could recover in this case, every municipality would be compelled to exercise the most vigilant care over its streets, to see that no rise of two inches occurred along the line of travel on side and cross walks.”

The Yotter Case follows this holding. These two cases follow the holding that a rise of from two to three inches in a sidewalk is not such a defect as makes the city chargeable under the statute. The duty is thrown upon the traveler to look out for such slight variations in the walk, and it is assumed that, when properly used, no damage is likely to occur to a pedestrian traveling such a walk. This case presents a very different aspect. The defect did not consist in a slight rise in the sidewalk, but, according to the averments, the plank in question was broken so that there was a depression of from two to three inches, and which was most dangerous. When stepped on, it would sink down three or four inches, thus acting as a trip to one unused to stepping on the plank. We are satisfied that it was a fair question for the jury as to whether the walk was in a condition reasonably safe and fit for travel.

It is further contended that there was no evidence of •direct notice to the officers of the city, and tnat the character of this depression was not such as to afford constructive notice. The defendant raised this question by a request as follows:

“In this case there is no evidence of notice to the city of the defective condition of the plank in the place in the walk called the ‘driveway,’ where plaintiff, by his proof, claims he was injured. There is no proof of any actual notice, and the defect in the plank, as described by all the witnesses, was a latent one, not easily observed, and it was not such a defect as would be notice of itself to the city.”

There was testimony by numerous witnesses that this defect in the walk had existed for a number of months, and that it could be discovered at a distance of two rods. The defect could not, as matter of law, be said to be latent. Menard v. City of Bay City, 114 Mich. 450.

It is also urged that, as plaintiff had previous knowledge of the hole in question, he was guilty of negligence in stepping into the hole. The question was raised by the following request:

“The plaintiff in this case knew of the defect. To go to his home, the evidence shows, he might have avoided the place by walking on the other side of the street. I charge you that he is guilty of contributory negligence, and cannot recover.”

This request treats previous knowledge of the defect as sufficient to bar recovery, without regard to whether the plaintiff had it in mind at the time, or to the care taken, to avoid injury. The rule proposed in this request is not in harmony with our previous holdings, and the request-was properly refused. Lowell v. Township of Watertown, 58 Mich. 568; Sias v. Village of Reed City, 103 Mich. 312; Sehwingschlegl v. City of Monroe, 113 Mich. 683. See, also, Crites v. City of New Richmond, 98 Wis. 55, and cases cited.

Some complaint is made of the language used by counsel in the argument to the jury. We do not think it was of such a character as to influence the verdict.

The judgment is affirmed, with costs.

The other Justices concurred.


text:
    ST. JOHN v. ANTRIM IRON CO.
    Assumpsit — Conversion of Timber — Waiver of Tort.
    At common law, assumpsit may be maintained, at plaintiff’s election, for the conversion of property into money or money’s worth, or for the conversion of property which defendant held by virtue of contract relations with plaintiff. By statute (3 Comp. Laws 1897, §§ 11207, 11208), assumpsit also lies on behalf of one who has a right of action for the taking of timber or other trespass on lands, or for any other direct or consequential injury thereto.. Held, that there is no authority for bringing assumpsit against one who merely purchased for his own use, from a trespasser, wood cut and removed from plaintiff’s land.
    Error to Antrim; Mayne, J.
    Submitted October 6, 1899.
    Decided December 2, 1899.

      Assumpsit by Edgar St. John against the Antrim Iron Company to recover the value of certain wood cut by a third person from plaintiff’s land, and sold to defendant. From a judgment for plaintiff, defendant brings error.
    Never sed.

      T. J. O’Brien and James H. Campbell, for appellant.

      Nelson C. Weter, for appellee.
   Montgomery, J.

The plaintiff is the owner of the original title to the N. of the N. W. {- of section 26, town 28 north, range 7 west, Kalkaska county. In the winter of 1896-97, one James Boussum, claiming title under a tax deed from the auditor general for the taxes of 1892, entered upon the land, and cut and removed therefrom 538 cords of wood. This wood was hauled by Boussum and his licensees to Leetsville, and there sold to defendant, who burned the same into charcoal, and used the charcoal in the manufacture of pig iron. Subsequently the tax deed was vacated by a certificate of error. The plaintiff brought this suit in assumpsit, and recovered the value of the wood at the place of delivery.

It is perhaps to be regretted that the case must be determined by a ruling not going to the merits of the controversy, but we feel compelled to hold that, under the facts of- this case, there could be no recovery in assumpsit. "When the defendant has converted property of the plaintiff into money or money’s worth, the plaintiff may waive the tort, and sue in assumpsit, treating the sale as made on his behalf. So, where defendant holds possession of property by virtue of contract relations with plaintiff, and converts such property, the plaintiff may, at his election, proceed in assumpsit. These are the only cases in which the plaintiff has election, under the common law. Watson v. Stever, 25 Mich. 386; Tolan v. Hodgeboom, 38 Mich. 624; Tuttle v. Campbell, 74 Mich. 652 (16 Am. St. Rep. 652). Nor is the statute (3 Comp. Laws 1897, §§ 11207, 11208) broad enough to aid the plaintiff. This statute is entitled “An act to facilitate the collection of damages for trespass on or other injuries to lands.” The act provides that, in all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort, and bring assumpsit therefor. It is apparent that the plaintiff is not seeking to recover for a trespass on lands, and that, if he were, the defendant is not shown to have had any part in the trespass, except as buying the cord-wood after its severance can be considered as trespass. We think it cannot be so treated.

Judgment must be reversed, and no new trial ordered.

The other Justices concurred.