author: Grant, C. J.

text:
    HARRINGTON v. HUFF & MITCHELL CO.
    Judgments — Res Judicata.
    Where, in an action for rent, the plaintiff set up a former suit, alleging that the issue involved was fully determined and adjudicated in that case, and defendant pleaded the general issue and gave notice of a defense which might have been, but was not, interposed on the first trial, held, that the judgment in the first suit is res judicata of the defense interposed in the second suit.
    Error to Otsego; Sharpe, J.
    Submitted October 12, 1908.
    (Docket No. 36.)
    Decided December 21, 1908.
    Assumpsit by William A. Harrington against the Huff & Mitchell Company for rent. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      William, A Harrington, in pro. per.

      W. L. Townsend, for appellee.
    In August, 1903, plaintiff and defendant executed a written lease, by which plaintiff leased to defendant certain premises for one year, with the privilege of extending the time to 15 months, at a rental of $30 per month. Defendant continued in possession of the premises, paying the monthly rental, until March 30, 1905, when it vacated them. It served upon plaintiff a written notice that it would vacate the premises in 30 days. At the expiration of that time, defendant moved out and surrendered the keys to plaintiff. Plaintiff claims that he took only such care and possession of the premises as were necessary to their proper protection, and that he then informed defendant’s agent that he should hold it for the rent for the residue of the year. When the next month’s rent became due, plaintiff brought suit therefor in justice’s court. The judgment was appealed to the circuit court, where the plaintiff recovered verdict and judgment for the month’s rent. At the expiration of the four months after the month involved in that suit, plaintiff instituted this suit to recover the rent for the four months. In his declaration he set up the former suit, alleging that the issue here involved was fully determined and adjudicated in that case. Defendant pleaded the general issue, and gave notice of release and surrender of the premises and acceptance thereof by plaintiff. The court instructed the jury that, if defendant at the expiration of a year remained in possession of the premises without any new arrangement, the lease was renewed for another year, and that it was decided upon the former trial that the lease was one from year to year. The only question submitted to the jury was that of release and surrender and the unqualified acceptance thereof by the plaintiff. The jury found for the defendant.
   Grant, C. J.

(after stating the facts). The principal and only question which we need to determine is whether, by the judgment in the former suit, the liability of the defendant is res ad judicata. An examination of the declaration, plea, testimony, charge of the court, and the judgment rendered establishes the fact that both suits are based upon the same lease. The sole issue in the former case was: Is the written lease still in force, or has it been superseded and abandoned by the mutual agreement of the parties ? The evidence as to the notice given by the defendant, the acceptance of the keys, the possession taken, the conversation between them, is sub-, stantially the same in both suits. The plaintiff made his case by the production of the lease and evidence that the defendant had continued in possession under it. The burden, as the court held, was then cast upon the defendant to show that the lease was not in force, and had been superseded by some other arrangement. It was the duty of the defendant to interpose all the defenses to that issue upon which it relied. The law does pot permit a defendant to split up his defenses to a single issue. It would be a reproach to the law to permit the defendant to rely, in one suit for the rent, upon the claim that the tenancy had been changed by agreement from a yearly rental into one from month to month, and, in a suit upon the next month’s rent, to interpose another defense, that of surrender and release, and, when sued for a third month’s rent, to interpose, perhaps, the defense of a violation of the contract on the part of the lessor. This we understand to be the universal rule, and the authorities cited by the defendant are not in conflict with it.

In Harrison v. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405 (3 L. R. A. [N. S.] 954), the rule is stated thus:

“When the second suit is upon the same cause of action and between the same parties as the first, the judgment in the former suit is conclusive in the latter as to every question which was or might have been presented in the former.”

In Henderson v. Henderson, 3 Hare, 100, the Vice Chancellor states the rule thus:

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

The same rule is recognized in Cromwell v. County of Sac, 94 U. S. 351. That case well illustrates the application of the rule, and points out the distinction where the former decision is res adjudicata, and where it is not. In that case the former suit was upon a bond issued by the county of Sac, and it was held under the evidence that the plaintiff was not a purchaser for value, therefore not a bona fide purchaser. In a suit upon other bonds, he was permitted to show that' as to those bonds he was a purchaser for value and a bona fide purchaser. The former suit was held not to estop the plaintiff to setup that claim. The same bond was not in issue in the second suit. If the second suit had been brought upon an interest coupon of the same bond, it would have involved the good faith of the purchase of that bond, and the judgment would have been res adjudicata as to suits upon the other coupons. This court has also recognized the same rule. Jacobson v. Miller, 41 Mich. 90; Bond v. Markstrum, 102 Mich. 11.

The defendant in the first suit permitted its case to go to the jury upon the theory that it had made an arrangement with the plaintiff for a verbal lease from month to month, and that this superseded the written lease. The same testimony as to the surrender and release was before the court in that case as in this. It could have asked the court for an instruction upon that point. At any rate, it was a defense it was then bound to make or be thereafter estopped to assert it upon a second suit for rent.

Judgment reversed, and new trial ordered.

Blair, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    COMFORT v. ROBINSON.
    1. Limitation of Actions — Fraud—Notice.
    In an action for fraud and deceit, it appeared that in 1893 plaintiff and her husband entered into a land contract with defendant, by the terms whereof they deeded certain property and executed a promissory note, upon the payment of which note defendant agreed to deed to them certain other property. To secure the performance of the contract upon the part of defendant, he executed a mortgage upon the property conveyed by plaintiff and her husband. Plaintiff’s husband died in 1898, shortly after a subpoena had been served upon plaintiff giving notice that the property which defendant had agreed to convey was being sold under mortgage foreclosure. Plaintiff at this time was suffering from nervous prostration, was unfamiliar with business affairs, and, relying upon the promises of defendant, who acted in the capacity of a friend, to deed the property under the contract, and that he would cancel the note given by plaintiff and her husband, she released the mortgage given by defendant. In 1904, defendant informed plaintiff that he could not carry out the terms of the contract, and in 1906 she sued for fraud and deceit in inducing her to release defendant’s mortgage. Held, that, as defendant had acted in the capacity of a friend, and had lulled plaintiff into confidence by his repeated promises to convey the property under the contract, he was estopped to plead the statute of limitations, since he cannot make the ignorance which enabled him to perpetrate the fraud the basis of his defense.
    2. Husband and Wife — Property Rights — Survivorship — Mortgages.
    The interest of a wife in a land contract executed by herself and her husband, whereby certain property was to be deeded to them, was not an interest in personalty, and, upon the death of the husband, the entire interest passed to her by right of survivorship. And a mortgage running to her and her husband, given to secure the performance of the contract, was a mere incident to the obligations of the contract, and followed the devolution of the title thereto.
    Error to Wayne; Mandell, J.
    Submitted October 13, 1908.
    (Docket No. 12.)
    Decided December 21, 1908.

      Case by Jennie Comfort against Edwin B. Robinson and George E. Moody for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed as to defendant Moody, and reversed as to defendant Robinson.

      Frederic T. Harward and Jefferson G. Thurber, for appellant.

      Graves, Hatch & Wasey, for appellee Robinson.

      Seward L. Merriam, for appellee Moody.
   Blair, J.

Plaintiff and her husband, on the 3d day of January, 1893, entered into a land contract with defendant Robinson, in accordance with the terms whereof they deeded to Robinson store property in Kalamazoo valued in the contract at $5,000 and a vacant lot in Detroit valued therein at $2,000. The Comforts also executed and delivered to Robinson their promissory note for $1,000 for the balance of the purchase price of 40 lots in Detroit, known as the Sunnyside property, which defendant Robinson agreed in the contract to convey to them upon payment of the promissory note. To secure performance of the contract on his part, Robinson executed to the Comforts a mortgage for $5,000 upon the store property in Kalamazoo. Plaintiff’s husband died May 28, 1898, and soon thereafter defendant Robinson, who had had business relations with Mr. Comfort, and who had been regarded by them and trusted by them as a friend and a thoroughly honorable man, called upon Mrs. Comfort.

“ He said if I had- — -he was talking in my interest so he said — and he said, if I could dispose of these lots, I would be able to realize some. My husband being dead, it would be a good thing, and we talked it over in a friendly manner, and he proposed that we have a meeting, and we advised about it, and take the best means of deciding about the property so that I could dispose of it, and then he said: ‘ Mrs. Comfort, you should have someone advise you about this, and it would be proper.’ And I acquiesced in that, and, after further talk, I proposed Mr. Moody, and he immediately assented to that and said he thought Mr. Moody would be a very good man, and then we talked about the matter of the meeting.”

In accordance with their arrangement, the parties met on the 3d day of August, 1898, at the office of Mr. William Atkinson, where defendant Robinson proposed that, if plaintiff would discharge the $5,000 mortgage upon the Kalamazoo property, he would execute to her “a clear deed of the Sunnyside property,” releasing her from payment of the $1,000 note. Plaintiff’s adviser and Mr. Atkinson advised her that this was a desirable arrangement for her, and that she could rely with confidence upon Mr. Robinson’s agreement to deed the Sunnyside property to her.

“He said to me, and said individually and they said jointly, and repeated it over and over, that I was to get a deed of the property. I was weak at the time, and I had that hold against the property, and he said: 5 Mrs. Comfort if you will discharge that mortgage of $5,000 on the Kalamazoo property, I will have a chance to sell it and I can’t sell it unless you do and clear up the property, and I will give you a clear deed of Sunnyside property.’ Those were his words, and I will stake my life on it.”

In accordance with the advice received, plaintiff executed a discharge of the mortgage, which was duly recorded in the register of deeds’ office for Kalamazoo county on August 9, 1898. From some time prior to this agreement up till 1904 or 1905, plaintiff was a wreck from nervous prostration. She was in bed for weeks at a time, had sinking spells, and was doctoring for it all the time. A day or two after she discharged the mortgage, plaintiff called upon Mr. Robinson for her deed; “and he spoke indefinitely about it and put me off. I can’t remember the words he used, but he said something like ‘not now,’ and put me off, and I had still confidence in his word and went away.” She saw him several times after this, and he put her off to some future time. After an interval of several years and in December, 1904, or January, 1905, defendant Robinson told plaintiff that he could do nothing for her.

“That is what opened my eyes. It was hard to open my eyes, for I thought he would do as he agreed. * * *
Q. The only thing since 1898, up to the present time, that has opened your eyes is the fact that Mr. Robinson finally told you he could not do anything more for you ?
‘‘A. Two facts. He failed all through that time to fulfill his promise, and I was still hoping that he would. Along in 1904 and 1905, he gave me word that he could not do anything for me and that would open anybody’s eyes, if I had not had the confidence in him that I had.”

Up to the time that defendant Robinson definitely refused to do anything for her, plaintiff believed that he would keep his word and execute the deed to her. In the fall of 1906 plaintiff commenced suit against defendants for fraud and deceit, alleging, among other things, that she learned of the fraud practiced upon her—

“ Within the past two years, * * * that when said defendant, Edwin B. Robinson, promised to deed the said 40 lots of the Sunnyside subdivision to the said plaintiff upon her, giving to him a discharge of the $5,000 mortgage as aforesaid, the said defendant, Edwin B. Robinson, had no intention of carrying out the same, but well knew that he was unable then and there to deed the said lots to the said plaintiff, the said lots having then passed out of the possession and control of the said defendant, Edwin B. Robinson.”

The defendant Moody is charged with conspiring with defendant Robinson to defraud plaintiff by advising and persuading her to enter into the agreement and to discharge the mortgage. Defendants pleaded the géneral issue, and gave notice of the statute of limitations. At the close of plaintiff’s proofs, both defendants moved for a verdict in their favor. The court granted the motion of defendant Moody, and thereupon the following occurred:

“During the argument, upon the motion of counsel for the defendant Robinson to direct a verdict, the fact was adverted to that a mortgage on the Sunnyside property had been foreclosed. And thereupon the court announced as follows:
The Court: ‘ I will hear that proof in this case. I will withdraw the determination until I hear the testimony.’
“And thereupon counsel for the defendant Robinson offered in evidence the records and files of the case in the circuit court for the county of Wayne, in chancery, Calendar No. 18,738, in which Lawrence Snell, as administrator, was complainant, and Edwin B. Robinson et al. were defendants, and especially the subpoena in the case bearing date March 15,1898, showing service of process upoiq Jennie Comfort in March, 3898, and that the decree in the case was entered upon February 27, 1899. This evidence was offered by counsel for defendant Robinson for the purposes of the motion. The bill of complaint described the property known as the Sunnyside property.
“The Court: ‘For th¿ purpose of determining it on the statute of limitations, and that is the only thing I am dealing with, I think enough has been shown by this offer. It is really not necessary to have the other matter determined.’”

We agree with the circuit judge that the proofs in the case “utterly fail to connect George E. Moody with any wrong or fraud committed upon the plaintiff or any of her rights.” As to the defendant Robinson, the.court held .that a prima facie showing of fraud was made, and we also agree with the court in this respect. The court, however, held that plaintiff must conclusively be deemed to have had actual or constructive notice of the fraud in consequence of the service of the subpoena upon her in the foreclosure proceedings, and he therefore directed a verdict in favor of defendant Robinson, for the reason that plaintiff’s cause of action was barred by the statute of limitations. In the course of his opinion the court said:

“It appears in evidence now that this very property that was to be transferred to her under this agreement that she claims she had with Mr. Robinson was taken out of the possession of Mr. Robinson in a foreclosure suit begun on March 5, 1898, the very year they had their dealings, and it appears that a subpoena was on that day served on Mrs. Comfort which gave her notice that the mortgage that she held on that property was to be foreclosed. Now, the rule of law is that one should be diligent. One cannot sleep on one’s rights and afterwards complain of another’s wrongdoing, but one must exercise some degree of diligence at least, and the excuse that Mrs. Comfort gives for not beginning the suit within the time allowed by the statute was that she had no reason to suspect, and she was not put upon inquiry, that no facts came to her attention to make her ask or make inquiry so that she could find out what the intention of Mr. Robinson was at the time he made the promise. It is in evidence, and uncontradicted, that at the very time or about the time this matter was under negotiation there was a lawsuit of which she had knowledge pending on the chancery side of this court to foreclose a mortgage on this land, and it is in evidence that the land was subsequently sold, and it appears that for six years and upwards she had expected Mr. Robinson to transfer the property to her that she should have known, if she did not know, that he had lost by reason of the foreclosure of the mortgage away back in 1898. So it seems to me that I would be amiss in my duty in interpreting the law if I did not instruct you that whatever rights she may have had she has lost by reason of lapse of time.”

The most favorable construction that the testimony will admit of must be indulged in in plaintiff’s behalf before the court may properly hold that she has not made out her case. The fraud relied upon in this case is that the defendant Robinson, practicing upon the trusting confidence of the bereaved widow of his friend in his honor as a man and his professed desire to help her, secured from her $7,000 worth of property for which he never intended to, and as a matter of fact never did, give her any equivalent whatever. The testimony warrants the inference that plaintiff did not know that defendant Robinson could not carry out his agreement of August 3, 1898, or that he did not intend to. On the contrary, the jury would have been justified in finding that down to December, 1904, she steadfastly believed that he could and would do as he had promised. The direction of a verdict, therefore, can only stand upon the finding that the service of the subpoena upon her put her upon inquiry, and that she must be held responsible for the facts which such inquiry would have developed. The subpoena was served upon plaintiff March 5, 1898, during the period when she was, according to the record, suffering from nervous prostration. On August 3,1898, perhaps in consequence of the foreclosure proceedings, defendant Robinson induced her to discharge her mortgage in consideration of her release from payment of the note and his promise to deed the Sunnyside property to her. It is not reasonable to believe that plaintiff would have made or her advisers would have recommended the making of the agreement if they had known the facts. The making of the agreement was a representation by defendant Robinson that he could carry it out, and that inquiries were unnecessary. The death of her husband, her shattered nervous system, her unfamiliarity with business, her trust in defendant’s friendship and desire to assist her, differentiate the plaintiff’s case from the usual case of fraud. That she maintained her trust in defendant much longer than others would have done, may be cause for surprise, but, in the light of her undisputed testimony, such trust must be deemed established. We are of the opinion that the service of the subpoena must be considered in connection with the plaintiff’s condition, the representations of defendant, and the agreement actually made, in determining whether plaintiff should be charged as a matter of law with knowledge of the facts concerning the foreclosure proceedings. If defendant knew that plaintiff was, in fact, ignorant of the import of th.e foreclosure proceedings or that they concerned her, and obtained the discharge of the mortgage because of such ignorance, he cannot now make the very ignorance which enabled him to perpetrate the fraud the basis of his defense.

It is further contended that, as the mortgage ran to her husband and herself, plaintiff did not acquire title to the mortgage as survivor (Wait v. Bovee, 35 Mich. 425), that there was no evidence that plaintiff was the legal representative of her deceased husband, and that, under her declaration, she could not recover for an injury to her individual interest. Plaintiff was the owner of the lot in Detroit which she had purchased with money earned by teaching school, and she testified:

“At that time I owned property in Kalamazoo. I got it by gift personally from my husband. There was a mortgage upon it which I cleared with my own school money.”

The Sunnyside lots were to be deeded to plaintiff and her husband, and, if such deed had been made prior to Mr. Comfort’s death, plaintiff would have become the owner of the property by right of survivorship. The interest of plaintiff under the land contract was not an interest in personalty, and, upon the death of her husband, the entire interest passed to her by right of survivorship. Bowen v. Lansing, 129 Mich. 117 (57 L. R. A. 643). Since the mortgage was a mere incident to the obligations of the land contract, it followed the devolution of title thereto.

The judgment is reversed, and a new trial granted as to defendant Robinson, and affirmed as to defendant Moody.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    VALENTINE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Railroads — Fires—Negligence.
    In an action on the case charging that, after fire had been communicated to forest products, piled along defendant’s right of way, and to certain cars standing on adjoining side tracks, and after plaintiff had separated his products and made an opening between the part burning and the part not burning, the defendant carelessly and negligently caused the burning cars to be moved and left adjacent to plaintiff’s products which had been separated, evidence examined, and held, to have been properly submitted to the jury.
    2. Same — Negligence—Responsibility.
    Where defendant’s switching crew had been sent to the scene of a fire and co-operated with others in saving property from destruction, it cannot be said, as a matter of law, in the absence of a showing as to what the orders were, that they were not acting under the authority of defendant.
    S. Appeal and Error — Charge to Jury — Materiality.
    Where defendant’s witness had testified that plaintiff protested against the moving of a burning car into a position adjacent to property he was trying to save, defendant could not object to the charge on that ground. And, if the other facts were established, it was immaterial whether plaintiff protested or not.

      4. Same.
    Error cannot be assigned upon a charge to the jury when it is in favor of the appellant, and based upon the testimony of its own witness.
    Error to Schoolcraft; Steere, J.
    Submitted October 13, 1908.
    (Docket No. 45.)
    Decided December 21, 1908.
    Case by John M. Valentine against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for the negligent burning of certain timber. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      The following is the plat referred to in the opinion:

      C. W. Dunton (Alfred H. Bright and E. C. Chapin, of counsel), for appellant.

      Virgil I. Hixson, for appellee.
   Blair, J.

The plaintiff in this action seeks to recover from the defendant the value of certain forest products alleged to have been consumed by fire on May 22, 1905, by and through the negligence and carelessness of the defendant. The main track of defendant’s railroad, running from Minneapolis to Sault Ste. Marie, crosses the lower part of the Upper Peninsula in an easterly and westerly direction. The private logging railroad of the Thompson Lumber Company crosses defendant’s track in Schoolcraft county, running in a northerly and southerly direction, from Thompson on Lake Michigan northerly into the timber about 25 miles. The plaintiff’s declaration contains practically two counts:

(1) That the defendant carelessly and negligently permitted fire to escape from its engine and to be communicated to said forest products.
(2) That after fire had been communicated to said products and to freight cars standing on a side track adjacent to said forest products, and after plaintiff had separated his products and made an opening between a part then burning and a part of the same, not burning, the defendant carelessly and negligently caused burning cars to be hauled out of the fire and left adjacent to a part of said forest products which had been separated, causing the fire to communicate thereto and consume the same.

The map printed herewith shows the situation in question, and the distances material to the inquiry. It was proven upon the trial that the fire started from an engine of the Thompson Lumber Company on the Thompson line, and plaintiff thereupon abandoned the first count in his declaration above mentioned, and recovery was had upon the second count. Motion for a new trial was entered by the defendant, and the same was refused, the reasons given for such refusal, exceptions taken, and error assigned thereon. Defendant brings error.

It is the claim of the defendant:

(1) That no actionable negligence was shown on the part of the defendant.
(2) That the acts of the defendant in removing said cars were entirely compatible with the degree of care re.quired by the law under the circumstances.
(3) That it was conclusively established on the trial that the property in question was doomed by fire, and would have been consumed, regardless of the action of the defendant in moving the cars.
(4) That the court in charging the jury erred in assuming, contrary to, the plaintiff’s own testimony, that the moving of the burning car was against the protest of plaintiff.
(5) That the court erred in charging the jury and submitting to them, as a question of fact, whether the burning car was kicked back at the request of the plaintiff to a point designated by him.
(6) The court erred in refusing to grant a new trial for each of the errors above mentioned and in the reasons assigned by him for so doing.
(7) The court erred in refusing defendant’s motion for a new trial and holding that the verdict was not against the clear and manifest weight of the evidence upon the proposition that the forest products were doomed to destruction by fire before the moving of the cars.

The third point raises the principal question in the case. The evidence not only supports the plaintiff’s second count, but, in our opinion, the great weight thereof convicted defendant’s switching crew of negligence, and the question for our determination is, assuming defendant’s responsibility for the negligence of the switching crew, Does the record conclusively prove that the destruction of the timber was inevitable, regardless of its negligence ?

The testimony is in conflict on most of the material facts. There was evidence tending to show that the plaintiff’s forest products were piled, upon bark theretofore peeled, along the westerly or southwesterly side of the Y, and, adjoining his timber on the east, was the timber of others; that the timber which plaintiff was endeavoring to save was west of the middle point of the Y and of a certain box car standing thereon. Cedar was also piled on the easterly or northeasterly side of the Y, but the testimony tended to show that it did not extend beyond the opening made by plaintiff towards the west end of the Y or farther west than the box car. The defendant’s witness Tebo, among others, testified:

“ The cedar was piled a distance of about 200 feet along the inside of the Y. It was piled- pretty well towards the east end of the Y on the inside, and extended from thederailer on the east end about 200 feet westward, or something like that, probably about 150 feet from the derailer of the Thompson line.”

Defendant’s witness Claude Rivers testified:

I was inside of the Y track. I was not on the outside of the Y track at all. I don’t know how the fire was burning in the cedar on that side. When I got there, it was all burned over on the inside of the Y. There was still some fire burning in some stumps and smouldering along the track where the cedar had been burned. That was along by the box car, and to the south of the box car. The timber on the inside only came up to the box car to the westward. ”

Its witness Ellis testified:

“About three weeks before this there was a fire at the junction, and Mr. Valentine and I put it out. That fire was burning near the center of the triangle. * * * It did not burn up the timber, but burned to the timber, so the westerly end of that triangle had been burned off some weeks before.”

The switching crew of the locomotive of the Thompson Company which set the fire gave testimony, on defendant’s behalf, tending to show that the fire was set at about half-past 12 that day, at a point marked “ T ” on the map, five or six rods southwest of the junction of the two railroads :

“The wind was from the northeast. The wind was blowing at a pretty good breeze, and it didn’t take long to get into the cedar on the inside of the Y. That practically all burned up the first thing. Then the first thing we did, there were 15 or 16 cars on that leg of the Y, and we pulled out 12 box cars out of the west leg of the Y. There were 15 or 16 cars on the west leg of the Y, and we pulled out 12 box cars, and left three or four there. * * * The fire was so intense in the cedar to the east of the gap between the cars that we couldn’t get in there to couple on to those cars further west.”

The testimony as to the location of the box car from which the fire was communicated to plaintiff’s timber and the point where the opening was made by him was in sharp conflict. Plaintiff testified:

‘ ‘ I got some men to help me make an opening in the cedar. We made this opening a little more than half way to the switch towards the Soo track. This we did to prevent that part of the cedar from burning. That is, that part towards the Soo track. It was at a place where there was only one course, and we took posts out of there and opened it up so it would be clear space, so that when it burned up to that point it wouldn’t burn any further. The wind at this time was in a northwesterly or westerly direction. It was blowing from Delta Junction towards the switch. It was very near along with the Thompson track. There were some cars on the west switch track. I noticed one a little more than half way, not quite half way, up the switch track from the Thompson track. It was loaded with spruce or balsam or hemlock. It was something over 300 feet on the switch from the Soo line end. This car was burning. We made the opening to the westward of this car; that is, between the car and the Soo line end of the switch. We made the opening as close to the car as we could stand it for the heat. * * * We were getting the cedar out of the way, and putting sand on there so as to stop it. * * * I don’t know how long we were engaged in making the opening and throwing up the sand, probably an hour or an hour and a half — it might have been two hours — I cannot tell how long it was. * * * While we were working to make this opening, getting this space opened as we thought to stop the fire, the switch engine backed in on the spur from the Soo line track, and coupled on to the car which was on fire, and drew it up abreast of the cedar, which we had separated from the burning cedar and left it there. When they left the car there, the wind blowing in the direction towards the cedar communicated the fire to the grass and to the cedar, and we had to get out of the way. The cedar was about 15 or 20 feet from the track. Between the spur track and the cedar was. dry grass. This car when left was left about 120 feet from the Soo line end of the switch. It had been moved about 190 feet. I went up there the next day and measured the distances. The car that was moved up to within 120 feet of the Soo line end of the switch was burned. After they moved the car up there opposite the cedar we had to quit. It got too hot; everything burned and we had to get out of there. I was unable after that to do anything towards saving my cedar, except there was a small lot of poles that lay separate towards the Soo line track, and we threw some dirt around them so as to save a small amount of them. * * * The box car was easterly about 85 feet from where I made the opening in the cedar.”

Other witnesses for plaintiff testified:

“Before they coupled on to these two cars, the cars stood even where we were parting the cedar. These two cedar cars were not afire. I noticed a box car on the switch. We had pushed it out into the fire. It was then all afire. It was loaded with pulp wood. * * * It was some time after 12 o’clock when I got there. I don’t know positively what time it was. Dufour, Valentine, and his son were there at that time. Valentine was at work at his cedar, and Dufour was over at his own cedar trying to save it. The box car was then about halfway up the switch track. * * * At the time we were working there, there was no fire to the westward of us. It was all on the east side. While I was there the Soo line switch engine moved in from the Soo track on the west leg of the Y, and backed down in there, and pulled the car up, I should judge, about four or five car lengths up in front of this pile we had divided, and uncoupled from it and left. It was on fire when the engine coupled on to it. It was blazing quite hard when they uncoupled it, so hard that nobody could do anything with it. This car was drawn up there, and the cedar to the west of us burned. We had to quit, and coüldn’t do anything more. We even lost our shovels. * * * There was nothing to communicate the fire from the burning cedar to the unburned cedar before the car was moved. After the car was moved it would set the whole thing afire. * * * When Mr. Valentine and I reached there the box car was down on the Y about eight rods from the Delta switch. * * * When I speak of the Delta track, I mean the Thompson track. Its old name, was Delta. * * * We divided the pile about half way between the two switches, I should judge. * * * The fire was below towards the Thompson line. I do not know of any fire towards the Soo line from where we divided the posts. I noticed a flat car and a box car on the Y. The box car was towards the Thompson track from where we were working. I don’t remember whether the car was on fire or not, when I got there. After I had been there probably an hour the switch engine came in on the Y. I was helping Mr. Valentine at the place I have described, making the opening. The Soo line engine came down the Y from the west end and pulled those cars up there, cut loose from the box car and left it stand there right about opposite where we were working. The box car was burning rapidly when it was pulled up there. We stopped work, and left when they dropped the car there. It was no use to work longer. We were dividing the pile, throwing the posts around.”

The testimony tended to show that the poles that were saved by plaintiff’s efforts were a few feet west of his forest products which were burned. The defendant’s switch engine reached the fire at 2:15 or 2:20 p. m., and at that time the timber piled on the inside of the switch was practically burned up, but “ there was no fire on the outside of the Y, where we were, right about where the box car was.”

Defendant does not allege or contend that it was necessary to destroy the plaintiff’s property in order to save its own. It stands upon the proposition that his timber was doomed to destruction before it moved the burning car. It is evident that the plaintiff hoped to save a portion of his timber, and that he and his assistants, who were cognizant of all the conditions, believed that such hope was not a forlorn one. They had not finished their efforts to protect the timber when the switching crew moved the burning car, but were in the midst of such efforts. They were widening the gap and throwing sand upon inflammable materials when the moving of the car forced them to abandon their efforts. Although the fire was raging fiercely to the east of the gap, the western end of the triangle had burned over three weeks before, and there was no imminent danger to windward of the separated timber. The wind, blowing parallel with the Thompson line track, was not blowing towards plaintiff’s timber, but practically away from it, and the danger was from the fire backing up through the line of timber. The fire had been burning at the east end for nearly two hours, and still had not advanced near enough to the gap to prevent plaintiff and his assistants working there. Even though the plaintiff’s chance to save his timber was, as alleged by defendant’s counsel, merely “a gambler’s chance,” he had a right to take it, and the defendant had no right to destroy such, chance and render certain the destruction of his timber. Furthermore, after being driven from his work, the plaintiff still persisted in his efforts to, and actually did, save a portion of his timber only separated a few feet from the line of burning timber. Where a certain result is alleged to be a necessary sequence of the operation of natural laws, a correct judgment must usually depend upon an exact knowledge of so many determining factors that such determination must generally be for the jury. Certainly, where a party, without legal excuse, has anticipated the operation of natural laws, and forestalled the doom alleged to be impending, the burden must rest upon him to show, by clear, undisputed, and conclusive evidence, the existence of every fact essential to the validity of his proposition. Thoburn v. Campbell, 80 Iowa, 338; Harrison v. Wisdom, 7 Heisk. (Tenn.) 99. We are of the opinion that the circuit judge did not err in submitting this question to the jury, and in declining to set aside their verdict upon the ground that it was against the clear weight of the evidence. We do not intend to intimate, in disposing of this question, that the point would be available under the plea of the general issue, if objection were made upon that ground.

The first and second points may be considered together. The negligence of defendant was properly submitted to the jury, unless, as urged by defendant’s counsel upon the oral argument, defendant was not responsible for the acts of its switching crew. Defendant’s witness Deemer, who had charge of its switching crew, testified:

“We were at work here, and was informed by a messenger boy of the fire shortly after dinner. We left our work at the shingle mill, went to the depot and got orders to go to Delta Junction. Arriving there we stopped just east of the Diamond. I asked what they wanted us to do. Mr. Cooper, superintendent of the Thompson Lumber Company, was there. He was also manager of the Thompson railroad. I believe it was Cooper to whom I spoke. He said he thought I had better try and save those three cars on the west leg of the Y. When he told me to do so, I went in on the Y, coupled on to them, and started to pull them out, and there was a protest set up that I shouldn’t pull them out, and I rung the engineer down, and he stopped. Valentine made the protest.”

It does not appear specifically what the orders were to the switching crew; and the court cannot say, as a matter of law, that the crew was turned over to the Thompson Lumber Company and subjected to its orders. It is quite as reasonable to infer that the crew was sent to the junction to protect the defendant’s property by co-operating with others in such manner as seemed advisable to the crew.

Fourth. Defendant’s witness Deemer, as above quoted, testified that he moved the car against plaintiff’s protest. He further testified:

“When we moved in there, there was no protest against moving the car out. When we started to move it out, there was a protest. I was standing right along the car at that time. They said, ‘ Stop, where are you going with that car?’ We stopped. I said, ‘What do you want?’ They said, ‘Kick it back.’ We proceeded to do so. I think it was Mr. Valentine who said that. I did not pay much attention to who was there.”

The court charged the jury upon this subject, in part:

“ If you should find that the crew of the switch engine, against the protest of the plaintiff, did negligently pull and place a burning car directly opposite to his timber on the windward side, in such position that it was evident that the burning car would injure the timber he was trying to save, and drive away those trying to protect it, and if you find from the evidence that the destruction of the timber, which otherwise might and would have been saved, was caused by that act, then the plaintiff is entitled to recover such damages as resulted from that act.”

In our opinion, if the jury found the existence of the other facts, it was immaterial whether a protest was made or not, and, in view of Deemer’s testimony, the objection was not open to defendant.

Fifth. The charge, in the respect complained of, was in favor of the defendant and based upon the testimony of its witness Deemer.

We are of the opinion that no errors were committed by the trial judge, and the judgment is affirmed.

Grant, O. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    HARRINGTON v. DICKINSON.
    1. Taxation — Tax Sales — Setting Aside Assessments — Part Payment of Tax.
    A bill will not lie to set aside an assessment for the construction of a drain and to restrain the sale of land therefor, where it is conceded that the proceedings are regular and the assessment valid, but complainant alleges part payment and an agreement with the tax collector to offset the amount of a contract for the balance of the tax; since the contract was not performed, nor is there authority in law for the payment of taxes in installments.
    2. Same.
    Where there is a valid assessment and a decree for the sale of land for nonpayment, all questions; except that the taxes were paid, the property exempt, or the court was without jurisdiction, are foreclosed by the decree. Rumsey v. Griffin, 138 Mich. 413.
    3. Judgments — Degree Pro Confesso — Collateral Attack.
    A pro confesso decree is as binding upon the parties thereto upon all questions involved in the suit as is a contested decree on the same questions; and where complainant did not appeal from a decree for the amount of the assessment, he cannot attack the decree collaterally.

      4. Equity.
    A bill to set aside an assessment and to restrain a sale under a decree for delinquent taxes, because the amount to be earned by complainant under an uncompleted contract to build part of the improvement for which the assessment was made will cover his assessment, is without equity; since (a) he should have paid the assessment and collected the contract price when the work was completed; and (b) he does not give any reason for not appearing and contesting the former suit.
    Appeal from Calhoun; North, J.
    Submitted October 14, 1908.
    (Docket No. 61.)
    Decided December 21, 1908.
    Bill by James W. Harrington against Edward D. Dickinson, drain commissioner, Frank J. Dibble, county treasurer, and James B. Bradley, auditor general, to set aside an assessment for taxes, and to restrain a sale of certain land. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Hatch & Page, for complainant.

      John E. Bird, Attorney General, and L. E. Stewart, Prosecuting Attorney (Charles W. McGill and George L. Hauser, of counsel), for defendants.
    The bill of complaint alleges: That complainant is the owner of the lands described therein; that May 12, 1900, a petition was presented to the county drain commissioner to clean out, deepen, and widen a certain drain, describing it; that July 16, 1900, the commissioner made his order establishing the drain; that the commissioner subsequently obtained releases from all persons through whose lands the drain passed; that contracts for doing the work were duly made with various parties whose lands were subject to assessment for benefits; that complainant took a contract to do the work on one section of the drain; that his lands were assessed for benefits to the amount of $231; that complainant proceeded with the work under his .contract, but had been prevented from completing it by the failure of the contractors below him to furnish a sufficient outlet; that January 4, 1902, complainant paid the township treasurer $41 upon his special assessment, which was agreed to be payment in full of his tax other than the completion of his contract, which he was willing to complete; that the township treasurer returned his said tax as unpaid, and the lands were offered for sale under the petition of the auditor general; that complainant intervened in said proceeding, and the court entered a decree striking his lands from the list of lands offered for sale; that the board of supervisors of the county have never ordered a reassessment; that the defendant drain commissioner subsequently made a determination of a reassessment of said tax on his lands; that said reassessment was returned to the supervisor and spread upon the roll for the year 1904; that his contract is still in force, and he is willing to perform it; that, under the petition by the auditor general for the sale of delinquent lands for the year 1904, and previous years, a decree has been made for the sale of his lands for said tax; and that the treasurer will proceed to sell unless restrained by injunction. The bill prays that the original assessment be declared void and of no effect, that the attempted reassessment be declared null and void, and that the county treasurer be enjoined from selling his lands. To this bill the defendants interposed a demurrer, for the reasons:
    (1) That the matters set forth in said bill were foreclosed by the decree rendered on the petition of the auditor general.
    (2) That this decree cannot be attacked collaterally.
    (3) That there is no equity in the bill.
    The demurrer was sustained, and complainant has appealed.
   Grant, C. J.

(after stating the facts). All the drain proceedings are conceded to be according to law. The assessment is valid. Complainant has not paid the taxes assessed. There is no authority of law for the alleged agreement between complainant and the tax collector to offset the amount of his contract against the taxes levied. He had not then performed his contract. Neither is there any authority of law for paying taxes in installments. Sayers v. O’Connor, 124 Mich. 256.

Counsel for complainant concede that he has not brought his case within the two reasons for which alone decrees and sales in foreclosure tax proceedings can be set aside, viz., that the taxes were paid, or the land exempt from taxation. The only two objections they raise to the decree are: (1) That he should have had credit for the $41 paid, and (2) that the reassessment was not ordered by the board of supervisors. Both questions are foreclosed by the decree. Rumsey v. Griffin, 138 Mich. 413; Smith v. Auditor General, 138 Mich. 582; Hall v. Mann, 118 Mich. 201. Numerous decisions upon this question are cited in the above cases, and we need not re-cite them here.

The amount due is a proper subject for determination in the suit brought by the auditor general. The regularity of the assessment and reassessment is a proper subject for like determination. The circuit court in chancery had jurisdiction to determine both questions.

A pro confesso decree is as binding upon the parties thereto upon all questions involved in the suit as is a contested decree on the same questions. If the complainant had appeared in the suit by the auditor general, and made these defenses, and they had been decided against him, and he did not appeal therefrom to this court, he could not attack the decree collaterally.

The bill is without equity, for two. reasons: (a) Complainant might have paid the taxes assessed, as it was his duty tó do, and upon the completion of his contract he would have received the amount due thereon. (b) He gives no reason for not appearing and contesting that suit. He does not allege that he was not aware of its pendency. For aught that appears in his bill, he chose to let the decree in that case go against him by default and rely upon his right to maintain a separate bill in chancery to prevent a cloud upon his title.

The cases cited by the complainant under the former tax law, under which a landowner was afforded no day in court, do not apply to cases arising under the present law, affording ample remedy for the landowner to appear and make every defense he has to the validity of the taxes assessed against him.

The decree is affirmed, with costs.

Blair, Hooker, Moore, and McAlvay, JJ., concurred. *


text:
    MOULTER v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Personal Injuries — Defective Sidewalks — Notice of Claim.
    Under the charter of a municipal corporation, it is provided that a person presenting a claim against the city for injuries received by reason of a defective sidewalk, etc., shall serve upon the city clerk within 10 days a written notice specifying the location upon the street, etc., where the injury was received, and the general character of the alleged defect; and shall also serve upon the common council within 60 days a detailed statement of the place of the injury, the nature of the injury sustained, the names of .claimant’s witnesses, etc., and further provides that a failure to present the statements within the time limited shall be a bar to maintaining an action for said claim. Plaintiff was injured on June 18th, and the only notice given was to the city clerk July 9th. jHeld, that the charter provisions had not been complied with, and that the failure was properly pleaded in bar, and the court should have directed a verdict for defendant.
    2. Same — Personal Injuries — Statutory Rights.
    The right to recover for injuries arising from want of repair of sidewalks, etc., is purely statutory, and whether the limitations imposed are reasonable or not is a question for legislative discretion.

      Error to the superior court of Grand Rapids; Stuart, J.
    Submitted October 16, 1908.
    (Docket No. 103.)
    Decided December 21, 1908.
    Case by Hannah M. Moulter against the city of Grand Rapids for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      Moses Taggart (Clark E. Higbie and Taggart & Taggart, of counsel), for appellant.

      McDonald & Powers (M. A. Nichols, of counsel), for appellee.
   Blair, J.

This suit was brought to recover for injuries received from a fall alleged to have been caused by a defective sidewalk in defendant city, on the 18th day of June, 1906. At the time of plaintiff’s injury, the charter of the city (Act No. 593, Local Acts 1905, tit. 16, §§ 5, 6) contained the following provisions:

“Sec. 485. If any claim for unliquidated'damages is made against said city for injuries to persons or property by reason of any defects in the sidewalks, streets, highways, cross-walks, bridges, alleys, courts, public grounds or public places in said city, or by reason of any negligence on the part of said city, or said city officials, or its employés, in any public work in which it or they are engaged, or any claim is made against said city in an action of tort, the claimant in such cases shall present the same to the common council within sixty days after the injury or wrong occurred, which claim shall state the place where such injury or wrong was received, the names of the claimant’s witnesses concerning the same, then known to claimant, a description of the injury sustained and a succinct statement of the facts constituting such claimant’s demands against said city, and any further statement that may be required by said common council, and if said claim arises from injury received by reason of any defect in the sidewalks, streets, highways, bridges, alleys, courts, public grounds or public places in said city, or public works in which the said city or its officials are engaged, the claimant who alleges injury thereon shall give notice to the city by a’ written statement filed with the city clerk within ten days of the time of said injury, specifying the location upon the street, alley, lane, highway, sidewalk, crosswalk, bridge, court, public place or public ground, or public works where the same was received, and the general character of the alleged defect claimed to have existed resulting in the injury of claimant, said preliminary notice not to take the place of the specific notice herein required to be filed within sixty days. * * *
“Sec. 486. It shall be a sufficient bar to any action or proceeding brought in any court for the recovery of any such claim against the city that such claim has never been presented to the common council, or notice thereof given as to the place of injury or of the specific basis of the claim as provided for in the preceding section within the time therein limited or that the action or proceeding was brought before said common council had such reasonable time to investigate and pass upon such claim as hereinbefore provided.”

The first notice given to the city of such accident was filed with the city clerk on the 9th day of July, 1906. The failure of plaintiff to file notice within 10 days was pleaded in bar by defendant in its notice under the general issue, and the question was raised upon the- trial by objections to the admission of testimony, motion to direct a verdict for defendant, and by requests to charge.

Defendant’s counsel argue that it was the intention of the legislature to provide for two notices as to the same accident, and that the failure to give either bars the right of action.

Plaintiff’s counsel contend:

“We claim that the court did not err in holding these sections of the charter did not preclude plaintiff from maintaining her case for three reasons at least:
“(1) Because it clearly appears that plaintiff was injured upon an old sidewalk where no public work or repairs were going on in which the city or its officials were engaged, and hence her case is not povered by the 10-day notice, and that she was not required to file any 10-day notice.
“ (2) Because section 486 of the charter does not bar recovery against the city of a claim because of failure to file the 10-day notice with the city clerk.
“(3) Because said provision for a 10-day notice to be filed with the city clerk is unreasonable and void.
“A fair reading of section 485 demonstrates that this section was intended to cover two classes of injuries, to wit: Injuries by reason of defects in sidewalks, streets, etc., where no public work or repairs are going on; and, second, injuries upon streets and sidewalks where repairs or improvements are going on, or, to wit, where the city or its officials are engaged. In either instance a 60-day notice must be filed with the common council as provided by this section. This construction is clear, as the first five lines of the section refer to injuries upon sidewalks, etc., where no public work is going on. The next three lines refer to injuries received by reason of the negligence of the city or its officials, in any public work in which they may be engaged. As said before, a 60-day notice must be given. Then in the seventeenth line of this section, this provision: ‘And if said claim arises from injury received by reason of any defect in the sidewalk, etc., * * *• in which said city or its officials are engaged,’ a 10-day notice only applies to injuries received upon sidewalks, etc., where the city is engaged in some public work by way of building, improving, or repairing, and does not apply to injuries received upon sidewalks, etc., where the city is not engaged in building, repairing, or improving. ”

The construction of the charter provisions contended for by plaintiff’s counsel appears to us to be strained and unnatural. In our opinion it was the intention of the legislature to provide for two notices in all cases of injuries from defects in sidewalks, etc.; the one designed as a “preliminary notice ” to state briefly the location of the defect and its general character, and the other designed as a “specific notice ” to specify in detail the plaintiff’s claim.

We are also of the opinion that section 486 relates to both of the notices required, and that a verdict should have been directed for defendant, unless plaintiff’s third point is valid. The right to recover for injuries arising from want of repair of sidewalks, etc., is a purely statutory one in this State. It being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right conferred any ^limitations it chose. Whether the limitations imposed are reasonable or unreasonable in such cases are questions for the legislature, and not for the courts. Maclam v. City of Marquette, 148 Mich. 481; Davis v. City of Adrian, 147 Mich. 300; McAuliff v. City of Detroit, 150 Mich. 346; Van Auken v. City of Adrian, 135 Mich. 534; Holtham v. City of Detroit, 136 Mich. 18; Miller v. Village of Birmingham, 145 Mich. 470; Wilton v. City of Detroit, 138 Mich. 67; Ellis v. City of Kearney (Neb.), 113 N. W. 803; Crocker v. City of Hartford, 66 Conn. 387.

It becomes unnecessary to consider the other questions raised, and the judgment is reversed, and no new trial granted.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    DIXON v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Master and Servant — Rules—Effect.
    Rules defining the duties of certain employés, to whom the running and immediate control of trains is confided, are essentially private regulations of the master in the orderly and prudent conduct of its business, and do not fix the obligations and liability of the master to its servants, nor to third persons and the public; those obligations, being fixed bylaw, cannot be diminished by such rules, nor, ordinarily, increased thereby. Per Hooker, J., Grant, O. J., and Ostrander, J.

      3. Same — Personal Injuries — Rules—Violation—Evidence.
    Plaintiff, a crossing tender, was injured by the derailment of certain cars, the evidence showing that the switch had been set for the main line but not locked as required by a rule of the master. Held, that negligence of the master cannot be predicated on a failure to enforce the rule. Per Hooker, J., Grant, O. J., and Ostrander, J.
    S. Same — Personal Injuries — Fellow-Servant.
    A crossing tender and a switchman are fellow-servants, and a master is not liable for injuries to one caused by the negligence of the other.
    Error to Calhoun; North, J.
    Submitted November 9, 1908.
    (Docket No. 109.)
    Decided December 21, 1908.
    Case by Alexander Dixon against the Grand Trunk Western Railway Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      J. M. & J. L. Powers, for appellant.

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

This cause was before us at the January term, 1907, on an appeal taken by the defendant, and was reversed. 147 Mich. 667. The jury had been instructed that—

If the plaintiff could recover at all under the evidence, it must be upon the theory that * * * he was injured by negligence of the defendant, in failing to provide the plaintiff with a reasonably safe place in which to discharge his duties; .* * * that being such a duty that it (defendant) could not avoid such responsibility by shifting it or delegating its discharge to its servants or agents. ”

The opinion states that the negligence charged was the omission to keep a certain switch, constituting a part of its railroad, securely locked and fastened when not in use, and in omitting to employ competent and careful persons to do so. It was said in the opinion that “the duty of keeping switches closed and locked while not in use was not one of the absolute duties of the defendant, but an assignable duty relating to a detail of operation, which could properly be delegated to an employe,” and that the court should have directed a verdict for the defendant, obviously upon the ground that plaintiff received his injury through the negligence of a fellow-servant.

Subsequently, the plaintiff was allowed to add a count to his declaration, in which it was alleged: That it was the duty of the defendant to make and publish rules for the conduct of its business and the guidance and control of its agents and employés in operating switches, and that it did so, and that it then became defendant’s duty to exercise such reasonable supervision and control over its employés, etc., as to have reason to believe that such rules were being complied with. Further, that for a year prior to the 28th of February, 1903, defendant disregarded its alleged duty and did not keep and maintain said switches at Battle Creek securely closed and locked when not in use, but knowingly and wilfully permitted the same to be and remain open and not locked when not in use, and kept incompetent, careless, and negligent servants, who frequently left said switches open and unlocked when not in use. Also, that it negligently ran its trains at a rate of speed exceeding 10 miles per hour. Also, that it knowingly suffered its agents to leave said switches open and unlocked, and this notwithstanding the fact that at divers times during the period of six months prior to February 28, 1903, plaintiff notified the defendant of such habitual negligence of its servants, and that he was promised that such negligence should cease, and that, relying on such promise, plaintiff continued in its employ, and on February 28, 1908, was injured through the derailing of a train occasioned by the moving of an unlocked switch while said train was passing over it. To this count the statute of limitations was pleaded; it having been added after the expiration of three years from the time of plaintiff’s injury. The court directed a verdict for the defendant upon the grounds:

(1) The evidence fails to show negligence on the part of the defendant.
(2) If there was negligence, it was that of plaintiff’s fellow-servant.
(3) If this switch was left open several times, plaintiff by remaining there at his work assumed the risk.

Counsel for defendant say, in answer to plaintiff’s contention, that the direction was proper:

(1) Because the count added was barred by the statute. Act No. 155, Pub. Acts 1899.
(2) Defendant was guilty of no negligence.

Upon this record, plaintiff bases his claim of negligence upon two rules of the company regarding the handling of switches. He says that the men did not obey these rules; that such disobedience was habitual and so common that the defendant knew or should, by the exercise of ordinary diligence, have known and corrected it, and therefore it was guilty of negligence which was the cause of plaintiff’s injury. The rules in question are as follows:

“They will, except where yard masters are employed, be held responsible for the proper position and security of switches and safety appliances at their stations, and must personally know that all switches are set and locked on the main track at least ten minutes before any regular train is due, and before leaving their stations at night. This is not intended to relieve conductors and others from the care of switches they may use. Agents must know that their tracks are clear and unobstructed, and stop approaching trains unless all is right.
“Conductors will be held responsible for the proper adjustment of switches used by them and their men. Whoever opens a switch shall remain at it until it is closed unless relieved by some other competent employe. When there is more than one train to use a switch, it must not be left open unless one of the trainmen of the following train is at the switch and takes charge of it. At meeting or passing points, when the train is on siding to clear and switch locked on main track, the man in charge of switch must take his position on opposite side of track, keeping at least 30 feet from switch target until expected train has passed.
. ‘ ‘ When a train backs in on a siding to meet or be passed by another train, the engine man when his engine is clear of the main track will also be responsible for seeing that the switch is properly set for the main track.”

These rules define the duties of certain employes to whom the running and immediate control of trains is confided. They are essentially private regulations of the defendant in the orderly and prudent conduct of its business. These rules do not fix the obligations and liability of the defendant to its employes, nor even to third persons and the public. Those are fixed by law. They could not be diminished by such rules, neither are they increased ordinarily thereby.

It is assumed (not proven) that the cause of this derailment was the want of a padlock upon the switch. While it may be admitted that, if the blocking of the switch lever was in place and securely padlocked, the rail would be firmly held from moving, there is nothing to indicate that the blocking in place without any padlock would not be equally effective to hold the switch and rail. If the omission to lock has been habitual, as counsel assert, the immunity from accident in the past would seem to demonstrate this, and there is nothing in this record to indicate that it is not the common practice of defendant’s servants to run its engines and cars over unlocked switches. Indeed, the ohly requirements of these rules as to locking are that the agent shall see that main track switches shall be “ set and locked at least ten minutes before any regular train is due, and before the agent leaves his station at night,” and that trainmen, whose train is on a siding at meeting or passing points, shall see that the main track switch is locked. As to all other switches, and as to main track switches, except as above, the only requirement is that whoever opens a switch shall stay at such switch until it is closed, unless relieved, etc. Perhaps these rules are only made to protect against possible meddling. The evidence indicates that this switch was set for the main track; a switch engine crew having so placed it a short time before. The engine and two cars, of the derailed train kept the main track, and, while the front truck of the third car did the same, the rear truck of that car went upon the siding, indicating that the rail moved after the third car struck the switch. The reason for this is not shown, but it is, perhaps, inferable that the switch lever may not have been blocked, through the negligence of the last switchman. If so, this was plainly the negligence of a fellow-servant. The question raised in this case, viz., whether we can predicate negligence on a. failure to enforce this rule, was passed on in the case of McKernan v. Railway Co., 138 Mich. 519 (68 L. R. A. 347), in the concurring opinion, which was concurred in as to this question by the full bench, in the following language:

‘ ‘ The existence of this rule did not add to the defendant’s obligations to the public as shown by the opinion filed herewith.” See opinion of Montgomery, J., page 524.

It is unnecessary to repeat-what was said in the opinion, thus approved, or in the case of Fonda v. Railway Co., 71 Minn. 438, there quoted.

It was not error for the learned circuit judge to decline to submit to the jury the question:

“Was defendant negligent in failing to enforce its rule to lock switches ? ”

Another reason for affirming his judgment is that the evidence in the case does not show that notice of the disregard of the rule was given the defendant, and there is no proof of such habitual disregard as would justify the inference that it ever reached defendant’s knowledge that there was such, or that it ever made any promise to stop it. Furthermore, the evidence does not warrant the inference that there was any habitual disobedience of the rule. As we said in our former opinion, if the accident was due to negligence, it was tbat of a fellow-servant for which the master is not liable.

The judgment is affirmed.

Grant, C. J., and Ostrander, J.,concurred. Moore and McAlvay, JJ., concurred upon the last ground stated.


text:
    COOK LAND, CONSTRUCTION & PRODUCING CO. v. McDONALD.
    1. Adverse Poi session — Statutes—Repeal—Effect.
    Defendant in 1899 purchased certain land from the State, his deed being “subject to the relevant conditions” imposed by Act No. 229, Pub. Acts 1897, as amended. He gave no notice as required by said act, but went into immediate possession. At the expiration of seven years, complainant tendered the amount required under the law, and demanded a reconveyance. It was conceded that the tax titles were void, but defendant refused to comply, claiming title by adverse possession under section 3896, 1 Comp. Laws. Held, that, as the provisions of the statute are inconsistent with each other,» the later' act repeals the earlier one, and that defendant cannot claim title by adverse possession, his entry being unlawful.
    2. Taxation — Tax Titles — Improvements—Costs.
    A tax-title purchaser, who enters into possession of land in direct violation of the law under which he purchased, is not entitled to compensation for improvements. But an owner who, without objection, sits by and sees the improvements going on, is only entitled to what the law absolutely gives him, and will therefore not be awarded costs.
    Appeal from Iron; Stone, J.
    Submitted November 9, 1908.
    (Docket No. 107.)
    Decided December 21, 1908.

      Bill by the Cook Land, Construction & Producing Company against Donald McDonald to compel a reconveyance of certain land acquired by tax title. From a decree for complainant, defendant appeals.
    Affirmed.

      Ball & Ball, for complainant.

      A. L. Sawyer, for defendant.
    The complainant is the original owner by a patent from the United States of the 40 acres involved in this suit. It neglected to pay its taxes, and in 1893 one-quarter of the land was sold to the State for the delinquent taxes of 1889. In 1896 the entire parcel was sold for the delinquent taxes of 1894, and bid in by the State. These sales were made pursuant to the proper decrees of the court in chancery. The defendant purchased the land from the State on March 29, 1899, and obtained his deed therefor in April, 1899. This deed contains the following:
    “Provided, however, that this indenture is subject to the relevant conditions imposed by Act No. 229 of the Public Acts of 1897, as amended.”
    Defendant gave no notice under that act, but went into possession immediately upon receiving his certificates of purchase, having been advised by an attorney that he had the right so to do. At the expiration of seven years, and before the commencement of this suit, complainant tendered to defendant the amount required to be paid under th e provisions of Act No. 229, and demanded a reconveyance. This was refused, and thereupon complainant filed this bill to compel such reconveyance. The case was heard upon pleadings and proofs taken in open court. The established facts are conceded. The court entered a decree for the complainant, directing a reconveyance upon payment of the amount tendered.
   Grant, C. J.

(after stating the facts). It is conceded that the tax titles are void. Defendant’s title rests solely upon the adverse possession of more than five years under section 73 of the general tax law (1 Comp. Laws, § 3896). Complainant insists that the statute of limitations provided for in section 73 is repealed by Act No. 229, Pub. Acts 1897, so far as titles conveyed by the State thereafter are concerned. This view was adopted by the court below. This is the principal question in the case, and is before this court for the first time. Notwithstanding the able argument of counsel for the defendant, we think there is no doubt about the effect of Act No. 229. While repeals by implication áre not favored," and while there is no express provision in that act repealing section 73, yet the two are so inconsistent as to limitations of actions thereunder that both cannot be sustained. Section 142, Act No. 229, expressly provides:

“No purchaser under any tax salé hereafter made, or of any State tax land or any State bid hereafter sold, shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of his or their interest in said land.”

Under section 73 the tax purchaser wás entitled to enter into possession of the land, and a hostile and adverse possession for five years gave him title, regardless of the validity of the deed under which he entered. Section 142 takes away the right of entry and prohibits his entering into the possession of the land until he has given the notice required. This act expressly relates to all future purchases, and not to past purchases. As to future purchases, it is complete in itself. It provides under what condition the tax-title purchaser may enter into possession, and on what terms the original owner may obtain a reconveyance of his land. We held in Corrigan v. Hinkley, 125 Mich. 125, that one who, after acquiring his tax deed, entered into the possession of the land in violation of Act No. 229, was a trespasser. Titles acquired under Act No. 229 are governed by that act, and titles acquired prior thereto are governed by section 73. It follows that the defendant’s entry was unlawful, and that he has acquired no title by adverse possession under it. A question may arise whether section 73 governs a case where, after due service of a valid notice under section 140, and the failure of the owner of the fee to pay in compliance with it, the purchaser from the State has entered into peaceable possession of the land. Upon that question we express no opinion, as it is not involved in this case.

2. The defendant is not entitled to recover for his improvements. Under Corrigan v. Hinkley, supra, he was a trespasser, and was presumed to know the law. The very terms of his deed gave him notice that it was subject to the provisions of that act. He acted in direct violation of its terms, and must be content with what benefits he has obtained from the land during his occupancy. We in that case distinctly held that one entering into possession in contravention of the act could not recover for improvements. The defendant’s occupancy was open, notorious, and hostile. He fenced 25 acres of the land immediately upon acquiring title. He built a house upon it which some four years afterwards was destroyed by fire. He cultivated and raised crops upon it. He seeded a part to grass, and has either harvested the crop himself or has sold it every year of his occupancy, and he has taken wood from the uninclosed part. He has kept up the fences. Under these circumstances, an owner who sits by and sees these improvements going on, and makes no objection thereto, is only entitled to what the law absolutely gives him.

Costs are in the discretion of the court, and the decree will be affirmed, without costs of this court.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
      In re SERVICE’S ESTATE.
    1. Wills — Election—Assignments—Attorney and Client.
    The statutory right of a widow to elect to take under the provisions of the statute, in lieu of the terms of a will, is a personal right and not assignable; and where a widow, after assigning her rights under the provisions of a will to an attorney as security for advancements and services to be performed, filed, under the advice of said attorney, her election to take under the statute, held, that the election was not void.
    2. Same— Widow’s Allowance— Assignments— Advancements.
    The allowance to a widow during a controversy over the construction of a will is made and granted for her sole benefit, and is not assignable; and where the payment of an allowance is in fact, though not in form, paid to her attorney, to whom she had assigned her rights as security for advancements and services, held, that the right to the allowance was not included in the assignment, and she received the allowance by being credited on the amount advanced.-
    3. Same — Assignments—Contingent Fees.
    An agreement to undertake litigation upon a contingent fee is lawful under section 11254, 3 Comp. Laws. It will be presumed that the parties intended to enter into a lawful agreement relative to the interests of the widow in the estate, nothing to the contrary appearing in the case.
    Error to Macomb; Erskine, J.
    Submitted November 9, 1908.
    (Docket No. 116.)
    Decided December 21, 1908.
    Andrew Harvey, executor of the last will and testament of John Service, deceased, presented his final account in the probate court and asked for an order of distribution under the will. The probate court made an order allowing the widow to take under the statute, and the executor appealed to the circuit court. There was judgment sustaining the order of the probate court, and the executor brings error.
    Affirmed.

      Graves, Hatch & Wasey, for appellant.

      William, S. Jenney (Seth W. Knight, of counsel), for appellee.
   McAlvay, J.

John Service died testate in Macomb county in February, 1906, leaving a widow surviving him and no children. His estate, consisting entirely of personal property, was appraised at the sum of $6,705.12. The only provision made for his widow in his will was a money legacy of $1,000. The will was probated, and Andrew Harvey, the appellant, named in the will as executor and residuary legatee, qualified as executor and is still acting in that capacity. During the administration of the estate, the widow caused to be filed in writing her election to take, under the statute of distributions of this State, the share of the estate she would have been entitled to had her husband died intestate. She also asked for and was allowed $460 for her maintenance, which allowance was paid by the executor to her attorney. Appellant, having administered the estate to the point of rendering his final account and making distribution of the estate remaining in his hands, filed his petition for that purpose, asking that the estate be distributed according to the provisions of the last will and testament of deceased. Upon the hearing of this petition, the probate court found that Margaret Kincaid McCallum Service, of Lennoxtown, Scotland, was the widow of the deceased, and as such had filed her election in writing as above mentioned, and ordered the estate to be distributed accordingly. From this order the executor appealed to the circuit court of Macomb county, where the case was tried before the court without a jury. The court made and filed his findings of fact and conclusions of law affirming the order and decree of the probate court, upon which a judgment was accordingly entered. The case is before us upon errors assigned to some of these findings of fact and conclusions of law, and to the refusal to find as requested.

“Findings oe Fact.

“ John Service died testate in Ma,comb county, Mich., on or about February 6, 1906, leaving an estate consisting entirely of personal property, and appraised at $6,705.12. By his last will and testament, he disposed of all of his estate by a number of legacies; the only provision in the will for his widow being a money legacy of $1,000. The will was admitted to probate in the probate court of Macomb county, and Andrew Harvey, the appellant, named in the will as executor and residuary legatee, has qualified as executor and is acting in that capacity. The decedent was married in Scotland on October 29, 1861, to Margaret Kincaid McCallum, but did not cohabit with her for more than a fortnight and left her and came to America and was a resident of Macomb county at the time of his death. The widow remained in Scotland and is still living. No children of the marriage are living.

“William S. Jenney, an attorney at law at Mt. Clemens, Mich., was retained to represent the interests of the widow by Wyllie & Aspin, her local counsel at Glasgow, Scotland, and a power of attorney, dated April 24, 1906, signed by her, was forwarded to Mr. Jenney authorizing him to act for her in her name. After the will was probated and on May 8, 1906, Mr. Jenney, having been informed by Wyllie & Aspin of the widow’s poverty and her inability to meet any expenses in the matter, by letter advised them that the widow had better elect to take against the will, and proposed in that event that he recover for his services one-half of her interest in the estate, less expenses, stipulating that she would not get less than $1,000, and also offered to give Messrs. Wyllie & Aspin one-third of the one-half received by him. On May 26th following, Messrs. Wyllie & Aspin’ replied to this letter, stating: That the widow had difficulty in agreeing to his proposal because of her humble circumstances, her dependence on her own exertions for a livelihood, her advanced age, and the increasing difficulty in supporting herself; that she believed ‘that any attempt to have the will set aside’ would delay the receipt of money by her; and that, because of her need of money, she was more inclined to accept a comparatively smail sum which would be payable within a few months, rather than a much larger sum which she might receive at an uncertain future time, and proposed to Mr. Jenney that he advance her the sum of $100 then and each six months thereafter, until the matter was fully disposed of, and that he take such steps as he thought proper upon the conditions mentioned in his letter of May 8th, upon the understanding that in no event was she to receive less than $1,000. They also proposed that, if the result was successful, interest should be charged against the proportion of the fee coming to them. At this time, the widow was not informed and did not know that she would be entitled to an allowance for her support and maintenance during the progress of the settlement of the estate. On June 12, 1906, Mr. Jenney accepted this offer and forwarded to Messrs. Wyllie & Aspin $100 as the first advancement under the agreement, and at the same time, to prevent the possibility of their client settling the case without consulting her attorneys, requested an absolute bill of sale from the widow as security for ‘ our services, disbursements, and advancements, both past, present and future; also, as security for client’s performance of the agreement contained in the power of attorney of date April 24, 1906, and subsequent correspondence.’ Thereupon Messrs. Wyllie & Aspin procured from the widow an assignment in the Scotch form, purporting to be of all of the widow’s interest in the estate, to Mr. Jenney, which assignment is dated June 26, 1906, and on its face assigns to Mr. Jenney ‘ all and whole the right, share and interest now belonging or which may hereafter belong to me (the widow) in and to the means and estate of the said John Service, whether under his will or on any other title, or in any character or in any manner of way whatsoever.’ The letter accompanying it, however, stated that: ‘ Although the assignment is absolute in its terms, yet, nevertheless, it is truly granted in security of such sums advanced or about to be advanced by the agent.’ On July 9th following, Mr. Jenney acknowledged the receipt of this assignment, stating: ‘ I, of course, acknowledge the assignation to be for the purpose of security only; what we call a mortgage.’

“Early in August, 1906, Mr. Jenney went personally to Scotland to take certain depositions in the case to prove the widow’s marriage to decedent. While in Scotland, and on August 13, 1906, he procured from the widow another instrument, on its face assigning to him all of her right, title, and interest - in the estate, with the direction to the probate court, in the order of distribution, ‘to assign to the said William S. Jenney any and all property or money coming to me (the widow) from the said estate and all of my (the widow’s) right, title and interest in said estate instead of assigning the same or any part thereof to me (the widow).’ At the same time he gave her a draft for $1,500, payable to his own order, and by him indorsed in blank which draft has since been paid to Messrs. Wyllie & Aspin, without the indorsement of the widow. Contemporaneous with the delivery of the assignment and draft, the widow receipted to him for the $1,500 and the $100 previously paid ‘ as an advancement or loan collaterally secured by two several mortgages on my interest in the estate of my late husband,’ and agreed to pay 6 per cent, on these loans or any other sums advanced by him. By the term ‘mortgages’ she referred to the two assignments. She also at this time gave to Mr. Jenney her election in writing to take against the will, with instructions to file it in the probate court.

“On Mr. Jenney’s return to America, he wrote a letter to Messrs. Wyllie & Aspin to take the place of the formal paper signed by him and mislaid when in Scotland, in which letter he says that the two assignments, although absolute in form, were given as security for services, disbursements, and advancements, both past and present and future, also for the widow’s performance of the agreement contained in the power of attorney of April 24, 1906, and subsequent correspondence. On the 13th of November, 1906, Mr. Jenney, as her attorney, filed in the probate court of Macomb county the election of the widow to take against the will. He also at the same time made an application in the widow’s name, to such court, among other things, for an allowance to her under Act No. 331, Pub. Acts 1905. This application for an allowance to the widow was made by the attorney in supposed compliance with the contract between the widow and himself, to secure her rights, interest, and share and means, present and prospective, in the estate. The probate court made an allowance of $460 for the maintenance of the widow, which money was paid by the executor to Mr. Jenney, who has retained the same, giving credit therefor. The widow’s understanding of the two assignments made by her to Mr. Jenney was that they were given to secure him for loans or advancements made or that might be made by him to her, and that they were mortgages simply.

“The widow, in the spring of 1906, for the reasons stated in the letter of Wyllie & Aspin, hesitated at electing to take her distributive share of-the estate in lieu of the legacy. She and her attorneys in Scotland were then under the misapprehension that such election involved in some manner an attempt to set the will aside, which might or might not be successful, and which would mean delay in receiving her money, of. which she was in pressing need. She did not know then that she was entitled to her support out of the estate during the progress of its settlement. She still had nearly a year within which to exercise her election, during which time she would have been fully informed as to these matters, and manifestly would have elected within the statutory period to have taken her distributive share of the estate, independently of her arrangement with her attorney. The executor, having paid all of the debts of the estate, petitioned the probate court for an order directing him to distribute the estate under and pursuant to the will, which petition was denied, and the executor ordered to distribute to the widow, pursuant to the election, such share of the estate as she would be entitled to in case decedent died intestate. Andrew Harvey, individually and as executor, has appealed to this court from this order so far as the same directs payment to the widow of any different sum than the will gives her, and so far as the order recognizes the validity of the widow’s election.

“Findings op Law.

“As one cannot accept and reject the same instrument, the widow is put to an election .whether she will accept the provisions made for her in her husband’s will, or, in lieu thereof, take under the statute. If she dissents from the will, the statute requires that it be done by writing and filed in the proper court within the statutory period. If she accepts it, no formal action is necessary on her part. Wills are presumably made with this right in view, and a dissent therefrom involves no reflection on deceased or disrespect of his memory. The will speaks from the death, not from the time of its execution, and changes may have occurred in the affairs of the testator which would render it unwise for the widow to accept the instrument. As was said by the Supreme Court in Re Andrews’ Estate, 92 Mich. 454 (17 L. R. A. 296):

“ ‘ Pecuniary advantages are rarely waived, and it will not do to rest the construction of a statute which confers a substantial right upon purely sentimental considerations.’

‘ ‘ This case is barren of sentiment in this respect. The legacy was not to her as wife, but to her as cousin. She was hot honored with his name in the bequest. Shortly after the marriage, he had left her, and, while she has struggled on into old age in poverty, he was enjoying a fair competence in this country. After his death, his executor, although possessed of the marriage certificate, denied the marriage, and, by show of contest at least, contributed to the necessity of her making the contract in question.

“The widow did not assign, nor attempt to assign, to Mr. Jenney, her right to elect. Had she so attempted, the assignation, I apprehend, would be void. If void, it would not bind her, nor invalidate her subsequent formal election. While the arrangement complained, of may have influenced her in making the election, no one can say that she may not have so elected had no arrangement been made. The courts cannot analyze the reason that led her to this action. It would have been strange if she had not done what she did. The terms of the contract between the widow and her attorney are of no moment here, except in so far as they may bear upon her right to elect. The question is not whether the agreement was oppressive or against public policy. If the client has ventured into an improper bargain with her attorney in reference to his remuneration, or security therefor, this might defeat a cause of action based on this agreement; but it would not operate to bar a recovery by the client on the original claim.

“The allowance made to the widow for her support during the settlement of the estate was for the sole benefit of the widow, and not payable to any one else. It is against public policy that it be the subject of speculation, and it is doubtful if it can be assigned, especially where it has not even been applied for at the time the assignment is made. Whether in this case the assignment could be construed to cover the allowance subsequently made to the widow, and whether, if so construed, such instruments would be valid to that extent, I do not decide, as I do not consider that necessary to the disposition of this case. See Hackley v. Muskegon Circuit Judge, 58 Mich. 454, 457.

“It follows that the widow is entitled to her distributive share of the estate as specified in the order of the probate court appealed from, and judgment will be entered accordingly.

“ Byron R. Erskine, Circuit Judge.”

In this court the argument of the appellant, Andrew Harvey, is confined to the claim that the election of the widow of John Service to take against the will is invalid:

4' First. Because this election was made after the widow had assigned all of her interest in the estate, and when, consequently, there was no basis for an election; the right to elect being nonassignable, and not therefore passing to the assignee. .
44 Second. Because the contract,- pursuant to which the election was made, and but for which the election would not have been made, is against public policy and therefore void.”

1. As between the widow and her attorney, there can be no doubt but that the assignments, the substance of which are given in the findings of the court, were given as security for his advances and services. The parties at the time so considered and acted upon them, and still insist that such was their construction. It is not urged that in ordinary cases in this State such agreements are unlawful, but that, because the assignments appear to be absolute in their terms, and because the election of a widow to take against the will is not assignable, and because the election was made in pursuance of a contract against public policy, such election is void. We agree that this statutory election of a widow is a personal right and is not assignable, but we do not find from this record that the election was made pursuant to a contract. It was not mentioned in the so-called assignments. Her attorney in his letters advises her to make such election, but appellant’s contention is not based upon such advice. If the right of election is not assignable, we cannot infer that it was intended to be, or was, included in the assignments. The same may be said of the allowance to the widow by the probate court, which is claimed in fact, though not in form, to have been made to her attorney. Although this allowance was paid into the hands of the attorney, she in fact received it by receiving credit on the amount already advanced by him. We agree with the circuit court that the question as to the widow’s allowance is controlled by Hackley v. Muskegon Circuit Judge, 58 Mich. 457.

2. What we have said in relation to the right of election by a widow against the will of her husband being a personal right and not assignable, in large part disposes of appellant’s second contention, that the election was invalid because made pursuant to a contract, which is against public policy, and but for such contract would not have been made. We do not construe the power of attorney, assignments, receipts, and other writings, which show the contractual relations into which these parties entered, to be against public policy and invalid. Under our statutes an agreement to undertake litigation upon a contingent fee is lawful. The legislature has exercised its prerogative to make it so. 3 Comp. Laws, § 11254; Wildey v. Crane, 63 Mich. 724. As above stated, these agreements do not in terms include the right of election. We cannot infer or presume that the parties intended to enter into an unlawful agreement. The presumption is to the contrary. There is nothing in the record to warrant our conclusion that the widow made this election under the contract, or that but for the contract the election would not have been made. Her attorney advised her in her interest relative to her rights under our statutes, of which she was ignorant. This was his right and his duty. We are satisfied from this record that she would have received no information as to her rights from the executor and appellant, who was personally interested in having the estate distributed under the will, and who, as far as the record shows, is the only person who has been dissatisfied with the order and decree of the probate court.

The evidence in the case supported the findings of fact by the court, and his conclusions of law therefrom were correct. We find no error in the case.

The judgment is affirmed, with costs of both courts against Andrew Harvey, appellant, personally.

Grant, O. J., and Ostrander, Hooker, and Moore, JJ., concurred.