author:
Bird, J.
      Ostrander, J. Bird, J.

text:
    LAGDEN v. CONCORDIA MUTUAL FIRE INSURANCE CO. OF BAY, SAGINAW & ARENAC COUNTIES.
    1. Insurance — Mutual Benefit Poucy — Fire Insurance — Breach.
    Act No. 128, Pub. Acts 1911, limiting tbe effect of tbe breach of any condition in a fire insurance policy to instances where the insurer has suffered prejudice from the breach or where the loss took place because thereof, protected plaintiff, who procured additional insurance in violation of the stipulations of his mutual fire policy and he was entitled to recover the loss sustained in the destruction of his farm buildings, although the by-laws of the insurer provided that a member should forfeit his policy if he procured additional insurance in another company, without defendant’s written consent.
    2. Same — Statutes—Forfeiture.
    The contention of the defense that, the fire occurring while the violation was in effect, barred plaintiff’s recovery, was not sufficient, it appearing from the title of the statute that the purpose was to prevent the forfeiture of policies unless the violation of some condition actually prejudiced the insurer.
    3. Same — Evidence—Burden of Proof.
    Under the statute the burden was on the insurer to show that it had suffered prejudice therefrom.

      4. Same — Appeal and Error.

      Held, on rehearing, that defendant could not avail itself of the point, not made in its briefs or on the former argument, that the statute as amended did not affect a policy in force at the time it was enacted.
    Stone, Ostraítder, and Steere, JJ., dissenting.
    Error to Bay; Collins, J.
    Submitted April 22, 1914.
    (Docket No. 107.)
    Decided September 28, 1915.
    Reargued June 6, 1916.
    Former judgment reaffirmed July 21, 1916.
    Assumpsit by Harry T. Lagden against the Concordia Mutual Fire Insurance Company of Bay, Saginaw & Arenac Counties, on a certificate of fire insurance. Judgment for defendant. Plaintiff brings error.
    Reversed.

      G. C. Leibrand, for appellant.

      Curtis E. Pierce, for appellee.
   Bird, J.

The defendant is a farmers’ mutual fire insurance company, incorporated under the laws of this State. In. February, 1908, the defendant issued to plaintiff a fire policy, insuring him in the sum of $1,400, against loss to his farm buildings and personal property. On the 23d day of November, 1911, plaintiff, took out another policy for the sum of $1,665 in the Patrons’ Mutual Fire Insurance- Company, covering the sanie property and more. On January 21, 1912, fire destroyed the dwelling, together with its contents. The day following that of the fire, plaintiff notified John Myers, the defendant’s secretary, of the loss, and Myers advised him that he would visit the scene of the fire the next day. Myers did not come, but in his stead Mr. Feinhaur, one of the directors, came. While there, plaintiff informed him of the other policy in the Patrons’ Company. Mr. Feinhaur instructed the plaintiff to make out a list of the property destroyed and present it at the next meeting of the board of directors, informing him that he would be notified of the date of the next meeting by the secretary of the company. On February 12th the secretary notified plaintiff of the meeting of the board on the 19th, and requested him to meet with them at that time. On that date plaintiff appeared before the board with his proofs of loss. While there he was informed by the president of the company that the company refused to pay the loss, because of his failure to give notice of the additional insurance. The provisions of the charter and by-laws upon which such refusal were based follow:

Section 6 of the by-laws provides:

“Any member insuring the same property with another company, after receiving a policy in this company, without first obtaining the written consent of this company, forfeits his insurance in this company.”

Section 21 of the charter provides:

“If any person, having property insured in this company, shall procure the same to be insured in any other company, it shall be his duty to at once give notice of such other insurance to the secretary; and the president and secretary may, in their discretion, cancel his policy, and, in case he shall fail to give such notice, his policy shall be void from the date of such other insurance, and this company shall not be liable for any loss occurring after that date.”

Section 7 of the charter provides:

“Any member who shall neglect or refuse to comply with the by-laws, or with this charter, shall not be entitled to receive payment for any loss, unless it shall be satisfactorily ascertained that the loss was not caused by such neglect or refusal.”

The defendant’s prorating clause reads:

“In case of loss, if there be other insurance upon the property, the insured shall not be entitled to demand or recover on his policy any greater amount or proportion of the loss or damage sustained to the property insured than the amount insured in this company shall bear to the whole amount of insurance on said property.”

The Patrons’ Company had a similar clause. Its-prorated share of the loss was $501.99, and was paid by that company.

At the close of the testimony, both parties requested a directed verdict. The trial court declined them, and submitted to the jury the question whether the defendant had waived the forfeiture.

Plaintiffs motion for a directed verdict was based upon Act No. 128, Pub. Acts 1911, which follows:

“No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach and by reason of such breach of condition.”

Plaintiff contends that this provision of the statute is applicable, and inasmuch as it did not appear that the defendant was injured by the violation claimed, the court should have directed a verdict as requested. Defendant’s position is that the provision does not apply, because it was shown that the fire occurred during the breach of a condition of the policy.

The act was originally passed by the legislature at its session of 1897. The legislature at its session of 1911, amended it, by striking out the word “or” and inserting in its stead the word “and,” which appears in the foregoing in italics. As the act was originally passed, it was many times before this court for construction, and it was uniformly held, in substance, that if there were an existing breach of condition of the policy when the fire occurred, the act would not be available to the insured, even though the fire did not occur by reason of such breach. Boyer v. Insurance Co., 124 Mich. 455 (83 N. W. 124, 83 Am. St. Rep. 338) ; Shelden v. Insurance Co., 124 Mich. 303 (82 N. W. 1068) ; McGannon v. Insurance Co., 127 Mich. 636 (87 N. W. 61, 54 L. R. A. 739, 89 Am. St. Rep. 501) ; A. M. Todd Co. v. Insurance Co., 137 Mich. 188 (100 N. W. 442); King v. Insurance Co., 140 Mich. 258 (103 N. W. 616, 6 Am. & Eng. Ann. Cas. 87). See, also, Benham v. Insurance Co., 165 Mich. 406 (131 N. W. 87, Am. & Eng. Ann. Cas. 1912C, 983; Macatawa Transportation Co. v. Insurance Co., 179 Mich. 443 (146 N. W. 396).

Obviously for the purpose of avoiding this construction, and making the act effective to do what its title indicates it was originally intended it should do, the legislature made this change. We are now asked by defendant to give the act the same construction that was given to it before the amendment was made. To do this we must say that the act means the same now as before the amendment was made, and that the legislature did an idle thing, and had no purpose in view in making the amendment. The title to the act reads:

“An act to prevent the forfeiture of fire insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer.” Act No. 167, Pub. Acts 1897.

A mere glance at this title is convincing that the evident purpose of the legislature was to prevent forfeitures of fire insurance policies for violation of conditions which did not cause the fire. This evident purpose was thwarted by the construction which this court felt obliged to give to the wording of the act. To obviate this construction the amendment was presumably made. The act as amended makes it clear:

(а) That no forfeiture is to take effect if the insurer has not been injured by a breach of condition.

(б) That no forfeiture is to take effect if the fire was not caused by a breach of condition, even though the breach was existing at the time of the fire.

Our conclusion is that the plaintiff was right in his contention as to the application of the statute.

2. The further argument is made that, even if this is the proper construction, the court was right in refusing to direct a verdict because the burden of showing that defendant was not injured by reason of the violation rested upon the plaintiff; the proofs being silent upon the question as to whether the violation was in any wise responsible for the loss. It would seem to have been the intention of the legislature, in passing this law, to prohibit defenses based upon such violations, unless there was some connection shown between such violations and the loss. The plaintiff, by introducing the policy and showing his loss, makes a prima facie case, which entitles him to recover in the absence of proof of a breach of the contract. The burden is then upon the defendant to show that the policy has been avoided by a breach of its conditions. In order to make that defense effective, it is necessary to further show some connection between the loss and the breach of the condition, and this burden would seem to properly rest upon the defendant. By this provision the legislature has prescribed the conditions under which such a defense can be made, and it has in effect read this provision into each condition of the policy. Therefore the burden of showing that the facts are such as make the condition, as amended by the act, an effective defense, lies with the defendant. The request should have been granted. In view of these conclusions, we think plaintiff’s motion should have been granted.

The judgment of the trial court will be reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.

Ostrander, J.

(dissenting). The written application of the plaintiff contained the following:

“And I hereby, for myself, my heirs, executors, and administrators, agree to abide by the charter and by all existing by-laws, and also by all amendments and additional by-laws of the said company. * * * Refusal or neglect on my part to comply with the charter and by-laws of said company, and this agreement, shall render the policy void.”

When this is read with section 21 of the by-laws, set out in the opinion of Mr. Justice Bird, it is made plain that, in so far as the parties could, by agreement, provide for avoidance of the policy in suit, they have done so. There is something here more than a mere condition imposed by the insurer. There is a promissory warranty of the insured, which he has admittedly breached. The act of 1911, pleaded by plaintiff in avoidance of the forfeiture of the policy, which by the terms of the agreement became void when the additional insurance was procured, does not relieve from breach of a warranty. Benham v. Insurance Co., 165 Mich. 406 (131 N. W. 87, Am. & Eng. Ann. Cas. 1912C, 983) ; Shelden v. Insurance Co., 124 Mich. 303, 311 (82 N. W. 1068) ; McGannon v. Insurance Co., 127 Mich. 636 (87 N. W. 61, 54 L. R. A. 739, 89 Am. St. Rep. 501).

There is another sufficient reason for the conclusion that the statute invoked will not relieve the plaintiff. Treating the provision in question as a condition merely, it is one of several found in all policies of fire insurance in this State, which, when the policy is issued — the contract made — and thereafter, relate to the very subject of the insurance, relate to the property in risk, its status, and the interest of the insured therein. For example, there are those relating to the title to the property insured, and whether it is incumbered or free from incumbrance. If the construction and application of the statute which are made by Justice Bird are sound, then what will prevent A. from procuring insurance upon the property of B., and, if it burns, recovering upon the policy? Or, if real estate insured is incumbered for more than its value, what is to prevent the owner recovering upon a policy, despite his representations that the property was free from incumbrance, and his agreement that, if it was not, the policy should be therefore void, if the insurer cannot show that the fact of the incumbrance was, in fact, the occasion of the loss ?

There is another class of conditions found in insurance policies generally, and in our own standard policy, which affect only particular hazards to which insured property may or may not be liable. That a house shall not be vacant for a considerable period of time, that gasoline or other inflammable or explosive substances shall not be kept upon the premises, are common conditions, and failure to observe them may be the occasion of a loss. Breaches of such conditions may be occasional, and not mischievous. It is only while they continue that they affect the risk. In the days when policies of insurance were prepared by the insurer — were substantially unilateral with respect to terms and conditions — and were therefore construed most strongly against the insurer, it was uniformly considered,' in fact and in law, that representations of the insured as to the title to the property, the incumbrances thereon, the insurance carried, and the provisions for a continuance of the risk assumed in’the first instance by the insurer, without substantial change,, were vital. The courts have always recognized the moral hazard in fire insurance. Quoting from Ostrander on Fire Insurance, Mr. Justice Moore, in Excelsior Foundry Co. v. Assurance Co., 135 Mich. 467, 474 (98 N. W. 9, 3 Am. & Eng. Ann. Cas. 707), said:

“The character- of the hazard being established to the satisfaction of the insurer, its next concern is that no material change shall take place without its consent; and this, too, is provided for by the terms of the policy. The insurer cannot watch its many ventures. They are often remote and widely scattered, and besides, too, the greatest dangers that menace property are those that are frequently hidden from public scrutiny. The only practicable plan, therefore, of preserving the status of the risk, is to make the validity of the policy depend upon the insurer being informed of any material changes made, and its consent obtained.”

It cannot be presumed that a breach of a condition which increases the moral hazard does the insurer no injury. Quite the contrary. Courts have uniformly avoided the policy upon breach of such conditions, upon the ground that an essential and material change of the contract was thus effected and the insurer prejudiced. In the case at bar the plaintiff placed upon his property an estimated cash value of $750, and the defendant insured it for $500. In applying to the Patrons’ Insurance Company for further insurance, he placed on the property a value of $700. That company issued a policy for $465. The total insurance was therefore $965 upon property valued by plaintiff at $700. Both companies, to his knowledge, insured on the basis of two-thirds actual value.

The statute invoked by plaintiff may be construed, and I think should be construed, as applying only to that class of conditions which relate, usually, to casual risks, and as not applying to those which relate to matters which are of the very essence of the contract —those which must always be considered as controlling in accepting and in continuing the risk. So construed, it may be sensibly read and applied along with the statute which prescribes a standard form of policy, in which breaches of various conditions do, in terms and at once, make the policy void.

. The question whether the defendant waived the breach of condition complained about was submitted to the jury. I am of opinion that it was properly a question of fact, and, while the charge of the court is criticised, do not find error in the instructions. Two letters were offered in evidence by plaintiff, and were excluded. They were written by the secretary of defendant, and of them it is said they tend to support, to corroborate, the testimony of plaintiff and his wife. In my opinion, they’have no such tendency. They were not addressed to or received by plaintiff, and do not affect the question whether plaintiff was induced, by a promise or by conduct, to assume or believe that the defendant waived or would waive its rights under the policy.

Counsel have not made the point that the statute relied upon by plaintiff became effective in 1911, while the policy in suit was issued in 1908, and therefore is not affected by it. Counsel for plaintiff does rely, however, upon a provision of the charter of defendant which reads as follows:

“Any member who shall neglect or refuse to comply with the by-laws or with this charter, shall not be entitled to receive payment for any loss, unless it shall be satisfactorily ascertained that the loss was not caused by such neglect or refusal.”

His contention is answered by saying that this provision may be given force and may have application, but not in cases where by the express terms of the charter and the policy the policy is void.

For the reasons stated, I disagree with the conclusion of my Brother Bird, and think the judgment should be affirmed.

Stone and Steere, JJ., concurred with Ostrander, J.

On Rehearing.

Bird, J.

This case has been reheard. The argument, which was directed to the question whether Act No. 128, Pub. Acts 1911, was applicable to the facts involved in this case, has failed to convince us that our opinion heretofore filed should be disturbed.

Another and a new question was also argued, namely, that the provisions of this act were not applicable, because the contract of insurance was executed prior to the passage of the act. This presents an interesting question, but the practice forbids our consideration of it, because it was neither raised nor argued on the original hearing of the case in this court. Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). The only reference made to this defense was in the dissenting opinion, and the writer thereof refused to consider the point, because not raised by defendant.

The judgment of the trial court will be reversed, and a new trial ordered, with costs to the plaintiff.

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

Ostrander, J. We adhere to the views expressed in the former opinion.

Stone, C. J., concurred with Ostrander, J.


source: Caselaw Access Project

author: Kuhn, J. Ostrander, J.

license: Public Domain

text:
    STEARNS SALT & LUMBER CO. v. DENNIS LUMBER CO.
    1. Sales — Warranty—Implied Warranty — Acceptance.
    In an executory contract for the sale of personal property, the implied warranty of quality or fitness does not survive acceptance of the goods, and it is the duty of the purchaser to inspect and reject, or pay the contract price.
    2. Same — Severable Contract — Acceptance oe Part.
    In an action for the balance due on two cars of lumber, which plaintiff sold to defendant without an express warranty, where the defendant acted promptly in inspecting the lumber and tendered payment for the part accepted, and notified plaintiff that the rest was rejected, the court was not in error in instructing the jury that the contract was severable and defendant had the right to accept such as conformed to the warranty and reject the rest. Stone, Ostrander, and Steere, JJ., dissenting.
    Error to Kent; Perkins, J.
    Submitted April 15, 1915.
    (Docket No. 113.)
    Decided September 28, 1915.
    Rehearing denied September 27, 1916.
    Assumpsit by the Stearns Salt & Lumber Company against the Dennis Lumber Company, a corporation, in justice’s court, for goods sold and delivered. From a judgment for defendant plaintiff appealed to the circuit court. Judgment for defendant on directed verdict. Plaintiff brings error.
    Affirmed.

      Hatch, McAllister & Raymond, for appellant.

      Travis, Merrick & Warner, for appellee.
   Kuhn, J.

On December 29, 1911, the defendant company placed an order with the plaintiff company by telephone for two car loads of a certain grade of lumber, and followed this by letter confirming the same, which read as follows:

“Dennis Lumber Company.

“Grand Rapids, Mich., 12-29-11.

“Stearns Salt & Lumber Company,

“Ludington, Mich.

“Gentlemen:

“Confirming conversation over the phone the other evening with Mr. Holland, at which time he booked our order for the two more cars of 4 in. No. 4 pine crating strips D2S to % in., to be same quality as the last shipped us, we wish to inquire as to how soon you will be able to make shipment of these two cars.

“Awaiting your reply, we are,

“Yours very truly,

“Dennis Lumber Company.”

To this communication the plaintiff company replied under date of December 30, 1911, advising that the lumber would be shipped at once.

On January 6, 1912, the plaintiff mailed to the defendant an invoice of the first car of lumber shipped, and on January 11, 1912, sent an invoice of the second car load shipped. The first car of lumber was placed for unloading February 19, 1912, and was unloaded on the following day. The other car was placed for unloading on February 21, 1912, and the unloading of that car was completed within two days, on February 23d. On the next day, February 24, 1912, defendant notified plaintiff of the rejection of part of the lumber received, by the following communication:

“Dennis Lumber Company.

“Grand Rapids, Mich., Feb. 24, 1912.

“Stearns Salt & Lumber Co.,

“Ludington, Michigan.

’“Gentlemen:

“We herewith hand you report on the two cars of pine crating as follows:

B. & M. 61015 — 27,106 ft. of good

1,479 ft. of worthless culls

28,585 ft. total which shows

—a shortage of 32 ft.

O. C. L. 9114___25,540 ft. of good

2,395 ft. of worthless culls

27,935 ft. total.

“The writer has looked these culls over very carefully, and there is no doubt but that our customer has been more than fair in what he has taken. However, if you wish, we will have Mr. Tillitson go over the culls, or if your Mr. Holland can spare the time to go with us to look them over the next time he is down here, it will save any unnecessary expense in the matter.

“We are certainly surprised that any inspector could or would attempt to ship any such strips for No. 4, as they are so poor and rotten that they will hardly hold together and are absolutely of no value whatever.

“We herewith enclose statement and our check to balance account for these two cars.

“Yours very truly,

“Dennis Lumber Company.”

The plaintiff company immediately replied that it would not consent to any loss on the car, and must have settlement in full. Further correspondence was had between the parties, and finally suit was brought to recover the sum of $50.75, the claimed balance due on the two cars in question, the value of the lumber rejected. Suit was started in justice’s court, which resulted in a judgment in favor of the defendant, and on appeal taken to the circuit court the trial judge directed a verdict of no cause of action.

It is contended here that the circuit judge erred in holding and instructing the jury that the contract in question was severable, and that the defendant had a right to reject part of the lumber in question and accept the remainder. It is the contention of the plaintiff that the defendant had purchased these two cars of lumber,. of one quality and grade, and as soon as the cars arrived the defendant had a reasonable time in which to inspect the same and ascertain if they complied with the requirements of the contract as to quality and grade, and after such examination defendant was obliged to either accept or reject all of the lumber; and if he accepted a part of the lumber, and then used the same, he was obliged to pay the contract price of all of the lumber. Reliance is placed upon the cases of Sisson Lumber, etc., Co. v. Haak, 139 Mich, 383 (102 N. W. 946), and Columbus & Hocking Coal, etc., Co. v. See, 169 Mich. 661 (135 N. W. 920).

It is true that it is the rule of law in this State that in an executory contract for the sale of personal property, where there is an implied warranty, the warranty does not survive the acceptance of the goods, and it becomes the duty of the purchaser to make an inspection and reject or pay the contract price, which proposition of law is fully sustained by the two Michigan cases above cited. But the question here is rather whether or not the contract in question is a severable one, and whether or not the defendant could, after inspection, in view of the rule of law here established, reject that part of the lumber which did not meet the specifications. The question of the right of the consignee to reject a portion of the shipment which is below grade or worthless, while accepting the greater part of the shipment, is not involved in the decision of the Sisson Lumber Co. Case, supra, and likewise in the Columbus & Hocking Coal, etc., Co. Case, supra, the entire cargo was of an inferior quality, and the consignee accepted the shipment of coal and attempted to make a settlement upon a reduced price because of the alleged inferior quality of the coal. No Michigan case has been called to our attention, nor have we been able to find such a case, in which the precise question here involved was under consideration.

In the case of McFadden v. Wetherbee & Co., 63 Mich. 390 (29 N. W. 881), in which there was under consideration a contract for the delivery to a vendee of pine blocks of a specified quality, and the vendee had failed to reject the blocks at the time of delivery, although advised that they were defective, and paid for the same, this court said:

“The defendant had the right, at the time of the delivery, to reject any and all blocks not coming up to the standard of the contract; but, if it paid for them at that time, or afterwards, without rejecting any, although complaint was made of their being defective, the defehdant nevertheless lost thereby the right in this suit to plead a breach of the contract as far as the blocks so paid for were concerned; nor would it authorize the rejection and nonacceptance of blocks thereafter to be delivered under the contract, without a showing that the blocks so offered to be delivered were .also defective. No such showing was made.”

So in the instant case, if the defendant had taken into possession the rejected lumber and assumed to dispose of it at a less price, as was done in the Columbus & Hocking Coal, etc., Co. Case, supra, there could be no question that under the law in this State the damages thus sustained could not have been recouped in an action to recover for the rejected lumber. But here the defendant moved promptly by notifying the plaintiff the very next day after the inspection of the rejection of the lumber in question.

In a similar case in Maryland, Canton Lumber Co. v. Liller, 107 Md. 146 (68 Atl. 500), the court held that the plaintiff had a right to accept lumber which was up to the grade contracted for, and that by so doing it did not accept the part which was below grade. In its opinion the court said:

“Unless it measured up to the specifications, it was of no practical value to the plaintiff for the only purpose for which it was ordered, and, not being a dealer equipped for resale, it was of little value to him for any purpose. He was compelled, in order tq perform his contract with the railroad company,' to purchase without delay other lumber to replace such as should be rejected under’ proper inspection. Can it be supposed then that it was the intention of either of the parties that if one-half or one-quarter of the lumber passed the inspection, and the remainder was rejected, that the plaintiff could not use the former for the specific purpose for which it was bought, without being required to take also the rejected portion which he could not use? Such a conclusion is as irrational when attributed to the defendant as when attributed to the plaintiff, under all the circumstances of this case. And this construction is supported by the subsequent dealing of the parties with respect to the rejected lumber, which was accepted and removed from Keyser by the defendant. It is true that this alone would not be conclusive, and it would have comparatively little significance if accompanied by a declaration that the acceptance of the rejected lumber was only for the purpose of reducing thereby the damage sustained, but when unexplained, as in this case, the conduct is most significant of the intention of the parties. As illustrative of this view, it was said in Richards v. Shaw, 67 Ill. 222, that the modern rule is that the entirety of a contract of sale is severed by the buyer’s receiving and retaining a part after the seller has refused or failed to deliver the residue of the specific quantity of goods bargained for.
“The case of Holmes v. Gregg, 66 N. H. 621 [28 Atl. 17], relied on by the plaintiff, is directly in point, and meets with our full concurrence. . That was a sale of lumber shipped on cars in five lots, three of which were accepted and used by the defendants, and the others, not conforming .to the order in quality, were rejected and piled in their yard, where they remained, subject to the plaintiff’s order. The defendants seasonably informed the plaintiffs of their action, and tendered the price of the accepted lumber, and the court said: ‘Without an express stipulation that the contract was or was not entire, the parties might have understood that it was severable in such a sense that the defendants could accept the lumber that conformed to the contract and reject the rest.’ ”

We are of the opinion that the trial court was correct in holding that the contract was a severable one, and no error was committed in so charging the jury.

In his reasons for directing a verdict the court also stated that thus severing the contract was in accordance with a custom universal among lumber dealers, and it is contended that this was error because, it is claimed, the testimony in this respect falls far short of establishing such a universal custom as to warrant this conclusion on the part of the court. Being of the opinion that the court arrived at a proper conclusion with respect to the other question, and properly directed a verdict for that reason, it is unnecessary for us to determine whether under the facts in this case the testimony was sufficient to justify a conclusion that a universal custom had been established.

The judgment is affirmed.

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

Ostrander, J.

(dissenting). The first letter which appears in the record in respect to the matter in controversy was written by the defendant to the plaintiff December 29, 1911, which recites that it confirms a conversation over the phone between plaintiff’s representative and defendant’s representative, “at which time he booked our order for the two more cars of 4 in. No. 4 pine crating strips D2S to ¾ in. to be same quality as the last shipped us,” and inquiring when shipment would be made. In answer the plaintiff on December 30th wrote the defendant:

“Your favor of the 29th received, relative to two cars 4 in. pine strips, and we are pleased to advise you we are in position to get these on the way to you at once.”

With this letter when a statement on an order blank of the plaintiff, dated December 30, 191T, describing two cars 1x4 pine crating S2S to ¾ in., $13, upon which was printed:

“The above is a copy of your order as we understand it. If incorrect wire us immediately.”

The first car was shipped January 6, 1912, on which day the invoice of the car sent to the defendant is dated. The invoice is:

“Pine crating S2S to % 1x4 28617 13.00........ 372.02 Less freight.”

The other car was shipped January 11th, the invoice dated that day and sent to defendant, and the invoice describes:

“Pine crating S2S to % 1x4 27933 13.00........ 363.13 Less freight.”

These invoices and the cars were received by the defendant, and the cars were placed by them with their customers. They paid $400 on account before the arrival of the cars. Defendant bought the lumber to be sold again. The cars were unloaded by the customers, and defendant wrote plaintiff on February 24th, giving a report of the two cars, showing that out of the first car 1,497 feet and out of the second car 2,395 feet had been rejected as worthless culls. Accompanying this report and statement was defendant’s check to balance the account as per the statement. On February 28th, plaintiff wrote the defendant acknowledging receipt of the said statement, saying:

“Now in reply will say that we did not sell you a No. 4 grade. Our order confirming this deal reads 1x4 pine crating, which means No. 4 and 5 mixed. We cannot stand any loss whatever on these two cars and we must have settlement in full.”

Further correspondence followed, defendants refused to pay, and this suit was brought to recover the balance of $50.75. The cause came on for trial in the "circuit court, on an appeal from justice’s court, and among other testimony offered on the part of the defendant in that court was some which the defendant asserts tended to and did prove a custom of the lumber trade permitting the buyer to accept part of a car without accepting all of it. The testimony further tended to prove the facts above stated, but no poiiit appears to be made by counsel upon plaintiff’s denial that it did not sell No. 4 grade. In argument the sale is treated as one upon implied warranty. The circuit court directed a verdict for the defendant, saying, ■among other things:

'7 think it satisfactorily appears that the contract fin this case was a severable contract, and, further, That according to the custom universal amongst lumber dealers, the conduct of the defendant company was justified, and when an amount was sent to the defendant covering the contract price of the grade of lumber accepted and the check retained by the plaintiff company, that the defendant had done all it was required to do.”

The testimony fails to prove a custom known to plaintiff, and has little tendency to prove a custom in Grand Rapids, where the lumber in question was received. What effect the court gave to the fact that plaintiff kept the check sent by defendant with its .statement is not apparent. The money was due to it, and, as it contends, was a partial payment only.

That the court was wrong in holding the contract severable is, I think, clear. It was not, in terms, severable. The sale was a sale of a car load, and a car load was tendered in performance. The tender of a few strips or of half a. car load would not have answered the seller’s promise. The action of the buyer in accepting a few or many strips, or boards, would not sever the contract. Defendant, with no notice to plaintiff, turned the lumber over to a customer before inspection. Submission or a lawsuit were the alternatives presented by the buyer to the seller, as they would be in every similar case.

The Maryland case, cited by my Brother Kuhn, was not in its facts like the case at bar. In that case lumber to conform to blue-print and other specifications was agreed to be delivered — 409,943 feet in all. To the knowledge of both parties it was to be used in the construction of a certain building, and plaintiff, the buyer, claimed it was subject to the inspection of the agents of the railroad for which the building was to be constructed. Some 56,000 feet were used, and the remainder rejected, and the seller removed the rejected, lumber. The buyer purchased the necessary material elsewhere at a higher price and sued for his damages. The court refers approvingly to a New Hampshire case. Examination discovers that it is a case in which five lots of lumber of different dimensions and prices were sold. Three lots were accepted and used, the others, “not conforming to the order'in dimensions, quality, quantity, and price, were rejected,” of which the sellers were seasonably informed. The Maryland court also refers to a Maryland case where the sale was of three negroes, warranted to be sound, and it was held that the contract was severable. None of the cases is like the one at bar.

Whether a particular contract is entire or separable is a question of intention, which intention is to be determined by the language used by the parties and the subject-matter of the agreement. I quote, as applicable to the case presented upon this record, the language of the supreme court of Iowa in Pacific Timber Co. v. Windmill & Pump Co., 135 Iowa, 308, 310 (112 N.W. 771), as follows:

“It is very difficult to lay down a rule which will apply to all cases, and consequently each case must depend very largely upon the terms of the contract involved. In this case we think it almost conclusive that the parties did not intend the contract in question to be separable. It is hardly conceivable that the plaintiff, living more than 2,000 miles away from the defendant’s place of business, should contemplate the shipment of a car load of lumber, although consisting of pieces of different dimensions, with the understanding or intention tl at each piece of timber so shipped should constitute the basis of an independent contract, so that the consignee should be at liberty to reject any part of the lumber so shipped and retain the balance; nor is there anything in the contract itself indicating that the defendant had any thought that it was to receive any other than an entire car.”

For the reasons stated, I disagree with the conclusion of my Brother Kuhn, and think the judgment should be reversed, and a new trial granted.

Stone and Steere, JJ., concurred with Ostrander, J.

The late Justice McAlvay took no part in this decision.


author: Kuhn, J.

text:
    PRENTIS v. PRENTIS.
    1. Quieting Title — Parol Agreements — Equity—Trusts.
    Where complainants brought a suit to quiet title to store property in Detroit that defendants averred and- gave testimony to show had been conveyed in trust to complainant charged with the obligation to pay over to his two brothers such sums of money as they might need, and where the claimed trust had been recognized by complainant who had paid considerable sums to the brothers from time to time, and who later voluntarily executed a quitclaim deed to one of the sisters-in-law, the conveyance being intended for the purpose of enabling her husband to borrow money and with the oral arrangement that it should be reconveyed to the grantor (afterwards carried out), and, where it further appeared that the grantee quit-claimed said premises to a son, who also found a blank deed from the first grantor, and filling up the spaces, recorded it so as to clear up title in' his mother, the trial court properly treated the deeds from the sister-in-law to her son as void, and rightly found defendant to be the owner in fee, the complainants failing to produce evidence that would preponderate in their favor, and hence not sustaining the burden of proof resting upon them.
    2. Same — Statute oe Frauds.
    Under section 9509, 3 Comp. Laws, performance of the alleged oral agreement sufficiently met any objection as to the invalidity of the trust because it was not in writing; if the executory arrangement was fully carried out by the parties, no sufficient reason existed to invalidate their acts by reason of the statute of frauds aforesaid.
    3. Same — Evidence.

      Held, further, that the grant of title by the wife of one of the brothers to her husband was understandingly executed and that she knew the purpose was to permit him to mortgage the property.
    4. Saijib.
    And the evidence failed to meet the burden of proof upon the contention that equitable title rested in the three brothers, two of whom., received unequal shares of the rent, and paid taxes jointly; having but a tendency to show a beneficial use, not an equitable right in the real estate.
    Appeal from Wayne; Van Zile, J.
    Submitted June 10, 1915.
    (Docket No. 39.)
    Decided December 21, 1915.
    Bill by John H. Prentis and another against George H. Prentis and others to quiet title to certain real property. From a decree for defendants, complainants appeal.
    Affirmed.

      Henry B. Graves and Arthur E. Fix el, for complainants.

      George H. Prentis, in pro. per.

      George G. Prentis and Benjamin* F. Mulford (James 0. Mur fin, of counsel), for defendant John F. Prentis.
   Kuhn, J.

The bill of complaint in this. case was filed to quiet the complainants’ alleged title to certain real estate in Detroit, which was formerly the homestead of Eben Prentis, and is now occupied by Himelhoch Bros. & Co.’s store on Woodward avenue, in the heart of the business section of Detroit.

Eben Prentis died in October, 1868, leaving three sons, John F., George H., and Browse T. The first two named sons are the principal defendants in this suit, and the widow of Browse, Mary, and their son John H. , (called Jack) are the complainants. The defendants -Wayne County & Home Savings Bank and the Mutual Benefit Life Insurance Company hold mortgages on the' property, and Himelhoch Bros. & Co. hold a lease; but their interests are not adversely affected in this litigation, and they are therefore merely nominal parties.

On July 15, 1862, Eben Prentis conveyed the property to his son John F. by warranty deed. The defendants contend, and presented testimony in support of their claim, that at the time this conveyance was made it was understood between Eben and John F., who had no business of his own, that he was to give to his brothers money whenever they wanted it. It is the contention of complainants that this deed was given in trust for all three sons. On June 21, 1889, John F. gave to Mary, the wife of Browse, a quitclaim deed of the property — defendants say at the solicitation of Browse, who wished to borrow money on it, and assured John F. that he should have the property back. Complainants say that this deed was given to Mary in trust for the three brothers, because foreclosure proceedings were pending against other property of John F. On April 9, 1891, Mary conveyed the property to Browse by warranty deed, which was recorded June 17, 1907, and on June 15, 1907, Browse conveyed the property to John F. by warranty deed, and on January 12,1912, Mary quitclaimed to John F. The defendants say that this latter deed was in fulfillment of the plan by which the title originally vested in Mary. Complainants say it was procured by representations that it was needed to complete arrangements for a new building, for which Himelhoch Bros. & Co. were to make advances of rent, and John F. and George H. borrowed $85,000 on a mortgage given to the Wayne County & Home Savings Bank.

On July 25, 1904, Jack Prentis received from his mother a warranty deed of the premises. Browse T. Prentis died May 4, 1912, devising all his property to his wife first, and to his son Jack if his wife should predecease him. After his father’s death, Jack found among his papers a blank deed signed by John F. Prentis and acknowledged in blank before a notary public whose commission had expired in 1911. He filled up the blanks in the deed by inserting a description of the property here in suit, the date January 15, 1912, -•and the name of Mary Prentis as grantee, leaving the .acknowledgment in blank. The witnesses were Jack Prentis and the notary. The real date of the deed is in dispute, as well as the purpose of it. It is the contention of the complainants that it was left with Browse shortly after the recording of the deed of Mary to Browse and Browse to John F., “for the purpose of protecting his branch of the family in their interests in the property.” It is the contention of the defend.ants — and they presented the testimony of the notary .and John F. to prove it — that it was given to enable 'Browse to sell some property on Crane avenue, owned .by John F. and Browse, while John F. was in Florida :for the winter. After the discovery of this blank deed, ¡and before filling in all the blanks, Jack consulted his attorney, Mr. Fixel, upon whose advice he secured another warranty deed from his mother on October 28, 1913, and recorded it at once to protect his claimed .rights. The deed of July 25, 1904, from Mary to Jack Brentis had not been recorded, for the reason, as given ,by Jack, that he did not wish to have his father know -.of its existence. Complainants in this suit, however, rest no claim of title on this blank deed, and say that •it was only used “to bring George H. Prentis into the 'light,” whom the complainants charged with machinations to get control of the property. Jack Prentis and .Mr. Fixel interviewed the notary about the blank deed, .and on the next day, when the notary told George H. .about the interview, George H. placed on record a warranty deed from John F. to himself, dated December 18, 1913.

Mortgages were issued on the property from time; to time by 'John F. prior to April 9, 1891, the date of the deed to Mary, and by Mary and Browse T. after that date; and the proceeds were shared by the brothers, principally by George H. and Browse T. Leases which had been negotiated by Browse, between 1891 and 1907, were made in the name of John F. Prentis, and one was signed in 1895-, “John F. Prentis, by Browse T. Prentis, his attorney.” Rents were collected at times by Browse, and after his death by Jack, and receipts given, in the name of John F., and John F. made a division of the rents with his brothers. During all this time John F. usually collected the rents in person.

The bill prays that the deeds of Mary to Browse (April 9, 1891), Browse to John F. (June 15, 1907), and John F. to George H. (December 18, 1918), be set aside as clouds upon the title of Jack Prentis, and that John F. give a quitclaim deed, to discharge any right, title, and interest appearing of record to have been conveyed to him by the quitclaim deed of Mary Prentis of January 12, 1912.

The trial judge found for the defendants, dismissing the bill of complaint and granting the relief prayed for by George H. Prentis in his cross-bill by declaring the two deeds by Mary to Jack Prentis void and adjudging George H. Prentis to be the owner in fee simple of the premises.

It is impossible, in a reveiw of this case, to attempt to set forth in an opinion the many incidents found in. the record which show the unusual business relations which existed during many years between the parties to this litigation. But after a- careful study of this record we are firmly of the opinion* that there are at ' least as many things consistent with the theory of legal title in the defendant George H. Prentis as in the complainants. Complainants’ case must therefore fail, as they have not met the burden which rests upon them to prove their case.

In our opinion, the theory of the defendants with reference to the deed of John F. to his sister-in-law Mary, given in 1889, is the only reasonable explanation which can be given for this transfer. It seems to carry out the theory of the original understanding between John F. and his father, and that its purpose was to permit Browse to raise money on it is clearly evidenced by the fact that he did thereafter secure funds by giving a mortgage.

It is contended that no evidence of a parol trust or parol condition is competent under the statute of frauds (section 9509, 3 Comp. Laws). But while there can be no question that a title cannot be established by parol evidence, we think that this testimony was proper to explain the voluntary conveyance had with reference to this property, and to show why Mary Prentis received her deed, and why she conveyed it to Browse, and in 1912 quitclaimed to John F. If she had not reconveyed, it is clear that the testimony would not have established a trust in favor of the defendants ; but here the transaction was completed and the parol agreement fully executed, and therefore the statute of frauds has no application, under the authority of Lasley v. Delano, 139 Mich. 602 (102 N. W. 1063), where this court said:

“Neither the statute of frauds, nor that of uses and trusts, applies to this case. The parol contract between complainant and Mr. Delano has been performed, and the parol trust imposed upon him fully executed. No contract for the sale of lands is involved. * * * If, however, the trust rested in parol, and while so resting could not be enforced as an executory contract, yet, when the parol agreement has been executed, neither party can invoke the statute. The courts have repeatedly held that a party may perform a promise which he could not legally be compelled to perform, and that, when so performed, it is binding upon him and the other party to it.”

It was so considered, we think, by counsel, and we are also of the opinion that the most important question in controversy in the case is the validity of the deed of April 9,1891, given by Mary Prentis to Browse T. Prentis. With reference to this deed the learned circuit judge made the following finding, with which conclusion, after a careful examination of her testimony, we concur:

“Now the court finds as a matter of fact that there was no fraud inducing the execution of this deed from Mary Prentis to her husband, Browse T. Prentis, and that she understood fully the purpose of that deed; that she understood it not only by reason of the understanding that had been had, of which she was fully conversant, but had seen that deed; it was written in her own handwriting, and executed; and the proofs show and warrant the statement that this title was simply handed to Mary Prentis to be used as directed by Browse Prentis, for his benefit, in raising some money, and for the making of this mortgage and some other mortgages; and that it was understood that it was to be returned to John F. Prentis. Browse T. Prentis did, after having received this deed from Mary Prentis, keep it off the record a short time to be sure, but Browse T. Prentis, on the 15th of June, 1907, to comply with this promise he had made to his brother, deeded the property back to John F. Prentis, and later, by way of confirming the title of January 12, 1912, Mary Prentis quitclaimed to John F.”

With reference to the contentions of the complainants that the property was beneficially owned by the three brothers, each having an equitable interest, and that the interest of Browse T. Prentis passed by the will to the complainants, it must be said that the evidence in support thereof is very meager, if not negligible. There is no dispute about the validity of the deed of Eben Prentis to John F., which vested the title exclusively in John F. The only competent evidence in support of the theory that there was an equitable title in all the brothers was the fact that they all shared in the proceeds of the rent and mortgages, and divided the taxes between them. But it can be said, with force we believe, that this fact .was entirely in accord with the defendants’ contention as to the understanding which accompanied the giving of the deed, and is proof of John F.’s faithful performance of his father’s request. The very irregular division of the proceeds and the taxes tends to substantiate the evidence of the understanding that John F. was to give his brothers money when they needed it, as was also the fact that the arrangement did not seem to become very definite until 1902 or 1903. As the years went by the brothers seemed to share the property and its proceeds on a more and more definite basis, and they apparently had an understanding that each was to have a part of the proceeds and therefore each should help pay the obligations. But if the property were beneficially owned by all three, not beneficially used, it is inconceivable that there would have been such an indefinite, haphazard, uneven division of the profits.

Complainants having failed in their case, we conclude that the decision of the court below should be affirmed, and that a decree should be entered as prayed by the defendants in the cross-bill, with costs to the defendants.

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

The late Justice McAlvay took no part in this decision.


author: Moore, J.

text:
    BLODGETT v. KENT CIRCUIT JUDGE.
    Equity — Practice—Repiication—Extending Time.
    Chancery Rule 12, fixing the time within which a replication may be filed at fifteen days, recognizes in the chancellor a discretion to extend the time: hence, it was not incorrect practice, on defendant’s motion to strike a replication from the files, to deny the request, leaving the replication on file as if properly entered by permission of court after the time stated in the rule, the court being expressly authorized to extend the time thereby.
    Submitted October 5, 1915.
    (Calendar No. 26,834.)
    Decided December 21, 1915.
    Mandamus by John W. Blodgett against John S. McDonald, one of the circuit judges for the county of Kent, to require respondent to vacate his order denying the motion of petitioner to strike from the files the replication of the Grand Rapids Trust Company, as trustee, in a chancery proceeding in which petitioner is one of the defendants.
    Writ denied.

      Norris, McPherson, Harrington & Waer, for relator.

      Thos. P. Bradfield, for respondent.
   Moore, J.

On or about September 11, 1914, there was commenced a suit in chancery wherein the Grand Rapids Trust Company, as trustee of the Grand Rapids Motor Truck Company, was complainant, and in which John W. Blodgett, together with numerous other parties, was a defendant. On October 6, 1914, Mr. Blodgett’s answer to the bill of complaint was filed and served. The answers of many of the other defendants were not served until some months thereafter. After the filing and service of Mr. Blodgett’s answer, no replication was filed for more than five months. Immediately upon the receipt of this replication Mr. Blodgett, by his solicitors, filed a motion to strike from the files this replication on the ground that it was not filed within 15 days after the filing and serving of the answer. This motion was denied, and at a later date a motion to vacate the order thereupon entered was also denied. This petition for mandamus asks for an order directing the circuit judge to strike from the files this replication. Counsel say:

“There is one, and only one, question involved in these mandamus proceedings; that is: Did this court when it promulgated Chancery Rule No. 12, mean what it said? If it meant what it said, then the writ of mandamus should issue.”

In his return to the order to show cause appears the following: ,

“No proof or suggestion was made by or on the part of the relator that it would be more difficult or inconvenient or prejudicial to him for him to produce evidence in support of his said answer if the said replication were now allowed to stand as filed nune pro tune than it would have been had the replication been filed within 15 days after service of a copy of his said answer, and the said relator by his counsel rested his claim that he was entitled to have said replication struck from the files solely upon the ground that it was not filed or served within said. 15 days. And, further, it not appearing that the relator had been in any manner prejudiced by the failure of the complainant to file such replication within 15 days from the time of the service of a copy of the said answer, and it appearing that the said bill is filed by the complainant in his representative capacity, as trustee in bankruptcy appointed by the United States court, for the purpose of obtaining a contribution from the stockholders owning stock not fully paid for in proportion to the amount remaining unpaid from each, respectively, for the purpose of paying the creditors mentioned in the said bill, and that should the said statements of the said answer of the relator be in fact untrue, it would be an injury and injustice to all the other defendants in this cause who might, at the hearing, be found liable, so to contribute as well as to the said complainant as trustee, to allow the said answer to be taken as true by reason of such failure of the said complainant to file a replication; and it also appearing that the said complainant did not admit that the said statements in the answer of the relator are true, but on the contrary claims that the same are untrue in fact, and that in fact the said relator is the owner of a number of shares of such stock on which he has not paid anything, and that the omission to file such replication was inadvertent and unintentional, and that, should such motion be granted and such replication struck from the files, it would be necessary, in order that equity might be done to all parties, to discontinue the present case and file a new bill, which would cause great expense and delay — I deemed it to be for the interest of equity and justice and the exercise of sound discretion to make the order that the said motion be denied, and that the said replication be deemed to have been filed nunc pro tunc.”

Counsel for relator rely upon the strict reading of the rule which is as follows:

“The complainant shall file a replication to the defendant’s answer within fifteen days after service of such answer. Otherwise the cause shall' stand for hearing on such bill and answer unless the time for filing a replication shall be extended.”

The practical effect of what was done is to extend the time for filing the replication after the 15 days had expired. We think this was within the discretion of the judge. Hardwick v. Bassett, 25 Mich. 149; Daly v. Circuit Judge, 102 Mich. 392 (60 N. W. 758). See, also, Bender v. Circuit Judge, 181 Mich. 50 (147 N. W. 571); Van Slyke v. Rooks, 181 Mich. 88 (147 N. W. 579).

The application for the writ is denied, with costs.

Brooke, C. J., and Person, Kuhn, Stone, Os- . trander, Bird, and Steeee, JJ., concurred.


text:
    DAMS v. VINTON CO.
    Master and Servant — Negligence—Assumed Risk.
    Plaintiff, an experienced employee of a wrecking company, was not entitled to recover for injuries sustained while he was engaged in wrecking a building by reason of the defective or weakened condition of defendant’s derrick from which he improperly ordered one of the cranks removed, and, having notice of the defective state of the derrick and of the excessive weight of the girder that the men were lowering, attempted to check its descent with a rope that pulled plaintiff against and into the machine.

    Error to Wayne; Collingwood, J., presiding.
    Submitted October 5, 1915.
    (Docket No. 5.)
    Decided December 21, 1915.
    Case by Jacob Dams against the Vinton Company ■for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Ormond F. Hunt and Matthew H. Bishop, for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.

      On assumption of risk of injury from defect in simple tool, see note in 51 L. R. A. (N. S.) 337.
      As to assumption of risk of defective tool, machine or appliance where the defect is obvious but its importance not appreciated, see note in 13 L. R. A. (N. S.) 691.

   Moore, J.

This action is brought to recover damages for personal injuries received by plaintiff while in the employ of the defendant. At the close of the case for the plaintiff, the court directed a verdict in favor of the defendant. The case is brought here by writ of error.

There are several assignments of error, but the important question is: Did the court err in directing a verdict for defendant?

Plaintiff avers the negligence of the defendant was twofold:

(1) Suitable machinery in good repair should have, been furnished him.

(2) Plaintiff, being taken from his usual course of' employment and placed in a position of hazard and danger, which were not understood or fully appreciated by him, was entitled to warning and instruction commensurate to the menace.

Each of these propositions was argued orally and in the briefs at great length.

The president and manager of the defendant company, Mr. Vinton, at the time of the trial, was dead.. Over objection the plaintiff was allowed to testify about conversations with him and the directions Mr. Vinton gave him. This was clearly incompetent under the statute. The record shows that plaintiff at the time of the accident was 47 years old. He had been for many years in defendant’s employ; upwards of 10 years of the time as carpenter’s foreman. The defendant had a contract to tear down an eight-story building, the inside of which had been nearly destroyed by-fire. In doing this work a derrick was used. It was. the claim of the plaintiff that he was unfamiliar with', the use of a derrick, and that this one was defective,, in that one of the cogs of the wheels on the end of the shaft was partly gone, and the cranks used to turn the shaft did not properly fit on the shaft. Nevertheless, under the direction of the plaintiff, the derrick was taken to the eighth floor and set up, and was used for several days, by him and the men under him, to lower' material to the bottom floor, the loads varying in weight, some of them reaching 500 pounds. Plaintiff says the handles or cranks of the derrick were too. loose, and they were sent to the shops to be repaired; that when they were returned they were too tight, and an attempt was made to remedy this trouble by filing; but that the workman who was doing this was sent to some other work before it was finished. The roof of the building was sustained by steel trusses. The plaintiff’s claim is that, when he got through with the work a carpenter should do, he told Mr. Vinton he should send a man who understood steel work, and that Mr. Vinton told him to go on with the work, and that he unwillingly did so. One end of the rope on the derrick used to lower the article was wound around one of the shafts in such a way as to act as a snub rope.

We quote from the testimony of the plaintiff:

“It was in the small wheel where the wheel was broke out, with one-half a tooth out. After the elevators was taken down, Mr. Vinton directed me to cut the trusses up. I was told to cut this girder in two pieces, and I said we could not do that. I said in two pieces it was too heavy. The trusses was about six ton, and I told Mr. Vinton I thought it should be cut into four or five pieces, and he said in return: ‘That is too much work. It takes too much to cut that iron up, too much expense.’ And told me to cut it into two pieces, and then he said, Tf you can’t do them in two pieces, you must take it in three pieces. It costs too much in expense.’ And I cut them in three pieces. The pieces were about 20 feet long and about 6 feet high, and was composed of angle iron. * * * When the girders or trusses was cut in three pieces, each piece would weigh about two tons. * * *
“We take and put on top of the pulley, and hang it on here, and that other end we hang on this iron, and start to turn her, and here we hoist it so that we get it down on the floor, right on the sides of the derrick, and after we get him on the side, and we loosen it up, and sling over the derrick on one edge, and then we raised it so that we get it down plumb so that it hung up endwise by the derrick. We took that truss from the bottom so that over the machine, where we turned the winch, over the drum, I got the truss high enough so we pushed it out and started to lower it down, and got the truss so far that he could not turn more with this crank, so he stopped. The truss was right against the handle where he turned; he could not turn where the truss hangs for his handle. It happened this way, that the truss swings more on the left side than the right side, so the right side, the crank was free, and the left side was against the truss, so that he could not turn, we could not lower, the truss hangs right in place. Then I told the two men to stop the machine. I told them they had to look out now, we would be in danger above this crank, and I say: ‘Lutsky, take your handle off.’ Lutsky was on the west side — the left side. I face the derrick. I told Lutsky, ‘Take your handle off now, so long as we get the truss down that you get back again your handles.’ And King holds tight, and I said, ‘Hang on,’ and T hang on to the rope and you hang on.’ I hold the snub rope. I help him to hold it this way, and he helps a' little too. It was like a brake. That derrick hasn’t a brake, and used the rope in place of the brake.
“After Lutsky had taken his handle off, I told King, ‘Now we start, just to easy slow down,’ so he' started to turn. Of course, it was a little hard, and I pulled .on my rope too. I held my rope so much as I could, but it was two tons heavy, and we got about four feet down, which takes six or seven minutes. It was pretty slow, and at once the handle slips off. King’s on the right side, and, so quick as the handle slips off, it went down. That rope gives me a push, and pulled me to the machine, and I got this arm between the two cogwheels, and at the same time the drum of the machine break all in pieces, and went up in the air, and the thing comes down and break the leg.”

The plaintiff received very severe injuries.

It is apparent from the record that we have the case of a man of mature years, of sufficient experience and intelligence to be made a foreman of woodworkers, who is set to work using a machine of simple construction to lower articles of various weights with a machine the condition of which he had knowledge. And he-also had knowledge of the weight of the articles to be lowered. He was giving the orders, and, knowing the above facts, and also claiming to know that the cranks to the derrick were not properly fitted, he deliberately directs that one of the cranks be removed.

The occurrence is a very regrettable one, but, unless we are to establish a new rule of law, we must affirm the judgment. See Coleman v. Cartage Co., 174 Mich. 231 (140 N. W. 539), and the cases cited therein.

The judgment is affirmed.

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


text:
    DODGE v. NORTH END IMPROVEMENT ASSOCIATION.
    1. Injunction — Equity — Parks — Conveyances — Inappropriate Use — Dedication—Remedies.
    Equity will interfere, at the instance of an adjacent proprietor, to restrain a city from making unlawful use of property dedicated by the original owner as a park, with the express limitation that no other use should he made of it, provided that the municipality makes use thereof in any manner not intended, and inappropriate for a public park.
    2. Municipal Corporations — Park—Pavilion.
    A pavilion erected in a park to serve the purpose of a waiting room for ears and of shelter for those who made use of the park, and as a refreshment stand, and properly situated therefor, did not invade the limitations of the dedication whereby it was expressly stipulated that the property should be used for a public park and for no other purpose.

    3. Same — Definition.
    A public park may be defined as an open or inclosed tract of ground adapted to and set apart for pleasure, recreation, ornament, light and air of the inhabitants of the town in or near which it is located.
    Appeal from St. Clair; Law, J.
    Submitted October 7, 1915.
    (Docket No. 20.)
    Decided December 21, 1915.
    ■ Bill by Charles K. Dodge against the North End Improvement Association and others for an injunction. From a decree for defendants, complainant appeals. Affirmed.

      Stevens, Graham, & Stevens, for complainant.

      Carl A. Wagner and Burt D. Cady, for defendants.

      As to wbat use of parks amounts to diversion from tbe use for wbicb they were dedicated, see notes in 25 L. R. A. (N. S.) 980, 50 L. R. A. (N. S.) 465.

   Moore, J.

In April, 1912, the late Senator Thomas W. Palmer and his wife deeded to the city of Port Huron about 10 acres of land. The deed contained the following language:

“It is provided that the intent and purpose of this indenture is to convey to the city of Port Huron the above-described land and premises to be used only as a public park and for such use only the land above-described is conveyed in perpetuity; which said land is to be improved and properly cared for by the grantee herein, and is hereby dedicated to the use of the public forever. And provided further that nothing in this conveyance contained shall be so construed as to defeat reversion to the grantor or his heirs in case said property should ever be used for any other purpose than that above designated.”

The testimony is that the defendant, the North End Improvement Association, is incorporated.

■ “It was organized for the purpose of improving the north end of the city in any way they could, to put it in a more sanitary condition, and trying to induce the people to keep their premises in a sanitary condition, and to beautify-.the same.”

On July 23, 1912, a communication in writing from the North End Improvement Association to the city commission requested permission to build aspavilion on Palmer Park close to the corner of Ghrfield street and Gratiot avenue. On August 14, 1912, permission .in writing was issued by the city commission to the North End Improvement Association to erect this building on the northeast corner of Gratiot avenue and Garfield street, the building to be 16 feet wide, 30 feet long, and 8 feet in height, and was to conform in construction to a type open-pavilion-class building. The building was started in August, 1912, and was completed in October, 1912.

The complainant owns a house and grounds valued .at $5,000 across the street from Palmer Park. He claimed his premises were decreased in value by the erection of the pavilion, that it shut off his view of the river, that it and its surroundings constituted a nuisance, and that it was used simply as a railroad waiting station and was not an adjunct of the park, and filed this bill praying, among other things:

“That the building erected on said park property may be required to be removed. * * * That said premises may be decreed to be used for park purposes only. * * * That your orator may be awarded such damages as it may be shown he has wrongfully sustained. That your orator may have such other and further relief in the premises as equity may require and to your honor may seem meet.”

The city filed an answer in which appears the following:

“Says, however, that it understands that the inhabitants of the city located in the vicinity of the said park are greatly interested therein, and proposed to this defendant that for the purpose of promoting the public convenience, safety, and pleasure, and to facilitate the use by the public of the said park, that they would construct thereon with the permission of the city a public waiting room wherein persons resorting to the park might find shelter in the event of rain, inclement weather, or excessive sunshine. That for this purpose this defendant permitted the erection on the southeast corner of said park, adjoining the street railway, of a small structure designed as a waiting room and public shelter. * * * And submits that under the terms of the gift the officials of the city are made the sole judges as to the character and extent of the changes to be made in the said park and as to what modification thereof is best needed to secure the comfort, convenience, and public enjoyment of the aforesaid park. * * *
“This defendant avers that the building so erected is suitable and sufficient for the purposes for which it is constructed; that its location will best serve the convenience of the public.”

The improvement association also filed an answer. After a full hearing before a circuit judge who lives at Port Huron, he dismissed the bill of complaint. The case is brought here by appeal.

The trial judge filed an elaborate written opinion, from which we quote:

“During the summer of 1912, the North End Improvement Association promoted a scheme to place a building on the southeast corner of said out-lot 16 for reasons which will presently appear. Gratiot avenue is a part of the main thoroughfare through the city of Port Huron in a northerly and southerly direction. In this street and its extensions is a street railway track upon which are operated electric cars. Garfield street is about two miles north of the center of the business part of the city of Port Huron and about two miles south of the northerly city limits. In the northerly part of the city are located .two cemeteries, a large public park, a private park an'd resort, and several beaches which are used by many people, both by inhabitants of the city and by strangers, as summer resorts. During some portions of the year only part of the cars of the street railway are operated north of Garfield street; hence, people going from the city to points north of Garfield street frequently have occasion to wait at this street for cars which will carry them to the cemeteries, parks, or resorts in the northerly part of the city. The main object which the North End Improvement Association had in placing the building heretofore mentioned on the southwest corner of lot 16 was to provide a shelter for people who had occasion to wait for cars at Garfield street.
“In the summer of 1912 this association, by voluntary labor and contributions, cleared the ground of shrubs and rubbish, took down an old unsightly post and wire fence, and constructed a one-story building in its dimensions 10 feet north and south and 30 feet east and west, on the southwest corner of lot 16 directly across Gratiot avenue from complainant’s residence. A partition was run through this building so that the west end of the building nearest Gratiot avenue is an open pavilion 12 feet by 16 feet in size and in the east end an inclosed room about 18 feet by 16 feet in size. This building was constructed of good materials and neatly painted. It was completed as it now stands when this suit was commenced on June 25, 1913. It was lighted by electric lights. This building was planned and constructed with the full knowledge and approval of the city commission of the defendant city, without cost to the city. The object which inspired the North End Improvement Association to construct this building was to furnish a shelter for people who had occasion to wait at Garfield street for the north-bound street cars to the cemeteries, parks, and resorts located in the northerly part of the city. In order that the building might be looked after properly, the North End Improvement Association placed the defendant Mary I. Thayer in charge of the building and gave her permission to sell light refreshments therein such as are usually sold in public parks, as compensation to her for looking after the building. At the time _this hill of complaint was filed. Mrs. Thayer was in charge of the building selling light refreshments therein.
“It is now contended by both defendants that the building is not only useful as a waiting room for street car passengers, but also for such uses in connection with out-lot 16, called Palmer Park, as a pavilion in a public park is usually serviceable, to furnish a shelter for such pleasure and recreation seekers as come to the park, to furnish refreshment, and to provide a shelter to be used in connection with the ice skating rink which it is contemplated to establish during the cold months.
“Both defendants now claim that the construction of this building is but a preliminary step in the improvement of this park so as to make it available and useful for recreation seekers.
“The North End Improvement Association has also made, under the control of the city officials and with their approval, several improvements to out-lot 16 towards making this lot available and serviceable for park purposes, and I find that all that has been done in this way, including the construction of the building, has been done by the North End Improvement Association at the private expense of the members, and with the approval of the city officials, in the utmost of good faith, and with the object in view of the improving of Palmer Park and the benefiting of the north part of the city of Port Huron, and that these efforts have resulted in improving that park and thus directly benefiting the north part of the city of Port Huron, and indirectly the whole of the city.”

The position of complainant is tersely stated by his counsel in the brief as follows:

“The first proposition complainant makes is that this land dedicated to the people of the city of Port Huron as a public park has been subverted to a use foreign to that of a public park for which it was granted to the city.
“We maintain that, when property is dedicated for a public park, abutting property owners have a right to enjoin its use for any other purpose than a park, and that the erection of this building to be used as a transfer station for the patrons of the city electric railway is not using the property as a park.
“The city of Port Huron is merely the trustee of the park, which belongs to the public forever, and as such trustee it is the duty of the city of Port Huron by its officers and agents to cultivate, adorn, and decorate such park for park purposes only, and that to do anything else would be a violation of the trust. .
“We maintain that the building erected as the proofs show has nothing whatever to do with the park as a park; that it was not put there for the purpose of adorning and decorating the park or as an improvement to it, but was put there for the intent and purpose of a waiting room, not for people who wish to visit the park, but for those who, having taken the wrong car to go through to their destination, are obliged to wait on the corner for one going through to-the point they wish to reach.”

If the facts warranted the conclusion of counsel that-the gift of Senator Palmer has been subverted to a use foreign to that of a public park, there is.no doubt that-complainant as an abutting property owner might seek the aid of a court of equity. See 21 Am. & Eng. Enc. Law, p. 1072; City of Chicago v. Ward, 169 Ill. 392 (48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185); Church v. City of Portland, 18 Ore. 73 (22 Pac. 528, 6 L. R. A. 259).

We think it helpful to quote some of the testimony. One of the witnesses for the. complainant who did not approve of the building erected, nor of its location, and. who testified it depreciated the vaue of complainant’s property, testified, in part, as follows:

“The most desirable part of that park is on the north side in the grove for picnic purposes. The only" point from which that grove can be reached is from' the corner of Gratiot avenue and Garfield street, except to go around, and in order to reach that high part north of the depression, you have to cross the ravine or depression. I have been over the cinder path and the rustic bridge built by the North End Improvement Association. They offer as short and direct communication with the high ground there perhaps as anywhere.
“Palmer Park is a little over 2% miles from the center of the city, and the citizens desiring to use it for recreation purposes would have to go by street car if they came from the south. That would be the most natural and convenient means of transfer at any time of year. Patrons going to that park by that line of transfer would find it convenient to disembark at the corner and to use the cinder path and rustic bridge to the higher ground on the north side of the park. It is a great convenience to people who visit that park in going to 'and from it in case of storm and inclement weather to have a building there for their protection or anybody who wants to take the car at that point.”

Another witness for complainant testified on cross-examination, in part, as follows:

“Q. In your judgment the acquirement of that property as a public park is no benefit to that locality?
“A. Not at this time.
“Q. Would it be if improved as a park?
“A. Yes.
“Q. It would not be if left in its natural state?
“A. No.
“Q. What would you say as to a building for the accommodation of people coming to the park? Would that be a convenience to the public?
“A. It would be quite a convenience to the public.
“Q. How far is that park located from the center of the city?
“A. I should think it is probably two miles.
“Q. What would be the means of conveying the general public from the downtown district to the park?
' “A. By street car.
“Q. Is it not a necessary convenience for the traveling public, people going to the park, to have located there a building for their accommodation?
“A. If they are going to the’park, yes. * * *
“Q. From your knowledge of parks and real estate, if the city were building a pavilion for the accommodation of patrons of that park, always^ taking into consideration that the city was cultivating that for park purposes, would that be a suitable location from that point?
“A. I think that would be the proper place for it; the cars transfer there, I would think it would. * * *
“Q. Would it not be a convenience to the people using the park and coming to it by the street railway to have that building there to receive them?
“A. I think it would, yes.
“Q. That is true? .
“A. Yes, sir.
“Q. When the park is prepared for a skating rink on that low marshy place, it will be a great convenience to the people coming to that skating rink to have that building there to wait for the cars and to put their wraps there, would it not?
“A. It would be a benefit to the public in that way.
“Q. The public using the park?
“A. Yes. * * * There is a building in Pine Grove Park that has stood there 12 or 15 years. That pavilion has a sort of soft drink place underneath in the summer time. In connection with that building, there are also toilet rooms. From my experience in traveling about the country, I think it is a necessity to have such a building in these parks.
“Q. You think because of the fact that people transfer on that corner, and people going to that park would get off on that corner, and that being the most accessible point to the park for people coming on street cars, that is the proper place for such a building, if you are going to have one in the park?
“A. I take it, if the city is going to build a building, that would be the proper place.”

One of the witnesses for defendants testified, in part:

“The preparation of the ground and the construction of the building has made Palmer Park more desirable for park purposes. It is an improvement to the corner there. It is a starter. We have a starter, and if they continue on they will soon make the park a great place for private picnics. In my estimation, it has made the park more desirable since these improvements have been made, for little picnics and park purposes other than it was before, and the building is used as park pavilion as much as it is for a waiting room.”

Another witness testified, in part:

“Q. That park there has not been so developed as to make it a place for people to go and congregate for park purposes?
“A. I have seen a number of people there at once.
“Q. In what part of the 10 acres were they?
“A. In the low portion of the park.
“Q. You did not see any of them having occasion to use this building?
“A. They used the building because they were skating, a hundred or more at a time,.and I have seen them going from the pavilion down there and skating in the winter time.
“Q. They were using McNeil creek to skate on as you passed four times a day?
“A. Yes, sir.”

A member of the improvement association testified, in part:

“I am a member of the North End Improvement Association, and am familiar with the purposes of that association. It is composed of citizens in the north end and some from other parts of the city. The purposes and objects are set forth in our articles of association.
“Q. What can you say to the court as to what the policy of the association is as to this pavilion and waiting room, and whether or not the work is to stop there, or whether it is the purpose of the association to carry the work further ?
“A. The.work as projected was partially for the waiting room and partially for a pavilion for the park. It was partially outlined to make improvements on the park, as funds of the association could be gotten together by voluntary work of the members and sympathizers in this work.
“Q. Now, has the end of the project been reached by the construction of this building?
A. By no means.
“Q. Tell the court what that purpose is?
“A. * * * First, the building has not been completed as outlined. Further, the matter was talked over of connecting the two parts of the park by a rustic bridge and cleaning up and making the park presentable, so it would be more like a park for park purposes. Of course, it cannot be done all at once with voluntary subscriptions. The matter of' rest rooms and toilet rooms has been talked over several times, and, as to toilet rooms, that matter was discussed at one of our last meetings, and generally agreed upon that, it being an open building, it would be impractical to put in toilets with the water flushed, but it was talked of putting in a dry closet, which can be made very sanitary and put in very cheaply. It _ is the intention to continue this work of which the building of this pavilion is but the beginning and the installation of toilet rooms and rest rooms for the accommodation of the people who are obliged to assemble there at this point, and for whose benefit this waiting room was constructed.”

There was testimony as follows:

“The object 'of the association is to improve the conditions in the north end of the city wherever we have an opportunity. I think it was at least partly due to our influence that Elmwood street bridge was placed back in place, and the road fixed in condition and the bridge over. We built the pavilion in Palmer Park, cleared the ground, built a rustic bridge, and cinder path. The purpose of having that building on the corner of the park was as a pavilion for the park and the other as a waiting room.”

On examination by Mr. Wellman, witness stated:

“I have visited parks in other cities. In any parks that I have ever seen, there has been a waiting room of some sort to accommodate the people, for people coming and going. That is a recognized park purpose. * * * The majority of the land in that park is low. There is not much difference between the quantities of high land on the south side and that on the north side of the ravine. In connection 'with the use of the pavilion during the winter months, we have made arrangements to block McNeil creek up and flood that low ground and make a skating rink for the people, and to take the question up of opening up that pavilion and put in a heating system so that people may go in there and hang up their clothing and put on their skates, etc. That is part of the program planned by the association for this winter. I think Mr. Draper has the written resolution to that effect.
“The resolution was received in evidence.”

In Words and Phrases there are several definitions of the words “park” and “public park.” One of them xeads:

“A park is variously defined to be a pleasure ground in or near a city, set apart for the recreation of the public; a piece of ground inclosed for the purposes of pleasure, exercise, amusement or ornament; a place for the resort of the public for recreation, air and light; -a place open for every one. State, ex rel. Attorney General, v. Schweickardt, 109 Mo. 496, 19 S. W. 47, 51 (citing Perrin v. New York Cent. R. Co., 36 N. Y. 120; Price v. Inhabitants of City of Plainfield, 40 N. J. Law [11 Vroom] 613).”

..Another definition is:

“In its common and ordinary significance, a public park is an open or inclosed tract of land and adapted for, set apart, maintained at public expense, and demoted to the purposes of pleasure, recreation, ornament, light and air for the inhabitants of the town near or in which it is located.” 3 McQuillin, Mun. ■Corp., pp. 2533, 2534, and cases cited in footnote.

In 28 Cyc. p. 936, it is said:

“Property constituting parks, public squares and commons may, in the absence of express restriction, he used in such manner as will promote the public interest and is not inconsistent with the purpose for which it was intended.”

Again:

“A park may be devoted to any use which tends to promote popular enjoyment and recreation, although primarily involving the ideas of open air and space, occupation in part by monuments, statues, museums, galleries of art, free public libraries and other agencies contributing to the aesthetic enjoyment of the people, is not a perversion of the lands from park purposes. These are maintained for the use, convenience and recreation of persons resorting to and using public parks.” 3 Dillon, Mun. Corp. pp. 1749, 1750.
“Some of the powers of control and regulations for their use held to be reasonable and valid are: * * * Power to lay out pleasure drives around the borders of a public square, authority to erect a building in a park for public purposes, and if a building called a casino so erected is adapted to a public use, the court will not assume that is to be used for private purposes; to erect a dwelling house on park property to be used by the park superintendent and his family as a residence and also for an office by such superintendent and his associates.” 3 McQuillin, on Corp. p. 2541.

We think it clear that the use made of the building is a public use, and that such use is not foreign to that of a public park.

The decree is affirmed, with costs.

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