author: Mooee, J.

text:
    BOWEN v. BOWEN.
    Divorce — Cruelty, Extreme — Neglect.
    Cruelty, warranting a divorce on the statutory ground of extreme cruelty, was not established by evidence that complainant’s husband, who was employed by a railroad company as a target man at very long hours during the day, rarely conversed with the wife and preferred to read or retire in the evening instead of taking his wife to places of entertainment, or to make calls, and that he consumed considerable quantities of intoxicating liquors and that, being crippled, he supported complainant. in a deficient manner.
    Appeal from Kalamazoo; Knappen, J.
    Submitted January 15 1914.
    (Docket No. 82.)
    Decided March 27, 1914.
    Bill by Lillie Belle Bowen ¿gainst George M. Bowen for divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      D. O. French, for complainant.
   Mooee, J.

The complainant and defendant were married at the city of Kalamazoo, on the 19th day of January, 1901. The complainant was 37 years of age, and had been previously married. Several years before her marriage to defendant she obtained a divorce from her first husband. The defendant was of the age of 47 years, and had not been previously married. No children were born to the couple.

The parties lived together until the latter part of April, 1912, when the complainant left the defendant, and applied for a divorce on two grounds, viz., nonsupport and extreme cruelty, and asked for relief as to the title to certain real estate. The defendant filed his answer, denying the charges of complainant and insisting that she had clandestinely associated with other men. He did not ask for any affirmative relief. The case was tried in open court, and a decree entered dismissing the bill, and complainant has appealed.

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

“The complainant in her bill of complaint alleges, as a ground for divorce from her husband, failure to support and extreme cruelty, and asks to have the interests of both parties determined by the court in a certain house and lot on Seminary street, to which they hold the title as tenants by the entireties, as husband and wife. The defendant is a target man on Harrison street at the Michigan Central crossing, and has worked for the company for a great many years and was crippled many years since while in the company’s employment, so that his left hand has become comparatively useless, so far as ordinary manual labor is concerned. That the defendant receives an income of $35 a month, and works from early in the morning until late in the evening. He was engaged in the same employment when the marriage took place between complainant and defendant, so that the complainant knew of his circumstances and income and ability to •provide. The complainant charges extreme cruelty, namely, for the reason that he has not taken her out in society or to entertainments, or visited with her at any place except at their own home. Such a charge as this might well be regarded as cruelty under some circumstances ;■ but under the testimony produced in this case it would seem that the defendant did not have any time to do differently. That every day in the week, including Sundays, he was busily employed. It would also seem that he could not provide a very luxurious support on a salary of $35 a month. Both parties claim that they furnished a portion of the funds that went into the purchase and rebuilding of the home on Seminary street.
“The first question in the case is as to whether or not the complainant has made out a case for a divorce. I do not believe that, under the law of this State, the defendant could be charged with a wanton and wilful failure to support, and with gross and extreme cruelty under the facts as alleged and proven in this case. Therefore the second question becomes unnecessary to decide. They still hold as tenants by the entireties and the court cannot, in the absence of a decree of divorce, determine their respective interests therein.”

The case in some respects is a peculiar one. The complainant is a hard-working, industrious woman, a good housekeeper, and ambitious to get along. She worked out by the day without the knowledge or desire of her husband. She was able to do this because he went to work early, taking his midday luncheon with him, and did not return from his work until late. Complainant admits that defendant paid the grocery bills, meat bills, and coal bills all the time they lived together, but denies he contributed anything further to her support. She, also alleged that he wasted a good deal of money for Duffy’s malt whisky and tobacco and cigars; that he bought the whisky by the quart and.consumed more than was good for him. She admits that he brought the whisky home and did his drinking there. Defendant insists that he contributed his full share toward the support of the family, and that he drank the whisky in moderation at his home- because he thought it was good for him, as his work exposed him to all sorts of weather from early in the morning until late at night. A striking peculiarity of the case is that defendant never took with him to his work any intoxicating liquors, and it is not claimed he consumed any except at home, nor is it shown that he drank in such quantities that it interfered with his work. It is not shown that the parties ever quarreled with each other, unless one occasion may be regarded as an exception, and as to that occasion the facts- are in dispute. On the day when complainant left defendant she prepared his breakfast for him, and made no suggestion to him that he would not find her at home when he returned from his work. The record discloses beyond any question that defendant was a hard-working person, who had a hand badly lacerated many years ago while coupling cars, and for 19 years had been gate tender at railroad crossings, keeping very long hours, working daily, though the hours were not so long on Sunday.

A careful reading of the record satisfies us that complainant was disgusted with defendant because after he came from his work he preferred, after doing work in and about the yard, to read or go to bed, instead of going with her for walks or calls or to places of amusement. The humdrum of their lives palled upon her.

We quote some of the averments of the bill of complaint :

“(e) She further shows that he is no companion for her, or anyone else; that he never talks or has anything to say, and she cannot longer endure it to be tied down with a load on her neck; that he is morose and sullen, and sometimes even jealous, and generally very disagreeable.
“(f) Your oratrix shows that she did many times talk with him about his unkind treatment of her, and about her monotonous life, and has for years tried to arouse him from his dumb and sleepy condition, but she has been unable to arouse him, and she can no longer endure it.
“(g) She shows that for years she has lived a wretched life, and her home has been a most unhappy one, and she can no longer endure it, nor can she longer tolerate the said defendant.”

We have no doubt the life of complainant has, from her point of view, become a very uncomfortable one, but she has failed to show such conduct on the part of defendant as would justify the court in granting a divorce.

The decree is affirmed.

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


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    SICK v. SCHUG.
    Bills and Notes — Lost Instruments — Action—Evidence—Proof of Execution.
    As evidence tending to show that a lost note Rad, in fact, been given by tRe defendant, wRo denied executing it, it was admissible to sRow tRe nature of tRe transaction wRicR resulted in tRe giving of tRe note.
    Error to Wayne; Hosmer, J.
    Submitted January 20, 1914.
    (Docket No. 158.)
    Decided March 27, 1914.
    Assumpsit by George Sick against John B. Schug for recovery upon a lost note. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John Miner, for appellant.

      Ignatius J. Salliotte, for appellee.
   MOORE, J.

We quote the following statement of facts from the brief of counsel for appellant:

‘The action in this case is assumpsit, on the common money counts, with copy of note attached, and was begun on May 10, 1912, by filing a declaration with rule to plead. Appearance was duly entered by-the defendant on May 21, 1912, and a demand for a bill of particulars of plaintiff’s demand under the common counts of the declaration was made. On August 14th the plaintiff filed his bill of particulars, * * * in which he stated his claim to be the principal and interest upon the note, a copy of which was attached to the declaration. On August 30,1912, the defendant filed his affidavit denying the execution of the instrument referred to, with his plea of the general issue. On the 28th of April, 1913, the plaintiff filed an indemnity bond under the statute providing for the recovery upon lost instruments (3 Comp. Laws, § 10184), and on June 6, 1913, the issue came on for trial before a jury. At the opening by the plaintiff to the jury, it was stated that the note had been lost before the suit was begun. Thereupon, after the plaintiff was sworn as a witness on his own behalf, the defendant objected to the introduction of any testimony under the declaration, which objection was overruled, and the trial proceeded resulting in a verdict and judgment for the plaintiff.”

To the foregoing statement of facts should be added that the following appears at the close of the charge of the judge:

“If the counsel desires me to say anything more with reference to the matter, I will be glad to hear from them at the present time. Swear the officers, if you please.
“Mr. Miner: I would ask the court .that, before a verdict is rendered for the amount stated, $602.50, they must find that a note existed.
“The Court: Oh! There is no doubt about that. There is no question about that. That is the issue here. Follow the officer.”

We again quote from the appellant’s brief:

“The only issue upon the record was the execution and existence at any time of the promissory note sued upon, and therefore evidence tending to show an indebtedness from the defendant to the plaintiff was immaterial and irrelevant, and constituted harmful error.”

We cannot agree with counsel. It was the claim of the plaintiff that he loaned to his nephew, the defendant, $500, and took his note for it, which was afterwards lost, and was the note upon which suit was brought. The defendant filed an affidavit denying the execution of the note, and he also denied it upon the trial. As bearing upon the question of the probability of a note being given, it was competent to show the transaction. The jury was instructed that, unless there was a note made, there could be no recovery. Section 10183, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12828), allows a recovery upon a lost note. Section 10184 requires an indemnity bond to be given before recovery can be had. This was done. See Coon v. Bouchard, 74 Mich. 486 (42 N. W. 72); Walker v. Gillett, 98 Mich. 59 (56 N. W. 1052).

We discover no reversible error in the case.

Judgment is affirmed.

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


author: Steere, J.

text:
    TIDEY v. KENT CIRCUIT JUDGE.
    1. Assignments — Attorneys—Vaudity—Champerty.
    Transfers to attorneys or agents for convenience of suit or by way of security are not prohibited by 1 Comp. Laws, §1135 (5 How. Stat. [2d Ed.] § 12553), if the plaintiff does not appear to have bought the claim with intent to prosecute it for profit.
    2. Arrest — Motions—Capias Ad Respondendum — Mandamus.
    It was not the proper place to try an issue whether plaintiffs had violated the statute prohibiting attorneys from buying claims to prosecute, etc., upon defendant’s motion to quash a writ of capias ad respondendum: the question should be disposed of at the trial.
    3. Corporations — Foreign Corporations — Carrying on Business —License.
    A foreign copartnership association, limited, is not engaged in doing business in Michigan, in merely paying or attempting to pay debts due in this State.

      4. Arrest — Civil Process — Capias Ad Respondendum Affidavits —Sufficiency.

      Held, on review of an order refusing to quash plaintiff’s writ of capias, that the allegations of the affidavits, on which the writ were based in trover, were on personal knowledge.
    5. Trover and Conversion — Checks—Knowledge or Good Faith as a Defense.
    In an action of trover for wrongfully converting a check intended for another payee of similar name to that of defendant, it was not a defense that the defendant had expended the money received before he knew that the check was not intended for him.
    Mandamus by Charles H. Tidey against John S. McDonald, one of the circuit judges of the county of Kent, to require respondent to grant relator’s motion to quash a writ of capias.
    Submitted January 20, 1914.
    (Calendar No. 25,944.)
    Decided March 27, 1914.

      Rarden & Rarden, for relator.

      Smedley, Linsey & Lillie, for respondent.

       On the question whether a single or isolated transaction by foreign corporation is “doing business” within the State, see note in 10 L. R. A. (N. S.) 693.

   Steere, J.

Relator was arrested upon a 'capias ad respondendum sued out of the circuit court of Kent county in an action there commenced against him by Charles 0. Smedley as plaintiff. He thereupon furnished bail in the sum of $500, that being the amount indorsed upon said writ by the circuit judge, and later moved the court, through his counsel, for an order quashing the writ and dismissing all proceedings in said cause. This motion was denied, and relator seeks by mandamus from this court to compel the circuit court to grant said motion. The case is now before, us on return to an order from this court to show cause why a writ of mandamus should not issue.

The action in which the capias sought to be quashed issued, entitled Smedley v. Tidey, was brought to recover the amount of a check for $425 issued by J. R. Moodie & Sons, Limited, a foreign copartnership, and sent to Grand Rapids, Mich., for the purpose of paying a debt owed by Moodie & Sons to the Grand Rapids Textile Machinery Company, but which fell into relator’s hands, was cashed, and the proceeds appropriated to his own use. Smedley is an attorney at law, and brought the action in his own name under an assignment of the claim given to him by Moodie & Sons.

The various grounds for relator’s motion to quash are correctly summarized in respondent’s return as-follows:

“(a) The action is not one sounding in tort.
“(b) The affidavits of Charles H. Lillie and Charles O. Smedley are not based upon their personal knowledge.
“(c) J. R. Moodie & Sons, Limited, is a foreign limited copartnership, and is not authorized to do business in this State.
“(d) Charles O. Smedley, the plaintiff, is an attorney at law, and the assignment of this claim and cause of action to him is void under sections 1135 and 1136 of the Compiled Laws of 1897.
“(e) The affidavit of James Moodie was not properly executed in compliance with the provisions of Act No. 191 of the Public Acts of 1909.”

Moodie’s affidavit, purporting to have been sworn to before a notary public in the Province of. Ontario, Canada, is concededly not authenticated in accordance with our statutory requirements, and must be eliminated from consideration.

Relator’s claim that the proceedings are void because Smedley took an assignment of the claim and brought the action in his own name is based upon the provisions of section 1135, 1 Comp. Laws, that:

“No attorney, solicitor or counsellor shall, directly or indirectly, buy, or be in any manner interested in buying, any bond, promissory note, bill of exchange, book debt or other thing in action, with the intent and for the purpose of bringing any suit thereon.”

It appears that, for some time prior to commencing the action in which this capias was issued, the law firm of Smedley, Linsey & Lillie, of which plaintiff was a member, held this claim for collection, and had instituted proceedings to collect it in the name of Moodie & Sons, which were discontinued. On October 3, 1913, said law firm wrote relator’s attorneys, giving notice of discontinuance of the case of Moodie & Sons v. Tidey, and saying:

“We have started suit here. James R. Moodie & Son are not longer concerned in this matter, the claim belongs to Charles O. Smedley, and the case is now Charles O. Smedley against Charles H. Tidey.”

Counsel for relator urge, “The record shows overwhelmingly that this claim was bought by Mr. Smedley ‘with the intent and for the purpose of bringing suit thereon,’ ” and therefore the action in his name is a clear violation of the statute.

The statute in question has been before this court several times, and has been construed as not prohibiting transfers to agents or attorneys for convenience of suit or by way or security, where the plaintiff is not shown to have bought the claim solely with intent to prosecute it for the purpose of profit. Town v. Tabor, 34 Mich. 262, 267; Herbstreit v. Beckwith, 35 Mich. 93; Smedley v. Dregge, 101 Mich. 200 (59 N. W. 411); Belden v. Blackman, 118 Mich. 448 (76 N. W. 979). While the statement in counsel’s letter that the claim belongs to Smedley, and Moodie & Sons are no longer concerned in the matter may tend to raise an issue as to a violation of the statute, it is not an issue triable on affidavits in this preliminary proceeding, but rather for disposition at the trial of the case on the proofs there produced.

The contention that J. R. Moodie & Sons, Limited, being a foreign limited partnership, is not authorized to do business in this State, requires little consideration, as the record discloses no attempt on their part to do business in the State beyond an effort to pay a debt to parties located in this State, the remittance for which went astray. Paying debts to parties in this Commonwealth is not a line of business, nor doing business, which the statute was designed to prevent.

The remaining question is. whether the affidavits of Lillie and Smedley filed in support of the capias state a cause of action sounding in tort, based on personal knowledge.

In brief, the affidavit of Smedley states his residence; that he owns the claim in question, which is for the sum of $425; that it is based on a certain check, a copy of which, with indorsements, is set out in full; that said check was made by, and said claim formerly belonged to, Moodie & Sons, who assigned the same to him; that the check was wrongfully converted by relator to his own use, and he has not paid the same to deponent or his assignor. Reference is also mad© to the attached affidavits of Lillie and Moodie for fuller description and particulars.

The somewhat lengthy affidavit of Lillie purports to state facts coming within his personal knowledge, or derived from statements and admissions made to him by relator. Amongst other things, it states that J. R. Moodie & Sons, a limited copartnership of Hamilton, Ontario, being indebted in the sum of $425 to the “Grand Rapids. Textile Machinery Company,” then located in Grand Rapids, Mich., on November 27, 1911, sent their check for said amount to Grand Rapids for the purpose of paying said indebtedness; that said check was made out and mailed to the“Grand Rapids Machinery Company,” the word “Textile” being omitted by a clerical error from the name; that relator was doing' business at Greenville, Mich., under the name of the “Grand Rapids Machinery Company,” and had formerly done business in Grand Rapids in that name, selling secondhand machinery, and after he went to Greenville he instructed the Grand Rapids postmaster to forward his mail to the latter place; that relator had authorized his wife to look after his business affairs in his absence, to open his letters, read his mail, and cash his checks; that the letter containing the check in question was forwarded from Grand Rapids to Greenville, where it was received by relator’s wife in his absence, the check taken out and indorsed by her, as relator’s agent, “Grand Rapids Machinery Company, A. L. Tidey,” and cashed at the Greenville bank, the money being received thereon and delivered to relator, who spent it, and thus converted the same to his own use; that relator admitted to affiant he had so received' the money and appropriated it; that it did not belong to him, and promised he would pay it as soon as he could, but refused to fix any time, and, being repeatedly pressed to pay the same, stated finally that a judgment against him would be of no account, and he would not pay it until he had to. The essence of this is a wrongful conversion of the proceeds of this check by relator to his own use, shown by facts actually known to deponent of his own knowledge or admissions made to him by relator.

While it may not directly aid to establish technical sufficiency of the affidavits on which the capias issued, yet, as bearing on his claim of oppression and unfair treatment, in an application for a writ which is not strictly one of right, we note that relator, in his affidavit on which the motion to quash is based, admits, in substance, the unlawful conversion of the money, stating in extenuation “that the defendant had spent the money received thereon before he knew that it did not belong to him.”

The fact that relator acted under mistake, in ignorance of who was the actual owner, or even in the belief that the money , was his own instead of that of another, does not constitute a defense in trover. 38 Cyc. p. 2011; Gibbons v. Farwell, 63 Mich. 344 (29 N. W. 855, 6 Am. St. Rep. 301); Kenney v. Ranney, 96 Mich. 617 (55 N. W. 982).

The affidavits referred to are not stated to be upon information and belief, but purport personal knowledge by affiants of the facts related, stating circumstances and admissions of defendant from which the essential facts tending to establish a tort may properly be deduced with reasonable certainty, sufficient to authorize the capias. We think the affidavits show an unlawful conversion of the check and its proceeds.

The writ of. mandamus prayed for is denied.

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


text:
    FOLEY v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers — Personal Injuries — Boarding Train — Contributory Negligence.
    Where plaintiff claimed that he alighted from defendant’s train at the wrong station because the brakeman, who called the stations, incorrectly informed him that the next stop was his destination, and that plaintiff, having alighted and discovered his mistake, started to hoard the train again, and that it started as he did so and plaintiff fell and received serious injuries, it was a question for the jury whether plaintiff was guilty of negligence in getting on a moving train, as the defendant’s testimony-tended to establish.
    2. Trial — Directed Verdict — Appeal and Error.
    In determining whether a defendant is entitled to a directed verdict, plaintiff’s evidence is to be taken as true and considered in the light most favorable to him.
    3. Carriers — Passengers—Instructions.
    It was improper, however, to instruct the jury that if the passenger was induced to leave the train by the erroneous information given to him, that would relieve plaintiff of the duty to board the train again with the same promptitude as other passengers are required to exercise, and that the jury might consider the same point in determining the care or negligence of the train crew.
    4. Same — Negligence—Proximate Cause.
    The alleged negligence of defendant’s employee in misinforming plaintiff as to the name of the station was a distinct, actionable wrong independent of the claimed wrong or negligence of defendant in starting the train while plaintiff was getting back on, and the court should not have permitted the jury to consider the mistake or misinformation as the proximate cause of plaintiff’s injuries.
    ■5. Same.
    Defendant was chargeable with the same degree of care towards plaintiff as it owed to other passengers who were about to board its train.
    Error to Arenac; Sharpe, J.
    Submitted January-16, 1914.
    (Docket No. 37.)
    Decided March 27, 1914.
    Case by David Foley against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      Hall, DeFoe & Hall, for appellee.
   Steere, J.

Plaintiff brought this action to recover damages for personal injuries sustained in falling from a north-bound passenger train of defendant just as it was leaving the village of Twining, in Arenac county, on the afternoon of July 8, 1912.

A trial by jury in the circuit court of said county resulted in a verdict and judgment in plaintiffs favor for $4,500, and after denial of a motion for a new trial defendant removed the case to this court for review on a writ of error.

On the day in question plaintiff left-Toledo to visit a son living in Turner, a village three miles north of Twining, where the accident occurred. Defendant’s railroad passes through both towns, extending northerly from Bay City, which is 39 miles south of Twining. Plaintiff was 59 years of age, somewhat hard of hearing, and his then business was acting as caretaker of certain mines in Canada, for which he received $90 per month. His ticket, bought in Toledo, took him north from Bay City over defendant’s road. He carried a suit case 20x14 inches weighing '35 or 40 pounds. On his arrival at Bay City about 5:30 p. m., he proceeded to take the regular connecting north-bound train of defendant which was about to start,- but the cars were crowded, and, at the suggestion of the conductor, he waited for an excursion train which left about 15 or 20 minutes later. As the train which he had taken approached Twining, the brakeman called the station, and, understanding it to be Turner, his destination, plaintiff left the train when it stopped. He testified that before the train stopped he asked the man who had called the station if this was Turner, and the man replied, “Yes, Turner is the next station,” and took the ticket out of his hat. This is denied. The brakeman testified that in an answer to previous inquiries he had told plaintiff he would notify him when Turner was reached, and when asked the question after he called Twining he replied, “No, the next station was Turner.” On getting off the train plaintiff walked about ten feet away from it, put down his grip, and looking around discovered he was not' at Turner, the appearance of which he remembered from a former visit. He then went back to reboard the train, which he stated had stopped about a minute and a half and was about to proceed. He describes the immediately subsequent.events as follows:

“I turned around to get back on the train. I took hold of the bar with my left hand — this bar was at the end of the car — the framework of the car. I was on the left-hand side. I had a leather suit case about 20 inches long and 14 inches wide. It might have weighed about 35 or 40 pounds. I took hold of the bar to get back on the train, * * * and as I caught hold of the bar and with my feet on the lower step the train pulled out. * * * My suit case got foul, and as the train was going I couldn’t swing myself in onto the car and it got fouled there or got fast and my trying to get it loose I kind of lost my balance and I seen I was going and I sent myself away from the train so as to avoid an accident under the wheels. That is all I know of what happened.”

Of his injuries he says:

“I was injured in the right shoulder and all the way down my arm. * * * My injury to my side was about halfway down from my hip up to under my armpit. * * * My leg was broken about half way between the ankle and knee. It was a compound fracture. Both bones were splintered. One bone came out through the pants. I was taken to Mercy Hospital at Bay City and treated by Dr. Tupper and was there from July 8th to October 30th.”

Of his position when the train started he again says on cross-examination:

“I had my grip in my right hand. I caught hold of the train with my left hand, and, when I got both feet on the thing, the train started up.”

The fact that he was quite seriously injured is not disputed, though there is an issue on the extent and permanency of his injuries.

While numerous errors are assigned, and various questions are raised and discussed as to negligence and contributory negligence, on different theories of what is or is not shown by the evidence, upon the case as developed it is sufficient to consider two assignments of error, which raise defendant’s contentions that a verdict should have been directed in its favor, and that the court erroneously instructed the jury that plaintiff’s leaving the train, by teason of the negligence of a member of the crew in misinforming him as to the station, might have a bearing on the question of his contributory negligence when seeking to reboard the train.

The only ground of negligence by defendant submitted to the jury is thus plainly stated by the trial judge in his charge:

“His claim is that, while he was in the act of boarding the train, the defendant company, through its train crew, started the train in motion without giving him a reasonable length of time in which to get safely on this train.”

The rights and duties of passenger and carrier upon that proposition were clearly stated and explained in the instructions given. The jury was told that when a passenger train stops at a station there is an implied invitation for passengers to get on board or to alight, and it is the duty of those in charge to stay a reasonable time for those who have arrived at their destination to get off and for those desiring to take the train to get on in safety.

It was claimed by defendant that plaintiff did not leave the train at the station when it stopped, but fell in attempting to get off after it had started therefrom ; or, if his claim of when he left the train is true, it is shown beyond question that he attempted to get on board again after it had started, under such circumstances as render him guilty of contributory negligence and preclude his recovery.

Plaintiff denied attempting to board the train after it started, and claimed that he began to mount the steps while it was yet standing still; that it was suddenly and negligently started just as he got upon the lower step and before he had time to reach a position of safety. This question of fact was left to the jury. The court narrowed the case to that issue and plainly charged that, if plaintiff attempted to board or leave a moving train, he took his chances and could not recover, and further said:

“It was his duty to take into consideration the length of time the train had stopped at the station, and the probabilities of its starting; and if, from all the circumstances within his knowledge, he had reason to believe that the train would start before he could safely board it, then he would be chargeable with all the risks incident to boarding such train.”

The conductor and brakeman testified that they stopped at the station sufficient length of time for all passengers to safely get on and off; that during the stop they stood in their proper positions as required by the rules of the road, on the platform of the station beside their train, the conductor forward at the head car nearest the engineer, where he could signal him, and the three brakemen strung along the side of the train at the various car steps, looking after the passengers; that it was the duty of the brakemen to signal the conductor to go ahead when all was clear, which signified, “There is no more passengers getting off or on;” that the train was not.started until such conditions existed and such signal given when, as the train started, they swung aboard; and that none of them saw plaintiff attempting to get on.

If just at that time plaintiff, an elderly man carrying a heavy suit case, approached the train on the platform side and seizing the rail with his free hand was in the act of mounting, standing on the bottom step, hanging by one hand and struggling at his luggage with the other, it was negligence to start while he was in that condition if they did see him, and also negligence not to see him.

Not only does plaintiff testify that he had then just got on the lower step and was struggling with his suit case to get fully on board, but other witnesses sustain him. This was a special train carrying numerous passengers returning from attending a circus at Bay City. It was run by an extra crew taken mostly from freight trains and was not held down by schedule time. The quicker they made the run, the sooner their work was over. Witnesses testified the train started before the passengers had all alighted. Mrs. Jaynes testifies:

“As soon as the train stopped, our party got up to go out. We did not have any luggage. * * * Our party went out as rapidly as possible to get off the train before it started. * * * We just no more than stepped off the train when it started.”

Another member of the same party said:

“The train started just as I stepped off. I could feel the train move when I left to step down onto the ground.”

Mrs. Townsend testified that as she got off she saw plaintiff on the lower adjoining steps facing as though he was getting up, with his suit case ahead of him. She states:

“After the train stopped, I got off right straight, just as soon as I could get off. There was just one gentleman ahead of me getting off. He didn’t interfere with me getting off at all. * * * My daughter was a second or so behind me. The train was in motion when my daughter got off. Still she was only a second or so behind me.”

Upon the question of directing a verdict for defendant, plaintiff’s testimony is to be taken as true and considered in the light most favorable to him. We cannot say on this testimony as a matter of law that he was guilty of contributory negligence.

The case of Michigan Central R. Co. v. Coleman, 28 Mich. 440, involves questions similar to those arising here, and treats exhaustively the rights and duties of passenger and carrier when trains stop to receive and discharge their passengers. In that case plaintiff was held guilty of contributory negligence as a matter of law because of trying to board the train in the nighttime, from the ground, on the side most distant from the station, and away from the platform furnished for convenience of passengers, on which the conductor properly stood watching; but the court fully recognizes the duty of those in charge of the train to notice, on the proper side, the approach and conduct of persons indicating a design to get on board, and to guard against exposing them to danger by prematurely starting.

The court instructed the jury that, if plaintiff was induced to leave the train by representations made to him on the train by defendant’s agent—

“That would relieve him from the promptitude which would otherwise be required of passengers intending to board a train. In other words, you have a right to take that fact into consideration when you are determining the question as to whether or not he was guilty of contributory negligence in what he did. * * * You have a right to consider it as bearing upon the question of whether or not the train crew were guilty of negligence in starting the train before giving him a reasonable opportunity to board it.”

It seems difficult to put any other construction upon the testimony of plaintiff himself, who stated that he had been deaf for 30 years, than that he misunderstood defendant’s agent as to the name of the station they were approaching and left the train at Twining under a misapprehension resulting from his deafness. Assuming it is shown that there .was in that particular an act of negligence by defendant’s agent, it was a distinct, actionable wrong, independent of and in no sense the cause, proximate or remote, of the negligence for which this action was brought. It may be said in a sense to have been the occasion of it, and the cause of his leaving the train, but it could not tend to change the rule as to the subsequent duty or liability of either party, passenger or carrier, when plaintiff later decided to take the departing train. The cause of his taking the train furnishes no test. Defendant was under just the same duty and obligation to him in that respect, and he was held to the same care for his own safety as any other passenger about to get on board, who might have stepped off during the stop to send a telegram, or just arrived from the country, or who had been awaiting the train’s arrival.

It is true the circuit judge did not submit the question of imparting erroneous information to the jury as a ground of recovery, but the instruction complained of so left it for the jury to blend in their deliberation the two causes of action, and by reason of the first magnify defendant’s second negligence and plaintiff’s freedom from negligence, as to put a greater burden upon defendant and in effect change the rules of negligence.

The application of distinctions between remote and proximate cause, or cause and occasion, is in many cases difficult and confusing. As ordinarily viewed, repetition of wrongs, even though not connected, tends to magnify the last. This case was closely contested and its conflicting testimony, covering the two alleged acts of negligence by defendant, if not carefully guarded, yielded readily to the suggestion that because of the first act a severer rule should be applied to the second. We are impelled to the view that the portion of the charge complained of was prejudicial to the rights of the defendant.

For this reason the judgment must be reversed, and a new trial granted.

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


text:
      In re McLENNAN’S ESTATE. McRAE’S APPEAL.
    1. Wills — Estates oe Decedents — Abatement oe Legacies — Executoes and Administeatoks — Accounting.
    Ibl disposing of his estate, decedent gave one-half to one beneficiary and provided for others by specific legacies, leaving the balance of his estate to appellant, his sister. His widow survived the testator, and claimed her dower and statutory interest in the estate. In a proceeding to determine who should sustain the decrease in amount, held, that since the testator must be presumed to have known of his wife’s interest, and that he could not defeat it by will, he must have intended by the words “my estate,” the part that was left after it had been diminished by her rights, or interest, and that the residuary estate should not bear the entire deduction.

      2. Same — Construction.
    As between legacies which are in their nature mere bounties, the testator will be presumed to have intended equality, to such extent as the language employed will permit.

      3. Same — Estate—Definition.
    Estate signifies the entire condition in respect to property, of a bankrupt, decedent, or insolvent: in wills when not qualified in any way, the term is said to be nearly synonymous with property. In a wider sense the word “estate” denotes a man’s whole financial status or condition, the aggregate of his interests and concerns, so far as regards his situation with reference to wealth or its objects, including debts and obligations, as well as possessions and rights.
    4. Same — Intent—Ambiguities.
    Ambiguous or uncertain words and phrases employed in a will are to be weighed and interpreted in the light of pertinent surrounding facts and the circumstances attendant thereon; effect is to be given, so far as possible, to the entire instrument.
    Error to Lapeer; Smith, J.
    Submitted January 15, 1914.
    (Docket No. 83.)
    Decided March 27, 1914.
    J. Herbert Cole, executor of the estate of John Mc-Lennan, deceased, presented his final account for allowance. From an order of the probate court allowing such account, and ordering one-half of the estate to be paid to said Cole as legatee, Mary McRae appealed to the circuit court. Order affirmed, and appellant brings error.
    Reversed.

      Patterson & Patterson, for appellant.

      Geer, Williams & Halpin, for appellee.
   Steere, J.

This case involves a construction of the will of John McLennan, to determine between two of the beneficiaries which must bear the loss occasioned by the election of his widow to take her statutory and dower rights in his estate.

Testator was a resident of Lapeer, Mich., and died November .16, 1910. On the previous day, November 15th, just before undergoing a surgical operation which he did not survive, he made his will, which, omitting the formal parts, is as follows;

“First. I will and direct that all my just debts and funeral expenses be paid in full.
“Second. I give, devise and bequeath my estate, both real and personal, as follows:
“One-half to J. Herbert Cole. One thousand dollars to Ewin McLennan of Lapeer, Mich. One thousand dollars to William McLennan of Lapeer, Mich. One thousand dollars to Lapeer Savings Bank, Lapeer, Michigan. One thousand dollars to Rebe Haddrill of Lapeer, M. The balance of my estate to my sister, Mary McRae.
“I hereby appoint J. Herbert Cole and Edgar S. Hough of Lapeer, Mich., executor of this my last will and testament.
“Lastly. I hereby revoke all former wills by me at any time made.”

Deceased was an elderly man of extensive business ■experience, and of sound mind. He left an estate appraised at approximately $30,000; $19,650 of which was real estate and the balance personal. A widow and daughter, both in precarious health, survived him. His widow, Martha R. McLennan, to whom he was married in 1871, was living in their home at Lapeer in a serious condition of body and mind at the time of his death. Shortly thereafter, she was committed to an asylum, where she remained for some time, but subsequently recovered her sanity and health. The daughter, Bessie Cole, wife of J. Herbert Cole, was then in El Paso, Tex., in the last stages of tuberculosis and survived her father but a few days. She left no children.

After the will had been admitted to probate, and administration of the estate had proceeded for some time, the widow filed an election to take her statutory allowance and a petition for assignment of her dower in the real estate. Proceedings were then taken by which her dower was admeasured and set off to her by commissioners appointed by the probate court. Subsequently a final account was filed by the surviving executor, which showed that the estate had been well conserved and handled; a profit over the inventory being realized on certain personalty and realty which was disposed of. In this account the four legacies of $1,000 each are shown to have been paid and an item of $6,000 is credited as paid to J. Herbert Cole, legatee. Upon this the following order was made:

“It is ordered that said account be and is hereby allowed. The court finds it impossible to decree the residue of said estate, a part of which is real estate, in harmony with the intent of the said will, without a sale of the fee in lands set off as dower, or under the provisions of section 9451 of the Compiled Laws; that is, to assign the whole to one on condition that he or she pay to the other such sums as may be determined by commissioners appointed for that purpose. The court is otherwise powerless to convey to one devisee any interest whatever belonging to another (either by devise or by the intestate law of the State) by decree. Therefore the case is referred ba!ck to the said executor for further action or consideration relating to decreeing said residue of the estate, except that the residue of the personal estate is hereby decreed to J. Herbert Cole one-half, and to Martha McLennan one-half.”

The apparent result of this order is a construction of the will which gives to J. Herbert Cole one-half of the entire estate before the statutory and dower interests of the widow are taken out, and puts the entire loss upon the interest of Mary McRae, to whom the will, silent as to the wife, gave “the balance of my estate.” On her appeal from this order to the circuit court of Lapeer county, the action of the probate court was sustained, and she has now brought the case here for review.

No question is raised as to the four legacies of $1,000 each,' or the rights of the widow. Her dower has been assigned to her. By statute she takes one-half the personal property up to $5,000, and one-fourth of the residue, if any, after debts, allowances, and expenses of administration are paid. Section 9300, 3 Comp. Laws; Act No. 331, Pub. Acts 1905 (4 How. Stat. [2d Ed.] §§ 11013, 11038).

The one question in this case is whether the will must be construed as giving to Cole one-half of the estate as inventoried and appraised, less debts and-expenses which, it is conceded, must be deducted, or one-half of the net estate, or that portion of the estate considered as a whole which testator had a legal right to dispose of by will. The only parties interested in the question are appellant, Mary McRae, and J. Herbert Cole. The validity of the will is' not in issue, and it is conceded that the four legacies for stated amounts stand undisturbed under either of the constructions contended for.. The election of the widow, or assertion of her right to take that which the law gives her, reducing to that extent the total of the estate as appraised, is the disturbing factor. This cannot in any event affect the validity of the will or the testamentary dispositions made by it, except to cause a diminution of the amount otherwise anticipated by the two beneficiaries, which must be borne by appellant alone, or jointly with Cole.

The various assignments of error by appellant all center on the contention that the will, omitting any provision for or mention of the wife, was intended to mean, and by its terms must mean and operate upon, only that portion of his estate which the statute authorizes him to dispose of by will. It is pointed out in that connection that said section 9300 expressly states that all disposition of personal property is subject to the limitations and restrictions created by the interests and rights given the wife. The widow’s dower rights are fixed by statute, and her title thereto vests at once in the real estate of which her husband dies seised. She may bring ejectment-therefor without assignment of the same to her, after the expira-' tion of six months from the time her right accrued. 3 Comp. Laws, § 10948 (5 How. Stat. [2d Ed.] § 13148). Under the statute for partition and distribution of estates amongst heirs, devisees, and legatees, it is provided that distribution and assignment of the assets shall be subject to the widow’s right of dower, unless the same has been assigned to her on her application, or that of some other person interested in the land.

In behalf of appellee, it is contended that the intention of testator could not have been more clearly and concisely expressed to dispose of all he possessed by leaving to Cole one-half of it, $4,000 to named beneficiaries, and the rest to Mary McRae, thus making her a residuary legatee under his will. The language used in reference to her legacy undoubtedly puts her in that class, as a person to whom the testator bequeaths the residue of his estate after payment of such other legacies as are specifically provided for in the will; but this throws little light on the question of what the testator meant by “one-half to J. Herbert Cole.” It would amount to the same thing if the testator had said one-half to Cole, and the other half to Mary MeRae, subject to the four legacies of $1,000 each. She would yet remain a residuary legatee. Both are given general legacies of uncertain amounts, contingent on the size of the estate, and payable out of its general assets; his a stated proportion, and certain to that extent; hers the balance, uncertain in the further particular that she gets nothing unless the half exceeds the four pecuniary legacies which must be first paid.

Numerous interesting authorities are cited by counsel involving questions of deficiency, abatement, contribution, and proportionate reduction of legacies; mostly cases where the widow, refusing to take that left her by her husband’s will in lieu of her dower or her statutory portion, has elected to take that given her by statute, and thus reduced the estate so that there was not sufficient to pay all legacies in full. Those cases sustain the general proposition contended for by appellant that, where the assets of an estate prove insufficient to pay all debts and legacies, the general legatees must abate proportionately, to meet the loss, where a proportion is shown by statement of definite amounts, or fractions of the estate; but we think they ■ fail to disturb the well-settled rule that a residuary legatee cannot call upon other than a residuary lega-tee to abate; the principle being that the testator only intended the residuary legatee to receive that which, if anything, should remain after all other provisions of the will were satisfied. In our opinion, this case does not turn on the questions chiefly elaborated in those cases, and they need not be considered further. Unless the will is construed to mean that Cole’s half is half of all the property inventoried, including that of the wife, there is no deficiency, and nothing to abate.

In construing a will, the cardinal principle is to reach the testator’s intentions as disclosed by the instrument, and to give effect to the whole, so far as the wording will permit, and is consistent with existing laws. To that end the document itself is first consulted, and, if its terms, in the connection used, are clear and unambiguous, the inquiry ends; if not, the uncertain words and phrases used are weighed and interpreted in the light of pertinent surrounding facts and circumstances which may tend to indicate1 what the testator had in mind at the time. Except for the one question raised as to the intended meaning of the word “estate,” this will is a clear and concise model of brevity, plainly expressing just what disposition testator intended to make of the property he would leave. It contains no circumlocution, and practically no recitals or explanations. With the exception of his “sister,” the beneficiaries are only described by name and place. The six legacies are all general, as distinguished from specific legacies, there being no designation of a particular thing or fund, and are all to be realized from the estate taken as a whole. Four of them are general pecuniary legacies of stated sums of money. The two in conflict here are not, strictly speaking, even pecuniary legacies; Cole’s being a fractional part of all the real and personal property of the estate and appellant’s a residue, with no intimation of what either would amount to. Precaution is taken to provide that all testator’s just debts and funeral expenses be first paid, but no information is given as to the amount or nature of his debts.

It is shown that a wife and daughter, who are not mentioned in the will, survived testator. As to them it is said and partially shown, and not questioned, that they were otherwise abundantly provided for, and it was then anticipated neither would long survive. Nevertheless the wife had substantial rights in and claims upon the property her husband left, open for her to assert, and which she did assert, not mentioned or recognized in his will, unless as a part of his “just debts” which were provided for. In its practical effect upon the estate, her claim stood as that of any other creditor, to be liquidated through the probate court, if asserted and proven, reducing the gross amount of the estate in either case by the amount of the claim. He could no more defeat her claim by will than he could that of any creditor. While by statute her action in asserting her claim is termed an election, his omission to make any provision for her in lieu thereof renders her so-called election not a choice between a provision he made for her by will and that which the law gave her, but strictly an election to assert her right to what belonged to her and the estate owed her, as might any creditor.

In Miller v. Stepper, 32 Mich. 194, it is said of the dower right and statutory allowances of the widow:

“He [the husband] cannot cut off creditors, nor the proper charges and allowances pertaining to administration and settlement of his estate. He cannot cut off the widow’s right to dower in his lands, against her will. But, apart from the exceptional limitations upon his power of disposition, he may dispose of his own property according to his pleasure. * * *
• “Whether provision is or is not made by the will in favor of the widow, the debts must be paid, and the expenses and allowances pertaining to administration must likewise be satisfied. *• * * Whilst her right to a distributive share of one-third is cut off by the gift of the whole personalty to others, her right to allowance under this statute is independent of the will, and superior to its dispositions. It is an allowance ordained by the law itself, and not subject to be hindered by the exercise of the testamentary right of the husband. It does not depend at all upon the nonexistence of a will. The law which gives it expressly supposes there may be a will.”

It is urged in behalf of appellee that the wife’s portion must be included in apportioning to Cole his half of the estate, and deducted from the other half, because that which belongs to the widow is necessarily a part of testator’s “estate;” a man’s estate being “the whole of his property, real and personal, of which he died seised and possessed, less the amount of his debts” — citing Johnson v. Miller, 33 Miss. 553. In the matter of definitions counsel could go further, by authority, and include the debts:

“In a very common use, ‘estate’ signifies the entire condition in respect to property of an individual; as in speaking of a bankrupt, decedent, or insolvent estate, or of administering upon an estate. Here not only the property, but indebtedness, is a part of the idea. The estate does not consist of the assets only. If it did, such expressions as ‘insolvent estates’ would be misnomers.” In re Hinckley’s Estate, 58 Cal. 457.

It would scarcely be contended that, as a basis of ascertaining what estate' a testator intended to dispose of by his will, his debts should be added to his assets. “Estate” is a word of varied meaning, according to the connection in which it is used. It may signify a person’s condition in life in various ways; in reference to prosperity or adversity, character, rank, social position, income, or property. In wills, when not qualified in any way, it is said to be nearly synonymous with property. Underhill on Wills, § 295. By its strictest legal definition it means an interest in real estate.

“In a wider sense, the term 'estate’ denotes a man’s whole financial status or condition — the aggregate of his interests and concerns, so far as regards his situation with reference to wealth or its objects, including debts and obligations, as well as possessions and rights.” Black’s Law Dictionary.

Definitions alone do not furnish a construction of this will. VvTthin the scope of possible meaning of the word, it must be determined from the context and surrounding circumstances what testator necessarily or naturally meant by his estate when preparing his will. It must be presumed that he knew his wife had an interest in his estate which he could not dispose of or defeat by will; that he intended to include in his will only such property as was subject to his lawful distribution, and upon which the will would operate, and that, with such knowledge and purpose, he made the apportionment to those whom he selected as the objects of his bounty by testamentary gifts. The scheme of the will was such that it would not be frustrated or disturbed, and no rearrangement would be necessary, whether his wife did or did not assert her claim. Apt language in that respect was used to cover either contingency;

A wife’s interest in her husband’s estate, and particularly her right of dower, is such common knowledge that we can almost presume testator knew of it as a matter of fact. As a presumption of law, it must be held he knew it. He made no provision for her; as to her share of the estate there is no will. This, with the exercise of her right to reduce the estate by what she was entitled to, as might any creditor, left what remained in fact and legal effect the whole of his estate subject to disposition under his will, which in all its parts can speak only as to that which it affects.

As between legacies, which are in their nature mere bounties, the presumption is in favor of intended equality to the extent, the language used permits. To construe the will as carving the wife’s portion of the estate entirely out of the one-half of it does violence to such presumption.

We conclude that all reasonable presumptions sustain the proposition that testator, in the use of the word “estate,” intended to confine that term to the property upon which his will could operate, and in relation to which it could and would speak.

For the reasons stated, the judgment will be reversed, and the case remanded for such further proceedings as may be necessary in the execution of said will, according to the foregoing construction thereof.

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


author: Moore, J.

text:
    TALGE MAHOGANY CO. v. LINDNER INTERIOR MANUFACTURING CO.
    1. Sales — Contract, Breach of — Recoupment.
    Evidence considered, and held, to support the finding of the circuit court, that defendant’s claim of recoupment was not established by the testimony relating- to acceptance of the order or contract on which defendant relied.
    2. Appeal and Error — Findings—Trial Without Jury.
    Special findings of fact by the trial court, sitting without a jury, are to be considered in the nature of a special verdict: if supported by any evidence, they are conclusive.
    Error to Superior Court of Grand Rapids; Stuart, J.
    Submitted January 9, 1914.
    (Docket No. 19.)
    Decided March 27, 1914.
    Assumpsit by the Talge Mahogany Company against the Lindner Interior Manufacturing Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clapperton, Owen & Hatten, for appellant.

      Norris, McPherson & Harrington, for appellee.
   Moore, J.

The plaintiff is engaged in manufacturing lumber and veneers in Indianapolis, Ind. The defendant is engaged in the manufacture of interior wood finishing in Grand Rapids. The suit was brought to recover a balance claimed to be due for lumber and veneers furnished. The defendant pleaded the general issue and gave notice of recoupment. The case was tried before the court without a jury. From a judgment in favor of the plaintiff the case is brought here by writ of error.

Upon the trial the following stipulation was filed:

“It is stipulated and agreed herein that the following facts are true, and that no other evidence than this stipulation need be offered on the trial of this case in respect to the same: (1) That the plaintiff is a corporation organized under the laws of the State of Indiana; (2) that the defendant is a corporation organized under the laws of Michigan; (3) that on the several dates hereinafter mentioned plaintiff shipped to defendant, and defendant received and accepted, certain lots of veneering shown below, * * * a total of $2,881.32; * * * that on or about December 29, 1909, defendant paid plaintiff the sum of $2,795.52, leaving a balance unadjusted of $85.80, which defendant claimed it should not pay by reason of the goods shipped having been damaged in transit; that on or about January 22, 1910, plaintiff shipped to defendant from Indianapolis, Ind., an invoice of veneering amounting to the sum of $268.95, and on March 10, 1910, plaintiff shipped to the defendant from Indianapolis, Ind., another invoice of veneering amounting to the sum of $45.38, which invoices were received by the defendant in due course, and were thereafter to be paid for on 30 days’ time, at the prices extended above; (7) all other matters in issue herein nob herein stipulated are left open to such proofs as the parties hereto may desire to produce. Plaintiff rested.”

The defendant then put in testimony which it is claimed entitled it to recoup for a large sum in the way of damages. The trial judge made a written finding as follows: 1

“First. That the plaintiff has proved a sale and delivery by it to the defendant of the several items set forth in its bill of particulars.
“Second. That the defendant has not made out its defense to either of said items of plaintiff’s demand, as set forth in its plea and notice. That plaintiff never accepted defendant’s order for lumber and veneers, as set forth in said plea and notice, and that no contract was ever entered into in regard thereto as claimed by defendant.”

It is the claim of the appellant that these findings are not supported by the evidence.

The claim of defendant, briefly stated, is that in response to a letter of inquiry sent by it to the plaintiff, the resident manager of plaintiff, at Grand Rapids, • Mr. Dana, called upon it, when the following paper was made in duplicate:

“March 5th, 1910, Grand. Rapids, Mich. 8,000 ft., lineal, 3/16x6 in. wide, 7 ft.' or 14 ft. lengths, 14 W. oak, $30.00.
3,900 ft., lineal, 3/16x10 in. wide, 10 ft. and up in lengths, 14 W. oak, $35.00.
5,800 ft., lineal, 3/16x6 in. wide, 7 ft. or 14 ft. lengths plain hirch,
$20.00.
2,980 ft., lineal, 3/16x10 in. wide, 10 ft. and up in lengths, plain birch, $20.00.
20 pieces 1/20x12 in. 4 ft. 6 in. curly birch 12 pieces l/20x 8 in. 4 ft. 184 pieces l/20x 8 in. 4 ft. 28 pieces 1/20x10 in. 4 ft. 4 pieces 1/20x10 in. 4 ft. 32 pieces 1/20x10 in. 4 ft. 12 pieces l/20x 8 in. 4 ft. 6 472 pieces l/20x 8 in. 4 ft. 2 60 pieces 1/20x12 in. 4 ft. 2 l$25.' L I 00 in curly birch in. curly birch in. curly birch J in. 14 sawed white oak-in. 14 sawed white oak in. !4 sawed white oak >$18.00. in. 14 ‘sawed white oak in. 14 sawed white oak‘Lindner Interior Mfg. Co. Ordered from Talge Co., 3 — 4—10. “H. A. Dana.”

It is the further claim of appellant that defendant signed one paper and delivered the same to Mr. Dana, to be forwarded to plaintiff, and the other was signed by Mr. Dana and was retained by defendant, and that this made a complete order and acceptance. It is the further claim that, even if this is not so, after the order was forwarded, it was accepted by the plaintiff manufacturing and sending on part of the order.

On the part of the plaintiff it is claimed that while Mr. Dana had authority to take orders and quote prices which must be accepted before plaintiff was bound, he had not authority to make contracts, and that defendant knew of these facts. Mr. Dana testified that neither party supposed the paper was anything more than an order. It is also claimed by the plaintiff that defendant was promptly notified that the entire order could not be filled at the prices stated.

The oral testimony was in sharp conflict. The parties are not agreed as to the construction to be given to the correspondence which passed between them. It will be observed that the so-called contract uses the word “ordered,” and does not use the words “purchased” or “contracted.” No time is mentioned therein when the lumber must be sent. It does not say how the lumber must be manufactured, nor where it is to be delivered. It is silent about for what the lumber is to be used. No written acceptance of this order was sent. March 8, 1910, plaintiff wrote Dana refusing the order, and sending to him a memorandum of how it would accept. Dana says he showed it to Lindner when he received it. Lindner denies seeing this letter.

The following telegram was sent:

“Grand Rapids, Mich., March 8. “Talge Mahogany Co.,
“Indianapolis, Indiana.
“When will you ship birch and quartered white oak veneers per order given your Mr. Dana?
“Lindner Interior Mfg. Co.”
The reply was as follows:
“Indianapolis, Ind., March 8/10. “Lindner Interior Finish Co.,
“Grand Rapids., Mich.
“Twentieth portion satisfactory three sixteenth conditions hard have written Dana manufacturing stock however expecting your cooperation.
“Talge Mahogany Co.”
No reply was sent to this telegram.
The following was sent and received:
“Indianapolis, March. 11, 1910. “Lindner Interior Mfg. Co.,
“Grand Rapids., Mich.
“Gentlemen:
“We wrote Mr. Dana fully about the veneers and after writing discovered that he would not be in Grand Rapids until Saturday. * * *
“We will be delayed some upon the 3/16 in. oak, but we are doing the best we can and it may be the middle of the week before this goes out, giving you ample time to decide whether you will take it in flitch stock or dimensioned but we cannot make it for less money than the price stated in our letter to Mr. Dana.
“The writer has been personally in the mill and watched this stock with all possible care and hope that we may please you.
“Yours very truly,
“The Talge Mahogany Co.”
The following telegrams were sent and received:
“Indianapolis, Ind., March 12/10. “Lindner Interior Finish Co.,
“Grand Rapids., Mich.
“Cannot furnish three-sixteenths oak your specifications ; stock will not suit you, prefer not attempting. Birch ready Monday. Your values applicable.
“Talge Mahogany Co.”
“March 12/10.
“Talge Mahogany Co.,
“Indianapolis, Ind.
“Telegram received. You must fill order given you or stand loss by delay. L. I. M. Co.”
“Indianapolis, Ind., Mar. 12th, 1910.-“Lindner Interior F. Co.,
“Grand Rapids, Mich.
“You cannot force us to deliver goods on conditions you make. We now consider whole affair dropped.
“Talge Mahogany Co.”

Other correspondence followed which it is not necessary to quote.

It has been repeatedly held by this court that special findings of fact by the trial court are to be considered in the nature of a special verdict; and, if the evidence has some tendency to support the findings, they are controlling. Lovell v. Willard, 28 Mich. 846; Shotwell v. Harrison, 30 Mich. 179; Neumann v. Mining Co., 57 Mich. 97 (23 N. W. 600); Thompson v. Holman, 77 Mich. 134 (43 N. W. 770); Lobdell v. Baldwin, 93 Mich. 569 (53 N. W. 730).

What we have stated as shown by the record discloses an entire justification of the trial court in the findings made.

Judgment is affirmed.

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


text:
    B. F. STURTEVANT CO. v. INTERNATIONAL BANANA FOOD CO.
    Contracts — Construction—Offer and Acceptance — Recoupment —Breach of Warranty.
    In an action on a contract to install a banana dryer, defendant claiming recoupment for failure of the conveying machinery to conform to plaintiff’s warranty, held, that the correspondence should be construed to warrant the capacity of the conveyor as finally included in the agreement, although it was not included in the original warranty.
    Error to Berrien; Bridgman, J.
    Submitted January 9, 1914.
    (Docket No. 41.)
    Decided March 27, 1914.

      Assumpsit by B. F. Sturtevant Company against the International Banana Food Company for the price of machinery, etc. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Cady & Andrews, for appellant.

      Humphrey S. Gray, for appellee.
   Moore, J.

Defendant in 1908, and prior thereto, was drying bananas in Benton Harbor, Mich., and in México. The company, during the latter part of the year 1908, decided to erect, at New Orleans, a plant capable of drying 60,000 pounds of bananas in 24 hours.

The following correspondence was had between the company and the plaintiff in this case:

“Chicago, January 21, ’09.
“International Banana Food Co.,
“Chicago, Ill.
“Gentlemen:
“We inclose herewith blueprint of drawing C633A showing arrangement of banana dryer for your plant at New Orleans, La. We propose to furnish the fan, engine, heater coils, galvanized iron connections from fan to kiln, the galvanized iron vent duct of length shown on drawing. We will deliver above apparatus f. o. b. cars, New Orleans, and furnish a man to superintend the erection of apparatus. The above apparatus to be built in accordance with the following specifications :
“Fan: We will furnish one No. 15 Sturtevant Multi vane fan to be of 7/8 housing type and to be built according to dimensions and data as hereinafter stated.
“Engine: We will furnish one 10x8 VS5 type engine. This engine is built for a working pressure of 100 lbs. steam pressure, furnished with cylinder lubricator, gravity lubricator, and full set of wrenches. Engine is furnished with steel sub-base to be direct connected to side plate of the fan. Engine to be of the inclosed type and furnished with throttling governor. The inclosed bulletin No. 125 gives you a compíete description of this engine with the exception of the forced lubrication which is now done away with on this type of engine.
“Heater: We will furnish heater coils' to be built of 10, 6x7 feet London type sections arranged back to back to be 20 rows in depth and containing 9,700. actual linear feet of 1-inch pipe exclusive of elbows and bases. Coils are to be thoroughly jacketed with No. 17 gauge steel plate and extension of housing to be furnished from coils to fan as shown on drawing.
“Galv. Iron Work: We will furnish the galvanized iron connections from fan outlet to dry kiln and from the vent opening in kiln to a height as shown on drawing. Galvanized iron is to be of the Apollo Brand or equal and is to be built of No. 22 gauge iron. Volume dampers are to be provided for ducts as indicated on drawing. All the above galvanized iron work is to be erected by the owners.
“Conveying Apparatus: Conveying apparatus is to be furnished by the owners and is to consist of 5 canvas belt conveyors 6 feet wide by 50 feet in length. The conveyors are to be operated by a chain drive in accordance with the design as shown on drawing. We have estimated the cost of the conveying apparatus and wish to take this matter up with you in person.
“To be Furnished by Owners: Owners are-to furnish the dry kiln housing, foundation for the apparatus, steam connections to the engine and heater coils, conveyor, and is to furnish labor for installing fan, engine and coils. Conveying apparatus is to be installed by the owner.
“Price and Terms: Price for the above specified apparatus to be twenty-eight hundred fifty-six dollars f. o. b. our works, freight allowed to New Orleans, terms payable 50 per cent, upon delivery, 25 per cent, thirty days later, and the remainder thirty days thereafter.
“Material to be Dried: Material to be dried is banana pulp sliced and fed into the dry kiln contaning 73 per cent, moisture. The apparatus is to be of ample capacity to remove all but 7 per cent, of the moisture contained in the banana pulp. The above apparatus is to have a capacity to dry 60,000 lbs. of banana pulp in 24 hours’ time.
“Guarantee: We guarantee the above specified apparatus to be of ample capacity to remove the moisture from the banana pulp as named above, providing the heater and engine are supplied with sufficient steam at a steam pressure of 5 lbs. on the coils and the apparatus operated in accordance with our instructions. We further guarantee the fan, engine, and coils to be free from all defects in material and workmanship, said guaranty to remain in effect for a period of one year from date of completion of erection of the apparatus.
“Respectfully submitted,
“B. F. Sturtevant Co.,
“By P. H. Daniels,
“Chicago House.”
“Chicago, Jan. 23d, 1909.
“Mr. J. Ellsworth Griffin,
“St. Charles Hotel,
“New Orleans, La.
“Dear Sir:
“Under separate cover we are sending you proposition and plan showing arrangement of banana dryer for International Banana Food Co.
“The writer called at your office last Wednesday and learned that you would probably be in New Orleans for some time and he thought the plan should be sent on to you and perhaps you could secure figures on the conveyor as shown on our plan. The writer has estimated the cost of the conveyor but we did not secure any prices on this work because the conveyor companies want several days to get out figures and .we did not care to delay getting this proposition to you. We do not manufacture any of the conveying apparatus and for this reason we thought you could buy this apparatus direct because if we handled this part of the work it would be necessary for us to add about 10 per cent, profit. We have figured the conveyor belt to travel 2 feet a minute and this belt is to be driven by a chain and sprocket wheels as indicated on drawing. The pulleys driving the conveyors are 10 inches in diameter, therefore they could make less than one revolution a minute when driving the conveyor belt 2 feet a minute. The conveyor belt should be of No. 18 oz. canvas and the 2-inch idlers should be built of wood for feeding the banana bulk on to the conveyor. We have shown a plate attached to a bell crank which should make one revolution each time the chain moves forward, that is if the belt conveyor is fed 1 inch the bell crank should make one complete revolution.
“We trust that the arrangement of the dry kiln and apparatus meets with your approval and we hope that you will favor us with your order for the apparatus.
“Awaiting your further commands, we remain,
“Yours truly,
“B. F. Stubtevant Co.,'
“By P. H. Daniels, “Chicago House.”
“Chicago, Feb. 1st ’09.
“Me. M. J. Ellswoeth Geiffin,
“St. Charles Hotel,
“New Orleans, La.
“Dear Sir:
“Your Chicago office today requested us to give you our bid on conveying apparatus for banana dryer in accordance with our drawing C633A.
“We hereby propose to furnish conveying apparatus as shown on above drawing consisting of 10-inch roller pulleys provided with sprockets on both ends, chain drive, worm gear drive, pedestal shaft bearings, 18 oz. canvas belts, 2-inch idlers, belt crank and gears, one 5 H. P. 220 volt, direct current motor wound for a speed of 675 R. P. M., starting box and belt. All the above apparatus makes the conveying apparatus within the dry kiln complete, which we will furnish and erect in the dry kiln housing furnished by you for the sum of $924.00.
“We figure that the conveying apparatus will require about a 3 H. P. motor, but we furnish a 5 H. P. slow speed motor so that it will be of ample capacity to allow you to drive any small roller conveyors feeding the material to the kiln and removing the same after it is dried.
“Yours very truly,
“B. F. Stubtevant Co.,
“By P. H. Daniels, “Chicago House.”
“Chicago, Feb. 20, 1909.
“International Banana Food Company,
“Corn Exchange National Bank Bldg.,
“Chicago.
“Gentlemen:
“Referring to our proposition of January 21st, 1909, for banana dryer, beg to advise that we will revise our drawing C633A so that the overall height of the dry kiln housing is 10 feet no inches. The revision made in the drawing will not increase the price of the conveying apparatus and our guarantee will remain the same for drying 60,000 lbs. raw material in 24 hours.
“We will await your further advices before revising our drawings, and beg to remain,
“Very truly yours,
“B. F. Sturtevant Co.,
“By P. H. Daniels,
“Chicago House.”
“Chicago, III., March 1st, 1909.
“B. F. Sturtevant Co.,
“261 So. Clinton St.,
“Chicago.
“Gentlemen:
“In accordance with your bids of January 21st, 23rd, February 1st, and 20th, you will please enter our order for banana dryer and conveyor as per plans and specifications submitted, with the understanding that the height of dryer kiln housing shall not exceed 10 ft., and that a 5 H. P. alternating current motor be substituted in place of direct current motor; the entire equipment to be délivered and erected by you at our plant in New Orleans, delivery to be made within thirty days.
“We refer you to the Union Trust Company, Chicago, the State Savings Bank, Benton Harbor, Michigan. Respectfully,
“J. E. Griffin, President.”

As a result of this correspondence, the B. F. Sturtevant Company installed the plant. The defendant claimed it did- not do the work as it was agreed it should do, and declined to pay for it. This suit was brought to recover the purchase price, $3,937.50, and interest. The defendant pleaded the general issue and gave notice of recoupment. The jury returned a verdict in favor of defendant for $972.85. The case is brought here by writ of error.

There are a great many assignments of error, but the pivotal question in the case is whether the plaintiff warranted the equipment to be capable of turning out 60,000 pounds of dried bananas every 24 hours, or whether the warranty applied only to the engine, heater, and fan, and not to the conveying apparatus.

The drawings for the plant were made by the plaintiff. The language employed under the heads “Material to be Dried,” and “Guarantee,” in the letter of January 21, 1909, is not ambiguous. It is true that the drawing was revised, but after it was revised it is stated in the letter of February 20, 1909:

“The revision made in the drawing will not increase the price of the conveying apparatus, and our guaranty will remain the same for drying 60,000 pounds of raw material in 24 hours.”

It will be noticed this letter was written after the plaintiff had proposed to furnish the conveying apparatus, as well as the other machinery. We think this correspondence is not ambiguous, but made it the duty of the plaintiff to erect a plant that would turn out the product agreed upon, or, in case of failure to do so, to respond in damages.

Having reached this conclusion, it is not necessary to discuss in detail the various assignments of error, for an examination of the record satisfies us that, if any one has cause to complain of the charge as to the measure of damages the trial court gave to the jury, it is not the plaintiff.

Judgment- is affirmed.

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