text:
    ROCKFORD MALLEABLE IRON WORKS v. TILDEN.
    1. Witnesses — Matters Equally within Knowledge of Deceased —Conflict of Laws.
    The trial court was not in error in excluding testimony of defendant as to a subsequent oral agreement with the president of plaintiff, since deceased, modifying the original contract, although the agreement was made in Illinois; the law of this State would govern. 5 How. Stat. (2d Ed.) § -12858.
    2. Same — Cross-Examination' — Discretion of Court — Set-Off 'and Recoupment.
    Where defendant sought to recoup damages for breach of contract, and plaintiff contended it was unable to fulfill because the proper materials were not furnished by defendant, and defendant claimed that they were the same he had furnished others, and that no complaint had ever been made, cross-examination of defendant as to his contention did not exceed the discretion lodged in the trial judge.
    3. Damages — Breach of Contract — Measure of Damages — Sales.
    The measure of damages for the breach of a contract of sale is the difference between the contract price of the goods and what they would cost the buyer at the time of the breach, and it is not necessary, in order to recover, that he actually purchase the goods.
    Error to Van Buren; Des Voignes, J.
    Submitted June 25, 1915.
    (Docket No. 51.)
    Decided September 28, 1915.
    Assumpsit by thé Rockford Malleable Iron Works, a foreign corporation, against B. E. Tilden for a balance claimed to be due for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      David Anderson, for appellant.

      Glenn E. Warner, for appellee.
   MOORE, J.

Plaintiff sued to recover a balance claimed to be due for a quantity of malleable iron replacing frogs, which, it delivered to defendant, of $414.91, and interest.

Defendant pleaded the general issue, and gave notice that he entered into a supplemental agreement with Harry Forbes, president of the plaintiff company, to take the place of the first contract. The defendant also gave notice under the plea of the general issue of damages he claimed to have sustained because of the alleged breach of the contract by the plaintiff. The items which he sought to recoup aggregated $491.32. The jury found in favor of the plaintiff for the full amount of its claim. From a judgment entered on the verdict the case is brought here by writ of error.

The assignments of error are argued under the following heads:

(1) Error of the court in excluding the testimony of defendant as to the supplemental agreement between himself and this defendant company, acting by its president, Harry Forbes.

(2) The erroneous and prejudicial cross-examination of the defendant as to his contracts with other companies, his having lawsuits with them, and as to the name under which this defendant had done business, and as to the reasons why different companies refused to take the contract for making these goods after plaintiff failed in its efforts so to do.

(3) Errors of the court in his instructions to the jury.

We will consider the assignments of error in the order in which they were presented.

1. It is urged the court should have permitted Mr. Tilden to testify to the making of a supplemental agreement with Mr. Forbes, though he is dead, and though his testimony is covered by the Michigan statute, because the contract was made in Illinois, and that, in the absence of testimony as to the Illinois statute, there is no presumption that the law is the same as that of Michigan. Counsel concludes this part of his argument by saying:

“We wish to say frankly to the court that we have searched diligently through the authorities so far as they are accessible to us, and have been unable to find any authority on either side of this question. So far as we have been able to discover, the question has never been passed upon.”

We think the following authorities sustain the ruling of the circuit-judge in excluding the testimony: See Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334), Kirtland v. Wanzer, 2 Duer (N. Y.) 278; Downer v. Chesebrough, 36 Conn. 39 (4 Am. Rep. 29); 9 Cyc. p. 690, and notes.

2. The appellant contends that the court erred in permitting the cross-examination of the defendant. Defendant sought to recoup damages for breach of the contract. Plaintiff claimed it was unable to fulfill the contract because the proper patterns, flasks, and cores were not furnished. Defendant claims it did furnish proper patterns, flasks, and cores, and that they were the same it had furnished others, and that no complaint had ever been made.

The cross-examination related to this contention of the defendant, and did not exceed the discretion lodged in the trial judge. Ritchie v. Stenius, 73 Mich. 563 (41 N. W. 687) ; Georgia v. Bond, 114 Mich. 196 (72 N. W. 232); Cummings v. Railway, 163 Mich 304 (128 N. W. 206).

3. Appellant claims the court erred in his instructions to the jury. It was his theory that he was entitled to recover the difference between the price in his contract with plaintiff and what he would have to pay to procure these goods from any other source. This difference in the price was the largest element of his claim of damages. He testified that he could not buy the castings for less than cents per pound; that he sought to place contracts in several places at that time, and was unable to do so; that he finally succeeded in making two contracts each for 500 pairs at 2% cents per pound. These contracts were in writing, and were in evidence, though all that appears of them in the record is as follows:

“The contracts offered show the prices and the dates. In Exhibit 0 the date is October 25, 1911, and the price to be cents per pound, f. o. b. Chicago, or Chicago rail freight allowed. The other contract is dated December 26, 1911, and the price is exactly the same cents per pound, f. o. b. Chicago, or Chicago rail freight allowed.”

Defendant claims that when he had proved it would require this advanced price to procure the goods he had proved all that it was necessary for him to prove to establish this part of his claim. He complains of that part of the charge reading as follows:

“Defendant is not entitled to any damages under this subsequent contract unless you find in this case he has proved that he ordered and paid for frogs from the Lakeside Malleable Castings Company, of Racine Junction. In other words, the mere fact that he made a contract does not establish that he has been damaged or that he has purchased any goods from the Lakeside Málleable Castings Company. It must appear that he made purchases in order to show that he suffered damages by reason of the nondelivery of any of the castings in this case. In other words, gentlemen, in order that you may clearly understand what that instruction stands for, it means simply this, that the fact that there was a thousand castings or pairs contracted for in this case is no material consequence, unless you find that plaintiff in this case by reason of a failure to furnish castings to this defendant, that defendant thereby suffered a loss and sale to customers in that respect.”

In 3 Sutherland on Damages (3d Ed.), § 699, occurs the following:

“In such cases the employer is generally entitled to measure his damages by what the necessary expense would be to procure to be done the work which the contractor neglected to do, whether it is done or not; for the same reason that a vendee in an executory contract for the sale of goods need not, in fact, purchase the goods he was entitled to receive from the vendor in order to have his damages computed on the basis of what they would cost him at the time of the breach.”

In the recent case of Newton v. Construction Co., 184 Mich. 63 (150 N. W. 348), there is a discussion at some length of the law which is applicable to the instant case. We content ourselves with referring to that opinion. We think the court erred in that part of the charge we have quoted.

Judgment is reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEARL v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Negligence—Question for Jury — Directed Verdict.
    In an action against a street railway company for personal injuries to plaintiff, caused by defendant’s street car colliding with a wagon in which plaintiff was riding, held, the evidence.presented by plaintiff raised an issue for the jury.
    2. Same — Trial—Instructions—Negligence.
    An instruction by the court that it was the duty of the motorman operating the approaching car, when the plaintiff was crossing in full view, to operate the car so as to avoid a collision with him, if possible, and if he did not do so, but collided with and injured plaintiff, then the defendant was guilty of negligence, was erroneous, as it held him to a higher degree of care than the law demands, and was misleading.
    Error to Wayne; Codd, J.
    Submitted June 21, 1915.
    (Docket No. 79.)
    Decided September 28, 1915.
    Case by Max Pearl against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Moody (Wm. G. Fitzpatrick, of counsel), for appellant.

      Washington I. Robinson, for appellee.
   Moore, J.

Plaintiff was driving a single horse and wagon east on Jefferson avenue west, in the vicinity of Solvay avenue, in the city of Detroit, about midday of the 10th of August, 1911. Jefferson avenue runs east and west, and Solvay avenue north from the north side of Jefferson avenue. Jefferson avenue is about 50 feet wide between curbs. The defendant’s double car tracks are located in the center of the street, leaving about 17 feet of highway on either side. From the curbs to within a few inches of the rails on either side the street is paved; the space between the rails and between the tracks being unpaved, but filled in with broken stone.

Plaintiff claimed that, when he came to Solvay avenue, he undertook to turn north to go over both street car tracks, and before doing so looked to the west and saw a car a block or a block and a half distant, approaching the intersection. At the same time he saw another car approaching from the east a block away. Thinking that he could cross the tracks, he turned his horse to the north. Proceeding, his horse crossed the east-bound or southerly track, the “devil” strip between both tracks, and got upon or between the rails of the northerly or west-bound track, when he suddenly became alarmed at the rapid approach of the westbound car, and decided it was best not to undertake to complete the crossing ahead of it, and he started to turn to the right, intending to swing off to the southeast and get back upon the south side of Jefferson avenue. His wagon got stalled, and the east-bound car struck the rear of his wagon.

The defendant’s claim and theory was and is that the plaintiff was proceeding east on or with the wheels of his wagon straddle the north rail of the northerly or west-bound track; that while in this situation he was observed by the motormen of both cars; that he was “in the clear” so far as the east-bound car was concerned; that when within 20 to 30 feet ahead of the east-bound car he suddenly, and without looking to the rear, turned his wagon to the right directly in the path of the car; that, despite all that could be done to prevent, the car struck the wagon about in the middle, or near the right front wheel. The motorman of the west-bound car, seeing the danger, stopped and just stepped out of the vestibule, when the wagon was thrown upon the left front corner of the vestibule, breaking the glass in the windows, and tearing the controller box loose. The plaintiff’s wagon was demolished, his horse was injured so badly it had to be killed, and he was thrown to the ground under the car. His right foot and ankle were crushed, his toes so badly as to necessitate amputation.

The court overruled motions for a directed verdict on the plaintiff’s evidence and on the whole evidence. The case went to the jury, who found for the plaintiff. A motion for a new trial was made and denied. The errors relied on are:

(1) The court should have directed a verdict.

(2) There was error in the charge of the court.

(3) The verdict was against the weight of the evidence.

1 and 3 may be considered together. Plaintiff offered evidence which, if believed, should carry the case to the jury. Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160) ; Ablard v. Railway, 139 Mich. 248 (102 N. W. 741).

2. Was there error in the charge of the court? That part of it which is most criticised reads:

“It was the duty of the motorman operating the approaching car, when the plaintiff was crossing in full view, so as to avoid a collision with him — to operate the car so as to avoid a collision with him, if possible. If you find that the motorman of the car coming from the west did not do so, and by reason thereof collided with and injured the plaintiff, then I charge you that the defendant company, through the acts of its agent was guilty of negligence.”

Counsel for appellee in reply to the criticism say:

“ ‘The charge of a court to a jury must be considered as a whole, not by isolated sentences, and a jury, as one of the tribunals of the country, must be presumed to have some sense. It is not allowable, in reviewing instructions to the jury, to consider particular sentences or phrases as if they were independent, but they must be construed with their context.’ Welch v. Ware, 32 Mich. 78.
“ ‘The charge to the jury is to be constrúed together as a whole, and where a portion of it is complained of, which, standing alone, would bear a construction that might mislead the jury, the objection will not be sustained if, when considered with the rest of the charge, the jury would not be likely to put such a construction upon it, or to be misled by it.’ ”

—citing many cases, and insist the jury was not misled.

One trouble with this contention is that there is nothing in the other portions of the charge upon which to base it. The charge was quite long, and fully and carefully stated the rights and duties of the plaintiff; but we have quoted all it said as to the duty of the motorman. We think it held him to a higher degree of care than the law demands and may have misled the jury. See Rascher v. Railway Co., 90 Mich. 413 (51 N. W. 463, 30 Am. St. Rep. 447) ; Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160) ; Ablard v. Railway, 139 Mich. 248 (102 N. W. 741).

The judgment is. reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.


text:
    WILLIAMS v. LAWSON.
    Deeds — Building Restrictions — Notice—Injunction—Equity,
    Where there were no restrictions in any of the title deeds to the lot defendant purchased, on the north side of a street, and he had no notice that the residents on the south side were restricted or considered the street a restricted district, and he was assured, if he bought the lot, he would have a' perfect right to put up an apartment house, equity will not enjoin the building of a brick two-story four-family apartment house.
    Appeal from Wayne; Van Zile, J.
    Submitted June 25, 1915.
    (Docket No. 88.)
    Decided September 28, 1915.

      Bill by George E. Williams and others against George A. Lawson and another for an injunction restraining defendants from erecting an apartment house in an alleged restricted residence district. From a decree for defendants, complainants appeal.
    Affirmed.

      Robert E. Barber and Edwin S. Bartlett, for complainants.

      N. Calvin Bigelow, for defendants.
    The following cases were cited by complainant: Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726); Allen v. City of Detroit, 167 Mich. 464 (133 N. W. 317, 36 L. R. A. [N. S.] 890) ; Tallmadge v. Bank, 26 N. Y. 105; Lewis v. Gollner, 129 N. Y. 227 (29 N. E. 81, 26 Am. St. Rep. 516) ; Watrous v. Allen, 57 Mich. 362, 367 (24 N. W. 104, 58 Am. Rep. 363) ; Stott v. Avery, 156 Mich. 674 (121 N. W. 825) ; Jenks v. Pawlowski, 98 Mich. 110 (56 N. W. 1105, 22 L. R. A. 863, 39 Am. St. Rep. 522) ; Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025) ; Bagnall v. Young, 151 Mich. 69 (114 N. W. 674) ; Harris v. Roraback, 137 Mich. 292 (100 N. W. 391, 109 Am. St. Rep. 681) ; James v. Irvine, 141 Mich. 376 (104 N. W. 631); Misch v. Lehman, 178 Mich. 225, 228 (144 N. W. 556) ; Moore v. Curry, 176 Mich. 456 (142 N. W. 839) ; Frink v. Hughes, 133 Mich. 63 (94 N. W. 601) ; Silberman v. Uhrlaub, 102 N. Y. Supp. 299 (116 App. Div. 869).
    For defendant the following cases were cited: James v. Irvine, 141 Mich. 376 (104 N. W. 631) ; Frink v. Hughes, 133 Mich. 63 (94 N. W. 601) ; Easterbrook v. Society, 85 Conn. 289 (82 Atl. 561, 41 L. R. A. [N. S. ] 615).
   Moore, J.

Complainants in this bill, more than 30 in number, are residents and property holders on Grand avenue west in the village of Highland Park. This street runs from Woodward avenue west to Hamilton boulevard.

Defendant John Campbell is the owner of lot 8 in block 1 of Grand avenue subdivision, and defendant George A. Lawson is a contractor. Lot 8 is on the north side of the street. The lots on the south side of the street have the following restriction:

“Dwelling houses erected on the south one-half of W. H. Davison’s subdivision of park lot 2 in south part of quarter section 5 shall be at least two stories high and cost not less than $2,250 between Woodward and Second avenues, and not less than $2,000 between Second avenue and Hamilton boulevard, and shall be not less than 20 feet from the front line of said lots.”

It is the claim of complainants that the street is a residential street, and the bill is filed to enjoin defendants from putting up a two-story, brick, four-family apartment house 20 feet from the front line of the street. After a full hearing of the case,, it appearing there were no building restrictions in any of the deeds resulting in. defendants’ title, and no parol agreement to which the defendants were parties, the chancellor dismissed the bill of complaint. The case is brought here by appeal.

We quote from the brief of appellants:

“The contentions of complainants are:
“First. That restrictive covenants of record and in parol are binding upon the property of defendants and upon the defendants, and limit the use of the property to the restrictions claimed.
“Second. That a general plan has been maintained and recognized by all owners in the subdivision, and followed out, and that rights have accrued to complainants and all other owners of property in the subdivision, which the defendants may not disregard in the use of their property.
“Tnird. That defendants are bound by the provisions of a universally recognized plan, of which they had notice before purchase, and must be bound by that plan in the use of their property.
“Fourth. That the violation of, such a plan, to the injury of complainants, would constitute a nuisance, and may be enjoined.”

There is no dispute about what is shown by the record. None of the title deeds to the lot in question show any restrictions. Defendants both testify that when they entered into a contract for the purchase of the lot they had no knowledge that it was claimed the street was a restricted one, and that they were assured, if they bought the lot, they would have a perfect right to put up an apartment house.

The solicitor for the complainants on the oral argument admitted that, if defendants were enjoined from their contemplated action, this court would have to go one step further than it has ever gone. He thought it would be justified in doing so by the case of Tallmadge v. Bank, 26 N. Y. 105. An examination of that case will show it is easily distinguishable from the instant case, in that the owner of the land had prepared a map of the street and lots. We quote:

“Davis made a map of the street between the Second and Third avenues, in which the street was. shown as 76 feet wide, 8 feet being added on each side. He called the avenue, thus widened, ‘St. Mark’s Place.’ This was before he sold or built on any of the lots. Soon thereafter, in conformity with this, plan, Davis erected 16 dwelling houses on the south side of the street, and 13 on the north side. They were of a superior class, all upon .one uniform line, 8 feet back from the original line of the street — the 8 feet being devoted to doorsteps and areas inclosed in iron fences. When Davis sold any of the houses or lots, he exhibited this plan to the purchasers, and represented to all who had purchased that the street was always to remain as laid out, and that, when he so formed and laid out the street and built thereon, he gave up and dedicated the strip of 8 feet of land on each lot to be used as a part of the Place in the manner it has since been used.”

The court found defendant bought with notice of the plan and restrictions, and that the original purchasers had verbally agreed to and executed a plan for the improvement of the Place, and were bound to adhere to.it, and the defendant, purchasing with notice, took subject to the same equity.

The subject of building restrictions has been before this court many times. A citation of the cases may be found in the briefs of the solicitors. Of all the cases decided by this court, the one most like the one now before us is the case of James v. Irvine, 141 Mich. 376 (104 N. W. 631), in which Justice Grant, speaking for the court, said:

“Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property. 11 Cyc. pp. 1077, 1078. The principle governing restrictions of this character is not in doubt. The question is ably discussed in De Gray v. Club House Co., 50 N. J. Eq. 329 [24 Atl. 388]. The court, after a full discussion of the principle and the authorities, so clearly states the law (50 N. J. Eq. at page 340, 24 Atl. at page 392) that we quote it:
“ ‘The law, deducible from these principles and the authorities applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.’
“See, also, Sharp v. Ropes, 110 Mass. 381; McMurtry v. Investment Co., 103 Ky. 308 [45 S. W. 96, 40 L. R. A. 489] ; Sonn v. Heilberg, 38 App. Div. 515 [56 N. Y. Supp. 341] ; Summers v. Beeler, 90 Md. 474 [45 Atl. 19] 48 L. R. A. 54 [78 Am. St. Rep. 446].”

There is nothing in the deeds or in the knowledge possessed by the defendants that would justify the injunction desired.

The decree is affirmed, with costs.

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

The late Justice McAlvay took no part in this decision.


text:
    CITY OF NORTH MUSKEGON v. RODGERS.
    1. Municipal Corporations — Parks—North Muskegon Charter —Cities.
    The provisions of the charter of North Muskegon (sections 3, 13, chap. 6, Act No. 466, Local Acts 1895) authorizing the city to “provide” parks, and to “take, accept and hold” real estate for any purpose connected with parks, are sufficient to authorize the city to purchase land for a public park.
    2. Taxation — Tax Deeds — Municipal Corporations — Power to Purchase at Tax Sale.
    Where a city is authorized to buy land for park purposes,' and there is nothing in its charter forbidding its purchasing property at a tax sale, and the evidence showed the purchase of property by complainant city at a tax sale for park purposes, that the sale was reported to the court and duly confirmed, that the State authorities recognized the validity of the sale and issued a deed, that notice was duly served upon defendant, who took no steps to redeem, that there is no claim on the part of defendant that the taxes were paid or the property exempt, and that more than five years had elapsed after confirmation before filing the bill, the sale will be held valid, and the cloud removed from complainants title.

      Appeal from Muskegon; Sullivan, J.
    Submitted June 30, 1915.
    (Docket No. 73.)
    Decided September 28, 1915.
    Bill by the city of North Muskegon against Lincoln Rodgers for the purpose of confirming in complainant title to land purchased at tax sale. From a decree for complainant, defendant appeals.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for complainant.

      Simpson & Anderson, for defendant.
   Moore, J.

This is a bill to quiet the title to land acquired by the complainant city for park purposes at a tax sale. From a decree in favor of the complainant the case is brought here by appeal.

The questions involved are stated by the solicitors for the defendant to be:

(1) Has complainant power to purchase lands for park purposes?

(2) Can complainant become the purchaser of land at a tax sale?

(3) Is complainant’s deed to the land in question void?

(4) Does the confirmation of sale preclude defendant from questioning complainant’s title where the sale and deed are void?

(5) If complainant’s deed is void, is defendant estopped from questioning its validity?

(6) Must not a purchaser of land under tax proceedings serve notice of redemption on all grantees named in recorded tax deeds purporting to convey a portion or portions of the land, regardless of the validity of such tax deeds?

As to the last-named question it may be said that the tax deeds to which counsel refer did not cover the, lands involved here. An answer to questions 1, 2, and 4 will take care of all the questions involved. .

The property in question is vacant property, and lies between Muskegon Lake and Bear Lake, about midway between the city corporate limits east and west. In the month of April, 1908, the council of the city of North Muskegon by resolution took action authorizing the purchase of the property to be used for public park purposes. Soon after the passage of this resolution the property was purchased for $43.44 by the city at the county treasurer’s sale on May 9, 1908, for the taxes of 1905. The sale was reported to the court in due time, and no objections were filed thereto. The sale was duly confirmed. No redemption of the property having been made, a deed was issued to the complainant on May 18, 1909, by the auditor general. After the deed was issued, complainant caused an examination to be made of the records in the office of the register of deeds, and obtained the information that the grantee under the last recorded deed in the regular chain of title to the land in question was the defendant, that there were no recorded tax deeds issued by the auditor general covering the land, and that there were no undischarged recorded mortgages. A notice of redemption was served on the defendant by the sheriff on June 4, 1909, and proof of such service filed with the register in chancery on June 4, 1909. Defendant failed to redeem after receiving this notice. He also failed to take any steps to set aside the tax title, although he knew that the property was being taxed right along. May 4, 1909,- a certificate of purchase was issued to the city of North Muskegon for the taxes of 1906, $354.45; and the city also paid taxes for 1907, $54.96; for 1908, $49.24; and for 1909, $29.12. After defendant failed to redeem the land, it was placed upon the several tax rolls as exempt property which was owned by the city. With this brief statement of facts we may approach the questions presented by counsel:

1. Has complainant power to purchase lands for park purposes?

The charter provisions are contained in subdivision 32 of section 3 of chapter 6, and section 13 of chapter 6 of said act (Act No. 466, Local Acts 1905). Subdivision 32 of section 3 reads as follows:

“To provide for public squares and parks, and make grades and improve the same, and all grounds in said city belonging to or under the control of the corporation, and to control and regulate the same consistently with the purposes and objects thereof.”

Section 13 of chapter 6 reads as follows:

“The city of North Muskegon shall have power to take, accept and hold any real or personal estate, whether by gift, bequest or devise for any purpose connected with parks, cemeteries or public grounds of said city, or for any public institution .or charity, and when accepted it shall be the duty of the common council to use and appropriate the same for the uses and purposes mentioned in the instrument giving, granting or devising the same, and for no other purpose.”

The city is also authorized by subdivision 45 of section 3 of chapter 6 to purchase land for cemetery purposes.

Counsel argue that city charters must be strictly construed, and no powers can be inferred, citing Schneider v. City of Detroit, 72 Mich. 242, 247 (40 N. W. 329, 2 L. R. A. 54), and hence the city may not purchase land. We think this too narrow a construction to put upon the.language, “To provide for public squares and parks.” In State, ex rel. Means v. City of Hiawatha, 53 Kan. 477 (36 Pac. 1119), it was held that a provision “to provide” authorized a purchase. In Swartz v. Board of Commissioners of Lake County, 158 Ind. 141 (63 N. E. 31), the court, in construing a statute providing that the board of county commissioners of Lake and La Porte counties should “provide” a suitable and convenient place for the holding of the superior court, said:

“The language employed in the section in question is peremptory, and the duty of the board to provide a suitable and convenient place at the city of Hammond for the use of the court and its officials is clearly and expressly enjoined, without any limitation or specific direction as to the means to be employed by the board in the performance thereof. What did the legislature intend by the use of the term ‘provide’ ? Webster’s International Dictionary defines the word as follows: ‘To procure as suitable or necessary’; ‘to prepare’; ‘to make ready for future use’; ‘to furnish’; ‘to procure beforehand.’ The definition in the Century Dictionary is ‘to make ready’; ‘to prepare’; ‘to furnish or supply.’ It is evident, then, that when the meaning of the term in question as employed in the statute is considered, it becomes manifest that the legislature intended to leave the question as to how the duty imposed should be performed to the wisdom and sound discretion of the board, and that the latter, in the exercise of its power, if it deemed proper, might' either lease some suitable house for the use of the court and its officials, or it might, at the expense of the county, purchase a site and erect or construct thereon a suitable and convenient house or building for the use and purposes mentioned in the statute.”

In Bloss v. Board of Supervisors of Jackson County, 170 Mich. 607 (136 N. W. 589, Am. & Eng. Ann. Cas. 1914A, 1191), it was contended that, while an organized county might purchase and hold real estate for the use of the county, as the county was the creature of the legislature, it could exercise only such powers as had been conferred upon it, and that it could not hold real estate devised to it by will; but this court held such a devise was valid. See, also, Penny v. Croul, 76 Mich. 471 (43 N. W. 649, 5 L. R. A. 858). It is a fact of which we may well take notice that cities and villages are very generally acquiring and adorning public spaces called public squares and parks. It-is a practice to be commended and encouraged.

2 and 4. Can complainant become the purchaser of land at a tax sale? If not, can defendant question this proceeding?

The contention of counsel is:

“A municipal corporation, in the absence of any enabling statute, has no authority at law to become the purchaser of land at a tax sale and acquire a title by complying with the statute in respect to such sales. The general power to buy and hold real estate does not authorize such a purchase.”

The cases are not in harmony. Counsel do not call our attention to any case on all fours with the instant case. We have already shown that the complainant was authorized to purchase land for park purposes. In. 20 Am. & Eng. Enc. Law (2d Ed.) p. 1185, it is said:

“Municipal corporations may acquire such property as they have the right to possess in any lawful manner, in the absence of charter provision restricting or prescribing a particular mode. They may lease, take by devise or bequest, or purchase on credit, if such power is not denied or restricted by some charter or statute provision.”

See Kellar v. Wilson, 90 Ky. 350 (14 S. W. 332).

Section 70 of the general tax law provides the manner of sale and who may become purchasers. There is nothing in the charter of the city which in terms forbids its purchasing property at a tax sale for park purposes. It made this purchase in 1908 for the express purpose of establishing a park. The sale was reported to the court. No objections were filed to it. It was duly confirmed. Later the city paid large amounts for taxes, and the land was listed as exempt because owned by the city, thus escaping taxation. The defendant, in June, 1909, was notified of the purchase by the city, and has taken no steps to redeem, and does not now offer to pay what the land should have paid in the way of taxes. The State recognized the regularity of the bid and issued its deed.

Section 70 of the tax law provides in part as follows (1 Comp. Laws, § 3893; 1 How. Stat. [2d Ed.] § 1839):

“All sales shall stand confirmed, subject to the right of redemption provided for in section seventy-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice. The practice with reference to setting aside such sales shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages: Provided, no sale shall be set aside for inadequacy of price, except upon payment of the amount bid upon such sale, with interest and costs: Provided further, that no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court at any -time within one year after he shall have notice of such sale to set the same aside, and the court may so order upon such terms as may be just.”

See Rumsey v. Griffin, 138 Mich. 413 (101 N. W. 571) ; Blondin v. Griffin, 133 Mich. 647 (95 N. W. 739); Burns v. Ford, 124 Mich. 274 (82 N. W. 885) ; Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635, 79 N. W. 908); Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323); Harrington v. Dickinson, 155 Mich. 161 (118 N. W. 931); Jenkinson v. Auditor General, 104 Mich. 34 (62 N. W. 163).

We are expressing no opinion about whether a city can, without any proper public purpose to be served, become a bidder at tax sales; but when a given piece of property is desired by a municipality for a public park, and it is offered for sale at a tax sale, and the city becomes a purchaser, and the facts are reported to the court, and the sale is confirmed, and the State authorities recognize the validity of the sale and issue a deed and all the other facts disclosed by this record appear, we think it would be very inequitable to hold the deed invalid. There is no pretense on the part of the defendant that the taxes were paid, or that the property was exempt from taxation. More than five years elapsed after confirmation before this bill was filed. We think, under these circumstances, the sale should not be invalidated, and that the cloud should be removed from the purchaser’s title.

The decree is affirmed, with costs.

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

The late Justice McAlvay took no part in this decision.


text:
    AUSTIN v. KNELL.
    1. Carriers — Delivery—Conversion.
    In a suit against the consignees and the carrier for the conversion of a car load of hair, where the consignees refused payment on the ground that they never received the goods, and the railroad company claimed that the car was placed on consignees’ siding on April 22d, that on April 24th it was about three feet from the receiving door of consignees’ plant, that it had not then been unloaded, and that on April 25th it was in the same place and empty, evidence held, to justify a verdict against the consignees and in favor of the railroad company.
    2. Customs and Usages, — Carriers—Delivery—Evidence.
    Evidence that it was the custom of the railroad company to place car load lots, consigned to defendants, on the spur track immediately adjacent to their plant, was admissible on the question of delivery.
    Error to Wayne; Codd, J.
    Submitted June 22, 1915.
    (Docket No. 26.)
    Decided September 28, 1915.

      Trover by Joseph H. Austin and another, copartners as the Austin-Olson Company, against William F. Knell and William F. Adams, copartners as Knell and Adams, and the Michigan Central Railroad Company, for the conversion of a carload of hair. From a judgment for plaintiffs against defendants Knell and Adams they bring error.
    Affirmed.

      Angell, Bodman & Turner, for appellants.

      Selling & Brand, for appellees.
   Moore, J.

Plaintiffs sued defendants in an action of trover to recover the value of a carload of hair, which was delivered to the railroad company April 19, 1912, consigned to Knell & Adams, Beaufait Station, Detroit, Mich. There does not seem to be any dispute about the carload of hair being delivered to the railroad company, which company admits that it received the hair, and claims that the car was placed on the siding immediately back of Knell & Adams’ plant, and within a few feet of its building, and where it was customary for the railroad to place car load lots consigned to Knell & Adams and that Knell & Adams received the hair.

It is the further claim of the railroad company that the car was placed on Knell & Adams’ siding on April 22d, that on April 24th it was about three feet from the receiving door of Knell & Adams’ plant, and that the car had not then been unloaded, and that on April 25th it was in the same place and empty. Knell & Adams claim never to have received the hair. The railroad company, claiming it had delivered the hair, refused to pay for it, and Knell & Adams, claiming they had not received it, refused to pay for it.

The plaintiffs, before this suit was brought, made demand of Knell & Adams as follows:

“September 16, 1912.
“In behalf of the Austin-Olson Company, I hereby make formal demand upon you of car load of hair shipped on the account of Austin-Olson Company by Sulzberger & Sons Company to you in April, 1912, and which it is claimed by the Michigan Central Railroad was delivered to you approximately upon April 24, 1912.
“If you are unwilling to deliver the hair, we hereby claim its value, $1,120, and ask either that the hair be turned over at once or its value in money be paid over.
“This demand is made in accordance with law prior to the commencement of suit in trover against you and the Michigan Central Railroad Company for the value of said car of hair.”

A similar letter was sent to the railroad company.

After all the testimony of the plaintiffs was in, defendants moved for a directed verdict. This motion was refused. After the case was closed, it was renewed, and again refused. The case was submitted to the jury, which returned a verdict in favor of the railroad company of no cause of action, and found a verdict in favor of the plaintiffs against Knell & Adams in the sum of $1,232.

The judge, at the request of the plaintiffs, submitted to-the jury four questions, which, with their answers, are as follows:

(1) Did Pennsylvania car No. 515436 contain 7,000 pounds (140 bags) of motor gray curled hair, and was it properly sealed by the S. Sulzberger & Sons Company and delivered to the defendant, the Michigan Central, on April 18, 1912? Yes.

(2) Was Pennsylvania car 515436 on the Knell & Adams industrial track, directly back of Knell & Adams’ plant, on the morning of April 24, 1912? Yes.

(3) Had it up to that time been unloaded? No.

(4) Was Pennsylvania car 515436 unloaded on or about April 24,1912, by Knell & Adams, or any of their employees? Yes.

A judgment was entered upon the verdict, and the case is brought here by writ of error. Counsel for appellants argue their assignments of error under the following heads:

(1) There was no evidence to support the finding that the car load of hair had been delivered to appellants by the Michigan Central Railroad Company.

(2) There was no evidence of conversion by appellants.

(3) Admission of evidence of custom and Exhibit BB was reversible error.

1, 2. Groups 1 and 2 may be considered together. We have already stated the respective claims of the parties, including the written demands made upon the defendants. There was testimony tending to support these claims. The pivotal question in the case is: Did the plaintiffs offer evidence that warranted the jury in finding that defendants Knell & Adams received from the plaintiffs a load of hair, which they claim they never did receive, and for which they have concededly not paid? It would profit no one to repeat the evidence. A careful reading of it satisfies us there was an abundance of it to justify the verdict.

3. Was there reversible error in admitting proof of the custom on the part of the railroad company to place car load lots consigned to Knell & Adams, Beaufait Station, on the spur immediately adjacent to the Knell & Adams plant? Mr. Adams, on cross-examination, testified in part as follows:

"So far as I can remember, nearly all of our car load shipments were unloaded in our building. • Our plant was located so we could only unload one car at a time. If we had two or three cars standing bn the side track opposite our plant, and one was unloaded, we would shove that along, and get the other down to be Unloaded at the right place, and we would push it down farther with bars. We only had one rear entrance.
“Q. You spoke yesterday about telling the trucker not to take a car load of Sulzberger hair?
“A. No, sir; I did not. I understood somebody did. Possibly we were receiving some stuff on the Grand Trunk, which would come down town; but we could not be trucking car loads of hair that move in on the Michigan Central. It costs us money to truck it, and costs us nothing to have a car pulled on the side track.”

We think it was competent, as bearing upon the question of delivery, to show what the custom was as to consignments of car load lots. We discover no reversible error.

The judgment is affirmed.

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

The late Justice McAlvay took no part in, this decision.


text:
    MISHLER v. INTERNATIONAL HARVESTER CO. OF AMERICA.
    Eviden ce — Contracts—Parol Evidence — Warranty—Fraud.
    In an action to recover damages for alleged fraud in the sale of a gasoline engine to plaintiff, parol evidence of conversations be'tween plaintiff and the agent of defendant prior to and at the time the order was signed is inadmissible to vary the terms of a written contract of sale containing a warranty limiting the seller’s liability to return of the purchase price in case the engine proved defective, and defendant was properly notified and given opportunity to put in good order.

      Error to Kent; Perkins, J.
    Submitted June 21, 1915.
    (Docket No. 81.)
    Decided September 28, 1915.
    Assumpsit by John Mishler against the International Harvester Company of America for damages for alleged false and fraudulent representations in the sale of an engine. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      C. G. Turner (E. A. Maher, of counsel), for appellant.

      Hatch, McAllister & Raymond (Cummins, Nichols & Rhoads, of counsel), for appellee.

      As to right to show parol warranty in connection with a contract of sale of personalty, see note in 19 L. R. A. (N. S.) 1183.

   Moore, J.

This suit was commenced by declaration in June, 1914, for damages growing out of the sale of a gasoline engine. The plaintiff is engaged in the business of threshing grain, husking corn, and running a saw. He first saw the engine which is the subject of controversy at the Western Michigan State Fair. He finally bought the engine, trading an old steam engine he had as part payment. After the engine was delivered to him in the fall of 1912, some trouble developed; but he continued to use it at intervals until the latter part of March, 1914.

Upon the trial he was allowed to testify orally to the conversations between him and the selling agent prior to and at the time of the purchase. In the course of his examination it developed that the contract of purchase was in writing, which writing was produced in court and identified by the plaintiff. It was then read in evidence, and upon motion of the defendant the oral testimony in relation to the bargain was stricken out. The contract is as follows:

“Order for Gas and Gasoline Engine.
“To Babbit, Bugler & Co., Town Freeport, State Mich.:
“The undersigned, of R. R. No. 55 Twp., Bowne P. O., County Kent, State Mich., hereby orders, subject to your approval and to all conditions of agreement and warranty printed on back of this order and made a part thereof, to be shipped on or about the-day of at once, 191 — , to Babbit, Rugler & Co. at Freeport.
“Engine. One 45 H. P. International tractor No. 5855 gas or gasoline engine (28 size of pulley), complete, including necessary fixtures, at price of $-, 140 ft. 7 in. 4-ply. Belting endless.
“Attachments. One each of the following, at the following prices:
“In consideration whereof the undersigned will receive same on arrival, will pay freight and charges thereon from Chicago, Ill., and upon delivery or tender thereof will pay to your order:
“$2,600.00 cash and executive approved notes payable to your order as follows: $700.00 due cash on delivery 1st. $550.00 due Dec. 1st, 1918. $550.00 due Dec. 1st, 1914. $800.00 due 1-16 H. tractor, 1st, 191 — . Said notes to draw interest at the rate of 6 per cent, per annum from date July 1, 1913, until maturity, and 7 per cent, per annum from maturity until paid.
“It is expressly agreed that this order shall not be countermanded, and that the title to said property shall remain vested in you and your assigns, until the entire purchase price has been paid in money.
“It is expressly agreed that the property herein ordered shall be and remain personal property in whatsoever manner it may be annexed to realty.
“The undersigned hereby acknowledge having received a true copy of this order. Agreement and warranty as indorsed on the back hereof.
“Security. Rives steam engine and water tank.
“Order. Dated the 4th day of Nov., 1912.
“Purchaser lives 2 miles east, 5 miles south, of said' post office.
“Approved at-by-.
“Taken by Walker & B. R. & Co.
“John Mishler.”

Upon the back of it appeared the following:

“Warranty and Agreement.
“International Harvester Company of America (Incorporated) warrants the within described engine to do good work, to be well made of good materials, and durable if used with proper care. If upon one day’s trial, with proper care, the engine fails to work well, the purchaser shall immediately give written notice to International Harvester Company of America, at Chicago, Illinois, and to the dealer from whom it was received, stating wherein the engine fails, shall allow a reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to- operate it. If the engine cannot then be made to work well, the purchaser shall immediately return it to said dealer, and the price paid shall be refunded, which shall constitute a settlement in full of the transaction.
“Use of the engine after three days, or failure to give written notice to said company and said dealer, or failure to return the engine as above'specified, shall operate as an acceptance of it and a fulfillment of this warranty. No agent has power to change the contract of warranty in any respect.
“This express warranty excludes all implied warranties, and said company and said dealer shall in no event be liable for breach of warranty in an amount exceeding the purchase price of the engine. If within 90 days’ time any part proves defective, a new part will be furnished on receipt of part showing defect.”

After the motion to strike out was granted, counsel for plaintiff said, “Under the circumstances we have no further testimony,” and the trial judge directed a verdict for the defendant. The case is brought here by writ of error.

The pivotal question in the case is whether the written contract should control. Counsel for appellant insist that the oral testimony was competent, and the case should have been submitted to the jury, citing in support of this contention Phelps v. Whitaker, 37 Mich. 72; Peck v. Jenison, 99 Mich. 326 (58 N. W. 312); Lyon v. Lindblad, 145 Mich. 588 (108 N. W. 969); and J. B. Millet Co. v. Andrews, 175 Mich. 350 (141 N. W. 578). A reading of those cases will show them distinguishable from the instant case in the particular that the contracts in those ca$es originated in fraud. The case now before us is more like Seitz v. Machine Co., 141 U. S. 510 (12 Sup. Ct. 46) ; McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286) ; and the recent case of Witteman Co. v. Malting & Brewing Co., 183 Mich. 227 (150 N. W. 109). We think these cases are controlling.

The judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Bird, J.

text:
    GRAND RAPIDS & INDIANA RAILWAY CO. v. MICHIGAN RAILROAD COMMISSION.
    1. Carriers — Petitions—Railroad Commission — Navigation Companies — Establishing Routes.
    Navigation companies are within the class entitled, under Act No. 300, Pub. Acts 1909, to mate complaint to the Michigan Railroad Commission praying for the establishment of through routes and joint rates for passengers hpon railroads between designated points, and the fact that the commission has no jurisdiction over water lines is immaterial.

    2. Same — Appeal and Error — Orders.
    Where the conclusion arrived at by the commission is justified by the testimony, this court will not, on appeal, substitute its judgment for that of the commission.

      3. Same — Railroad Commission — Injunction — Establishing Routes and Rates.
    In proceedings by a railroad company for tbe vacating of an order issued by the Michigan Railroad Commission for the establishment of through routes and joint rates by complainant and another railroad between points on both lines, where complainant’s line, after reaching a certain point, runs nearly at right angles to" the other railroad, and does not originate its trafile in the same general territory as the other road, the order of the commission will not be set aside on the ground that there is already a satisfactory route through the same territory.
    Appeal from Kent; McDonald, J.
    Submitted June 18, 1915.
    (Docket No. 107.)
    Decided September 28, 1915.
    Bill by the Grand Rapids & Indiana Railway Company against the Michigan Railroad Commission for the vacating of an order issued by said defendant, and other relief. Dudley E. Waters and Paul H. King, as receivers of the Pere Marquette Railroad Company, filed petition for leave to intervene as defendants. From a .decree for defendants, complainant appeals.
    Affirmed.

      James H. Campbell, for complainant.

      Parker, Shields & Brown (Seward L. Merriam and John C. Bills, of counsel), for interveners.

      Grant Fellows, Attorney General, and David H. Crowley, Assistant Attorney General, for Michigan Railroad Commission.

      Boudeman & Adams, for petitioner.

      As, to delegation to railroad commissioners of power to regulate carriers, see note in 32 L. R. A. (N. S.) 639.

   Bird, J.

James B. Balch, of Kalamazoo, filed his petition with the Michigan railroad commission, praying that an order be made requiring the Grand Rapids & Indiana Railway Company and the Pere Marquette Railroad Company to establish a through route and joint rate for passengers and baggage from Kalamazoo to Charlevoix. Subsequently the Detroit & Cleveland Navigation Company and the Northern Steamship Company filed petitions, asking that a through route and joint rate be made by complainant and the Pere Marquette from points south and east of Grand Rapids, on the Pere Marquette, to the city of Mackinaw. The applications were consolidated, and after a hearing thereon, at which the interested parties were present, the commission ordered:

“That said Grand Rapids & Indiana Railway Company and said Pere Marquette Railroad Company establish and make effective a through route and joint rate for the transportation of passengers and baggage to and from the station of Charlevoix, on the line of said Pere Marquette Railroad, and points south of the city of Grand Rapids, on the line of the Grand Rapids and Indiana Railway, with interchange at the stations of Bay View or Petoskey, and that said Grand Rapids & Indiana Railway Company and said Pere Marquette Railroad Company establish and make effective a through route and joint rate for the transportation of passengers and baggage from points south and east of the city of Grand Rapids, on the line of the Pere Marquette Railroad, north to the station of Mackinaw City, upon the line of the Grand Rapids & Indiana Railway, with interchange at the stations of Bay View or Petoskey.”

Complainant, being aggrieved at that part of the order which appears in italics, and which ordered it and the Pere Marquette to establish a through route to Mackinaw, filed its bill of complaint in the Kent circuit court, with the view of having it set aside as unreasonable and void. This proceeding resulted in a decree denying the relief prayed and dismissing complainant’s bill. On appeal several questions are raised, which, if well taken, will affect the validity of the order.

1. It is first insisted that the commission had no jurisdiction to make that part of the order which requires it to establish a through route, and joint rate from points on the Pere Marquette to Mackinaw City. It is asserted that the commission can act only on complaint, and that there was no valid complaint before the commission which would justify that part of the order. The part of the order objected to depends for jurisdiction upon the petitions of the Detroit & Cleveland Navigation Company and the Northern Steamship Company, and it is argued that the Michigan railroad commission has no jurisdiction of boat lines, and therefore their petitions are of no force; that they are the same as no petitions.

Section 22 of the Michigan railroad act (Act No. 300, Pub. Acts 1909) points out who may make complaint:

“Upon the complaint in writing of any person, firm or corporation or association, or of any mercantile, agricultural or manufacturing society, or any body politic or municipal organization. * * *”

Both of these navigation companies are within the class mentioned in this provision, and it. is of no importance that the commission has no jurisdiction over their business or over water rates. They are corporations. This fact gives them the right to make complaint. The business they are engaged in is immaterial, so far as their right is concerned to make complaint to the commission. The hearing disclosed, however, that they have an interest in having the railroads join in this through route and joint rate. This point we think is without merit.

2. The second contention is that the commission was without authority to make the order, because it was shown that there was at the date of the hearing a satisfactory through route from Grand Rapids to Mackinaw. The argument that complainant’s counsel makes on this question is open to criticism, in that it is based upon a wrong premise. His argument assumes that the order was made to apply to Grand Rapids, whereas an examination of it will show that it was not made to apply to Grand Rapids but made to apply to points on the Pere Marquette south and east of Grand Rapids to Mackinaw. So, then, the question which the commission really considered and decided was, not whether there was a satisfactory through route from Grand Rapids to Mackinaw City, but whether there was a satisfactory through route between Mackinaw City and points on the Pere Marquette south and east of Grand Rapids. Testimony was offered before both the court and commission bearing on this question. The train schedules of both roads were introduced, and explanatory testimony of the operation of trains was given by those having them in charge. The question was one of fact, and the testimony before the commission was sufficient to support the conclusion reached. If the conclusion arrived at by the commission finds justification in the testimony, this court will not substitute its judgment for that of the commission. Interstate Commerce Com’n v. Railroad Co., 227 U. S. 88 (38 Sup. Ct. 185) ; Detroit, etc., R. Co. v. Railroad Com’n, 171 Mich. 335 (137 N. W. 329).

3. The further argument is made by complainant in this connection that the question is settled in its favor by the case of Interstate Commerce Com’n v. Railway Co., 216 U. S. 538 (30 Sup. Ct. 417) ; the facts of which are said to bear close analogy to the ones involved here. In that case the commission made an order establishing a through route and joint rate for passangers and baggage on the Northwestern-Union Pacific lines, beginning with Colorado points and extending as far east as Chicago, to Seattle via Portland. The line from Seattle to Portland is owned and operated by the Northern Pacific. The Federal court set aside the order of the commission, on the ground that the Northern Pacific Railway was already operating a satisfactory route through substantially the same territory. The cardinal difference between these cases lies in the fact that in Interstate Commerce Com’n v. Railway Co., supra, the commission had established a second through route over lines which drew- their traffic from the same general territory that the Northern Pacific and Burlington lines do. As is well known, the Northwestern-Union Pacific lines are parallel with those of the Burlington and Northern Pacific, while in the case before us the Pere Marquette line, after leaving Grand Rapids, runs nearly at right angles to complainant’s line, and does not originate its traffic in the same general territory traversed by the complainant. In order to make the case under consideration analogous to the case cited, it would be necessary to make the Pere Marquette line parallel with complainant’s, with both drawing traffic from competitive territory.

We are all of the opinion that the commission, not only had jurisdiction in the premises, but was acting within its authority in making the order. The decree of the lower court is affirmed, with costs of this court to the defendants.

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

The late Justice McAlvay took no part in this decision.


text:
    SOLOMON v. WEINER.
    1. Names — Fictitious Names — Statutes—Set-off and Recoupment.
    In. an action to recover a claimed balance due for goods sold and delivered, where defendant admitted that he had not complied with the provisions of Act No. 101, Pub. Acts 1907, relative to persons doing business under an assumed or fictitious name, the trial court properly limited defendant’s recovery by way of set-off to what was necessary to wipe out plaintiff’s claim.
    2. Sanes — Contracts—Measure of Damages.
    Where plaintiff sold defendant scrap iron at a fixed price per ton and defendant objected to receiving certain castings because they were too heavy to handle, whereupon plaintiff instructed him to return them if he did not want them at the contract price, but instead of doing so he kept them and later sold them, the measure of damages was the contract price, and the trial court was in error in instructing the jury that defendant should account for them at what they were reasonably worth.
    Error to Calhoun; North, J.
    Submitted June 22, 1915.
    (Docket No. 92.)
    Decided September 28, 1915.
    Assumpsit in justice’s court by Moses Solomon against Norman Weiner, doing business as the Albion Iron & Metal Company, for goods sold and delivered. From a judgment for defendant in justice’s court,’ plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Merton Fitzpatrick and Wilbur D. Grommon, for appellant.

      Edward E. Loud, for appellee.
   Bird, J.

This suit was commenced by plaintiff to recover a balance of $70.50 which he claims was due him on certain consignments of scrap iron and waste paper sold-to defendant and shipped to him at Battle Creek. The case was tried in justice’s court, and after-wards on appeal in the circuit court. Judgment was denied to plaintiff in both courts. It is claimed that several errors occurred on the trial which entitle him to a retrial of the matter. '

1. The defendant pleaded the general issue and gave notice thereunder of set-off and recoupment. When he attempted to establish his set-off and recoupment, he was met with the objection that he was precluded from so doing by reason of his failure to comply with the provisions of Act No. 101, Pub. Acts 1907 (2 How Stat. [2d Ed.], § 2626 et seq.), relative to persons doing business under an assumed or fictitious name. Defendant conceded that he had not filed the affidavit required by the act, but insisted that such failure ought not to preclude him, when sued, from establishing the fact that he did not owe the plaintiff, or that there was no debt due. The trial court agreed with him, but held that he could recover nothing by way of set-off beyond what was necessary to wipe out the plaintiff’s claim. In other words, that, should the jury find a balance in defendant’s favor, no judgment therefor could be rendered in his behalf. While this court has denied to those making contracts in violation of this act the right to have them enforced in the courts (Cashin v. Pliter, 168 Mich. 386 [134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697]), we do not think the denial should go to the length of holding that, when such persons are sued, they may not show that they are not indebted as claimed. See Robbins v. Vandermeiden, 182 Mich. 674 (148 N. W. 747). It follows that the limitation fixed by the trial court upon the defendant’s right to make his defense was proper.

2. Error is assigned upon the following instruction:

“Incident to the car of iron and claim of the defendant relative to the four tons of castings that were rejected, I say to you that in the first instance the defendant, especially after he received the notice from the plaintiff which has been read in your presence relative to this item, did not have the right to keep the 8,000 pounds of heavy castings. It was his duty to return them to the plaintiff under the law and evidence in this case; but, since he has kept those castings, he must now account to the plaintiff for them in the amount that they are reasonably worth, and that you should determine from the evidence in the cas'e, it being claimed on the part of the defendant that the reasonable value of those was $7 a ton. The plaintiff claims that they should have been allowed to him at the amount of $12 a ton.”

It is conceded that the contract price for the cast iron scrap was $12 per ton, but it was claimed by the defendant on the trial that there were several tons of very heavy scrap, which could not be used by the Battle Creek foundries unless it was broken up, and the breaking would cost $5 a ton. There appears to have been no such exception made in the contract. Soon after the cars arrived at Battle Creek, the defendant claims that he notified the plaintiff with reference to the shortage in weights; but no exception was taken to the heavy scrap until some time afterward, when plaintiff was urging the defendant to make payment therefor. Defendant then made this claim, and plaintiff wrote defendant in substance that, if he did not want the heavy scrap at the contract price, he could return it at his (plaintiff’s) expense. In reply to this letter the defendant informed plaintiff that, if he wanted the heavy castings returned to him, he could come over to Battle Creek and load it upon the cars. Defendant did not return it to plaintiff, but later disposed of it.

Under these circumstances we think the trial court was in error in charging the jury that the measure of damages for the heavy castings was what it was reasonably worth in the market. It was conceded by the plaintiff that the contract called for heavy scrap, and that it was to be paid for at the rate of $12 per ton. When defendant protested that it was too large to be used by the foundries, the plaintiff ordered him to return it, if he did ijot want it at that price. Instead of doing so, he kept it, and later sold it. Under this state of facts the defendant must be held to have accepted the heavy scrap, and, if he did, it follows that he is liable for the contract price. Brown v. Harris, 139 Mich. 372 (102 N. W. 960). See, also, Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96) ; Williams v. Robb, 104 Mich. 242 (62 N. W. 352).

The other assignments of error are without merit.

The judgment will be reversed, and a retrial ordered.

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

The late Justice McAlvay took no part in this decision.


author: Ostrander, J.

text:
    JOHNSTON v. ELM COOPERAGE CO.
    1. Master and Servant — Personal Injuries — Evidence—Negugence — Directed Verdict.
    In an action by an employee to recover for tbe loss of an arm in defendant’s factory by a machine consisting of a swinging table with a circular saw working through a slit in the back and bottom which was put in operation by a lever, evidence that during the six months plaintiff had used the machine the lever had never failed to work, that a few moments before the accident the machine was performing its proper function, that no part of the apparatus had been constructed to support a person falling or slipping on the floor, and that at the time the accident happened plaintiff was not operating the machine, but was returning from carrying away some poles he had cut, when- he slipped and fell against the table, disengaging the lever, and was injured, did not show any negligent conduct of defendant, and its motion for a peremptory verdict should have been granted.
    2. Trial — Negligence—Instructions—Master and Servant.
    Where there was no evidence from which the jury could determine that the force applied by plaintiff in falling against the table was a greater strain than the device would receive in the ordinary conduct of the business, it was error for the trial court to submit that question to the jury.
    3. Master and Servant — Trial—Instructions—Duty of Master.
    The trial court was in error, in submitting the question of defendant’s liability to the jury, in limiting the question to the condition of the machine on the day in question and to the strain put upon it by plaintiff when he slipped and fell, as the true rule should be measured by the probability, and not the possibility, of an accident, and should be applicable in like circumstances if the device had been in use a day or a month, where an employee stumbled or fell, and, to save himself, grasped at, or fell against, machinery not up to some standard of efficiency.

    Error to Charlevoix; Mayne, J.
    Submitted June 29, 1915.
    (Docket No. 30.)
    Decided September 28, 1915.
    Rehearing denied April 21, 1916.
    Case by Earle H. Johnston against the Elm Cooperage Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      De Foe, Hall & Converse, and A. G. Urquhart, for appellant.

      M. E. Silverstein (Clink & Williams, of counsel), for appellee.

       For different forms of statement of general rule with respect to master’s duty as to places and appliances furnished to servant, see note in 6 L. R. A. (N. S.) 602.

   Ostrander, J.

Defendant introduced no testimony. That produced on the part of the plaintiff tended to prove that when injured he was 27 years old, and had worked for defendant, at its plant, from about August 1, 1911, to March 21, 1912, when he was injured by the cutting off of his right arm at the elbow. Excepting 8 weeks devoted to other duties, he had worked, most of the time, with the machinery and apparatus which inflicted the injury. This apparatus consisted of a circular saw, a swinging table, and a lever, and was used to cut the ends off of hoop poles. The swinging table, hanging from the ceiling, was about 5½ feet long, 18 inches wide, with a back 18 inches high — a platform with a raised back. In the back and floor of it was a narrow opening, or slit, to receive the saw. The lever was a piece of hardwood about 4 feet long, fastened at one end, back of the saw, by a bolt to the saw frame, or to an upright in the wall. When the table was affected by gravity only, hanging vertically from its supports, about 8 inches of the circumference of the saw showed through the slit in the back and bottom of it. In use it was pulled, or swung, forward, towards the operator, entirely free from the saw, and was held in this position by the lever, in the underside of which a notch had been cut, which would engage with the back of the table. The operator, the table being so held by the lever, laid upon it a bundle of poles, and, having arranged them, lifted the lever and pushed, or swung, the table against the saw until the poles were severed, when he swung it towards himself until the notch in the lever engaged the back of the table, when he removed, and carried away the poles. Whether the lever was always resting upon the back of the table and engaged the back automatically is not made clear, It is inferred that the engagement was automatic, but was aided, or made certain, by the operator. It is inferred that the table was swung forward by the operator, the lever riding upon the back of it, until, having passed the notch, it was released, and was held by the notch.

Upon the occasion when he was injured, plaintiff had sawed some poles, pulled the table into the position where it was held by the lever, removed the poles, and taken them away. Returning, he slipped, why or upon what does not appear, and, in an effort to save himself from falling, caught at, or struck, or fell upon or against, the table in such manner as to disengage the lever and cause the table to swing back upon the saw, severing his arm. In the time that plaintiff had operated the table, the lever had never failed to hold it until released by the operator. But it had, when operated by others, or by another, been disengaged upon some occasions by the jar of machinery and by throwing upon the table loads of poles. The extent of the vibration caused by machinery upon such occasions, the size of the load of poles cast upon the table and how thrown down, the manner in which action of the device was secured — whether automatic or otherwise — are not explained. Long use had worn the lever, and, instead of an opening going squarely into the wood, the portion against which the back of the table rested when held by it was not flat, but was curved. Instead of 'an inch of lever substantially parallel with the back of the table when holding it in place, there was but about half an inch which really engaged the back of the table. It also had a lateral motion of some 5 or 6 inches, owing to the play it had upon the bolt which held it at its end.

The court submitted to the jury whether it was negligence for the defendant to continue the use of the lever in its described condition, and instructed them that the employer could not be held to supply a device which would under any and all conditions hold the table away from the saw. Instructed them, also, in effect, that if they found that in slipping and in his effort to save himself plaintiff did not subject the table to a greater force, or jar, than it would receive in its ordinary use, plaintiff might recover. The theory of the charge is that the employer was not responsible if the weight or pressure or disturbance exerted was greater than the apparatus was intended to bear or sustain, but otherwise might be held liable. To quote:

• “Now, gentlemen, one of the things in this case that you must determine is: Was this a reasonably safe machine? In other words, as it was constructed and as it stood there on the day in question, was it reasonably safe? Would it stand the strain, the jar or shock usually put upon it, and that was intended to be put upon it, and must necessarily be put upon it, in the actual running of the business, as it was actually then operated by the defendant? If it was strong enough to stand that strain, then the defendant has met its full duty in the case. If the plaintiff, when he slipped, placed an unusual or extraordinary strain, shock, or jar upon this machine — outside of and beyond that which it would receive in the actual working of each day — then he cannot recover, because the machine was subjected to a test that it was not intended to stand, beyond the working test as I have given it to you.”

It will be noted that the lever and its action were simple. It was not a safety device, but a convenience, a part of the apparatus useful in operating the saw, as was the table and its supports. If the empty table was disengaged while the saw was running, no harm could result; and at the moment before plaintiff was injured the device was performing, as it had performed for the 6 months or more that plaintiff had operated the saw, its proper function. It was holding the table in position to receive another bundle or armful of poles. Plaintiff was not injured while operating the saw. It was as though another workman had, in passing, slipped, caught the table, and been injured. No part of the apparatus had been constructed, nor was it maintained, to support a person- falling, or slipping on the floor.

The motion of defendant for a peremptory instruction should have been granted. There was no evidence from which the jury could determine that the force applied to the table by plaintiff, or the blow it received, was a greater strain upon the device than those it would receive in the actual ordinary conduct and management of, the business. Again, the rule given to the jury for determining defendant’s liability is wrong. The rule was applied after the device had been some time in use. If it is a proper rule, it would be applicable, in like circumstances if the device had been in use a day or a month. It would be applicable in any case where an employee stumbled or fell, and, to save himself, grasped at, or fell against, machinery not up to some standard of efficiency, which gave way, and so did not save him from, or did expose him to, serious injury. We said in Schroeder v. Car Co., 56 Mich. 132, 134 (22 N. W. 220, 221) :

. “The fact of injury and the possibility of guarding against it do not necessarily make out a case of culpable negligence. Very few acts in life are done with such care to prevent accidents as would have been possible; and the law only requires of any one that degree of care and prudence which persons who are reasonably careful ordinarily observe.”

And in Johnson v. Jackson, 168 Mich. 149, 154 (133 N. W. 945, 947), we said:

“Defendant’s duty in the premises is to be measured by probabilities — not by the possibility that the lever could be released in the manner suggested by counsel, but by the probabilities that any employee in the performance of duty in the place in question would ever in such a way release the clip and the lever.”

Plaintiff is most unfortunate, but his injury cannot be ascribed to the negligent conduct of his employer.

The judgment is reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.