text:
    LONIER v. ANN ARBOR SAVINGS BANK.
    1. Principal and Agent — Implied Authority — Bills and Notes — Indorsement.
    A traveling salesman having authority to collect accounts has no authority thereby to take a note in payment of an account and negotiate the paper at a bank by indorsing his employers’ names.
    2. Same — Negotiable Instruments — Trover and Conversion,
    In trover for the conversion of a promissory note claimed to belong to plaintiffs whose salesman indorsed their names and negotiated the paper at a bank, the case should be submitted to a jury upon testimony of defendant’s witnesses that the paper was not discounted by the bank, but a loan was made on it to the maker direct; it also appearing that the cashier of the bank supposed he was dealing with one of the plaintiffs instead of their salesman.
    Error to Washtenaw; Kinne, J.
    Submitted April 8, 1910.
    (Docket No. 37.)

    Decided September 27, 1910.
    Trover by Louis Lonier and William J. Hoffer, copartners as Lonier & Hoffer, against the Ann Arbor Savings Bank. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      A. jF. & jF. M. Freeman, for appellants.

      B. M. Thompson and Arthur Brown, for appellee.
   Moore, J.

This is an action of trover against the defendant for the unlawful conversion of a promissory note in which the plaintiffs were named as payees, which, it is claimed by them, was unlawfully indorsed by their traveling salesman and collector. The case has been here once before and is reported in 153 Mich. 253 (116 N. W. 1088). A reading of the opinion then filed will make a long statement of facts unnecessary at this time.

Upon the second trial, there was less inconsistency in the testimony of Mr. Heusel than upon the first. It is the claim of defendant that, upon this trial, there was no inconsistency in his testimony. Upon the second trial, the cashier of the bank was sworn as a witness. He testified in substance that the loan was made to Mr. Heusel. In addition to this he testified in part as follows:

“I wrote the note that was made that day. After it was written I handed it to Samuel Heusel. He stepped over to the other gentleman at the customer’s desk on the south side of the bank, and in the meantime I went to the teller’s cage and got the money, and, when I came back, the note was there, and I also canceled the $500 note, and put it with the money in front of Mr. Heusel. He took the note itself, and paid the currency over to this man. I cannot recollect that I had any conversation with this other man.”

On the cross-examination he testified in part as follows:

<t* * * j said ^hat Mr. Heusel came down to the bank and wanted some money, and he stated that he had a bill to pay Lonier & Hoffer. He had money enough to pay $400 on the $590 note. He said he wanted to borrow $367.29. That was the amount he owed Lonier & Hoffer as I understood it at that time, and he wanted to get money enough to pay that. He said, ‘ I want to borrow this money from the bank.’
“Q. Why did you write the name of Lonier & Hoffer in that note ?
“A. I wrote it in there. In the first place, I took a note for $190 in Lonier & Hoffer—
Q. That is on the other matter ?
“A. And, that note being in my presence and the bill before me for $367.29, I wrote the name of Lonier & Hoffer in there, and handed this note back to Mr. Heusel, and I supposed at the time that this man was a member of that firm — he procured that indorsement, they took it away from my desk. I did not. Mr. Heusel brought it back to me with the indorsement on.
Q. You wrote that note up then just as Mr. Heusel told you to, to Lonier & Hoffer, didn’t you ? You wrote the note?
“ A. I wrote the note.
Q. And you followed his directions, saying that it was to pay a bill of Lonier & Hoffer, and this note was to run to Lonier & Hoffer ?
“A. I don’t know as he said that.
Q. He must have said it, or you would not have written it. You did not know Lonier & Hoffer unless Mr., Heusel told you who they were.
“A. I did not know this man. I had known of the> name of Lonier & Hoffer before. I don’t think Heusel. stated, ‘This is to pay this bill,’ and I drew the note im favor of Lonier & Hoffer. I probably wrote the name of Lonier & Hoffer more to show that Sam Heusel had paid that bill than for any other reason. I don’t think Heusel instructed me to write it in. I knew what to write because I had the old note before me. I had the bill before me, and I supposed this man whose indorsement he secured was a member of the firm.
“Q. So that, when he indorsed, you would have a genuine indorsement ?
“A. I did not care anything about an indorsement. I made the loan to Mr. Heusel. Yes, sir; it is true that I knew the minute I wrote the name of Lonier & Hoffer in the note I would have to have the indorsement of Lonier & Hoffer. The maker procured the indorsement, and I did not go any further. I supposed that it was Mr. Hoffer standing there, I thought I was going to get his genuine indorsement. I handed the note to Heusel, and he procured the indorsement. It seemed they talked the matter over before. No; sir; if the note was to run to the Ann Arbor Savings Bank, it would not have Lonier & Hoffer’s. name.
“Q. So you handed him the note then for the purpose of getting Lonier & Hoffer’s signature ?
“A. And for himself to sign. We got the signature. I did not ask it because Mr. Heusel got this indorsement himself. I did suppose it to be correct. I think it has turned out that this was not Hoffer, but Donaldson. No; this man (pointing to Mr. Hoffer) is not the man who was there. No; Mr. Hoffer is not the man who stood there at all. It has turned out that it was Donaldson. I simply thought that, if the maker of the note procured the indorsement of the payee, I would look no further. If he was satisfied that was an indorsement of the paper, I certainly was. I presume I became satisfied that I had the indorsement of Lonier & Hoffer. Yes, sir; I have taken thousands of notes in behalf of the Ann Arbor Savings 'Bank; not always when taking such do I make the bank ;payee in the note. Yes; sometimes I make somebody 'else. They are required to be indorsed. Sometimes we have an indorser. No, sir; if Sam Heusel comes in and asks for a loan, I don’t put somebody’s else name in it. Yes, sir; I put the Ann Arbor Savings Bank in as payee. That is the universal custom except when he offers an indorsement.”

At the conclusion of the case a motion was made to direct a verdict for defendant. In disposing of the motion the judge stated, among other things, as follows:

There are two propositions that it seems to me ought to control it. The testimony is undisputed that the agent here of the plaintiff, Mr. Donaldson, had full authority to sell goods, the property of the plaintiffs, and to make collections, and, as I remember the testimony in this particular case as far as this particular bill is concerned, owing by Mr. Heusel, the matter was placed in his hands with full authority to collect. It seems to me that under those circumstances the law of agency must be that he would have the right to negotiate this paper even if it had been given by Mr. Heusel to the agent. The agent would be justified in taking that to the bank and having it discounted. It seems to me that must be the law as to implied authority in the absence of any knowledge coming to the bank of any restrictions upon his powers. It seems to me that would be the controlling law in this case, and I so suggested, but the Supreme Court did not pass upon that. But there seemed to be on the other trial some inconsistency in the testimony of the plaintiffs as produced by Mr. Heusel, and the testimony of the cashier was not offered on the other trial. Now, the testimony of Mr. Heusel is produced, and it is entirely consistent. His statement is that this was a loan made by the bank to him, to nobody else, that this note was not discounted by the bank. There is no dispute about that. And the cashier is now introduced whose testimony is also uncontradicted and undisputed that this was a loan made by the bank to Mr. Heusel and nobody else, that they did not discount this paper” — and thereupon directed a verdict for defendant.

As appears in the former opinion, it was claimed by plaintiffs that, while their traveling salesman had authority to make collections, he had no authority to indorse and discount paper for them. We think it cannot be said that, because he had authority to make collections, this gave him authority, by implication or otherwise, to indorse the names of his employers to notes, nor to negotiate notes given to them.

As to the second proposition, it is true the cashier testified the loan was made to Mr. Heusel, but he also testified that the payees named in the note were the plaintiffs, and that he supposed when Mr. Donaldson indorsed the note that it was in fact Mr. Hoffer, one of the plaintiffs. This, taken with all the other testimony taken in the case, left the case where it could not be disposed of as a matter of law.

Judgment is reversed, and new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    HINKLEY v. WABASH RAILWAY CO.
    Railroads — Negligence—Crossing- Accidents.
    It was proper to submit to a jury the respective claims of negligence and contributory negligence in the injury of plaintiff at a railroad crossing, at which plaintiff claims the occupants of her conveyance stopped and listened some distance from the track, and then proceeded with care, still looking and listening after the pause, but were struck by a train running at an excessive rate of speed, which failed to give the statutory signals: the testimony of either party being in dispute, and defendant claiming that the driver of the vehicle should have stopped at a different place where the highway crossed an adjacent parallel railroad track and the view was unobstructed.
    Error to Lenawee; O’Mealey, J.
    Submitted April 11, 1910.
    (Docket No. 56.)
    Decided September 27, 1910.
    Case by Ida B. Hinkley against the Wabash Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      Fellows & Chandler, for appellee.
   Moore, J.

On the morning of February 17, 1907, the plaintiff and her mother started to go from their farm to the city of Adrian in a single buggy. The horse was driven by Mr. Stamp, who worked the farm. He sat upon a blanket rolled up, which was placed between the two women, so he was a little higher up than they were. The highway ran north and south and crossed the tracks of the Detroit, Toledo & Ironton Railroad, and the defendant road, near Madison Center. The conveyance was going north. It passed over the track of the Detroit, Toledo & Ironton Railroad, and the horse had passed the track of the defendant road, when a train coming from south of west struck the buggy and killed Mr. Stamp and the mother of the plaintiff. The plaintiff received injuries at this time, because of which she sued defendant and recovered a judgment, which is brought here for review by writ of error.

Counsel say in their briefs that only one error is urged, and that is the contributory negligence of plaintiff. Their claim is tersely stated in their brief, as follows:

If the plaintiff, her mother, and the driver had looked at a time when to have looked would have been effective, they could have seen the train and avoided being injured; that the view was absolutely clear while they drove more than 40 feet. Therefore it is conclusively established that, whatever she may say about having looked and having listened, this court must say that she did not look with that attention or listen with that care which she should have done for her own safety, and that therefore she cannot recover. * * * And we insist that since there can be no other eyewitnesses to the accident, and that the plaintiff has stated all that she knew, she says, or can remember, and that the situation and evidence cannot be changed without taking a position contrary to the one taken by her in her testimony, that the case ought to be reversed without any new trial.”

The serious question is not so much a question of law as one of fact. The printed record contains upwards of 200 pages. In addition to the oral testimony, many photographs, some blueprints, and some tracings, were offered in evidence. It is manifest that a detailed statement of the evidence cannot appear in this opinion. It is the claim of the plaintiff that the horse, which was a spirited one, but a gentle one, was stopped at the hay scales in the highway south of the railway crossing; that all the persons in the carriage looked and listened; that they heard and saw nothing of a train. It is her claim that this was the proper place to stop, look, and listen, and that the view from that point until the depot was passed was obstructed by an outbuilding, by a coal shed, by cars on a siding, and by the depot itself; that by the side of the depot was a platform, by the si,de of that the track of the Detroit, Toledo & Ironton Railroad, and 18 feet from this track and parallel to it is the track of the Wabash road where the accident happened. It is the further claim that, from the time the carriage was stopped until it was struck, its inmates continued to look and listen; that it was unreasonable to ask that the conveyance should be stopped after it passed the station, because this would require it to stop on the track of another railroad, and too near the defendant road; that the train was running 60 miles an hour or more; and that no statutory signals were given. On the part of the defendant, it is claimed that there was a place between the-scales and the depot where an approaching train could have been seen. It is denied that the train was running at a high rate of speed. It is claimed the statutory signals were given, and that plaintiff was guilty of contributory negligence, in that the conveyance was not stopped after the depot was passed, even though it was stopped on a railroad track which it was claimed by defendant was 30 or 35 feet from the Wabash track.

There was testimony given tending to sustain the diverse claims of the parties, but the testimony abounded in contradictions. We think, in view of the contradictory testimony, that the question of contributory negligence was a proper one for the jury. See Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Corbs v. Railroad Co., 144 Mich. 73 (107 N. W. 892); Wilbur v. Railroad Co., 145 Mich. 344 (108 N. W. 713); and the many cases cited in the opinions in those cases.

Judgment is affirmed.

Ostrander, Hooker, MoAlvav, and Brooke, JJ., concurred.


text:
    VERMONT MARBLE CO. v. SPAFFORD.
    Receivers — Partnership—Executors and Administrators.
    Creditors of a partnership are entitled to the appointment of a receiver of the firm assets where, after the death of one partner, the other continued the business and made a contract with the heirs of the deceased partner, conveying to them his interest in the business which they continued until after the decease of the survivor, and where they subsequently procured the appointment of an administrator of the estate of the first deceased partner and turned over to him all the firm assets.
    Appeal from Eaton; Smith, J.
    Submitted April 14, 1910.
    (Docket No. 112.)
    Decided September 27, 1910.
    Bill by the Vermont Marble Company against Charles D. Spafltord and others for an accounting and for the appointment of a receiver. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Elmer N. Peters, for complainant.

      Lyman D. McCall, for defendants.
   Moore, J.

The following statement of facts was prepared in the main by counsel for appellant; but it is borne out by the record: The complainant is a corporation organized under the laws of the State of Vermont. For several years previous to the 7th day of November, 1905, George W. Loomis and Richard Venn were copartners and engaged in business; the firm name being Loomis & Venn. In November Mr. Loomis died. At the time of his death the firm was indebted to various people, and .owed the complainant $896.56, which still remains unpaid.

The surviving partner, Richard Venn, did not wind up the partnership business, but continued to carry it on under the firm name of Loomis & Venn, with the consent and assistance of Adeline E. Loomis, widow, and Richard N. Loomis, son, of George W. Loomis, deceased. The last-named persons until the 1st of May, 1909, took part in the management and helped to conduct the business; Mrs. Loomis contributed some money, the amount as claimed by her being 1336.65, and Richard N. Loomis contributing his personal services. In May, 1907, Richard N. Loomis and Adeline E. Loomis, parties of the second part, and Richard Venn, party of the first part, entered into a contract in writing, by the terms of which Mr. Venn conveyed to Mrs. Loomis and her son all of his interest in the partnership property—

“Now in and about the store and business occupied and used by the parties hereto in carrying on their business of manufacturing and selling monuments in the city of Charlotte.”

By the terms of this agreement Mr. Venn, who was the father of Mrs. Loomis, was to be paid $12 a week during his life, and was to have in effect the right to assist and advise in the management of the business; and Mrs. Loomis and her son were to pay all of the firm debts, and, upon the death of Mr. Venn, and the performance of these conditions, were to be the owners of the property. The contract contained a mortgage clause to secure the performance of the terms of the contract. Mrs. Loomis and her son went into possession of the property under this agreement and continued in possession until about the 9th day of December, 1908. July, 1908, Richard Venn died. After his death Mrs. Loomis and her son continued in possession of the property, claiming to be the owners thereof under their contract with Mr. Venn.

After the death of Mr. Venn and on the 28th day of July, the defendants Richard N. Loomis and Adeline E. Loomis caused their attorneys to write letters to all of the creditors of the firm of Loomis & Venn, claiming to have been the partners of Venn in the firm of Loomis & Venn, and claiming also to own Venn’s interest in the firm business by virtue of their contract and to have performed all of the conditions of the contract except the payment of the firm debts, and asking creditors to forbear presenting claims against the estate of Venn and to grant to the Loomises an extension of time. .The complainant in this case received one of these letters and agreed to withhold any action to enforce collection of their claim. On the 30th day of November, 1908, Adeline E. Loomis filed a petition for administration of the estate of George W. Loomis, deceased, and on the 9th day of December, 1908, one O. E. Packard was appointed special administrator of this estate; Richard N. Loomis and Adeline E. Loomis at once turning over to Packard all of the property then in their hands connected with the partnership business that had been conducted under the firm name of Loomis & Venn. On the 11th day of January, 1909, O. E. Packard, special administrator, turned this property over to Charles D. Spafford, who had been appointed general administrator of the estate of George W. Loomis. This property has been treated by both of the administrators as a part of the separate, individual estates of George W. Loomis, deceased, and Richard Venn, deceased. It was inventoried as such by the defendant Spafford, and all of it, with the exception of book accounts, was sold by Spafford under an agreement with Jordan, administrator of the Venn estate, for the sum of $1,750, and was divided equally as per previous arrangements between these two administrators; and the defendants Spafford and Jordan claim the right to hold this property as belonging to each of these two estates in equal shares, and assert that they expect to distribute it among creditors under an order of the probate court after paying the expenses and whatever allowances may be made for the widows of said partners. The total amount or value of this property that has come into the hands of these two administrators, as claimed by them in paragraph 25 of their answer, is the sum of $1,880, in addition to which they claim there is about $566.96 in book accounts, estimated to be worth 50 cents on the dollar. A part only of the firm debts is shown by this record, of which $1,388.48 is owing to the complainant. The other indebtedness shown by this record, brings the total up to about $3,773.56, which is several hundred dollars in excess of the total amount of the assets in the hands of the administrator. From the time of the death of George W. Loomis until the property was turned over to the special administrator of his estate, this business was conducted as a going business. After the agreement between Mr. Venn and defendants Richard N. and Adeline E. Loomis, in May, 1907, goods were sold, bought, and retailed in the regular way. Some of the old debts had been paid, and new obligations incurred, and the stock was larger at the time Packard took possession of it than it was on the 1st of May, 1907, the date of the contract between Venn and the Loomises.

This bill of complaint was filed for the purpose of having a receiver appointed who should take charge of the assets and distribute them among the creditors of the firm of Loomis & Venn. The trial judge was of the opinion that the various shifts that were made in the business was in effect a continuation of the business of the old firm of' Loomis & Venn, and in no way affected the rights of the creditors of that firm. He further expressed himself as-follows:

“I cannot see how complainant, or other creditors, can be harmed by permitting the probate court to close up and settle these estates. The property involved, viz., the avails of the sale of stock, book accounts, etc., in my view of the case is partnership property, subject only to partnership debts, and it is not to be inferred that illegal, claims will be proven and allowed to stand as claims against the said fund of these estates, in the probate court.”

He made a decree dismissing the bill of complaint. The case is brought here by appeal.

Counsel for defendants in his brief says:

“ I shall take up but little space in discussing this most extraordinary case, for the reason that the complainant is contending in principle for the same thing that the defendants Spafford and Jordan are; that is, that this fund now in their hands is a fund belonging to the creditors of the late firm of Loomis & Venn and which they intend to so treat if they can be permitted to do so.”

There is no serious dispute about the facts. It very clearly appears that, treating all these funds as assets of the firm of Loomis & Venn, there will not be sufficient to pay the creditors of Loomis & Venn. This being the situation, it is difficult to see how there is any fund which, belongs to the administrator of George W. Loomis, deceased, as an individual, or to the administrator of Richard Venn, deceased, as an individual. It is also difficult to see how claims of the creditors of Loomis & Venn can be presented and allowed in the probate court against the individual estate of George W. Loomis or against the individual estate of Richard Venn. We think a receiver should have been appointed as prayed. See Malone v. Malone, 151 Mich. 680 (115 N. W. 716).

The decree is reversed, with costs. A decree may be entered in accordance with the opinion.

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


text:
    MARQUETTE COUNTY SAVINGS BANK v. KOIVISTO.
    1. Fraudulent Conveyances — Sales in Bulk.
    The sale of a stock of merchandise in bulk, without a compliance with the statute requiring notice to the creditors of the vendor, and the making of an inventory, renders the vendee liable to the creditors of the vendor as a receiver. Act No. 223, Pub. Acts 1905.
    2. Same — Good Faith — Ignorance op Law.
    It is immaterial that the purchaser of the stock was ignorant of the requirements of the statute.
    3. Same — Estoppel—Waiver.
    Two years’ delay by a creditor, which has not received the statutory notice, does not estop it from acting under the provisions of the “sales in bulk act,” unless the purchaser has changed his position in .reliance on the conduct of the cred. itor, even though an oral statement had been made to the creditor that the transfer had taken place.
    4. Same — Waiver.
    A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.
    5. Same — Banks and Banking — Deposit—Principal and Surety.
    The fact that a bank which holds a note of the vendor failed to set off a deposit of the vendor against it, but permitted him to check it out, does not discharge the vendee from his liability under the statute.
    Error to Marquette; Stone, J.
    Submitted April 14, 1910.
    (Docket No. 95.)
    Decided September 27, 1910.
    Garnishment proceedings by the Marquette County Savings Bank against Matti Koivisto as garnishee of Adam Nangas. A judgment for plaintiff on a verdict directed by the court is reviewed by the garnishee on writ of error.
    Affirmed.

      G. jF. Button (M. J. Sherwood, of counsel), for appellant.

      George P. Brown, for appellee.

       As to statutory requirements on sale of stock of goods in bulk, see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.) 331; note to Young v. Lemieux (Conn.), 20 L. R. A. (N. S.) 160.

   Moore, J.

This is an action of garnishment by which the garnishee defendant is sought to be held liable for the debt of the principal defendant to the plaintiff, under the terms of the so-called ‘ ‘ sales in bulk act ” (Act No. 228, Pub. Acts 1905), which provides that sales of stocks of merchandise, etc., otherwise than in the ordinary course of trade, etc., shall be void as against the creditors of the seller, unless the seller shall make at least five days before the sale a detailed inventory showing the cost price, etc., and the purchaser demands and receives of the seller a certified list, under oath, of his creditors, and shall at least five days before taking possession or paying for stock notify personally or by registered mail, every creditor contained in the list, or of which he has knowledge, of the proposed sale and the price, terms, and conditions thereof. From a judgment in favor of plaintiff the defendant has brought the case here for review.

On the 20th day of February, A. D. 1906, Adam Kan-gas sold his stock of groceries to the garnishee defendant. The defendant took possession of the stock at once, and has continued the business in his own name. At the time of this sale the terms of the act were not observed. The purchase price was $2,000. The final payment of $192.27 was not made until March 13, 1906. It is claimed this was about two weeks after the plaintiff had knowledge of the sale. The plaintiff, however, claims it had no knowledge of the details of the sale. At the time of the sale Mr. Kangas was a depositor at the plaintiff’s bank, and also owed the plaintiff $351.50 upon a note which came due the day of the sale. The plaintiff’s cashier testified that at the time of the sale, and on the opening of business on this day, the deposit balance was $163.12. In each instance, when the renewal notes were given, the old note was canceled and delivered to the maker. Both the principal and garnishee suit was commenced in the court below on the 21st day of February, 1908. The trial judge found that the garnishee defendant did not know that the principal defendant owed the plaintiff’s bank anything until demand was made upon him for its payment just prior to the beginning of the suit. He also found that the garnishee defendant was a good-faith purchaser of this stock of goods, except as the sale was affected by the sales in bulk statute. The garnishee defendant offered to prove that at the time of his purchase he knew nothing about this sales in bulk statute, but the court below refused to allow such proof, claiming that the same was immaterial. On the 27th day of February, 1906, the principal defendant paid $151.50 on the note due on the 20th day of February, and gave a new note for the balance of $200 to become due March 22, 1906. On the morning of the 27th day of February, 1906, the principal defendant had on deposit with the plaintiff bank $316.88. On March 28, 1906, the principal defendant paid $100 and the accrued interest upon said note, which became due on March 22, 1906, leaving a balance due the plaintiff of $100, for which indebtedness he gave a new note dated March 22, 1906, to become due in 30 days, which is the note upon which the judgment in the principal case was rendered.

It is the claim of defendant that the sale is not void, but voidable. It is further claimed:

“Our position is that it is the creditor whose debt existed at the time of the sale, who is protected by this statute, and that a creditor who, after knowledge of the sale, wipes out the old debt and accepts part payment from his debtor, and a new obligation for the balance, thus extending the time of payment of his debtor, is not such a creditor as is contemplated by this statute.”

It was further claimed that defendant was a good-faith purchaser, as he knew nothing of the statute; that plaintiff should have acted promptly, and not rested on his rights. It is further claimed that, as Mr. Nangas told plaintiff he had sold out to defendant, this accomplished the purpose of the statute. We quote from brief:

“When a creditor receives an oral notice from the purchaser, and if he thinks that this notice is not full enough, we do not think this statute would allow him to wait for a period of years, and then attack the sale on the ground that the notice was not complete under the statute, but rather that the duty would devolve upon him (the creditor ) to demand from the purchaser the particulars of the sale required to make the notice full and complete; and, if the creditor at the time of the notice, or subsequently within a reasonable time, does not ask for such fuller and more complete notice, he must be deemed to have waived the same.”

That part of the statute material to the discussion reads as follows:

“ Section 1. The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or the merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferror or assignor, shall he void as against the creditors of the seller, transferror, or assignor, unless the seller, transferror, assignor, and purchaser, transferee and assignee, shall at least five days before the sale, make a full detailed inventory, showing the quantity and, so far as possible with exercise of reasonable diligence, the cost price to the seller, transferror and assignor of each article tobe included in the sale; and unless the purchaser, transferee and assignee demands and receives from the seller, transferror and assignor a written list of names and addresses of the creditors of the seller, transferror and assignor, with the amount of indebtness due or owing to each, and certified by the seller, transferror and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser, transferee and assignee shall, at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.
“Seo. 2. Any purchaser, transferee or assignee, who shall not conform to the provisions of this act, shall, upon application of any of the creditors of the seller, transferror or assignor become a receiver and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment: Provided, however, That any purchaser, transferee or assignee, who shall conform to the provisions of this act, shall not in any way be held accountable to any creditor of the seller, transferror or assignor, or to the seller, transferror or assignor for any of the goods, wares, merchandise or fixtures that have come into the possession of said purchaser, transferee or assignee by virtue of such sale, transfer or assignment.”

The language of the statute is clear and unambiguous. Its construction has been before this court. In Spurr v. Travis, 145 Mich. 721 (108 N. W. 1090, 116 Am. St. Rep. 330), its validity was sustained. This decision was cited with approval in Farrar v. Coal Co., 149 Mich. 118 (112 N. W. 726). The act was again before the court in Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409); where it was held that the act was valid, and that the garnishee process might be used. The contentions of counsel for defendant which have heretofore been stated are so ably discussed and met by the opinion of the trial judge that we cannot do better than reproduce it here. We quote:

“ That Koivisto did not conform to the provisions of said act is very plain. Action has been taken by the plaintiff as a creditor of the seller. This renders Koivisto a receiver, and makes him accountable to the plaintiff, unless the plaintiff has waived its rights, or by its conduct become estopped from invoking this statute. It is clear that if the creditor does not make application, or set the provisions of the statute in motion, then he waives his right. But this plaintiff has acted. When must the creditor move ? It is evident that he must act within the five days when the purchaser has conformed to the provisions of the act, for when the purchaser has so acted he ‘ shall not in any way be held accountable to any creditor, or to the seller for.any of the goods that have come into his possession by virtue of such sale.’
“ I hold it not material for Koivisto to show that he was ignorant of this law. Suppose that both parties were ignorant of it, would that change their relation to it, or to each other ? I think not.
“But it is urged that the plaintiff by its silence for two years should be held to have waived its rights, and to be equitably estopped from taking these proceedings. It never received the notice contemplated by the statute. It is true that Kangas informed it that he had sold out, and that Koivisto was in possession. It never had notice of the price, terms, or conditions of the sale. It does not seem to me that Koivisto is in a position to invoke the doctrine of an estoppel. He did not pay over his money to Kan-gas and take possession of the stock relying upon the validity of Kangas’ notice to the plaintiff, for he had no knowledge or notice of it. His position has not been injured by this delay of the plaintiff to garnish. Had the plaintiff by its conduct or language induced Koivisto to part with his money, another question would be before us. It is the essence of an estoppel that the person claiming its benefits was induced thereby to do the thing he did. One who has not changed his position in reliance on conduct or statement may not set it up. State Sav. Bank of Ionia v. Montgomery, 126 Mich. 327 (85 N. W. 879); Hubbard v. Shepard, 117 Mich. 25 (75 N. W. 92, 72 Am. St. Rep. 548); Lilly v. Townsend, 110 Mich. 253 (68 N. W. 136); Maxwell v. Bridge Co., 46 Mich. 282 (9 N. W. 410). There can be no estoppel unless a party is misled to his prejudice by the one against whom it is set up, and does material acts relying upon the conduct well calculated to mislead him. Murray v. Rugg, 116 Mich. 519 (74 N. W. 878); Palmer v. Williams, 24 Mich. 328; De Mill v. Moffat, 49 Mich. 125 (13 N. W. 387); Meisel v. Welles, 107 Mich. 453 (65 N. W. 289). Had the plaintiff by anything it said or did induced Koivisto to pay over his money, then it could not assert a claim inconsistent with its conduct; but there is no such case before us. Neither do I see how the doctrine of waiver can be invoked by the garnishee. An implied waiver is akin to estoppel in pais. It is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right. 29 Am. & Eng. Enc. Law (2d Ed.), p. 1091. Bishop on Contracts, at section 792, says:
“ ‘Waiver, in a general way, may be said to occur whenever one in possession of a right conferred either by law or by contract, and, knowing the attendant facts, does or forbears to do something inconsistent with the existence of the right, or of his intention to rely upon it, in which case he is said to have waived it, and is es-topped from claiming anything by reason of it afterwards. United Firemen’s Ins. Co. v. Thomas, 27 C. C. A. 42, 82 Fed. 406 (47 L. R. A. 450).’
“Noivisto did not comply with the provisions of the statute in question. It cannot be said that the plaintiff had full knowledge of all of the facts of this sale, of the price, terms, and conditions thereof. A thousand conjectures might be indulged why it did not act. It may-have supposed that the terms of the sale were such that it would be protected. It may have been willing to rely upon the ability and willingness of Nangas to pay it. Would it thereby be precluded from the right to sue Nan-gas, and garnish anybody who held property as a receiver, and was accountable to it ? Certainly not. < So it seems to me that Noivisto cannot successfully invoke either the doctrine of estoppel or of waiver.
“ I do not think that there was anything in the condition of the bank account of Nangas with the plaintiff which made it the duty of the bank to set off the amount of the note against the deposit indebtedness, for the reason, if none other existed, that the deposit account did not equal the amount of the note indebtedness at maturity at any time. But we may go a step further. Even treating Noivisto as a surety, there would be no such duty upon the bank even had the deposit account been larger. In the well-considered case of Davenport v. State Banking Co., 126 Ga. 136 (54 S. E. 977, 8 L. R. A. [N. S.] 944, 115 Am. St. Rep. 68], it was held that the mere fact that a bank which is the owner of a note upon which there is a surety is at its maturity indebted upon general deposit account to the principal upon the note in a sum larger than that due upon the note, and fails to exercise the right to set off the amount of the note against this deposit indebtedness, and allows the deposit to be checked out by such depositor, does not discharge the surety on the note. So, in any view of the case which I am able to take, I think that upon the undisputed evidence the plaintiff is entitled toa verdict in this case.”

The judgment is affirmed.

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


text:
    SKEELS v. SNOW.
    1. Trial — Appeal and Error — Findings op Fact and Law.
    Where a case is tried by the court without a jury, and he makes findings of fact, they will not be disturbed, on error, if there is evidence to support them.

      2. Brokers — Contracts—Attorney and Client.
    Evidence considered and held to support the findings of fact made by the trial court in rendering judgment against an attorney at law who claimed commissions for an attempted sale of real property under an agreement with his client.
    Error to Oceana; Davis, J., presiding.
    Submitted April 15, 1910.
    (Docket No. 106.)
    Decided September 27, 1910.
    Assumpsit by Rufus E. Skeels against Walter Snow fop services rendered. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Bufus F. Skeels and F. O. Wetmore, for appellant.

      Gross, Vanderwerp, Foote & Boss, for appellee.
   Moore, J.

This case was tried before the judge who made findings, the essential parts of which are as follows:

“(1) The plaintiff in this cause is a practicing attorney.
“(2) The defendant was a farmer and was on or about January first, A. D. 1905, the owner of (certain lands which are described in detail).
“(3) That on or about said date certain parties for whom one Morton B. Wheeler of Grand Rapids was acting, and with whom said Wheeler was interested, were contemplating the building of a dam on White river, in said county [Oceana], which might necessitate the use of said lands for the purpose of flowage, and it was contemplated and intended by the defendant in this action to clear up, if necessary, such defects as there might be in the title to said lands, and to sell or dispose of the same to the said Morton B. Wheeler and his associates.
“ (4) That, for the purpose of enabling said defendant to present a merchantable title to said lands and to procure the sale of the same to said Morton B. Wheeler and his associates, the defendant at about the time stated employed this plaintiff as his attorney in the matter of' making his title in and to said lands merchantable, and to assist the defendant by his advice and services, as such attorney, in disposing of said property to said Wheeler and his associates.
“ (5) For such purpose, at about the time named, plaintiff and defendant entered into an agreement, which, in substance, was as follows: Said plaintiff was to act for said defendant as his attorney in connection with perfecting the title to said lands, and in assisting said defendant to sell or dispose of the same to said Wheeler and his associates; said defendant agreeing to pay the plaintiff, and the plaintiff agreeing to receive therefor, such reasonable attorney’s fees as the plaintiff might from time to time become entitled to for all of his services, so to be rendered as aforesaid. Said defendant, in addition to the payment of such fees for all such services rendered, was to pay said plaintiff all his expenses and expenditures in connection with such work. In addition to such payment for services so to be rendered, and expenses and expenditures so incurred, said defendant agreed with the plaintiff that in case he, said defendant, should be able to sell to said Wheeler and his associates his rights in said property for the sum of $25,000, defendant would give said plaintiff from the proceeds from said lands the sum of $1,000; that, if such sale should be made for the sum of $16,000, said defendant would give said plaintiff from such proceeds the sum of $500, either of which sums, respectively, was to be given plaintiff only in case such sale should be made in such manner to said Wheeler and his associates, or some other person, and the same was to be completed, and that such sum was to be given said plaintiff only out of the proceeds of the sale of such land.
“(6) It was also understood and agreed between said parties that said defendant was to retain control of all the negotiations connected with such deal and was to determine the price at which such property should be sold, and reserved and retained the right to use all legitimate means to obtain as large a price therefrom as possible, said plaintiff only to furnish such assistance therein as he might be requested to furnish.
“(7) Plaintiff has been paid by defendant in full, and something more, for all such services, expenses, and expenditures that he has rendered to, or incurred in connection with, such deal, or pursuant to such agreement.
“(8) On or about the 30th day of September, A. D. 1905, plaintiff and defendant met at the village of Holton in Muskegon county with one Russell Updyke, who was then and there acting with limited authority in behalf of said Morton B. Wheeler and his associates who had authority at that time only to negotiate for an offer by defendant for the purchase of defendant’s rights in the property named, but who did not have authority at that time to close a deal for the purchase thereof, having only the power and right to obtain from defendant a proposition for such sale and purchase, and which it was necessary for him to present and submit to his principal, Morton B. Wheeler, then in the city of Grand Rapids, for acceptance or rejection, at which meeting and interview at Holton aforesaid said defendant did make a proposition to said Russell H. Updyke, the same being oral and not in writing, who received the same for and on behalf of said Wheeler, and who took the same to said Wheeler at Grand Rapids, and presented the same to him on the following day,_ viz., October 1, 1905, at which time said Wheeler rejected such proposition, and, instead thereof, made and instructed said Updyke to make to said defendant a counterproposition, but which counterproposition was» never presented or made to defendant. On Monday, October 2, 1905, this defendant instructed plaintiff herein to withdraw the proposition that had been so made by defendant at Holton on September 30, 1905.
“(9) The proposition made by defendant at Holton was thereupon and on October 2, A. D. 1905, withdrawn after said Morton B. Wheeler had on October 1st determined to and had rejected the proposition made by defendant at Holton on September 30th, and such deal was not closed, nor has there been any such deal closed for the disposal of such property, and defendant is still the owner of such interest therein as he had at the inception of these arrangements.
“ (10) That no change was made at any time in the terms of the agreement between plaintiff and defendant made as the court has hereinabove found.
“ Much of the testimony offered in behalf of the plaintiff in this cause was objected to on the part of the defendant, but the same was admitted subject to the objection of said defendant. From all the testimony admitted in said cause, I find the facts as above stated, and I find as conclusions of law:
“ (1) That defendant is not indebted to plaintiff in any sum of money whatsoever.
“(2) That plaintiff has no cause of action against said defendant.
“Let judgment therefore be entered for the defendant, with costs to be taxed.”

A request was made for other and different findings, which request was refused and exceptions taken thereto. The case is brought here by writ of error.

It is the claim of appellant that he is entitled to $800 for services rendered in procuring an arrangement by which Mr. Wheeler was willing to buy the lands for $6,800, and leave thereon a quantity of timber valued at $500. This claim is made upon the theory that, though no sale in fact was made, a sale was prevented by the act of defendant, and that plaintiff is entitled to the $800 the same as though a sale had been made. The record is quite voluminous. We shall state sufficient of it to present the questions involved. The defendant was the owner of certain lands. Mr. Wheeler was engaged in an enterprise which caused him to write defendant in February, 1905, about one of the descriptions, as follows:

“ This is a piece of property that it is necessary for me to have in connection with my water power properties, which, of course, you know about, and wish to ask what you will take for this piece.”

The defendant’s reply is as follows:

“Holton, Michigan, February 8, 1905. “Mr. Morton B. Wheeler,
“Grand Rapids, Mich.
Dear Sir: In reply to yours of Feb’y 6th, I have heard of your dam proposition through the Grand Rapids Press. I own eight forties on White River and its tributaries and also own a saw mill and figure to sell them together. Would hardly care to break in on one forty. Any proposition you have to make will be given consideration it deserves. You may write my attorney at Hart, Mich., Mr. R. F. Skeels. ‘
“ Yours truly,
“ Walter Snow.”

Before sending this reply,, he inclosed both letters in one addressed to Mr. Skeels, the material parts of which are as follows:

“Holton, Michigan, February 8-05. 1 “ Mr. R. F. Skeels,
“ Hart, Mich.
Dear Sir: You will find inclosed letter' from Mr. Wheeler and my answer thereto, but I was afraid to send it until you saw it, as they are trying to get some catch on me somewhere. If you do send it take a copy. * * * I figure that my knowledge, what land I own on White River, what I could buy on Manistee, would be worth good, big money to those people as I now control on White River two thousand horse power. I figure I ought to have $25,000. That would mean a $1,000 for you and the lowest would be $2,000 per forty and eight forties, $500.00 for the mill, which would be your money. I either get big money or none.”

Mr. Skeels then did work for the defendant of a professional character for which he rendered bills, and payments were made to him by checks. He concedes he has been paid for these services, while defendant testified he had sent him payments amounting to $21.90 in excess of his bills. Negotiations were had with Mr. Wheeler, but he declined to pay $16,000 for the land.

Plaintiff testifies that the last of September, 1905, he received a letter containing the following:

“ After you left. I think we had better deal if we can get six thousand and the timber on 29-82 and 33. Don’t let the deal go down if you can help it.
“Snow.”

To which he replied:

“Hart, Mich., Sept. 29, 1905. “Walter Snow, Esq.,
_ “Holton, Mich.
_ “My Dear Sir: Yours at hand and contents noted. I have doubts about getting them up to $6,000.00, but I am of the opinion I could close a deal somewhere around $5,000. I will not write them however until I hear from you as I want to know just how far I can go. * * * Now it is evident we are not going to get any such figure as we first thought we would, and before I close the deal with them I think it would be well for us to understand each other as to just how the proceeds are to be divided between us. In other words, favor me with reply at once and state just what I am to have if I close deal at $5,000, and just what I am to have if I get over $5,000 and under six thousand, and what I am to have if I get over six and under seven, and again at over seven and under eight, and again at over eight and under nine, and again at over nine and under ten. As long as the deal will be consummated, if at all, on different lines than we figured on, I think these better be determined before we get a deal closed. * * *
“Yours truly,
“Rueus E. Skeels.
“ P. S. Owing to the fact of my building and great expense I am to in connection therewith, kindly figure on whatever my portion is as being cash, and yourself handling whatever securities we see fit to take, if any.”

He testified he got a reply by phone, and that he arranged an interview between himself, Mr. Snow, and Mr. Updyke, who represented Mr. Wheeler, at which time it was agreed the lands were to be taken by Mr. Wheeler at $6,800 and timber valued at $500 to be left for Mr. Snow. We now quote from his testimony:

“ I stated to Mr. Snow, standing in front of the Temple, that I felt, inasmuch as I had got him $800 more than his letter had asked me to get, and that if I had closed at his figure he would have only received $5,500 out of it and I $500, according to his conversation with me by phone, that I felt I ought to have the $800. Mr. Snow then stated to me, if they would make the contract I suggested and close a deal in that manner, that he would give me $800. Mr. Updyke, Mr. Snow, and myself then went into the parlors of the hotel at Holton, and we reduced the memorandum to writing. I have it here and offer it in ■evidence.”

Mr. Updyke had no authority to sign the memorandum for Mr. Wheeler, and it is claimed Mr. Snow did not sign it because he had told somebody he would not sell until a later date. The memorandum was taken to Mr. Wheeler by Mr. Updyke and Mr. Wheeler at once addressed him as follows:

“ This is October 2nd, 1905.
R. H. Updyke.
“Dear Sir: In regard to the proposed deal with Mr. Snow, I have gone over the same very carefully and wish to say, that from my standpoint it will be absolutely impossible to make such a deal as he wants. If Mr. Snow is willing to go in with us now on the chance of getting something or nothing, I would be willing to make a deal with the following conditions.”

Then follow the details of a proposition.

“ I have gone over this matter very thoroughly, and this is the stand I must take and it is up to Mr. Snow to do business if he will. * * * I feel quite sure Mr.
Snow will be able to look at the matter in this light, and that we will be able to go along and work the deal out to' our mutual advantage.
“Yours respectfully,
“M. B. Wheeler.”

It is claimed this letter was given for the purpose of obtaining better terms from Mr. Snow, and that Mr. Wheeler gave Mr. Holmes and Mr. Updyke secret instructions to close the deal if necessary, according to the terms stated in the memorandum. Before this letter was shown to Mr. Snow, he decided not to sell for less than #16,000, and so notified the plaintiff, who, in turn, notified Mr. Wheeler. The lands had not been sold at the time the case was tried. The defendant testified as follows:

“ I have heard this correspondence all read. I made a contract with Mr. Skeels at one time to do some business for me, about as it was read there. He was acting as my attorney. Presented me with bills from time to time. I think I paid all the bills. Think he owes me $21.90 now. Except this $800 he claims here, I think I overpaid him $21.90, money he received from me in excess of the bills that he rendered. I never at any time closed a deal with Mr. Updyke and Mr. Wheeler. I have heard the testimony of Mr. Skeels. There was no agreement of sale and purchase made between me and Mr. Updyke and Mr. Wheeler at Holton on the 30th of September, 1905. We talked there from early morning till way along towards night, and at last we made him a proposition. Mr. Up-dyke was to submit that proposition to his partner or company or whatever it was, for their acceptance or rejection. On that day there was no acceptance of that proposition that I know of. I didn’t hear anything about it if there was. I never heard of any acceptance at any time of the proposition. I never made a sale of this property. I have it yet, and in the same condition that it was at that time. Never have sold or disposed of it to any one. In the negotiating or management of this affair as to the disposing of this property — securing it or disposing of it— Mr. Skeels was acting as an attorney for me. I don’t know anything about the negotiations he made for the sale of this property except what he told me.”

It is apparent from this record that plaintiff was not employed asa broker to find a purchaser for this land. Mr. Wheeler had opened negotiations contemplating a purchase. Mr. Skeels, in addition to his professional work, was to aid in closing the deal. The first letter from the defendant to the plaintiff indicated that compensation for this work depended upon the sale being made. Mr. Skeels’ letter of September 29, 1905, indicates the same thing, and it is a fair inference from his testimony about the $800 fee that it depended upon the consummation of the deal.

It is a well-settled rule of law where the case is tried by the judge who makes findings of fact that, if there is evidence upon which to base the findings, they will not be disturbed. See Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Bateman v. Blaisdell, 83 Mich. 357 (47 N. W. 223); Smith v. Smith, 144 Mich. 139 (107 N. W. 894); Buckhout v. Browne, 160 Mich. 460 (125 N. W. 370).

There is testimony tending to support the findings of fact.

Judgment is affirmed.

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


author: Bibd, C. J.

text:
    LAKE v. VILLAGE OF CEDAR SPRINGS.
    1. Statutory Construction — Repeals by Implication — Repugnancy.
    Repeals by implication are not favored, and the question of repeal by a subsequent inconsistent statute is largely one of intent, so that if the two statutes can stand, and both have effect, they must be allowed to do so.
    2. Intoxicating Liquors — Mandamus—Villages—Suppression op Liquor Traffic.
    Under 2 Comp. Laws, § 2769, villages have authority to suppress the sale of intoxicating liquors, and the prior statute is not repealed by implication by Act No. 291, Pub. Acts 1909; wherefore, mandamus will not lie to compel the common council of a village to approve a liquor bond.
    Certiorari to Kent; McDonald, J.
    Submitted June 7, 1910.
    (Calendar No. 24,068.)
    Decided September 27, 191
    Mandamus by Orin Lake to compel the common council of the village of Cedar Springs to approve a liquor bond. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      Dunham, & Phelps (Rodgers & Rodgers, of counsel), for relator.

      A. A. & H. A. Ellis and T. B. Taylor, for respondent.
   Bibd, C. J.

This is an application for a writ of mandamus to compel the respondent, the common council of the village of Cedar Springs, to approve the liquor bond of relator, Orín Lake. The sole question raised by relator’s brief is whether subdivision 7 of section 2769 of the Compiled Laws of 1897, which gives villages the power to suppress saloons for the sale of spirituous and intoxicating liquors, was repealed by Act No. 291 of the Public Acts of 1909. The relator filed his application for a license with the respondent on March 23, 1910. The council on April 11th passed an ordinance suppressing saloons for the sale of spirituous and intoxicating liquors in the village, and provided it should take effect on May 1, 1910. The council refused to act upon relator’s application and now relies on the ordinance as a defense to this proceeding.

It is the contention of the relator that, upon the taking effect of Act No. 291, it repealed by implication subdivision 7 of section 2769; and that the power given villages by this subdivision is so repugnant to, and inconsistent with, Act No. 291, that both cannot stand, and that, as Act No. 291 was the last expression of the legislature, it must prevail.

The village of Cedar Springs was incorporated under Act No. 3 of the Public Acts of 1895, providing for the incorporation of villages, and, among other powers conferred upon villages by this act, was the power, under subdivision 7, “to suppress saloons for the sale of intoxicating liquor and license taverns and eating houses.” It is well settled in this State that repeals by implication are not favored, and that the question of repeal is largely one of intent, and if the two statutes can stand, and both have effect, they must be allowed to do so. People v. Gustin, 57 Mich. 407 (24 N. W. 156).

The title to Act No. 291 of the Public Acts of 1909 is:

“An act to provide for the taxation, licensing and regulation' of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors and malt, brewed, or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.”

It will be observed that the object of this law is to tax, regulate, and license, while the power conferred upon villages is “to suppress.” A law whose object is to tax, regulate, and license would not seem to be inconsistent with one giving the power “to suppress.” It would hardly be contended that under Act No. 291 saloons could be suppressed except as incidental to its enforcement, or that under the village act the business could be taxed, regulated, or licensed.

It has been the law of the State for many years to permit the electorate of counties to prohibit the sale of intoxicating liquors and to permit villages, through their common councils, to suppress saloons for the sale of intoxicating liquors. Whenever the county or village has not seen fit to exercise this power, the business has been taxed and regulated by the general liquor laws of the State. ; These laws have been administered side by side for nearly \ 15 years with little or no difficulty on account of repug- ' nancy or inconsistency. But it is said by relator that" the amendments of 1909 to the general liquor law have made it so inconsistent with the subdivision 7 that both cannot stand. The cardinal feature which the amend- . ments of 1909 have ingrafted on the general liquor laws is ' the license feature, and counsel argue that in adding this feature it was intended by the legislature to provide for the uniform license system throughout the State. Coun- ' sel is quite right in this conclusion; but how does the . added license feature make it any more difficult to administer side by side with the village law than before the amendments were added? The legislature of 1887 intended to and did make the general liquor laws passed in that year a uniform rule throughout the State as to taxation and regulation, and adding the license feature of 1909 does not increase or extend its uniformity.

Counsel cite the case of People v. Furman, 85 Mich. 110 (48 N. W. 169), to sustain their position. In that case the city of Adrian attempted to regulate by ordinance the closing of saloons on Sundays. This court held that the general liquor laws of 1887 covered the whole field of regulation, and that the ordinance was in conflict therewith, and therefore invalid. In other words, the council of the city of Adrian was attempting to regulate by ordinance that which the legislature had provided for by general law. No such attempt has been made by respondent. It has not invaded the field of regulation, taxation, nor license. It has simply exercised its power to suppress.

Has the legislature evinced any intention to repeal subdivision 7 by recent legislation ? We have not been able to discover any, and none has been called to our attention. At the same session at which Act No. 291 was passed, Act No. 278 was also passed, and both acts were signed upon the same day, and the latter act validated all of the general and special charter provisions of villages in the following language:

“All villages within the State of Michigan heretofore incorporated by any general or special act of the legislature, shall continue their corporate character as such villages and any and all general or special charter provisions for the government of such villages shall continue in force until superseded, amended, or repealed, in accordance with the provisions of this act.”

And by the terms of Act No. 278, which provides for the reincorporation of villages, the same power was again conferred upon villages that is contained in subdivision 7. This legislation clearly makes against the contention that the legislature intended, by passing Act No. 291, to deprive villages of the power to suppress saloons for the sale of intoxicating liquors.

Finding nothing in the language of Act No. 291 which would make it repugnant to, or inconsistent with, subdivision 7, and being unable to see any intent upon the part of the legislature to repeal subdivision 7, we are disposed to hold that Act No. 291 did not, by implication, repeal subdivision 7.

The order of the circuit court denying the prayer of relator’s petition is affirmed.

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


author: Bird, C. J.

text:
    MORGAN v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Crossing — Negligence — Contributory Negligence.
    Ordinarily -when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is guilty of contributory negligence, but the rule that he shall stop is not imperative under all circumstances.
    2. Same — Operation of Trains.
    Under testimony tending to show that plaintiff was struck by a train which was operated without lights, and with the engine running backwards, at a rate of speed in violation of a city ordinance, with no lookouts; that plaintiff before crossing the track stopped his horse to a very slow walk and looked and listened, the question of contributory negligence was for the jury.
    3. Same — Signals.
    Travelers upon the highway have a right to assume that trains will be operated in the usual manner and that the customary warnings will be given.

      4. Same — Statutes—Operation op Trains.
    Although the provisions of 2 Comp. Laws, § 6290, regulating the making up of passenger trains, were intended to protect not only passengers but travelers on the highway, they have ho application to a case where the engine was at the head of the train but was running backward.
    Error to Saginaw; Gage, J.
    Submitted June 7, 1910.
    (Docket No. 14.)
    Decided September 27, 1910.
    Case by William J. Morgan against the Pere Marquette Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Crane & Crane, for appellant.

      Bills, Streeter & Parker, for appellee.
   Bird, C. J.

The plaintiff, William J. Morgan, commenced this suit against the defendant, Pere Marquette Railroad Company, to recover for injuries to his person and property which were incurred while he was driving on Michigan avenue, at a point where it crosses defendant’s main track in the city of Saginaw.

The record discloses that Michigan avenue extends east and west and crosses defendant’s main track at nearly right angles. Four hundred and ninety-three feet north of the place of the accident two spur tracks lead off from the main track, and extend in a southwesterly direction, and cross Michigan avenue upwards of 200 feet west of the intersection of Michigan avenue with the main track. Superior street extends north and south, parallel with, and contiguous to, the defendant’s main line right of way. On the morning of March 23, 1906, at about the hour of 6 o’clock, plaintiff was traveling east over this highway with his horse and covered milk wagon. The wagon top was provided with glass front and sides and glass rolling doors. The weather was frosty and foggy, and there was a slight covering of snow on the ground. When he came to the west spur, he brought his horse down to a slow walk, and looked and listened. He neither saw nor heard anything, and he proceeded toward the second spur, 22 feet distant. Here he took the same precaution. Two hundred feet east was Superior street and the main track. When he reached Superior street, he brought his horse to a very slow walk and looked and listened. He neither saw nor heard anything indicating an approaching train, and he proceeded on his way across the main track. While in the act of crossing, his horse and wagon were struck by a south-bound engine hauling five or six passenger cars filled with miners on the way to the mines.

The engine was backing up, with no headlight, and practically without a lookout, as the engineer testified that sitting in his cab he could not see the track over the coal on the tender. The testimony further discloses that from 2£ to 3 feet west of the west rail of defendant’s main track to the traveled portion of Superior street there was a dense growth of willows and underbrush from 2 to 12 feet high, which obstructed the view to the north for 48 feet before reaching the main track, and that for a distance of 200 feet west of the west line of Superior street the view to the north was more or less obstructed by the growth of willows and underbrush. The collision killed the horse, demolished the wagon, and threw plaintiff a distance of 40 feet, breaking his leg and otherwise injuring him. When the collision took place, the train was running from 18 to 20 miles an hour. An ordinance of the city of Saginaw was introduced, providing a maximum speed of six miles an hour for trains in the city. Testimony was given that neither the whistle was sounded nor the bell rung as the engine approached the crossing.

The grounds of negligence relied upon by the plaintiff were as follows:

First. In permitting willows, bushes, and underbrush to grow upon the railroad right of way so as to obstruct the view of approaching trains.

Second. The failure of the engineer to sound the whistle and ring the bell.

Third. For exceeding the maximum speed limit fixed by the ordinance.

Fourth. For running the locomotive backwards with no lights displayed.

At the conclusion of the plaintiff’s testimony, defendant’s counsel moved the court to direct a verdict for the defendant for the reason that the plaintiff’s testimony disclosed that he was guilty of contributory negligence. The court took this view of the testimony, and granted defendant’s motion.

Defendant’s counsel do not insist very strenuously that the company was not negligent in some of the ways pointed out by the plaintiff, but they contend that, even if defendant were negligent, the plaintiff so far contributed to his •own injuries that he is precluded from recovering. It is •contended by defendant that plaintiff was possessed of more than the average intelligence, and was familiar with the crossing and knew that the view to the north of the crossing was more or less obstructed, that he knew that there was an early morning train which ran over that part of the road conveying the miners to their work, and that it was not enough for plaintiff to look and listen. He should have stopped and looked and listened when within a reasonable distance from the crossing before attempting to go across. Ordinarily, when a traveler drives upon a railway track without stopping to listen, where his view is obstructed, and in consequence thereof he is injured, he is under the law guilty of contributory negligence, but the rule that he shall stop is not imperative under all circumstances. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621).

Viewing plaintiff’s conduct in connection with the surroundings and the conduct of the defendant in operating its train without a headlight or lookout, we are unable to say, as a matter of law, that plaintiff so far contributed to his own injuries that it will preclude a recovery. The plaintiff testified, and his testimony is corroborated by two witnesses, that his horse was walking very slowly when he approached the main [crossing as well as the other crossings. He looked and listened at each of the crossings. He understood that a train ran in the early morning conveying the miners to their work, but he had never seen it at this crossing and was not expecting it. He also admits that he knew the conditions at the crossing. Plaintiff testifies that, when he approached the main crossing, he looked up and down Superior street, and listened, but saw no light, and, in fact, saw nothing indicating that a train was approaching. From this point he was 48 feet from the track. For this distance his view to the north was obstructed by the willows and underbrush. He had little reason to expect danger in going that distance.

We cannot say that reasonably prudent men would not do likewise under similar circumstances. Had there been no willows or underbrush on the right of way, he could have observed the train from his wagon before he reached the track. Had the engine been facing the direction in which it was going, and its headlight lighted, plaintiff might have seen the reflected light on the track in time to stop. Plaintiff had a right to assume that, if there were a train approaching, it would be operated in the usual and customary way; that is, that the customary warnings would be given and that a headlight would signal its approach. How far plaintiff was misled, if at all, by the failure of defendant to observe these customary methods of operation, we are unable to say. Therefore we think that the question of whether he should have stopped before attempting to go across was a proper question to submit to the j ury, together with all the other facts and circumstances in connection with it. Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33).

Plaintiff insists that the defendant was guilty of gross negligence in running its train through the city and across the streets with no headlight to warn travelers of its approach. Such a practice, to say the least, is an exceedingly dangerous one, and no excuse was offered by the defendant for so operating its train. On the trial, plaintiff’s counsel insisted that operating the train in this manner was in violation of section 6290, 2 Comp. Laws. That section reads as follows:

“ In forming a passenger train upon any railroad operated in this State, the engine shall be placed at the head of the train, and no baggage or freight car shall be placed in the rear of any passenger car; and any officer, agent or other employé who shall cause them to be so placed, or who shall knowingly suffer the same to be done, shall be deemed guilty of a misdemeanor and be punished accordingly.”

The trial court held that this statute had no application to the facts in the case for the reason that the statute was passed for the protection of passengers only. We agree with the trial court that this statute has no application because the facts here disclose that the engine was attached at the head of the train. We are unable, however, to agree with the trial court that the statute was passed for the protection of passengers only. The beneficial effects of this statute to travelers upon the streets and highways are quite as apparent as they are to passengers. To require the engine to be placed at the head of the train would protect travelers at night, as the usual custom in the operation of trains is to place the headlight in front, and, if this were done, it would warn the travelers of its approach. In placing the engine at the head of the train, it would enable the engineer to command a better view of the travelers, and thereby enable him to afford them better protection against collision. Another reason which suggests itself is that the engine is provided with a pilot, which is specially designed to throw off at the side of the track, objects with which it comes in contact, instead of running over them, thereby in many instances preserving human life. This statute is a police regulation, and its protection should be extended to travelers upon the streets and highways as well as to passengers. It will be unnecessary to determine whether this act of operation was gross negligence upon the part of the defendant, as we are of the opinion that the contributory negligence of the plaintiff should have been submitted to the jury upon the whole case.

There are other errors assigned, but, as plaintiff does not discuss them in his brief, no attention will be given them here.

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

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    SNOW v. ESCANABA POWER CO.
    1. Master and Servant — Warning and Instructing Servant-Hidden Dangers.
    Deceased had been in the employ of defendant for three days, assisting in constructing a cement power dam to replace a wooden structure in the Escanaba river. His superintendent ordered deceased to take a scow of gravel and stop a leak in the new dam which was being built below the old one, but failed to warn the employé of the presence of submerged timber braces between the two structures, near the surface of the water. In attempting to propel the scow out of the current running through the sluiceway of the old dam, deceased caused it to collide with the timbers, concealed from his view, and the boat became unmanageable, the deceased attempted to save himself by swimming, but failed, was carried through the sluiceway of the cement dam and drowned: Held that defendant’s failure to warn him of the hidden dangers was negligence.
    2. Same — Risk Assumed — Scope oe Employment.
    The servant assumes only such risks as are incident to his employment.
    3. Same.
    The deceased did not assume the risk of the obstruction, which was not obvious, since it appeared that he was employed to stay on shore and wheel sand, in a place where the danger was not visible; and he had not been employed long enough to raise a presumption of knowledge.
    4. Same — Contributory Negligence.
    Deceased having met the known dangers with safety, it was for the jury to determine whether or not he was guilty of contributory negligence in the way he adopted to protect himself against the hidden danger.
    5. Same — Orders oe Employer.
    That the superintendent instructed decedent to load the scow and not to leave shore until the superintendent returned, would not preclude a recovery, where the evidence disclosed the fact that the superintendent was present on the dam when the scow approached, and made no protest and gave no caution.
    6. Same — Fellow-Servant.
    Nor did the fact that a co-employé knew of the hidden timbers, but failed to inform deceased of them, although he accompanied deceased in the scow, operate to relieve defendant of its duty.
    Error to Delta; Cooper, J., presiding.
    Submitted June 9, 1910.
    (Docket No. 31.)
    Decided September 27, 1910.
    Case by Nellie Snow, administratrix of the estate of Harry Snow, deceased, against the Escanaba Power Company for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      James H. Clancy, for appellant.

      William P. Belden (J. C. Jennings, of counsel), for appellee.
   Bird, C. J.

Nellie Snow, as administratrix, brought this suit under the statute to recover damages for the negligent death of her son and intestate, Harry Snow, a boy of %% years, who met his death while in the employ of the defendant.

In July, 1908, the defendant was constructing, and had nearly completed, a cement dam in the city of Escanaba, extending from west to east, across the Escanaba river, about 88 feet below, and parallel with, an old wooden dam. At a point about 105 feet east from the west shore is a sluiceway in the new dam, and 84 feet farther east is a sluiceway in the old dam. On the west shore approaching the new dam is a power house, and west of that was a sand pile and mixer. Timber braces, 6x6, had been placed between the old dam and the “false forms” used in the construction of the new dam to keep them in place. These braces had served their purpose, and the lower or down stream ends had been loosened, and most of them had been removed. The remaining ones were located just east of the sluiceway in the old dam and were partially submerged. Mr. Huie was defendant’s superintendent and had full charge of the construction work. In the latter part of June he employed the deceased “to wheel sand to the mixer and stay on shore.” On the morning of July 1st a leak in the new dam near the east shore was discovered, and Mr. Huie ordered the deceased to load the scow with sand and take it over and stop the leak. This order involved his taking the scow in a southeasterly course to and through the sluiceway in the old dam, then turning to the left and going east between the dams until he came to the leak. The order was at once obeyed by the deceased, and an employé by the name of Tatro accompanied him. They made the journey to and through the sluiceway in the old dam without incident. When they turned to the left and attempted to go east, the scow ran into one of the timber braces spoken of, and the impact sent the scow back into the strong current running between the sluiceways in the two dams by reason of which it soon became unmanageable. Tatro jumped and made the dam in safety. The deceased jumped into the stream, but found the current too strong for him, and again took hold of the scow, following it down through the sluiceway in the new dam, where it sank and deceased was drowned.

The negligence relied upon by the plaintiff was the act of defendant in ordering the deceased from his regular employment to do and perform a dangerous service without first instructing him of its attending dangers. Both plaintiff and defendant offered testimony, and after it was closed counsel for the defendant requested the court to direct a verdict for the defendant for the following reasons:

First. That under the undisputed facts no negligence has been proven or shown against defendant, and that if there was any risk it was so plain, open, and obvious that the plaintiff assumed it.

Second. That if there was a risk it grew out of the negligence of plaintiff himself in taking his boat out contrary to the orders of the defendant.

Third. That if there was in any way negligence of Mr. Tatro, if it can be said to be negligence contributing to the injury, it was that of a fellow-servant.

The court granted the motion and directed a verdict for the defendant. These reasons will be considered in their order.

First. Was any neglect shown on the part of the defendant ? The testimony shows that on the morning of the third day of his employment, Mr. Huie, the superintendent, ordered the deceased to take the scow, with its load of sand, to the leak in the dam. There was only one route by which it could be delivered at that place. Mr. Huie knew this, and he also knew, or ought to have known, that across that route lay the submerged timbers. The testimony tended to show that the deceased did not know of them. It was his duty, therefore, to inform the deceased of the hidden obstruction which he would have to encounter in carrying out his order, and, if he failed to so inform the deceased, he was guilty of negligence, and Ms negligence in tMs respect would be the negligence of the master. 26 Cyc. p. 1165; Geller v. Briscoe Manfg. Co., 136 Mich. 330 (99 N. W. 281).

We are not impressed that the deceased assumed the risk if the plaintiff’s testimony is to be accepted as true. The rule of law is that the servant assumes only such risks as are incident to his employment. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Brown v. Railroad Co., 118 Mich. 205 (76 N. W. 407). If the deceased was employed “ to stay on shore and wheel sand to the miser,” and he was afterward directed to perform this service with the scow, he was directed to do a service outside of his employment and did not assume the risk unless the risk was plain, open, and obvious. In view of the testimony that the timbers could not be seen unless one stood in the vicinity and nearly over them, we think it cannot be said the risk was obvious. The deceased had been employed only two days prior to his being directed to perform this service, and was employed during those two days west of the power house, where his view of the sluiceways and vicinity was obstructed. His brother Walter testified that the deceased did not go out on the dam during the time that he worked there. While defendant’s testimony shows that deceased’s attention was called to some of the dangers incident to the journey, there is no claim that any one ever informed him of the submerged timbers that lay across the path of the scow, and we do not think that his employment had continued long enough to raise a presumption that he had knowledge of them.

Second. Neither are we impressed with defendant’s claim that deceased was guilty of contributory negligence. If the deceased knew nothing of the submerged timbers, he could hardly be called upon to protect himself against them. So far as the dangers were apparent, they were successfully met, and the journey was made in safety to and through the sluiceways, and it was not until he came in contact with the unseen timbers that any difficulty was experienced. After the scow ran against the timbers, and their presence became known to him, whether he used such care and caution as a man of his years would be called upon to exercise was a question for the jury and not for the court.

Third. It is said that the deceased disobeyed orders; that he was instructed to load the scow but not to leave the shore until the superintendent returned. While the scow was taking its southeasterly course from the shore down to the sluiceways, Mr. Huie, the superintendent, stood on the dam, a few feet from the sluiceway, and must have seen the deceased and his companion approaching. He knew they [were on their way. He made no protest. He asked no question. He gave no word of caution or warning, and it must, therefore, be presumed that their going had his full consent.

It is also contended that Tatro knew of the danger that would be encountered in carrying out the orders, and that the negligence, if there were any, was Tatro’s, and the negligence of a co-servant. Tatro testified that he advised the deceased that the scow was loaded too heavily and suggested that some of the sand be taken out. This was done. He also testified that he advised the deceased that they had better get some rope and another pike pole; but his testimony nowhere discloses that he informed the deceased of the submerged timbers. In fact, his testimony does not show that he himself knew of them. Mr. Tatro’s testimony was very contradictory and unsatisfactory, and it is difficult to determine from a reading of it how he desired to be understood upon some of the matters about which he testified. But even though Tatro was informed of the submerged timbers and their location, if he did not make it known to the deceased, the master would not thereby be relieved of his duty to inform the deceased of the hidden dangers he would have to encounter in carrying out his orders. Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 89 Am. St. Rep. 461).

We are of the opinion that these questions were proper ones for the consideration of a jury.

The case is reversed, with costs of both courts, and a new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.