author: Moore, J.

text:
    ROBINSON v. WESTOVER.
    Constitutional Law — Local Self-Government — Taxation.
    The facts in this case involve the construction of Act No. 392, Pub. Acts 1909, and it is ruled by the preceding ease of Zimmer v. Board of Sup’rs of Bay Go., ante, 213.
    Certiorari to Muskegon; Sessions, J.
    Submitted November 12, 1909.
    (Calendar No. 23,709.)
    Decided December 21, 1909.
    Mandamus by Edwin C. Robinson, assessor of the city of Muskegon, to compel John G-. Westover, chairman of the board of supervisors of Muskegon county, to designate a member of a committee on appeals under the provisions of Act No. 292, Pub. Acts 1909. An order granting the writ is reviewed by respondent on writ of certiorari.
    Reversed.

      J. A. McLaughlin (William Carpenter and J. E. Turner, of counsel), for relator.

      Alex. Sutherland and Wallace Foote (James E. Sullivan, of counsel), for respondent.
   Moore, J.

The following statement of facts is taken from the brief for relator:

“The relator filed his petition in the circuit court for the county of Muskegon, asking for a writ of mandamus to compel the respondent to name a second member of the committee on appeal, in accordance with the provisions of Act No. 292, Pub. Acts 1909. On the hearing before the court a peremptory writ of mandamus was granted in accordance with the prayer in the petition. The respondent has brought the case to this court by certiorari.
“The relator is the assessor of the city of Muskegon, and as such is entitled to a seat in the board of supervisors, and to all the privileges and powers of supervisors of townships, in the matter of the assessment and levying of taxes, and likewise all the duties incident to taxation incumbent upon the supervisors of townships are imposed upon him. When the matter of equalization of the assessment rolls of the several townships and cities in the county of Muskegon was before the board of supervisors of that county, the members of all the townships voted in favor of the equalization that was adopted, by which $1,224,948 was added to the assessment roll of the city of Muskegon, and $153,503 to the assessment roll of the city of Muskegon Heights, and $970,371 was deducted from the assessment rolls of the several townships in the county, ranging in amount from $6,030 to $136,415. All the representatives of the cities of Muskegon and Muskegon Heights objected to and voted against the equalization. Within the time prescribed by Act No. 292, Pub. Acts 1909, and in compliance with all the provisions of that act, the relator, who is the assessor of the city of Muskegon, appealed from the determination of the board to the committee on appeal provided for in that act, and named a member of that committee. Subsequently four other supervisors of certain townships in the county, who had voted in favor of the equalization, also filed petitions for appeal, and named different persons as members of the committee on appeal. The relator’s appeal was properly taken, but the respondent, who is the chairman of the board of supervisors, declined to name a second member of the committee, alleging as his reasons therefor:
First. That the relator is not a supervisor within the meaning of Act No. 292, Pub. Acts 1909, and therefore is not entitled to appeal.
“Second. That other supervisors had also filed petitions for appeal, and that Act No. 292 cannot be carried into effect where different supervisors of a county appeal from the equalization of the board of supervisors, and different ex-supervisors of adjoining counties have been named, or are named by such appealing supervisors, as members of the committee on appeal.
Third. That Act No. 292 is unconstitutional as being subversive of the constitutional right of local self-government.
“ Fourth. That none of the people of the county of Muskegon are represented in any of the members of the committee on appeal, and that the act is void as violating the right of taxation without representation.
“Fifth. That the members of the committee on appeal are not required to take the constitutional oath of office.
“ Sixth. That the legislature had no authority to delegate judicial and administrative power to the committee on appeal, and therefore the act is unconstitutional.
Seventh. That such committee on appeal is not such a fair and impartial tribunal as is contemplated by the Constitution and genius of our State government, and so is void.
“Eighth. That the committee on appeal has no power to subpoena witnesses, nor to inform itself in a judicial manner as to the relative value of all the taxable property in the county of Muskegon, and therefore the act is inoperative and void.”

There are other questions sought to be raised in' this court; but, as they were not presented in the court below, they will not be considered here.

It is unnecessary to discuss the questions involved, for the reason that all of them are controlled by the opinion in Zimmer v. Board of Sup’rs of Bay Co., ante, 213 (123 N. W. 899).

The judgment of the court below is reversed.

Blair, C. J., and Ostrander, Hooker, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CITY OF DETROIT v. SNYDER.
    Eminent Domain — Damages and Compensation.
    On motion for rehearing, an error contained in the opinion in this case, reported in 156 Mich. 511, is corrected, and the questions involved are held to be governed by City of Detroit v. Railway, 156 Mich. 106.

      Error to the recorder’s court of Detroit, Connolly, J.
    Submitted January 22, 1909.
    (Docket Nos. 57, 58.)

    Decided May 25, 1909.
    Motion for rehearing submitted December 10, 1909.
    (Calendar No. 22,980.)
    Former opinion vacated December 30, 1909.
    Petition by the city of Detroit for separation of grades in a certain street. George P. Snyder and the Union Transfer & Storage Company intervened claiming damages. A judgment confirming the award of the jury is reviewed by petitioner on writ of error. '
    Reversed.
    P.- J. M. Hally, for the motion.
   Grant, J.

Our attention has been called by a motion for rehearing to an error we made in the opinion in the case of City of Detroit v. Snyder, 156 Mich. 511 (121 N. W. 258).

We there said that, after eliminating the last item discussed, the award would otherwise stand affirmed: This was error, for which the writer of the opinion is responsible. It should read:

“ That otherwise the cases of the respondents were ruled by the opinion in City of Detroit v. Railway, 156 Mich. 106 (120 N. W. 600).”

The question of damages and the instruction of the court as to the rule of damages were substantially the same in both cases, and the same result should have been announced in the latter opinion.

It follows that the judgment will be reversed, and a new trial ordered.

Blair, C. J., and Montgomery, Moore, and McAlyay, JJ., concurred.


author: Hooker, J.

text:
    STEWART v. CALHOUN CIRCUIT JUDGE.
    1. Intoxicating Liquors — Statutes—License.
    A druggist may not lawfully sell intoxicating liquors to be drunk on the premises without paying the tax and obtaining the license required of retail dealers. 3 Comp. Laws, § 5379.
    2. Same — Illegality of Sales — Information.
    A charge in an information that the defendant, a druggist, and person engaged in part in the sale of drugs and medicines, sold intoxicating liquors to be used as a beverage and drunk on the premises, sufficiently negatives the lawfulness of the sales.
    Mandamus by Louis E. Stewart, prosecuting attorney of Calhoun county, to compel Walter H. North, circuit judge of Calhoun county, to set aside an order quashing an information: On motion for rehearing on the issuance of the writ.
    Submitted November 19, 1909.
    (Calendar No. 23,132.)
    Motion denied December 30, 1909.

      D. C. Salisbury, for the motion.

      Louis IS. Stewart, contra.

   Hooker, J.

This is a motion for rehearing in the case of Stewart v. Calhoun Circuit Judge, 156 Mich. 642 (121 N. W. 279). We held that the information filed in that case was a good information. It is now said that in so doing we have overruled the cases of People v. Haas, 79 Mich. 449 (44 N. W. 928); People v. Decarie, 80 Mich. 578. (45 N. W. 491), and People v. Telford, 56 Mich. 541 (23 N. W. 213). Had this defendant been charged with an act which a druggist might lawfully have done these cases would have some application. In the Case of Telford, an information based on a sale of liquor, accompanied by a failure to post a receipt for the liquor tax imposed on saloon keepers, was held bad for the very substantial reason that if he were a druggist he might have lawfully sold the liquors, no payment of tax being necessary by druggists selling in compliance with law. In People v. Haas, the defendant was charged with the selling and keeping for sale at retail intoxicating liquors without having posted the receipt and notice required by Act No. 313, Pub. Acts 1887. The Telford Case was followed, the case being similar. In the Case of Decarie, the conviction was for a failure to pay the tax required by the section of the statute last cited. As a druggist selling lawfully was not required to pay the tax, it was held necessary to show defendant’s transgression by negativing the exception made by the statute.

In this case the defendant is charged with an act that could not have been lawful by a druggist or anybody else, viz., selling liquor to be drunk upon the premises as a beverage. Hence, under our decisions, it made no difference whether he was a druggist or not. Moreover the information did negative the possibility of his selling lawfully as a druggist by the following language:

“ Being a druggist and a person engaged in a business in said city of Battle Creek consisting in part of the sale of drugs and medicines did then and there sell at retail, furnish and deliver to William Brant and W. B. Harkins a certain mixed liquor, to wit, ‘ high balls,’ a part of which said mixed liquor was spirituous and intoxicating liquor, to wit, whisky, which said mixed liquor, a part of which was then and there spirituous and intoxicating liquor, was not so sold, furnished and delivered to the said William Brant and W. B. Harkins for medicinal, chemical, scientific, mechanical or sacramental purposes, but was so sold, furnished and delivered by the said William Peet to the said William Brant and W. B. Harkins to be used as a beverage and drunk on the premises and said spirituous and intoxicating liquor,” etc.

The motion is denied.

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


text:
    RUCH v. RUCH.
    1. Specific Performance — Statute of Frauds — Consideration of Deeds — Innocent Purchasers.
    An oral contract of a parent not to convey real property owned by him, but to permit the land to descend to his heirs, in consideration of the executed conveyance by his wife to him of other real property, is enforceable in equity against a second wife, to whom he deeded the real property without consideration, in violation of his parol agreement, of which she had notice, relief in equity not being barred by the statute of frauds.
    2. Same — Parol Evidence Rule.
    Parol evidence is, under the established rule in this State, competent to show the actual consideration for deeds of land where the rights of innocent purchasers for a valuable consideration are not involved.
    3. Same — Evidence—Contradicting Deeds.
    The expression of one consideration does not exclude proof of another and the actual consideration.
    4. Same — Mortgages.
    A deed may be shown to have been in fact a mortgage.
    Appeal from St. Joseph; Yaple, J.
    Submitted June 10, 1909.
    (Docket No. 41.)
    Decided December 30, 1909.
    Bill by Luther N. Ruch and William Ruch against Emma A. Ruch for the cancellation of a deed and the specific performance of a contract. From a decree for complainants, defendant appeals.
    Affirmed.

      F. W. Knowlen and M. L. Howell, for complainants.

      George H. Arnold and H. O. Bliss, for defendant.
    Complainants are the children and sole heirs at law of Amos A. and Rosealtha Ruch, both deceased. Amos and Rosealtha were married in 1870. March 22, 1879, Rosealtha bought the W. i of the N. E. ¿, sec. 4, town 8 S., range 12 W., containing 80 acres. The consideration was $5,000 which she paid with her own money. April 26, 1889, she conveyed to her husband the south half of the 80 acres, for which he paid no consideration. Rosealtha died intestate April 25, 1900. The buildings were located on the north half of said land, and there Amos and Rosealtha lived until her death. On May 5, 1900, the complainants, by deed duly executed, conveyed to their father a life estate of said north half; the consideration expressed in the deed being $1 and love and affection. On April 9, 1903, he married the defendant. They lived upon, and received the entire use and benefit of, these 80 acres until his death, April 12, 1905. Seven days before he died he executed to the defendant a deed of the south half and a bill of sale of all his personal property. Complainants claim that the real consideration for the deed of the life .estate was an agreement on the part of their father that upon his death the south 40 should be left to them. The bill sets forth the alleged agreement; charges defendant with knowledge of its existence at the time of her marriage; and prays that the deed to her be canceled, that the verbal contract be declared valid, and that the title to said- land be vested in complainants. The case was heard upon pleadings and proofs taken in open court, except two depositions which were taken by stipulation. The court entered a decree- for the complainants.
   Grant, J.

(after stating the facts). The court found that Mr. Ruch’s first wife purchased the 80 acres with her own money; that the deed by her to her husband of the south 40 was without consideration; that the deed of the life estate was made upon consideration that their father would, upon his death, leave it to them; that defendant before her marriage had knowledge of that contract; that the deed and bill of sale by Amos to the defendant were without consideration, and were received by her with full knowledge and notice of the contract between complainants and their father. The sole question of law raised in the case is whether the testimony of the wives of the complainants is admissible under the statute (section 10212, 3 Comp. Laws), as construed in Laird v. Laird, 115 Mich. 352 (73 N. W. 382). We need not determine this question, as it is not essential to the decision of the case.

Several disinterested witnesses testified that Amos Ruch told them that he had made such a contract with his sons. It is unnecessary to cite authorities to the proposition that parol contracts for the sale and conveyance of land, executed by one of the parties thereto, can be enforced against the other. In such cases two questions are always raised: (1) Was such a contract made? and (2) Did one party thereto execute it ? In this case there is only one question, viz., Was the contract made ? Or, stated otherwise, was the consideration for the deed of the life estate an agreement to leave the land to the complainants at his death ? No conveyance by the father during his lifetime was essential. The agreement in substance was that he would not dispose of it, but would let the title remain in him, to go to them upon his death as his heirs at law. There are no superior equities on the part of the defendant appealing to the conscience of the court. The defendant had a farm of 80 acres near the land in question, and money in bank. She lived with her husband but two years. She was the sole witness in her own behalf. The learned circuit judge, who saw the witnesses, evidently believed the witnesses for the complainants. The evidence is ample to sustain the finding. A résumé of the testimony of the witnesses would be lengthy, and would furnish no precedent of particular value. The case is one purely of fact, and falls expressly within the principles of Briggs v. Briggs, 113 Mich. 371 (71 N. W. 632); Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488); Kleinow v. Kleinow, 126 Mich. 365 (85 N. W. 1134).

The decree is affirmed, with costs.

After writing the above opinion, the question was raised at one of the consultations of the Justices, whether the case did not fall within the statute of frauds. We thereupon requested counsel for the respective parties to file briefs upon this point, and they have done so. The case was submitted to the court below upon the theory of the bill of complaint. The question of the statute of frauds was not presented to the court below, nor in the brief or oral arguments of counsel to this court. It appears from the certificate of the circuit judge that the case was settled under the statute, and that the record contains “ all the evidence and exhibits produced on the trial in said cause which are necessary to a correct decision of said cause in the Supreme Court.” The case was not settled with any view of raising the statute of frauds. Under this condition of the case, I was of the opinion that the question of the statute of frauds was not properly in the case, and should not now be considered, but that the case should be determined upon the record deliberately made by the parties and submitted to both the trial and appellate courts. My Brethren, however, who sat in the case, were of the opinion that we should dispose of this question, and I accede to their opinion.

Parol evidence is, under the established rule in this State, competent to show the actual consideration for deeds of land where the rights of innocent purchasers for a valuable consideration are not involved. Ford v. Savage, 111 Mich. 144 (69 N. W. 240); Scovel v. City of Detroit, ante, 95 (123 N. W. 569), and authorities there cited. The expression of one consideration does not exclude proof of another, and the real, consideration. Carmichael v. Carmichael, 72 Mich 76 (40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528). A deed absolute upon its face may be shown in fact to be a mortgage. In Carmich ael v. Carmichael, the contract relied upon rested partly in writing and partly in parol. Contracts for the conveyance of land, though resting entirely in parol, have been repeatedly held by this court and others not to 'be within the statute of frauds where one party has executed the parol contract in whole or in part.

While, strictly speaking, the contract in the instant ease was not a contract for sale, but a contract not to sell and convey, in construing it, we may apply the same rule as would be applied to a contract to sell. Briefly stated, the contract between the complainants and their father was that they would deed to him a life estate in the land they owned, provided he would agree not to convey the land which he owned, so that at his death the land would descend to them as his heirs. That contract was carried out on their part by the deed. He conveyed his land, in violation of the agreement, to one who knew of the existence of the parol contract, and who paid nothing for her deed. The statute of frauds cannot be invoked as a shield to protect such a fraud. The arms of equity are sufficiently long to reach such a case. McClure v. Otrich, 118 Ill. 320 (8 N. E. 784). Where a wife released her right of dower and homestead right by a deed under a parol agreement to convey to her another piece of land, the parol agreement was enforced. Farwell v. Johnston, 34 Mich. 342.

‘' When a verbal contract is performed by the conveyance of land on the one part, there can be no difficulty in compelling the equivalent from the other contracting party.” Holland v. Hoyt, 14 Mich. 238.

Where a mother, the administratrix of her deceased husband’s estate, obtained from some of her children a conveyance of all their interest in the estate, and orally agreed that in consideration thereof she would enjoy the estate for her life, and would leave it at her death to her children, and would make a will dividing it equally between them, and she did not carry out her agreement, but conveyed the estate in opposition thereto, the parol contract was enforced. Stewart v. Smith, 6 Cal. App. 152 (91 Pac. 667).

We therefore conclude and hold that the statute of frauds lias no application to this case, and the decree of the court below must be affirmed.

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


author: Montgomery, J. Grant, J.

text:
    ORTON v. ORTON.
    Divorce — Extreme Cruelty — Adultery.
    An application for divorce on the ground of extreme cruelty, supported by sufficient testimony, may not be refused because the complainant had been twice previously divorced, and on the second occasion for her own fault.
    Appeal from Wayne; Mandell, J.
    Submitted June 11, 1909.
    (Docket No. 71.)
    Decided December 30, 1909.
    Bill by Ella Orton against John Orton for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Lehman, Riggs & Lehman, for complainant.
   Montgomery, J.

This is a suit for divorce on the ground of extreme cruelty on the part of the defendant. The proofs were taken in open court, and the bill dismissed ; the complainant refusing to accept a decree for a limited divorce. The circuit judge found the extreme cruelty established by the proof, a conclusion in which we ’fully concur. It appears that the complainant had been twice married before. Her first marriage was dissolved by a decree of divorce upon a bill filed by her. The second marriage was dissolved on a bill filed by her husband. To that suit no defense was made, and a decree was entered granting an absolute divorce on August 19, 1907. Some four months later she married the defendant. The only question presented is whether, where a just cause for divorce is shown, the fact that the party applying for the divorce has been previously married and divorced, the former divorce having been on the ground of plaintiff’s own fault, is to bar her from a divorce from the second marriage.

We assume that the first decree of divorce determined that she was not in fault and that her husband was. The second decree of divorce determined that she was in fault; but there were no restrictions placed upon her remarrying. Her status was fixed by that divorce as that of a single woman. We think it cannot be said that in a subsequent marriage she occupies a different relation than does any other married woman. It is true that the court might well scrutinize carefully her application for the purpose of determining whether a real ground of divorce' has been made out. That, it appears, the circuit judge did to his own satisfaction, and became satisfied that she was entitled to relief, but seems to have proceeded upon the view that, because she had been unfortunate in previous matrimonial alliances, or had been guilty of fault herself in her second venture, she has debarred herself from the remedies which are open to other people. We think, on the contrary, that her second divorce fixed her.status, and she had the same legal right to marry as though she had never been previously married, and she is entitled to equal protection in that marriage relation as though this were her first venture.. If the case were less clear, the fact that she had had these experiences might be taken into account in determining whether a case had been made out; but there seems to be no question made that she has established a case entitling her to divorce if she is to be treated as is any other married woman.

The decree should be reversed, and the decree of divorce granted.

Blair, O. J.s and Ostrander, Hooker, Moore, Mc-Alvay, and Brooke, JJ., concurred.

Grant, J.

(dissenting). This is a suit for divorce on the ground of extreme cruelty on the part of the defendant. He made no defense in the court below, and has made none here. Proofs were taken in open court and the bill dismissed. The court offered to grant a limited divorce. Complainant refused to accept this, and insisted upon a decree of absolute divorce. The marriage to defendant was her third matrimonial venture. She obtained an absolute decree of divorce from her first husband; he making no defense. Her second husband filed a bill for a divorce against her, charging her with extreme cruelty and adultery. To that she made no defense, and a decree was entered granting the husband an absolute divorce on August 19, 1907. Four months thereafter she married defendant, after an acquaintance of only three months. On January 30, 1908, she filed this bill.

Section 8623, 3 Comp. Laws, authorizes a divorce “ whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do.” Section 8622 authorizes a divorce from bed and board forever, or for a limited time. The court, in a written opinion, after stating her matrimonial career, said:

“ I became convinced, from the consideration of these facts and circumstances, that the matrimonial and divorce career of complainant was shocking, and abhorrent to public morals, and that any further appeal on her part to the conscience of a court of equity should be viewed with suspicion. As I was satisfied that complainant had made out a case entitling her to some relief, I offered to grant her a divorce from bed and board forever as provided in section 8622, 3 Comp. Laws. This relief was refused on the ground that it was not appropriate, nor the relief sought. Thereupon I announced that a divorce from the bonds of matrimony would be refused for the reason that the circumstances of the case were not such that it would be discreet and proper to grant it. Section 8623, 3 Comp. Laws, as amended in 1907 (Act No. 324, Pub. Acts 1907). My reason for such denial was that this woman, who appeared to be 45 or 50 years of age, with prior matrimonial experience, did not present the case of an innocent woman being wronged in her marriage, without fault on her part. She took her husband for better or worse, and any proper and adequate care and investigation on her part would have shown her that her latest matrimonial venture could not be a happy one. Divorce laws were not passed for such as she, for to grant her an absolute divorce would give too much encouragement to that modern suggestion known as trial marriage, and would tend to destroy the accepted theory of the permanency of the married relation.”

I fully concur in that opinion. This is not a suit at law or in chancery involving property rights of the parties litigant to which the rule of preponderance of evidence applies. This is a suit for divorce in which the public have an interest as well as the parties litigant. Regulations of marriage and divorce are under the control of the public through their legislature. The people have enacted laws providing for both. They have conferred upon the courts of chancery the sole jurisdiction in divorce cases, and have seen fit to lodge in those courts the power to grant divorce “whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do.” If the statute means anything, it mea,ns, in my opinion, that the courts are clothed with power to use a discretion in granting or refusing divorces. It eliminates the rule of preponderance of evidence and authorizes the courts to examine the character of the parties, the circumstances attending the marriage, the record of the parties in divorce suits, and authorizes the courts to refuse a decree in cases where it is apparent the complainant is an adventurer or adventuress in contracting the marriage relation. The record in this case shows the complainant to be such an adventuress. She has contracted marriage without any regard to its sacred relations or the solemn duties which that relation imposes upon the parties, and as lightly as she would make a contract involving property of little value. Divorced from one husband on her complaint, divorced from her second husband on his complaint charging infidelity to her marriage vows, divorced in August, married in December to a man after slight acquaintance, and applying for divorce in January — such is her record. Her present husband, from whom she now seeks divorce, appears to have been a worthless fellow addicted to intoxication. If she did not know this, an inquiry by her would have disclosed the fact; and, as the circuit judge said, “would have shown her that her last matrimonial venture could not be a happy one.” We said, in Sullivan v. Sullivan, 112 Mich. 674 (71 N. W. 487): “We think that the character of the decree rests in the sound discretion of the court.” In divorce suits in which the defendant does not appear, it is a fair presumption that he or she is entirely willing that a divorce should be granted, and is perhaps as anxious to be freed from the marriage as is the complainant. Both are undoubtedly often anxious for the divorce in order that they may marry again. It is easy in pro confesso cases either to manufacture testimony or to magnify little wrongs and unpleasant words, not of themselves sufficient to authorize divorce, into acts of extreme cruelty so as to bring the case within the statute. Appellate courts may review this discretion of the trial court, as was done in Burlage v. Burlage, 65 Mich. 624 (32 N. W. 866). In the case now before us I think that the court below exercised its discretion wisely, and tendered the complainant all the relief to which she was entitled. As the court below held, the evidence in such cases should be looked upon with suspicion. It is evident that the court below placed little confidence in the testimony of the witnesses, for in its decree the court held that “the material facts charged in said bill of complaint were not proven by the complainant.

The decree should be affirmed.


author: Ostrander, J.

text:
    SIMONS v. DIAMOND MATCH CO.

    1. Deeds — Covenants — Conveyancing — Incumbrances — Real Property.
    An incumbrance, within the meaning of covenants in deeds, is defined as every right to or interest in the land, to the diminution of the value of the land, but consistent with the passing of the fee by conveyance.
    2. Same — Lease as Incumbrance — Landlord and Tenant.
    A term for years under a lease prior to the conveyance is an incumbrance, which is not excepted from the warranty by reason of the fact that the grantee knew of the outstanding lease.
    3. Same — Parol Evidence Rule — Incumbrances.
    Evidence is inadmissible to show that an existing incumbrance was regarded in fact as no incumbrance.
    4. Same — Landlord and Tenant — Rents—Right to Collect.
    The right to collect reserved rent passes with the title.
    5. Same — Covenant against Incumbrances — Personal Nature.
    A covenant against incumbrances is personal, broken when made, and does not run with the land.
    6. Same — Parol Evidence — Contemporaneous Representations.
    Oral assurance that tenants in possession have no rights in the premises cannot add to or vary the warranties of a deed.
    7. Same — Damages—Assignee of Rights under Covenants.
    The assignee of rights for breach of the covenant against incumbrances takes only such right as the assignor had and is limited to nominal damages if the assignor was so limited.
    8. Same — Covenant to Seisin.
    The covenant, if a breach occurs, is broken when made.
    9. Same — Eviction—Covenant for Quiet Enjoyment.
    An eviction of the grantee .occurs when a deed is executed conveying land held under an outstanding lease, not excepted from its warranties.
    10. Same — Rights to Grantee — Breach of Covenants.
    One who has parted with his interest in land parts with his right to enforce the covenants in prior deeds, until he is made liable upon his own covenants and has satisfied his liability.

      11. Same — Covenant for Quiet Enjoyment.
    The covenant for quiet enjoyment is prospective, and until a breach occurs passes with the estate by descent or purchase.
    12. Same — Lease—Incumbrances.
    An outstanding lease is in no instance a breach of the covenant of warranty and should in all cases be held to be a breach of the covenant against incumbrances.
    Error to Wayne; Rohnert, J.
    Submitted October 7, 1909.
    (Docket No. 22.)
    Decided December 30, 1909.
    Assumpsit by David W. Simons against the Diamond Match Company for breach of covenants in a deed. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and judgment entered for plaintiff for nominal damages only.

      Geer, Williams, Martin & Butler, for appellant.

      Charles C. Simons and William J. Gray, for appellee.
    The facts which are here stated are not disputed. The owner of certain real estate incumbered by two mortgages, one dated March- 25, 1896, the other November 15, 1897, leased various portions of the premises to tenants; one of the leases made December 9, 1898, being for the term of five years, another, running one year, with the privilege of two years, from July 1, 1899, and a third forfive years, from January 15, 1899. The junior mortgage was foreclosed in chancery, and the property was purchased at foreclosure sale by one Scane, and he received the circuit court commissioner’s deed therefor. The tenants were not made parties to the foreclosure proceeding. Later, the senior mortgage was foreclosed by advertisement, and the premises were conveyed to the defendant by sheriff’s deed dated October 3, 1901. Scane quitclaimed to the defendant. By a deed dated January 24, 1902, acknowledged January 27, 1902, the defendant, an Illinois corporation, conveyed the premises to Burrows H. Rothwell by warranty deed. Rothwell, on January 29, 1902, conveyed the premises to the plaintiff by a warranty deed, subject to a mortgage, which Rothwell on the same day made to the Detroit Savings Bank, which the plaintiff assumed and agreed to pay. Meantime, the tenants above referred to occupied the premises. From them the defendant received rent, and it furnished to them heat and power, in accordance with the requirements of the respective leases. Both Rothwell and plaintiff knew how the premises were occupied, and were informed by defendant that the occupiers could remain only at the will of the owner, their leases having been avoided by the chancery foreclosure. Three of them declined to yield possession to plaintiff or to enter into new arrangements as his tenants. Notices to quit were served upon them, in which they were described as tenants under him. Proceedings were instituted February 24, 1902, before a circuit court commissioner to recover possession, and in the complaints which were filed plaintiff described himself as landlord and the occupiers as tenants under him. Judgments of restitution were rendered and were appealed from. In the circuit court one of the cases was tried and resulted in a judgment for defendant. That judgment was later affirmed in this court. Simons v. Drill Co., 136 Mich. 592 (99 N. W. 862). Under date July 20, 1904, Rothwell, by an instrument in writing, sold and conveyed to plaintiff all his right and interest by reason of and under certain covenants of warranty in the deed from defendant to himself and all claims for damages and all rights of action arising out of any breach thereof. In 1907, plaintiff began this action in assumpsit. In his declaration, which contains a single count, he sets out his title, and of the deed from defendant to Rothwell it is averred that the defendant therein covenanted that it was well seised of the premises in fee, that they were free from all incumbrances, and that it would warrant and defend the same against lawful claims. He does not aver upon which of these three covenants he relies, nor, unless by inference, the breach of any of them. The assignment by Rothwell of his rights of action for any breach is averred, a demand for possession of the premises upon defendant, and upon the persons in possession thereof, and inability to secure such possession. The right in which the occupiers held the property, or claimed to do so, whether they claimed as tenants or under a paramount or adverse title, when and under what right they entered, none of these things is specifically averred, but the institution of proceedings to recover possession, the result thereof, is recited, and a reference is made generally to what the records of the circuit court commissioner, of the circuit court, and of this court in those proceedings will disclose. It is averred that those proceedings were instituted at the request and with the advice and assistance of defendant. The declaration proceeds:
    “By reason of the said proceedings and the said judgments, the said plaintiff and his assignor were kept out of the possession of the said lands and premises, from, to wit, the twenty-seventh day of January, A. D. 1902, to, to wit, the third day of October, A. D. 1902, and that the said plaintiff and his assignor were put to great damage and expense by reason of said efforts to obtain possession and said failure to do so. Thereupon said defendant became obligated to plaintiff’s assignor to pay to him the damages resulting from the breach of the said defendant’s covenants in said deed, to wit, the sum of two thousand dollars ($2,000). And the said defendant, well knowing the premises, then and there promised to pay the said plaintiff’s assignor the said sum of money on request, yet the defendant has disregarded its said promises,” etc.
    "With the plea of the general issue the defendant gave notice that plaintiff’s grantor and assignor, Rothwell, was duly adjudicated a bankrupt on January 19, 1903; that in his petition he did not list any claim against the defendant for breach of any of the covenants of the said deed; that on February 10, 1903, a trustee of the bankrupt’s estate was duly appointed, who qualified and who became vested with title to all the property of said Rothwell, as of the date he was adjudicated a bankrupt; that said Roth-well did not give said trustee any information relative to any such claim against the defendant, and later, on March 30, 1903, he was discharged as a bankrupt; and that title to any such claim never revested in him. The trial of the action resulted in a verdict and judgment in favor of the plaintiff for $1,602.27, and upon this verdict judgment was entered. The verdict is based upon testimony of the rental value of the premises during the period plaintiff was kept out of possession. A motion for a new trial was duly made and was denied, for which denial the court assigned reasons in writing. The exceptions and the assignments of error based thereon raise, and the defendant, appellant, presents in this court, the following contentions:
    (1) That the declaration wholly fails to state a cause of action.
    (2) That the leases were terminated by the foreclosure of the second mortgage.
    (3) That if the leases or the occupancy of the property under the leases constituted the breach of any of the covenants contained in the deed from defendant to Rothwell they were a breach of the covenant against incumbrances, and that the right of action for that breach did not pass to the plaintiff by the deed from Rothwell to him, and did not pass by the written assignment from Rothwell to the plaintiff because of the bankruptcy proceedings.
    (4) That Rothwell sustained no substantial damage, for which reason plaintiff was in any event entitled to recover only nominal damages.
    (5) That because it appears from the opinion of this court (136 Mich. 592 [99 N. W. 862]) that plaintiff failed to recover possession on account of not having given 30 days’ notice to the tenants to quit he can recover only for 30 days’ denial of possession.

       Rehearing pending.

   Ostrander, J.

(after stating the facts). The declaration does not by direct averment, or by the averment of facts or circumstances, allege or import a breach of any covenant in the deed from defendant to Rothwell. The averments may be held sufficient to supply, inferentially, the information that the premises were occupied at the time the said covenants were made. Employing this inference, they are sufficient to apprise defendant that the persons so occupying remained in possession after the deed was delivered to Rothwell, and that as against plaintiff their right to remain in possession was judicially determined. But in these averments no breach of any covenant is assigned. If it could be said that the averment that possession was demanded of defendant as well as of the occupiers is consistent only with the idea that defendant was unable to deliver possession, we are no better advised. The idea that an averment of eviction is to be found in the declaration is consistent only with the other idea that the deed to Rothwell conveyed the title to the premises and with the title constructive possession, since neither Rothwell nor plaintiff had actual possession. In this view of the matter, the covenant of warranty is not involved. And even if it should be assumed that the occupiers held under prior valid leases, and that the covenant against incumbrances was for that reason broken, it was broken when it was made. It is apparent, and is admitted, that the grantee, Rothwell, suffered nominal damages only. The contention is made that the testimony establishes the fact that plaintiff, and not Rothwell, was the real purchaser from defendant, and that therefore the covenants inured to the benefit of plaintiff. Clearly, no such theory as this is suggested in the declaration. In my opinion, the declaration is wholly bad, and the objection to receiving any testimony should have been sustained.

Some of my brethren do not agree with me, and are of opinion that, inasmuch as no demurrer to the declaration was interposed and a trial has been had, and especially because the declaration avers that the proceedings instituted by plaintiff to recover possession of the premises were so .instituted at the request of defendant, and were conducted with the advice and assistance of defendant, we should treat the declaration as sufficiently averring a breach of one or more of the covenants in the deed from the defendant to Roth well. The information obtained from the testimony is that the parties in possession of the premises had leases, for years, from a former proprietor. After the chancery foreclosure the tenants attorned to the defendant upon the terms of their respective leases. They declined to enter into new arrangements with plaintiff.

An incumbrance, within the meaning of covenants in deeds, has been broadly defined as “every right to, or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance” (Prescott v. Trueman, 4 Mass. 627, 629 [3 Am. Dec. 246]), used with approval by Cooley, J., in Post v. Campau, 42 Mich. 90, 95 (3 N. W. 272). See, also, 2 Greenleaf on Evidence (16th Ed.), § 242; Rawle on Covenants for Title (5th Ed.), §§ 75, 76. It is believed not to have been the practice in this State to except from the operation of the covenant against incumbrances outstanding leases. Yet it is clear that a term for years, under a prior lease, falls within the definition, and such a lease has been held to be an incumbrance within the meaning of the covenant. Rawle on Covenants for Title (5th Ed.), §§ 77, 78; Edwards v. Clark, 83 Mich. 246 (47 N. W. 112, 10 L. R. A. 659). In some jurisdictions it is held that, where the purchaser accepts a covenant against incumbrances with knowledge of the tenant’s possession and claim, the lease will not be considered a breach of the covenant. In this State, although the deed is held to pass to the purchaser, as an incident of the reversion, the right to collect the rent reserved in the outstanding lease, evidence is not admitted to show that an existing incumbrance was to be regarded in fact as no incumbrance. And one who purchased with knowledge, and who had the benefit of the leases, was denied relief in equity. Haldane v. Sweet, 55 Mich. 196 (20 N. W. 902). Whatever doubt may have at any time been cast upon the doctrine that a bare covenant that the premises demised “ are free from all incumbrances whatever” is personal, broken when made, if at all, and does not run with the land, no such doubt now. exists. Pease v. Warner, 158 Mich. 140 (116 N. W. 994). There is testimony tending to prove that defendant assured plaintiff that the tenants in possession had no right to possession, and assisted plaintiff in his attempt to secure possession through legal proceedings. I know of no way to add these oral assurances to the written covenants in the deed from defendant to Rothwell, so as to extend or enlarge the effect of those covenants. The fact remains that defendant covenanted with Rothwell that the premises were free from all incumbrances. They were not. The covenant was broken, and Rothwell had his right of action. It is conceded that his damages were nominal. He assigned his right to plaintiff, who is limited in his recovery to such damages as Rothwell had suffered.

As to the covenant of seisin, it also was broken, if at all, when made, and Rothwell’s right of action was an immediate one. It is contended, however, that a breach of the covenant of warranty is made out, and that this covenant is, as well, one for quiet enjoyment. It is conceded that, to constitute a breach of this covenant, there must be an eviction or a disturbance of possession under paramount titles and asserted that plaintiff’s possession was disturbed when he was held out of possession by the tenants. Conceding, for the purposes of the argument, that the particular covenant may be treated as a covenant for quiet enjoyment (see Peck v. Houghtaling, 35 Mich. 127; Rawle on Covenants for Title [5th Ed.], § 114, and notes), if the outstanding lease was a breach of the covenant, it was broken — the eviction, if there was one, took place — when the deed from defendant to Rothwell was made. Rothwell was not let into possession. Assuming that he had, by virtue of his conveyance, the constructive possession, he was evicted. The paramount title was then asserted, and for the breach Rothwell had his right of action. True, the covenant is prospective in character, and, until breach occurs, passes with the estate by descent or purchase. But it is conceded that the right of action for the breach does not pass with a subsequent deed of the land. One who has parted with his interest in land parts with his right to enforce the covenants in his grantor’s deed, or in prior deeds, atleast, until he is made liable upon his own covenants and has satisfied his liability. These considerations do not afford the plaintiff any aid, and, in my opinion, they do support the proposition that an outstanding lease is in no instance a breach of the covenant of warranty, and should in all cases be held to be a breach of the covenant against incumbrances. Plaintiff’s title is not assailed What he seeks is indemnity for a loss of the use of the property he owns. He does not choose to assert his demand against his immediate covenantor. His rights are in any event limited by the damages accruing to his assignor, Rothwell.

In the view of the matter which has been indicated, the other questions raised and discussed by counsel become unimportant. A judgment should have been directed for the plaintiff for nominal damages, with costs to defendant. The judgment of the court below is reversed, with costs of both courts, and a judgment will be entered in the court below for the plaintiff for nominal damages.

Blair, C. J., and Grant, Montgomery, and Hooker, JJ., concurred.


author: Brooke, J.

text:
    NORTHRUP v. CITY OF PONTIAC.
    1. Appeal and Error — Motion for New Trial — Weight of Evidence.
    A verdict will not be set aside on the ground that it is against the weight of the evidence unless the question was presented to the trial court on motion for a new trial.
    2. Municipal Corporations — Sidewalks and Cross-Walks — Defects — Streets.
    A grating which projects two inches or less above a sidewalk is not such a defect as to violate the duty of a municipality to keep its streets and walks in a condition of reasonable safety.
    Error to Oakland; Smith, J.
    Submitted October 13, 1909.
    (Docket No. 62.)
    Decided December 30, 1909.
    Case by Henry O. Northrup against the city of Pontiac for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      E. E. Hymers, for appellant.

      Pelton & McGee, for appellee.
   Brooke, J.

The plaintiff was injured by falling upon a sidewalk in the city of Pontiac, October 10, 1908. The sidewalk in question was more than 15 feet wide, constructed of cement, and was located upon the principal business street of the city. At the time the walk was constructed, some five or six years prior to the injury to plaintiff, a hole or area had been left therein in front of the premises No. 55 Saginaw street. This hole was located close to the building and was from the date of construction to the date of the injury covered by an iron grating, 3 feet, 4f inches long, 23f inches wide, and weighing 117i pounds. The grating was provided with an iron flange projecting upon all its sides, about 1£ inches; the apparent purpose of the flange being to support the grating upon the surrounding walk when it was placed in the opening. In the work of construction, either the area was made too small to accommodate the grate or (if the grate was made for that particular opening) it was made too large, with the result that, instead of dropping into the area and being supported by the extending flange, the entire grate lay upon the walk, covering the area. This caused an obstruction at the point indicated, about 2 by 3 feet in superficial area, and above the level of the surrounding walk, at one corner, 1% inches, and at another If inches. The plaintiff, who was very familiar with the situation, claimed that he caught his toe under the projecting flange, that he fell, and was injured. The accident occurred about 9:30 p. m. upon a rainy evening. Plaintiff had judgment.

The first assignment of error considered is that the verdict is against the weight of the evidence. This question was not raised upon the motion for a new trial, and cannot, therefore, now be considered. Clarke v. Case, 144 Mich. 148 (107 N. W. 893).

It is next urged that under the repeated decisions of this court the obstruction complained of, even conceding that it caused plaintiff’s injury in the manner claimed, was not such as to render the walk not reasonably safe for public travel. The cases relied upon by appellant are Weisse v. City of Detroit, 105 Mich. 482 (63 N. W. 423); Yotter v. City of Detroit, 107 Mich. 4 (64 N. W. 743); Shietart v. City of Detroit, 108 Mich. 309 (66 N. W. 221); Jackson v. City of Lansing, 121 Mich. 279 (80 N. W. 8); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991); Bennett v. City of St. Joseph, 146 Mich. 382 (109 N. W. 604); McIntyre v. City of Kalamazoo, 154 Mich. 301 (117 N. W. 729). The case of Weisse v. City of Detroit, supra, deals with a defective cross-walk, and therefore may be said to be not directly in point. The others, including Yotter v. City of Detroit, deal with defective sidewalks. A careful examination of all of them leads to the conclusion that the court has held, as a matter of law, that an inequality of two inches or less in a sidewalk does not render it not reasonably safe for public travel. It is obviously difficult to determine at just what point a jury should be permitted to pass upon the question. The case at bar, however, in our opinion, clearly falls within the rules laid down in the cases cited, supra. It is urged by the plaintiff that those cases should be distinguished from this case, because the defects complained of were (generally) depressions; whereas, we are here considering an obstruction by way of elevation. In our opinion the distinction cannot be made. There can be no depression without a corresponding elevation, and no elevation without a corresponding depression. One is the complement of the other.

It was not the intention of the legislature to impose upon the municipality a duty beyond that of keeping its streets and walks in a condition of reasonable safety. To permit a depression or elevation of two inches or less, we have held to be no breach of that duty. To permit a recovery in the case at bar would impose upon municipalities a higher degree of care and a larger responsibility than they have heretofore borne, and from which, under our decisions, they have had the right to assume they were immune. In the case of Wedderburn v. City of Detroit, 144 Mich. 684 (108 N. W. 102), relied upon, by plaintiff, the obstruction, a flagstone, was Si inches thick, an elevation just twice as great as the one in the case at bar. There this court held the question of the reasonableness of the condition to be one for the jury; and that determination was quite in harmony with the cases here considered.

The judgment is reversed, and, as there is no dispute as to the negligence relied- upon, there will be no new trial.

Blair, C. J., and Grant, and McAlvay, JJ., concurred with Brooke, J.

Moore, J. I concur in the result.


author: McAlvay, J.

text:
    ULMER v. SEELMAN.
    1. Trespass — Assault and Battery — Justification — Highways.
    In an action of trespass for throwing stones at the plaintiff and injuring him and for an assault with a shovel, the evidence showing that the plaintiff did hot get out of the rig in which he rode, it is not a justification that the plaintiff drove out of the beaten track upon that portion of the highway cultivated by the defendant.
    2. Same — Evidence — Character and Disposition — Quarrelsomeness.
    Where a party claims in defense to an action of trespass for an assault that he was afraid of the plaintiff, because of the latter’s reputation and quarrelsome disposition, it is error to exclude questions, on cross-examination of the defendant, which tend to show by specific instances his own disposition and reputation as to the same matters.
    3. Same — Self-Defense—Evidence of Malice.
    Testimony is improperly excluded which tends to show that the defendant bore ill will towards the plaintiff and his brother.
    4. Same — Evidence—Collateral Issues.
    A question by defendant’s attorney as to the defendant’s condition and appearance since the death of his son by drowning attempts to introduce improper evidence.
    5. Same — Highways—Assault and Battery.
    Error was committed by the trial judge in charging the jury, as requested by the defendant, that the owner of land along a highway is entitled to its use to the center, subject to the usual rights of travel by the public, under evidence which showed that the defendant was not attempting to eject plaintiff as a trespasser or to defend his premises against a trespass.
    6. Trial — Jury—Improper Conduct of Parties.
    Improper conduct of a party with the jury, known to the other party to the action during the trial and not brought to the attention of the trial judge by objection or otherwise, is not ground for a reversal.

      Error to Ottawa; Padgham, J.
    Submitted October 13, 1909.
    (Docket No. 60.)
    Decided December 30, 1909.
    Trespass vi et armis by John Ulmer against John Seelman. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      Walter I. Lillie, for appellant.

      George A. Farr, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant for damages for personal injuries inflicted upon him by defendant, who, he charges, seriously assaulted him with stones, breaking a rib, and otherwise injuring him permanently. Defendant pleaded the general issue, and gave notice of self-defense in justification. That an altercation occurred between these parties, and that plaintiff’s rib was broken and his face bruised by stones thrown at him by defendant, does not appear to be disputed.

These men. were farmers in Ottawa, county, living on farms a few miles apart. There had been some bad feeling between them. Plaintiff was driving along the highway in front of defendant’s premises on May 8,1907, when he met defendant, who was also in the highway with his team and wagon at work picking up stones. The highway at this place was not fenced, and defendant cultivated it up to the traveled track. Words were had between them, and plaintiff claims that defendant attempted to pull him from his buggy by the legs, and, becoming very angry, threw two large stones at him, hitting him on the side of his face, severely bruising it, and also striking him in the side and breaking a rib, and then assaulted him with a shovel. That he threw the stones by which plaintiff was injured is not denied, nor that plaintiff remained in his buggy during the difficulty. Plaintiff had worked on this day, May 8, 1907. He had drilled in 13 acres of oats on a farm some distance from his home. He took his dinner with him, and with it some hard cider. He finished this work at 4 o’clock in the afternoon, and took the borrowed drill to the home of the owner. He then started towards home with his team and buggy, and on his way passed defendant’s farm, beyond which he stopped and talked with some acquaintances, at which time his former trouble with defendant was spoken of. While at this place he remembered that he needed mangel-wurzel seed, and started back for the village of Conklin to get it. There is evidence from these witnesses that the fact that he had been drinking was noticeable. Defendant’s version of the affair is that plaintiff drove up, stopping on the cultivated land, and began to use threatening language towards him; that both of them called vile names; that plaintiff, while in the buggy, kicked at him, and threatened him, and arose in the buggy as if to get out, and he, in fear of great personal violence, picked up the stones and threw at plaintiff; that plaintiff afterwards circled twice around in his field and came back where he was, and he dodged to avoid being run over, and got the shovel, striking him as he went by the second time. Plaintiff claims that the blows from the stones rendered him unconscious, and when he came to himself the team was running away on defendant’s field.

The result of the trial was a verdict of no cause of action, upon which a judgment was entered. Plaintiff moved for a new trial because of claimed improper conduct of defendant towards the jurors during the trial, because of the erroneous admission and rejection of testimony, and on account of errors in the charge of the court. This motion was denied, and the case is before us for review upon writ of error.

Errors are assigned upon the refusal to grant a new trial, and upon the rulings of the court during the trial of the case, and in charging the jury as above indicated. A large part of defendant’s argument is taken up with a discussion of the question of the rights of an abutting owner in the highway passing along or through his premises, where he cultivates up to the beaten track, and it would seem from defendant’s requests and the charge of the court that the case turned largely upon the question as to whether or not plaintiff was a trespasser. This probably arises from the fact that defendant claims that plaintiff, when he came up to defendant in the highway, drove out of the beaten track in going around him. Plaintiff testifies that in passing he turned out in the proper way, but defendant turned out on the same side, and compelled him to turn out farther to get around him. If plaintiff was a trespasser in turnin g out from the track, and got beyond the limits of the highway, which is very doubtful, that would be no justification for the assault of defendant committed upon him, as stated in defendant’s testimony. The record is undisputed that plaintiff was in his buggy alongside of defendant and his wagon and team from. the time he drove up until after he had been hit with the stones. Both parties so testify. Defendant says he was on the ground picking up stones when plaintiff stopped his team and began in a threatening manner to use profane and vulgar language towards him; that he told plaintiff to drive on about his business. He testifies :

“I says, ‘You may drive where you are a mind to.’ He says, ‘ I don’t care anything about that, all I am mad about is because you wanted a contract.’”

(This refers to a lease of some pasture, out of which bad feeling between them arose.) Defendant further says that he did not know what he meant or was going to talk about, for he had not spoken to him for three or four weeks. He testifies:

“I was scared half to death when he first got on there, because he didn’t speak to me.”

In order to get a clear understanding of his testimony it must all be read with care. From it we find that he claims plaintiff next rose up as if to jump out of the buggy and kicked at him, striking his hands and arms; that in dodging he fell backwards, and then took up the stones and hurled them at plaintiff. Then plaintiff drove away rapidly, circling around the field twice, and coming back both times to where defendant was, and he would have been run over had he not jumped out of the way. He went across the road and got a shovel and hit plaintiff across the back as he went by the second time. He also says he was physically a weak man.

Most of the errors assigned relate to the evidence excluded or admitted. We will consider such as appear of importance. During the trial defendant put in evidence tending to show the quarrelsome disposition and fighting propensities of plaintiff. Defendant had testified to plaintiff’s disposition in that regard, and that he was afraid of him and “most scared to death” when he came there; that his heart thumped, and he did only what he thought necessary to protect himself. On cross-examination plaintiff’s counsel sought to show defendant’s disposition and reputation as to the same matters. This was not permitted by the court. We think this was proper cross-examination, as bearing upon the question whether or not defendant was in fact afraid of his life, and thrown into the condition he claimed on account of the presence of plaintiff, and as to his credibility. The questions called defendant’s attention to specific instances. It was error not to allow the examination. It was material for the purpose offered.

Evidence offered tending to show malice and ill will on the part of defendant towards the Ulmers (being plaintiff and his brother) was objected to and excluded on the ground of incompetency and immateriality, and preliminary questions were stricken out, because two were included in the statements of defendant sought to be shown, and plaintiff was not personally named. This was error. If this testimony would show that plaintiff was one of the Ulmers towards whom he held malice or ill will, it would be material to the issue.

A doctor was being examined who had known defendant for six years, and testified that he looked to be a man in ill health. Witness was then asked whether he knew of the death of a son of defendant by drowning a year before. Plaintiff objected on account of immateriality, and was sustained. Counsel for defendant then stated that it was for the purpose of fixing a date. Witness was then asked:

“Q. Whát can you say as to his condition and appearance, doctor, since that tragedy ?
“A. It is the condition he has been in ever since I have known him.”

This question, subject to objection, was again asked in the same words, and was answered in the same words. Plaintiff’s objections and exceptions to these questions and answers were timely, and the last objection was clearly well taken. ' The testimony was immaterial and improper.

Plaintiff excepted to two requests of defendant given to the jury. These requests are based upon the case of People v. Foss, 80 Mich. 559 (45 N. W. 480, 8 L. R. A. 472, 20 Am. St. Rep. 532), where grass along a highway within its limits and outside the beaten track was wantonly destroyed. It will not be necessary to quote them, for the reason that the assault and battery relied upon in this case was not committed in ejecting a trespasser or in defending premises against a trespass. The requests were improperly given.

Certain portions of the general charge are excepted to, but as no requests appear to have been presented by plaintiff in the case, and the attention of the court was not called to the part complained of, we do not consider the question.

The questions raised upon- the motion for a new trial relative to the improper conduct' of defendant towards members of the jury were based upon knowledge which plaintiff had during the course of the trial, and no objection was made, nor were the facts called to the attention of the trial judge. The plaintiff cannot complain under such circumstances. Walker v. City of Ann Arbor, 111 Mich. 4 (69 N. W. 87), and cases cited.

For the reasons herein stated, the judgment is reversed, and a new trial is granted.

Blair, C. J., and Grant, Moore, and Brooke, JJ., concurred.


author: Blair, J.

text:
    SCHULTZ v. DENNISON.
    1. Landlord and Tenant — Crop Rents — Title.
    Under an agreement between the owner of land and a third person renting the ground on shares, and dividing in advance the corn to be planted on the premises by assigning to the owner every third row of shocks, beginning at the south side, the owner had title to such of the standing corn as in the course of good husbandry would be put into the first, fourth, etc., rows of shocks, without reference to any division by the tenant.
    2. Same — Partition—Joint Ownership — Voluntary Nature oe Proceedings.
    Title to the landlord’s interest passes to a joint owner who obtains his title to a portion of the rented real property by uncontested proceedings in partition, as by a voluntary conveyance without a reservation of the crops.
    3. Partition — Joint Interests — Crops.
    It is competent for the court to adjust the equities of parties to a partition proceeding in the decree.
    4. Estoppel — Deoeit—Interests in Crop.
    One who rents lands for a share of the crops determined specifically, by rows, in advance, is estopped to set up his agreement, in an action of trover for converting a portion of his share, against a defendant who took the interest of the lessor and appropriated a third of the crop in reliance on the tenant’s statement that the owner was to have an undivided third of the corn.

      Error to Kent; Perkins, J.
    Submitted October 14, 1909.
    (Docket No. 89.)
    Decided December 30, 1909.
    Trover by Lawrence Schultz against Ella R. Dennison. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Rodgers & Rodgers, for appellant.

      Walker & Fitzgerald, for appellee.
   Blair, J.

This is an action of trover to recover the value of certain shocks of corn. On the 87th day of June, 1908, the defendant, Ella R. Dennison, was divorced from her husband, William H. Dennison, by decree of the circuit court for the county of Kent, in chancery. This decree, after setting off certain lands to the said Ella, left 80 acres of land to the said William. Subsequent to the making of the decree, the said Ella obtained title to an undivided one-half of the 80 acres through tax deeds. In 1906, and again in April, 1907, the plaintiff entered into cropping agreements with William H. Dennison. The agreement made in April, 1907, according to plaintiff’s testimony, was as follows:

“ * * * Told him I had come to rent the corn ground again. He said, ‘All right.’ He wanted to know what share I wanted.. We said we thought he ought to have one-third. He said that would be all right. Then he wanted to know how — I wanted to know of him how we would divide it, and he said, ‘ Well, I want something as near — something like it was last year, so if I want some for my chickens and turkeys I can go and get a little before you husk it.’ Then I says, ‘We will commence on the south side, and you take the first row along the south side and leave me two, and you one, and so on across the field.’ And he said that would be all right. Upon that agreement I went on and cultivated 10 acres of corn ground northeast of Mr. Dennison’s house. Commenced to plant along the south side, what I term the first row running east and west. I raised a crop of corn on that 10 acres. I planted it, cultivated it, took care of it, and cut it. After it was cut I put it in shocks. I put 6 rows east and west into a row of shocks. There were 30-shock rows in the cornfield and 3 shocks over. There were 23 shocks in a row.”

About the time of plaintiff’s agreement with Dennison, the defendant instituted partition proceedings against Dennison in the circuit court, in chancery, which resulted in a final decree on July 1, 1907, setting off to the said Ella, among other lands, the 10 acres upon which the corn in question was then growing. A certified copy of this decree was served upon plaintiff prior to the alleged conversion of the corn. About the 10th of October, 1907, defendant, claiming to be entitled, under her partition deed, to Dennison’s share of the corn, began to remove it, but took something less than one-third of the shocks. On the day she began removing it, she had a talk with plaintiff, which, according to his testimony, was as follows:

“ Mrs. Dennison spoke, and she wanted to know what share of that corn Dennison got: I told her he got one-third, husked and put in the barn, and she says: ‘ He has taken 23 shocks. How does that come ?’ I says, ‘ I guess he has got a right to.’ She says, ‘ Well, we are going to fix Dennison and take the corn. ’ I says, ‘ Are you ?’ And then Jim, Mr. James Hope, he spoke up, and he says, ‘ It don’t do no good to serve papers on you folks.’ He says he is going to take the ground share, no matter where we find it. My father, he says, ‘ You mean to say then you are going to take the boy’s share ?’ And then Mrs. Dennison says, ‘We are going to take the ground share, no matter where we find it.’”

Defendant did not take the first and fourth rows, and so on through the field, but took rows which plaintiff claimed were set apart and belonged to him under his agreement with Dennison.

At the close of the testimony, the circuit judge directed a verdict for defendant, on the grounds: (1) That her deed in partition gave her title to Dennison’s share of the crop; and (2) that, in view of plaintiff’s statement to her that Dennison’s share was “one-third husked and put in the barn,” he was estopped to rely upon the claimed agreement that he was to have the first and fourth rows of shocks and so on. Plaintiff brings the record to this court for review upon writ of error, contending that the court erred in holding that defendant acquired title to Dennison’s share of the corn through her partition deed, for two reasons:

(1) Because at the time the decree of partition was made the title to the land was in one person, and the title of the crops was in another person. This constituted a constructive severance of the crop of corn which made the corn personal property and prevented its passing, with the land.
“ (2) Because at the time the crop was sown the tenure or right of possession of William Dennison in this particular 10 acres of land was uncertain and indefinite. It having terminated by operation of law while the crop was growing, he would, for that reason, have the right of emblements ; that is, the right to harvest his crop after the termination of his right of possession.”

In support of this proposition it is argued: That William Dennison, being a joint owner of the land, in exclusive possession thereof at the time of the agreement with Schultz, was entitled to the crops raised thereon as against the other joint owner, citing note to Le Barron v. Babcock, 9 L. R. A. 625 (122 N. Y. 153, 25 N. E. 253). That, under his contract with Dennison, Schultz, as a cropper, was entitled to possession of the whole crop until it was divided, citing Freese v. Arnold, 99 Mich. 13 (57 N. W. 1038).

“Therefore, the title to the land being in Dennison, or, to say the most, being in William Dennison and Ella R. Dennison, and the title of the crops being in Schultz, or, to say the most, being in Schultz and William Dennison, we submit there was such a constructive severance as would render the crops personal property and prevent their passing with the title to the land on which they were grown.”

In considering this proposition, it is to be borne in mind that no question is made as to the right of plaintiff to two-thirds of the corn. The only question is as to the title to Dennison’s third. It is unnecessary to enter into a discussion of the technical relations of Schultz and Dennison for the purpose of determining their rights of title, possession, and division of the crop, since those rights, according to plaintiff, were determined in advance. In addition to the testimony as to the agreement above quoted, plaintiff testified as follows:

“Q. You said on direct examination that at the time you took the contract the corn was to be divided when cut and shocked. Why didn’t you go down and divide it with Mr. Dennison or some one ?
“A. There was no need of it.
“Q. Then it was not to be divided then, was it ?
“A. It had already been divided.
“Q. Then what made you say that it was to be divided when it was cut and shocked ?
“A. It was divided before it was cut and shocked; yes, sir.
“Q. Divided before the'seed was sown ?
“A. Yes, sir.
“Q. Divided before you turned a furrow, wasn’t it ?
“A. Yes, sir.”

Plaintiff’s father testified as follows:

“ Lawrence told him he came up to rent the corn ground, as near as I can remember. He wanted to know what share he would give or wanted, and Mr. Dennison said one-third, husked and delivered, in the barn; and Mr. Dennison then wanted it so that he could get corn for early feeding for his chickens, and the boy says, ‘Well,’ he says, ‘ you can commence there along the lane on the south side and take the first row, leave me two, and take as much as you want to,’ and Mr. Dennison says that would be all right, something. * * * In the year before the corn was divided equally, and he took the first row on the north side along the lane leading to the woods and left one, and so on.”

As we understand the plaintiff’s testimony, Dennison’s share of the corn was set apart for and belonged to him, from the outset, regardless of the number of bushels of corn grown. Beginning at the south side of the field, Dennison owned so much of the growing or standing corn in situ as would, in the course of good husbandry, be put into the first, fourth, seventh, etc., rows of shocks. His title to the corn did not depend on a division to be made by Schultz or any one else. We are therefore of the opinion that the point is not well taken.

We regard this proposition as well founded, unless, as contended by counsel for defendant, the nature of partition proceedings is such that conveyances thereunder are to be considered as the voluntary act of all of the parties. If the defendant’s title is to be regarded as the result of hostile proceedings against her co-tenant, the case is ruled by McDaniels v. Walker, 44 Mich. 83 (6 N. W. 112). The subpoena in the partition proceedings was personally served upon William H. Dennison. He put in no answer, and a pro confesso decree was entered against him. The final decree, confirming the report of the commissioners partitioning the land, must, we think, be given the same effect as though it was the result of the voluntary action of the parties in deeding to each other. 30 Cyc. p. 287, sub. b; 21 Am. & Eng. Enc. Law (2d Ed.), p. 1,209, § 12; Campau v. Barnard, 25 Mich. 381; Tharp v. Allen, 46 Mich. 389 (9 N. W. 443). It is competent for the court, in partition proceedings, to adjust the equities of the parties in the decree. Fenton v. Miller, 116 Mich. 45 (74 N. W. 384, 72 Am. St. Rep. 502). Mr. Dennison was at liberty to file an answer in the partition proceedings, setting up his interest in the growing crops, and the court had power to reserve such interest to him in the final decree. He took no steps to protect his interest in the crop, and it was cut off by the decree as effectively as though he had himself deeded the land to Mrs. Dennison without reservation.

It is also contended that the court erred in holding that plaintiff was estopped to set up the true agreement in support of his action. It appears from the plaintiff’s own testimony that, knowing that defendant was inquiring of him as to Mr. Dennison’s interest in the corn for the purpose of appropriating such interest, he deliberately deceived her as to such interest by suppressing the fact that Mr. Dennison was the owner of specific rows of shocks. We agree with the circuit judge that, having induced Mrs. 'Dennison to act upon his representation that Mr. Dennison was the owner of an undivided one-third of the corn, he was estopped to assert the contrary.

The judgment is affirmed.

Grant, Moore, McAlvat, and Brooke, JJ., concurred.


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    FROHLICH v. ASHTON.
    1. Mechanics’ Liens — Overcharge—Estoppel.
    A materialman who flies a mechanic’s lien is not estopped by the fact that, without bad faith, he claimed more than was due him.
    2. Same.
    Where the mistake in claiming a mechanic’s lien for an excessive amount is an honest one, the lien is not lost.
    3. Same — Divisions of Amounts among Claimants.
    In determining the amounts to be paid each of the lienors, the cost of the building, where the contractor defaults and compels the owner to complete the building, includes not only liens which have been allowed but all unpaid creditors for material and labor furnished.
    Appeal from Wayne; Donovan, J.
    Submitted October 14, 1909.
    (Docket No. 91.)
    Decided December 30, 1909.
    Bill by Simon Frohlich against Laura M. Ashton, Abram Sapiro and others to enforce a mechanics’ lien. From the decree rendered, defendants Ashton and Sapiro appeal.
    Modified and affirmed.

      Lucking, Emmons & Helfman, for complainant.

      Bernard B. Selling, for defendant Ashton.

      Edwin S. Bartlett, for defendant Sapiro.

      Covert & Berry, for defendant Howie Roofing Co.

      Joseph H. Bayne, for defendants Guilloz and Touseau.

      George M. Bead, for defendant Forster.

      O. E. Angstman, for defendant Weber.
   Moore, J.

The bill of complaint was filed to foreclose a mechanic’s lien. Six other lienors filed cross-bills for the same purpose. There is substantially no dispute of fact. The two questions raised relate solely to the method by which the balance owing by the owner is to be distributed among the lienors. The circuit judge rejected the lien of the Michigan Lumber Yard and made division of the money among the others. The owner subsequently purchased the rejected lien.

On July 14, 1906, Laura M. Ashton entered into a written contract with George L. Horning for the erection of a brick dwelling house for the sum of $5,750. The various lienors were subcontractors under Horning. When it was almost entirely completed, Mr. Horning abandoned the job, and Mrs. Ashton employed Mr. Vinton to complete the building, and paid him $25.20 for doing so. The owner, Mrs. Ashton, testified: That the contract price was $5,750; extras, $262.10; total, $6,012.10; that she had paid on the various accounts $5,332. 92. She claimed slight deductions from the balances claimed by Frohlich Glass Company, Mr. Forster, and the Howie Roofing Company, which were allowed, and it was agreed by her and the lienors that the following was a correct statement of all the unpaid creditors, whether they were lienors or not:

Name. Amt. of Claim. Amt. Paid.
1. Frolich Glass Co........-..$1,124 08 $800 00
2. Samuel J. Guilloz......... 163 75 120 00
3. Richard J. Forster....... 219 14 100 00
4. Howie Roofing Company.. 142 05 40 00
5. White & Fisher......... 414 00 147 00
6. Kinney Electric Co________ 99 00 50 00
7. John Bollin-......... 2,050 00 2,000 00
8. Detroit Mantel & Tile Co... 32 00
9. H. C. Weber............ 67 15
10. Schneider & Carrol........ 229 00 100 00
11. Pittsburg Plate Glass Co... 27 18
12. Michigan Lumber Yards.. 983 57 700 00

Numbers 6, 10, and 11 filed no liens. No. 12 filed a lien, but did not appear further in the proceeding. Payments were made without requiring the affidavit provided in section 1 of Act No. 17, Pub. Acts 1903. The Michigan Lumber Yard had guaranteed the performance of the original contract, and payments were made at the request of its manager to the contractor.

Counsel for the appellees contend as follows:

“ Two questions are therefore presented:
“(1) Was the Michigan Lumber Yard estopped from participating in the distribution of funds remaining on hand?
“(2) In determining the percentage to which each of the lienors is entitled, should the cost of the building include only the liens which have been proved and allowed, or also all unpaid creditors, without regard to whether they have filed claims of lien at all, or, having filed the same, have neglected to prqve them in this suit, to which they are parties ? ” and answers the first one in the affirmative and the second one by saying the cost of the building should be deemed for this purpose to include only the liens which have been proved and allowed.

In addition to the questions, the counsel for appellants contend that, as complainant in his affidavit made a claim for $45 in excess of his actual claim, he should be held to have lost his lien. There is nothing to indicate that complainant intentionally made a greater claim than was due. The difference is shown to have arisen out of an exchange or return of seven doors that were sent to the house. The rule has been stated to be that, where the mistake in claiming the lien is an honest one, the lien will not be lost. Fairbairn v. Moody, 116 Mich. 61 (74 N. W. 386, 75 N. W. 469); Frohlich v. Carroll, 127 Mich. 561 (86 N. W. 1034).

The other question is, How should the pro rata be computed ? Should the cost of the building be held to include only the liens which should have been allowed, or should it be the actual cost ? These questions are answered in the language of Justice Carpenter in Godfrey Lumber Co. v. Cole, 151 Mich. 280 (114 N. W. 1018):

“Its counsel insist that in computing the cost of the building the trial court should not have considered payments made contrary to the provisions of section 10713, 3 Comp. Laws. We have never discussed this question; but we have decided it. We have held that such payments for labor or material actually used in construction are proper items in determining the cost of the building. Delray Lumber Co. v. Keohane, 132 Mich. 17 (92 N. W. 489); Kotcher v. Perrin, 149 Mich. 690 (113 N. W. 284). See, also, Fairbairn v. Moody, 116 Mich. 61 (74 N. W. 386, 75 N. W. 469), and Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797). See, also, Wilkinson on Mechanics’ Liens, §§ 100, 101. It is conceded that if the owner had paid nothing, and all those who contributed labor and material asserted liens, complainant would receive precisely what this decree gives him. We are unable to see why it should receive more because the claimants were paid and paid before they asserted their liens. This method of computation deprives the owner of credit for, and compels him to lose, all that he has paid to the various laborers and materialmen in excess of their pro rata share as required by Smalley v. Gearing, supra. As applied in this case, it will compel defendant to pay $4,115.32 for houses which his contract entitled him to have for $3,500. Complainant as a lien claimant had a right to insist that the contract price be apportioned among the laborers and materialmen. Had such an apportionment been made, it would have all that it was entitled to receive. Fairbairn v. Moody, and Kotcher v. Perrin, supra. The decree appealed from gives complainant precisely what by such apportionment it is entitled to receive. This is equitable and legal and in accordance with our decisions. There is no merit in complainant’s contention.”

It follows that the computation made in the court below is erroneous, and the decree should be modified accordingly. The' appellant will recover costs of this court.

Blair, C. J., and Grant, McAlvay, and Brooks, •JJ., concurred.


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    WEST v. DETROIT UNITED RAILWAY.
    1. Negligence — Form of Action — Survival Act — Wrongful Death.
    A continuing injury, resulting in death within a few moments, is instantaneous within the meaning of the death act; 3 Comp. Laws, § 10437, and where an injured person continued to live for fifteen minutes after he was struck by a street car, being dead when removed from beneath it, the action should be brought under the death act and not the survival act.
    .2. Same — Contributory Negligence — Street Railways — Customs in Operation — Regulations.
    While a pedestrian may rely, in crossing a street car track near its intersection with another track, on a custom or regulation to stop cars at a given place, the rule is not applicable to a decedent who, while engaged in conversation, attempted to cross in front of a car in plain view running at full speed, when a glance at it must have advised the deceased that it was not intended to observe the custom.
    Error to Wayne; Lockwood, J., presiding.
    Submitted October 14, 1909.
    (Docket No. 86.)
    Decided December 30, 1909.

      Case by Mary F. West, administratrix of the estate of Charles L. West, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Brennan, Donnelly & Van De Marie, for appellant.

      Trevor & Bumps, for appellee.
    On August 16, 1907, the day on which plaintiff’s decedent lost his life, defendant company operated a double-track street railway on Gratiot avenue, Detroit. On and prior to that date Gratiot avenue was torn up for the purpose of repaving, and a temporary track was laid, south of the regular tracks, and within about four feet of the south curb, for the accommodation of east-bound cars. At the time of the accident, there were three tracks on Gratiot avenue where it intersects the East Grand boulevard. There were two temporary cross-overs, built across the tracks at this point, to accommodate traffic going north and south upon the boulevard. Decedent, in company with Philip West, his son, and Emil O. Basey, his son-in-law, was walking east on the south side of Gratiot. When they reached the boulevard, they desired to cross Gratiot, and attempted to do so, about 15 or 20 feet east of the west curb of the boulevard, south of Gratiot. Philip West and Basey were slightly in advance of decedent, and crossed in safety;'but decedent was struck by an east-bound car. He was carried under the car and crushed, so that when taken out life was extinct. He was heard to groan for about 15 minutes after the accident. Decedent had resided in Detroit about two weeks.
   Brooke, J.

(after stating the facts). Plaintiff’s principal allegation of negligence is based upon the fact that the car which struck plaintiff’s decedent did not stop at the westerly side of the boulevard, in violation of its. duty so to do. It was the claim of plaintiff that decedent in crossing the track relied upon the custom of the east-hound cars to stop at the westerly side of the boulevard. Exhibits were introduced by defendant, at plaintiff’s request, showing that on July 16 and 29, 1907, bulletins were issued by defendant, requiring all cars to stop before crossing the boulevard. Testimony was introduced on the part of the plaintiff tending, to show that plaintiff’s deceased knew of the custom, having observed and remarked upon it a short time previously. On behalf of the defendant, it was shown that motormen were instructed by the division superintendent to disregard this order during the period of reconstruction, and stop at the point in the boulevard where the temporary crossings had been built. This, for the reason that passengers could neither conveniently board nor alight from the cars, except at said crossings, on account of the height of the step from the ground.

Three grounds for reversal are urged by defendant:

First. That the plaintiff has selected the wrong remedy. The action is planted upon the so-called “death act” (3 Comp. Laws, § 10427), and defendant contends that as, under the undisputed testimony, plaintiff’s deceased continued to live for some 15 minutes after he was struck, though he was dead when taken from beneath the ear, the appropriate remedy is under the survival act (3 Comp. Laws, § 10117), citing the case of Olivier v. Street Railway Co., 134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607). We are of opinion that this case is distinct authority for the opposite view. Where there is a continuing injury, resulting in death within a few moments, it is “instantaneous” within the meaning of the statute.

It is next urged that no. negligence was shown on the part of the defendant, and that plaintiff’s decedent was guilty of contributory negligence, as a matter of law. We will discuss the latter question first. Emil O. Basey, the son-in-law, on cross-examination, testified as follows:

“When I crossed the track, I was about 15 or 20 feet east of the west curb of the south boulevard. The ternporary track was about 3£ or 4£ feet from the south curb.
“Q. Just before you got to the track, if you and Mr. West had stopped, that car would have gone by, if you had stopped before stepping on the track ?
“A. Yes.
“Q. As a matter of fact, it would, wouldn’t it ?
“A. Yes, sir.
“Q. The car was right there ?
“A. Yes.
“Q. You stepped on the track, and the car hit Mr. West ?
“A. Yes.
“Q. So probably the car was a. very short distance from Mr. West when he stepped on the track ?
“A. It was about, I should say about, 30 feet.
“Q. Coming at full speed !
“A. Coming at fair speed — regular speed. It was the speed as they generally run on Gratiot avenue there. I could not just exactly say what speed. I was ahead of the deceased, and Philip West was ahead of him. Philip West stepped upon the track first. He crossed it. I stepped on the track and just about got off by the time that the car struck Mr. West. The motorman did not stop at the boulevard. When the deceased was struck, I was up to the next track, about as far as the next track, about 4 feet. Mr. West was a little in back of me, about a step behind, so that just as Mr. West was stepping through the track the car hit him.”

Philip G. West, the son, on direct examination, testified :

“We started catering across Gratiot avenue. We struck the temporary track about 15 or 20 feet east of the west curb of the boulevard south on Gratiot. Mr. Basey was between myself and father. I had not noticed a car coming until I was in between the rails of the temporary track. The car at that time was part way between the boulevard and Helen. It was nearer the boulevard than Helen, I could not say exactly how many feet.
“Q. Could you give us an estimate ?
“A. Well, it might have been halfway between the boulevard and Helen.
“Q. You were on the temporary track at that time ?
“A. Yes, sir.
“Q. Where was your father ?
“A. Why he was about getting onto the temporary track when I was in the middle of the track. We were about 15 feet east of the west curb of the boulevard. When my father was struck, I was just stepping onto the main track; that is, the permanent track.
“Q. About where was your father when he was struck?
“A. He was either stepping on, or had his foot on, the track. I could not say which. He was just stepping on the second rail when the fender of the car struck him. He fell backwards. The car ran between 75 and 125 feet after it struck him.”

It is apparent from this testimony that the three men, engaged in conversation, attempted to cross in front of a car moving at full speed, in broad daylight, when it was in such close proximity that the most casual observation should have warned them of the danger. If, as testified to by Basey, the car was but 30 feet away, and running at full speed, when plaintiff’s decedent stepped upon the track, it was then but 10 or 15 feet west of the westerly line of the boulevard, the point at which, according to plaintiff’s contention, it should have stopped, in compliance with the rule. A car running at full speed cannot be stopped in such a short distance, and a glance must have advised plaintiff’s decedent that no stop was intended by the motorman. He could not rely upon compliance with a rule or custom, of the instant breach of which he had actual notice. Evidence of a regulation or custom is admissible as bearing upon decedent’s negligence. McKernan v. Street Railway, 138 Mich. 519 (101 N. W. 812, 68 L. R. A. 347), and cases cited. But there is no room for the application of testimony of this character where, as in the case at bar, the physical facts are such as to show beyond peradventure that plaintiff’s decedent, in the exercise of the most ordinary prudence, could not have relied upon such custom or regulation.

Judgment reversed, and a new trial ordered.

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