author: Carpenter, J.

text:
    DANIEL v. CITIZENS’ MUTUAL FIRE-INSURANCE CO. OF JACKSON.
    1. Judgment — Conolusiveness—Mandamus—Bill of Review.
    The denial on the ground of laches of a mandamus to set aside an order transferring receivership proceedings to another county, on the ground of irregularities, is conclusive of the petitioner’s right to question the same irregularities by filing a bill of review.
    3. Equity — Laches—Receivership Proceedings.
    Laches which prevents complainant from assailing an order transferring a receivership of a mutual fire-insurance company to another county will also prevent his assailing orders accepting the resignation of the receiver, appointing a new receiver, and approving an assessment upon the policy holders, where, upon the assumption of the regularity of the orders, important proceedings have been taken which cannot otherwise be sustained.
    3. Receivers — Resignation—Appointment of Successor — Collusive Agreement.
    That the attorney of the creditors of a mutual-insurance company in the hands of a receiver procured the resignation of the receiver, procured the consent of another person to act as receiver, induced the commissioner of insurance to petition for his appointment, and since his appointment has acted as the attorney for the new receiver, and as such procured the transfer of the proceedings to the county in which the receiver and attorney reside, the judge of the county in which the proceedings were instituted being disqualified, does not justify the vacation of the orders by which the results recited were accomplished, there being no understanding that the new receiver should favor the creditors or be otherwise unfaithful to his duties.
    4. Venue — Change—Propriety of Order.
    Where a transfer of receivership proceedings to another circuit was necessary because of the disqualification of the judge of the circuit in which they were begun, the fact that the judge called to preside transferred them to his own circuit does not shqw any impropriety, where the selection was not improper or prejudicial to any party, it is not claimed that the judge was a party to any collusive arrangement, and no improper means were used to induce the selection.
    5. Receivers — Attorneys—Employment—Propriety.
    There is no impropriety in the employment by a receiver of the same attorney employed by the creditors unless there is a conflict of interests, in which case the remedy is by employment by the receiver of another attorney.
    6. Same — Assessment—Exoessiveness—Remedy.
    Excessiveness of an assessment by a receiver is no ground for a bill of review, the remedy by vacating it, or by securing a proper distribution of the fund raised, being adequate.
    Appeal from Ionia; Davis, J.
    Submitted June 10, 1907.
    (Docket No. 54.)
    Decided October 4, 1907.
    Petition by Thomas I. Daniel against the Citizens’ Mutual Fire-Insurance Company of Jackson and James V. Barry, commissioner-of insurance, to file a bill of review. From a decree denying the petition, petitioner appeals.
    Affirmed.

      Thomas E. Barkworth and Grove H. Wolcott, for petitioner.

      George E. Nichols, for defendants.
   Carpenter, J.

This is another chapter in the litigation reviewed by us in Nichol v. Murphy, 145 Mich. 424. The statement in that opinion will supplement the statement in this. In 1899 proceedings were instituted in the circuit court for the county of Jackson, in chancery, to wind up the affairs of the Citizens’ Mutual Fire-Insurance Company, one of the above-named respondents. In these proceedings Forrest C. Badgley was appointed receiver, and upon his petition a pro rata assessment was made against those having policies in said company — of whom petitioner was one — for a sufficient amount to pay the indebtedness of the company and the expenses of the receivership. February 17, 1906, Badgley resigned as receiver. His resignation was accepted and John Nichol of Ionia was appointed his successor. On the same day an order was made transferring said cause to the circuit court for the county of Ionia, in chancery. March 22,1906, said circuit court for said county of Ionia, in chancery, on the petition of said Nichol, as receiver, set aside the assessment formerly made during Badgley’s receivership, and made a new assessment. The amount which petitioner was required to pay by this second assessment was smaller than that in the first. May 25, 1906, a suit at law was commenced by said receiver against said petitioner to recover for said assessment. November 10, 1906, plaintiff applied to this court for a mandamus to compel the vacation of the order transferring said cause from the Jackson circuit to the Ionia circuit. This application was denied on the ground of laches. In January, 1907, plaintiff asked leave to file a bill of review, by which he might obtain a vacation of the order accepting the resignation of Badgley as receiver, the order appointing Nichol as his successor, the order transferring the cause and the order approving the. second assessment. Leave to file said bill was denied' and petitioner appeals to this court.

Petitioner assails the above-mentioned orders upon two grounds. First, because of certain irregularities disclosed by the record. Second, because of an alleged collusive arrangement between Badgley, the retiring receiver, Nichol, his successor, and the creditors of the insolvent corporation.

The irregularities disclosed by the record were brought to our attention last November in plaintiff’s application for a mandamus to compel the vacation of the order transferring said cause from Jackson county to Ionia county. The order of transfer was made in February and the application for mandamus was not made until November, and in the ensuing interval important orders had been made and important action taken upon the assumption that the circuit court for the county of Ionia, in chancery, had jurisdiction. In our opinion the circumstances — and among these circumstances may be mentioned petitioner’s early knowledge of the proceedings which he claims were irregular — required a diligence which petitioner had not exercised, and we decided that he was guilty of laches which disentitled him to relief. That determination is decisive against petitioner’s right to raise these irregularities by filing a bill of review. If he was guilty of laches in November he certainly was guilty of laches in the following January, and the laches which prevented his assailing the order of transfer prevents his assailing the other orders, for upon the assumption of their regularity important proceedings have been taken which cannot otherwise be sustained.

The circumstances respecting the alleged collusive agreement are these: The attorney representing all the creditors procured Badgley’s resignation, though Badgley had already determined to resign and it was eminently proper that he should; he procured the consent of Nichol to act as receiver; he induced the commissioner of insurance to file a petition asking the appointment of Nichol as receiver ; he has acted as Nichol’s attorney since the latter’s appointment as receiver, and in that capacity he procured the order transferring said cause. There was, however, no understanding that Nichol, as receiver, should do anything to favor the creditors, or that he should be in any way faithless to his receivership duties; and we are satisfied that he has been faithful to those duties. Nor was there any impropriety in the order transferring the cause. The cause should have been transferred from the Jackson circuit for the judge of that circuit was disqualified. The selection of the circuit to which it should be transferred was made and had to be made by the judge — in that instance the judge of the Ionia circuit sitting in the Jackson circuit — who ordered the transfer. That judge was not a party — indeed this is not claimed — to any collusive arrangement, and no improper means were used to induce him to make said selection. The selection itself was not an improper one nor prejudicial to the interests of any of the parties concerned in the litigation. The arrangement thus disclosed does not justify the vacation of the orders in question. The only possible impropriety arises from the circumstance that the attorney employed by the receiver is also the attorney of the creditors. This would be improper only in the event of a conflict»between his duty to the creditors and his duty to the receiver, and if that contingency does arise it needs no other remedy than this, viz., the receiver should at once engage another attorney-

Complaint is also made that the second assessment is excessive. If this complaint is meritorious, and we are by-no means convinced that it is, adequate relief can be had by vacating it or by securing a proper distribution of the funds raised by assessment. It does" not justify the filing of a bill of review.

The order appealed from should be affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    CULVER v. FIDELITY & DEPOSIT CO. OF MARYLAND.
    1. Appeal and Error — Appeal Bond — Reversal —Rehearing— Liability of Surety.
    A bond to stay execution on a judgment pending a writ of error, the condition of which obligates the surety “ to pay the said judgment and costs if the same is not reversed ” and to “prosecute its writ of error to effect and pay and satisfy such judgment as shall be rendered against it thereon,” obligates the surety to satisfy the final judgment rendered on the writ of error, and the obligation is not discharged by a reversal of the judgment whioh is followed by a rehearing and an affirmance, only the opinion on rehearing being the final judgment.

      2. Same — Decision—Rehearing—Notice—Necessity.
    Service of notice of an application therefor is not essential to give the court jurisdiction to grant a rehearing, since the court could grant a rehearing upon its own motion without application.
    3. Same — Appeal Bond — Judgment—Harmless Error.
    A judgment against a surety on an appeal bond will not be reversed for failure to prove service of an application for a rehearing in the original case, where the records of this court show that such service was had.
    A Evidence — Judicial Notice — Court Records.
    This court will take judicial notice of its own records in another case.
    Error to Van Burén; Des Voignes, J.
    Submitted June 11, 1907.
    (Docket No. 66.)
    Decided October 4, 1907.
    Debt by William Culver against the Fidelity & Deposit Company of Maryland for the amount of an appeal bond. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Edward Maher and C. B. Hirtzel, for appellant.

      Thomas J. Cavanaugh and L. A. Tabor, for appellee.
   Carpenter, J.

Plaintiff obtained a judgment against the South Haven & Eastern Railroad Co. in the circuit court for the county of Van Burén. For the purpose of staying the issuance of execution on said judgment said South Haven & Eastern Railroad Co. filed a bond upon which the present defendant was surety. The condition in said bond is as follows:

“Now, therefore, the condition of this obligation is such that if the said South Haven & Eastern Railroa(d Company shall pay the said judgment and costs if the same is not reversed, and if a writ of error is issued in said case that the said South Haven & Eastern Railroad Company will prosecute its writ of error to effect and will pay and satisfy such judgment as shall be rendered against it thereon, then this obligation to be void, otherwise to remain in full force and effect.”

The cause mentioned in said bond was argued in this court February 13, 1906. May 24, 1906, the judgment of the lower court was reversed. Subsequently a rehearing was ordered and had and the judgment affirmed. Culver v. Railroad Co., 144 Mich. 254, 257. As this was not paid, plaintiff brought this suit on the bond and recovered a verdict and judgment in the lower court. The surety, the defendant in this- case, asks a reversal of that judgment.

Its principal contention is that ‘ ‘when the judgment was reversed on May 24th, 1906, the obligation of the bond was terminated.”

This contention must be overruled. It proceeds upon an improper construction of the bond and of the judgment of this court. The language above quoted from the bond obligating defendant to “pay the said judgment and costs if the same is not reversed,” and to “prosecute its writ of error to effect and pay and satisfy such judgment as shall be rendered against it thereon,” obligates it to satisfy the final judgment rendered on said writ of error. Pearl v. Wellman, 11 Ill. 352; Crane v. Weymouth, 54 Cal. 476; Humerton v. Hay, 65 N. Y. 380; Robinson v. Plimpton, 25 N. Y. 484. The judgment of May 24th was in no sense a final judgment. The judgment of affirmance subsequently rendered was the final judgment. It follows that the obligation of the bond was not terminated by the reversal of May 24, 1906. See Pearl v. Wellman, supra.

Defendant also contends that the judgment should be reversed because the record fails to show service of notice of the application for a rehearing, as required by the rules of this court; that without such notice “ the rehearing is inoperative in law, because depriving the Fidelity Company of ‘ due process of law ’ and the protection accorded by th¿ Federal Constitution to a foreign corporation.” We answer this contention by saying that service of notice of the application was not essential to give this court jurisdiction to grant a rehearing. It could grant that of its own motion without any application whatever. We think, however, that in this case it is proper to say that if defendant is right in its present contention the error in question is altogether harmless. The records in this court in the case of Culver v. Railroad Co., of which we may take judicial notice, supply the alleged defect’ in the present record. Those records show that on June 1, 1906, and within seven days after the reversal heretofore alluded to, plaintiff filed an application for a rehearing. It must be presumed that this application was properly served, for four days afterwards, on the 4th of June, defendant filed an answer to said application. Defendant has no right to have a judgment reversed for an error which is corrected by the records of this court.

Judgment affirmed.

McAlvay, C. J., and Grant, Hooker, rind Moore, JJ., concurred.


author: Moore, J.

text:
    CAMERON v. SHUMWAY.
    1. Vendor and Purohaser — Option—Construction.
    A writing executed by a landowner giving an option to purchase land on or before a certain date, and stating that when the balance of the purchase price “is paid a warranty deed of said property is to be given and an abstract to date of transfer furnished showing perfect title, also a tax history is to be furnished,” only entitles the purchaser to a deed, abstract, and tax history on payment of the price within the time limited; and where the holder of the option neither accepts it in writing or tenders the price within the time limited his right is lost, although he demands the deed, etc., and states that payment will be made when satisfactory title is furnished.
    2. Same — Option—What Constitutes.
    An option is a contract by which the owner agrees with another person that -he shall have the privilege of buying his property at a fixed price within a limited time, and the other party acquires neither an interest in the land, nor a chose in action, prior to his election to purchase within the time limited.
    Appeal from Ingham; Wisner, J., presiding.
    Submitted June 14, 1907.
    (Docket No. 38.)
    Decided October 4, 1907.
    Bill by Lowry Cameron against Frank W. Shumway for the specific performance of an agreement for the sále of certain land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      L. B. Gardner, for complainant.

      BolUn H. Person, for defendant.
   Moore, J.

This is a bill of complaint filed for the purpose of obtaining specific performance of an agreement in relation to the sale of lands. The material prayer of the bill is as follows:

“That said defendant may be decreed to make a good and sufficient deed of conveyance to. your orator for the said described premises, your orator being ready and willing, and hereby expressly offering to perform the said agreement on his part, and to pay defendant the residue of the said purchase money upon the defendant’s making out a good and sufficient title to the said premises and executing a proper conveyance thereof to your orator, and furnish an abstract and tax history and otherwise perform his part of said agreement pursuant to the terms of the said agreement.”

In disposing of the case the trial judge filed a written opinion which states the questions involved. It is as follows:

“May 4, 1904, Mr. Frank W. Shumway was the owner of certain lots in the city of Lansing described in the pleadings in this case, and there was in the city of Lansing at that time a man by the name of Frank H. Hendrick who was engaged in the real estate business, a real estate broker. These two parties met at the Boat Club parlors, so-called, in the city of Lansing, on the 10th day of May, 1904, and had some conversation in respect to a sale of these lots that I have mentioned, and it resulted in the drawing by Mr. Hendrick of a certain option and the signing of the same by Mr. Shumway. It is testified by Mr. Shumway that at the time of this conversation he called Mr. Hendrick’s attention to the fact that there were on these lands certain taxes levied for the construction of a sewer; that he had been ádvised were void and that any contract he might make in respect to a sale of those lots should be subject to his rights in substance to contest those taxes; that he did not propose to pay them; that they were unjust and illegal.

“ Now that conversation, that part of it that I now call your attention to is denied by Mr. Hendrick, and he says that the entire agreement was embodied in this so-called option, which is as follows:

“‘For and in consideration of $1.00 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby give to Frank H. Hendrick, of Lansing, Mich., an option to July 1, 1904, to purchase of me for the sum of $2,500 the following described property (describing the property); also agree to furnish abstract of said property showing perfect title.
“ ‘Datedj Lansing, Mich., May 10, 1904.’

“On the 15th day of the same month, Dr. Shumway was taken ill with pneumonia, * * * that his life was despaired of. That during that illness and before the expiration of the time of that option Mr. Hendrick called at the house of Mr. Shumway, which was at Williamston, and endeavored to see the doctor in respect to procuring an extension of the option, but the doctor was so ill that the nurse in attendance and the wife of the doctor would not permit him to be seen, but finally on the 28th day of June he had so far recovered as to be able to sit up, although not yet able to be dressed and sit up for any considerable length of time, and on that day Mr. Hendrick again called at the house at Williamston to see Dr. Shumway. The doctor testified that he was nervous, weak, during the course of the conversation, it was necessary that he should be attended medically and given an injection of some kind, and that Mr. Hendrick wanted to have the option extended until the 15th of November. He would not consent to that, he would not extend it longer than September 1st. Finally the date, November 15th, was changed in the instrument which was always prepared and brought there by Mr. Hendrick, changed to September 1st and finally the doctor signed it with the assurance on the part of Mr. Hendrick that nothing contained in it would in any way interfere with his right to contest those taxes; and also that it was merely a continuation of the original option. He testifies that with that understanding he signed. Now that is not denied by Mr. Hendrick. But to go a little farther, it seems that on May 11th, the next day after Mr. Hendrick procured this original option from Dr. Shumway, he made the agreement with the complainant in this case to sell him that land for f3,000. He then represented himself to be the agent of Dr. Shumway and gave to Mr. Cameron a receipt for $1,000, which Mr. Cameron then paid down, as follows:

“‘$1,000.
‘ ‘ ‘Received of Mr. Lowry Cameron the sum of one thousand dollars to apply on the purchase price, $3,000, of lot, etc. (describing the premises), the balance of the purchase price, $2,000, to be paid on or before November 1, 1904, with interest, warranty deed to be given upon the payment of balance of purchase price, $2,000, which is to be paid on or before November 1, 1904, abstract and tax history to be furnished when deed is given.’

“Then follows an erasure. The testimony does not show what originally appeared there, but there is a part of one line erased. ‘Dated, Lansing, Mich., May 11, 1904. F. W. Shumway, per F. H. Hendrick.’ The testimony shows that Mr. Hendrick had no more authority to act as the agent of Mr. Shumway in respect to that land than the court has at this moment. He deceived Mr. Cameron and he did not give the slightest intimation to Dr. Shumway that he had sold that land, did not disclose the situation at all to him at the time he procured this extension of that option June 28th.

“Now, in view of his conduct in respect to that transaction, he does not stand on an equal footing in respect to his testimony with. Dr. Shumway at all, and I think that I must find as a matter of fact that Dr. Shumway has given the true version of the agreement between him and Hendrick in respect to this land, that he was to have the right to contest those taxes under the first option and under the last option. In addition to that I might say that I think no court of chancery on an attempt to enforce the specific performance of a contract of that kind, even in the absence of a specific agreement in respect to that, would compel the voluntary paying of taxes which in amount were nearly 33J per cent, of the value of the assessed value of the land, and if we add some more that accrued since that time, nearly 66 per cent, of the assessed value of the land, I think the sewer taxes, making about $400 as I remember the testimony, it would be, but be that as it may, under the contract, I am satisfied that Dr. Shumway was entitled to contest those taxes, and it appears to me, of course, this is outside of the case itself, because I am not passing upon it now, but I may say in passing that from the testimony in this case, I have no doubt but that those taxes were void.

“ Now it is the contention of the complainant that Dr. Shumway is estopped from making any defense of the kind that he interposes by reason of his conduct. As I understand the doctrine of estoppel, in order to invoke it, the party against whom it is sought to use it must have done something which has led the other parties to do something on his part which has been to his disadvantage and by reason of which he will suffer loss. That is not the case here. Mr. Cameron paid his $1,000 before Dr. Shumway ever opened his mouth 'in regard to. this transaction. As a matter of fact, since the doctor has written these letters, since he has had these conversations, Mr. Cameron has gainéd the advantage in that Mr. Hendrick has returned to him $100 of the $1,000. He has benefited by what the doctor has done instead of having suffered a loss. Under the contract as I find it to exist — of course, complainant would not be entitled to a decree for specific performance. There are other reasons aside from the one I assign why he would not be entitled to it.

“The contract which was assigned to Mr. Cameron on November 28, 1904, provides that ‘When said balance is paid (that is the $2,000) a warranty deed of said property is to be given.’ In my judgment he would only be entitled to that deed after he had actually paid that money or actually tendered it on condition. I cannot find that the cases cited in respect to offender of that kind have application to this. This is a one-sided contract. It simply gives a man the right to make a purchase if he sees fit to do so. There is no way. in the world that the grantor can force him to take that property. Therefore, there is no obligation upon the part of the grantor to make any tender of anything, because he can force nothing, he can accomplish nothing, but the duty devolves upon the other party to accept that contract. Counsel says suppose it had been a $100,000. Perhaps that might be unfortunate in some cases, but it is a contract. Suppose on the other hand the option had been to sell a $100,000 of negotiable bonds, was seller obliged to let the other man run away with them ? I am certain it is not the contract. There is another reason in my judgment. Whatever may be said about the sufficiency or legality o£ that tender, the undisputed testimony shows that it was made late in December, and the testimony of Dr. Shumway shows about the first of January, confessedly about thirty days after the expiration of the time limited in this option, in my judgment it could not be enforced for that reason because the offer to perform and the acceptance of the terms of the option itself must be made within the life, within the time specified in the option. And for all those reasons in my judgment the complainant’s bill must be dismissed. However, having been satisfied in open court that the defendant did not desire to enforce any forfeiture, and in my judgment it would be inequitable that he should, the decree will also provide that he return Mr. Cameron the moneys that have been paid, I think it is $439 and some cents, I am not sure as to the exact amount, the interest and the $400. I think that is about justice and it has been consented in open court that he did not want to retain it, and would consent that it be returned and so the court will provide by its decree that this bill shall be dismissed, providing, however, that Dr. Shumway shall return this money within 90 days to Mr. Cameron, without interest. The costs to be taxed in favor of the defendant and the solicitor may prepare a decree in accordance with what I have said.”

A decree was made in accordance with the opinion. The complainant has brought the case here by appeal. The defendant did not appeal. The case is carefully briefed. Complainant claims that all of the parol testimony in relation to the contesting of the taxes was improperly admitted because the option is a complete instrument in and of itself; citing many authorities. On the part of the defendant it is insisted that the testimony was proper under the facts shown in this case, counsel citing many authorities. We do not think it necessary to decide the question.

The record shows very clearly that the defendant never authorized Mr. Hendrick to sign the written agreement which was made by him with complainant, May 11, 1904. He simply gave Mr. Hendrick in the first instance “an option to July 1, 1904, to purchase of me for the sum of $2,500” certain land. It was signed by the defendant, but was never accepted in writing by Mr. Hendrick. On the 28th of June, 1904, another option was given running up to September 1, 1904, in which the following language is used:

“ The said $200 is to be applied on the purchase price so that only $2,300 is to be paid on or before September 1,1904, and when said balance is paid a warranty deed of said property is to be given and an abstract to date of transfer furnished showing perfect title, also a tax history is to be furnished.”

This was signed by the defendant but was never accepted in writing by Mr. Heúdrick. September 8, 1904, there was indorsed on the option the following:

“ For and in consideration of the sum of $200, to me in hand paid, I do hereby extend the above option to December 1, 1904, at which time the balance, $2,100, will be due.

“Dated Lansing, Mich., September 8, 1904.

“F. W. Shumway.”

Later there was indorsed upon the option the following:

“ For a valuable consideration I do hereby sell, assign, and transfer all my right, title, and interest in the within optional contract to Lowry Cameron.

“Dated Lansing, Mich., November 28, 1904.

“Frank H. Hendrick.”

There was not on December 1, 1904, nor at anytime previous thereto a written acceptance of said option by either Mr. Hendrick or Mr. Cameron, nor was there a payment made of the balance due or a tender made of the amount thereof. By the express terms of the option it was not until the payment was made that Mr. Hendrick was entitled to a deed and abstract.

The papers which had been signed by the defendant did not bind Mr. Hendrick to accept the option, and when he failed to do so on or before December 1, 1904, the defendant had no remedy against him. When Mr. Cameron took an assignment of the option, he obtained nothing more than was possessed by Mr. Hendrick, to wit, the right to pay the balance due according to the option on or before December 1, 1904, and when the balance was paid, to have á warranty deed with abstract showing perfect title, also a tax history. He did not see fit to make this payment, but, on the contrary, refused to make it until a warranty deed was executed and an abstract and tax history furnished. In Myers v. J. J. Stone & Son, 128 Iowa, 10, the following language is used:

“ Generally an option may be defined as a contract by which the owner agrees with another person that he shall have the privilege of buying his property at a fixed price within a limited time. * * * It is neither a sale of land nor an agreement to sell, but merely the disposal of a privilege of electing to buy at a fixed price within the time limited. The other party acquires no lands, nor interest in land, not even a chose in action, prior to his election, but he does obtain, what is often of much value, the privilege, at his election, to demand and receive the conveyances of land.”

See, also, Litz v. Goosling, 21 L. R. A. 127, and note (93 Ky. 185); Potts v. Whitehead, 23 N. J. Eq. 512; Weaver v. Burr, 31 W. Va. 736 (3 L. R. A. 94); Harding v. Gibbs, 125 Ill. 85; Eggleston v. Wagner, 46 Mich. 610; Chapman v. Morgan, 55 Mich. 124; Gustin v. School District, 94 Mich. 502; Dunn v. Dunn, 132 Mich. 461.

The decree is affirmed, with costs.

McAlvay; C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    GRINDLING v. REHYL.
    Specific Performance — Parol Contract to Devise — Part Performance-Statute of Frauds — Part Payment.
    Specific performance of a parol contract to devise land will not be granted, though a will was executed in pursuance of the contract and has been denied probate on the ground of implied revocation by marriage and birth of issue, where complainant has done nothing by way of performance except to pay the agreed consideration.
    Appeal from Livingston; Miner, J.
    Submitted June 17, 1907.
    (Docket No. 104.)
    Decided October 4, 1907.
    Bill by Edith Durfee Grindling against Richard Rehyl, administrator of the estate of Anna B. Risch, deceased, and Charles Risch, individually, and as guardian ad litem of Anna E. Risch, for the specific performance of a parol contract. From a decree sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Shields & Shields, for complainant.

      Louis E. Hoto left, for defendants.
   Montgomery, J.

This bill is filed for the specific performance of a parol contract. The bill avers that complainant, who was formerly Edith Durfee, and Anna B. Durfee, decedent, were sisters; that decedent was the owner of the described forty acres of land and of three-eighths of an adjoining forty, subject to the life estate in the father and mother of the parties; that decedent, Anna. B. Durfee, was living at home on these premises with the father and mother, caring for the parents, and that it was agreed that decedent should take this care of the parents, and that complainant should provide for the care and maintenance of said decedent and should furnish money to Anna B. Durfee with which to buy food, provisions, and clothing, and pay the running expenses of the household, and that complainant when not teaching should make her. home with said deeedent and their parents, as aforesaid, and in consideration of the services performed by complainant, and in consideration of the money furnished to said Anna B. Risch, then Durfee, by complainant, and to be furnished to her, said Anna B. Durfee did then and' there promise and agree that at her death she, the said Anna B. Risch, then Durfee, would leave all her property of whatever nature, whether real, personal, or mixed, to complainant.

The bill further avers that from that time until the death of said Anna B. Risch complainant furnished large sums of money, including her total income and the food, clothing, and provisions and everything requisite to keep said Anna B. Risch, then Durfee, in comfortable circumstances, including living expenses, clothing, spending money, and the usual pleasures of ladies in her circumstances of life; and that said complainant did furnish the sum of $200 per year from the time of said agreement up until the death of said Anna B. Risch, and during all that time said Anna B. Risch, then Durfee, lived at home under the contract and agreement so made as aforesaid; that complainant relied upon said contract and agreement so made with Anna B. Risch, then Durfee, and in pursuance of said contract said Anna B. Risch, then Durfee, did on the 27th day of March, 1902, execute a will leaving to complainant all of her property, etc. The bill avers that the will was refused probate on the ground that it had been impliedly revoked by law because of the marriage of said Anna B. Risch and the birth of issue to her. The bill prays that the- title to the land be decreed to be in complainant. A demurrer to this bill was sustained, and complainant brings the case here for review.

It will be noted that no possession of the preiñises in question was given to complainant under the verbal agreement alleged, nor is there anything in the bill showing that any improvements were placed upon the premises involved in this suit. All that the bill avers is that the complainant has parted with money under this verbal agreement; in other words, that the consideration price for the contract has been paid. It is generally held that the mere payment of a consideration by the purchaser which is susceptible of being compensated by damages is not sufficient to take a case out of the statute of frauds. Farnsworth v. Coots, 46 Mich. 117; Kelly v. Kelly, 54 Mich. 30. One reason why the taking of possession of land and making improvements upon it is held to be such part performance as takes the case out of the statute is that the possession is of itself some evidence of ownership. Riddell v. Riddell (Neb.), 97 N. W. 609; Kelsey v. McDonald, 76 Mich. 188.

We are cited to the case of- De Moss v. Robinson, 46 Mich., at p. 65. The citation is to the dissenting opinion; the majority opinion of the court is found at page 62. In the majority opinion it was held that an oral agreement to devise property is revocable during the testator’s lifetime and is not itself valid if it covers real estate, and that one who pays money on such an agreement may recover it back either by himself of by his personal representative. So in Gould v. Mansfield, 103 Mass. 408, it was held that the making of a will by the complainant under an oral agreement to make mutual wills was not such performance as to take the case out of the statute. The court said:

“ Such an instrument is ambulatory and might have been revoked by various, acts or by implication of law from subsequent changes in the condition or circumstances of the testator.”

We are cited also to the case of Carmichael v. Carmichael, 72 Mich. 76-85, which is said to be a parallel case. In that case Charles Carmichael and his wife, Ann, agreed to make mutual wills which should not be revoked during the life of either. This promise was in part an oral one. Charles, Sr., died so that his will was not revoked and took effect. After his death Ann Carmichael in form conveyed the lands in question to two other defendants. This was done at a time when she was mentally incompetent, so that she .had never revoked her will when the bill was filed, and as the court said was incompetent to do so. The husband had.not revoked his will prior to his death. The court found in that case that the performance of the contract on the part of Charles was sufficient to take the’case out of the statute of frauds. That case differed from this in that there was no way in which Charles could be placed in statu quo. The provision which by his will he had sought to make for his children would fail unless the contract with his wife were specifically enforced, and the court held that these beneficiaries had such an interest in the will as entitled them to have the fraudulent overreaching of Ann Carmichael set aside and permit the two wills to stand. In the present case complainant, if the averments of the bill be true, can be fully compensated in damages. We think the demurrer was properly sustained. Peckham v. Balch, 49 Mich. 179.

The decree will be affirmed, with costs.

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


author: Blaie, J.

text:
    HEISS v. ADAMS.
    Adverse Possession — Harbor Improvement — United States— Ejectment — Limitations.
    After plaintiff had cut an artificial channel across his land, between Lake Michigan and Portage Lake, government engineers took possession of the channel and piers for the purpose of making a harbor of refuge, and for a period of over 20 years remained in hostile possession thereof, to the knowledge of plaintiff and his agents, and the government, through both the legislative and executive departments, repudiated his claim for damages repeatedly. Held, that he was barred by limitations from maintaining an action of ejectment against the government engineer in possession in behalf of the government.
    Error to Manistee; Rose, J.
    Submitted June 17, 1907.
    (Docket No. 103.)
    Decided October 4, 1907.
    Ejectment by Wilhelmina S. A. Heiss against Milton B. Adams, colonel of the United States army, in charge of the United States engineer’s office at Grand Rapids, and the Portage Point Assembly. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Dwight Goss, for appellant.

      George G. Coveil and William K. Clute, for appellees.
   Blaie, J.

This is an action of ejectment for the possession of certain lands alleged in the declaration to comprise eight acres in section 33, Onekema township, Manistee county, in this State. In November, 1866, the land in question was entered by Andrew T. Shanks and title conveyed to him by the United States. In April, 1871, the land was conveyed by .Shanks and wife to Theodore Heiss, husband of the plaintiff herein, and, in September of the same year, Heiss conveyed the lands to the plaintiff, who still holds the record title thereof. Across the eight acres extends an artificial channel, which unites Portage Lake with Lake Michigan, and which was constructed in 1871. The defendant Adams is a colonel of the United States Engineering Corps, having charge of the harbor improvements on the east shore of Lake Michigan, and is made defendant by reason of his official position.

Prior to 1871, the outlet of Portage Lake was a creek about a mile north from the present channel. The old channel through the creek was used principally for logs, although, before the mill and dam were built, small boats went through. When the dam was l>uilt, it prevented boats from passing, but logs were still run through the channel.

When plaintiff’s husband constructed the channel through his lands, it reduced the level of Portage Lake about eight feet, so that the original outlet became dry land and has so remained ever since. Since 1871 the only outlet from Portage Lake to Lake Michigan has been through the present channel. Plaintiff’s husband, who caused the construction of the present channel in 1871, testified:

“I had men employed to open a ditch. I was not there personally. I had a man by the name of Schroeder who-was united with me in the effort or job to open the channel to ship timber through. That was our principal object, * * * and while they were making this ditch I did not stay there but went to Milwaukee and left the work to Mr. Schroeder, my partner in business at the time.

The digging of the ditch—

“Washed a channel 45 feet deep; a United States steamer sailed in through it the next day and that was the result of my work. * * * The width of the land which I bought from north to south was 35 rods, and the distance from one lake to another was about double this distance, about 70 rods. * * * I remained there about a week, I should judge, and then retired back to Milwaukee and left the business to my man there. * * * I paid the taxes as long as I could get the notice of the assessment sent to me. * * *

Q. You say that each year since 1871 until the present time you have made inquiry with reference to the taxes ?

“A. Yes, sir.” '

In 1884 plaintiff received notice from the assessor, “that the government had taken possession of my land and there was no assessment on it nor would there be.” After ascertaining that the government was making improvements, plaintiff’s husband made efforts to obtain compensation for the lands covered by the improvements, through the President, the war department, and Congress. Plaintiff’s husband paid $163.88 for the entire tract of 8 acres. The government improvements occupied about 1^ acres. The bills in Congress, introduced at the request of plaintiff’s husband, recited that, “the damages sustained by the said owner by the said taking and appropriation amounts to eighty thousand dollars ($80,000),” and appropriated that amount ‘ in payment of the said damages and for the said appropriation.” These bills were introduced at every session of Congress from 1884 to 1891.

Q. Did those congressmen who introduced those bills for you tell you they could get the bills through ?

“A. They all told me they would .try their utmost but could not %ive me any assurance, and they did try hard, too.”

On June 13, 1885, Mr. Heiss received a letter from the office of the chief of engineers, stating “that the State land map shows that the present channel is entirely north of the north line of section 33, and is therefore not covered by the land claimed by you.” On November 25, 1885, he received a letter from the United States engineering office at Grand Rapids, in this State, as follows:

“Sir: Your letter of the 23d inst. has been received this a. m. The mistake made in locating the land claimed by you at Portage Lake was due to the defective construction of a map on file in this office and which at this time was supposed to be correct. This, I think, has been stated before. By section 5498, Rev. Stat. United States, I am prohibited from furnishing you any information whatever on your claim. ‘ Common courtesy ’ has nothing to do with the matter at all.”

On May 17, 1886, Mr. Heiss received the following letter:

Dear Sir: The President has received your letter of the 11th inst., but as the matter concerning which you write has been investigated by the war department, under whose supervision it belongs, and as the secretary of war is of the opinion that you have no just claim against the United States, the President is not disposed to interfere with the action already taken nor to institute further proceedings in the case.

“ Your enclosure is herewith returned.

“ Yery respectfully,

“ J. L. Lamont,

“ Private Secretary.

“Theodore Heiss, Esq.,

“ Milwaukee, Wis.”

On July 29,1903, Mr. HeiSs received a letter from the secretary of war, as follows:

‘ ‘ Sir: Answering your letter of 20th instant, in which you again call attention to your claim for damages for the alleged use of your property at Portage Lake, Michigan, in connection with the work of providing a harbor of refuge, I beg to inform you that the acting chief of engineers, U. S. army, has just submitted a report on the subject, as follows:

“ ‘The matter has been repeatedly before the department since 1885. It has received careful consideration, and the department has uniformly held that Mr. Heiss has no just claim against the United States, and that if he had, the claim is one which the department is not required to adjust.’

“In view Of the foregoing, and the fact that the claim has also been considered by Congress, the department is . unable to afford any relief in the premises.

‘ ‘ Very respectfully,

“ElihuRoot,

“ Secretary of War.

“Mr. Theo. Heiss,

“ No. 4 Worth street,

“ San Francisco, Cal.”

Mr. Heiss purchased the land for the sole purpose of making a channel to transport tanbark and timber, for which he had secured contracts.

“Q. You have never seen the channel at all ?

“A. Never the government channel.”

The last time that Heiss was at the place in question was in the summer of 1873. During all the time from 1871 down to the present time, plaintiff and her husband had been' nonresidents of the State of Michigan.

“Q. Did you pay a tax in 1877 on a valuation of $44.60 for the purpose of assisting in working on that channel ?

‘A. A tax ? That is an infernal lie, whoever said it— I did not.

“Q. Was there another district laid out in 1877 that was assessed for carrying on this work ?

“A. I know nothing about it. * * *

“Q. Do you claim to be the only man that ever did any work or ever paid for work in opening that channel ?

“A. Yes, I do, certainly. I had a partner there. He might have paid something without my knowing it. * * * The south pier is not on my land but the north is.”

He also testified that if any one used the channel, it was against his will. Mr. Schroeder, Heiss’ partner, testified:

“I was well acquainted with Mr. Heiss; in 18711 entered into business relations with him; we were to buy bark, wood, lumber or anything we could make money on. I proposed that we dig a channel where the present channel is. All right, he said, we would go into it. He would put in the money if we would dig the channel. I had no talk with Heiss about it, but I told the people that it was to be a free public channel waterway for everybody. He did not say anything that the people should help dig it; he depended on me to dig the channel. Andrew Shank asked me if it was going to be free to everybody. That was before he gave Heiss a deed. I told the people it would be a free open channel. This channel that was talked about as being free and open to everybody was upon the present site of the channel between Portage Lake and Lake Michigan. People up there contributed lumber and labor in the way of building cribs and piling. Yoluntary labor put it in a navigable condition so that boats could run between the two lakes.

“About 1877 a tax was proposed upon Onekema township and levied. It was used to drive piles and build cribs to protect the harbor. The pier on the north side stands upon ground that was covered by water. I signed a petition asking the general government to improve that channel. Government improvements were started there about 1880 or 1882. Since the channel was first put through in 1871 it has been used, except when it was filled up with soil, for the passage of all kinds of boats between Portage Lake and Lake Michigan. Portage Lake is a harbor of refuge and has been for many years. I have been through that channel every year since 1871 on boats and no one ever collected any tolls on the channel that I know of.” .

In 1871, as shown by the records of the proceedings of the board of supervisors of Manistee county, a license for operating a public ferry across this channel was granted by the board of supervisors to Andrew T. Shanks. Mr. Shanks operated this ferry for several years. His widow, who, at the time she testified, was Mrs. Anna Graham, testified that Heiss said that the channel would be open to everybody. She also testified:

“Q. Did you see a petition or, rather, whether Heiss talked about a petition he was circulating and got signatures to it to send to Washington to have the government improve the channel ?

“A. Yes, sir.

“Q. Did you see that?

“A. Yes, sir.

CIQ. Did you see Mr. Heiss circulate it?

“A. Mr. Heiss had it at the time I saw it. That is all I know about it.

“Q. What did he say with reference to sending that petition to Washington ?

“A. I don’t remember what he said, only he said he was going to send it to Washington.”

Since this channel was put through, with the exception of such times as it has been shoaled in temporarily with sand, it has been used by boats of every description for general navigation purposes. Part of the pier on the north side of the channel has been there since 1879 and some government officer has been in continuous possession of the pier property there ever since. Boats from other States and points in Michigan use the harbor. The lands north of the north pier are in possession of no one, so far as this record discloses. The defendant Adams is only in possession for the United States of the north and south pier property. The channel is open for such use for navigation, as the public sees fit to make of it in the way of domestic, interstate, or foreign commerce.

The assessment roll for Onekema township for 1877 shows that the premises in question were assessed upon a valuation of $44.70. “State tax, 11c; school tax, 9c; harbor tax, 45c; total tax, $1.98. Paid by Mr. Heiss.” The receipt for the payment of this tax was put in evidence by plaintiff’s counsel, and the record in the treasurer’s office shows its payment. In 1879, Congress made an appropriation of $10,000 for the purpose of maintaining and improving the channel at Portage Lake, and soon after commenced to improve the channel, and ever since has carried on the work, expending thereon, up until the commencement of this suit, in 1905, a total sum of $369,500.

A map was made in 1878 before the government did any work upon the channel. At that time, the channel existed there between imperfect piers built, by local enterprise.-

At the close of the testimony, the court directed a verdict in favor of defendants, upon the ground, “that she rested upon her rights so long that the statute of limitations had run, and that after the statute of limitations had run against her claim she could not maintain a suit in this court for the possession of the premises.” The plaintiff has brought the record to this court by writ of error, to review, under appropriate assignments of error, the court’s direction of a verdict.

We agree with the circuit judge that this action was barred by the statute of limitations. For over 20 years, the defendant and his predecessors, as shown by the undisputed facts, were in the “actual, continued, visible, notorious, distinct and hostile possession” of the property, to the knowledge of the plaintiff or her husband, who represented her. The executive and legislative branches of the Federal government uniformly repudiated his claim and denied its justice. The United States officers in charge of the harbor improvements continued their work in defiance of plaintiff’s claims, and the courts were open to him to establish his rights. Having neglected to avail himself of the right to bring his action within the period prescribed by statute, he lost the right to prosecute his suit.

The judgment is affirmed.

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


text:
    PEOPLE v. CHAMBLIN.
    1. Certiorari — Writ — Authority to Issue — Circuit Court Commissioners — Statute.
    Act No. 310, Pub. Acts 1905, providing for review by certiorari of rulings on motions to quffsh, intends that the Supreme Court shall have exclusive authority to issue the writ, and the issuance of a writ by a circuit court commissioner is unauthorized.
    2. Same — Dismissal—Meritorious Question — Decision.
    Though the writ of certiorari in this case is dismissed because issued by a circuit court commissioner without authority, it is regarded as an application to this court for a new writ, and the meritorious question involved therein decided, a speedy determination of the issue being demanded by the interests of both the applicant and the people.
    3. Criminal Law — Preliminary Examination — Testimony—Sufficiency — Assault-with Intent to Rape.
    Testimony that respondent committed an assault upon a female under the age of 16 years, with intent to have sexual intercourse with her, justifies the examining magistrate in binding him over to the circuit court for trial on a complaint and warrant charging him with assault with intent to commit the crime of rape. (Sections 11489, 11490, 3 Comp. Laws.)
    4. Same —Complaint and Examination — Variance — Effect-Information.
    That the testimony taken on an examination on a complaint charging respondent with assault with intent to commit the crime of rape upon a female under the age of 16 years “ by force and against her will ” fails to show that any force was intended is immaterial, since the information filed may properly omit the unnecessary charge of force, so long as it is based upon the same transaction.
    5. Certiorari — Statute—Application—Criminal Cases.
    Whether Act No. 310, Pub. Acts 1905, providing for review by ceritorari of rulings on motionsto quash, authorizes a certiorari to review the denial of a motion to dismiss a criminal case upon the ground that the examination does not show reasonable cause to believe that the offense charged in the complaint and warrant was committed, is not decided.

      Certiorari to Barry; Smith; J.
    Submitted June 13, 1907.
    (Docket No. 122.)
    Decided October 4, 1907.
    Thomas L. Chamblinwas arrested and bound over for trial in the circuit court on a charge of assault with intent to commit statutory rape. There was an order denying a motion to quash, and he brings certiorari.
    Dismissed.

      Colgrove & Potter, for appellant.

      Lee PL. Pryor, Prosecuting Attorney, for the people.
   Carpenter, J.

Upon the charge that respondent had committed an assault with intent to commit the crime of rape he was apprehended, examined before a justice of the peace, and bound over to the circuit court. The charge in the complaint and warrant was that respondent “upon * * * Ada Grondine, a female of the age of less than 16 years, to wit, the age of 15 years, * * * feloniously did make an assault with intent, her, the said Ada Grondine, by force and against her will, then and there feloniously to ravish and carnally know.” Before an information was filed in the circuit court, respondent’s counsel asked that court to dismiss the case upon the ground that “ the examination of the complaining witness, Ada Grondine, * * * does not show that the offense charged in said complaint and warrant was committed, or that there is reasonable cause to believe that it was committed.” This motion was denied. He thereupon obtained an allowance of a writ of certiorari from a circuit court commissioner for the county of Barry, and urges that 'it is made the duty of this court, by Act No. 310 of the Public Acts of 1905, to review the ruling of the circuit court.

The first question which arises on this record is this: Had the circuit court commissioner for the county of Barry authority to allow said writ of certiorari ? Manifestly that depends upon a proper construction of Act No. 310 of the Public Acts of 1905. That act, so far as material to the question under discussion, reads:

“ Whenever in any action at law in a circuit court a motion to quash the writ * * * upon jurisdictional grounds * * * shall- be decided adversely to the party filing such motion * * * the decision may be reviewed by writ of certiorari forthwith. Upon the issue of such writ the Supreme Court may, upon proper cause shown, stay the proceedings in the circuit court pending their decision on such writ.”

This reference to the Supreme Court sufficiently manifests the intent of the legislature to give to that court exclusive authority to determine whether such writ of certiorari shall issue. The circuit court commissioner had, therefore, no authority to allow said writ, and the writ must for that reason be dismissed. As the result of dismissing said writ for the above reason will almost certainly lead to an application for a new writ from this court, and as the interests of the people and respondent, each demand a speedy determination of the issue, we think it our duty to regard the case before us as such an application, and to dispose of the meritorious question involved, viz., Did the examination show that there was reasonable ground to believe respondent guilty of the offense charged in the complaint ? The complaining witness testified:

“I will be 16 years old the 29th day of July, next. The respondent came to my house on the 6th day of March, 1907. That was the first time I ever saw him. He came alone, and I was alone at the time. * * * He went up by the stove and began to pull his money out of his pocket. He said, ‘ Do you want to earn a dollar ? ’ and I said, ‘No, sir; I don’t.’ Then he came up to me and tried to put his hand up under my clothes. He took hold of my arm with one hand and tried to put his other hand under my clothes and I jerked away, from him and told him if he didn’t go away I would have him arrested.”

From this testimony it is to be inferred that respondent •committed an assault upon the complaining witness; that he did so with the intent of having sexual intercourse with her and that she was at that time less than 16 years of age; but the claim is now made that it cannot be inferred from this testimony that respondent intended to use force to accomplish his purpose, and that without proof of that intent he cannot be convicted of the crime charged in the complaint and warrant. As the complaining witness was under the age of 16 years, respondent would (see section 11489, 3 Comp. Laws) have been guilty of the crime of rape, if he had sexual intercourse with her, even though by her consent. And if, when he committed the assault, respondent intended to have sexual intercourse by such consent, he was, under section 11490, as construed by this court in People v. McDonald, 9 Mich. 150, guilty of an assault with intent to commit the crime of rape.

While respondent’s counsel concede this, they contend that in the complaint and warrant the crime is charged in such language as to compel the people to prove an intent to use force to accomplish the contemplated rape. They do not contend that it was necessary to use such restrictive language. Indeed, they concede, and it was settled by People v. McDonald, supra, that that was unnecessary ; but they do contend that the allegation having been “made unnecessarily minute in the description, the proof must satisfy the descriptive as well as the main part.” If this contention is well taken — and whether it is or not we do not determine — we answer it by saying that in the circuit court the prosecuting attorney may file an information against respondent which is entirely free from the objection made to the language of the complaint and warrant; for it is settled that “so long as the information was based upon the same transaction it need not charge the same precise offense named in the original warrant of arrest.” People v. Stockwell, 135 Mich. 341. There is, therefore, no ground for issuing the writ of certiorari, and the writ heretofore issued will be dismissed. To prevent a possible misapplication of the principles of this decision, we think it proper to say that in stating the foregoing reason for denying respondent’s application, we do not decide that such grievances as his can, under any circumstances, be reviewed under Act No. 310 of the Public Acts of 1905.

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


author: Blair, J.

text:
    J. W. REEDY ELEVATOR MANUFACTURING CO. v. PECK.
    1. Mechanics’ Liens — Contracts—Performance—Evidence — Sufficiency.
    On a bill to enforce a mechanics’ lien for furnishing and installing a hydraulic elevator in defendant’s hotel, evidence examined, and held, to show that defendant performed her contract to furnish a water pressure of 80 pounds per inch, and to show that complainant did not perform its guaranty to furnish a pressure relief attachment such that the pressure in the city water mains would not vary to exceed five pounds per square inch when the elevator was stopped, which was the inducing cause of defendant’s entering into the contract.
    2. Same — Contracts—Nonperformance—Recoupment.
    Though the mechanics’ lien law expressly provides that the owner “shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract” (section 10710, 3 Comp. Laws), a decree awarding complainant a lien for the contract price less defendant’s damages is not warranted by the pleadings where no such issue is presented by the answer, and no amendment was asked or ordered as authorized by section 10736, 3 Comp. Laws; and it appearing from the proofs that complainant failed in performing its contract, the bill should be dismissed.

      Appeal from Emmet; Shepherd, J.
    Submitted June 19, 190?.
    (Docket No. 65.)
    Decided October 4, 1907.
    Bill by the J. W. Reedy Elevator Manufacturing Company against Blanche T. Peck and others to enforce a mechanics’ lien. From the decree rendered, complainant appeals.
    Modified and affirmed.

      Carroll, Kirwin & Hollway, for complainant.

      C. J. Pailthorp, for defendants.
   Blair, J.

This suit was commenced by bill in equity to establish and foreclose a mechanic’s lien claimed to be due for installing a hydraulic elevator in the defendant’s (Blanche T. Peck’s) hotel at Petoskey. The defendant Blanche T. Peck entered into a contract with complainant for the installation of the elevator, the portions of which material to the present inquiry are as follows: Complainant agreed—

“ To furnish and erect in your building known as the Arlington Hotel at Petoskey, Mich., one of our best and latest improved high speed safety passenger elevators, to be operated by water pressure obtained from the city main, 80 lbs. per square inch pressure. * * * The elevator will have a lifting capacity of 1,500.lbs. exclusive of the weight of the car, and have a maximum speed of 200 feet per minute with a load of 750 lbs. * * * The valve will have a 4-inch supply and 4-inch exhaust. * * * The supply pipe to cylinder to be 4-inch diameter. The exhaust pipe to be 4-inch diameter. * * * The above price also includes one of our latest improved pressure relief attachments, erected in building complete, you to make pipe connections to same. With this device of attachment, we will guarantee that the water pressure in the city mains will not vary to exceed 5 pounds to the square inch when the elevator is stopped.”

Complainant alleged that the contract had been fully carried out upon its part and that the contract price had become due and payment refused. The defendant Blanche T. Peck, by her answer, admitted the contract as set forth, but denied that complainant had performed the contract, alleging, among other things, that when the elevator would stop, the pressure in the city mains varied from 30 to 60 pounds.

“And in consequence of said variation and the danger incident therefrom, the city authorities refused and still refuse to allow said defendants or any of them to use sufficient water to operate said elevator; and these facts have been repeatedly brought to the attention of said complainant by said defendants, with the request that said complainant carry out its said agreement with the said defendants by equipping said elevator so that when operated by water taken from the said city mains with a water pressure that shall not vary to exceed 5 lbs. to the square inch when said elevator is stopped, said elevator shall have a lifting capacity of 1,500 lbs., exclusive of the weight of the car, and have a maximum speed o£200feet per minute with a load of 750 lbs., and that said complainant had neglected and refused to so equip said elevator without an additional compensation of several hundred dollars, which said defendants declined to pay.

“ The said defendants, further severally answering, allege that said elevator has been and is a source of great annoyance and damage to said defendants, and that in its present condition, and the condition in which it was left by said complainant, it is of no value to said defendants or either of them; and that said elevator has never been accepted by said defendants or any of them. They severally deny that they or either of them are indebted to said complainant in any sum whatever. They severally deny that said complainant was or is entitled to a lien on the property described in complainant’s bill of complaint or any portion thereof.”

The decree contains, among other things, the following findings of fact by the circuit judge:

“There is considerable variance in the testimony of witnesses as to the extent of the disturbance in the city water mains caused by the operation of the elevator in question; but all agree that the pressure in the city water mains varied much more than the five pounds to the square inch when the elevator was stopped, resulting in what some of the witnesses called a ‘ water-hammer,’ caused partly by the sudden stoppage of the flow of water from the city reservoir and partly by the momentum of the machinery at the pumping station. The use of the elevator, while carrying its load, of so large a quantity of water from the mains, caused the machinery to increase its speed very much, and this machinery being operated by water power was very heavy, and the inertia correspondingly great. The machinery did not, of course, cease this rapid motion instantaneously upon shutting off the water at the elevator valve, thereby causing a great increase of pressure, resulting in weakening and bursting of mains, loosening of joints and packing, and various other disturbances; so the city refused to allow defendant to continue the use of the elevator except by cutting off the supply of water to about one-fifth the 4-inch opening stipulated in the contract, lessening thereby very much its capacity.

“ Complainant claims it was the duty of the defendant under the contract to furnish enough water and under sufficient force to maintain a constant pressure of 80 pounds per square inch. That if this had been done, there would have been no ‘ water-hammer.’

“Defendants say that if they agreed to anything it was merely to furnish the water in the 4-inch opening under pressure of 80 pounds at the instant of starting the elevator.

“From the view I take of the case, it is immaterial which party was in default, or rather, which, if either party, agreed to maintain the constant pressure of 80 pounds. I am not satisfied from the evidence that the ‘water-hammer’ so-called, was caused by such default. It seems to me to have been more the result of the peculiar construction of the water works. This elevator while fully loaded consumed a large portion of the entire capacity of the pumps. Even if the pressure was maintained, the sudden closing of the valve would, under the circumstances, cause a rise in pressure much beyond the capacity of the device provided, and which absorbed only a few gallons of water.

“ Complainants made their proposal with knowledge of the peculiar construction of the city water works plant. So I find that complainant has failed to furnish such an elevator as the contract required it to furnish, and defendants may set off or recoup from the contract price of the elevator their damages for breach of warranty.”

Previous to the making of the contract in question, trouble had arisen from the use of a hydraulic elevator in another hotel in Petoskey known as the Imperial Hotel, and had disclosed the fact that, owing to extreme and sudden changes in the pressure in the water mains, the operation of a hydraulic elevator with water taken directly from the mains was attended with danger to such mains and the pumping machinery. At the time of executing the contract, and for several years prior thereto, there was and had been an ordinance adopted by the common council prohibiting the operation of hydraulic elevators in the city with water taken directly from the city mains.

After a careful consideration of all the testimony in the record, we agree with the circuit judge that the entire situation was explained to and understood by the complainant’s agent, Rice, at the time of making the contract with defendant Blanche T. Peck. In consequence of the objections of the superintendent of the city water works and board of public works that the installation of the elevator would endanger the pumping machinery and water mains, complainant’s agent, Rice, consulted with said superintendent and board of public works and assured them, as well as defendant Blanche. T. Peck’s husband, who was the manager of the hotel for her and represented her in making the contract, that this difficulty would be obviated by the appliance which he proposed to attach to the elevator. These assurances led the public authorities to consent to the installation of the elevator in the Arlington Hotel and induced the defendant to enter into the contract.

The superintendent of the water works testified as to the results after the water was first turned on to operate the elevator in question.

“After I turned on .the water I returned to the water works as soon as I could get there.

“Q. Well, what, if anything, did you notice after you got to the water works ?

“A. Why, we had a great variation of pressure. I was afraid of a damage to the- pumps and went right back and turned it off again.

“ Q. What was the variation ?

“A. Well, while that valve was wide open, there was about 50 or 60 pounds at the works.

. “Q. Did that variation take place when the elevator was stopped ?

“A. When it was started and stopped both.

“Q. Both?

“A. Yes, sir.

“Q. Well, would there be any difference in the variation in the pressure at starting or at stopping ?

“A. The starting was not injurious because it decreased the pressure, but the stopping was injurious because it increased it.

“Q. So that the injury came from the stopping of the elevator ?

“A. Yes, sir.

“The Court: What variation?

“Mr. Kirwin: At the works.

“Witness: 50 or 60 pounds, depending upon the lift of the elevator. A short lift was not as bad as a long one.

“Q. That would indicate what? That there was that much variation in the pressure in the mains ?

A. Yes, sir.

“Q. What damage, if any, did this variation do to the property of the city ?

“A. Caused leaks in the mains and damage to the pumps, through loosened balance wheels and couplings and gear wheels, blowing - out valves and packing. * * * There was tests made at the elevator for the purpose of showing the difference in the pressure in the pipes in Mr. Dunn’s presence; I don’t remember of their saying anything about obviating except their relief appliances that they put in there which was of no value as far as I could see; they made a claim that it would do it, but it did not. While they were operating the elevator I went with members of the board about the city from point to point, for the purpose of testing the variation of pressure in the pipes at different points, viz., sill cocks at the Arlington Hotel, Imperial Hotel and Rose’s yard above the Arlington across the railroad track, perhaps 340 feet on an even line; we found the variation to be at these different points, when the elevator was being operated, about the same as it was at the station, about 60 pounds if the valve was open, but we seldom had the valve open, and we tried to hold it down to a variation of 20 pounds, that is, on the opening and closing of the valve.

“I remember Mr. Cook making some' change in the construction or mode of operation of the elevator later, and the effect of the change was that it did away with the variation of pressure of 50 or 60 pounds and all our troubles as long as there was air in the tank; when there is air in the tank the variation of pressure is so slight that you could not notice it when they operated the elevator.

“ The location of the reservoir, stand pipe, was all gone over and he understood at that time it was a reservoir tank system here and he spoke about the St. Joe system and the elevator there in that connection, and in effect he said it was the small-pipe system in St. Joe and that the conditions there and the elevator they had installed was similar to the conditions here. * * * We went

over the trouble with Mr. Rice, that we had with the other elevator, and we didn’t want any more of it, só we guarded against it in this way. Mr. Rice guaranteed us we would have no trouble with this device, which I knew nothing of.

Q. Now after this elevator was installed and after it began operations, how long was it in operation before your attention was called, or any complaint made, or you noticed any trouble — anything wrong ?

A. How long after the valve was first opened ?

“ Q. Yes.

“A. Just as fast as I could go from the Arlington Hotel to the pump station. * * *

“ Q. When the elevator would begin its intake and begin to rise, there would be a decrease in pressure, would there ?

“A. Yes, sir.

Q. And that would be, I suppose, simply while the elevator was rising ?

“A. And it would be very quick.

“ Q. It would go down about how much ?

“A. Well, it dropped about 100 pounds or 95, depending upon the operator in the elevator a good deal.

“ Q. It would drop from what pressure to what pressure ?

“A. From 125 with pumps running at normal speed—

Q. To what pressure ?

“A. To 95. * * *

“ Q. When the elevator would be stopped, what would be the effect ?

“A. Run up to about 150 pounds pressure — sometimes 160 — depending upon the operator.”

In consequence of these conditions, the city authorities refused to permit the elevator to be operated with a 4-inch valve, fully open, but inserted in the valve a bushing, decreasing its capacity to between one-fourth and one-fifth of its full capacity, which obviated the difficulties experienced, but so lessened the supply of water that the elevator could not be operated in compliance with the contract. Later on, defendant installed, in connection with the elevator, a compression tank, at considerable expense, which enabled defendant to use the elevator with the valve fully open.

It is agreed that the elevator plant itself worked satisfactorily when the valve was wide open, and it is the contention of complainant’s counsel that the failure of the elevator to do its work after its installation was wholly due to the failure of the city authorities to furnish sufficient water to maintain a constant pressure of 80 pounds to the square inch with valve wide open; that the object of the pressure relief attachment was to take care of the water-hammer, so-called, and that, with a sufficient supply of water, it would have done so. Complainant’s superintendent, Forslund, testified:

Q. Mr. Cook and Mr. Peck both testify that when the Arlington Hotel elevator began to rise there was also a rapid increase of motion in the pumps — a racing of the pumps. Now what would that indicate?

“A. That would indicate that the pressure in the pipes was reduced clear up to the pump; and this reduction of pressure shows that a large quantity of water —or a quantity of water had been withdrawn from the pipes which the pumps are not able to take care of in the same length of time, while the water was being withdrawn therefrom; and this reduction of pressure in the pipes caused the pumps to accelerate in motion, because they had less head or load to operate against. As soon as the pressure began to rise — or, return to its normal condition —the pumps would not stop racing, on account of the momentum of its own parts. There is quite a fly-wheel on this shaft — the turbines themselves are of some size and weight, undoubtedly — and would tend to continue at the increased speed on account of their own momentum and before the pumps could return to their norma! condition, the pressure would rise above the normal. And that was this reaction, which in my opinion is not a water-hammer — it is simply a pressure driven up by these pumps to a certain point, that caused the trouble; and it was this sudden reduction of pressure which we noticed when the elevator' started up — or this reduction in the pressure in the pipes that would have a tendency to make this pump to clatter — the gears get noisy. I have noticed that on pumps that were geared with gears, that in drawing the water away from' them, that even if they could not increase in speed — if the governing device was such that they could not increase in speed — they would clatter anyhow.

Q. Is this, relief attachment designed to take care of that falling pressure caused by the withdrawal of the supply ?

“A. No, sir. As I said, that relief attachment could not supply any additional pressure and it was incapable of supplying water to the system.

Q. It was designed to take care of—

“A. Of the shock or water-hammer due to the momentum of the column of water at the elevator when the elevator was suddenly shut off — absorb the inertia — we might say, of the flow of water in that direction.”

Speaking again of the pressure relief attachment, Mr. Eorslund testified:

“Q. You said awhile ago that was for only one purpose and that was to regulate the water-hammer?

"A. Yes, sir.”

It is entirely clear from the testimony that what defendant was seeking, and what complainant’s agent understood she was seeking, was to obtain some device in connection with the elevator which would obviate the objections of the public authorities to the installation of a hydraulic elevator using water directly from the city mains, and that the objections of the city officials and the ordinance were founded upon a previous experience, which had resulted in substantially the very thing which resulted from the use of the water by the elevator installed by complainant. The contract must be construed with reference to this situation, and, so construed, we think there can be no doubt of the correctness of the conclusion of the circuit judge that complainant had not complied with its contract. While the elevator worked satisfactorily with the valve open to its full extent, the results at the pumping station and in the city mains were precisely what the city authorities had endeavored to prevent and had been assured would be prevented by the use of a pressure relief attachment. Although, under the contract as between the parties, it was the duty of the defendant to furnish a pressure of 80 pounds to the square inch with the valve open to its full extent, still, complainant’s agent fully understood that it was the city that was furnishing the water and applying the pressure.

According to the testimony of the superintendent of the water works, the normal pressure at the pumping station and in the pipes was 125 pounds, and this pressure, at no time while the water was being used at the Arlington by the elevator, fell below 80 pounds; in fact, according to his testimony, the lowest point reached was 95 pounds; and we are satisfied that, construed in the light of the surrounding circumstances and applied to the subject-matter, the contract was complied with so far as the defendant was concerned, and that complainant failed to comply with the guaranty on its part, which was the inducing cause of defendant’s entering into the contract.

We think, however, that the decree entered by the court was not authorized under the pleadings in the case. The court decreed that:

“The defendants, having retained the machine, are in equity bound to pay for the same, but are entitled to recoup their damage for breach of warranty against the balance of the purchase price, $1,084.18; being the difference between the actual value of the implement sold and what its value would have been had it been up to warranty, to wit, $885, the amount expended by defendants in purchasing and installing air pump, air tank and electric motor to'bring the elevator up to the standard of efficiency set up in the agreement, and the board bill of $63 claimed in offset by the defendants; tnaking a total of $948 to be allowed to defendants; that if complainant is dissatisfied with this amount of damages allowed to defendants, it may enter an order referring it to a circuit court commissioner or to the court to assess damages.”

While our mechanic’s lien law expressly provides that the owner “shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract” (3 Comp. Laws, § 10710), no such issue was presented by the answer. Neither did the defendants ask leave to amend the answer in this regard, nor was any such amendment ordered, as authorized by section 10736, 3 Comp. Laws. Although the defendants have not appealed and their counsel argues in support of the decree, complainant’s counsel raise the point in their brief that the decree was not warranted by the pleadings, and their contention we think correct.

The decree, under the pleading and the facts as found, should have been, that the bill of complaint be dismissed, and, as so modified, the decree will be affirmed, unless, within 30 days after the filing of this opinion, complainant’s counsel consent that the decree as entered in the circuit court may stand. Costs of both courts to defendants.

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


author: Ostrander, J.

text:
    CITY OF GRAND RAPIDS v. COIT.
    1. Municipal Corporations — Eminent Domain — Street Improvements.
    Where a city has express power to grade and widen streets and to take private property for public use, it has power to go outside the boundaries of an existing street and take private property for the purpose of widening and otherwise improving it.
    2. New Trial — Inadequate Damages — Increasing Award — Condemnation Proceedings.
    Where the damages awarded in condemnation proceedings are inadequate, the remedy is a new trial, and the court cannot deny the landowner’s motion for a new trial on that ground on condition that petitioner will submit to an increased award fixed by the court.
    3. Eminent Domain — Necessity of Improvement — Question' for Jury.
    Where the only purpose of a proposed street improvement, involving the taking of private property, is to make an easier grade, the landowner has aright to the verdict of the jury on the question whether the making of an easier grade, in the manner proposed, is a public necessity, and rulings on instructions which result in a charge which does not give effect to this rule are erroneous.
    4. Same — Necessity of Improvement — Evidence.
    In proceedings to condemn land for the purpose of widening,» street and making an easier grade, testimony that other streets in the immediate vicinity, which might be improved without taking private property, would accommodate existing and anticipated traffic equally well, is competent on the necessity of the proposed improvement.
    5. Same — Evidence—Opinions,
    The opinions of witnesses as to the necessity of a proposed improvement are incompetent.
    6. Same — Evidence—Hearsay.
    Testimony that certain interested property owners, named, had appeared before the board of public works as protestants and later withdrew their objections and stated that they were perfectly pleased, was incompetent, as hearsay.

      7. Same — Evidence—Necessity of Improvement.
    Testimony by the president of the board of public works that the proposed improvement was most patiently and carefully considered before the plan was adopted was incompetent.
    Appeal from the superior court of Grand Rapids;. Stuart, J.
    Submitted June 19, 1907.
    (Docket No. 71.)
    Decided October 4, 1907.
    Proceedings by the city of Grand Rapids against Clara M. Coit and others to condemn land for street purposes. There was judgment confirming the award of the jury, and defendants appeal.
    Reversed.

      Gleason & Lee, for appellants.

      Moses Taggart and B. M. Ferguson, for appellee.
   Ostrander, J.

Hall street in the city of Grand Rapids runs east and west, is 66 feet wide and about 2£ miles long. It is intersected about one-third of a mile from its west terminus by Grandville avenue, west of which intersection the street has never been graded although for 20 years and more it has been opened and in public use. Some 647 feet west of Grandville avenue, Hall street is intersected by Godfrey avenue. Between Grandville and Godfrey avenues, and running northeasterly from Hall street, are Underhill street and E street, and the first street north of Hall street, connecting Godfrey and Grandville avenues, is Curve street. Grandville avenue is 64.7 feet higher than Godfrey avenue. The common council of the city determined in October, 1904, that the opening and widening of this 647 feet of street was a public necessity, and that it was necessary to take private property for that purpose. It thereupon filed in the superior court of said city its petition under the provisions of Act No. 124, Pub. Acts 1883, as amended by Act No. 48, Pub. Acts 1887, and by Act No. 236, Pub. Acts 1889:

“ To acquire the right to take private property for the use and benefit of the public, without the consent of the owners thereof for the purpose of opening and maintaining a public street thereon in said city-feet wide from Grandville avenue to Godfrey avenue together with land for slopes and enbankments as necessary to secure between the limits above named a uniform grade for said Hall street of not to exceed 6-J- per cent, for the use and benefit of the public.”

It is, and was, proposed to make a road 33 feet in width, not straight, but in the form of the letter S, so as to reduce the grade from a 10 per cent, to a per cent, grade. Three parcels of land are involved, for each of which the jury, having found,—

“That the opening and widening of Hall street, a public street in the city of Grand Rapids, from the west line of Grandville avenue, a public street in said city, to the east line of Godfrey avenue, a public street in said city, together with land for slopes and embankments as necessary to secure between the limits above named a uniform grade for said Hall street of not to exceed per cent., is a necessary public improvement, and that it is necessary to take and use the private property described in the petition on file in this cause for the use and benefit of the public for the proposed public improvement in said petition described,” awarded the owners compensation.

Appellants did not object to the grading and improvement of the street, and they concede that the plan of improvement proposed involves the taking of their land. They assert it is not necessary to improve the street in the proposed manner; that no public necessity requires the taking of their property. Upon this question, much testimony was introduced. Petitioner having rested, appellants asked that the case be taken from the jury for the reason that it appeared that Hall street had been a public street, 66 feet wide, in actual use, for more than 20 years, and that as matter of law the city had not the power to go outside the street boundaries and take private property for the purpose of the contemplated improvement. The overruling of this motion is the first of the alleged errors presented in the brief for appellants.

For one parcel of land, the compensation awarded was $20.85 less than the smallest valuation placed upon it by any witness. A motion for a new trial being made, the court made an order that one be granted unless the city would consent to increase the award $25. This the city did. It is contended that the court had no authority to thus increase the award, and that the motion for a new trial should have been granted without condition.

It is contended, also, that-improper testimony was in-, troduced by petitioner, and the charge of the court is criticised.

1. The power of the city to grade and widen streets is express. This, we think, answers the first contention made.

2. The lowest value placed by a witness upon the land known as parcel No. 1 was $385, the highest $1,195.30. The compensation awarded by the jury was $314.15. See City of Grand Rapids v. Perkins, 78 Mich. 93. This award the petitioner, exercising the option given it by the court, consented to increase to the sum of $339.15. The theory of the attack upon verdicts claimed to be excessive or inadequate is that they are not supported by evidence. The remedy is a new trial. The practice of refusing a new trial if the owner of the verdict will remit the recovery to an amount which the evidence, in the judgment of the trial court, will support, is one of long standing. In cases where the evidence affords a standard or rule for calculating the sum which should be awarded, the practice, whether the verdict is excessive or is inadequate, is open to no objection. Where the award depends upon conflicting.testimony, and especially where the allowance to be made rests, of necessity, in the sound judgment of the jury, this asserted and admitted power of the courts is sparingly exercised. In any case, the one in whose favor the verdict is rendered is given the option to remit or submit the issue to another jury. The general rule is that when a trial court determines that the damages, awarded upon conflicting evidence, are inadequate, a new trial will be granted, and that the court cannot render judgment for an amount greater than the verdict, nor can a new trial be refused on condition that the defendant pay a sum fixed by the court. 14 Enc. Pl. & Pr. p. 755; Lorf v. City of Detroit, 145 Mich. 265. In condemnation proceedings, the petitioner is not, as to the compensation to be awarded, a plaintiff. The court was in error in refusing a new trial.

3. It was said by Chief Justice Campbell, in People v. Village of Brighton, 20 Mich. 57, 71:

“We think there is no doubt that under the constitutional provisions requiring the necessity for using the property, as well as the damages, to be ascertained by the jury, the jury cannot be debarred by the action of the village authorities from determining whether the proposed improvement is required.”

See, also, City of Grand Rapids v. Railroad Co., 58 Mich. 646; Commissioners of Parks and Boulevards v. Moesta, 91 Mich. 149; In re Powers’ Appeal, 29 Mich. 504. In the matter before us, the petitioner is by its action committed to the improvement of this street in a manner which, carried out, must of necessity take the land in question. The purpose and only purpose of the proposed plan is an easier grade. It is a necessary conclusion that the real question to be decided by the jury was whether the making of an easier grade, in the manner proposed, was a public necessity. The court declined to instruct that,—

“If you find that this street may be improved without taking private property, and that there are other streets in the immediate vicinity that may also be improved without taking private property, and that such improvements would together accommodate the general public more fully or equally fully with the improvement proposed, then I instruct you your verdict in this case must be for the deféndants.”

A request that “whether or not other methods of,accomplishing'the ends desired may not be adopted without the necessity of taking private property,” was also refused and, instead, the jury were told they were—

“Not to consider the improvements of other streets that might be used in lieu of Hall street between Grandville avenue and Godfrey avenue, but the improvement of Hall street at such point itself. * - * *

“You are not to consider improvements that might be made in the future, for all these things are matters of uncertainty, but the conditions that are there now and the necessities that exist and what is proposed to be done, are for you to consider to determine' upon the necessity of it for there must be a public necessity for the opening and widening of this street as proposed by the petitioner before the property of any of the respondents can be taken therefor.”

The jury were also instructed to—

“ Consider the settlement that is in that valley that is to be accommodated in getting out, or what will be there soon, and the points to which the street leads in getting across the city to the eastern part thereof, and what use would be made of the street and what streets are now in that locality, if any, that are in position that they can be used so as to obviate the necessity of this'improvement in opening and widening this street, going down the hill.”

Taken together, the instructions given do not, in this case, give effect to the rule of People v. Village of Brighton, supra. Petitioner is a party litigant and it may be assumed that it has the power to improve any of the unimproved streets running from Grandville avenue to Godfrey avenue. Land 66 feet in width is already appropriated for and used as a way. In a sense, a new appropriation of this land, together .with adjoining privately owned lands, is attempted, for the purpose of public convenience. Undoubtedly, a grade of per cent, is preferable to one of 10 per cent. But a 10 per cent, grade does not, for a short distance, prevent the free use of a street. It does not appear that there is any considerable traffic to or from the particular locality of the proposed improvement. If that share of the existing and anticipated traffic required to be accommodated by the use of a way with a lesser grade may be as well or nearly as well convenienced by the improvement of another way, taking no private property therefor, and there was testimony tending to support such a conclusion, the j ury might have found, if permitted so to ¿o, that the proposed improvement was unnecessary. As has been stated, the vital question was not whether the property sought to be condemned will be useful in carrying out the improvements determined upon by the petitioner, but whether the particular improvement is, itself, a public necessity. We are of opinion that the testimony referred to was calculated to assist the jury in arriving at a proper determination of this question.

For petitioner, over objection, and, later, for respondents, witnesses were permitted to answer questions expressly calling for an opinion concerning the necessity of taking the property for a public street. The president of the board of public works was asked by counsel for petitioner, “Was this matter before your board several times before action on the proposed plant? ” and answered, ‘ ‘ The matter was most patiently considered, very carefully and deliberately.” The same witness stated that certain interested property owners, named, had appeared before the board of public works as protestants and later withdrew their objections and stated they were perfectly pleased. Motions to strike out these statements were denied. Another witness was permitted to testify that three members of the board of public works and the city engineer together examined the street and agreed that the plan proposed was the best one. The opinion evidence referred to was incompetent. City of Detroit v. Brennan & Co., 93 Mich. 338; City of Grand Rapids v. Bennett, 106 Mich. 528; City of Pontiac v. Lull, 111 Mich. 509. In view of these decisions, the questions calling for opinions should not have been put. The hearsay evidence referred to was incompetent, as was that concerning the patient consideration of the matter by the board of public works.

The verdict is set aside and a venire de novo awarded.

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