text:
    CALVERT v. DETROIT UNITED RAILWAY.
    1. Pleading — Gross Negligence — Contributory Negligence — Discovered Peril.
    A declaration alleging that plaintiff's peril in attempting to cross defendant’s street car tracks ahead of a car was discovered by defendant’s agents in time to avert injury by proper action on their part, held, sufficient to support a judgment for plaintiff, notwithstanding her contributory negligence.

      2. Negligence — Comparative Negligence.
    The doctrine of comparative negligence is not a part of the law of Michigan.
    3. Same — Gross Negligence — Contributory Negligence — Proximate Cause.
    Although plaintiff hy his negligent conduct may be put in peril of injury by defendant, if his peril is discovered by defendant, or if in the exercise of ordinary care it ought to have been discovered, a duty arises to avert the injury if it is reasonably possible to do so, and the failure to discharge such duty may be regarded as the proximate cause of the resulting injury.

    4. Same — Gross Negligence — Evidence—Question for Jury.
    Evidence as to the negligence of defendant’s agents in failing to stop the car after plaintiff’s peril was discovered by them, held, to present a question of fact for the jury.
    5. Evidence — Opinion Evidence — Negligence—Gross Negligence —Harmless Error.
    In an action for personal injuries received in a collision between plaintiff’s automobile and defendant’s street car at a street crossing, testimony by a policeman who was riding in the front vestibule of the car at the time of the accident, that, in his opinion, with proper apparatus, the street car could have been stopped in 50 or 60 feet, should not have been received; but in view of the testimony of the motorman, based upon his own experience, that he could have stopped the car on the occasion in question in 50 feet, its admission was not reversible error.
    Error to Wayne; Codd, J.
    Submitted April 23, 1918.
    (Docket No. 27.)
    Decided July 18, 1918.
    Case by Belle Calvert against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

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

      Charles T. Wilkins and Edward R. Kehoe, for appellee.

      The amended declaration of the plaintiff contains the following allegations:
    “The plaintiff avers that, before defendant’s said car struck plaintiff’s said vehicle, as hereinafter set forth, plaintiff’s said vehicle, in which plaintiff was then and there riding and driving as aforesaid, had then and there entered upon and started to cross said Porter street as aforesaid, and had passed the northerly line of the sidewalk on the southerly side of said Porter street and was approaching and about to enter upon and to cross said track of defendant’s, and that when and before the front end of her said vehicle had passed said northerly line of said sidewalk said vehicle was in full view from the defendant’s said car, and it was then and there plainly apparent to the defendant, through its servants and employees in charge of said car, if the defendant had kept or was keeping, as; it was its duty to do, a careful or proper outlook, that plaintiff’s said vehicle was then and there moving in a northerly direction and was entering upon and about to cross and crossing Porter street aforesaid and approaching and about to enter upon and to cross defendant’s said track, and that plaintiff intended to cross said track and that plaintiff and her said vehicle were then and there in a situation of extreme-peril of collision with defendant’s said car and plaintiff in extreme peril of her life, and that, such collision would result, unless, defendant’s said car was stopped before it reached Eighth street, and that plaintiff’s said vehicle was so in full view from defendant’s said car, and all these facts and plaintiff’s said intention were so plainly apparent, as aforesaid, and were known to the defendant, and would and should have been so known if the defendant had kept or was keeping a careful or proper outlook while the defendant’s said car was still some distance, to wit: 200 feet, east of Eighth street aforesaid, and in ample time for the defendant, through its said agents and employees, then and there to check said car and to bring the same under control and to stop the same before it reached Eighth street and to avoid collision with plaintiff and her said vehicle, and to avoid the injuries hereinafter set forth, and to allow the plaintiff and her said vehicle to cross said track in safety and to escape from such perilous situation and to avoid collision with said car and the said injuries. But the plaintiff avers that _both before and after said facts and her said situation of extreme peril were so apparent and so known to the defendant, and would and should have been so known if the defendant had kept or was keeping a proper outlook, the defendant then and there carelessly, recklessly and wilfully and with gross and wanton negligence failed to make any proper effort, or any effort whatsoever, to bring or keep its said car under proper control, or to check the same, or to stop the same, or to avoid collision with the plaintiff or with her said vehicle, and did not bring its said car under control or check the same, or stop the same, until after said car had struck the plaintiff’s said vehicle, but then and there carelessly and recklessly and with gross and wanton negligente operated and drove its said car at a great speed against the said vehicle of the plaintiff so driven by the plaintiff and in which the plaintiff was then and there riding.”
    The question of fact submitted to the jury is indicated by these excerpts from the charge of the court:
    “It is her claim and contention that after she had stopped her automobile and when it was proceeding in a northerly direction, it is her claim, that after she came into a place or position of peril upon the track, that is, in front of the car, that the car was a sufficient distance — that the street car was at a sufficient distance away so that the motorman in charge of the car could have, in the exercise of ordinary care, stopped his street car in time to avoid the collision that occurred, and that it was his duty to keep a proper lookout; but that this proper outlook was not kept and that after her situation of peril was discovered from the street car, if those in charge of the,car had put the same under control, they could have avoided a collision, if a proper outlook had been kept; and that this negligent failure to bring the car under control, resulted in the accident; that it continued on its way at a rapid rate of speed and collided with the plaintiff’s automobile causing the injuries complained of. That the collision could have been avoided by an exercise of proper care on the part of those in charge of the car after her situation of peril and the danger of collision was apparent, and that the collision resulted from a lack of such care. * * *
    “Therefore, the question resolves itself into a determination of the question of fact for you, Did or did not the defendant’s agent, after this position of peril on the part of the plaintiff was or should have been discovered in the exercise of ordinary care, did he act with that ordinary care required by law? If you find that the plaintiff’s dangerous position and situation was so apparent to the motorman in charge of the defendant’s car, for a sufficient length of 'time to enable said motorman to stop his car and not run into the plaintiff, that said motorman instead of stopping the car negligently allowed the same to run upon and into the sides of the plaintiff while she was in a position as testified to, and injured her, then the defendant is liable in this case, even though you find that the plaintiff is guilty of negligence in putting herself into a position of peril in which she found herself.”
    Plaintiff, on the afternoon of July 24, 1913, going north on Eighth street, in Detroit, and crossing Porter street, drove her motor car upon the single track of defendant railway, where it was struck by a westbound street car. She was badly injured, a verdict in her favor for $3,500 being returned by a jury, upon which a judgment was subsequently entered. A new trial and a judgment non obstante was denied, the court saying, in answering the reasons assigned:
    “There is but little question in my mind as to plaintiff’s negligence in coming upon the track, and the jury were so instructed. A question of fact, however, arose as to ‘whether the plaintiff was in a position of danger a sufficient length of time to have been seen by defendant’s engineer’ or motorman, and to have enabled him, after such discovery of the position of peril of plaintiff, in the exercise of reasonable care, to have stopped’the car in time to have avoided the collision? This was a question of fact for the jury. Defendant’s regular motorman testified that he could have, and the testimony of himself and the police officer, coupled with some of the testimony of the student motorman himself, might well justify a jury in finding that in the moment of the discovery of this peril, the inexperienced operator lost his head. It is not an act of negligence, of course, to employ student motormen, but there can be no distinction as to the degree of duty to the public that is in law owing by the company in that their servants must use reasonable care and prudence in the operation of its cars, and the same measure is required of the novice as of the veteran. If the former fails, the responsibility is the company’s.
    “This case does not present any such situation that a ruling contrary to that urged by the defendant would at all vitiate the doctrine of contributory negligence as applicable to crossing cases, as is claimed by counsel. It simply presents the principles of subsequent or discovered negligence. The declaration, as amended, amply covers this phase,- and the court submitted the cause to the jury solely upon that theory. Their finding of fact in that regard, I am not disposed to disturb. The motion therefore for judgment non obstante veredicto is denied.
    “I do not believe that as a matter of law the verdict was excessive nor contrary to the weight of evidence, and a new trial is denied.”
    Plaintiff testified, in substance, that, arriving at Porter street, she stopped the car, the motor continuing to run, listened and looked. A building on the comer obstructed her view to the east, she being, when the car was stopped, a little south of a line parallel with the front of the building. She sat on the right hand side of the car. The head of the car projected about five feet farther north. She could see a building on the north side of Porter about 190 feet east of the east curb line of Eighth street. Seeing no car and hearing none (she was very familiar with the neighborhood), she started her car in low speed, looked west to see if there was traffic coming from that direction,—

      “and by that time my front wheel was to the south rail of the track and my sister screamed and also a man hollered and I glanced and saw the car. It seemed to be shooting as if out of a gun. It was going so fast that I could not get across, so I turned the wheel to go west and tried to have it hit me in the back instead of the side. I thought it would push me along instead-of turning the machine over. That was my first thought, and I turned and fell on my head, and I don’t remember any more until I was home on the couch.
    “I had crossed Porter at Eighth street every day for a year and a half with an automobile. When I started up from my standing position I intended to go straight over the crossing and go home. I started on low speed. It went slowly, started up on low to go across, and when I started — when I seen the car I threw it into high, thinking that I could clear it before the car hit me, and in a second the thought came to me that I could not, so I turned the wheel, going west on high speed.”
    Upon cross-examination she testified that she looked to the east three times, once when her car was at rest, again after she had started on, but where she was with reference to the front of the store she does not state, a third time when she says the car was “more than a car length away.”
    Porter street is 60 feet wide between lot lines and 28 feet from curb to curb. The street car track is in the center of the street. It is 11%' feet from the south curb to the south rail of defendant’s track. It is 12 feet from the curb on Eighth street .to the lot lines, and the street is 26 feet wide between curbs. There are sidewalks on the south side of Porter and east side of Eighth street. The store building at the southeast corner of the intersection of the streets which obstructed the vision looking east was built with its front and west walls flush with the inner edges of the walks. It is 408 feet from the center of Eighth street to the center of Brooklyn avenue; measured by property lines, the blocks are 350 feet long. If she had looked to the east after her body had passed beyond the curb, she could have seen a long distance. Obviously, she must have driven her cár some distance before the hood showed beyond the curb line, and obviously she did not look for a car from a position where she could see one at any considerable distance before going upon the track. The street car was about '80 feet long. It had stopped at Brooklyn avenue, one square east of Eighth street, and after starting attained a speed of 25 miles an hour. Plaintiff’s witness Donnelly, a policeman, boarded the car at Brooklyn avenue, and stood in the front vestibule. He says he saw plaintiff’s car moving when the front wheels were about even with the south curb line of Porter street, and when the street car was about 90 feet east of Eighth street.
    “There were two ladies in the automobile. It was a two-passenger roadster. I noticed the driver of the automobile when it got close to the track, swing or try to go to the west, in the same direction the car was going. It didn’t turn quickly enough to avoid the collision with the street car. The speed of the street car didn’t slacken up when it struck the automobile. It struck and skidded the automobile ahead between 75 or 100 feet west of Eighth street. When the automobile was struck it was about in the middle of Eighth street. The automobile was struck almost in the center. The automobile, after the car stopped, was right square across the track, and the front end of the street car was right up against it. The front of the automobile was facing north. * * * I have already told you that they were out completely from behind the north wall of the building. If they looked from that position there w^s nothing to prevent them from seeing down to Brooklyn avenue as far as the eye would carry. When they got out they could look down straight. I can’t say if the automobile slackened its speed before it was struck. I could not see any increase or decrease. I saw them turn when the car got over the track; they tried to go to the west. When I was looking at the automobile it was moving at right angles to the street car. I didn’t have an opportunity to observe the speed at which the automobile was -going.”
    After some preliminary questions and answers de- . signed to show his competency to answer the question, which counsel for defendant say, and said, not only did not show competency but established incompetency, he testified, over objection, that in his opinion the street car, loaded as it was, on that day and occasion, with proper apparatus in proper order, could have been stopped in 50 or 60 feet. This testimony, upon suggestion of plaintiff’s counsel, was afterwards stricken out.
    Plaintiff called the witness Warren, a former employee of defendant, who was a motorman, and in the vestibule of the car upon the day in question. He testified that he saw the automobile when it was 9 or 10 feet south of the track. When he saw the position of the automobile and the peril of a collision was realized, the street car was about 50 feet east of the east curb of Eighth street. And he testified further, over objection, that the car could have been stopped (an emergency stop) and that he could have stopped it, that day, under existing conditions, in 50 feet. This witness finally stopped the car, taking the controller from the student motorman, but not until the collision had occurred, before which time the street car did not perceptibly slacken its speed.
    Defendant called the witness Hawthorne, who was the motorman driving the car — a student motorman, then under the instruction of the witness Warren. He saw the automobile moving north when the street car was about 40 or 50 feet east of the center of Eighth street.
    “When I saw the automobile in that position I shut off the current. I supposed I was shutting it off, and I applied the air at the same time, and reached for my reverse. I shut it off. My power was not shut off. It locked my reverse so-that I could not reverse. Then I reached and shut off the power and then the reverse could be used. After the power was shut off the car stopped. I had failed to shut off my power probably half an inch, but it was enough to leave the power on, and the effect of that so far as trying to put on the reverse, was that it locked the levers, and it was not possible to use the reverse: The collision occurred a little west of the center of Eighth street. After I hit the automobile I shoved it until the power was shut off, probably 14 or 15 feet, maybe more, probably. The car stopped when the regular motorman shut off the power. It went 14 to 15 feet or probably more after it struck. I don’t think any part of the automobile got on the fender. I don’t remember.”
    Appellant’s contentions are (1) that the declaration not presenting a case of subsequent negligence, and the court being of opinion that the plaintiff was guilty of precedent negligence, the request of the defendant for a directed verdict upon this ground should have been granted, (2) assuming the declaration to be sufficient, the testimony does not present a case of subsequent negligence — discovered negligence — upon the part of the defendant, (3) the opinion of the witness Donnelly concerning the distance within which the street car could have been stopped should not have been received and striking it out did not cure the error. It is not contended here that the verdict is against the weight of evidence.

      See note in 21 L. R. A. (N. S.) 427.

   Ostrander, C. J.

(after stating the facts). 1. The amended declaration, its language being fairly interpreted, alleges peril of plaintiff, discovered by defendant’s agents in time to avert injury by proper action on their part. It must be held to be sufficient.

2. The principal, and the interesting, question, upon the merits, is whether the testimony presents the case alleged in the declaration. The doctrine of comparative negligence is not a part of the law of this State. It is the law of this State that when plaintiff is guilty of negligence contributing to the injury he can recover no damages for the injury. In the application of this doctrine there is involved the negligence of the defendant which is complained of, causing or helping to cause injury, and the negligence of plaintiff contributing thereto. It is also the law of this State that although plaintiff by his negligent conduct may be put in peril of injury by defendant, if his peril is discovered by defendant, or if in the exercise of ordinary care it ought-to have been discovered, a duty arises to avert the injury, if it is reasonably possible to do so, the failure to discharge which duty may be regarded as the proximate cause of the resulting injury. It is said by counsel for appellant:

“Assuming, which perhaps more nearly approximates the theory of the plaintiff’s amended declaration, that the motorman is to be held to have anticipated the plaintiff’s attempt to make the crossing ahead of his car regardless of the danger to herself involved therein; that she was not intending, as she should have intended, to stop- before reaching the track, although it was easily possible for her to do so instantly, and that the peril of her situation was to be deduced from this course of reasoning, then it only needs to be said, no matter what the negligence of the defendant, the plaintiff, by continuing in motion towards the track upon which the car was approaching at a terrific rate of speed, by not reassuring herself of the safety of that attempt just before entering the track or before she got so close thereto that it would be impossible for her to stop if necessary, by failing to stop and allowing the car to go by, as was her duty, was guilty of continuing and continuous acts of negligence which ultimately brought her directly into the path of the car and to her Injury, in which case, call the negligence of the defendant what you will — ordinary, precedent, gross, subsequent or what not — the active negligence of the plaintiff operating in conjunction and concurrently therewith in any view of the law as announced in every jurisdiction, precludes the possibility of her recovery.”

It is further said, in argument:

“This is not the case of a person using the part of the street occupied by the tracks as a thoroughfare while proceeding on his way ahead of and in the same direction the car is going and being run down by a motorman. It is a case of an unexpected and admittedly imprudent attempt (at least in its initiation) to cross the street car track at right angles. Subtle refinement and clever hair splitting will not serve permanently to deter the courts from applying the familiar rules of law to such situations. If a case of subsequent negligence is made for the jury in the case at bar, then we have, willy nilly, frittered away the doctrine of contributory negligence in right angle street car crossing cases; since in every case where an attempt is made to cross ahead of a street car the question of whether there was a timely discovery of the situation will' turn upon whether a motorman could have stopped his car after the attempt was made, and it would follow that if he could, his negligence will authorize a recovery notwithstanding the contributory negligence of the plaintiff. With such a rule, there could no longer be any such thing as contributory negligence defeating a recovery in any case where the defendant’s negligence consists of failing to control the car.”

I think that counsel has precisely stated the theory of plaintiff, the effect of the testimony of plaintiff’s witnesses. The witness Donnelly and the regular and the student motorman, each professes to have become aware, before plaintiff’s car had actually gone upon the rail, that she would drive it there and that unless the street car was stopped, or its speed greatly lessened, there would be a collision. Neither of them professes to have believed that plaintiffs actions indicated knowledge of the approach of the street car or that she would stop her car before attempting to •cross the rails. On the contrary, from about the time her car was seen, an effort was made to avert a disaster which seemed to be imminent, to perform a duty then arising out of circumstances as they appeared. There was, at least, testimony tending to prove this. It is true that her negligent conduct continued — was continuous — almost from the time she started her car (because she did not from a proper position look for the street car, as she ought to have done, and she proposed, she testified, to drive on across Porter street) until she discovered her peril, when she made some effort to avert disaster. It is also true, if the testimony of the witnesses referred to is believed, that her negligent conduct and apparent peril were discovered by defendant’s servants at some time before the street car reached Eighth street. j

The remainder of the quoted argument for appellant contains the reasoning of this court in the opinion delivered in the case of Fritz v. Railway Co., 105 Mich. 50, 54, 55. In that case the driver of a milk wagon directly ahead of a moving street car which he had not observed suddenly turned his horses to cross the track. It was “an attempt to cross the track, unexpected and sudden.” And it was said:

“If we assume that, under these circumstances, the plaintiff had by this act placed himself in a position where his negligence might have been discovered and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question of whether there was a timely discovery of the situation will turn upon whether the motorman could have stopped his car after the attempt was made, and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory negligence of plaintiff.”

In Labarge v. Railroad Co., 134 Mich. 139, it was said:

"It may be conceded that, where one wilfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one. who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to wilfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances. And again, we can conceive of a degree of recklessness which, by reason of its coincidence with probable disaster, is closely allied to the foregoing, and should perhaps be governed by the same rule; but it does not follow that all acts that counsel or jurors might, in the light of subsequent events, be inclined to call reckless, should be treated as something more than negligence, and classed with intentional, rather than with negligent, acts, when it cannot be said that it was coincident with a probable disaster.”

A reference to decisions is made, and it is said:

"In all of these cases the negligence of the defendants occurred when there was a condition of danger, and it may be said that it was unimportant how such antecedent condition arose, or whether it was due to the negligent act of the plaintiff or not. The defendant’s wrong being a want of ordinary care, which care would have prevented the accident notwithstanding plaintiff’s antecedent negligence, it was responsible for it, and plaintiff’s antecedent negligence being at most a remote cause, and there being no other negligence on the part of the plaintiff, he might recover. It has in some cases been said that his negligence might be said to be a remote, and not the proximate, cause.
“We have held that a defendant who backs its cars at high speed across a highway in a city or village, without having a brakeman upon or in charge of the same, is chargeable with gross, i. e., great, negligence, and cannot maintain the defense of contributory negligence, where the presence of such brakeman, and the use of ordinary care, would have shown plaintiff’s danger, and made it possible to avert the accident. This rule is subject to the exception of such negligence on the part of the plaintiff as occurs after his discovery of the danger. In our opinion, the term ‘gross,’ as applied to negligence, has no such broad legal effect as is contended for in this case; but whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger, in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff’s danger arose, in the first place, through his own negligence, does not prevent his recovery for an injury sustained. * * *
“The doctrine of responsibility, notwithstanding discovered negligence of the plaintiff, does not apply where the plaintiff’s negligence is, in the order of causation, either subsequent to, or concurrent with, that of the defendant. Smith v. Railroad Co., 114 N. C. 728 (19 S. E. 863, 923, 25 L. R. A. 287); Holmes v. Railway Co., 97 Cal. 161 (31 Pac. 834). Thus it it said that while one discovered by an engineer, negligently walking on a railroad, may be entitled to recover, if the engineer, apprehending the danger, makes no effort to avert it. He cannot recover if, after becoming.aware of the danger, he makes no proper effort to escape. International, etc., R. Co. v. Garcia, 75 Tex. 583 (13 S. W. 223); Louisville, etc., R. Co. v. Webb, 90 Ala. 185 (8 South. 518, 11 L. R. A. 674); Smith v. Railroad Co., supra. And in Ochsenbein v. Shapley, 85 N. Y. 214, this was held as to one who, after notice that a boiler is to be tested in a reckless manner, persists in standing by until it explodes.”

In Fike v. Railroad Co., 174 Mich. 167, the trial court, in instructing the jury, said, p. 202:

“Even though you may believe from the evidence that the plaintiff or Charles Fike was guilty of negligence (in driving with a team upon a railroad track, where defendant’s train ran them down) yet if you further believe that such negligence of both the plaintiff and Charles Fike ceased before the negligence of the defendant began, and did not again occur before or at the time of the collision, then the jury should find for the plaintiff.”

This court had no occasion to approve or disapprove this instruction, it being favorable to defendant. But,, assuming that it is a correct statement of applicable law, no violence is done to any established rule of the law of negligence when it is held that upon the peculiar facts disclosed by this record, namely, the admitted discovery of plaintiff’s peril by the agents of defendant, it became the duty of those agents to seek to avert the threatened collision, neglect or refusal to perform the duty being subsequent negligence.

There is no evidence of wanton or wicked conduct of defendant’s agents after discovering the peril of plaintiff. Quite the contrary is proven. It may be said, as matter of law, that there was no negligence in discovering— apprehending — plaintiff’s peril. If they were negligent, it was in not sooner bringing the street car to a stop. The humanitarian doctrine invoked by plaintiff is available to her only when it appears that the operator of the car could have stopped it before it reached the Eighth street crossing. According to the testimony, the street car was about 30 feet in length and was moving, when plaintiff’s movements were discovered, at the rate of 25 miles an hour. This is more than a car’s length each second. Assuming, and the assumption is favorable to the plaintiff, that instant action should have begun when the car was 90 feet from the crossing point, about three seconds of time elapsed between the discovery of the peril and the collision. Assuming, as I think the rule requires us to do, basing negligent -conduct upon the discovery of peril by the student motorman, that the car was less than 90 feet away, the elapsed time is proportionally diminished. The student motorman, in charge of the devices employed in stopping the car, in his anxiety mismanaged them, or did not manage them at all. The instructor motorman acted promptly when the situation was discovered by him. The testimony concerning what was done to stop the car was before the jury and it cannot be said, as matter of law, that it did not present for them an issue of fact.

The testimony of the policeman (his opinion) should not have been received, but, in view of the testimony of the motorman, based upon his own experience, and not a mere expression of opinion, it should not be held that admitting it was reversible error.

The judgment must be affirmed.

Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Ostrander, C. J. Kuhn and Fellows, JJ., concurred in the result.


source: Caselaw Access Project

author: Ostrander, C. J. Fellows, J.

license: Public Domain

text:
    SICKLES v. SCHAEN.
    1. Usury — Interest—United States Rule.
    In proceedings for the foreclosure of certain mortgages, the court below properly adopted the United States rule in computing interest.
    2. Same — Interest—Mortgages—Agreement to Pay Taxes.
    A provision in a note secured by a mortgage, after reserving the highest lawful rate of interest, that the mortgagor should also pay “all taxes which shall be assessed upon the mortgage, whether as personal property or as an interest in real property,” and that payment “of such taxes on the mortgage interest of said party of the second part shall not, In any case, be considered and treated as a payment on either the interest or the principal,” amounted, in form and legal effect, to a further reservation of interest.

      See note in 51 L. R. A. (N. S.) 465.

      3. Same — Illegal Interest — Intent.
    It is of the essence of a usurious transaction that there shall be an unlawful and corrupt intent on the part of the lender to take illegal interest.
    4. Same — Mortgages—Nonresident—Agreement to Pat Taxes— Intent.
    Where the mortgagee is a nonresident, and the stipulation in ’ the mortgage that the mortgagor shall pay all taxes against the mortgage is broad enough to impose upon the mortgagor the duty to pay taxes upon the mortgage assessed to the mortgagee at his domicile, in addition to the highest lawful rate of interest, it must be held, that the contract is conclusively usurious; there being no presumption that the mortgage is not taxable by the law of the owner’s domicile. Bird, Fellows, and Kuhn, J.J., dissenting.
    Appeal from Antrim; Mayne, J.
    Submitted April 24, 1918.
    (Docket No. 95.)
    Decided July 18, 1918.
    Bill by George W. Sickles against Frederick Schaen and another for the foreclosure of certain mortgages. From a decree for plaintiff, defendants appeal.
    Reversed.

      Thomas D. Meggison, for plaintiff.

      C. L. Dayton, for defendants.
   Ostrander, C. J.

Defendants gave their note, dated November 27, 1908, payable sixteen months after date to the order of plaintiff, for $265, with interest at 7 per cent, per annum. To secure payment, they executed a mortgage upon land described as the southwest quarter of the northeast quarter of section 6, and south half of the southwest quarter of section 5, town 30 north, of range 7 west, Antrim county, Michigan. Plaintiff was a nonresident of the State, and it is recited in the mortgage that he is of Seattle, Washington. The mortgage contains a covenant of the mortgagors to pay all taxes which shall be assessed upon the mortgage, whether as personal property or as an interest in real estate. The bill in this cause was filed August 17, 1914, to foreclose this mortgage, and it is charged therein that an examination of the-records shows that Lewis E. Sayre, of Los Angeles, California, has or claims rights in the land “as a prior incumbrancer.” Said Sayre is therefore named in the bill as a defendant. He entered an appearance by solicitor and before the hearing, stating in substance on said notice of appearance that Sayre had assigned his mortgage to plaintiff, and it was stipulated by the parties that an assignment of his said mortgage and the debt to plaintiff was duly made by his attorney in fact October 15, 1915, and recorded.

Answering the bill, defendants (jointly and severally) refer to the Sayre mortgage, say that the loans were made to them by an agent and representative of both mortgagees, the said agent being the only one known personally to them in the transaction, that they have paid the agent interest on each mortgage, are ready and anxious to pay both mortgages, and ask the court to consider both mortgages and ascertain and declare the sum due on each and both. It was agreed that testimony should be taken with respect to both mortgages and the sums due upon them. There was no amendment of the bill, but, before the hearing was concluded, formal proof was made of an assignment of the Sayre mortgage to plaintiff.

The Sayre mortgage was given by defendant Frederick Schaen February 10,1903, to secure his note for $350, dated that day, due three years after date, payable to the order of Lewis E. Sayre, with interest at 7 per cent. The note was written upon or into a printed form, which contained the printéd words “after maturity.” Over these words, but without erasing them, the words “per annum” were inserted with a typewriter, before the note was executed. The mortgage describes the south half of the southwest quarter of section 5, town 30 north, of range 7 west, and describes no land on section 6.

The cause proceeded to a decree, dated October 11, 1916, and filed December 4,1916, in which decree it is found that there is due on the Sayre mortgage $433.32, which sum defendant Frederick Schaén is personally liable to pay, and due on the mortgage described in che bill $408.20, which both defendants are liable personally to pay. In default of payment, the premises described in the joint mortgage to plaintiff are ordered sold, the decree being in the usual form.

The objections made in this court to the decree are stated in the appellants’ brief as follows:

“1. If the testimony introduced by the complainant be taken as true, still the amount found by the court as due upon the mortgages is in excess of the true amount.
“2. The defendants claim that both mortgages were usurious inasmuch as they provided for the maximum rate, of interest allowed under our statutes and provided that the mortgagor in the one instance and the mortgagors in the other shall pay all taxes that might be assessed upon the mortgages. That by reason of usury the complainant is not entitled to interest.
“3. That the defendants were, entitled to certain payments that were not credited to them, and that the court found an amount due in excess of the amount actually due.
“4. That no decree should have been taken on the Sayre mortgage for interest until after the maturity of the mortgage, for the reason that the note itself did not draw interest until after maturity, and there was no allegation in any of the pleadings asking for a correction of the note.
“5. The defendants claim that there were payments made upon the Sickles mortgage, that were credited on the Sayre mortgage, and that this worked an injustice to defendant Edward Schaen.”

1. Following the United States rule, McVicar v. Denison, 81 Mich. 348, Wallace v. Glaser, 82 Mich. 190, Lowe v. Schuyler, 187 Mich 526, the method of computing interest adopted by the court was the correct one. No mathematical mistake is pointed out.

2. The contracts (notes and mortgages) reserve the highest lawful rate of interest. The provision and contract in the mortgages that the mortgagor will also pay “ * * * particularly all taxes which shall be assessed upon this mortgage whether as personal prop-, erty or as an interest in real property,” with the further stipulation that payment “of such taxes on the mortgage interest of said party of the second part, shall not, in any case, be considered and treated as a payment on either the interest or the principal of this mortgage,” amount in form, and in legal effect, to a further reservation of interest. In the opinion of this court in Green v. Grant, 134 Mich. 462, 463, in considering a contract not per se usurious but which might or might not be so, depending upon circumstances, the doctrine that it is the essence of an usurious transaction that there shall be an unlawful and corrupt intent on the part of the lender to take illegal interest, is approved. It was also said:

“If, at the time the contract was made, he knew that the aggregate of interest reserved and taxes to be paid would exceed the statutory rate, — as he would if the interest reserved was the maximum interest, — the contract is usurious.”

See, also, Stack v. Detour Lumber & Cedar Co., 151 Mich., 21; Vandervelde v. Wilson, 176 Mich. 185.

Plaintiff says, in substance, that it appears upon the face of each of the mortgages that the mortgagee does not reside in Michigan, that it was not the policy of this State, when the mortgages were given, and is not now, to tax credits owned by nonresidents. Village of Howell v. Gordon, 127 Mich. 517, and therefore the provision in the mortgages requiring the payment of taxes assessed against the mortgage c?r the mortgagee as its owner is without effect in fact and'should be held to be without effect in law because any intertf. to exact more than 7 per cent, interest is negatived. Inhere is testimony tending to prove that only 7 per cent--has been demanded of the mortgagors and paid by them, that they have never been required or requested to pay any sum as taxes on the mortgages or the mortgage interest of the owners, and that the agent of the mortgagees, before his attention was called to it by the solicitor for plaintiff, did not know that the mortgages contained the clause referred to. If the question of usury or no usury may in this case be determined by the.intent of the lender to exact it, and his intent by evidence outside of the written contracts, the evidence is persuasive that the intent to exact or to receive usury was wanting.

We have held the contract itself to be conclusive when the mortgage is owned by a resident of this State. Ought it to be held to be inconclusive when, the mortgage is, and appears upon its face to be, owned by a nonresident, there being nothing to show whether by the law of the owner’s domicile the mortgage, or the credit of which it is the evidence, is taxable? Upon this record, the question is no broader than this. It must be answered in the negative, because the stipulation in the mortgage is broad enough to impose upon the mortgagor the duty to pay taxes upon the mortgage assessed to the owner at his domicile, and there is no presumption that the mortgage is not taxable by the law of the owner’s domicile. It must be held that the contracts are, both of them, usurious.

3. Defendants were given proper credit for all sums they have paid.

4. This point, in view of what has been said, becomes unimportant.

5. Appellants’ argument in this behalf is not easy to follow. The conclusion to which it is supposed to lead is not stated. What correction, if any, the testimony requires, should be made is not indicated.

6. There is no evidence of a proper tender to plaintiff of the money claimed by defendants to be his due. There is evidence that on February 28, 1914, they considered that they owed him at least ?628, and in a letter to his agent they advise him that this sum is on deposit in a named bank to his credit — “at your order and subject to your control.”

The amount due upon the mortgages must be recomputed, defendants being charged with no interest, and credited in reduction of the principal debt, in each case, with such payments, and such only, as. the trial court found had been made. A decree will be entered, in this court reversing the decree appealed from, stating the sum due to plaintiff in accordance with this opinion, in other respects corresponding with the usual form of decrees in foreclosure proceedings. No more than 60 days from the date of filing this opinion will be allowed for paying the sum found to be due, and a sale of the premises will be ordered in default of such payment. It is probable that counsel will agree upon the; amount due.

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

Fellows, J.

(dissenting). One of the mortgagees resides ip Washington, the other in California. At the time both mortgages were given the mortgagees were not liable for the payment of any taxes on the mortgages in the State of Michigan. Village of Howell v. Gordon, 127 Mich. 517. Taxation is regulated by statute. There is no proof in the case that under the statutes of Washington or California either of these mortgages was subject to taxation. I think that one. who assails a contract as usurious because of a tax clause ontained in it, which may or may not render it so, dependent on legislative enactment of another State, must sustain the burden of proving that under such legislative enactment such contract is taxable. I think the decree should be affirmed, with costs.

Bird and Kuhn, JJ., concurred with Fellows, J.


author: Moore, J. Ostrander, C. J.

text:
    KLAS v. PEARCE HARDWARE & FURNITURE CO.
    Contracts — Building Contracts — Extras—Waiver.
    In an action for work and labor performed as an extra, where the provisions of the written contract that permission for extras should be in writing were not complied with, testimony that when defendant’s agent ordered extra . work to be done plaintiff called his attention to the requirement of the contract, and he answered that there was no necessity of going back to the contract on that point, that they were not 'children, that they were willing to pay for any work they ordered, and that in fact certain of the extra work had been paid for, held, to present a question for the jury as to whether the provisions of the contract were waived, and the court below was in error in directing a verdict for defendant. Ostrander, C. J., dissenting.
    See note in 48 L. R. A. (N. S.) 565.
    Error to Houghton; O’Brien, J.
    Submitted April 2, 1918.
    (Docket No. 6.)
    Decided July 18, 1918.
    Assumpsit by John Klas against the Pearce Hardware & Furniture Company for work and labor. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      B. H. T. Burritt, for appellant.

      Willard E. Gray, for appellee.
   Moore, J.

The questions involved in this litigation are so clearly stated by the circuit judge in his direction to the jury that we quote:

“Gentlemen of the jury, the plaintiff has brought this case against the defendant to recover for certain extra work and labor which he claims to be performed for the defendant in remodeling and constructing certain buildings in the village of Lake Linden.
“The plaintiff’s claim in substance is, that on or about the 4th day of October, 1915, he entered into a contract in writing with the said defendant for the remodeling and construction of certain buildings, the property of said defendant; that at the time the contract was entered into certain specifications were drawn and agreed to and made a part of the contract; that under the contract the defendant was to furnish the materials used in remodeling and erecting said buildings, and the plaintiff was to furnish all labor and complete the buildings according to the contract and specifications, and was to receive therefor the sum of $2,469. The plaintiff has received the full amount due him under the contract and he makes no claim for any balance due on the original contract, but brings this action to recover for certain additional work and labor which he claims to have performed and furnished, which was extra, outside of and in addition to that agreed upon in the original contract and specifications.
“The original contract, which is in writing provides among other things that any additional work not specified for may, after a written permission by said party of the first part be added to said contract price, which charge will be on an actual labor cost, plus a commission of 21 per cent.
“There is no claim on the part of the plaintiff that there was any written permission given him by the defendant by either one of its agents, Mr. Chester Pearce or Mr. Ransom Pearce, for doing extra work done during the progress of the work on that building. According to that clause in the contract, before the plaintiff could charge for any extra work at all, it was his duty to secure the written permission to do that work from some one in authority representing the Pearce Hardware Company, otherwise he could not recover in law for that extra work. But it is the claim of the plaintiff that during the progress of the work he was called upon to do certain extra work and make certain changes and alterations, and that he called the attention of Mr. Chester Pearce to the fact that there was a clause requiring a permission to do extra work to be given in writing, and that Mr. Pearce said that there was necessity of going back to the contract on that point, that they were not children, they were willing to pay for any work they would order, and that they had had thousands of dollars worth of work done for them and were willing to pay for anything they ordered. It was also admitted in the evidence that Mr. Ransom Pearce said, ‘T want you to send me a bill of the extra work you do, every month,” and that the plaintiff sent bill every six weeks; that there was no objection made to those bills. And the evidence also shows, without any dispute, that the defendant has paid more than the amount of the original contract; has paid $131.00. more than the original contract, and has also given the plaintiff credit for a certain hardware bill amounting to $122 and some cents. The payment made by the defendant of the $131 above the contract price was unquestionably paid on extras and was unquestionably paid for a bill of extras which had previously been rendered by the plaintiff.
“The defendant claims that in the state of the record and in the state of the evidence there is no question for the jury as to the waiver of the clause in the written contract relating to the written authorization necessary before extras could be charged for. That the conversation had between the plaintiff and Chester Pearce or between the plaintiff and Ransom Pearce, as the case may be (if there was more than one conversation) , related to particular pieces of work, and was not a sweeping and general waiver of the clause in the contract requiring written authorization for extras before being charged for them, and it is the claim on the part of the.plaintiff, however, that all of the circumstances taken together indicate that both parties understood that that clause would be waived — that is, that the defendant intended to waive it, and the plaintiff relied upon it being waived, and therefore did not insist upon getting authorization for the extra work he had done. * * *
“I do not believe that the defendant ever intentionally waived that clause in the contract. I recognize perhaps, that there is a certain injustice, that the plaintiff went on and performed this extra work voluntarily» for the benefit of the defendant, and not able to recover for it. But the plaintiff is an intelligent man; he knew the clause was in the contract, and it was talked about before the contract was entered into, and if he did any extra work on his own motion, if he did some extras he must be regarded as a volunteer, and he cannot recover. * * *
“This is not a court of arbitration. If I were sitting as a court of arbitration I should probably allow the whole bill. But this is not a court of arbitration; this is a court of law. The parties must stand on their own rights. It is not a question of give and take; they must be held down to legal rules and to waive a clause in a legal contract it must be the intentional relinquishment of a known right. Now, was there any intentional relinquishment on the part of the defendant of this right to insist on a specific written authority for those extras? I am compelled by a careful review of the evidence to say no, that there is no such intention shown.”

The judge directed a verdict for the defendant. The case is brought here by writ of error.

The questions involved are:

1. Did the defendant, by its officers and agents, Ransom Pearce and Chester Pearce, expressly or impliedly waive the condition in the contract providing for written permission to do extra work?

2. Was the question of waiver a question of fact to be submitted to the jury?

In addition to what was said by the trial judge it may be well to call attention to some details of the testimony. It is not in dispute that Ransom Pearce was manager of the defendant and authorized to make contracts for it. It is difficult to harmonize the testimony of the plaintiff and the two Pearces. On his direct examination Ransom Pearce testified:

“I never had any conversation with Mr. Klas relative to the waiving of the contract providing for extras.”

On his cross-examination the following appears in part:

“l do remember how the first extra work come about. I ordered Mr. Klas to do extra work. I do not remember when I ordered the first extra work done. It was more than three weeks after Mr. Klas started on the job. * * *
“At the time I gave him the check for $200 on the 29th of March, we owed him nothing on the contract. We .had paid the original contract in full. At that time I recognized there was some extra work done by Mr._ Klas. Qn the 10th day of June I paid him an additional hundred dollars, and at that time I recognized that there was some extra work done by Mr. Klas. I agreed to some extra work in paying the checks. I did not agree to certain extra work. I ordered Mr. Klas to go on and do extra work. At the time I ordered this extra work done I understood the contract. I knew it provided that I should give him written permission. I ordered the work done but I did not give him written permission. Because the cases were so very few of extras that were authorized, I did not consider it necessary.”

Chester Pearce was a witness. In his direct examination the following appears:

“I am vice-president of the Pearce Hardware & Furniture Company. Mr. Ransom Pearce is manager. He had authority to contract for the firm. I have no authority to contract. I had a conversation with Mr. Klas in reference to certain changes in which I told him to go ahead with the work. * * * I think I said something like Mr. Dion said here on the stand that we were no kids or something of that sort, and anything we authorized to do as an extra, we would pay for it.”

On the cross-examination he testified in part:

“I had a good deal to say concerning how the building should be erected. I always consulted my brother on the matter. * * * As my brother testified he was quite busy and turned a good, deal of the work over to me, overseeing the job, etc. I ofttimes gave Mr. Klas his orders as to what I wanted done in certain cases. I always consulted my brother about things, and when I considered making a change, or Mr. Klas recommended one, I took it up with him, we talked it over, decided and went ahead. Either my brother or myself would give Mr. Klas instructions. * .* * Whenever a change was made either at the suggestion of Mr. Klas or at my suggestion, I talked it over with my brother and .we agreed to make the change, or not make it as the case may be.”

Counsel for the appellee insist the trial court was right, citing many cases and emphasizing the case of Davis v. Hospital Ass’n, 121 Wis. 579. While apparently there is a lack of harmony in the authorities, the disagreement is more apparent than real, when the facts of each case are understood.

The law has been stated as follows:

“Waiver is a matter of fact to be shown by the evidence. It may be shown by express declarations, or by acts and declarations manifesting an intent and pur-' pose not to claim the supposed advantage; or it may be shown by a course of acts and conduct, and in some cases will be implied therefrom. It may also be shown by so neglecting and failing to act as to induce a belief that there is an intention or purpose to waive. Proof of express words is not necessary, but the waiver may be shown by circumstances or by a course of acts and conduct which amounts to an estoppel.” 40 Cyc. p. 267.
“Waiver is a mixed question of law and fact. It is the duty of the court to charge and define the law applicable to waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver as defined by the court.” 40 Cyc. p. 270.
“A provision in the contract that all extra work shall be ordered by the architect in writing may be waived by the parties, the question whether there has been such a waiver usually being one of fact, depending on the facts and the circumstances of the particular case. Thus such waiver may be implied where the order and the extra work are known to the owner, and not objected to by him, where the charge for extra work is agreed to by the owner, or where the extra work is orally ordered by the owner or called for by the agent in the plans and specifications; or the owner by his conduct may be estopped from setting up such provision as a defense.” 9 Corpus Juris, p. 846.

See International Fair & Exposition Ass’n v. Walker, 88 Mich. 89; Wenzel v. Kieruj, 184 Mich. 284; Maurer v. School District, 186 Mich. 223.

Applying these authorities, to the instant case, we think it must be said there was a case for the jury.

Judgment is reversed and a new trial ordered, with costs in favor of the plaintiff.

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

Ostrander, C. J.

For reasons stated by the circuit judge and recited in this opinion I am of opinion that the judgment should be affirmed.


author: MOORE, J. Ostrander, C. J.

text:
    BLOCK v. ANN ARBOR RAILROAD CO.
    Railroads — Infants—Negligence—Question for Jury.
    In an action for injuries to an infant ten years of age caused by a collision at a street crossing between defendant’s electric car and a wagon in which plaintiff was riding, conflicting testimony as to the speed of the car, which was approaching a station, before and after plaintiff’s peril was discovered, it being conceded that the negligence of the driver of the wagon was not imputable to plaintiff, held, to present questions of fact for the jury. Ostrander, C. J., and Brooke, J., dissenting.
    Error to Isabella; Brown, J., presiding.
    Submitted April 18, 1918.
    (Docket No. 130.)
    Decided July 18, 1918.
    Case by Helen A. Block, an infant, by next friend, against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alexander L. Smith, Gustavus Ohlinger, and Francis McNamara, for appellant.

      F. H. Dodds and H. A. Sanford (E. L. Beach, of counsel), for appellee.
   MOORE, J.

This case involves a crossing accident which occurred within the limits of the city of Mt. Pleasant, in which the plaintiff, Helen A. Block, was injured. Broadway is a street in the city of Mt. Pleasant which crosses the main track of the Ann Arbor railroad at right angles. The street runs straight east and west and the railroad track runs north and south. North of their intersection and on the east side of the track are located the defendant’s station platforms and station buildings. The platform borders the track on the east and extends northwards from the north side of Broadway.

The plaintiff was 10 years old at the time of the accident. She is the daughter of Henry C. Block, a farmer living some miles west of Mt. Pleasant. She and other young people visited Mt. Pleasant to attend graduating exercises in which her brother took part. After the exercises were over, the young people got into a farm wagon to go home. Edward Block, the driver, was 15 years of age, and was occupying the front seat with his brother, William Block, aged 8 years. Edna Block, aged 15 years, a cousin, and Emma Zier, aged 15 years, a neighbor’s child, were in the middle seat. Evelyn Block, aged 12 years, Helen. A. Block, aged 10 years, and Bessie Block, aged 7 years, were occupying the rear seat. Evelyn Block and Bessie Block were killed in this accident. Helen Block, the plaintiff, received severe injuries. It is for those injuries this suit is brought. From a verdict and judgment of $2,000 in favor of the plaintiff the case is brought here by writ of error.

Very early in the trial the following occurred:

“The Court: Do you agree with counsel for the plaintiff that the question of contributory negligence on the part of the plaintiff is not in this case?
“Mr. Ohlinger: I think we will admit that the negligence of the driver is not imputed to the plaintiff.’.’

Broadway is perhaps the principal street in Mt. Pleasant. The testimony shows that as the team approached the railway crossing there were many automobiles parked at the curb of the street and to within 10 or 15 feet of the right of way. There were also many people on the street and especially at the station and station platforms. The driver had several years’ experience as a driver. His testimony was, in substance, that, as he approached the railway crossing, the horses were on a slow trot, but as they got near the crossing they began to prance, but when doing so were under control and were not going as fast as when trotting. His testimony is that, as he approached the crossing, he looked both ways and listened, but saw no car and heard no bell or whistle until the horses were on the track, when the whistle blew, the car then being, as he found by a subsequent measurement,' 55 feet away. His claim is the car was coming so rapidly that it struck the wagon just forward of the hub of the rear wheel, with the result before stated.

The motorman’s version of what happened is as follows:

“If there were teams north of the automobiles I did not see them. I didn’t have time to do much of anything only stop. The horses of this Block team were 15 or 16 feet from the track when I first saw them. They were running pretty fast. The driver seemed to pull and seemed to steady them a little bit, but they didn’t stop. They kept right on. I don’t know how fast they were going. I know how fast my motor was going, but I just saw the team and when I saw them I had to take my eyes off and do something else and I could tell nothing about how fast they were going. I think we were going about eight miles an hour when I first saw them. I was then about 40 feet from the point where the team crossed the tracks and I put on my emergency brake. I slowed up and I think I.was going about two or three miles an hour when I hit the wagon. We were going eight miles an hour when I put on the brake and then probably six and when I hit the wagon we were going about three miles an hour. Taking all the circumstances into consideration as they existed there that day, I know that the car could not be stopped any quicker than it was then.”

At the conclusion of the testimony for the plaintiff, and at the conclusion of all the testimony, requests for a directed verdict for the defendant were made and overruled. A motion for a new trial was made and refused. .

There are many assignments of error but in view of the concession of counsel to which we have called attention, the only one calling for discussion relates to whether the judge should have directed a verdict for defendant.

We quote from the brief:

“These motions were based briefly on the following grounds: That no negligence had been shown on the part of the defendant; that the speed of the motor car, even granting that it was as high as 30 miles an hour, as claimed by one of plaintiff’s witnesses, was not negligent in view of the circumstances, and the opportunity which a traveler on Broadway had of seeing an approaching car; that the speed of the car was not the proximate cause of the accident; that the sole proximate cause of the accident was the negligence of Edward Block the driver; that the plaintiff was herself guilty of contributory negligence; that this case comes within the rule laid down by the Supreme Court in the Apsey Case.” (Apsey v. Railroad Co., 83 Mich. 432).

We have already called attention to the concession of counsel. The testimony was very conflicting. That offered by plaintiff tended to show the motor car approached Broadway at a high rate of speed. One witness testified:

“When I first saw it the motor car was just coming up on the race bridge. I observed it from that point until it got to the center of Broadway and I saw the accident occur. I should say the motor car was going 20 miles an hour.”

Cross-examination:

“The car didn’t slacken up within inside of 40 feet of wagon, or to amount to anything until it struck the wagon.”

Other witnesses estimated the speed of the car at 25 or 30 miles an hour.

There was testimony on the part of the defendant that the motor car was just drifting when it approached Broadway.

The charge was very long, presumably because of the many requests to charge. The. court told the jury:

“In this case, as I see it, gentlemen, there is but one question for you to decide, and that is, Was the car being run at a reckless and unlawful rate of speed coming down toward the crossing in question and at the time in question, having in mind and considering all the facts and circumstances surrounding the movements of this car at the time and just prior to the time plaintiff drove upon the railroad track?
“A car cannot be operated — neither can a train be operated on any schedule time such as is demanded of business and be run so slowly that it can be stopped at any time when some person may thoughtlessly step upon the track in front of a train or car. And the question here for you is, first, without consideration of this accident, to determine from the testimony in the case whether or not this motorman in coming down toward this crossing was running that car in and of itself, under all the circumstances there, in a reckless and imprudent manner, having in mind the obligations and duties that are imposed upon people to protect themselves from injury such as an ordinarily prudent and careful person will do. Also having in mind that, other things being equal, the railroad car, or train, has a right to proceed along the track upon which it is running without interruption, unless there is something upon the track to show that there is danger impending, or unless there is something so near to the track to lead the engineer or motorman, to believe that danger was to be precipitated at any particular point.”

We think there were questions of fact involved which were properly submitted to the jury. See Huggett v. Erb, 182 Mich., at p. 536.

Judgment is affirmed, with costs.

Bird, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.

Ostrander, C. J.

I think there is no evidence of defendant’s negligence and that the judgment should be reversed.

Brooke, J., concurred with Ostrander, C. J.


author: Brooke, J. Ostrander, C. J.

text:
    VULCANIZED PRODUCTS CO. v. BENDER.
    1. Corporations — Liability of Directors — Annual Report, Default in Piling — Statutes.
    Act No. 142, Pub. Acts 1915 (2 Comp. Laws 1915, § 9028), fixing the liability of directors of a corporation for the debts thereof in case of failure to file its annual report in the office of the Secretary of State, in force at the time of the trial, was controlling, rather than Act No. 232, Pub. Acts 1903, as amended, in force at the time the suit was started. Ostrander, C. J., dissenting.
    2. Same — Default—Directed Verdict.
    Where the corporate debt sued upon was contracted before the expiration of the 70-day period after the end of the fiscal year, allowed by the statute for the filing of the.report, there was no default, and a verdict was properly directed in favor of defendants.
    Error to Kent; Perkins, J.
    Submitted April 3, 1918.
    (Docket No. 23.)
    Decided July 18, 1918.
    Assumpsit by the Vulcanized Products Company against Charles H. Bender and others to enforce the statutory liability of the directors for failure to file the annual report of the Diamond Steel Truck Company. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Ellis & Ellis, for appellant.

      Travis, Merrick, Warner & Johnson, for appellees.
    Between July 15, 1912, and September 5; 1912, the plaintiff sold to the Diamond Steel Truck Company goods to the value of $1,358.84. The fiscal year of the Diamond Steel Truck Company expired on June 30th of each year. The annual report for the fiscal year ending June 30, 1912, was, according to the certificate of the secretary of State, filed on September 11, 1912. The declaration of this suit was filed September 25, 1914, and the action was commenced for the purpose of compelling the directors of the corporation, the Diamond Steel Truck Company, to respond personally. At the time the suit was started the liability of the directors was fixed by the provisions of Act No. 232 of the Public Acts of 1903, as amended by Act No. 194 of the Public Acts of 1905 and Act No. 137 of the Public Acts of 1907. At the time of the trial, however, in 1917, the legislature had passed a new act (Act No. 142 of the Public Acts of 1915, 2 Comp. Laws 1915, § 9028). Under the’law as it stood when the suit was started, it was provided:
    “Any director of such corporation so in default, who has neglected or refused to join in the making of such report, shall be liable for all the debts of such corporation contracted since the filing of the last report of such corporation.”
    The act of 1915 provides for the filing of said report within 60 days after the close of the corporate fiscal year, and further:
    “If any corporation neglect or refuse to make and file the reports required by this section within the time herein specified (sixty days after the close of the fiscal year), and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter, until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of such default; and, any director of such corporations so in default, who has neglected or refused to join in the making of such report shall be liable for'all the debts of such corporation contracted during■ the period of such neglect or refusal ”

    In the case under consideration the time limit within which the corporate report should have been filed by the Diamond Steel Truck Company expired on September 8th and the report was not filed until September 11th, three days later.
    Counsel agree that the sole question presented is whether the defendant directors are liable for debts contracted during the 70-day period after the end of the fiscal year or whether they are liable only for those debts contracted after the 70-day period and during default. The learned circuit judge entered judgment for the defendant which is now in this court for review.
   Brooke, J.

(after stating the facts). No portion of the debt for which suit was brought was contracted between the 8th day of September (the last day upon which the report could properly have been filed), and the 11th day of September, the day upon which it was actually filed. The question is presented whether the period of “such neglect or refusal” starts at the end of the fiscal year or is to be computed from the expiration of the 70 days allowed by the statute within which the directors may properly file their report. It seems clear that the directors are not in default during any of the time allowed by the statute for filing, and that their “neglect or refusal” commences only after the days of grace have expired. The case of Reuter Hub & Spoke Co. v. Hicks, 181 Mich. 250, is relied upon as authority by counsel for appellant. In that case it will be found we were dealing with the language of the earlier statute and it cannot be said to be controlling in the case at bar. American Brass Co. v. Emery, 189 Mich. 593.

The judgment was prpperly directed and is therefore affirmed.

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

Ostrander, C. J.

I do not see what the law of 1915 has to do with the case, and therefore do not concur in this opinion.


text:
    BLOCK v. TAYLOR.
    1. Appeal and Error — Pleading—Sufficiency—Fraud.
    Where the trial court proceeded upon the assumption that fraud was properly charged in defendant’s plea and notice, and counsel for plaintiff raised no objection, pleading held, sufficient.
    2. Contracts — Fraud—Evidence—Question for Jury.
    Testimony by defendant that plaintiff’s agent induced him to enter into contract for the purchase of 25 barrels of whisky to be ordered out of bond as needed, by orally guaranteeing the quality of the whisky to be equal to sample, and executing a separate agreement allowing defendant to cancel the order if he did not find the proposition profitable, providing he paid for what he used, and further agreeing to furnish advertising matter and an agent to help introduce the whisky in adjoining dry counties, but that the whisky delivered was very inferior to the sample, and he was unable to sell it over his bar, that no advertising matter was sent and no effort made by plaintiff to introduce the whisky in adjoining counties, and that he failed to deliver to defendant the government certificates as agreed, held, sufficient to justify the court below in submitting the question of fraud to the jury.
    3; Same — Separate Agreement — Construction—Rescission.
    Despite the condition contained in the order to the effect that the “order slip together with said certificates constitute the complete contract, no other agreement being recognized,” held, that the contemporaneous agreement signed by the agent permitting defendant to cancel the order under certain conditions should be construed as part of the contract; the agent’s name appearing in the order itself, and being the only one representing plaintiff known to defendant.
    4. Same — Profits—Rescission.
    Inasmuch as the government tax on the whisky was $1.10 per gallon, and the purchase price was 90 cents to $1 per gallon, testimony that defendant sold it around $2 per gallon, held, to establish the fact that no profit was realized from the sale.
    5. Estoppel — Contracts — Affirmance — Fraud — Intent — Question for Juey.
    As to whether defendant’s action in ordering two barrels of the whisky out of bond after canceling the original order constituted an affirmance of the order and worked an estoppel to deny its validity on the ground of fraud, or was but an attempt on ’ defendant’s part to regain the amount of money that he claimed was fraudulently obtained from him in excess of the price of the goods already received, held, an issue properly submitted to the jury. Ostrander, C. J., dissenting.
    Error to St. Clair; Tappan, J.
    Submitted April 16, 1918.
    (Docket No. 80.)
    Decided July 18, 1918.
    Assumpsit by Burt K. Block, doing business as the Empire Distillery Company, against William II. S. Taylor on certain promissory notes. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James A. Muir, for appellant.

      Walsh & Walsh, for appellee.
    In this case plaintiff sued to recover from defendant on ten promissory notes for $100 each, amounting with interest, at the time of the trial, to $1,207.20. The notes were given on December 1, 1911, aS part payment of the purchase price of 25 barrels of “Block-dale” and “Old Empire” whisky, the order for which follows:
    “Port Huron, Mich., Dec. 1, 1911.
    “Empire Distillery Co.,
    “B. K. Block, Prop.,
    “200 Fifth Ave., New York.

      “Gentlemen: I have this day bought of you through H. Kramer 25 barrels whisky in bond and have received warehouse contract certificates covering said whisky as follows:

      W.C.C.No. Brand Age Proof Galls. Pr. per gal. Total.
    30500 Old Empire ’06 24100 $0.90 $434.56
    30501 Old Empire ’06 24185 .90
    3537 Blockdale ’07 24331 1.00
    3791 Blockdale ’07 24867 1.00
    3992 Blockdale ’07 24932 1.00 741.31
    $1,175.87
    “Cash $175.80 and notes for $1,000; said whisky or its equivalent to be sent upon my order, on compliance with terms of contract and after payment of notes as they mature. This order slip, together with said certificate, constitute the complete contract, no other agreement being recognized, said contract being subject to the approval of your home office and to be binding upon you only upon receipt by your home office of all moneys and notes paid hereon.
    “W. H. S. Taylor,
    “(Signature of Purchaser),'
    “517 Water Street (Address)
    “Port Huron, Mich.
    “..........'............Salesman.”
    The declaration was upon the common counts with copies of the notes attached. Under the plea of the general issue the defendant gave notice that he would show that at the time said contract was entered into,
    “said plaintiff warranted that such whisky should be and was equal in quality and description to a certain sample of each kind thereof then and there produced and shown to the defendant by the said plaintiff, and plaintiff then and there represented to the defendant that said amount of whisky contracted to be sold would be of the total value of $1,175.87, and that he would, upon the execution of said contract, turn over certain “certificates” and did represent to defendant that such certificates were government certificates and stood in the place and stead of said property, and that said plaintiff would furnish defendant certain advertising matter, to wit: samples of whisky, signs and advertisements, and would cause such advertising matter to be distributed throughout the county in which defendant lived and the dry counties adjoining the same, and to furnish, their agent to oversee such work, and to have the same done prior to the holidays, to wit: December 20, 1911. And said defendant relying upon said warranty, agreement and representations aforesaid, agreed to purchase said whisky and did pay to said defendant certain sums of money, to wit: the sum of $500.00 as part payment upon said contract for whisky, and did order and receive from plaintiff certain whisky, to wit: 2 barrels thereof, and has performed and stood ready to perform everything to be done on his part under the terms of said agreement. Yet the said plaintiff, disregarding his said agreement, did not nor would perform the same nor carry out his promises and undertakings therein, but did furnish to said defendant the said two barrels of whisky received by defendant as aforesaid, which were not equal in quality and description to the said samples shown and produced to the said defendant by the said plaintiff as aforesaid, but were and are of a different and much inferior quality and description and of much less value; and failed to deliver to defendant the said government certificates for said whisky; and failed and neglected to furnish the said advertising matter and to distribute the same in defendant’s locality in accordance with the terms of his said promise and agreement, and the value of said 25 barrels of whisky was not the sum of $1,175.87, but was greatly less than said sum, to wit: the sum of $600.00 on, to wit: the 15th day of March, A. D. 1912; and said defendant did cancel the said agreement and give notice to the plaintiff thereof on account of the said breach of warranty and failure of plaintiff to fulfill his contract with regard to advertising and on account of his false representations as to the total value of said whisky, and the nature of said certificates, that at the time said defendant had only received from plaintiff and used whisky to the value of $100.00. * * *
    “That said contract was subject to the condition, and defendant was given the right thereunder to cancel the same in case he should not find said proposition profitable, providing, he should pay plaintiff for what he had used; that in accordance with said contract, defendant paid to plaintiff on account thereof, and on account of whiskys to be ordered by him thereunder, at the request of plaintiff large sums of money, to wit: the sum of $500.00; that defendant ordered and received from defendant whiskys under said contract to the amount and value of to wit: $100; that defendant did not find that this proposition under said contract was profitable, but on the contrary found that it was unprofitable, and on to wit: the 15th day of March, A. D. 1912, did cancel said order and contract under the provisions of said contract, and did give plaintiff due notice of his election to cancel the same, whereupon, said plaintiff became and was indebted to defendant on account of moneys paid under said contract over and above the value of whisky delivered thereunder in a large sum, to wit: the sum of $400.00.”
    At the time the contract was executed defendant ordered immediate delivery of two barrels. It was the claim of defendant that Kramer, who was designated in the contract as plaintiff’s agent, represented himself to be from Detroit; that he told defendant his firm, the Empire Distillery Co., was desirous of establishing an agency in the city of Port Huron for the sale and distribution of their whisky in adjacent dry counties. He also testified that the agent, Kramer, produced samples of the whisky he proposed to sell which defendant tested and found to be of good quality; that the agent on behalf of his principal, Block, agreed to furnish printed matter advertising the ■whisky and to aid in securing its distribution to customers in dry counties. He also testified, and this is undisputed, that before he signed the contract Kramer executed and delivered to him the following agreement:
    “Poet Hueon, Mich., Dec. 1, 1911.
    “W. H. S. Tayloe, Cape,
    “517 Water St..
    “In case Mr. Taylor does not find this proposition profitable, he can cancel the order, providing he pays me for what he has used and we will return to him his notes, for 25 barrels of whisky in bond, Blockdale, Old Empire, at any time.
    “H. Kramer.”
    He further testified, and in this his testimony was supported by that of his bartender, who had been in the business for 15 years, that the whisky in the two barrels delivered was of a very inferior quality, and that he was unable to sell it over his bar because of its poor quality. It is undisputed in the record that no advertising matter was sent to defendant and no effort made by plaintiff to introduce the product in the dry counties surrounding Port Huron.
    It was the claim of plaintiff upon the trial that the contract was complete and evidenced solely by the signed order, the check for partial payment and the notes in suit; that the contemporaneous agreement of Kramer was not .part of the contract and not binding on plaintiff.
    The court charging the jury said:
    “The written agreement by Kramer that Taylor could terminate the written order if the deal was not profitable does not bind Block,”
    but permitted the jury to consider said agreement, together with all the evidence, in order to determine whether it was part of a general scheme to defraud defendant and for the purpose of misleading or inducing the execution of the contract by Taylor. It seems that the two barrels of whisky ordered out of bond at the time the contract was made arrived in Port Huron about the 25th of December, 1911. Before its arrival, and on December 20th, defendant wrote plaintiff the following letter:
    “Port Huron, Michigan, December 20, 1911.
    “Empire Distillery Company,
    “200 Fifth Avenue, New York.

      “Gentlemen: Since giving your representative, Mr. H. Kramer, an order for 25 barrels of whisky in bond, two barrels of which were ordered out of bond and which I expect to receive in a few days, I have made arrangements to sell my business to Mr. Guise, a gentleman residing in this city. I explained our deal to him and he tells me that he would be pleased to continue it on the same basis. But this will necessitate my paying you for these two barrels of whisky, which you have shipped, you returning me my notes, etc., as per the written agreement which I have with Mr. Kramer to this effect.
    “Please let me hear from you immediately, also write Mr. R. W. Guise, 517 Water Street, Port Huron, Michigan, in regard to this matter. Thanking you in advance, I remain,
    “Very sincerely,
    “W. H. S. Taylor.”* ,
    On December 22d, plaintiff wrote defendant agreeing to the transfer of the contract to Mr. Guise, but in said reply said nothing with reference to the claim of defendant under Kramer’s written agreement. On January 6th, the two barrels of whisky having been received by defendant, he wrote plaintiff a letter canceling the order; demanding a return of his notes, and the money he had paid in. excess of the value of the two barrels delivered. In this letter defendant said:
    “Mr. Kramer has certainly not lived up to his agreement, which he made here with me December 1st, in any way, and I am candid to say to you that, under the circumstances, I should have canceled this order and terminated this transaction regardless of whether I was going to sell out or not. Mr. Kramer told me that he would have?iabundance of Christmas advertising here by the middle of December, and it all ended in talk.”
    The record does not contain the reply of plaintiff to this demand of defendant’s, but it is evident that, it was not coiiiplied with. Thereafter and in February defendant ordered on to Port Huron two other barrels of said whisky and as soon as it arrived caused it to be attached. Plaintiff replevined the whisky so ■attached and nothing further was done under the attachment suit. Defendant testified upon the trial that the amount of cash paid on December 1st was $103 in excess of the value of the two barrels of whisky delivered. The court instructed the jury that if the contract was untainted by fraud the plaintiff was entitled to a verdict for the full amount of the notes with interest, and further:
    “On the other hand, if you find from the proofs that the entire transaction was the result of a fraudulent scheme to induce Taylor to give the order in question, as claimed by Taylor, and if you find that in pursuance of the plan, Kramer used samples of high grade or good grade of liquor while an inferior grade was delivered; if you find that Kramer made representations that' he was establishing an agency for the liquor of his principal, Block, and would furnish printed matter to advertise it and that Kramer .gave Taylor a written agreement signed by himself to allow Taylor to cancel the contract if unprofitable, and these several transactions were false and fraudulent and intended to deceive Taylor and did deceive him and procured from him the contract and notes in question, then the contract is vitiated by the fraud and plaintiff cannot recover. In short, if Kramer procured the contract and notes by means of fraud, as I have explained, then his principal, Block, cannot retain the benefits of the fraud.”
    The jury returned a verdict for defendant in the sum of $128.75.
   Brooke, J.

(after stating the facts). The first proposition presented by plaintiff, appellant, is that the court erred in holding that under the plea fraud was charged. We think plaintiff is foreclosed upon this question. Counsel for plaintiff objected to the introduction of evidence on the question upon the ground that the prior dealings leading up to the contract were merged in the contract itself, whereupon the following occurred:

“The Court: I understand fraud is charged.
“Mr. Walsh (counsel for defendant): Certainly.
“The Court: We will receive it.”

It will be noted that no claim was made at that time that the plea was insufficient to support evidence of fraud in the making of the contract. During the examination of the defendant, counsel for plaintiff objected to certain testimony stating:

“This is an action for fraud against us on account of this being a counterclaim, and value is not a basis for an action of fraud.”

At the close of the evidence a motion was made by plaintiff’s counsel to strike out the testimony, in which it is asserted:

“The defendant has pleaded fraud, to a certain extent, in the making of the contract, under the holding of your honor in overruling the motion, but he has failed in his proofs to sustain such plea as against plaintiff.”

In his request to charge counsel asked no direction upon the ground that fraud was not charged, but did make a request for a direction upon the ground that there was no evidence of fraud introduced. Under these circumstances the trial court having proceeded upon the assumption that fraud was properly charged in the plea, and counsel for plaintiff having raised no objection to the pleading, the same will in this court be held sufficient. A further claim of plaintiff was made both by motion for a direction of a verdict and also set forth in his request to charge that there was no evidence introduced tending to show fraud sufficient to vitiate the contract. Upon a review of the whole record we are unable to say that the court erred in submitting the question of fraud to the jury. J. B. Millet Co. v. Andrews, 175 Mich. 350. Despite the condition, contained in the order to the effect that the “order slip together with said certificates constitute the complete contract, no other agreement being recognized,” we are of opinion that the contemporaneous agreement signed by Kramer permitting the defendant to cancel the order under certain conditions, paying for what he had already used, should be construed as a part of the contract. Kramer’s name appears in the order itself and is the only one representing plaintiff known to the defendant. Plaintiff in his deposition denied that he had ever authorized Kramer to make such an agreement; nevertheless when the defendant wrote to plaintiff, within 20 days after the execution of the original order, calling his attention to his rights under Kramer’s agreement, the plaintiff did not in any way repudiate said agreement as being beyond the scope of the authority of his agent. Counsel for plaintiff asserts that neither in his. correspondence nor his evidence does defendant claim to cancel the contract by reason of the fact that the proposition had become unprofitable. While defendant was unable to give the exact-sum per gallon for which he sold the whisky received by him, he did testify that he sold it around $2 per gallon. Inasmuch as the government tax was $1.10 per gallon, and the purchase price was from 90 cents to $1 per gallon, it is entirely clear that no profit could have been realized from the sale.

It is further claimed by counsel for appellant that defendant, by ordering out of bond two barrels of whisky in the month of February, after he had received and tested the first two barrels, affirmed the contract and he was therefore estopped from repudiating it thereafter. Defendant’s explanation of his act in this regard was:

“I wanted to bring the lawsuit here instead of having to go to New York city to try it.”

The court submitted this question to the jury, instructing them that if they found that the second two barrels ordered in February were so ordered as a continuation of the deal, under the original order, that such action would constitute an affirmance of the original order and work an estoppel against defendant, but further:

“If, on the other hand, this order was but an attempt on Taylor’s part to regain the amount of money that he claimed was fraudulently obtained from him in excess of the price of the goods and expenses of the barrels of whisky that he received, and you so find from the proofs, then you are warranted in finding that the second order does not operate as an estoppel.”

The judgment in this case recovered by defendant represents the amount of money paid by him to plaintiff in excess of the value of the two barrels of whisky delivered by the plaintiff to him under the contract. Plaintiff has been paid for the goods he has delivered and has in his possession the balance of the order as well as the sum representing the judgment over and above the value of the goods delivered.

There has been no miscarriage of justice in this case, and the judgment is affirmed.

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

Ostrander, C. J.

In my opinion a buyer cannot, for an alleged ulterior purpose, order goods on his contract and then repudiate it.


author: Brooke, J.

text:
    PEARSON v. GARDNER.
    1. Frauds, Statute of — Partial Payment — Possession — Land Contracts — Validity.
    In an oral contract for the purchase of land, neither partial payment alone nor possession alone is sufficient to take the case out of the statute of frauds.
    2. Specific Performance — Land Contracts — Vendor and Purchaser — Frauds, Statute of.
    In proceedings for the specific performance of a contract for the sale of land, where the vendees paid part of the purchase price, entered into possession, and exercised acts of ownership changing the character of the freehold, although the contract itself was insufficient to satisfy the statute of frauds, a court of equity will award a decree for specific performance.

    Appeal from Livingston; Miner, J.
    Submitted April 17, 1918.
    (Docket No. 110.)
    Decided July 18, 1918.
    Bill by Alexander H. Pearson against Edd Gardner and another for the specific performance of a land contract. Prom a decree for plaintiff, defendants appeal.
    Affirmed.

      Louis E. Howlett, for plaintiff.

      Willis L. Lyons and F. J. Shields, for defendants.

      See note in 3 L. R. A. (N. S.) 790.

   Brooke, J.

Bill for specific performance. On June 6, 1917, defendants entered into an oral contract with the plaintiff for the purchase of a house and lot in the village of Hamburg. At the time of the purchase the plaintiff gave the defendants the following receipt:

“Hamburg, Michigan, June 6 (there is a six and a seven over it), 1917.
“Received of Edd Gardner and Della Gardner One Hundred Dollars ($100) on purchase price of house and lot in Hamburg village. ' Balance of Eighteen Hundred Dollars ($1,800) to be paid and deed given in five days.
“A. H. Pearson.”

The $100 mentioned in said receipt was paid by defendants. to plaintiff. Under the oral contract the plaintiff, a physician and surgeon, agreed to rent from the defendants a small office building located on one corner of the lot for a period of one year with an option for one additional year at $5 per month; the $60 for the first year’s rent to be deducted from the purchase price. Plaintiff immediately vacated the house and three days later, on the morning of the 10th, defendants took possession of the house and the barn located on the premises.

It is the claim of plaintiff that he and his wife had executed a deed of the property, and, on the 5th day after the agreement, told defendants it was ready, but that he was advised by them that their money was in a bank in Detroit and would not be available for a few days; that shortly thereafter defendant Della Gardner was called away because of the illness of a relative and remained absent for some time. This was denied by the defendants. The record shows that there was considerable discussion between the parties about carrying out the deal up to the latter part of July, when the defendants finally refused to further proceed. Thereupon plaintiff prepared a new deed, the former one having been destroyed, and on the first day of August made á tender of the deed, the unexpired insurance policy and the abstract of title. A second tender was made on August 10th, in the presence of a witness. Performance on the part of the defendants was again refused. In the meantime the defendants had continued in the possession of the property; had removed one of the partitions on the lower floor of the dwelling house, making two rooms into one; changed the location of the kitchen sink; trimmed the lower limbs from a couple of shade trees in front of the house and had harvested the vegetables from the garden; They continued in possession and retained the same at the time of the trial in the court below on the 12th day of December, 1917.

It is conceded by counsel for plaintiff that the written evidence of the contract is insufficient under the statute of frauds. The only question involved is whether the défendants by their acts in making partial payment, taking possession, reaping the fruits of the garden and changing the character of the premises have done sufficient to take the case out of the statute and to equitably entitle plaintiff to the decree for specific performance which was awarded by the court below. Partial payment of the purchase price alone is not sufficient to take the case out of the statute. Possession alone is insufficient, but where there is partial payment and possession accompanied by acts of ownership of the vendee changing the character of the freehold, and lessening its value, a court of equity may award a decree for specific performance. Peckham v. Balch, 49 Mich. 179; Cole v. Cole Realty Co., 169 Mich. 347. It is true that in the case first cited the action was brought by the vendee rather than the vendor, but it is well settled that specific performance is granted in favor of the vendor of land as freely as in favor of the vendee, though the relief actually obtained by him is the recovery of money, the purchase price. The rule is stated in 36 Cyc. p. 686, as follows:

“The vendor or lessor may have specific performance of a contract which has been part performed.. This is in part because the delivery of possession by him to the vendor involves a change of condition on his part as well as on the part of the vendee, and points to a contract concerning the land; chiefly because, in cases where the remedy is available to the vendee it should, on the ground of mutuality, be available to the vendor likewise.” Citing cases in note 24.

See, also, 2 Pomeroy’s Equitable Remedies, § 747, and Langdell, Brief Survey of Equity Jurisdiction, pp. 50-52.

The parties agree as to the exact terms of the oral contract. The defendants entered into possession thereunder and still retain such possession. They paid a portion of the purchase price and have exercised such rights and acts of dominion over the property in changing its character as. would in our opinion make it inequitable for them now to decline full performance of the oral contract.

The decree is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, J., concurred.