author: • Moore, J.

text:
    GREGORY v. VILLAGE OF LAKE LINDEN.
    1. Parol Evidence — Written Contract.
    Parol contemporaneous evidence is inadmissible to vary or contradict the plain terms of a valid written contract.
    2. Same — Doubtful Terms.
    Parol evidence of the circumstances under which a written contract was made is admissible to explain terms of doubtful meaning.
    3. Contract to Supply Water — Construction.
    The defendant village agreed to purchase of plaintiff, for a term of 10 years, “as much water from his spring as it might need or desire, for any and all purposes,” at 8200 per month for any quantity not exceeding 1,500,000 gallons, and 15 cents per 1,000 gallons for all water .used in excess of that quantity. It was agreed that plaintiff should not be bound to furnish a greater supply of water than his spring would yield. In an action on the contract, plaintiff claimed that the village was bound to take all the water it used for any purpose. Held:

    (1) That evidence that the village, at the time of the contract, had a partial supply of water, which it continued to use for eight years without its right to do so being questioned, was admissible to show the interpretation put upon the contract by the parties.
    (2) That the contract did not requite defendant to take all its water from plaintiff.
    Error to Houghton; Streeter, J.
    Submitted December 13, 1901.
    (Docket No. 122.)
    Decided April 22, 1902.

      Assumpsit by Patrice Gregory against the village of Lake Linden for the breach of á contract for water. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, he brings error.
    Affirmed.
    P. H. O’Brien ( Gray, Haire & Rice,, of counsel), for appellant.

      W. E. Gray (Ghadbourne & Rees, of counsel), for appellee.
   • Moore, J.

The plaintiff, by direction of the judge, recovered a verdict of $186. He claims he was entitled to recover $685.06, and has brought the case here by writ of error. The questions involved are so clearly stated by the trial judge in his charge to the jury we insert it here:

“ The plaintiff in this case, Patrice Gregory, sues the defendant, the village of Lake Linden, to recover certain sums of money which he claims to be due him from it under the terms of a contract entered into some time in the year 1892 between the defendant village and Joseph Gregory.
“Some question has been made during the progress of the case as to whether a contract was entered into that was binding upon the parties, covering the subject-matter; and I charge you that, under the undisputed evidence in this case, the defendant, by its acts, has recognized this contract as being in existence, and that it is bound by its terms. It seems to me that there can be no question about that. Dealings have been had from month to month, for a period of eight years, complying, so far as the testimony in this case shows, entirely with the terms of the contract; so that the question of whether the contract, at the time it was signed by the president and clerk of the village and by Mr. Joseph Gregory, was one which was properly entered into, does not affect the merits of the plaintiff in this case.
“I charge you that the right of the plaintiff to recover from the defendant in this case depends upon the construction of the written contract introduced in evidence on the trial; and it is the duty of the court to construe the written instrument, and state what the legal effect of it is or may be. Where parties make a bargain, and finally reduce the terms of that bargain to writing, the writing contains, as a matter of law, whatever the bargain finally is, and testimony to change its terms and make it something else, no matter what negotiations have passed between the parties to the contract before, will not be received or considered in construing the contract.
“This contract, among other things, provides as follows:
“ ‘That the said second party [the defendant village] agrees to buy from said first party [the plaintiff, Gregory], and said first party [the plaintiff, Gregory] agrees to sell and deliver to said second party [the defendant village], at the eastern boundary line of said village, at or near the plant of the Peninsula Electric Light & Power Company, during the 10 years ensuing the 1st day of November, 1892, as much water from said spring as such village may need or desire, -for any and all purposes, at the price and rate of $200 per month for any quantity not exceeding 1,500,000 gallons; all water over such quantity used in any month to be paid for at the rate of 15 cents per 1,000 gallons.’
“The theory of the plaintiff in this case is that the terms of the contract which I have just read to you are plain, and require Gregory to furnish to the village all the water the village may require, .and require the village to take from Gregory all the water that it uses for any purposes, limited only by the capacity of the Gregory spring; and that the village is bound to pay for all the water that it uses, no matter from what source it may obtain the supply. Now, the court has no right to read anything into a written instrument that is not there; but the defendant, on its part, claims that the construction given to this part of the contract by the plaintiff is not one which is plainly conferred by the words used, even when the words are considered in their ordinary, common, everyday sense, but that the proper reading of this part of .the contract is that the village shall'take from the Gregory spring all such water as it may desire for any of its purposes, and that the village then obligates itself to pay for the water; if it takes any quantity less than 1,500,000 gallons, it has to pay the fixed sum of $200 per month; if it takes any more than that, it has to pay for the excess at the rate of 15 cents per 1,000 gallons. Now,'if the portion of the contract which I have read in your presence were all that is contained in the written instrument, the task of the court might perhaps be somewhat lessened from what it is; but all the contract must be taken, in considering the legal effect which must be given to it. The contract is as follows :
“ ‘This agreement, made and entered into this 20th day of October, A. D. 1892, by and between Joseph Gregory, of Houghton county, Michigan, of the one part, and the village of Lake Linden, of said county, of the other part.
“ ‘ Whereas, said second party, by its proper corporate officers and agents, has considered the question and determined that the health, general welfare, and necessities of the inhabitants of said village require that a suitable supply of pure water be obtained for their use; and
“ ‘ Whereas, said first party is the owner of a stream of such water, situated on the north half of section 3, in township 55 north, of range 83 west, in said Houghton county, which water he is willing to sell and dispose of; and
“ ‘ Whereas, said spring, owing to its elevation, location, and quality of its water, is the only available source of water for said village:
‘“Now, therefore, said parties agree as follows: .[Then comes the part that I have already read to you]. Payments are to be made monthly, in cash, for all water used in and during the preceding month. Should any sums remain past due and unpaid for a period of 10 days, said first party may shut off the supply of water, and this contract shall thereupon and thenceforth, at the option of said first party, be null and void.
“ ‘ It is expressly understood and agreed that said first party shall not be obliged, under this contract, to furnish or deliver a greater supply of water than said spring will yield, and in case said spring fail to supply as much water as said village may need, not exceeding 1,500,000 gallons, said village need then only pay for the water actually furnished at the rate of 20 cents per 1,000 gallons.’
‘! In considering any written agreement made between parties, tbe circumstances under wbicb tbe 'contract was made may always be considered, when at al necessary to throw any light whatever upon what the parties have expressed in their writing, so long as they do not vary the terms and change the written contract. Now, it appears from the testimony that has been given in this case that, at the time of the entering into this contract between the village of Lake Linden and Mr. Joseph Gregory, the village of Lake Linden had a system of waterworks of' some capacity, to some extent. The testimony shows that it had a reservoir, and pipe laid through the village, which was connected with the reservoir. The testimony also shows that from the time this contract was entered into, during all the eight years in which this contract has been in force, that line and that reservoir has been used by the village for village purpqses. That it has used the water for fire purposes, for sprinkling the streets, for furnishing the Bosch Brewing Company, for furnishing certain dwelling houses, and for furnishing livery stables, and that that use has been constant during all those eight years, are circumstances which seem to me have a great deal of bearing upon the intention of tbe parties when they entered into this contract, and the construction that ought to be given to it. There is no claim in the case here that this system belonging to Lake Linden was unknown to Mr. Gregory, or to the plaintiff in this case, or that the use of that system after this contract was entered into was unknown to either of them. The section of this contract which I last read, where it provides that the said first party, Mr. Gregory, shall not be obliged to furnish any more than the capacity of his spring, and contemplated the possibility that the spring might not furnish the 1,500,000 gallons, is another circumstance, which is embodied in this written contract, which, it seems to me, throws a good deal of light upon the understanding that the parties had at the time the contract was entered into. It is not a contract by which the party of the first part agrees to furnish all the water that the village uses, and the village agrees to take water from no other source. If it were such a contract, then there would be nothing for us to do in this case.. But it seems to me that, under the words of this contract (which seem to have been selected with great care), the proper construction to put upon it is the one which is mainly contended for on the part of the defendant, considering the circumstances under which the contract has been made, and the interpretation which must have been put upon it by the first party and his successor, the plaintiff in this suit, all those eight years.
“ The agreement to sell and deliver, and the agreement to buy on the part of the village, and the price to be paid, are all to be taken in one sentence; and the one who drew the contract, as I have said, seems to have selected his language with care, and a desire to express just what the parties meant at the time they entered into the contract. Now, there is an agreement on the part of the first party to sell and deliver, and on the part of the village to buy, as much water from said spring as such village may need or desire, for any or all purposes, at the price and rate of $200 a month for any quantity not exceeding 1,500,000 gallons. Now, having used the terms ‘as much water from the spring,’ not ‘all the water from the spring,’ and not' ‘all the water that the village shall use,’ but ‘as much as they may need or desire,’ the expression is this: ‘All water over such quantity used in any month,’ not ‘all water needed for the purposes of the village,’ not ‘ all water desired for the purposes of the village,’ but ‘all water used during any month,’ is to be paid for at a certain rate per 1,000 gallons. Now, if the true construction of the contract is as plaintiff claims in this case, the reason for expressing the conditions which have been put into the writing in the two different ways is one that I cannot- understand at all.
“It seems to me, then, that, considering the fact that the village already had waterworks, which were in operation and existence, — notoriously so, — that it has continued to use those waterworks from that time, without interruption, during the eight years, without objection, so far as anything appears in this case, on the part of Joseph Gregory or his assignee, the present plaintiff, the fact that he was not obliged to furnish anything beyond the capacity of the spring, the fact that the village was obliged to pay him, no matter whether it used the water or not, the sum of $200 a month, without any exception, for each and every month during the 10 years, and then the expression that, for the amount of water used in any month above that amount, it was to pay a particular sum,— taking all these things into consideration, it seems to me that the fair, reasonable construction of that contract is that the village is obliged to pay $200 a month to Mr. Gregory during the time of this contract, unless his spring absolutely fails to furnish any water whatever; that it is not obliged, under the terms of this contract, to take any water from him and actually use it. If it does use it, it must pay for it.
“There is no question but what, during all of the months shown by the book that was introduced in evidence, the defendant paid an amount varying from $200 during the various years to over $600 in the one month. That is in the testimony of the plaintiff himself. There is no regularity about the matter at all; and so, so far as the claim on the part of the plaintiff for the two months of October and November in 1900, there being no claim at all that the village used any water in excess of $200 during those months, I think he has failed to make a case. As to the amount held back by the village in the year 1897 ($150), there has been no testimony introduced on the part of the village which satisfies me, or any of you, that it had any right to hold that money back, and therefore I direct you to render a verdict in favor of the plaintiff for the sum of $150,. together with interest from the first of May, ’97. I therefore direct .you, gentlemen, to render a verdict in favor of the plaintiff for $186.”

It is conceded by counsel for both parties that all thé questions raised depend for their solution upon the construction which shall be given to the contract. We agree with counsel for plaintiff that parol evidence is not admissible to vary or contradict the plain, unambiguous terms of a written contract. Kulenkamp v. Groff, 71 Mich. 675 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412); Hoag v. Graves, 81 Mich. 628 (46 N. W. 109); Brown v. Schiappacasse, 115 Mich. 47 (72 N. W. 1096). But it is equally true that, where the language used is of doubtful meaning, — is susceptible of different interpretations, — oral evidence is admissible for the purpose of explaining or interpreting the contract. It is said by one author:

“For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, every material fact that will enable the court to identify the person or thing mentioned in the instrument, and to place the court, whose province it is to declare the meaning of the words of the instrument, as near as may be in the situation of the parties to it, is admissible in evidence.” See note g and cases cited, 2 Pars. Cont. (5th Ed.) p. 560.
“It is a fundamental rule that, in the construction of contracts, the courts may look, not only to the language employed, but to the subject-matter and the surrounding-circumstances, and may avail themselves of the same light which the parties possessed when the contract was made. ” Merriam v. U. S., 107 U. S. 437 (2 Sup. Ct. 536).

We think the language used in the contract is such that, for the purpose of putting the correct interpretation upon it, it is competent to show the interpretation put upon it by the parties, the circumstances under which it was made, and the acts of the parties then and since that time. At the time the contract was made, the village had a partial supply of water, which it was then using, and has continued to use. It has been used for fire purposes, and to supply a brewery and livery stables. If it had been contemplated it should cease to use this supply, and get its entire supply from Mr. Gregory, it would have been easy to so provide in the contract. It did not so provide, and the village did not cease to use the water, but continued to use it all the years until Mr. Gregory’s death, without its right to do so, being questioned. The village might consider the water it was using quite good enough for fire purposes and for use in livery stables, and not contemplate giving up its use for that purpose, while for other purposes it desired spring water. After reciting that Mr. Gregory was the owner of the spring, the agreement is to take “as much water from said spring as such village may need or desire,” etc. We are of the opinion the judge rightly construed the contract.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    GATES v. UNION TRUST CO.
    ,1. Assignments for Benefit of Creditors — Claims—Husband and Wife.
    Petitioner’s husband made a trust deed of all his property for the benefit of his creditors, to which was attached a schedule of his debts, including §15,000 to his wife, which was the consideration for her joining in the trust deed. After the payment of this claim she presented one for"§83,000, most of the items of which were over six years old, and some had been running over thirty years. There was no note, book account, or other written evidence of the claim, no settlement had ever been had between petitioner and her husband, and the husband had never included this debt in any statement made by him to the banks or commercial agencies. Held, that the claim should not be allowed.
    2. Same — Estoppel.
    Where a married woman joins in a trust deed for the benefit of her husband’s creditors, with the understanding that she is to have no share in the proceeds resulting therefrom beyond a scheduled claim, she is estopped from afterwards presenting other claims.

      Appeal from Wayne; Rohnert, J.
    Submitted November 22, 1901.
    (Docket No. 75.)
    Decided April 22, 1902.
    Petition by Louise M. Gates against the Union Trust Company, receiver of Samuel G. M. Gates, for the allowance of a claim. From a decree for petitioner for part of her claim, both parties appeal.
    Reversed in favor of respondent.

      Simonson, Gillett & Clark ( T. A. E. Weadoek, of counsel), for petitioner.

      Russel & Campbell (Elliott G. Stevenson, of counsel), for respondent.
   Moore, J.

In August, 1899, Mrs. Gates filed a petition in this proceeding, in which she claimed her husband owed her upwards of $82,000. . On the hearing the claim was amended, and, omitting the claim for interest, was for a little more than $50,000. The circuit judge allowed the claim at $8,256.77, the items allowed being rent of one-quarter interest of sawmill for six years, with interest, and rents collected by Mr. Gates, within six years from the filing of the petition, from properties the title to which stood in Mrs. Gates. Both parties appeal.

In August, 1896, Mr. Gates made a trust deed, under which deed the Union Trust Company was appointed receiver, and is administering the trust under the direction of the court. Among other things stated in the deed is the following:

“A schedule of the property and interests hereby conveyed, marked ‘Exhibit A,’ is attached hereto, the same being made as complete as may be; but it is the intention of the parties of the first part to convey all of the property and interest of the said S. G. M. Gates, whether included in said schedule or not. The list of the names of the creditors of the said S. G. M. Gates, and the amounts of their claims, is also hereto attached, marked ‘ B, ’ and made as complete as may be; but it is the intention of this instrument that all creditors shall be paid, whether included in said list or not.”

Mrs. Gates’ name appears in Schedule B as follows:

“ Louise M. Gates, preferred, $15,000.” She is not otherwise referred to in the schedule.

Mrs. Gates joined in the trust deed. The provision of the instrument for payment to her is as follows:

“As soon as it may be safely done, out of the profits of said business or the proceeds of said property to pay to said Louise M. Gates, wife of S. G. M. Gates, in consideration of the release and transfer hereby made by her of her inchoate right of dower and other interests in the property hereby conveyed, the sum of $15,000, with interest from date.”

In relation to this trust deed Mrs. Gates testified:

“I knew he was making an assignment for the benefit of his creditors, conveying to the trust compapy all his property for their security and benefit. I knew there was attached to that paper a list of his creditors, but I never sawthelist. I knew I was preferred for $15,000. Iunderstood it was made to cover or secure all of his creditors, but not intended to secure me. It was my intention not to make a claim, but to adjust my matter with him after he got through with this business. For that reason I understood I was excepted from the creditors in that security.”

Testifying in relation to the same matter, Mr. Gates said: ,

“The claim of Mrs. Gates was not included or meant fo be included in the $15,000. This $15,000 was to enable ■ her to take care of her property. The consideration for the $15,000 is her dower interests and the surrender of the Center-street property. At that time the list or schedule of the trust company did not contain all my creditors. It did not contain the claim of Mrs. Gates. It was not on my books, and the claims were made up from my boobs by my bookkeeper. I knew of my indebtedness to her. The only reason why it was not put in was that I believed that it would pay out, and I was anxious for the debts to be paid. I supposed there would be a nice sum left.”

After the giving of the trust deed some question was raised as to the bonafides of the $15,000 preferred claim. September 1, 1896, Mrs. Gates filed with the receiver a statement, to which is attached the following:

‘1 This statement is furnished the Union Trust Company by Mrs. Gates to satisfy it that she is a bona fide creditor of S. G. M. Gates to the extent of $15,000. Interest is neither charged nor credited, and the other items are omitted which would increase this claim.”

An order was made in the case requiring creditors to present their claims on or before November 1, 1897. After Mrs. Gates was paid the $15,000, she filed a petition, dated August 31, 1899, claiming her husband owed her unsecured claims, which, after giving him certain credits, left him her debtor to more than $80,000. The claim is made up as follows:

“1. $1,100 cash, claimed to have been loaned by Mrs. Gates to her husband July 31, 1864; interest for 32 years. 2 months.
“2. Rent at $1,500 per year for the use of one-quarter of Gates & Fay’s sawmill from January 1, 1865 (the one-quarter interest having been purchased in 1864 for $2,000), $47,375; interest for 31 years 7 months.
“3. Rents collected by Gates from houses which had been conveyed by Gates to Mrs. Gates, the rent items covering a period from October, 1872, amounting, without interest, to $8,718.66.
“4." A claim for the value of more than 5,000,000 saw logs said to have been purchased in 1891 for Mrs. Gates by Gates, $20,044.94.
“o. $6,000 loaned by Mrs. Gates to Gates in 1881, the proceeds of a mortgage on the homestead conveyed by Gates to his wife.
“6. $1,926.50, items paid by Mrs. Gates for household expenses during a number of years.
“7. $1,100, board of a nephew and employé of Gates for five years and seven months prior to Gates’ failure.”

The credits stated upon the account are as follows:

“1. Conveyances of real estate at four different times, aggregating $21,335, according to the statement of consideration contained in the instruments.
“2. Sundry items of money or merchandise furnished Mrs. Gates, and charged to her on Gates’ books of account, aggregating $2,857.79.
. “3. A credit given in the account for what is stated to be Mrs. Gates’ share of expenses of logging at Mercer camp, amounting to $12,000.”

It appears from the testimony of both Mr. and Mrs. Gates that no lease was drawn for the rental of the mill, and no agreement made as to the amount of the rental; that no note or written evidence of debt was given for any of these items; that no charge or credit was made or given on any book kept by either Mr. or Mrs. Gates for any of these items. Mrs. Gates testified:

“I purchased the quarter interest in the mill for $2,000. I never received any rent from it, nor kept any account of it. I have no books or records of any kind showing these transactions with my husband; nothing except as the deeds and contracts show.' This account has been made up from papers that were in existence since my husband failed. I had no record or books of any kind showing this transaction. I always carried it in my mind, though not entirely, because I talked it over with Mr. Gates several times. I never got any money from Mr. Gates.”

In testifying about one of the items which she now claims is a credit on the account, she said:

“ At the time I received this deed I did not give him a receipt for the amount. I had nothing to indicate that I had, by the receipt of this deed, received any part of the indebtedness. It was a small matter between us. I didn’t consider it was necessary. I did not know that it would ever come up.”

At another place in her testimony she said:

“That is the same mill for which I paid $2,000 for the quarter interest. Gates & Fay improved it. The mill earnings ran some years $20,000; never less than $16,000; and in these transactions I never charged him more than at the rate of $6,000. I charged him verbally always. I said I expected a settlement at $6,000, and I expected $1,500 for my portion. I demanded it every year, but he put me off. * * * I never made out any bill for rent to Mr. Gates, or Fay & Gates, and never gave them any receipt to apply upon it. No conveyance was ever made to me, or any other payment, for part of the indebtedness, and never had any understanding with them that anything should apply upon any part of the indebtedness, — any of these conveyances, or any other payments, for part of the indebtedness. I expected to credit him when we got to a settlement.”

No settlement was ever made between them.

Mr. Gates, on the cross-examination, testified as follows:

“I did not discuss*the question of why I did not want to include Mrs. Gates’ claim in the list of creditors. It was just a matter in my own mind. I remember meeting you and Mr. Russel in the Trust Company Building. I remember a meeting in Mr. Collins’ office in Bay City, at which Mr. Russel and Mr. Stevenson were present. Perhaps the question whether this $15,000 should be included in the trust conveyance was discussed. I don’t remember whether I indicated to you that Mrs. Gates had any claim outside of that $15,000. I don’t know as I had, prior to the mortgage, ever made any statement of my liabilities to the company which included any claim of Mrs. Gates. I have made statements of my condition,— such statements as annual statements. I have made a statement to the Second National Bank of Bay City.. I gave my assets and liabilities. I don’t know whether it included anything of liabilities to Mrs. Gates. I have made statements to the commercial agencies. I did not make specifically any statement of an indebtedness to Mrs. Gates. I do not remember of ever including among my liabilities any sum added to my liabilities consequent upon anything due Mrs. Gates.”

Without reciting this testimony more in detail, or attempting its analysis, we say of it we think it fails to establish a legal claim on the part of Mrs. Gates against her husband. On the contrary, we think the claim stale, and its presentation an afterthought. See Glover v. Alcott, 11 Mich. 479; Ball v. Phenicie, 94 Mich. 356 (53 N. W. 1114); Winslow v. Putnam, ante, 359 (90 N. W. 43).

In Davis v. Zimmerman, 40 Mich. 24, it is said ;•

“The plaintiff [defendant] sought to estop the wife from claiming the property as against his mortgage by showing that the mortgage was given in part for her own board, and that she, knowing that fact, failed to notify defendant of her claim. Had she known at the time that the defendant was to take a mortgage as security for the payment for her board subsequently, and failed then to assert her right, there would be justice in setting up an estoppel against her.”

Counsel say:

“The case of Davis v. Zimmerman, 40 Mich. 24, cited by respondent’s counsel, is not in point. In that case the wife allowed her husband to mortgage her individual property, and was afterwards held estopped from asserting her title thereto. In other words, the wife was attempting to attack the validity of the mortgage itself, and to assert a prior title to the specific property affected thereby. A similar question would arise in the case at bar if Mrs. Gates, having joined in the trust deed, should now claim the absolute ownership of the property conveyed thereby, and should attempt to place it beyond the reach of the creditors. We make no such claim. We assert no rights to the specific property conveyed, but merely a personal claim in the nature of a debt against Mr. Gates. The court, in Davis v. Zimmerman, did not and could not have held that the wife had lost her personal claim against her husband, even though she may have lost by estoppel her right to reach and retain specific property mortgaged by her husband under circumstances creating a clear case of estoppel upon her part.”

We think counsel are in error. This is not a proceeding to enforce a claim against Mr. Gates personally. It is true it is not an attempt to set aside the trust deed, but it, in effect, seeks to accomplish the same purpose, by subjecting the proceeds.resulting from the administration of the trust to the debt of the petitioner, and thereby diminishing the fund, which is already too small to pay the other creditors. The testimony discloses that, when Mrs. Gates joined in this trust deed, she understood, as did Mr. Gates, she was to have no share of the proceeds resulting therefrom beyond the $15,000. She should now be es-topped from claiming the contrary. We think the court erred in allowing any part of the claim.

The decree of the court below is reversed, and one will be entered here in favor of the appellant trust company, with costs of both courts.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Grant, J.

text:
    TOWNSHIP OF SWAN CREEK v. BROWN.
    1. Drains — Irregularity—Remedy.
    A person who, having notice of the establishment of a county-drain, does not have the proceedings reviewed on certiorari, as provided by 2 Comp. Laws, § 4346, cannot, after the contract is let and the drain partially constructed, have the proceedings enjoined for the delay of the commissioner in acting upon the petition. Moore v. McIntyre, 110 Mich. 237.

      2. Same — Bill to Restrain — Parties.
    A person whose land is not injured by the construction of a drain cannot maintain a bill to restrain its completion.
    3. Same — Township as Complainant.
    A township cannot maintain a bill to restrain a drain on behalf of landowners who claim to be injured thereby.
    4. Same — Injury to Public Health — Determination or Jury.
    Whether the construction of a public drain will be injurious to the public health is a question that cannot be determined by a court of equity in a suit to set aside the proceedings; the finding of the special commissioners or jury thereon is conclusive.
    Appeal from Saginaw; Beach, J.
    Submitted February 21, 1902.
    (Docket No. 44.)
    Decided April 22, 1902.
    Bill by the township of Swan Creek and Helon B. Allen against Alonzo M. Brown, drain commissioner of Saginaw county, to enjoin the construction of a drain. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      The purpose of the bill filed in this case is to restrain the completion of a county drain laid out, éstablished, and partly constructed through the townships of complainant, Fremont, and Richland, and to restrain the levy and collection of assessments made in complainant township for the construction of said drain.
    Application was filed with the county drain commissioner June 20, 1899. His opinion that it was necessary was made February 2, 1900, and an order was duly made b.y him establishing the drain in accordance with the minutes of the survey. Releases of right of way were obtained through the lands of several owners in the township of Swan Creek. June 7, 1900, application was made to the probate court for the appointment of special commissioners. They were duly appointed, time for hearing fixed for June 28th, and citations duly issued, published, and served upon the proper parties. June 28th three special commissioners were appointed. These commissioners appointed the 7th day of July, 1900, at 9 o’clock, at a given place, for their meeting. The special commissioners were duly sworn, made the examination, and condemned certain lands, awarding damages therefor. The drain commissioner’s final order of determination was made July 10th, wherein said drain is named as if Marsh Creek Drain No. 2,” and the tracts or parcels of land to be assessed for benefits in the construction of the drain were determined. Notice of letting contracts and review of assessments was duly given and published, fixing the time as July 30th. Personal service of notice of review and of letting contracts was made. August 31, 1900, the apportionment of benefits was made by the drain commissioner for the townships of Fremont, Richland, and Swan Creek. To Fremont was apportioned 51 per cent., to Richland 15 7-10, and to Swan Creek 33 3-10 per cent. This was subsequently changed by the board of review as follows: To Fremont 54 11-40 per cent., to Richland 17 17-40 per cent., and Swan Creek 28 3-10 per cent. Benefits were also duly apportioned by the drain com missioner and the board of review of the township of Swan Creek upon the several pieces of land therein found to be benefited. These proceedings were all completed on July 30th. The computation of the cost of the drain by the commissioner was $12,000. Its share was duly assessed to the township of Swan Creek upon its roll, dated September 5, 1900, at $3,365. Like special assessment rolls were made for the townships of Fremont and Richland. The supervisor of the township of Swan Creek appealed from the apportionment for benefits August 9th, and the decision and report of the board of review was made August 31st. A map of the route of the drain and a profile thereof were duly made, and were produced in evidence. The case was heard upon pleadings and proofs, and the bill dismissed.

      Frank F. Emerick (G. W. Davis, of counsel), for complainants.

      James H. Davitt, for defendant.
   Grant, J.

(after stating the facts). Counsel for the complainants say in their brief that the proceedings, are not questioned except in two or three particulars, one of which is the laches of the drain commissioner in acting upon the petition, and the other that the provision of the act under which the cost of constructing this drain was apportioned is unconstitutional. These points were not argued in the main brief of complainants, but are argued in the reply or supplemental brief. Whether they should now be considered we will not decide. Section 4346, 2 Comp. Laws, provides a remedy by certiorari when the proceedings are attacked for defects. The statute gives 10 days in which to give notice of such certiorari, and, if such proceeding be not taken within the time prescribed, its legality shall not be questioned in any suit at law or in equity. • No such proceedings were instituted, and no objection made until the filing of this bill, on October 22d. Meanwhile the contract had been let, and $3,589 expended in the construction of the work. Complainants did not act with sufficient promptness, and are guilty of laches which bars their right to review defects, either by certiorari or by a bill in equity. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), and authorities there cited.

Complainant Allen has not alleged in his bill, nor shown by his testimony, that his land is injured by the construction of this drain. He is, therefore, not entitled to maintain this suit. All the cases cited by the complainants in support of their contention are cases in which drain commissioners have flooded the lower lands by turning upon them an unusual flood of water from the higher lands, to the injury of the lower estate. Authorities are uniform that this cannot be done, even under .the authority of the drain commissioner, without compensation.

The complainant township, as a municipality, owns, no land to be injuriously affectdd. It cannot maintain a. bill in behalf of those landowners in the township who do> claim to be'injuriously affected. Bach landowner may maintain a suit to determine that question, but the township cannot interfere, and impose the cost of such suit upon the entire township. It follows that, if the township can maintain this suit, it is upon the sole theory that the construction of this drain will empty the waters of Rich-land and Fremont townships upon the lands of the township of Swan Creek, to the injury of the public health. The obvious reply is that this power is not, by law, conferred upon courts. It is placed exclusively in the power of those tribunals established by the law for the sole purpose of determining the question of necessity and of eminent domain. Neither the circuit court nor this court is at liberty to substitute its judgment upon this point for the judgment of the special commissioners who were appointed to determine that question. The testimony upon this point is conflicting. The finding of the special commissioners or a jury appointed under the statute to determine this is as conclusive upon the courts as is the verdict of a jury upon contested questions of fact. Clark v. Drain Com'r, 50 Mich. 618 (16 N. W. 167); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22).

Decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


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    GOODIN v. VAN HAAFTEN.
    Appeal Bond — Waiver.
    A general appearance and notice of trial in the circuit court by the appellee in a case appealed from justice's court waives the failure to file affidavit and bond within five days after judgment.
    Error to Ottawa; Padgham, J.
    Submitted April 8, 1902.
    (Docket No. 7.)
    Decided April 22, 1902.
    Trespass de bonis by Rosanna Goodin against Gerrit Yan Haaften. There was a judgment for plaintiff in justice’s court, and defendant appealed to the circuit. On plaintiff’s motion the appeal was dismissed, and defendant brings error.
    Reversed.
    Plaintiff obtained a judgment before a justice of the peace on August 5, 1899. Defendant appealed to the circuit court, paid the costs of suit and appeal fees on August 9th, and delivered the affidavit and bond for appeal to the justice on August 23d. The law requires an appeal to be taken within five days. The return of the justice was made August 23, 1899. On August 3, 1900, plaintiff entered a general appearance in said cause in the circuit court, and served notice of trial and note of issue upon the attorney for the defendant. Afterwards plaintiff, upon leave1 granted by the court, moved to dismiss the appeal because the affidavit and bond were not furnished to the justice of the peace in time to perfect the appeal in accordance with the statute. The court dismissed the appeal.

      Charles H. McBride (John C. Post, of counsel), for appellant.
   Grant, J.

(after stating the facts). The court was in error. The general appearance and notice of trial operated as a waiver of the failure to file the bond and affidavit, within the time required by the statute, and gave the circuit court jurisdiction of the case. McCombs v. Johnson, 47 Mich. 593 (11 N. W. 400); Hamilton v. Wayne Circuit Judge, 53 Mich. 409 (18 N. W. 193); Sherwood v. Ionia Circuit Judge, 107 Mich. 136 (64 N. W. 1045).

Judgment reversed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


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    CABLE CO. v. WASEGIZIG.
    Conditional Sale — Waiver op Forfeiture.
    Where a contract for the sale of a piano, to be paid for in installments, provides that title shall remain in the vendor until the piano is fully paid for, and, in case of default in any payment, the piano shall be returned to the vendor upon demand, the acceptance by the vendor, after a default, of part payment, waives the right to retake the piano for default of any prior installment.
    Error to Schoolcraft; Steere, J.
    Submitted April 8, 1903.
    (Docket No. 18.)
    Decided April 22, 1903.
    Replevin by the Gable Company against Enos Wasegizig and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      C. W. Dunton, for appellant.

      F. H. Peters (David Knox, of counsel), for appellees.
   Moore, J.

This is an action in replevin, brought to obtain the possession of a piano. The plaintiff is the successor, on reorganization, of the Chicago Cottage Organ Company. The defendants are a laboring man living at Manistique, and his wife. In August, 1898, the Chicago Cottage Organ Company made a written contract with Mr. Wasegizig to sell him a piano for $360, and to credit him thereon for one organ $75; the balance to be paid, cash at date of contract $10, and at the rate of $10 a month, except four months during the winter at $5 a month. Some payments were made under this contract, but they were not all made according to its terms. A new contract was made between Mrs. Wasegizig and the company for the same piano, which contract was to stand in the place of the old one. This was dated November 9, 1899. The price to be paid was $360, as follows: $133 down, and $10 each month thereafter until all was paid. The $133 was made up of payments made under the old contract. The title of the piano was to remain in the company until the piano was paid for, and provision was made that in case of default in the payment of said amounts, or any of them, upon demand the subscriber should return the piano to the company, and that all money paid thereon should belong to the company as stipulated damages, and, in case of default in any payment, the whole of the payments might be declared due. Ten dollars was paid November 18, 1899, $10 May 20, 1900, $10 May 25, 1900, and $5 July 24, 1900. During the summer and fall of 1900 some correspondence was had with the company by the defendants about their failure to make the payments according to the terms of the contract. September 13, 1900, the company sent a letter to Mr. Wasegizig, reading as follows:

Dear Sir: We have your letter of the 8th inst., referring to the piano contract signed by your wife, Mrs. Jane E. Wasegizig, and in reply to same will say that, if you have $40 or $50 which you will pay this week, we will accept it, and allow the piano to remain in your possession for the present. It is to be understood, however, that you will make at least reasonable payments from now on. We do not want the piano, but we want our money, and, if you will treat us right along this line, we will assure you of courteous treatment in return.”

Afterwards, and before any further payments were made, the piano company’s agent, Yigent, and another agent from the house, came to Wasegizig’s for some money. They wanted $50. The Wasegizigs could not raise that amount. Then $25 was suggested, and that was also beyond their reach.

Q. Then what did this man say ?
“A. Well, he said, ‘If you can get a little money, take it to the bank.’ So I got money, — $10,—and took it over there.
‘ ‘ Q. Did he tell you how much money to take to the bank ?
“A. ‘As much as you can get,’ he said; and I got only $10.
‘ ‘ Q. Did you get a receipt for the money from the bank when you paid the $10 ?
“A. ‘Any time you get money,’ he says, ‘take it over,’ he says; and that is the receipt I got.”

Demand of payment or return of the property was made by plaintiff October 18, and this suit in replevin was brought October 20, 1900.

In his charge to the jury the circuit judge told them:

“ In this case the plaintiff has claimed a forfeiture, and insisted on the forfeiture; and it would therefore be its duty to show that it has done everything which it is bound to do to entitle it to insist on that forfeiture, and that it has done nothing to waive that right. Failure to pay these installments when they were due was a default which did not necessarily render this contract void, but it rendered it voidable. It was voidable at the option of plaintiff in this case, and it then remained for the plaintiff to elect whether it would declare the contract void, retake the goods, and declare a forfeiture of the payments already made, or .whether the plaintiff would continue it in force, and thereby become entitled to keep the payments.
‘ ‘ It appears from the undisputed evidence that on the 8th of October an installment was paid. These installments fell due monthly on the 11th of each month, and after the 8th of October no installment would be due again until the 11th of November; and so, by then accepting this installment, paid on the 8th day of October, which was a part of the purchase money, the contract was recognized by this plaintiff as then being in force, and the forfeiture was then waived as to any previous defaults which had arisen, and it could not be insisted upon thereafter by the plaintiff in this case until a subsequent default arose by reason of failure to make another monthly payment according to the terms of the contract. The testimony being undisputed upon this point, I instruct you that the plaintiff appears by the evidence to have elected to recognize this contract as continuing in force, and therefore was not entitled to replevin this piano at the time this suit was brought, which was on the 20th of the same month, and your verdict will be for the defendants. ”

The sole question involved in the case is whether what was done operated as a waiver of any further payment until the 9th of November. The plaintiff insists it did not,— citing Hutchings v. Munger, 41 N. Y. 155; Mosby v. Goff, 21 R. I. 494 (44 Atl. 930); People’s Carpet Co. v. Crosby, 57 Neb. 282 (77 N. W. 658, 73 Am. St. Rep. 504); O’Rourke v. Hadcock, 114 N. Y. 541 (22 N. E. 33); Fairbank v. Phelps, 22 Pick. 535. An examination of these cases will show that all of them, except the last one, are unlike the case at bar. In all the others the entire amount of the purchase price was due. Some payments had been made after a failure to comply -with the terms of the contract. Without making demand for the payment of the balance, the several vendors took possession of the property. In each of the cases the court held that the acceptance of payments under such circumstances was a waiver, and the vendor could not take the property until demand of payment was made, and in each of those cases judgment was entered in favor of the purchaser.

In Fairbank v. Phelps, supra, the following language was used:

‘ ‘ It is true that Potter requested Shewbrooks to pay the price agreed; but this request was complied with in part, and Potter, by accepting part payment, impliedly waived his request for any further payment at the time, and confirmed the sale, subject to the condition. If he had intended to terminate the contract of sale, he would have declined receiving any part of the price, and would have insisted on the restoration of the wagon.”

The case of Cole v. Hines, 81 Md. 476 (32 Atl. 196, 32 L. R. A. 455), is based upon a contract and a state of facts almost identical with the case at bar. In that case the court said:

“ It will be observed, however, that this is not like the cases cited by the appellee, where there is a debt absolutely due and payable, and the creditor gratuitously promises to grant an extension of time for the payment. By the express terms of this contract, the vendor, in the event of a default by the buyer, had a right either to declare a forfeiture and retake the goods, or to waive the default and continue the contract in force. The declaration alleges conduct by the seller which, as will be subsequently seen, did amount to a waiver of the default; and the question is whether the defendant was bound by that waiver, or whether he could subsequently, and for the same defaults that were so waived, enforce the forfeiture. It is therefore not the case of a mere promise to give indulgence to a debtor or to waive a future default, but one involving the consideration of the effect of an actual waiver.
“In all contracts where time is of the essence, a breach of the contract in that respect by one of the parties may be waived by the other party’s subsequently treating the contract as still in force. Pinckney v. Dambmann, 72 Md. 178 (19 Atl. 450); Webb v. Hughes, L. R. 10 Eq. 281; Black v. Woodrow, 39 Md. 194. In these cases of conditional sales, the acceptance by the seller of an installment of the purchase money after default is a recognition of the contract as still subsisting, and a waiver of the forfeiture. Hutchings v. Munger, 41 N. Y. 158; Hurst v. Thompson, 73 Ala. 158. And other acts than acceptance may have the same effect. A party cannot take two inconsistent positions. If he has a right either to rescind a contract on account of a breach by the other party, or to continue it in force, and he elects to continue it in force, he thereby abandons the right to rescind, and is bound by the election so made. Bollman v. Burt, 61 Md. 422; Maryland Manfg. Co. v. Lorentz, 44 Md. 233; Lawrence v. Dale, 3 Johns. Ch. 23. * * * The failure of the appellant to pay the installments when due was a default which did not render the contract void, or cause the entire purchase money to become due, but the contract was thereby made voidable at the option of the appellee. It was then necessary for the appellee to elect whether he would avoid the contract, retake the goods, and declare a forfeiture of the installments already paid, or whether he would continue it in force, and become entitled to the future payments. He made his election to continue the contract in force by his notification to the appellant, who had a right to rely upon it; and, having thus waived the forfeiture on account of this particular default, it follows that he could not subsequently insist upon it.”

See Hill v. Townsend, 69 Ala. 286. Neither of the agents representing the company when the payment of $10 was made was sworn as a witness. The testimony of Mrs. Wasegizig is in very broken English, but the record, as a whole, clearly shows that she was given to understand, if she would pay what she could to the bank, that the piano would not be taken from her unless another default occurred. We think the judge made a right disposition of the case.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


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    WESTINGHOUSE CO. v. GAINOR.

    1. Sale — Warranty—Notice—Waiver.
    Where under a contract for the sale of a thresher, containing a warranty that the machine should operate to the satisfaction of the purchaser, and also an agreement that the purchaser should immediately notify the agent and seller of the failure of the machine to work satisfactorily, and give them an opportunity to make it work to his satisfaction, the purchaser, on failure of the machine to work to his satisfaction, at once notified the agent, who, instead of insisting that notice should be sent to the seller, asserted that the machine had already been accepted, the necessity of further notice was waived.'
    S. Conditional Sale — Return oe Machine.
    A contract for the sale of a thresher provided that if the machine failed to comply with the warranty, and was not accepted, the buyer should return it to the agent at a certain city, but did not mention any place in the city. The agent did not reside in the city, nor have an office there. The machine did not fulfill the warranty, and the buyer wrote the agent, asking where he should leave the machine. The agent in reply insisted that he had already accepted the machine. Held, that the purchaser was not bound to return the machine until he was informed where he should leave it.
    3. Promissory Notes — Bona Fide Holder — Error Without Prejudice.
    Where the jury found that the plaintiff was not a bona fide holder of two of three notes given in payment for a thresher, the action of the court in withdrawing from the jury the note maturing first, on the ground that it was not transferred until after maturity, if error, was not prejudicial to the plaintiff.
    Error to Cheboygan; Shepherd, J.
    Submitted April 8, 19,02.
    (Docket No. 4.)
    Decided April 22, 1902.

      Assumpsit by the Westinghouse Company against William Gainor upon promissory notes. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Black & Dolan, for appellant.

      Frost & Sprague, for appellee.

       Rehearing denied June 11, 1902.

   Moore, J.

This suit was brought upon three notes,— one due January 1, 1897, for $100, one due January 1, 1898, for $100, and one due January 1, 1899, for $100. The defense was that the notes were given for a bean thresher, which was sold with a warranty, which was not' met. From a judgment rendered in favor of the defendant, the case is brought here by writ of error.

The material parts of the order given for the machine read as follows:

“Cheboygan, July 31, 1896.
“This is to certify that I have this day agreed to purchase of Westinghouse & Co., of Schenectady, N. Y., through their agent, Charles Bates, of Lansing, Mich., the following named machinery, viz.: One bean thresher,
with straight stacker, and secondhand, but in good condition, which machinery is to be shipped,” etc. “I agree to take the said machinery from the place above mentioned, subject to the conditions of the warranty printed below, and to pay the freight charges thereon. * * *
“I agree to become responsible for the safe-keeping of said machinery until accepted under the warranty printed below, or returned, and within a reasonable time to make a trial of it; and if it performs in accordance with the warranty printed below, after a trial of not to exceed four days, the said machinery shall be deemed accepted by me. In event of this machinery failing to give satisfaction during said trial, I agree that I will immediately notify in writing the said agent, and also Westinghouse & Co., at Schenectady, N. Y., and give him and them an opportunity to make it satisfactory, and when this is done the said machinery shall be deemed accepted by me. If said machinery fail to perform in accordance with the warranty printed below, and if not accepted in accordance with the foregoing, I will deliver said machinery in good order and condition to the said agent at Cheboygan, free from all charges for freight, storage, handling, etc., and without claims for damages of any kind; and the money and notes which shall have been given for said machinery shall then be returned, and this contract rescinded. * * *
“The warranty made upon the machinery specified in the foregoing by the said Westinghouse & Co. is that it shall operate to the satisfaction of the purchaser, and that any defects in the manufacture of it shall be made good by their supplying the defective parts without charge. Where the machine is a combined clover and grain thresher, this warranty extends to it only as a grain machine.”

The defendant is an illiterate man, who signed the order by making his mark. No copy of the order was left with him, and he says it was not read to him; that he believed Mr. Bates stated to him its contents. After the machine was received, defendant caused the following letter to be sent:

“Charles Bates, Esq.,
“Lansing, Mich.
Dear Sir: The machine has arrived, and appears to be used a great deal more than represented to me; but I will say nothing about that if you send me a centerpiece for stacker, 8 feet long, and rattles to match, as the stacker is too short when there is from 200 to 500 bushels of peas to thresh in a place. 1 have not tried the machine yet.”

The request of Mr. Gainor was complied with. When the threshing season arrived, Mr. Gainor, who had had 30 years’ experience as a thresher, set the machine at work threshing beans. He testified that he threshed beans with it two days, and was able to thresh less than 200 bushels in -that time; that the beans flew out of the side of the machine, and some of them came out of the tail end of it; that the machine separated them all over the barn; that he tried it threshing peas, and could thresh but 50 bushels in a half day; that the pulleys were too narrow; that the belts would break if tightened sufficiently to run the separator, and the cylinder clogged up; that the machine did not give satisfaction, and he dropped the use of the machine, and used the Nichols & Shepard separator, which did good work with the same beans and peas. He then caused the following letter to be sent:

“Oct. 7, 1896.
“Charles Bates, State Agent,
■ , “Lansing, Box 253.
‘ ‘ Dear Sir: I would like to know what you want me to do with the bean thresher that you sent me. It is no good. It will not thresh peas, and it took me one day to thresh 197 bushels of good beans. If you doubt my word, write to Claude Swain, Cheboygan, Mich. He is the man that I threshed the beans for. Please let me know what to do with the machine, as I will not try it again, and as I had the best man I could get to try to make it work, and they say it cannot be made to do good work.”

In reply to that letter, Mr. Gainor received the following letter:

“Charles Bates, State Agent,
“Box 253, Lansing, Mich.
“October 12, 1896.
[Written on the letterhead of Westinghouse & Co.] “William: Gainor,
“Manning, Michigan.
Dear Sir: I am in receipt of your favor of October 7th, and must say that I am surprised, for our customers are having no trouble to thresh 100 bushels of beans an hour with our bean thresher. Now, if you cannot make the machine work, it is because you or your men do not understand it; and, if you will let me know when you are to try the machine again, I will have a man to operate the machine to the entire satisfaction of any one, and in accordance with our guaranty. Now, in your letter you refused to try our machine again. Now, I hope you will not take this position, as it is unfair. I inclose you a copy of the order which you signed, and you will notice its conditions, and the part you are to fill in the contract. You agreed in the contract to give us notice if you could not operate the machine yourself, and then, later, after you received the machine, you wrote me a letter saying that, if I would send you four feet more of carrier belt, you would accept the machine and call it satisfactory; and, on receipt of your letter, I sent you the parts requested, and supposed that was the end of it. Now, we can make the machine work all right, if you will give us an opportunity. However, we are not compelled to do so, as you accepted the machine by letter long ago; but we are perfectly willing to be fair with you, and show you that the machine is all right, if you will give us an opportunity. Furthermore, we expect the notes we hold against you to be paid promptly at maturity. I trust you will be considerate and fair in this matter.
“ I am, yours very truly,
‘ ‘ Chables Bates. ”

Mr. Gainor says the copy of the order mentioned in the letter was not received by him. A reply was sent to this letter by Frost & Sprague, attorneys for defendant. Other correspondence followed, which it is not important to set out here. Mr. Gainor, after the use already mentioned, housed the machine, and never used it afterwards. The company never sent anybody to attempt to make the machine work properly. Suit was brought upon the notes, all of which were indorsed on the back: “Pay to the

order of the Westinghouse Company, without recourse on us. Westinghouse & Co.” There was no date to the indorsements.

The court was requested to direct a verdict for plaintiff because: First, defendant failed to give written notice, as required by said contract, to Westinghouse & Co., at Schenectady, N. Y.; second, he did not signify to either Mr. Bates, or any one else, his readiness to render friendly assistance in the making of a further test of the machine, but clearly indicated that he was through with, and would have nothing more to'do with, it; third, he failed to return said machine to Cheboygan, as required by said contract. The plaintiff also requested the court to instruct the jury to return a verdict for the plaintiff for the last two notes, and interest thereon, because, under the undisputed evidence in the case, it appeared that the plaintiff was a bona fide purchaser of said notes before they were due. The judge declined to do this. He withdrew the first note from the consideration of the jury, but left it to them to say whether the plaintiff was a bona fide holder for value of the other two notes. Among other things, he said:

“ The burden of proof is upon Mr, Gainor, the defendant. The notes are found in the possession of the Westinghouse Company in the ordinary course of business, ánd, so far as any evidence is shown here, for a valuable consideration ; and it then devolves upon Mr. Gainor to show, by a preponderance of the testimony, — testimony that convinces you; that makes you believe honestly and sincerely, — that the Westinghouse Company, who are suing these notes, at the time or before they purchased them, had notice that Mr. Gainor was not indebted to the company, — that the machine had not worked according to the contract.”

The only proof of the indorsements made upon the notes is the testimony of Mr. Bates. He did not see them indorsed. His testimony disclosed that the Westinghouse Company manufactured the machines, and that Westinghouse & Co. sold their output; that he was the sales agent for Michigan of the one company, and the collection agent for Michigan of the other company. In response to counsel for plaintiff, he testified:

Q. Your method of business, as I understand it, and you have stated it, since you have been doing business for these respective concerns, has been to sell the machines for Westinghouse & Co. ?
“A. Yes, sir.
Q. And when notes have been taken, they have Come back to you transferred to the Westinghouse Company, and you have attended to the collections ?
“A. Yes, sir.
Q. And this is one of a series of notes that you have received in that way of transacting business?
. “A. Yes, sir.
Q. Acting as an agent for both parties ?
“I. Yes, sir.
Q. I understood you to state that you knew the person who signed this name Westinghouse & Co. on the back of each of these notes ?
“A. Yes, sir.
Q. What was his name ?
“A. George W. Jones.
Q. Do you know what position he holds in the firm of Westinghouse & Co. ?
“A. He is the manager of Westinghouse & Co.”

He testified he did not know whether plaintiff had notice of what these notes were given for, or not, at or before the time it became the owner of the notes. No other witness was called on the part of plaintiff.

The first assignment of error relates to the admission of testimony. We do not discuss it, but we do not think it well taken.

It is insisted defendant cannot avail himself of the defense he pleads, because he did not give written notice to Westinghouse & Co., at Schenectady, N. Y., as required by the contract. We do not deem it necessary to determine whether or not, under the warranty that the machine “shall operate to the satisfaction of the purchaser,” if he decided that it did not do its work to his satisfaction, that ends the matter. See Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579). The record shows, as a matter of fact, that notice was at once sent to the State agent, who, instead of saying notice should also be sent to the house, at Schenectady, N. Y., as it was his duty to do if he thought that notice important,'knowing defendant had no copy of the contract, nor did he, or the company for whom he was State agent, send a man to make the machine work properly after the receipt of the notice, but, instead of so doing, he misstated the contents of a previous letter, and, though expressing ability to make the machine work all right if given an opportunity, closes his letter by saying:

“However, we are not compelled to do so, as you accepted the machine by letter long ago; but we are perfectly willing to be fair with you, and show you that the machine is all right, if you will give us an opportunity. Eurthermore, we expect the notes we hold against you to be paid promptly at maturity. I trust you will be considerate and fair in this matter.”

In this connection it is well to recall what was said in Mr. Gainor’s letter of October 7th. He does not say he will not permit the company to make the machine work, but he inquires:

“Please let me know what to do with the machine, as I will not try it again, and as I had the best man I could get to try to make it work, and they say it cannot be made to do good work.”

There is nothing in this language to relieve the company from its duty to furnish a good machine. The cases cited by counsel are very different from this case. ■ Here we have a notice given to a State agent, and he, instead of insisting upon an insufficient notice, asserts there has already been an acceptance of the machine. We think this a waiver of any further notice, if notice was needed.

It is said the defense cannot be made because the machine was not returned to Cheboygan. Mr. Bates did not reside at Cheboygan, but at Lansing. He had no office there. When inquiry is made of him as to what defendant shall do with the bean thresher, instead of answering that question, he insists that defendant has already accepted the machine. In Osborn v. Rawson, 47 Mich. 206 (10 N. W. 201), Chief Justice Marston, speaking for the court, used the following language:

“It is the warranty of the plaintiffs that the machine would do first-class work, and that if it did not, after they or their agents had an opportunity to remedy the difficulty, then it was to be returned, and a perfect machine delivered in its place. The language, ‘to be returned,’ would seem to imply that the defendant should return it; but where was it to be returned to, and to whom ? To Rawson & Thatcher, at Hornellsville, New York, or to Mr. Day, their agent, and, if to him, at what place ? The evidence shows that Day resided in Lapeer. Should it be returned there, or in the field ? The contract is silent as to the manner and place of delivery, and we cannot say that the defendant was under any obligation to deliver this reaper to the plaintiffs or their agent at the place of residence of either. It was their duty to remedy the difficulty, and, failing so to do, deliver a perfect machine in its place.”

Cheboygan is quite a large town. Where would defendant leave the machine ? In the street ? At the railroad station? We do not think he was required to deliver it there until he had been informed in reply to his inquiry where he should leave it.

It is said the court erred in withdrawing the first note from the consideration of the jury. Defendant claims the proofs show clearly the notes were not transferred until after the first one matured. Whether that is so or not, it is evident from the verdict of the jury that they found the plaintiff was not a bona fide holder of the notes, without notice. There was testimony upon which to base this verdict, and we ought not to disturb it.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    WEST v. PARKINSON.
    1. Certiorari — When Lies.

      Certiorari is a discretionary writ, and ought not to issue unless it is made to appear that injustice has been done.
    3. Same — Vacation of Judgment — Insufficient Showing — Affidavit of Merits.
    Defendant petitioned for a writ of certiorari to set aside a transcript judgment. The affidavit of merits did not allege - that he had fully and fairly stated the facts constituting his defense to his counsel. It also appeared that, on the trial before the justice, he declined to put in any defense, relying solely upon the fact that his wife was sworn without his consent; but it nowhere appeared what her testimony was. Held, that justice did not require the writ to issue.

      Certiorari by Charles H. Parkinson to vacate a judgment on a transcript in the Wayne circuit court from a judgment in justice’s court, rendered in an action of assumpsit brought by William H. West.
    Submitted April 8, 1902.
    (Docket No. 6.)
    "Writ dismissed April 22, 1902.

      Allan H. Frazer, for appellant.

      James H. Pound, for appellee.
   Moore, J.

This proceeding seeks by the writ of certiorari to set aside a judgment rendered in justice’s court, upon which a transcript has been taken to the circuit court. It is the claim of defendant that his attorney promised to appeal the case to the circuit court, and failed to do so, and that, as a transcript has been taken, it is too late to move in the circuit court for leave to take a special appeal. It is also claimed the judgment is void because the wife of defendant was allowed to testify, contrary to the provisions of section 10213, 3 Comp. Laws.

There are a great many questions raised which we do not deem it necessary to discuss. The allegation of the affidavit as to the testimony of Mrs. Parkinson is as follows :

“That thereafter, and upon the 17th day of August, after issue joined, the cause was duly tried between said parties, and'the plaintiff swore as a witness to support his claim said Mary E. Parkinson, who was, and now is, the lawful wife of your affiant; and such testimony was admitted over the objection of your affiant’s attorney that it was inadmissible as a violation of the statute, being section 10213 of the Compiled Laws of 1897.”

The only allegation in the affidavit in relation to a meritorious defense is as follows:

“Affiant avers that the judgment is a large one for a man of his limited means to be obliged to pay unjustly, and that the claim is unjust and illegal, and that he is advised by counsel that he has a good, sufficient, and meritorious defense to the right of action upon which the judgment is based, and that the admissibility of the testimony of his wife, the said Mary E. Parkinson, is one which affects the merits of the said case, and that he is without remedy unless a writ of certiorari issue to review said judgment.”

It will be noticed that it is nowhere stated in the affidavit what testimony was given by Mrs. Parkinson, nor -does it appear by the record. It may have been testimony that is permitted by the. statute. The affidavit of merits does not show that Mr. Parkinson fully and fairly stated the facts constituting his defense to his counsel. The affidavit shows affirmatively that defendant declined to put in any defense, and rested wholly upon the fact that his wife had erroneously been permitted to testify.

It has been held many times in this court that certiorari is a discretionary writ, and not one of right, and ought not to issue unless it is made to appear that an injustice has been done. In re Lantis, 9 Mich. 324 (80 Am. Dec. 85); Farrell v. Taylor, 12 Mich. 113; Specht v. City of Detroit, 20 Mich. 168; Smith v. Reed, 24 Mich. 240; People v. Wayne County Drain Com'r, 40 Mich. 745; Gager v. Supervisors of Chippewa Co., 47 Mich. 167 (10 N. W. 186); City of Ishpeming v. Maroney, 49 Mich. 226 (13 N. W. 527); Tucker v. Parker, 50 Mich. 5 (14 N. W. 676); White v. Boyce, 88 Mich. 349 (50 N. W. 302); City of Detroit v. Murphy, 95 Mich. 531 (55 N. W. 441); Baudistel v. City of Jackson, 110 Mich. 357 (68 N. W. 292). In this case it has not been made to appear that justice required the issuance of this writ.

The writ of certiorari is dismissed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    AMORY v. WABASH RAILROAD CO.
    1. Passengers — Baggage.
    The baggage which a passenger on a railroad is entitled to have-carried is the articles which are necessary or requisite for his personal convenience.
    2. Merchandise Carried as Baggage — Liability oe Carrier.
    A railroad company is liable for the loss of merchandise carried in the trunks of a passenger as baggage, if it has notice or knowledge of the contents of the trunks.
    3. Same — Evidence—Notice to Carrier.
    Where plaintiff had traveled over defendant’s railroad for several years, carrying merchandise in trunks which were of different style than the ordinary trunks, and the baggage-man knew the plaintiff and his business, and a witness testified that the baggage man said, when the trunks were brought to the depot by an employé of an omnibus line, that the plaintiff fwas a dress man, — he had ladies’ dresses, and brought them over from Paris, — there was evidence tending to show that defendant had knowledge of the character of the contents of the trunks.
    Error to Wayne; Donovan, J.
    Submitted April 10, 1902.
    (Docket No. 43.)
    Decided April 22, 1902.
    Case by William R. Amory against the Wabash Railroad Company to recover the value of goods lost in transit. From a judgment for plaintiff, defendant brings érror.
    Affirmed.
    This is an action to recover the value of merchandise or samples, shipped by plaintiff as a passenger, and lost or stolen in transit.
    In the conduct of his business the past six or seven years, William R. Amory, a ladies’ tailor and milliner of Detroit, had been making semi-annual visits to Paris, to secure the latest fashions, bringing back with him suits, single garments, and millinery. With these he made quarterly trips to St. Louis, Cincinnati, and Cleveland, and occasionally to Chicago, Pittsburg, and Toledo, where he exhibited the samples or models for the purpose of sale, or the taking of orders for duplication. These goods were carried in trunks, originally procured in Paris, of which he had 10, of about the same size, — 3 feet 5 inches long, 1 foot 11 inches wide, 2 feet 9J¿ inches high. On May 13, 1900, he parted from Detroit for St. "Louis, Mo., on one of his trips, with four employes, taking his entire stock of garments and millinery, of a total approximate value of $10,015, packed in six trunks, — five of the same size, and one a little larger, with square top. These were sent to the Union Station baggage room by an omnibus line wagon about 12:30 p. m., receipted for by a porter, and placed upon a transfer truck, where they remained until checked, and loaded on the 3:30 p. m. Wabash train for St. Louis. The party of five persons arrived at the depot about 3 o’clock, and, before boarding the train, Mr. Amory attended personally to the checking of the trunks, going to the baggage room and presenting to the Union Station baggage master five mileage books for their transportation. He said nothing to Baggage Master Jones, who checked the trunks, as to what they contained, and no inquiry was made. If plaintiff had notified Jones of the character and value of the contents of the trunks, or if Jones knew that they contained merchandise, it would have been the duty of Jones, before consenting to check them, to require of Mr. Amory a shipping contract, or release, reading as follows:
    “ In consideration that said company has consented to carry the property covered by this agreement upon its passenger trains, and for a rate based upon the valuation thereof hereinafter given, I agree that the value of said property does not exceed the sum stated, and that no claim beyond its value as herein stated shall be made against said company, or any of its connecting lines, on account of any.injury to, or loss or destruction of, such property from any cause whatéver.”

      For six years Mr. Amory had been making trips with his trunks over this road, four times a year. Jones, the baggage master, had been employed by the defendant in that capacity during all this time. An employé of the omnibus line delivered the trunks, and testified that he said to the employes at the baggage room, to whom he delivered them, that he had six trunks for Mr. Amory, the ladies’ tailor. Mr. McCormick, one of these men, testified that Mr. Jones said to him that “Mr. Amory was a dress man; he had ladies’ dresses, and brought them over from Paris.” The trunks had European baggage stamps on them. At the same time four empty hat boxes were sent with the trunks to the depot, to be sent by express, with the name, business, and address of Mr. Amory upon them.
    The testimony of Mr. Jones is evasive. When asked whether the trunks differed in any way from the.ordinary run of trunks containing baggage, he replied, “Well, I took them to be personal property.” Again, when asked if they differed in their general appearance from ordinary trunks, he replied, “Well, all I could see, some of them had canvas covers on.” Again he said, “They were something like show baggage or family baggage; that is what I took them for.”
    Upon arrival at the Southern Hotel, St. Louis, the following morning, one of the trunks was found to have been broken open, the contents disarranged, and goods to the amount of $385 were missing. Verdict and judgment for plaintiff.

      Thomas W. Parker (Alfred Bussell, of counsel), for appellant.

      E. T. Wood, for appellee.
   Grant, J.

(after stating the facts). Counsel do not disagree as to the law of the case. The statute provides for compensation for transporting any' passenger and his ordinary baggage, not exceeding in weight 150 pounds. 2 Comp. Laws, § 6234, subd. 9. All the authorities agree that the baggage which a passenger is entitled to have carried is the articles which are necessary and requisite for his personal convenience. Story, Bailm. § 499. If a passenger ships merchandise in his trunk without notice to the railroad company, or knowledge on its part, of the contents of the trunk, the company is not responsible for its loss. It is the duty of the passenger to give the carrier notice that his trunk contains merchandise, or things which cannot be included as baggage, unless the carrier has knowledge that the contents of the trunk are not bag-, gage, but merchandise. Knowledge is equivalent to notice. The question, therefore, is, in this case, Was there any probative testimony from which a jury could infer that Mr. Jones, the agent of the defendant, knew that these trunks contained merchandise ?

We think this question must be answered in the affirmative. If the jury believed Mr. McCormick, Mr. Jones did know that Mr. Amory’s trunks contained merchandise, and that he was transporting such merchandise for business purposes. Were it not for the testimony of Mr. McCormick, the question would be more doubtful. But, in connection with that, the fact that Mr. Amory had traveled over this road so often for several years, using these same trunks; that they were delivered by an employe of the omnibus line as the trunks of Mr. Amory, the •ladies’ tailor; that Mr. Jones knew Mr. Amory and his business; and the large and uniform size of the trunks,— were competent for the jury to consider in connection with Mr. McCormick’s testimony in determining Jones’ knowledge of the character of the contents of the trunks. Sloman v. Railway Co., 67 N. Y. 208; Jacobs v. Tutt, 33 Fed. 412; Hannibal Railroad v. Swift, 12 Wall. 262; 2 Fetter, Carr. Pass. § 606; Ft. Worth, etc., R. Co. v. Rosenthal Millinery Co., (Tex. Civ. App.) 29 S. W. 196; Oakes v. Railroad Co., 20 Or. 392 (26 Pac. 230, 12 L. R. A. 318, 33 Am. St. Rep. 136). See, also, Lake Shore, etc., R. Co. v. Hochstim, 67 Ill. App. 514.

Judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Long, J.

text:
    PARKHURST v. TRUMBULL.
    Will-Power to Sell — Mortgage.
    A clause in a will giving the executor power to sell real estate devised to others does not authorize him to mortgage the property.
    Appeal from Eaton; Smith, J.
    Submitted November 15, 1901.
    (Docket No. 218.)
    Decided April 25, 1902.
    Bill by John D. Parbhurst against Sarah Ann Trumbull, Albert D. Trumbull, Jr., and Benajah W. Warren, to foreclose a mortgage. From a decree for complainant, defendants Trumbull appeal.
    Reversed.

      J. M. G. Smith, for complainant.

      W. A. Goutts, for appellants.
   Long, J.

The bill in this cause was filed to foreclose a mortgage given by Benajah W. Warren, as executor of the estate of Drayton E. Trumbull, deceased, to the complainant, on the 38th day of July, 1898, for the sum of $300. It appears that Drayton E. Trumbull died testate June 3, 1885, leaving surviving him a widow, Sarah Ann Trumbull; a son, Albert D. Trumbull; two daughters, Sarah Ann Herrick and Clarissa M. Herrick; and a grandson, Albert D. Trumbull, Jr. By the terms of his will he first gave to his wife all his real and personal es-bate for and during her natural life. It was also his express will and desire that his property should be and remain in the hands of his executor, in trust for the purposes mentioned in the will. To his son, Albert D. Trumbull, he gave his wearing apparel and a note of $50. To his daughters he gave each $1. The fifth clause of the will provides:

“ I give, devise, and bequeath to my grandson, and the son of Albert D. Trumbull, all the rest and residue of my estate after the decease of my said wife, Sarah Ann Trumbull; and for the purpose of carrying out my wishes I hereby direct my executor hereinafter named to dispose of all my estate, both real and personal, in such manner as may seem best to him, either at public or private sale, and the proceeds of the same be used for the support of my said wife in comfortable circumstances as the estate will permit.”

Benajah W. Warren was named as executor.

The inventory of the estate showed $1,300 in realty, and $1,155.80 in personalty. September 13, 1898, the executor filed his final account with the judge of probate, which showed the following among other items: “Cash on mortgage in question, $300. ” It appears that the executor, without any order of the court, made, executed, and delivered to the complainant the mortgage in controversy. It is shown that most of the money raised from the mortgage was paid over to the widow.

The contentions of the defendants are:

1. That this mortgage is absolutely void, the executor having no power or authority under the will to mortgage real estate.
3. That Sarah Ann Trumbull and Albert D. Trumbull, Jr., the appealing defendants, were the only persons interested in the land; that the legacies have been paid, and they, as devisees, elected to take the land, rather than its proceeds, and forbade its sale under the power to sell contained in the will.
3. That the land was occupied by the widow as her homestead.

Under the power contained in the will to dispose of the estate, both real and personal, either at public or private sale, we think the executor had no power to mortgage, ít was held in Jeffrey v. Hursh, 49 Mich. 31 (12 N. W. 898), that a power of attorney to sell land does not authorize the attorney to mortgage it. In Hannah v. Carnahan, 65 Mich. 601 (32 N. W. 835), it appeared that a wife-conveyed certain real estate to her husband in trust for their minor children, declaring the conveyance to be for their use and benefit, and that of their heirs and assigns,, forever. The husband was authorized to sell and convey the property, in his discretion, and to reinvest the moneys received on such sale for the benefit of the children; and, in case he survived his wife, to control and govern the property the same as if he held it in fee. After the death of the wife the husband sold the land, and invested a portion of the proceeds in part payment for other property,, securing the balance of the purchase price by a mortgage on the land, which he afterwards incumbered by a second mortgage to the same mortgagee to secure a loan of $600, which sum he used and lost in his business. All of the deeds and mortgages were duly recorded. No charge of fraud or collusion on the part of the mortgagee was claimed. In a proceeding to foreclose both mortgages the court below allowed a foreclosure of the purchase-money mortgage, and decreed the second mortgage void. In affirming this decree, it was held by this court that the wife did not intend to give the husband unlimited control of the property, but he was to hold it expressly in trust, which trust appeared plainly on the face of his deed, and must be considered notice to the mortgagee; consequently that, the purchase price of the premises bought with a portion of the trust fund not exceeding such fund, the purchase-price mortgage was an investment warranted under the • trust; but, had such price been in excess of the fund, such investment would have plainly exceeded the power of the trustee.

In Penfold v. Warner, 96 Mich. 179 (55 N. W. 680, 35 Am. St. Rep. 591), it was held that a power of attorney to sell and convey land will be strictly construed, and cannot be enlarged by construction.

The leading case in this country upon this subject is Bloomer v. Waldron, 3 Hill, 364. There the testator devised particular estates for life to his wife and one Pelletreau, successively, for their support and maintenance, and for the support and maintenance of his wife’s three daughters, with remainder to the three daughters in fee. He then gave a power, first, to his wife, and afterwards to Pelletreau, to sell the land, and invest the money arising from the sale for the support of the parties aforesaid; the power to be exercised only upon the written consent of Aaron Burr. Under this power the widow, with the consent of Aaron Burr, executed a mortgage for the support of herself, her three daughters, and Pelletreau. The court held, after a full review of the authorities, that the mortgage was void as against the fee tenants.

The above case was followed by the supreme court of Missouri in the case of Price v. Courtney, 87 Mo. 387 (56 Am. Rep. 453). In that case the testatrix appointed her husband her executor, and devised and bequeathed all of her property to him in trust for their children, with full power to carry on her business, and to sell and convey, etc. The will also contained the following:

“ It is my desire that in and about the entire management and control of my said property that the said Courtney shall have full power to do with the same as I would were I living.”

It was held that the will gave the executor no power to mortgage the property.

These cases were expressly approved and followed in Hannah v. Carnahan, supra.

It is provided by the statute of this State (section 8840, 3 Comp. Laws) that:

“ A devise of lands to executors or other trustees to be sold or mortgaged, when such trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees, but the trust shall be valid as a power, and the lands shall descend to their heirs, or pass to the devisees of the testator, subject to the execution of the power.”

This statute was copied from New York. In Delafield v. White, 19 Abb. N. C. 104, it appeared that a testatrix devised all her lands to her executors, in trust for certain purposes therein named. By a subsequent clause she gave certain parcels to two nieces for life, with remainder over. Finally the will empowered the executors to sell the property whenever, in their judgment, they should deem it best, and invest the proceeds, and pay the income to the two nieces, and, upon the death of either, to pay her share of the principal as above directed. It was held that, under the above statute, the executors took a mere naked power to sell.

It appears in the present case that the land is not even devised to the executor. It is expressly devised to Sarah Ann Trumbull for life, with remainder to Albert D. Trumbull, Jr. Warren, the executor, had but a mere naked power in trust to sell. As was said in Bennett v. Chapin, 77 Mich. 538 (43 N. W. 896, 7 L. R. A. 377):

“It is well settled that, when a bare power of sale is given to the executors merely to sell the lands for the purpose of paying over the proceeds to devisees, whose right, under the will, to such proceeds, is an absolute and vested right, all such devisees may collectively, before the power of sale is exercised, elect to take the land, instead of the proceeds, and thus prevent a sale.”

Here it is shown that Sarah Ann Trumbull objected from time to time to the selling of the lands; but it appears the executor had advanced her $115, and, finding that she would not consent to a sale of the lands, placed the mortgage on them for the $200, and repaid himself the $115 which he had loaned her.

The court below awarded decree of foreclosure. This decree must be reversed, and a decree rendered in this court dismissing complainant’s bill, with costs of both courts.

The other Justices concurred.


text:
    ALPENA ELECTRIC LIGHT CO. v. CITY OF ALPENA.
    Electric Light Companies — Ordinances—Liability of City After Expiration of Contract.
    A city ordinance provided that an electric light company should erect and maintain such street lights as the council should order, and that the city should pay the contract rate agreed on for lights so furnished. The city reserved the right to amend or change any provision of the ordinance, except that permission to use the streets should not be withdrawn. The company might abandon its rights and privileges on giving six months’ notice. A contract was made to furnish lights at a certain rate for five years. The city refused to pay for lights after the expiration of the contract, but the company continued to furnish lights, claiming the right to recover the former contract price. Held, that the company could not recover for lights furnished after the city refused to pay.
    Error to Alpena; Emerick, J.
    Submitted November 12, 1901.
    (Docket No. 93.)
    Decided April 25, 1902.

      Assumpsit by the Alpena Electric Light Company against the city of Alpena to recover for public lighting. From a judgment for plaintiff, on verdict directed by the court, for less than the amount claimed, it brings error.
    Affirmed.

      Joseph H. Cobb (B. J. Kelley, of counsel), for appellant.

      I. 8. Canfield and C. B. Henry, for appellee.
   Long, J.

The plaintiff company was incorporated under the laws of this State in 1882 for the purpose of manufacturing and generating electricity for commercial and lighting purposes. In 1883 it entered into a contract with the city of Alpena to furnish 16 street lights, and not to exceed 4 additional ones, at a price named. This contract was to continue for two years. From the date of this contract until October 20, 1890, the plaintiff company, by similar arrangement, continued to furnish street lights for the city at a price mutually agreed upon from time to time. During all this time the plaintiff company had no franchise, by ordinance or otherwise, from the city, for occupying its streets, public grounds, and buildings for the purpose of lighting; nor did it have any incandescent works or plant for the purpose of furnishing lighting to the inhabitants of the city.

On October 20, 1890, a franchise was granted, by ordinance, to the Thomson-Houston Electric Company and its assigns, which was duly accepted in writing by said company on October 29th, and was on the same day duly assigned by said Thomson-Houston Electric Company to the plaintiff. It appears from the record here that from the last-named date the city has ’treated the Alpena Electric Light Company as entitled to all the rights and privileges under said franchise. It also appears that, when the plaintiff company acquired the rights and privileges under said ordinance, it had but a small arc-lighting plant, sufficient to carry only about 20 lights,- but that it immediately set about enlarging its works, and continued them until completed, not only extending the arc-light plant, but providing an incandescent plant capable of supplying the inhabitants of the city, then numbering from 10,000 to 15,-000 people. It also appears that under the ordinance the city has from time to time directed the installing of street lights at different points in said city, until the plaintiff company has established some 44 lights, and constructed several miles of light wires.

■ In July, 1894, the common council of the city, by resolution, agreed with the plaintiff company upon a price for street lights for the period of five years from the 1st day of July, 1894; fixing it at $75 per light for all lights then installed, and such as should thereafter be installed. Under this arrangement the company furnished lights both to the inhabitants and the city, and installed such lights as were ordered. At the expiration of this contract the parties were unable to agree upon a price to be paid for lights, and the city thereupon refused to pay for any streetlights after July 1, 1899, unless the plaintiff accepted a contract to supply said lights at $50 per light. The plaintiff company declined to accept this proposition, but has continued to furnish the 44 street lights which it had installed, and presented its claim for payment therefor to the common council at the rate of $75 per light. This the city refused to pay; the city contending that it was not liable for any sum whatever after the 14th day of August, 1899, — that being the date at which it refused to pay for further street lighting.

The court directed the jury to find a verdict for the plaintiff for the sum of $444.56, being the price of furnishing 44 street lights for the period from the 1st day of July, 1899, to the 14th day of August in the same year, at $75 per light, and interest on the same to the date of the verdict. The court also directed the jury that the plaintiff could not recover for furnishing any lights since that date. The plaintiff brings error.

The ordinance passed on October 30, 1890, and which was assigned to the plaintiff thereafter, is called “ Ordinance No. 43;” and under this, and the dealings between the parties since that time, the plaintiff contends:

_ 1. That the city is bound, during the lifetime of plaintiff’s franchise, to take and pay for such street lights as the city ordered installed.
3. That, a reasonable price having once been, fixed by the parties for street lights, it must continue until changed by mutual agreement, or, in case a mutual agreement cannot be arrived at between the parties, it must continue until the dissatisfied party moves in a judicial proceeding to have a price fixed which shall be deemed reasonable.
3. That the plaintiff in this action is entitled to recover a reasonable price for street lights actually furnished from July 1, 1899, to January 1, 1901.

We think the ordinance cannot be so construed. Section 8 of the ordinance requires that:

The said electric company shall erect and maintain such street or other lights as the council may from time to time order, and shall furnish such light or lights within a reasonable time from the date of notice received by it of the action of the common council relating thereto: Provided, that the city shall pay the contract rate agreed on by said electric company for all lights so furnished.”

Section 9 provides:

“ The provision of section number one of this ordinance, relative to the permission for the occupancy of the streets, shall not be repealed or consent withdrawn without the consent of said electric company; but the common council hereby expressly reserves the right to amend or change the provisions of this ordinance in all other respects as in their judgment the public good may demand. ”

Section 10 provides :

“ The said electric company may at any time abandon the rights and privileges herein granted, restoring the grounds and streets occupied by them to their former condition : Provided, that six months’ previous notice shall be given to the council by said electric company of their intention to enter on such abandonment, and all city lights shall be maintained by them till the expiration of said six months, providing the council so order. A failure to give such notice, or to maintain the lights ordered by the common council or private individuals, either under the provisions of this section, this ordinance, or by virtue of contract made by said electric company with the city or individuals, shall render the permission and authority as specified in section one of this ordinance null and void at the option of the common council.”

It is apparent from a reading of the ordinance that the price to be paid by the city was left by the ordinance to an agreement or contract thereafter to be entered into between the city and the company; and the mere fact that a contract or contracts had been made fixing the price at $75 per light would not bind the city to continue to take lights atthat rate for the entire lifetime of the franchise, to wit, for 30 years from 1890. The ordinance itself contains no contract or agreement binding the city to take lights at any price for any definite time.

We think the court was not in error in his direction to the jury. The judgment must be affirmed.

The other Justices concurred.