author: Stone, J.

text:
    STORY & CLARK PIANO CO. v. HILDERINK.
    1. Taxation — Increase by Board oe Review — Record—Clerk— Memoranda.
    In making changes increasing the amount of property taxed, or assessed valuations, the board of review of a city, in the absence of the clerk, substantially complied with the requirements of the statute by directing one of the members to keep minutes, which he preserved in the form of rough memoranda, later filed with the clerk and prepared in typewritten form for permanent record in his office by the clerk (1 Comp. Laws, § 3323; 2 How. Stat. [2d Ed.] § 5853), where the memoranda, considered with the tax rolls, showed the changes so made, and where the amount of increase could be ascertained by computation, although the records did not show item by item the several amounts that the board added to or deducted from the valuations as fixed by the supervisors.
    2. Same — Prejudicial Errors — Statutes.
    No sufficient prejudice resulted to the taxpayer who ascertained the amount of increase and the fact of change from the rolls and memoranda kept by the board, and who was sufficiently informed to be able to file a protest;, the tax being presumed to be valid under 1 Comp. Laws, § .3922 (1 How. Stat. [2d Ed.] § 1870), and unless the irregularity was of a jurisdictional nature the statute cured the defect.
    3. Same — Assessment—Cities—Municipal Corporations.
    Only if the official action can be shown to have been fraudulent could the court hold the tax illegal, and the fraud must be clearly established. 3 Comp. Laws, § 3899.
    4. Same — Intent—Statutes.
    Evidence considered and held not to establish the claim that the assessors or board of review had omitted any property from the tax roll intentionally.
    Appeal from Ottawa; Cross, J.
    Submitted October 8, 1915.
    (Docket No. 29.)
    Decided December 21, 1915.

      Bill by the Story & Clark Piano Company against G„ J. Hilderink, one of the supervisors of the county of Ottawa, for an injunction. From a decree for defendant, complainant appeals.
    Affirmed.

      Lillie <fe Lillie, for complainant.

      Louis H. Osterhous', for defendant.
   Stone, J.

In this case the bill of complaint was filed July 7, 1914, to obtain an injunction to restrain the defendant as the supervisor of the First ward of the city of Grand Haven, from spreading taxes upon the property of complainant on the valuations fixed by the board of review, or on a valuation in excess of that placed thereon by defendant as supervisor. The complainant is a foreign corporation engaged in the manufacture of pianos and player pianos in said city — the same being a city of the fourth class — and having a factory in the First ward thereof. Defendant was, in the year 1914, supervisor of that ward, and as such assessed the real estate of the complainant at $72,000, and its personal property at $59,000, when he made up his assessment roll in the month of April. The board of review of the city met on the second Monday of May and remained in session 24 days thereafter, reviewing the rolls, examining the property throughout the city, and revising the tax rolls as prepared by the supervisors. At its session of June 11, 1914, the board of review, among other actions, increased the assessed valuation of complainant’s real estate to $100,000, and the assessed valuation of its personal property to $100,000. On June 12th, the complainant filed with the board its protest against such increases, which protest was considered by the board on June 13th, and rejected. This protest is set forth in full in the bill of complaint. Thereafter this bill was filed.

We shall consider the claims of complainant in the ■order in which they were treated by the court below. There are three principal propositions:

(1) The claim that the board of review did not keep a suitable record of its proceedings, and that its action was therefore without jurisdiction and void.
(2) The claim that the valuations placed on the real estate and the personal property by the board of review are excessive.
(3) The claim that the supervisors and the board of review omitted from the tax rolls more than $100,-000 in assessable property in the form of household goods, furniture, etc., thereby causing complainant to bear more than its just share of the burden of taxation.

There is in the bill of complaint no express charge that the board acted fraudulently or with any improper intention or purpose. The bill does claim, however, that the action of the board of review under the second and third headings constituted a fraud on complainant and wrongfully and fraudulently would compel complainant to pay more than its just share of taxes in the said city; and, generally, that the action of said board of review «constituted a fraud in law against complainant, which, if not remedied, would compel complainant to pay more than its just share of the burden of taxation in said city. The case, being at issue, was heard, by the trial judge, upon the testimony taken in open court as in a suit at law. The hearing resulted in a decree dismissing the bill of complaint with costs to the defendant. The complainant has appealed.

The record is a voluminous one, for the reason that about 50 witnesses were sworn upon the question of the omission of personal property from the roll. We have read the record with care, and in disposing of the case shall not quote therefrom at any great length.

1. We will consider the claim that the board of review did not keep a sufficient and suitable record of its proceedings. During the progress of the work of the board, one of its members, in the absence of the clerk, kept what might be termed rough minutes or memoranda of its proceedings. They were afterwards filed, with the city clerk, and from them the clerk made up a permanent typewritten record to remain in his office, as.' testified to by him. It appears in evidence-that on June 11th the board acted on the assessments of what are termed manufacturing properties of the city, including complainant’s property. At that time the condition of the roll was as above stated in so far as it relates to complainant’s property. On this day a motion was made to increase the real estate assessment to $100,000, and a further motion was made to increase the personal property assessment of the complainant to $100,000, also. The evidence shows that the roll was called by the chairman, and all the members of the board voted, “Yes.” It further appears that, at the time, the supervisor of the First ward entered in his assessment roll, in the proper columns, the true cash value of the real estate as fixed by the board of review at $100,000, and the same amount as fixed by the board on the personal property. So far as it affected this property, the memorandum was as follows:

Story & Clark Real ........................... $100,000

Personal ....................... 100,000

$200,000

All yes on roll call.

This memorandum of the proceeding was filed with the clerk, as above stated, and from it he made the following permanent typewritten record:

“Moved and supported that Story & Clark Piano Company’s personal assessment be placed at $100,000 and the real at $100,000. Total $200,000. Which motion was carried.”

On June 11th, the attorney for complainant was notified of the board’s action, appeared at the board meeting, examined the rolls, noted the action of the board in increasing the valuations of complainant’s property, and announced that he would file a protest. On June 12th, the same attorney filed with the board a long protest in writing signed by complainant, and, as we have above stated, on June 13th, this protest was considered by the board and rejected.

Upon the foregoing facts, complainant insists that the action of the board of review in increasing the valuation of its property was without jurisdiction, and was void, because the record of its proceedings kept by such board did not comply with the statute.

Section 3323, 1 Comp. Laws, (2 How. Stat. [2d Ed.] § 5853), relates to the assessment and collection of taxes in fourth-class cities. That section requires the board to keep a record of their proceedings and of changes, made in such rolls, and provides that the amounts added to, or deducted from, the total valuation in each ward, shall be entered upon such record, which record shall be deposited with the city clerk, who shall be clerk of said board.

It is, the claim of the defendant that the record kept by the board sufficiently meets the requirements of the statute referred to, and it is urged that the record consists, not only of the brief memorandum complained of, but also of the tax rolls, in which, as each assessment was considered and acted upon, a supervisor set down in the proper column the valuation agreed upon by the board of review. The completed rolls, with the changes made, were duly indorsed by the clerk, and the minutes or memoranda of the proceedings were afterwards filed with the city clerk, and from them the permanent typewritten record was afterwards made by the clerk for his files. It is true that these records do not show, item by item, the several amounts added to or deducted from the supervisors’ valuations; but these amounts can be ascertained by computation, and in our opinion this makes a sufficient record, and is a substantial compliance with the statute. Auditor General v. Ayer, 109 Mich. 694 (67 N. W. 985); Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881); Auditor General v. Ayer, 122 Mich. 136 (80 N. W. 997).

The real purpose of the law requiring the keeping of a record is, of course, to enable interested taxpayers, by an examination thereof, to learn what the board of review has done. . Certainly, under the evidence in this case, this record was sufficient to inform the attorney for complainant of what had been done, because we find him promptly filing a protest against the action of the board. Under the statute referred to, when reviewed and certified to, as the roll in question was, it must be conclusively presumed by all courts and tribunals to be valid, and cannot be set aside except for causes mentioned in the general tax law of the State (section 3899, 1 Comp. Laws) relative to the assessment of property and the levy and collection of taxes thereon; and failure of the board of review to keep a record of its proceedings is not one of the causes mentioned in the statute.

Another reason is that, by statute (section 3922, 1 Comp. Laws [1 How. Stat. (2d Ed.) § 1870]) it is provided that no tax assessed upon any property shall be held invalid by any court on account of any irregularity in any assessment, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding, that does not prejudice the property rights of the person whose property is taxed.

This is a curative statute, and, while it cannot cure want of jurisdiction, yet irregularities and omissions which are not jurisdictional, and do not prejudice the property owner, will not void the tax. In our opinion the above statute applies to the failure of the board of review to keep a record of its proceedings. Auditor General v. Iron Co., 132 Mich. 454 (93 N. W. 1080). In that case the single question was presented whether failure of the board of review to keep a record of its proceedings rendered the tax spread upon the roll invalid as against one who had suffered no injury by reason of such omission, and it was held that it did not. It is true that in that case the taxpayer’s property was reduced in value by the board of review, but the point decided was that failure to keep a record would not invalidate the tax where the taxpayer was not injured or prejudiced by the omission to keep such a record; and we think, under the evidence in this case, the complainant was not injured or prejudiced by such claimed omission. Upon this branch of the case the trial court, in its findings, said:

“The proofs show that the board of review kept a record of its proceedings, but it is the claim of the complainant that the record is insufficient to show what action was taken by the board of review. After the board of review raised the valuation of the property of the complainant, the complainant was notified of its action, and complainant filed a protest with the board of review. The protest is set forth in paragraph 6 of the bill of complaint, and fully sets forth the action of the board of review in so far as the proceedings affected the property of the complainant. The protest clearly shows that the complainant had full and complete knowledge of the action of the board of review, and complainant cannot now complain that the record was insufficient to give complainant the desired information.”

We agree with the conclusion reached by the trial judge upon this branch of the case.

2. We will next consider the claim that the valuations placed upon both real estate and personal property by the board of review were excessive. This claim was made by the protest filed. It is worthy of suggestion that, upon the trial of this case, none of the officers or employees of the complainant was produced and sworn as a witness. Neither did the officers present before the board of review, although requested to do so, their inventory and appraisahof the property, both real and personal, or their insurance policies.

It is urged strenuously by counsel for the complainant, in their brief, that the members of the board of review acted, not only carelessly but recklessly, and that such board exercised no proper judgment and followed no proper method in arriving at the valuation of complainant’s property. As we have said, nowhere have they charged fraud or discrimination, or an intentional overvaluation by the members of the board of review.

We have examined with great care the testimony on this branch of the case, and we fail to find any evidence that weakens the testimony of the members of the board, who were sworn, that they exercised their best judgment as to the value of the real estate. And, as to the personal property, there had been a showing that the inventory value of complainant’s personal property on January 1, 1914, was $143,000; that this personal property had been reduced $40,000 since the first of the year; leaving a balance on hand in April; 1914, of $103,000. It is true that complainant asked that this be reduced, but in our judgment it failed to produce any adequate evidence to warrant such reduction, and there is nothing in the record to show that the board of review did not act 'in the utmost good faith in making the assessment of both real estate and personal property. The property of complainant was not the only property the valuation of which was in-' creased. Its assessed value was increased 53 per cent. Nine or ten other manufacturing properties were increased above the assessed valuations, ranging from 24 per cent, to 265 per cent. The statute provides that the valuation fixed by the board of review must be conclusively held by the courts and tribunals to' be valid, unless it is proved that the board acted without jurisdiction, or fraudulently. Section 3899, supra.

This court has held that, before a court is justified in holding a tax to be illegal because the supervisor or the board of review acted fraudulently, that fact should be clearly shown by the evidence. Williams v. City of Saginaw, 51 Mich. 120 (16 N. W. 260); Peninsula Iron, etc., Co. v. Township of Crystal Falls, 60 Mich. 510 (27 N. W. 666); Brown v. City of Grand Rapids, 83 Mich. 101 (47 N. W. 117); Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430 (74 N. W. 700); Aurora Iron, etc., Co. v. City of Ironwood, 119 Mich. 325 (78 N. W. 126); Power v. City of Detroit, 139 Mich. 30 (102 N. W. 288, 5 Am. & Eng. Ann. Cas. 645); Island Mill Lumber Co. v. City of Alpena, 176 Mich. 575 (142 N. W. 770).

We think the trial court was justified in its finding upon this branch of the case wherein it said:

“The bill of complaint does not allege that the board of review acted fraudulently, from improper motives, or that the valuations were purposely made too high through prejudice, or a reckless disregard of duty. The proofs show that the board of review acted fairly, honestly, and in good faith, and that their only purpose was to fully perform the trust that had been conferred upon them as public officials, that they honestly believed that the property was really worth what it was assessed by them, and that they acted in good faith, in the exercise of their best judgment, in fixing the valuations.”

3. This brings us to consider the claim that the supervisors and the board, of review omitted from the tax rolls more than $100,000 of assessable property in the form of household goods, furniture, etc., thereby causing complainant to bear more than its just share and burden of taxation. In support of its claim the complainant called the four supervisors of the city. We have examined their testimony with care and are impressed with the candor of it. Complainant then called about 50 witnesses, residents of the city, and we have laboriously gone through their testimony. Counsel for appellant have, in their brief, tabulated this testimony; but we are not satisfied with the conclusion there reached. We think the conclusion is not warranted by the testimony of the witnesses. Many of them testified to insurance upon their personal property, household furniture, etc., in larger sums than the value would warrant. In many instances the witnesses testified that their household goods and effects had been in use for many years, and while the insurance was in excess of $500, the exempted amount, yet they testified that in all probability their household goods and effects would not sell for more than $500. In some instances the witnesses had been requested to make statements, and had made statements of their taxable property, omitting household furniture and effects. Two of the supervisors testified that the residents of their wards were laboring people, and they did not believe that they had household goods of a value in excess of $500. That the testimony of these witnesses does not warrant the claim put forth for it, by appellant’s counsel, is evident from the cross-examination of one of them, wherein the following occurred:

“Q. Are the witnesses in this case, Mr. Lillie, that you have subpoenaed and produced, practically all of the residents of this city whom you think might have taxable property?
“A. No, not a quarter of them; and, if the balance of them would come in and swear as some of them have here, I think there would be too many donations that would be required to be taken up, to have them have something in their home to use.
“Q. The witnesses whom you have subpcenaed are some of the leading citizens and leading business men of the city?
“A. Yes, sir.
“Q. You selected them as at least fair samples, or fair representatives, of the better or higher class of householders in the city?
“A. I selected them because I believed that they would have more than some other people here that I knew. Some of them, of course, I was mistaken in; some of the wealthy class haven’t got as much as some of the poor men sworn here.”

We can only consider the testimony as it stands, whether disappointing to counsel or not.

We are not satisfied that any considerable amount of property liable to taxation was omitted from the rolls in the city of Grand Haven, and we say this after carefully reading the entire testimony. We have looked in vain in this record for any claim made by complainant, or its. attorney, before the board, of undervaluations, or any failure to place on the rolls assessable property of any kind. The protest filed in no manner refers to the subject.

This court held, in Fletcher Paper Co. v. City of Alpena, 172 Mich. 35 (137 N. W. 640), that before resorting to either recover taxes paid, or to avoid taxes on the theory that the property of another had been undervalued or omitted from the rolls, the taxpayer must appear before the board of review and complain that other property was assessed too low, or omitted entirely. We think a complete answer to complainant’s claim upon this branch of the case is that it has wholly failed to prove even an inadvertent, unintentional omission from the tax rolls of household goods, furniture, etc., liable to assessment, in any appreciable amount at least, and we are constrained to hold that there is no evidence that any supervisor or member of the board of review intentionally or fraudulently, or intending or desiring to discriminate in any way, omitted from the tax rolls any taxable property; and all of these things complainant is bound to prove before it is entitled to relief.

There is a class of cases in this State where relief has been granted. They are cases in which the taxpayer was held justly to complain; where there was a studied effort or combination on the part of the assessing officers to shift taxation from one class to another, or where the officers designedly discriminated against certain property owners in favor of others, or where large amounts and values of property were designedly left off the rolls. Some of these cases are the following: Merrill v. Humphrey, 24 Mich. 170; Walsh v. King, 74 Mich. 350 (41 N. W. 1080); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Auditor General v. Jenkinson, 90 Mich. 523 (51 N. W. 643); Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058); Auditor General v. Iron Co., 123 Mich. 521 (82 N. W. 260); Fletcher Paper Co. v. City of Alpena, 160 Mich. 462 (125 N. W. 405).

Upon the other hand, this court held, in City of Muskegon v. Boyce, 123 Mich. 535 (82 N. W. 264), that the mere fact that some of the property upon an assessment roll was undervalued, or that taxable property was omitted from the roll, was insufficient to invalidate an assessment; but to have that effect it must also be made to appear that such action on the part of the assessing officer was intentional, and that the person complaining was thereby compelled to pay more than his just proportion of taxes. Neither of these two essential elements was proved to be present in the instant case.

We think the court below reached the correct conclusion wherein it said:

“The proofs fail to show that personal property was intentionally left off from the assessment roll by the board of review. An examinatioñ of the testimony in the case will convince any one that men differ in judgment as to the value , of household goods, but the testimony fails to show that the board of review acted fraudulently or with any design or intention to omit any personal property from the assessment roll. They acted fairly, and exercised their best judgment, and attempted to fully perform their duties, and the complainant has failed to make- out a case for relief.”

The decree below is affirmed, with costs to the defendant.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    ELSEY v. J. L. HUDSON CO.
    1. Negligence — Licensee—Evidence—Elevators.
    Evidence that plaintiff, who was lawfully in the store of defendant, entered its elevator to be carried up, when it dropped about four feet, causing a passenger on the point of entering to fall against and injure plaintiff, who was unable to produce any testimony to establish the cause of the accident except proof of a statement by defendant that the car fell because Some one jostled the arm of the operator, and made the machine descend, was not sufficient proof of a negligent cause to require the court to take the verdict of the jury.

    2. Same — Res Ipsa Loquitur — Presumptions.
    No presumption of negligence arose by reason of the mere falling of the elevator; proof of negligent conduct of the proprietor was necessary to raise an issue for the jury.

      Error to Wayne; Shepherd, J., presiding.
    Submitted October 6, 1915.
    (Docket No. 16.)
    Decided December 21, 1915.
    Case by Elizabeth E. Elsey against the J. L. Hudson Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      Douglas, Eaman & Barbour, for appellee.

      On liability for injury to elevator passenger see notes in 25 L. R. A. 33, 2 L. R. A. (N. S.) 744, L. R. A. 1915E, 722,
      As to presumption of negligence from injury to passenger on elevator, see notes in 13 L. R. A. (IN. S.) 619, 29 L. R. A. (N. S.) 816.

      On storekeeper’s liability to customer for injury by defective elevator, see note in 21 L. R. A. (N. S.) 461.

   Stone, J.

This is an action on the case for damages, occasioned by the alleged negligent drop of an elevator in the store of defendant, causing injury to the plaintiff. On Saturday, November 30, 1912, the plaintiff, while upon a shopping tour, entered the defendant’s elevator on the main or ground floor of the defendant’s store in the city of Detroit. She desired to go up. The elevator had come from the basement, was even with the store floor, and the conductor or operator announced that it was going up. This elevator was of the Otis plunger type, operated by hydraulic power. It was capable of carrying 30 persons comfortably, and at the time of the accident there were 10 or more people in the car. The plaintiff had been a frequent customer at the store, and she entered the elevator without mishap and was awaiting the lifting of the elevator. While the elevator conductor stood in his proper place, holding the controller as usual, the elevator dropped about four feet. The drop of the elevator caused a large woman, who was entering at that instant, to fall and strike the plaintiff on the head, resulting in the injuries complained of.

There were two counts in the declaration. In the first count, after stating the duty of the defendant, it was alleged that:

It “did not use due and proper care to provide and maintain reasonably safe and suitable machinery, wires, cables, ropes, pulleys, and other appliances for the operation of said elevator, as aforesaid; that is to say, the ropes, cables, and pulleys then used by said defendant in the operation of said elevator were old, worn out, and rotten, and were wholly unsafe, unfit, and unsuitable for the operation of said elevator, and the operator in charge thereof was an incompetent boy.”

In the second count, after alleging the duty of the •defendant, the following allegation appears:

“Yet the said defendant, disregarding its said duties, did not maintain said elevator in a reasonably safe condition for use, and did not employ a competent operator, and did overcrowd and overload the same, ■and did not have the machinery, levers, brakes, safety catches, and other machinery and appliances connected with said elevator and a part thereof in a reasonably safe condition, and did not properly care for passengers in said elevator, nor guard them from danger, and did not have a competent person in charge of said elevator to start and stop the same, so that passengers might be safely carried therein, and safely enter and leave the same, nor did it have a competent superintendent, or starter, to regulate the proper number of passengers allowed to enter said elevator at any one time, and especially at the time said plaintiff was a passenger therein, and did not have said elevator suitably, and frequently inspected by competent inspectors, and did not have the-same inspected by the superintendent of public buildings of Detroit, and did not report to said department a full account and description of said elevator and the date of its installation within 90 days after July 12, 1912, and did not have said elevator equipped with proper brakes and safety catches, nor did it immediately report said accident of November 30, 1912, to said department of public buildings, nor did it ever make the full report required by”

—an ordinance of said city approved June 12, 1912. It was further alleged that the plaintiff’s injury could only have been caused by the failure and negligence of said defendant to have-a proper elevator in reasonably safe condition, run by a competent operator, and that the occurrence of said accident, in and of itself, showed defendant’s negligence.

At the close of plaintiff’s case, the trial court, on motion of the defendant, directed the jury to return a verdict for the defendant, upon the ground that there was no evidence of any negligence of the defendant, and that the plaintiff had not presented such a case as entitled her to a verdict. A verdict and judgment for the defendant followed.

There was a motion for a new trial upon the following grounds:

(1) Because the court erred in directing a verdict for the defendant.
(2) Because the court erred in following a rule of decision in this State, that negligence could not be presumed from the happening of an accident, instead of following the exception to that rule, that in a case like this negligence might be presumed from the happening of the accident, and it was not the duty of the plaintiff to point out exactly how the accident occurred.
(3) Because the court erred in refusing a continuance of the case from November 19th in the afternoon to November 20th in the morning, in order to obtain the testimony of the defendant’s servant who operated the elevator at the time of the accident.
(4) Because it was a question of fact for the jury whether defendant was guilty of negligence.

After a careful reading of all of the evidence in the case, we are constrained to hold that no cause was shown why the elevator dropped. All of the witnesses to the accident, who testified, stated that they did not know what caused the elevator to descend. The plaintiff’s daughter, who was present, testified that the conductor did not start it. There was no evidence tending to show a probable reason for the falling of the elevator. The man who acted as the starter of the elevator, and who was directly in front of and in charge of the elevator, testified that such a drop might be caused by the breaking of the pin of the neutral control, or by the absence of a spring, or by lowering of the water pressure. He further testified that the elevator conductor was at his proper place and was attentive. He testified:

“I saw the elevator drop, but I don’t know why it dropped. The man was there at his work. Every Friday we have the elevators inspected.”

From aught that appears from the evidence, the elevator was in first-class condition, and there was no evidence that there' had been any previous trouble with it. There was no evidence tending to show that the conductor or operator was incompetent, or that proper care and the usual precautions were wanting.

Against the objection of defendant, a copy of a report made by the defendant to the office of the inspector of buildings of the city of Detroit was put in evidence. This report stated:

“Some one jostled the arm of the elevator conductor, in which he held the lever of the car. This caused the lever to shove over, so that the car descended.”

Upon the hearing of the motion for a new trial the plaintiff was permitted to place upon the stand, and examine orally, the elevator conductor. In his reasons for denying the motion the learned trial judge referred to such testimony. He said:

“There was no showing of what caused the elevator to drop, at the trial, except a statement made.by the J. L. Hudson Company to the elevator inspector. On the motion for a new trial, the conductor of the elevator was sworn and examined by the attorney for the plaintiff, and explained that the dropping of the elevator was due to the fact that one of the passengers struck his shoulder, causing him to fall back far enough to move the lever, which let the car drop a short distance, and that he immediately brought the car back to place.
“A verdict was directed for the defendant at the close 'of the plaintiffs, case, for the reason that in the opinion of the court no evidence of negligence on the part of the defendant was produced; it being the opinion of the court that in this State it is necessary for the plaintiff to show something more than the mere happening of the accident.
“A motion for a new trial was filed, and the court allowed the testimony of the elevator conductor to complete the record, at the request of the attorney for the plaintiff. No new authorities were cited in arguing the motion for a new trial, and the parol testimony did not in any way tend to establish negligence, or raise any issues of fact for a jury. On the contrary, it tended to show that the injury resulted from the accidental jostling of the conductor’s arm by a passenger of the elevator, so that the record, as it stands today, is absolutely free from any evidence of negligence on the part of the defendant. Attorney for plaintiff claims that a new trial should be granted for the reason that the elevator was overcrowded, but the testimony of the plaintiff and her daughter both controvert this position, as well as the testimony of the elevator conductor, who stated that there was room for four or five more passengers in the car.
“There is no evidence before the court of any defective, broken, old, or worn machinery, and there is no evidence that the elevators were out of order and not properly inspected; and, further, there is no evidence that ordinary care was not used by the defendant in this instance in the running of its elevators, and under the decisions in this State, especially the case of Burgess v. Stowe, 134 Mich. 204 (96 N. W. 29), it is expressly held that the owner of an elevator is only required to use the care of an ordinarily prudent person under the circumstances.
“Taking the testimony of the plaintiff in the case, and giving it the most favorable consideration, it shows that the elevator dropped three or four feet without any reason apparent to the plaintiff. Suppose the -case had stopped here, and there had been no explanation as to why the elevator dropped. It seems to the court that under the decisions in this State it would be necessary for the court to direct a verdict as it did, and the court has been offered no reason to overcome this belief which would warrant the granting of a new trial.
“In the case of Hall v. Murdock, 114 Mich. 223 (72 N. W. 150), the court says:
“ ‘We think there was evidence sufficient to submit the case to the jury whether the cable had become old and worn, and parted in consequence. The mere fact that it broke, under the decisions of this court, was no evidence of negligence.’
“In the case of Mirabile v. Simon J. Murphy Co., 169 Mich. 522 (135 N. W. 299), the Supreme Court of this State has passed on the question squarely. The plaintiff in that case proceeded on the theory that it was only necessary to show that the elevator dropped. He said:
“ ‘When the plaintiff proved that the elevator dropped while she was alighting therefrom, her negligence in no way contributing thereto, she made out a prima facie case, establishing the negligence of the appellant.’
“The court, however, did not take this view, and Justice Blair said:
“ ‘ The weight of authority seems to be in favor of this proposition, * * * but such is not the rule in this State.’
—citing a number of cases sustaining this view.”

The motion being denied, exception was duly taken, and the plaintiff has brought the case here for review, assigning many errors.'

In his brief counsel for appellant says :

“Plaintiff was entirely blameless. She was in the elevator at the invitation of the defendant, and the accident could not have happened, unless it was guilty of negligence. The assignments of error have been referred to in the statement, showing how the questions arose. The last two assignments of error, however, viz., the direction of a verdict for defendant, and a refusal to grant a new trial, cover the case.”

It is urged by appellant’s counsel that the trial court erred in its construction of the Murphy Case, and he places much stress on the language of Justice Blair, where he said:

“Where, however, the facts and circumstances surrounding an injury are such as to justify an inference of negligence, no further proof of negligence is required.”

We find nothing in the facts of the instant case making applicable the language here quoted. We find nothing to.justify an inference of negligence. We think that the reasoning of the trial judge, above quoted, fully justified him in denying the motion for a new trial, and in directing a verdict.

The rule is well settled in this State that the mere fact that an accident happens, is no evidence of negligence. We cite the following cases: Toomey v. Iron & Steel Works, 89 Mich. 249 (50 N. W. 850); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938); Peppett v. Railroad Co., 119 Mich. 640 (78 N. W. 900); Whitcomb v. Railway, 125 Mich. 572 (84 N. W. 1072); Casterton v. Blower Co., 142 Mich. 407 (106 N. W. 61); Brown v. Bryant, 166 Mich. 180-183 (131 N. W. 577); Fifelski v. Gas Light Co., 181 Mich. 503 (148 N. W. 195). We are of opinion that it cannot be held that the pushing or jostling of the conductor by a third person constituted negligence either of the conductor or the defendant. In the Robinson Case it was held that even the sudden breaking or giving way of a piece of machinery, properly constructed, was not sufficient to justify the conclusion of negligence. The rule which this court has applied is a reasonable one. In the Casterton Case it was said:

“We have many cases which hold that where a machine has worked well up to the time of the accident, and the occasion is unexpected and unexplained, a charge of negligence is not sustained. These cases are not necessarily applicable to a case where the machine has previously shown symptoms of inefficiency or dangerous irregularity in its operation, for with such warnings it may be the duty of the proprietor to ascertain and remedy the tendency.”

We have examined the numerous Michigan cases cited by appellant’s counsel in support of his contention. In many of them, like La Fernier v. Lighter & Wrecking Co., 129 Mich. 596 (89 N. W. 353), and Lincoln v. Railway Co., 179 Mich. 189 (146 N. W. 405, 51 L. R. A. [N. S.] 710), there was evidence tending to show negligence, and we held that, although negligence will not be presumed from the mere fact of an accident, yet such fact may be taken into consideration, in connection with all the other facts and circumstances, in determining whether negligence existed. In another class of cases like Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33), it has been held that negligence might be inferred from the circumstances. In the ease of the falling roof there was also evidence that it was not properly braced, and the facts were so simple that a majority of the court held that the presumption was almost conclusive that the roof fell because it was not sufficiently braced or stayed. These cases are readily distinguished from the instant case.

We deem it unnecessary to discuss the other assignments of error, for the reason that the verdict rendered was the only one that can be justified.

The judgment of the circuit court is affirmed.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    GUNGRICH v. ANDERSON.
    1. Evidence — Prejudicial Error — Children—Appeal and Error.
    Though testimony of plaintiff in an action for assault and battery against her employer that she had several children, giving their respective ages, was improper, and ought to have been excluded by the trial court, a ruling admitting the evidence was not prejudicial where it had already appeared that plaintiff had a child, and that the alleged quarrel arose over her request to leave her employment and visit the infant.
    2. Same — Conclusion—Trespass Vi et Armis.
    On an objection of the defendant that plaintiff was testifying to a conclusion, the court did not err in admitting plaintiff’s statement that she declined to work for a week following the assault and that it was because of the injury she had received in the assault.
    3. Trial — Appeal and Error — Argument—Misconduct of Counsel-Saving Questions for Review. ' 1
    It was erroneous for plaintiff’s attorney to invite the jury to give her what they would consider a mother or sister of their own would be entitled to receive, under like circumstances, but in the absence of a ruling of the court and exception to it, there was no question for the Supreme Court.
    4. Trespass — Assault and Battery — Vi et Armis.
    Where plaintiff, who was a domestic servant of defendant, asked for a few days off to enable her to visit her child in a neighboring town, and defendant refused the request, over which an altercation ensued, and plaintiff claimed to have been severely injured, the rules applicable to a trespasser were not in effect as to plaintiff’s right to remain; she had the right to a reasonable time to collect her belongings and make ready for departure.
    5. Same — Reasonable Force — Opportunity to Depart — Master and Servant.
    The defendant was not entitled to use force to expel the servant, as in case of an intruder, or to force her to depart without reasonable notice to enable her to leave peaceably.
    6. Same — -Damages—Charge—Trial—Provocation.
    The charge of the court that defendant would not be justified in assaulting plaintiff, if the latter called her a liar, but that the evidence went to the amount of damages, was not error, but correctly stated the law.
    7. Same — New Trial — Verdict.

      Held, also, that a verdict of $250, reduced by the trial court to $150, was not so excessive, as modified, that the appellate court should award a new trial.
    Error to Muskegon; Sullivan, J.
    Submitted October 12, 1915.
    (Docket No. 33.)
    Decided December 21, 1915.
    Case by Emily F. Gungrich against Mary E. Anderson for assault and battery. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Turner & Turner, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellee.
   Stone, J.

This is an action on the case to recover damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff bn the evening of the 9th day of April, 1914, at the village of Montague, and for the resulting injuries. The declaration charges a violent assault upon the person of the plaintiff, and that defendant with great force and violence pulled and dragged plaintiff about and struck her a great many blows with her fist, and threw plaintiff against the wall of the room where said assault took place, and also threw the plaintiff upon the floor, striking and pinching the plaintiff, pulling her hair, and tearing off her dress, by means whereof the plaintiff then and there became and was greatly hurt, cut, bruised, and wounded in and about her face, head, arms, and back, and so continued for the space of four weeks; that plaintiff suffered great bodily pain and mental distress, and was obliged to undergo medical treatment, and was hindered and prevented from performing and transacting her lawful and customary occupation of doing housework, whereby she lost great gains, etc., and she also averred that she was, by said assault, permanently injured in and about her head, back, and-spine, and was unable to do her accustomed work, etc. The plea was the general issue.

It appeared upon the trial that the plaintiff was a married woman, upwards of 50 years of age, and was, at the time of the alleged'assault, employed by the defendant as a domestic in the home of the latter. There was a sharp conflict in the testimony as to who was the aggressor, and as to the nature and extent of the . assault.

The plaintiff, in substance, testified that on the occasion of the assault a neighboring woman came to the house and into the room where the parties were, and invited the plaintiff to go with her to Grand Rapids on the following Sunday, .where the plaintiff might visit her child; that plaintiff turned to defendant and asked permission to go; that defendant refused to let plaintiff go, whereupon a somewhat heated discussion and controversy arose between the parties, wherein defendant said to plaintiff: “No; you can’t go. You are out every night, all night” — which statement was denied by plaintiff. Plaintiff further testified:

“Well, she' said I couldn’t go. I said: ‘All right; there is something else that I would like to talk to you about; it is about the dollar that the man gave me. You say that this man is supplying me with money because he left a dollar for my little girl.’ She [defendant] said: ‘Now, then, you get out of here;’ she said, ‘You get right' out of here,’ and she opened the door, and when she told me to get out, I started to take my apron off to go. I turned into my bedroom to take my dress off, and I said, T will go when I get ready,’ and I went in to get ready, and before I knew it, without a moment’s warning, she was on my back, and she grabbed me by the back and dragged me to the door that she had opened, that led into the buggy shed, and instead of throwing me out, as she said she would throw me out, she throws me on the couch that was there by the door, and I was so surprised I had nothing to say, never said a word to her. I got up, and when I got up, instead of throwing me out as she wanted to do — I didn’t notice whether the door was opened or closed then — but she took me once more. While I was down she dug her fingers into my arms, just like that (illustrating). She didn’t slap me, but got her main hold with her fingers in that way, and then when I got up from that position, she then took me again, the second attack, and threw me across the room near my bedroom door, and under a little table that was there. I said, 'That must be a pleasure to you Mrs. Anderson.’ She grabbed me again, then got me up to the wall with my back, and went like this (illustrating) , as hard as she could, and I stood there by the door, and I noticed that my dress was torn, and I went into the bedroom and I stood by the bed to take my dress off, and in taking off the dress I made this remark: ‘Well, it is a shame to have to be used like this.’ And then it was so late at night, my own house was closed up for the winter, and I didn’t know what to do, I said, ‘Isn’t it terrible,’ out loud, ‘to be used like this.’ She made one spring from the stove, where she was, onto me, and fought for the dress, and I fought with her, but I wasn’t nothing in her hands. She got the dress and took it, opened the stove door and threw it in, like that (illustrating). She said, ‘There you old bitch you.’ * * * And I went into my bedroom again, and when she got into the bedroom she went into my hair. This was during the time that this- dress affair was going on. She came back and threw me backwards onto the bed, and there is where the fight, the real fight was then.”

The plaintiff then described how her hair- was pulled by the defendant. The above is only a part of plaintiff’s testimony relating to the assault.

Defendant offered testimony tending to show that plaintiff was the aggressor, and that defendant only acted in self-defense. The case was submitted to a jury, and the plaintiff recovered a verdict and judgment for $250. The defendant moved for a new trial upon the following grounds:

(1) That the verdict was contrary to the great weight of the evidence.
(2) That the verdict was grossly excessive in amount.
(3) Because the jury were allowed to aggravate actual damages, when there was no claim in the declaration that an .assault and battery was perpetrated without cause, provocation, or excuse, and no allegation of a wilful or wanton assault.
(4) Because the charge of the court did not correctly set forth the law as applicable to the facts developed upon the trial of the case.
(5) Because the charge ignored the claim of defendant as to what occurred immediately preceding the touching of plaintiff’s person by the defendant.
(6) That under the pleadings and the claim of the parties upon the trial, the jury should have been instructed that if they found that defendant was only asserting what she claimed to be her legal rights, and did not act oppressively, wantonly, or maliciously, then the only damages they could assess would be what plaintiff had actually sustained.
(7) Because in the charge the law regarding the rights of the parties in the home of defendant was not correctly set forth, in that the jury should have been instructed that if the plaintiff refused to leave the house upon defendant’s request, then the defendant had a right to use such force as was necessary to eject her therefrom.

The trial judge in disposing of the motion for a new trial, held that the verdict and judgment were excessive, and directed that unless the plaintiff remitted $100 of the judgment, a new trial should be granted. Thereupon the plaintiff remitted that sum, leaving the judgment to stand for the sum of $150, and the motion was denied and exception duly entered. The defendant has brought the case here for review, and there are 17 assignments of error.

The first 3 assignments of error relate to that part of the testimony of the plaintiff wherein she was permitted to testify about her children, and what her family consisted of, the number and age of the children, etc. That she had a child in Grand Rapids that she wanted to visit, appeared in her testimony relating to the assault. We are unable to see any relevancy, however, to the remainder of her testimony, upon the subject of her children, or family. We do not think, however, that the ruling admitting this testimony was so prejudicial as to justify a reversal. It probably could have no bearing, except upon the measure of damages, and as the trial judge considered that subject upon the motion for a new trial, and the judgment has been reduced in amount, we cannot say that the error here complained of resulted in a miscarriage of justice.

By the fourth assignment of error the following testimony of the plaintiff is complained of:

“I refused to work the first week after this happened. I was too sore, no strength, my mind was — I couldn’t work.
“Q. Whether or not this was due to this injury you received at the hands of Mrs. Anderson ?
“A. Yes, sir.”

This testimony was objected to as being a conclusion. The objection was overruled, and an exception taken. We think that the witness was testifying to a matter of fact, and that there was no error in the ruling. Dyer v. Ice Co., 188 Mich. 203 (154 N. W. 135).

By the fifth assignment the following language of one of plaintiff’s counsel in his argument to the jury is complained of:

“Give her [plaintiff] what you would want your mother or sister to have under like circumstances.”

That this language was improper we have often held. From an examination of the record, however, it does not appear that the attention of the court was called to this, matter, nor was any ruling asked for, but defendant’s counsel simply excepted. We have repeatedly held that unless a ruling is requested of, or made by the court, an assignment of error, based upon an exception to improper argument, will not be received. Spencer v. Johnson, 185 Mich. 85 (151 N. W. 684), and cases there cited.

The remainder of the assignments of error relate to the charge of the court, and the overruling of the motion for a new trial. In the course of a lengthy charge the trial court said:

“But whether Mrs. Gungrich called Mrs. Anderson a liar or not, Mrs. Anderson for that had no right to seize Mrs. Gungrich by the arms to put her violently out of the house, and if she did seize Mrs. Gungrich by the arms to put her violently out of the house, before Mrs. Gungrich had a reasonable and proper time to go to her room and pack up her clothes, Mrs. Anderson would be guilty of an assault and battery, and Mrs. Gungrich is entitled to recover some compensation for the injury that was done her. There is where this matters turns upon.
“If without giving her time, she took her by the arm and forced her up to the door, and opened the door to go out, Mrs. Gungrich had a right to resist that also, and to refuse to go, because she did not have her proper time. The rights are relative in that matter.
_ “She had a right to go to her room, and the word ‘liar’ would not justify Mrs. Anderson in putting her out immediately upon that occasion. Now that is the law of this State.
“Now, take it from me. Don’t say that, T would have done the same thing myself,’ because that isn’t the law. The law is to be taken by the jury, from the court, and when any person unlawfully lays hands upon one, the person that is assaulted has a right to resist.
“Now, what took place there after that? It was all in connection with whatever did happen there. This waving of a dress, saying that was evidence, and all that kind of thing — neither would that justify an assault, and neither, then, because of that waving of the dress, would Mrs. Anderson have a right to clutch it from her, to pull it away. She would have no right to do that.”

The above portion of the charge, paragraph by paragraph, was covered by the assignments- of error. It should be remembered that the plaintiff was a domestic servant of the defendant, and as such servant was a member of the household. The rule applicable to a trespasser did not apply. Plaintiff had a right to be there until she was discharged, and when discharged she was entitled to a reasonable time and opportunity to gather her belongings together, and prepare for removal. This trouble occurred in the evening, which was a circumstance to be considered in determining whether the plaintiff was required to immediately leave the house, where she had a right to be until discharged. In our opinion the court did not err in its statement of the law applicable to the case. We think the defendant was not justified in using force to eject the plaintiff from the house until she had been given a reasonable time in which to leave. The rule laid down by the Iowa supreme court in Redfield v. Redfield, 75 Iowa, 435 (39 N. W. 688), is the correct one. Defendant had no right to attempt to eject plaintiff by force, without reasonable notice to the latter to enable her to go peacefully.

We have examined the remaining portion of the charge. Attention was called to the issue wherein it was claimed by defendant that plaintiff called her a liar. The court said:

“I said that would not justify an assault, yet still that is a proper thing for you to take into consideration as to damages. That is for you to weigh and consider as an element going to fix the amount of dam-, ages. If she didn’t call her a liar, that is a matter also for you to take into consideration as fixing the amount of damages, because where a person invites an assault by words, though no words will justify an assault, yet, still, they ought not to recover the same 'damages, as where the assault is unprovoked, without good cause or reason.”

We find no error in the charge. We do not think the court erred in denying the motion for a new trial.

We cannot say that the verdict, as reduced, was contrary to the. great weight of the evidence. There was much conflict in the evidence. The jury were the triers of the facts, and they found for the plaintiff. It is not for us to pass upon a mere conflict in the evidence. We find no reversible error in the record, and the judgment of the court below is affirmed.

Brooke, C.. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    BUTTERFIELD v. REYNOLDS.
    1. Release —Contract — Construction — Evidence — Parol Evidence.
    A release is to be construed from tbe standpoint of tbe parties at tbe time they executed it; extrinsic evidence is admissible to explain tbe circumstances under which it was entered into and tbe nature of tbe transaction to which it was designed to apply without .adding to or subtracting anything from tbe words used. It embraces all demands to which its provisions apply, whether contemplated or not, and direct parol evidence that a certain claim was not in-eluded or contemplated in the preliminary negotiations is inadmissible.
    2. Same — Contribution—Evidence—Notes—Defenses.
    Plaintiff and defendant indorsed jointly with others the notes of a manufacturing corporation that subsequently became insolvent. In consideration that plaintiff would continue to act as indorser certain securities were deposited with him to cover his indorsement and protect him from liability, and at the same time, he executed to defendant a release in general terms “from all actions, causes of action, suits, controversies, claims and demands, whatsoever, for or by reason of any matter, cause, or thing from the beginning of -the world down to the 6th day of April,” etc. No other contractual obligations subsisted between them. Two months later, in order to renew one of the notes, defendant indorsed new paper, on which plaintiff sued for contribution. Held, that defendant was not liable; that the new note had been given for the indebtedness existing when they executed the release, and no new debt was created, that the release barred any liability upon the previous indebtedness, or a renewal thereof.
    Error to Muskegon; Sullivan, J.
    Submitted October 13, 1915.
    (Docket No. 72.)
    Decided December 21, 1915.
    Assumpsit by William W. Butterfield against Walter J. Reynolds for contribution on a note. Judgment for plaintiff. Defendant brings, error.
    Reversed.

      Cross, Vanderwerp, Foote & Ross (Foreman, Levin & Robertson, of counsel), for appellant.

      William Carpenter, for appellee.
   Stone, J.

This is an action of assumpsit wherein the plaintiff seeks contribution from the defendant as a cosurety upon a certain promissory note hereinafter described. The issue was tried before the court without a jury, and the following findings of fact and conclusions of law were filed:

“I. On the 6th day of June, 1911, the following note was executed, indorsed, and delivered to the Hackley National Bank of Muskegon, Mich., viz.:
“ ‘Muskegon, Mich., June 6, 1911.
“ ‘On or before one month after date we promise to pay to the order of Hackley National Bank five thousand and no/100 dollars, at the Hackley National Bank. Value received, with interest at six per cent, per annum. Protest waived. $5,000.00 and int. Due July 6. No. 24986.
“ ‘Racine Boat Manufacturing Co.,
‘By W. J. Reynolds, Pres.’
“On the back of which was indorsed the following:
“ ‘The undersigned indorsers hereby expressly waive demand of payment, notice of nonpayment, protest, and notice of protest of the within note.
“ ‘W. J. Reynolds,
“ ‘Paul B. McCracken,
“ ‘Wji. W. Butterfield,
“ ‘National Boat and Engine Co.,
“ ‘Per G. W. Thompson, Asst. Treas.’
“II. Prior to April 6, 1911, the Racine Boat Manufacturing Company, a corporation, had sold and conveyed all its property to the National Boat & Engine Company, a corporation, which had assumed all its indebtedness, included among which was one to the Hackley National Bank for the sum of $5,000, evidenced by a promissory note indorsed by Walter J. Reynolds, Paul B. McCracken, and William W. Butter-field. When that note became due, it was renewed in form by the Racine Boat Manufacturing Company because the bank declined to take the note of the National Boat & Engine Company and release the Racine Boat Manufacturing Company, but the National Boat & Engine Company added its indorsements to that of the other three persons in order to make itself liable thereon. The note mentioned in paragraph one is a renewal of that note.
_ “III. In September, 1911, the National Boat & Engine Company was adjudicated a bankrupt in the District Court of the United States for the District of Maine. The Racine Boat Manufacturing Company, in form the maker of said note, is insolvent. Paul B. Mc-Cracken, one of the indorsers thereon, is insolvent, and is not a resident or within the jurisdiction of this State.
“IV.. The Hackley National Bank having made demand upon the plaintiff for the payment of said note, on the 3d day of January, 1913, he made a compromise with the bank and paid to the bank in extinguishment of its claim on the note the sum of $4,212.50, and on the 17th day of October, 1914, made due demand on the defendant for the payment to him of one-half of said amount, which was refused by the defendant.
“V. On the 6th day of April, 1911, the National Boat & Engine Company, the Racine Boat Manufacturing Company, and the plaintiff entered into the following agreement:
‘Whereas, there have differences existed between the National Boat & Engine Company, a corporation organized under the laws of the State of Maine, the Racine Boat Manufacturing Company, a corporation organized under, the laws of the State of Michigan, and William W. Butterfield, of Muskegon, Mich., and all of those differences having been settled and adjusted with the exception of the contingent liability of the said Butterfield as an indorser on the outstanding notes of the said corporation; and
“ ‘Whereas, the said Butterfield has agreed to continue his indorsements on said outstanding notes until the said corporations are able to pay and retire the same;
“ ‘It is mutually agreed by and between the corporations aforesaid and the said Butterfield that he shall be protected and secured by the deposit in escrow with the firm of Cross, Vanderwerp, Foote & Ross, of Muskegon, Mich., of a sufficient number of first mortgage gold bonds of the National Boat & Engine Company, at the ruling market value thereof, and-per cent, more to fully and generously indemnify and protect the said Butter-field upon his said indorsements.
“ ‘It is further understood and agreed that this paper writing is but the memorandum of a contract, which is to be reduced to legal form and phraseology at Muskegon, Mich., with all convenient speed and dispatch to carry out the purposes and intentions of the parties, as embraced in a settlement and adjustment of their differences as made this day.
“ ‘And it is further understood and agreed that the personal note of the said Butterfield for one thousand dollars ($1,000), secured by a one thousand dollar bond owned by the said Butter-field, is the note and obligation of one or both of the said corporations, and not the personal indebtedness of the said Butterfield, and that, should a demand be made for the payment of said note, the said corporations, one or both of them, shall cause the same to be paid, and return the said bond to the said Butterfield.
“ ‘In witness whereof the said corporations have on this 6th day of April, A. D. 1911, caused to be executed in triplicate this memorandum to be signed by their presidents and the seal of said corporations to be affixed by their secretaries; and the said William. W. Butterfield has signed the same with his hand and seal.
“ ‘National Boat and Engine Company,
“ ‘By W. J. Reynolds, Its President. [SealJ
“ ‘Attest:
“ ‘C. A. Williams, Secretary.
‘Racine Boat and Manufacturing Company,
“ ‘By W. J. Reynolds, Its President.
“ ‘Attest:
“‘W. W. Butterfield, Secretary.’
“VI. On the same day the plaintiff executed and delivered to the defendant the following release:
“ ‘Know all men by these presents that I, William W. Butter-field, of the city of Muskegon and State of Michigan, for and in consideration of the sum of one dollar to me in hand paid by Walter J. Reynolds, of the city of Muskegon, State of Michigan, do hereby release and forever discharge the said Walter J. Reynolds, his heirs, executors, and administrators, of and from all actions, causes of action, suits, controversies, claims, and demands whatsoever for or by reason of any matter, cause, or thing from the beginning of the world down to the 6th day of April, A. D. 1911. W. W. Butterfield.
“ ‘In presence of C. A. Williams.’
“At the time of the execution and delivery of said release there had been and were no contractual relations between plaintiff and defendant other than the contingent liability of each to the other as coindorsers upon notes of the Racine Boat Manufacturing Company.”

The finding also sets forth a supplemental agreement made and entered into on June 20, 1911, between the National Boat & Engine Company, the Racine Boat Manufacturing Company, and the plaintiff, reciting that whereas, the National Boat & Engine Company was the successor to and had taken over the property of the Racine Boat Manufacturing Company, and had assumed the. indebtedness of said Racine Boat Manufacturing Company, and whereas, a part of the indebtedness of said Racine Boat Manufacturing Company was represented by promissory notes given by said Racine Boat Manufacturing Company, and indorsed by said William W. Butterfield, and whereas, for the purpose of protecting said William W. Butterfield, said Racine Boat Manufacturing Company executed and delivered to him a certain deed of trust covering its property, to protect him against liability on said indorsements, and whereas, it was necessary that a portion of said promissory notes should be renewed by said National Boat & Engine Company, and whereas, said William W. Butterfield was the secretary of said Racine Boat Manufacturing Company, and was an employee of said National Boat & Engine Company, and whereas, there were certain items of indebtedness existing between said William W. Butterfield and said National Boat & Engine Company and said Racine Boat Manufacturing Company, it was among other things agreed as follows:

“Now, therefore, it is hereby agreed that all of the matters in difference, and all claims of any kind or character growing out of the relationship existing between the parties hereto, or any of them, or between said William W. Butterfield and Walter J. Reynolds and Paul B. McCracken, two of the stockholders and officers of said Racine Boat Manufacturing Company, and of said National Boat & Engine Company, are fully settled, paid, and discharged”—

apart of the consideration for said settlement being:

“First. That said William W. Butterfield shall surrender to the National Boat & Engine Company the deed of trust dated January 8, 1909, given to him by the Racine Boat Manufacturing Company for the purpose, of securing him from liability of any kind incurred by his indorsement on the promissory notes of said Racine Boat Manufacturing Company.
“Second. That said William W. Butterfield shall continue his indorsements on outstanding notes until said corporation or corporations are able to pay and retire the same; it being understood and agreed that said notes are to be paid and retired in the same relative proportion as other similar indebtedness of the National Boat & Engine Company.
“Third. That he shall be protected and secured in the making of said indorsements by the deposit in escrow with the firm of Cross, Vanderwerp, Foote & Ross, of Muskegon, Mich., of an amount of first mortgage gold bonds of the National Boat & Engine Company of the par value of double the amount of the total of the notes indorsed by said William W. Butterfield, which at this time are as follows: [Here follows a list of notes, including the note here sued upon, aggregating $44,000.]”

The findings of fact concluded as follows:

“VIII. That in order to secure the payment of the note, and of other indebtedness owing by the National Boat & Engine Company to the Hackley National Bank in January, 1911, the National Boat & Engine Company delivered to the bank as collateral security first mortgage bonds of the par value of ten thousand dollars ($10,000) ; that in the month of May, 1911, in order to indemnify the plaintiff against any loss by reason of his indorsement of said note, and of other notes indorsed by him for which the National Boat & Engine Company was liable, the National Boat & Engine Company delivered to Cross, Vanderwerp, Foote & Ross, as trustees, to be held in escrow for the benefit of the plaintiff $88,000 par valué of the first mortgage bonds of the said corporation.
“IX. That the Hackley National Bank duly filed its claim for said note, and the bonds securing the indebtedness to it with the referee in bankruptcy for the District Court of the District of Maine, and on payment being made to it, as set forth in paragraph 4,_ it assigned said claim to the plaintiff; that the plaintiff also .filed a claim with the said referee based bn the $88,000 of bonds above mentioned; that the claim of the Hackley National Bank on the note was duly allowed, subject to the surrender by plaintiff of certain preferences claimed by the trustee, and determined by the referee, to have been received by him, but that the claim on all the bonds was disallowed by the referee; that his decision was reviewed in the District Court for the District of Maine, and the bonds delivered to- the Hackley National Bank were allowed, subject to said preferences, but that the bonds 'delivered to Cross, Vanderwerp, Foote & Ross, as trustees, were disallowed, and that an appeal has been taken by the plaintiff to the Circuit Court of Appeals for the First Circuit of the United States, and is now pending and undecided; that the plaintiff has received nothing on account of said claims.”

The following conclusion of law was found by the trial court:

“I find that the plaintiff is entitled to recover from the defendant one-half of the amount paid by him as aforesaid, to wit, the sum of $2,106.25, with interest thereon at the rate of 5 per cent, per annum from January 3, 1913, to the date of judgment, and that judgment be entered accordingly.”

The defendant proposed the following amendment thereof, which was refused:

“I find as a conclusion of law that any right of action which plaintiff might otherwise have against defendant for contribution, by reason of his payment of the said note, is barred by the release of April 6, 1911, and the release contained in the contract of June 20, 1911, hereinbefore mentioned, and that judgment of no cause of action be entered accordingly.”

Exceptions were duly taken to the conclusion of law and to the refusal of the court to amend the conclusion as proposed.

From a judgment for plaintiff entered' pursuant to said finding, the defendant has brought error. By appropriate assignments of error the defendant claims:

(1) That the court erred in finding as it did in its conclusion of law, in refusing to find as proposed, and in entering judgment for plaintiff.
(2) That the judgment entered is not supported by the evidence, or by the law of the case.
(3) That the judgment entered is erroneous because plaintiff’s supposed cause of action is barred by the release of April 6, 1911, and by the release contained in the contract off June 20, 1911.
(4) That the judgment is erroneous for the reason that, if plaintiff is entitled to recover at all, he can recover only one-fourth of the amount paid by him, with interest thereon, and not one-half of such amount as found by the court.

The first three assignments of error will be considered together. It is the claim of appellant that there is no liability of defendant for contribution on account of plaintiff having paid the note of June 6, 1911, because defendant was released from such liability by the general release executed and delivered by plaintiff to him on April 6, 1911; that said release was a general release and comprehensive in its terms, and the circumstances under which it was executed, and the purpose and intention of the parties, showed that it was intended to absolve defendant from all liability for contribution on account of his being a cosurety with the plaintiff on any and all indebtedness of the Racine Boat Manufacturing Company or the National Boat & Engine Company prior to April 6, 1911; that the note of June 6, 1911, which is the basis of this suit, is not a new indebtedness, but is a continuation of an indebtedness existing prior to April 6, 1911, and was therefore covered by the release executed and delivered by the plaintiff to defendant. We are impressed with this claim of the defendant. The closing words of the sixth finding of fact are significant:

“At the time of the execution and delivery of said release there had been and were no contractual relations between plaintiff and defendant other than the contingent liability of each to the other as coindorsers upon notes of the Racine Boat Manufacturing Company.”

It will be noted that the release given was of the most general kind, and very broad in its terms. Taken in the light of the circumstances under which this release was drawn and the purpose for which it was executed and delivered, we think that it was intended, not alone to release defendant from liability arising from his being a cosurety with plaintiff on any particular note or notes then existing, but that it was also intended to release defendant from all liability arising out of his being a cosurety on any indebtedness, as distinguished from evidence of indebtedness, existing at the time. The plaintiff testified that he did not consider either the defendant or McCracken as being financially responsible, and that he alone would probably be the one to whom the holders would ultimately look for the payment of this indebtedness, if it were not paid by the company; and he further testified that it was for the purpose of protecting himself against such contingent liability that he demanded security in the form of $88,000 of bonds of the National Boat.& Engine Company, which he at the time considered ample security for all the indebtedness for which he was a surety. Having taken the security, it was only reasonable that he should release his cosureties. The claim of the plaintiff is not that the release was without consideration, or that it was obtained by fraud, but that:

“The release purports to discharge the appellant from all actions, causes of action, suits, controversies, claims, and demands .whatsoever to the sixth day of April, A. D. 1911. It is apparent, therefore, on the face of the papers, that the note executed two months after the 6th day of April could give rise to no action, suit, controversy, or demand whatsoever that was contemplated by the release. The intention of the parties as disclosed by the written instruments, the release, and the subsequent note is clear, and cannot be misunderstood. The release does not contemplate a discharge of the obligation of the appellant arising from the indorsement of the note. A release does not apply to any transaction in the future, unless it so specifies. Whipple v. Parker, 29 Mich. 369; Mouat v. Hildebrand, 15 Colo. 382 (24 Pac. 1042).”

In Whipple v. Parker it was held that a settlement could not, without evidence to that effect, reasonably be supposed to include or acknowledge payment, for what the party had not yet paid, and which at the time did not constitute an item of account, but accrued afterwards.

We think that the testimony of the plaintiff takes the instant case outside of the doctrine of the cited case. We think the position of the plaintiff, above quoted, too narrow. We should look to the substance of things, and consider the position of the parties and the nature of the surroundings. In the light of the circumstances under which the release was made, we think the fact that the original loan was made prior to the date of the release is material and important. We think there can be no question that it was the intention of the plaintiff to release defendant from any and all liability arising out of his being a cosurety, not alone on the notes which were only evidences of an indebtedness, but from all liability arising out of his being a cosurety for the indebtedness of the Racine Boat Manufacturing Company existing on April 6, 1911, and of which the note in suit is only a renewal or continuation, and not at all a new indebtedness. The bank had demanded the same indorsers upon renewal. While on the surface, and in so far as the bank was concerned, the old note was canceled by the giving of the new one, for the purpose of getting at the proper construction of the' release in question and as between the parties here, we should consider, as the fact really was, that it was only one of the evidences of the indebtedness that was canceled, and not the indebtedness itself. It is a general rule of construction of releases that a release shall be construed from the standpoint which the parties occupied at the time of its execution. 24 Am. & Eng. Enc. Law (2d Ed.), p. 290.

“Where only general words are used, they will be construed most strongly against the party executing the release, and so a release is held to include all demands embraced by its terms, whether particularly contemplated or not, and direct parol evidence that a certain claim was not in the minds of the parties is not admissible.” Id. p. 294.

See 34 Cyc. p. 1076; Rowe v. Rand, 111 Ind. 206 (12 N. E. 377); Seymour & Co. v. Butler, 8 Iowa, 304; The Cayuga (Cir. Ct. of App. 6th Cir.), 59 Fed. 483 (8 C. C. A. 188); Swinburne v. Swinburne, 36 R. I. 255 (90 Atl. 121).

In Rowe v. Rand, supra, the court said:

“A release ought to be construed from the standpoint which the parties occupied at the time of its execution. To enable a court to so construe a release, extrinsic evidence is admissible to explain the circumstances under which it was executed, and the nature: of the transaction to which it was designed to apply,, without adding to, or subtracting anything from, the words used by the parties to the instrument. 1 Greenl. Ev. § 277; Reed v. Insurance Co., 95 U. S. 23; 7 Wait on Actions and Defenses, 464.
“The particular purpose for which a release was. executed ought always to be kept in view, and, where only general words are used, they are to be construed.. most strongly against the party executing the release.. Seymour & Co. v. Butler, 8 Iowa, 304; Rich v. Lord, 18 Pick. [Mass.] 322; Fazakerly v. McKnight, 88 Eng. C.. L. 795; Solly v. Forbes, 4 Moore, 488; Lyall v. Edwards, 6 Hurl. & N. 336; Jackson v. Stackhouse, 1 Cow. [N. Y.] 122 [13 Am. Dec. 514].”

In the Cayuga Case Judge Severens said:

“A release is held to include all demands' embraced ¡by its terms, whether particularly contemplated ot not; ¡and direct parol evidence that a certain claim was not In the minds of the parties is not admissible. Deland v. Manufacturing Co., 7 Pick. [Mass.] 244; Hyde v. Baldwin, 17 Pick. [Mass.] 303; Sherburne v. Goodwin, 44 N. H. 271. The surrounding facts and circumstances may, as in other cases, be shown in order to apply the language of the instrument to its proper subject-matter, and prevent its application to a matter not involved in the transaction. Littledale, *J., in Simmons v. Johnson, 3 Barn. & Adol. 175; 1 Greenl. Ev. §§ 286, 288.”

To the same effect are Palmer v. Corbin, 1 Root (Conn.), 271; Duff v. Hutchinson, 57 Hun, 152 (10 N. Y. Supp. 857).

That the general release given by plaintiff to defendant was such as to release the latter from the contingent liability because of their being cosureties, see 32 Cyc. p. 284; 24 Am. & Eng. Enc. Law (2d Ed. ), p. 312, and cases there cited.

In Pierce v. Parker, 4 Metc. (Mass.) 80, the court said:

“From the best examination I have been able to give to the question before us, I come to this conclusion: That, while a possibility merely is not the subject of a release, yet that in all cases where there is an existing obligation or contract between parties, although such obligation or contract is .executory and dependent also upon contingencies that may never happen, still, if the party, in whose favor such obligation or contract is made, or who is liable, by force of it, to suffer damages if it is not performed by the other when the contingency happens, shall execute a release of all claims and demands, actions and causes of action, etc., correct in point of form, and having at the time of executing the release such obligation or contract in view, as one of the subjects upon which the release shall operate, then such release shall be held as a good and valid bar to any suit which may be afterwards brought upon such obligation or contract, or for money had, received, or paid, upon the future happening of the contingency, in consequence of which the plaintiff sustains damage, and but for such release would have had a perfect right of action.”

In our opinion, the release of April 6, 1911, was a valid bar to this action, and we need not consider thé contract of June 20, 1911, only to remark in'passing: that the defendant was not a party to that contract. The conclusion which we have reached renders it unnecessary to consider the last assignment of error.

The judgment of the circuit court is reversed, and a new trial granted.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    CITY OF ANN ARBOR v. GOODSPEED REAL ESTATE CO.
    1. Adverse Possession — Limitations—Streets — Municipal Corporations — Identity oe Locus.
    Defendants’ adverse possession during a long period of time of a portion of the sidewalk in a city for a cellarway, created no rights to a different portion of the street which it later attempted to occupy with a new stairway in a building that subsequently replaced the original one.

    2. Same — Prescription—Cities.
    Act No. 46, Pub. Acts 1907, providing that no rights as against the public shall be acquired by reason of the occupancy or use of any public highway, street, etc., in any township, village, or city of the State, whether such occupation or use be adverse or not, and the charter of said municipality enacted in 1867 containing similar provisions, prevented defendant from obtaining prescriptive rights after 1867, and, prior to that date, the evidence failed to show hostile use for a sufficiently long period of time.

    3. Same — Estoppel—Municipal Corporations.
    In view of a city ordinance vesting in the board of public works authority to issue permits to occupy any portion of the street, defendant could not claim the right to possession of part of the street, by virtue of a permit that its. predecessor in title secured from the city council to construct a cellarway, especially when he never acted upon it and did not convey his rights to the defendant, and the board of public works took no action in relation thereto.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 14, 1915.
    (Docket No. 83.)
    Decided December 21, 1915.
    Bill by the city of Ann Arbor against the Goodspeed Real Estate Company and others for an injunction. From a decree for complainant, defendants appeal.
    Affirmed.

      Frank B. De Vine (A. F. Freeman, of counsel), for complainant.

      E. B. Norris and J. W. Dwyer (Stuart E. Knappen, of counsel), for defendants.

       On rights acquired, as against the public by adverse possession highway or city street, see note in. 18 L, R. A. 146.

       An encroachment on public street or alley by occupier of abutting property for storage or other similar purposes as basis of adverse possession, see note in 36 L. R. A. (N. S.) 1056.

   Stone, J.

■ The bill of complaint in this cause was filed to restrain the defendants from removing a portion of the sidewalk at the southwest corner of Main and West Huron streets, in the city of Ann Arbor, and from the construction by defendants of a stairway within the line of said West Huron street leading to the basement of the building owned by the defendants, and known as the First National Bank Building, which building fronts on Main street, with its northern side abutting on the south side of said Huron street and even with the lot line. The present building was constructed in the year 1907 by Frank P. Glazier, and the premises were purchased by the defendants in the fall of 1908.

The defendants claim a twofold right to remove said sidewalk and to construct said stairway in the public street north of said building, commencing at the northeast corner thereof:

First. They claim that for a period of 50 years and upwards, just prior to the construction of the present building, an open stairway leading to the basement of the store building then standing thereat had existed, and was owned, used, and occupied by the owner of the said store building, and that said stairway was, and continued for more than 50 years, appurtenant to the. said store building and to the land upon which said store building then stood and where said defendants’ building now stands, and that by reason thereof said stairway and stairway rights became and were appurtenant to said lands, and passed to the purchaser of said store building and land, and by good and lawful conveyance came to these defendants. At the hearing upon this branch of the case the defendants claimed their rights to the stairway by adverse possession, and that they had had continuous and exclusive possession thereof.
Second. The defendants also claimed that the common council of said city, at a session of that body held on the 30th day of August, 1907, granted the petition of Frank P. Glazier, praying that he be permitted to go from the Huron street side of said building to the basement thereof by a stairway leading from the outside, the same to be inclosed by ornamental railing, and that by reason of the granting of said petition of the said Glazier the city is estopped from claiming any relief under its bill of complaint.

The case, being at issue, was heard in open court. It appeared upon the hearing of the cause that one F. J. D. Crane purchased the premises on the southwest corner of Main and Huron streets, in said city, in the year 1844, and that he erected a three-story building thereon in the year 1845. This building, like the present one, fronted on Main street. It remained upon this corner until torn down in 1906 to make way for the present building. When this building was erected in 1845 it was constructed with two outside stairways on the north or Huron street side of the building, one going up to the second floor, and one or more down to the basement. The stairway to the second floor started 4 to 6 feet west of the front of the building, and ascended in a westerly direction. It was 3 to 4 feet wide, and encroached upon Huron street by that much. The front stairway to the basement (the one about which we are concerned) was directly under the stairway leading to the second floor. It started from 15 to 20 feet back from the front of the building, and went down easterly, towards the front of the store, so that the opening in the sidewalk for this stairway was 15 or 20 feet west of Main street. While the testimony is clear that the stairway leading to the second floor continued to be used during the life of the old building, it is not so clear as to the continuance of the front stairway leading to the basement. Two witnesses who had early acquaintance with the premises testified on behalf of defendants. One was Col. Henry S. Dean. He was employed in this store in 1849. He was later absent some years, returning after the close of the War of the Rebellion in 1865. He is not certain whether there was any stairway leading into the basement under the stairs going up after his return, but is under the impression that there was. He thinks the first stairway was 25 or 30 feet back from the line of Main street.

H. J. Brown, another witness and old resident, was sworn, and testified that he had lived in Ann Arbor since 1879, and was in the drug business on the corner of Main and Huron streets, and remained there until 1906. He was asked these questions upon direct examination :

“Q. Was there an outside cellarway entrance to this store?
“A. There had been one there some time. It was used as a coalpit or ashpit while I was there. It was never open while I was there, except once a year it was opened to take out ashes. There was no stairway there.
“Q. The steps were out of use?
“A. Yes; and it was covered over.
“Q. A wooden covering?
“A. I think it was wood; I am not sure about that whether it was wood or stone. * * *
“Q. Where was this ashpit or cellarway located ?
“A. It was— I should think if was perhaps 10 or 15 feet back from the corner of the building.
“Q. Right under this stairway that went up to the second floor?
“A. Yes. * * *
“Q. There was a stairway from the inside of the building to the basement?
“A. Yes; in the back end of the store.
“Q. So that you could go into the basement from the inside of the store?
“A. Yes.”

On cross-examination he testified as follows:

“Q. You were in that building from 1879 to 1906?
“A. Yes.
“Q. Until the building was sold?
“A. Yes.
“Q. Until that building was torn down and this building was constructed that is there now ?
“A. Yes; I was notified to get out. They were contemplating tearing down the building.
“Q. And during all that time there was no outside stairway to that building to the basement?
“A. No.
“Q. Whatever openings there had been were closed, and they were used as places to store coal, and so forth?
“A. Yes.”

This witness also testified that about 1884 or 1885 he permitted an Italian to go under the stairway leading to the second story where he could go to get out of the storm, and that it was so used off and on, from that time until he moved out of the building. It further appeared that in 1867 the charter of the city contained the following provision:

“No person shall be deemed to have gained any title ás against the city by lapse of time, to any street, lane, alley, common or public square heretofore laid out or platted by’ the proprietors of said city, or any part thereof, by reason of any encroachment or inclosure of the same.”

It also appeared that on November 4, 1895, an ordinance was passed by the common council of the city of Ann'Arbor providing as follows:

“Sec. 1. It shall be unlawful for any person, firm or corporation, having a permanent location in this city that is adjacent to or abutting upon any sidewalk or street or other public place, to build or erect any stairway leading upwards from any sidewalk, or any sidewalk leading down to any area or basement so as to encroach upon the width of the sidewalk or street.
“Sec. 2. The board of public works shall not give a permit to any person, firm or corporation to make any excavation in any street, alley or other public place, or tear up or remove any sidewalk, pavement or street surface for the purpose of erecting or building any stairway prohibited in section one of this ordinance.”

The legislature of this State, in 1907, by Act No. 46 of the Public Acts of that session, passed the following act, entitled “An act in relation to acquiring title to real estate by adverse possession:”

“Sec. 1. Hereafter no rights as against the public shall be acquired by any person, persons, firm, association, copartnership, joint stock company or corporation by reason of the occupation or use of any public highway, street or alley, or of any public grounds, or any part or portion thereof, in any township, village or city in this State, whether such occupation or use be adverse or otherwise.
“Sec. 2. All acts or parts of acts in any wise inconsistent with or contravening any of the provisions of this act are hereby repealed.
“This act is ordered to take immediate effect. • Approved April 17,1907.”

It appeared upon the hearing of the case that on August 30, 1907, Frank P. Glazier, while engaged in the erection of the present building, presented to the common council a petition as follows:

“To the Honorable Common Council of the City' of Ann Arbor.
“Gentlemen:
“Your petitioner, Frank P. Glazier, respectfully represents to your honorable body that he is the owner of the new building being erected on the corner of Huron and Main streets, in the city of Ann Arbor, and that, in order to get to the pressroom in the basement of the building, it will be necessary to have a stairway leading from the outside down to the pressroom, and will be inclosed by ornamental railing.
“Therefore your petitioner respectfully asks that your honorable body permit him to go from the Huron street side of said building to the pressroom by means of a stairway, not to exceed three feet, to be erected when permission is granted to your petitioner by this honorable body.
“Respectfully submitted,
“Frank P. Glazier."

The petition was granted by unanimous vote of the members of the council. It is not claimed that any permission was obtained from the board of public works to make said proposed stairway. The evidence is undisputed that Mr. Glazier did not construct the stairway at all, but that the sidewalk was built entirely from Main street west along the side of said building. It does appear, however, that before the filing of the bill of complaint, the defendants, acting through D. C. Goodspeed, relied upon the permission. that had been granted to Mr. Glazier, as above stated, and they were informed by the city clerk that they could go ahead and build the stairway. Proceeding to do so, they were stopped by the injunction issued herein. Some proceedings were had both by Mr. Good-speed and the council after the pleadings were put in in this case, which we shall not refer to.

At the close of the testimony and argument of this case, the opinion of the court was announced as follows :

• “The evidence in this case tends to show that the building which stood on the corner of Main and Huron streets, in the city of Ann Arbor, was built about the year 1845. It was occupied at that time by the firm of Crane & Co., and Col. Dean worked for a year or so as clerk in their employ. At that time there seems to have been two stairways leading down from Huron street into the basement of the building. How long the stairways continued to be used for entrance to the basement does not appear from the testimony, and I see no reason to indulge in a presumption of continuance in regard thereto. The testimony of Mr. Brown, who occupied this corner in the year 1879, shows that at the time of his occupancy these stairways had been boarded up, one of which he used as an ashpit, putting therein the ashes from the furnace in the store, and opening the same once a year and removing the ashes; and the testimony would seem to indicate that the other was used, in part at least, for putting coal down into the cellar. There is no evidence in the case of when the building was first used in this manner, or when the stairways were first used in this manner, and I see no reason, as before stated, for indulging in a presumption of continuance for the time necessary to gain title by adverse possession, nor do I see in this case any evidence from which I am compelled to draw the conclusion that such use of the stairway was adverse or hostile. It is quite possible that some arrangement existed between the city of Ann Arbor, or the village of Ann Arbor, at the time these stairways were constructed, and the owners of the store. My belief in this regard is all the stronger because the evidence shows beyond controversy that, when Mr. Glazier acquired the property, he prepared plans for the erection of the store as it exists at the present time, with the possible exception that he intended to put a stairway into the basement; but, instead of relying upon any adverse and hostile possession, he immediately applied to the common council of the city of Ann Arbor for a permit to put a stairway in. After the title of the property passed from Mr. Glazier to his representative in bankruptcy, the plan of putting in the stairway seems to have been forever abandoned, and the sidewalk was built over the place in which it was designed to place a stairway, and the property was sold under those circumstances to the defendants in this case. * * * Mr. Glazier applied for permission, and, when it was given to him, he did not exercise the permission. I understood they cut out a place in the steel to put in a stairway. Under those circumstances it does seem to me there was no acceptance of the permission given by the city of Ann Arbor, if the common council was the proper body to give permission, which perhaps may be given a question of doubt, and certainly the permission did not run with the land and continue forever. For these reasons it seems to me the relief should be granted as prayed for in the bill of complaint.”

A careful reading of this entire record satisfies us that the trial court reached the correct conclusion.. There are a number of reasons why the defendant cannot prevail here upon the ground of prescriptive right,, or right of adverse possession. In the first place, the evidence does not show that there was ever any excavation in the sidewalk at the corner of Main .and Huron streets where it is now proposed to open one, but that the opening, when it did exist, was back from Main street from 15 to 25 feet. There is no evidence of adverse possession of the locus in quo.

We are not satisfied that there was any such continuous, uninterrupted, hostile, open, and notorious possession as would constitute adverse possession, but we think the contrary appears. It does not appear, therefore, that title by adverse possession had been acquired prior to 1867. Since that time defendants are in no position to claim that they, or their predecessors, .have acquired title by adverse possession.

In the light of the legislation, local and State, we do :not think it can be successfully claimed that the complainant is estopped from obtaining relief in this case. 'The only permission granted was by the common coun<cil in the face of the ordinance which gave this power to the board of public works, and it was a permission given personally to Mr. Glazier, which has never been acted upon, and cannot be said to have been conveyed by him to the present owners. No rights, appurtenant or otherwise, can be claimed to have been obtained under the circumstances by that permit.

The decree of the circuit courtls therefore affirmed, with costs to the complainant.

Brooke, C. J., and Person, Kuhn, Ostrander, JBird, Moore, and Steere, JJ., concurred.