text:
    BURGE v. PICKEL.
    1. Married Women — Bills and Notes — Validity—Payment—Evidence — Admissibility.
    A note given by a married woman and a grocery firm to a banh, the proceeds of which went to said firm to pay for groceries which the wife had charged to her husband, and for which he had given her the money to pay, cannot be said to be void, as a matter of law, and theréfore inadmissible in evidence, in an action by said grocery firm against the husband for the amount of said groceries, the wife having failed to pay the note at its maturity.
    2. Same — Payment—Trial—Instructions.
    The trial judge properly instructed the jury that said note was not void but voidable at the option of the wife, and that if they found said note was given and received for the purpose of paying the grocery bill sued on they might find a verdict in favor of defendant.

      Error to Van Burén; DesVoignes (L. Burget), J.
    Submitted October 12, 1920.
    (Docket No. 75.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by John E. Burge and others, copartners as Burge & Burge, against John A. Pickel for goods sold and delivered. There was judgment for defendant, and plaintiffs appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Chandler & Bessey, for appellants.

      Thomas J. Cavanaugh and Frederick ,C. Cogshall, for appellee.
   Moore, C. J.

This cause was commenced in justice’s court where defendant had judgment. Plaintiffs appealed. Judgment was again in favor of the defendant. The case is brought here by writ of error. The plaintiffs are retail grocers. The defendant was superintendent of a manufacturing plant employing upwards of a hundred men. The wife of the defendant bought most of the groceries used in the household from the plaintiffs. The accounts of each customer were kept in a small book. The defendant furnished his wife money with which to pay the grocery account; she did not always use it that way. September 8, 1916, she and the plaintiffs signed a note for $100 which was discounted at a local bank and the grocery account was then regarded as settled. A payment of $25 was made on this note, and it was renewed for $75 on March 8, 1917. Ten dollars was paid on this note, leaving $65 unpaid.

On April 22,1918, the grocery bill, including the $65 unpaid on the note in the bank, amounted to $165. On that date a note for $165 was made by Mrs. Pickel and the plaintiffs, payable to the order of the Citizens’ State Bank, due October 22,1918. Mr. John E. Burge testified “that note was given to satisfy the account of Mr. Pickel.” The bookkeeper, who was also a member of the firm, testified, “It was in settlement of that account that Mrs. Pickel gave that note.” On the cross-examination she said:

“At the time Burge & Burge either got credit for the $165 or the money. But of course we had to pay it afterwards. Either the bank credited Burge & Burge’s account $165, or else Mrs. Pickel paid it to Burge & Burge, one way or the other.”

The note was taken to the Citizens’ State Bank and the cashier’s testimony as to what happened is in part as follows:

“The amount of the note of April 22d, 1918, was $165. The note, dated September 21st, 1917, was signed by W. C. Burge, by Mrs. Mary Pickel and W. C. Burge. The note of April 22d, 1918, was signed by Mrs. Mary Pickel and Burge & Burge. Exhibit A is the note signed under date of April 22d, 1918, by Mrs. John Pickel and Burge & Burge, for $165. The last note was paid by Burge & Burge on December 23, 1918; $65 of the amount of Exhibit A was used to pay the preceding note; $100 was paid in currency to Mrs. Pickel. I handled the transaction myself.”

The plaintiffs were unable to remember whether Mrs. Pickel brought them the $65 note and the money or whether the note was surrendered to them by the bank, and their bank account credited with the $100.

The defendant had no knowledge of the giving of these notes until the summons in this case was served upon him. Differences arose between Mr. and Mrs. Pickel and they permanently separated from each other in July, 1918. At that time Mr. Pickel and his wife drove in an automobile to the store of the plaintiffs for the purpose of settling the grocery account up to that date. Mr. Pickel furnished his wife with, money and she entered the store and returned to him soon thereafter with a statement of account showing there was due plaintiffs $98.32, and the statement was marked paid July 15, 1918. From that time until this suit was brought no claim was made to the defendant personally that he was indebted to the plaintiffs in any sum. The note was not paid when it became due. On December 14th, thereafter, this suit was begun to recover the amount due for the groceries as though the note had not been given. At this time the note was owned by and in the possession of the bank. Plaintiffs paid the bank the amount of the note on December 23d, and it was delivered to them, and there is nothing in this record to show that they are not now in the possession of it.

At the close of all the testimony both parties asked for a directed verdict. The trial judge declined to do this and charged the jury at very considerable length reciting the facts as claimed by the parties, and mentioning that the payee named in the note was the bank and that the "note was not sued upon and that Mrs. Pickel was not before the court. He told the jury in substance that the note was not void but voidable at the option of Mrs. Pickel, and that if they found it was given and received for the purpose of paying the grocery bill they might find a verdict in favor of the defendant. This the jury did.

There are many assignments of error, but the appellants say in the concluding part of their brief:

“In closing we have little to add. The issue is disposed of by the first assignment of error and the discussion in relation thereto, together with the cases cited. We did not deem it prudent to overlook the other assignments, but after all it seems that a discussion of each assignment thereafter is but a reiteration of that which has already been said in this brief.”

The decisive question is raised by the first assignment. We again quote from the brief:

“Exhibit A is a note signed by Mrs. John Pickel, the defendant’s wife, and the plaintiffs in the action and negotiated at the Citizens’ State Bank of South Haven. This note was given to pay the defendant husband’s debt. No dispute arises of record concerning the purpose of the wife in giving the note in question. The record concedes that it was given to pay the defendant’s then existing grocery bill of $165.
“If this note was a valid and subsisting obligation against the wife and enforceable against her, it was admissible and no error was committed by admitting it. On the other hand, if it was void it was inadmissible. It was void.”

Counsel cite many Michigan cases, commencing with DeVries v. Conklin, 22 Mich. 259, and ending with Detroit Chamber of Commerce v. Goodman, 110 Mich. 503, 504 (35 L. R. A. 96). They also cite Chaffee v. Thomas, 7 Cow. (N. Y.) 358.

The trouble with this contention is that it ignores the fact that the payee in the note was not the plaintiff firm, but was the bank who discounted it soon after it was made and long before it was due, and if the testimony of the cashier of the bank is believed, and his testimony is not disputed by any witness, the bank surrendered for this note a note upon which there was unpaid the sum of $65, which was signed not only by Mrs. Pickel but by John E. Burge, and gave to Mrs. Pickel $100 in money.

Under all the authorities, in view of the testimony disclosed by this record, the note can not be said to be void, as a matter of law. See DeVries v. Conklin, supra; Emery v. Lord, 26 Mich. 431; In re De-Spelder’s Estate, 181 Mich, at p. 160, and authorities there cited.

Judgment is affirmed, with costs.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    LEGG v. BOWER.
    1. Taxation — Tax Deeds — Cloud Upon Title — Possession — Statutes.
    In proceedings by a landowner to have a tax deed owned by defendant declared void and a cloud upon tbe title to certain real estate, plaintiff’s contention that Act No, 153, Pub. Acts 1885, § 115, is applicable, held, not tenable, since tbe owner of tbe tax deed bas not taken possession of tbe land, and tbe original owner is not seeking possession, because be already bas it.
    2. Equity — Maxim.
    One wbo seeks tbe aid of an equity court must be prepared to do equity.
    3. Taxation — Equity—Tax Deeds — Cloud Upon Title.
    Where a landowner petitions tbe equity court to set aside a tax deed as a cloud upon bis- title, without alleging any irregularities in said tax or tbe tax sale, tbe court will require him, as a prerequisite, to do equity and reimburse tbe tax owner.
    4. Same — Equity-Interest, Right to Recoves.
    On appeal by tbe tax owner, tbe decree of tbe court below, limiting his right to recover interest to ten years, will be modified by allowing interest from the date of tbe tax deed at tbe legal rate provided by tbe various acts in force since tbat date.
    Appeal from Shiawassee; Collins (Joseph H.), J.
    Submitted October 13, 1920.
    (Docket No. 89.)
    Decided December 21, 1920.
    Bill by Fayette E. Legg against Fred Bower to quiet title to land. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.

      Frank H. Watson, for plaintiff.

      Miner & Miner, for defendant.
   Moore, C. J.

The plaintiff filed, the bill of complaint in this case for the purpose of having a tax deed owned by defendant declared void and a cloud upon the title to certain real estate. The trial judge was of the opinion that the tax deed should be set aside conditionally.

We quote:

“And it further appearing that said complainant well knew of all said facts before purchasing said land, therefore the court is of the opinion, and it is so ordered, that said tax deed shall be set aside only upon the condition that the said complainant pay to the said defendant Fred Bower, or to his. attorneys, Miner & Miner, the amount paid by him for said tax deed, which is of the sum of eighty-nine and seventy-one/100 ($89.71) dollars, with interest thereon for ten years, or from April 22d, 1887, until April 22d, 1897, or the sum of sixty-two and eighty/100 ($62.80) dollars, making a total due to said defendant of one hundred fifty-two and fifty-one/100 ($152.51) dollars, and that the same shall remain a lien, upon said land until the same is paid with legal interest. Upon payment of such amount the defendant shall execute and deliver to plaintiff a quitclaim deed of said land, and in case he does not, then the amount shall be paid to the clerk of this court, who shall receipt for same on the decree, and the same shall be recorded in the register of deeds’ office of said county and such lien shall be discharged.”

The plaintiff did not appeal from this decree. The defendant did appeal, claiming, first, that because of litigation between the parties, two years earlier than the present litigation, the matter is res adjudícala, and second, it is claimed the chancellor erred in not allowing defendant legal interest from the date of his tax deed instead of for 10 years only.

The plaintiff does not contest the tax deed on the ground of any irregularities in the laying out of the drain, or of the proceedings to sell the same for taxes. While plaintiff, not having appealed, is not complaining about the decree, he is insisting that, the chancellor should have granted the. relief for which he prayed unconditionally, but as this was not done he is protesting against being required to pay a larger amount than that named in the decree.

We quote from the brief of appellee:

“We claim that the defendant in this case, in order to claim any title in the premises, should have taken legal steps to have asserted the same. This he might have done by taking possession of the property, if it was feasible; or have brought ejectment to recover the possession thereof. The statute of 1885, Act No. 158, § 115, provides.”

Counsel here quote the section and proceeds:

“This statute gives the purchaser of the tax deed five years in which to take possession or bring proceedings to obtain the same. If he has taken possession, then section 16 of said act applies and the original owner shall, within five years after possession has been taken by the holder of the tax title, bring an action for the recovery of possession. The two sections are statutes of limitations, one section providing what the purchaser of the tax title must do in order to perfect his title; and the other is what the holder of the original title must do to maintain his title, provided the owner of the tax title has entered into possession.”

We do not think this contention is tenable in the instant case because the owner of the tax deed has not taken possession of the land, and the owner of the original title is not seeking to get possession of it, for he already has it. The record discloses that the plaintiff, when he bought the land, knew defendant had the tax deed, and was claiming he was entitled to be reimbursed the amount named therein with interest and costs before he could be compelled to convey the interest he obtained by virtue of his tax deed.

It is claimed on the part of the plaintiff that before commencing this proceeding he demanded from defendant a quitclaim deed and was refused. Defendant admits that the demand was made and says he refused to give it because plaintiff refused to pay him anything for it, and that he, the defendant, then stated he would sign the deed upon payment of the amount named in the tax deed and interest. The defendant did not launch these proceedings, but they were begun by the plaintiff upon the theory that he did not have to pay defendant anything before he could have the tax deed declared to be a cloud upon his title. It is a familiar rule that one who seeks the aid of an equity court must be prepared to do equity. Merrill v. Humphrey, 24 Mich. at p. 175.

In Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich, at p. 454, the court said:

“If, as in the present case, the taxpayer petitions the court in chancery in the auditor general’s proceedings to foreclose a lien, the court will compel him to do equity. If the taxpayer is in possession, and files a bill to remove a cloud from the title, the court may then compel him to do equity.”

In Aztec Copper Co. v. Auditor General, 128 Mich, at p. 620, it is said:

“The petitioner did not offer in its petition, nor during the progress of the trial in the court below, to reimburse the respondents for the amount paid by them to the State at the time of their purchase, and the decrees rendered by the court below did not require this to be done. In Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich, at p. 454, it is said, in a like case to this: Tf, as in the present case, the taxpayer petitions' the court in chancery in the auditor general’s proceedings, the court will compel him to do equity.’ See, also, Jenkinson v. Auditor General, 104 Mich. 34; McGinley v. Mining Co., 121 Mich. 88. In his supplemental brief in this court, counsel offers to pay the respondents the amount paid by them at the time of their purchase, with interest, if the court deem it equitable and right. We think the petitioner ought to be required to do this before the decrees are vacated, and when it is done, that the decrees should be vacated.”

To the same effect is Horton v. Salling, 155 Mich, at p. 506.

In Morrison v. Semer, 164 Mich, at p. 211, the court said:

“There having been no evidence offered, however, in support of the charge of the bill of complaint showing the invalidity of the taxes for those years, the court held that, in accordance with the maxim that he who seeks equity must do equity, and this being a bill of complaint to quiet title, the complainants should be required to repay these taxes as a condition of relief— citing Croskery v. Busch, 116 Mich. at page 289.”

In Vandervelde v. Wilson, 176 Mich. at p. 191, it is said:

“He who asks equity must do equity. Webb in his work on Usury (page 398) says:
“ ‘But where the bill for relief against an usurious contract does not come strictly within the terms of the statute relieving the borrower of either paying or tendering interest in addition to the principal he will be governed by the general rule of law and compelled to pay or tender both principal and legal interest, for such statutes are construed strictly.’
“Complainant in order to obtain relief in a court of equity against an attempt to collect usurious interest, must offer to pay the principal and legal interest, it being understood that this means the legal rate of interest fixed by the statute and not the rate provided for in the mortgage.”

When the tax deed was given, the legal rate of interest was seven per cent. This continued until 1891 (Act No. 156, Pub. Acts 1891), when it was made six per cent., and it Remained at six per cent, until Act No. 207, Pub. Acts 1899, was passed, since which time it has been five per cent.

The decree will be modified so as to give defendant interest at those rates. Defendant will recover costs of both courts.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    OLSON MANFG. CO. v. REX MOTOR CO.
    Interveners — Judgment Creditors’ Bill — Procuring Entry oe Decree in Supreme Court.
    The petition of judgment creditors to be allowed to intervene in a certain cause and procure the entry of a decree in this court pursuant to the opinion therein (203 Mich. 470), and obtain the benefit of such decree, must be denied, where it appears from the answer that the provisions of the decree of the court below in said cause, as modified by the opinion in this court, have already been carried out, and the various sums of money so found to be due and payable have been paid in accordance therewith, thus accounting for the fact that no decree has been entered in this court.
    Judgment creditors’ bill by the Olson Manufacturing Company and another against the Rex Motor Company, Charles H. Riopelle and others: On petition of the Detroit Steel Products. Company to intervene and have decree entered in this court for their benefit.
    Submitted October 20, 1920.
    (Calendar No. 28,294.)
    Petition denied December 21, 1920.

      Stevenson, Carpenter, Butzel & Baekus (Rockwell T. Gust, of counsel), for petitioner.

      Donnelly, Hally, Lyster & Munro, for defendant Riopelle.
   Moore, C. J.

The Detroit Steel Products Company, a judgment creditor of the Rex Motor Company, on July 17, 1920, filed its petition to be allowed to intervene in the above cases for the purpose of procuring the entry of a decree in the cause pursuant to the opinion filed therein, and that it may obtain the benefit of a decree made in accordance with the opinion.

The opinion referred to is found in 203 Mich. 470, and a reading of it will simplify matters very much.

We have learned and elaborate briefs by both counsel upon the right of a court to permit parties interested to intervene in cases at proper times and places, and there can be no doubt about the general principle, but in none of the authorities cited were the facts like those presented in the instant case. The petition shows that petitioner is a judgment creditor of the Rex Motor Company, and that it has filed a judgment creditor’s bill, which is yet pending in the circuit court. It also shows that while the case was undetermined in this court it did not ask for leave to intervene, though it did ask and was granted permission to file a brief. The opinion in this court in the above cases was filed December 27, 1918, and the decree of the court below was slightly modified and affirmed. This decree determined that the plaintiffs therein were entitled to be paid certain definite sums of money by defendants. The answer to the petition we are now considering shows that in March, 1919, these amounts so decreed were paid in full by defendant Riopelle, and assignments of the various amounts due the plaintiffs were made to him. This will undoubtedly account for the fact that no decree was entered in this court. The parties to that litigation doubtless thought it was ended. It was not until long after these payments were made that the petition now before us was filed. Under the facts disclosed by this record we think the plaintiff must be relegated to the forum formerly selected by it in which to conduct its litigation.

Its petition is denied, with costs to defendants.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Sharpe, J.

text:
    WABASH RAILWAY CO. v. BLOOMGARDEN.
    1. Carriers — Freight Charges — Liability—Acceptance of Shipment.
    In an.action for freight and icing charges on two car loads of peaches, where defendant produced the bills of lading and received the peaches, he became, so far as plaintiff railroad company was concerned, the consignee of the shipment and liable for the freight and other charges pursuant to the conditions indorsed on said bills of lading.
    2. Same — Affirmative Defense — Notice.
    The defense that defendant, by agreement with a representative of plaintiff, was to'take the peaches without making payment of such charges is an affirmative defense, of which plaintiff was entitled to notice under Circuit Court Rule No. 23, § 2.
    3. Same — Directed Verdict.
    Where no such notice was given in reference to one of said cars, a directed verdict for defendant held, reversible error.
    4. Same — Freight Charges — Liability of Consignor.
    Consignor having stricken out the words “we pay” in the bill of lading, held, that it had a right to expect that plaintiff would not deliver the peaches without payment of the freight.
    5. Same — Affirmative Defense — Release — Burden of Proof— Principal and Agent.
    In order to establish his defense that he was released from liability for the freight charges by agreement with plaintiff’s representative, the burden was upon defendant to show that said agreement was made with a representative of plaintiff having authority to make the same, and that the consignor consented thereto.
    6. Same — Freight Charges — Agreement with Consignor — Validity.
    There is no rule of law, which, on defendant’s refusing to accept the peaches, owing to their damaged condition, would prevent the plaintiff from, agreeing with the consignor to look to it alone for the freight charges.
    7. Same — Principal and Agent — Agent’s Authority — Evidence —Question por Jury.
    The authority of plaintiff’s employee- to make the alleged agreement relied upon by defendant, held, under the evidence, a question for the jury.
    8. Same — Telegraphs and Telephones — Evidence—Admissibility —Notice.
    Testimony by defendant as to certain telephone conversations with the consignor, and the receipt in evidence of a telegram from it, held, inadmissible unless' such matters were communicated to plaintiff at the time the alleged new agreement was made.
    Error to Wayne; Hosmer (George S.), J.
    Submitted October 12, 1920.
    (Docket No. 88.)
    Decided December 21, 1920.
    Assumpsit by the Wabash Railway Company against Abraham J. Bloomgarden for certain freight and icing charges. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Beaumont, Smith & Harris (Thomas B. Moore, of counsel), for appellant. '
   Sharpe, J.

Plaintiff sues to recover the freight and icing charges on two car loads of peaches shipped from Willard, Utah, to Detroit in September, 1914. The shipments were made by the Gibson Fruit Company, consigned to itself at Chicago, in two' cars, numbered P. F. E. 11223 and P. F. E. 468, over the Oregon Short Line i’ailroad. On the arrival of the cars in Chicago, they were reconsigned by the consignee to its own order at Detroit, with instructions to notify the defendant, “Allow inspection without bill of lading,” “Protect through rate,” “Charges follow,” the words “we pay” being stricken out. The cars were forwarded to Detroit by the plaintiff, arriving there about September 17th, and the defendant notified. The bills of lading were attached to two drafts for $500 each and sent by the fruit company to a bank in Detroit for collection. The defendant paid the drafts, delivered the bills of lading to plaintiff, and received the contents of the cars.

Plaintiff’s declaration consists of two special counts, each setting up the transportation and delivery of a specific car to the defendant. The common counts were added. A bill of particulars of the freight and refrigeration charges on each car was furnished. The defendant with his plea of the general issue gave notice that he would prove that the fruit company was the owner of the peaches in car No. 11223; that the same were turned over to him by the company to be sold on commission; that they were in bad condition, and that, acting under instructions from the fruit company, he disposed of them for the highest price possible. Car No. 468 was not mentioned in the notice.

The defendant testified that when the cars arrived in Detroit he inspected the peaches and found them almost worthless and refused to accept them. He was permitted to prove in his defense, over plaintiff’s objection, that he told the man in charge of plaintiff’s office that the peaches “would not bring the freight, * * * it was up to Mr. Gibson to pay for them, and Mr. Gibson had to communicate with them with reference to this”; that he then communicated with the fruit company at Chicago by letter, telegram and telephone, and at its urgent request, as evidenced by a telegram reading, “Take care drafts those last cars peaches will protect you refund immediately any amount you be short,” he took up the drafts and delivered the bills of lading to plaintiff; that when he did so he told the man in charge of plaintiff’s office that he “was not going to pay the freight on them,” and the man told him "to go ahead and take them”; that he unloaded the peaches and sold them for the best price he could get for them, receiving $126 therefor; that he credited this amount on the $1,000 he had paid and has not been paid the balance.

The defendant was on the “credit list” of the plaintiff company and entitled to receive freight without paying cash therefor. The claim of the plaintiff, with interest, amounted to $833.07. After the proofs were submitted, the trial court directed a verdict for the defendant. From the judgment entered thereon, plaintiff appeals. No brief has been filed on behalf of the defendant.

Section 8 of the conditions indorsed on the bill of lading reads as follows:

“The owner or consignee shall pay the freight, and all other lawful charges accruing on said property, and, if required, shall pay same before delivery.” * * *

The bills of lading were attached to the drafts, and defendant well understood that he could not secure delivery of the peaches without their surrender. The consignment to Detroit was to the order of the Gibson Fruit Company, notify A. J. Bloomgarden. When the defendant produced the bills of lading and surrendered them and received the peaches, he became, so far as the plaintiff was concerned, the consignee of the shipment and liable for the freight charges. He seeks, however, to absolve himself therefrom by proof of an agreement made between him and a representative of plaintiff whereby he “was to go ahead and take them” without making payment of such charges. This was clearly an affirmative defense, of which the plaintiff was entitled to notice under section 2 of Circuit Court Rule No. 23. Board of Sup’rs of Chippewa Co. v. Bennett, 185 Mich. 544, 563, and cases cited; Hanley v. Gowan, 202 Mich. 293; Meeuwsen v. Clough & Warren Co., 207 Mich. 701. No notice whatever as to the defense which would be interposed was given as to car No. 468. For the insufficiency and want of such notice, the case must be reversed.

In view of the probable amendment of the plea and notice on a new trial, we feel called upon to consider the claim of the defendant that he received the peaches under an agreement that he should not be required to pay the freight charges. The shipment was interstate, and the duty devolved on plaintiff to collect the freight charges. As a common carrier, it had a lien on the peaches and it could not legally permit this lien to be discharged without securing payment. Acceptance by defendant, who was on plaintiff’s credit list, would, of course, be equivalent to payment. So that, if we consider only the bills of lading and the delivery of the peaches to defendant on his surrender of the same, a liability on his part to pay the freight charges would attach.

But this would not prevent the plaintiff and the defendant from entering into a new agreement with the consent of the consignor, the fruit company, whereby the plaintiff might deliver the peaches to the defendant, acting as agent for and on behalf of the consignor, and that plaintiff would look to the fruit company alone for the freight charges. While, in view of the Federal statute, an agreement to release the freight charges altogether would be invalid, we can see no reason why plaintiff might not agree to look to the consignor for such charges. To release the defendant, the burden would be on him to show that such an agreement was made with a person representing the plaintiff, having authority to make the same, and that the consignor consented thereto. Having stricken out the words “we pay" in the bill of lading, the fruit company had a right to expect that the plaintiff would not deliver the peaches without payment of the freight. There is no rule of law, however, which, on defendant’s refusing to accept the shipment, owing to its condition, would prevent the plaintiff from agreeing with the fruit company that it would look to it alone for the freight charges. The authority of plaintiff’s employee, spoken of by the defendant as its cashier, was, we thiiik, under the evidence in this record, a question for the jury. McEachran v. Railway Co., 115 Mich. 318.

The testimony of the defendant as to certain telephonic conversations had with Mr. Gibson and the receipt in evidence of the telegram he claimed to have received from the fruit company were clearly inadmissible unless it appeared that such matters were communicated to the plaintiff and considered by it at the time the alleged new agreement was made.

The judgment is reversed, and a new trial ordered, with costs to plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Brooke, J.

text:
    KNOTH v. A. HARVEY’S SONS MANFG. CO.
    Judgment — Conclusiveness—Res Judicata — Injunction.
    On appeal from a decree dismissing plaintiffs’ bill to set aside a sale of land to satisfy a judgment and to enjoin tbe issuing of a writ of assistance, where it appears that the matters in controversy were once litigated and decided adversely to plaintiffs, from which no appeal was taken, the decree of the court below will be affirmed, although additional facts are set up in the bill and additional prayers appended thereto.

      Appeal from Wayne; Codd (George P.), J.
    Submitted October 15, 1920.
    (Docket No. 30.)
    Decided December 21, 1920.
    Bill by Hilliard Knoth and another against A. Harvey’s Sons Manufacturing Company to set aside'a commissioner’s sale, and to enjoin the enforcement of a writ of assistance. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      E. A. Fink, for plaintiffs.

      Henry B. Graves, for defendant.
    On November 7, 1910, defendant in the case at bar secured a judgment against plaintiff Hilliard Knoth. In September of the same year, plaintiff had purchased upon a land contract the property here in question and had, with his family, gone into occupancy thereof. During the five years following, plaintiff made such payments upon the land contract as to entitle him to a deed of the premises (which was taken in the names of himself and wife as tenants by the entireties) and during the same time had paid about $113 upon the judgment. Plaintiff having made no further payments upon the judgment, defendant caused the same to be certified to the circuit court and execution issued thereon, which was returned nulla bona. Upon an alias execution a levy was made upon the property in question and on Juné 8, 1916, defendant filed a bill in the nature of a judgment creditor’s bill in which it was averred that the title to said real estate was taken in the joint names of the two plaintiffs as tenants by the entireties fraudulently and “as a mere sham and made so as to hinder, delay and defraud” the defendant. The prayer of the bill asked “that the deed of conveyance made to the said Hilliard Knoth and Frances Knoth, his wife, may be decreed to be fraudulent and wholly void as to your orator,” etc. Both plaintiffs were personally served with process in this chancery suit, but neither entered an appearance therein.
    Nearly a year later, and on April 30, 1917, after plaintiffs had been duly defaulted for lack of appearance, a decree was entered in said proceeding wherein it was determined that the deed attacked “is fraudulent and wholly void as to the plaintiff herein, and that said land is the property of the said Hilliard Knoth, and that the said Frances Knoth has no right, title nor interest therein, as against the plaintiff herein, or against whomsoever may be the purchaser or purchasers thereof and whatsoever apparent interest she may have therein is held in trust by her for said Hilliard Knoth.” The decree then proceeds to order the land to be sold by a circuit court commissioner for the county of Wayne “in the manner and after giving the notices required by law for the sale of land upon levies made by virtue of writs of fieri facias issued to enforce judgments of courts of law.” Then follow the usual provisions as to the application of the funds so realized, the giving of the deed, the right of redemption, etc.
    About a month later, and on June 7th, plaintiff Hilliard Knoth was notified in writing of the decree and the amount thereof, said notice concluding:
    “If you wish to save the expenses of sale and do not wish to lose the property, you had better pay this sum at once.”
    Complying with the terms of the decree, the property was sold on October 19, 1918, to defendant by a circuit court commissioner, the sale was confirmed, and the deed recorded. Again, on November 6th, more than six months after the entry of said decree, plaintiffs were both notified of the situation, the notice concluding:

      “It is not the desire of client to secure the property, but only to compel payment of the debt due client. However, unless the redemption is made from the sale, the property surely will be lost.”
    No steps were taken by the plaintiffs to protect their rights and the matter remained in statu quo for over ten months thereafter.
    Shortly before September 18, 1918 (about 15 months after the entry of said decree), plaintiffs herein filed a petition in the judgment creditor’s proceeding, setting out, among other things, that—
    “Your petitioners had before that time been legally advised that the said premises so purchased and occupied was a homestead, exempt and reserved to them by the Constitution and laws of the State of Michigan, and that they were secure from being deprived thereof through any legal process, and that relying upon such legal advice and assurance, your petitioners made no appearance in the said cause herein, and were wholly ignorant of any and all proceedings taken therein, except that they were later informed by letter from counsel for plaintiffs that the said premises, constituting the homestead of these petitioners, had been sold under decree and order of this court and that unless these petitioners redeemed from such sale their home would be lost to them.”
    The- fact of the sale under the terms of the decree and the giving of the deed are likewise set out in said petition, and the following relief is prayed:
    “Your petitioners therefore pray that they may have leave of this honorable court granted to them to file an answer to the said bill of complaint, and in connection with such answer to exhibit an answer in the nature of a cross-bill to be considered as a bill of review and supplement against the said plaintiff A. Harvey’s Sons Manufacturing Company, Limited, for the purpose of having the said decree vacated and set aside, and that a new decree may be made and entered in this cause in accordance with the facts and equities therein, a copy of such answer and proposed bill of review and supplement being hereto áttached, and that your petitioners may have such further and other relief as shall be agreeable to equity,” etc.
    To this petition, defendant filed an answer and the same came on to be heard before Judge Hosmer, who, after argument, on October 16, 1918, entered the following order:
    “This cause having come on to be heard upon the application of the defendants for leave to file a bill of review and supplement, and for an order vacating the decree heretofore filed, entered and enrolled in the cause, and permitting the defendants to file an answer to the bill of complaint, and upon the answer of the plaintiff to said petition, and after hearing the arguments of counsel for the plaintiff and defendants, respectively:
    “It is ordered that said petition be and the same is hereby denied.”
    Thereafter, and on October 22, 1918, defendant wrote the following letter to counsel for plaintiffs: 1
    “The time for redemption has now expired in this. matter and I understand from you that you have heard nothing from your clients. In view of the fact that the hearing on your application was delayed partly on my account, I think it no more than fair to give you a little additional time to enable your clients to act.
    “Accordingly, your clients may either redeem by paying the full amount with interest at 6 per cent, on or before October 31,1918, or my client will give them a land contract to repurchase the property for $475, payable cash $125, and the balance of $350 with interest at 6 per cent., in monthly payments of $10 or more, provided all is to be paid within three years.
    “If either of these steps is not taken on or before October 31st, I do not think there will be any more negotiating.”
    Plaintiffs, through their counsel, replying to said letter, offered to pay the sum of $322.25 for a quitclaim deed. This offer was declined by defendant and an application for a writ of assistance was made. Notice of hearing was fixed for the 7th'day of July, 1919.
    At this point in the controversy, the bill herein was filed by plaintiffs, in which the entire history of the case was set forth, plaintiffs praying for the following relief:
    “ (a) That the sale of the said homestead under decree^ as aforesaid, because of irregularity in disregarding the directions of the decree and the statute in such case made and provided, be set aside and held to be wholly void and without effect; that your orators may be protected in their homestead rights.

      “(b) That the said defendant, its agents and attorneys, be restrained by order and injunction of this court from interfering with the possession of your orators of said premises.
    • “(c) That the said defendant, by order and injunction of this court, be restrained from taking any proceedings whatever for interfering with the possession of your orators to the said premises until further order of this court.

      “(d) That your orators may have such other, further and different relief as may be agreeable to equity and good conscience, and your orators will ever pray,” etc.
    An answer was filed and the case went to a hearing on September 15, 1919. The only evidence introduced by plaintiffs, aside from that of a documentary character, consisted of testimony tending to show that plaintiffs had since 1910 occupied the premises in dispute as a homestead, and that its value was about $2,200, subject to a mortgage of $600. After argument, the court rendered the following opinion:
    “I do not believe that the sale of the property in question was not in conformity with either the statute or the provisions of the decree itself. I believe these matters have been practically decided by the order of Judge Hosmer, which has not been appealed from, and I am not disposed to disturb either his findings or the former decree of this court. •
    “The bill may be dismissed.”

      From a decree rendered in accordance therewith, the plaintiffs appealed.
   Brooke, J.

{after stating the facts). The history of this case, as set out in the foregoing statement of facts, demonstrates, we think, that plaintiffs have been guilty of such laches in endeavoring to protect their rights after they had been fully advised of them as should, under our authorities, prevent a consideration of their contentions upon the merits. Goodwin v. Burns, 21 Mich. 211; Lyon v. Brunson, 48 Mich. 194; Union Trust Co. v. Amusement Co., 168 Mich. 574.

It is, however, unnecessary to predicate determination upon this point. The petition filed by the plaintiffs in the judgment creditor’s proceeding directly attacked the decree therein upon the very ground now urged as a reason for relief, namely, that no consideration had been given to the fact that the property in question was occupied by the plaintiffs as a homestead. Judge Hosmer, in his order of October 16, 1918, denied the prayer of that petition, and no appeal was taken from that order nor from the decree to which it related.

The contention of the plaintiffs in the case at bar that, in their prayer for relief in said petition they did not specifically ask that the sale be set aside, whereas in their prayer for relief in the case at bar they admit the validity of the decree but demand that the sale be set aside, is, we think, without force. Had the decree been vacated in accordance with the petition in the judgment creditor’s proceeding, the sale, of course, would necessarily have been vacated. The matter having once been litigated and a determination having been reached thereon, and no appeal having been taken from that determination, the parties are not now entitled by independent bill to relitigate the same questions, even though additional facts are set up in the bill and additional prayers appended thereto. Kellogg v. Thompson's Estate, 115 Mich. 618; Peters v. Youngs, 122 Mich. 484; Harrington v. Huff & Mitchell Co., 155 Mich. 139; People v. Railway Co., 157 Mich. 144; LaVasser v. Lumber Co., 190 Mich. 403; City of Detroit v. Triangle Land Co., 207 Mich. 49.

The decree of the court below, dismissing the bill, is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    FALAHEE v. CITY OF JACKSON.
    Municipal Corporations — Highways and Streets — Negligence Contributory Negligence — Directed Verdict.
    In an action against a municipality and a railroad company for personal injuries caused to plaintiff by being crushed against a bridge over a public street, under which he attempted to pass while riding on top of a load of hay, where it appears that he could easily have ascertained whether or not he could safely pass under, but failed to do so, he was guilty of contributory negligence, as a matter of law.
    Error to Jackson; Williams (Benjamin), J.
    Submitted October 21, 1920.
    (Docket No. 98.)
    Decided December 21, 1920.
    Case by Thomas J. Falahee against the city of Jackson and the Michigan Central Railroad Company for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      James J. Noon and Richard Price, for appellant.

      Lyman B. Trumbull, for defendant city.

      Cobb, Bisb&e & Wilson (Frank E. Robson and J. W. Dohany, of counsel), for defendant company.

      Thomas E. Barkworth, amicus curias.

   Moore, C. J.

The plaintiff is a farmer 37 years old. On the 28th of October, 1916, he brought a load of hay to the market in Jackson. The main line of the Michigan Central railroad passes over Mechanic street on a bridge. Just north of this overhead bridge, a distance of about 25 feet, the Valley branch of the Michigan Central railroad passes over Mechanic street at grade, and is guarded by gates operated by a man who stood on the west side of the street. Plaintiff while sitting on the. top of his load of hay undertook to drive under the overhead bridge on Mechanic street. There was not sufficient room for him to do so. He was struck by the under side of the bridge and received permanent injuries. He claimed both defendants were guilty of negligence, and brought this suit to recover damages.

After the testimony offered on behalf of plaintiff was closed both defendants asked for directed verdicts. The trial judge was of the opinion that plaintiff was guilty of contributory negligence, that he did not file his notice of claim against the city in time to entitle him to recover, and that the defendant railroad company was not shown to be guilty of negligence, and directed a verdict in favor of both of the defendants. The case is brought here by writ of error, it being the claim that under the proofs the case should have been submitted to the jury to say whether plaintiff was guilty of contributory negligence; that the necessary notice had been given and that the trial judge was not warranted in saying, as a matter of law, that the railroad company was not negligent. An overhead bridge had been maintained at this point more than 50 years. No substantial changes had been made in its condition, or that of the street under it for 10 years or more.

It may be well now to refer to the testimony of the plaintiff:

“After leaving the city scales, I drove along Michigan avenue to the corner of Pearl and Mechanic streets, and then north on Mechanic street.
“Q. Tell us about that, Mr. Falahee, from the time you started toward the north on Mechanic street, just what occurred.
“A. Well, when I was at the north line of the river bridge, that I would think is approximately 200 feet or 225 from the overhead bridge, as I got to the north line of the river bridge, there was an engine and two box cars went west on the Valley road, on the surface track. And the gate tender lowered the gates and the train and the two box cars passed over to the west. * * *
“He saw me with this load, or coming with the hay. Then he lowered the gates again to the pavement so this little rod which steadied the gates touched the pavement momentarily; then he looked in the direction in which the train had gone, raised the gates there probably half or two-thirds of the way, I should say; then he lowered. them so that the rod touched the pavement as it did a short time, then up again half or two-thirds of the way, and stopped and paused for a moment, then raised them from there on up. The first time he raised the gates, I should say, I was perhaps 100 feet from this overhead bridge, and the last time he raised them I was right at the bridge; you might say I was right at the head of Clinton street. The last time he raised the gates he raised them from an upper position.
“Q. Where were you at that time? Where was your team?
“A. Right at the bridge. The team was under the bridge when he raised them from this upper position.
“Q. Go on and tell us what happened.
“A. Well, sir, the bridge was right there in front of me, and I didn’t even have time to put up — I saw the bridge and just did like that (indicating), and when I did that, there is an iron girder, I should say, perhaps it is nine inches square — I couldn’t be positive— and then there is iron rivets with big round heads on, like big bolt heads, that stick down on the under side of the big iron girders. There are three of those girders, one on the south side, one in the center and the third on the north side. Then there are iron braces which run crosswise like this (indicating), then ends resting on these heavy iron girders, which take the place of ties the track sits on if it was a surface track. The first iron girder which I spoke of caught me here in the back of the head and put my face right around between my shoes like that. I was sitting about 3 feet back from the standard at the right-hand side of the binding pole, and there was a pitchfork — the tines were sticking into the hay like that (illustrating), right in line with my body, right back of where I was sitting, and this other iron girder which I spoke of, which is in the center of the bridge, caught me over the right eye and doubled me over backwards and twisted my arms about in this manner (indicating), and jerked them up and aroúnd and paralyzed my arms, and this same iron girder brushed the pitchfork that was in line with my body and laying flat on the hay off onto the pavement, and paralyzed my arms and I lost my reins. Then it just twisted and pulled me every way, a regular crushing process, a good deal like being under a big press and being squeezed tighter and tighter all the time, for the reason that the clearance is much less as 1 progressed toward the north. For that reason I was getting crushed worse. As soon as the load pulled out from under the bridge I started to raise myself. I just raised myself up on my right elbow, and I saw I was injured and I couldn’t raise. I had to lay back. Somebody coming along walked out and took the horses by the b'it and said ‘Whoa.’ * * *
“The fork that I spoke of was lying flat on top of the load of hay before the accident; the tines stuck down in the hay so the handle would lie flat. I was about three feet back from the front end of the load of bay, I should say; sitting on the right-hand side of the binder pole, and the fork was right behind me.
“This was an iron bridge. I have measured it since the accident and this is what I made it: South side, 11 feet i/2 inch; center, 10 feet 6% inches; north side, 10 feet 5 inches. I measured from under side of the girders to the pavement.”

Cross-examination by Mr. Cobb:

“I .have known of the Mechanic street bridge for many years. Have driven under it many times. Have also driven under the Jackson street bridge.
“Q. You never reached the conclusion that that bridge was too low, did you?
“A. No, sir.
“Q. Always thought it was high enough?
“A. Yes, sir.
“Q. When did you take into account the height of the bridge and conclude it was high enough?
“A. Why, I never gave it a thought, Mr. Cobb.
“Q. I thought you said you did think it was high enough. Didn’t you say so?
“A. Yes.
“Q. When did you reach that conclusion?
“A. Always I had the opinion it was high enough. * * *
“Q. How high is the Mechanic street bridge at the south side. You have the figures there, haven’t you?
“A. Eleven feet % inch, as I remember it at the south side.
“Q. This is one and a half inches higher?
“A. According to this measurement.
“Q. Do you think you were squeezed by one and one-half inches down there?
“A. Positive of it.
“Q. Do you think one and one-half inches did you the damage?
“A. The farther I progressed the more damage I got.
“Q. Were .you damaged at all when you first went under the bridge?
“A. Yes, sir. * * *
“Q. You saw the bridge when you were 200 feet or more to the south of it?
“A. Yes, sir. i
“Q. You assumed it was the same height as the Jackson street bridge under which you had passed?
“A. Yes, sir.
“Q. Consequently assumed, Mr. Falahee, that you could go under there with safety the same as you had under the Jackson street bridge?
“A. Yes, sir.
“Q. So until you were struck you gave no attention whatever to the height of the bridge?
“A. No, sir. The train going over the crossing was moving slowly. I traveled probably 100 feet while the engine and cars were passing over the crossing,- and that brought me somewhere about midway between the river bridge and the railroad. My team was walking on a good, stiff walk. It was .a perfectly gentle team.
“Q. You could have stopped the team anywhere with perfect safety on the street?
“A. Yes, sir. They were not excited or unmanageable in the least. The cars had passed out of sight when the gateman proceeded to raise the gates. He raised them half or two-thirds of the way up. * * *
“Q. Where had you got when he lowered the gates that time? That is, the second time the gates came down and touched the pavement, as you have testified? Where had the team got that time?
“A. That was the second time they came down, you claim?
“Q. Yes.
“A. Well, the second time I was within 60 or 100 feet of the bridge.
“Q. You were the first time when the gates went up. You say you were at the head of Clinton street?
“A. The first time I was within a hundred feet. * * *
“There has been some kind of a bridge there all my life, ever since I can remember, coming to the city when I was a child.”

Cross-examination by Mr. Trumbull:

“The Valley track is about 20 feet north of the bridge. The grade of the Valley track is higher than the grade of Mechanic street as it goes under the ■bridge. There is kind of an approach up to the Valley track. It doesn’t make a steep grade. It begins to raise somewhere along there about the second girder, and from there on gradually raises until you get over the track.”

Redirect-examination by Mr. Price:

“Q. I think Mr. Cobb asked you the question, ‘You claim this bridge is one and one-half inches too low,’ and you answered yes. What did you mean by that?
“A. I meant it was an inch and a half too low for that load I went under there with. * * *
“Q. Now, he put this question to you" ‘You paid no attention to the bridge until you got struck,’ and you said no. I think that was the question and answer. Is that correct?
“A. It couldn’t be correct because if I hadn’t paid strict attention it would have struck me in the face, instead of back of the head. I certainly must have paid attention before I ducked to go under.
“Q. Then, is it true you paid no attention at all until you got hit?
“A. No. * * *
“Q. Had you driven under this bridge before with a load of hay?
“A. No, sir.
“Q. Or with a load of anything as high as a load of hay?
“A. No, sir.” * * *

Recross-examination by Mr. Cobb:

“Q. How close would you have to get to the bridge before you could tell whether you could go under there safely or not?
“A. This is the question, how close would I have to be to determine whether it was high enough for me to go under?
“Q. Yes.
“A. Is that the question?
“Q. Yes.
“A. A man could tell when he was back 20 feet, perhaps.
“Q. Have you got that as you want it, so you don’t want to change it any more?
“A. I think I have, Mr. Cobb.
“Q. You want to have it a man could tell when he got up within 20 feet of that bridge, if he was paying attention, whether or not he could safely go under it or not?
“A. Yes, I would say so.”

The testimony of the plaintiff discloses that he knew about the bridge, about the size of his load of hay, and that he was approaching an overhead bridge that he could see clearly, but it is claimed that his attention was diverted by the lowering and lifting of the gates so that he is relieved from negligence in proceeding with his load without ascertaining whether there was sufficient clearance so that he could do so with safety. Counsel say:

“The attention of the plaintiff Falahee was necessarily diverted to the railway track which crossed on the surface because of the passing of an engine and some cars and the operation of the gates. It is held that under such circumstances the question of contributory negligence in not seeing and avoiding danger is a question of fact for a jury. See 5 Thompson on Negligence, § 6240. * * *
“We insist that the circuit court erred in this, and that under all the circumstances it was for the jury to pass upon question of contributory negligence and that the circuit judge had no right to say, as a matter of law, that plaintiff was blamable and the defendants without fault.
“How can it be said, based upon the record, that there is indisputable evidence that plaintiff Falahee was not exercising ordinary care, or that his'want of care contributed to his injury. The record discloses a question of fact for a jury and is not the- basis when fairly considered for a peremptory instruction of a court. 5 Thompson on Negligence, § 6252.
“Under the decisions of this State many cases have been submitted to a jury upon records showing knowledge of a defect or danger on the part of plaintiff. Rohlfs v. Township of Fairgrove, 174 Mich. 560; Pearll v. City of Bay City, 174 Mich. 652.”

A reference to the authorities cited will show them not controlling of the instant case.

Counsel cite Vinton v. Township of Plainfield, 208 Mich. 179, as authority for the statement that the highways are made for the use of farmers as well as others. That statement is undoubtedly true, but there is no suggestion in the opinion that farmers, like all other travelers while on the highway, must not exercise the care that an ordinarily prudent man should observe.

In Harden v. City of Jackson, 137 Mich, at p. 275, Justice Hookee, speaking for the court, said:

“A man walking on crutches knows the common method of building sidewalks. He knows that the edges of boards decay and knots drop out, and instinctively he learns to avoid putting his crutches in holes or cracks. We think it is not negligence for a city to use its plank walks, although they have cracks and knot holes through which a cane or crutch would go, acting upon the éxpectation that the traveler must know that they are practically unavoidable, and are common to all sidewalks, long before they are sufficiently worn to justify pulling them up and building anew. The city has a right, in the maintenance of its walks, to expect a reasonable degree of care from all persons; and when its walks are safe for the ordinarily prudent use, there is no negligence. If there were no walks the pedestrian might still fall, and the crutches of the infirm go down in holes made by animals, or in soft places. An accident from such a cause would be a casualty. So, too, there may be casualties upon walks. The cities are not insurers of those who walk on sidewalks, and even though injured without negligence on their part, the same is no more than a casualty if the walk is as good as such person has a right to expect. Such is this accident. As in cases of snow and ice, there is a limit to the duty of the municipality. Bigelow v. City of Kalamazoo, 97 Mich. 121; Weisse v. City of Detroit, 105 Mich. 482; Leslie v. City of Grand Rapids, 120 Mich. 28; Jackson v. City of Lansing, 121 Mich. 279; Lee v. City of Port Huron, 128 Mich. 536 (55 L. R. A. 308).”

In Miller v. City of Detroit, 156 Mich. 630, it was held the city was not liable because of an injury caused' by the dropping of a large dead limb from a tree over the sidewalk.

The law has been stated as follows:

“It may be stated, as the general rule applicable in most situations, that the law does not oblige a traveler on the highway to keep his eyes constantly upon the road before him, to the end that he may avoid being injured by any defect that may possibly exist therein. He may rightfully assume, in the absence of knowledge to the contrary, or in the absence of visible obstructions, or some circumstance sufficient to put him on inquiry, that all parts of the road, street,' or sidewalk, improved and intended for public travel, are in a fit condition for such use; and the law does not make it blameworthy in him not to anticipate negligence in those whose duty it is to keep the highway in repair.” 5 Thompson on the Law of Negligence, § 6238.

The inference may be fairly drawn from this statement that if there are visible obstructions they may not be safely ignored. 6 McQuillan on Municipal Corporations, page 5744, reads as follows:

“At the same time, defects may be so obvious that a traveler must see them if he is paying any attention to where he is going, and in such case the failure to observe the defect is generally held to be contributory negligence, on the theory that it is not the act of an ordinarily prudent person.” Citing many authorities.

In the instant case the traveler knew he was riding on a load of hay much bulkier than the vehicles or loads usually traveling the highway. He knew he was about to pass under an overhead bridge. He knew that if there was not considerable clearance between the top of the load of hay and the bridge he could not pass in safety while riding on top of the load. He saw the bridge. He knew by stopping his team just before going under the bridge he could ascertain to á certainty whether he could pass safely. If he had observed he would have known he could not pass under it safely. If he had slipped off his load and driven his team while walking on the pavement he would have avoided all danger. We think the court was quite right in saying, as a matter of law, that his conduct, as. testified to by him, was not that of an ordinarily prudent man.

This conclusion makes it unnecessary to discuss the other assignments of error.

The judgment is affirmed, with costs to defendants.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    BOWEN v. DETROIT UNITED RAILWAY.
    1. Damages — Assumpsit—Conversion—Form of Action— Quasi Contract — Measure oe Damages.
    In an action in assumpsit for the conversion of two car loads of coal, where, defendant conceded that, under the pleadings, the case should be tried on the theory that the conversion had occurred under a quasi contract, the proper measure of damages was the value of the coal in the open market at the time and place of conversion.
    2. Same.
    Defendant’s contention that, under the pleadings, the measure of damages should be the price it would have to pay for coal of like quality under its contract, which was less than the market price at the time, there being a great scarcity, on the theory that it should pay the amount it was enriched rather than, the amount that plaintiff was impoverished, cannot be sustained, since defendant, under its own theory, was enriched to the extent of the market price.
    Error to Wayne; Webster (Arthur), J.
    Submitted October 7, 1920.
    (Docket No. 37.)
    Decided December 21, 1920.
    Rehearing denied March 31, 1921.
    Assumpsit in justice’s court by William T. Bowen against the Detroit United Railway for the conversion of certain coal. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and Thomas W. Parker, for appellant.

      Lyle G. Younglove and Lloyd T. Chockley, for appellee.
    On February 19, 1917, there arrived in Detroit over the Michigan Central railroad two car loads of coal consigned to the plaintiff. Through an error of the railroad one car (No. 30020), containing 44 gross or long tons of 2,240 pounds, was switched upon the Harper avenue siding at the defendant Detroit United Railway, and on that day the railroad company caused to be delivered to defendant a car demurrage report indicating the placing of said car for unloading. The car contained coal of the same character as that purchased by the defendant for' the purpose of heating its cars and was by the defendant promptly unloaded and ultimately used before the discovery of the error by plaintiff, which was on June 18th — some 4 months later. At that time plaintiff brought the matter to the attention of defendant’s purchasing agent who then offered a car load of coal to replace that inadvertently converted by defendant. This adjustment was' refused by plaintiff, as was likewise an adjustment based upon the contract price of $6.10 per long ton, that being the price at which defendant was purchasing its requirements for that season.
    It appears that there was a great shortage in the city of Detroit of coal of this size and quality and that, in order to meet the demands of his customers, plaintiff was obliged to and did go into the open market and purchase from various sources a quantity sufficient to replace the coal converted by defendant.. For this he paid $9.25 per short ton, and demanded that sum from defendant in settlement. This having been declined, suit was brought in justice’s court of the city of Detroit, in assumpsit.
    No question of pleading was raised in justice’s court by defendant, the plea being simply the general issue. A judgment followed for plaintiff, which was appealed to the circuit court. At the circuit, the foregoing facts were made to appear without dispute. An extended argument followed between counsel, touching the form of action and the measure of damages, in the course of which the following occurred:

      “The Court: As I understand you, Mr. Parker, you are willing to concede that the plaintiff is properly in court in an action of assumpsit, but, being here in an action of assumpsit, he must be bound by the rules permitting recovery in assumpsit.

      “Mr. Parker (counsel for defendant): Yes. Upon quasi contract, involving waiver of tort.

      “Mr. Choekley (counsel for plaintiff): That is all right. It is quasi contract, and it involves the waiver of tort. If he is willing to concede I am properly in court on that, that is all right.”
    The court thereupon further charged the jury as follows:
    “Now, upon that concession, it seems to me this case is resolved into a question of what is the proper measure of damages in an action of assumpsit, under the concession made by counsel on the record.
    “It is the claim of defendant’s counsel that the proper measure of recovery is the amount which the defendant was enriched by the conversion of this coal and it is his claim that the defendant was enriched by the conversion of this coal simply the amount that defendant was paying for that class of coal at that time. It appears in evidence that the Detroit United Railway had a contract for hard coal of this quality under which they were paying $6.10 a gross ton. It is the claim of defendant’s counsel that the Detroit United Railway was enriched, as the term is used, to that extent* and only to that extent; and that, because this is an action of assumpsit, the plaintiff can only recover to the extent that the defendant was enriched.
    “In my opinion, that is not the proper measure of damages. Conceding that the plaintiff has a right to sue here in this court for this conversion in an action of assumpsit, under the concession made by defendant’s counsel and accepted by plaintiff’s counsel, it seems to me that the proper measure of damages is the reasonable market value of the coal at the time it was taken over or converted by the defendant, the Detroit United Railway.
    “I am of the opinion that that is the proper measure of damages, because it seems to me that the defendant Detroit United Railway was enriched to that extent when it took over this car load of coal. That car load of coal at that time, standing outside of the D. U. R. yards, was worth in the market in Detroit a certain price. When they got that car load of coal they got a car load over and beyond any contracts that they had with any other persons, and they were enriched to the extent of that value of that car load of coal at that time in the market in Detroit. It seems to me this is obvious, because if, instead of loading the coal and using it, the Detroit United Railway had converted the coal and immediately sold it in the market, they could have obtained for the coal the reasonable market price at that time.
    “Now, then, the testimony here upon the record shows that the reasonable market value of coal at that time, which was a time when it was almost impossible to get any kind of coal, and especially hard coal; that a fair and reasonable market value of coal at that time in the market in Detroit was $9.25 per net ton, as distinguished from a gross ton. The defendant asks the court to direct a verdict in favor of the plaintiff for the amount which it claims is the proper measure of recovery. I cannot.agree with the defendant’s contention, and, as the defendant does not care to go to the jury on the question of reasonable market value of the coal on the date in question, February 19, 1917, I direct you to return a verdict for the plaintiff for the car load of coal at $9.25 per net ton, as distinguished from gross ton, with interest from the date it was converted, which was February 19, 1917. As this interest, added to the amount of the net tonnage in this car load of coal, would make it exceed $500 — the extent of the jurisdiction of the justice’s court, and this suit having been brought in justice’s court, the plaintiff cannot recover in this action more than $500. The plaintiff has expressly remitted all over $500, and, therefore, I direct you to return a verdict in favor of the plaintiff for $500. You will rise, and the clerk will take your verdict.”
    A judgment followed in the sum of $500.
   Brooke, J.

{after stating1 the facts). It is the contention of the defendant in this court that a judgment should have been directed against it only for the amount of the contract price it was then paying for coal of a similar character ($6.10 per long ton). As sustaining this position, counsel cite Woodward’s “Law of Quasi Contracts,” at pages 4 and 5, where it is said,

“The legal obligation arising, without reference to the assent of the obligor, from the receipt of a benefit the retention of which is unjust, and requiring the obligor to make restitution. * * *
“They require that the obligee shall be compensated, not for any loss or damage suffered by him, but for the benefit which he has conferred upon the obligor; * * * that while in many cases of the receipt of property there is doubtless a moral obligation to make restitution in specie, and while equity frequently compels restitution in specie, the only obligation recognized and enforced at law is the obligation to make restitution in value, i. e., to pay the equivalent or the reasonable worth of the benefit received; * * * hereafter called the obligation to make restitution.”

And in support of the text the case of Limited Divestment Ass’n v. Glendale Investment Ass’n, 99 Wis. 54 (74 N. W. 633). The gist of defendant’s position may be stated to be that, under the circumstances, the pleadings, and the law applicable thereto, defendant should be liable only for the amount that it was enriched through the conversion of the car load of coal and not the amount which plaintiff was impoverished thereby.

We are of the opinion that, under the concession above quoted, the rule of damages laid down by the learned circuit judge was applicable. That concession permitted a recovery by plaintiff on the theory that the conversion had occurred under a quasi contract. As we understand it, the proper measure of damages 1 for conversion under such circumstances is the value; of the property converted in the open market at the time and place of conversion. It is undisputed upon this record that plaintiff, at the time and place of conversion, paid for coal of a like quantity in the open market $9.25 per short ton. It may therefore be said, even under defendant’s theory, that defendant by the accidental conversion was enriched to that extent.

Upon the question of pleading insisted upon so strongly by defendant, we are of the opinion that the recent decision of Denton v. Booth, 202 Mich. 215 (2 A. L. R. 114), is controlling.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    ARIX v. ARIX.
    1. Divorce — Cross-Bill—Adultery of Plaintiff Subsequent tc Filing Bill — Evidence—Admissibility.
    In a suit for divorce by the wife, evidence of her adulterous conduct between the time of the filing of her bill and the hearing was competent, and should have been taken into consideration by the court below in determining defendant’s right to a decree upon his cross-bill.
    2. Same — Decree on Cross-Bill — Custody of Child.
    Where defendant’s cruelty, consisting of threats of personal violence and the imputation of unchastity, if not warranted, were at least excusable, the decree for plaintiff will be reversed and one entered in this court for defendant on his cross-hill, giving him also the custody of the 5-year-old son, the record showing that plaintiff was not a fit person, she being addicted to profanity and associating the child with her paramour who was also- very profane.
    3. Same — Welfare of Children.
    The welfare of the offspring of the parties is one of the chief considerations of the court in granting a decree of divorce.
    For authorities discussing the question of charges of adultery as grounds for divorce, see notes in 18 L. R. A. (N. S.) 300; 34 li. R. A. (N. S.) 360.
    Appeal from Wayne; Black (Edward D.), J., presiding.
    Submitted October 12, 1920.
    (Docket No. 78.)
    Decided December 21, 1920.
    Bill by Veneranda M. Arix against Gustaf Arix for a divorce. Defendant filed a cross-bill for a divorce. From a decree for plaintiff, defendant appeals.
    Reversed, and decree entered for defendant.

      William Henry Gallagher, for defendant.
   Brooke, J.

The parties to this divorce action were married in June, 1907, and lived together until March, 1918, except for about the period of one year, when plaintiff was absent in Belgium, and for the further period of about one month, when defendant left plaintiff and went to Kansas City. The record discloses the fact that serious trouble has existed between the parties, growing out of the fact that defendant has frequently charged plaintiff with infidelity. She filed her bill of complaint in March, 1918, charging defendant with extreme cruelty, in that he had frequently threatened her with personal violence and had charged her with adultery with various persons and had habitually called her names imputing lack of chastity. Defendant filed an answer to said bill of complaint on April 9, 1918.

The case came on to be heard on November 4, 1919, at which time a cross-bill was filed by defendant, in which he charged plaintiff with extreme cruelty toward himself and with adultery with Edmund Van Renterham. The parties have one child, a boy now about five years of age.

An examination of the record discloses the fact that the parties, foreigners by birth, are accustomed to the use of intoxicating liquors, to the habitual use of profanity, and -that they are of lax morality. Plaintiff’s testimony tended to support her charge that defendant had frequently accused her of infidelity. Defendant’s testimony, offered under his cross-bill, showed that Van Renterham, who had been a soldier, in France, returned to Detroit in the spring of 1919, subsequent to the time the plaintiff filed her bill for divorce; that immediately upon his return, and late at night, he visited the house of plaintiff, remaining all night, upon which occasion plaintiff’s uncle was likewise in the house. Shortly after Van Renterham’s return, he took up his abode with plaintiff, nominally as a boarder, living with her for some months alone, except for the presence of her four-year-old child. So far as the record discloses, he was still living with her at the time of the hearing. Van Eenterham was a witness produced by the plaintiff. His testimony indicates a marked lack of frankness (not to characterize it by an uglier term) and is interspersed with such profanity as we have never seen spread upon the records of a court of justice.

The learned circuit judge, in disposing of the case, in the earlier part of his opinion, said:

“* * * I think I will tell you frankly, I don’t calculate to give any divorce. I think both of them could have done differently and made the home life more pleasant, but the trouble in this case has been the interference of their own country people.”

After a review of the testimony, the court continued :

“I am going to give the decree to the plaintiff. I am going to give her the custody of the child with no permanent alimony to herself. Six dollars a week to be paid to the child, the father having the privilege of seeing their child * * * every other Sunday if he wishes to.”

The court wqs of the opinion that evidence of the adulterous conduct of the plaintiff between the date of the filing of her bill and the filing of the cross-bill could not be considered by him in determining defendant’s right to a decree upon his cross-bill. In this we think the court was in error. The mere filing of her bill of complaint did not cancel the marriage relation between her and defendant, and any evidence of. misconduct on her part subsequent to that date and before the filing of the cross-bill and the hearing thereon was competent as. bearing upon the rights of the parties. Had the learned circuit judge given proper consideration to this class of testimony, we are satisfied he would have reached a different conclusion.

In the disposition of cases of this kind, a major consideration is, and always should be, the welfare of the unfortunate offspring of the parties. The evidence of this plaintiff, given in open court, and the other evidence in the case indicates that she herself is addicted to the use of profanity. In disposing of the matter, the learned circuit judge said:

“With a child of that age, I do not think it is proper to take it away from the mother, and I would say to the mother now, the testimony shows you used profanity. I would not do so; I do not think it is necessary for either man or woman, in bringing up a little boy.”

Coupled with this fact is the fact that the plaintiff associates with her child her paramour, Van Renter-ham, whose influence, as indicated by his testimony, cannot but be very harmful to the morals of a growing boy.

We have reached the conclusion that the cruelty of which the circuit judge found defendant guilty — that is, of threats of personal violence and the imputation of a lack of chastity — were, if not warranted by the facts, at least excusable, and that a divorce should have been granted defendant on his cross-bill upon the ground of adultery, together with the custody of the child. Such a decree will be entered in this court.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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      In re JEANNOT’S ESTATE.
    Husband and Wife — Separation Agreement — Release of Prop- ■ erty Rights.
    A postnuptial contract between husband and wife, by which they agree to separate, and which provides, as an adjustment of their property rights, that the husband shall pay a certain sum of money to the wife in full of all claim for support and maintenance, dower, etc., and that “each of said parties do hereby release any claims which they have, or may hereafter have, in or to the property of the other,” which contract is fully executed and followed by a separation, operates to exclude the husband, as one of his wife’s heirs, from maintaining a claim against her estate.
    On. validity of agreement between husband and wife renouncing marital rights, see note in 12 L. R. A. (N. S.) 848.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted October 8, 1920.
    (Docket No. 66.)
    Decided December 21, 1920.
    Rehearing denied February 3, 1921.
    Petition by Ruby A. Edwards, executor of the estate of William H. Edwards, deceased, for the allowance of his final account as administrator of the estate of Florence B. Jeannot, deceased. From an order of distribution, excluding Joseph O. Jeannot, he appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.
    Reversed, and judgment entered for plaintiffs.

      Hatch, McAllister & Raymond, for appellants.

      Charles G. ' Turner, for appellee.
    Prior to the year 19Í3, Florence Jeannot and her husband, Joseph O. Jeannot, the defendant herein, had lived for a number of years in the city of Grand Rapids. Due to differences which had arisen between them, however, they agreed, in February of that year, to separate and live apart. Thereafter Mrs. Jeannot stayed for a considerable time at the home of her sister in the same town, but finally she moved to Muskegon, where she continued to reside until the time of her death.
    Soon after leaving her husband, Florence Jeannot caused a bill for separate maintenance to be filed in the circuit court for the county of Kent, and a little later an application for temporary alimony and expenses was made. That matter was still undisposed of on the 16th of October, 1913, when Mrs. Jeannot commenced proceedings for divorce. Shortly afterward defendant appeared by his attorneys and demanded a copy of the bill. So far as the record discloses, this was all that was done, although Mrs. Jeannot’s attorney insists that she consulted him at different times “about getting it cleaned up.”
    On October 15, 1913 — the day before the bill in the divorce proceeding was filed — the following agreement was drawn up and signed:
    “Separation Agreement.
    “This agreement made and entered into by and between Florence Jeannot of Grand' Rapids, Michigan, party of the first part, and Joseph O. Jeannot of Grand Rapids, Michigan, party of the second part, witnesseth:
    “Whereas the said parties to this agreement are husband and wife and unhappy differences have arisen between them which they have been unable to harmonize and which have resulted in said Florence Jeannot filing a bill of complaint in the circuit court for the county of Kent, in chancery, against the said Joseph O. Jean-not as defendant, praying for an order requiring the said Joseph O. Jeannot to support her, the said Florence Jeannot, which said suit is now pending in said court and divers proceedings' have been had and taken therein and various orders have been made in relation thereto, and
    “Whereas the said Florence Jeannot is the owner of certain real estate situate in the city of Muskegon, Michigan, and the said defendant Joseph O. Jeannot is the owner of certain personal property and a business situate at Grand Rapids; Michigan, and
    “Whereas certain negotiations have been entered into by and between the counsel for the respective parties in behalf of said parties for a settlement and adjustment of all their property rights, which negotiations have finally culminated in the making of this agreement between said parties in relation thereto.
    “Now, therefore, for the purpose of settling all of the property rights between the said parties hereto, it is hereby agreed to by and between the said parties, and the said Joseph O. Jeannot, party of the second part, does hereby agree to pay to the said Florence Jeannot, party of the first part, the sum of eleven hundred and fifty dollars ($1,150) in the following manner, to-wit, fifty dollars ($50) on the execution of this agreement, and fifty dollars ($50) on the 15th day of November, 1913, and the sum of thirty dollars ($30) or more on the 15th day of each and every month thereafter until the full sum of eleven hundred and fifty dollars ($1,150) is paid and the said Florence Jeannot does hereby agree to accept the foregoing provision so made for her of eleven hundred and fifty dollars ($1,150) in full settlement of any and all rights that she may have upon the said Joseph O. Jeannot for support and maintenance, and does hereby release him from all obligations of her support and maintenance hereafter, and in full settlement of all moneys loaned and due from said second party to first party, and does hereby accept the same in full settlement of any and all alimony, solicitor’s fees, and other allowances growing out of the suit now pending between said parties, and does hereby release any and all dower rights which she now has, or may hereafter have in any property of the said Joseph O. Jeannot, and each of said parties do hereby release any claims which they have, or may hereafter have, in or to the property of the other, and in case either of said parties hereto should at any time make application for divorce from the other the foregoing provisions shall be in lieu of any and all permanent and temporary alimony or expenses that may be incurred therein, it being the intention by this agreement to settle all property rights between said parties and to make full provision for the support and maintenance of first party and to release said second party from all obligations in relation thereto.
    “In witness whereof the parties hereto have hereunto set their hands and seals this 15th day of October, A. D. 1918.
    “Flokence Jeannot (L. S.)
    “Joseph O. Jeannot (L. S.)”
    This contract was fully carried out, the defendant making the payments therein agreed upon, which he completed some time before the death of his wife, which occurred on the 2d day of February, 1918. She left no will, and the defendant, claiming that he had never relinquished any claim as her husband and heir at law, sought to have himself appointed as administrator of her estate.
    Thereupon the plaintiffs (the heirs at law of Florence Jeannot) filed a bill in the circuit court for the county of Kent, in chancery, against Mr. Jeannot to enforce the provisions of the postnuptial agreement. From the decree there rendered an appeal was taken to this court. Our opinion in that case will be found reported in 204 Mich. 403, where it is said,
    “The probate court of Muskegon county, having assumed jurisdiction of the subject-matter, viz., the estate of Florence B. Jeannot, deceased, has exclusive jurisdiction with reference to matters concerning that estate which it can properly hear and determine. Brooks v. Hargrave, 179 Mich. 136. The question then is, Can the probate court determine the rights of the parties to this agreement? In my opinion, it can clearly do so upon the final hearing as to the distribution of the estate. The plaintiff and. other heirs of the deceased can at that time present this agreement, and the probate court can then determine whether or not it should be a bar to the defendant’s claim of any right to the estate of the deceased.”

      In accordance with the above decision, upon a hearing of the order of final distribution, this agreement was presented to the probate judge who held that “by reason of said contract, Joseph O. Jeannot has no interest in the estate of said deceased.” From this finding the defendant appealed to the circuit court, where the order of the probate court was reversed 'and a judgment entered, giving defendant one-half of the estate of his deceased wife.
    From this judgment, plaintiffs bring error.
   Brooke, J.

(after stating the facts). Counsel for appellants cite and ■ rely upon the following cases: Koch v. Koch, 126 Mich. 187; Carr v. Lyle, 126 Mich. 655; Thompson v. Tucker-Osborn, 111 Mich. 470; Hockenberry v. Donovan, 170 Mich. 370; Bechtel v. Barton, 147 Mich. 318; Emery v. Emery, 181 Mich. 146. These cases, with the exception of Emery v. Emery and Bechtel v. Barton, deal with antenuptial contracts instead of postnuptial settlements and may therefore be disregarded except so far as the reason employed in their determination may be applicable to the case at bar.

In the Emery Case, Mr. Justice STONE, in discussing a postnuptial settlement, said:

“Such an agreement seems to have been fair and free from collusion. This court has consistently held that after actual separation, or the launching of a bill for divorce, amicable settlements between the parties of their property interests are not only lawful, but are to be commended. Randall v. Randall, 37 Mich. 563; Palmer v. Fagerlin, 163 Mich. 345, 349; Nichols v. Nichols, 169 Mich. 540, 542.”

It is true, as pointed out by counsel for defendant, that this court there had under consideration the effect of a contract upon the parties themselves. But the language used indicates that when such contracts are fair and untainted by fraud, they are to be favored and enforced.

The contract under consideration in the case of Bechtel v. Barton, supra, very much resembled the agreement between the parties in this case. In consideration of the agreed payments to be made the wife surrendered “all claim to and right for dower, support and of all claims of every name, nature and description.” The husband- there died testate and the wife sought to obtain her widow’s share of the testator’s estate. It was held that the contract, being fully executed and followed by a separation, prevented the wife from enforcing any claim against the husband’s estate as his widow. The opinion (written by Mr. Justice Ostrander) is interesting in that the cases are therein discussed and distinguished. He said:

“We are not called upon to determine whether, if the estate was intestate, the same ruling should be made.”

Here the estate is intestate, and we must determine whether the rule announced in the Bechtel-Barton Case is applicable. An examination of the language of the contract itself is illuminative. In consideration of the sums to be paid to the wife she released her husband from all obligations for her support and maintenance “and does hereby release all dower rights which she now has, or may hereafter have in any property of the said Joseph O. Jeannot, and each of said parties do hereby release any claims which they have, or may hereafter have, in or to the property of the other.”

It is the contention of counsel for defendant and appellee that a fair construction of the language used in this contract fails to indicate a purpose to surrender a right of inheritance in case of the death of either party intestate, and many cases are cited from foreign jurisdictions to the effect that such intention must be clearly expressed in the settlement. Among the cases so cited are the following: Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229; Collins v. Phillips, 259 Ill. 405 (102 N. E. 796, Ann. Cas. 1914C, 188); Dunlop v. Lamb, 182 Ill. 319 (55 N. E. 354); Newton v. Truesdale, 69 N. H. 634 (45 Atl. 646); Glass v. Davis, 118 Ind. 593 (21 N. E. 319). We have no doubt that the cases cited fairly support the proposition advanced; but in our opinion a fair reading of the contract indicates that the parties dealt not alone with reference to the property owned by each in his or her lifetime, but to that same property after death. The wife barred her right of dower, which could only be apportioned after her husband’s death; and the husband released any claim which he might hereafter have in or to the property of the wife. It cannot be contended, of course, that the estate of Florence Jeannot was not her property, indeed the very property with reference to which the contract was made, and that the husband is now — “hereafter”—making a claim to said property in spite of his contract not to do so.

We are of the opinion that the fact that the wife in the case at bar died intestate should not be held to warrant a determination different from that indulged in in the Beehtel-Barton Case, This contract was entered into in good faith by the parties and thereafter they did not live together. It was fully executed, and, we think, should be fully carried out by the surviving spouse according to its tenor.

The judgment of the court below will be reversed and one entered here in accordance with this opinion.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    MEYERS v. GEAREY.
    1. Trial — Instructions—Harmless Error.
    Where the verdict of the jury allowed to plaintiff practically her whole claim and to defendant practically his entire claim of set-off, from which $50 was remitted as a condition of the refusal of a motion for a new trial, any error in the court’s instructions in regard to plaintiff’s claim, held, not prejudicial.
    2. New Trial — Weight of Evidence.
    Evidence examined, and held, to justify the conclusion of the trial judge that the verdict was not against the weight of the evidence.
    Error to Livingston; Collins (Joseph H.), J.
    Submitted October 7, 1920.
    (Docket No. 54.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by Maggie Meyers against William Gearey on the common counts. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      W. P. Van Winkle & Son, for appellant.

      Louis E. Howlett, for appellee.
   Brooke, J.

Plaintiff and defendant are brother and sister. In March, 1919, defendant opened a small restaurant in the city of Howell, hiring plaintiff to assist him as cook at $14 per week. This arrangement continued until May 27, 1919, when defendant visited Detroit for a few days, leaving plaintiff in charge of the restaurant. He stayed until June 9th, but on his return plaintiff refused to deliver him possession of the restaurant and he did not recover the same until June 19th. A serious dispute had arisen between the parties prior to the departure of the defendant for Detroit because of the fact that defendant introduced into the restaurant a woman (whom he afterwards married) to whom plaintiff seriously objected. It was the claim of the plaintiff that, on leaving for Detroit, her brother (defendant) turned the restaurant over to her to make out of it what she could. This the brother denied most emphatically. She finally brought suit in justice’s court, claiming damages in the sum of $233, made up as follows: $100 for borrowed money; $53 for unpaid wages; $50 for supplies furnished by her to the restaurant prior to the defendant’s departure; $30, being one-half of one month’s rent. Defendant admitted his liability for the first two items and did not dispute his liability as to the third item, but claimed the supplies were worth probably not more than $30. As to the last item (of $30), the money was paid out of receipts taken, in by the plaintiff during his absence in Detroit. Defendant filed a counterclaim against plaintiff, consisting of two items: $255, being the amount of the profits during the 10 days of his absence (placed in the bank in her own name by the plaintiff); and $170, being the amount of his alleged lost profits from June 9th to June 19th, during which time plaintiff excluded him from possession of the restaurant. Judgment followed in justice’s court for defendant upon his set-off in the sum of $118.60.

Upon appeal to the circuit, the case was submitted to a jury under the conflicting claims of the parties and a verdict was rendered in favor of defendant upon his set-off in the sum of $200. It is apparent from an examination of the several bills of particulars filed by the parties that the jury allowed to the plaintiff practically her entire claim and allowed to defendant practically his entire claim of set-off, and certified the difference in his favor. Motion was thereafter made for a new trial upon various grounds, which was denied on condition that defendant remit the sum of $50 from the amount of the verdict, which was done.

In this court, the first two errors assigned deal with the admission and exclusion of testimony. Respecting these assignments, it is sufficient to say that we find no reversible error therein.

The third, fourth, fifth,. sixth and seventh assignments deal with the charge of the court. Special stress is laid upon the sixth, which deals with the following excerpts from the charge:

“I further charge you that plaintiff could not recover for these provisions furnished by her to defendant to be used at the restaurant, unless plaintiff expected pay for such provisions and. intended to charge for them and defendant expected to pay for them at the time they were furnished. On the other hand, if these provisions were furnished without expectation of pay on the part of plaintiff, and without expectation of paying on the part, of the defendant for the provisions furnished by plaintiff at the time they were furnished, then there is no contract of liability, and plaintiff could not recover for the value of such provisions here.”

This excerpt was preceded by the following:

“It is. not necessary for her to prove an express promise by defendant to pay for them. It is sufficient to bind the defendant to pay for such supplies if he had knowledge that they were furnished him and he acquiesced in such provision being used and made no objection and accepted them and used them in his business there.”

It is contended on behalf of the appellant that the latter instruction was correct and the former incorrect. Taken as a whole, we are disposed to the view that the jury was not misled by that portion of the charge of which complaint is made because, as before stated, it is apparent from the verdict that the plaintiff was allowed her entire claim and that defendant was allowed his entire claim. But, in any event, by reducing the verdict in the sum of $50, which was remitted, the circuit court apparently made allowance for any possible error which, the alleged erroneous instruction might have occasioned.

The remaining assignments are directed to the refusal of the court to grant a new trial. An examination of the record leads us to the conclusion that the determination of the circuit judge that the verdict was not against the weight of the evidence was justified.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.