text:
    BAYER v. WINTON MOTOR CAR CO.
    1. Sales — Contracts—Written Contract — Essentials.
    A written order for a secondhand automobile, signed by plaintiff, identifying the machine, stating price, terms, time and place of delivery, accompanied by partial payment, and accepted in writing, contained the essentials of a contract, and was an agreement in writing between the parties for the purchase and sale of the automobile referred to.
    2. Same — Warranty—Express Warranty — Evidence—Parol Testimony.
    Where a written agreement contained no language of express warranty, no express warranty could be proved by parol.
    3. Same — Implied Warranty — Caveat Emptor — Secondhand Machinery.
    The principle of an implied warranty, an exception to the general rule of caveat emptor, does not apply to the purchase of secondhand machinery.
    4. Same — Fraud—Total Failure oe Consideration — Rescission.
    Where plaintiff charged in his declaration, and claimed in his testimony, that he was induced to purchase this automobile both under an oral warranty and by false representations intended to “cheat, wrong and defraud” him, so that there was a total failure of consideration, entitling him to reimbursement of the purchase price and expenditures reasonably made while trying to use the machine for the purpose for which it was intended, avoidance of the contract involves the question of rescission.
    5. Same — Reasonable Time — Rescission.
    While entitled to a reasonable time to investigate and ascertain whether the representations upon which he relied are true, to entitle plaintiff to rescind and recover back the money he was fraudulently induced to pay, he must act promptly after he has discovered that the representations were false.
    6. Same — Reasonable Time — Rescission—Question oe Law.
    Where the facts are undisputed, what is a reasonable time in which to rescind becomes a question of law.

      7. Same — Rescission—Reasonabi® Time — Evidence.
    Plaintiffs own evidence showing that long after he had learned by actual use and personal observation and also from information furnished him by competent and experienced men in his employ that the car was worn out and worthless, he elected to treat the car as his own and attempted to sell it for $600 or $700, although he now claims it was valueless, negatived a rescission, and a verdict should have been directed for defendant.
    Error to Wayne; Van Zile, J.
    Submitted June 26, 1916.
    (Docket No. 135.)
    Decided December 22, 1916.
    Assumpsit by Joseph Bayer against the Winton Motor Car Company for breach of a contract of warranty for the sale of an automobile. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Millis, Griffin, Seely & Streeter, for appellant.

      Benjamin S. Pagel, for appellee.
   Steere, J.

In July, 1911, plaintiff purchased from defendant for the sum of $1,100 one of its 1908 model automobiles, first sold by it when new for $4,500 to a customer who used it until 1911, when it was taken back by defendant in an exchange allowance upon the purchase price of a new model of similar type.

In this action, begun November 2, 1914, plaintiff recovered a verdict and judgment against defendant of over $1.800, being for moneys claimed to have been expended by him, without any value received, for the purchase price of this car and expenses incurred in connection with it.

Negotiations for the car resulted in a written memorandum of agreement signed by plaintiff and a salesman of defendant, in the form of an accepted order evidently made upon one of defendant’s blank forms for sales, various inapplicable portions of which were not filled out. So far as material here it is as follows:

“Memorandum of Order to
“The Winton Motor Car Co.,
“Cleveland, U. S. A.
“You are hereby authorized to deliver to me 16-6 No. 7564 48.6 H. P. Winton six cylinder Automobile, with regular equipment * * * for which I agree to pay $1,100 plus the cost of extras and freight charges. 1 * * * hand you herewith $100, balance payable upon delivery. I * * * desire the following extras : * * *
“Fix' back curtain.
“ “ “ of body.
“Overhaul car.
“Put on speedometer.
“.“ “ big steering wheel. * * *
“Delivery on or about August 4th. * * *
“Signature of purchaser, Joseph T._ Bayer.
“Address of purchaser, 469 St. Aubin.
“Salesroom at Detroit. Date, July 20.
“Signature of Salesman, Robert Wheat.”

It is undisputed that the automobile, No. 7564, was of the kind and size described in the written memorandum of agreement, was a 1908 model sold that year to a customer residing in Detroit who kept and drove it extensively until it was taken back by defendant in exchange for a new one in 1911; that plaintiff looked at it in defendant’s salesroom, or garage, in Detroit, shortly after it had been returned and purchased it as a secondhand car for less than a quarter of its original cost when new.

Plaintiff first saw the car in its condition when returned, before it had been cleaned or overhauled, and then made the contract of purchase, paying upon it the $100 specified. After it was overhauled and painted he again saw and was taken riding in it. He states:

“After the Winton people had given me a chauffeur, and tried the car out, it was delivered to me, and I paid for it.”

This chauffeur was in defendant’s employ and only drove the car for plaintiff in trying it out before it was delivered. After its delivery plaintiff, who did not himself drive a car and asserted upon the trial, "I don’t know the first thing about a car,” employed a chauffeur named Brealler, whom plaintiff testified was an experienced man and "understands, all about the machine.” Of his experiences and expenses with the car from that time on plaintiff and his witnesses tell a distressing story, from which the asserted deductions, are that the car was old, worn-out, and worthless, so defective as to be past hope of restoration, and of no value to use as an automobile, for which purpose it was sold, and, it is claimed, there was a total failure of consideration.

Upon that proposition defendant claimed, and introduced testimony tending to show, that the car while in the hands of the original purchaser, though regularly in use, was well kept up and cared for, and driven by an experienced chauffeur who ran it from the time it was purchased until exchanged for a new one; that he had driven it for the previous owner on long touring trips without unusual trouble or breakdowns, and it continued in efficient running order and good condition until he took it to defendant when the exchange for a new one was made; that when plaintiff sent it to defendant’s garage for repairs after its purchase by him its condition showed that it had been misused, not properly cared for or operated, and was a “neglected car.”

If controlling, the condition of the car when plaintiff received it would be a question of fact for the jury, but it was purchased as a secondhand car under a written contract containing no terms of warranty. It is said in his counsel’s brief that:

“The case is not based on ea breach of warranty of a contract in writing,’ * * * but is planted upon a total failure of consideration.”

His pleading and proofs appear to have taken a wider scope. The various counts of his -declaration charge, in part, that defendant represented to and promised plaintiff that the car was properly constructed, or reconstructed, and assembled in first-class mechanical condition throughout, capable of performing and would successfully perform the work for which it was designed in a manner satisfactory to plaintiff, and could be used in driving about the town and country, relying upon which plaintiff purchased the car, but that it was in fact “improperly constructed and assembled in such a wornout mechanical condition in all its parts as to be totally unfit for the work for which it was designed, or for any use as- an automobile for pleasure or profit,” and he was by defendant’s false and fraudulent representations, upon which he relied, induced to make the purchase.

In substantiation of these allegations plaintiff was allowed, against objection, to testify to his own. inexperience and inability to judge a car, his reasons for buying one, the use he desired to make of it, what he told defendant’s salesman in that particular, the representations made by defendant’s agents to him as to the quality and condition of this car and, in general, to give his version of the negotiations and'representations which preceded and led up to the purchase evidenced by the written memorandum of agreement.

Plaintiff’s testimony discloses- that he was- engaged in the coach and livery business, and for use in that connection as well as for family purposes he decided to buy a used car, and with that object in view went to defendant’s establishment on the recommendation of a friend named Huck, who was in the saloon business and owned a Winton of the same model as- the one purchased. On his first visit defendant had no secondhand car in stock, but informed him that “there was going to be an. old car turned in for a new one in a few days and you can look at it.” In a few days plaintiff returned to look at the car, accompanied by his friend Huck, whom he states he took along “to look over the car with me.” Of Buck’s participation in the deal plaintiff further testified on cross-examination :

“He told me to take the car. He said it was cheap, to take it, just like mine, he says, that is all. * * * Mr. Huck is a personal friend of mine. I had a good deal of confidence in him.
“Q. On a business proposition you took his word on the advisability of going in it or staying out?
“A. In that one — I didn’t know the first thing about the machine, I told you before. I told the Winton company that is the reason I left it to Mr. Huck, because he had owned one of the same kind.”

He also states, however, in reference to this, that he did not buy the car on Huck’s recommendation, but on the strength of defendant’s promise to put it in first-class condition.

While defendant’s objections to evidence as to oral assurances in negotiations leading up to the written memorandum of agreement were overruled, the view was expressed by the court early in the trial that the applicable rule of law controlling the case was:

“Where a person buys a piece of property manufactured for a particular purpose, and the manufacturer sells it understanding it is to be used for a particular purpose, that he must deliver property that is fit for the purpose”

—later saying to defendant’s counsel, when objection was made to questions asked in cross-examination, claimed to have a bearing on his direct testimony as to an express warranty, that the case was to be tried upon the question:

“Was that machine fit for the purpose? * * * It does not matter how it is termed — on the terms of implied or express warranty. Was this machine fit for the purpose for which this man bought it? If it is not, he can recover. If it is, he cannot.”

The claim of total failure of consideration necessarily goes with and relates to the claim of implied warranty that the article was reasonably fit and adapted to the purpose for which it was purchased — which was to use as an automobile. Plaintiff’s claim and testimony were directed and limited to that question. The machine was not shown to be commercially valueless in all its parts, for any purpose.

Upon the trial 'it was defendant’s theory and contention that there could be no implied' warranty as to fitness for the purpose the buyer intends when the article purchased is a secondhand machine, and in any event plaintiff was precluded from recovery by failure to rescind within a reasonable time after trying the car and ascertaining its claimed defects. These legal 'questions were timely raised and preserved for review by objections, exceptions, motion for directed verdict, and requests to charge, which were overruled and denied.

In submitting the case to the jury the court charged, in part, as follows:

“It is undisputed that the plaintiff told defendant’s agent that he was totally unfamiliar with automobiles and their construction and he had a right to rely on the representation of the defendant’s agents concerning the condition and value of the machine as an automobile for the purpose for which the plaintiff said that he desired to use it. * * * Should you then find in this case that the automobile delivered by plaintiff (defendant) to the defendant (plaintiff) was old and worn-out, so much so as to be of no value to the plaintiff, then I charge you that there was. a total failure of consideration in the case, and the plaintiff would be entitled to recover back the amount of $1,100, which he paid for the car, together with the various amounts which he spent in an effort to make the automobile operate, * * :|! together with interest from the time it was paid out, at 5 per cent, per annum; that of course is upon the theory that the automobile was of no value. * * * In this case the matter of implied warranty obtains, and the implied warranty is that they will sell the property that is asked for, and desired by the purchaser, and if that property is worthless, then the purchaser may recover the value of the consideration — whatever damage it may be to him.”

It cannot be questioned that the written order signed by plaintiff, identifying the property, stating price, terms, time, and place of delivery, accompanied by partial payment and accepted in writing, contained the essentials of a contract and was an agreement in writing between the parties for the purchase and sale of the automobile referred to. Day Leather Co. v. Michigan Leather Co., 141 Mich. 533 (104 N. W. 797). It contains no language of express warranty. Words of description only are used. Where a written agreement is silent upon the subject of warranty no express warranty can be proven by parol. McCray Refrigerator, etc., Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599). The instruction to the jury that plaintiff had a right to rely on the representations of defendant’s agents concerning the condition and value of the machine as an automobile for the purpose for which plaintiff said he desired to use it, indicated that the jury might consider and find from the proof an express oral warranty. This was followed by the statement that in this case the matter, or question, of. an implied warranty obtains, defining the principle of an implied warranty, an exception to the general rule of caveat emptor, which by the weight of authority does not apply to the purchase of secondhand machinery. 2 Mechera on Sales, § 1348; 35 Cyc. p. 408; Williston on Sales, § 232, and note to Fairbanks Steam, Shovel Co. v. Holt & Jeffery, in L. R. A. 1915B, 477 (79 Wash. 361, 140 Pac. 394).

Plaintiff charged in his declaration and claimed in his testimony that he was induced to purchase this machine both under an oral warranty and by false representations intended to “cheat, wrong, and defraud” him.

As pointed out, the claim of total failure of consideration is based under the developed facts upon a breach of implied warranty of secondhand machinery, but it is also contended by plaintiff that fraud was charged and proven in this case, perpetrated both by false assurances and concealment of latent defects, as a result of which plaintiff received nothing of value to him and was defrauded out of the purchase pricé, entitling him to reimbursement of the same and expenditures reasonably made while trying to use the article for the purpose intended. Avoidance of the contract under such contention involves the question of rescission. While entitled to a reasonable time to investigate and ascertain whether the representations upon which he relied are true, to entitle a party to rescind and recover back the money he was fraudulently induced to pay, he must act promptly after he has discovered that the representations were false; and where the facts are undisputed, what is a reasonable time in which to act becomes a question of law. Upon that proposition plaintiff’s own evidence as to what he discovered, and when, calls for serious consideration. He states that right after the car was delivered to him, in August, 1911, he took a ride in it and “she would not work”; that “trouble began to start” within half a mile of his home, and he notified defendant, who had it taken down and looked over, and they said it was all right; that soon thereafter, during September, 1911, accompanied by members of his family, with Brealler as chauffeur, he took a trip in the car to Dayton, Ohio, about 200 miles distant from Detroit, returning in it to Monroe, Mich., from where, owing to recurring trouble with the car, they completed the journey home by rail. As told by him, he had trouble with the car from the time it was delivered to him, discovered before he began this trip that the tires were so old, worn out, and rotten that he had to throw them away and buy new ones before beginning the journey; that the car went wrong, refused to run for a time, and caused delay before they were scarcely 20 miles on their way, and they “had trouble with the machine in pretty near every town on the road. It did not work all the way going down.” His account in detail of the trouble had with, and various defects which developed in, the car during that journey, necessitating repeated expenditures for repairs and new parts, with resulting annoyance, delay, and discomfort, taken as true, is strongly convincing that he had by experience and expense become fully advised of the condition of the car and defects now complained of by the time that journey was over and within scarcely a month of the time the car was delivered to him. At plaintiff’s request defendant sent a man to Monroe for the car, who found the trouble was with the ignition, which he remedied, when he and Brealler drove it to Detroit. The car was put up for the winter in plaintiff’s barn by Brealler, and plaintiff took it out again in the spring of 1912, first having it overhauled by a machinist whom his brother recommended. He states that he observed this man at work on it in the barn from time to time, saw what he was doing, and was told by him in the first place:

“You cannot do nothing with this car; it is hoodoo. A lemon. Everything on that car is a ruin. It is gone to pieces. You ought to have a whole new engine.”

But that summer he turned the car over to a chauffeur named Jewett to work on commission as a taxicab, who had it for that purpose “between June and September.” Jewett testified that when he first took it out it would not run, and that he spent much time working on it and lost money while operating it, owing to its. getting out of order and breaking down so that he finally “gave it up as a bad job.” In the fall plaintiff again had the car put in his barn for the winter. Up to that time he frequently had work done upon the car by, and procured parts and supplies for it from, defendant for which bills were rendered to and paid by him. Some time during the next winter, in 1913, he had the car taken to defendant’s garage to be overhauled and repaired. He states that he went down there himself and told the foreman, “I wanted the car fixed up so we could sell it.” He also testified that while there he talked with Mr. Rhead (who was assistant to the manager) about it and told him:

“I am going to sell it, whatever we get. He says, 'How much do you want out of the car?’ and I says, ‘Six or seven hundred dollars; sell it; as long as I get a couple of hundred out to pay these bills, I don’t care about it.’ He didn’t get anybody; I guess he didn’t show anybody the car there after that. They called me up one day and told me that I would have to pay storage on that car. I left the car with instructions to them to fix it up, so that they could sell it for me; that is the way it was told to them.”

Subsequently a bill was rendered to him for these last repairs, and storage of the car thereafter, which he declined to pay, and when collection was pressed this, action was begun.

In Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077), it is. said:

“It was the duty of defendant, as soon as he learned of the misstatements, to rescind the contract; and notice of such rescission must have been promptly given, and adhered to, in order to bind the parties thereto. The continued use of the property for some 30 days after he had learned the facts would be a waiver of the right of rescission, even though notice of such rescission had been given. Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Dunks v. Fuller, 32 Mich. 242; Campau v. Lafferty, 50 Mich. 114 (15 N. W. 40); Craig v. Bradley, 26 Mich. 353; Gridley v. Tobacco Co., 71 Mich. 528 (39 N. W. 754) ; Beal v. Congdon, 75 Mich. 77 (42 N. W. 685); Dailey v. King, 79 Mich. 568 (44 N. W. 959). * * * We think defendant’s continued use of the property for 30 days after he learned of the alleged fraud amounted to & waiver of any intent to rescind the contract. Marthinson v. Insurance Co., 64 Mich. 384 (31 N. W. 291); Cobbs v. Fire Ass’n, 68 Mich. 466 (36 N. W. 788); Peninsular Stove Co. v. Osmun, 73 Mich. 570 (41 N. W. 693).”

Under any aspect of the case this sale was not void, because forbidden by law, but only voidable at plaintiff’s option, provided he acted consistently and promptly in so asserting upon discovering that he had been defrauded. His own evidence negatives this. He shows that long after he had learned by actual use and personal observation, and also from information furnished him by competent and experienced men in his employ, that the car was worn-out and worthless, “a ruin,” and “gone to pieces,” as he states, he elected to treat the property as his own, declared in the last proven interview with defendant in relation to it that he was going to sell it, directed that it be fixed up so that they could sell it for him and named a selling price of $600 or $700, for what he now contends was valueless. Under his own testimony a verdict should have been directed for defendant.

For the foregoing reasons, the judgment is reversed, without a new trial.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    BERKEY & GAY FURNITURE CO. v. VALLEY CITY MILLING CO.
    1. Easements — Evidence—Deeds—Merger—Intent.
    In proceedings to establish an easement in a certain alley or way, a' reservation contained in an ancient deed, subsequently obliterated by merger, was of evidential value, not as showing that complainants have a record title to the easement, but as indicating beyond peradventure that the owners of the property at that time believed that the beneficial use of the land could only be enjoyed by the several owners thereof if a common way were kept open.
    2. Same — Adverse Possession.
    Where the record shows that from the earliest period within the memory of living witnesses and during all the intervening time down to the present, complainants and others had used said way, held, to have been as of right and not by sufferance.
    3. Same — Erection of Sign — Effect.
    The erection and maintenance of a sign by defendant to the effect that the road was a private drive and must be used at the risk of the user, after the way had been in use for more than a quarter of a century, was not for the purpose of asserting defendant’s dominion over it, but rather to avoid liability for possible injury upon it.
    4. Same — License—User—Prescription—Adverse Possession.
    A user, having its inception in license or favor, cannot ripen into a prescriptive right.
    5. Same — Adverse Use — License.
    Where complainants or their, grantors purchased the premises as abutting on the way, then called a street in the deeds, and the user had existed for more than a quarter of a century, it cannot be claimed that the user in its inception was through license or favor.
    6. Same — Estoppel—Adverse Possession.
    The wrongful invasion of the way to the north of complainant by others, held, not to prevent complainant from establishing its right to have the way to the south kept open.
    7. Same — Location of Way — Defenses.
    Where the way sought to be established by complainants was, by reason of defendant’s building, pushed farther to the west, the location would not be controlling, as the new way would take the place of the former one.
    8. Same — Extent of Interference — Defenses.
    Where defendant’s encroachment upon the way, which was used extensively by manufacturing establishments, narrowed it from approximately 30 feet to about 14 feet wide, held, to be a serious interference with the beneficial use.
    9. Same — Deeds—Estoppel.
    Evidence that within 10 years, in settlement of a dispute as to the boundary line between them, defendant and complainant had exchanged deeds each containing a reservation of a right of way, is very significant, if not controlling, and establishing that at that time each recognized in the other a right of way over the premises in question.
    Appeal from Kent; Brown, J.
    Submitted June 23, 1916.
    (Docket No. 39.)
    Decided December 22, 1916.
    Bill by the Berkey & Gay Furniture Company and others against the .Valley City Milling Company to establish complainants’ right to use a certain alley or way, and to restrain defendant from obstructing same. From a decree for complainants, defendant appeals.
    Affirmed.

      Butterfield & Keeney, for complainants.

      Rodgers & Rodgers, for defendant.
    The bill of complaint in this case is filed by the complainants :
    (a) To obtain a decree confirming their right to the use of a way, alley, or road over certain described premises as appurtenant to the premises of the complainants.

      (b) For a mandatory injunction compelling defendant to remove certain obstructions placed in said al-' leged way, alley, or road.
    (c) For an injunction restraining defendant from constructing any building in said alley, way, or highway, or from in any manner obstructing the same, or from impeding or embarrassing the complainants in their right to use the same as a highway.
    The defendant answering denies the right of the complainants to an easement over the lands described and prays for the dismissal of the bill. The map, defendant’s exhibit C, on page 236, will serve to give an outline of the situation.
    The property of the Valley City Milling Company, the defendant, is located on lot C and the southerly portion of lot B between the Grand river on the west and the canal on the east. Complainants Berkey & Gay are located on the northerly part of lot C and lot A, immediately north and adjoining defendant’s property. A second map showing the location of these several lots is herewith shown on page 238.
    The location of the proposed structure sought to be enjoined is shown on defendant’s Exhibit C and lies on the northeast corner of their property adjoining the canal. It is indicated on the map by the words, “proposed garage.” The northwest corner of this garage if constructed would come within 13.65 feet of the southeast corner of the Berkey & Gay building and would obstruct more than one-half of the way which the complainants claim they have a right to use. Other complainants besides the Berkey & Gay Furniture. Company own unplatted property, sold to them by-metes and bounds north of lot A and claim to be entitled to the free and unobstructed use of said way.
    The history of this way as gathered from numerous conveyances is somewhat vague and confusing. All the land lying north of Michigan avenue and between the canal and the river involved in this proceeding was patented in 1833 to Lucius Lyon and E. P. Hastings. In 1836 N. O. Sargent and Lucius Lyon conveyed to one John P. Calder an undivided one-third part of lots A, B, and C, with the following reservation:

      “And also the parties of the first part except and reserve to themselves, their heirs and assigns forever, the right of way over, through and across the above-mentioned lots, A, B, and C, that is to say, a space of. 25 feet wide- on the west bank of the canal, commencing at the north line of Bridge street, and running northerly along the bank of the canal across aforesaid lots. A, B, and C, and being a continuation of a street designated on the map before referred to as Mill street, the same to be kept open and used in common by the said parties of the second part and also for convenience of the parties of the first part, and their heirs or assigns, servants and agents, in passing, to and from said premises lying above said lots A, B, and C.”
    By the year 1854 the title to this one-third interest as well as to the other two-thirds had become-merged and the entire title vested in Daniel Ball. It is apparent from an examination of the various deeds from Daniel Ball to his several grantees that he attempted to lay out a street on the west side of the canal across lots C, B, and A, because in 1863 he'executed a deed to one Latimer containing the following description:
    “All that part- of lot C beginning at the northeast corner of lot D, thence north on the west bounds of Mill street, 65 feet, thence west at right angles to said street to tailrace, thence down said tailrace to north line of lot D, thence east to beginning, with water power, etc., for propelling machinery.”
    Other conveyances of lots C, B, and A indicate that the easterly limit was the westerly line of Mill street (so called), and it is apparent that it was the general understanding at that time that the way on the west side of the canal north of Bridge (now Michigan) street and crossing lots C, B, and A as well as other property north of those lots was a public street. It is clear, however, that there never was any formal dedication of said way or street to the public. It appears to have been maintained in a condition suitable for use by the abutting owners and for a great many years, probably 40 or 50, no question was ever raised as to the right of all persons so desiring to use said way. Later and perhaps as far back as 1896 the defendant, the Valley City Milling Company, from time to time caused to be erected a sign, or signs, at the entrance to said way bearing the words “Private” or “Danger” or other words warning intending passengers over said way that they used it at their peril.
    While it is admitted by defendant that its conveyance of lot C and the southerly part of lot B does not include said disputed strip, it is its contention that it has acquired title thereto through other conveyances, for instance, a deed dated February 26, 1877, and recorded March 4, 1878, containing the following description :
    “The bed, banks, and basin of the canal on the east side of Grand river, including a strip of land, 6 feet in width on the east side of said canal, south of Bridge street, * * * and a strip of land 30 feet in width on west side of canal extending from Bridge street north to the' north line of land assessed to Reuben Wheeler, excepting public street, alleys, highways,.and thoroughfares.”
    Other deeds introduced in evidence are said by defendant to sustain its claim to the ownership of the fee in the disputed way. A decree having passed for complainants, defendant has appealed.
    The case is argued under the following heads:
    (1) No easement exists by grant because: (a.) The reservation was over a one-third interest only; (5) the dominant and servient estates have been merged since the reservation; (c) since the merger there has been no dominant and servient estates.
    (2) No easement exists by user.

      (3) No easement ever existed on the location found in the decree.
    (4) The proposed garage does not interfere with a right of way.
   Brooke, J.

(after stating the facts). The first position taken by defendant in our opinion requires no examination. It may be conceded for the purposes of this case that the reservation contained in the deed of one-third of lots C, B, and A executed in 1836 was obliterated by the subsequent merging of all the estates in Daniel Ball. The language of this deed, however, is of evidential value not as showing that complainants have a record title to the easement, but as indicating beyond peradventure that the owners of the property as early as 1836- believed that the beneficial use of the land lying between the canal and the river could only be enjoyed by the several owners thereof, if a common way were kept open on the west bank of the canal.

We are of opinion that decision may well be rested upon a negation of the defendant’s second position. The record shows without contradiction that from the earliest period within the memory of living witnesses and during all the intervening time down to the present complainants and all other persons desiring to use said way have done so, and this user we find to have been as of right and not by sufferance. No protest against such user has been voiced by defendant except by the erection of the sign, hereafter noticed, and the way has- never been closed except upon occasions when repairs were necessary. The maintenance of a sign to the effect that the road was a private drive and must be used at the risk of the user is not conclusive. In the first place the way had been in use for more than a quarter of a century before any sign was erected, and in the second place the purpose of its erection would seem to be rather to avoid liability for possible injury upon the way than to assert defendant’s dominion over it.

Many cases are cited in defendant’s brief to the proposition that a user having its inception in license or favor cannot ripen into a prescriptive right. This is undoubtedly the law, but the principle cannot be applied to the facts in this case. Complainants themselves or their grantors purchased lot C as abutting on the west side of the way then called Mill, street in the deeds. The user of the way had certainly existed more than a quarter of a century before the execution of the deeds by which defendant claims to have secured the title to the fee. Under these circumstances it cannot be claimed that the user in its inception was through license or favor of the defendant or its grantors.

It has been held that the open, notorious, continuous, and adverse use across the land of another from a residence or place of business to a public road for more than 20 years affords a conclusive presumption of a written grant of such way (Clement v. Bettle, 65 N. J. Law, 675 [48 Atl. 567]), and that when the pass-way has been used for something like a half century, it is unnecessary to show by positive testimony that the use was claimed as a matter of right, but that after such user the burden is on the plaintiff to show that the use was only permissive (Magruder v. Potter, 77 S. W. 919, 25 Ky. Law Rep. 1336). See, also, Chenault v. Gravitt, 27 Ky. Law Rep. 403 (85 S. W. 184); Wathen v. Howard, 27 Ky. Law Rep. 7 (84 S. W. 303). We are of opinion that the defendant not only failed to show that the use of said way by the plaintiffs was permissive, but that the plaintiffs introduced testimony which convinces us that such use was enjoyed by the plaintiffs and their grantors as a matter of right.

It is next contended by defendant that no easement ever existed on the location found in the decree. This claim is based upon the fact that the decree delimiting the way across defendant’s land commences at a point 19.10 ft. west of the westerly line of the canal where it crosses Michigan street, and it is urged that if any right of way existed it was a right of way 30 feet wide immediately west of the canal. An examination of the defendant’s Exhibit C will show that the defendant just north of Michigan street has erected a garage 17.6 feet wide extending westerly from the edge of the canal, and that its intake is open for an equal distance west of the west line of the canal. Again referring to said plat we find that the way over the Berkey & Gay property is approximately 30 feet wide, though north of that it has been narrowed by structures at one point to 23.25 feet, and at another to 17.4 feet. We are of opinion that the wrongful invasion of this way by others should not be held to prevent plaintiffs Berkey & Gay from insisting that the way be kept open from their premises south to Michigan street. If the obstructions north of the Berkey & Gay factory have not existed for a period sufficient to establish the right to their maintenance by prescription, defendant, if interested, would doubtless be entitled to its remedy.

The fact, if it be a fact, that the way during all the period has not been in the same place is not controlling. If the defendant by reason of the erection of its garage just north of Michigan street on the west side of the canal, and the construction of its intake there, for its own convenience, pushed the way further to the west, the new way would take the place of the former one. Hall v. Hall, 106 Me. 389 (76 Atl. 705); Chenault v. Gravitt, supra.

It is finally contended on behalf of defendant that the proposed garage does not interfere with the right of way. This is based upon the fact that between 13 and 14 feet between the northwest corner of the proposed garage and the southeast corner of the Berkey & Gay factory would still remain available for the way. It is said that the widest wagon used by complainants or any of them is less than 7 feet in width, and that as the obstruction is only at one point, and teams would not be required to pass at that point, the space left is .adequate. We are unable to agree with the contention of the defendant that the beneficial use of the said way would not be seriously interfered with by the erection of said proposed structure. The record shows that the property abutting upon said way for a considerable distance to the north is occupied by large manufacturing establishments, and that constant ingress and egress to the various places is, necessary. It can hardly be contended that a way at one point 14 feet wide is as valuable as one approximately 30 feet wide. The fact that plaintiffs at a very considerable expense have undertaken to enjoin the structure for the purpose of maintaining their right to the broader way would seem to indicate that they, at any rate, believe that defendant’s proposed garage would seriously interrupt their use of the way.

A very significant, if not controlling, fact in this controversy has not been heretofore referred to. It appears that as late as 1903 a controversy arose between plaintiffs Berkey & Gay and the defendant as to the exact line separating their properties. In that year mutual deeds were executed by the parties, and the one executed by the plaintiffs. Berkey & Gay contained the following reservation:

“Reserving the rights of the first party in a 30-foot alley on the east side of said mill lots (the mill lots in question being lots B and C).”

On the same day and as part of the same transaction the defendant conveyed to the Berkey & Gay Furniture Company certain land, reserving a right to the first party to a 30-foot alley on the east side of the said lots. It is therefore apparent that within 10 years of the filing- of the bill of complaint in this case defendant and plaintiffs Berkey & Gay had by solemn deed recognized in each other a right of way over lots B, G, and A, 80 feet in width.

The decree of the court below will stand affirmed, with costs.

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


author: Brooke, J. Kuhn, J.

text:
      In re SHUMWAY’S ESTATE.
    1. Descent and Distribution — Common Law — Statutes—Heirs.
    The common law touching descent of estates has never obtained in Michigan; the statute of descent, being' the only-existing law, no one inherits property or becomes a legal heir except as it provides.
    2. Same — Wills—Husband and Wife — Heirs.
    Where the statute makes any part of the intestate land descend to the surviving spouse, such spouse is thereby made heir and entitled to share in a gift by will to the heirs of the other. Menard v. Campbell, 180 Mich. 583.
    3. Wills — Construction—Estates—Devisee of Life Estate as Remainderman. -
    There is nothing inconsistent or repugnant in a devise of a life estate with remainder to the life tenant, and such remainder may be a vested one; and the fact that it can never come into the actual possession of the remainder-man should not prevent its being so construed.

    4. Same — Husband and Wife — Heirs.
    Where the will of a husband devised a life estate to the wife and at her death to “my legal heirs, to be divided between them according to the provisions of the statute” (Act No. 200, Pub. Acts 1893), she was included as one of his heirs, and at her death her heirs were entitled ta her share.
    5. Same — Construction.
    And the fact that the testator knew that the life tenant would he dead when the time for division, possession, and enjoyment of the remainder arrived, would not justify the court in changing the terms of the will, and each of the devisees seised of a vested remainder might devise, convey, or otherwise dispose of his or her interest, unless restricted hy the will.
    6. Same — Vested Remainders.
    The policy of the Michigan statute is in favor of vested, rather than contingent or postponed, estates; and only plain, unambiguous language by the testator will prevent application of that rule in construing a will.
    7. Same.
    The will spoke at, and took effect from, the time of testator’s death, at which time the legal heirs were determined and their interests vested; and the provision in the will for the widow to take a life estate in the whole and a fee to the half was not inconsistent or repugnant, but simply operated to merge her two estates as to the one-half, investing her with an absolute title in fee to that portion.
    8. Same — Intent.
    In the construction of a will, it is a cardinal rule that the intent of the testator should govern, but the intent must be tangibly expressed, beyond mere surmise, conjecture, or supposition, where the construction contended for would disinherit the wife as to the half of the real estate given her by the statute, and there is nothing in the will which indicates ignorance of the statute, but rather that testator was familiar with its provisions, to which he made reference.
    9. Same.
    The law favors that construction of a will which conforms most nearly to the general law of inheritance.
    Kuhn, J., dissenting.
    Error to Lenawee; Chester, J., presiding.
    Submitted June 22, 1916.
    (Docket No. 69.)
    Decided December 22, 1916.
    Rehearing denied April 19, 1917.

      Leland F. Bean, administrator de bonis non, filed a petition in the probate court for an order of partial distribution of the estate of Nathan Shumway, deceased. From an order awarding distribution to thd heirs of Nathan Shumway alone, Ida A. Aleock and another, heirs of Marietta Shumway, deceased, widow of Nathan, appealed to the circuit court. From a judgment awarding distribution to the heirs of Marietta as well as of Nathan, the heirs of Nathan appeal.
    Affirmed.

      II. R. Clark, J. N. Sampson, H. I. Bourns, and L. F. Bean, for appellants.

      D. B. Morgan and J. C. Howell, for appellees.
    On August 3, 1899, Nathan Shumway, of Fairfield township, in Lenawee county, died testate without issue, survived by his wife, Marietta Shumway, who was named as executrix in his will. • The amount of his estate is but partially disclosed, but appellants state in their brief that “he left a large estate,” of which his realty was but a small part, while appellees say that deceased and his wife, who had “lived together for 50 years or more, by hard work on a farm accumulated by frugality and economy a fair property.”
    Deceased’s will was executed on December 22, 1893, to which he added a codicil on November 12, 1898. His wife survived him about 13 years, dying December 6, 1912. His will was duly admitted to probate, the widow being appointed executrix. The real estate left by him was then appraised at $10,125. On May 7, 1900, the final account of the executrix was allowed and an order of distribution made, in part, as follows:
    “It is therefore ordered, adjudged, and decreed that the real estate belonging to the.estate of deceased be assigned in the parts and proportions following, that is to say: To Marietta Shumway for and during her natural life, with power to dispose of the whole or any part thereof, as provided by the will of Nathan Shumway, deceased, and at her death to the heirs of Nathan Shumway, as provided by the will of said Nathan Shumway.”
    Following the death of Marietta Shumway in 1912, an administrator de bonis non. was appointed and a portion of the real estate sold by him, with the approval of the court, followed by a petition for a partial distribution. Upon this petition the probate court made an order providing for distribution of $13,351.42, proceeds of the sale of real estate which belonged to the estate of Nathan Shumway, deceased, amongst his heirs living at the time of the death of his wife, Marietta.
    On appeal by the heirs of Marietta Shumway to the circuit court this order was modified to the extent of giving one-half of such proceeds to her estate. The present appeal is from that portion of the circuit court decision which modifies the probate order. This issue hinges on the construction of the first clause in Nathan Shumway’s will, which, after providing for the payment of sickness, funeral expenses, and just debts, is as follows:
    “I give and devise to my beloved wife, Marietta, the use of all the real estate of which I may be seised or possessed for and during the period of her natural life, and after her decease I give, devise and bequeath all of said real estate to my legal heirs to be divided between them according to the provisions of the statute.”
    Exclusive of the codicil, no further reference to real estate is made in the will. The remaining seven clauses are as follows:

      “Second. I give and devise to my said wife should she survive me, all my household goods, my wearing apparel, library, pictures and fireproof safe, trusting that she will give such articles as she chooses to my friends for mementoes or keepsakes in her distribution of her property.

      “Third. The balance of my personal estate shall be listed and carefully appraised in such sums as each item would be then worth in market and from such list my_ said wife Marietta may select one-half in value which I hereby give and devise to her absolutely.

      “Fourth. After such selection by my said wife the balance of my personal estate shall be divided into such number equal shares and half shares as will fulfill the following conditions.

      “Fifth. I give and devise to each of my brothers and sisters who may be living at the time of my decease and to each of their children and to each of the children of any of my own brothers and sisters (who may be dead) one equal share and if any such children shall be dead leaving issue then such issue shall have the share that would have come to its parent if living. The word ‘issue’ in the last above clause shall be deemed all the issue taking as a unit.

      “Sixth. I give and bequeath to my half-sister Amanda M. Cheney if living and each of her children one equal half share (divided as aforesaid) and if any of her children shall be dead leaving issue such issue shall have the half share that would have come to its parent if living. This- distinction between own and half brothers and sisters I believe to be right and should be incorporated in the statutes for the distribution of estates.

      “Seventh. All sums, owing to me at the time of my decease from any of my heirs or legatees not barred by the statute of limitations shall be taken and construed as an advancement and deducted from the share they would otherwise receive of my estate.”
    The eighth and last appoints his wife as sole executrix, with expressions of confidence, and requesting that she only be required to give a nominal bond. The codicil which deceased added to his will in 1898, about a year before his death, so far as material here, is as follows:
    “I hereby authorize and empower the executrix of my said will, Marietta Shumway, to bargain, sell and convey such part of my real estate as. she may desire to sell, with the same force and effect that I might do if living; without the necessity of obtaining a license to do so from any court. And I direct that the proceeds of such real estate so sold by her (if any) shall be treated and considered as real estate and be divided among the devisees and legatees in said will named in the same proportion as in my said will specified fop the division of my real estate.”
    Appellants, heirs of Nathan Shumway, urge that his widow was not a “legal heir” of her husband, and it was not his purpose that she should take absolute title to one-half of all the real estate of which he died seised; that he did not intend in using the term “legal heirs” to include her as such, but otherwise expressly provided for her as a legatee and devisee, giving her the possession, use, and enjoyment of all his real estate so long as she lived, manifestly intending that when she died it should go to those of his own blood, or his natural and legal heirs; while appellees, the heirs of his widow, Marietta Shumway, insist that the trial court correctly construed the plain terms of the will according to their true meaning and his manifest intent ; that testator presumptively knew the legal meaning of the legal terms which he appropriately used; that he is assumed to have known that under the law of inheritance, which he apparently had consulted, if he left no children or father or mother, as he knew would be the case, his wife, as his legal heir, would inherit one-half of the real estate of which he died seised, and her title thereto would vest at the time of his death.

       On power to create remainder after life estate with absolute power of disposal, see notes in 6 L. R. A. (N. S.) 1186; 39 L. R. A. (N. S.) 805.

   Brooke, J.

(after stating the facts). The statute governing inheritance of property in force when Nathan Shumway made his will and when he died (Act No. 200, Pub. Acts 1898) would have given one-half of his entire estate, both real and personal, to his widow, Marietta, and the other half to his surviving brothers and sisters and the children of those who did not survive him, had he died intestate. The same essential bestowing language of inheritance, “shall descend,” is applied to both the widow’s half and the half inherited by blood relations. The common law touching descent of estates has never obtained in Michigan. The statute of descent is and always has been the only existing law on that subject in this State (Keeler v. Dawson, 73 Mich. 600 [41 N. W. 700]), and no one inherits property or becomes a legal heir except as it provides.

In Turner v. Burr, 141 Mich. 106 (104 N. W. 379), holding that a husband was heir of his wife, who directed in her will that a certain portion of her estate “be distributed among my lawful heirs according to law,” this court said:

“In English law the word ‘heirs’ has always meant the person succeeding to the title to real estate on the death of another — one who succeeds to the title by force of the law. A common definition is: ‘He upon whom the law casts an estate of inheritance immediately on the death of the owner.’ ”

In Rood on Wills, § 450, the applicable rule is stated as follows:

“But where the statutes make any part of the intestate lands descend to the surviving spouse, such spouse is thereby made heir, and in such cases and proportion entitled under a gift by will to the heirs of the other.”

And the rule is again recognized as the settled law of this State in the late case of Menard v. Campbell, 180 Mich. 583 (147 N. W. 556, Am. & Eng. Ann. Cas. 1916A, 802).

With the at least presumptive knowledge that his wife was his legal heir and would inherit half of the real estate of which he died seised if she survived him, testator gave her the use of the whole of it during her natural life, and then added:

“After her decease, I give, devise and bequeath all of said real estate to my legal heirs, to be divided between them according to the provisions of the statute.”

According to the provisions of the statute, his wife was included in his “legal heirs.” His creation of an intervening life estate, even to her, did not negative her status in that particular.

“There is nothing inconsistent or repugnant in a devise of a life estate with remainder to the life tenant, and such a remainder may be a vested one, and the fact that it can never come into the actual possession of the remainderman should not prevent its being so construed.” 40 Cyc. p. 1668.
“The fact that the devisee of the particular estate is one of several persons who at the death of the testator answer the description of heirs or next of kin does not prevent the application of the rule. He would take' jointly with the others a vested remainder.” 24 Am. & Eng. Enc. Law (2d Ed.), p. 394.

The fact that a life tenant can never come into the remainder does not change the time when title to the remainder vests. Cushman v. Arnold, 185 Mass. 165 (70 N. E. 43). In case of a devise for life with remainder over to testator’s heirs, which includes the life tenant, the fact that testator knew the life tenant would be dead when the time for division, possession, and enjoyment of the remainder arrived, would not justify the court in changing the terms of the will, and each of the devisees seised of a vested remainder might devise, convey, or otherwise dispose of his or her interest, unless restricted by the plain terms of the will. Robinson v. Mitchell, 99 Md. 50 (57 Atl. 625).

The above principles are well sustained in Bullock v. Downes, 9 H. L. Cas. 1, and Archer v. Jacobs, 125 Iowa, 467 (101 N. W. 195). The latter is a carefully considered opinion, instructively treating and citing numerous authorities upon the various contentions there arising in a complicated will case, where the court had occasion to deal with certain questions well in point here. Among these questions was the significance of similar deferring words as those used here, claimed to affect the time when title to the remainder vested. There the testator had directed in his will that the estate should go to his grandchildren or their issue “upon the death” of his daughter, while here the testator directed that his estate, or a certain portion of it, should go to his legal heirs “after her (his wife’s) decease.” In considering the contention that the language used in that case indicated an intention on the part of the testator .that the remainder should not vest until the termination of the life estate, the court said:

“We think this construction cannot prevail. The will gives evidence of having been prepared by a person of experience, and the testator himself must have been a man of intelligence and business sagacity. Had it been his purpose to suspend the vesting of-the remainder until his daughter’s death, it is very probable he would have said so in unequivocal terms, and not have left it be arrived at as a matter of inference. Words like those under consideration and others of similar import are of common use in wills, and, save in a few exceptional cases, the courts have uniformly held them to refer to the time when the remainderman shall come into the enjoyment of the estate, and not to the time when his interest vests. Such is the interpretation where the gift of the remainder follows the words ‘upon the death,’ or ‘after the death,’ or ‘at the death’ of the life tenant, or other equivalent forms of expression. In Kinkead v. Ryan, 64 N. J. Eq. 454 (53 Atl. 1053), the words creating the remainder are (having first provided a life estate for the wife):
“ ‘After the death of my said wife I give, devise and bequeath all my estate unto my beloved children [naming them], and any other child of mine that may be born hereafter share and share alike and to their heirs and assigns forever.’ * * *
“These words were held insufficient to postpone the vesting of the remainder in the children in esse. In Beatty’s Adm’r v. Montgomery’s Ex’x, 21 N. J. Eq. 324, the same construction was given to the words ‘from and after the death of my wife I give and bequeath/ etc.; and it was held that, although each of the remaindermen died, before the determination of the life tenancy, the remainder was vested in them, and passed to their representatives” — citing many other authorities.

This court has. more than once held that the policy of our statute is in favor of vested rather than contingent or postponed estates, and only plain, unambiguous language by the testator will prevent application of that rule in construing a will. Rood v. Hovey, 50 Mich. 395 (15 N. W. 525); Hibler v. Hibler, 104 Mich. 279 (62 N. W. 361); Clark v. Mack, 161 Mich. 545 (126 N. W. 632); Van Gallow v. Brandt, 168 Mich. 649 (134 N. W. 1018); Menard v. Campbell, supra; Ensign v. Dunn, 181 Mich. 456 (148 N. W. 343).

We find no confusing provisions, in the first paragraph of testator’s will to which well-seasoned rules of construction are inapplicable. His wife, to whom he gave a life estate in the realty, was one of his. several legal heirs amongst whom he directed division of the remainder in fee “according to the provisions, of the statute.” The will spoke at and took effect from the time of his death, at which time, under the statute to which he made reference, the legal heirs were to be determined and title to their interests vested in them, unless undoubtful language in the will plainly provided otherwise. The only words of futurity found are of a kind presumed to relate particularly to the time of enjoyment of the remainder, rather than when the estates shall vest, and are to be so construed. The fact that by the will the widow took both a life estate in the whole and a fee to the half was not an inconsistent or repugnant provision, but simply operated to merge, her two estates as to the one-half, investing her with an absolute title in fee to that portion.

It, however, is strenuously urged that the intent of the testator as expressed in the will, , taken as a whole, plainly indicated otherwise, and under the cardinal rule of construction the manifest intent of the testator should govern. Of this rule of construction there can be no question, but the intent must be tangibly expressed somewhere in the instrument in such language as plainly conveys the thought beyond mere surmise, conjecture, or supposition, and makes evident that Nathan Shumway intended that his wife should be disinherited as to the half of the real estate which the law gave her, and his distinct .direction that his real estate, subject to the life estate, be divided amongst his legal heirs (of whom she was one) according to the provisions of the statute should be ignored.

We discover nothing in any language of the will which indicates ignorance of the law upon this subject of descent of property or an intent that the general and applicable rules of construction should be disregarded in interpreting the instrument. Legal terms in the will are appropriately used. Its general tenor indicates that testator was a man of intelligence and independent thought, who had given the subject more than ordinary consideration and familiarized himself with the provisions of the statute to which he makes reference, one portion of which did not impress him favorably and in his opinion ought to be amended. In fact, it is not an unreasonable inference that he drew this will with the statute before him or in mind. He made reference to it more than once, and followed its sequences in dealing with beneficiaries, first, as does the statute, making provision for the wife, who manifestly was nearest to him, and naturally the first object of his solicitude. He gave her, unless appellant’s construction prevails, just what the statute gave her, with the added use and possession of the real estate which they had possessed and enjoyed together, with absolute ownership of their household effects and the familiar chattels of the home, of which she otherwise would own but the half, with the suggestion that, if she chose to give some of the articles to his friends as keepsakes, it would be agreeable to him. That it was his first and constant care to gratify, amply provide, and smooth the way for her after he was gone, runs through the scheme of his will from beginning to end; first providing that she should have the undisturbed use and enjoyment of the real estate while she lived, without further mention of individuals, he in general terms directs that otherwise it shall go as the statute of descent provides. Lastly, he declares that he has full confidence in her, designates her as his executrix, and, apparently knowing that the law would compel a bond of an executrix, requests that it be but nominal. That he intended to leave her what the statute would have given her and a little more is, we think, as reasonable an inference from this will, considered in its entirety, as that he intended to exclude her from this substantial interest in the real estate which the statute gave her.

It is a standard rule that the law favors that construction of a will which conforms most nearly to the general law of inheritance. Murdoch v. Bilderback, 125 Mich. 45 (83 N. W. 1007), and cases there cited.

The provisions of the codicil, which he executed some years later, are confirmatory of the general scheme of the will, and manifestly only added in the interests of his wife, enlarging her discretion with a view to make it easier for her, as executrix, to handle the estate.

In harmony with the above rule of construction, we conclude that his express directions that his real estate, subject to the life estate he created, be divided between his legal heirs “according to the provisions of the statute,” should be followed.

The judgment is affirmed.

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

Kuhn, J.

(dissenting). The most recent statement by this court of a cardinal rule observed in the construction of wills is found in Stender v. Stender, 181 Mich. 648 (148 N. W. 255), where it was said:

“Of course, that intention must be gathered from the instrument itself. But in determining what the real intention of the testator was, the entire instrument must be examined and all of its terms and language must be given due consideration.”

In my opinion, there is no difficulty in ascertaining from' section 1 of the will what the intention of the testator was. It is perfectly clear that his widow should have a life use of all of the real estate of which he died seised, and it was not to be divided and distributed until after her death. If he had intended that she should have one-half of it absolutely at her death, as would result from the conclusion reached by my Brother Brooke, would he not have so stated? If such had been his intention, would he not have said, ‘‘and after her death one-half of the said real estate shall go to my legal heirs and the other half to the legal heirs of my said wife, Marietta,” or that in substance? That he had the interests of his wife in mind is evident throughout the will. In paragraph 1 he gives her the life use of all his real estate. In paragraph 2 he gives her outright all his household goods, wearing apparel, library, pictures, and fireproof safe, with the simple suggestion that she “give such articles as she chooses to my friends for mementoes or keepsakes in her distribution of her property.” In paragraph 3 he provided that the balance of his personal property shall be listed and appraised, and that she select one-half of the same in value to be hers absolutely. He also appointed her sole executrix and requested that she only be required to give a nominal bond.

I cannot read this will without coming to the conclusion that it was clearly the intention of the testator that his wife was to have only the life use of his real estate, and that at her death the remainder was to go to the heirs of his body. Any other construction, in my opinion, is a technical one, and does violation to the plain intention of the testator. In the case of Menard v. Campbell, 180 Mich. 583 (147 N. W. 556, Am. & Eng. Ann. Cas. 1916A, 802), cited in support of appellee’s position, we approved the conclusion of the trial judge who said:

"A careful examination of the will has failed to reveal to me the expression of any intention on the part of the testatrix that her property should inure to the benefit of her immediate family, to the exclusion of any of the legal heirs of Joseph Honoré Nault.”

In the will before us the construction I am satisfied should be given the controverted section can easily be gathered from the section itself, and from the four corners of the instrument. For these reasons, I am unable to concur in affirming the judgment

It should be reversed, with costs to the appellants, and instructions to the lower court to affirm the order of the probate court for partial distribution.

Bird, J„ did not sit.


text:
    CURTIS v. SLATER CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Law — Reopening Case — Additional Compensation Hearing — Notice— Waiver.
    Where the industrial accident board notified respondent that á hearing on the petition of claimant praying that the case be reopened would be held on a certain date, and the petition, which was on file, prayed also for additional compensation, respondent was not prejudiced by the action of the board in also proceeding to determine that question, especially since respondent appeared at the hearing, and, without asking for further time, cross-examined claimant and his witnesses, and swore in its own behalf three witnesses.
    2. Same — Finding of Board — Evidence—Sufficiency.
    In proceedings to review the action of the industrial accident board, in awarding claimant additional compensation, where claimant testified that the injury for which respondent had previously paid him compensation caused his present condition of partial paralysis, and his physician testified that this condition would naturally follow from the injury, there was sufficient evidence to support the finding of the board.
    3. Same — Notice of Injury — Statutes.
    The fact that respondent had knowledge of the injury at the time it occurred, as evidenced by its filing an agreement as to compensation and settlement receipt with the industrial accident board, rendered it unnecessary for claimant to file a written notice Of said injury under section 18, pt. 2, Act No. 10, Extra Session 1912.
    4. Same — Filing Claim — Time—Waiver.
    Where an injured employee and his employer entered into an agreement with reference to compensation under the terms of the act (Act No. 10, Extra Session 1912), and filed the same with the industrial accident board, such action constituted a waiver on the part of the employer of the statutory requirement that the employee shall file his claim within six months from the date of injury.

      5. Same — Arbitration—Settlement Agreement.
    An agreement between the employee and his employer as to compensation to be paid, for an injury, when filed with tbe industrial accident board, obviates the necessity for, and deprives tbe parties of tbe right to, an arbitration.
    Certiorari to Industrial Accident Board.
    Submitted June 16, 1916.
    (Docket No. 4.)
    Decided December 22, 1916.
    John N. Curtis presented his claim against the Slater Construction Company for compensation for injuries while in respondent’s employ. On the death of claimant, the claim was revived in the name of Jessie Curtis, administratrix de bonis non. From an order awarding compensation, respondent brings certiorari.
    Affirmed.

      Hymers, Fredenburg & Heitseh (Alexander, Cotter & MacCord, of counsel), for appellant.

      He Hull N. Travis, for appellee.
   Brooke, J.

Under the provisions of the employers’ liability act the claimant and respondent on December 10, 1913, entered into the following agreement:

“Agreement in Regard to Compensation.
“We, John Curtis, residing at city or town of Pontiac, Mich., and Slater Construction Co., have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of Slater Construction Co., Pontiac, Mich.
“The time, including hour and date of accident, the place where it occurred, the nature and cause of injury and other cause of ground of claim, are as follows:
“Nov. 20th, 1913, about 10 o’clock a. m. a ditch caved in and bruised said John Curtis about the lower limbs and strained one knee. The said John Curtis was incapacitated for work from Nov. 20th to December 9th inclusive and started to work Dec. 10th, 1913.
“The terms of the agreement follow:
“The average pay for 41 weeks of said John Curtis while in the employ of said Slater Construction Co., covering the period from Nov. 21, 1912, to Nov. 20, 1913, is ($12.19) twelve dollars and nineteen cents, the said Curtis having worked 41 weeks with a total compensation of $497.73.
“John Curtis.
“Slater Construction Co.,
“By O. A. Slater, Mgr.
“Witness: Geo. E. Sutton.
“Dated at Pontiac, Mich., this 10th day of December, 1913.”
On the same day claimant was paid the sum of $16.26 and executed the following settlement receipt:
“Settlement Receipt.
_ “Received of Slater Construction Co. the sum of sixteen and 26/100 dollars, making in all, with weekly payments already received by me, the total sum of sixteen dollars and twenty-six cents, in settlement of compensation under the Michigan workmen’s compensation law, for all injuries received by me on or about the 20th day of November, 1913, while in the employ of Slater Construction Co. subject to review and approval by the Industrial Accident Board.
“Witness my hand this 10th day of December, 1913.
“John Curtis.
“Slater Construction Co.,
“O. A. Slater, Mgr.
“Witness: Geo. E. Sutton.
“Address: 121 Norton Ave., Pontiac, Mich.”

Later and on January 15, 1914, the industrial accident board approved the agreement in regard to compensation as follows:

“State op Michigan Industrial Accident Board,
“Oakland Building, Lansing.
“In re Slater Construction Co. — John Curtis.
“January 15, 1914.
“Slater Construction Company,
-“Pontiac, Michigan.
“Gentlemen: The agreement in regard to compensation in the above case has been passed upon by the Industrial Accident Board and approved.
“Very truly yours,
[Signed] “R. L. Drake, Secretary.”

It is undisputed that, at the time of the payment of the money for which the receipt was given, claimant had returned to work for the respondent, and that he worked for some time. He claims he was able to work but a few days, while the evidence on the part of the respondent tends to show that he continued in the employment from December 10, 1918, to January 9, 1914, a period of about four weeks, at which time he was discharged because respondent had no further work for him to do. According to the contention of respondent and appellant, nothing further was heard of claimant until October, 1914, when claimant made an affidavit setting out the fact of his injury, of the compensation he had received, and the claim that the respondent had known of his continuing illness since the injury.

On December 6, 1914, a petition to reopen the case and grant further compensation was filed with the industrial accident board, in which claimant asserts that his signature to the receipt was obtained through representations made on behalf of the company that the receipt was for the sum of money mentioned therein simply, and was not in full compensation for the injury sustained. The board thereupon gave the following notice to respondent:

“Slater Construction Co.,
“11-71 Parke St.,
“Pontiac, Mich.
“Gentlemen: In re Slater Construction Company— John Curtis.
“You are hereby notified that a hearing on the petition of the applicant in the above entitled cause praying that the case will be reopened, will be held before the Industrial Accident Board at its offices in the City of Lansing, Michigan, on the afternoon of January 27, 1915.
“Very truly yours,
“G. W. Dickson, Secretary.”

The case was thereafter reopened, and the testimony of the claimant and his attending physician was taken on his behalf, tending to show that shortly after the accident claimant developed a partial paralysis of his lower limbs, and at the time of the hearing was still suffering from paralysis and Bright’s disease, which in the opinion of the attending physician resulted from the accident. On behalf of the respondent, a physician testified that he examined the claimant on November 20, 1913, the day of the accident, and found him suffering from an injury to one of his knees, but found no other objective symptoms of injury. This physician never saw the claimant thereafter.

On the 23d day of September, 1915, the board made the following order:

“A petition having been filed by John N. Curtis, now deceased, praying for reasons therein set forth that his case be reopened and that he be awarded further compensation therein, and after the hearing of said cause before the full board and before the decision of the same said John N. Curtis, deceased, and thereafter Jessie Curtis was by the probate court of the county of Genesee appointed administratrix of the estate of said John N. Curtis herein, and the board having fully heard said cause and having carefully examined the proofs and evidence therein, and due consideration thereon having been had, it is ordered and adjudged that the prayer of the petition herein be granted and that said applicant, the administratrix _ aforesaid, is entitled to receive and recover from said respondent compensation at the rate of six dollars and nine ($6.09) cents per week for fifty-four (54) weeks _ in addition to the compensation heretofore paid during the lifetime of said John N. Curtis, and that same is due and payable.”

It appears that the claimant had died between the time of the hearing and the award, and that the weekly payments provided for in the award covered only the period from the time of the last payment until the date of claimant’s death.

Respondent and appellant relies upon the following errors:

“(1) That the Industrial Accident Board erred in deciding the case upon its merits after ordering that the hearing be had for the purpose of determining whether or not the case should be reopened.
“(2) That the Industrial Accident Board erred by holding as a matter of law that there was any evidence in the record upon which to base the finding of fact that the physical condition of said John Curtis was in any manner the result of the accident upon which compensation had theretofore been paid.
“(3) That the Industrial Accident Board erred by holding that a written notice of injury for which compensation was granted had been made or that your petitioner had knowledge of the injury for which compensation was granted within three months from the date of the injury.
“(4) That the Industrial Accident Board erred in holding that the claim for compensation for the injury for which compensation was granted had been made within six months from the date of the injury.
“(5) That the Industrial Accident Board erred in failing to allow your petitioner a hearing before an arbitration committee.”

We will examine respondent’s several claims in their order.

While the notice to respondent “that a hearing on the petition of the applicant on the above-entitled cause praying that this case will be reopened will be held before the industrial accident board at its office in the city of Lansing, Mich., on the afternoon of January 27, 1915,” makes no mention of the fact that the board at that time would or might proceed to grant further compensation, the petition itself was on file, and the petition prayed not only for the reopening of the case, but likewise for further compensation.

The board in its return says:

“Under the established system of the board, where a petition is filed to reopen and grant further compensation, both questions are at issue in the one proceeding. Proofs are taken covering both the propriety of reopening, and the relief to be granted if the case is reopened, and the matter is disposed of by a single order. No request was made by the respondents for an opportunity to bring in further testimony. At the time of the hearing, additional time was granted in which the parties might file briefs, but no suggestion was made that they desired to file additional proofs.”

In view of the fact that no application was made by respondent at the hearing for further time to introduce testimony, we are of opinion that the rights of respondent were not prejudiced by the action of the board in proceeding to a determination of the basic question, which was whether claimant was entitled to further compensation. A further reason for this conclusion is found in the fact that respondent appeared at the“time of the hearing upon the petition, cross-examined claimant and his witnesses, and swore in its own behalf three witnesses.

It is asserted that there is no evidence in the record upon which to base the finding of the board that the condition of the claimant was in any manner the result of the accident upon which compensation had theretofore been paid, and that the finding of the board is based wholly upon conjecture. Claimant himself, in his lifetime, testified to the fact that the injury caused his condition, and he offered the testimony of his physician, who said that in his opinion claimant’s then present condition would naturally follow from the injury. We are of opinion that there was evidence to support the finding of the board.

The third contention is, we think, without merit. There is no doubt that the respondent had knowledge of the injury at the time that it occurred, as is evidenced by the fact of its filing the agreement as to compensation and the settlement receipt with the industrial accident board. Appellant’s claim that it had no knowledge of the claimant’s condition after he quit work on the 10th of January, is disputed by the evidence of the claimant himself; but, in any event, it is clear that the compensation granted was for an injury, knowledge of which respondent had. This fact rendered it unnecessary to file a written notice of said injury under section 18, pt. 2, of the act (2 Comp. Laws 1915, § 5448).

We think it clear that where an injured employee and his employer enter into an agreement with reference to compensation under the terms of the act, and file the same with the industrial accident board, such action constitutes a waiver on the part of the employer of the statutory requirement that the employee shall file his claim within six months from the date of injury.

' With reference to the fifth claim of respondent, the board returned as follows:

“Under the procedure and the rules established by the board, arbitration is not permissible after an agreement in regard to compensation has been made and approved by the board, or after one arbitration has been had. Any other rule would make the procedure interminable and burdensome and the administration of the act could not be carried out. Subsequent matters arising in cases are handled by petition.”

' We are of opinion that the agreement between the parties as to compensation when filed with the board obviates the necessity for, and deprives the parties of the right to, an arbitration.

The order of the industrial accident board will stand affirmed.

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


author: Moore, J.

text:
    SOLOMON v. ALPENA CEDAR CO.
    Usury — Contracts—Waiver—Interest—Voluntary Payment.
    Where plaintiff received certain notes for the purchase price of timber lands from one of the defendants which, remaining unpaid were afterwards incorporated in a contract with defendants, under which plaintiff advanced moneys for lumbering operations, he to share in the profits, the receipts being applied upon the indebtedness, in an action to recover balance due upon the note and also profits and commissions, the defense of usury was not available, as it is a personal one and may be waived, and usurious interest voluntarily paid may not be recovered.
    Error to Wayne; Mandell, J.
    Submitted October 20, 1916.
    (Docket No. 29).
    Decided December 22, 1916.
    Assumpsit by Harry R. Solomon against the Alpena Cedar Company and others for profits and commissions due upon a lumbering contract. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Affirmed.

      Henry K. Gustin, for appellants.

      Joseph H. Cobb, for appellee.
   Moore, J.

This is an action of assumpsit brought to recover profits and commissions claimed to be due from the defendants under a contract between the Alpena Cedar Company and the Solomon Lumber Company, which contract was set out at length in the declaration. The declaration also contained all the' common counts in assumpsit. It is claimed there was a balance due besides the profits and commissions. The defense was that the contract was usurious, and that, as the Solomon Lumber Company had received from the Alpena Cedar Company considerably more than the moneys advanced under the contract, they had no cause of action. The circuit judge allowed interest at the rate of 7 per cent, and rendered judgment against the defendants in the sum of $322. The case is brought here by bill of exceptions, and the one question is: Did usury enter into the contract so that a verdict should have been directed for the defendants ?

To answer this question intelligently it will be necessary to consider the status of the parties. The defendant Henry K. Gustin, while on his way to Lansing to purchase lands, met Selig Solomon on the train. It was agreed Selig Solomon should furnish Mr. Gus-tin money to buy lands and they were to divide the profits. Later Mr. Solomon deeded the lands to Mr, Gustin for the amount he paid with interest at 7 per cent. He took in payment Mr. Gustin’s four $1,000 promissory notes indorsed by the defendant Widner. Mr. Widner and Mr. Gustin started in to lumber the lands. They needed more money. They saw Mr. Solomon and wanted him to go into partnership in lumbering the lands. He declined to do so. They represented there would be from $10,000 to $15,000 profit. They stated they felt Mr. Solomon should have a profit in the lands because he put up the money to purchase them and still had his money in them, and they offered him a share in the profits at a stipulated price on each post and other timber cut, of 2 cents on standard ties, 1 cent on No. 2, 1 cent on tamarack ties, and % cent on cedar fence posts, and 25 cents a cord on pulp wood, if he would make the advancements they desired. They estimated the quantity of timber, and upon this basis it amounted to $2,150. Mr. Gustin, who was a lawyer of many years’ experience, drew the contract referred to in the declaration which was executed by the parties.

It is the claim of the plaintiff that Mr. Gustin stated the contract was a legal contract, that the question of usury was discussed, and Mr. Solomon said he did not want any usury in the contract, and Mr. Gustin' said:

“No, this is plain enough. This is profits on the face of it, and that is all there is to it.”

It is the further claim that Mr. Solomon relied upon Mr. Gustin’s representations as being true. We quote those portions of the contract that are necessary to be considered in this litigation:

“Whereas the party of the first part is desirous of having the party of the second part advance it not to exceed twenty thousand dollars to be used for the purpose of lumbering said timber: Now therefore, in consideration of the covenants and agreements herein contained, the party of the second part agrees to furnish the party of the first part not to exceed twenty thousand dollars, as hereinafter provided for lumbering the timber hereinbefore stated. The party of the first part hereby agrees to transfer to the party of the second part, and does hereby transfer to said party, all ties, posts and pulp wood and other forest products now cut and removed from said land and which may be hereafter cut or removed from said land as security for said money to be advanced, as herein provided.
“The party of the second part agrees to advance said money as follows: Three thousand dollars upon the signing of this contract, and the balance from time to time as the lumbering progresses, in accordance with the inspection bills of the party of the first part, upon the following basis, to wit: * * * The party of the first part agrees to execute its notes for each advancement with interest at the rate of seven per cent, per annum, which notes are to be guaranteed by J. A. Widner and H. K. Gustin of Alpena. * * *
“All shipments of any of the above stock made by the party of the first part may be invoiced by the party of the first part, but it is expressly understood that all proceeds belong to the party of the second part, and all settlements from said shipments shall be at once turned over to the party of the second part until all advancements, interest, commission and other claims held by the party of the second part against said stock shall have been fully paid. * * *
“As a part consideration of this contract for the furnishing of the moneys herein stated up to fifteen thousand dollars the party of the second part is to receive from the party of the first part, in addition to said advancements and interest, twenty-one hundred and fifty dollars. * * * All of said forest products are to be lumbered during the winter of 1910-1911.
“As further and part consideration of the above advancement the party of the first part agrees to execute in favor of the party of the second part its notes to the amount of four thousand dollars, in lieu of four promissory notes made by H. K. Gustin and indorsed by J. A. Widner in favor of Selig Solomon and now held by Selig Solomon, the said new notes in lieu of said four promissory notes to the amount of approximately four thousand dollars to be guaranteed by the said H. K. Gustin and said J. A. Widner, and to be payable out of the proceeds of the sale of the stock hereinbefore mentioned in addition to any amounts advanced for lumbering as hereinbefore stated, or for interest, commission, etc.”

At the time the contract was signed a note reading as follows was given:

“$4,083.72. Alpena, Mich., Dec. 2,1910,
“On demand after date we promise to pay to the order of the Solomon Lumber Co. four thousand eighty three and 72-100 dollars, at our office, Alpena, Michigan, Value received with interest 7 per cent per annum.
“Alpena Cedae Co.,
“J. A. Widnee, Manager,
“Treas.”

On back:

“H. K. Gustin.
“J. A. Widnee.”

At this time the four $1,000 notes given by Mr. Gustin for the purchase price of the lands were surrendered. Mr. Solomon made advances from time to time to the amount of $10,000, and the Alpena Cedar Company proceeded to lumber; the proceeds being turned over to Mr. Solomon. Later Mr. Solomon wanted a settlement. He claimed the $2,150 as profits and commission as provided in the contract, and a balance of $322 on the note of $4,083. The defendants claimed that the provision in the contract for the payment of $2,150 in addition to interest made the whole tránsaction usurious, and that all payments made should be applied on the principal of the advancements, and should also apply to the principal of the $4,083 note. The trial judge held that the plaintiff could not recover the $2,150 profits and commissions.

After all the evidence was in, defendants asked for a directed verdict in their favor. This motion was overruled. . The record shows the following:

“Paper marked Exhibit R offered in evidence No-. vember 23, 1914.
“The Court: Did you agree on the figures?
“Mr. Friedman: I want to make this statement for the benefit of the record. I desire to say without in any way conceding or admitting that the plaintiff is entitled to a verdict, and insisting upon the requests to charge that have been filed, that the computation made by Mr. Solomon here shows a balance due of $332, is the correct one if the plaintiff is entitled to a verdict; but in my opinion I don’t think it applies to the rule laid down by the Supreme Court. If they •are entitled to a verdict that is the correct amount.
“The Court: Let a judgment be entered for that amount instead of the other.
“Mr. Friedman: I take an exception to the court’s directing a verdict.”

Exhibit R shows the dates and the amounts of advancements and the amounts received and credited thereon.

The appellants seek by the writ of error not only to retain the $2,150, which they agreed to pay as profits and commission and avoid the payment of any interest on the $10,000 of advancements, but also to wipe out the balance due on the $4,083 note which was given in lieu of the $4,000 in notes given by Mr. Gustin to Mr. Solomon in payment for a deed of the lands. Counsel cite in support of their contention sections 4857 and 4858, 2 Comp. Laws (2 Comp. Laws 1915, §§ 5998, 5999); Rosen v. Rosen, 159 Mich. 75 (123 N. W. 559, 134 Am. St. Rep. 712); and Continental National Bank v. Fleming, 170 Mich. 624 (134 N. W. 656). These sections of the statute have been construed by this court. Reference to some of the cases will be made later. The cases cited above are not controlling in this case.

The record shows Mr. Solomon did not have the money to make the advancements himself. The method of procuring the money was for the Solomon Lumber Company to make its note for the amount of the advance needed, and at the same time the Alpena Cedar Company made its note for a like amount guaranteed by Widner and-Gustin as provided in the contract and delivered them to the Solomon Lumber Company. The two notes were then pinned together and put in the bank, the money obtained and delivered to the Alpena Cedar Company. The record shows that from time to time the moneys which came to the Solomon Lumber Company as the result of the lumbering operation were applied on the advancements, and the notes which were put into the bank were surrendered to the Solomon Lumber Company, which in turn surrendered the notes which had been- given by the Alpena Cedar Company to it. This process continued until all the advancements and the notes given by reason thereof were paid and surrendered to the Alpena Cedar Company, and until only $322 remained unpaid on the $4,083 note which was given when the four $1,000 purchase-money notes were surrendered. It was this balance of $322 for which the circuit judge directed a verdict.

In Gardner v. Matteson, 38 Mich. 200, it is said:

“The defense of usury is a personal one, and may be waived, and so may the party voluntarily pay usurious interest, and where he does so he will not be permitted to recover it back.”

In Gray v. Lumber Co., 128 Mich. 427 (87 N. W. 376, 54 L. R. A. 731), it was said:

“It is claimed there was paid to the bank about $70 extra interest, which was usury, and which should have been applied as a general payment on the mortgage debt. It has been repeatedly held that the defense of usury is a personal one, and may be waived.”

See, also, Craig v. Butler, 9 Mich. 21; Smith v. Stoddard, 10 Mich. 148 (81 Am. Dec. 778); Sellers v. Botsford, 11 Mich. 59; Ruloff v. Hazen, 124 Mich., at page 572 (83 N. W. 370).

Applying these cases to the instant one, we think the judgment should be and it is affirmed, with costs to the plaintiff.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    JADDATZ v. GRACE HARBOR LUMBER CO.
    1. Evidence — Trover and Conversion — Admissions—Application por Automobile License.
    In an action of trover by plaintiff wife for the conversion of an automobile taken by defendants under an execution issued against the husband, a certified copy of the application for an automobile license, made by the husband, not in the presence of plaintiff, and in the absence of testimony that she authorized it to be so issued, was properly excluded by the trial judge.
    2. Same — Hearsay—Correspondence.
    A letter from the secretary of State to the defendants’ attorneys advising them that the automobile license was taken out in the name of the husband was properly excluded as hearsay.

      3. Trial — View of Property — Discretion of Court.
    It was not error for tlie court to refuse defendants’ request 'to allow the jury to view the automobile, which had been in defendants’ possession for several months; such view not being a matter of right but within the discretion of the court.
    4. Same — Execution—Ownership of Automobile — Directed Verdict.
    It was error for the trial court to direct a verdict for plaintiff on the question of ownership, in view of the use made by the husband of the automobile, and testimony that plaintiff had said it belonged to him.
    Error to Wayne; Wiest, J., presiding.
    Submitted-October 10, 1916.
    (Docket No. 96.)
    Decided December 22, 1916.
    Trover in justice’s court by Anna Jaddatz against the Grace Harbor Lumber Company and another. There was judgment for defendants and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Wilkinson, Routier & Hinkley, for appellants.

      Jonas B. Houck, for appellee.
   Moore, J.

This is an action of trover begun in justice’s court to recover for the unlawful conversion of a Flanders automobile, said automobile having been taken from plaintiff’s possession by defendant Bateson under an execution issued in the case of Grace Harbor Lumber Co. v. Gustave Jaddatz, plaintiff’s husband. The plaintiff claimed to have bought and paid for the automobile. The defendants claim the automobile belonged to the husband. The trial judge instructed the jury that the ownership of the automobile was not an open one under the proofs, and that the only question for them was the question of damages. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

It is said the court erred in refusing to receive in evidence a certified copy of the application for an automobile license made by the husband. There is no claim this application was made in the presence of the plaintiff, and there is no testimony that she authorized it to be issued to her husband. See section 10213, 3 Comp. Laws (3 Comp. Laws 1915, § 12555).

It was not error to exclude a letter from the secretary of State for the reason that it was hearsay. Culver v. Smith, 131 Mich. 359 (91 N. W. 608).

It is said the court erred in refusing the request of counsel to allow the jury to go and see the automobile which was brought to the vicinity of the courthouse. The automobile had been in the possession of defendants some months before the trial. Justice Grant, in Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367), speaking for the court in relation to a similar request, said:

“Such view is not a matter of right, but was in the discretion of the court. It was not therefore error to refuse it.”

We now come to a more serious question, and that is: Did the court err in declining to submit the question of ownership to the jury? The officer who took the automobile testified that at the time of his going to the Jaddatz home to make the levy Mrs. Jaddatz said: “You must not take that machine. It belongs to my husband.” He asked her who took out the license, and she replied: “I took out the license.” It is true Mrs. Jaddatz denied this; but, when taken in connection with the use made by the husband of the automobile, we think it presented a question of fact for the jury. Clark v. North American Union, 179 Mich. 131 (146 N. W. 336).

For this reason the case is reversed, and a new trial granted, with costs to defendants.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.