author: Blaib, J.

text:
    MONROE v. HICKOX, MULL & HILL CO.
    1. Sales — Express Warranty — Exclusion of Implied Warranty.
    Where, in a contract for the manufacture of machines, there is an express warranty that all the machines shall be like the sample, no other warranty can be implied.
    3. Same — Fitness for Special Purpose.
    Where a contract for the manufacture of machines provides that the manufacturer shall make the machines like a certain sample, and he expressly refuses to assume responsibility for the working of the machines, but agrees to make good any defects in workmanship or material when called upon, there is no implied warranty that the machines shall be fit for the purposes for which they are to be used.

    3. Same — Remedies of Buyer — Action for Breach — Conditions Precedent.
    Where a contract for the manufacture of machines provides that the fuanufacturer shall make good any defects in workmanship or material when called upon, no action will lie because of defective materials or workmanship until the manufacturer has been notified thereof, and given an opportunity to remedy the defects.
    Error to Grand Traverse; Mayne, J.
    Submitted February 28, 1906.
    (Docket No. 210.)
    Decided April 30, 1906.
    Assumpsit by John Monroe and' others, copartners as the Traverse City Sprayer Company, against the Hiekox, Mull & Hill Company for the breach of a contract to manufacture certain machines. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      W. P. Crotser and Smurthwaite & Alway, for appellant.

      Pratt & Davis and Parm C. Gilbert, for appellee.

       As to implied warranty of fitness of property bought foy special purpose, see note to McQuaid v. Ross (Wis.), 22 L. R. A. 187.

   Blaib, J.

In February, 1904, the plaintiffs, copartners under the name of the “ Traverse City Sprayer Company,” entered into an agreement with the defendant, a 'Corporation, for the manufacture by it of 100 spraying machines. The contract contained, among other clauses, the following:

“We hereby propose to enter your order for 100 of your spraying machines complete, which includes attachments for both fruit trees and potatoes, as per sample submitted, at a price of thirty-two dollars ($32.00) each, net cash 30 ■days after date of shipment, it being understood that we, will make any changes without additional charge where •such changes do not increase our cost of manufacture. You, however, to pay us an additional price where any changes made by you will increase our cost of manufacture. * * * We agree to manufacture all machines like sample submitted, or as may be changed hereafter, according to clause 1 above, all to be done in a workmanshiplike manner, we to make good any defects in workmanship or material when called upon during the first •season.”

Plaintiff proposed an amendment to this contract before it was accepted and signed, as follows:

“It being specially agreed upon and understood that all machines manufactured under this contract shall work equally as well as the machine submitted as a sample.”

Defendant refused to accept this clause, saying in its letter:

“We cannot accept a condition that throws upon us the responsibility of all of the machines working equally as well as the sample submitted, as we will not have anything to do with the operation of the machines. As manufacturers, the only thing that we can agree to do is to build the machine like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part. It, therefore, would only be necessary to use the clause in the contract that we had in the other one covering this jpoint.”

Upon receipt of this letter, plaintiffs signed the contract in its final form cóntaining the clause originally proposed by defendant.

The plaintiff copartnership was composed of the following persons, viz.: John Monroe, contractor, dock builder, etc.; Lawrence Doerr, inventor and patentee of spraying machine; Harold S. Kneeland, mechanical engineer; William Loudon, machinist and manufacturer of wagons, carriages, and sleighs; Benjamin Thirlby, William Thirlby, and William Calkins, all competent machinists, doing business under the name of Traverse City IronWorks; C. L. Greilick, engaged in lumber mill business; Arthur E. Wilson, contractor and builder; Dr. Kneeland, well posted in agricultural implements. Each member of the firm was a competent man about machinery.

It was agreed between the parties that Mr. Doerr, the inventor of the machine, should go to defendant’s factory at Bowling Green, Ohio, and superintend the construction of one machine as a sample. Mr. Doerr went to the factory at Bowling Green about February 10, 1904, and remained there until about the 1st of March. The first machine was nearly completed when he left the factory. It was made up of the parts of the old machine as far as they could be used with the changes made. The frame and tongue were maple and beech and some of the castings were malleable iron. It is claimed by the plaintiffs that the machine built by Mr. Doerr was to be the sample or model machine, but this machine was shipped to plaintiffs for their use in making sales as soon as completed, about March 16, 1904. The machine the defendant’s employes understood to be the sample machine was made entirely new and was almost completed when Mr. Doerr left the factory. Mr. Doerr testified upon this subject, as follows:

“In these conversations with the employés of the factory they expressed it in their judgment that southern pine would be better than maple or beech for these purposes, and they also said that the gray castings would be sufficient for the purpose for which they were to be used on these machines, and I told them if they were sufficient to answer the purpose and the pine was better than hardwood, I had no objections to their being used. I was there for the purpose of superintending the construction of the sample machine and wanted the machine as quick as I could get it. * * *

When I came back from the factory the second time, I made report to the other plaintiffs in the case, telling them as near as possible how near the sample machine was done when I left and that everything was satisfactory to me as far as the sample machine was concerned. I told the plaintiffs about the use of the pine in the machines. I did not tell them anything about the cast iron because I did not know whether the cast iron would stand the test or not and had no idea whether they would be used. I told the employés of the defendant of what the sample machine was made and that I was the inventor of the machine and understood the mechanism of it and am accustomed to hardware and understand machinery and told the employés of the said defendant in talking about gray castings that if the things were strong enough I had no objection. I wanted a strong and durable built machine. • I told them that [if] cast iron was strong enough, its use was immaterial to me, and I had nothing to say about it. I told them I didn’t think pine was as good as hardwood, but if it was as good I had no objection to its use. The sample machine was all I' had anything to do with. ”

The defendant substituted, in constructing the machines, long leaf southern pine for maple and cast iron for certain malleable iron castings. The defendant shipped 25 of the machines April 2, 1904. They were examined by at least three of the plaintiffs, Kneeland, Doerr, and Lou-don. Upon receipt and examination of the machines the plaintiffs wrote a letter complaining of defects in the machines, as follows: Bad painting, small cotter pins, pet cock not at 40 gallon mark, no bolts to fasten seats to frame and no'connecting rods, various parts bunched together, requiring sorting to assemble the machines. The defendant promptly replied, explaining the cause of the defects mentioned, offering to make them good or pay the expense of doing so, and sending the parts by express that were missing. The missing parts were so forwarded and were received. No other complaint as to construction of machines was ever made, and no demands were ever made upon the defendant to make good any defects in workmanship or materials.

When Mr. Mull, defendant’s president, met the plaintiffs in June and in August, he told them to make a list of the parts they desired and the defendant would send them. The plaintiffs received the first 25 machines about April 9th. On May 31st, they paid the defendant $1,000 on the contract. When Mr. Mull was at Traverse City, on June 25th, 51 machines had been shipped to plaintiffs and 44 were in defendant’s warehouse at Toledo. It was then agreed that if on his return he would wire plaintiffs that the machines had all been shipped, they would pay $2,200 more. This covered the contract price, but not the bill for extra work. On July 1st the plaintiffs paid $1,000, and July 7th, $1,200.

Plaintiffs gave evidence tending to show that the machines did not work properly on account of the change of materials, and claimed that they were worthless. Mr. Mull testified that, if the defendant had been required to make good all the defects claimed by plaintiffs in these machines arising from changes in material used in construction or defects in workmanship, the cost to it would have been: For each clutch lever, not to exceed 10 cents. For each clutch, 12 to 15 cents. For each malleable iron crank shaft, 60 to 75 cents. For pitmans for each machine, 10 to 12 cents. For enlarging cotter pinholes, each ■machine, 10 to 15 cents. For maple or beech tongues, each, 80 to 90 cents. For axle boxes, each machine, 5 cents. For new platforms, maple or beech, each, $2.50. Total for each machine, $4.72.

If the fault had been solely that of the defendant, it could, under the contract, have supplied the defective parts in the same materials as were used on the old machine, for the entire 100 machines, for $472. No attempt was made to deny this testimony, and no claim was made by any one that defendant had been requested to make good any defects in workmanship or material, other than the letter calling for certain bolts, and those were promptly sent by express.

Plaintiffs’ declaration, after alleging that the parties entered into a written contract, whereby the defendant agreed to construct 100 machines according to a certain sample machine, which said sample machine was well and siibstantially constructed, the wood being of substantial hardwood, the metal part of said machine constructed of wrought, cast, and malleable iron and of sufficient strength, etc., to perform the services it was intended to perform, proceeds, as follows:

“ That by the terms and conditions of said contract said defendant was under obligation to construct said 100 spraying machines in a good and workmanlike manner, and of the same material of the sample as furnished by said plaintiffs to said defendant, and as referred to in said contract. That said defendant, disregarding his contract and obligations in that behalf, did not manufacture said 100 spraying machines according to the terms and conditions of said contract; but, on the contrary, wholly failed and neglected to perform said cQntract; that in the attempted performance of said contract the defendant, in place of hardwood, used pine timber for the thills and in place of wrought and malleable iron, in many parts used cast iron, so that said machines when constructed were so poorly constructed and of such poor and weak material that said machines were wholly unsuitable for the purpose for which the same were constructed.

“ That at the time said contract was entered into said defendant understood that said plaintiffs desired to sell said machines to farmers and others having use for a spraying machine, and that plaintiffs intended to engage in the business of selling such spraying machines and needed such machines as were provided for by the terms of said contract. That owing to the neglect and default of said defendant in the performance of said contract and owing to the fact that said defendant performed said contract in such a negligent, careless, and unskillful manner, and because said defendant failed to use such material, wood, wrought, malleable, and cast iron as was required by the terms of said contract, whereby and by reason, whereof said plaintiffs were unable to sell said machines, as they otherwise could and would have done; and that owing to such failure on the part of defendant to perform said contract according to its terms, a large number of said machines which said plaintiffs had sold were rescinded and said spraying machines were returned to said plaintiffs, whereby said plaintiffs sustained great damage.”

At the outset, defendant’s counsel objected to the introduction of the contract in evidence for the reason that the declaration did not count upon it but upon a different contract, and at the close of the proofs, defendant’s counsel requested an instruction that the jury render a verdict of no cause of action, which motion was based upon the above reason and the following reasons:

“The second is: Whatever changes were made in the material that went into the construction of these machines, was done and made by an understanding between the plaintiffs and the employés of the defendant, for which the defendant is in no wise responsible. And, further, that these machines were shipped to Traverse City after the conversation between one of the plaintiffs and the employés of the defendant in regard to materials to be used in the construction of the machines had been reported by him, but whether reported by him or not, he was one of the principals, and his acts would be that of a principal. But they were shipped here and with every opportunity to examine the machines and no payment had been made until all had been manufactured and then payments to the extent of $3,200 were made on the contract to the defendant for the manufacture of these machines.”

Defendant’s counsel also requested the court to charge the jury, as follows:

“ Under the contract in the case, I charge you that the only liability on the part of the defendant was to make good any defects in materials or workmanship in the manufacture of the machines. There is no claim that plaintiffs requested the defendant to make good any defects in the machines and, therefore, the plaintiffs cannot recover.”

The court refused to give this request'and submitted the case to the jury. The reasons given by the court for overruling defendant’s motion are as follows:

“ The only question I can see on this motion is whether, under the wording of the contract, this clause. ‘ We agree to make , good any defects in workmanship or material when called upon during the first season,’ is the exclusive remedy provided by the contract, or whether this is simply permissive, that they may do it, that they may make good any defects. Under the facts as shown in this case, I am not so inclined to hold. I think that it was optional with the buyer, that is, 'optional with the plaintiffs whether they would return them or whether they would bring their action at law, and the motion of the defendant is denied.”

I think that the defendant’s motion should have been granted. There was an express warranty in this case that all the machines manufactured by defendant should be like the sample, and in such case no other warranty can be implied. McGraw v. Fletcher, 35 Mich. 104. Apart from the general rule that an express warranty excludes an implied warranty, the facts of this case would conclusively negative the implication of a warranty that the machines should be fit for the purpose for which they were to be used. The defendant, in its letter rejecting’ plaintiffs’ amendment to the proposed contract, expressly refused to assume responsibility for the working of the machines. The plaintiffs did not rely upon defendant’s superior knowledge in the construction of the machine, but vice versa. Doerr was the inventor of the machine, and knew from experience about its working. The defendant knew nothing about the machine from practical experience, and undertook to construct it in accordance with the sample or model constructed by Doerr. The rule that manufacturers furnishing articles ordered for a specific purpose impliedly warrant that they are fit for that purpose has no application to the facts of this case.

I think it is clear, also, that the parties fixed the damages for a failure to perform the contract. Defendant, in refusing to assume any responsibility for the working of the machines, expressly notified the plaintiffs of their construction of the language of the contract, viz.:

“ As manufacturers, the only thing that we can agree to do is to build the machines like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part.”

The contract expresses the same meaning except that it limits the time when defendant could be called upon ‘ ‘ to make good any defects in workmanship or material,” to the first season. Under this contract, defendant had a right to be notified to remedy defective materials or workmanship before suit was' brought against them therefor. Sloan v. Wolf Co., 59 C. C. A. 612.

The judgment is reversed, and a new trial granted.

Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
      In re SMITH.
    Certiorari — Propriety—Contempt—Motion to Quash — Denial.
    Certiorari does not lie to review the denial of a motion to quash contempt proceedings, either by virtue of the statute (Act No. 310, Pub. Acts 1905), or under the common law to determine the question of jurisdiction.
    Certiorari by C. Newton Smith to review an order denying a motion to quash contempt proceedings: On motion to dismiss the writ.
    Submitted April 30, 1906.
    (Docket No. 127.)
    Motion granted April 30, 1906.

      Frank A. Miller, Prosecuting Attorney, for the motion.

      Allen B■ Morse, amicus curise.

      V. H. & L. W. Smith, contra.
   Per Curiam.

Motion to dismiss writ of certiorari. These proceedings for contempt were commenced in the circuit court for Montcalm county, October 3, 1905. An order for an attachment was entered, based upon two affidavits filed in said matter. The attachment issued forthwith, requiring respondent to be produced before the court on the following day to answer to an alleged contempt of court relative to writing, printing, and publishing certain false and scandalous reports of and concerning Hon. Prank D. M. Davis, judge of said court, and Hon. Willis Perkins, judge of Kent county circuit court, relating to certain rulings, judgments, and actions of said circuit judges in certain causes then pending in said court. On October 4th Smith was brought before the court and an order entered that he cause his answer to be filed to the complaint against him oh or before October 7th following. He was enlarged upon bail in the sum of $300 pending such proceedings. On October 7th an application for •further time was requested by his attorney, and an order entered granting such request extending the time until October 11th. On this date respondent appeared specially by his attorneys and moved the court to quash the proceedings for want of jurisdiction, alleging many reasons therefor. This motion came on to be heard before Hon. Peter F. Dodds, circuit judge of the twenty-first judicial circuit, presiding, and after argument was denied. Thereupon the proceedings were removed to,, this court by writ of certiorari.

This is a motion to dismiss said writ for the reasons that Act No. BIO of the Public Acts of 1905 does not apply to contempt proceedings, and that this court has held that it would not interrupt contempt proceedings to review jurisdictional questions by certiorari. This act provides:

‘ ‘ Whenever in any action at law in a circuit court, a motion to quash the writ or declaration upon jurisdictional grounds, or the issues raised on a demurrer, plea to the jurisdiction or other dilatory plea shall be decided adversely to the party filing such motion, demurrer or plea, the dicision may be reviewed by writ of certiorari forthwith.”

The question is whether contempt proceedings are, within the meaning of the statute, an action at law. The statute says that, “whenever a motion to quash the writ or declaration upon jurisdictional grounds * * * shall be decided adversely,” indicating by coupling the words “writ or declaration” an ordinary action at law between parties litigant commenced by the usual writ or declaration. Proceedings for contempt are not the usual proceedings contemplated and understood when speaking of actions commenced by writ or declaration. They are special summary proceedings. “ Criminal contempts are acts against the majesty of the law, or the court as an agency of the government.” 3 Current Law, p. 796. The proceeding to punish for a criminal contempt is a proceeding entirely independent and distinct from the suit in which the contempt is committed. State v. Shepherd, 177 Mo. 205. Where the criminal contempt is direct — i. e., within the presence of the court or so near as to interrupt its proceedings — the court of its own motion acts summarily in its punishment. If constructive, the court, upon petition or affidavits presented, by warrant or attachment brings the offending party before it, to answer the charges preferred against him. It is clear to us that proceedings of this nature are not actions at law within the reasonable construction of the statute above quoted.

It is urged in respondent’s brief that, if the case is not within the statute, the writ should be granted to determine the jurisdictional question. The latest holding of this court, before the enactment of this law, is against the contention. In Toepel v. Wayne Circuit Judge, 138 Mich. 302, following former decisions of this court, it was said that certiorari was not the proper remedy to review a motion to quash contempt proceedings prior to the final determination in the circuit court. A party conceiving himself aggrieved has ample opportunity to review such proceedings after the circuit court has heard the case.

The motion is granted, and the writ dismissed, with costs.


author: Carpenter, C. J.

text:
      In re BROCK.
    1. Habeas Corpus — Review—Writ oe Error.
    A writ of error does not lie to review habeas corpus proceedings.
    2. Same — Certiorari.
    Certiorari lies to review such habeas corpus proceedings as are reviewable.
    Error to recorder’s court of Detroit; Connolly and Phelan, JJ.
    Submitted April 3, 1906.
    (Calendar No. 21,637.)
    Decided April 30, 1906.
    Habeas corpus proceedings by Felix Brock to obtain his release from a warrant of rendition. There was an order denying the writ, and petitioner brings error: On motion to dismiss the writ.
    Granted.

      Ormond F. Hunt, Prosecuting Attorney, for the motion.

      Charles T. Wilkins, contra.
   Carpenter, C. J.

Petitioner is deprived of his liberty by virtue of a warrant of rendition issued by the governor of this State upon the requisition of the governor of Ohio. He instituted these habeas corpus proceedings in the recorder’s court for the city of Detroit for the purpose of obtaining his liberty. That court decided that his detention was legal and remanded him to custody. For the purpose of reviewing said decision petitioner applied to this court for a writ of certiorari. We denied that application. He then, also for the purpose of reyiewing said proceedings, took out a writ of error from this court. A motion is made to dismiss that writ, on the ground that a writ of error does not lie to review habeas corpus proceedings.

This motion must be granted. People v. Fairman, 59 Mich. 568, settled the law in this State. In that case it was said:

' There is no statute in this State which authorizes a writ of error in such a case as this, and at common law the writ of error does not lie to a final order, made in proceedings upon habeas corpus.”

In harmony with this decision are the following cases: People v. Conant, 59 Mich. 565; People v. Calhoun Circuit Judge, 30 Mich. 266; Attorney General v. Jackson Circuit Judge, 90 Mich. 272. It is true that this court once held that habeas corpus proceedings could he reviewed by writ of error. See In the Matter of Hicks, 20 Mich. 129. This case is in conflict with the later cases above cited, and is overruled by them.

It is proper to add that certiorari is the writ by which this court reviews such habeas corpus proceedings as are reviewable (see People v. Calhoun Circuit Judge, 30 Mich. 266; Hamilton's Case, 51 Mich. 174), and that we refused to issue that writ to review the present proceedings, on the ground that the petition and accompanying papers disclosed no error prejudicial to petitioner.

Motion granted.

McAlvay, Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    MICHIGAN, OHIO & INDIANA RAILROAD CO. v. MONROE CIRCUIT JUDGE.
    Venue — Change—Statute—Applicability—Condemnation Proceedings.
    Proceedings to condemn land for public use, such as railroads, do not follow the course of the common law, and hence are not within the statute (Act No. 309, Pub. Acts 1905) providing for change of venue in any civil action upon application.
    Mandamus by the Michigan, Ohio & Indiana Railroad Company to compel Harry A. Lockwood, circuit judge of Monroe county, to grant a change of venue in condemnation proceedings.
    Submitted April 3, 1906.
    (Calendar No. 21,577.)
    Writ denied April 30, 1906.

      JS. B. Woodliff, for relator.

      Willis Baldwin and John O. Zabel, for respondent.
   Grant, J.

The Toledo, Ann Arbor & Detroit Railroad Company filed a petition for the appointment of commissioners to condemn certain lands in the county of Monroe, including lands owned by relator. Relator filed an affidavit for a change of venue under Act No. 309, Pub. Acts 1905, providing that “each of said courts * * * shall change the venue of any civil action pending therein upon application of either party, made upon affidavit, showing one or more of the following causes,” etc.

The affidavit is sufficient, provided that said act applies to condemnation proceedings. Condemnation proceedings may be commenced in any court of record in the county where the lands lie. It may be heard before the judge at chambers. The commissioners, when appointed, are not under the power or control of the court or judge. The judge appoints the time of 'their first meeting. The commissioners then adjourn from time to time, as they see fit, visit the premises, take proofs, and then report their proceedings to the court or the judge. They do not proceed according to. the course of the common law.

It was said in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456:

“The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves and never have been regarded as judicial. . * * * The inquiry in this State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes, what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by the courts, but always heretofore by the legislature or some unjudicial body of its creation. * * * But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense.”

See, also, Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 506, and Derby v. Saginaw Circuit Judge, 60 Mich. 4.

We hold, therefore, that the above statute, providing for a change of venue, does not apply to these proceedings, and the writ of mandamus is denied.

Blaie, Montgomeev, Osteandee, and Hookee, JJ., concurred.


text:
    JAKOBOWSKI v. AUDITOR GENERAL.
    Taxation — Tax Sales — Notice to Redeem — Certixioate ox Error.
    A purchaser of land, holding under an unrecorded contract, who has paid the taxes due on the land, is entitled to a certificate of error from the auditor general under section 98 of the general tax law, as relief against a sale for the taxes which he has paid, though the tax sale purchaser has served the notice provided by section 140 upon the record owner, the limitation provided by section 143 not being applicable to such a case.
    Mandamus by August Jakobowski to compel James B Bradley, auditor general, to issue a certificate of error.
    Submitted February 26, 1906.
    (Calendar No. 21,530.)
    Writ granted, April 30, 1906.
    This is an application to compel the respondent to issue a certificate of error, under section 98 of the general tax law (Act No. 206, Pub. Acts 1893). The State Savings Bank of Ionia owned the lands in fee simple. On December 15, 1899, it entered into a land contract with the relator for their sale; the relator agreeing to pay the taxes. Relator did not record his contract. Taxes were assessed against the lands for the year 1900, were paid, and relator has the receipt therefor. The lands were not returned delinquent by the township treasurer, but by some mistake they were returned delinquent by the county treasurer, were sold at the annual tax sale, and bid in by the State, and subsequently, on June 20, 1904, sold by the State to one Miller. Miller caused a notice to be served under Act No. 229 of the Public Acts of 1897, arid acts amendatory thereof, upon the bank, the last owner of the recorded title. Nothing appears to have been done by the bank,'and the six months had expired. Relator, upon learning the situation, applied to the respondent for a certificate of error. The respondent refused, solely upon the ground that he was prohibited from canceling said sale or issuing a certificate of error by the provisions of section 143 of the general tax law (Act No. 229, Pub. Acts 1897, amended by Act No. 128, Pub. Acts 1901), which section reads as follows:
    “ Every person personally served with the notice provided for by act number two hundred twenty-nine of the public acts of eighteen hundred ninety-seven, and every person lawfully chargeable with such notice by registered mail, as provided for in said act, together with the heirs, executors, administrators, or assigns of such persons, who shall refuse or neglect to pay or tender to the purchaser as aforesaid, the sum provided for in said act within the time therein limited, and who shall have neglected within the said six months to commence suit to set aside the said tax deed, shall thereafter be barred from questioning the validity of such tax title or tax deed mentioned therein.”

      jR. A. & W. E. Hawley, for relator.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for respondent.
   Grant, J.

(after stating the facts). The relator contends that, under the repeated decisions of this court, he is entitled to the relief prayed. He cites and relies upon the following decisions: Hand v. Auditor General, 112 Mich. 597; Wood v. Bigelow, 115 Mich. 123; Hough v. Auditor General, 116 Mich. 663; Carpenter v. Jones, 117 Mich. 91; Kneeland v. Wood, 117 Mich. 174; Kneeland v. Hyman, 118 Mich. 56; Hubbard v. Auditor General, 120 Mich. 505; Thomas v. Auditor General, 120 Mich. 535; Mann v. Carson, 120 Mich. 631; Northrup v. Maneka, 126 Mich. 550; Nowlen v. Hall, 128 Mich. 274; Cole v. Auditor General, 132 Mich. 262; Hoffman v. Auditor General, 136 Mich. 689; Kent v. Auditor General, 138 Mich. 605. It is unnecessary to quote from these decisions. They fully sustain this provision of the law authorizing the auditor general to cancel sales and deeds where the original owner has paid his taxes. With the wisdom of that provision we are not concerned. Undoubtedly the legislature desired to give the owner under such circumstances an inexpensive and speedy relief. We have repeatedly in the above decisions recognized this provision as valid. The attorney general concedes its validity. He, however, contends that by section 143 the auditor general is prohibited from taking such action after the expiration of six months given to the owner and taxpayer to appear and either take proceedings to contest the validity of the tax deed, or to pay double the amount of his tax, etc., and obtain a reconveyance.

Prior to the enactment of section 143, we held that no limit of time was fixed by section 98 for the action of the auditor general. Kneeland v. Wood and Mann v. Carson, supra. Did section 143 of the general tax law (Act No. 229, Pub. Acts 1897, amended by Act No. 128, Pub. Acts 1901) repeal the provisions of the law under which the above decisions were rendered as to the time within which the auditor general might act and impose 'a six months’ limitation in all cases ? The language of the statute bars every person personally served, and “every person lawfully chargeable with such notice by registered mail,” etc. Relator acted in good faith, and did all that the law required of him. He was guilty of no laches in not recording his contract. Only an innocent purchaser for value from the bank could defeat his title and rights under his contract of sale. He agreed to pay the taxes, and paid them, and took his receipt, and the township returned the taxes as paid. He was not called upon to take further' action until the receipt of actual notice that his title was in jeopardy. He, having done his duty, had the right to rest upon the assumption that public officials would do theirs. Is he barred from the right of relief ? Is the grantee in an unrecorded deed, or the vendee of an unrecorded contract for the sale of land, barred because his vendor or grantor, when served with notice and having no interest, neglects to inform his grantee or vendee that he has received suph notice? We think the statute does not cover such a case. This is not a case where one of two innocent parties must suffer, or where the State will be deprived of its revenue. No party in interest will suffer by the cancellation of the deed. The State and municipalities have received their revenue due from the taxpayer. The taxpayer will retain his land as in justice he ought, and the holder of the tax deed will receive back his money from the State. :

The writ will issue.

Ostrander, Hooker, and Moore, JJ., concurred. Blair, J., concurred in the result.


author: Montgomery, J.

text:
    KEITH v. WENDT.
    Elections — Recount oe Votes — Preservation op Ballots.
    A recount of votes can be had, under 1 Comp. Laws, § 3725, only m cases when the recount board can find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots as cast have been observed.
    Certiorari to Wayne; Rohnert, J.
    Submitted April 17, 1906.
    (Calendar No. 21,645.)
    Decided April 30, 1906.
    Mandamus by Evelyn Keith and others to compel Albert Wendt and others, composing the common council of the village of Eairview, to declare relators elected to certain offices and to issue certificates therefor. There was an order granting the writ, and respondents bring certiorari.
    Writ quashed.

      Daniel J. Campan (Charles 8. Hampton, Fred A. Baker, and Moore & Moore, of counsel), for relators.

      Alex. J. Croesbeek, Fdwin Henderson, and James D. May, for respondents.
   Montgomery, J.

This is certiorari to review the decision of the circuit judge made on an application for mandamus to require the respondents, who constitute the common council of the village of Fairview, to declare the relators, who were candidates for village offices, elected to the various offices for which they were candidates.

The petition sets out that the relators were, according to the declaration made on election day, elected; that, after such declaration was made, the ballot box was not kept in the manner required by statute; that the defeated candidates had applied for a recount of the ballots; and that such recount was not authorized, for the reason that the requirements of the statute as to keeping the ballot box and preserving the integrity of the ballots had not been observed.

The circuit judge did not make a positive order for the issue of certificates, but did direct that the board, before proceeding to a recount, should make a preliminary examination of the ballot box and determine whether it had been locked as provided by law, and whether it was sealed with the election seal of the village as required by law. The court further directed that, if the respondents should find that the requirements of .the law had not been observed, the respondents should proceed to make the declaration of relators’ election. The court further directed that respondents should refrain from opening the ballot box mentioned, until the further order of the court. Borne criticism is made of the form of the order, and particularly of the last clause.

The order staying action is in form unusual, but, as we read the record, there seems little room for controversy as to the main facts. The order might therefore have been broader in the first instance, if the rule contended for by the relators be applied. That contention, briefly stated, is that a recount can be had, under 1 Comp. Laws, § 3725, only in cases when the recount board can find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots as cast have been observed. We held, in May v. Board of Canvassers of Wayne Co., 94 Mich. 511, that, where it claimed that the ballot box had been tampered with, it was the duty of the board to cause the box to be brought before it and make an investigation. It was also said that such investigation would be confined to an inspection of the box itself. It was not determined in terms that the board must, as a prerequisite to a recount, find that the box had been sealed as the statute requires; but we think such a view was foreshadowed. Further consideration has strengthened our belief that there can be no certainty in proceedings under this statute, if boards are permitted to set up standards of their own in regard to the steps necessary for the preservation of the ballots cast. The test must be this: Have the ballots been preserved as the law .directs? See Andrews v. Otsego Probate Judge, 74 Mich. 284.

It is true that, in quo warranto proceedings, the law as to preservation of ballots is held so. far directory that it becomes a question for a jury as to whether the ballots not cared for strictly as the law directs are in fact the ones cast at the election. People v. Sackett, 14 Mich. 320. In such case, however, there is an opportunity afforded for a judicial determination of the facts. The statute in question provides no machinery for a trial of disputed questions of fact, and such an important judicial power cannot be implied, if, indeed, it were competent to bestow it upon such a tribunal.

As the order made was less broad than the facts authorized, the writ of certiorari will be quashed, with costs.

Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    BOARD OF SUPERVISORS OF ARENAC COUNTY v. BOARD OF SUPERVISORS OF IOSCO COUNTY.
    Counties — Claims—Other Counties — Care of Siok — Remedies —Money Paid — Audit by Supervisors.
    A county caring for an indigent person, sick with smallpox, resident of another county, may recover the expense thereof from such other county under section 4424, 2 Comp. Laws, in an action for money paid; and being under the necessity of incurring the expense, is not a volunteer in paying the claims therefor, and is not compelled by section 10, article 10( of the Constitution, to present its claim to the board of supervisors of such other county for audit.
    Error to Iosco; Connine, J.
    Submitted February 14, 1906.
    (Docket No. 153.)
    Decided April 30, 1906.
    Assumpsit by the board of supervisors of Arenac county against the board of supervisors of Iosco county for money paid for the care of an indigent smallpox patient. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      W. C. Cook, for appellant. .

      Jahraus & Sawden, for appellee.
   Montgomery, J.

The following extract from the opinion of the circuit judge states the nature of the case and the question presented:

“ This is an action of assumpsit. Declaration on the common counts, alleging the promise to pay ‘ in compliance with section 4424 of the Complied Laws of 1897.’ A notice is annexed to the declaration to the effect that plaintiff, under the money counts, would give in evidence 17 certain bills, audited and allowed and paid by plaintiff in a certain smallpox quarantine case of "William M. Gregory; said Gregory or his parents or any other person not being able to pay the same, and he being then and there a charge of defendants. Following the notice are copies of the bills. The defendant pleaded the general issue, and also pleaded in abatement that, before the bringing of this suit, the same bills constituting the claim sued upon had been presented to defendant board of supervisors by plaintiff, and by said board rejected. Hearing On the plea in abatement. No proofs were taken, but the plea in abatement was taken as true.

“Defendant contends that under section 10, art. 10, of the Constitution, the board of supervisors have exclusive jurisdiction of such claims, and that the action at law will not lie. Section 4424, 2 Comp. Laws, makes such expense a charge of the county to which he belongs, if the person cared for, his parents, or other person liable for his support are unable to pay.

“ By amendment in 1903, the provision making the expense a charge against the county where the party belongs was repealed. Act No. 7, Pub. Acts 1903. The claim sued upon arose in 1901. The effect of the repeal upon the claim in controversy has not been argued or relied upon, and will not be considered.

“It must be held that the claims against counties must, as a rule, be presented to the board of supervisors for allowance; that their action upon them, when taken in good faith, is, as a rule, final; and that no action at law will lie on such claims. There are, however, exceptions to such rule, and plaintiff’s counsel claims this is one of the exceptions. It is claimed that a citizen of defendant’s county was found in plaintiff’s county afflicted with smallpox ; that the local board of health, having no discretion or choice left in the matter, were compelled by section 4424, 2 Comp. Laws, to care for the party at the expense of their own county; that the claim for this expense arose, not out of choice or out of voluntary or contract relation, but as a matter of law, and hence that it can be sued upon; that by reason of the circumstances and the statute plaintiff’s money was forced from it by a species of duress; that the claim is a common-law one for which a common-law action will lie.

“Notwithstanding this constitutional provision, it has been held that suits will lie against counties, as ‘for money illegally collected by the county officers and paid under protest by plaintiff.’ Endriss v. County of Chippewa, 43 Mich. 317. And a county may be sued upon the common counts in assumpsit. Cicotte v. County of Wayne, 44 Mich. 173; Weston v. County of Luce, 102 Mich. 528.”

The circuit judge was of the opinion that the remedy of the plaintiff in this case was confined to a proceeding to have the plaintiff’s demand audited by the defendant board of supervisors, and reliance was placed upon the case of People v. Supervisors of Manistee County, 33 Mich. 497, in which it was held that when a county to which a criminal case had been removed, under section 309, 1 Comp. Laws, had paid the expenses of the trial, the remedy to recover from the county in which the case originated was limited to an auditing of the claim by the board of supervisors; the statute providing that “all expenses of such trial shall be a charge upon the county in which the prosecution originated.” It is said the statute is similar in its provisions to section 4424, which provides that the expenses for caring for a smallpox patient in a case like the present shall be at the charge of the county to which he belongs. There is, however, this distinction: In People v. Supervisors of Manistee County it was said:

“ It is very clear that a large portion of the claim presented by Barry county was such as could not be presented in its name at all unless as assignee of the original claimants.”

That is to say, the county of Barry was not compelled to pay the claims of the individual claimants. In the present case the plaintiff had no option in the matter, as the county was in the first instance liable to those who rendered services. Rae v. Mayor, etc., of Flint, 51 Mich. 528; Elliott v. Supervisors of Kalkaska County, 58 Mich. 453. The payment of these claims by the plaintiff was not therefore voluntary. It was not such a claim as the Constitution contemplates shall be committed to the board of defendant county for audit. Endriss v. County of Chippewa, 43 Mich. 320; Auditor General v. Board of Sup’rs of Bay County, 106 Mich. 680.

The judgment is reversed, with costs, and the case remanded.

McAlvay, Grant, Blair, and Moore, JJ., concurred .


author: Hooker, J.

text:
    TOOLAN v. LONGYEAR.
    1. Constitutional Law — Dub Process — Notiob—Tax Sales.
    The provision of the tax law authorizing the foreclosure of the lien of the State, and the sale of the property, without personal service of process, does not render the act unconstitutional.
    2. Taxation — Tax Deeds — Title Conveyed.
    Under the direct provisions of section 3895, 1 Comp. Laws, a deed executed by the auditor general, on presentation of a certificate of sale after the expiration of the time provided by law for the redemption of land sold for taxes, conveys title in fee.
    Error to Clinton; Stone, J.
    Submitted October 12, 1905.
    (Docket No. 45.)
    Decided May 1, 1906.
    Ejectment by William Toolan and Alexander McMillan against John M. Longyear and James Monroe. There was judgment for plaintiffs, and defendants bring error.
    Affirmed.

      Cahill & Wood, for appellants.

      Thomas, Cummins & Nichols, for appellees.
   Hooker, J.

This case, came on for trial before the court without a jury, and the court rendered judgment for the plaintiffs and the defendants have appealed. The action is ejectment, and the declaration claims the premises in fee. The defendants’ title is derived from a Federal patent, while that set up by the plaintiffs rests upon two auditor general’s deeds for the taxes of 1891 and 1892. The lands were bid in to the State and were afterwards purchased by the plaintiffs in 1895. But two assignments of error are discussed by counsel for the defendants, and we will consider those only. The questions raised are: (1) Is the tax law constitutional ? (2) Did the plaintiffs acquire title in fee, through their tax deeds ?

It is contended that the act is unconstitutional, for the reason that it provides for the foreclosure of the lien of the State, and the sale of the property, of private persons, without service of process. We have repeatedly held that this provision does not invalidate the law. Substituted service is sustained in proceedings in rem. The subject was fairly discussed in Ball v. Ridge Copper Co., 118 Mich. 7, and this case has been approved since. See Hooker v. Bond, 118 Mich. 255. See, also, Pritchard v. Madren, 24 Kan. 486; Leigh v. Green, 64 Neb. 533; Chauncey v. Wass, 35 Minn. 1; 2 Freeman on Judgments (4th Ed.), § 607. We must consider the question settled.

The second question has been discussed in several cases, but counsel urge a reconsideration on the ground of certain sections of the tax law, which are said to be inconsistent with the rule that the State acquires a title in fee to lands bid in for the State, and the further ground that what has been said in such cases is obiter. This title was acquired from the State before the passage of Act No. 229, Pub. Acts 1897, and under section 72 of the tax law (1 Comp. Laws, § 3895) the title conveyed was a title in fee. See Dawson v. Peter, 119 Mich. 274; Allen v. Cowley, 128 Mich. 530; Hickey v. Rutledge, 136 Mich. 128; Board of Sup’rs of Alcona Co. v. Auditor General, 136 Mich. 130; Monaghan v. Auditor General, 136 Mich. 247; Raber v, Hyde, 138 Mich. 101; Hoffman v. Lumber Co., 138 Mich. 5, 10.

The judgment is affirmed.

Grant, J., concurred. McAlvay, Blair, and Moore, JJ., concurred in the result.


author: Ostrander, J.

text:
    WARD v. CULVER.
    1. Elections — Canvassing Board — Marquette Charter.
    Under the charter of Marquette, which provides that upon the Thursday next following election the common council shall meet and determine who are elected to the several city offices, the common council is a canvassing board within the meaning of section 3725, 1 Comp. Laws, providing for recounts by canvassing boards.
    2. Same — Recount—Petition—Sufficiency.
    A petition for a recount of the votes cast for mayor of a city, which shows that petitioner and his opponent received 1001 and 1008 votes, respectively, is sufficient, though it asserts no errors in the count of votes within the knowledge of the petitioner.
    3. Same — Mandamus—Answer—Sufficiency.
    An answer by a canvassing board to an order to show cause why they should not proceed to recount the votes of certain wards for an office is insufficient, where it makes no mention of one of the wards specified, and as to another fails to clearly state that the ballot boxes have not been sealed as the law requires.
    4. Same — Statute — Constitutionality — Impossibility of Enforcement. ’
    Section 3725, 1 Comp. Laws, providing for recounts by boards of canvassers is not unconstitutionál as applied to city offices because it cannot be carried into execution unless by common consent, since the members of the common council of a city, constituting the board of canvassers, are officers of the city, bound by their oath of office, and while there is no express requirement that the inspectors in the various wards having the keys and election seals shall attend the board of canvassers, it is their duty to do so upon notice, and it is not probable that examiners selected by rival candidates will refuse to serve.
    Mandamus by Walter T. Ward to compel Rush Culver, mayor, and the common council of the city of Marquette to grant a recount of the votes cast for the office of mayor.

      Submitted April 17, 1906.
    (Calendar No. 21,660.)
    Writ granted May 1, 1906.

      C. F. Button and M. M. Riley, for relator.

      Daniel H. Ball (W. S. Hill, 8. W. Shaull, Benjamin O. Pearl, and J. F. Ball, of counsel), for respondents.
   Ostrander, J.

Relator was candidate for re-election to the office of mayor of the city of Marquette at the annual city election, held April 2, 1906, and, as shown by the returns from the several wards of the city, was defeated. He filed with the recorder of the city a petition for a recount of the votes cast for mayor at said election in the first, second, and fifth wards of said city, deposited the proper amount of money, and served upon the opposing candidate a copy of his said petition. The errors, mistakes, and frauds complained of were:

“(a) That in each of said wards, as your petitioner is informed and believes, votes were counted for said Culver in said canvass, which because of distinguishing marks, mutilations, and other invalidities appearing upon the face thereof, and elsewhere, ought not to have been counted.

(b) That in each of said wards, your petitioner is also informed and believes, votes cast for your petitioner for said office were thrown out and not counted for your petitioner because claimed to have some distinguishing mark, or to be mutilated or otherwise invalid, which ought to have been counted for your petitioner.

“ (c) That in each of said wards, as your petitioner is informed and believes, votes cast for your petitioner for said office were not counted and returned as cast for him.

“(<2) That in each of said wards, as your petitioner is informed and believes, votes were counted and returned as cast for said Rush Culver, for said office which were not in fact so cast.

“ (e) That in each of said wards, as your petitioner is informed and believes, the several boards of election inspectors returned a less number of votes as cast for your petitioner for said office, than were in fact cast for him.’’

The matter was presented to the common council at a meeting held April 5th to canvass the votes given in the several wards, and thereupon the council, by a divided vote, determined, first, that it was a.matter over which the common council had no jurisdiction; second, that -the petition was insufficient both in statements of errors complained of, and in that it did not state that in the belief of the petitioner, if the votes had been properly counted, the result would have been changed. The returns before said common council showed that relator had received 1,001 votes and the opposing candidate 1,008 votes. The council proceeded to examine the official returns of votes, determined that Eush Culver was duly elected, and so declared by a resolution duly adopted.

The first reason assigned by the common council for declining to entertain the petition for a recount is based apparently upon the idea that the common council of the city of- Marquette is not a canvassing board within the meaning of section 3725, 1 Comp. Laws. The charter provides:

‘ ‘ Upon the Thursday next following the day of said election the common council shall meet at the office of said recorder and thereupon determine who, by the greatest number of votés given in the several wards at such election, are duly elected to fill the respective city offices. ” Act No. 249, Local Acts 1891, chap. 5, § 1.

We have no doubt that the common council of the city is a board of canvassers within the meaning of the section referred to.

It is true the petition for a recount does not assert, upon the knowledge of relator, any errors in the count of votes. The averments made upon information and belief are very general. It is also true, however, that slight changes in one or all of the wards specified, if in relator’s favor, without corresponding changes in favor of Mr. Culver, tvill be sufficient to change the result announced. The petition is verified, the statute a beneficial one. Under all of the circumstances, we must decline to hold the petition insufficient.

It is further averred in the answer of the common council that the seals of the ballot box of the second ward of the said city, at the time it was delivered to the recorder of said city after the election, were broken in such a manner that full and complete access could be had to the box by any person having the key thereof, and said box fully opened without fear of detection, and without disturbing or breaking any other or further seals than those broken at that time; that the seals of the ballot box of the fifth ward were partially broken, but that respondents are not certain whether access could be had to the interior thereof without defacing or breaking other seals thereon. Various averments concerning' the condition of the ballot box in the seventh ward are contained in the answer, the materiality of which is not apparent. This court has held (Keith v. Wendt, ante,49) that it is a prerequisite to a recount that the board find that the ballot box has been sealed as the statute requires. Any other rule would result in confusion and permit boards of canvassers to variously determine whether the ballots cast had been so preserved that a recount of them could be had. It does not appear from the answer but that the ballots in'the first ward of the city of Marquette can be recounted, nor is it made certain that the ballot box of the fifth ward was not, after the election, properly closed as provided by law and has since remained closed.

The constitutionality of Act No. 208, Pub. Acts 1887, as amended by Act No. 267, Pub. Acts 1897 (section 3725, 1 Comp. Laws), is questioned by counsel for respondents, upon the ground, generally, not that the act is in direct conflict with the Constitution, but that it cannot be carried into execution unless by common consent, and reliance is placed upon the opinion of this court in Andrews v. Otsego Probate Judge, 74 Mich. 278. In that case, the court had under consideration Act No. 293, Pub. Acts 1887. The defects in that act pointed out by the court do not inhere in the statute which we are considering. The members of the board of canvassers of the city of Marquette are officers of. the city, bound by the oath of office, required to perform certain duties with respect to elections upon certain days.. It is true there is no express requirement that the inspectors intrusted in the various wards with the keys and election seals shall attend the board of canvassers. That it would be their duty to db so, upon notice, is clear, and the presumption that they will do so will be indulged.- It is hardly conceivable that examiners, selected by rival candidates will refuse to serve.

The writ will issue, commanding the common council to meet within ten days after notice of the issuing of the writ and within the same time proceed to a recount, according to the provisions of the statute, of the ballots cast for the office of mayor in the first ward of the city of Marquette, and the ballots cast for the same office in the fifth ward of the city of Marquette, provided an inspection of the ballot box of the fifth ward shall show that it was, after the election, fastened and sealed in the manner required by the statute, and that there has since been no tampering with the fastenings of the box.

Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.


text:
    RUNDLE v. SCULLY.
    1. Contracts — Construction—Intention or Parties.
    A contract'must be so construed as to give effect to the intention of the parties, which must be ascertained from the language of the instrument and the facts and circumstances attending its execution.
    2. Guaranty — Construction—Continuing Guaranty.
    An instrument by which a married woman becomes security to the amount of $1,000 for coal to be sold her husband, who is in the coal business, and by which she guarantees payment on a certain date, is a continuing guaranty for the amount stated during the whole period, and is not discharged by the payment, by the husband, of the stipulated amount once during the period.
    Appeal from Wayne; Hosmer, J.
    Submitted February 9, 1906.
    (Docket No. 123.)
    Decided May 8, 1906.
    Bill by Nancy E. Rundle against Walter J. Scully to set aside a mortgage foreclosure. Defendant filed an answer in the nature of a cross-bill asking for an accounting. From a decree for defendant, complainant appeals.
    Affirmed.

      Sheridan J. Colby, for complainant.

      James McNamara and Frank C. Cook, for defendant.
   Ostrander, J.

The bill in this case was filed to set aside a foreclosure sale, and the sheriff’s deed given pur-: suant thereto, of certain mortgaged premises. The answer of defendant sets out certain facts which it is claimed entitle him to affirmative relief. Defendant and Samuel O. Rundle, who was husband of complainant, made, September 13, 1898, an agreement, in writing, to the effect:

“ That the said party of the first part agrees to sell to said second party at his place.of business, number 985 Fourth avenue, coal and wood in an amount not to exceed the sum of one thousand ($1,000) dollars. Said purchases herein provided for are to be made from time to time as said second party may require, but at no time shall the amount of said purchases exceed the sum of one thousand ($1000.00) dollars.

“Said second party hereby agrees to pay to said first party for all coal and wood purchased by said, second party, under the terms of this agreement, on or before the 1st day of June, 1899.

“ It is further understood and agreed, by and between the parties hereto, that the payment of all purchases of coal and wood herein provided for shall be secured by a mortgage bearing even date herewith, executed by Nancy E. Bundle to Walter J. Scully, and to be due and payable on Juñe 1, 1899.”

On the same day complainant executed and delivered to defendant a mortgage, containing the condition:

“To secure the repayment of the sum of one thousand dollars ($1,000.00), with interest at the rate of 7 per cent, per annum, payable after the maturity of the debt secured by this mortgage according to the conditions of a certain agreement in writing, bearing even date herewith, executed by Samuel O. Bundle to said party of the second part, to which these presents are collateral,” etc.

The principal contention arises upon the claim of defendant that the mortgage, read in connection ..with the agreement, was a continuing security and evidenced a continuing suretyship for $1,000. Counsel for both parties present arguments upon the theory that the agreement is ambiguous, and counsel for defendant rely especially upon what is claimed to be the practical construction adopted by 'the parties. It appears that Mrs. Bundle kept the books for her husband until November of the same year, and was at all times acquainted with the condition of his business. She knew the application which defendant was making of moneys paid to him. On October 30, 1899, ■she took a bill of sale of all her husband’s stock in trade and thereafter continued the business. She testified that this came about because her husband was refused credit for a car load of coal by defendant, who said to her that, df she would take over and operate the business, he would extend credit to her. Thereafter all purchases, of coal were made in her name and upon her account, and, agreeably with defendant’s suggestion, she kept her books to show in a separate account the purchases made by herself. From September 13, 1898, to October 25, 1898, defendant sold Bundle coal to the amount of $1,057.39, and the last coal sold him was April 29, 1899. Sales to March 1, 1899, amounted to more than $6,000 and payments to more than $4,000, andón June 1, 1899, there was due on account, including certain six cars of coal, $1,898.06, and excluding six cars, $1,363.58. After June 1, 1899, and to October 23, 1899, there was paid on this $514.40; this, according to books kept by complainant, or by a clerk whose work she had opportunity to and did inspect. Gard v. Stevens, 12 Mich. 292, and Fogel v. Blitz, 128 Mich. 503, are not decisive, in complainant’s favor, of the question here. A contract must be so construed as to give effect to the intention of the parties, which must be ascertained from the language of the instrument and the facts and circumstances attending its execution. Mathews v. Phelps, 61 Mich. 327; Switzer v. Manufacturing Co., 59 Mich. 488.

We think it clear that the undertaking of complainant was not, as she claims, that she should become surety for the first $1,000 sold her husband (and should be given credit for the first moneys paid to defendant by her husband, on account), but was an undertaking to secure $1,000 of credit to be extended from the date of the agreement to June 1, 1899. If, upon the face of the papers, the real undertaking is at all doubtful, the situation and conduct of the business, the thing sought to be accomplished, and the conduct of complainant, supply whatever is necessary to support such a conclusion. • As to the six cars of coal about which some question is made, the evidence sustains the finding that they were sold, regularly, to Mr. Bundle.

The decree is affirmed, with costs.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Moore, J.

text:
    KING v. ANN ARBOR RAILROAD CO.
    Death — Wrongful Death — Damages—Exoessiveness.
    Deceased, an assistant lighthouse keeper, earning $450 a year, but in the line of promotion under the civil service rules, was killed through defendant’s negligence. Prior to the accident he was strong and healthy, mentally and physically, and had a life expectancy of 35.33 years. He left a wife 31 years of age, and a child of 7 months, at the time the suit was brought. Held, that a verdict aásessing the pecuniary loss of the widow and child at $8,000 was excessive, and should be,reduced to $5,000.
    Error to Benzie; Chittenden, J.
    Submitted October 13, 1905.
    (Docket No. 63.)
    Decided May 14, 1906.
    Case by Elfa H. King, administratrix of the estate of Sheridan J. King, deceased, against the Ann Arbor Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed conditionally.

      T. W. Whitney (Alexander L. Smith, of counsel), for appellant.

      D. Gr. F. Warner and Charles A. Withey, for appellee.
   Moore, J.

This case has been here before. 137 Mich. 487. A reference to the case as reported will aid in understanding the situation upon the second trial. Upon the second trial plaintiff recovered a verdict. The defend- , ant insists a verdict should have been directed in its favor. We were of the opinion, when the case was here before, there was evidence in the case in support of the theory of the plaintiff as to what occurred, and that the court could not properly withdraw the case from the jury. A careful examination of this record satisfies us that this is still the situation. The trial judge followed the rule of law laid down by us when the case was here before. The judgment ought to be affirmed, except as to the amount thereof. A motion was made for a new trial because, among other reasons, the verdict was excessive. This motion was overruled.

The decedent, at the time of his death, was 30 years of age, about six feet tall, strong and healthy, mentally and physically. As assistant lighthouse keeper he was earning $460 a year. His position came under the civil service rules, and he was in the line of promotion. His expectancy of life, according to the mortality tables, was 35.33 years. He left a wife and one child. The wife was 31 years of age, and the child 7 months, at the time the declaration was filed. The verdict rendered was for $8,000. The verdict should be for the pecuniary loss to the widow and child, because of the death of the decedent. While this cannot be accurately determined, we think that, under the facts disclosed by the record, the amount of the verdict was too large.

If the plaintiff within 20 days remits $3,000 thereof, the judgment will be affirmed for the remaining $5,000, with costs of this court to defendant; otherwise, the judgment will be reversed, and a new trial ordered.

Carpenter, C. J., and McAlvay, Grant, Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    ATTORNEY GENERAL, ex rel. SCOTT, v. McCOLEMAN.
    1. Townships — Consolidation—Constitutional Law.
    A statute disorganizing a township and attaching its territory to an adjoining township, and taking effect the day before the annual township election, is not unconstitutional for disfranchising the electors of the disorganized township, since they have a right to exercise in the new township the franchise possessed by them in the old.
    3. Same — Statutes—Construction.
    An act passed before the consolidation act divided the township into two voting precincts, numbered one and two, by a line drawn across the township from east to west, and provided that all territory lying north of the line should constitute precinct number two. Territory lying both sides of the line was contained in the added township. Held,' that the act did not operate to disfranchise any voter of the added territory, since, upon the taking effect of the consolidation ■ act, the voters of the added territory became electors of the township, and if not within precinct number two, were entitled to vote in precinct number one.
    Mandamus by John 33. Bird, attorney general, on the relation of Edward Scott and others, to compel Zebina McColeman and others, constituting the township board -of the township of Atkinson, to deliver to relators the money, books, and papers of said township pursuant to -Act No. 677, Local Acts 1905.
    Submitted May 8, 1906.
    (Calendar No. 21,695.)
    Writ granted May 14, 1906.

      Frank F. Doremus (M. H. Moriarty, of counsel), for relators.

      Charles H. Watson and M. J. Sherwood, for respondents.
   Ostrander, J.

Act No. 577, Local Acts 1905, is entitled “An act to disorganize and vacate the township of Atkinson, in the county of Iron, and to incorporate its territory within the adjoining township of Iron River, in the county of Iron.” By the terms of the act the township of Iron River is made the legal successor of the’ township of Atkinson to all property, and is made liable to pay the lawful indebtedness and claims against the township of Atkinson; the township officers of Atkinson are required, as soon as the act shall take effect, to turn over and deliver to the proper officers of the township of Iron River, the same as if said officers were their successors in office, all moneys, funds, books, papers, files, records, and other property and effects belonging to the township of Atkinson and belonging to their several offices; the township treasurer of Iron River is invested with authority to collect all taxes due and unpaid upon any property in the township of Atkinson, and to enforce the payment of delinquent and other taxes and to credit the township of Iron River with moneys thus collected. The act was ordered to take effect April 1, 1906. That day was Sunday. The following Monday was the day for holding the annual township meeting, and on that day an election was held in the township of Iron River," in which the inhabitants of the territory theretofore constituting the township of Atkinson declined to participate, but, on the contrary, proceeded to hold an election as though that township were still in existence, and, upon demand being made by the officers comprising the township board of Iron River, the officers comprising the township board of the township of Atkinson declined to turn over money, books, or papers. Thereupon the attorney general, upon the relation of the members of the township board of Iron River, applied for a writ of mandamus, to be directed to the persons constituting the township board of the township of Atkinson, requiring them and each of them to deliver the money, books, and papers according to the terms of the act referred to. For answer to the order to show cause, which was granted, the respondents set out that the act of the legislature referred to was void because contravening the provisions of section 1 of article 7 of the Constitution of the State, in that it operated to disfranchise the electors of the township of Atkinson by providing for the disorganization of that township one day previous to the annual township election without providing any machinery or method by which the electors of Atkinson township could participate in the voting of the taxes or in the election of officers in the township of Iron River, nor was provision made for the registration of the electors of the township of Atkinson in the township of Iron River or the completion or revision of the registration lists in said township of Atkinson. ¡

The reasonable intention of the legislature was that the business of the township of Atkinson, including the registration of its qualified electors, should proceed in the usual way so long as it remained, a township. On Sunday, April 1st, by operation of the law, the same people, including the electors, became inhabitants of and electors in the township of Iron River, an organized township possessing the officers and all the machinery of government, and they had the undoubted right to exercise as inhabitants of that township all the rights of citizens possessed by other inhabitants of the same township. The argument that the qualified electors of Atkinson township were disfranchised because they had not for 30 days been inhabitants of the township of Iron River is without force. They had been inhabitants of the territory comprising the township of Iron River. Gibson v. Wood, 105 Ky. 740 (43 L. R. A. 699); Renner v. Bennett, 31 Ohio St. 431. No political right of any inhabitant was or was intended to be abridged. We think all the contentions made against the act and its constitutionality are determined by Attorney General, ex rel. Battishill, v. Township Board of Springwells, 143 Mich. 533.

But respondents further in their answer call attention to the fact that at the same session of the legislature Act No. 596, Local Acts 1905, "was adopted, entitled “An act to provide for a new voting precinct to be known as voting precinct number two, in the township of Iron River, in the county of Iron,” section 1 of which reads:

“ All that territory in the township of Iron River, county of Iron, lying north of the north line of township forty-three, range thirty-five and thirty-six thereof, shall constitute a separate voting precinct, to be known as voting precinct number two, Iron River township.”

It is pointed out that three sections of the original township of Atkinson lie south of the north line of township 43 N., range 36 W., and that entire surveyed township 46 N., range 37 W., was apart of the original township of Atkinson; that Act No. 596 took effect March 1, 1906, and can be held to apply only to the territory at that time within the organized territory of Iron River. It is argued that the inhabitants of the three sections and those of the entire surveyed township mentioned, being thus omitted from the territory included within said election district No; 2, were, under any construction of said Act No. 596, disfranchised, because no provision was made for their registration within the township of Iron River. It is made to appear, also, that there were electors residing within the said excepted territory. It is contended that Act No. 596 must be read in connection with and as supplementary to Act No. 577, and that, as so read, the earlier act must be found to be unconstitutional.

This contention has been for the most part already disposed of. There was territory in the township of Iron River at the time Act No. 596 was passed and given effect, both north and south of the north line of township 43 N., and by this act that territory north of the line and east of the west line of range 36 was organized into a separate voting precinct. The remainder of the territory in the township would necessarily be in election precinct No. 1. It is true that the act could have no effect, at the time of its passage, upon any territory, lying either north or south of said line, not a part of said township of Iron River. But on April 1st the inhabitants of Atkinson township became inhabitants of Iron River township, and were, of necessity, if outside of the boundaries of precinct No. 2, within the boundaries of election precinct No. 1. ' A study of the map shows that the electors of the township of Atkinson, as well as those of Iron River, living north of the north line of township 43 and west of the west line of •range 36, may have been put to some inconvenience in being required to vote in election" precinct No. 1, in the township of Iron River; this depending, however, in degree, upon where the polls were located. That the operation of either statute interfered with the exercise of political rights by any inhabitant of the township of Atkinson is not made to appear.

The writ must issue as prayed.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.


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    WARD v. CULVER.
    Elections — Canvass—Recount—Report oe Committee — Adoption.
    Where a committee of the common council of a city has recounted the ballots cast for a city office, as provided by sec’ tion 3725,1 Comp. Laws, and presented majority and minority reports, the council have no power to accept other than the majority report.
    Mandamus by Walter T. Ward to compel Rush Culver, mayor, and the common council of the city of Marquette to issue to relator a certificate of election.
    Submitted May 14, 1906.
    (Calendar No. 21,660.)
    Order to show cause denied May 15, 1906.

      Charles F. Button (Cahill & Wood, of counsel), for relator.
   Per Curiam.

Respondent, the common council of the city of Marquette, acting as a board of canvassers, in obedience to the order of this court, appointed a committee to recount the vote for the office of mayor of said city. This recount committee could not agree and made two reports. The board of canvassers adopted the majority report. Relator applies for a mandamus.

This application can be granted only upon the assumption that the board of canvassers had authority to adopt the minority report. It had no such authority. It was bound to adopt the majority report. That report is the one described in the following language in section 3725, 1 Comp. Laws, viz.:

“ Said board of canvassers upon receiving the report of such committee shall accept the same as correct, anything in the previous declaration, certificate or returns * * * to the contrary notwithstanding. ”

In this connection, see our recent decision of Atwood, v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295.

The application for an order to show cause is denied.


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    CORBS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads^In juries at Crossing — Negligence—Evidence.
    In an action against a railroad for injuries at a crossing, evidence that defendant did not sound the statutory signals is sufficient to go to the jury as to defendant’s negligence.
    2. Same — Contributory Negligence — Failure to Stop, Look, and Listen.
    Where a highway crosses a railroad at a very acute angle on a high embankment, and a traveler on the highway stops, looks, and listens twice before attempting to cross, the second time when the wheel of his carriage is within 10 feet from the track, he is not negligent in failing to stop again before crossing, though, owing to the length of the crossing, he has yet to travel 91 feet before reaching a place of safety.
    3. Same — Evidence—Sufficiency.
    Testimony of plaintiff that she stopped, looked, and listened, and did not see or hear a train which was approaching, is not necessarily to be discredited as in contradiction with physical facts, where the crossing was very long, and there is testimony from which the jury may find that the train was hidden from view by buildings, excavations, and other obstructions, and that, after plaintiff’s observation was made, the train came from behind those obstructions, running at a very rapid rate of speed, and struck plaintiff before she had gotten entirely across the .unusually long crossing.
    Error to Tuscola; Beach, J.
    Submitted June 14, 1905.
    (Docket No. 7).
    Decided May 24, 1906.
    Case by Lena Corbs, by next friend, against the Michigan Central Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Abbott & Abbott and Lehmann & Riggs, for appellant.

      E. A. Cooley and J. C. Hewitt (Henry Russel .and O. E. Butterfield, of counsel), for appellee..
   Carpenter, C. J.

Plaintiff brought this suit to recover damages for personal injuries.' The court below directed a verdict in favor of defendant. Plaintiff asks us to reverse that judgment, contending that her testimony made a case entitling her to the judgment of the jury-

We state the testimony, placing upon it, as we should, the construction most favorable to plaintiff. Plaintiff was injured by a collision between one of defendant’s trains (a fast passenger) and a vehicle (a covered top buggy) in which she and her uncle were driving across defendant’s track on the outskirts of the village of Millington. The highway, called State road, on which they were driving, runs north and south.- Defendant’s track at this place runs from the southeast to the northwest, making the highway and railroad intersect at an acute angle. Plaintiff and her uncle approached the crossing from the south. The train which struck them also approached from the south. Both plaintiff and her uncle were familiar with the crossing and the surroundings. They lived just north of the village and had occasion to use it several times each week. They also knew, in a general way, the schedule time of the train which struck them. On the day of the accident, November 26, 1903, this train was late. It was due at 10:30 a. m., and the accident happened nearly an hour later. A brisk wind was blowing directly from the north, toward the direction from which the train came. Defendant’s track at the crossing in question is laid on an embankment about 12 feet- in height. To enable the highway to cross said track it also runs on an embankment. This embankment commences about 300 feet south of the crossing and from that point rises gradually until the crossing is reached. The traveled part of the highway on this embankment is 12 feet wide. As plaintiff and her uncle approached this crossing, they stopped and looked twice. The first stop was made at the foot of the embankment. The second stop Was made when they were 42 feet from the crossing and 91 feet from a point where they would be safely across and out of danger. (In other words, owing to the fact that the highway and railroad were nearly parallel, a traveler on the highway in crossing the track would go 49 feet-in the path of the approaching train.) At the time this second stop was made, the nearest rail of defendant’s track was only 10 or 12 feet distant from plaintiff and her uncle. This distance is measured, not in the direction that they were traveling, but on a line almost at right angles with that direction. This circumstance is thought to be important, because it indicates that the train would have passed very close to them, had they remained where they stopped. When this second stop was made, plaintiff’s uncle leaned forward and looked to ‘the south. Plaintiff looked in the same direction through the small window at the rear of the carriage. Both plaintiff and her uncle also listened. They neither saw nor heard anything to indicate that the train was approaching. Thereupon the horse was started-, and they drove rapidly forward. Plaintiff, in the meanwhile, listened and heard nothing. The hind wheel of the carriage was struck by the approaching train, but not until it was almost out of danger. In consequence of this collision the carriage was thrown over and plaintiff injured. Several witnesses testified that as the train approached the crossing defendant failed to give the signals required by the statute. It is clear that there was evidence of defendant’s negligence.

The serious question is whether there was evidence of plaintiff’s diligence. The learned trial judge thought there was not. He directed a verdict for the defendant upon the ground that the plaintiff and her uncle were guilty of contributory negligence because they did not make another and later observation before attempting to cross defendant’s track. In reaching this conclusion the circuit judge assumed that after they stopped the second time there was a distance of 70 feet in which this observation could have been made. This assumption, as already shown, was erroneous. That distance was only 42 feet, and as they traveled this distance plaintiff and her uncle were within less than 12 feet of the nearest rail and within less than 10 feet of the path of the approaching train, and this distance was constantly shortened as they moved forward. Moreover, they were on a narrow embankment several feet high. We cannot say, as a matter of law, that a person of ordinary prudence would, under these circumstances, have stopped to make another observation. Such a person might have properly decided that the safest course for him to pursue was to endeavor to get away from these dangerous surroundings as soon as possible. We cannot, therefore, agree with the reasoning of the learned circuit judge.

The charge of contributory negligence must then rest, and it does rest, on the claim that when this second stop was made plaintiff and her uncle did not look and listen carefully. If their testimony is believed, plaintiff and her uncle did look and listen carefully. Defendant’s counsel contend that their testimony must be discredited because it is opposed to the fact clearly established by other testimony that the approaching train was clearly in view when they made this second stop and observation. While there is abundant testimony tending to prove that the approaching train was at that time in clear view, we cannot say that this fact is conclusively proved. On the contrary, we think the jury might find from the testimony that it was then hidden from view by intervening buildings, excavations, and other obstructions, and that after that observation was made, running at a very rapid rate of speed, it came from some point beyond those obstructions and struck plaintiff and her uncle before they had gotten entirely across this unusually long crossing. If the testimony of plaintiff and her uncle is believed, they took every practicable precaution to prevent injury. This is not a case in which the court can say that the jury,, must discredit that testimony. The question of contributory negligence was therefore for their determination.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


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    GRAND RAPIDS & INDIANA RAILWAY CO v. AUDITOR GENERAL.

    Taxation — Tax Sale — Cancellation—Exempt Property — Mandamus.
    Mandamus, being a discretionary writ, issued only in furtherance of justice, will not issue to compel the auditor general to cancel a sale of the lands of a railroad company for the reason that they were not locally taxable, where it appears from the record that a part of the lands were not used for railroad purposes and were therefore not exempt under the statutes (§§ 3830, 6277, Comp. Laws), and the company has not paid, or offered to pay, any portion of the tax.
    Mandamus by the Grand Rapids & Indiana Railway Company to compel James B. Bradley, auditor general, to cancel the sale of certain land delinquent for taxes.
    Submitted December 5, 1905.
    (Calendar No. 21,231.)
    Resubmitted January 20, 1906.
    Writ denied May 24, 1906.

      O’Brien, Campbell & Wykes, for relator.

      McFarlan & Wilson, for respondent.

       Rehearing denied June 4, 1906.

   Hooker, J.

Under the laws of this State in force at the time of the assessment of the taxes complained of in this proceeding, railroads were taxed specifically upon their gross earnings, and relieved from other taxes, except as follows:

“The taxes so paid shall be in lieu of all other taxes upon the properties of such companies, except such real estate as is owned and can be conveyed by such corporations under the laws of this State, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road, but such real estate so excepted shall be liable to taxation in the same manner and for the same purposes, and to the same extent, and subject to the same conditions and limitations as to the collection and return of taxes thereon, as is other real estate in the several townships or municipalities within which the same may be situated.” Section 6277, 2 Comp. Laws.

' And again:

“ The real property of corporations exempt under the laws of this State, by reason of paying specific taxes in lieu of all other taxes for the support of the State: Provided, The track, right of way, depot grounds and buildings, machine shops, rolling stock, and all other property necessarily used in operating any railroad in this State belonging to any railroad company, shall henceforth remain exempt from taxation for any purpose, except that the same shall be subject to special assessments for local improvements in cities and villages, and all lands owned or claimed by any such railroad company not adjoining the track of such'company, shall be subject to all taxes.” 1 Comp. Laws, § 3830, subd. 8.

The relator purchased its railroad, together with the lots over which this controversy has arisen, and it claims that they have been at all times since its purchase used by it in connection with its business of railroading. The land was assessed upon the theory that it was not entitled to be included in relator’s property properly subject to a specific tax. It was assessed as lots 1, 4, and 5, block 5, etc., and, after the usual proceedings, it was sold, under decrees entered by the circuit court in the delinquent tax cases, instituted by the auditor general. Being bid'in for the State, the property was subsequently sold and deeded to the Flint Land Company, according to statute. That company caused the service of the statutory notice of its purchase, and, though the period of six months fixed by law has expired, the time within which the relator might repurchase under the statute has been extended to a time subsequent to the final determination of this cause. The occupancy of the land is somewhat similar to that shown in the case of Grand Rapids, etc., R. Co. v. City of Grand Rapids, 137 Mich. 587, and it is claimed, on behalf of respondent, that, under the proofs, all was properly taxed in accordance with the rule in that case, while relator insists that this record clearly shows (which it is said that the former case does not) that none of the land was in the exclusive possession of others, and that all is shown to have been occupied by the relator “in the exercise of its franchises ” and contributing to its earnings, which were taxed specifically. We are able to say from the record in the proceeding that a portion of the lands was not exempt from taxation, and no portion of the tax levied thereon has been paid. In Grand Rapids, etc., R. Co. v. City of Grand Rapids, supra, it was held that “where a portion of the tax is just, the owner is not entitled to relief in equity by a stay of collection of the tax unless he pays or offers to pay the part equitably due.”

We are of the opinion that the record before us shows that relator has not paid or offered to pay any portion of the tax, and, therefore, that he is not entitled to a cancellation of said tax, a part of which, at all events, was a just obligation. In the chancery cause hereinbefore mentioned, it was held that equity would not relieve the complainant under similar circumstances. Grand Rapids, etc., R. Co. v. City of Grand Rapids, supra.

Mandamus is a discretionary writ, and it will be issued only in furtherance of justice. Tennant v. Crocker, 85 Mich. 328; MacKinnon v. Auditor General, 130 Mich. 556; O’Brien v. Wayne Circuit Judge, 131 Mich. 67; Van Akin v. Dunn, 117 Mich. 421.

The writ is denied.

Carpenter, C. J., and McAlvay, Grant, Blair, .Montgomery, Ostrander, and Moore, JJ., concurred.