text:
    ANDREWS v. LAVERY.
    1. Appeal and Error — Contents oe Record — Narrative Form Required.
    A chancery record which consists of a copy of the stenographer’s minutes of testimony, including the colloquies of counsel and question and answer, is not in accordance with 3 Comp. Laws, § 10188, requiring that the record be settled as in actions at law.
    2. Inoompetenov — Evidence.
    A man of 58 years of age who, although affected by Bright’s disease, is able to comprehend the purpose of a transfer of insurance from his wife to his daughter, and whose intention appears rational, is properly held, to have been competent to execute the transfer.
    3. Undue Influence — Evidence—Inferences.
    Undue influence is largely a matter of inference from facts and circumstances, including the character, disposition and mental condition of the person influenced, and the opportunity to influence him.
    4. Same.
    A finding of undue influence is sufficiently supported by testimony that the grantor left his wife, who was insane and had only a small amount of property, without any of his estate for her support, and transferred it all to his daughter who was married and sufficiently provided for, that he was enfeebled by disease, was away from the wife and within the influence of his daughter, that no ill feeling towards his wife existed, and no other means of influencing him to make the transfer of insurance to the daughter were disclosed.
    5. Contracts — Specific Enforcement — Parol Antenuptial Agreement — Fiduciary Relation.
    A parol antenuptial agreement, valid because executed on the one side and because of execution tendered on the other, providing for a transfer of insurance to the wife in consideration of a devise of realty may not be annulled by one of the parties who was, at the time of the attempted annulment, the husband and guardian of the other, the alleged reason for the rescission being that the wife was incompetent to execute her part of the agreement.
    Appeal from Bay; Collins, J.
    Submitted October 12, 1909.
    (Docket No. 52.)
    Decided December 10, 1909.
    Bill by Martin M. Andrews, guardian of the estate of Agnes C. Cole, against Mabel Lavery and Arthur Lavery to set aside a change of beneficiary in a policy of insurance. From a decree for complainant, defendant Mabel Lavery appeals.
    Affirmed.

      Stoddard & McMillan, for complainant.

      T. F. Shepard, for appellant.

      Agnes C. Cole, the ward of complainant, is the widow of Fred B. Cole, deceased, and defendant Mabel Lavery is his only child by a former marriage. These two are the sole heirs at law of the deceased. Mr. Cole married his second wife in August, 1905. In 1906 she became affected with some mental disorder. For a short time she was in the local hospital at Bay City. She was then taken to a private asylum at Flint. On December 28, 1906, Mr. Cole filed a petition in the probate court, praying that his wife be declared insane, and admitted to the Eastern Michigan Asylum for the Insane at Pontiac, there to be supported at the expense of the county. Hearing was fixed for December 31st, and on that day, upon the certificate of two physicians, she was adjudged insane and a fit person for care and treatment in said asylum, and it was ordered that she should be admitted as a private patient. By said order Mr. Cole and the defendant Mabel were authorized to remove Mrs. Cole to said asylum; and on January 30, 190?, they removed her to that institution. Meanwhile she had remained in the private asylum at Flint.
    On December 29, 1906, Mr. Cole filed a petition in the probate court, alleging that his wife, Agnes C. Cole, had personal estate of the estimated value of $2,500; that, by reason of her insanity, she was incompetent to have the care and management of her estate, and praying that he be appointed as her general guardian. On January 8, 190?, he filed another petition, alleging that she had personal estate of the estimated value of $1,350, and prayed to be appointed special guardian; that she was then undergoing treatment at the Oak Grove Sanitarium at Flint; and that it was necessary to use a portion ®f her estate immediately for said treatment and other expenses. He was appointed special guardian with a bond of $2,000, which he furnished. On February 5, 190?, Mr. Cole was appointed general guardian of his wife, and qualified by filing the required bond in the sum of $2,000. On February 12th he filed with the probate court his account as special guardian, amounting to $361.57. This account included expenses for her treatment in the private hospital at Flint, for her removal to Pontiac, physician’s bills, and attorney’s fees.
    Mr. Cole died March 11, 1907. On April 29, 1907, defendant Mabel was appointed administratrix of her father’s estate. After Mr. Cole’s death, complainant Andrews was appointed guardian of Mrs. Cole. On May 10, 1907, he filed a petition for the removal of Mrs. Lavery as administratrix. On May 31, 1907, she was removed, and one Charles C. Cottrell was- appointed administrator in her stead. On September 3, 1907, defendant Arthur M. Lavery, the husband of Mabel, filed a claim against Mr. Cole’s estate for nursing and care of person and property of Fred B. Cole from November 2, 1906, to March 11, 1907, $387, and expenses from Tonawanda, N. Y., to Bay City, Mich., $8.50.
    Mr. Cole at the time of his second marriage had three policies of life insurance, two of which were in the Bankers’ Life Association of Iowa, each for $2,000, payable to his daughter as beneficiary. The controversy here arises over one of these policies. On the 22d day of September, 1905, he assigned one of the policies, No. 69,356, to his wife, now complainant’s ward. The insurance company consented to this change of beneficiaries. On the day after his return from taking his wife to the Pontiac Asylum, viz., February 1st, he revoked this assignment and designated the defendant Mabel as his beneficiary instead of his wife to the amount of $1,800, and the balance, $200, to Ella Cole, his niece. This designation was also consented to by the insurance company.
    The object of the bill of complaint in this cause is to set aside the transfer of this policy to his daughter, and to direct the payment thereof to the complainant for the benefit of his ward.
    The grounds for the relief asked are:
    (1) That said deceased was at the time incompetent to make such transfer.

      (2) That it was obtained by undue influence on the part of his daughter.
    (3) That it was in fraud of the rights of his wife.
    Upon the hearing it was established by the evidence on the part of defendants that Mrs. Cole made a parol ante-nuptial agreement by which she was to be made the beneficiary in this policy of insurance, and Mrs. Cole was to make a will devising what property she had to her husband. He executed the transfer of the policy, but she had not made the will. She had never refused to make it, but deferred it, saying that he would have ail her property at her death; that before she was taken to the hospital in Bay City she offered to carry out her agreement, but he refused on account of her mental condition. Three or four days before Mr. Cole died he executed papers transferring all his property to the defendant Mabel, including cash $500. Mr. Cole was affected with Bright’s disease and heart disease for some time before he died. He was at times very much depressed in mind, and became despondent over his financial troubles and health; and at times his conduct was not normal, and was such as might lead to the inference that at periods he was not competent to attend to business affairs.
    The bill also sought to set aside the other transfers of property, as above stated. That issue was evidently decided by the court below against complainant, as the transfers then made are not mentioned in the decree. The decree set aside the transfer of the policy of insurance as to the $1,800 provided therein to be paid to defendant. Mabel, and authorized the complainant to receive and collect the same. The defendants alone have appealed.
   Grant, J.

(after stating the facts). The record in this case was made by a copy of the stenographer’s minutes of the testimony taken in open court, including all the colloquies between counsel and the court, and attaching to it the certificate of the judge. Such testimony makes a record of more than 200 pages. The issues involved require an examination of all the testimony. A record thus made up for a chancery appeal to this court is very easy for counsel and the trial court, but it imposes a needless amount of labor upon the appellate court. The statute (3 Comp. Laws, § 10188) provides for settling a case—

“ Setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law before the judge who tried the same, at such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law.”

Following this statute, this record could easily have been condensed into one-third its present size with a saving of labor to the appellate court and expense to litigants. This practice in making up records is to be condemned. There is no occasion for making up a record of questions and answers except where, in the opinion of the trial court, it is essential for a proper understanding of the evidence, and to show the manner of eliciting the testimony.

As above stated, we assume that the trial court held that the complainant had failed to establish a case of incompetency iu Mr. Cole to execute the transfer of the policy. He took the policy of insurance to his attorney, Mr. Shepard, who is the solicitor for the defendants in this case and their witness also, and told him what he wanted to do. According to this witness, he desired to make the change because he did not want the money to “go into> the control of the Kelleys and her.” The witness testified that Mr. Cole further said that, “He didn’t want them (the Kelleys) to have any of it, neither did his wife.” He seemed to understand and fully comprehend what he was doing. Without extending the evidence, we are constrained to hold that Mr. Cole was not at that time incompetent to execute the paper.

The question of undue influence rests upon a different basis. We said in Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566):

“ Undue influence is not exercised openly. Like crime, it seeks secrecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.”

Tested by this rule, it is quite apparent that some influence must have induced Mr. Cole not to leave his wife, who was then confined in an insane asylum, a dollar of his property for her support. His only child was married, and, so far as this record shows, to one who was able, and whose duty it was, to support her and who was supporting her. Mr. Cole was under no legal obligation to her. He was under both a legal and moral obligation to provide for his wife. He, however, attempted, not only to deprive her of any interest in his property, but also to impose upon her small estate the cost of her support in the hospitals and asylums, an expense which the law imposed upon him. Such conduct is unnatural. Mr. Cole, then about 58 years of age, was enfeebled by long continued and severe disease. His legs were swollen by the malady from which he was suffering. He was away from the influence of his wife. His constant companions were his daughter and her husband. He died a little over a month after the change in the policy was made. The relations between him and his wife had always been pleasant. There is no evidence of any unkind words or ill feeling between them. Under these circumstances, clearly some improper influence must have operated on him. No other influence can be suggested than that of his daughter or her husband, or both, who had the opportunity to influence him to take the action he did. If such a case were submitted to a jury, and they should find a verdict of undue influence, the courts would not set it aside. Whether the circuit judge so found or not we do not know. We think the circumstances are sufficient to justify a finding of undue influence, and we so hold.

The antenuptial agreement, though resting in parol, was valid, having been executed by Mr. Cole, and his wife having tendered him the execution upon her part. Phillips v. Phillips, 83 Mich. 259 (47 N. W. 110). In that case the agreement rested in parol, the husband agreeing to convey to his wife by deed a piece of land, she agreeing to give him back a life lease. He executed the deed to her. She, contrary to the case now before us, refused to execute the contract. He then filed a bill to set aside the deed. The court affirmed the transaction, refused to set aside the deed, and compelled her to execute the life lease. See, also, Manke v. Manke, 75 Mich. 435 (42 N. W. 958); Houghton v. Houghton, 14 Ind. 505 (77 Am. Dec. 69). The excuse given by him that he declined to accept the will because of her supposed mental condition, and because he did not want the property to go to her relatives, is not valid. When he made the contract, he knew that, if executed, the policy passed irrevocably to her, and that, if she performed her part by executing the will, his death before hers would cause a lapse of the legacy. Rood on Wills, § 668. She had never refused to execute a will, had always expressed a willingness to do so, but had delayed doing it. When she offered to execute it, she had not been found to be insane by anyone, and had not even been sent to the hospital in Bay City for treatment. There is no evidence of her incompetency to make a will. On the contrary, there was probative evidence that she was competent. Mr. Lavery testified:

“Q. When did you first notice anything peculiar on her part that looked as though she were crazy ?
“A. That was a short few days possibly before the doctors examined her.”

Not only by virtue of her marriage, but by virtue of his guardianship, Mr. Cole occupied the position of a most sacred trust towards his wife. It did not lie in his mouth or power to annul a contract executed by him, and ready to be executed by her, by which he had agreed to transfer to her the policy in question.

The decree is affirmed, with costs.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    KIMMERLE v. DOWAGIAC GAS CO.
    1. Accounting — Debtor, and Creditor — Assumption of Liabilities — Corporations.
    Ifc is sufficient in a bill for an accounting, filed by the trustee in bankruptcy of a promoter, that the- averments show the promoter was a contract creditor of the defendant corporation, by virtue of an assumption by it of the contract debt of one of its stockholders owing to the promoter.
    2. Same — Insolvency—Sufficiency of Pleading.
    A bill of complaint sufficiently alleges insolvency which shows that the defendant corporation owes more than it can pay, that suits have been brought against it and judgments rendered which the company cannot pay.
    8. Same — Actions—Insolvency.
    Insolvency is not a necessary averment of a bill of complaint against a corporation which avers that the complainant’s assignor was the defendant’s promoter, that it assumed an obligation due to him from its principal stockholder and arising out of his efforts as promoter, and that an accounting is necessary to determine the amount due.
    4. Corporations — Stockholders and Creditors — Suits.
    In so far as it is necessary for such bill of complaint to aver an attempt to procure a settlement from the company, it is sufficient in showing that the corporation was substantially owned by one man, that he had authority to act for the company and refused to pay the indebtedness to the complainant, and that the latter was denied an examination of defendant’s books which had been removed from the State.
    5. Equity — Adequate Remedy at Law — Accounting.
    The bill of complaint is sufficient as against an objection that the remedy at law is adequate if it sets forth facts which render relief in an action at law difficult and inadequate because of the intricacy of contracts involved in the proceeding and the character of acts done in carrying out their provisions.
    6. Same — Multifarious Bill of Complaint — Pleading.
    It is proper to join as parties defendant in an action for accounting under such contracts, the original debtor, the new corporation which assumed the obligation and a bank which acted as trustee of the assets which were to be transferred to the new corporation, in carrying out the promotion scheme.
    Appeal from Cass; Des Voignes, J.
    Submitted October 12, 1909.
    (Docket No. 27.)
    Decided December 10, 1909.
    Bill by Charles H. Kimmerle, trustee in bankruptcy of Frank W. Lyle and others, against the Dowagiac Gas Company and others for an accounting. From an order overruling a demurrer to the bill, defendant gas company appeals.
    Affirmed.

      MeKnight & McAllister (Charles E. Sweet, of counsel), for complainant.

      Coy W. Hendryx (M. L. Howell, of counsel), for defendants.
    Complainant is the trustee in bankruptcy of Frank W. Lyle, Ira B. Gage, and Leon R. Lyle, copartners under the firm name of Lyle, Gage & Co., and the said parties as individual bankrupts. The defendants are Russell B. Harrison, the Dowagiac Gas Company, and the City National Bank of Kalamazoo. The object of the bill is to reach assets alleged to belong to the estate of said bankrupts, and money and property claimed to be in the possession of the Dowagiac Gas Company and the City National Bank; and for an accounting between the complainant, as assignee of said bankrupts, and defendants Harrison and the Dowagiac Gas Company; and for a lien upon the property of the Dowagiac Gas Company for the amount found to be due. The bank is made a party as the depository or holder of certain bonds, stocks, and notes, specified in the bill of complaint, under certain contracts entered into between Frank W. Lyle, acting for the Dowagiac Gas & Fuel Company, and Harrison, acting for the Dowagiac Gas Company. The bill of complaint and the four contracts, attached to and made a part of it, cover 61 pages of the record. A full statement of the allegations of the bill and the terms of the contracts is not now necessary to a determination of the questions raised.
    The bill avers: That the Dowagiac Gas & Fuel Company is a corporation with a capital stock of #90,000, and a mortgage bond issue of $75,000, and was carrying on and conducting a gas and fuel business in the city of Dowagiac; that said Frank W. Lyle was the owner of $85,000 of the capital stock of said company, and the owner of $29,000 of the bonds; that, aside from this amount, only $9,000 of the bonds had been actually sold, and the balance had been deposited as collateral security for loans made by the company; that said Lyle was practically the owner of all the stock and bonds of the company ; that he entered into a contract with the defendant Harrison by which he agreed to sell to said Harrison all the property and franchises of the said gas and fuel company ; that said Harrison agreed to organize a new corporation, under the name of the Dowagiac Gas Company, with a capital stock of $100,000, and an authorized bond issue of $150,000. Said Lyle agreed to procure from the stockholders of the gas and fuel company a transfer of its property, by proper resolution, free and clear of all debts and claims.
    It was agreed that the City National Bank should act as depository agent under the terms of said contract, ‘ ‘ and pending the completion, execution, and delivery of the bonds and stock of the Dowagiac Gas Company'(in payment of said property, etc., of the gas and fuel company), said depository shall have the right to issue interim bonds and stock certificates representing the bonds and stocks of the Dowagiac Gas Company, which company is to be immediately incorporated.” The contract is lengthy, and contains many provisions and conditions to be performed by each party; but we deem it unnecessary to further set them forth. They are intricate, and a careful examination is required to understand and determine the rights of the parties thereunder. Subsequently three other contracts were made and entered into between Lyle and Harrison, modifying the terms of the first contract.
    On January 27, 1908, 19 days before Lyle and his co-partners filed their petition in the United States court as voluntary bankrupts, the fourth contract was executed by Lyle and Harrison, extending the times of payment by Harrison. The bill alleges that at that time Frank W. Lyle was hopelessly insolvent, and one of the purposes of the bill is to declare that contract void. The bill also alleges : That Mr. Lyle performed his part of the contract and procured the transfer of the property and franchises of the gas and fuel company; that Harrison procured the organization of the defendant the Dowagiac Gas Company ; that the Dowagiac Gas Company took over to itself the contract between Harrison and Lyle; and that, in fact, Harrison was a promoter acting for the company to be organized, of which he is the chief stockholder, and over which he has control. The bill also alleges that an accounting is necessary in order to ascertain the amount due from the Dowagiac Gas Company to the complainant as the assignee in bankruptcy of Mr. Lyle. The bill further alleges: That complainant interviewed said Harrison with a view to an adjustment and settlement of the mat-' ters and differences between the parties. That he subsequently wrote a letter to said Harrison, who resided in the city of Indianapolis, Ind., requesting him to come to the city of Dowagiac with a view to settle the matters in dispute. He received in reply a letter repudiating his obligations, and stating that he had employed an attorney of Chicago to represent him, and another of Dowagiac to represent the Dowagiac Gas Company. That he thereafter applied to the Dowagiac Gas Company for leave to examine the books and records of said company, and was informed that all the books and records of both companies had been removed from the State of Michigan. The contract between the parties also provides for an accounting.
    The bill prays:

      (а) For an accounting.
    (б) That the Dowagiac Gas Company be decreed to have ratified and adopted all the acts of said Harrison in the premises.
    (c) That the performance of all of the terms and conditions of said contracts be decreed to have been the consideration for the transfer of the property to the Dowagiac Gas Company.

      (d) That the amount due and owing under the said contract be found and fixed on said accounting, and that the complainant be decreed to be entitled to the payment thereof.

      (e) That said Dowagiac Gas Company be decreed to deliver to complainant a note for the sum of $10,000 secured by the bonds of the Dowagiac Gas Company, as provided in said contracts.
    (/) That complainant be decreed to have a vendor’s lien upon the property of the said Dowagiac Gas Company.
    (gr) That the defendants be required to return all the records, papers, and books of the Dowagiac Gas Company and the Dowagiac Gas & Fuel Company which it has removed from the State of Michigan, and produce the same for the inspection and examination of complainant.

      (h) That a receiver be appointed.
    To this bill of complaint the defendant interposed a demurrer for the following reasons:
    (1) The bill does not show any contract relation between the complainant and the defendant the Dowagiac Gas Company, or between said Lyle and said company.
    (2) The bill does not show that defendant is indebted to complainant.
    (3) It does not show that complainant is a creditor or representative or assignee of any creditor of the defendant.
    (4) That the bill does not set forth any facts upon which to base a claim that the defendant Dowagiac Gas Company is insolvent.
    (5) That complainant made no effort through defendant’s proper officers to obtain relióf.
    (6) That complainant has an adequate remedy at law.
    (?) The bill shows no necessity for an accounting or discovery.
    (8) The bill states no grounds for equitable relief.
    (9) That the bill is multifarious.
    The court below overruled the demurrer.
   Grant, J.

(after stating the facts). The first three grounds of the demurrer may be considered together. They are, in substance, that complainant has shown no legal interest in the transactions between Frank W. Lyle and the Dowagiac Gas & Fuel Company, on the one side, and the defendants Harrison and the Dowagiac Gas Company, on the other. Complainant, as the assignee in bankruptcy of Mr. Lyle, succeeded to all his property and interests. If Mr. Lyle had any claim against the defendants, that claim passed, by the assignment, to complainant. If Mr. Lyle was a creditor, his assignee is also a creditor. All the contract relations between Mr. Lyle and the defendants passed by the assignment to the complainant. The same is true of the bankrupt copartnership which did a banking business. The bill avers that the defendant Dowagiac Gas Company assumed and agreed to pay to the bankrupt copartnership a note of $14,920, that the defendant Harrison was indebted to Mr. Frank W. Lyle in the sum of $48,000 on his contract with Lyle, and that said contract was assumed by the defendant Dowagiac Gas Company. If the allegations of the bill are true, then this contract was taken over by the defendant company, and it is liable thereunder. Esper v. Miller, 131 Mich. 334 (91 N. W. 613).

If it were necessary to allege the insolvency of the defendant company, we think the allegations are sufficient, even if it were necessary to allege the facts upon which such insolvency is based. The bill (paragraph 35a) expressly alleges the insolvency, a statement made by Harrison that it owes more than it can pay, and that suits have been brought against it in which judgments have been rendered, or are about to be rendered, which the company is unable to pay; but we fail to understand wherein the solvency or insolvency of the defendant company is material. The rights of the complainant do not in any wise depend upon the solvency or insolvency of the company. That question affects, not the remedy, but the amount complainant can realize if he succeeds in maintaining his suit upon the hearing.

The bill alleges an effort made to settle matters through Mr. Harrison, who it is alleged is substantially the owner of the corporate property. The bill avers his own admission that he had authority to act for the company, for, in his letter, he informed complainant that he had employed two attorneys, one to represent him, and the other to represent the company, that complainant then applied to the office of the company at Dowagiac, was denied an examination of defendant’s books and records, and was informed that they had been removed from the State. These attempts at a settlement were sufficient, even if it were necessary to allege and prove them.

The bill states a case peculiarly appropriate for the interposition of a court of equity. It is not enough that complainant might have brought a suit at law. It is sufficient to show that his remedy at law would not be adequate. Blodgett v. Foster, 114 Mich. 688 (72 N. W. 1000, 68 Am. St. Rep. 504), wherein it was held that a suit in equity for an accounting would lie though all the accounts were on one side, but there were circumstances of great complication or difficulty in the way of adequate relief at law.

It was said in Williams v. Neely, 134 Fed. 1 (67 C. C. A. 171, 69 L. R. A. 232):

“ The adequate remedy at law which will deprive a court of equity of jurisdiction is a remedy as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity” — citing authorities.

The reading of the long and intricate contracts in this case, and the averments as to what was done under them, would convince even a layman that a suit at law with a jury would be inadequate.

The seventh and eighth grounds of the demurrer are disposed of by what has already been said.

The bill is not multifarious. All the defendants are shown by the averments of the bill to be connected with the contracts set up in the bill of complaint. The bank is made trustee, and is alleged to have some of the assets in its possession. It requires no argument to show that the relation between Harrison and the defendant company is such as to make them not only appropriate, but necessary, parties to the bill.

The decree is affirmed, with costs, and the case remanded to the court below for further proceedings in accordance with the rules and practice of the court.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    CARNELL v. HALPIN.
    1. Master and Servant — Negligence — Scaffolding — Safe Plage.
    The failure of an employer to furnish sound lumber for a scaffold for an employé engaged in the work of putting up storm windows, and not familiar with the requirements of scaffolding, is evidence of negligence.
    2. Evidence’ — Laws of Foreign Countries — Presumptions — Judicial Notice.
    An action of tort arising in a foreign jurisdiction is not barred on the ground that no recovery could be had in such jurisdiction without evidence of the foreign law.
    Error to Wayne; Donovan, J.
    Submitted October 13, 1909.
    (Docket No. 78.)
    Decided December 10, 1909.
    Case by Frank B. Oarnell against Joseph J. Halpin for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Charles T. Wilkins, for appellant.

      Frank C. Cook, for appellee.
   Moore, J.

This case was begun to recover damages for personal injuries sustained by the plaintiff December 16, 1904, by a fall caused by the breaking of part of a scaffold on which he was working for the defendant in the construction of storm windows in a church at Sandwich, Ontario. The plaintiff and the defendant are both residents of Detroit, where the latter is engaged in the manufacture of stained and other glass windows, and in setting them. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The plaintiff is a lead glazier, and had been engaged in that trade for about a year previous to the time of entering defendant’s employ, in July, 1904. It is his claim: That before that time he had no experience in any work outside shopwork, and his work in the defendant’s employ was benchwork in the defendant’s factory, putting together glass that had been cut to pattern, in stained, pattern, and figured windows. That after that date, until the injuries occurred, he had been engaged on only two jobs outside defendant’s factory, both of which were on church windows ; on one of which his work was entirely inside the church and was done' from planks laid across painters’ horses, and the outside work on the other of which was done from ladders; plaintiff holding the base of the ladder while another man worked on it. It was his further claim that he had never had any experience on a scaffold, or in building a scaffold, or with lumber or in carpentering.

The defendant had a contract to put up some 22 large storm windows, and sent the plaintiff there with James Bracken, foreman in his business, who was in charge of the work. Later on Walters and one Bealer were sent over to help with the work. The work was going on for several days, when it was decided to put up a scaffold. It was the testimony of defendant that he and Mr. Bracken called at a lumber yard in Windsor, and the proprietor was told of the job at Sandwich, and “ that Bracken was going to look after it for me and to give him at the proper time whatever lumber he would require and charge it to me.” It is not admitted by plaintiff that any such conversation occurred, and complaint is made that the cross-examination of Mr. Halpin was cut short with an intimation from the trial judge that he was ready to instruct the jury about the material.

It is the claim of the plaintiff that, instead of new and suitable material being supplied, the planks which were used on the platform were taken from a pile of old planks that had previously been used for sidewalks, and that they were not suitable material for the construction of a platform. It was shown by the cross-examination of plaintiff that he assisted in bringing the planks from the pile to where they were used; but, as before stated, he claims to have had no experience as to lumber or its suitableness for a platform, and that he was simply carrying out the orders of the foreman. The trial judge, among other things, said to the jury:

“The employer in this case provided material as I deem it, and an experienced foreman, a man of bright intelligence, and they were all very intelligent, all understood the English language. A lumber firm was instructed to supply the material, all that was needed, and the employer thereby did his whole duty.”

As before stated, a verdict was directed in favor of defendant. In doing this we think the judge erred. The case was one to be submitted to the jury under proper instructions. See 2 Labatt on Master & Servant, p. 1654; Lafayette Bridge Co. v. Olsen, 108 Fed. 335 (47 C. C. A. 367, 54 L. R. A. 33); Richards v. Hayes, 17 App. Div. 422 (45 N. Y. Supp. 234); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Tangney v. Wilson & Co., 87 Mich. 453 (49 N. W. 666); McIntyre v. Detroit Safe Co., 129 Mich. 385 (89 N. W. 39); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426).

It is suggested that the directed verdict should stand, though it should be found that the reason given by the judge for directing the verdict was not a good one, as under the law of Canada the plaintiff cannot recover. An answer to this suggestion is found in the fact that no proof was made in the lower court as to the law of Canada applicable to the case. See Jones v. Palmer, 1 Doug. (Mich.) 379; Crane v. Hardy, 1 Mich. 56.

Judgment is reversed, and new trial ordered.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


text:
    BELLOWS FALLS MACHINE CO. v. MUNISING PAPER CO.
    Sales — Warranties—Machinery—Fitness for Purpose.
    Machines furnished under a contract which specified that the design, material, and labor should be the best of the several kinds for their respective uses, and that the workmanship and material should be strictly first class for the purpose and in the place where used, and that the final payment was to be made thirty days after successful operation, are required to operate successfully for defendant’s purpose known to the seller, before payment can be compelled in an action of assumpsit.
    Error to Alger; Steere, J.
    Submitted October 13, 1909.
    (Docket No. 65.)
    Decided December 10, 1909.
    .Assumpsit by the Bellows Falls Machine Company against the-Munising Paper Company, Limited, for goods sold and delivered. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Charles E. Ward, for appellant.

      William P. Belden and Fred H. Berg, for appellee.
   Moore, J.

The plaintiff makes, at Bellows Falls, Vt., paper mill machinery. In June, 1904, and prior thereto, the defendant was building a large paper mill at Munising, Mich. It desired a double drum slitting and winding machine. The plaintiff had a voluminous correspondence with defendant, which resulted in the making of a written contract in June, 1904. The machines were furnished and put in place. They were partially paid for. The defendant claimed they did not meet the contract requirements, and could not successfully be operated, and declined to make the final payment for them. The plaintiff brought this suit to recover for the final payment. The defendant pleaded the general issue, and gave notice of recoupment. The claims of the respective parties will appear more in detail later on. The jury returned a verdict in favor of defendant. The case is brought here by writ of error.

Those portions of the contract which are material here are as follows:

“The party of the first part hereby agrees to furnish all labor and material required for the complete delivery f. o. b. cars Bellows Falls, Vermont, of the machinery described in the accompanying specifications, which are hereby made a part of this agreement. * * *
“Article 2. The party of the second part hereby agrees to pay the said party of the first part for work and material as set forth in article 1, the sum of two thousand dollars. * * * Sixty-five per centum of the contract price on receipt of bill of lading. Balance, thirty days after successful operation of the machinery and acceptance by the architect, provided however, that the final payment shall be made not later than four months from the date of receipt of said bill of lading. * * *
“Article 4. This agreement shall supersede all previous agreements, if any, that may have been entered into between the parties hereto; such previous agreements, if any, being void, and of no effect. * * *
“General Conditions. These specifications are for furnishing f. o. b. cars Bellows Falls, Vermont, the machinery hereinafter specified and described. The design, material and labor embodied in this contract, unless specified to contrary, are to be the best of the several kinds for their respective uses and subject to the approval of Joseph H. Wallace, New York City, hereinafter referred to as ‘the architect,’and to his authorized representative. * * *
“ Guaranty. The contractor guarantees the workmanship and material to be strictly first class for the purpose and in the place where used. * * *
“Construction. The construction throughout is to be first class in workmanship and material, and the machine set up and tested in shop before shipment.”

The plaintiff introduced in evidence a large quantity of correspondence leading up to the giving of the contract, and also gave oral testimony. An example is found in the testimony of Mr. Babbitt, the secretary, treasurer, and manager of the company, as follows, on his direct examination :

“Q. What can you say, Mr. Babbitt, about the use and purpose that these machines were to serve being explained to you before you commenced making them for the defendant company ?
“A. That I understood nothing further with reference to the use to which they were to be put than as appears from the correspondence, and from having read the accounts in one or two of the trade papers of the Munising Company’s plant, and suppposing they would be put to the regular purpose of a double drum slitting and winding machine, as such machines are commonly and ordinarily used in the trade, or in the manufacture of paper.”

On the cross-examination as follows:

“Q. You made the claim that you were entitled to collect the balance whether the machines would operate or not, did you not ?
“A. I think I maintained the claim that, if the machines were in accordance with the contract, I was entitled to collect; the contract didn’t provide for operation.
“Q. Is it your claim with reference to this contract that you are entitled to recover in this case entirely independent of the question of whether or not the machines can be successfully operated ?
“A. No; not independent of whether they can be or not; if operated under proper conditions.
. “Q. Then you would say that you were not entitled to the balance unless the machines could be successfully operated ?
“A. I should say I would not unless they could be successfully operated under proper conditions.”

The assignments of error all relate to the charge of the court, or its failure to charge as requested by counsel.. We quote from the charge as follows:

“There are many things in the case which are undisputed, and which, of course, starting out in the consideration of the issues which are in controversy, you take as true and as the basis from which to explore and canvass the grounds of contention. It is undisputed that these two machines were ordered by the defendant from the plaintiff after considerable correspondence and negotiations, and that finally a written contract was entered into, a contract which superseded all previous contracts, understandings, agreements, and negotiations which had been had. That contract was entered into on the 15th day of June, 1904. Following that, it is undisputed that these two machines were constructed by the Bellows Falls Machine Company, and were placed on board the cars there, shipped to, and received by, the Munising Paper Company at this place, and were received apparently in good condition. It is undisputed that the defendant set up those machines and tried to operate them, and that they did not operate successfully. It is undisputed that complaint was made to the plaintiff, and the plaintiff sent agents on to work upon the machines and endeavor to make them a success, and it is conceded that they were not run successfully in the defendant’s mills. Following that, it is undisputed that the defendant, claiming the machines could not be made to work, boxed up the various parts, put them in condition for storage, and stored the two machines on its premises, notifying the plaintiff of that fact, and repudiating the contract, or, rather refusing to accept the machines they were furnished under the contract.
“ The real issue, to state it concisely in the beginning of this charge, is whether or not these machines were of workmanship and material which were strictly first class for the purpose and the place where they were to be used. The question is whether the design and the material and the labor were the best of the several kinds for their respective uses. And the question in that connection is, Could they, as such, be successfully operated for the purposes for which they were constructed ?
“ Taking up the various requests which we have before us, you are instructed that it is the claim of the plaintiff that they were to furnish certain machinery to defendant, and were to receive in consideration a certain price therefor. The machinery was to be furnished, and the price paid, according to the terms of a written contract and specifications, which have been offered in evidence in this case. The plaintiff claims that the design, material, and labor used in the making of the machines were the best of the several kinds for their respective uses, and that the plaintiff furnished, at all times during the construction of this machinery, sufficient space and proper facilities for inspection, not -only of the design, materials, and labor embodied in the contract, but also, when that was actually done, in submitting the machines to the architect or to his authorized representative. It is also claimed by the plaintiff that the workmanship and material used in making these machines were strictly first class for the purpose, and in the place where they were to be used, and you are instructed that, if you find by a preponderance of evidence that those claims on the part of the plaintiff were true, and that the machines made by the plaintiff for the defendant were made according to the contract and specifications, and, before they were placed on board the cars at Bellows Falls, were put in plaintiff’s shop and tested before shipment, and that after being tested they were placed on board the cars at Bellows Falls, and everything done by the plaintiff that it was required to do under the written terms of the contract and specifications, then the plaintiff has done all that it was required to do, and is entitled to a verdict for the balance that is due for the purchase price of the machinery. This involves, you observe, a requirement that they should have done everything that they were required to do under the written terms of the contract and specifications, and one of the things they were required to do was to construct a machine of the kind contracted for, which could be made to operate successfully.
“The duty of the plaintiff ended in regard to these machines when they were placed on board the cars at Bellows Falls, Vt. And if you are satisfied, from a preponderance of the evidence, that the plaintiff manufac-i tured the machinery in accordance with the plans and specifications in every particular, and the machinery so manufactured was placed on board the cars at Bellows Falls in that condition, your verdict would be for the plaintiff. That, you understand, also-involves the requirement that they should be manufactured so that they could be successfully operated if properly set up and properly operated. It was not the duty of the plaintiff to install this machinery in the defendant’s plant at Munising, and it is claimed by the plaintiff that, after they had received word from the defendant that the machinery was not working satisfactorily, a representative of the plaintiff had been sent to Munising, and that they found that the machinery had been so erected in defendant’s plant that some of the bearings bound, and the machines did not run properly. And the plaintiff further claims that they also found that the application of the power to those machines, by which they were to be operated, had been changed from a less angle to a greater angle than had been provided for in the plans and specifications, and also that the belt used in driving this machinery was a rubber belt, and not a leather one, and that parts of the machine had been broken and pounded out of shape in the work of setting up and installing the same. And it is claimed by the plaintiff that if the machine did not properly work on account of any of these reasons, it was not the fault of plaintiff, and would be no defense to recovery by the plaintiff in this action. You have the claim of the plaintiff in that respect, gentlemen, and now, in that connection, this is also given to you:
' “ ‘ The plaintiff claims that the failure of the machine to operate was due in part to the use of a rubber belt by the defendant. The contract does not specify what kind of a belt should be used in these machines. The defendant was entitled to use any suitable belt, if desired, and if you find that the belt used was suitable for that purpose, and was such as is customarily used for such work, it is immaterial that the plaintiff’s agent might personally have preferred some other kind of belt. That becomes a question of fact for you, to say whether or not the failure of the machines was due to the kind of belt used, in whole or in part.
‘“The plaintiff also claims that the failure of the machines to operate was due in part to the angle at which the belt used in driving the machine was placed. It appears that this belt was placed at a somewhat different angle than that as shown on data sheet No. 731, furnished by the architect. This question is material only in so far as you may find it affected the efficiency of the machinery. The defendant claims that this did not in any way affect the efficiency of the machinery, and if you find they are right in so claiming, then you have a right to disregard the criticism of the plaintiff in reference to the driving arrangement.’
“And so it becomes a question of fact for you to determine in this case whether or not the changing from the plans in that particular had any bearing upon the successful or unsuccessful operation of these machines. The machinery that was to be manufactured by the plaintiff for the defendant in this case was to be made and shipped according to the terms of a written contract and specification, and you are instructed, as a matter of law, that you cannot go outside of the terms and provisions of this written contract in determining the responsibilities of the parties, either plaintiff or.defendant, to this suit. It recited in article 4 of the contract that ‘ this agreement shall supersede all previous agreements, if any, that may have been entered into between the parties hereto; such previous agreements, if any, being void, and of no effect.’ The plaintiff, in doing the work, in furnishing the material, workmanship, and design for making these machines, and, after they were manufactured, testing them in their shops, and afterwards placing them on board the cars at Bellows Falls, was expected to comply with the written terms and provisions in the contract and specifications, and if they have furnished the material, workmanship, and design in these machines, and have made them and placed them on board the cars, as the contract specifies, and you are satisfied of this by a preponderance of the evidence, your verdict will be for the' plaintiff. It appears from the evidence in this case that, after the defendant had installed these machines in its manufacturing plant at Munising, the machines did not work satisfactorily to the defendant, and that the plaintiff was so advised, and sent to Munising several representatives to learn the cause of the trouble. It is the theory of the plaintiff that the defendant, when it attempted to assemble the different parts of the machine and erect and install the same in its plant at Munising, did not use the care and skill that was necessary in order to properly do the work, that the best kind of belt was not used, and that the application of the power by which these machines were to be worked was not as had been provided for in the plans and specifications, and that it was on account of these reasons, and not on account of any improper construction of the machinery, that they did not operate satisfactorily. It is also the theory of the plaintiff that, after the defendant had received these machines, and had installed them and started them in operation, they became convinced that it would be impracticable to take care of the large amount of paper in the manner they had planned for when they ordered the machines, and that, after having become so convinced of the impracticability of cutting and rewinding the paper of their manufacturing establishments as they had hoped they could do when they ordered these machines, they abandoned the machines, and sent word to the plaintiff that they could not make them work satisfactorily. Of course, gentlemen, you will bear in mind that all responsibility for these machines and their custody and control passed from the plaintiff at the time they were delivered on board the "cars at Bellows Falls, Vt.; that is, responsibility for their custody and control and putting them in operation, not responsibility as to anything that had occurred before. The responsibility still rested on the plaintiff to have furnished machines that could be operated successfully. * * *
“Defendant’s Request 1.
“ ‘The contract between the parties in this case provides that the design, labor, and material embodied in this contract are to be the best of the several kinds for their respective uses, and the plaintiff, by the terms of the contract, guaranteed the workmanship and material to be strictly first class for the purpose and in the place where used, but the contract itself does not specify what those uses were, nor in what places the machines were to be used. It is the claim of the defendant that at and before the time this contract was entered into, its officers and agents fully explained to the officers and agents of the plaintiff that it was constructing a large paper mill at Munising, which would contain two paper-making machines, each having a capacity of 25 tons for each day of 24 hours, and that these double drum rewinding and slitting machines were to be placed at the finishing end of said paper machines, respectively, and should be capable of slitting and rewinding the product of said machines into marketable rolls, varying in width from seven inches up to the full width of the drum. If you find this claim to be sustained by the evidence, then you are instructed that it became the duty of the plaintiff, under this contract, to build and furnish double drum winding and slitting machines of such design, construction, and material as should be suitable and fit for the purpose and the place for which it was understood the defendant was to use them. And if you further find that the plaintiff failed to build and furnish machines of such character, your verdict should be for the defendant.’
“ Defendant’s Request 2.
“ ‘ The specifications attached to the contract between the parties in this case are general in their character. They do not, except in a few instances, give the dimensions of any parts of the machines, and these specifications do not constitute a pattern by which a machine could be made. It was left to the plaintiff to prepare proper plans and working drawings from which machines of a suitable character for the uses to be made of them under this contract should be made. This is not a case where it can be said that the defendant ordered machines to be made according to a certain pattern prescribed by it.’
“As to this payment for which suit is brought, and which is a final payment, the contract provides that it should be payable within 30 days after successful operation of the machinery and acceptance by the architect, provided that final payment should not be later than four months from the receipt of the bill of lading.' This clause meant, giving some effect to each part of it, that the defendant was to make its tests within four months, and then, if the machines were successfully operated, and were accepted by the architect, to make the final payment. It is claimed by the defendant that these machines have not been, and cannot be, successfully operated; that they are not in accordance with the terms of the contract, and are practically worthless. The defendant bases its claim upon the alleged worthlessness of the machine rather than upon the lack of a certificate of the architect. And if you find that these machines have not been, and cannot be, successfully operated, though fairly tested by the defendant, then I instruct you that the plaintiff cannot recover. * * *
“So, gentlemen, you have these issues before you. Under the condition of the proofs and the pleadings in the case each of these parties is, in certain stages of the case, plaintiff and defendant. The plaintiff, as we generally use the term, the Bellows Falls Machine Company, has brought the suit, and seeks to recover the balance due for this machinery. The contract is in evidence, and the burden of proof is upon the Bellows Falls Machine Company to show that it has complied with the contract in the various particulars which I have explained. The balance due upon this contract, if it was fulfilled, according to the undisputed evidence, computing interest from the time agreed upon, is the sum of $1,033.17. It is conceded that if the plaintiff is entitled to recover at all, it is entitled to recover that amount. The plaintiff in the matter of recoupment becomes a defendant, and defendant becomes a plaintiff. There is an affirmative claim, set up by way of recoupment, by the Munising Paper Company, in which it seeks to recover back money already advanced in this connection, the payments amounting to $1,621.12, or 65 per cent, of the contract price, and for freight and labor and materials furnished to the Bellows Falls Machine Company while it was endeavoring to make the machine operate successfully at this place. The total amount of that, with interest figured, is $2,127.98. In order to recover that amount the burden of proof is upon the defendant to show that that amount of money was expended in connection with this contract, and to establish its claim by a preponderance of evidence. You are the judges of the credibility of the witnesses, and it is for you to say what the facts in this case are in regard to these various matters in issue, and, as I said in the outset, the essential and important issue before you, boiled down, is Whether or not these machines, when they were delivered on board the cars at Bellows Falls, Vt., were of workmanship and material strictly first class for the purpose and the place where they were to be used, whether or not the design, material, and labor were the best of the several kinds for the respective uses, and whether or not these machines could have been successfully operated in the place and for the purpose for which they were purchased.”

The difficulties in the case grow out of the construction which shall be put upon the contract. We quote from the brief sufficient to show the contention of counsel:

•“ The contract contains an express guaranty and certain recitals as to what the machines will do, but does not guarantee or represent that it will do what defendant expected of it. It does expressly provide that all previous agreements are superseded and are void. * * * The contention of the defendant was that these words, ‘ for the purpose and in the place where used’ related to the purpose of the machine when assembled and set up in the mill of the defendant and to the place of the machine as a whole, wherever it was to be actually used by the defendant. Clearly this is not the meaning of the terms. The clause refers to ‘ workmanship’ and ‘ material ’ both in the same sentence, and the words ‘ purpose ’ and ‘ place ’ relate as much to one as to the other. There was to be no workmanship ’ used after the machines were constructed. The workmanship and material for the construction of these machines were to be furnished at Bellows Falls, Vt., while the machines were being constructed. The provision that the material should be first class in the place where used related to the question of its location in the machine itself. No doubt, it seems to me, can arise under this language as to its meaning and application. It is plain and unambiguous. Neither of these terms have any reference whatever to the machine as a whole, when assembled in defendant’s factory, nor to the purpose to be subserved by the machine when- there, and surely not to the ‘place’ where it is to be used, in the sense of specifying the volume of work it was to be capable of doing. This will be still more plain if we consider what language would have been employed had it been the intention to guarantee the machine as a whole in the place where the machine was to be used, and to guarantee the specific volume and quality of the work to be done by it. It would have been as easy to express this intent as it was to express the intent that the workmanship and material were to be first class for the purpose and in the place where used in the construction of the machine.”

Counsel then insist that the charge, from which we have already quoted, improperly presented this feature of the case to the jury.

In this connection it may not be inopportune to quote from a letter of plaintiff’s:

“Bellows Falls, Vermont, Aug. 24, 1904.
“ Messrs. Munising Paper Co.,
“Mr. H. H. Everard, Supt.,
“Munising, Mich.
Gentlemen: Referring to yours of the 18th inst., with reference to the two slitting and winding machines as per order of your company, on account of our desire to furnish your company with machines which should be a credit to us, and because we did not wish to use our regular patterns for these winders because of the lightness of the weight of the castings, which would be produced from them, we went to the expense of making new patterns for these winders, which are much heavier in construction. The delay incident to the making of such patterns has been longer than we had estimated, as a result of which we hardly think we shall be able to make shipment of the first winder inside of four or five weeks. We would also prefer, because of these particular winders being made from new patterns, if your company would be willing that we should do so, to make one winder complete and ship same to you for testing, after which, if it was found to be adequate in all respects, we could proceed promptly with the second one. We would esteem it a special favor if you would consent to this arrangement, as we should like to know that the first winder is adequate in all respects before proceeding with the second one. Will you please advise if you will consent to this arrangement, and oblige,
“Yours very truly,
“Bellows Falls Machine Co.”

Counsel also contend as follows:

“ It was the contention of the plaintiff that the contract did not require it to set up the machines in defendant’s mill, and that successful operation there was not contracted for as a condition precedent to the payment of the balance due on the machines. The defendant claimed the machines must be made to operate successfully according to the alleged understanding of the parties outside the written contract, and that until it did the plaintiff was not entitled to recover, but the defendant was entitled to recover back the money already paid, with interest and expenses. The court adopted the view of the defendant, and so instructed the jury. In this I think he was in error. Article 1 of the contract recited that the first party ‘ agrees to furnish all labor and material required for the complete delivery f. o. b. cars Bellows Falls, Vt., of the machinery described in the accompanying specifications, which are made a part of this agreement.’ In article 2 the second party agrees to pay first party, ‘ for work and material as set forth in article 1.’ The specifications prepared by the architect employed by the defendant prescribed the kind of material and labor to be employed; required plaintiff to provide sufficient, safe, and proper facilities at all times for the inspection of the work by the architect; prescribed the kind and size of machine, and specifically directed the construction of the various parts of the machine, including the frame, drums, slitter board, slitter shaft, spreader board, shaft, gears, driving arrangement, painting, and construction. * * * The plaintiff, therefore, built the machines according to the direction of the defendant, and could not be held responsible for their successful operation, unless the clause in regard to payments made it so. The contract provides that payments are to be made on the written certificate of the archit¿ct as follows:
“ ‘ Sixty-five per eenturn of the contract, price on receipt of the bill of lading, balance thirty days after successful operation of the machinery and acceptance by the architect, provided, however, that the final payment shall be made not later than four months from the date of receipt of said bill of lading.’
“It was under this clause that the court adopted the view that defendant was entitled to recover its money back unless the machines had been successfully operated. I think this clause means that, if plaintiff, having performed its contract, shipped the machines, the defendant was to make the last payment in any event not later than four months from the date of the receipt of the bill of lading. This gives some effect to each part of the clause, as well as does the construction adopted by the court. The construction given this clause by the court practically made it obligatory upon the plaintiff to properly set up the machines under a contract which required it only to put them on board cars at Bellows Falls.”

In making these various claims we think counsel overlooks some very important essentials. In the first place these machines were purchased to be used, and to be used in a certain place, and to accomplish certain results. The contract was made with these essentials all in view. The contract required, not only that the labor and material should be furnished, but that it should be furnished in such a way as to insure the complete delivery f.'o. b. cars at Bellows Falls of completed machinery of the following character:

“ The design, material and labor embodied in this contract, unless specified to the contrary, are to be the best of the several kinds for their respective uses and subject to the approval of Joseph H. Wallace, New York City, hereinafter referred to as 'the architect,’ and to his authorized representative. * * *
“The contractor guarantees the workmanship and material to be strictly first class for the purpose and in the place where used.”

Not only was the material and labor deemed important, but the design was deemed equally essential, and they were each to be of the best of the several kinds for their respective uses. No one contemplated the placing of machinery which would not accomplish results when used. This was made very clear by an essential requirement of the contract before payment could be enforced, as is indicated by the following language in relation to payments: " Balance thirty days after successful operation of the machinery,” etc. To hold that payment must be made for the machines even though they could not be successfully operated would be to defeat the very purpose of the contract.

The case was carefully tried, and we find no reversible error therein.

Judgment is affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


text:
    GREEN v. MICHIGAN UNITED RAILWAYS CO.
    1. Corporations— Consolidation— Amalgamation— Statutory Authority.
    A consolidation of domestic street and electric railways is not authorized by Act No. 143, Pub. Acts 1901, which applies to the consolidation of companies in adjoining States with corporations in Michigan.

      2. Same — Liability to Creditors of Constituent Companies— Estoppel.
    A consolidated corporation is estopped to set up the invalidity of its consolidation as against the claim of a creditor of one of the constitutent corporations.
    3. Same — Consolidation or Merger — Pleading—Declaration.
    A general allegation that the defendant consolidated with the corporation which was indebted to the plaintiff is süfficient to permit a recovery against the consolidated company.

      Certiorari to Jackson; Parkinson, J.
    Submitted October 13, 1909.
    (Docket No. 64.)
    Decided December 10, 1909.
    Assumpsit by Thomas Green against the Michigan United Railways Company for the amount of a judgment. An order overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      Thomas, Cummins & Nichols, for plaintiff.

      Sanford W. Ladd, for defendant.
    Plaintiff recovered a large judgment in one of the Federal courts of New York State against the Jackson & Suburban Traction Company. On May 8, 1908, he commenced a suit by summons in the circuit court for the county of Jackson against the Jackson Consolidated Traction Company, claiming that the Jackson & Suburban Traction Company had been consolidated with the Jackson Consolidated Traction Company. Plaintiff filed a petition in that case for an order to compel defendant in that suit to produce certain books and papers to enable him to declare. The circuit court granted the order. The defendant in that suit then applied to this court for a writ of mandamus to compel the vacation of the order. Jackson Consolidated Traction Co. v. Jackson Circuit Judge, 155 Mich. 523 (119 N. W. 915). We there held that if there is “ a general averment that the present relator is a consolidation of the various companies named, then the necessity for a discovery does not exist; but, if it is necessary to aver in detail the facts showing the incorporation, then a discovery is essential. We think that the general allegation is sufficient.” While that suit was pending it is claimed that there was another consolidation between the Jackson Consolidated Traction Company and the defendant in this suit, and that by means of such consolidation the defendant was obligated to pay the debts of the former company.
    The declaration contains four counts. To all of these counts the defendant interposed a demurrer, which the court overruled. This order of the court is now before us for review by certiorari.
   Grant, J.

(after stating the facts). The first and second counts, among other things, aver “that after-wards, to wit, on the 25th day of July, 1908, the said Jackson Consolidated Traction Company became and was merged, consolidated, and amalgamated with and into the defendant herein, the Michigan United Railways Company.” If this count states a cause of action, it is not necessary to consider the validity of the 'other two counts.

The act, under which counsel for defendant assumes that this consolidation was effected, does not apply to the consolidation of street and electric railways organized under the laws of Michigan and lying wholly within its territorial limits. Act No. 143, Pub. Acts 1901. That act, both by its title and its body, refers to the consolidation of companies in this State with companies organized in adjoining States. In Shadford v. Railway, 130 Mich. 300 (89 N. W. 960), the defendant interposed the defence that no such consolidation was authorized by the laws of this State. To this contention this court replied that the defendant was not in a position to raise the question. The same rule applies here.

The two counts alleged generally a consolidation between the Jackson Consolidated Traction Company and the defendant. It is a general allegation, sufficient under the holding in Jackson Consolidated Traction Co. v. Jackson Circuit Judge, supra. If the plaintiff, upon the trial, can show a consolidation under which the law imposes upon the defendant the obligation to pay the debts of the former companies, the plaintiff will be entitled to recovery.

The order overruling the demurrer is affirmed, and the case remanded for further proceedings.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


text:
    AINSWORTH v. MUNOSKONG HUNTING & FISHING CLUB.
    1. Boundaries — Great Lakes — Real Property — Riparian Rights.
    Riparian owners along the Great Lakes own to the meander line, outside of which the title is in the State in trust for its citizens.
    2. Same — Rivers and Lakes — Names.
    The name by which a body of water is designated does not determine its character or its relation to the Great Lakes.
    3. Constitutional Law — Treaties—Courts oe States.
    Treaties between the United States and Canada, fixing the boundary lines between the countries, are the supreme law of the land, binding upon State courts.
    4. Same — Treaties—Aots of Congress.
    Acts of congress affecting the terms of treaties are not subject to the jurisdiction of the courts but relate to the political department of government.
    5. Same — Statutes—Effect of Congressional Acts.
    An act of congress (29 U. S. Stat. 54), for the regulation of anchorage in St. Mary’s river, will not be held to effect a change by implication in the relation of Munoskong Bay to Lake Huron by making it a part of St. Mary’s river, notwithstanding the terms of the statute affect the bay and include it within the regulations.
    6. Boundaries — Great Lakes — Bays—Rivers.
    A bay about six miles in length and breadth, known as Munoskong Bay, connected with Mud Lake, from the head of which to Lake Huron is a distance of 24 miles, navigable and practically level with Lake Huron, and having a similar current, is a part of it and not of St. Mary’s river; the riparian owners having title to the meander line of the bay.
    Appeal from Chippewa; Steere, J.
    Submitted October 13, 1909.
    (Docket No. 76.)
    Decided December 10, 1909.
    Bill by Corydon E. Ainsworth and Frank Trempe against the Munoskong Hunting & Fishing Club to enjoin the interference with hunting wild fowl on navigable waters. From a decree for complainants, defendant appeals.
    Affirmed.

      E. S. B. Sutton, for complainants.

      Sharpe & Handy (John H Goff, of counsel), for defendant.
    A complete statement of the averments in the bill of complaint is found in 153 Mich. 185 (116 N. W. 992, 17 L. R. A. [N. S.] .1236, 126 Am. St. Rep. 474), when the case was before us upon demurrer, and the court below sustained the demurrer and dismissed the appeal. That decision was reversed, and the case remanded for answer by the defendant. The answer was duly filed, issue joined, proofs taken and decree rendered for complainants enjoining the defendant from interfering with the right of complainants to fish and hunt upon the water described in the bill of complaint. The answer denies that the sub-aqueous land of Munoskong Bay is held by the State of Michigan, and avers that the waters of said bay are a part of the St. Mary’s river, and the rights of defendant as riparian owner extend to the middle thread of that stream. The answer admits that the agents and servants of defendant interfered with the áttempt of complainants to hunt as averred in the bill, but denies that such acts were done maliciously. The answer asserts ownership in defendant, and avers it has exclusive right to hunt and fish at the place named. The answer further avers that the defendant, has at great expense erected a clubhouse, purchased the land surrounding said bay, and has sown the bay with rice and other vegetables and grain suitable for the'feeding of wild fowls; that it has prepared such waters as a game preserve, and owns the exclusive control over such waters and should be protected therein.
    Munoskong Bay is connected with Mud Lake at its upper end. The dimensions of Munoskong Bay are not stated in the record. Applying the scale of miles found upon the map, we find it to be about 6 miles east and west and about 5f miles north and south. The defendant owns all the lands around this bay except a fraction of an acre. Two rivers enter into Munoskong Bay at its west side. It is navigable, and has been navigated, for many years, by boats and tugs drawing from 4 to 10 feet of water. The water for a long distance from the shore is shallow, the home of fish and the resort of wild game.
   Grant, J.

(after stating the facts). It is the established law of this State that riparian owners along the Great Lakes own only to the meander line, and that title outside this meander line, subject to the rights of navigation, is held in trust by the State for the use of its citizens. Among these is the common right to fish and hunt. La Plaisance Bay Harbor Co. v. City of Monroe, Walk. Ch. (Mich.) 155; People v. Silberwood, 110 Mich. 106 (67 N. W. 1087, 32 L. R. A. 694); People v. Warner, 116 Mich. 228 (74 N. W. 705); State v. Shooting Club, 127 Mich. 580 (87 N. W. 117); Lincoln v. Davis, 53 Mich. 375 (19 N. W. 103, 51 Am. Rep. 116). In these cases, and others cited therein, the subject has been fully discussed, and further discussion here would be unprofitable.

The sole question now before us is whether Munoskong Bay is included in the waters of Lake Huron or whether it borders on the river. If the former, the defendant has no exclusive rights of hunting and fishing, and the decree of the court is right. If the latter, then the defendant own the subaqueous land to the middle thread of the river, and the decree is wrong. Cases involving the title of lands from the Rapids of Sault Ste. Marie to the foot of Neebish Rapids are not controlling; and, in fact, throw no light upon the character of the waters below the Neebish Rapids, and do not control the question now before us. Travelers, explorers, surveyors, and some decisions, where this precise question was not involved, sometimes refer to the waters as the Straits, ” sometimes as the ‘ ‘ River Sault Ste. Marie,” and sometimes as the “Passage.” The question cannot be determined by the names which these various parties have seen fit to apply to this body of water, but it must be determined by the character of the water itself, from the treaties with England and from the adjudicated cases upon the subject.

We said in People v. Neal, 143 Mich. 275 (106 N. W. 859):

“ ‘ The name cannot alter the thing. It cannot be received as a proper definition of the character of the water.’” State v. Gilmanton, 14 N. H. 477.

In United States v. Rodgers, 150 U. S. 249, at page 261 (14 Sup. Ct., at page 114), the court said:

The nomenclature, however, does not change the real character of either, nor should it affect our construction of terms properly applicable to the waters of either.”

From the head of the Rapids of Sault Ste. Marie to the foot of the Neebish Rapids there is a fall of 20.75 feet, and there is a decided and, in some places, a very swift current, and consequently the riparian owners own the subaqueous lands to the middle thread of the river. Below the Neebish Rapids a different condition exists. At the foot of the Rapids the waters fall to the level of Lake Huron. Mud Lake is from 5 to 6 miles in width. Munoskong Bay is an arm of Mud Lake, and, as above shown, is navigable for boats drawing 10 feet of water. A glance at the map will show the extent of these waters below the Neebish Rapids and the many islands situated therein, including the west end of Georgian Bay and the entrance or passage at Detour to the main body of Lake Huron. The distance from the head of Mud Lake to Lake Huron is 24 miles. An engineer testified that during this distance the fall of water is very slight; “a fair estimate would probably be two-tenths of a foot.” Assuming this estimate to be correct, the fall would be one-tenth of an inch per mile, an almost imperceptible variation. The maps and surveys place all these waters upon a level with Lake Huron. Of course there is more or less of a current from the foot of Neebish Rapids to Detour. There is also more or less of a current through all the waters of the Great Lakes, from Lake Superior to the ocean. There is also a current through the' straits of Mackinac, between Lake Huron and Lake Michigan, in which islands are located. Mr. Mondor, a witness for defendant, who had traversed these waters as a sailor for some 32 years, testified:

“The St. Mary’s river in my opinion does not run to Detour, but stops at the Neebish.”

And one Lanstra, master of a lighthouse tender and a witness for the defendant, testified:

“Mud Lake is on a level with Lake Huron, and they are on the levels mentioned in this chart as levels of Lake Huron.”

This witness called these waters a river because they were so denominated on the chart. He said that if the islands were not there he would not call it a river. There are undoubtedly many currents through these islands, all tending towards the main body of Lake Huron just as the waters of Lake Huron tend to the south to the lakes below. The early explorer entering the Detour Passage, after sailing a few miles and finding a great expanse of water extending in both directions as far as the eye could reach, now known as Potagannissing Bay, had no occasion to suppose that he was in a river-or in any other water than a part of the Great Lake. So the navigator of today would have no more occasion to think he had left a lake and entered a river than he would have in passing some of the channels between the numerous islands along the shore. It is established beyond all controversy that the waters above Detour rise and fall as the great body of water south of it rises and falls.

It is not important here to state the provisions of the early treaties between the United States and Great Britain, Treaties of Paris 1782 and 1783, and the Treaty of Ghent in 1814. We think there is no question but that the two governments by these treaties considered the waters from Detour to the foot of Neebish Rapids as a part of Lake Huron, and made these treaties upon that understanding. These treaties, unless abrogated or changed by treaty or act of congress, became the supreme law of the land, and are binding upon the courts. Acts of congress, however, affecting the terms of such treaties are not subject to the jurisdiction of the courts; they belong to the political department of the government. Whitney v. Robertson, 124 U. S. 190-194 (8 Sup. Ct. 456); Fong Yue Ting v. United States, 149 U. S. 698-720 (13 Sup. Ct. 1016); Thomas v. Gay, 169 U. S. 264 (18 Sup. Ct. 340).

It is alleged by counsel for defendant that congress has established that the entire stretch of water from Point Iroquois to Point Detour constitutes a river, citing Act March 5, 1896, chap. 49, 29 U. S. Stat. 54 (U. S. Comp. Stat. 1901, p. 3551). That act is entitled, “An act relating to the anchorage and movements of vessels in St. Mary’s river. For the purpose of regulating navigation by suitable rules and regulations it provides for “governing the movements and anchorage of vessels and rafts in St. Mary’s river, from Point Iroquois, on Lake Superior, to Point Detour, on Lake Huron.” It is not claimed that this act is at all in conflict with the treaty rights between the United States and Great Britain. It is claimed that this act takes all the waters on the American side of the boundary line out of the provisions of the treaty by which it was found to be a part of Lake Huron, and changed the character of this water from a lake into a river. The term “St. Mary’s river” in this act was used undoubtedly by congress for convenience in designating the waters between the two points mentioned for the purposes of navigation. There is nothing in the title or body of the act to indicate any intention to change the northern boundary line of Lake Huron. There is nothing in it to indicate that it was directed against the treaties between the two governments, or that there was any intent to change the character of the water from a lake into a river. The law will not permit such an important change to be accomplished by implication.

Under the contention of the defendant the entire body of water from Point Detour to the Neebish Rapids is a river, and every owner of land along its tortuous shore owns to the middle thread of the stream and the islands lying between. This question, however, is determined against the defendant by Sherwood v. Commissioner of State Land Office, 113 Mich. 227 (71 N. W. 532). The relator in that case claimed to own Sweet’s Island, located 600 feet from shore and about 7 miles above Point Detour, by virtue of his riparian ownership. It was distinctly held that the island lay within “the body of water known as Lake Huron,” and was therefore within the rule of People v. Silberwood, supra.

The case of People v. Silberwood involved submerged lands lying in Lake Erie and Detroit river. People v. Warner, supra, involved islands on the shores of Saginaw Bay.

The presiding judge who heard this case in the court below has lived at Sault Ste. Marie for more than 30 years, and is familiar with the character of the water from the Falls of Sault Ste. Marie to Detour. The case is of such importance that we deem it well to print in the margin his opinion, omitting therefrom his statement of facts, the claims of the parties, and citations of authorities.

The decree is affirmed with costs.

Blair, C. J., and Moore, MoAlvay, and Brooke, JJ., concurred.
      The following is the opinion referred to on page 71:
      Is Munoskong Bay a part of the St. Mary’s river, or of Lake Huron ? Since the time of their discovery the varying characteristics of the connecting waters between Lake Superior and Lake Huron have led to more or less uncertainty and confusion in naming and classifying them. In the earliest accounts of them the Jesuit fathers, in their “Relations,” describe those waters sometimes as a strait, and at other times as a river, and, following them, explorers, travelers, and experienced writers, as well as surveyors, geographers, and hydrographers have disagreed as to what those waters are and how they should be named and designated. Some insist that the entire stretch of water from Iroquois to Detour is a strait only; others, that it is a river the whole distance; others, that it is part strait and part river. Some consistently call it at all times a river, others a strait, and some speak of it interchangeably as a strait and a river. The testimony given in this case is also along somewhat conflicting lines. An examination of the charts and undisputed natural features of this waterway shows the reason of such confusion. Between Detour on Lake Huron and Point Iroquois on Lake Superior, we find, at different places, an endless diversity of shores, shapes, sizes, and courses of water, with varying depth, width, and flow. Kohl in his “Wandering Round Lake Superior” (page 302) thus well describes it:
      “ The outpour of water at the eastern end of the lake (Superior), called the St. Mary’s river, is a combination of several variously formed waters. The river divides into several broad arms, which separate,' unite, and then divide again. Repeatedly these arms collect in large pools, when they become calm, and then shoot in narrow passages from one lake to another, thus forming rapids.”
      Along this, waterway, according to the point of observation, are found bays, straits, lakes, rivers, and rapids, well defined, and free from any doubt when considered individually. Conflicting property interests have brought the matter before our courts, from time to time, and it is now well settled that a part of these connecting waters constitute a river, giving to the shore owner all the riparian rights that name implies in Michigan. (Citing cases). It has also been held by our Supreme Court in Sherwood v. Commissioner of State Land Office, 113 Mich. 227 (71 N. W. 532), that the river does not extend to Detour Passage, and that Sweet’s Island, lying above the passages, is in a part of Lake Huron. But the question of how near the two Great Lakes. Superior and Huron, approach each other, and where the St. Mary’s river begins and ends, is yet undecided.
      It seems to have become a custom, though not universal, not only among sailors and others who have occasion to refer to them, but also government officials, on their charts and in their official reports, to designate the various parts of these connecting waters by their specific names when referring to any particular place, as Detour Passage, Mud Lake, Hay Lake, Lake George, the East, West, and Middle Neebish, the Falls of St. Mary, Waiska Bay, etc., and to refer to all the sheltered and connecting waters between Detour and Point Iroquois, collectively, as the “ St. Mary’s river.” This general use of the name “St. Mary’s river,” for the stretch of navigation referred to, does not serve to clear or settle the question before us. The essential thing to determine is what the specific water under consideration really is, not what it may be loosely or collectively called. Manifestly, the river, as such, in legal effect, does not reach either Detour or Point Iroquois. The widening waters at either end between these points are on the level of the Great Lakes they connect with, and rise and fall with them, have irregular shores and a broad expanse of several miles, contain in places many islands, and are subject to storms and waves which render their navigation in small boats dangerous, and, at times impossible, and they present the general characteristic of the numerous inlets and bays connected with the Great Lakes. The only suggested or possible 'difference between them and others is the increased movement of water over and through them in its passage from Lake Superior to Lake Huron. Lake Michigan also empties into Lake Huron through the Straits of Mackinac. The fact, standing alone, cannot be taken as a test for a river. The fact that there is some current in a body of water is not, in itself, in every instance, sufficient to make it a river or a stream, nor will the swelling out of a stream into broad sheets of water always make it a lake or bay. Through all lakes which have an outlet, and all bays into which streams enter, there is some current of water towards the sea. .If below an. expanse in a stream it resumes its definite characteristics as a river, and continues on as such, the expanse is part of the river.
      The report of Engineer Haskell on discharge measurements made in St. Mary’s river in 1896, found in “ Reports U. S. Lake Survey,” 1897-1900, page 4092, is strongly urged in support of defendant’s contention. In harmony with the usage of his department, Prof. Haskell calls all the connecting waters between Detour and Iroquois the “ St. Mary’s river,” and gives its length as 62 miles. The entire fall or difference between the levels of Superior and Huron, he gives as 20.75 feet. He estimates the fall above the rapids at Sault Ste. Marie, as .41 of a foot. From the head of Mud Lake to Lake Huron (his given length of the river would put it at Detour) he gives as 24 miles, and “ the fall but slight; a fair estimate would probably be .2 of a foot.” He regards the current in such stretches as “almost inappreciable.” While it is true that he calls Mud Lake, which includes the waters under consideration, a part of St., Mary’s river, his description of those waters does not seem to bear out the name, and in the use of the name he extends the river beyond a point where our Supreme Court has expressly declared to the contrary.
      Other scientific men tell us the river loses its characteristics as such, and ends at the foot of the Neebish Rapids. Dr. Houghton, the eminent geologist, apparently coasting up and describing the east side, says:
      “ Commencing with the mainland at the first or lower point of contraction in the Montreal channel of the St. Mary river. * * * At that point in the Montreal channel before alluded to, the first perceptible current was noticed, and this may, therefore, in reality, be considered as the termination of this arm of Lake Huron, as well as the commencement of the St. Mary river.” Michigan S. D. 1840, Vol. 2, pp. 72, 73.
      Henry R. Schoolcraft, the eminent explorer, geologist, and Indian historian, who lived many years on the St. Mary’s river, and in his writings often mentions it both as a strait and a river, says:
      “ The lake or strait maybe supposed to cease, and the river to commence, at the foot of the first rapids, called Miscoutin or Neebish, as there is no perceptible current below it, where the strait assumes a great width, and is filled with innumerable islands.” Narrative Journal of Travels, A. D. 1820, p. 128.
      Col. McKinney in his “Tour of the Lakes,” published in 1826, being a narrative of the second Gass expedition to the upper lakes, after describing the lower reaches between Detour Passage and St. Joseph’s Island, says (page 172): “At two o’clock entered the mouth of St. Mary’s; distant from Sault 21 miles ” — which by the old channel through Lake George, then the only route navigable by large boats would be the East Neebish.
      Mrs. Jameson, an extensive traveler and well-known writer, telling of a trip by canoe from Mackinaw to Sault Ste. Marie, in her book entitled “Winter Studies and Summer Rambles,” published in 1839, after describing the entrance at Detour Passage and the journey up past the lower end of St. Joseph’s Island, says:
      “ We could not land and light a fire till we reached the entrance of St. Mary’s river between Neebish Island and the mainland.”
      In the case of Sherwood v. Commissioner of State Land Office, before mentioned, our Supreme Court, speaking of Sweet’s Island, which is located near the mainland between Detour Passage and St. Joseph’s Island, briefly but clearly disposes of the claim that it lies in St. Mary’s river, as follows:
      “We are of the opinion that this island is within the body of water known as Lake Huron.”
      Prom the brevity of this opinion it has been argued that the case may not have been as fully and carefully considered as some others. Just how thoroughly it was briefed, or how much time was spent in preparing the decision, we are not advised, but there is no uncertainty in the language used, and it is now the law. The reasons which must have governed the decision in that case apply with equal force to Mud Lake and Munoskong Bay, which is a part of it. It is but a continuation of those large waters at the north end of Lake Huron known as Georgian Bay and the North Channel. It is true that they are confined and sheltered on the east by St. Joseph’s Island, a large island surrounded by deep water, capable of navigation with large vessels, and that the St. Mary’s river flows into Mud Lake from the north. But it is in the basin of, and has the same water level as, Lake Huron, and rises and falls with it. If St. Mary’s river were diverted elsewhere and eliminated from our consideration, and Lake Huron maintained its present level, Mud Lake, as a bay some 12 or 14 miles long, with a varied width of from 2 to 6 miles, would maintain its present level, size, condition, and general appearance, absolutely without change. The only exception is that there would be less current spread over, through, and running out of it. But current alone cannot make waters a river. Furthermore, the extent and regularity of the current relied upon is a matter in dispute. It is the testimony in this case, and a well-known fact, of which the court could almost take judicial notice, that ice forms earliest, thickest, and lasts the longest on Mud Lake and down past Point Au Frene, towards Lime Island. Navigation is often delayed latest there, at the opening of navigation, of any point on the Lakes. The great fleets starting for Lake Superior in the spring frequently are detained there by solid ice when the St. Mary’s river above and the Great Lakes outside are clear. If it were a river, with a strong and constant current running through it, those conditions could not exist. The rise and fall of the water in Mud Lake and Munoskong Bay depend on the rise and fall of Lake Huron. This, with the relative position, size, and general features of that body of water, fixes its characteristics as that as an arm or bay of Lake Huron, subject to the rules of law governing the Great Lakes.