text:
    BERTHA v. REGAL MOTOR CAR CO.
    Principal and Agent — Fraud—Remase.
    Accepting as true plaintiff’s evidence and giving it the greatest probative value, it appeared that- his eye was injured in the employ of defendant because of a defective condition of its drill, that the medical adviser and legal counsel of its accident insurance company issuing a policy of indemnity insurance against accidents, by false representations as to the condition of plaintiff’s eye, procured a release and settlement of his claim for $110 and medical expenses, that, finding his eye was blind and the other eye affected, plaintiff tendered bach the amount received and sued for negligent injuries. Held, that by adopting the release, pleading it as a defense and having acted on it in other particulars, defendant ratified the fraudulent acts of the insurer’s physician and lawyer so as to present an issue of fact whether the release was void for fraud.
    Error to Wayne; Hally, J.
    Submitted June 4, 1913.
    (Docket No. 27.)
    Decided March 28, 1914.
    Rehearing denied June 4, 1914.
    Case by Louis Bertha against the Regal Motor Car Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Dohany & Dohany, for appellant.

      Donnelly, Lyster, Brennan & Munro, for appellee.
   McAlvay, C. J.

Plaintiff and appellant brought suit against defendant in an action to recover damages for injuries received by him while in its employment, whereby he lost the sight of one of his eyes, claimed to have been caused by the negligence of defendant. The case was brought on for trial before the court and a jury, and, at the close of plaintiff’s case, on motion of defendant, a verdict was directed by the court in its behalf against the plaintiff. From a judgment duly entered upon this instructed verdict in favor of defendant, plaintiff has removed the case to this court upon writ of error.

In stating the facts in this case, this court will follow the well-established rule in cases of a judgment entered upon an instructed verdict against the appellant by giving the proof presented upon his part its greatest probative value.

The case presented by appellant shows that he was an “experienced, all around machinist,” employed at the time as an automobile assembler by defendant; that the injury referred to occurred September 22, 1911, and was caused by a defective drill in an electric hand motor which he was then operating, which drill had been furnished plaintiff by the keeper of defendant’s stockroom, upon the usual requisition in the due course of business; that immediately after this injury the stockkeeper took plaintiff in defendant’s automobile from its factory to the office of Dr. Goux, a surgeon and eye specialist, who was employed by the London Guaranty & Accident Insurance Company, by which company defendant was insured against industrial accidents; that, after the examination, Dr. Goux ordered plaintiff removed to Harper Hospital, where he treated him until October 9th following, when he was discharged. During the time plaintiff was confined in the Harper Hospital under treatment by Dr. Goux, he was visited several times by Thomas Cotter, an attorney and claim agent employed by the London Guaranty & Accident Insurance Company, who talked with plaintiff relative to a settlement, and requested him to call at his office in the Ford Building as soon as he got out of the hospital.

The night before plaintiff left the hospital Dr. Goux called upon him and stated to him he would recover his eyesight in six or seven weeks, and could again go to work. The next morning, after plaintiff left the hospital, he went to Dr. Goux’s office, where the doctor told him the same thing relative to recovering his sight, saying that he would see as well as ever in six or seven weeks. The same day he went to Attorney Cotter’s office, as requested, and, while there, Mr. Cotter telephoned to Dr. Goux in the presence of and at the request of plaintiff, and, when he was through, told plaintiff the doctor said he would get his eyesight back in six weeks. Following that, within half an hour, negotiations for a settlement were closed for the sum of $110 cash, hospital and doctor’s bills not to exceed $100, and plaintiff, at Mr. Cotter’s request, signed a full release and discharge to the defendant Regal Motor Car Company, from all claims for damages against it by reason of injuries sustained from the accident in question, which writing is in words and figures, as follows:

“For and in consideration of the sum of one hundred and ten ($110.00) dollars to me in hand paid in cash and the payment of my hospital and doctor bills not to exceed the sum of one hundred ($100.00) dollars, making a total of two hundred and ten ($210.00) dollars by the Regal Motor Car Company, receipt whereof is hereby confessed and acknowledged, I, the undersigned do hereby release, discharge, forever quit-claim and set over unto the said Regal Motor Car Company any and all claim, claims, action, actions or causes of action which I now have or may hereafter have against the said Regal Motor Car Company by reason of an accident which occurred to me on or about the 22nd day of September, A. D. 1911, at the plant of the said Regal Motor Car Company in the city of Detroit, in which accident I sustained injuries, personal or otherwise.
“In further consideration of said sum or sums, I, the undersigned do hereby release and discharge the said Regal Motor Car Company from any and all claims for damages which I now have or may hereafter have against the said company by reason of any act or thing heretofore done. This release to benefit all persons, firms, or corporations chargeable with negligence or liability in the premises.
“In witness whereof I have hereunto set my hand and seal, this 9th day of October, A. D. 1911.
[Signed] “Louis Bertha.
“Witnesses:
“Harry Hanford.
“Thomas M. Cotter.”

Plaintiff learned very soon afterwards that the sight of his right eye was totally destroyed, and that there was strong probability of a sympathetic injury to the left eye. He immediately caused the sum of $110, with interest, to be tendered back to defendant company. Through its president this tender was refused, and suit was at once instituted.

To the declaration in the case defendant promptly pleaded the general issue, with the following special notice of defense:

“To said Plaintiff: •
“Please take notice that on the trial of the above-entitled cause the said defendant will offer evidence to prove and insist upon in its defense that, if the said plaintiff ever had any claim or cause of action against the said defendant, as in plaintiff’s declaration alleged, that the same has been fully satisfied and discharged, and full receipt, release, discharge, and quittance given therefor by the said plaintiff to the said defendant.”

During the presentation of proofs on the part of plaintiff, and before directing a verdict for defendant, the court, upon separate motions made by defendant, had excluded and stricken out all the testimony of the plaintiff relative to statements and representations made to him by Dr. Goux and Thomas Cotter, also all the testimony of the witness Cotter relative to the part he had taken in the matter in soliciting and securing a settlement and the release which is in evidence; all for the reason that there was no evidence in the case connecting the acts and doings of Dr. Goux and Mr. Cotter with the defendant company.

At the close of plaintiff’s case, defendant moved for an instructed verdict, the matter having been argued before the court in the absence of the jury before the formal motion was made. The court granted the motion, giving his reasons therefor in the following language:

“But we are not concerned with whether there was fraud or whether there were misstatements in this particular case, because the parties who made these statements, in so far as the testimony goes, have not been shown tb be connected with the defendant, the Regal Motor Car Company. There has been testimony introduced here in your absence which shows an agency, but that the agency was of such an extent as would warrant a connection between the defendant and the plaintiff in so far as these representations were made in connection with the alleged settlement, there isn’t anything at all in the testimony which would justify us in concluding that was so. Consequently this man accepted the payment of the money, and he cannot now sue a second time for that which he received at another time in full for his compensation, and your verdict will be a verdict for the defendant of no cause of action.”

Exceptions were taken to and errors assigned by appellant upon the foregoing holdings of the court, and upon the final direction of a verdict in favor of defendant and against plaintiff. As all of the assignments of error are based upon these rulings of the court which were had upon the sole ground of the insufficient showing on the part of plaintiff of such a relation between Dr. Goux and Mr. Cotter and the defendant in the case to constitute an agency or any authority to act on their part to bind defendant, they will be considered collectively.

Appellant relies upon the application of the doctrine of ratification and estoppel. Considering the evidence on the part of plaintiff as true, there can no doubt or question arise but that plaintiff has shown beyond a peradventure a serious injury caused while in the employment of defendant; that he was taken from defendant’s factory to Dr. Goux’s office by one of defendant’s employees in defendant’s automobile, and from there, by order of Dr. Goux, was taken to and cared for at Harper Hospital as the doctor’s patient from the 22d of September to the 9th of October, 1911; that, while he was in the hospital, Attorney Cotter called several times to see him, talked about settling for his injury, and invited him to come to his office; that Dr. Goux assured plaintiff he would recover his eyesight as good as ever within six or seven weeks, and so told Cotter, who repeated the telephone message to plaintiff; that plaintiff, relying upon such assurance, was induced by Cotter to accept $110 in full satisfaction for his injury, and signed a full release to the Regal Motor Car Company, this defendant.

It is an accepted fact that both Dr. Goux and Mr. Cotter were the representatives of the insurance company which had issued industrial accident policies in favor of defendant which were then in force; and it is also an accepted fact that the release which was secured from plaintiff by Cotter was in terms for the benefit of defendant company alone, which, by such release, if valid, was freed from any and all liability on account of the injury which plaintiff had suffered. Without reference to any active fraud on the part of the two representatives of the insurance company, it is apparent that the amount which plaintiff was induced to accept was insignificant compared with the extent of the injury he had suffered, and plaintiff’s testimony shows that it amounted to fraud in law.

Appellant contends that defendant has ratified and adopted the acts of these representatives of the insurance company. The pleadings and evidence in the case disclose the following facts relative to defendant’s attitude toward and relation to the release: Soon after accepting the money and signing the release to defendant company, plaintiff discovered that he was totally blind in his right eye, and at once repudiated the settlement by making a full tender of the amount he had received to the president of defendant company. Defendant refused to accept this tender. To the declaration immediately filed (October 10, 1911) as commencement of suit, defendant, on October 21, 1911, filed with its plea a notice of full reliance upon the release and discharge given to it by the plaintiff in defense of any claim or cause of action plaintiff ever had against it. The release is in the record, a written instrument given to defendant in its corporate name, uncontradicted and unexplained, produced upon the trial by defendant’s attorneys and used by them upon their cross-examination of plaintiff, concerning which the record shows that they presented the release to plaintiff, had him identify his signature, and testify that it was signed and given by him to the defendant company upon payment to him of the sum of $110, and the defendant company agreed to pay his hospital and doctor’s bills, and proceeded at great length with such cross-examination to unequivocally fix the fact that the defendant had settled with him in full, and been released from all claim of every kind arising from the injury he had received for which the suit was brought; and they stated, in answer to a charge by plaintiff’s attorney, that defendant had paid Dr. Goux for his services, that it was immaterial, that it was paid by defendant as part of the release, and they admitted it.

It is a proposition of law too fundamental and too well established to require á citation of authorities that, if a party adopts even unauthorized acts of another, and has received and accepted benefits accruing therefrom, he thereby adopts and ratifies the instrumentalities by which the results were obtained, and is estopped from denying that the agent was authorized to act. So in this case, by accepting this release, which upon its face is prima facie a release in its favor and for its sole benefit, by pleading the release as a defense to the suit, by refusing to accept the tender back of money which has been paid to secure the release, by its course of cross-examination to show that it had obtained the release and claiming the benefits of it, by admitting in open court that it had paid Dr. Goux for his services in caring for plaintiff, defendant must be held to have adopted and ratified the acts of the two representatives of the insurance company. Upon this record, the court was in error in striking out the testimony referred to, and in directing a verdict in favor of defendant.

As already stated, and as appears by the excerpt from the charge of the court directing a verdict in the case, the sole question considered and passed upon by the trial judge was the question of the relation of Dr. Goux and Mr. Cotter in this transaction to the defendant company, and this is the only question now before this court for determination. This is not an indirect attack upon this release in a.collateral proceeding, nor are we called upon at this time to determine the question of the duty of inspection of the tool, the breaking of which caused this injury, or the negligence of either of the parties to the litigation.

For the reasons herein stated, the judgment of the circuit court is reversed and set aside, and a new trial is ordered.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    SIEVERS v. BARTON.
    Assault — Civil Action — Provocation—Charge.
    Although plaintiff provoked an assault in which he was injured by defendant, the court properly instructed the jury, in an action for the injuries caused by defendant, that the punishment inflicted was unwarrantably severe, submitting to them the question of damages only, upon testimony that the defendant entered plaintiff’s yard in a threatening manner, and, when plaintiff struck him, knocked plaintiff down and severely bruised and cut him.
    Error to Wayne; Van Zile, J.
    Submitted June 19, 1913.
    (Docket No. 20.)
    Decided March 28, 1914.
    Case by Gustave Sievers against Irving W. Barton for trespass vi et armis. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William D. Ellsworth, for appellant.

      William Look, for appellee.
   McAlvay, C. J.

This case was brought in justice’s court in Wayne county by plaintiff in an action of trespass, claiming damages for assault and battery committed on him by defendant. It was appealed to the circuit court, and a trial before a. jury resulted in a verdict in favor of plaintiff for the sum of $85. The case is brought to this court for review upon writ of error by defendant.

The parties to this suit lived in the city of Detroit upon adjoining premises, and apparently not with very friendly relations toward each other. In May, 1911,. plaintiff, who was at work digging with a spade in his garden, with his wife near him, remarked to her that “somebody got a licking.” He said this within the hearing of defendant’s wife, who was sitting in her back yard. The cause of this remark was that an adopted daughter of defendant was being punished by him in the house, of which plaintiff knew nothing except the resulting noise. Defendant’s wife suggested to plaintiff that he mind his own business. Plaintiff then, after such remark, placed his thumb to his nose, describing an arc of a circle with his fingers. Defendant, having heard voices, appeared at his door while plaintiff was thus exercising his hand, and demanded why he insulted his wife, and, as plaintiff claims, at once jumped over the dividing fence into plaintiff’s yard, coming at him in a threatening manner; in self-defense, expecting an attack, plaintiff struck him with the handle of his spade, whereupon defendant struck plaintiff several severe blows, knocked him down, and gave him a severe beating.

Defendant’s version of the circumstances is that he came out of his house, got upon this fence, and asked plaintiff what he meant by that motion to his wife, when plaintiff struck him with the spade; that he grabbed it and was pulled over the fence by the plaintiff into his yard, and struck plaintiff in defending himself.

It does not seem to be disputed but that plaintiff was considerably injured. The doctor who was called testified he was bruised about the face and had a cut on the left temple down to the bone, which required stitches to close it. This he did with the assistance of another doctor, who administered the chloroform. Plaintiff was a bookbinder, receiving $19 a week, and lost seven working days. He paid for the services of the two doctors, according to their testimony, $40.

The errors assigned and relied upon by appellant relate to refusals to charge as requested and to certain portions of the charge of the court. The substance of the requests of defendant which should have been given were included in the main charge of the court and relate to the fundamental principles of law applying to such a case. As to the portions of the charge objected to, we find from an examination of the record that the court, under the undisputed evidence in this case, was justified in charging the jury as he did, indicating that the punishment which defendant inflicted upon the plaintiff was unwarranted, and leaving only the question of damages to the jury.

The judgment of the circuit court is affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    JEWELL v. KELLEY.
    Fraudulent Conveyances — Accounting—Husband and Wife.
    Evidence that defendant had transferred to his wife his real property and personalty in defraud of his creditors, that she had paid out to satisfy his creditors several amounts, proved by vouchers and undisputed testimony, and that she was entitled to exemptions to be credited to her on an accounting, held, to show a balance due of $211.19 for which she should be held liable to a judgment creditor.
    Appeal from Allegan; Padgham, J.
    Submitted October 13, 1913.
    (Docket No. 30.)
    Decided March 28, 1914.
    Bill by Fred Jewell against Josie Kelley and Michael Kelley in aid of execution and for relief against certain voluntary conveyances. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Charles R. Wilkes, for complainant.

      Charles Them, for defendant.
   McAlvay, C. J.

Complainant filed a judgment creditor’s bill, and also in aid of execution against defendants, upon which a decree was granted in his favor. From that decree an appeal was taken to this court, where the decree was modified. The opinion handed down at that time, written by Mr. Justice Hooker, appears in 155 Mich. 301 (118 N. W. 987), where an extended statement of facts is made, to which reference is had for a complete understanding of the case. We need only to state in this opinion that defendant Michael Kelley, before the filing of complainant’s bill of complaint, had transferred his real estate to his wife, defendant Josie Kelley, and also certain of his personal property at the same time, which transfers were both attacked as voluntary, and made with intent to hinder, defraud, and delay creditors. The decree of the circuit court sustained the contention of complainant, and set aside the transfer of the real estate and also of the personal property as fraudulent. This court decreed that the transfer of the real estate to defendant Josie Kelley by her husband was valid, reversing the decree in that regard, and sustained the decree of the circuit court as to the personal property. The case was remanded for further proofs, as follows:

“And it appearing from the record that the said defendant Josie Kelley has disposed of a large part of the personal property in said bill of sale described, and that but a small part, if any, of the personal property aforesaid is now in the possession of the said Josie Kelley, it is further ordered, adjudged, and decreed that said cause be referred back to the circuit court for the county of Allegan, in chancery, to take proofs of the amount and value of the personal property disposed of by the said Josie Kelley belonging to the said Michael Kelley for the purpose of determining the amount justly due complainant from the said Josie Kelley for the value of the personal property so converted, used, or disposed of by her.”

Since the remand ordered by this court the cause has been reheard in the circuit court upon further proofs taken upon the question specified in the remanding order and decree of this court, and by stipulation the proofs taken in the former hearing were considered. A decree has been granted and entered in favor of complainant, which contains the following finding and determination:

“Said Josie Kelley has disposed of, used, and converted of the personal property of the said Michael Kelley in the said bill of sale referred to property of more than the value of $397; that being the amount due from the said Michael Kelley to the said Fred Jewell on the judgment in the bill of complaint described. And it is further ordered, adjudged, and decreed that the complainant is entitled to recover of and from the said Josie Kelley for fraudulently converting (the) personal property aforesaid, the amount due upon said judgment, namely: The sum of $397.”

Defendant Josie Kelley has appealed to this court from this decree.

Appellant contends that the court, in arriving at the amount to be charged against her in this accounting for this property, which came into her hands under this bill of sale, has not given her the amount of credits she is entitled to from the evidence in the case, and claims that on a legal and equitable accounting there wiil remain nothing of this property, or its proceeds, in her hands upon which a personal decree against her can be based.

The court, when the case was here before, as stated, determined that the bill of sale of Michael Kelley to Josie Kelley was fraudulent and void as to complainant, and subjected the property described therein to complainant’s claim. In the decree remanding the case but one issue was left undetermined, and that was to find the amount and value of this personal property converted, used, or disposed of by said Josie Kelley belonging to Michael Kelley. As was stated in the decree of this court:

“For the purpose of determining the amount justly due complainant from the said Josie Kelley for the value of the property so converted, used, or disposed of by her.”

The learned circuit judge filed an opinion in the case in which he determined the total amount due complainant upon his judgment against defendant Michael Kelley, together with interest and costs, was the sum of $397. He also found that defendant Josie Kelley was entitled to her statutory exemptions, and also for the value of the horse and pigs described in the bill of sale which died prior to the bringing of this suit, and should also be allowed for payment made by her of the chattel mortgage upon the property at the time of the bill of sale, and for other items which, from the evidence, he found she was entitled to credit; being for payments of debts of defendant Michael Kelley out of the personal property received by her under the bill of sale. After deducting all these items, he determined the amount of the value of the balance of such personal property which she had received on said bill of sale, and had converted, used, or disposed of unlawfully and fraudulently, as against this judgment creditor, to be considerably larger than $397, the amount found due complainant on his judgment, not stating the exact amount, and ordered a decree to be entered against her in complainant’s favor for such sum of $397, with costs.

All of the evidence in the old and new records, which was considered by the trial judge in arriving at his determination, has been carefully examined and considered. While we agree with the trial court as to the nature of the credits which should be allowed to defendant Josie Kelley, our conclusion from the evidence is that all payments made by her upon the debts of Michael Kelley for which she would receive credit have not been included. It will not be necessary to go into the details of this evidence. We accept the amount with which she should be charged as listed and stated in complainant’s original brief, based upon complainant’s testimony, to be correct, namely, the sum of $667.50. This amount includes the value of the bay horse she now claims, but which was included in the bill of sale, and which we find was the property of Michael Kelley.

We agree with the trial court in giving her credit for her statutory exemptions, the value of the horse and pigs which died before suit, the amount of the chattel mortgage which she paid, and only disagree in the amount of the other items for which she is entitled to credit, paid out of this personal property by her to settle debts of Michael Kelley, which she has established conclusively by her uncontradicted testimony and the written vouchers showing payments. The total amount of her entire credits we find to be $526.71, which, deducted from $667.50, the amount which complainant claims should be the basis of the accounting, leaves $140.79 to be charged against her. Adding interest at 5 per cent, for 10 years, $70.40, makes the total amount to be charged against her the sum of $211.19, for which she is liable to complainant, and for which he is entitled to a decree against her.

The decree of the circuit court will be so modified, and a decree for that amount will accordingly be entered in this court. Defendant Josie Kelley will recover costs of this court, to be taxed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    OUTHWAITE v. GUNN.
    1. Ejectment — Boundaries—Adverse Possession.
    Where plaintiff brought ejectment to recover a strip of land two or more inches in width next to her lot which defendant had occupied with a foundation wall and its footings, it was not a defense to the action that the defendant did not claim to occupy the land adversely and before plaintiff brought action promised to remove the footings of the concrete wall. The court erred in assuming as a part of its instructions that the occupancy was not unlawful if not adverse to plaintiff.

    2. Same — Abandonment.
    And a recovery in ejectment is warranted although defendant abandoned his occupancy, if he held possession at the time suit was commenced.
    3. Same.
    And under conflicting evidence it was error for the trial court to hold that the footings of defendant’s wall did not extend upon plaintiff’s land and to determine as matter of law which of the surveys was correct.
    Error to Muskegon; Sullivan, J.
    Submitted November 12, 1913.
    (Docket No. 91.)
    Decided March 28, 1914.
    Ejectment by Blanche C. Outhwaite against Charles L. Gunn. Judgment for defendant. Plaintiff brings error.
    Reversed.

      William Carpenter, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellee.

       As to ejectment for encroachments under surface or overhead, see note in 11 L. R. A. (N. S.) 917.

   McAlvay, C. J.

This is a suit in ejectment brought by plaintiff against defendant to recover a strip of land six inches wide on the south side of her premises in the city of Muskegon upon which plaintiff claims defendant has encroached and now occupies with the basement or foundation wall of his building, and its footings. The case was tried before a jury and resulted in a verdict in favor of defendant, upon which a judgment was duly entered. Plaintiff brings the case to this court for review.

The facts in the case are that the parties to this suit own and occupy adjoining lots in the city of Muskegon located upon block 32, of Newell’s Enlarged and Corrected Plat of the city of Muskegon. This plat is not laid out according to the points of the compass, but Pine street runs through it northwesterly and southeasterly in front of these premises, and Walton street crosses Pine street on the south side of block 32, running northeasterly and southwesterly, intersecting Pine street at its southeasterly corner, and runs along the south side of said block. Plaintiff owns lot 11, and the defendant owns lots 12 and 13 next south of her lot; each of these lots being 22 feet in width, and all fronting on Pine street and extending westerly to an alley in the block. Lot 13 is in the southeast corner of the block, and its south line extends westerly along the north line of Walton street.

Defendant, in 1906, erected a two-story concrete building on lots 12 and 13 intended to cover their full width, extending from the west line of Pine street westerly about two-thirds their depth. He also built a two-story brick building west of the concrete building on these lots facing Walton street extending from the westerly end of the concrete building to the east line of the alley in the rear of these lots and in depth intended to extend from the north line of Walton street the full width of said lots 12 and 13. Plaintiff, intending to erect a building on her lot 11 facing Pine street the full width of said lot, had begun excavating and had gone down below the street line on the side next to defendant’s north wall 7 or 8 feet, when it was discovered that his basement wall, as she claims, for its full length, encroached upon her premises at least 2 inches and the footings under such wall encroached about 6 inches. Defendant was notified, and this suit was begun. Construction of her building proceeded, she having let a contract, and her contractor, employed by defendant for that purpose after this suit was commenced, broke off the concrete footings even with the north side of his (defendant’s) foundation or basement wall and built the south wall of plaintiff’s building against defendant’s foundation wall up to the top of it, where the north wall of the superstructure of defendant’s concrete building begins. This left a space of 2 inches between the south side of her wall and the north side of defendant’s wall above his foundation, caused, as plaintiff claims, by his encroachment of 2 inches upon her land with his entire basement wall. The south wall of the superstructure of her building was then erected upon a plumb line and met defendant’s wall at or above the beginning of her second story, by reason of the leaning of his wall out of a true line toward the north. The rear wall of the brick building extends 1 inch beyond the north wall of the superstructure of the concrete building and its foundation extends about 8 inches beyond. This was the condition at and before the time this suit was brought.

Defendant was informed of the fact that his buildings encroached upon plaintiff’s land, and he promised to remove the footings. The testimony shows there was a dispute as to whether he made this promise before or after suit was begun. The footings were not removed until some time after. During the course of the construction of the plaintiff’s building, it was found that the porch floor extended about 4 inches and the porch roof extended about 8 inches over the plaintiff’s land. It was necessary to cut these off in order to put up the wall. . It appears to be admitted that the superstructure of defendant’s building where it meets the top of the basement wall is exactly on the north line of his lot, No. 12. There is testimony in the case tending to show that the basement wall is 2 inches farther north than this wall and that the footings extended from 3 to 6 inches farther north.

The errors assigned relate entirely to the instructions of the court to the jury. Relative to the removal of the footings of the north wall of defendant’s concrete building, the court instructed the jury that plaintiff could not recover provided the jury found that defendant’s promise to remove these footings was made before the bringing of suit. The jury was further instructed that they had nothing whatever to do with the footings that were there at the time of the trial. Both of these instructions are claimed by plaintiff to have been erroneous.

The undisputed evidence in this case shows that the footings under the north wall of defendant’s concrete building extended several inches beyond the north side of the foundation wall onto plaintiff’s lot. Defendant so testifies, claiming that before suit was commenced he promised to remove them. No promise is claimed to have been made relative to other claimed encroachments.

There is no dispute in this case relative to the ownership of these adjoining properties. The only question involved is whether the defendant at the time of the commencement of suit against him was in the occupation of a narrow strip belonging to plaintiff’s lot next north of the north line of his lot, No. 12. That he made a promise at some time to have these projecting footings of the basement wall of his concrete building removed is not in dispute, although the time when it was made is disputed. The evidence is clear that they were not removed until some time after the suit was commenced.

The court, in giving the first of these instructions above stated, evidently considered that on account of the promise made by him defendant was not occupying adversely to plaintiff. In this the court was in error for the reason the plaintiff claimed that not only were the footings of this wall unlawfully upon her property, but also that the entire basement wall of the concrete building encroached upon her premises at least two inches, and that the basement wall and its footings of the brick building encroached a considerable distance further; also, for the further reason that defendant’s occupancy of any portion of her premises was unlawful even though not adverse. Rose v. Linderman, 147 Mich. 372 (110 N. W. 939, 11 Am. & Eng. Ann. Cas. 198).

If defendant was in possession at the time suit wa,s brought, plaintiff can recover even if he afterwards abandoned it. Archibald v. Railroad Co., 1 App. Div. (N. Y.) 251 (37 N. Y. Supp. 336) ; Comfort v. Ballingal, 134 Mo. 281 (35 S. W. 609).

The plaintiff was entitled to have all of the evidence in the case as to defendant's occupation of plaintiff’s premises submitted to the jury, which included a consideration of whether or not the walls of these buildings and the footings under the walls along the entire line of her lot were north of that line. The court was in error in charging the jury in the manner stated upon both propositions.

Further error is claimed, in that the court charged the jury that the true foundation line between the two lots is the line on the north line of the general foundation under the brick building that was located by Mr. Gunn. In this matter the court was in error. We do not find in the record that Mr. Gunn testified at all relative to the wall of the brick building. It was for the jury to determine the effect of defendant’s testimony as to where the north line of his lot was, as such testimony was capable of being construed to relate to the north line of his superstructure, which might be considered by the jury in connection with other testimony in the case that his foundation wall along the entire north side of his concrete building extended two inches north beyond the superstructure.

As the case must go back for another trial, it is only necessary to say, relative to the testimony of the surveyors which was taken from the consideration of the jury, that there was material testimony given by the city surveyor as to the establishment of the section line from which the survey of these premises started, which, if followed up, by the testimony of his assistants, should be considered by the jury. The county surveyor, Abbott, gave substantive testimony to the fact that the width of the concrete building of defendant north and south measured by him was 44 feet and 2 inches. It was error, in any event, to take that portion of his testimony from the consideration of the jury.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    ANDREWS v. TAMARACK MINING CO.
    1. Master and Servant — Mines and Mining — Safe Place.
    Decedent was employed in defendant’s mine as a “hitch cutter,” making holes to receive timbers set in them to support the wall or overhanging rock. While the men were engaged in the usual work of timbering the roof of a stope in the mine, and making it safe for the miners, part of the rock fell and rolled upon decedent, killing him. It appeared that all the loose rock had been barred down and the place declared safe, everybody there considering it so: and that plaintiff and his coworker had observed the progress of the work and proceeded to cut the hitches as was usual, believing it safe. The miners had been cautioned against working in dangerous places and were at liberty to withdraw or to take all necessary precautions to render the stope safe. Held, that the defendant was not charged with the obligation of furnishing decedent with a safe place in which to work so as to, make defendant liable for his death.

    2. Same — Dangerous Place — Negligence.
    On a previous trial of the case the superintendent had testified that the overhanging wall often broke and fell when it appeared to be safe, and in the space of a few minutes. The testimony of the witness who had died was not introduced on the second trial. Held, that without evidence to support this contention the case should have been taken from the jury and a verdict directed for defendant.
    Error to Houghton; Cooper, J.
    Submitted November 13, 1913.
    (Docket No. 104.)
    Decided March 28, 1914.
    Case by Grace E. Andrews, as administratrix of the estate of Nicholas J. Andrews, deceased, against the Tamarack Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Allen F. Rees, for appellant.

      A. W. Kerr (A. T. Streeter, of counsel), for appellee.

       The question of the applicability of the rule as to safe place where servants are engaged in the work of removing dangerous conditions is discussed in a note in 25 L. R. A. (N. S.) 321.

   McAlvay, C. J.

Plaintiff, as representative of her deceased husband, recovered the present judgment in this case against defendant for injuries resulting in his death, charged to have been caused by the negligence of defendant.

This case was first before this court in the April term, 1897, where a former judgment in favor of plaintiff was reversed by a majority opinion and a new trial ordered. No further prosecution of the case was had until October, 1912, when a second trial occurred, which resulted in the judgment now before this court for review.

For an extended statement of facts in the case, reference is had to the opinions in Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242). In the present opinion only such facts as are sufficient to an intelligent understanding of the case need be stated.

Plaintiff’s decedent was a miner of 20 years’ experience. He had worked in Michigan copper and iron mines for several years, and had previously worked in defendant’s mine for about one year. At the time of the accident, he had for a second period worked in this mine for several weeks. He was a man of more than ordinary intelligence, and in mining, which had been his life work, he was an expert, and had at times held positions of trust, having been at one time a captain. At the time of the accident he was working as a “hitch cutter” with a man named Trevarrow. “Hitch cutters” work in pairs, cutting holes, called “hitches,” in the rock of the foot wall of the “stope,” or tunnel, of the mine. One of the pair holds the cutting tool, and the other strikes with a sledge. These holes receive the lower ends of pieces of timber which are set upright in sets of three, called batteries, and are driven in tight against the top, or hanging wall, of the stope to prevent rock from falling down. These sets of timbers are put in about seven or eight feet apart as the drilling and mining of the “stope” advances. The “stope” rises at an angle towards the level above as it is mined out. In this “Stope” the vein of ore, which was perfectly hard and safe to work in, required drilling and blasting. It was first mined out on the lower half of the vein near the foot wall, and then the upper half up to the hanging wall, so that in mining the stope was usually driven in further on the foot wall than overhead. The rock above the vein of ore was brittle, which necessitated that it be timbered in the manner described, and this mining was known and understood to be more than usually dangerous. The work of the “hitch cutters” and putting in the timbering into the “stope” advanced as the ore was mined out, exposing the rock roof, and they were continually making the place safe. It was their duty to examine and see that everything was safe before going to work, and, if the “hitch cutters” examined and found it was not safe for them to work, they should take time to make it safe and have men, if they needed them, to help make it safe. This “stope” was on the sixteenth level, and had been worked in about 60 feet along the course of the level and up near enough to the fifteenth level to cut a hole through for purposes of ventilation.

On the morning of the accident, the two miners had for about two hours been at work in this place, using their bars on the hanging wall, or roof, breaking down the “loose” and testing it for safety. Then came four or five timbermen, and also the “hitch cutters.” These timbermen set up the timbers and drive them into place after the “hitch cutters” have cut the “hitches.” On this occasion they also, with the two miners, continued for an hour or more after they came there to work at the rock above, including that which later fell, and broke down all that was loose or which they could break down. The hanging wall was then pronounced safe, and the testimony of all the witnesses is that everybody considered it safe.

During the time the miners and timbermen were at work with their bars, they had sufficient lights, and during this time Andrews and Trevarrow were present, standing or sitting behind the men who were doing this work, observing all that was done. When they finished, the timbermen pronounced the place safe and went to work. The miners also began to set up their machine to proceed with the drilling. The testimony of Trevarrow is that he and his partner, Andrews, were fully convinced that the place was safe to go to work in, and the head timberman told the “hitch cutters” that they could go to work, everything was safe. They at once began cutting “hitches,” and had worked about one hour, when suddenly a large piece of rock fell down and, rolling, crushed Andrews and injured Trevarrow.

The main contention of defendant is that, under the evidence in the case, a verdict should have been directed in its behalf, for the reason that there was no evidence of defendant’s negligence with respect .to plaintiff’s decedent; and that there was a clear and absolute assumption of risk by plaintiff’s decedent. Errors are also assigned upon the admission of certain testimony, and upon some portions of the charge.

When the case was first before this court, it was reversed only on account of the improper admission of certain testimony, given at the inquest, of the mining captain, Maslin, who had charge of the underground work of this mine, introduced, not for the purpose of impeachment, but to prove the substantive fact that defendant, through its agent (the captain), had knowledge of the danger and should have warned plaintiff’s decedent. The majority opinion, Mr. Justice LONG speaking for the court, probably for the purposes of a new trial, although it is not so stated, in considering one of the contentions made by plaintiff’s counsel, reads:

“But counsel for plaintiff contend that the place was made dangerous by the excavation’s being worked too far under, and left too long a time, without putting in the sets of stuff timbers, as was usual; that this was done under the direction of Capt. Maslin, who knew that if too great excavation was made, and the timbers not at once placed, the hanging walls, being left exposed, would crumble or break off and fall; that he, knowing this, sent the men in without warning them of the dangerous condition. We think there is some evidence to sustain this -contention. Mr. Par-nail, the superintendent of the mine, testified that ofttimes, when the overhanging wall appeared safe, it would suddenly break off and fall, and this within the space of a few minutes. * * * While the evidence is not very clear upon this question, we are not able to say that there is no evidence of that fact.” Andrews v. Mining Co., 114 Mich., at page 381 (72 N. W. 244).

This conclusion of the court was based entirely upon the testimony of the captain and the superintendent of the mine, who have both died since the former trial, and whose testimony, then taken, was not introduced by either party upon the last trial. Appellant alleges that the case now before the court for consideration is therefore an essentially different one from that which was passed upon on the former hearing, and that, in view of the evidence in this record and the undisputed duties of plaintiff’s decedent which he was employed to perform, there is no evidence in this case of defendant’s negligence. We have already briefly stated these duties in this opinion and find, upon an examination of both opinions handed down on the former hearing, that the entire court agreed as to these duties of plaintiffs decedent.

Quoting again from the majority opinion, we find as follows:

“Under the method adopted by the defendant company, these hitch cutters were required in all cases to examine all places where they might go to work, and see and satisfy themselves that such places were safe, before beginning their work, and they were frequently cautioned and warned as to this duty, and that they must never, under any circumstances, work under overhanging ground without first examining it, and being satisfied that it was all right, and, if found dangerous, to make or have it made safe; and they were allowed to take all the time and have all the assistance necessary for that purpose, and they understood and knew that no one would go ahead of them for that purpose, but that that was one of their particular duties.” 114 Mich., at page 382 (72 N. W. 245).

From the minority opinion, Mr. Justice Grant speaking, we quote:

“The situation, in brief, is this: These men were authorized and were expected to judge for themselves as to the safety of the place. They were competent to do so. They had been cautioned against working in dangerous places. They placed no reliance upon the judgment of any other employee, officer, or man, but used their own judgment. They were at liberty to withdraw if they considered the place dangerous. * * * The master in this case had furnished the proper tools and appliances, competent and experienced men, and had instructed them to exercise their own judgment as to the safety of the place, and had authorized them, if in their judgment the place was unsafe, not to go to work, but to take the necessary steps to render the place safe.” 114 Mich., at pages 383, 384 (72 N. W. 245).

The sole ground of negligence relied upon in plaintiff’s declaration is that it did not perform its duty in furnishing a safe place for the plaintiff’s decedent to perform his work.

The first question which arises is whether the doctrine of a safe place, as invoked, is applicable to this case. Under the undisputed evidence in this case, as far as performing his work was concerned, plaintiff’s decedent was engaged in making a safe place, and it is self-evident that it would be an impossibility for the defendant to cause the timbering in this stope to be done in advance for the protection of the men who themselves were specially employed to put in the timbering. The dangers were only those necessarily incident to the employment, changing from hour to hour, as the work progressed, and it is apparent that, by reason of the character of the work and the dangers attending it, miners of extraordinary skill and experience were selected, invested with power and authority to determine for themselves the safety of the place before going to work. This court has held that under circumstances of this character the doctrine of safe place does not apply. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).

The undisputed testimony of all the witnesses would indicate that for several hours, in the presence of the hitch cutters, these experienced miners and timbermen worked upon this hanging wall with bars, testing and prying down, until everybody was satisfied that the place was safe, including plaintiff’s decedent, who, with his partner, was chief in authority at that work. In the absence of the testimony of the mining superintendent and captain, upon which the opinion of a majority of this court indicated that there was slight evidence of negligence on the part of defendant, it is not necessary to discuss that feature of the case. We are satisfied that there was no evidence in the case of negligence on the part of defendant, and the court was in error in refusing defendant’s motion for an instructed verdict. This conclusion makes it unnecessary to consider the question of assumption of risk by plaintiff’s decedent, or any of the other questions which have been presented by appellant, and are discussed in the briefs.

The judgment of the circuit court is therefore reversed, and, it being obvious that no other or different case can be presented, no new trial will be granted.

Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred. Ostrander and Moore, JJ., did not sit.


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    TOLSMA v. TOLSMA.
    1. Partition — Commissioners—Report.
    Where three commissioners in partition proceedings met and divided the premises in two portions, directing the parties to whom they allotted the more valuable parcel to pay to the others the sum of $11,000, and the latter objected, claiming that there was a greater difference in value and offering to pay $14,000 which they filed a bond to pay if they might be awarded the more valuable parcel, and where the court referred the proceedings back for further action and it appeared that only two of the three commissioners met and passed on the second report, the other dissenting from the finding of the majority and filing a separate report, the determination of the commissioners should have been set aside because their action was not in conformity with 3 Comp. Laws, § 11040 (5 How. Stat. [2d Ed.] § 13237), requiring the commissioners to act jointly; it was also improper, under the holdings of this court, to proceed without giving the persons interested an opportunity to be heard in the second proceeding.

      2. Same — Notice—Hearing.
    Notice of the proceedings of commissioners in partition, to tRe interested parties, is required: and an opportunity to tie present and be beard should be given.
    Appeal from Wayne; Codd, J.
    Submitted November 25, 1913.
    (Docket No. 90.)
    Decided March 28, 1914.
    Rehearing denied June 4, 1914.
    Partition by Alex. S. Tolsma and others against Charles S. Tolsma and another. From a decree of partition, defendants appeal.
    Reversed.

      McNamara & Scallen, for complainants.

      Arthur E. Schreiter and Jasper C. Gates, for defendants.
   McAlvay, C. J.

This is an appeal from a decree of the circuit court of the county of Wayne, in chancery, in case of a bill filed for the partition of lands, under the statute. The parties to this cause are the surviving children in interest of Seborn F. Tolsma, who, after the death of his wife, by proper warranty deed, conveyed the premises in question to all of his children jointly, reserving to himself a life interest therein. From and after his death they have continued to own such premises as tenants in common.

Before the institution of this partition suit defendant Charles S. Tolsma acquired the undivided interests of two of the heirs, by which means he became the owner in fee of an undivided three-eighths, and each of the other parties to this suit is the owner of an undivided one-eighth. These premises are described as follows:

“Lot No. 5; and the southerly 49 feet of Lot No. 57, all in section 8 of the Governor’s and Judge’s Plan of the city of Detroit.”

In the proceeding to partition the premises lot No. 5 is called parcel 1, and the southerly 49 feet of lot 57 is called parcel 2.

The bill was filed by four of the heirs against the remaining two who are interested in these premises. Defendants answered the bill of complaint, and after issue joined a consent decree of partition was made and entered October 21, 1912. By this decree David T. Lorimer, William A. Gleason, and William T. Dust were appointed commissioners in partition, and after-wards qualified and proceeded to perform their duties as such commissioners. Having concluded their work in the premises, all of these commissioners, on March 21, 1913, made and filed their report in said court and cause containing a statement of their acts and doings, which report, omitting the formal parts, reads as follows:

“To the Circuit Court for the County of Wayne, in Chancery:
“In pursuance of a decree for partition entered October 2, A. D. 1912, and a supplemental decree made and entered on the 4th day of February, A. D. 1913, appointing the undersigned as commissioners in partition, in the above-entitled cause, we, the commissioners named in the said decrees, respectfully report unto the court:
“That after wé and each of us had taken and subscribed an oath, honestly and impartially to execute the trust reposed in us, and make partition and division as directed by the court, which said oath is hereto annexed for greater certainty and filed herewith, we went together upon the premises described in said decree, to wit, lot number five (5), and the southerly forty-nine (49) feet of lot number fifty-seven (57), all in section eight (8), of the Governor’s and Judge’s Plan of the city of Detroit, Wayne County, Michigan, and after careful inspection, and on consideration, made a partition thereof, quality and quantity relatively considered, according to their respective rights and interests as declared by the said court in and by said decree; that is to say, after giving notice in writing, by registered letter, to all the parties interested, and their respective solicitors, of the time and place of our meeting held to consider the matters referred to us in said decree, as will appear by proof of service hereto attached.
“We further report that we divided said property into two parcels, parcel 1 being described as lot number 5, in section 8 of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan, and parcel 2 being described as the southerly 49 feet of lot number fifty-seven (57), section 8, of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan. And we further report that we appraised the value of said parcels and buildings thereon, and found a difference in value of $22,000.
“We further report that we set off and allotted to the above-named Charles S. Tolsma and Anna (Tolsma) Shields, in severalty for their interest and share in the said premises, the one-half (%) part thereof according to the relative value thereof, the following parcel thereof, to wit: Parcel one (1), lot numbered (5) in section eight (8), of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan. And we set off and allotted to the above-named Alex S. Tolsma, Ray S. Tolsma, Gertrude L. Tolsma, and Venus E. Tolsma, in severalty for their interest and share in said premises, the one-half (i/^) part thereof according to the relative value thereof, the following parcel of land in the following proportion: Parcel two (2), the southerly forty-nine (49) feet of lot numbered fifty-seven (57), section eight (8) of the Governor’s and Judge’s Plan of the city of Detroit, county of Wayne, and State of Michigan. To Charles S. Tolsma three-quarters (%) and to Anna Tolsma Shields one-quarter (*4) of parcel one (1). And we do further report that parcel two (2) is of greater value than parcel one (1) (and that, for the purpose of equalizing the division of said premises, the said Alex S. Tolsma, Ray S. Tolsma, Gertrude L. Tolsma, and Venus E. Tolsma, who are allotted said parcel two [2], are hereby directed to pay, and the said parcel two [2] is charged with the payment of, the sum of eleven thousand dollars to the persons receiving parcel one [1], as named herein).
“And we further certify and report that the items of the various expenses attending the execution and our said duties as commissioners in partition, including Our fees as commissioners, are contained in a schedule hereto annexed and marked Exhibit A, and forming a part of this our report.
“All of which is submitted for the approval of the court.
“In witness whereof we, the said commissioners, have set our hands and seals to this our report this 18th day of March, A. D. 1913.
“David T. Lorimer. [L. S.] “Wm. A. Gleason. [L. S.] “Wm. T. Dust. [L. S.].”

Afterwards the attorneys for complainants filed and served upon defendants notice of a motion for confirmation of this report in partition, to be heard May 26, 1913. On April 18, 1913, defendants filed exceptions to this report which, omitting the formal parts, are as follows:

“To the Circuit Court for the County of Wayne, in Chancery:
“Your petitioners, the above-named defendants Charles S. Tolsma and Anna Tolsma Shields, hereby make and file exceptions to the report of the commissioners in partition heretofore filed, in the above-entitled cause, that is to say:
“(1) Because the said commissioners in and by their said report have greatly underestimated the difference in value between ‘Parcel 1’ and ‘Parcel 2/ described in said report.
“(2) Because in truth and in fact said ‘Parcel 2’ is worth the sum of $28,000 more than said ‘Parcel 1,’ and that the difference in value of $22,000 as found and reported by said commissioners is grossly inadequate.
“(3) Because your petitioners are ready and willing and hereby offer to pay to the above-named complainants the cash sum of $14,000, making a total difference of $28,000, in value of said ‘Parcel 2’ over and above the value of said ‘Parcel 1/ in case this court shall set aside said report and recommit to the said commissioners the partition and division of the pieces or parcels of land described in the bill of complaint filed in this cause and specified in said report.
“(4) Because your petitioners tender herewith a bond in the penal sum of $14,000 with sufficient sureties conditioned to pay to said complainants the sum of $14,000, in case said parcel 2 shall be set off and allotted to your petitioners, in severalty for their interest and share in said premises.
“(5) Because your petitioners will be greatly damaged if said report of said commissioners is confirmed, and will suffer great loss if the same is allowed to stand, and the same will operate as fraud upon your petitioners.”

This petition prayed the court to set aside and vacate the report, according to statute, and for an order to recommit the making of such partition to the same or new commissioners, who should proceed therewith according to law, and with such petition, according to its offer, defendants filed a bond in the penal sum of $14,000.

On May 22d, before the time of hearing the motion for confirmation arrived, the court made the following order: .

“At a session of said court, convened and held in the circuit court rooms in the city of Detroit, county of Wayne and State of Michigan, on the 22d day of May, A. D. 1913.
“Present, the Honorable George Codd, circuit judge.
“On reading and filing the exceptions of the above-named defendants to the report of David T. Lorimer and William Gleason, two of the commissioners in partition, heretofore filed in the above-entitled cause, and a bond for the sum of fourteen thousand dollars ($14,000) filed with said exceptions, it is ordered that said report be and it is hereby referred back to the commissioners in partition heretofore appointed in said cause for further findings.”

By some error the report in this order is called the report of two commissioners. It was in fact the report signed by all of them.

On the same date two of the commissioners made out and signed the following report (omitting the entitling) :

“We, the undersigned commissioners in partition in suit, Tolsma v. Tolsma, do hereby reconfirm our report filed and submitted in said cas
“Detroit, Mich., May 22, 1913.
“David T. Lorimer.
“William A. Gleason.”

On May 24th following defendants made and filed exceptions to this report of the two commissioners for the same reasons as stated in their first exceptions, objecting to the confirmation of the first report, and praying for the same relief. On the same day complainants, by petition reciting matters as to the first report, and its reference back to the commissioners, and also showing that Commissioner Dust had filed a minority report, asked that the report of. the two commissioners be confirmed. A report of Commissioner Dust, favoring the change in the report petitioned by defendants, was filed May 26, 1913. On June 19th following defendants filed a petition duly verified, and asked the court, for the reason that no opportunity had been given them to be heard by the two commissioners after the case had been referred back, and for the reasons given in former exceptions, to set aside the last report of the commissioners, and appoint new commissioners, on account of the partisanship and prejudice of the two commissioners against them.

On June 26, 1913, the court entered a final decree in the case in which was recited the entire first report of the commissioners already given, and recited the fact that the matter was referred back to the commissioners for further consideration, and that a further report made by the two commissioners reaffirming the former report, which decree confirmed the first report of the commissioners, and made partition of the premises accordingly, and decreed defendants should receive the part partitioned to them and $11,000 from complainants as their portion, according to the terms and conditions of said report.

It is the contention of appellants that this decree should be reversed (a) because the proceedings were irregular and void, and (6) that the decree is unjust. They contend that the final report of Commissioners Lorimer and Gleason in response to the order of the court made May 22, 1913, made on the same day, was without the presence or co-operation of Commissioner Dust; that they gave appellants no notice of any meeting, and no opportunity to be heard at said meeting to reconsider their report in accordance with the order of the court.

After the commissioners had made their first report, the record shows that defendants filed exceptions thereto by a petition in writing duly verified, asking that the report be set aside and vacated as provided by statute. This petition upon its face showed that parcel 2, which had been assigned to the complainants, exceeded the value of parcel 1, which had been assigned to appellants, by the sum of $28,000, and they filed a surety bond to substantiate their offer that they would give to complainants $14,000 as a fair difference between the values of the parcels.

After hearing these exceptions, the order referring the report back to these commissioners was made “for further findings.” Without any notice to appellants, or any opportunity to be heard on their part before the commissioners, and, as far as the record shows, in the absence of Commissioner Dust, the majority commissioners, on the same day the order of court was made for further findings, returned as follows:

“We, the undersigned commissioners in partition in suit, Tolsma v. Tolsma, do hereby reconfirm our report filed and submitted in said case.
“Detroit, Mich., May 22, 1913.”

The individual report of Commissioner Dust, made after this second report, accepts the proposition of defendants, and reports that $14,000 should be paid by the defendants, quality and quantity relatively considered. This has a bearing upon the contentions of defendants, at least by inference, that this commissioner was not present at the meeting of the 22d of May, when the second report was made by the majority, and also as bearing upon question of the injustice of the decree.

Proceedings in partition of lands are statutory, and, among other requirements, appear the following:

“The commissioners shall make .an ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided and the shares allotted to each party, with convenient certainty. * * * ” Section 11039, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13236).

The first report made by the three commissioners March 18, 1913, already set forth in this opinion, is an indication that the commissioners had knowledge of and followed the reasonable requirements of this section. In that report it is recited, among other things:

“That is to say, after giving notice in writing, by registered letter, to all parties interested, and their respective solicitors, of the time and place of our meeting held to consider the ■ matters referred to us in said decree, as will appear by proof of service hereto attached. * * * ”

And in another portion of said report is stated that, after each of them had taken an oath honestly and impartially to execute the trust, “we went together upon the premises,” etc.

There is another statutory provision relative to the participation of commissioners in the proceedings, as follows:

“All the commissioners must meet together in the performance of any of their duties. * * * ” Section 11040, 3 Comp. Laws.

It is apparent that neither of the requirements of the two sections quoted were complied with. The court had made an order for a rehearing because of certain facts which had been presented as to the value of one parcel of the lands to be partitioned, and on petition of defendants had granted the privilege to be heard, as provided by statute, section 11042, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13239), which provides the commissioners “shall proceed in like manner as hereinbefore.” The majority of the commissioners denied this privilege. Upon both branches of this contention as to the right to be heard, and as to the necessity of the presence of all the commissioners at all meetings, this court has sustained the claim of appellants. In an early case, this court said:

“The defendants had a right to be present and to be heard when these things were done; and notice of the meetings of the commissioners should have been given to them, that they, or either of them, might have been present if they desired. The requirement of such notice is always implied, when not expressed in the statute, and indispensable.
“The commissioners failed, also, to comply with the plain language of the statute, in attempting to take action under the order without all being present. It is not necessary that all should sign or acknowledge the report, but their deliberations should be had together, and they must all meet when the final action is taken and * * * signed. ' One of the commissioners, who appears to have been willing to act, and had not been discharged or disqualified from acting, took but little or no part in the deliberations of the commissioners, and was not present at, nor had notice of, their last meeting, and had no notice or knowledge whatever of the final action taken by the other two. This was a clear violation of the statute. It is of no consequence now to say that Dewey would not have agreed to the report filed had he been present, or participated in the deliberations with the other two. It is quite possible it ought not to have been agreed to, and it may not be improbable that a different result might have been reached had they then sufficiently consulted together. However this may be, it cannot change the requirement of the statute with which, in both of the instances pointed out, the commissioners failed to comply.” Simpson v. Simpson, 59 Mich. 71, 77 (26 N. W. 285).

The next contention is that the decree is inequitable, and ought to be reversed, for the reason that parcel 2 is worth $28,000 more than parcel 1, and the decree for equality of partition awards only $11,000, instead of $14,000.

When the matter was referred back for further findings upon the sworn petition and offer of defendants, it is manifest that it was done for the purpose, not only of giving opportunity to defendants to present proofs and be heard, but also to correct an injustice. If the facts set up in the petition are true, an opportunity should have been given to correct any error which had been committed in that regard. Defendants had a right to question the correctness of the conclusions of the commissioners as to values, and apparently the proposition made by them is not unusual. Under the circumstances their sincerity cannot be questioned; their conduct in filing a bond was an assurance of that. A very similar case is reported from New Hampshire where the action of the commissioners was set aside. Timón v. Moren, 54 N. H. 441.

There are two other matters which are called to our attention by defendants’ brief. The first is the claim that the award of parcel 2 to complainants upon paying defendants $11,000 was unauthorized and void, for the reason that section 11094, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13291), expressly confers such judicial power upon the court; and also that the commissioners did not follow the decree and value each parcel separately.

We do not think it necessary to express any opinion upon these propositions at the present time. As the case will be remanded for further proceedings, these matters will receive all necessary attention.

The decree appealed from is reversed and set aside, and the cause remanded to the circuit court for the purpose of the appointment of new commissioners to make partition of the premises, according to the equities of the respective parties, and the statute in such case made and provided. Defendants will recover costs of both courts.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    TOWNSHIP OF FOREST v. AMERICAN BONDING CO. OF BALTIMORE.
    1. Limitation of Actions — Pleading—Demurrer.
    The statute of limitations as a defense must be pleaded; the objection cannot be raised by a demurrer to the declaration in an action at law.
    2. Pleading — Principal and Surety — Statutes of Limitation— Bonds.
    The defense that an action on a surety bond for default of the treasurer of a township is barred by limitation of time fixed by the contract, cannot be presented by demurrer to the declaration.
    Certiorari to Cheboygan; Shepherd, J.
    Submitted November 25, 1913.
    (Docket No. 56.)
    Decided March 28, 1914.

      Assumpsit by the township of Forest against the American Bonding Company of Baltimore and Harry L. Sias on a surety bond. From an order overruling a demurrer to plaintiff’s declaration, defendant bonding company brings certiorari.
    Affirmed.

      I. S. Canfield (Keena, Lightner, Oxtoby & Oxtoby, of counsel), for appellant bonding company.

      C. S. Reilley, for appellee.
   McAlvay, C. J.

Plaintiff brought suit against Harry L. Sias, formerly township treasurer of plaintiff township, and American Bonding Company of Baltimore, as defendants, upon a surety bond given to plaintiff by them as principal and surety as the official bond of such township treasurer. Defendant bonding company demurred to the first count of plaintiff’s declaration. This demurrer was overruled, and the case is brought to this court for review, under Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] §§ 13737-8), upon a writ of certiorari by the demurring defendant. ■

The record consists of the pleadings and the return of the trial judge to the writ. The facts are not in dispute and, stated briefly, are as follows: Defendant Sias was elected treasurer of plaintiff township in April, 1907, and furnished a bond in the penal sum of $6,000, upon which the American Bonding Company became surety. It is claimed that Sias was short in his accounts with the township at the end of his term of office in April, 1908, $1,589.74. One Julius Gross was elected to succeed Sias in office in April, 1908, and held the office of treasurer of plaintiff township for two successive terms and until April 4, 1910, when Sias was again elected to the office of treasurer.

It is claimed by plaintiff in its declaration that Sias represented to the township upon his re-election in April, 1910, that Gross was in default as treasurer in the sum of $1,693.30. October 11, 1910, said Forest township sued Gross and his surety upon his official bond, as treasurer, in the circuit court for the county of Cheboygan, which suit was tried in said court in March, 1911, resulting in a verdict for plaintiff against said Gross, of $103.56. Judgment upon the verdict in said suit was entered March 2, 1911. And it is claimed that at this trial the township for the first time knew that Sias was in default in the sum of $1,589.74, and this present suit was commenced by summons May 15, 1912.

The declaration in this case consists of a special count upon the bond given by Sias on April 27, 1907, for the ensuing year, and the bond is set up in full. To the special count in the declaration are added the common counts in assumpsit. The bond in form is a bond given by Harry L. Sias as principal and the American Bonding Company as surety, running to the township of Forest, Cheboygan county, Mich., and the employee mentioned in the bond was that of township treasurer of the township of Forest, conditioned to stand for his defaults in said office for a term of one year, as therein mentioned. It is alleged in the declaration, as shown by the return of the circuit judge, that the cause of action against Sias and petitioner had been concealed from said township, its officers and agents, and that due notice had been given by said township, its officers and agents, as soon as they became aware of the shortage, and that suit was commenced within one year thereafter.

The bond upon which plaintiff declared was not in form the bond required by the statute to be given by township treasurers, but is in form such a bond as is furnished by surety companies for an employee to his employer; these terms being used therein in reference to Sias, the treasurer, and the township of Forest. It was made and executed by the principal and surety and was delivered by them, accepted and approved by the township board and by the supervisor of the township for its use and benefit, as and for the official bond of defendant Sias, as township treasurer, required by law. The material portions of this bond are as follows:

“Know all men by these presents: That Harry L. Sias, of Tower, Mich., the employee, as principal, and the American Bonding Company of Baltimore, hereinafter called the surety, as surety, are held and firmly bound unto township of Forest, Cheboygan county, Michigan, the employer, in the sum of six thousand ($6,000) dollars, to the payment whereof we bind ourselves, our heirs, legal representatives, successors and assigns.
“Signed and sealed, this twenty-seventh day of April, 1907.
“The condition of this obligation is: That the employee shall in the position of township treasurer, and in no other in the employer’s service, make good to the employer, within sixty days, any loss sustained by the employer by larceny or embezzlement committed by the employee during a term commencing on the 22d day of April, 1907, at 12 o’clock noon, and ending upon the 22d day of April, 1908, at 12 o’clock noon.”

This bond recites that it “is made, issued and accepted, or renewed, upon the following conditions.” There are eight of these conditions, of which those material only are given, as follows:

“(3) That the surety’s liability hereunder shall cease immediately as to subsequent acts of the employee from and after: (a) Discovery by the employer, his or its officers, of any default on the part of the employee.”

The fourth condition provides that the employer shall immediately give notice to the surety, at its expense, by telegraph and registered letter, of the discovery of any default on the part of the employee, with full particulars.

“(5) That the employer’s claim for default hereunder must be presented to the surety within six months from the date the responsibility of the surety for the employee’s further acts ceased from any cause, and no suit or proceeding at law or in equity shall be brought after 365 days shall have passed from the date upon which the surety’s responsibility for the further acts of the employee ceased.”

The foregoing are the conditions relied upon by the defendant American Bonding Company in its demurrer to the special count. The reason urged before the circuit court for sustaining defendant’s demurrer was that plaintiff’s action was begun too late, which is expressed in the demurrer as follows:

“(3) Because said suit was commenced more than 365 days after the date when this defendant’s responsibility as surety upon the further acts of said defendant Harry L. Sias had ceased.”
“(5) Because the cause of action mentioned in the first count of said plaintiff’s declaration, if any there be, did not, nor did any or either of them, accrue to the said plaintiff at any time within 365 days before the commencement of this suit.”

Counsel for appellant, in its brief, first discusses the question whether the defense that the plaintiff’s claim is barred by the limitations in the contract can be raised by demurrer, and seeks to distinguish the instant case from Renackowsky v. Water Commissioners, 122 Mich. 613 (81 N. W. 581), and First Nat. Bank v. Steel, 136 Mich. 588 (99 N. W. 786), by stating that in these cases such defense is not plainly evidenced by the declaration itself, while in the instant case the limitation of the action is provided in the contract.

The question is no longer an open one in this State. On both of the cases cited, which appellant seeks to distinguish from the instant case, it was held distinctly by this court:

“The general rule is that the statute of limitations must be pleaded, and that the defense cannot be raised by demurrer.” Renackowsky v. Water Commissioners, 122 Mich., at page 615 (81 N. W. 582).

See, also, Whitworth v. Pelton, 81 Mich. 98 (45 N. W. 500) ; Shank v. Woodworth, 111 Mich. 642 (70 N. W. 140). And later:

“Another ground of demurrer insisted upon is that plaintiff’s cause of action was barred by the statute of limitations. This objection cannot be made by demurrer. (Citing above case [First Nat. Bank v. Steel].”)

This appears to be the established doctrine in all but the Code States.

“In actions at law, as contradistinguished from actions under the Code, it has always been the established rule that if the defendant desires to avail himself of the statute of limitations as a bar to the demand in suit, he must plead the defense.” 13 Enc. Pl. & Prac. p. 200.

It is therefore unnecessary to pass upon any of the other important questions presented by the briefs and which were apparently considered in the court below.

The judgment of the circuit court is affirmed, and the case will be remanded, and defendant permitted to plead within the usual time provided by rule.

' Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J.

text:
    MCLAULIN v. WAYNE CIRCUIT JUDGE.
    1. Executors and Administrators — Special Administrator — Actions — Revival.
    A special administrator of the estate of a decedent can neither maintain actions to recover the possession of lands nor defend suits brought to divest the estate of title.
    2. Abatement and Revival — Estates of Decedents — Equity.
    Accordingly it is not erroneous to refuse to “revive a suit in the name of a special administrator brought during the lifetime of the deceased to recover certain real property claimed by the deceased, and mandamus will not lie to require the circuit court to enforce such revival under 1 Comp. Laws, §471 (4 How. Stat. [2d Ed.] § 11989).
    Mandamus by Serena McLaulin against Henry A. Mandell, one of the circuit judges of Wayne county, to compel respondent to enter an order setting aside an order vacating the revival of a suit brought by relator against the decedent in his lifetime.
    Submitted January 6, 1914.
    (Calendar No. 25,774.)
    Writ denied March 28, 1914.

      Daniel M. McLaughlin, William H. Wetherbee, and Jasper C. Gates, for relator.

      H. E. Spalding, for respondent.
   Brooke, J.

In August, 1912, relator filed her bill of complaint in the Wayne circuit court against one John D. McLaulin, her husband, and others. In this action she seeks to regain the title to certain real estate in Wayne county, a portion of which (at the time the bill was filed) was apparently owned by defendant John D. McLaulin. John D. McLaulin, being a resident of the city of Toronto, Canada, could not be personally served with process. After due publication of an order of appearance, however, and on December 18, 1912, he appeared and caused an answer to be filed to complainant’s bill of complaint. Eight days later (December 26, 1912) he died in said city of Toronto, leaving a last will, by the terms of which he bequeathed his entire estate to the Toronto Bible College of the city of Toronto. Relator is contesting the probate of the will. On February 25, 1913, relator petitioned for and secured the appointment of one of her sons (David McLaulin) as special administrator of the estate of her deceased husband, John D. McLaulin, and he (David) duly qualified as such special administrator in the probate court for Wayne county. On March 8, 1913, upon the application of relator, said chancery cause was by order of the Wayne circuit court in chancery revived against said David McLaulin, as special administrator of the estate of John D. McLaulin. On June 7, 1913, upon motion of Messrs. Walker & Spalding, acting as solicitors for the other defendants, respondent set aside the order of revivor of March 8, 1913. Respondent refused, upon application of relator, to set aside the last order, whereupon relator applied to this court for a writ of mandamus to compel such action.

Relator’s application is based upon the provisions of 1 Comp. Laws, § 471 (4 How. Stat. [2d Ed.] § 11989) :

“No bill of revivor, or supplemental bill in the nature of a bill of revivor, shall be necessary to revive a suit against the representatives of a deceased defendant, or other person or persons interested in the subject of such suit; but the court may, by order, direct the same to stand revived upon the petition of the complainant.”

It is contended on behalf of respondent that the special administrator has no interest in the real estate of John D. McLaulin, and has therefore no authority to defend a suit involving the title to such real estate.

Section 9327, as amended by Act No. 241, Public Acts of 1905 (4 How. Stat. [2d Ed.] §11043), provides :

“An administrator appointed according to the provisions of the preceding section shall collect all the goods, chattels and debts of the deceased, and preserve the same for the executor or administrator who may afterwards be appointed, and for that purpose may commence and maintain actions as an administrator, and may sell such perishable and other personal estate as the probate court may order to be sold. All personal actions, the cause of which does by law survive and which may be pending either for or against the intestate of such special administrator, may be proceeded with and be prosecuted by or against such special administrator, and the same proceedings taken as are provided by law relating to such actions in cases where an executor or general administrator has been appointed.”

In a recent case (Union Trust Co. v. Kirchberg, 174 Mich. 161 [140 N. W. 464], we held, following the decision in Pratt v. Millard, 154 Mich. 112 (117 N. W. 552), that a special administrator, by reason of the limited character of his statutory powers, could not maintain a suit to recover possession of lands. In this case, as in that, the rights of creditors are not involved. The real estate of McLaulin upon his death, therefore, passed either to his heirs or his devisee, and in neither event has his special administrator any interest therein. If a special administrator may not maintain a suit to regain possession of real estate because of lack of interest therein, it would seem to follow, as a necessary corollary, that he is not clothed with power to defend such a suit.

The writ is denied.

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