author: Stone, J.

text:
    SAVIDGE v. SEAGER.
    Í. Execution' — Description—Deeds.
    Notice of execution levy on “Lot 5, Block Q, Mitchell’s revised plat of Cummer & Gerrish’s Addition to the village of Clam Lake, now city of Cadillac,” was insufficient to affect the title of a hona fide purchaser of ‘.‘Lot 5, Block Q, of Mitchell’s revised plat of the village of Clam Lake,” although there was no Block Q in the plat known as Cummer & Gerrish’s addition to said village, and no plat known as “Mitchell’s revised plat” of such addition.
    2. Vendor and Purchaser — Record of Levy.
    A description sufficient to convey land between man and man or to authorize specific performance of an agreement to convey, may not be sufficient to constitute constructive notice to a purchaser in good faith, without knowledge of an execution levy recorded in the office of the register of deeds.
    3. Same — Execution.
    Where an officer levies on real estate, his indorsement upon the writ should describe the land levied upon with a sufficient degree of certainty to enable every person to know what property has been taken.

      Error to Wexford; Lamb, J.
    Submitted January 14, 1913.
    (Docket No. 107.)
    Decided April 8, 1913.
    Ejectment by B. Newton Savidge against Leonard Seager and another. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Gaffney & Miltner (E. J. Millington, of counsel), for appellants.

      Sawyer & Penny, for appellee.
   Stone, J.

This is an action of’ejectment. The undisputed facts in the case are as follows: On the 1st day of October, 1909, a judgment was obtained in the circuit court for the county of Clare by one Holbrook, as a plaintiff, against Oliver La Fave et al., as defendants. By virtue of a writ of fieri facias issued upon this judgment to the sheriff of Wexford county, that officer did, on the 16th day of November, 1909, levy upon certain parcels of land situated in the city of Cadillac, Wexford county, as the property of the said Oliver La Fave. There were three pieces of property levied upon, but it is conceded that the true description of the one involved in this case is lot 5, block Q, of Mitchell’s revised plat of the village of Clam Lake, now city of Cadillac. The notice of the levy thus made by the sheriff of Wexford county was filed with the register of deeds on the said 16th day of November, and recorded as required by law. The description in the notice of levy reads as follows:

“All the right, title, and interest of Oliver La Fave, one of the above-named defendants, in and to lot 5, block Q, Mitchell’s revised plat of Cummer & Gerrish’s addition to the village of Clam Lake, now city of Cadillac, State of Michigan.”

Upon the 15th day of October, 1909, the defendant Leonard Seager purchased of the said La Fave lot 5, above mentioned, and, upon the request of Mr. La Fave, a deed was drawn, bearing the date last above given, but, owing to the illness of his wife, was not signed, acknowledged, or delivered until the 10th day of January, 1910, and was duly recorded January 11, 1910. Mr. Seager paid $1,200 for the property in cash, represented by two checks, which consideration was fully paid on or about October 15, 1909. And, immediately after the drawing up of said deed and the payment of the consideration, a tenant, being in possession under La Fave, was notified of the change in question, and thereafter paid rent to Seager.

On February 1, 1910, the sheriff sold the property to the plaintiff in this case pursuant to the levy made thereon, and on the same day executed the required certificate of sale and filed the same with the register of deeds. The description in the notice of sale and in'the certificate of sale was the same as the notice of levy, to wit:

“Lot 5, block Q, Mitchell’s revised plat of Cummer & Gerrish’s addition to the village of Clam Lake, now city of Cadillac.”

. In other words, the property described in the levy proceedings places this lot in the proper block Q, but not in the correct plat. There is a plat known as Cummer & Gerrish’s addition, but there is no plat known as Mitchell’s revised plat of Cummer & Gerrish’s addition.

“G. A. Mitchell’s revised plat of the village of Clam Lake, now city of Cadillac, and Mitchell’s revised plat of the village of Clam Lake, now city of Cadillac, is one and the same thing.”

There is a lot 5, block Q, in the G. A. Mitchell’s revised plat of the village of Clam Lake, now city of Cadillac. There is but one block Q in the city of Cadillac, and that is found in Mitchell’s revised plat of the village of Clam Lake. There is no lot 5, block Q, of Cummer & Gerrish’s addition to the village of Clam Lake, now city of Cadillac. Later on, at the request of the sheriff, the description was changed in the book of records by drawing a red ink mark across the words “Cummer & Gerrish’s addition to.” The original certificate had been taken from the office of the register of deeds by the sheriff, and later brought back with the change corresponding with the change made at the request of the sheriff in the book of records.

On the 19th day of May, 1911, the time of redemption having expired, the sheriff of Wexford county executed to the plaintiff in this case a sheriff’s deed to the said property. It will be noted that the deed executed by the sheriff was the first instrument in connection with the levy transaction which properly described the property. And .to accomplish this, the changes had been, as above indicated, made in the certificate of sale and the record thereof.

From and after the 22d day of October, 1909, to the time of the commencement of this suit, the defendant Seager was in possession of the property through his tenants, and received payments of rent from them. The plaintiff claims title to the lands by virtue of the levy and sale above referred to. The case was tried before the circuit judge without a jury, and a finding of facts and conclusions of law were filed, and a judgment was entered for plaintiff for the recovery of the premises, in the usual form. Upon due exceptions and assignments of error, defendants have brought the case here for review; the defendant Edgett being the tenant of the defendant Seager. It is claimed by appellants that two questions are presented:

(1) Was the description of the premises levied upon, as given in the notice of the levy, sufficient to give notice, so as to make the lien valid against subsequent bona fide conveyances?
(2) Was there anything in defendant Seager’s possession of this property after the 22d of October, 1909, to afford actual or constructive notice to the plaintiff so as to invalidate his lien?

1. Section 9224, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11386), among other things, provides:

“That no levy by execution on real estate, made after this act shall take effect, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon, and the date of such levy, shall be filed by the officer making the same, in the office of the register of deeds of the county where the premises are situated, and such levy shall be a lien thereon from the time when such notice shall be so deposited; and the lien thus obtained, shall, from the filing of such notice, be valid against all prior grantees and mortgagees of whose claims the party interested shall not have actual nor constructive notice.”

It appears by this record that, if the notice of levy did not constitute notice to defendant Seager, then he had no notice. Mr. La Fave’s deed antedated the sheriff’s sale, the corrected certificate of sale, and the sheriff’s deed. We think the question hinges, therefore, on the sufficiency of the description in the notice of levy, which was recorded on November 16, 1909. It follows that, if the notice of levy did not contain a sufficient description, then the defendant Seager received no notice in accordance with the provisions of the statute quoted above. It is hardly necessary to quote authorities to show the purpose and policy of the recording acts. It has been well said that the object of all registry laws is to impart information to parties dealing in property respecting its transfer and incumbrances, and thus to protect them from prior secret conveyances and liens. This court has said that the design of the recording laws is to prevent fraud in real estate transactions by securing certainty and publicity in such dealings, and that the recording laws are designed to give information in the most accurate, reliable, and permanent form. Barnard v. Campau, 29 Mich. 162-165; Atwood v. Bearss, 47 Mich. 72 (10 N. W. 112).

The records should give information in such a form that the-exact state of the title may be easily discovered; they must be characterized by certainty, accuracy, and reliability. A description, which in a deed of bargain and sale may be sufficient to pass title, may not be sufficient in a public record to give notice to subsequent purchasers. The trial judge seems to have been of contrary opinion, for he says in his conclusions of law:

_ “That a description of real estate which is sufficiently certain and definite to pass or incumber the title to the land intended to be transferred or incumbered is sufficiently certain and definite to operaté as notice under section 9224 of the Compiled Laws of 1897.”

In the case of a deed of bargain and sale between parties, the aim of the courts is always to construe the instrument so as to give it validity, and this is done upon the theory that the grantor and grantee had dealt with each other; that both are sufficiently acquainted with the real estate which is the subject of transfer; and that therefore an error or inaccuracy in the description will be corrected so as to make the instrument valid and effective, and to carry out the will of the parties. But the theory of interpretation of public records is different.

In Amberg v. Rogers, 9 Mich. 342, Justice Campbell used the following language:

“The intendments made to help out deeds between individuals, arise out of the desire of the law to enforce mutual contracts according to their intent. But in ex parte proceedings to divest title, those who rely on them must, I think, place themselves where no ambiguity or difficulty can arise, and conform rigidly to the statute.”

The description of real estate required in a notice of sale is defined in section 9169, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11323), and reads as follows:

“In every such notice, the real estate to be sold shall be described with common certainty, by setting forth the name or number of the township in which it is situated, and the number of the lot, or by some other appropriate description of the premises.”

The language of Justice Hooker in Jackson v. Sloman, 117 Mich. 126 (75 N. W. 282), which was a case, relating to the description of real estate in a tax proceeding, is appropriate here:

“We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be digested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are' designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules.”

The identical question before us is discussed by Justice Mitchell in Herrick v. Ammerman, 32 Minn. 544 (21 N. W. 836). There was a wrong description both in the certificate of sale and in the notice of sale. He said:

“It must be borne in mind that this certificate takes effect only as the execution of a statutory power, and hence should be construed with some strictness so as to enable the purchaser to identify the land he is bidding on and the owner to ascertain what to redeem. A description sufficient to convey land between man and man, or which, if contained in an agreement to convey, would authorize a decree of specific performance, might not be sufficient in proceedings to sell land on an execution.
“When real estate is sold on legal process, it ought certainly to be described with sufficient certainty to enable a person with common understanding to identify it. This is what the statute requires the notice of sale to contain, and certainly the certificate should contain as much. Looking at this as a practical question, and without refining on the technical distinctions between latent and patent ambiguities, it must be evident that this description would neither inform a purchaser what he was buying, nor the debtor what had been sold. It is palpably so imperfect and incomplete that the subject of sale and conveyance could not be ascertained from it. If such a description were “found in a conveyance between man and man, it is possible that it could be aided by evidence of extrinsic circumstances tending to show the intention of the parties. But in these proceedings the owner of the land intended nothing. The law, through its officers, was acting in hostility to him, with a view to enforce collection of the judgments.”

See, also, Herrick v. Morrill, 37 Minn. 250, 254 (33 N. W. 849, 851, 5 Am. St. Rep. 841), where the same court, speaking through the same justice, relating to the same infirmity, said:

“In these sales the policy of the law requires, not that there should exist the means of showing at some future time what is otherwise indefinite and uncertain, but that, at the time of the sale, it should be within the power of all who are by the notice invited to become bidders to know what was offered, and that it should not be left to be surmised or guessed at some future time as to what the officer intended to sell. This we think is in accordance with reason and sound policy, as well as supported by authority. Jackson v. Rosevelt, 13 Johns. [N. Y.] 97; Jackson v. De Lancy, 13 Johns. [N. Y.] 537 [7 Am. Dec. 403] ; Childs v. Ballou, 5 R. I. 537, 546; Mason v. White, 11 Barb. [N. Y.] 173.
“In the present case it will be observed that the defect in the description exists in the notice as well as the certificate of sale.- The only important evidence in this case not in the former is that the description, as far as it goes, fits this property, and fits no other in the county belonging to the judgment debtor. This is not evidence of intrinsic circumstances to identify the premises in the light of which the description in itself appears certain and sufficient, but merely of facts tending to prove what property the sheriff probably intended to advertise and sell under the imperfect and defective description. The description cannot be helped out in this way. These facts were presumably not known to bidders at the sale; and, even if they were, they are not to be left thus to an uncertain surmise as to what is being sold.”

See, also, Helmer v. Rehm, 14 Neb. 219 (15 N. W. 344) ; Bank of Ada v. Gullikson, 64 Minn. 91 (66 N. W. 131).

In that case it was held that the constructive notice imported by the record of an instrument is strictly limited to that which is set forth on its face; and if, in a deed or mortgage as recorded, the particular land in controversy is not so described as to identify it with reasonable certainty, the record is not notice to subsequent bona fide purchasers or judgment creditors. There certain lots by mistake were described in the plaintiff’s mortgage as being in block 13 in the First addition to the village of Ada, but in fact the lots intended to be mortgaged were located in the original plat of the village. There was no block 13 in the First addition. The first one therein was numbered 21, and the last one in the original plat was numbered 20. The defendant had no actual notice of the mortgage, and, before it was corrected and re-recorded, he duly recovered and docketed a judgment against the mortgagor. Held, that the lien of the mortgage was subject to that of the judgment. In that case Start, Chief Justice, among other things, said:

“The fallacy of the plaintiff’s claim lies in the assumption that the description in the mortgage on its face discloses in what particular it is false, and what should be corrected in or eliminated therefrom in order to describe the lots intended to be mortgaged. It is impossible to tell from the’face of the description whether the mistake therein is in locating the lots in the wrong plat or block or village. If the mistake was in locating the lots in the wrong block, and block 23 was intended, then, if 23 was substituted for 13, the description would be correct. Conceding that a person reading the description would be charged with notice that there was no block 13 in the First addition, yet it does not, as we have suggested, charge him with notice that the mistake was in locating the lots in the wrong plat, and not in the wrong block or village.
“If the defendant had had actual notice of the plaintiff’s mortgage, and of the fact that there was a block 13 in the original plat, we might have a different case to consider. But the defendant had no actual notice in the premises, and he is chargeable only with constructive notice of what appeared on the face of the mortgage, as recorded at the time he docketed his judgment. The constructive notice imported by the record of an instrument is strictly confined to that which is set forth on its face; and, if in the deed or mortgage, as recorded, the particular land in controversy is not so described as to identify it with reasonable certainty, the record is not notice to subsequent bona fide purchasers or judgment creditors. Bailey v. Galpin, 40 Minn. 319 (41 N. W. 1054). In the case cited, the distinction between actual notice as respects ulterior inquiry and constructive notice implied from the fact of registration was clearly pointed out and need not be here repeated. The defendant in this case had constructive notice only of what appeared upon the face of the record of the mortgage and the description of the premises therein. This description, on its face, did not identify the lots intended to be mortgaged, or advise the defendant as to the particulars wherein it was defective; and it must be held that he had no notice, actual or constructive, that the plaintiff had a mortgage on the lots in question.”

In Schweiss v. Woodruff, 73 Mich. 473 (41 N. W. 511), Justice Campbell, speaking for this court, said:

“There are cases where the subsequent purchaser has a right to rely upon the face of the record, and is not bound to make inquiry outside of what the records disclose. Such are errors in recording when the record contains a wrong description of the land conveyed, or a wrong name of the grantor, or a wrong amount as secured in a mortgage [citing cases]. But the rule does not extend to imperfect or indefinite descriptions in the premises conveyed. The question in such cases is whether the record contains sufficient to apprise a party that some right or title is claimed or attempted to be conveyed in the premises, and, if it does, the purchaser is bound to use reasonable diligence to ascertain what it is that is so claimed or attempted to be conveyed [citing many cases].”

The case nearest in point which we have been referred to in this State is that of Burrowes v. Gibson, 42 Mich. 121 (3 N. W. 293). There it was held that a certificate of levy on “lot 7 of the subdivision of lots 12, 13, and 14 of the Labrosse and Baker farms in Detroit” was not sufficient to charge a purchaser with notice that it was intended to cover “lot 7 of John Gibson’s subdivision of lots 12, 13, 14 and 18 of the Labrosse and Baker farms, situated on the south side of Pine street, between Sixth and Seventh streets, according to the recorded plat of the same in the register’s office of Wayne county.” In that case Justice Graves said:

“The substantial controversy here is whether the description in the levy of the lot 7 in question was sufficiently full and correct to charge the public with notice through the certificate placed on file.
“The proposition is stated in this way because the question is not what sort of description might suffice as against parties having actual knowledge, or what might be deemed a sufficient description in itself considered, to constitute a valid levy, but it is what is sufficient to make the filed certificate afford constructive notice. And we are satisfied that this levy lacks the requisite certainty. * * *
“The discrepancy is very glaring. The lot we are in quest of is not a portion of the surface which is defined by natural marks or distinguished by some name or other feature which is notorious, but it is a specific area which might perhaps be indicated by proper abuttals, although the better description, if not the necessary one, is by reference to the plat and by the number of the lot and block as given on the plat, together with such other descriptive facts as may be practicable and essential for the purpose of identification.
“Now the levy gives no abuttals and points out no plat. The lot 7 it specifies is said to belong to the subdivision of lots 12, 13, and 14, and not to John Gibson’s subdivision of lots 12, 13, 14 and 18 according to the recorded plat. Again, it does not assign the subdivision to any block or mention any block. The John Gibson subdivision is on block 13. We have, then, in the one case a John Gibson subdivision of four specified lots on a specified block according to a recorded plat, and in the other a subdivision of three specified lots made by some one not named, and not located on any block, and not referred to any plat.
“It is, we think, not possible to hold that the lot 7 in the levy was so described there as to affect the public with notice, through the certificate, that the lot 7 of the John Gibson subdivision was meant. '
“The difficulty is not merely that the description in the levy has fewer badges of identification than were practicable, and should have been given. It goes further. Instead of being only a blind guide to the lot claimed, the description is a misleading one which points somewhere else.”

This case is cited with approval in Davis Sewing Machine Co. v. Whitney, 61 Mich. 518 (28 N. W. 674), where this court said, in speaking of the notice of levy as against subsequent conveyances in good faith:

“As against all such rights, the notice filed must be definite and certain” — citing Campau v. Barnard, 25 Mich. 381; Ward v. Citizens’ Bank, 46 Mich. 332 (9 N. W. 437); Burrowes v. Gibson, supra.

The rule which governs notices of levies is thus given in 17 Cyc. p. 1099:

“Where an officer levies upon real estate, his im dorsement upon the writ should describe the land levied upon with a sufficient degree 'of certainty to enable every person to know what property has been taken by virtue of the writ” — citing many cases, including Burrowes v. Gibson, supra.

In the same volume of Cyc., at page 1247, referring to a description of the property in a notice of sale, the following language is used:

“As a general rule, the officer’s notice of sale should contain a full and complete description of the property to be sold, or at least a sufficiently complete description to enable prospective purchasers, in the exercise of ordinary diligence, to identify it” — citing numerous cases.

In the instant case it will be noted that the description was a wrong description, as distinguished from an imperfect or impossible description. It is the claim of the plaintiff that, by a process of elimination, defendant Seager could have ascertained that the only block Q in the city of Cadillac was in Mitchell’s revised plat, and that there was no block Q in the Cummer & Gerrish addition. But the description being a wrong description, why should the defendant be driven to take his chances upon what should be eliminated from the wrong description? Might he not as well say that block Q was a mistake, or the lot levied upon was wrongly described, or that describing it as Mitchell’s revised plat was an error, as well as to say that he must find that Cummer & Gerrish’s addition was an error? We do not think, in the light of the' cases which we have cited, that there was any such duty resting upon the defendant Seager. It is a significant, but not a controlling, fact that the sheriff himself recognized the erroneousness of the description, as shown by the fact that after the certificate of sale filed on the 1st of February, 1910, which contained a description corresponding to that in the notice of levy and of sale, he corrected the description by drawing red ink lines through the misleading words, and then took the corrected certificate back and had the register of deeds make a corresponding change upon the records, conduct which was highly improper on the part of both officers. To sanction this conduct would be to encourage frauds on the part of officers to the injury of innocent purchasers. As has been said by this court, the notice of levy filed by the sheriff in the registry is a solemn official declaration under his official oath defining the lands which he claims to have seized. There is nothing in the law which supersedes it by any subsequent acts or declarations.

Applying the principles which we have discussed to the case at bar, defendant Seager’s title to the property must be held to be valid. This view of the case renders it unnecessary for us to discuss the second subdivision of the briefs. Counsel for the plaintiff have cited many cases from our own reports, and particularly Tuthill v. Katz, 163 Mich. 618 (128 N. W. 757), where the Michigan authorities are collected and the general rule discussed.

_n speaking of the construction of deeds and instruments between contracting parties, we have endeavored to point out the distinction between that line of cases and the instant case. We held in Tuthill v. Katz, supra, where certain property was described as the “William Rowley farm,” the particular description of which contained an error in one instance, that the words “William Rowley farm” were the controlling words of the description, and that such a deed would convey all that was embraced in the William Rowley farm, which in that instance appeared to be inclosed as one piece of property. The doctrine there applied was that the entire description in the deed must be taken and the identity of the land ascertained by a reasonable construction of the language used; and, if there be a repugnant call which, by the other calls in the deed, clearly appears to have been made through mistake, that does not make void the deed. This rule is in' no way modified by anything which we have said in the instant case, and we think the line of decisions there referred to is readily distinguished from the instant case.

The judgment of the circuit court is reversed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    DAVIS v. BUSS MACHINE WORKS.
    1. Appeal and Error — Saving Questions for Review — Exceptions — Sufficiency.
    Where counsel’s exception to a ruling of the court left it in doubt whether the exception covered the court’s refusal to strike out testimony as to damages, or its ruling on a proposed amendment to the declaration, the verdict being small in amount, prejudicial error was not shown for refusing to eliminate the testimony which also might have been admissible under an allowable amendment denied by the trial court.
    2. Trial — Examination—Witnesses.
    The matter of permitting leading questions on the cross-examination of a witness, called by one party and after-wards recalled by the other, is largely discretionary.
    3. Amendment — Declaration—Variance.
    In permitting plaintiff to amend his declaration as to the side on which he was injured, the court exercised a proper discretion.
    4. Master and Servant — Contributory Negligence — Railing.
    Whether plaintiff, a night watchman, was chargeable with contributory negligence in falling from a ladder or stairway not provided with a handrail, because of plaintiff’s knowledge or notice of the condition and familiarity with it during two months' previous use of the stairway, was a question for the jury; as was the issue whether the absence of a railing was the cause of his injury, it appearing that he might have saved himself from falling if a handrail had been present.

    5. Same — Stairway—Ladder—Statutes.
    Under the provisions of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4022), it is the duty of the master to provide stairways with substantial handrails for the use of servants and the duty is not performed by providing a ladder without handrails, although employers are not required to construct stairways to unused or unfrequented parts of the building or in places where the construction of a stairway is impracticable.
    Error to Ottawa; Cross, J.
    Submitted January 16, 1913.
    (Docket No. 134.)
    Decided April 8, 1913.
    Case by Benajah M. Davis against the Buss Machine Works for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Diekema, Kollen & Ten Cate, for appellant.

      Miles & Van Eyek and Corie C. Coburn, for appellee.

      On the question of contributory negligence as a defense against violation of statutory duty where statute excludes defense of assumed see note in 13 L. R.
      The decisions on the question of a servant’s assumption of risk of master’s breach of statutory duty are presented in notes in 6 L. R. A. (N. S.) 981; 19 L. R. A. (N. S.) 646; 22 L. R. A. (N. S.) 634; 33 L. R. A. (N. S.) 646; and 42 L. R. A. (N. S.) 1229.

   Stone, J.

This suit was brought by plaintiff to recover damages alleged to have been suffered by defendant’s neglect to comply with the statute requiring stairways with substantial handrails in manufacturing establishments, as required by section 14, Act No. 285, Public Acts of 1909 (2 How. Stat. [2d Ed.] § 4022). The defendant was a corporation operating a business consisting of the manufacture of wood working machinery in a two-story building in the city of Holland.

The case has been here before (169 Mich. 498 [135 N. W. 303]), and we then considered the question of the sufficiency of the declaration, holding that it stated a cause of action. While the declaration was somewhat criticised, yet Justice Steere, speaking for the court, said:

“Nevertheless, it is stated in the declaration that plaintiff was employed in a manufacturing establishment; that there was a second story connected with the first story of this building by a narrow stairway, not having any handrail on .either side; that, under his instructions, it became the duty of the plaintiff to pass up and down said stairway, and while so doing, in the performance of his duties in the line of his employment, he was hurt, owing to the absence of such protection, and while exercising due care and caution on his part.
“These allegations state a violation of a statutory duty which defendant could not legally contract to violate. Plaintiff did not assume the risk of such violation. It is alleged he was using the stairway in a manufacturing establishment under orders of his employers, in the line of his duties, was guilty of no fault or negligence which contributed to the accident, but fell and was injured owing to the statutory negligence stated. We think the declaration, taken as a whole, stated a cause of action.”

Thereafter the defendant pleaded the general issue, and the case was tried and submitted to a jury, resulting in a verdict and judgment for the plaintiff in the sum of $275. Upon the trial the plaintiff gave testimony to the effect: That he was 60 years old. That he had been in the employ of the defendant as night watchman two or three months prior to the injury. That defendant’s business consisted of manufacturing wood working machinery. That the establishment consisted of a two-story brick building, the second story being near the center. That in the first story there were machinery, lathes, and planers in one part and a molding room in another. It was run by electricity, but they had a boiler for heating the factory. In the second story they put their coke and iron, to melt for their castings, and during the day employed men there. That there was a narrow stairway used as a means of ascent and descent from the first floor to the second floor. That this stairway was in two sections, reaching from the ground up on to the boiler, where there was a landing, and then they went up another section. That the stairs were about 14 feet in length, and they were there for the employees to go into the second story. That when he went to work there Mr. Fairbanks, the superintendent, showed him around, and explained his duties which were, among other things, to go up the stairs into the second story every two hours and with a key kept there register the watchman’s clock. That he had to take the key and, putting it into the clock, make an imprint on the dial of the clock. That Mr. Fairbanks instructed him to go up those stairs to the second story, and that there was no other way to go up at night. That Mr. Fairbanks went up the stairs with him and explained his duties.

That witness was employed there on the night of November 5,1909, and while making his rounds there, as usual, was injured. He testified:
“I was making my round, and on my third round I was climbing those stairs, there was no handrail for me to get a hold of, and I fell. In climbing those stairs I had my lantern on my arm and stepped up. I had this hand to save myself with, to protect myself. I stepped up on one step and brought the other foot up to it, since I can’t step up one step one foot ahead of the other, like any other man. I have to bring up one foot and then the other onto that section, and when I got onto the landing, I stepped onto the third step. Just as I went to step up with this foot, I lost my balance and had no handrail to take hold of, and I fell backwards. * * * I was just as careful as a man could be, as I knew the condition of the stairway, and I think, in fact, more careful than an ordinary man would be.
“Q. You say that you fell because there was no handrail there?
“A. Yes, sir. After I fell, as soon as I was able I got up, felt my way along, until I came to the electric light in front of the boiler, turned it on and worked my way into the office and sat down. * * * I broke two ribs off from my spinal column, and lacerated the muscles in my side, and I was in awful pain; these pains continuing all winter and continuing yet. I have these pains now. A doctor was called shortly after the injury and he attended me. He put me in a jacket and examined me and found those ribs broken. I am still using liniments by his orders, his prescription, to relieve that injury and those pains. At the time of the injury my income was $14 a week, consisting of $9 paid me for night watching and the balance from.my shoe shop, which netted me $5 a week. I was confined to the house, unable to do anything, for three months. I lost my shoe shop and had to give it up. * * * That stairway did not have any railing.”

At this point the defendant’s counsel moved that the testimony that plaintiff had been engaged in the shoe business, and was earning $5 a week, be stricken out as not covered by the declaration. Whereupon plaintiff’s counsel asked to amend the declaration as it only stated that plaintiff was earning $9 a week for night watching for the defendant. Plaintiff’s counsel then asked leave to amend the declaration in two respects, one as covering the extra wage, and the other as to striking out the word “cupola” wherever it is mentioned in the declaration. After some discussion the court overruled the plaintiff’s motion to amend the declaration so far as it related to the shoe shop matter; but did not strike out the testimony already entered on that matter, and allowed plaintiff to amend the declaration by striking out the word “cupola,” to which defendant’s counsel excepted. The court then said:

“If they desire a continuance on the ground that they are not able to meet the amendment here, I presume it is up to the court to grant it.”

Whereupon the counsel for defendant replied that they would not ask for additional time.

The plaintiff was cross-examined at great length, and he testified, among other things, that the main building of the defendant was probably 75 or 100 by 200 feet; that it was all a one-story building except the space above the boilers, which was a room about 20 feet square, where they stored their iron and coke; that this was the second story spoken of in the declaration; that the cupola was simply the furnace, or casting place in the corner; that the room was a large room used for storing the iron and coke used in the furnace or cupola; that there was an elevator in one corner of that room which they used in the daytime to get their material up, and he supposed the men went up there too, when they took up the iron and coke; he had never seen any man go up there, because he had not been there in the daytime. He had never seen men employed on the second floor go up on the ladder or stairway. He described the ladder or stairway at great length, and the position which he was in on the second ladder or stairway when he fell. He testified that he had an artificial limb that went up to his knee, and that this rendered it more difficult for him in ascending a stairway or ladder. He testified that before the injury his health was good — that he had no pains or aches at all.

A physician testified that he attended the plaintiff and found him suffering from two fractured ribs on the right side, two or three inches from the spinal column, and some evidence of bruising of the back, over the point where the fracture was. On cross-examination, he testified that the ribs have not penetrated the lungs in any way, nor the heart, nor any of the vital organs; that it was just an ordinary case of the breaking of a couple of ribs; that he called on the plaintiff twice afterwards, and took off the adhesive strips, and found that the ribs were firm, and had united, and' he could not tell that plaintiff was not then perfectly normal; that this was in November, and witness did not see plaintiff again until January, when he came to the office and complained that he had pain in his back, where the ribs were, and witness applied some liniment.

Other witnesses — employees—testified that they went up and down sometimes on the elevator, and when that was busy they would go up and down the stairway or ladder.

At the close of the plaintiff’s testimony defendant’s counsel moved the court to instruct the jury to bring in a verdict for defendant, on four grounds:

(1) The insufficiency of the declaration, in not stating the duty of defendant, and the breach of that duty.
(2) That the declaration alleged that the plaintiff broke his ribs on the left side, and the uncontradicted evidence was to the effect that the ribs were broken on the right side.
(3) That the testimony showed that plaintiff was guilty of contributory negligence.
(4) That it appeared by the uncontradicted testimony of the plaintiff that when he fell his head was above the floor, and if it had not been for a partition against which coal was shoveled, he could have placed his hand on the floor, and a railing would have been of no use in his then position.

At this point, upon motion of plaintiff’s counsel, they were permitted to amend the declaration, so as to allege that the ribs were broken upon plaintiff’s right side, to correspond with the evidence, and the motion of defendant was overruled, to which defendant’s counsel excepted.

Evidence was introduced by the defendant tending to show that the so-called stairway was a ladder, and that it would be impracticable to build a stairway in the building; that the second story was not used except for smelting purposes; and that it was the custom of the men to use the elevator during the day. The sales manager, among other things, testified as follows :

“Q. So in order to get up to the top here to this room above, when the elevator was busy, there was constructed this ladder up to the boiler, and then from the boiler up to the top ?
“A. No, sir; that was constructed there to be used when the elevator couldn’t be used, when there was no power.”

Alva J. Fairbanks, the superintendent of the defendant, when the plaintiff was employed, testified as to the employment as follows:

“I employed him as night watchman. When he came for the job I asked him if he thought himself competent to do the work, and he replied that he was perfectly willing and able to do it. I noticed his physical condition at that time. I noticed he had one wooden leg or stump foot, and I knew that it would take some muscle and some walking to sweep the floors of the shop, the iron being heavy on the floors, and also 'climbing these stairs which he had to do every night, and therefore I asked him if he thought he was able to do it, and he said he was. I then showed him up and down these stairs.”

On cross-examination this witness testified:

“That stairway was placed there to get at the loft, when there was no power on to run the elevator, and it was used by employees for that purpose; but it was not regularly used for that. I never remember having six men at work up there, nor five. We always figured on one man doing the cupola work. He was up there nearly all day; but when I took Mr. Davis around, that is the way I showed him to go up there, and that was the only way you could get up there to punch the clock, with his key. I told him he must do that every two hours. This upper arrangement is stationary; that is, tacked to .the wall to hold it up there.
“Q. Wouldn’t it be possible in some other part of this building to manufacture a steel stairway with a handrail so that they could get up there into this second story?
“A. It would be possible to do anything, you can do anything, whether it would do any good to make it that way or not.
“Q. They could have taken this out entirely and put in another stairway there, made it of steel with a handrail, couldn’t they, so they could get up into that second story?
“A. They certainly could.”

At the close of the testimony defendant renewed its motion to have a verdict directed in its favor and urged the following additional reasons: That the

testimony shows it would be unreasonable to apply the statute to this condition and that the construction of a stairway there would be impracticable; and, secondly, that the statute invoked is not applicable, because the stairway was not regularly frequented by the employees, but was only to be used when the elevator was not in running order — which motion was overruled and defendant excepted.

The following requests of defendant to charge were refused:

(1) “The declaration filed by the plaintiff alleges, among other things, that in November, 1909, plaintiff was employed as a night watchman in defendant’s manufacturing establishment located in Holland, and that in said factory there was a second story connected with the first story by a narrow stairway up and down, which stairway it was the duty of the plaintiff to pass in performing his duties in the line of his employment; that it was the duty of the defendant to furnish the plaintiff with a reasonably safe stairway as a, means of passing from one floor to the other, and to keep the said stairway in a reasonably safe condition to perform his duties as a night watchman; and that it was also its duty to equip said stairway with a substantial handrailing, as required by the statutes of the State, in order to make the stairway reasonably safe. And the declaration, after averring defendant’s duty in this respect, alleges negligence on the part of the defendant in failing to provide said stairway with a substantial handrailing as required by statute, and in not providing said stairway with any railing or other protection of any kind. The defendant contends that there was no stairway at all connecting the first and second story of its building, but that two short ladders were used for this purpose, up and down which plaintiff was requested to go in the performance of his duties, and that the statutes of the State do not require handrails on ladders. I charge you that the first and second stories of defendant’s manufacturing establishment were connected by ladders and not by a stairway, and that defendant was not required by statute to equip these ladders with handrails.”
(2) “A ladder is not a stairway and a stairway is not a ladder. A stairway has various technical parts consisting of risers, treads, nosings, fliers, and winders. It is stationary. A ladder is in the nature of a tool, is a frame consisting only of two parts, the sides and the cross steps. One distinguishing feature between a stairway and a ladder is that a ladder has treads but no risers. The uncontradicted evidence in this case shows that the instrument from which plaintiff fell was a ladder and not a stairway.”
(10) “I charge you, gentlemen of the jury, that if you find that Mr. Davis was ascending this stairway, or ladder, on the night of November 5, 1909, notwithstanding his physical deficiency, without using either of his hands in taking hold of its treads or steps or its sides, then he is guilty of contributory negligence, and your verdict must be no cause of action.”

There was a motion for a new trial based on the grounds that the verdict was contrary to law and the evidence; that the jury ignored the charge and agreed on a compromise verdict outside of the evidence; that the verdict was unjust; that the uncontradicted evidence shows that plaintiff was guilty of contributory negligence; that if defendant was in any manner negligent it was by reason of the partition built at the head of the stairs, and the accident happened by reason of said partition, and not by reason of the want of railings; that the court erred in allowing plaintiff to amend his declaration after all his proofs had been submitted; that the evidence shows that the construction of the stairway with suitable handrails in said engine-room was impracticable; that the great preponderance of the evidence shows that the means used consisted of two ladders and not two stairways. The motion was denied, the court assigning reasons therefor in writing, to which defendant excepted.

The defendant has brought the case here, and there are 40 assignments of error. These assignments have been classified and condensed into the questions whether there was prejudicial error:

(a) In the admission of testimony.
(b) In the court’s refusal to instruct a verdict in favor of defendant at the close of plaintiff’s testimony.
(c) In the court’s refusal to charge the jury as requested by the defendant.
(d) In the court’s denying defendant’s motion for a new trial.

Taking up the questions in the order named, we will consider:

(a) The point as to the introduction of testimony relating to the shoe shop matter. Plaintiff testified relative to it. Defendant moved to strike out the testimony because not covered by the declaration. Plaintiff moved to amend the declaration to include this matter, and also moved to amend the declaration so as to strike out the word “cupola.” After some discussion the court refused plaintiff’s- motion to amend ’relative to the shoe shop matter and did not strike out the testimony, but did permit the other amendment, to which defendant’s counsel excepted. A reading of the record leaves us in doubt whether the court understood that the exception covered the refusal to strike out this testimony. Defendant’s counsel did not again allude to the matter, by any request to charge, or otherwise. The court might well have granted the amendment, as it related to the earning ability of the plaintiff. Under the circumstances, and in view of the size of the verdict, we must decline to reverse the case upon this ground.

The witness M. Everett Dick, a sales manager of defendant for many years, was called as a witness by the plaintiff without any announcement whether he was called under the statute or not. Later he was recalled by the defendant and examined.' When plaintiff’s counsel attempted to cross-examine this witness, some discussion arose as to whose witness he was. In view of-what we have said in Johnson v. Carbide Co., 169 Mich. 651-659 (135 N. W. 1069), we do not think the court erred in permitting a leading question to be answered. The matter was one largely of discretion.

(b) It is next urged that the court should have granted defendant’s motion, and should have instructed the jury to bring in a verdict for defendant, at the close of plaintiff’s testimony. This was asked upon the four grounds hereinbefore set forth. As to the sufficiency of the declaration, we have already held that it was sufficient to warrant a recovery for violation of the statutory duty. As to the variance between the declaration and the evidence relating to whether plaintiff’s ribs were broken upon the right or left side, we are of the opinion that the court properly permitted the declaration to be amended. Brassel v. Railway Co., 101 Mich. 5 (59 N. W. 426) ; Edwards v. Village of Three Rivers, 102 Mich. 153 (60 N. W. 454) ; Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668).

We cannot agree with defendant’s claim that the court erred in not directing a verdict on the ground that plaintiff was guilty of contributory negligence. We think that was a question for the jury. Plaintiff had used the stairway or ladder for a number of months without injury, and was aware of its condition ; but it does not follow that that fact would make its continued use contributory negligence, as matter of law. Neither can we say that the cause of the injury was. not the failure to provide a railing. Had there been a railing present plaintiff perhaps might have saved himself from injury even while falling. This was for the jury to say under the evidence.

(c) We are of the opinion that there was no error in refusing to give defendant’s first and second requests to charge. Counsel for defendant claim that if the instrumentality used was a ladder, and not a stairway the plaintiff cannot recover, and the trial court seems to have been of the same opinion. The declaration contains this averment:

“Plaintiff further avers that it then and there became and was the duty of said defendant to provide and furnish the said plaintiff with a reasonably safe stairway, as a means of passage from one floor to the other, and to keep the said stairway in a reasonably safe condition, as a safe place to perform his said duties as night watchman, in accordance with the provisions of law of said State; * * * that it became the duty of the said defendant to provide and equip said stairway with a substantial handrailing, as required by section 7 of Act No. 113 of the Public Acts of 1901 of said State, in order to make the same reasonably safe.”

The statute really in force was section 14 of Act No. 285, Public Acts of 1909. But upon this subject the language is the same in both statutes. We understand this to be a positive duty that stairways with substantial handrails shall be provided in manufacturing establishments, and that it is no defense to show that there has been no attempt to comply with the statute. Of course, as we said, when the case was here before:

“It would be absurd to apply the statute to a manufacturing establishment of only one story where there was no occasion for the employees to go up and down in the usual course of their employment. It would be unreasonable to apply it to every means of ascent to unfrequented parts of the building where the construction of a stairway was impracticable, and, though not regularly frequented by the employees, nevertheless means’ of access were desirable on rare occasions, as in the case of fire, or some special or unusual circumstance. We think it was the legislative intent to require stairways, with the safeguards specified, in all cases where means of ascent and descent are needed or desired, and are used by employees at their work in the line of their employment.”

It is very evident from the charge and verdict that the jury found that this building came within the purview of the statute, and that the defendant had neglected this statutory duty.

There was no error in refusing to give defendant’s tenth request to charge, for the reasons already given.

(d) We have examined the questions involved in the motion for a new trial, and are of opinion that the court did not err in refusing the motion.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

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


author: Ostrander, J.

text:
    MITCHELL v. VAN KEULEN & WINCHESTER LUMBER CO.
    Automobiles — Municipal Corporations — Constitutional Law.
    Since subdivision 3 of § 10 of Act No. 318, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §2496), is unconstitutional in so far as it creates a liability of tbe proprietor of an automobile for negligent acts of persons in control of the car, unless it was stolen (Daugherty v. Thomas, 174 Mich. 371 [140 N. W. 615]), a judgment for defendant upon a directed verdict in an action for injuries caused by an automobile in charge of the daughter of one of defendant’s officers is affirmed without deciding the questions presented on appellant’s behalf.

    Error to superior court of Grand Rapids; Stuart, J.
    Submitted January 24, 1913.
    (Docket No. 20.)
    Decided April 8, 1913.
    Case by Louise K. Mitchell as administratrix of the estate of Charles F. Mitchell, deceased, against the Van Keulen & Winchester Lumber Company for the negligent killing of decedent. Judgment for defendant on a directed verdict; plaintiff brings error.-
    Affirmed.

      Smedley,- Linsey & Lillie, for appellant.

      Wilson & Wilson, for appellee.

      The authorities on the question of the liability of the owner of an automobile for injuries caused thereby while being used by a servant or a third person for his business or pleasure are collated in notes in 9 L. R. A. (N. S.) 1033; 14 L. R. A. (N. S.) 216; 21 L. R. A. (N. S.) 93; 26 L. R. A. (N. S.) 382; 33 L. R. A. (N. S.) 79; and 37 L. R. A. (N. S.) 834. And on the liability of an owner for negligence of borrower or hirer of automobile, see note in 33 L. R. A. (N. S.) 81.
      As to the liability where the automobile is being used by a member of owner’s family, see note in 41 L. R. A. (N. S.) 775.

   Ostrander, J.

Plaintiff’s intestate was killed by an automobile owned by the defendant corporation, driven by a daughter of an officer of the corporation. It does not appear that she was a servant of the defendant, nor using the machine upon its business. The action was brought against the defendant under the provisions of subdivision 3 of section 10 of Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2496, subd. 3).

The trial court directed a verdict for the defendant upon the testimony produced by the plaintiff, upon the ground (1) that no negligence of the driver of the automobile had been made out; (2) that there was evidence of contributory negligence on the part of plaintiff’s intestate. Upon this order and direction the single assignment of error is based.

One ground of the motion-for a peremptory instruction was that the word “owner” in the provision of the statute relied upon by plaintiff must be construed to mean, not the real owner of the car, but the person in charge thereof at the time the injury complained about is done, and in this court it is a contention of appellant that, unless so construed, the provision is unconstitutional and void.

In view of the recent decision of this court (Daugherty v. Thomas, 174 Mich. 371 [140 N. W. 615]), we do not consider the reasons presented by appellant for a reversal of the judgment. We do not understand it to be claimed that the defendant is liable in this action, unless made liable by the statute.

The judgment is affirmed.

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


text:
    LAMB v. TOWNSHIP OF CLAM LAKE.
    1. Evidence — Municipal Corporations — Highways.
    Evidence of other accidents occurring prior to the one in suit, on a highway where deceased was killed, admitted by the court to prove constructive notice of the defective condition only, on a record showing that the highway remained in similar condition on the various occasions testified about, was competent and properly received, in an action for the death of plaintiff’s decedent.
    2. Highways — Defects—Personal Injuries.
    Instructions in an action for the negligent killing of plaintiff’s intestate on a defective highway, that plaintiff could recover if the defendant failed in performing any one of the duties mentioned in plaintiff’s declaration, which alleged that defendant negligently failed to make the approach to an embankment over which decedent slipped in icy weather, straight and level, and (2) did not construct the top of the embankment of a safe width or level, and (3) negligently failed to guard its sides with barriers, railings, etc., (4) negligently failed to construct a safe embankment, (5) and negligently failed to have the highway sufficiently wide for the safety of deceased, held, insufficient, and that the court erred in omitting to leave to the jury the question whether it was defendant’s duty to take such precautions as were claimed to be necessary in order to render the highway reasonably fit for public use..
    3. Trial — Instructions to Jury — Appeal and Error.
    It is to be presumed that the jury may have followed an instruction that is erroneous, although the court subsequently in the charge stated a correct rule conflicting with the language first employed.
    4. Highways and Streets — Municipal Corporations.
    Neither streets nor sidewalks are required to he absolutely safe — reasonable safety is all that the law demands.
    5. Same.
    When highways are constructed at such a height and so narrow between hills as to require barriers or railings to make the way safe and convenient for public traffic, a township is chargeable with negligence for failing to erect them, but it is not an absolute duty of a defendant to provide such protection.
    Error to Wexford; Lamb, J.
    Submitted January 21, 1913.
    (Docket No. 17.)
    Decided April 8, 1913.
    Case by Hugh Lamb, administrator of the estate of Roy Lamb, deceased, against the township of Clam Lake for the wrongful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. H. Yearned and Fred C. Wetmore, for appellant.

      Howard F. Withey (F. O. Gaffney, of counsel), for appellee.

      On the question of the duty of a county or town to maintain barriers along rural highways or bridges, see note in 42 L. R. A. (N. S.) 267. And as to the duty of a town or municipality to provide barriers to protect travelers from obstructions outside the highway, see note in 20 L. R. A. (N. S.) 980. And for the duty to provide barriers against abandoned highway, see note in 37 L. R. A. (N. S.) 1158.
      The decisions on the question of the liability of townships for defects in highways, generally, are reviewed in an extensive note in 13 L. R. A. (N. S.) 1219.

   Stone, J.

This is an action on the case under the survival act, brought by the administrator of the estate of Roy Lamb, deceased, against the township of Clam Lake, to recover damages for the death of the decedent, caused by injuries received on an alleged defective highway in said township.

Roy Lamb, who was 26 years of age, left the village of Tustin on February 18, 1909, about noon, to go north to the city of Cadillac to get a load of telephone poles. He drove a team of horses hitched to a set of Belknap sleighs, upon which there was no box, and the bunks of which were 8 feet 6 inches apart. The decedent wore an ordinary suit of clothes, with an extra pair of overalls and a fur coat. He passed over the highway in question, which had been in use as such for over 20 years, and which runs north and south between sections 31 and 32 of said township.

Approximately 100 rods south of the intersection of said highway with the north line of said sections, there is a hill fronting towards the south, and about 20 rods further south there is another hill fronting toward the north. The north hill was about 25 rods long, with a gradual slope of 10 or 12 per cent, toward the south. The traveled portion of said highway on this hill was from 12 to 14 feet wide. The hills were connected by means of a fill which was from 10 to 11 feet wide, and from 7 to 9 feet high. There were no barriers or railings of any description on this fill, either along the sides or at the north end, at the time in question. This hill had been graded down, and partly by reason of this grading and in part from the natural conformation of the land at that point the road down this hill, toward the other hill, ran through a cut, with comparatively high banks on either side. Water ran down this hill from time to time, and at times washed out gulleys on one or both sides of the road. At the time of the injury there was little ur no washout in the cut on the east side, while on the west, or right-hand, side going down the hill toward the south, the roadbed had been washed away to some extent. One witness testified that the west side of the cut was washed out; that you had to hug the east bank of the cut down; that the washing had taken nearly one-third of the road out on the west side. The roadbed was turnpiked up in the center and made somewhat crowning. The width of the cut at this point or junction with the north end of the fill is somewhat in dispute. One witness testified that the cut m the hill is wider than the fill where the fill joins the cut; that it is anywhere from 4 to 6 feet on each side. Another witness testified that at the north end of the cut it was 16 feet wide and the fill a little more than 10 feet. There was considerable snow on both the north and south hills on this day; and there is some dispute as to the amount of snow on the fill. Some witnesses testified that there was considerable snow there, while others testified that there was very little snow there. In the afternoon of the 18th of February the weather was soft, and about 6 o’clock it began to sleet and rain, turned colder, and so continued until the morning of the 19th, when it became warmer.

Roy Lamb was found dead about 8 o’clock in the morning of the 19th of February on the east side of the fill. An open knife, 6 or 7 inches in length, lay near his right hand. One mitten lay a little to the right and the other one lay in front of his body; his overcoat was unbuttoned. There was a jagged cut in his left wrist, from which considerable blood had flowed, covering a space of ground 10 or 12 feet wide and 15 or 16 feet in length. There were on the sleigh 6 or 7 telephone poles from 20 to 25 feet in length and 8 or 9 inches in diameter at the butt ends. The rear bobs of the sleigh were turned over, together with the swaybars. The horses were still attached to the front bobs, which had become released from the rear bobs and swaybars. Search was made for the key to the king bolt, but it was not found. The team was headed toward the south. One, and some witnesses testified two, of the telephone poles lay across the small of the back and another one on the legs of decedent. All the poles were chained together, and the condition was such that, in the opinion of one witness, about half the load rested upon the body of decedent. The poles were loaded with the butt ends upon the front bunks. There were sleigh tracks on the north hill, and, when about one-third down the hill, they left the traveled track, so that the right hind sleigh track crowded the left-hand traveled track, in which manner they continued down to the fill, when the right-hand runner of the front bob was near the center of the traveled track, and the rear bobs were the full width out of the traveled track. The sleigh went off the fill about 25 or 30 feet south of where the fill joins the north hill.

There was some conflict in the evidence as to the amount of ice upon the hill and upon the fill on the morning of the 19th of February. As the bobs came down the hill, apparently the hind bob never regained its proper position, but continued to the left of the traveled track clear out across the fill to the point where the entire conveyance went over the embankment. There was not much real conflict in the testimony as to the condition of the fill and the immediate surroundings, but there was more or less conflict in the evidence upon other branches of the case.

The case was .submitted to the jury by the trial judge in a lengthy and, in the main, a well-considered charge, and resulted in a verdict and judgment for the plaintiff. The defendant has brought the case here upon writ of error. There are 19 assignments of error relating to the admission of testimony, the conduct of counsel for the plaintiff, the alleged er,ror of the court in not granting defendant’s motion to direct a verdict for defendant, and in the charge of the court.

The assignments of error have been grouped by counsel in their brief; and the first subject discussed by appellant is the ruling of the court in permitting several witnesses to testify concerning accidents which occurred on this highway prior to February 18, 1909. The court received this evidence, but confined it to the question of constructive notice to the defendant. It seems to us that, thus limited, the ruling of the court cannot be complained of; there being evidence tending to show like conditions of the premises. It would seem that, if limited to the question of notice, the farther back in point of time such notice was brought to the attention of the defendant the more it would aggravate its negligence.

The next point complained of by appellant, being covered by assignments of error Nos. 11 and 12, may be considered together as embracing one subject. The court charged the jury as requested by plaintiff as follows:

“It is the claim of the plaintiff in this case that Roy Lamb met his death while driving along the highway in question, while himself in the exercise of that care that a reasonably prudent and cautious man would have exercised under like circumstances, and that his injury was due to some one of the following failures of duty on the part of the defendant or by reason of a concurrence of all or some of them; the failures of duty charged being in detail as follows:
“First. That said defendant negligently failed to make the approach down the hill, north of the fill or embankment in question, straight and level.
“Second. That said defendant did not construct the top of said embankment at the place where said embankment joined the foot of the hill, and at all other places, of a safe width and level.
“Third. That said defendant negligently failed to guard the sides of the aforesaid embankment with barriers, railings, or other structures, suitable and sufficient to prevent vehicles being driven along said highway in a usual and ordinary manner, from going over the sides of said fill.
“Fourth. That defendant negligently failed in its duty to so construct and maintain the embankment in question between the hills respectively north and south thereof, in such condition and of such width, that the general public, and particularly Roy Lamb, could pass down the hill on the north of said fill and along and over the said fill in the ordinary and usual method of travel on country highways, without unusual hazard and danger.
“Fifth. That said defendant negligently failed to have said embankment wide enough on top and level so said Roy Lamb would enter upon said fill in a straight and safe way, and could traverse the same without having the vehicle and team, which he was driving, go over and down the sides of the fill.”

The above portion of this charge, wherein it states the claim of the plaintiff, is unobjectionable, as it seems to have been in the exact words of the plaintiff’s declaration, and was properly given as a statement of his claim. The trouble lies in the manner in which this statement of claim of the plaintiff was treated by the court in the next portion of the charge given, as requested by plaintiff, in the following language:

“I charge you that it was the duty of said defendant to do each and all of the five things just named; and-1 further charge you that if you find that defendant failed in performing any one or more of said duties, and if you also find that as a proximate result of the failure of any of said duties, or of a combination and concurrence of some or all of them, Roy Lamb was killed, while himself in the exercise of due care, then it will be your duty to render a verdict in favor of the plaintiff for whatever damages you find have been sustained by Roy Lamb’s death, by reason of the acts complained of.”

It is the contention of appellant that the court erred in thus instructing the jury, and that it there imposed a greater duty on the defendant than, the statute imposes. The statute provides (section 3443, 1 Comp. Laws, 2 How. Stat. [2d Ed.] § 2464) as follows;

“It is hereby made the duty of townships * * * to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways' * * * that are within their jurisdiction, and under their care and control, and which are open to public travel,” etc.

This statute has been passed upon by this court many times. In no case has this court said that a township was obliged to make an approach to a fill “straight and level”; nor has it said that it was the duty of a defendant in a given case to make a particular embankment or place “of a safe width and level.” Neither has it said that it was the duty of the township to guard sides of a fill “with barriers, railings, or other structures, suitable and sufficient to prevent vehicles being driven along said highway in an ordinary manner from going over the sides of said fill,” unless these things were found by the jury to be necessary to render the highway in a condition reasonably safe and convenient for public travel, which latter fact, in all such cases, is a question for the jury. We have examined the charge with great care, and we can come to no other conclusion than that the court here substantially charged the jury that the defendant was negligent of duty in these particulars, and that it left nothing for the jury to find upon this branch of the case, because it was undisputed that the approach was not “straight and level” and that there were no barriers. It was well enough and proper to state to the jury what was claimed by the plaintiff, but when the court made use of this language, “I charge you that it was the duty of said defendant to do each and all of the five things just named; and I further charge you that if you find that defendant failed in performing any one or more of said duties, and if you also find that as a proximate result of the failure of any of said duties, or of a combination and concurrence of some or all of them, Roy Lamb was killed, while in the exercise of due care, then it will be your duty to render a verdict for the plaintiff,” etc., it was substantially to direct a verdict for the plaintiff, and to leave nothing for the jury to consider but the question of damages.

It is true that the court, in a subsequent portion of its charge, gave the following request of defendant:

“If you find from the evidence that the highway in question was, at the time of the accident, in a condition reasonably safe and fit for public travel, then there can be no liability on the part of defendant, and your verdict will be no cause of action.”

But what had the. jury been instructed was necessary to render the highway reasonably safe? The difficulty is that this general language had been preceded by specific instructions that the defendant was really guilty of negligence in the five instances named, because it was unquestioned that the approach down the hill north of the fill or embankment in question was not made “straight and level”; and that the top of the embankment was not constructed “of a safe width and level.” It is equally undisputed that there were no barriers, railings, or structures of any kind at the sides of the fill; and the jury were told, if we can understand the language used, that it was the duty of the defendant to do these things, to wit, make the approach “straight and level” and to erect barriers, railings, or other structures at this point; and the same language would apply to the two other subdivisions.

Counsel have not called our attention to any statutory requirement other than the general statute referred to. It has not been .pointed out or claimed that any statutory duty to repair highways in any particular manner has been violated or its performance omitted. There is nothing in the record to indicate that the defendant had entered upon the plan for “permanent improvements” contemplated by section 15, chap. 2, of Act No. 283, Public Acts of 1909. We have held that when conflicting instructions are given, one of which is erroneous, it is presumed that the jury may have followed that which was erroneous. Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152 (10 N. W. 179); Madill v. Currie, 168 Mich. 546 (134 N. W. 1004).

In one of the earlier cases on this subject of highways (that of Malloy v. Walker Township, 77 Mich. 448 [43 N. W. 1012, 6 L. R. A. 695]), the court correctly charged the jury as follows:

“You will first consider and determine the question whether this portion of the highway where the accident occurred was in a condition reasonably safe and fit for public travel, and in this case that question will depend upon your solution of another question, viz., whether or not suitable railings or barriers along the sides and at the top of the embankment in question were necessary to render the highway reasonably safe and fit for travel.”

Here the question of the negligence of the defendant, under the charge as given, was made to depend upon the question of the duty of the defendant to erect and maintain these barriers, and, under the circumstances surrounding the case, was left as a question of fact for the determination of the jury. It certainly was a question for the jury to decide under the circumstances, in that case as in this, whether the road was in such condition that it was the duty of the defendant township to erect such guards or barriers in order to render the highway in a condition reasonably safe and convenient for travel.

In Harris v. Clinton Township, 64 Mich. 447, at page 457 (31 N. W. 425, 8 Am. St. Rep. 842), Justice Champlin, speaking for this court, said:

“The township is not obliged to keep its highways absolutely safe for travel. The statute only requires that it shall keep them reasonably safe and fit for public travel. * * * The jury were the proper persons to draw all proper inferences from the facts proved; and, from such facts and inferences therefrom, it was their province to determine whether the road was reasonably safe or not.”

These cases have been followed by many others. Sebert v. City of Alpena, 78 Mich. 165 (43 N. W. 1098); Ross v. Ionia Township, 104 Mich. 320 (62 N. W. 401). In Gage v. Railroad Co., 105 Mich. 335, at page 341 (63 N. W. 318), it was said:

“It was a question for the jury to determine whether barriers were necessary.”

In Shaw v. Saline Township, 113 Mich. 342, at page 345 (71 N. W. 642), we said:

“We think it evident that whether a railing was necessary in order to render the approach to this bridge reasonably safe for public travel was a question for the jury.”

In Bigelow v. City of Kalamazoo, 97 Mich. 121 (56 N. W. 339), it was said:

“Neither streets, sidewalks, nor crosswalks can be constructed upon a dead level. * * * Cities are not required to keep streets in a condition absolutely safe for travel. A crosswalk must be reasonably safe.”

Comiskie v. City of Ypsilanti, 116 Mich. 321 (74 N. W. 487) ; Lauder v. St. Clair Township, 125 Mich. 479-485 (85 N. W. 4) ; Finch v. Village of Bangor, 133 Mich. 149-151 (94 N. W. 738); Hannon v. City of Gladstone, 136 Mich. 621 (99 N. W. 790) ; Stanton v. Webster Township, 170 Mich. 428 (136 N. W. 421) ; Lubbers v. Manlius Township, 172 Mich. 387 (137 N. W. 804).

It was, in our opinion, for the jury to determine whether the highway was im such a condition as to require the erection of barriers. Speck v. Bruce Township, 166 Mich. 550 (132 N. W. 114, 35 L. R. A. [N. S.] 203).

It is undoubtedly the law in this State that, where a highway is built at such a height and so narrow between hills as to require barriers or railings to make it reasonably safe and convenient for public travel, it becomes the duty of the township to erect them, and, failing to do so, the township is liable for injuries resulting from its neglect of duty. But it was error to instruct the jury that it was the absolute duty of the township to erect such barriers. To approve of this charge would to be to lay down and impose a greater duty upon the township than the statute imposes. For the reasons above stated, we are constrained to reverse the case. We have examined the other assignments of error, and find no other reversible error in the record.

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

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


text:
    SCHMAND v. JANDORF.
    1. Contracts — Satisfaction Clause.
    Where parties contract for performance of work by one to the satisfaction of the other, reserving to the latter the sole right of determining the sufficiency of the performance, the declaration of his dissatisfaction is conclusive, and is not subject to review by the courts.

    2. Master and Servant — Contracts—Discharge as Breach.
    Where plaintiff obtained employment as defendant’s candy-maker for one year, subject to the general control and to the satisfaction of the employer, who, having declared his dissatisfaction with plaintiff’s performance of the contract, terminated the employment within a year, it was not competent to inquire into his motives or grounds of dissatisfaction, and a verdict for defendant was rightly directed on the trial.
    Error to Kent; McDonald, J.
    Submitted January-27, 1913.
    (Docket No. 44.)
    Decided April 8, 1913.

      Assumpsit in justice’s court . by Albert F. Schmand against Charles S. Jandorf for breach of a contract of employment. From a judgment for the plaintiff, defendant appealed to circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Colin P. Campbell, for appellant.

      Benn M. Convin, for appellee.

      he question of the termination of contracts of employment which contain stipulations permitting rescission by the employer if the work is not satisfactorily performed is treated in notes in 12 L. R. A. (N. S.) 403, and 23 L. R. A. (N. S.) 1003. And as to the rights and remedies of servant discharged for good cause, see note in 5 L. R. A. (N. S.) 524.

   Stone, J.

This suit was begun in justice’s court in the city of Grand Rapids. It was appealed to the circuit court, where, at the close of the plaintiff’s testimony, a verdict was directed for the defendant. The plaintiff has brought the case here on writ of error. The sole error assigned is that the trial court erred in directing the jury as follows:

“Gentlemen of the jury, I am going to direct a verdict in this case. Plaintiff’s right to recovery depends upon a contract that he made with the defendant, in which the defendant reserved the right to discharge the plaintiff at any time when he was dissatisfied. That is a question entirely for the defendant, as the courts have held; and so, under the contract, as I view the case, the only question in issue is: Was the plaintiff discharged because the defendant was dissatisfied? The plaintiff testifies that that was the reason assigned by the defendant at the time, and there is no testimony to the contrary.”

Plaintiff was an expert candy maker. On or about June 5, 1911, he noticed in the Confectioner’s Journal an advertisement inserted by defendant for a candy maker. Plaintiff was at that time residing at Springfield, Mass. He answered defendant’s advertisement ,by letter, in which he stated, in substance, that he was willing to go to Grand Rapids on a week’s trial, provided his transportation was paid, and if he was not satisfactory to defendant the latter was to pay plaintiff whatever he wanted to for that week, and plaintiff would then pay his own transportation back. His wages, if he was hired, were to be $25 to $35 a week, according to the place. Defendant replied to this letter, saying that he was looking for a high-class man who could make a good line of satin finish goods, chocolates, and counter goods, take charge of a retail shop with-two or three assistants, paying good wages and steady position. Plaintiff responded to this letter on June 19th, stating:

“There is no doubt of me not being able to make your goods, providing you have the tools and help, to your satisfaction; if I do say so myself, I am considered one of the quickest workers in the candy line.”

As a result of this correspondence the defendant sent the plaintiff his transportation, and the latter came to Grand Rapids, and commenced work for defendant the Monday after the 4th of July. At the close of the first week, and after some discussion relating to wages, it was finally agreed that plaintiff should remain for $30 a week. There was some delay about a written contract, but finally defendant had one prepared, and it was signed November 9, 1911, by both parties. - It related back to July 1st. In the meantime plaintiff had moved his family to Grand Rapids. The written contract was put in evidence, and was as follows:

“This agreement, made this 9th day of November, 1911, by and between Chas. S. Jandorf of the city of Grand Rapids, Kent county, Michigan, party of the first part, and A. F. Schmand, a candy maker, of the same place, party of the second part:
“1. The said party of the second part shall enter into the services of said Chas. S. Jandorf as a candy maker for him in his business of catering and confectionery for the period of one year from and after the first day of July, 1911, subject to the general control and to the satisfaction of said Chas. S. Jandorf.
“2. That the said candy maker shall devote the whole of his time, attention and energies to the performance of his duties as such candy maker, and shall not, either directly or indirectly, alone or in partnership, be connected with or concerned in any other business, or pursuit, whatever, during the said term of one year.
“3. The said candy maker shall, subject to the control of and to the satisfaction of Chas. S. Jandorf, perform all of his duties as a candy maker, and shall serve said first party diligently and according to his best ability in all respects.
“4. The fixed salary of said candy maker shall be the sum of thirty ($30) dollars per week for each and every week of said year, payable by the said first party weekly, at the end of each week, or on the first day of the succeeding week.
“5. When the said candy maker has completed one year’s services from July 1, 1911, he is to be entitled to two weeks’ vacation with one week’s pay.
“In witness whereof the parties to these presents have hereunto set their hands the day and year first above written.
“Chas. S. Jandorf. “A. F. Schmand.”

Plaintiff continued to work under this contract until, in the month of January, 1912, he was discharged by the defendant. It appears by the testimony of the plaintiff that defendant found more or less fault with his work; that as early as July and August defendant complained that plaintiff made too many goods; that in December he complained that plaintiff made some chocolates too hard, and that he was giving his (defendant’s) “specials” away.

Another witness offered on behalf of plaintiff testified that he heard defendant complain of the plaintiff’s work at least on two occasions. The plaintiff’s final testimony, on cross-examination, upon the subject of his discharge was as follows:

“I was sworn in justice’s court. When Mr. Jandorf discharged me, he said that my work was not satisfactory to him. I did testify in justice’s court that Jandorf said, T don’t want you any more.’
“Q. Didn’t you answer the question just exactly as I have read it? This is the question: ‘When he got ready to discharge you, he told you that your work was not satisfactory,’ to which you answered these three words: ‘He did; correct.’ Wasn’t that your testimony in justice’s court?
“A. I may have said that; yes. I don’t say I didn’t say that. I may have said it; yes. I may have said that. I said he did, and I says, ‘That is correct.’
“Q. Then Mr. Jandorf did tell you that your work was not satisfactory?
“A. Well, I tell you, he may—
“Q. Just answer the question, please.
“Plaintiff’s Attorney: Just a minute. He does not understand the question.
“The Court: He wants to know if, at the time he discharged you, he told you your work was not satisfactory?
“A. He told me, T don’t want you any more,’ and I asked why, and he says, ‘Why, your work ain’t satisfactory.’ He had not complained to me several times before, and told me my work was not satisfactory.”

Upon redirect examination he testified:

“That must have been between the 9th and 15th, somewhere around there. It was at the time I was let out; that was when he discharged me. I didn’t know what I was getting discharged for.”

It is the contention of the plaintiff that there was no evidence showing that defendant was, in good faith, dissatisfied with plaintiff, and that this was the reason for his discharge, and that the inferences to be drawn from the testimony were for the jury.

He further contends that the trial court should have construed the contract as requiring the plaintiff to perform his duties as a candy maker in good, efficient, and workmanlike manner, and should not have construed it as it was construed in the charge, as authorizing a discharge when defendant was dissatisfied, and was in error in further ruling that the question of dissatisfaction was entirely for the defendant.

On the other hand, the defendant claims that, under the contract in the case, the right of the defendant to discharge the plaintiff whenever his work was not satisfactory to the defendant is well settled in this State.

• We think that the questions here presented can be determined under our own decisions, and that it will not be necessary to cite cases outside of this State, as contracts of this character have been frequently before our courts.

In the case of Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57), decided in 1883, which involved the sale of a machine where there was a warranty by the vendor, and a stipulation exacted by the purchaser that the contract should be of no effect, unless the machine worked to his satisfaction, Chief Justice Graves, speaking for this court, made the following concise statement of the rules of construction which should be applied in such cases, as follows:

“The cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes; and whether the particular case at any time falls within the one or the other must depend on the special circumstances and the question must be one of construction.
“In the one class the right of decision is completely reserved to the promisor and without being liable to disclose reasons or account for his course, and a right to inquire into the grounds of his action and overhaul his determination is absolutely excluded from the promisee and from all tribunals. It is sufficient for the result that he willed it. The law regards the parties as competent to contract in that manner, and if the facts are sufficient to show that they did so, their stipulation is the law of the case. The promisee is excluded from setting up any claim for remuneration, and is likewise debarred from questioning the grounds of decision on the part of the promisor, or the fitness or propriety of the decision itself. The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others. But this is not always so. It sometimes happens that the right is fully reserved where it is the chief ground, if not the only one, that the party is determined to preserve an unqualified option, and is not willing to leave his freedom of choice exposed to any contention or subject to any contingency. He is resolved to permit no right in any one else to judge for him, or to pass on the wisdom or unwisdom, the justice or injustice, of his action. Such is his will. He will not enter into any bargain, except upon the condition of reserving the power to do what others might regard as unreasonable. The following cases sufficiently illustrate the instances of the first class: Gibson v. Cranage, 39 Mich. 49 [33 Am. Rep. 351] ; Taylor v. Brewer, 1 M. & S. 290; McCarren v. McNulty, 7 Gray [Mass.], 139; Brown v. Foster, 113 Mass. 136 [18 Am. Rep. 463] ; Zaleski v. Clark, 44 Conn. 218 [26 Am. Rep. 446]; Rossiter v. Cooper, 23 Vt. 522; Hart v. Hart, 22 Barb. [N. Y.] 606; Tyler v. Ames, 6 Lans. [N. Y.] 280.
“In the other class the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination on grounds which are just and sensible, and from thence springs a necessary implication that his decision in point of correctness and the adequacy of the grounds of it are open considerations and subject to the judgment of judicial triers. Among the cases applicable to this class are Daggett v. Johnson, 49 Vt. 345, and Hartford Sorghum Manfg. Co. v. Brush, 43 Vt. 528.
“To which of these classes does -this case belong? The answer is not difficult. The facts are very distinct. The plaintiff’s own evidence is cogent that the defendant was extremely shy, and would enter into no arrangement, except upon the terms of doing as he liked about keeping the machine after testing it. His mind was fixed immovably that no chance should be left to force the article upon him, unless he finally chose to take it; and the special stipulation was specifically drawn and executed to meet this purpose and thereby induce the defendant to concur in an arrangement. Had it been the intention that he should be liable in case the performance of the machine were such, in the opinion of a jury, as to deserve his approval, it would have been quite unnecessary to get up the special writing. The original printed warranty would have answered the purpose. The transaction was one belonging to the first class, and the circuit judge was mistaken in deeming it otherwise.”

The above case has been followed by many others, and the doctrine therein stated and recognized. Koehler v. Buhl, 94 Mich. 496, 500 (54 N. W. 157).

In the case last cited Chief Justice Hooker said:

“It is settled law that, where a person contracts to do work to the satisfaction of his employer, the employer is the judge, and the question of the reasonableness of his judgment is not a question for the jury.”

The last-mentioned case is followed and approved in Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314, 84 Am. St. Rep. 572). On page 256 of 125 Mich. (84 N. W. 316, 84 Am. St. Rep. 572), in the opinion, this court said:

“Under the contract alleged and proved, the defendant had the right to terminate the employment whenever the plaintiff did not perform his duties to the entire satisfaction of the defendant. Under the rule as settled in this State, the reasons for, or justice of, the defendant’s satisfaction cannot be inquired into” —citing many cases in this and other States.

See, also, Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310) ; Plano Manfg. Co. v. Ellis, 68 Mich. 101, 102 (35 N. W. 841).

In the case last mentioned the written contract relied upon read as follows:

“We hereby agree to let Peter Ellis have the sample Plano binder, 1885, at the same price that Mr. Rheam has his for, and the binder' is to do good work and give satisfaction; and, if not, the said Ellis is to pay for use of same.”

It was held that the agreement that the binder was to do good work and give satisfaction embraced independent conditions, and unless the binder gave satisfaction to Mr. Ellis, as well as doing good work, he was not obliged to keep and pay for the machine. The same rule is applied and the same cases followed in Platt v. Broderick, 70 Mich. 577-580 (38 N. W. 579).

In the recent case of Isbell v. Carriage Co., 170 Mich. 304 (136 N. W. 457), Justice Steere very clearly points out the distinction between the two classes of cases in the following language:

“In many cases of this nature which have been before various tribunals, there is recognized two quite well-defined classes — one where the personal taste, feelings, sensibility, fancy, or individual judgment of the party to be satisfied are especially involved; the other where mechanical utility or operative fitness in relation to which some standard is available are bargained for. In the former class the authorities preclude disputing the propriety or reasonableness of the declaration of dissatisfaction on the part of the individual entitled to exercise it. It is said to be with him purely a personal matter of which he is made the sole judge. It being his right to say whether he is satisfied or not, it cannot be left to another to say that he ought to be satisfied. In the latter class of cases the authorities are more conflicting.”

This is the same distinction that was pointed out by Chief Justice Graves in the case first above cited.

We do not hesitate to say that the contract in the instant case falls within the first class mentioned. Here the contract contained independent provisions. It is clear and explicit in its terms. Had it been the intention that the contract should continue, in case plaintiff should “perform all of his duties as a candy maker and shall serve said first party diligently and according to his best ability in all respects,” it would have been quite unnecessary to have added the clause as to the satisfaction of the defendant, and it would then have been a question for a jury whether plaintiff had performed his contract or not. To give the “satisfaction” clause any force, it must refer to the mental condition of the defendant, and not to the mental condition of a court or jury. We think that the construction of the contract by' the circuit judge was the correct one. Whatever of apparent hardship there may be in such a contract, it was one of the parties’ own making. As was said by Justice Steere in the Isbell Case:

“If parties voluntarily assume the obligations and hazards of a satisfaction contract, their legal rights are to be determined and adjudicated according to its provisions. It is elementary that courts cannot make contracts for parties, nor relieve them of the consequences of their contracts, however ill-advised.”

In this case there is no claim that the parties did not fully understand the terms of the contract, and in fact it was made in pursuance of the correspondence leading up to it.

The claim of the plaintiff that the defendant did not find fault with his work, and that there is no evidence of defendant’s dissatisfaction, is not supported by the record; the testimony of the plaintiff and his witnesses (in the aspect most favorable to the plaintiff) showing the contrary.

The defendant not only found fault with the plaintiff’s work, but the record would warrant us in saying that he had reasonable cause to be dissatisfied— a point, however, which it is not necessary for us to pass upon.

Finding no error in the record, the judgment of the circuit court is affirmed.

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