text:
    KEMPER-THOMAS CO. v. DEITZ.
    1. Pleading — Sales—Indebitatus Count — Evidence.
    In an action in assumpsit upon indebitatus count for goods sold and delivered, the whole transaction is open to any proof showing, a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular, or beneficially performed in part.
    2. Same — Counts—Bill oe Particulars.
    Plaintiffs’ count followed by a brief bill of particulars referring to a written contract, stating what goods were sold and delivered to defendants at their request, when and how ordered, when delivered, and the amount claimed due, held, not a special • count on a particular contract, but evidently intended to meet the suggestions' upon that subject found in section 2, chap. 14, judicature act (section 12454, 3 Comp. Laws 1915), and Circuit Court Rule No. 22.
    3. Sales — Delivery.
    Delivery to the carrier is delivery to the purchaser of merchandise, in the absence of an agreement to the contrary.
    See note in 22 L. R. A. 415.
    Error to Washtenaw; Sample, J.
    Submitted October 10, 1918.
    (Docket No. 27.)
    Decided December 27, 1918.
    Assumpsit by The Kemper-Thomas Company against Oswald Deitz and another, copartners as O. Deitz & Son, for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Arthur Brown, for appellant.

      Cavanaugh & Burke, for appellees.
   Steere, J.

On January 19, 1916, plaintiff’s traveling salesman solicited a “Christmas goods” order from defendants for their next ensuing Christmas trade. After examination of his samples an order was given for 1,000 “frame purses,” style 3551, amounting to $130. A form of order furnished by plaintiff’s salesman was then filled out by him and signed “O. Deitz & Son,” by defendant Oswald Deitz, who was given a copy. This order was also apparently signed by plaintiff, through P. O. Camburn, “Salesman No. 102” and read in part as follows:

“How to ship: Freight (on or about) Dec. 1st, * * * F. O. B. cars our factory, * * * We will ship goods as close to dates desired as possible, but we cannot bind ourselves to exact dates, except when specially ordered.”

Plaintiff did not ship the goods within the time specified. On December 18, 1916, it wrote in reply to a letter from defendant as follows:

“Cincinnati, Ohio, Dec. 18, 1916.
“Mr. Oswald Deitz,
“Ann Arbor, Mich.
“Dear Sir: We are in receipt of your letter of the 16th relative to your order for purses.
“In reply beg to advise that these purses are being finished up today and will go forward to you immediately.”

Defendants’ letter of the 16th was not produced by plaintiff, but its counsel testified that Oswald Deitz told him he wrote plaintiff about that time, stating he bought the purses for his Christmas trade, and “if they had not sent the goods by freight so that he would be sure to get them at Christmas, he wanted them to send them by express.” Defendant admitted writing such a letter. In his cross-examination he was asked about this letter and answered as follows:

“If they had not sent them by freight, they were to send them by express so that you could get them before Christmas.
“A. Yes, to hurry them up.”

On December 19, 1916, plaintiff delivered the goods to the express company at Cincinnati, Ohio, carriage prepaid, directed to defendants at Ann Arbor, Mich., where they did not arrive until December 29. Defendants refused to receive or accept them because too late for their Christmas trade and so advised plaintiff. Correspondence followed between the parties, in concluding which plaintiff wrote defendants on January 5, 1917:

“The chances are had we made a freight shipment, you would not have received them yet.
“We insist upon our pay as per contract.”

The claim was then put in the hands of counsel and, payment being refused, this action followed.

Plaintiff’s declaration is as follows:

“The plaintiff says:
“1. That it is a corporation organized and existing under the laws of the state of Ohio.
“2. That the defendants are copartners engaged in business in Ann Arbor, Michigan.
“3. That the defendants are indebted to the plaintiff in the sum of $130.41 for goods sold and delivered by the plaintiff to the defendants at their request, as follows:
“1000 frame purses, style 3551, ordered in writing on January 19, 1916, and delivered on December 18, 1916 ..........................(.................$130.00 Freight on same................................41
Total .................................. $130.41
“4. Whereas the plaintiff claims a judgment for the sum of $200.”

Defendants pleaded the general issue and gave notice that the goods were ordered for their .Christmas trade of 1916; that plaintiff neglected and failed to ship and deliver the purses ordered in accordance with the terms of its contract, but delayed delivery until after Christmas when the goods were of no value to defendants who then and for that reason would not accept and “never have received the said goods.”

Upon the trial objection was made by defendants’ counsel to any testimony under plaintiff’s declaration as to a subsequent modification of the contract declared upon, in relation to which no waiver of any of its terms is pleaded. Opportunity was given to amend the declaration, which plaintiff’s counsel did not desire to do, and in reply to the court relative to plaintiff’s claim under its declaration said, “We rest on the declaration we have.”

On conclusion of the testimony each of the parties requested a directed verdict, and after argument the court directed a verdict for defendants.

The assigned errors of the court complained of are formulated in the brief of plaintiff’s counsel as follows:

# “1. It held that there was no waiver of the original time of delivery by reason of defendants’ subsequent request for shipment.
“2. It held that the delay caused by the carrier was chargeable to the plaintiff, notwithstanding that it had made full and complete delivery to the defendants when it delivered to the carrier.”

Defendants contend that all plaintiff’s evidence as to subsequent waiver of its admitted breach of the contract was inadmissible under the declaration; that even under the evidence erroneously admitted there was no waiver and defendants’ letter of December 16th, written after breach of the contract “to hurry them up,” was at most but a waiver conditioned upon the goods being received by them before Christmas.

The written order introduced in evidence by plaintiff at the trial showed these goods were to be shipped on or about December 1st. The testimony showed they were shipped by express, prepaid, on December 19th, and plaintiff introduced evidence against objection showing they were so shipped pursuant to defendants’ letter of December 16th. Defendants contend this evidence was. not admissible because waiver or modification of a contract declared upon cannot be shown unless pleaded.

Conceding this general rule as applied to a special count on a particular contract, plaintiff contends it was not required to and did not declare specially on any alleged contract; but declared generally and set up a cause of action under a common indebitatus count in assumpsit for goods sold and delivered, thus leaving the whole transaction open to proof.

Plaintiff’s, claimed cause of action is a money demand for the price of goods sold and delivered, necessarily involving a contract of sale as originally made or modified, but which can be recovered under the common counts in assumpsit without specially pleading the contract. So pleaded, the whole transaction is open to any proof showing a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular or beneficially performed in part. Allen v. McKibbin, 5 Mich. 449; Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Ladue v. Seymour, 24 Wend. (N. Y.) 59; Kerstetter v. Raymond, 10 Ind. 199. In 2 Smith’s Leading Cases, 34, it is said:

“If there has been a special contract which has been altered or deviated from in particulars, by common consent, general assumpsit will lie.”

Clearly the gist of plaintiff’s short count is indebitatus assumpsit “for goods sold and delivered by plaintiff to defendants at their request” (purely a common count), followed by what might be regarded as a brief bill of particulars, evidently intended to give in outline such information regarding the transaction as would reasonably inform defendants of the nature of the case they were called to defend, to meet the suggestions upon that subject found in section 2, chap. 14 of the judicature act (3 Comp. Laws 1915, § 12454) and Circuit Court Rule No. 22.

This added information does not transform plaintiff’s general indebitatus count into a special count on a particular contract. It states what goods were sold and delivered to defendants at their request, when and how ordered, when delivered, and the amount claimed due. No special contract under which the goods were ordered is set out. It was incumbent upon plaintiff to prove the facts stated, as it would have been any further facts in a bill of particulars had defendants seen fit to demand one, but the count as a pleading would remain the same, permitting other or further proofs which tended to establish an indebitatus liability under the common counts. There was no error in admitting the testimony objected to.

It is undisputed that defendants wrote plaintiff on December 16th to ship the goods by express if they had not been sent by freight, “to hurry them up;” that plaintiff on receipt of the letter promptly replied with assurances, and delivered the goods to the carrier designated the next day with transportation prepaid. The original order was for the goods F. O. B. plaintiff’s factory in Cincinnati and no change was made in that particular. Nothing thereafter remained to be done by the vendor. By the usual time required for express shipment between Cincinnati and Ann Arbor the goods should have arrived at their destination within from 12 to 24 hours. The fault for delay in transporting to point of delivery was with the express company designated by defendants to receive the goods for them at Cincinnati.

“In general a delivery of goods to a common carrier, and a fortiori to one specially designated by the buyer, is a delivery to the buyer. * * * A common carrier is agent of the buyer for receiving the goods.” * * * Hobart v. Littlefield, 13 R. I. 341.

The general rule is stated as follows in Templeton v. Equitable Manfg. Co., 79 Ark. 456 (96 S. W. 188):

“If the goods are to be delivered to a carrier specially designated by the vendee, the carrier becomes the agent of the vendee, and delivery to it is delivery to the vendee; if the contract is silent as to the mode of delivery, then a delivery by the vendor to a common carrier in the usual and ordinary course of business constitutes delivery to the vendee; where no carrier is specified, and a choice is open to the shipper, the selection of any one in good faith in the due course of business is sufficient. The effect of the delivery in proper manner to the carrier is to transfer the title and to fix the time and place when the title passes. Mechem on Sales, §§ 736, 739.”
“Where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer,' the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee.” Benjamin on Sales (7th Am. Ed.), § 399.

The proofs contain nothing indicating an agreement that plaintiff should transport the goods to Ann Arbor, retaining title and control until it had delivered them direct to defendants there. It contracted to deliver F. O. B. cars at its factory in Cincinnati, only changed by defendants’ letter directing that they be sent by express, “to hurry them up.” On receipt of this instruction plaintiff delivered the goods at its factory point to the carrier defendants designated, with transportation prepaid to destination, in abundant time to reach Ann Arbor .several days before Christmas according to the usual time of carriage by express between those points. Nothing in' the original order or defendants’ subsequent direction to ship by express indicates that delivery to the carrier was not a delivery to the purchaser.

That delivery to the carrier is delivery to the purchaser of merchandise in the absence of an agreement to the contrary is the recognized rule in this State. Althouse v. McMillan, 132 Mich. 145; Kuppenheimer v. Wertheimer, 107 Mich. 77. In the latter case it is held that even the stipulated right of the purchaser to inspect the goods sent him by a common carrier before paying for them, does not change the rule. Vide, also, Mee v. McNider, 39 Hun (N. Y.), 345, 109 N. Y. 500.

Upon this record a verdict should have been directed for plaintiff. The judgment is therefore reversed, with costs, and a new trial granted.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    SANFORD v. NEWELL.
    1. Receivers — Equity—Denial of Plaintiff’s Allegations.
    It is the rule that plaintiff, the equities of whose hill have been fully met and denied, is not entitled to the appointment of a receiver unless he overcomes the denials in such answer by further proof in support of his hill.
    2. Same — Cancellation of Instruments — Preliminary Hearing.
    In a suit by the heirs of the grantor to set aside a conveyance of property, the consideration for which in part was the grantor’s support, where defendant, who was in pos. session under a recorded title prima facie valid, had filed a verified answer denying plaintiffs’ hill, a decretal order appointing a receiver with authority to . take possession of the property, and collect the rents, made upon a preliminary hearing and after granting a preliminary injunction, was unauthorized.

      Appeal from Kalamazoo; Weimer, J.
    Submitted October 28, 1918.
    (Docket No. 102.)
    Decided December 27, 1918.
    Bill by Eugene Sanford and another against George B. Newell to set aside a deed. From an order appointing a receiver pending the trial, defendant appeals.
    Reversed.

      Jackson & Fitzgerald (Weston & Fox, of counsel), for plaintiffs.

      Lincoln H. Titus, for defendant.
   Steere, J.

Susan Rosa, who died on July 24, 1918, at the age of 85 years, was for a long time owner of certain real estate, stated to be worth from $15,000 to $18,000, located in the county and city of Kalamazoo. It consisted largely of houses and lots in the city which were rented to and occupied by tenants. On November 10, 1917, she executed deeds conveying this property to defendant George B. Newell, reserving to herself a life estate in one description where she resided. George B. Newell knew her for some 20 years and had made his home with her for about four years. He is the divorced husband of Elizabeth Newell, a niece of deceased. She and her coplaintiff, Eugene Sanford, a nephew of deceased, constitute the only heirs of said Susan Rosa. On the date said deeds were made George B. Newell, as part of the consideration therefor, entered into a written agreement with Susan Rosa to care for her during the remainder of her life, in health and sickness, with proper nursing and medical attendance, and upon her decease provide that she was properly buried beside her late husband in the burial lot which she owned.

Shortly after Susan Rosa’s death plaintiffs filed a verified bill of complaint for the purpose of setting aside said deeds to defendant, alleging as grounds therefor that deceased was no relation to George B. Newell, was aged and infirm, weak-minded and mentally incompetent to execute the said conveyances understanding, that the same were procured by fraud and undue influence exercised by said Newell and his attorney; that said Newell had poisoned deceased’s mind against plaintiff Elizabeth Newell by false stories concerning her conduct; and that said defendant was a man of questionable habits, insolvent and financially irresponsible. A preliminary injunction was asked restraining defendant from disposing of,, incumbering or collecting the rents from said property. At the time of filing said bill plaintiffs also filed a petition asking that a receiver be appointed to take possession and charge of all the real estate described in the bill and collect the rents therefrom, which plaintiffs’ counsel state in their brief amounted to about $70 per month. A preliminary injunction was then granted by the trial judge as prayed for, and an order issued requiring defendant to show cause why said petition for a receiver should not be granted.

Defendant thereupon seasonably filed a sworn answer traversing in detail with explanatory denial all accusing allegations of said bill and petition, supported by an affidavit of Richard L. Newham, an attorney of Grand Rapids who drafted and saw to the proper execution of the instruments in question, stating said services were rendered for deceased and at her request, that he was not solicited by or acting as attorney for defendant, denying with recital of circumstances so far as known to him each and every allegation of fraud, conspiracy, deception and undue influence charged in said bill; also by a transcript of the testimony given by Susan Rosa ten days prior to the execution of such instrument in a suit between her and plaintiff s, ‘ ref erred to in said bill, claimed to refute the charge of mental incompetency.

After hearing parties upon said petition the trial court entered a decretal order appointing a receiver for said property with authority, upon giving proper bond, to take charge of the same, collect the rents, pay taxes, insurance, etc., and directing defendant to surrender possession thereof to said receiver; said order being in part as follows:

“It is further ordered that the defendant George B. Newell deliver up to said receiver the possession of any and all of the real estate within five days from service upon said defendant of a certified copy of this order and the filing of said bond, and shall at the said 'time give to said receiver a list of the tenants occupying the said premises, with an accurate statement of the dates at which the respective rents are paid, and the amount of the, rent payable by each of said tenants.”

Further directing that the receiver as such might bring any suit found necessary in performance of his duties in that connection.

From this order defendant has appealed to this court claiming the same to be illegal and void because it removes defendant from the peaceful possession of premises which he holds and controls under a claim of ownership based on a record title by prima facie valid conveyances which, though attacked by plaintiff’s bill in a suit now pending, have not been set aside or held invalid after due hearing upon pleadings and proofs, and the order in effect is a prémature adjudication of the merits of the controversy before trial.

This appeal is from an order appointing a receiver over real estate in advance of the hearing, against a defendant in possession claiming under a recorded legal title, upon an interlocutory petition of plaintiffs out df possession, claiming no privity of ownership or associated interests with defendant. Beyond that the issues of this unadjudicated case are yet pending in the trial court and not for consideration here.

Upon the general proposition of the propriety of dispossessory orders in pending cases, it was broadly stated by Justice Campbell in Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479:

“It has been decided repeatedly that any decree or order divesting possession or rights on a preliminary inquiry is illegal and void, so that no one need respect or obey it. People v. Simonson, 10 Mich. 335; Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; Salling v. Johnson, 25 Mich. 489; McCombs v. Merryhew, 40 Mich. 721; Arnold v. Bright, 41 Mich. 207.
“Any such order made in an equity case is'a final decree and appealable as such. Barry v. Briggs, 22 Mich. 201, and above cases.”

And in Toledo, etc., R. Co. v. Detroit, etc., R. Co., 61 Mich. 9:

“Whatever rights a complainant may have in other courts, or in other ways, a court of equity cannot change the possession of lands in conflict from one party to another until the merits have been finally passed upon.”

In that connection, however, it may be added that while not questioning the generally recognized broad power of equity courts in rare cases, of special emergency, where imminent danger of loss of the corpus of the litigation or irreparable injury is clearly shown, to interpose a receiver against the possession of real estate held under color of title, this court has consistently emphasized that the power of dispossessing a defendant by receivership pendente lite should be exercised with extreme caution in all cases, and adhered to the wide distinction between disturbing by receivership the peaceable possession of real estate at the instance of a party out of possession not in privity with, the defendant in possession under claim of right, and cases where such relief is asked for the conservation pendente lite of claimed personal property involved in litigation.

The direct subject or corpus of this suit is. real estate in possession of defendant under a recorded fee title prima, facie valid. A lis pendens would have protected plaintiffs’ claimed rights against the world from alienation or incumbrance. The court had further guarded the same by a preliminary injunction. The only possible claim or excuse for dispossessing defendant by an advance order for a receiver was the claimed possible loss to plaintiffs of the comparatively small amount of rent which might accrue before the case was heard by reason of defendant’s charged insolvency, which he denied under oath. When this order was made appointing a receiver and dispossessing defendant he had filed his answer fully meeting and denying under oath the equities of plaintiffs’ bill and the case was ripe for hearing, no replication being now required. The general rule as to the effect of a verified answer on an application for appointment of a receiver prior to trial of the suit on its merits is stated as follows in 34 Cyc. p. 133:

_ “It is a well established rule that plaintiff, the equities of whose bill have been fully met and denied, is not entitled to the appointment of a receiver, unless he overcomes the denials in such answer by further proof in support of his bill. In other words, where the equities of plaintiff’s bill have been fully met and denied by a sworn answer on behalf of defendant, the court has no discretion, and its appointment of a receiver in such case is unauthorized.”

The alleged and charged grounds for relief asked in plaintiffs’ bill are met and positively denied by defendant’s answer and supporting affidavits. How strong plaintiffs’ case, or how weak the defense may ultimately prove to be upon the hearing is not to be considered or prejudged upon this appeal. Defendant is shown by these pleadings to be in possession of real estate as owner under a record title prima facie valid. The effect of this order is to dispossess him of the property and deprive him of all dominion over it. Upon this record, “such an order, made upon a preliminary hearing, cannot be sustained.” Woodmansee v. Ann Arbor Brick Co., 164 Mich. 688, and cases cited.

The order appealed from is therefore reversed and held for naught, with costs of the appeal to defendant, and the case remanded to the circuit court for hearing, or such other further proceedings as may be in harmony with this opinion.

Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.


text:
    HUMPHREY v. ONAWAY-ALPENA TELEPHONE CO.
    1. Master and Servant — Contracts—Compensation — Question for Jury.
    In an action against a corporation by an auditor for a balance claimed to be due him as compensation, conflicting testimony as to whether he was to receive expenses in addition to per diem, "held, to present an issue of fact for the jury.

      2. Corporations — Contracts—Board of Directors — Ministerial Officer — Powers.
    The president, as ministerial officer or agent of a corporation, has no implied power to obligate it by any act or contract which in effect overrules or revokes action taken by its board of directors in relation to the same matter.

      3. Master and Servant — Contracts—Termination of Sedation— Notice — Admissions.
    In such action, where plaintiff’s own testimony shows that he had notice of the action of the hoard of directors terminating his employment at a certain date, there was no issue.for the jury on the question of notice.
    Error to Alpena; Emerick, J.
    Submitted October 8, 1918.
    (Docket No. 10.)
    Decided December 27, 1918.
    Assumpsit by Henry Humphrey against the Onaway-Alpena Telephone Company for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry & Henry, for appellant.

      O’Brien & Francis (Kelley & Kelley, of counsel), for appellee.
   Steere, J.

Plaintiff recovered a verdict and judgment in the circuit court of Alpena county in the sum of $500 claimed as balance due him under employment by defendant, as special accountant, or auditor. Admitting service by him in that capacity under terms which are partially in dispute defendant contends as a matter of fact and law that full payment had been made for all services rendered. The defendant Qnaway-Alpena Telephone Co. was promoted and incorporated with a view to acquiring and holding the franchises and property of three less pretentious organizations known as the Onaway Telephone Co., The Alpena Mutual Benefit Telephone Co., and an unincorporated telephone system belonging to one Frank Calkins, at Gaylord. This scheme had its origin in the Onaway Telephone Co., which grew out of a telephone system at Onaway installed and run by John M. Clark, for a time, and later incorporated by him with, an authorized capitalization of $4,000, which he increased by 1909 to $50,000, he and his wife owning all but three shares. Subsequently they, with some other parties who had become interested, applied for and obtained permission from the Michigan railroad commission to increase their capital stock to $100,000. In 1911, Clark and one Morris T. Streeter, who was a somewhat reckless if not unscrupulous promoter, conceived the idea of organizing and promoting the defendant company to acquire and combine the three systems mentioned. Clark, his wife, and Streeter accordingly organized the defendant Onaway-Alpena Telephone Co. in October, 1911, with a capitalization of $1,000,000, and became its directors at the first stockholders’ meeting, Clark being elected president, and his wife secretary and treasurer. They obtained permission from the Michigan railroad commission to sell $180,000 worth of stock, the order providing that they were to pay from the proceeds $20,000 for the Calkins property, $62,250 for the Alpena company and exchange stock of the new corporation for stock of the Onaway Telephone Co. which had been issued and sold. They then entered upon a campaign of stock selling with Streeter as the active sales agent, blank certificates signed by Clark as president and his wife as secretary being liberally turned over to him in that shape for sale and disposed of by him in various ways and amounts to numerous purchasers in different parts of the State. It is indicated that more stock was disposed of by him than the company was authorized to issue. A witness named White, an experienced bookkeeper and accountant, who succeeded Clark’s wife as secretary and treasurer, testified of that phase of the situation:

“Going back into these stock transactions, the condition of the stock certificates themselves, if they wanted to find out who had bought any of them and transferred them, when there were no transfers on the stock certificates, a man could easily put in - a year and at the end of that time he would know just about as much as when he started.”

It was shown, however, that the company sold and realized on stock to the amount of $162,150, of which $50,000 worth went to Clark in purchase of or exchange for his stock in the Onaway Telephone Co.

Clark, Streeter, and White, who succeeded Clark’s wife, constituted the board of directors until July, 1918, when certain of the outside stockholders in different parts of the State became solicitous about their investments and actively interested themselves in the affairs of the company, which at the annual meeting of stockholders in July, 1913, resulted in a change of directors and control of the business of the corporation. The case of Clark v. Onaway-Alpena Telephone Co., 196 Mich. 168, may be referred to for further introductory matter, showing conditions and dissensions leading up to the events under consideration here.

In October, 1913, the board of directors consisted of Charles S. Davis and John W. Allen of Adrian, Charles Ruthruff of Jackson, Charles R. Henry of Alpena, and John M. Clark, who for a time continued a member of the board and was retained in the company’s employ as its secretary and manager of the physical and mechanical side of the company’s affairs after that board acquired control. Davis was elected president and, in addition to his duties in that capacity under the by-laws, was given, by resolution of the board, personal management of the commercial and business side of the corporation “with oversight and authority over all employees,” except as delegated by him to others.

A meeting of the directors held in Alpena, on October 21, 1913, was adjourned to October 25th at Jackson, where it was attended by four of the five members. Previous to this meeting a project to raise money by bonding had been mooted and the employment of an expert accountant to examine the books and records of the company and ascertain its true financial condition had been discussed by some of the directors. Plaintiff had been recommended to director Allen as an experienced accountant and auditor, and Allen had wired him to come over from Lansing for an interview that day and meet him in Jackson at the union depot. In response he went over to Jackson in the morning and between trains had an interview with directors Allen, Ruthruff and Davis upon the subject of his employment for the purpose proposed. He was at that time engaged on other work which he informed them he must first finish, told them that if employed his terms would be $10 per day (whether with expenses added is a matter in dispute), that he could not give them any estimate how long it would take or the approximate cost of an audit and, in reply to their suggestion that he go up to Alpena to tentatively look things over, said he would do so if they would pay his expenses. At the directors’ meeting a resolution was passed authorizing the president to take up with plaintiff “the matter of examining the books, papers and accounts of the company and ascertain if his work will obviate the necessity of having the same work done again when steps are taken to bond the company,” and the cost of the same. Davis wrote plaintiff making inquiry along the line of the resolution as did Allen also, to which plaintiff replied telling of his experience but otherwise without answer as to the cost or results, and on November 22, 1913, went to Alpena at Davis’ suggestion, returning home before Thanksgiving, and back to Alpena on November 26, 1913, where he remained working in defendant’s office most of the time until April 21, 1914. He testified that he could not and did not tell them how long it would take to make the audit or give them any estimate of the cost. For his services during that period he rendered bills for 119 days at $10 per day and expenses amounting to $387.96, making his total charge $1,577.96, upon which he received payments at different times amounting to $960.38, leaving a claimed balance of $617.58, to recover which, with interest, this action was brought.

Defendant pleaded the general issue with notices of special defense, the substance of which was that his employment was never authorized by the board of directors and no definite or express contract of hiring was ever entered into; that plaintiff never made any report or statement respecting his supposed audit of the books or statement of an accounting to defendant, for which reason his services were of little or no value, and for all services rendered by any implied contract or consent he had been paid in full, and more.

Upon the trial but two material issues developed, though many things were in dispute. Defendant’s counsel conceded that upon the record made, and especially a resolution of the board of directors passed February 24, 1914, plaintiff was entitled to pay for his services at the rate of $10 for each day he worked between December 22, 1913, and March 19, 1914, which had been paid in full, but contended that, both by the tentative terms he had stated and said resolution, he was to pay his own board and other expenses, and that his employment was definitely terminated by said resolution on March 19, 1914.

This left as the only significant issues in the case plaintiff’s right to reimbursement for expenses, and to pay for the days he claimed to have been in defendant’s employ after March 19, 1914.

Beyond what was said in the interview at Jackson, nothing definite is shown to have been directly said by either party in the nature of an agreement as to what compensation he should receive. Neither he nor Davis testify to any agreement on the subject during his preliminary visit to Alpena on November 22d, or on November 26th when he returned and began work. While they do not fully agree as to what passed between them on November 22d plaintiff’s only statement in regard to cost or compensation is:

“He told me somewhat more in detail than I had learned in Jackson about the family quarrel, and after listening to it I told him I thought they had rather an unpleasant mess here, but as to the real thing that they wanted me to come for, after going down to the office and meeting Mr. White and looking at the accounts and his books, I told Mr. Davis that I was satisfied Mr. White understood his business as near as I could tell, and that I refused to set any estimate on what the whole job cost because I couldn’t tell and the only way I would work was as I stated in Jackson on a per diem basis of $10 per day and expenses, that is when I was away from home. There was much more talk, but it seems to me that it was the substance of it.”

While Davis testified:

“When Mr. Humphrey was here on the 22d of November, 1913, no arrangements were made other than that he was to ascertain what it was going to cost us. He did nothing to ascertain, so far as I saw, for he spent his time with me and could have spent but a short time looking over the books, * * * I talked with him about ascertaining how long it would take. He said he wasn’t ready to take hold of it just yet and had to go back. * * * When Mr. Humphrey left on the 22d I didn’t make any arrangement with him to come back.”

There is a direct issue between plaintiff and the three directors as to plaintiff’s adding expenses to his per diem statement of charge in the interview at Jackson. They testified he answered to their inquiry that if employed his wages would be $10. per day and did not mention expenses, while he testified that he told them his charges would be $10 a day and expenses. He, however, returned to Alpena and commenced work on the 26th of November, remaining, apparently with Davis’ acquiescence, until into the ensuing. April, and rendered bills at different times for services and expenses, some of which were paid. The trial court rightly held, we think, that under all the circumstances shown the question of expenses was an issue of fact for the jury, and submitted it to them under proper instructions.

Upon the question of compensation after March 19th the court expressed a serious doubt during the progress of the trial as to that being a question for the jury, but finally submitted it to them as an issue of fact. This involves the most serious assignment of error in the case. Aside from .the authority given Davis by the resolution passed at Jackson to communicate with plaintiff on the subject of his possible employment and ascertain the probable cost, and whether his audit would suffice if steps were taken to bond, etc., as stated, no action was ever taken by defendant’s board of directors upon the subject until at a regular meeting held in Alpena on February 24, 1914, when the time and nature of his employment were discussed, the following resolution was unanimously adopted:

“Whereas, It is uncertain what expenses and time will be used in auditing the books of the Onaway-Alpena Telephone Company as at present they are being audited; be it—
“Resolved, That Henry Humphrey, as the auditor, be paid ten dollars ($10.00) a day for his services, he to pay his own expenses. Be it further—
“Resolved, That the president of this board be empowered to employ Robert Crable of Alpena, or some other auditor, to assist the present auditor of the company, Henry Humphrey, at such stipend as he shall deem proper. Be it further—
“Resolved, That the present employed auditor, Henry Humphrey, shall not be employed for more than twenty (20) working days from this date. Be it further—
“Resolved, That said auditors make and submit to the president of this company within said twenty (20) days, a report in writing of the entire work of auditing; such report to be full and complete to date.”

At this meeting other conditions unsatisfactory to the board were found and Clark’s employment as general manager was terminated. A resolution was passed that said Clark “be and he is hereby discharged and relieved and released from his said duties as general manager of the company from this date and moment forward, and such duties and the authority incident thereto be and. the same hereby are placed upon Charles S. Davis, without additional compensation.”

Plaintiff was soon notified of this. He testified that he remembered that meeting, and that Clark handed him an unsigned paper in an envelope, the next day he thought, which he opened when he got to his room. The paper was introduced in evidence and is as follows:

“At a meeting of the board of directors of the Onaway-Alpena Telephone Company, held February 24th, the' matter of work and compensation of the auditor now working on the books, Mr. Henry Humphrey, was freely discussed.
“It was stated by president Davis that although no definite understanding as to hotel expenses was had, that he thought Mr. Humphrey should pay his own hotel bill, or at least board at a place which he, Mr. Davis, considered good enough for himself.
“The president was empowered to employ Mr. Crable of Alpena to assist Mr. Humphrey for a time, it being understood that Mr. Crable would, while working with Mr. Humphrey, be able to get such information from Mr. Humphrey and his notes, and that he, Mr. Crable, would be able to continue work after Mr. Humphrey had been discharged.
“He was further empowered to require of Mr. Humphrey that his work be completed and a written report made of the same within 20 working days from that date, and to not pay him any further sums of money until such written report was made.”

The trial court held that this unsigned paper not being a copy of the resolution actually passed by the board of directors, was not of itself a notice that his employment terminated at expiration of 20 working days from February 24th, and against defendant’s request for a directed verdict on the proposition under consideration held that whether plaintiff had actual notice was a question of fact, charging the jury on that assumption as follows:

“The resolution was passed, and I, say to you as the law that the board of directors had a right to pass that resolution giving it effect 20 days from the date of its passage, and that if Mr. Humphrey from any source was fully apprised of the terms of that resolution, he would not have a right after the 19th of March to assume to remain in the employ of that company; and if he did so with that knowledge, he could not recover after the 19th of March for either compensation for his time or for his hotel or other expenses.
“He denies, gentlemen, and it is fair to say that he takes the position that he did not have any such knowledge as that, and you will remember that he was served that day with a paper made, I think, on the same typewriter that the resolution was made upon, not signed by any one, but served upon him by Mr. Clark, one of the directors, and I will read it to you. * * *
“Now, that is not any declaration that Mr. Humphrey’s services must terminate 20 days after that meeting. It says: ‘He was further empowered to require of Mr. Humphrey that his work be completed and a written report made of same within 20 working days;’ and I charge you that if that is all the notice that Mr. Humphrey had of that resolution and its contents, and afterwards Mr. Davis acquiesced in and authorized him to remain there longer than the period of 20 days, he would be entitled to his pay and expenses, if you find that he was entitled to the expenses under the contract during the time that he remained there until he was finally discharged. But he must sustain that contention by a fair weight of the evidence.”

In any aspect of this question it appears undisputed that plaintiff never advised the board of directors or any of its officers of the probable cost or length of time it would take him to examine the books of the company and audit , its accounts. He made a special trip to Alpena at defendant’s expense to look matters over, after being advised that information was desired, but states he did not go up to ascertain the time the work would take, did not and could not tell that, or the probable cost, and said:

“The purpose of my coming up at that time and staying one day and then going back was to satisfy Mr. Allen and the people there at Jackson.”

Whatever the nature of his hiring in the first instance, it is clear that it was not for any special length of time, neither was it by any special resolution of the board of directors. Plaintiff states, “I had no dealing with any one but Mr. Davis.” To what extent the individual members were previously advised is not shown, and perhaps immaterial, but the time when his employment would end was definitely fixed by a resolution of the board at the time the matter came before it on February 24, 1914. Plaintiff testified that he never saw this resolution and claimed for that reason he was not bound by it. The court correctly instructed the jury that if plaintiff was fully apprised of its terms from any source he would have no right to assume to remain as an employee of the company; but in view of his position “that he did not have any such knowledge as that,” which the court thought there was testimony to support, the question was left to the jury with the instruction that “he must sustain that contention by a fair weight of the evidence.”

It is not contended that the board ever ratified Davis’ claimed continuance of plaintiff’s employment after the 20 days, but his theory apparently is that under the paper served upon him by Clark, by which he was entitled to be governed in the absence of knowledge to the contrary, Davis had authority to continue him at work indefinitely if his report was not made. He testified that Davis had spoken to him about the resolution, and the 20-days feature, and a report being gotten out in that time, and said:

“When that time came I went to Mr. Davis and I says, ‘Now this report isn’t finished or the examination isn’t finished.’ Of course it was due to be finished according to the resolution. But man can’t do .impossible things; and I said, ‘The 20 days are up; now if you want me to go home, I don’t care anything about staying any longer, any more than this report is the first job I ever got at I didn’t finish up. I don’t like to leave things in this shape.’ ‘Well,’ he said, T don’t know; that was the resolution of the board, but I think your work ought to be rounded out. There ought to be some kind of a report made to let the stockholders know what we spent this money for, and I think that the stockholders will do justice to you, or the board will do justice to you, and I certainly shall use my influence to do the fair thing, but I cannot say further than that.’ ”

It would seem that this in itself was sufficient to put plaintiff, with his experience and knowledge of how corporate business should be conducted, on guard as to the authority of the agent with whom he was dealing. In a letter written Allen in October, before he was hired, he had emphasized the importance in investigating corporation matters of first knowing “that the record is straight and that everything done has the authority of the stockholders or directors, as the case may be, back of it.”

In Hurley v. Watson, 68 Mich. 531, the general principle is thus stated:

“If there is anything likely to put a reasonable business man upon his guard as to the authority of the agent, it is the duty of the third party to inquire how far the agent’s acts are in pursuance of the principal’s limitation.”

It was shown without question that the minutes of the directors’ meeting of February 24th, containing the resolution of which plaintiff admits he heard, was properly written up and officially signed in the book kept for such purpose, and was in the office among the books of the corporation where he worked and to which he had access. Asked about this he said, “I had access to the minutes of the meeting, so far as I know.” Asked, “And you didn’t have interest enough in it (the resolution) to open the book and see what was passed there relative to your employment?” he replied, “No, I didn’t go snooping around.”

Even conceding that, under the generally recognized implied powers of the president and general manager of a corporation to obligate it in the transaction of its usual and ordinary business arising in the course of its conduct, Davis had authority to hire an expert accountant to conduct a special audit of the financial affairs of this telephone company to the extent and at the expense claimed here, his powers in that particular were ended by this resolution. Not only must any important transaction of a corporation out of the usual course of its ordinary business be authorized by the board of directors, but the president as ministerial officer or agent of a corporation has no implied power to obligate it by any act or contract which in effect overrules or revokes action taken by its board of directors in relation to the same matter. 10 Cyc. p. 909.

It is true as noted by the trial court, the testimony of Davis and plaintiff is at variance in frequent particulars as to just how and to what extent direct knowledge of the resolution was brought home to plaintiff, but the conclusion is made unavoidable beyond issue of fact from his own testimony that he had ample notice of the resolution so far as it related to and fixed the limit of his employment before the 20 days expired. Davis testified that the next day after the resolution was passed plaintiff told him he had heard that a resolution had been introduced at that meeting discharging plaintiff and employing Robert Crable in his place, and Davis then told him what had taken place, saying:

"I told him that a resolution had been passed whereby he should close his work in 20 working days following February 24th and that he was to submit a report at the end of that time. Mr. Humphrey said it having been conveyed to him in some way that Mr. Crable was to take his place; and I told him that Mr. Crable had been employed to assist him by the resolution.”

And that he had a conversation with him later in which the matter of a report was discussed, and he then told him if he stayed beyond the 20 days it would be on his own responsibility as the board of directors had taken the matter out of Davis’ hands and left him no option. Concededly Davis’ testimony is only conclusive against plaintiff to the extent he admits the facts, but he was asked and answered in relation to this during his cross-examination, as follows:

"Within a few days after the 24th of February, 1914, Mr. Davis informed you that the board of directors of this company had fixed the date after which you were not to be employed, at 20 days after the date of that meeting. Didn’t he tell you so?
“A. Sometime within that time; sometime a few days afterward he.told me of the action. * * *
“Q. With referenee to the notification — your notification of the resolution which has been introduced here, which is said to have been passed on February 24th, you heard what Mr. Davis said in regard to that, as to whether or not you were notified of it the next day?
“A. Yes.
“Q. Was that true?
“A. I don’t think it was; no. I would say no because I — my observation is about that, that it was two or three days later. I don’t care, I had just as soon it would be the next day as not, but I don’t think it was. I don’t care what day it was.”

Recalled later in rebuttal plaintiff was examined by his counsel in relation to the paper Clark had handed him, of which he stated he never said a, word to Clark' nor told Davis he had it until just before he left, which he then told Davis he “had concluded to show him,” which he did, and Davis “brustled up” and denied its truth. After he had apparently finished his testimony in that connection, his examination in the case concluded:

“I ask you finally whether Mr. Davis ever notified you that you must quit within 20 days?
“A. No, sir, he—
“Q. Explain it if there is something you want to say?
“A. All right. He notified me that I must quit. He told me. of the action taken by the board of directors at a meeting requiring my completion and requiring my report, a written report in a certain'time, and that was 20 days from a certain date, the date of the resolution, but it was, as I have already testified here, that at the end of the 20-day period I went to Mr. Davis and I said to him, The demand to finish a report — make an examination and make a written report, I couldn’t comply with it because I haven’t got the information to make it from; I haven't concluded.’ And he also told me in that conversation about getting Mr. Crable to assist me in the work.”

Re-cross-examination by defendant’s counsel:

“You don’t claim now to change any testimony given yesterday, do you, Mr. Humphrey?
“A. No, sir, not a word of it.
“Mr. Henry: That is all.
“A. That is, unless it is an accidental word sometimes, but not the substance of my testimony.”

Whether this concluding testimony on rebuttal was intended to relate to the time when plaintiff quit or prior interviews, it does not change the material substance of his former testimony, which clearly shows he had early notice of the resolution and its import from the president of the company, who fairly informed him that his employment beyond the 20 days was made by that resolution a matter for the board, which he thought would do justice, etc., concluding, however, with the warning, “but I cannot say further than that.”

Plaintiff’s own testimony leaves no issue for the jury on that branch of the case.

The judgment therefore is reversed, with costs to defendant, and a new trial granted.

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


author: Moore, J.

text:
    RANIAK v. POKORNY.
    Fraud — Equity—Finding of Court.
    On a bill for equitable relief alleging fraud, tbe finding of tbe court below that no fraud was shown, held, supported by tbe record.
    Appeal from Wayne; Wiest, J., presiding.
    Submitted October 22, 1918.
    (Docket No. 101.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Bill by George Raniak and another against Edward Pokorny and others to quiet title to land, to set aside certain deeds as fraudulent and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Charles C. Stewart, for plaintiffs.

      Edward Pokorny, in pro. per.

      Moloney & Mendelsohn, in pro. per. and for defendant Mynell.
   Moore, J.

This case has been here before upon a motion to dismiss. Raniak v. Pokorny, 198 Mich. 567. A reading of the opinion then handed down will make a long statement of facts unnecessary at this time. After the case was sent back it was tried in open court upon the merits. The trial judge filed a long written opinion in which he said:

“The nature of the charges made in the bill against officers of the court, caused the court to pay most careful attention to the testimony given at the hearing, because if these attorneys are guilty they are a disgrace to the bar and to the community in which they live.
“At the close of the hearing, the court announced that no fraud had been shown, but counsel for plaintiffs, desiring an opportunity, to submit a brief, time in which to do so was granted, and such brief has been given consideration, but leads me to no conclusion different from that announced at the close of the hearing.”

The decisive questions are purely questions of fact and it would profit no one to set them out in detail here. A careful examination of the voluminous record and of the briefs of counsel convinces us that the decree of the lower court should not be disturbed.

It is affirmed, with costs to defendants.

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


text:
    BURKHARD v. O’BRIEN.
    1. Appeal and Error — Inconsistent Claims — Questions Open to Review.
    In a suit to quiet title, defendant’s claim in his cross-bill “that he has a. good, valid, and legal claim,” praying “that plaintiff’s bill be dismissed, and that an order and decree be entered confirming defendant’s title, and decreeing that plaintiff has no right, title, or interest therein,” is inconsistent' with his claim on appeal that plaintiff’s only remedy is ejectment.
    2. Adverse Possession — Evidence—Sufficiency.
    Evidence held, insufficient to establish title in defendant by adverse possession.
    Appeal from Berrien; Bridgman, J.
    Submitted October 16, 1918.
    (Docket No. 65.)
    Decided December 27, 1918.
    Bill by Frank J. Burkhard against Michael O’Brien to quiet title to land. Defendant filed a cross-bill asking affirmative relief. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Rolland E. Barr, for plaintiff.

      Wübur N. Burns (O. W. Coolidge, of counsel), for defendant.
   Moore, J.

The bill of complaint in this case was filed to quiet title to lots 1 and 2 in Fulton’s addition to the village of Buchanan. The plat of said addition was executed on November 10, 1866, and covers lots numbered from 1 to 58 inclusive. It was properly recorded. The record title to lots 1 and 2 is in the plaintiff.

The defendant, Michael O’Brien, answered fully the averments of the bill of complaint, and asserted title in defendant by adverse possession. The answer ends as follows:

“Answering the 13th and 14th paragraphs of the plaintiff’s bill of complaint, defendant says that he has a good valid and legal claim and that he is entitled to said premises free and clear from any claims or pretended claims of the plaintiff and therefore the defendant asks the benefit of a cross-bill and prays that the plaintiff’s bill of complaint be dismissed and that an order and decree be entered in this cause confirming the said defendant’s title to lots 1 and 2 and decreeing that the said plaintiff has no right, title or interest therein.”

The case was tried upon its merits in open court. From a decree in favor of the plaintiff the case is brought here by appeal.

Counsel contend that under the facts “disclosed by the record a bill to quiet title cannot be maintained and that an action of ejectment is the only remedy. Counsel for the appellee says this contention was not mentioned before the trial court.’ An examination of the record does not show it was, indeed the prayer of the defendant’s answer asking for affirmative relief is inconsistent with the claim.

The only remaining question requiring consideration is, Did defendant show title by adverse possession? The doctrine of title by adverse possession has been before this court many times. Some of the cases are Yelverton v. Steele, 40 Mich. 541; Paldi v. Paldi, 95 Mich. 410, and Simons v. McCormick, 202 Mich. 485. The testimony offered in behalf of the defendant, especially that of his tenant, did not show such actual hostile and continued possession as is required to establish title by adverse possession.

The decree of the lower court is affirmed, with costs in favor of the plaintiff.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    GREISSING v. OAKLAND MOTOR CO.
    1. Sales — Acceptance—Right op Action — Fraud—Damages.
    A purchaser’s acceptance of an automobile by her attorney, to whom it was represented that the car was new, did not preclude her from recovering damages because it was a second-hand car and not new as represented.
    2..Trial — Argument op Counsel.
    In an action for damages for delivering to plaintiff a secondhand automobile in place of a new one purchased by her, it was reversible error for plaintiff’s counsel to read to the jury, in his closing argument, a newspaper story undertaking to explain how a worthless second-hand car could not only be made to look like new, but could be made temporarily to run like a new car.
    Error to Wayne; Hosmer, J.
    Submitted October 23, 1918.
    (Docket No. 15.)
    Decided December 27, 1918.
    Assumpsit by Adah V. Greissing against the Oakland Motor Company for breach of a contract for the exchange of automobiles. Judgment for plaintiff. De-fendant brings error.
    Reversed.

      Stevenson, Carpenter, Butzel & Bachus (William Strite McDowell and Rockwell T. Gust, of counsel), for appellant.

      Millis, Griffin, Seely & Streeter, for appellee.
   Moore, J.

The plaintiff in this case claims that on or about May 19, 1914, she entered into an agreement through the defendant’s agent to purchase a car from the defendant; that the purchase price was fixed at $2,450 and that she was to pay for the car by turning over to the defendant her Oldsmobile Limited at a valuation of $1,450, and the difference between these was to be paid in cash; that the contract was executed May 19, 1914; that with the car she was to get new cushion covers; that the car was to be a model 6-60, which was represented to her at the time by the defendant’s agent to be the latest 1914 Oakland Big Six. The plaintiff claimed she did not receive the car she ordered; that the car she received was not a new car and that it was not the latest 1914 Oakland Big Six; that she entered into negotiations both personally and through her attorney to have this model turned back to the defendant and to obtain what she claimed she contracted for; that as a result of these negotiations she received from the defendant a car known as a model 6-61; that she agreed to accept a car known as a model 6-61, in lieu of the previous model 6-60, which had been delivered to her, provided she was given a new car, and that immediately after the model 6-61 was delivered to the plaintiff she discovered the car was not only defective in many particulars but was a second-hand car, and not a new car; and that it was not the car which the defendant company promised to give her in exchange for model 6-60. She brought this suit against the defendant to recover damages for breach of contract by reason of her claim that the car model 6-61 was a defective second-hand car. The case was tried by a jury which returned a verdict in favor of the plaintiff in the sum of $2,783. A motion was made for a new trial. The trial judge required the plaintiff to remit $625.51 of the verdict and unless this was done ordered that a new trial be granted. Plaintiff remitted that amount. The defendant has brought the case here by writ of error.

Many of the assignments of error relate to the rulings of the court in the admission or rejection of testimony. We have examined these assignments and content ourselves with saying that none of them require a reversal of the case. Many assignments of error relate to the charge of the court. The defendant preferred no written requests. The trial judge apparently attempted in his charge to the jury to cover every phase of the case. After giving a charge that covers more than seven pages, of the printed record, he turned to counsel and said:

“Now, if there is anything I have not covered up to the present time I should be pleased as far as that is concerned to hear from counsel.
“Mr. Gust: T think on the question of damages as I told the jury, and I think your honor will agree with me, that they must deduct whatever those repairs increased the market value of the car.
“The Court: There is no doubt about that. Of course, gentlemen of the jury, you have the testimony that a second-hand car in the market was not worth more than $500. I am not prepared to say, gentlemen of the jury, that you are compelled to award exactly that sum, as you have heard the testimony that she expended $700 and odd dollars upon the car, and it was the opinion of that particular witness that that would not increase the value of the car more than $150. I cannot say, gentlemen of the jury, that you are absolutely bound by that testimony. She has had the car two years, I think, and run it from that time to this and where it is purely a matter of opinion in that regard I think you may find, taking all things into consideration, what value she got out of her car.
“Mr. Griffin: And also that we are entitled to 5% interest.
“The Court: She is entitled to 5% interest.
“Gentlemen, you may follow the officer.
“Mr. Gust: I would be entitled to an instruction as to Mrs. Greissing’s acceptance — as to her knowledge of the condition of the car; I don’t know whether your honor inadvertently overlooked that.
“The Court: You did not hand in any request.
“Mr. Gust: No, but I think we are entitled to an instruction on that — the acceptance by Mrs. Greissing and her knowledge of the condition of the car.
"The Court: With reference to that, I think not. I think not, because if they find with reference to that she was entitled to a new car, then I think that the section of the statute applies with reference to it, that she is not obliged to return the thing but may bring a suit upon it.
“Gentlemen, you may follow the officer.
“Mr. Gust: Note an exception to the court's refusal to charge as requested in the verbal request of counsel.”

When the trial judge thus addresses counsel, if they have any suggestions to make it becomes their duty to speak. Evidently counsel so thought for they at once made two suggestions to the court. As to the first the trial judge agreed with counsel and so instructed the jury. As to the second of these suggestions the trial judge declined to instruct the jury as requested orally by counsel. Was this error? The testimony offered on the part of the plaintiff was to the effect that she received the car through her attorney upon the assurance to him by defendant’s agent that it was a new car, and that this assurance was not true, that her acceptance of the car under these circumstances did not preclude he-r from recovering damages because the car was not as represented. We think the judge did not err in declining to charge the jury as requested.

Other assignments of error relate to the conduct of counsel. One of them was allowed, against the objection of counsel, to read in the course of his argument from a newspaper as follows:

“ ‘Sense and Nonsense’ — where two men were talking about buying second-hand cars — one man said to the other — ‘Don’t buy a second-hand car unless they let you try it at least a month.’ The other fellow said: ‘Why?’ ‘Well,’ he says, T will tell you. I wanted to buy a second-hand car the other day and I went down to a shop and I saw a beautiful limousine. They took it out and ran it and demonstrated it and we went one hundred miles or more and a beautiful car it was. It ran perfectly in every way. Then I paid out my good money, bought the car, took it home and wanted to go on a trip of 200 or 300 miles within a day or two and then I had my experience, so that to give it exact I will read just what the experience was.’
“Mr, Gust: I object to this.
“ ‘Along about three o’clock the next morning I called up the shop, got my car and started for our ride for a city some 300 miles distant. Everything was rosy. The car had every virtue, speed, power, flexibility. I congratulated myself on my good investment. _ Along about three o’clock, however, a slight knocking began to be heard. I stopped and raised the hood but could not locate the trouble. I started again but the noise began to increase, etc. (reading), and the power seemed to decrease, seemed to be sluggish on the hills, by five o’clock the noise that emanated from that engine was enough to wake the dead and she was. getting feebler every minute. Finally I pulled up in front of a garage and secured an attendant to diagnose the trouble. He poked about for about half an hour and finally said: “There is just one phrase to describe the trouble here. The car is fatally affected with senile debility. She has been a good boat in her day but she is just naturally worn out. She must have covered an immense mileage. Every part in the engine is badly worn. There is utter lack of coordination. It will cost you $400 or $500 to put her in condition to run. The man who sold her to you simply saturated her in oil. That is thick as molasses. There is two inches of stuff in the bottom of the crank case that tightened her up for one last effort; but at the same time it has so blocked her up thatT doubt if she will run over a few miles more.” ’
“Mr. Gust: Does that say anything about driving it two years afterwards?
“Mr. Griffin: Yes, it says something about spending $700 trying to run it. T spent $700 on that car,’ continued the speaker ‘but she never would go satisfactorily. Finally I sold her for a song and bought a new one.’ ”

And counsel said:

“So I say, gentlemen of the jury, Mr. Lee’s and Mr. Ennis’ description of the beautiful way that car ran when they brought it back the second time after they had fixed it reminds me of this story; so you cannot always tell when a man is on the stand and says that a car runs beautifully at a particular time and may have overhauled, unless you know what they have done to it; unless you know the actual condition of the mechanism of the car; unless you know all about the car, you cannot tell whether it- is a good car or not.”

If counsel had attempted to put the article in evidence it would clearly have been inadmissible.

The case was a hotly contested one between a corporation and a woman. The article undertook to explain how a worthless second-hand car’ could not only be made to look new but could be made temporarily to run like a new car. We think the conduct of counsel was reversible error. See Glassbrook v. Lansing Wheelbarrow Co., 177 Mich. 29; Morrison v. Carpenter, 179 Mich. 207; Wells v. Railroad Co., 184 Mich. 1; Mortensen v. Bradshaw, 188 Mich. 436.

The judgment is reversed and a new trial ordered, with costs to appellant.

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


text:
    CLARK v. DETROIT & MACKINAC RAILWAY CO.
    1. Waters and Watercourses — Flooding Land — Negligence — Question for Jury.
    In an action for damages to plaintiff's crops, conflicting testimony as to the adequacy of a ditch and culvert to take care of water flowing across plaintiff’s land, which defendant constructed to take the place of two culverts under its right of way, taken out by defendant, held, to present a question of fact .for the jury.

      See notes in 59 L. R. A. 892; 12 L. R. A. (N. S.) 267; 27 L. R. A. (N. S.) 168; 37 L. R. A. (N. S.) 976; 49 L. R. A. (N. S.) 415.

      2. Appeal and Error — Refreshing Memory — Improper Use of Memorandum — Cubing Error.
    Where plaintiff in testifying made use of a memorandum to refresh his recollection, upon the theory that he helped prepare it, and it later appeared that it was not the paper he helped prepare, withdrawal by the court of all testimony based upon said paper, held, not to leave the jury in doubt as to its duty in relation to such testimony.
    3. Waters and Watercourses — Damages—Conjecture—Evidence.
    Verdict for $1,236.67 for plaintiff, where the question of' damages was fairly submitted to the jury, and there was abundance of evidence to justify the verdict, held, not objectionable as conjectural and speculative.
    4. Appeal and Error — New Trial — Reasons for Refusal — Review.
    Failure of the trial judge to ñle a fuller statement of his reasons for overruling the motion for a new trial, held, not reversible error; review of showing made for new trial disclosing that right conclusion was reached.
    Error to Bay; Mayne, J., presiding.
    Submitted October 8, 1918.
    (Docket No. 9.)
    Decided December 27, 1918.
    Case by George Clark against the Detroit & Mackinac Railway Company for damages to plaintiff’s crops by flooding. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, & Henry (James McNamara, of counsel), for appellant.

      Gilbert W. Hand, and W. A. Collins, for appellee.
   Moore, J.

Plaintiff brought this suit against the defendant for damages to his interests in certain crops on what is known as the Pelkey farm of 200 acres. The main line of the Detroit & Mackinac Railway Company was built across the farm, which is and always has been low and comparatively level land. In a -state of nature there was a creek running in a northeasterly course and then in a northwesterly course across this farm. The defendant in order to take care of the water which flowed through this creek constructed at the time the railroad was built two culverts under the railroad track. These culverts were about 800 feet apart. About 1909 the defendant took out these culverts and dug a ditch along the west side of its track to carry off the water. It also put in a new culvert in the place of the northerly one. It is the claim of the plaintiff that the northerly culvert which was built of wood was at least three by five feet in size, and that it was replaced by an iron pipe only two feet in diameter, and that as a result of these changes his crops were greatly damaged because of an excess of water.

It is the claim of the defendant that after the changes were made the water would flow away from the crops of plaintiff as freely as before, and that if they suffered from too much water it was because the seasons were unusually wet and because the plaintiff did not keep his own ditches in condition so the water could escape.

The case was bitterly contested. The plaintiff swore in his behalf 9 witnesses besides himself, one of whom was an engineer, the others of whom were farmers and all of whom testified to their personal observations of the farm. The defendant swore on its behalf 14 witnesses, many of whom were engineers who testified as to measurements made by them. The defendant requested a directed verdict. This was refused. The plaintiff sued to recover $8,630. The jury returned a verdict in his favor for $1,236.67. A motion was made for a new trial, counsel claiming many errors were committed and requested the court in case it denied the motion to file his reasons in writing for so doing. The motion was overruled, the judge saying:

“In this cause the motion for a new trial is hereby denied. Under the testimony it is a question of fact whether the ditch along the defendant’s right of way furnished as free an outlet for the water as did culvert No. 2 prior to its being closed by defendant.”

A motion was made for further findings and the filing of additional reasons. This motion was overruled. The judge expressed himself as follows:

“In this cause, the court having stated the reasons for denying defendant’s motion for a new trial as far as deemed necessary for a correct understanding, under the pleadings and evidence, of the action of the court, the request for additional reasons is hereby denied, and the reasons assigned in the original order denying the motion for a new trial are hereby repeated.”

Exceptions were duly taken and the case is brought here by writ of error.

As there are upwards of 50 assignments of error, it is manifestly impossible to discuss each of them without making this opinion quite too long. It is urged strongly that the court should have directed a verdict. We quote from the brief of counsel:

“There is a decided distinction between expert testimony as to facts which can be determined to a moral certainty, and expert evidence incapable of definite determination. To illustrate: A physician may testify as an expert concerning the physical condition of a person, which goes no further than his opinion based upon his knowledge, education, experience and skill. While on the other hand a carpenter and joiner, or a civil engineer can testify to measurements and conditions which are not opinions, but are the results of correct calculations. * * *
“There was abundant evidence in the case that the land was not reasonably drained. There was no evidence in the case from start to finish indicating that the draining facilities on defendant’s right of way did not carry off reasonably all water that came to such right of way from the old creek which meandered over the land. Why conjecture and speculate respecting the inefficiency of the drains on the defendant’s right of way.
“For the sake of argument, if we should assume that there was evidence in the case that the right of way drain was insufficient, where is the evidence indicating to what extent it was inefficient? Nor was there evidence that lack of drainage on the land didn’t contribute to the damages.
“If by lack of proper ditches on the land nine-tenths of the damage accrued, and by lack of proper outlet on the right of way one-tenth of the damage accrued, how could a jury reasonably and fairly determine such facts on the evidence submitted?”

We think this contention overlooks the respective duties of the trial judge and the jury. While the defendant claimed the ditch built when the southerly culvert was filled was adequate to carry away the water, there was testimony that near the middle of the ditch it was 1.4 feet higher than at the ends and that it would not carry away the water as had been done previously. There was also testimony that the northerly culvert as reconstructed had only about one-fourth of the capacity of the old culvert and did not relieve the land of water as was done under the old conditions. The testimony was in sharp conflict and presented questions of fact for the jury.

Mr. Clark made use of a memorandum called Exhibit A. Mr. Clark used this paper to refresh his recollection for a time without objection, upon the theory that he helped prepare it. Later it turned out it was not the paper he helped prepare, and a motion was made in relation to its use. The trial judge charged the jury as to it in part:

“Considerable has been said concerning the testimony of plaintiff. When he appeared upon the witness stand in the first instance Mr. Clark made use of a paper from which to refresh his recollection, his memory. His statement and the use of this paper presented a question that later was referred to the court, presented a legal question, and the court admitted it or at least did not reject it, but allowed it to go to the jury. Later Mr. Clark came upon the witness stand and testified concerning this paper. Under his explanations made on ,his second appearance as a witness it became clearly apparent that the paper or memorandum from which he refreshed his recollection on his previous appearance was not such a paper as he was entitled to make use of, and all his testimony that you find in this case based upon that paper, that memorandum in writing, is withdrawn from your consideration. It was based largely upon statements and information made by one Pelkey, former owner of the premises who is since deceased. For that and other reasons the paper was not one with which any witness would be permitted to refresh his recollection. Later Mr. Clark appeared and gave testimony which he claimed to be on his own independent knowledge. He said he had reflected, thought the matter over, and that he remembered certain things independent of the former memorandum. Such testimony of Mr. Clark’s as you find based upon his knowledge, upon his. own memory and recollection, you are entitled to receive, and to give it such weight as you deem it worth. Any testimony of Mr. Clark or any other witness which is based upon statements made by Mr. Pelkey during his lifetime are withdrawn from your consideration * * * and all testimony based upon it, all testimony of any witness not within his own knowledge based on the testimony of Mr. Pelkey is withdrawn.
“The statements made by Mr. Clark and by other witnesses as upon their knowledge are to. be received by you and given such weight as you deem it worthy of receiving; you are to accept or reject it as you consider it worthy of belief; if,, however, in the first instance he stated his inability to testify as to those facts excepting as he refreshed his memory you should closely scan his testimony when he later appears on the witness stand and testified as to his own knowledge; that is one of the things you should consider as causing you to question his actual knowledge.
“That is one of the things in the case that tends to raise the question of the credibility of a witness, and that he has wilfully possibly testified falsely, and as to whether he actually did know the facts concerning which he testified upon his second appearance. Now that is an issue in this case, and as I say, you have a right to believe his second statements or disbelieve them, as you consider he was actually possessed of the knowledge or not concerning which he testified.”

The trial judge charged the jury more in detail in relation to this phase of the case and we do not think the jury was in doubt as to its duty in relation to this testimony.

The plaintiff’s case' did not depend entirely upon the testimony of Mr. Clark, but was established in its essentials by the testimony of other witnesses if the jury believed them.

The jury was instructed:

“All the duty that rested upon the defendant Fas to provide a means of escape for the water equal to the natural flow from these premises, and the damages if any must be upon the theory that they impounded or held back the water, and that the plaintiff suffered damages in excess of what he would have sustained by the overflowing of his lands if the water had not been impounded and held back. If there was too much water on the premises in question plaintiff would have suffered something to some extent. Now in what proportion has he suffered more than he would have suffered had culvert No. 2 been left as it was, he is entitled to recover damages. It is the excess damages that he has sustained or lost for which this action is brought. The water was there anyway, and the question is, Was it held there longer by reason of the act of defendant than it would have been otherwise? In other words, Did the closing of this culvert and the opening up of this ditch keep the water longer on plaintiff's premises than it would have been detained there had the change not been made? If it did then defendant is liable for the damages which actually occurred to plaintiff on the west side of the railroad by reason of the changes which they made. The damages allowed could not exceed the value of the crops less the expense of harvesting them and marketing them. * * *
“Plaintiff can only recover for the money which he would have had after he had harvested his crops and paid all the expenses of taking care of the marketing. The net profits are all that go to make up the damages, provided you find plaintiff entitled to recover.
“That covers the years 1910, 1911, and 1914 on the west side.
“The same law applies to the premises lying east of the right of way, but there is only one year there on the east side, and on the west side he was a tenant and only entitled to one-half the crops, only one-half of the entire crops; Mr. Pelkey owned one-half of the crops, and in this action it is not proper to recover anything for the Pelkey interest but merely the interest of the plaintiff himself.
“The plaintiff did own the land on the east side, and is entitled to recover for the entire loss sustained; if you find there is a liability on the part of the defendant the same law applies.”

We have quoted only a portion of the charge upon this phase of the case, but the jury were told over and over again that unless the changes made damaged plaintiff’s crops he could not recover, that if they did he could recover. The deciding questions were questions of fact about which the testimony was in conflict. These questions were fairly submitted.

It is said that upon the question of damages the testimony offered on the part of the plaintiff is so conjectural and speculative as not to offer a basis for an intelligent verdict, counsel citing Patrick v. Howard, 47 Mich. 40, and People v. Thompson, 122 Mich. 480. An examination of the opinions in the cases cited show them easily distinguishable from the instant case. The witnesses in this case testified to the capacity of the land to grow crops before the change, and to its diminished capacity after the change, going into details as to what they had observed. The case is more like Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, and Witheral v. Booming Co., 68 Mich. 48. There was abundance of evidence, if believed, to justify the verdict.

One other question calls for discussion, and that is the claim that the failure of the trial judge to file a fuller statement of his reasons for overruling the motion for a new trial is reversible error. A similar situation is disclosed in the case of Clark v. Telephone Co., 196 Mich. 168. In that case it was held the moving party should not lose the right to assign error because the trial judge failed to file his reasons in writing. In that case it was held upon the showing made that an order granting a new trial should have been granted, and the case was reversed. In this case we have examined with care the showing made for a new trial and agree with the trial judge that none should have been granted.

Judgment is affirmed, with costs to the plaintiff.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.