author: Grant, J.

text:
    PIKES PEAK CO. v. PFUNTNER.
    1. Corporations — Officers and Directors — Fiduciary Relations — Principal and Agent — Acquisition of Adverse Interest by Fiduciary.
    One occupying a confidential and fiduciary relation to another is held to the utmost fairness and honesty in dealing with the party to whom he stands in that relation.
    2. Same — Landlord and Tenant — Trust Relation of Corporate Officers.
    An officer, director, and stockholder of a corporation may not acquire, without its knowledge and consent, a lease of lands which it occupies as a tenant and desires to continue to lease, so as to deprive the tenant of the expectancy of renewing the lease, which naturally flows from the relation.
    3. Same.
    A lease so acquired adversely to the interest of the beneficiary by its agent or officer is held in trust for the corporation or its assignee.

      Appeal from Wayne; Rohnert, J.
    Submitted June 16, 1909.
    (Docket No. 109.)
    Decided November 5, 1909.
    Bill by the Pikes Peak Company against Charles H. Pfuntner and Jacob Beller to establish an interest' in a lease. From a decree for complainant, defendant Pfuntner appeals.
    Affirmed.

      Herbert C. Munro, for complainant.

      May & Dingeman, for appellant.
    The defendant Beller on November 1, 1901, leased to one Ingersoll a parcel of land situated near the Belle Isle bridge in the city of Detroit for 10 years at an annual rental of $1,500. The lease was assigned to the Detroit Amusement Company. That company constructed a roller coaster and other amusement appliances, and operated them until September, 1906, when the roller coaster was destroyed by fire. The sole property of the company were the lease and the amusement appliances on the land. Defendant Pfuntner was a large stockholder, and from 1904 to October 15, 1906, was its general manager, secretary, and treasurer, a member of its board of directors, and a member of the executive committee, which was composed of three of the directors. He paid the rent to Mr. Beller for the company. The company had no funds with which to rebuild, and soon after was declared bankrupt. Its property, consisting almost entirely of its lease, was sold by the receiver- in bankruptcy and conveyed to George Barbier. In the property so sold and assigned was the following:
    “ One lease dated November 1, 1901, executed by Jacob Beller, as lessor, to Le Grand Ingersoll, as lessee, and assigned to Detroit Amusement Company, which lease expires November 1, 1911, and is recorded in the office of register of deeds for Wayne county in Liber 652 of Deeds at page 561. Right to extend said lease for five years from November 1, 1911, at $175.00 per month, which extension was taken by Charles H. Pfuntner, when an office'r of this corporation and for the benefit of said corporation by lease dated October 8, 1906, executed by Jacob Beller to Charles H. Pfuntner and recorded July 12, 1907, in the office of register of deeds for Wayne county in Liber 673 of Deeds at page 423; and all interests of said Detroit Amusement Company in said lease. The two leases above described cover land in Detroit, Michigan, described as lots 1, 2 and 3, Moses W. Field’s subdivision of private claim 16.”
    Barbier assigned this lease to complainant, who is still occupying the premises and paying rent. The rent has been paid by the original lessee and his assigns.
    On the 8th day of October, 1906, while Pfuntner was an officer and manager of the company, as above stated, he obtained from Mr. Beller a lease of the premises for five years from November 1, 1911; that being the time at which the first lease would expire. Pfuntner did not state to his employer or any of its officers his intention to lease the property at the expiration of the lease then in existence, and none of them were aware of his purpose. On the contrary, he intentionally concealed it from them. After obtaining this lease, Pfuntner sold out all his stock in the company. Upon learning that Pfuntner had obtained this lease, the directors held a meeting and passed a resolution reciting that Pfuntner had obtained the lease, declaring that he was at the time an agent of the company and acted in its behalf, and—
    “ Now, therefore, be it resolved that the Detroit Amusement Company declares that the said Charles H. Pfuntner, in the procuring of said lease, was the agent of this company, and acted in behalf of this company; that this company hereby ratifies and confirms the actions of its said agent, Charles H. Pfuntner, in obtaining a lease of said premises, and elects to treat and consider the said lease so obtained as the property of the Detroit Amusement Company, to the same extent as though the name of the Detroit Amusement Company were contained in said lease as lessee.
    ‘ ‘And be it further resolved that a copy of this resolution be served upon Jacob Beller and Charles H. Pfuntner.”

      The complainant then filed this bill, praying that said lease be held to be the property of the complainant, as assignee of the Detroit Amusement Company, to the same extent as though named in the lease as lessee, and that the defendant be decreed to hold his lease as trustee for the company. The case was heard upon pleadings and proofs taken in open court, and decree entered for complainant. The decree also required complainant to give bond in the sum of 110,000 to Pfuntner as a guaranty against liability to Mr. Beller.
   Grant, J.

(after stating the facts). The principles of law controlling this case are too well settled, both by authority and reason, to require much discussion. One occupying a confidential and fiduciary relation to another is held to the utmost fairness and honesty in dealing with the party to whom he stands in that relation. Torrey v. Cement Co., ante, 348 (122 N. W. 614).

While it is true the tenant, in the absence of express agreement, has no enforceable right to renewal of the lease, yet it is natural that, other things being equal, the landlord would lease to his present tenant, and that the tenant would prefer to renew the lease. This expectancy is recognized by the law as a valuable asset belonging to the tenant. The law does not permit an agent, officer, or trusted employe to take it from the tenant to whom he owes the duty to protect and advance his interests. Robinson v. Jewett, 116 N. Y. 40 (22 N. E. 224), and the many cases cited; Grumley v. Webb, 44 Mo. 444 (100 Am. Dec. 304); Keech v. Sanford, 1 White & T. Lead. Cas. 62, note; Davis v. Hamlin, 108 Ill. 39 (48 Am. Rep. 541).

This is because of the wholesome rule that—

“Whenever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated. Keech v. Sanford, supra. Except with the full knowledge and consent of his principal, an agent authorized to buy for his principal cannot buy of himself. An agent authorized to sell cannot sell to himself. An agent authorized to buy or sell for his principal cannot buy or sell for himself; nor can an agent take advantage of the knowledge acquired of his principal’s business to make profit for himself at his principal’s expense. The same rule applies to leases and other similar transactions.” Mechem’s Outlines of Agency, § 148.

The same principle runs through the following cases in this court: People v. Township Board of Overyssel, 11 Mich. 222; Kimball v. Ranney, 122 Mich. 160 (80 N. W. 992, 46 L. R. A. 403, 80 Am. St. Rep. 548).

It is no defense for defendant Pfuntner that the company for which he was acting was involved in financial difficulties and was adjudicated a bankrupt. ■ This expectancy belonged, not only to the tenant, but to those to whom the lease might be assigned. The original lessee and his assignees have continued to pay the rent, and the complainant, as we infer from the record, has rebuilt the structure at considerable expense. Pfuntner did not obtain this lease with the knowledge or consent of the party for which he was the agent, manager, and a director. It follows that he holds the lease in trust for complainant.

The decree is affirmed, with costs.

Blair, C. J., and Montgomery, MoAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J. Hooker, J.

license: Public Domain

text:
    DOLPH v. NORTON.
    1. Constitutional Law — Trial by Jury — Jurisdiction of Equity — Quieting Title.
    Under the Constitution of 1850, the legal title to lands cannot be litigated in equity, where the defendant is in possession.
    2. Taxation — Bill to Quiet Title — Notice to Owners — Form.
    The notice served by a purchaser of a tax title to terminate the right of redemption must, to conform to the statute, be addressed to all parties in interest, and permit payment to the register in chancery, although the purchase may have been made prior to the amendment so requiring. Act No. 236, Pub. Acts 1903.
    '3. Courts — Stare Decisis — Supreme Court — Number of Justices Participating.
    A decision by four justices of the Supreme Court, in a case heard by seven, establishes the law. Weller v. WheeloeTc, 155 Mich. 698, followed.
    Appeal from Ontonagon; Cooper, J.
    Submitted June 21, 1909.
    (Docket No. 73.)
    Decided November 5, 1909.
    Bill by Norman J. Dolph against Dennis J. Norton to quiet title to land held under a tax deed. Defendant filed aü answer in the nature of a cross-bill to redeem from said sale. From a decree for defendant, complainant appeals.
    Affirmed.

      Hill & Smith {D. H. Ball, of counsel), for complainant.

      Adams & Jones (M. J. Sherwood, of counsel), for defendant.

      Henry M. Gampbell, amicus curios.

    The descriptions of the land involved in this suit are the S. E. i of S. W. i, the E. £ of S. E. i, and S. W. i of S. E. J, of- section 23, in town 48 N., of range 40 W. Complainant is grantee of one John McRae, who obtained a deed for these lands from the auditor general, which deed was dated December 6, 1901, and purported to convey said lands for taxes levied thereon for the years 1896 and 1897, and conveyed the same to complainant December 21, 1905. • Defendant is grantee in the last recorded deed in the regular chain of title of all of said lands except certain two acres thereof. As to this two acres, defendant sold and conveyed it to. the township of McMillan May 13, 1897, by deed recorded June 14, 1898. The said McRae caused a notice to be served on the defendant on July 18,1903, proof of service of which notice was returned and filed in Ontonagon county July 21, 1903. A copy of said notice is here set out:
    “Notice.
    “ To the owner or owners of the land herein described, and to the mortgagee or mortgagees named in all undischarged recorded mortgages against said land or any assignee thereof of record, and to Dennis J. Norton.
    “Take notice that sale has been lawfully made of the following described land, situated in the county of Ontonagon, State of Michigan, for unpaid taxes thereon, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice, upon payment to the undersigned, of all sums paid upon such purchase, together with one hundred per cent, additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description, without other additional costs or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land, the description of which is as follows:
    “ S. E. i of S. W. i, E. i of S. E. i, S. W. ¿ of S, E. ± of Sec. 23, town 48, range 40. Amount paid, $39.82, tax for years 1896 and 1897.
    “ Yours respectfully,
    “John McRae.
    ‘ ‘ Place of business: Ewen, Michigan.
    “Dated July 14, A. D. 1903.”

      This notice was not served on the township. The bill of complaint charges that defendant did not redeem the land or any of it, that said McRae’s title thereto became complete and absolute, but that said defendant,—
    “Disregarding the rights of your orator in the matter, and conspiring wrongfully to injure your orator by asserting title to all of said land except said two acres, claims to be the owner thereof, and pretends that your orator has no title thereto, which claim and pretense constitute a cloud upon the title of your orator to his great damage, to wit, upwards of $500.”
    The relief prayed is that all right and title of said defendant to said lands may be decreed to be barred by the said conveyance to McRae and the service of said notice, and that complainant may be decreed to have a perfect and indefeasible title to the said premises. The bill does not charge that the land is occupied, or that it is unoccupied.
    Defendant in his answer asserts ownership in fee simple to the lands except the portion belonging to the said township, and that the said tax titles are still subject to redemption by defendant, for the reason that the notice served upon him is invalid, and not in compliance with the governing law, and that no legal notice was ever served upon him or upon any. officer of said township. He tenders and offers to pay to complainant any and all sums of money which the court shall find due to him to redeem said lands from said tax sales. Affirmative relief is asked, viz., that defendant may redeem the lands, and that complainant be decreed to surrender his said tax titles. In the answer no reference is made to the occupancy of the land. There is no averment that defendant, or any one else, is in actual possession thereof.
    In the answer to the cross-bill it is admitted that no notice was ever served upon the township of McMillan, and it is alleged that an arrangement and settlement satisfactory to complainant and the officials of said township concerning said tax titles has been made. It is also admitted that defendant Norton became owner of all the land December 24, 1888, and conveyed the two-acre parcel to said township May 13, 1897, by warranty deed.
    The rule (Supreme Court Rule 35 [136 Mich, xxxvii]) which requires the printed record to show the dates of filing of pleadings in causes has not been complied with.
    It is understood, however, that the said conveyance of a portion of the premises to the township of McMillan was made by complainant after the filing of the original bill in this cause and prior to the date of various amendments to the said bill. The court below found that defendant was, when the bill was filed, in actual possession of the lands. A decree was entered dismissing the original bill, and, in accordance with the prayer of the cross-bill, quieting the title of defendant; defendant being required to pay $84.64 to complainant. The principal contentions presented, stated from the view point of defendant, are three:

      First. That, if the defendant was in actual possession of the land, the bill must be dismissed.

      Second. That the notice did not comply with the law (Act No. 236, Pub. Acts 1903), for which reason it was ineffective.

      Third. That because the township of McMillan was not served with a notice the required notice was not given.
   Ostrander, J.

(after stating the. facts). It has been held not to be competent for the legislature to provide for the trial of the legal title to land in equity where the defendant is in possession of the land, at least not without providing for a trial by jury. Tabor v. Cook, 15 Mich. 322. And where a bill to quiet title charged that the land was occupied by defendant, and prior to the amendment made to 1 Oomp. Laws, § 448, in 1887, where it charged that the premises were wild and unoccupied lands, demurrers to the bills were sustained. Tabor v. Cook, supra; Jenkins v. Bacon, 30 Mich. 154. The fact of defendant’s occupancy is not put in issue by the pleadings. Nevertheless the fact is jurisdictional, since, if he was in possession when the bill was filed, the suit cannot be maintained. The fact is disputed, but it is found by the court below that defendant was in actual possession of the premises, and that complainant should have brought ej ectment. For this reason the original bill was dismissed, with costs to defendant. But complainant is appealing from a decree, which, besides dismissing his bill, denies his right to the land, requires him to convey his tax titles, and quiets the title in defendant. There can be no doubt of his right to do so, and we do not understand it is disputed.

3, 3. But for considerations to be presently stated, we might rest decision and affirmance of the decree below upon the fact that no notice was given to the township and upon the authority of White v. Shaw, 150 Mich. 370, 373 (114 N. W. 310). Counsel seek to distinguish the cases, but the following language, employed in deciding that case, is equally applicable here:

“ The tax title holder cannot proceed by * piecemeal ’ to cut off the right of redemption of each part owner. Until he has complied with the statute as to all, the right of redemption remains to all.”

It will be perceived that the title asserted by complainant was acquired by his grantor before the amendments were made to the tax law by Act No. 336, Pub. Acts, 1903, which took effect June 18, 1903, and that the notice which was served upon defendant in July, 1903, did not conform to the law as amended. It was held in the majority opinion filed in Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609), that this was’ an ineffective notice. See Curry v. Backus, 156 Mich. 342 (120 N. W. 796). It is said in behalf of complainant that three of the four justices who participated in the decision of Weller v. Wheelock later, in the opinion filed in the case of Boughner v. Bay City, 156 Mich. 193 (120 N. W. 597), held that the decision in the former case is not to be treated as settling the law. I do not myself see any conflict between the rules announced in these cases. The statement of the justice who wrote the opinion, that, had the opinion in Weller v. Wheelock received the approval of five judges, it “ might be held to have established such rule,” and the suggestion that when, for any reason, but seven justices of this court take part in a decision and but four of them are of one opinion, the decision, however binding upon the parties to the particular case, is not to be regarded as establishing the law, is regarded by counsel as an invitation to treat the point decided in Weller v. Wheelock as still open. It is strenuously urged that the court in that case reached a wrong conclusion. The statute (Act No. 250, Pub. Acts 1903) provides that five judges shall constitute a quorum for the hearing of cases and the transaction of business, and that, whenever there shall be filed a dissenting opinion in a case heard by a quorum of five judges only, the parties therein shall have a right to a rehearing before the entire bench upon making a proper application therefor. No such case has arisen, because it has been the practice of the court, in cases submitted to five justices, who were unable to agree, to itself order a reargument of the case if it was originally submitted on oral argument, and to submit the case to the entire bench if it was originally received on briefs. The practice has resulted in expediting the business of the court and in securing, what is desirable, the concurring opinion of a majority of the judges. But it has occurred that a vacancy existed in the office of justice of this court, or that one of the justices was disqualified to take part in the decision of a case. All of the justices, there being at the time but seven, participated in the decision of Weller v. Wheelock. I find no good ground for declaring that in such a case the decision of a majority shall not be received as stare decisis, as establishing the law, not only for the particular case but for other like cases. There remains, of course, the right and the duty to overrule decisions found to be erroneous.

It is apparent from some of the briefs which have been filed, that there exists a misapprehension concerning the scope and effect of the decision which is attacked. The court was called upon, as it is in the case at har, to give effect to a statute. It was said:

“It is suggested that this statute should not be construed as retrospective, but that it should only be held to have reference to titles acquired from the State after the statute took effect. * * * It is unquestionably broad enough to include, and we think it manifestly was intended to include, all notices required to be given after the statute took effect.”

There was involved no question of the duty of the tax title holder to give notice to any person not entitled to notice when his tax title was acquired. It is expressly stated:

“ It is not necessary in this case to determine whether, in so far as the amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective, in that it impaired the obligation of contracts. That question is not involved in this case. What we are here dealing with is the form of notice, and the requirement that it shall in form be directed to the owner or owners of any and all interests described and that it shall give notice of the right to make payment to the register in chancery of the county in which the lands lie.”

It is evident that the point received careful attention, and, this being so, I am not prepared to overrule the decision, although I did not at the time assent to it.

It follows that defendant is entitled to a reconveyance upon payment of the proper sum of money. As the decree provides for what defendant had the right to demand, it will not be reversed. Defendant will recover costs of this court.

Blair, C. J., and Grant, Montgomery, Moore, McAlvay, and Brooke, J J., concurred with Ostrander, J.

Hooker, J.

The complainant is the owner of the premises described in his bill as tax title purchaser under a deed issued by the auditor general prior to June 18, 1903. Notice was served and proof filed in accordance with the law in existence at that time, but it was served after the amendment of June 18, 1903 (Act No. 336, Pub. Acts 1903).

At the time of the assessment of the taxes for which the land was sold, defendant was owner of the entire description of land. After one year’s tax had become delinquent, but before the second year’s tax had become so, the defendant sold and conveyed two acres of the parcel to the township of McMillan. The tax notice covered the entire quarter section, and was not served on the township. After the commencement of this suit, the complainant conveyed the two acres to the township. The complainant filed the bill alleging that defendant claimed title to the premises except the two acres, and praying that his title be quieted. The bill was silent on the subjec of possession.

Defendant answered, alleging ownership and denying complainant’s ownership, and denying complainant’s right to any relief, and prays that defendant’s title be quieted. The answer claims the benefit of a cross-bill, and contains no allusion to the question of possession.

Proofs were taken in open court, and counsel for the defendant state that three questions were raised, viz.:

“ (1) That the defendant was in possession of the premises in controversy during all the time from his purchase of the lands until the trial of the cause.

“ (3) That the notice served upon defendant was not a valid notice under the tax laws of the State of Michigan.

(3) That no service of tax notice was ever made, or attempted to be made, upon the township of McMillan, which was the owner of a portion of the lands purchased at the tax sale, upon which appellant’s title is based.”

The learned circuit judge found that the defendant was in possession at -the time the bill was filed, and dismissed the complainant’s bill upon the ground that his remedy should have been ejectment. He also held that the notice was invalid, not being in accordance with the requirement of Act No. 142, Pub. Acts 1905. He did not pass upon the third question, but granted the relief prayed in defendant’s answer. The complainant has appealed.

It is the settled law of this State that a bill to quiet title brought by one not in possession against one who is, cannot take the place of an action of ejectment, where the only questions at stake are the legal title and legal right of possession. That seems to be the situation here, and, the question being raised upon the hearing (although not by the answer), it was proper to deny the complainant relief and dismiss his bill. I am of the opinion, however, that the notice was not open to the objection made, for the reasons stated in my opinion in the case of Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609). If, as contended by counsel for the appellee, that case is to be held stare decisis as to this question, it should be followed in this case, but we have always held that a decision by a divided court is not so interpreted, and, in my opinion, this is no more than that, under our statute. When the recent law, providing that this court should thereafter consist of eight justices, was passed, its main object was to afford relief from the burden of overcrowded dockets by allowing the court to sit as before, five judges constituting a quorum, but it contained some limitations upon the effect of the decisions. In certain classes of cases it gave parties the right to a hearing before the full bench in the first instance, and, when a decision was not unanimous (five only sitting), a right of rehearing was given. It has been said that a rehearing is not a matter of course upon disagreement in such a case, and I have no doubt that, in the absence of an application for a rehearing, a decision by four or even three of five judges sitting would be conclusive in the case, and as effective at all later stages in that case as though the decision had been unanimous. But there is no such urgency for the establishment of precedents as to justify their creation by the concurrence of but four members of a court consisting of eight justices, or by three if two should dissent. The final determination of an important legal question cannot well be too deliberate, and, in my opinion, the rule that five members of this bench must concur before a holding can become a precedent, will conduce to greater accuracy than its establishment by four or three. Moreover, a decision by three, or at most four, of a bench of eight would not be likely to carry the weight with the profession that decisions should.

That this has been the view hitherto accepted is indicated by our practice, in many cases where legal questions are involved, of deferring the decision by a divided court, and of our own motion causing a submission of the questions to the full bench, before any one shall be committed by the filing of opinions. It seems clear to me that the spirit of this statute is to require a concurrence of five judges before a precedent can be made, and this should not depend upon the accident of a vacancy or disqualification. Such things are sure to occur, and no serious harm can result if a rule is left unsettled until the question shall arise again. While we have not had occasion to pass upon this question, we have already indicated as much in the case of Boughner v. Bay City, 156 Mich. 193 (120 N. W. 597).

The exigencies may require a decision of the case by a majority of seven, and we have held in case of a vacancy that such a decision does not require a rehearing for the want of concurrence by five. This is fairly inferable from the statute, but it does not follow that such decisions should become established precedents, in the face of an apparent intent to the contrary on the part of the legislature.

The remaining question relates to the failure to serve notice upon the city. This land was assessed as one parcel being owned by the defendant. Before it was sold for taxes, he deeded two acres to the township.. Hence, under sections 140 and 141 of the tax law (1 Comp. Laws, §§ 3959, 3960), as amended in 1903, by Act No. 236, Pub. Acts 1908, both defendant and the township should have had notice before the right of either to redeem was cut off, as was held in the case of White v. Shaw, 150 Mich. 270 (114 N. W. 210).

Counsel seek to distinguish these cases, which differ somewhat upon their facts, but the following language, upon which that decision rests, seems equally applicable to this case. Mr. Justice Carpenter said:

“ The tax title holder cannot proceed by ‘piecemeal ’ to cut off the right of redemption of each part owner. Until he has complied with the statute as to all, the right of redemption remains to all. It seems to me that this is the reasonable construction that is given to these statutes. In the late ease of Williams v. Olson, 141 Mich. 580 (104 N. W. 1101), the Supreme Court said:

“ ‘ The legislative purpose is plain. A person who buys delinquent tax lands of the auditor general is not invested with all the rights of a landowner, nor are adverse titles and.interests in the land extinguished until the owners of such titles and interests are afforded, by the act of the tax title holder, opportunity to pay the taxes and a penalty, and obtain a reconveyance. A short period of limitation is established, which begins to run upon the giving of the statute notice. The essential idea of the legislation is opportunity for the delinquent taxpayer. The period of opportunity begins with notice, and runs, according to a construction already given the statute by this court, until such time as the tax title holder has brought himself within the statute conditions for taking action. Pike v. Richardson, 136 Mich. 414 (99 N. W. 398).'

“Would the defendant Shaw be entitled to a writ of possession as to these lands by showing six months’ service on White and Jopling only ? Clearly not. See language of section 142. Then it must be that the tax title holder is not entitled to go into possession until six months’ notice has been served upon all grantees or owners; and, until this has been done, any one of them may redeem.”

The decree should be affirmed.


author: Ostrander, J.

text:
    EDWARDS v. ENGADINE LUMBER CO.
    1. Master and Servant — Negligence—Pleading—Declaration —Variance.
    . A declaration, which alleges that the de.endant neglected to keep machinery for holding and moving or kicking logs in good repair, whereby it operated improperly by rolling the logs forward without the agency of a lever intended for such purpose, and that plaintiff was injured by a log which rolled over the machinery without being checked, as intended, is insufficient to permit proof of the fact that a valve, by which the machine was operated, was out of repair by reason of the absence of certain weights necessary to its proper performance, subsequently found to have fallen to the ground.
    2. Same — Actual or Constructive Notice of Defect.
    The absence of such weights is not proof of negligence, where it appeared that the machinery had, immediately before, operated in a proper manner, there being no testimony tending to show notice to the defendant.
    Error to Mackinac; Shepherd, J.
    Submitted June 23, 1909.
    (Docket No. 121.)
    Decided November 5, 1909.
    Case by James Edwards against the Engadine Lumber Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Horace M. Oren, for appellant.

      Oummiskey &-Spencer, for appellee.
   Ostrander, J.

It is certified that the record contains all of the testimony. Defendant operated a sawmill. In. the.mill, in the log deck upon which logs were placed in position to be taken upon the carriage which carried them to the saw, was an apparatus consisting of a horizontal shaft parallel with the log carriage, at each end of which,' attached to it and standing above the level of the deck and of the skids, was a casting designed to hold a log in position to be taken upon the carriage, and, being reversed, to propel or kick the log towards the carriage. The description of this apparatus in the declaration is found in the allegation that defendant, as a part of its business,—

“Maintained and operated steam kickers, which said steam kickers were composed of iron arms, situated at the end of the skids in said mill, for the holding of logs nearest the carriage, and were for the purpose of stopping logs when rolled down on the skids near the carriage, and when required to kick or roll the logs onto the carriage; said kickers being worked by steam power and operated by the sawyer, who would work a lever when desiring to roll or kick the logs from the skid way onto the carriage.”

The duty of defendant as alleged was:

“To have kept said kickers in good order and repair, and especially to have kept the said kickers in such repair that when a log was rolled against them on the skid that ■said kickers would hold said log from rolling toward the carriage or carriage track until desired, or until it became necessary to put the log onto the carriage. And it became and was the further duty of said defendant to have kept said kickers in such repair that, when a log was rolled on the skidways up against the kickers, they would hold the log until the lever was operated by the sawyer, which would cause the kickers to roll the log onto the carriage.”

Its breach of duty:

“Yet the said defendant, not regarding its duty in that behalf, negligently and carelessly failed and neglected to keep said kickers in good repair, so that the said kickers would hold a log, when rolled up against them, until they were operated by the sawyer to throw or kick said log onto the carriage; that the said defendant negligently and carelessly permitted said kickers to become out of repair, so that at times, when a log was rolled against them, they would allow said log to roll towards the carriage or carriage track, without the sawyer or other persons having worked the lever; and that the said defendant negligently and carelessly suffered and permitted the said kickers to be and remain out of repair, as aforesaid, for a long space of time, to wit, six weeks and upwards at the time of the committing of the grievances hereinafter set forth and immediately preceding thereto.”

The averment of the manner in which the injury of plaintiff occurred is:

“When said log was rolled to and against the kickers,,' the said kickers, being so out of repair as aforesaid, dropped down of their own accord, and allowed said log to roll over said kickers with great force and rapidity, catching plaintiff’s right foot, breaking and crushing the bones thereof, and by reason thereof,” etc.

Plaintiff was an employé of defendant, 27 years old, and experienced in the work of placing the logs in position for the log carriage. He testified:

“ On the 1.5th day of June last I was required to fill the vacancy upstairs on the log deck. It was close to 4 o’clock in the afternoon that I went upstairs. I went up there to work on the deck rolling the log down, and I stood at the end of it, and I see it strike the kickers, and I went to catch it, and at that time I went to get out of the road of it— I see it was going over, and the carriage was going to catch it, and it catched my foot before I could get out of the way from it. The log was struck by the carriage, and sort of drove it inwards towards me. The log caught my foot.

Q. You say you saw it going over the kickers ? What do you mean by that ?

“A. Why, it was simply going over — the kickers wasn’t going to hold it. I discovered there was something wrong, and I had to get out of the road. There was not much time after I discovered there was something wrong until the log caught my foot; it was all done in an instant. * * * I never knew of any log going over those kickers before that time. I never knew of the kickers failing to hold the logs before that time. I had never been told by anyone that they did not hold. * * * The logs that I was feeding through when I started to work in the mill when it was rebuilt varied somewhat in size. There would be some quite large ones and some quite small. When I would take my canthook and start to roll a log down, if there was no log ahead of it, it would acquire considerable force by the time it got down to the kickers. I had to kind of look after a log of that kind. It was a part of my duty to see that it did not go too fast against the kicker. I knew that if it should happen to get past the kicker in any way, as the carriage was moving back and forth there, that it might be hit by the carriage. It was a part of my duty to be careful in respect to the way that I would let these logs come up against the kicker. If there was a considerable space, clear space between where I started to roll the log and the kicker, it would be my duty with the canthook to kind of hold the log back. The reason for this was that it was customary. A fellow would naturally do it. I knew that that moving carriage there, if it happened to go over the kicker, it might injure the men on the carriage. I knew there might be some danger of the log, if it went too fast, going over the. kicker. I had never had any experience of the pressing of the kicker down, still I kind of held the logs back and was careful. I did not know there was danger of pressing the kicker down. The reason I would hold the logs back was that it seemed to be customary. I reasoned it out that it might be dangerous to the men on the carriage there. * * * I handled every kind of log practically that went through the mill; logs of all sizes and all kinds. I got to be in my own judgment a very skillful deckman. I never had an accident. I think I took all the precautions a man in my position should take. I did not allow logs to go too hard against the kicker, and I was careful to hold the big logs back. I did allow logs to be rolled against the kickers when the carriage was going back and forth. I was careful to see that the logs came down when the carriage was right opposite the deck. I figured out that it was a more prudent thing to have the logs come down when the carriage was right opposite the deck than when it was off on the other side. I realized that it was necessary for me to exercise care and prudence in doing my work there on the deck. I exercised care and prudence during the time that I was working on the deck. * * * I immediately started to roll that log down. I stood in front of it. Other logs were packed right up against it. I stood at the west end, the proper place where any man had to work. That was the left-hand side looking toward the jack. I put in my canthook and rolled it towards me. I paid attention to where, the carriage was at the time I started to roll it. The carriage was just turning the log. It was right back opposite the deck, turning the log when I started. It was just starting to feed. I rolled the log, or started to roll it down, just as the carriage was moving to feed. By the time it had gotten to the kickers, the carriage was away past the deck. When I started the log with the canthook it rolled easily. The butt end of the log away from me struck the east kicker bar first. As I would roll logs onto the kicker, ordinarily, I would generally endeavor to have the two ends strike the two kicker bars at the same time. I would not always do that either. As a general thing I would do that. I usually tried to do so. The reason is that it is customary for a man to roll a log straight, to keep it as straight on the skids as possible. I knew that from my previous experience in rolling those logs down. I knew that was the proper way to keep them on the skids. I knew that was the proper way to roll them down. I do not know as I had been told so, but I had acquired that knowledge from my own experience. * * *

“Q. You didn’t roll this log straight, did you?

“A. Why, I did— I could not say it was perfectly straight — no. I believe I did roll that log down so that the butt end hit the east kicker bar first. I rolled it that way instead of rolling the log straight, so that it would hit the two arms together at the same time. I was not careless in that respect at that time.

“Q. Well, now will you explain how it was that you did not come to roll that log down straight ?

“A. Why, I just merely started the log, and it rolled itself. I let it go. It was pretty square on the skids; it was not necessary for me to touch it.”

The kickers described in the declaration were not out of repair. No witness testified that they yielded at all to the impact of the log. They either did or did not remain in position. If they did, the end of the log went over the particular kicker bar. If they remained in position, the defendant was. not negligent. It was and is the contention of plaintiff that the testimony produced established certain premises from which the jury might reasonably infer that the kicker bars did not serve the purpose they were intended to serve, and did drop down instead of holding the log. Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081). His theory is that it is not probable that if the kicker bars had remained in position, the end of the log would have gone over. It is probable, therefore, that the kicker bar against which the log was thrown did not remain in position. If an efficient cause for its dropping down or yielding is shown, the question whether it is more probable that it did drop down than that the log went over it in position is a question of fact. If the alleged efficient cause is a negligent cause, for which the' master is responsible, the plaintiff’s case is mads out. In support of this theory, plaintiff introduced testimony tending to prove that in a room below the one in which the kicker bars were was a steam cylinder operating a piston connected with one of the kicker bars. The movement of the piston in this cylinder operated the kicker bars. The movement to reverse the bars and propel the log towards the carriage was controlled by the head sawyer by means of a lever connected with a valve stem, which valve, in turn, governed the introduction of steam into the cylinder. It was a vertical cylinder, receiving steam both above and below the piston head. To release the kicker bars and propel or kick the log towards the log carriage, the movement of the piston was up, and to bring the kicker bars to position for holding logs its movement was down. There was attached to the valve stem a weight. In some mills a spring is used instead of a weight. The movement of tripping the kicker bars lifts the valve stem, permitting steam to enter the lower part of the cylinder. When the movement is completed, the stem should return to the position from which it started, permitting steam to enter the upper part of the cylinder. The weight or spring upon the valve stem is for the purpose of bringing or starting it back to its original position. Testimony was introduced which, viewed most favorably for plaintiff, establishes the fact that immediately after the plaintiff was injured, the weight or weights which had been attached to the valve stem were on the floor underneath the place where they had hung. When or how they were detached is not shown. It does not appear that they had ever before been found detached. The apparatus was out of repair, if at all, because the weights were absent when the injury occurred. It is not claimed that the apparatus with the weights attached was not a proper machine. There is testimony tending to prove that upon three prior occasions a log had gone over the kicker bars, and that upon one of these occasions the general manager of defendant was in the mill and could have seen it. How the absence of the weights might have been the efficient cause of the dropping down of the bars is attempted to be shown by the following testimony of one, not an engineer, who knew about the operation of the steam kickers by observation only:

“Q. Now, if there were no weight there, or if that weight was taken off, what would be the effect ?

‘ ‘A. Why, it might — it would weaken it so that it might possibly let a little steam get under.

“Q. And what effect would that have ?

“A. Why, it would raise the kickers, if there was enough steam got under.”

In various appropriate ways the defendant raised the questions, first, that the declaration was not so framed as to permit proof of the absence of the weights from the valve stem; second, that the testimony did not tend to prove the negligence of defendant. We are of opinion that the rulings upon both should have been in favor of defendant. The declaration directed and limited attention to kicker bars, which it particularly described. The duty and breach of duty assigned relate to the kicker bars, presumably as described. Undoubtedly the plaintiff would have been permitted to amend the declaration upon such terms as to continuance, or otherwise, as the court should impose. We discover no showing of surprise, and no request for a continuance. Under the circumstances, we might well decline to reverse the judgment upon this ground.

But we find no testimony tending to prove the negligence of defendant. An admittedly proper device was in use by it, and in the respect now brought to attention it does not appear that it was ever before in fault, or in any manner infirm. There was therefore no proof of actual knowledge of infirmity, and no ground for imputing knowledge. If we assume, as we must, that the kicker bars were in position when the plaintiff started the log down upon them, we must also assume that after the last reversal of the bars by tripping, the valve stem descended, the steam was admitted to the upper part of the cylinder, and the piston head was forced down so as to bring them to position. This was the last time that in the operation of the apparatus the weights pérformed the function of pulling the valve stem down so as to permit steam to be admitted to the upper part of the cylinder. It was steam, and not the weights, which operated the piston, and brought the bars into position to hold the log. Every presumption favors the theory that when last called upon to act, which must have been very soon before plaintiff was hurt, a proper apparatus performed in a proper and accustomed manner. It does not appear that it was possible for any force to be applied to valve stem or valve to reverse the action of the steam — to lift the stem — except the force applied in tripping the kicker bars, unless some one meddled with the apparatus. And if, after last bringing the kicker bars to position, steam from any cause escaped into the lower part of the cylinder to an extent sufficient to move the piston, it would seem to be clear that the position of the kicker bars would be changed accordingly.

The defendant was entitled to have a verdict directed in its favor. The judgment is reversed, and a new trial granted.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Montgomery, J. Ostrander, J.

text:
    GREEN v. BAY CITY & PORT HURON RAILROAD CO.
    1. Specific Performance — Con tracts — Railroads—Promoters.
    It being provided in a contract that complainants should obtain right of way for a railroad from Port Huron to Bay City, and defendants should advance the necessary funds, not exceeding $3,500, and that the complainants should have authority to condemn private property in the corporate name, a demurrer lies to a bill of complaint for specific performance, setting forth the contract and showing that complainants had condemned no right of way, although more than the maximum amount had been advanced by defendant, since the complainants’ failure to perform by condemning right of way is apparent from the averments.
    2. Same — Mutuality—Enforce ability — Equitable Jurisdiction.
    Specific enforcement of a contract will not be required which provides for unperformed services of the complainants of such a personal and continuing character that supervision by the court is impracticable in securing performance of complainants’ undertaking,
    Appeal from St. Olair; Tappan, J.
    Submitted June 9, 1909.
    (Docket No. 25.)
    Decided November 5, 1909.
    Bill by Charles M. Green and Charles M. Green, Jr., copartners as Charles M. Green & Son, against the Bay City & Port Huron Railroad Company for the specific performance of a contract. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Walsh & Walsh (C. JR. Black, of counsel), for complainants.

      JElbert V. Ingersoll and William JL. Carpenter (De Vere Hall, of counsel), for defendant.
   Montgomery, J.

This case is before us on demurrer to a bill for the specific performance of a contract by which complainants agreed to do the work necessary and bear the expense of procuring a right of way for a railroad from the city of Port Huron to the village of Lexington, in consideration of the payment to them of the sum of $30,000, to be paid in advances, made to complainants for the purpose of procuring the right of way, and by a supplemental agreement the balance to be paid out of the proceeds of bonds to be issued and sold by the company, or bonus notes or such other means or methods as the company might control. As a further consideration, the railway company agreed to pay complainants 250 shares of paid-up stock in the company.

The bill avers that the complainants did procure nd convey to the party of the second part the right of way for its railroad outside of the city of Port Huron so far as it was possible to procure the same without condemnation proceedings, and that it was agreed between the complainants and defendants that, where it was necessary to commence condemnation proceedings, the same should not be done until all the rights of way that could be procured without condemnation proceedings had been procured. The bill then avers that the complainants have used their utmost diligence, and fully completed all the covenants, conditions, and agreements by them to be performed under their contract, as amended and modified, with said defendant, in so far as it was possible for them to do, and that they stand ready to perform such portions thereof as they were prevented from performing by the failure of said defendant to do what was necessary by them to be done.

We quote three essential provisions of the contract:

“ (6) The party of the first part hereby agrees to immediately commence the work of securing said rights of way and options and franchises so far as the same shall not have been secured and to prosecute the securing of the same with the greatest diligence; and to complete the same if possible by the first day of February, 1905.

“(7) And to enable said parties of the first part to carry out their agreements in this respect, the party of the second part agrees to advance the cash necessary for that purpose as follows: One thousand dollars upon, or within five days after, the signing of this agreement and the balance in amounts as required for the completion of said work, the parties of the first part agreeing to keep this amount down so far as they can, and in no event the amount required for advances to exceed twenty-five hundred dollars.

“(8) It is expressly understood that the parties of the first part shall have the privilege of commencing and conducting all condemnation proceedings necessary to enable them to obtain the required rights of way in the name of the party of the second part, but the same to be at the expense of the party of the first part. The money necessary therefor or the damages assessed shall be advanced by party of the second part as required, but upon final settlement shall be deducted from the consideration above mentioned.”

The bill avers that $2,900 had been advanced to the complainants to enable them to procure rights of way, but that nearly four years have elapsed since the entering into of said contract, and that the defendants have done nothing towards the construction of said railroad from Port Huron to Bay City.

The several grounds of demurrer urged in this court are that it appears that the defendant has advanced more money than the contract calls for, and that complainants have not, as appears by the bill, performed the terms of their contract; that, as the bill fails to aver any special or peculiar value in this stock, or any reason why it cannot be obtained in the open market, a bill to specifically perform a contract to deliver stock will not lie under such circumstances; and lastly, that there is a want of mutuality in this: That if a specific performance were decreed, it .would leave defendant without any security that the remainder of the contract to be performed on the part of the complainant would be executed; that is, that there would be no security to the defendant that the right of way would be procured where condemnation proceedings are necessary, and that a court of equity will not undertake the enforcement of personal services by either a complainant or defendant.

The first contention is determined by a construction of the paragraphs 6, 7, and 8 above quoted. We think these provisions should be construed as contended for by defendant. Paragraph 6 provided that the complainants should immediately commence the work of securing rights of way and options “so far as the same shall not have been secured and to prosecute the securing of the same with the greatest diligence; and to complete the same if possible by the first day of February, 1905.” Paragraph 7 provides that to enable the parties to carry out their agreement in this respect, “the party of the second part agrees to advance the cash necessary for that purpose,” $1,000 upon the signing of the agreement, and the balance in amounts as required for the completion of said work, the parties of the first part “agreeing to keep this amount down as far as they can, and in no event the amount required for advances to exceed twenty-five hundred dollars.” Paragraph 8 provides that the party of the first part shall have the privilege of commencing and conducting all condemnation proceedings necessary to enable them to obtain the required rights of way in the name of the party of the second part, but the same to be at the expense of the party of the first part, and then provides that the money necessary therefor or the damages assessed “ shall be advanced by the party of the second part as required, but upon final settlement shall be deducted from the consideration above mentioned.” Paragraph 6, it will be observed, is the only one imposing a duty upon the complainants of proceeding to procure rights of way. Paragraph 8 confers upon the complainants the authority to commence proceedings in the name of the defendant, but at the expense of complainants. Paragraph 7 places a restriction upon the amount of money to be advanced, fixing it at the sum of $2,500. We see no reason for saying that this limitation does not apply to money advanced for the purpose of securing rights of way by whatever means the complainants were authorized to use.

We also think the contention of the defendant that the contract is not mutual in such a sense that a court of equity will enforce it specifically should be sustained. The rule is general that where a defendant’s nonenforceable promise has not been performed, and is of such a character that the court cannot undertake to supervise its execution, the remedy by specific performance would be denied, and the complainant left to his remedy at law. 6 Pomeroy on Equity Jurisprudence, § 771; and see, as bearing upon the question, Buck v. Smith, 29 Mich. 166 (18 Am. Rep. 84).

The demurrer should have been sustained by the circuit judge. The order overrling the demurrer will be reversed* with costs.

Grant, Hooker, and Moore, JJ.,.concurred with. Montgomery, J.

Ostrander, J.

I concur upen the second point* namely, that the remedy by specific performance is inappropriate, and should be refused.


author: Montgomery, J.

text:
    PEOPLE’S BUILDING & LOAN ASSOCIATION CO. v. RUTZ.
    1. Bills and Notes — Holder in Due Course — Defenses—Good Faith.
    An indorsee of promissory notes, given for the purchase of an alleged defective cash register, is entitled to recover, where it gave value for the paper and was not notified of the existence of the contract of sale and warranty.
    2. Evidence — Compelling Production — Secondary Evidence,
    No error was committed by the trial court in refusing to compel the production of the articles of incorporation of a nonresident plaintiff, when it did not appear who had control of the books, and defendant was permitted to produce secondary evidence of the facts, and the production of the books was not shown to be necessary.
    3. Sales — Breach op Warranty — Duty to Give Notioe.
    An instruction to the jury that the defendant should have given the vendor of the machine an opportunity to remedy any defects, unless they were so inherently serious as to make the attempt useless, did not prejudice the defendant when considered in connection with the evidence that the machine worked properly, and defendant refused to give farther opportunity to repair.
    Error to Wayne; Murphy, J.
    Submitted June 16, 1909.
    (Docket No. 119.)
    Decided November 5, 1909.
    Assumpsit by the People’s Building & Loan Association Company against Albert G. Rutz upon certain promissory notes. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Thomas O’Hara, for appellant.

      John F. Cotter {Henry O. Walters, of counsel), for appellee.
   Montgomery, J.

This action was brought in’ justice’s court upon eight promissory notes of #10 each, payable to the order of the International Manufacturing Company and signed by defendant. The plaintiff recovered in justice’s court, and, on appeal to the ciróúit, again recovered in a trial before a jury.

The testimony shows that the plaintiff company had the obligations of the International Manufacturing Company for a large amount, and held as collateral notes aggregating in amount a sum equal to those of defendant ; that it surrendered these notes, which were about to mature, for the notes of defendant, which had some time to run. The defense to the notes is that they were given upon a purchase of a cash register, with stipulation that, if any of the notes were not paid at maturity, all became due. The further defense was made that the cash regis-. ter which furnished the consideration for the notes was defective and of little or no value.

The circuit judge submitted the case to the jury upon an instruction which stated" that the plaintiff was the holder of these notes in due course of business, but further charged the jury as follows:

“That, however, is not conclusive of the action upon which you are to render a decision. Why not ? For this reason: Gentlemen of the jury, it appears that Mr. Rutz in making the purchase signed a written contract for the purpose for the register in question, so that back of the notes which he gave there stood this written contract. Now, there arises for your consideration, first and foremost, this question: Did the People’s Building & Loan Association know of the existence of that contract ? If they did not, then without any further inquiry in the case they are entitled to a verdict at your hands for the full amount due. Your first question should be: Does the evidence in this case satisfy me that, the plaintiff here knew of the contract which stood behind these notes ? If it did not, then and in that event your labors would be ended, because if the association had no knowledge of the contract, since it is a bona fide holder of the notes, it would be entitled to a verdict for its face value. If, on the other hand, you are satisfied from the evidence that the building and loan association, in advancing the money, and in acquiring the notes which are the basis of this case, did know of the contract which stood behind the notes, then a further question arises; and what is that question? In making a sale of an article of this kind, gentlemen of the jury, there goes with a sale what is called an implied warranty of the article sold. In ihis case the manufacturing company, when it sold to the defendant this cash, register, by the very fact of making the sale impliedly warranted to the defendant that this instrument was reasonably adapted to the uses for which it was sold. There was not a warranty that it was an absolutely perfect instrument, but the law implies, and therefore requires, the seller in making such sale to deliver to the purchaser a machine which is fairly and reasonably adapted to the uses for the purposes for which the buyer purchased it, so that in making the sale the manufacturing company carried with the sale such an implied warranty. If the plaintiff here, the building and loan association, had knowledge of the contract which stood behind these notes, then the question arises for your consideration: Was the cash register which the manufacturing company sold to this defendant reasonably adapted to the purposes for which the seller represents it to be adapted ? If it was so reasonably adapted, then, and in that event, the seller, the manufacturing company, fulfilled the obligation which was resting upon it, and, if it fulfilled the obligations by delivering a machine reasonably adapted to the purposes for which the buyer was to use it, then, of course, the obligation resting upon the manufacturing company was discharged, and the plaintiff would be entitled to a verdict.”

It is said in the brief of appellant’s counsel that the court erred in holding that the plaintiff was a bona fide holder. As we read the record, there was no dispute about the fact that plaintiff had parted with value, and had become the purchaser of these notes. The limitation placed upon the plaintiff’s bona fides was certainly as favorable to the defendant as could be expected. In substance, the jury were told that, if the plaintiff had knowledge that there was a contract back of these notes, the plaintiff was chargeable with full knowledge of what that contract contained, and, if the contract had not been performed, the plaintiff could not recover.

Error is assigned upon the refusal of the court to compel the production of the original articles of association of the plaintiff company. The defendant was permitted to produce secondary evidence of the facts sought to be shown by these records. The circuit judge stated that he was not advised who, under the laws of Ohio, has the custody of articles of association, and it is not to us apparent what use could have been made of them if they had been produced. We think no error was committed in this holding.

The same consideration applies to the second and third points argued by defendant’s counsel.

Error is also assigned on the instruction given on behalf of the plaintiff to the effect that, unless the machine was so inherently defective that it would be a practical waste óf time or useless to try to fix it, the finding must be for the plaintiff, because he did not'give the company a chance to repair the machine. This instruction had a basis in the evidence from the fact that, whenever complaint was made by the defendant that the machine was out of order, the representative of the selling company endeavored to have the alleged defect remedied, and on the last occasion, when defendant ordered the machine taken out, he refused to discuss the fixing of the register with the representative and said he would do nothing more, and gave the company no opportunity to remedy the defects. This, in connection with evidence showing that the machine worked before the jury, and that the defects claimed did not in fact exist, was sufficient basis for this instruction when modified by the instruction of the court limiting the instruction to defects occurring from the ordinary use of the machine. The court instructed the jury on its own motion that if the jury should find that the instrument was defective, not from ordinary use, but from some inherent trouble, that there was some fundamental defect in its construction or otherwise, then, in that event, defendant would not be called upon to return it to the manufacturer because such defect would not come from ordinary use, but grow out of the construction of the machine itself, and, further, as follows:

“ So if you should find that the plaintiff here had knowledge of the Contract which stood behind the notes, and you should further find that there was a defect in this register growing out of some inherent defect in its construction or make, then, in that event, your verdict would be for the defendant.”

We think this instruction protected the defendant in all his rights.

The requests of the defendant, except so far as covered by the instruction of the court, were not proper, as indicated by the foregoing discussion.

The judgment will be affirmed.

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


text:
    HOLMES v. KING.
    1. Attachment — Filing—Evidence.
    Proceedings in attachment are fatally defective where the writ was shown by its indorsement, uncontradicted by any other evidence, to have been issued the day before the affidavit was filed.
    2. Same — Return.
    The return of a writ of attachment by the officer before the return day is fatal to the proceeding.
    Error to Tuscola; Beach, J.
    Submitted June 11, 1909.
    (Docket No. 94.)
    Decided November 5, 1909.
    Attachment proceedings by Lucy M. Holmes against Robert H. King. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and cause dismissed.

      O. F. Gates, for appellant.
   Montgomery, J.

This is error to review a judgment entered in an attachment proceeding. The affidavit for attachment waa sworn to by the plaintiff’s attorney, and stated the name of the plaintiff as L. M. Holmes. This affidavit was sworn to on the 16th day of January, and filed on the 17th of January, 1908. The writ of attachment was issued on the 16th day of January, and was indorsed on the back, “Filed January 16, 1908.” So that from the filing it would appear that the affidavit could not have been attached to the writ. This writ ran in the name of L. H. Holmes as plaintiff. The return of the sheriff is dated January 29, 1908, and no date of, filing appears on its back. This is now attached to the writ of attachment. The return shows that the service was made on the 16th day of January, 1908, by seizing property of the defendant. It also contains a statement that he has made diligent effort to find the defendant and make service, but was unable to do so.

A special appearance was entered in the case by defendant, and a motion made to dismiss the proceedings on account of these irregularities, and for the reason that no correct name of the plaintiff appeared. The circuit judge overruled this motion on the ground that there was nothing, when the motion was filed, to rebut the presumption that the plaintiff’s proper name was L. M. Holmes, and, as the plaintiff then stood ready to amend her declaration, and proceed in the name of Lucy M. Holmes, this motion should not prevail on this ground. He was also of the opinion that the error in describing the name of the plaintiff as L. H. Holmes in the writ was a clerical error which could do no harm to the defendant, and that the return of the officer indicated that the writ and affidavit were both in his hands on the day of levy, and return was not made until the return day. He treated the indorsement of the clerk as a clerical error.

We think, certainly in the absence of any affirmative showing, that the indorsement of the clerk of the court could not be treated as a clerical error. See Sweet v. Gibson, 123 Mich. 699 (83 N. W. 407). The return of the officer is not inconsistent with the fact that the writ was filed with the clerk on the 16th day of January. As the record appears, it would seem that, having parted with the writ on the 16th of January, he, on the 29th, makes a return that he was unable to find the defendant in his bailiwick. But in the meantime he had disarmed himself by depositing the writ with the clerk. To make return on the 16th day of January he could only have executed an alias writ, if one were permissible under these circumstances.

That the return of the writ of attachment before the return day is fatal to the proceedings, see King v. Harrington, 14 Mich. 532, and Millard v. Hayward, 107 Mich. 219 (65 N. W. 104). If we give the same consideration to the filing with the clerk, it is apparent that the affidavit was not attached to the writ at the time it was served. The writ appears to have been returned January 16th, and the affidavit was not filed until the 17th of January, so that the two were not at that time attached.

For the errors pointed out, the judgment must be reversed, and the case dismissed.

Blair, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    CONGER v. HALL.
    1. Limitation of Actions — Appeal and Error — Pleading Affirmative Defenses.
    The defense of the statute of limitations is not available on appeal where the point was not made in the trial court and no notice of the defense was given.
    2. Damages — Excessive Compensation — New Trial.
    A verdict of $2,700 for services as housekeeper during nine years is not so excessive as to justify the court in setting it aside on motion for a new trial.

      3. Appeal and Error — Motion for New Trial —Saving Questions for Review — Exceptions—Statutes.
    Failure to except to the admission of evidence prevents a review of the question on writ of error, notwithstanding a motion for a new trial on that ground.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1909.
    (Docket No. 14.)
    Decided November 5, 1909.
    Assumpsit by Emma Conger against Charles W. Hall for work and labor. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Cady & Andrews, for appellant.

      Core & Harvey, for appellee.
   Hooker, J.

The plaintiff claims to have been defendant’s housekeeper for a period of nine years, or thereabouts, at his request, and brought this action to recover the value of such service. She recovered a judgment, which, on motion for new trial, was reduced to $2,700, as a condition for the denial of that motion. The defendant has brought the cause to this court by writ of error.

The defense made was that the defendant was a boarder at an agreed price of $4 per week, at the plaintiff’s home, which for a portion of the time she is alleged to have rented of defendant at an agreed price of $7 per month, and that defendant had fully paid for said-board. The questions that we are asked by counsel for defendant (whose connection with the cause began after it was tried) to review are:

(1) Was a portion of plaintiff’s claim barred by the statute of limitation ?

(2) Was the verdict excessive?

(3) Was defendant prejudiced by the admission of certain testimony ?

Statute of Limitation. It is claimed that plaintiff should not have been permitted to recover for services rendered more than six years before the action was commenced, for the reason that the plaintiff’s claim was not a mutual and open account. Of this point it is sufficient to say that no notice of such a defense was given, and we are unable to find that it was raised in the trial court.

Was the verdict excessive? The verdict was rendered for $3,480, and was reduced to $2,700. In view of the services rendered, we cannot say that the compensation allowed was excessive, and in this connection we may add that the letters introduced were competent evidence, corroborating plaintiff’s testimony as to the character of her services. It is contended that, as these letters were all written before January 1, 1899, which is the date named in the bill of particulars as the time from which compensation is asked in this action, they were immaterial; but it is conceded that they were written after the relation began, and are therefore admissible for the purpose mentioned. Furthermore, as there was some testimony tending to show that she did not return from Chicago until after January 1, 1899, the letters were also admissible upon that subject, as they corroborate her testimony that she returned from Chicago and was living with plaintiff in 1898.

Testimony claimed to have been erroneously admitted. Counsel say in their brief that the verdict was affected by prejudicial matters that were not admissible. It is stated by plaintiff’s counsel in their brief that no exception to the admission of testimony was taken, except in relation to the letters hereinbefore held admissible. We find no exceptions indexed, as required by rule, nor do we find any in the record; neither have defendant’s counsel pointed out such exceptions. It is contended that they are reviewable, notwithstanding the want of exceptions, inasmuch as they have been made grounds of a motion for new trial. We do not so construe the statute. 3 Comp. Laws, § 10504.

We find no error, and the judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Moore, J.

text:
    DUGAN v. BOYNE CITY, GAYLORD & ALPENA RAILROAD CO.
    1. Negligence — Railroads — Fellow-Servants — Train Dispatcher.
    A railroad company is chargeable with negligence upon testimony that the train dispatcher having authorized one train to leave certain loaded cars on the main line, ordered a second train to proceed along the same track, knowing that no lights were used on standing cars and that the second train crew did not know of the standing cars.
    2. Same — Contributory Negligence.
    . The plaintiff is not guilty of contributory negligence, as a matter of law, because he had been informed by the dispatcher that there might be switching going on at the place in question, when he testified that he slowed down to three or four miles an hour and watched for the switching, and that he saw no lights, such as would be seen if switching was being done at that point, although he knew that on standing cars no lights were used
    Error to Otsego j Sharpe, J.
    Submitted June 22, 1909.
    (Docket No. 98.)
    Decided November 5, 1909.
    Case by Grant Dugan against Boyne City, Gaylord & Alpena Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Harris & Ruegsegger (W. L. Townsend, of counsel), for appellant.

      De Vere Hall, for appellee.
   Moore, J.

Plaintiff recovered a judgment for injuries received in a collision while he was at work as an engineer. The defendant has brought the case here by writ of error.

Defendant operates a railroad, the main line of which extends from Boyne City southeast to Gaylord. Four miles or thereabout east of Boyne City a branch of the road leaves the main line and runs east, which is known as the “Thumb Lake branch.” The place where the branch leaves the main line is known as Cushman. Southeast from Cushman is another branch running directly south from the main line, known as “ Headquarters branch.” This place is known as Project. Where the Thumb Lake branch joins the main line at Cushman, there is a curve in the main line. Near the main line and on the Thumb Lake branch at Cushman there is a side track and switch, making three tracks in all. The side track lies to the northeast of the Thumb Lake branch, and the switch from the branch 'to the side track is 10 or 12 car lengths east from the switch opening from the Thumb Lake branch onto the main line.

Plaintiff was an engineer employed on the main line on a logging train. His conductor was Fletcher Betterly. On the day of the injury a train hauled by engine No. 2 was operating on the Thumb Lake branch, Mr. English, conductor. Mr. English and Mr. Betterly were experienced men. Trains were operated from the office at Boyne City by lines of telephones established along the lines of the road. On the night of October 28th the train with engine No. 2 stalled on Interlocker hill, about half a mile east of Cushman on the Thumb Lake branch. When the train stalled, it was backed to the foot of the grade, and cut in two, and the forward section, containing 12 cars, was taken to Cushman, and left on the main line without any lights or anybody in charge of it. The crew then went after the other cars. Conductor Betterly, with the train hauled by engine No. 7, called the dispatcher from Project, and asked for orders. After receiving his orders, he communicated them to the plaintiff, who ran his train to Cushman, where the collision occurred. This train consisted of 21 loads of logs and wood.

The train dispatcher at this time was a young man about 18 years old. The orders were given over the telephone. The conductors and the train dispatcher do not agree as to what the orders were. The claims of the parties in relation to them, and the effect to be given to them, were stated by the circuit judge to the jury as follows:

“It is the claim of the plaintiff in this case that the conductor, English, was authorized or permitted, whichever term might be best, to place that part of his train which they had pulled up from the grade below upon the main line of track; that he was permitted to place it there east of the junction point, and to leave it there without any guard or anyone to take care of it; that the dispatcher informed him that he would protect that part of his train which was left on the main line of track; that is the claim of the plaintiff in this case.

“There is no dispute further about the fact that soon after that, and it doesn’t 'appear from the evidence that it was very long, the train on which Mr.- Betterly was conductor and the plaintiff, Mr. Dugan, was engineer, coming along the main line of track, had arrived, perhaps about that same time, at a place called Project; that there the conductor, Mr. Betterly, went to the telephone office, and asked for orders to proceed along the main line.

“Now dispute arises asto the orders that he then received. And it is for you to say what the fact is in connection with it. The dispatcher represents the railroad company. He and the conductors and engineers and trainmen are not what we term in law fellow-servants. They are not responsible for each other’s acts. His act in giving orders to these conductors was the act of the railroad company itself. It wasn’t the act of a fellow-servant of these trainmen. Now, it will be apparent to you as to what his duty was. You must first determine as to what instructions he had given relative tó the placing of this train on the main line to Conductor English; and, if he permitted that train to be placed there without any guard over it, it was then his duty, of course, to give such instructions to the train coming- along the main line as would make it the duty of that engineer in charge of that train to so handle and operate his train while proceeding along towards that point- as not to meet with a collision. Now, it is a question of fact for you to determine, and one that I cannot aid you in determining, as to whether or not the order given by him was sufficient for that purpose. If it was, if that order was reasonably sufficient to apprise the engineer of the fact that cars would be left standing there unguarded and unprotected, then it was the duty of the engineer to so operate and haul his train when approaching that spot as to prevent a collision; and, if a collision resulted, the company would not be to blame for it.

“On the other hand, if that order given by the dispatcher to the engineer through Conductor Betterly was not sufficient in form to apprise him of the fact that cars had been left there on the main line, but that they would probably or likely or might be there when his train reached that point, then I say to you that the company would be liable to him for such damages as he sustained by reason of the collision with such cars, unless you find that he was at fault and in some way himself contributed to his injury. Now, by that I mean that even if such cars were left there supposing that the order given was not a sufficient order to advise him of the fact, and if on his way to that point he could have, by exercising reasonable care on his part in the manner in which he handled his locomotive, avoided the injury, it was his duty to do so. You have heard the dispute amongst the witnesses and the arguments of counsel as to the language of the order that I am not going to refer to it particularly, because it would be improper if I should in any way indicate to you that I might think the evidence has established as the real order that was given. I think I have made myself clear in connection with that point. As Mr. Dugan started his train from Project and approached Cushman, his claim is that the information that he got was that there might be switching going on at that point; and that that of itself did not advise him in any way that there was likelihood of being loaded cars standing there without anyone near them. His claim is that he watched for lights, and that he didn’t see any lights. And the claim of the plaintiff is that had there been merely switching going on there, as he claims he was advised there would foe, that there would have been some evidence of it, and that he was justified in proceeding in the manner in which he did. You have heard his statement in evidence of what he did do as he approached this point. Now, it is for you to say as to whether or not he did what was reasonably necessary under the circumstances as known and as they appeared to him at that time. As known to him, I mean as communicated to him by the order in question, and as appeared to him at that time. It appears from his own evidence that, before the collision occurred, he saw this obstruction and the car or saw the rear car. Now, of course, I need not say to you that it was his duty when he saw that car to avoid if possible a collision with it. And it is for you to say whether he did that. If his own negligence — and when I say negligence as applying to him I mean it in the same sense as that applying to the defendant company— if you find that his own negligence in any way contributed to his injury, then he cannot recover in this case, because under our law we do not apportion negligence. If both parties are negligent and injury is caused on account of the joint negligence of two parties, neither can recover from the other for injuries occasioned thereby.

“Now, in determining the sufficiency of this order, I have said to you that that is an important question of fact for you to determine — the sufficiency of the order given Betterly. And in determining the sufficiency of that order given to Mr. Betterly by the dispatcher and communicated by him to the plaintiff, you have a right to take into consideration the equipment of these two freight trains. It is admitted that there was but one brakeman on each train to assist the conductor; that there were no extra lights on the train drawn by engine No. % (that is, not the train plaintiff was on, but the other one), and that such train was not provided with torpedoes nor fusees. Now, plaintiff knew of that fact. And the mere fact that the train was not equipped with torpedoes and fusees would not of itself, even though you might find it to be the duty of the defendant to equip its train that way, that mere fact would not entitle the plaintiff to recover in law, because he knew of the fact of the lack of equipment. But the dispatcher, the man who was sending this order governing the plaintiff in the handling of his train, he is chargeable also with knowing the manner in which these trains are equipped. He represents the company. He to all intents and purposes is the company, as we might say, because this corporation can only do business through employes or agents, and he is chargeable with notice, the same as the engineer, that these trains were not equipped with these various appliances that I have spoken of. And you have a right to take such notice and knowledge on his part into consideration in determining the question as to whether or not the orders given by him were reasonably sufficient to apprise the plaintiff of tbe situation, and to lead him to expect tbe cars might be placed on the track as he approached Cushman in the condition in which he found them.”

The testimony of the conductor, English, is, in substance, that he called up the train dispatcher, and told him that engine No. 2 at Cushman had stalled on Interlocker hill, and “I wanted orders to leave my train on mainline;” that the dispatcher gave him the order, and said he would protect the train. He further testified that, if he had left a light on that portion of the train left on the main line, he would have had no light to do his work when they went after the other part of the train.

The testimony of Mr. Dugan’s conductor, Mr. Betterly, is in substance that the dispatcher gave him orders to run to Boyne City.

C'I called for orders at Project. Person at Boyne answered me. He gave me orders to run extra to Boyne City, and look out for engine No. 2 at Cushman. They was doing some switching there; might be gone and might not. That is as near as I remember, something to that effect. No. 2 meant engine 2. There was a train there with engine 2 switching there. First he says No. 2, and I says, ‘ You mean engine 2,’ and he says, ‘ Yes, sir.’ I didn’t have any advice that the main line was being employed. * * * I gave Mr. Dugan his orders. I told him that engine 2 was switching at Cushman, look out for engine 2 at Cushman switching there. They might be gone and they might not. Then we started.”

He further testified:

‘ ‘ If cars had been switching at Cushman, the lights on the engine could have been seen by Mr. Dugan. As he approached Cushman, I think he could have seen from the switch to the top of the hill. It must have been half a mile or more. I don’t think there was anything to interfere with his seeing a train if there had been one there. I understood that engine No. 2 was switching at Cushman. That was the way I got my orders.”

The testimony of the plaintiff, in substance, is: That, after Conductor Betterly delivered him his order at Project, the train was started; that he slowed up the train about three-quarters of a mile from where the accident, occurred.

“1 used my air brakes along looking for those people up there switching.

“Q. Now, had they been switching at Cushman, what could you have seen as you were doing that ?

“A. I could see the lights.

“Q. That is moving lights back and forth ?

“A. Yes, sir.

“Q. Did you see any such lights ?

“A. No, sir.

“Q. Did you see any lights at all ?

“A. No, sir.

. “Q. Now, after shutting off your power, what did you next do with regard to the moving of your train ?

“A. I got my speed down.

“Q. To what limit ?

“A. Well, I got it down to about four miles an hour. ■

“Q. Now, from your knowledge of speed, how fast were you going from the time that you shut off your steam until the collision ?

“A. At the time of the collision, I was going somewhere in the neighborhood of about three miles an hour, not to exceed four.

“Q. And what were you doing with reference to looking ahead.?

“A. We were looking all the time.

“Q. Who?

“A. I and the fireman. * * *

“Q. How far could you see with the light which you had ?

“A. On straight track I could see 18 or 20 car lengths.

“Q. What was the first thing that indicated that there was an obstruction on the track ? ■

“A. Oar load of wood.

“Q. How far would you say the car load of wood was from the main line down the Thumb Lake branch ?

“A. Well, it was about 150 feet.

eeQ. Yes; now what occasion had you to expect any car at-that point?

“A. I had none.

UQ. And situate as the car was on a curve would the light from your engine shine on it as you approached it ?

“A. As I approached it, the closer I got to it the more ' my light would shine on it.

“Q. How close to it before the rays of your light would shine on it ?

“A. About 10 car lengths.

“Q. And how close were you when, you distinguished this car on the track ?

“A. I was about eight or ten car lengths.

“Q. What did you do then ?

“A. I reversed my engine.

“Q. And was that the proper thing to do ?

UA. It was the only thing I could do.

“Q. Did you have brakes on ?

e‘A. I had brakes on the engine.

<£Q. What did you do then ?

6CA. I used them to—

“Q. How did you use them ?

“A. I set them — applied them.

C‘Q. For what purpose ?

‘lA. For stopping.

fiQ. Now, what could you have done that you didn’t do, in the use of mechanical appliances, to check your progress as you approached the car ?

l‘A. Couldn’t have done anything.

“Q. Well, what took place ?

“A. We struck the cars. * * * No lantern or light of any kind was placed on this car. We-struck this car of wood. I learned at that time — that is, that night — from what I saw standing on the main line there were 12 cars, and this was the one furthest east of the 12. They were coupled together to form a solid group of 12 cars. I was going, when I struck the cars, about three miles an hour. In the movement of the train with the look-out that would be regarded in ordinary railroading, as a proper rate of speed at that point under those conditions.”

The defendant relies upon the following propositions:

££ (1) That the injury was caused by the negligence of the plaintiff himself.

££ (2) Upon the fact that the order given by the train dispatcher to Betterly under any construction that might be put upon it was sufficient to charge the plaintiff with enough knowledge to put him on guard for obstructions on the track at or near Cushman.

“ (3) That, if there was negligence in leaving the cars upon the main track at Cushman without a light or flag to guard them, it was the negligence of English, the conductor in charge of train No. A

“ (4) That the plaintiff entirely failed to prove the giving of a negligent order to Betterly at Project, in this: that his testimony shows two different orders, one of which is claimed to he insufficient and the other substantially admitted to be a sufficient order.”

Whether these attempted defenses have force or not depends upon a disputed question of fact. The record shows, beyond any controversy, that Mr. Betterly was ordered to run his train from Project to Boyne City. It also shows that, in order to do so, the train must pass, over the main line at Cushman; that the train dispatcher, before issuing the order to Mr. Betterly, had authorized Conductor English to leave the rear of his broken train on the main line at Cushman, while he went after that portion of the train at Interlocker hill. It ought to be too plain for argument that, if, under these circumstances, the train dispatcher issued the order to Conductor Betterly, without informing him that the rear end of the train was on the main line, he failed in the performance of a clear duty. It does not require any great knowledge of railroading to know, what is disclosed by the testimony in this case, that a switching crew would not be engaged in switching cars at a station after dark without the use of lights. If the order was given by the train dispatcher as claimed by the testimony,' then the other pivotal questions are all questions of fact. Whether the order was given by the dispatcher as claimed by plaintiff was also a question of fact. These questions were all properly submitted to the jury, which found against defendant.

Judgment is affirmed.

Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.