author: Montgomery, J.

text:
    TUBBS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroad Companies — Negligence—Persons Lawfully on Station Grounds.
    One who is upon, the station grounds of a railroad company for the purpose of receiving mail and express from a train is entitled to the same protection as one intending to take passage on the train.

      %. Same — Trains Crossing at Depot.
    It is negligence for a railroad company to run a train between a station and a train opposite it, engaged in discharging and taking on passengers, express, and mail.

      3. Same — Contributory Negligence.
    Whether a person whose duty it is to receive such mail and express is chargeable with contributory negligence in going upon the intervening track for that purpose, without looking to see whether another train is approaching, is a question for the jury, at least where he knows that it is the custom for trains not to pass at that, point; and the fact that he enters upon the track before his own train has come to a full stop does not alter the rule.
    4. Same — Pleading—Variance.
    In an action against a railroad company for negligently running down the plaintiff while crossing a track for the purpose of receiving the mail from one of defendant’s trains, the declaration alleged that defendant was engaged in transporting the mail, and that it was customary for it to deliver the mail to plaintiff at the place where the accident occurred; while the proofs showed that the mail .pouch was thrown from the train by a United States mail agent. Held, that the variance was immaterial.
    Error to Washtenaw; Kinne, J.
    Submitted October 24, 1895.
    Decided November 19, 1895.
    Case by Lucius Tubbs against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant upon verdict directed by the court, plaintiff brings error.
    Reversed.

      A. J. Sawyer, for appellant;
    The relation existing between plaintiff and defendant at the time of the injury was that of carrier and passenger (Patt. Ry. Accdt. §§ 140 [subd. 4], 207, 208, 215, 220-223; Beach, Cont. Neg. §§ 144, 167; Thomp. Carr. 104-106; McKone v. Bailroad Go., 51 Mich. 601; Bolton v. Bailway Go., 15 N. Y. 444; Blair v. Bailway Go., 66 N. Y. 313; Seybolt v. Bailroad Go., 95 N. Y. 562; Tobin v. Bailroad Go., 59 Me. 183; Yeomans v. Navigation Go., 44 Cal. 71; KricJcson v. Bailroad Go., 41 Minn. 500; Watson v. Bailway Go., 66 Iowa, 164); and it was gross negligence on the part of the defendant to suffer a train to run between its passenger house and another train while the latter was in the act of discharging its passengers and mail and express matter (Marcott v. Bailroad Go., 47 Mich. 6; Terry v. Jewett, 78 N. Y. 338; Brasséll v. Railroad Go., 84 N. Y. 241; Railroad Go. v. Hodgson, 18 Colo. 117).
    Plaintiff was not guilty of contributory negligence. Beach, Cont. Neg. § 160; Railroad Go. v. Martin, 41 Mich. 670; Ohadderdon v. Railroad Go., 100 Mich. 295; Jordon v. Railway Go., 58 Minn. 8; Weélcs v. Railroad Go., 40 La. Ann. 800; Warren v. Railroad Go., 8 Allen, 227; Wheeloeh y. Railroad Go., 105 Mass. 203; Magee y. Street Railway Go., 151 Mass. 240; Maher y. Railroad Go., 158 Mass. 36; Davis y. Railroad Go., 159 Mass. 532; Lang y. Terry, 163 Mass. 138; Shelby y. Railroad Go., 85 Ky. 224; Railway Go. y. Goebel, 119 111. 515; Pennsylvania Go. v. Baches, 133 111. 255; McMarshall y. Railway Go., 80 Iowa, 757; Jetter y. Railroad Go., 2 Keyes, 154; Hewson y. Railroad Go., 29 N. Y. 383; Glarhy. Railroad Go., 36 N. Y. 135; Voah y. Railway Go., 75 N. Y. 320; Brassell y. Railroad Go., 84 N. Y. 241; Ghurch y. Railroad Go., 119 Mo. 203; Railroad Go. y. Matthews, 7 Vroom, 532; Klei/n y. Jexoett, 26 N. J. Eq. 474; Railway Go. y. Reeman, (Tex.) 32 S. W. 45; McGhee y. White, 66 Fed. 502.
    Whether the mail bags were delivered by the agent of the defendant or by the agent of the United States was immaterial, since the defendant had permitted the practice with reference to their delivery to continue for so long a time that it must be held to have had knowledge of it, and to be chargeable with the act and its consequences; and therefore the trial court properly held that there was no variance. Sargent y. Railway Go., 114 Mo. 348; Hughes y. Railroad Go., 127 Mo. 447; Carpenter y. Railroad Go., 97 N. Y. 494; Snow y. R'ailroad Go., 136 Mass. 552.

      John F. Lawrence, for appellee:
    If there was any negligence, it was not that of the defendant, but of the mail agent in throwing the mail pouch in front of an advancing train, while the train from which it was being thrown was still in motion, Muster y. Railway Go., 61 Wis. 325. And the variance between the declaration and the proofs in regard to the delivery of the mail was fatal. Id.

    Plaintiff’s contributory negligence was such as to bar a recovery. Patt. Ry. Acodt. p. 224; Beach, Cont. Neg. § 160; Parsons v. Railroad Go., 37 Hun, 128; De Kay v. Railway Go., 41 Minn. 178; Gonnolly v. Railroad Go., 158 Mass. 8.
   Montgomery, J.

This is an action for negligent injury. The .plaintiff has for several years been employed in receiving the mail from mail trains run on the defendant’s road, and transporting it to the postofflce at the village of Dexter. At the Dexter station the defendant’s road consisted of a double track, which extended from a point a short distance- east of the station, westward, at least as fa.r as Jackson; but from the point of convergence east of and near the -station there was but a single track extending eastward. The station at Dexter was a short distance south of the track. In the conduct of defendant’s business, western-bound' trains were run on the north track, and eastward-bound trains on the south track. The passengers to and from and others having business at the west-bound trains were required to cross the south track to reach the train. The injury occurred to the plaintiff while receiving mail from the westward-bound train, which was called the “ Grand Rapids Train,” or “ No. 15.” While thus engaged, he wais struck by the engine of the ■eastward-bound train, known as “ No. 20.”

Plaintiff offered testimony that tended to show that No. 15 was due at Dexter at 6:07, and t-hat No. 20 was due there at about 6:15, but, as it did not stop at Dexter, had no scheduled time for this station; that for some years, at least, prior to the injury, the custom was for No. 20 to approach the station under complete control of the engineer; and, if No-. 15 w-as at the station, No.. 20 stopped west of the station until No. 15 had discharged her -passengers, mail, and express, when No. 20 would pass through on the south track; if No-. 15 had not yet reached the station, No. 20 would run past the station, and wait on the south track, east of the station, until No-. 15 oa-me in, when No. 20 would pull out east. There is also, testimony tending to show that No*. 20 was not accustomed to pass the station east without a signal. The testimony of the plaintiff shows that he was familiar with the custom- of No. 20 stopping west of the station while No. 15 discharged and received passengers; that he had been to the train every day for years prior to the injury, and had never known No. 20 to pull up to -or pass the station while No. 15 was opposite the station, discharging passengers, but, on the contrary, it was of frequent occurrence for No. 20 to stop west of the station for that purpose.

On the occasion in question (September 29,1892), plaintiff came to the depot on Ms usual mission, heard and saw No. 15 coming, wheeled Ms truck from the east corner of the station house to- a point some little distance west o-f the station house, and a point where he was in the habit of receiving mail and express, seated himself on his truck, and awaited the arrival of No. 15. No. 15 went a little further west than was customary. The mail messenger threw off two sacks -of mail', one of wMoh rolled on the north rail of the south track. Plaintiff sprang to get it, to throw it on the truck, and, while in the act o-f doing so, was struck by No. 20, going east. He testifies that he did not know of the approach of No. 20; that it was his intention to throw the mail across- the track, and then run up beside train No. 15, get Ms express-, -and step across to the walk, out of the way of No. 20 or any other train that came along at that time, as- he suppo-sed it would soon. The evidence tends to- show that, when plaintiff was struck by No. 20, No. 15 was still in motion, just coming to a stop. There was testimony that, from a point 200 feet west of the station, the engineer of No. 20 could have seen the headlight of No. 15,1,500 feet to the east; and it is contended that, knowing of the custom of No-. 15 to- stop on the north track, and of the necessity of those having business at the train-, as well as passengers, to cros-s the south track, it was an act of negligence for train No. 20 to run between train No. 15 and the station house before the business of discharging passengers, mail, etc., was completed. The circuit judge, wMl-e expressing doubt as to the negligence of the defendant, directed a verdict on the ground that plaintiff was guilty of contributory negligence.

In determining this question, the most favorable construction to which plaintiff’s testimony is open must be given. In view of this testimony, was it negligence, as. a matter of law, for plaintiff to fail to look to the west, or had he a right to rely upon defendant’s train not passing over the south track while he was engaged in the manner stated? This precise question ha® never before been considered in this court, but cases similar have arisen in at least four other states. The leading case on this point is Klein v. Jewett, 26 N. J. Eq. 474. In that case, passengers were required to pass over a track to reach that upon which an out-going train awaited them. The plaintiff, on hearing the signal, approached the train he intended to take passage on, stepped from the platform to the track just as the passenger train stopped, and was making Ms way from the point where he first stepped on the track to the platform, between the second and last oar, with Ms back to* the east, when the locomotive of a western-bound train, runuing on the track between the station and the standing train, struck him. Plaintiff was permitted to recover, the court saying:

“ The plaintiff, in attempting to pass from the depot to the oars, in the absence of all warning of danger, had a right to regard himself in a place of .safety, where he might safely give Ms whole attention to the business in hand, and was not bound to. be on the lookout for extraordinary perils created by the gross mismanagement of the persons in charge of the road.”

The court in that case recognized the rule requiring persons about to cross a track to look out for approaching cars, but it was 'said:

“ This rule has no application to the case where, by the arrangement of the corporation, it is made necessary for passengers to cross the track in passing to and from the depot to the cars.”

In Terry v. Jewett, 78 N. Y. 338, deceased left the station, walked diagonally towards the cars, across an intervening track, and, as the passenger train approached, the freight train struck her. According to the testimony of one of the witnesses, the train came to a standstill, and then started a little, and thus it would appear that the deceased had some reason for supposing that the train had started on its way, although it seems that she was mistaken in respect to its going on. The court said:

“ She evidently, however, was impressed with the necessity of haste in reaching the train, and she proceeded on without looking to see whether any other train was approaching. Had she done so, she wonld, no doubt, have seen the freight train, and avoided the accident. There would have been no impropriety in her moving towards the passenger train had she exercised due care and caution, as she had reason to believe that the train was near at hand, and there was an implied invitation to cross the track. This was an assurance that she could do so with entire safety, but did not justify negligence on her part.”

The court further said:

“ It was, we think, a question of fact for the jury to decide whether the deceased, under all the circumstances, was chargeable with contributory negligence.”

A similar ruling was made in Brassell v. Railroad Co., 84 N. Y. 241, and the doctrine of Klein v. Jewett was followed by the supreme court of Colorado in Denver, etc., R. Co. v. Hodgson, 18 Colo. 117.

These cases clearly sustain the contention of plaintiff that it was negligent for the railroad company to run a train between the station house and a train opposite the station, engaged in discharging and taking on passengers, and that it is not negligence per se to attempt to board a train so standing without looking-for an approaching train; that it is for the jury to decide whether, in view of the invitation to board or alight from the train, the passenger was not entitled to assume that the way was clear; and that the rule requiring one approaching a railroad crossing to look and listen does not apply in all its strictness to a passenger acting on such an invitation. Nor do we think that one having necessary and oustom'ary business with those on the train; as in case of the plaintiff in the present case, fur the purpose of receiving mail and express, stands in any different relation to the company than one intending to take passage on the train. Both are there by invitation, and neither as.a mere licensee. Thomp. Carr. 106.

Defendant’s counsel oites the ease of Connolly v. Railroad Co., 158 Mass. 8, which lays down a rule somewhat at variance with the cases to which reference has been made. This case, as well as Debbins v. Railroad Co., 154 Mass. 402, was determined by a majority of the court, and the views of the minority are not given; but we think the decision by the majority does not in either case furnish an answer to the cogent and convincing reasoning in the New Jersey and New York cases. Defendant’s counsel also cites the case of De Kay v. Railway Co., 41 Minn. 178; but that ease is clearly distinguishable, as well from the New York, New Jersey, and Colorado cases as. from the present. In the De Kay case the standing train was on a side track, which, the court said, “was not the designated or appointed place for the egress or ingress of passengers. The place for that was at the platform. * * * It [the train!]; wa*s run in upon the side track solely for the purpose of letting another train pass.”

The question still remains whether it can; in the present case, be said that the plaintiff was invited to take the position he did before the western-bound train came to a stop. We think this was a question for the jury. We cannot say, as a matter of law, that persons having business with a train at a way station, at which the stop is but momentary, are guilty of negligence in not waiting until the train comes to a standstill. It is a fact open to every-day observation that those awaiting the arrival of a train do not wait until the train «tops, but, on the contrary, as the train approaches, those having business with the train take their position near the track, and wait for the train to come to a standstill. Indeed, this custom is so general that it must be within the knowledge of those operating trains.

It is contended that there was a fatal variance between the declaration and the proofs* and for that reason the judgment should be affirmed. The declaration asserts that defendant was engaged' in transporting mail, and that it was the custom for defendant to deliver the mail to plaintiff at the point stated; while it is said that the proofs show that the mail was delivered by the United States mail agent. We think this is ton technical a view. It is true the mail agent actually threw the pouch from the train, but this he could not have done had not the train conveyed it to the spot, and afforded opportunity for its delivery. The gravamen of the charge was that, in view of the custom thus to furnish opportunity bo plaintiff to receive the mail, defendant neglected its duty in making the place at which the mail was to, be received reasonably safe. A different question would be presented if a direct injury had resulted from the throwing off of the pouch by the mail agent. No negligence in this regard was charged.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    FORBES LITHOGRAPH MANUFACTURING CO. v. WINTER.
    1. Affidavit of Account — Sufficiency.
    Under 2 How, Stat. § 7525, providing that an affidavit of the amount due on an account may he made by the plaintiff “ or some one in his behalf,” an affidavit stating that the affiant is the treasurer of the plaintiff corporation sufficiently shows his authority.

      2. Justices of the Peace — Certiorari.
    On certiorari to a justice, only those allegations of error will be considered that are affirmatively supported by the return.
    3. Same — Rulings on Admission of Evidence.
    An objection that a justice of the peace erred in permitting a plaintiff to introduce in evidence an affidavit of account, for the reason that no preliminary service entitling him to make use of it had been made, cannot be raised for the first time on certiorari, although the defendant did not appear in the suit before the justice.
    Error to Wayne; Hosmer, J.
    Submitted. October 25, 1895.
    Decided November 19, 1895.

      Assumpsit by the Forbes Lithograph Manufacturing Company against James E. Winter and Warren 0. Baker upon an account for goods sold. Plaintiff had judgment in justice’s court, and defendants removed the proceedings to the circuit by certiorari, where the justice’s judgment was reversed. Plaintiff brings error.
    Eeversed, and the judgment of the justice affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Turner, Turner & Orawford, for appellees.
   Montgomery, J.

The proceeding in the circuit court was by a certiorari to a justice-of the peace. The errors assigned in the affidavit for certiorari were: First, that the docket of the justice shows that the plaintiff did not appear within one hour after the hour of return named in the summons; second, because the affidavit of account introduced in evidence was not sufficient in form, and was not served in a manner entitling it to be read in evidence.

An answer to the first point is that the docket entry is not returned, and the fact averred in the affidavit for certiorari is not made to appear.

As to the second point, it is apparent that the justice obtained jurisdiction of the defendants, so that the question involved is whether there was error in receiving the testimony offered by plaintiff to make out its case; or the question may be still further narrowed, as we think the point that the affidavit is void, for the alleged reason that the authority of the affiant to make the same did not appear, is without force. The affidavit stated that the affiant was the treasurer of the company. We think this sufficiently showed his authority. The question, therefore, narrows itself down to this: Whether, in the absence of an appearance or objection, an affidavit in form sufficient being introduced to sustain plaintiff’s claim,, the defendant can for the first time raise the question by certiorari that the preliminary service entitling the plaintiff to make use of it was not made.

There can be no* doubt that appeal is the more appropriate remedy to review errors committed on the trial of the case, nor is there any doubt that this* point has been pointed out to the profession a sufficient number of times. Howell v. Shepard, 48 Mich. 472; Erie Preserving Co. v. Witherspoon, 49 Mich. 379; Galloway v. Corbitt, 52 Mich. 460; Morrison v. Emsley, 53 Mich. 564; O'Hara v. Mernan, 79 Mich. 222; Stoll v. Padley, 98 Mich. 13. It is true the court has in some cases reviewed rulings occurring on the trial in excluding or receiving evidence (Whittle v. Bailes, 65 Mich. 640); but we find no case, where the point has been distinctly made, where the court has reversed the case for error in the admission of testimony, where noi objection was made before the justice. At the common law, certiorari is not a proper remedy to* review rulings made on the trial (Spel. Extr. Rel. § 1917); and the same author, in section 1925, says:

“ If, under the practice of the State where the matter arises, other than jurisdictional questions may be examined on certiorari, the same rule applies as upon appeal; and, in order that the petitioner may avail himself of errors and irregularities committed by the lower court, it must appear that he interposed proper objection in due time.”

See, also, Cousins v. Cowing, 23 Pick. 214; Stratton v. Com., 10 Metc. (Mass.) 217; Carolan v. Carolan, 47 Ark. 511; Hinman v. Eakins, 26 Mich. 81; McGraw v. Schwab, 23 Mich. 13; Hart v. Port Huron, 46 Mick. 428. In tke latter case it was said:

“ Upon all tke points in issue, tkere appears to have been evidence, and tke objection tkat it was not tke best evidence can kardly be raised now, wken tke defendant deliberately abstained from objecting.”

It is true tkat in tke case of Locke v. Farley, 41 Mich. 405, tk'ere is a dictum tkat a defendant not appearing might raise a question of this nature; but the case called for no opinion on tkat subject, as tke defendant did appear, and it was held that, not kaving objected, ke could not thereafter raise tke question on certiorari. We are unable to see why tke fact of kis failing to appear skould give tke defendant greater right in a matter not going to tke jurisdiction of the court. He certainly would stand in no different light than a defendant who withdrew’ his plea, as was tke case in Hart v. Port Huron, supra. Had tkere been an appearance or objection in this ease, it does not appear tkat tke objection might not have been obviated by tke plaintiff’s offering other proof of its claim. See Cousins v. Cowing, supra.

Tke judgment will be reversed, with costs, and tike judgment of tke justice stand affirmed.

The other Justices concurred.


text:
    WARREN v. HALLEY.
    1. Principal and Agent — Sale—Authority to Collect.
    Defendant, having contracted with an agent of plaintiff for the purchase of a piano, called at plaintiff’s place of business, and asked him if the price should be paid to such agent. Plaintiff replied that he preferred to have payments made at the office, but that he would send an agent to collect the money. Subsequently the person negotiating the sale presented to defendant a receipt on one of plaintiff’s printed blanks, signed in piaintiff’s name, by himself as agent. Held, in an action of replevin for the piano, that the facts stated were sufficient to support a finding that defendant was justified in making payment to such person.
    3.Same — Instructions to Jury.
    The case was properly submitted to the jury upon the single question whether the conduct of the plaintiff had been such as to justify the defendant in believing that such person was authorized to receive the money, there being no evidence that he had express authority to make collections; and it was not error to refuse instructions that would not aid in determining this question.
    3. Same.
    An instruction that such person, not being an agent to deliver the property, had no right to collect the purchase price with-. out special authority to do so, was properly refused, since it excluded the theory that plaintiff had held out such agent as having authority to collect.
    4. Trial — Statements of Counsel.
    Counsel have the right to present their own views of the testimony in argument to the jury; and where a contention is made in apparent good faith, and there is evidence tending to support it, a case will not be reversed because such contention, in the judgment of the court, is unsound.'
    5. Same.
    In an action involving the question whether the defendant was justified in paying money to one assuming to act as agent for the plaintiff, a statement by defendant’s counsel that “ defendant is a poor man, and he has been obliged to mortgage his home, all the property he has in the world,” to make such payment, is not ground for a reversal, where the court sharply rebuked counsel for his conduct, and instructed the jury to disregard the statement.
    Error to Wayne; Frazer, J.
    Submitted October 25, 1895.
    Decided November 19, 1895.
    Replevin by Joseph A. Warren and' another against George P. Halley. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Thomas T. Leete, Jr., for appellants.

      Washington I. Robinson, for appellee.
   Montgomery, J.

Plaintiffs are dealers in pianos in the city of Detroit. In the month of August, 1893, one Armstrong called on the defendant and his wife, representing himself to be an agent for the plaintiffs, and, after some talk between the parties, Armstrong stated that he would send up a piano on approval. On the same day a piano was sent up from plaintiffs’ place of business toi defendant's house. The fact appears to be, as shown by the testimony of Mr. Joseph Warren, that at that time the only employment which Armstrong had was to go with Mr. Hands, another agent of the plaintiffs, to play pianos • for him and assist in making sales; and plaintiffs’ testimony shows that when the piano was sent from the ware-rooms to defendant’s house it was on an order signed by the agent Hands. It appears by the undisputed testimony that the defendant afterwards made payment to Armstrong for the piano. Plaintiffs subsequently demanded the piano, and, on refusal to deliver it, brought replevin. The sole question litigated in the court below was whether the defendant was justified in making payment to Armstrong, it appearing that he had never turned in the money to plaintiffs. The question depended for its solution mainly on the testimony of Mrs. Halley and Mr. Joseph Warren relating to an interview at plaintiffs’ place of business after the piano was delivered at defendant’s house, and before the payment was made to Armstrong.

Mr. Warren testified that Mrs. Halley on that occasion told him that she had a piano of plaintiffs on approval; that—

She did not like Mr. Hands, and his way and manner, but that she liked Mr. Armstrong very much. She asked me if she should pay Mr. Armstrong the $300. I answered that we preferred to have payments made at the office, *' but if you cannot do that we will send a duly-authorized collector to receive the money.’ She said that >she and her husband were coming on Saturday to the office and pay the $300.”

Mrs. Halley testified as follows:

I told Mr. Warren that I was going to pay cash. Mr. Warren said they allowed a discount for cash. I then said that I would come down to the office and pay the money. Mr. Warren said that that would1 be too much trouble for me; that he would send his agent up. I told him that it was Armstrong who had made the sale. Mr. Warren said Armstrong was sick. I knew- that he was. sick, for he walked lame and had a slipper on one foot. Mr. Warren said that Armstrong must have been making up for lost time.”

She further testified that $300 was not mentioned in the interview, and that she did not tell Mr. Warren that she and her husband would bring the money to the office; that subsequently Armstrong brought a receipt on one of the printed blanks used by the plaintiffs, and signed in plaintiffs’ name, by himself as agent, and defendant paid him for the piano. The jury found a verdict for the defendant, and plaintiffs bring error.

1. It is contended that the court should have directed a verdict for the plaintiffs. This depends- upon whether-there was in the conversation between Warren and Mrs. Halley anything stated which is fairly open to a construction which justified her in believing that she or her husband was authorized in making payment to Armstrong, and we think there was. The interpretation of spoken words is for tbe jury. Here we have tbe fact that Armstrong bad dealt witb tbe defendant as an agent of plaintiffs (tbis is clear enough froto Mr. Warren’s testimony); that Mrs. Halley asked if sbe should pay Armstrong ; tbat Mr. Warren’s first reply was that be preferred to have payments made at the office; but that Mrs. Halley swears that he said that be would send an agent to collect. This statement was made witb tbe knowledge that tbe only agents Mrs. Halley knew were Armstrong and Hands, and it might well be implied that Mr. Warren also understood that sbe knew no difference in tbe authority of tbe two. No intimation was given that she was not to' pay Armstrong, although the direct question was asked if she .should. Tbe jury might well have said that under tbe circumstances Mrs. Halley was justified in inferring, when one of the agents of plaintiffs, whom plaintiffs knew well sbe had dealt witb, came to her with a receipt, that he was sent in pursuance to the promise which plaintiffs had made, and was authorized to collect the money.

2. Plaintiffs assign error on the refusal of the court to give their seventh request, as follows:

“ It is no defense to this action to claim that the plaintiffs were careless in reposing confidence in Armstrong, for tbis does not make the plaintiffs liable to the defendant if the defendant failed to exercise diligence in inquiring as to the authority of Armstrong to collect money.”

The court did charge the jury that tbe fact that Armstrong was authorized to take orders for pianos was no evidence that be was authorized to make collections, and that it was the duty of defendant to make inquiry as to the extent of Armstrong’s authority, and then very properly directed the attention of the jury to the single question on that branch of the case, as follows:

“You have a right to say whether, under the testimony in this case, there was anything in the conduct or behavior of Mr. Warren at tbe time he had the interview with tbe defendant or tbe defendant’s wife which justified them in believing, exercising due caution and care on their part, that Armstrong was the authorized agent of the firm of Clough & Warren. If you say from the evidence that he was not, and there was nothing in the conduct or language or statements or behavior of Mr. Warren (I think he is the only member of the firm they claim to have talked with) that would lead them fairly and honestly to believe that Armstrong was the agent and authorized to collect this money, then your verdict in this case must be for the plaintiffs-; but if you shall find that in this conversation or talk there was such action or conduct or behavior on the part of Mr. Warren as justified them in believing that Armstrong was the agent authorized to collect, and that in good faith they made this payment under such circumstances, then the title of the property passed to the defendant in this case, regardless of the consideration paid for it.”

This instruction presented in plain language the recognized principle that, where one of two innocent parties must suffer through the wrong of a third party, the loss must fall upon that one who has put it within the power of the third party to commit the wrong.

3. Plaintiffs’ seventh assignment of error is that the court improperly refused their ninth request to charge. This request was as follows:

“There is no testimony that the property in question was ever in the possession of Armstrong for the purpose iof delivering the same to the defendant. He was not, therefore, an agent to deliver the property, and had no rigiht to collect the money for the same without special authority to do so.”

Plaintiffs were not entitled to this request, for the reason that it ignored the question of whether there was any holding out of Armstrong as having authority, though he might not in fact have been given authority, to collect. The circuit judge did properly submit that question in the instruction above given, and followed it by saying, “That is all there is to this case.” The jury could not have failed to understand this charge. It had the merit of directing the attention of the jury to a single question, and requiring a decision on that point.

4. Error is assigned upon the argument of counsel— First, because be stated to the jury that plaintiffs delivered the piano to Armstrong; second, because he attempted to arouse the prejudice of the jury. While there is no direct testimony that the piano was delivered to’ Armstrong, there is testimony that he is the person who agreed to send the piano up to defendant’s house, and on the same day it was delivered at defendant’s house. We think that under these circumstances defendant’s counsel was justified in making the contention that there was a delivery to Armstrong. While the evidence may not have been sufficient to show this, it is the right of counsel to present his own views of the testimony, and a case should not be reversed because of a contention of counsel which, in the judgment of the court, is not sound, if made in apparent good faith, and if there is any evidence tending to support the contention. A further answer to plaintiffs’ claim on this subject, as well as to the claim that there was no evidence that the piano was in Armstrong’s possession, is that the case was not permitted to turn on this point at all.

A more reprehensible statement made by counsel is as follows: “This defendant is a poor man, and he has been obliged to mortgage his home — all the property he has in the world — to pay for this piano.” This statement should not have been made, but, on objection by plaintiffs’ counsel, the court at once rebuked counsel for the defendant, saying: “You have mo right to state to the jury that this defendant is a poor man. It makes no difference in the decision of this case whether he is rich or poor, and 1 tell you, gentlemen of the jury, that you are not to regard the judgment of counsel, on that point.” In view of this marked rebuke, it is quite as likely that the attempt to seek the favor of the jury in this unwarranted manner would react against the defendant as that it would tell in. bis favor. Tbe jury are to be credited witb average intelligence, and, applying that presumption to tbe jury in tbe present case, it is impossible to presume that they were influenced by this unseemly remark.

Tbe judgment will be affirmed.

Tbe other Justices concurred.


author: Grant, J.

text:
    ROGERS v. FERRIS.
    1, Bebaoh or Warranty-Evidence.
    In. an action involving a breach of warranty on the sale of chattels, it is proper to permit the vendee to testify that he relied upon the warranty in making the purchase.
    2; Witnesses — Competency.
    A witness who testifies that he noticed a puff on the hind leg of a horse, which looked like a bog spavin, that he was raised on a farm with horses, has been a blacksmith for fifteen years, and has read something about spavins, is competent to testify that he does not think such a spavin would appear within a week after it was contracted, although he also testifies that he never watched one until it was fully developed, and has no practical knowledge of them.
    3. Trial — Instructions to Jury.
    It is proper for the court to tell the jury what the theory of each party is, and that his evidence tends to support it.
    4. Appeal — Objections Not Raised Below.
    An objection that there was another question for the jury to pass upon, besides those which the court told them were for their consideration, cannot be raised for the first time on appeal, under an assignment of error based on the charge as given.
    6. Sale — Rescission—Evidence—Instructions to Jury.
    The purchaser of a horse, in reply to a letter from the seller requesting him to come and get the animal, which he had returned to the seller, wrote the latter as follows: “ I do not buy a horse at that price, and then not have any. So you have your property, you can keep it. You told me that the mare was a beauty and a dandy, and if she wasn’t right you would make her all right. That don’t correspond with the heading of your letter at all.” Held, that it was not error for the court to charge the jury, in a suit between the parties, that the buyer stated in his letter ‘ ‘ that he would not take the horse, as he considered that there had been a breach of the warranty.”
    6. Appeal — Exceptions—Duty op Counsel.
    A contention that the court erred in instructing the jury that there was no evidence upon a certain branch of the case will not be considered unless the testimony in the record which is claimed to controvert the statement of the court is pointed out.
    Error to Grand Traverse; Corbett, J.
    Submitted October 25, 1895.
    Decided November 19, 1895.
    Replevin by Franklin Rogers against Egbert F. Ferris. From a judgment for plaintiff, defendant brings error.

      A firmed.
    July 2, 1894, plaintiff purchased a mare of the defendant, for which he gave three promissory notes, secured by chattel mortgage. Plaintiff claims that the defendant warranted her to be perfectly sound. Defendant admits the warranty, except as to two bunches on her hind legs. September 15th plaintiff took the mare back to the defendant, and left her in his stable, where she was treated by a veterinary surgeon, under an arrangement by which defendant agreed to keep and care for her at his own expense, and plaintiff; was to pay the surgeon. In November, defendant wrote plaintiff that the mare was well, and to come and get her, to which plaintiff replied under date of November 21st, as follows:
    “I will write you that I do not buy a horse at that price, and then not have any. So you have your property, you can keep it. You told me that the mare was a beauty and a dandy, and if she wasn’t right you would make her all right. That don’t correspond with the heading of your letter at all.”

      Meanwhile the first payment became due, and defendant seized the property covered by the mortgage. Plaintiff brought this suit (replevin) to recover the property, and recovered verdict and judgment in both the justice and circuit courts.

      Foster. & Orolser, for appellant.

      Tuner d Gates, lor appellee.
   Grant, J.

(after stating the facts). Plaintiff’s right of recovery depends upon whether a warranty was given, and whether the mare was sound, according to its terms. Errors are assigned upon the testimony and the charge of the court.

1. It was not error to permit the plaintiff to testify that he relied upon the warranty in making the purchase. If he had not relied upon it, he could not have recovered.

2. One Schubert, a witness for plaintiff, testified that about the middle of July he noticed a puff on the right hind leg 'of the mare; that it looked like a bog spavin; that he was raised on a farm with horses, had been a blacksmith 15 years, and that he did not think such a spavin would appear within a week after it had been contracted. On cross-examination he testified that he had never watched one until it was fully developed, that he had reatd some about them, but had .no practical knowledge of them. This testimony was very weak, and evidently could have had but very little, if any, weight with the jury. We cannot, however, say that he had no knowledge on the subject, and we think the court was correct in admitting it, and holding that its weight was for the jury.

3. It is insisted that the court erroneously instructed the jury as follows:

“There has been some evidence introduced for your consideration, in behalf of the plaintiff, tending to show that he took this horse back at different times, and complained to the defendant of the growth of these bunches upon the horse’s hind legs; and the fact remains undisputed that about the 15th of September he took the horse back and left it there, and did not again take possession of the horse.”

Ii is urged that this statement is an encroachment on the province of the jury upon a point where there was a conflict of evidence. There was no conflict upon the question of his taking the horse back September 15th, leaving her there, and not again taking possession. There was a conflict as to when plaintiff first complained to defendant of the bunches. The plaintiff testified directly and positively that he took the horse to defendant at different times, and made complaint. Defendant admits that the horse was at his stable at different times between July 2d and September 15th, but contends that plaintiff made no complaint. The statement of the judge was true, and the only error was that he did not say to the jury that the defendant denied these complaints. This, however, is not the error complained of. It is entirely proper for a court to tell the jury what the theory of each party is, and that his evidence tends to support it, and it is for them to examine the evidence, and determine what the facts are upon which their verdict must be based.

4. The court said to the jury that there were but two questions for them, to decide. (1) Did the defendant, at the time of the sale of the mare, warrant her to be sound? And (2) if such warranty was made, was she sound at that time? It is now insisted that there was another question for the jury to pass upon, viz., whether the agreement that the defendant should keep and care for the horse while she was being treated, and that the plaintiff should pay the surgeon’s bill, w»as not a settlement of any defect in the warranty. It does not appear that this question was raised upon the trial, or the attention of the court called to it. The point, therefore, cannot be considered in this court.

5. The court said to the jury that plaintiff stated in his letter of November 21st “that he would not take the horse, as he considered that there had been a breach of the warranty.” We think this is the correct construction to be placed upon the letter.

G. It is nest insisted that the court erred in charging the jury that “ there is no evidence in this case that the unsoundness of the horse originated from any other cause than the defects upon the hind legs of the animal.” Counsel have not pointed us to any testimony in the record upon which they rely to controvert this statement of the court. It was the duty of counsel in their brief to point out such testimony, if there was any.

The judgment is affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    FREY v. CALHOUN CIRCUIT JUDGE.
    Ceiminal Law — Trial for Felony — Verdict—'Voluntary Absence of Accused.
    Where one on trial for a felony, who is out on bail, fails to appear at the hour to which court has adjourned pending the deliberations of the jury, a verdict rendered in his absence is valid, notwithstanding the provision of 2 How. Stat. § 9568, that no person indicted for a felony shall be tried unless personally present during the trial.

      Mandamus by Oren J. Frey against Clement Smith, circuit. judge of Calhoun county, to compel the entry of a judgment of acquittal in a. criminal case against relator.
    Submitted November 5, 1895.
    Denied November 19, 1895.

      JEulbert & Meohem, for relator.

      O. S. Glarlc, Prosecuting Attorney, for respondent.
   McGrath, C. J.

Kelator was on trial under 2 How. Stat. § 9093. After tbe jury bad retired, tbe court adjourned until tbe next morning at 8 o’clock. When tbe court reconvened, tbe jury reported tbat they bad agreed upon a verdict. They were admitted, rendered a verdict of guilty, and were discharged. Within a few minutes, tbe respondent, who was out on bail, came into court, and tbe fact of his absence at tbe time of the rendition of the verdict was then made known to- the court. The jury bad separated, but, after not lessi than half an hour and not more than three-quarters of an hour bad elapsed, tbe jury were called together, and again announced their verdict in tbe presence of tbe respondent, and were polled by tbe clerk. Counsel for t'he prisoner afterwards moved tbe court for respondent’s discharge, and this is an application for a mandamus to compel tbe court to make such an order.

Eelator’s contention is that be was-on tidal for a felony; tbat tbe statute (2 How. Stat. § 9568) provides tbat no-person indicted for a felony shall be tried unless personally present during tbe trial; that the trial includes the receipt and record of the verdict; tbat tbe first verdict was rendered in his absence; that tbe second verdict was rendered after tbe jury had separated; and that be has been once in jeopardy, and is therefore entitled to bis discharge.

The general rule is that a trial for a felony cannot be had without the personal presence of the accused. We have a statute which recognizes and embodies this rule. 2 How. Stat. § 9568. It is also well settled that tbe trial is not concluded until the verdict is received and recorded. There are cases which bold that a verdict rendered in tbe absence of the prisoner, whether be be in custody or out on bail, is void. State v. Hurlbut, 1 Root, 90; Clark v. State, 4 Humph. 254; Sneed v. State, 5 Ark. 431. Few cases will be found which go to this extent, and, in nearly all of the eases where a verdict rendered in the absence of the accused has been held erroneous, tbe respondent has been in custody, and has therefore been prevented from attending-. When, however, the absence of the prisoner is not an enforced absence, but is voluntary, as when he is out on bail, and has been present during- the trial, but voluntarily leaves the court room pending the deliberations of the jury, or neglects to appear at the adjourned hour of the court, the clear weight of authority favors the rule that a verdict rendered under such circumstances is valid and binding. In Arkansas a statute enacted since the decision of Sneed v. State, supra, Brown v. State, 24 Ark. 620, and Osborn v. State, Id. 629, provides that, if defendant escapes, from custody pending- the trial, or, if o,n bail, he shall absent himself, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney. The constitutionality of this statute was upheld in Gore v. State, 52 Ark. 285. In Hill v. State, 17 Wis. 697, it was held that the burden was upon the prisoner to show‘that he was deprived of the right to be present. In Wilson v. State, 2 Ohio St. 319, it was held that when defendant is on bail it is not error to ■receive a verdict in his voluntary absence. In Fight v. State, 7 Ohio, 181, respondent, being on bail, had absconded during the trial, and it was held proper to proceed with the trial. In Rose v. State, 20 Ohio, 31, the prisoner was in custody, and it was held that a verdict received in his absence should have been set aside. In Sahlinger v. People, 102 Ill. 241, it was held that, where a prisoner, pending'the trial, voluntarily abandons the court room, he will be regarded as having waived a right Which is guaranteed to him, and the court may proceed in his absence. In Price v. State, 36 Miss. 531, it was held that, where defendant voluntarily absents himself, he cannot complain. In Finch v. State, 53 Miss. 363, respondent was in custody.

In Barton v. State, 67 Ga. 653, the court say the presence of the defendant is necessary for himself mainly in order to exercise his right to poll the jury.

“Any arrangement be had made with a private person to let him know when the jury would be ready to deliver the verdict, and the failure of such person to comply with his promise, cannot affect the point. It was his duty and! obligation in his bond, as well as his right, to be present until the close of his trial, — the rendition of the verdict; and, being free, it was for him to provide so as to be present.”

The court distinguishes that case from former decisions, where respondent was in custody at the time of the rendition of the verdict.

In Lynch v. Com., 88 Pa. St. 189, defendant was on bail, and left the court room while the jury were out, and in. his absence the jury came in and rendered the verdict.. Held to be no ground for a motion in arrest of judgment..

The New York cases called to our attention do not de-. termine the question here presented. In People v. Perkins. 1 Wend. 91, the prisoner was in custody. In Maurer v. People, 43 N. Y. 1, the jury returned into the court at midnight, and, in the absence of the prisoner, asked certain, questions, to which the court replied. It does not appear-from the reported case whether the prisoner was at liberty or not. In Mills v. Com., 7 Leigh, 751, the verdict was defective, in that the jury had not fixed the term of imprisonment, and the court undertook to supply the 'omission after the discharge and separation of the jury. State v. Alman, 64 N. C. 364, involved the right of the court to discharge the jury, which had failed to agree, in the absence of the accused.

In the recent case of Com. v. McCarthy, 163 Mass. 458, the question has been fully considered, and the rule adopted that, when a defendant on trial for felony, Who is on bail, voluntarily absents himself without leave when the jury retire for deliberation, and remains absent, a verdict rendered in his absence will be binding. In the present case, the court having adjourned until the next morning, the respondent was justified in assuming that nothing would be done until that time; but he was bound to take notice of the hour at which the court convened, and bis absence thereafter must be regarded as voluntary, and the eonrt would have been justified in treating it as a waiver of his right to be present.

The verdict first rendered must be treated as valid, and the writ must therefore be denied.

The other Justices concurred.


author: GRANT, J.

text:
    MILLARD v. LENAWEE CIRCUIT JUDGE.
    1. Garnishment- -Sufficiency op Appidavit.
    An affidavit for a writ of garnishment, made upon the same day with the commencement of the original suit, and reciting that the suit is “ about to be commenced,” is sufficient under 3 How. Stat. § 8058, providing that the affidavit shall be filed “ at the time of or after the commencement of suit,” but not specifying the time for making it.
    2, Same — Clerical Error in Summons.
    A garnishee summons which, by a clerical mistake, warns the agent of the plaintiff who made the affidavit, instead of the garnishee, to pay no more, money to the principal defendant, is not fatally defective, but may be amended so as to conform with the statute.

      Mandamus by Ida M. Millard to compel Victor H. Lane, circuit judge of Lenawee county, to vacate an order quashing certain proceedings in garnishment.
    Submitted November 5, 1895.
    Granted November 19, 1895.

      Watts, Bean & Smith, for relator.

      Morgan & Priddy, for respondent.
   GRANT, J.

Relator sued one Mrs. Hays, garnishing Waldby & Clay’s State Bank. The bank filed a disclosure, and afterwards moved to quash the garnishee proceedings, which motion prevailed. The object oí this petition is to set aside that order.'

1." The affidavit for the writ of garnishment was made before the original suit was commenced, but on the same dajT, ajid stated that “a suit was about to be commenced.” The statute does not require the affidavit to be made at the time of or after the commencement of suit, but provides that such affidavit shall be filed with the clerk “at the time of or after the commencement of suit.” 3 How. Stat. g S058. Where the affidavit is made upon the same day with the commencement of suit, the court acquires jurisdiction.

2. The affidavit was made by Henry C. Smith, as agent and attorney of plaintiff. The garnishee summons •was drawn upon a printed blank, reciting that a suit had been commenced against the principal defendant, and by a clerical mistake it warned the said “Henry C. Smith, agent and attorney of Ida M. Millard, thenceforth to pay mo money to the said Mrs. J. A. Hays.” The statute requires the garnishee defendant to be warned to pay no money to the principal defendant. The court below held the failure to do this to he a fatal defect, and quashed the proceedings for that reason. We think the court was in error. The summons unmistakably showed upon its face that this was a clerical error. It required no extraneous evidence to show it. It follows that the amendment of the writ was proper, and should have been allowed, permitting the insertion of the name of the bank in place of Henry C. Smith.

The writ will issue as prayed.

The other Justices concurred.


author: MontgoMery, J.

text:
    SHERWOOD v. IONIA CIRCUIT JUDGE.
    Justices of the Peace — Appeal Bond — Waiver op Defect^.
    By appearing generally at the circuit in a case appealed from justice’s court, the appellee waives his right to insist on a dismissal of the appeal for mere formal defects in the appeal bond. So held where, “ in response” to a motion for security for costs, the appellee moved to dismiss on the ground that the justification of the sureties was taken before a notary public, instead of a justice of the peace or the county clerk, as required by 3 How. Stat. §§ 7000; 7001.

      Mandamus by Josiah W. Sherwood and another to compel Frank D. M. Davis, circuit judge for Ionia county, to dismiss an appeal from justice’s court, and to vacate an order requiring relators to file .security for costs.
    Submitted November 5, 1895.
    Denied November 19, 1895.

      J ohn Niohol, for relators.

      Dwight Goss, for respondent.
   MontgoMery, J.

Relators recovered a judgment before a justice of the peace against Lida A. Miller on the 29th day of April, 1895. An appeal was taken within, the five days allowed by statute, a proper affidavit being filed, and a bond in amount sufficient and in proper form, save that the affidavit showing the responsibility of the .sureties was sworn to before a notary public. The statute (3 How. Stat. § 70.00) requires that the bond or recognizance shall be taken before the justice by whom the judgment is rendered, or by some other justice of. the peace of the county, or by the county clerk, and section 7001 provides that no justice of the peace or county clerk shall take any bond or recognizance on appeal unless the person or' persons entering into the same as surety justifies Ms or their responsibility on oath. Subsequently, and on the 17th of May, the relators entered a general appearance in the circuit court. In July a motion for security for costs was made by defendant. Tbe notice of this motion was insufficient, and, on the same day on which the motion was noticed to be heard, an order was. made requiring plaintiffs to show cause why security should not be ‘Ordered. On the return day of this orderrelators entered a motion to dismiss the appeal on the ground that the bond was insufficient for the reason that the justification was not taken before the proper authorities, and opposed the motion for security on the same-ground. The circuit judge ordered security, and refused to dismiss the proceeding. Mandamus is now -asked to compel the circuit judge to enter an order of dismissal. In their petition the relators state that they entered the-motion to dismiss “in response” to the order to show-cause why the security should not be required. We assume that this is the fact, as it is quite evident that plaintiffs were not apprehensive that the bond was insufficient for their protection.

A general appearance gives jurisdiction, and is a waiver of defects in the bond, at least to the extent that after such appearance it is not the right of the defendant to have the case dismissed. 1 Enc. Pl. & Prac. 1000, 1001; McCombs v. Johnson, 47 Mich. 592. We do- not hold that before an appearance the appellee may not move in form for a dismissal on account of a defect in the bond, or that on such motion the circuit judge may not enter an order nisi for the dismissal on failure to file a new bond; but a general voluntary appearance is a waiver of the right to. insist on a dismissal for mere formal defects. The appellee may still have the right to move for a new bond on a proper showing, but such is not the motion in this case. On the contrary, the present motion is an attempt to assert a technical right, which the appellees had waived, “in response” to an application which defendant had a perfect right to make.

The writ will be denied, with costs.

The other Justices concurred.


author: Long, J.

text:
    O’HALLORAN v. MAYOR AND RECORDER OF JACKSON.
    1. Liquor Bonds — Approval by City Council.
    General provisions of a city charter regulating the enactment of ordinances and resolutions have no application to the performance of the duty imposed upon the common council by section 8 of the liquor law of 1887 (8 How. Stat. § 2383dl) with reference to the approval of liquor bonds.
    2. Same.
    Under the statute cited, a majority vote of the members present at a legal meeting of the council is sufficient to approve the bond, in the absence of conflicting provisions in the charter.
    5. Same — Authority of Mayor.
    The approval of the bond by the mayor is unnecessary, where the charter does not require it; and the fact that under the charter all ordinances and resolutions must receive the approval of the mayor, and that a provision enacted subsequent to the general liquor law confers upon the council the power to regulate, license, prohibit, and suppress saloons, does not necessitate the mayor’s approval of the bond, where no action has been taken by the council under the power so conferred.
    . Certiorari to Jackson; Peck, J.
    Submitted November 5, 1895.
    Decided November 19, 1895.
    Edward O’Halloran and Charles Elliott, applied to ■the circuit court for' mandamus against Andrew J. YVeatherwax, mayor, and Charles P. Hunt, recorder, of the city of Jackson, to compel the approval of a liquor bond. The writ was issued as against the respondent Hunt, who brings certiorari.

    Affirmed.

      Blair, Edwards & Blair, for relators.

      William E. Ware, city attorney, for petitioner in ■certiorari.

   Long, J.

On June 8, 1895, the relators presented their liqour bond to the common council for approval. No question is made as to tbe form of tbe bond or tbe sufficiency of tbe sureties. The bond was referred to a committee, and tbe committee reported it back with a recommendation that it be approved. The report was not adopted, as 9 of tbe members voted in tbe negative and only 6 in tbe affirmative. There were 16 aldermen in all. At tbe same meeting of the council, with only 15 aldermen present, a motion to approve tbe bond was declared carried, S voting for approval and 7 against. These proceedings were referred to tbe mayor, who on June 24th returned tbe same with bis disapproval, giving certain reasons therefor. Demand was thereupon made upon tbe recorder of tbe city to certify tbe action of tbe council on the bond. This was refused. Relators thereupon filed a petition in tbe Jackson circuit court for a mandamus to compel tbe mayor to file bis approval of tbe bond, and tbe recorder to indorse upon tbe bond tbe approval of tbe council. The cause was beard in the circuit, and tbe prayer of tbe relators granted as to the recorder and tbe petition dismissed as to tbe mayor. Tbe case conies to tliis court by writ of certiorari.

It is tbe contention of relators (1) that the vote of eight to seven was sufficient, under tbe charter, to approve tbe bond; (2) that tbe common council is tbe final judge of tbe sufficiency of liqour bonds, and that nothing remains to be done, after tbe action of tbe council, to make tbe bond effective, but the indorsement of such action on tbe bond by tbe recorder of the city, who is tbe clerk of the council. On tbe other band, it is contended by counsel for respondents that, there being no ordinance of tbe city regulating tbe performance of the duty to approve liquor bonds, it could be performed only by action or resolution having tbe force of an ordinance, which under section 1, chap. 7, of tbe charter (Act No. 414, Local Acts 1889), required a majority vote of all tbe aldermen elected, and that therefore the bond was not approved. We think this contention cannot be sustained. No provision of tbe charter requires tbe approval of liquor bonds to be by general ordinance, and section 8 oí Act No. 318, Pub. Acts 1887, leaves tbe approval to tbe common council. A majority vote of tbe aldermen present may approve, a quoram being present. „

Tbe charter gives the common council tbe power to “regulate, prohibit, and suppress ale, beer, and porter bouses, and all places of resort for tippling and intemperance; ® to regulate and license all taverns and bouses of public entertainment; all saloons, restaurants, and eating-houses.’’ Local Acts 1889, Act No. 414, chap. 9, § 1. Tbe legislature may confer upon tbe common council the right to determine tbe places where saloons may be kept, and to determine that question upon each application. Sherlock v. Stuart, 96 Mich. 193. Under the charter, tbe common council consists of two aldermen from each ward, and tbe recorder, but tbe recorder has no vote therein. Section 1, chap. 6, of tbe charter. Tbe mayor is made the chief executive officer of tbe city, with certain powers in tbe charter enumerated. He has no vote or voice in tbe deliberations of tbe council, but tbe charter provides that no ordinance or resolution shall be of any force without the written approval of the mayor or other person performing for tbe time being tbe duties of his office, etc. Tbe approval of the bond cannot be said to have required an ordinance or resolution. It was approved by motion, which was carried by a majority vote. The liquor statute requires tbe approval of the council, and the charter has not so modified or changed tbe statute that the mayor’s approval was necessary.

Tbe court below was of tbe opinion that tbe approval of tbe mayor was unnecessary, and we think that conclusion correct. The petition was therefore dismissed as to tbe mayor, and tbe order was made requiring the recorder to indorse the approval of tbe council upon tbe bond. That order must be affirmed.

Tbe other Justices concurred.


author: McGrath, G. J.

text:
    McGRAW v. SAMPLINER. WILE v. SAME.
    1. Trover by Mortgagee — Right to Possession.
    A second mortgagee cannot maintain trover against an attaching creditor of the mortgagor, who took the goods from the possession of the first mortgagee, where the latter has not waived his rights, nor. the second mortgagee become subrogated thereto.
    2. Trover — Return of Property — Mitigation of Damages.
    In trover against an attaching officer, the fact that, before the commencement of suit, the goods had been returned to the person who was in lawful possession of the same at the time of the seizure, may be shown in mitigation of damages.
    Error to Gratiot; Daboll, J.
    Submitted November 5, 1895.
    Decided November 19, 1895.
    Separate actions of trover by Alexander 0. McGraw and others, copartners, doing business as A. 0. McGraw & Company, and Julian M. Wile and Simon Stern, surviving partners of the firm of Wile, Stem & Company, against Adolph W. Sampliner and others. From a judgment for plaintiffs in each action, defendants bring error.
    Reversed.

      Kelly 8. 8earl and Byron H. Sawyer, for appellants.

      Sloman, Groesbeeh é Robinson (George P. Stone, of counsel), for appellees.
   McGrath, G. J.

In December, 1892, Herman Alpern gave to Bertha Hill a mortgage upon his stock of merchandise for $3,000. He afterwards gave five other chattel mortgages upon the same stock, one of which ran to A. C. McGraw & Co. and another to Wile, Stern & Co. These five mortgages were expressly made subject to the Bertha Hill mortgage. Defendants, creditors ■of Herman Alpena, on the 19th day of December, 1892, attached the stock, subject to all the mortgages except that given to Bertha 1-Iill, claiming that the Hill mortgage was fraudulent and void. When the officer undertook to make the levy, he found Bertha Hill in possession, but, upon demand made, possession was surrendered to the sheriff, who made the inventory. After the completion of the same, Bertha Hill demanded the goods, but the officer refused to surrender them. Plaintiffs also demanded them, but the officer offered to allow them to have joint possession, but would not surrender possession, or agree that, if the goods were sold, he would allow them to be taken from the store. Afterwards the attachment was dissolved, and on February 11, 1893, the goods were returned to the possession of Bertha Hill, and notice thereof was given to plaintiffs. Five days after the surrender of the goods, as aforesaid, plaintiffs brought trover against the creditors so1 levying the attachment, joining the sheriff as a defendant.

It is a well-settled rule that, to entitle a party to maintain trover, he must have had either actual possession of the property, or the immediate right to the possession. The sheriff had taken the goods from the possession of the first mortgagee. As against her, plaintiffs did not have the right of possession. She had not waived her right, but, on the contrary, was present, demanding a return of the property. Plaintiffs had not, by payment of the first mortgage, or payment of the amount into court to await the result of that suit, acquired the right to possession. The officer, upon the dissolution of the attachment, properly delivered the goods to the first mortgagee, who alone had the right to. possession, and he could not have done otherwise. Until the first mortgage had been declared invalid, or plaintiffs had satisfied that lien, their interest in the property did not entitle them to possession. The wrongful seizure did not divest the first mortgagee of the right of possession, or transfer that right to plaintiffs. The case comes within the rule laid down in Axford v. Mathews, 43 Mich. 327. There the officer attached the goods in the hands of the mortgagee, and the assignee of the mortgagor brought trover, and it was held that the remedy was- not applicable.

The officer returned the property to the person from whom taken, who is conceded to have been lawfully in possession, at the time when so taken. While that, of itself, may not be a bar to the action, yet the fact may be ■shown in mitigation of damages, which in such case would be nominal only, unless injury to. the property, or, possibly, by reason of the detention, be shown. Watson v. Coburn, 35 Neb. 402; Farr v. State Bank of Phillips, 87 Wis. 223.

The judgment is reversed, and judgment here for defendants, with costs <of both courts.

The other Justices concurred.


author: MoNtgomerv, J.

text:
    RAFFEL v. EPWORTH.
    1. False Representations — Relíanos oe Party Defrauded.
    A contract will not be avoided for misrepresentations the-falsity of which was made known to the party complaining-before the completion of the transaction.

      2. Vendor and Vendee — Foreclosure oe Mortgage — Defenses.
    It is no defense to a suit to foreclose a purchase-money mortgage that knowledge of an outstanding incumbrance was
    . withheld from the vendee, where the vendor had at the time arranged for its release, and it was so released after the filing of the bill, and before damage had resulted to the defendant.
    3. Same.
    A mortgage payable absolutely at a specified time, given to-secure the payment of another incumbrance on land conveyed to the mortgagee, may he foreclosed by him upon, default, without first paying off such incumbrance..

      Appeal from Wayne; Frazer, J.
    Submitted November 6, 1895.
    Decided November 19, 1895.
    Bill by Frederick' Raff el and Mary Raff el against Alice E. Epwortb to foreclose a mortgage. From a decree for •complainants, defendant appeals.
    Affirmed.

      Henze & Blade, for complainants.

      ■John Galloway and Henry M. Du Bois, for defendant.
   MoNtgomerv, J.

This suit was instituted to foreclose a mortgage for $350 given May 13, 1893, and payable August 2, 1893, according to the terms of an accompanying note. The bill was filed September 15, 1893. The defendant set up original matter in her answer, and ■asked for affirmative relief. The facts set up1 in the ■answTer as constituting a defense are that the defendant was the owner of 40 acres of land in the township of Romulus, subject to two mortgages, which aggregated in amount $350; that on the 13th of May, 1893, she agreed with the complainant Frederick Raffel to exchange this farm for a house and lot in Springwells, and, to make the exchange even, gave the mortgage in question as an indemnity against the mortgage on the farm; that said complainant represented to her that the lot which he was trading included all the land between the two fences then forming the inclosure in which the house stood, and that it was 00 feet front by 150 feet deep; whereas the land conveyed consisted of a single lot 30 feet by 150. The defendant also sets up that the house and lot were subject to a life lease, and that this fact was concealed from her at the time. It is also' contended that complainants were not entitled to foreclose until they had been compelled to pay or had paid the mortgage on the farm.

The case is not altogether clear on its facts. There is ample room for finding that defendant did expect that ■she was to receive 00x150 feet of ground, and there is direct testimony, aside from her own, that the complainant represented the property to her as of these dimensions. On the other hand, such representations are strenuously denied, and the fact appears that the conveyance was of a single lot, which, according to the abstract, was but 80 feet in width, and it would appear that it is not common to plat lots in Detroit or its suburbs as wide as 60 feet; but the most significant testimony is that of Mr. Ohms, the attorney who drafted the deed to defendant, which is to the effect that there was a sale of personal property to the complainant at the same time, and, after the deed and mortgage were drafted, the papers were left with him, to be delivered when complainant should pay $170, the purchase price of the personal property. A few days after the deed was signed, and before payment of the $170, the parties met in his office, and defendant there stated that she supposed that the lot had a frontage of 60 feet. He (Ohrns) at once called complainant’s attention to this claim, and complainant insisted that he had conveyed just what he agreed to. Mr. Ohms then stated to the defendant that, if there was any error, then was the time to- correct it. She then announced that she was satisfied, and accepted the $170. This testimony is corroborated by other witnesses. The complainant, it is true, fixed the time of this conversation on the 18th, the day when the deed and mortgage were signed;' but it is quite possible he is confused as to the date or occasion. Thi-s testimony is contradicted, but there is nothing improbable in it, and whether it is to be credited depends upon the credibility of the witnesses. The circuit judge, who- saw the witnesses, evidently accepted the testimony of the witnesses for the complainants; and, while we are not as well ■satisfied as we would wish to be, we think that on the whole the weight of testimony supports complainants’ contention on this point.

As to the incumbrance of the life lease, it seems oomplainant had an arrangement with his father for its-release, and it has been in fact released lo him since the bill was filed, so that no damage resulted to-defendant.

The mortgage in terms provided for the payment of the $350 August 2, 1893. Mrs. Epworth swears that it was-given by her to secure the payment of the mortgages on the farm. This mortgage was n'ot, therefore, according to her testimony, given as a mere indemnity, but was security for the payment of the mortgages. The breach entitled complainants to foreclose. It was evidently not the intention of either party that the complainants would be bound to pay off the incumbrances before they should be entitled to resort to their security.

Decree affirmed.

The other Justices concurred.


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    MERCHANTS’ NATIONAL BANK v. GREGG.
    Non-Negotiable Note — Assignment.
    The indorsement and delivery of a non-negotiable note by the payee operates as an assignment of the note.
    Error to Bay; Maxwell, J.
    Submitted November 6, 1895.
    Decided November 19, 1895.

      Assumpsit by the Merchants’ National Bank of Battle Creek against John A. Gregg on a “railroad aid” note-From a judgment for plaintiff upon verdict directed by the court, defendant brings error.
    Affirmed.

      Simonson, Gillett d Court-right, for appellant.

      T. A. E. d J. C. Weadoch, for appellee.
   Grant, J.

This suit is brought upon a railroad aid note, which is as follows:

“$50. West Bay City, Mich., August 15,1888.
“For the purpose of promoting and aiding the construction of the Battle Greek & Bay City Railroad, and in consideration of the benefits to be derived therefrom, I do hereby promise and agree to pay to the order of Geo. H. Young, trustee, the sum, of fifty dollars, payable when the road is constructed and the cars are running thereon from Midland to West Bay City, Michigan.
“John A. Gregg.”

The declaration contained a special count setting forth the note or contract, and alleging that it was sold, assigned, transferred, and delivered to the plaintiff, and indorsed in writing as follows: “Without recourse. George H. Young, as Trustee.” The declaration further alleged the fulfillment of the conditions in the note or contract. The defendant pleaded the general issue, with notice of special defense. The sole point now presented is that this is not negotiable paper, and that the indorsement by Young, accompanied by delivery to the plaintiff, does not operate as an assignment. It is conceded that the instrument was not a promissory note with all the privileges of commercial paper. Defendant relies upon the following authorities: Conrad Seipp Brewing Co. v. McKittrich, 86 Mich. 191; Story v. Lamb, 52 Mich. 525; Altman v. Fowler, 70 Mich. 57.

In Conrad Seipp Brewing Co. v. McKittrich the suit was brought by the payee against the maker of the note. No question of assignment was involved, the sole contention being that 2 How. Stat. § 7346, did not authorize a declaration upon the money counts alone.

In Story v. Lamb suit was brought against the indorsee of an instrument which was held not to be a promissory note. It was held that the indorsement of such a contract by the defendant, Lamb, did “no more than transfer the right to recover the money payable on the instrument, and the right to sue therefor, to Story.” It was further said: “It is not an unusual way of transferring such claims, but such indorsement imports no legal liability on the part of the indorser to pay the amount of the claim in case of failure by the debtor.”

In Altman v. Fowler no assignment of the instrument was alleged in the declaration. It was sued upon as a negotiable promissory note. It was held not to be such, and therefore it was necessary to allege the assignment in the declaration. It is there said: “The recovery must be had, if at all, under the count for goods sold and delivered, and the assignment should be a transfer of this claim against defendant, and does not pass by an assignment of the note.”

Neither of these cases decides the question now presented. The record does not show the terms of Mr. Young’s trusteeship. We may fairly infer, however, that he was chosen as the trustee to hold the note until the railroad company had complied with its conditions, upon which, he should transfer the note to the party entitled to it. The natural and usual way to transfer such an instrument is by indorsing and delivering it. An equitable assignment can be made without any deed or writing, by any words or acts showing a clear intention to assign. Clark, Cont. 533; 1 Am. & Eng. Enc. Law, 834. Under 2 How. Stat. § 7344, a parol assignment, good in equity, is equally good at law. Draper v. Fletcher, 26 Mich. 154. We think the indorsement and the delivery constituted an' assignment, and the court properly directed a verdict for plaintiff.

Judgment affirmed.

The other Justices concurred.


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    WESCH v. COMMON COUNCIL OF DETROIT.
    1. Municipal Officers — Fixing Salaries — Authority of Council.
    Under a charter authorizing the common council to fix the compensation of municipal officers, subject only to the provision that the salary of no officer shall be diminished during the term for which he is elected or appointed, the council may, after the appointment of an officer, but before the commencement of his term, fix his salary at a sum less than that paid to the incumbent for the preceding term.
    2. Same — Good Faith.
    In the absence of a contrary showing, a city council will be presumed to have acted in good faith and upon sufficient reasons in reducing the salary of an officer from $1,200 to $5 a year.

      Gertiorari to Wayne; Donovan, J.
    Submitted November 6, 1895.
    Decided November 19, 1895.
    George W. Wesch applied to 'the circuit court for mandamus against the common council of the city of Detroit and others, to compel the 'allowance and payment to him of >a salary at the rate of $1,200 per year, or some other reasonable salary, for his services as meat inspector. The writ was denied, and relator brings certiorari.

    Affirmed.

      Edwin F. Conely and Orla B. Taylor, for relator.

      Charles D. Joslyn, for respondents.
   McGrath, C. J.

Delator was on June 19, 1894, appointed to the office of meat inspector of the city of Detroit, for the term ending June 30, 1895. The charter-empowers the council tp appoint a meat inspector, and the office is created by ordinance, which prescribes the duties,, provides for the appointment by the common council, fixes the term of office at one year, ending on the 30th day of June in each year, and provides that “said inspectors shall each receive such annual salary as the common council may determine.” The charter provides that appointments to office by the common council shall be made in June of each year, and empowers the council to fix the compensation of all officers, elected or appointed, except as may be otherwise provided, but that “the compensation of no officer, fixed by an annual or periodical salary, shall be diminished during the term for which he was elected or appointed.” The compensation of the meat inspector had been fixed for the year before at $1,200, but no salary had been fixed, when relator was appointed, for the year for which he was appointed. Relator qualified upon the day following his appointment. The council afterwards, but before he assumed the duties of his office, fixed the salary at $5 per annum. The term of office commenced July 1, 1.894. On May 28, 1895, relator presented a claim to the council for salary at the former rate, but that body refused to allow it. Relator’s petition avers that prior to the time of his appointment, for 1.5 years or more, there had been a meat inspector, who “had been paid a substantial salary, and the performance of the duties of his office prevented him from engaging in any other employment;” that, “in the light of the above, petitioner accepted said appointment, took t'he o'atlh, and filed the prescribed bond, and from the time of such acceptance and qualification the petitioner has held himself in readiness for the discharge of the duties of the office of meat inspector, and from July 1, 1894, to and including the present moment [June 24,1895], the petitioner has held the office of meat inspector, and performed the duties of such office to the best of his ability.” The petition further avers that the common council bases its refusal to pay on the resolution assuming to fix the compensation at five dollars per annum, and that the action of the council in fixing the salary at five dollars, under the circumstances, is both illegal and unjust to petitioner.

The petition does not aver that the duties of the office continue as they were prior to petitioner’s appointment, and does not state what portion of relator’s time has been taken up with the performance of the duties of the office, nor does it allege that the action of the council was factious. Bad faith or improper motive cannot be inferred from the facts stated, or presumed in the absence of statements upon which such an inference can be predicated; and we must therefore assume that good reasons existed for the reduction of the compensation from the former figure, and the payment of a merely nominal salary. When the petitioner was appointed, he knew that the salary of the office had not been' fixed for the term for which he was appointed. His appointment and acceptance were subject, not only to the right of the council, but to its duty as well, to fix the salary. Fournier v. West Bay City, 94 Mich. 463.

The order of the court below denying the writ is therefore affirmed.

The other Justices concurred.


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    BOARD OF EDUCATION OF DETROIT v. GRANT.
    1. Statutory Bonds — Validity—Surplusage.
    2. Same — Wrong Obligee.
    Where the statute providing for the giving of a bond does not prescribe its form, and expressly declare that bonds not in accordance therewith shall be void, a bond with a condition1 in part prescribed by the statute, and in part not so prescribed, will be sustained, if it be clearly divisible, so far as it conforms to the statute, and the rest will be rejected as surplusage.
    A bond may be valid, though the obligee named be not the one designated by the statute.

      3. Public Buildings — Bond of Contractor — Board of Education as Obligee.
    A bond given to the board of education by a contractor for the construction of a schoolhouse, conditioned for the payment by such contractor and his subcontractors of all claims for labor performed or materials furnished in the erection of the building, is a valid bond under 3 How. Stat. § 8411a, 2 How. Stat. §§ 84115, 8411c, and laborers and material men are entitled to their remedy thereon, although the bond contains an additional undertaking to pay all judgments and decrees rendered for such labor and materials, and to save the board harmless from all liability incurred in connection with the defense of such claims, and although the statute provides that the bond shall be executed to the people of the State of Michigan.
    Error to Wayne; Lillibridge, J.
    Submitted November 8, 1895.
    Decided November 19, 1895.
    Debt upon a bond, by tbe board of education of tbe city of Detroit, for tbe use and benefit of Adam J. Ortb and others, against Alexander Grant, as principal, and James Hannon and Wendlin Springer, as sureties. From a judgment for plaintiff upon verdict directed by the court, tbe sureties bring error.
    Affirmed.

      Harlow P. Davoek and Isaac N. Payne, for appellants.

      Edward E. Kane, for appellee.
   McGrath, C. J.

Defendant Grant, in August, 1892, entered into a contract with tbe board of education to build a schoolhouse. Tbe board required, and Grant, with James Hannon and Wendlin Springer, as sureties, executed, a bond to fhe board, which contained tbe following condition:

“Tbe condition of tbe above obligation is such that, if Alexander Grant, who has executed the annexed contract for the Merrick Avenue schoolhouse, all the work contained in the carpenter’s specifications of the same, and his subcontractors, shall faithfully pay, or cause to be paid, all just claims, when due, for labor performed or furnished, or for materials used, in and upon the building or buildings known as the ‘Merrick Avenue School house/ or for any claim for both labor and materials against the same; and, further, that said Alexander Grant and his subcontractors shall pay any and all judgments in law or decrees in chancery that may be rendered against said Merrick Avenue schoolhouse, in favor of any person or persons, for labor performed or furnished, or for materials used, in and upon the buildings described in said contract, and shall protect and save harmless the board of education from all moneys laid out or expended, or any liability incurred, in the defense of any suit that shall be brought against it to collect such claim or claims for labor and materials, and shall in all respects well and faithfully execute and perf orm, live up to and abide by, the same, according to> the terms thereof, — then this obligation to be void; otherwise, to remain in full force and virtue.”

Upon completion of the work, the board was indebted to Grant in the sum of $1,580.80, and Grant was indebted to various subcontractors, among whom were Hannon & Springer, a firm composed of the sureties upon the bond, in the sum of $2,861.26, and it was agreed that the sum due from the board should be divided pro rata among the subcontractors, and upon payment thereof the board should be discharged from liability. An instrument was then prepared and executed by Grant and the subcontractors, reciting the facts above stated, and the agreement to prorate and release the board, which contained the following provision:

“But in no way releasing said Alexander Grant from the balance remaining due, nor in any way releasing said Hannon & Springer from any liability they may be under to said creditors of said Grant by reason of their being sureties upon his bond to the board of education, and without prejudice in any way to any rights said creditors may have against said Hannon & Springer by or through said bond.”

Grant then executed a receipt in full to the board, and the subcontractors signed an agreement, consenting to the payment of the money to one Fick, which agreement contained the following:

“And the said board be released from all liabilities in the taking of said bond in the matter, or from all demands to date, * * * or in the paying of said money, as above.”

This suit is brought on the bond, for the use of the subcontractors other than Hannon & Springer, to recover the balance due them from Grant. A recovery was had, and the sureties appeal. The contention is that this bond was given to protect the board of education, and is not a bond under 3 How. Stat. § 8411a. .

The statute (2 How. Stat. § 84115) provides that the bond contemplated by it shall be “conditioned for the payment by such contractor or any subcontractor, as the same may become due and payable, of all indebtedness which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished in the erection, repairing, or-ornamenting of such building or works.” The condition of the bond given is substantially that required by the statute. The fact that the bond contains a further undertaking to pay all judgments and decrees rendered for such labor and materials, and to save the board harmless from all liability incurred in connection with the defense of such claims, does not take the bond out of the statute. The liability of the sureties is not attempted to- be extended beyond the clear and express terms of their undertaking. It has been frequently held that, .in the absence of a prescribed statutory form, and- of a declaration that bonds not’in accordance therewith shall be void, if a bond be taken under a statute, with a condition in part prescribed by statute, and in part not so prescribed, yet, if it be clearly divisible, a recovery may be had upon it for a breach of the part prescribed by statute. The super-added part may be rejected as surplusage. U. S. v. Brown, Gilp. 155; People v. Lyons, 7 Daly, 182; Van Deusen v. Hayward, 17 Wend. 67; Ring v. Gibbs, 26 Wend. 502; Walker v. Chapman, 22 Ala. 116; Woods v. State, 10 Mo. 698; Shunk v. Miller, 5 Pa. St. 250; Grant v. Brotherton, 7 Mo. 458; Morse v. Hodsdon, 5 Mass. 314.

Nor will the fact that the obligee named is the board of education, and not the State, defeat a recovery. In Governor v. Allen, 8 Humph. 176, a bond of the receiver of school funds, which the statute provided should be given to the superintendent of public instruction, was held valid, although given to the governor. In Vanhook v. Barnett, 4 Dev. 268, and Justices of Christian v. Smith, 2 J. J. Marsh. 472, a bond directed to be given to the .governor was held valid, although given to the justices of a county. Horn v. Whittier, 6 N. H. 88; Sweetser v. Hay, 2 Gray, 49; Thomas v. White, 12 Mass. 369; Howard v. Brown, 21 Me. 385; State v. Thompson, 49 Mo. 188; Claasen v. Shaw, 5 Watts, 468. In some of these oases the bond was held invalid as a statutory bond, but good as a common-law obligation. It is insisted, however, that in the majority of these cases the bonds were 'official bonds. But that can make no difference in the principle involved. The statute requires the exaction of a bond for the protection of the subcontractors', laborers, and material men, and it can' make no difference in the application 'of the rule that the entire public are not the beneficiaries. The obligor has consented to make the board of education, instead of the State, the trustee for the interested parties. In Supervisors of St. Joseph v. Coffenbury, 1 Mich. 355, a bond given by a county treasurer to the board of supervisors was held to be a good common-law obligation, although there was no statute authorizing said board to receive or exact such a bónd.

The judgment is affirmed.

The other Justices concurred.


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    PINGREE v. MUTUAL GAS CO.
    1. Gas Companies — Excessive Charges — Recovery.
    Charges involuntarily paid to a gas company by a private consumer in excess of the rates prescribed by the ordinance under which the company is operating may be recovered back, although a right of action therefor is not expressly conferred by the ordinance.
    2. Same — Voluntary Payments — Mistake op Fact.
    Where an ordinance provides that a gas company shall not charge consumers more than an average of the rates charged in certain cities, payment of a charge in excess of such rate is not voluntary, where made in ignorance of the fact that it is excessive, even though the consumer be negligent in not ascertaining the fact.
    Error to Wayne; Carpenter, J.
    Submitted October 9, 1895.
    Decided November 26, 1895.

      Assumpsit by Hazen S. Pingree against the Mutual Gas Company to recover overcharges for gas furnished. From a judgment for plaintiff upon verdict directed by the court, defendant brings error.
    Affirmed.

      Henry A. Harmon (Harrison Geer, of counsel), for appellant.

      Mi B. Sutton (Thomas T. Leete, Jr., of counsel), for appellee.
   McGrath, C. J.

Plaintiff paid to defendant during the years 1887 to 1892, inclusive, for gas consumed upon his premises, an aggregate amount of $181.34 in excess of the rates prescribed by the ordinance under which the company operated. The payments were made upon monthly bills rendered on the first of each month, for the gas consumed during the previous month. The testimony is not reported, but, instead, are concessions; and it is conceded that, at the time of the payment of the bills, plaintiff did not know what the average charge was in the cities named in the ordinance. Plaintiff recovered. Defendant insists (1) that the ordinance does not confer a right of action in favor of a private consumer, and (2) that the payments must be regarded as having been voluntary.

The ordinance provides that “said corporation shall in no instance, nor under any circumstances whatever, charge either public or private consumers higher rates for the supply of light than- an average of the rates charged” and paid by such consumers in five cities, naming them. This provision was enacted for the protection and benefit of the consumers. It limited the rate which defendant Could lawfully charge, and a charge in excess thereof was illegal, and its collection .an illegal exaction. The right to recover money illegally exacted does not depend upon the statute. Weet v. Trustees of Village of Brockport, 16 N. Y. 161, note; City of Brooklyn v. Railroad Co., 47 N. Y. 485; Robinson v. Chamberlain, 34 N. Y. 389; McMahon v. Railroad Co., 11 Hun, 350; McGregor v. Railway Co., 35 N. J. Law, 89; Grey’s Ex’r v. Mobile Trade Co., 55 Ala. 387.

As to the second point, it appears that the bills were paid in ignorance of the fact that the rates charged were in excess of the average rate in the cities named in the ordinance. It would be extremely technical to give any other construction to the concession made in the record. It is well settled that a voluntary payment cannot be recovered back; but a voluntary payment is one made with a full knowledge of all the circumstances upon which it is demanded, and without artifice, fraud, or deception on the part of the payee, or duress of the person or goods of the person making the payment. It is equally true that money paid under a mistake of a material fact may be recovered. Ignorance of the existence of the ordinance is not made the basis of the recovery here, but ignorance of the fact that the rates charged and paid were in excess of those in the cities named. The cases relating to the recovery of excessive passenger- or freight rates are analogous in principle to the present case. The right of a party, from whom has been exacted payment of rates of carriage in excess of those fixed by charter or statute, to recover the overcharge, is no longer open to serious question. 1 Wood, R. R. p. 679, § 206; 8 Am. & Eng. Enc. Law, 934; Parker v. Railway Co., 7 Man. & G. 253; N. Y. Central R. Co. v. Lockwood, 17 Wall. 379; W. Va. Transportation Co. v. Sweetzer, 25 W. Va. 434; Peters v. Railroad Co., 42 Ohio St. 275; Mobile, etc., R. Co. v. Steiner, 61 Ala. 559; Heiserman v. Railway Co., 63 Iowa, 732.

Arnold v. Railroad Co., 50 Ga. 304, cited by defendant’s . counsel, holds that if a payment be made through mere ignorance of the law, or paid where the facts are all known, and there is no misplaced confidence and no artifice or deception, an action will not lie to recover it back. In Potomac Goal Co. v. Railroad Co., 38 Md. 226,. the action was for excess of freight paid by plaintiff from July 1, 1864, to March 10, 1871. The statute prohibited discrimination. It was held that the money had been paid voluntarily, under no mistake of fact, and, there being noi circumstances of duress, fraud, or extortion,, the plaintiff was not entitled to recover. In Killmer v. Railroad Co., 100 N. Y. 395, there was no statute fixing the rate or rendering the charges unlawful. Held, that the common-law duty imposed upon common carriers to carry goods upon being paid a reasonable compensation does not preclude special contracts between railroad corporations and shippers regulating the freight charges; and, where freight has been carried for a long course of years at the schedule price, the shipper making, no objection as to the reasonableness of the charge, he must be deemed to have assented to the charge as reasonable, and to have voluntarily waived any objection thereto ; at least, the receipt Of the freight by the company at the tariff rate has no element of extortion, and an action is not maintainable to recover back any portion thereof,. although evidence is given authorizing a finding that the charge was more than a reasonable sum for the transportation. The court in that case distinguish it from the oases arising under charter clauses or statutes prohibiting discrimination or fixing rates, and say:

f,'In those oases there was a violation of a specific statutory duty, and in a.ll of them the payment was made either under protest, or in ignorance of a fact which could only be known in general by the corporation, a/nd which toas concealed from the shipper. What is a reasonable sum for transportation of goods in a given case is often a complex question, into which enter many elements and considerations, and is incapable of exact solution. * * * The company is, doubtless, better informed than the shipper 'as to what would be a compensatory or reasonable charge, but many of the facts which enter into the formation of a judgment on the question are accessible to the shipper.”

A distinction may well be made between cases depending upon the common-law duty to carry goods at a reasonable compensation, and those where, by the statute, the rate is fixed by comparison, or discrimination is prohibited. In the latter class of oases the facts- are peculiarly within the knowledge of the company fixing the rate, and the presumption indulged by the party making the payment would naturally be that the statute was being complied with. The case of Advertiser & Tribune Co. v. Detroit, 43 Mich. 116, arose under a printing contract, and was put upon the ground that, in the absence of fraud, a municipal body which is given the power to allow claims, when it has officially passed upon a claim, must be conclusively presumed to have had at the time full knowledge of all the facts pertaining thereto which a proper investigation would then have disclosed. No such presumption applies to dealings between individuals. The payment in the present case was made in ignorance of a material fact. Of course, no objection or protest was made. An objection would imply knowledge of the fact. Payments made by reason of a mistake or ignorance of a material fact are regarded as invol-un- . tarily made. Ignorance of a fact may be equivalent to a mistake of fact. Hurd v. Hall, 12 Wis. 112. In Fuller v. Railroad Co., 31 Iowa, 187, the court did not decide the question whether a person could recover the overcharge if he knew at the time of payment that it was in excess of the rates fixed, but held that, if he was ignorant of the fact at the time, he could recover. See, also, Swift Co. v. U. S., 111 U. S. 22; U. S. v. Barlow, 132 U. S. 271; Moses v. Macferlan, 2 Burrow, 1005; Beckwith v. Frisbie, 32 Vt. 559; Devine v. Edwards, 101 Ill. 138; Renard v. Fiedler, 3 Duer, 318.

But it is urged that plaintiff was negligent in not ascertaining the fact. But mistake of fact usually arises from lack of investigation. The fact in the present case was not one with which the defendant had nothing to do. Its duty was to know the fact. It presented the bills containing the excessive charges. As is said in Walker v. Gonant, 65 Mich. 19á, the rule is general that money paid under a mistake of material facts may be recovered back, although there was negligence on the part of the person making the payment.

The judgment is affirmed.

Long, Montgomery, and Hooker, J.J., concurred. Grant, J., did not sit.