text:
    BROWN v. WARNER.
    1. Taxation — Partition Fences — Expenses op Fence Viewers —Statutes.
    A void tax for the expenses of fence viewers and repairs to a partition fence under 1 Comp. Laws, § 2415 etseq., paid by the'owner to whom it was assessed to the township treasurer under protest, is recoverable in assumpsit against the collecting officer in person.
    2. Same — Actions—Parties.
    A tax collector is protected from all personal liability in collecting a tax under a warrant fair on its face.
    3. Same — Special Assessments — Local Taxes.
    Assessments for special or local purposes, not being within the rule, an action lies against the collector personally, where no other remedy at law exists.
    Case made from Cass; Des Voignes, J.
    Submitted October 19, 1909.
    (Docket No. 123.)
    Decided December 30, 1909.
    Assumpsit by Charles E. Brown against Albert L. Warner for money had and received. A judgment for plaintiff is reviewed by defendant on a case made.
    Affirmed.

      Smith & Lyle, for appellant.

      John B. Carr, for appellee.
   Moore, J.

The plaintiff and one Isaac N. Snyder were the owners of adjoining farms, between which there was a line fence which was out of repair. Mr. Snyder applied to the fence viewers, under chapter 83, 1 Comp. Laws (sections 2415-2438), to require plaintiff to rebuild his portion of the fence. The fence viewers directed the plaintiff to rebuild his portion, which he refused to do, and it was afterwards built by Mr. Snyder. The fence viewers reported to the supervisor of the township, who spread the tax upon the assessment roll. In due course the tax roll and warrant were delivered to the defendant, who was township treasurer, and he proceeded to collect the tax of the plaintifE, who paid the same, under protest, to defendant as township treasurer. Plaintiff brought this case in assumpsit against the defendant personally to recover the tax. The brief of counsel for appellant states:

“The record presents the question whether a township treasurer is personally and individually liable in assumpsit for a tax collected by him as township treasurer under a warrant and tax roll regular on their face, where the tax is shown to be irregular on the trial.”

The case is argued by the attorneys for appellant upon the assumption that the tax was void, that it was paid involuntarily, and that no protest was necessary. The case was tried before the circuit judge without a jury, who made certain findings of fact and conclusions of law. Among other things, he found the tax was void. He also found as follows:

“Afterwards the supervisor of the township of New-berg placed for the year 1907 the same upon the assessment roll in a separate column opposite of the land owned by the plaintiff, Charles E. Brown, in these words, ‘Line fence $69.14,’ and the warrant of that year attached to the roll of that year refers to this line fence and to the $69.14 as follows: ‘Collect $69.14 for line fence,’ ‘Recapitulation: Line fence to I. N. Snyder $69.14.’ The assessment roll for said township for the year 1907 has the figures $69.14 opposite the description of plaintiff’s farm and under the dollar mark, and the words ‘ line fence’ appear written in same column, and on the margin of the roll opposite the description are written the words, ‘ The within line fence tax of $69.14 is paid under protest.’ The certificate contains these words: ‘ Expenses of Fence Viewers Isaac N. Snyder line fence, $69.14.’ The warrant contains these words: ‘ Collect $69.14 for line fence.’ ‘Recapitulation: Line fence to I. N. Snyder, $69.14.’”

It is insisted by the appellant that the tax roll and warrant are regular on their face, and that the township treasurer cannot be held liable personally for collecting a tax spread under such a roll. We quote:

“ The rule that a tax collector is protected from all personal liability in collecting a tax under a warrant fair on its face is absolutely required for the due dispatch of public business. Cooley on Taxation (3d Ed.), p. 797.”

Counsel cite Moss v. Cummings, 44 Mich. 359 (6 N. W. 843); Aspell v. Hosbein, 98 Mich. 121 (57 N. W. 27); Curtiss v. Witt, 110 Mich. 131 (67 N. W. 1106); and several cases from outside the State.

There is no serious controversy about the rule. The question is whether it is applicable to the facts disclosed by this record. The record shows upon its face that the tax levied is an unusual one, that it is for a local purpose, that it is to defray the expenses of fence viewers “ Isaac N. Snyder line fence.” In Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. 824), in a case brought to collect a drain tax, it was held that the laying out of drains was a local matter, that the assessment made for the construction of a drain was a local assessment, and that in collecting the assessment the township treasurer is not acting as the agent of the township. To the same effect is Camp v. Township of Algansee, 50 Mich. 4 (14 N. W. 672). In Anderson v. Hill, 54 Mich. 477 (20 N. W. 549), plaintiff sued defendant to recover for a tax assessed against him which was assessed to pay for a work of internal improvement. The tax was paid under protest. In disposing of the case Justice Champlin, speaking for the court, used the following language:

“The first question to be considered is whether, if any action can be maintained at all,, it should have been brought against the township, and not against defendant. The circuit judge so held in the court below. I do not see how the moneys raised under this act can be considered township moneys. They do not belong to the township, and the township authorities have no supervision or control over their expenditure. The same vote which determines to raise the moneys by tax appropriates them to the purpose specified in the act, and they are to be expended under the supervision of the State board of control of State swamp lands. It is true, they are to be assessed and collected in the same manner as other township taxes are; but this does not make them township moneys. The State and county taxes are assessed and collected in the same manner as township taxes; but that does not make them township moneys. The language of the act merely directs the mode of assessing and collecting, and points out that the money so voted shall be assessed and collected in the same manner as other taxes in the township. The treasurer of the township is made the custodian of the money after he has collected it, until it is paid out or expended under the order and supervision of the State board of control of State swamp lands, simply because the law makes no other provision concerning it. In this respect the case is quite parallel to that of moneys raised for drainage purposes, which it was held were not township moneys, and the township was not liable therefor. Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. 824); Camp v. Township of Algansee, 50 Mich. 4 (14 N. W. 672). If therefore the defendant has received and holds the money of the plaintiff under circumstances which render it inequitable that he should keep it, there is no good reason why an action for money had and received will not lie to recover it back. Indeed, if this is not the case, then there appears to be no remedy at law to enable a plaintiff to recover money under circumstances such as here disclosed.”

See Cox v. Welcher, 68 Mich. 263 (36 N. W. 69, 13 Am. St. Rep. 339).

In Taylor v. Township of Avon, 73 Mich. 604 (41 N. W. 703), in an action to recover drain taxes paid under protest to the township treasurer, Justice Champun wrote as follows:

“The objection is taken that this action will not lie against the township. The plaintiff, however, insists that it is authorized by section 42, Act No. 153, Pub. Acts 1885. This act is the general tax law for the assessment of property and levy of taxes for State, county, town, school, and highway purposes, and relates to no other kind of taxes. Section 42 applies only to the taxes authorized to be assessed by Act No. 153. Drain taxes for benefits do not come within the letter or spirit of this act. The taxes assessed for the construction of drains, as benefits derived to the lands assessed, are authorized, and the mode of procedure to assess and collect the same is provided for, in Act No. 227, Pub. Acts 1885. These taxes are special, and raised and set apart for a special purpose, and can be applied to no other. They are not raised by the township for any of the purposes for which township taxes are assessed and raised. When collected, they are held by the township treasurer subject to be paid out on the order of .the drain commissioner, countersigned by the township clerk. The supervisor acts merely in a ministerial capacity in placing such taxes upon the tax roll of his township.”

We think it follows from these cases: That the tax levied was a special tax levied for a local purpose; that in making the collection the defendant was not the agent of the township; and, as the tax is void, that plaintiff had a cause of action against defendant personally.

Judgment is affirmed.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, C. J.

license: Public Domain

text:
    ROGERS v. PARKER.
    1. Negligence — Master and Servant — Independent Contractor-Negligence in Setting Fires.
    The owner of land who agrees with a tenant to pay a specified sum per acre for clearing his land, is not liable, as for the neglect of a servant, for damage done by the tenant in setting fires which escaped on adjaoent property, the relation being that of an independent contractor.
    2. Same — Independent Contractor — Burning Brush, etc. .
    If the thing to be done is in itself unlawful, or if it is per se a nuisance, or if it.cannot be done without doing damage, he who causes it to be done by another, be the latter servant, agent, or independent contractor, is as much liable for injuries which may happen to third persons from the act done as though he had done the act in person.

    3. Same — -Negligence—Escape of Fire.
    Setting of fires in the process of cultivation is not unlawful.
    4. Same — Statutes.
    3 Gomp. Laws, §§ 11653-11658, creates a liability for the escape of fires from the owner’s premises, when it is the result of personal negligence or a wilful aot.
    Error to Grand Traverse; Mayne, J.
    Submitted October 15, 1909.
    (Docket No. 101.)
    Decided December 30, 1909.
    Case by Martin Rogers and another against George W. Parker for negligently allowing fire to escape upon plaintiff’s premises. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Reversed.

      John W. Patchin, for appellant.

      Lester D. Welch, for appellees.

       As to who are independent contractors, see note to Richmond v. Sitterding (Va.), 65 L. R. A. 445.

   Blair, C. J.

Action on the case to recover damages for destruction of property on plaintiffs’ farm by fire alleged to have been negligently permitted to escape from defendant’s premises. Defendant, being the owner of a tract of 80 acres, of which about one-half was cleared land, and the other half wild land, made a verbal arrangement with one Crawford, whereby Crawford was to crop the land for two-thirds of the crop.' After Crawford had gone into possession, defendant agreed that “he would give me three dollars an acre for all the land I would clear.” There was a conflict in the evidence as to whether the original agreement covered the entire 80 acres or only the cleared portion, and it was open to the jury to find that defendant retained control of the wild land. There was no agreement binding Crawford to clear any specified amount or any amount of land, and there was testimony to the effect that defendant arranged with one Smith, with reference to this same wild land, that he could clear all the land he wanted for one crop. Plaintiffs’ farm joined defendant’s 80 acres on the north. Crawford cleared a few acres, and, in the course of his work, burned up the refuse, having fires going most of the spring, and there was a fire of his setting which escaped from the land being cleared, made its way across the intervening wild land to plaintiffs’ land, and injured their property. Defendant testified:

“ Q. State whether or not you knew at any time that Mr. Crawford was setting, fires that were spreading, or liable to spread, on land that was not cleared.
A. I didn’t know thatit was spreading. I knewthat he was firing over there. It is a common method of clearing land in this country, after it has been logged and brushed, to set fires to the brush heaps and logs. No one had given me any notice during the summer that there were fires upon my land that were liable to spread upon theirs. I may have been to my place where Mr. Crawford was five or six times during the summer.”

Defendant lived at the village of Kingsley, two miles from the farm, where he was engaged in conducting a general store. At the time plaintiffs’ premises were fired, it was quite dry, and a high wind was blowing from the south.

At the close of plaintiff’s testimony, and again at the close of the case, defendant’s counsel moved for a directed verdict, upon the ground, among others, that defendant was not liable, because the negligence, if any, was that of an independent contractor who had exclusive control of the work. The court refused to direct a verdict, but instructed the jury upon this question as follows:

“Now, in relation to the independent contract, there is no question in this case but that, from all the evidence, Mr. Crawford was to receive three dollars per acre for what he did, and that he is a careful person, and if this land had been measured off and was adjoining the land of the plaintiff and the fire had escaped from the lands of the defendant, which this party had taken a contract to clear, directly upon the lands of the plaintiff, then there is no question but what the defendant would not be liable because there is no duty on his part to perform. Let us state that again, gentlemen, in another way: Suppose that this line between these two farms that these parties had fenced off a piece of land, and that the defendant had given Crawford an independent contract, under the circumstances which they claim in this case, to clear that land and fire had escaped from that land. Under these circumstances, I would have to direct you that there was no cause of action. But in this case there were no lands set off. There is a question whether Mr. Crawford was in actual possession of the unimproved lands, and actually the land which he did improve was some distance from the line, so that the fire, if you find it was the fire which came from the defendant’s land and did the damage — that fire had to cross this land of defendant before it entered upon the land of the plaintiff, and that makes a different situation. It is for you to say, gentlemen — there is no question but what there was an independent contract — it is for you to say whether this intervening land was in the possession of Mr. Parker or in the actual and undisputed possession of Mr. Crawford. If Mr. Crawford was, for the time being, the owner of that land, by reason of the lease which was given for one year, then he would have no duty to be looking after it and anticipating that there was negligence on the part of Mr. Crawford. If, on the other' hand, Mr. Parker was in the actual possession of that unimproved land, if he had it under his control and the lease did not cover it, as .claimed by the plaintiff, then he would have a liability in the matter, provided you find that this fire escaped from this land which was being cleared upon this independent contract, upon the land of Mr. Parker — this unimproved land — and by his negligence escaped to the land of the plaintiffs.”

Defendant brings the record to this court for review upon writ of error. We are of the opinion that the court erred in refusing to direct a verdict. The obligations of the parties under the arrangement to clear the land are not free from doubt, but defendant had licensed Crawford and Smith to clear up all of the wild land until he saw fit to revoke their license. Under this license, they could begin upon any part of the land. They could clear an acre here and an acre there, or they could employ a large force and clear it all in one season. Until defendant revoked their license, they had such charge and control of the land as was necessary to enable them to clear it all if they saw fit. But, assuming that defendant’s relation to the uncleared wild land remained unchanged, was his negligence sufficiently established by the testimony ? There was no testimony whatever to charge him with knowledge that there was any fire upon his portion of the wild land, and, if he is to be held responsible, it must be upon the principle that, knowing the dangerous character of fire and its liability to escape and do damage unless preventive measures are taken, he must see to it himself that such precautions are taken. To so hold would be to abolish the doctrine of independent contractor with relation to fires, a doctrine which has received the approval of the courts in many well-considered cases. Shute v. Township of Princeton, 58 Minn. 337 (59 N. W. 1050); St. Louis, etc., R. Co. v. Yonley, 53 Ark. 503 (14 S. W. 800, 9 L. R. A. 604); Ferguson v. Hubbell, 97 N. Y. 507 (49 Am. Rep. 544); Gillson v. Railway Co., 33 U. C. Q. B. 128; same case on appeal, 35 U. C. Q. B. 475; Kellogg v. Payne, 21 Iowa, 575.

It is true that it has been repeatedly held that the rule relieving the employer where the work has been committed to an independent contractor is subject to the well-established exceptions that:

“ If the thing to be done is in itself unlawful, or if it is per se a nuisance, or if it cannot be done without doing damage, he who causes it to be done by another, be the latter servant, agent, or independent contractor, is as much liable for injuries which may happen to third persons from the act done as though he had done the act in person. So it is the duty of every person who does in person, or causes to be done by another, an act which from its nature is liable, unless precautions are taken, to do injury to others, to see to it that those precautions are taken, and he cannot escape this duty by turning the whole performance over to a contractor. Of the same nature is the duty which the law imposes upon every person, who, for his own purposes, brings on his lands, and collects or keeps there, anything likely to do mischief if it escapes, to keep it in at his peril; and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. ” Mechem on Agency, § 747, and cases cited.

These distinctions were considered in the cases above cited and were held, as we think, properly, not to apply. The setting of fires in this State in the process of fitting lands for cultivation is a lawful and proper act, without which the extension of husbandry would have been greatly limited. The statute upon which plaintiffs’ count in this suit recognizes the lawfulness of such fires, and only makes the owner of lands responsible for the escape of fire therefrom to the lands of another where such escape was wilfully or negligently permitted. In other words, the statute recognizes that, if the work is properly done, no injurious consequences will follow, and therefore only holds the owner liable where the work has been improperly done. This statute came under consideration in the case of Boyd v. Rice, 38 Mich. 599. In that case, while James Boyd, the owner of a farm, was absent from the State, his servant, William Boyd, without his knowledge or previous instructions, set fire to a stubble field, from which it escaped to adjoining lands. In the course of the opinion by Mr. Justice Cooley, it was said:

“But while the defendant William Rice [Boyd] might be subject to an action at the common law for his negligence, it seems plain that he cannot be liable under this statute. It was not from his premises that the fire was negligently permitted to spread; and, this statute carefully restricts its penalties to him who wilfully or negligently permits the fire to pass from ‘ his own woods, prairies, or grounds ’ to the injury of another. William Boyd was not within its provisions. But it is quite as plain that James Boyd was not liable for the act of William Boyd, of which he had no knowledge, and for which it is not pretended he was in fault. The private action for the recovery of double damages is only given where the misdemeanor has been committed, and there is no misdemeanor where the owner of the land has had no' knowledge of the fire, and cannot be charged in respect to it with either wilfulness or negligence. He also may have been responsible at the common law for the fault of his servant, but the penal consequences are only imposed by this statute where there has been personal fault.”

While plaintiffs did not claim double damages either in their original or amended declaration, and expressly waived such claim on the trial, they did amend their declaration so as to count on the statute, “being chapter 320, Compiled Laws of the State of Michigan of 1897, particularly sections 11653 and 11658 and all of the sections intervening.” It seems evident that the liability of the owner of lands for negligently permitting fire to escape therefrom is predicated upon his knowledge of the existence of a fire thereon, or, at least, of knowledge of facts which would charge him with notice that the danger of such fire breaking out thereon was imminent. This record is barren of any such evidence, and a verdict should have been instructed for defendant.

The judgment is reversed, and a new trial granted.

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


text:
    PROVIDENCE JEWELRY CO. v. BAILEY.
    1. Sales — Acceptance—Fraud.
    Testimony is admissible under a notice in defense of an action for the price of goods sold, admitting delivery and acceptance and charging that the contract was secured by fraud; it being possible that the fraud was discovered after acceptance.
    2. Same — Contracts—Fraud — Statements Interpreting Written Instruments — Evidence.
    Representations of an agent who sells goods under a written contract, that the terms 'of the agreement give the purchaser fifteen days in which to accept the property, do not constitute such representations of existing material facts as to constitute an inducement on which reliance might be placed, and evidence of the statements is incompetent to vary the terms of the agreement.
    3. Same — Pleading and Practice — Waiving General Issue.
    A plea and notice which admit the right of the plaintiff to recover except for alleged fraud in the procurement of a contract for the sale of goods, and which claim the right to open and close the case, and waive the benefit of the general issue, admit the delivery and acceptance of the goods.
    4. Same — Acceptance—Evidence of Grounds of Refusal.
    The statement in letters to the seller of the grounds on which the purchaser of goods relied in rejecting them is conclusive upon him, and constitutes a limitation of his defense to an action for the price.
    Error to Van Burén; Des Voignes, J.
    Submitted October 15, 1909.
    (Docket No. 92.)
    Decided December 30, 1909.
    Assumpsit by the Providence Jewelry Company against Ed. M. Bailey for goods sold and delivered. A judgment for plaintiff for less than the amount claimed is reviewed by it on writ of error.
    Reversed.

      Carl Benton and David Anderson, for appellant.

      Thomas J. Cavanaugh, for appellee.
   Blair, C. J.

This is an action on a written contract for the sale of certain cheap jewelry, to recover the purchase price. Plaintiff’s declaration counted upon the contract, and in alleging performance thereof avers “ that defendant duly received and accepted said goods.” Defendant, with his- plea of the general issue, gave notice:

‘ ‘ That pursuant to Circuit Court Rule 24 c, the defendant hereby waives the benefit of the general issue, and admits the facts alleged in the plaintiff’s declaration — that is to say, he admits that, except for the facts set forth in this notice, the plaintiff would be entitled to recover upon the allegations set forth in the declaration herein — and waives the necessity of the introduction of the contract described in the declaration, with a computation of the amount due thereon, hereby relying upon the defense herein set forth, and this defendant claims the benefit of said rule in respect to the opening and closing in the taking of testimony and in the argument at the trial of said cause.”

The defense set forth in the notice was, in brief, that defendant’s signature to the contract was obtained by fraud, and it was therefore void and unenforceable.

The contract contained, among other provisions, the following:

“ Terms of Payment — Six per cent, discount for cash in 15 days, or one-fourth of the amount due in 3 months, one-fourth in 6 months, one-fourth in 9 months, one-fourth in 12 months, without interest. The above terms of credit will only be allowed if acceptances to our order are given within 15 days from date of invoice. Otherwise terms are net cash 30 days. Same terms shall apply on all reorders for these goods.”

At the beginning of the testimony plaintiff’s counsel objected to the introduction of any testimony under defendant’s notice, upon the ground that defendant, having admitted acceptance of the goods delivered as a fulfillment of the contract, could not attack its validity. This objection was overruled. Defendant was allowed, against plaintiff’s objection and exception, to testify as to the construction placed upon the portion of the contract, as to terms of payment above quoted by plaintiff’s selling agent, that the contract gave him 15 days to examine the goods:

“ I finally signed the contract with that understanding; that I was to have the goods and give me 15 days to look them over and then if they were satisfactory I could keep them, otherwise I could return them. When he showed me the contract, that particular feature of the contract protecting me, it read: ‘Acceptances in fifteen days.’ I says, ‘This don’t so state in your contract that I can accépt the goods after fifteen days’ examination.’ He says: ‘ Yes, it does. ’ He picked it up. ‘ Well, ’ he says, ‘ It says “ acceptances,” but that is what it means; that is the expression; that is what that term means. It is put that way, but it means that you can have the goods in your care 15 days, and then if you want to keep them and write us and tell us you accept them, that is what that means if you do accept them. If you don’t accept them, you can fire them back.’ ”

• The goods were received by defendant on February 11, 1907, except some trays, concerning which defendant wrote plaintiff on February 18th, concluding his letter as follows:

“Furthermore, I don’t think that I want to accept the goods in the form and manner which you send the ‘ acceptances.’ They are too much like a note or draft. I will be willing to accept the plunder, but not by signing the drafts or notes. Awaiting your advice before putting the goods in the case, and awaiting your shipment of the trays, I beg leave to remain,” etc.

Defendant testified that on February 19th he wrote another letter to plaintiff, which plaintiff’s witnesses testified was never received. Defendant testified to the substance of this letter, as follows:

„ “In that first letter I wrote — I mentioned it was plunder, I think, and I wrote in the second letter that the jewelry, after examination, was nothing only junk and plunder, and I didn’t think I cared to accept it under the form that they wanted me to at all, because I thought it was a fake deal from start to finish and they misrepresented it. It was along that line that I wrote them. I can’t remember exactly my language, but the sense of it was that I did not want the goods, and they was a lot of junk and plunder and poor stuff, and while I would take them according to their contract, according to the agreement made with Mr. Duke, I was satisfied that they wouldn’t do it that way, because it was a fake deal from start to finish. That was the sense of it and I haven’t deviated from that standpoint since then.”

Defendant further testified that he was satisfied in his own mind on the 19th of February that the goods were not as represented. In several subsequent letters defendant stated his position substantially as in his letter of March 13, 1907:

“I beg leave to advise you that I wrote you that I would accept the plunder under the conditions of the contract and agreement with your representative. There is nothing in the contract to signify that I was to give a note, which the form of drafts, which you sent me amount to. I have the mailing list made out, but before sending it, I will await your advice as to this term ‘Acceptance,’ and if you insist bn the form of acceptance in the manner of notes, or certified drafts, I beg leave to advise that I cannot accept the goods that way, but I assure you that when the quarterly payments come due, you can notify me directly and the remittance will go forward to you at once.”

On April 4th defendant wrote.

“ I beg leave to advise you that I stand on the jewelry proposition the same as I first wrote you, that I would not accept the plunder only on the condition which I bought it. I will not honor the draft you mention, neither will I sign the drafts which you term ‘Acceptances.’ I will do as as I agreed to do; if that is not satisfactory, I will fire the goods back to you and pay you for what has been sold, which is very slight, and the case, I will buy of you or return as you wish. I explained the situation as I saw it when the goods came, but it appears to me that you have delayed the answering of that until the 15 days had expired for a purpose.”

In reply to this last letter plaintiff wrote, in part:

“We do not see why there should be any misunderstanding in connection with this matter. The only objection you raise is the signing acceptances-. This is the only real objection, and this provision is clearly specified in the order, and it is absolutely necessary to do this if you wish to pay the account in four equal installments.”

Thereupon, defendant wrote on June 10, 1907, as follows :

“ Upon my return from the West I find your letters, and I beg leave to inform you that I am of the same mind about the plunder as I have previously stated to you, that I would not accept the goods in the manner and form as you desire, and I previously have advised you that if you still insisted that I was to sign the so-called ‘Acceptances ’ that I would return the goods and hold the showcase and trays for your advice as to disposition of the same, or I would purchase the case if your price was reasonable, and conforming to the same I have returned the jewelry with the exception of $10.88 worth, which has been sold, awaiting your conformity to my terms written to you many times.”

At the close of the testimony, plaintiff moved for a verdict in its favor, upon the ground, among others, that defendant, having based his refusal to accept the goods upon his claim that the contract did not require him to give the acceptances demanded, could not rely upon any other ground. This point was also raised by requests to charge. The circuit judge submitted the case to the jury, who found a verdict for defendant, and plaintiff has removed the record to this court for review upon writ of error.

We are of the opinion that the court did not err in overruling plaintiff’s objection to the taking of any testimony, since, although there was an acceptance of the goods, the fraud might only have been discoverable after the acceptance.

We think, however, that the court erred in permitting testimony as to the agent’s explanation of the meaning of the clause as to terms of payment, for the reasons:

(1) That the statements of the agent in this regard were not such representations of existing material facts as to constitute an inducement upon which defendant had a right to rely, and were incompetent, as tending to vary the terms of the written contract. Tradesman Co. v. Manufacturing Co., 147 Mich. 702 (111 N. W. 343, 112 N. W. 708).
(2) That defendant, by its pleading, admitted an acceptance of the goods.

We do not consider it important whether the plaintiff was required, by the rules of pleading, to aver an acceptance in its declaration and prove it upon the trial. It was certainly a material fact in plaintiff’s case, which it might properly aver in its declaration. In effect, plaintiff averred in the declaration that it delivered the goods to defendant, and that defendant, having the right to examine the goods to ascertain whether they were in compliance with the contract, and being under the duty to so examine them, and having the right to refuse to accept them if not in fulfillment of the contract, or for other good reason, did accept them as in fulfillment of the contract, and as obligating defendant to pay the purchase price. We hold, therefore, that by his plea defendant admitted the fact of an acceptance, with the effect which the law attaches to such acceptance.

We are also of the opinion that the court erred in refusing to instruct the jury that defendant was limited to the cause of complaint stated in his letters, and that, such cause of complaint not being sufficient in law to warrant a refusal to accept, plaintiff was entitled to recover the contract price.

Conceding that the jury might find that defendant wrote and properly mailed the letter of February 19th, which he afterwards ignored, and which defendant’s officers testified was never received, his subsequent letters conclusively show that the statements of that letter were not the basis of his claim of right to refuse acceptance. Two letters from defendant were put in evidence, dated, respectively, February 18th and March 13th, stating defendant’s objections. The letter of March 13th plainly refers to the letter of February 18th for the statement of his claim. In a letter written by defendant on March 27th, he says: “I wrote you twice that I would accept the goods which is all that your contract implies,” etc. At the date of this letter, he had written three letters, counting the letter of February 19th, but apparently only relies upon the two put in evidence. In his letter of April 4th he says that he stands on the jewelry proposition “ the same as I first wrote you,” etc. Having clearly notified plaintiff of the ground upon which he stood, he could not be permitted to rely upon other grounds upon the trial. Ginn v. Coal Co., 143 Mich. 84 (106 N. W. 867, 107 N. W. 904).

The judgment is reversed, and a new trial granted.

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


author: Grant, J.

text:
    FORBES v. GORMAN.
    1. Landlord and Tenant — Lease of Portion of Building — Right to Use of Roof.
    The lease by the owner.of a building consisting of several stories, to a merchant, of the first story and basement for use in his business, with license to use the roof for a sign or signs, confers no right to sublet the privilege of using the roof to another person to advertise a separate business, but merely a personal right to advertise the business carried on under the lease.
    2. Same — Right to Use of Outside of Building.
    The lessee of one story of a building obtains the right to use the premises, including the outer and inner walls, for all purposes not inconsistent with the lease, and may put any sign or signs on the walls which work no injury to the freehold.

      3. Same — Rights by Estoppel.
    No right is acquired by estoppel in favor of a tenant who permits a third person for a specified rent to erect a sign on the roof of a building of which he rents a portion, against the owner whose agent discovers the sign in process of erection, and who was not informed of the purpose or compensation for the arrangement.
    Appeal from Wayne; Murphy, J.
    Submitted October 15, 1909.
    (Docket No. 97.)
    Decided December 30, 1909.
    Bill by Jeanette Fisher Forbes against John J. Gor-. man and Walker & Company for an accounting. From a decree for complainant, defendant Gorman appeals.
    Affirmed.

      Godd & Hall (Earl F. Drake, of counsel), for complainant.

      Navin, Sheahan & Bourke, for appellant.
    The bill in this case alleges that complainant was the owner of a building in Detroit, known as the “Fisher Building,” situated at the corner of Lafayette and Michigan avenues; that on June 30, 1902, she leased to one Leon Higer the first floor and basement of said building for five years, “ to be occupied for the sale of clothing, gents’ furnishing goods, hats, caps, boots, and shoes, and such articles as are usually handled and sold in said lines of business;” that said lease contained the following provisions :
    “ Said second party covenants that he will not assign or transfer this lease, or sublet said premises, or any part thereof, for any business more hazardous or reasonably objectionable, than that hereinbefore mentioned, without the written consent of the first party. * * *
    “ It is agreed between the parties hereto that said second party shall be privileged to place and maintain an electric or other sign or signs on the outside of said building, overhead the premises occupied by them, and on the top of said building, during the existence of this lease, and any renewal thereof, provided, however, that said sign or signs shall be placed so as not to interfere with other tenants in said building, in the use and occupation thereof leased to them.”
    That said Higer assigned said lease to the defendant Gorman on March 6, 1905; that said Gorman, at some date unknown to the complainant, made a contract with the defendant Walker & Co., a corporation, purporting to convey to said Walker & Co. the right to place upon the top of said building a conspicuous electric sign of “Wilson Whiskey;” that said Gorman assumed to rent space upon the roof of the building for that purpose, and received pay therefor; that said defendant Gorman refused to inform complainant of the terms of said contract or the amount of compensation he received from Walker & Cb.; that said lease to said Higer contemplated and permitted him, or his assigns, to place upon the roof of said building a sign in connection with the business of said Higer, or his assigns, but for no other purpose. Complainant filed this bill to obtain an accounting of the amounts paid or due under the alleged and suppressed contract between the defendants, claiming that the said amounts belonged to her. Defendant Gorman answered, admitting all the material allegations of the bill except as to the construction placed upon the lease by the complainant, and promised to produce upon the hearing his contract with the defendant Walker & Co. He further alleges that the sign was erected with the consent of complainant’s agent. The case was heard upon pleadings and proofs taken in open court, and a decree entered for the complainant.
   Grant, J.

(after stating the facts). It is agreed by counsel for both parties that the “privilege ’’mentioned in the lease to Higer was a mere license. Counsel for the defendants, in opening their case to the court below, stated their position to be that the privilege granted to erect a sign or signs “ was not a part of the lease or subletting or anything else, but that its erection was sanctioned by Mrs. Forbes through her agent, and that she is therefore es-topped to complain.” Walker & Co. is a corporation organized for carrying on an advertising agency. The sign has no connection with the defendant Gorman’s business. The contract between the defendants recited that the defendant Gorman was the lessee of the main floor and roof of the building. It was executed with all the formalities of a lease and was to continue two years, with the privilege of a third year, at a rental of $450 per annum.

The first and decisive question presented is, What is the nature of the privilege or license granted by the lease? If defendant’s contention be sustained, the lessee acquired the entire use and control of the roof of this building, provided only that he should not interfere with the occupancy of the tenants of the floors above the basement and first story leased by him, and he could sell and convey the right of advertisement to other parties, and thus cover the entire roof with signs. We think the only construction that can be placed upon this provision of the lease is that the right to maintain such a sign or signs was a personal privilege granted to the lessee, or his assignee, to advertise the business to be carried on by the tenant. It was a privilege incidental to his business. The very language of the lease refutes the idea that the landlord was leasing the roof of this building to the lessee for the purpose of profit aside from that which might result from advertising his own business. The lessee was given no dominion over the roof; was under no obligation to keep it in repair. He simply secured the privilege of putting a sign on it. The lease of a building, or of one floor or story thereof, conveys to the lessee the absolute dominion over the premises leased, including the outer as well as the inner walls. Such lessee obtains the right, in the absence of restrictions, to use such premises, including the walls, for all purposes not inconsistent with the lease. He acquires the right to the use of the outer walls, and can put any sign or signs thereon which work no injury to the freehold. The landlord in such a lease retains no right to permit signs or advertisements of other parties to be placed upon the outside walls of the leased building. Otherwise, he might permit the sign of a competitor in business to be placed upon the wall. Such use would be repugnant to the plain terms of the lease. Lowell v. Strahan, 145 Mass. 1 (12 N. E. 401, 1 Am. St. Rep. 422). It was there held that the outer wall was a part of the premises leased. A similar case is Riddle v. Littlefield, 53 N. H. 503 (16 Am. Rep. 388). It is there said:

“The outside wall of a building leased or conveyed passes by the lease or deed as much as the inside of the same wall. * * * The outer side of the wall is but one side of the same wall that has an inner side; and the removal of the wall removes both sides. If, then, a lessee or grantee may have the wall which he pays for, it would seem that he should be entitled to the use of it, not only for purposes indispensable to the occupation of the building, but also for any purpose of service or profit not inconsistent with the lawful and reasonable enjoyment of the property.”

There is another class of cases wherein the owner of buildings or lands, by express contract, rents to the contractos the use of fences, or the outside walls of buildings, for the express purpose of advertising. Such cases are R. J. Gunning Co. v. Cusack, 50 Ill. App. 290; Willoughby v. Lawrence, 116 Ill. 11 (4 N. E. 356, 56 Am. Rep. 758). These and similar cases do not touch the question in the case now before us, a question which counsel concede has not before been presented to this court. Neither is any case cited from other courts “on all fours ” with this. See, also, 14 Cyc. p. 1206; Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124). It seems to us unreasonable to construe this lease as conveying to the lessee of the lower story the sole use of the roof of the building for his own profit. The use of the roof for any purpose was not essential to the full enjoyment of his lease. He was only permitted, if he chose to exercise it, the privilege of putting up a sign, or signs, in connection with his own business.

No question arises upon the right to put signs, for any purpose, on the outside or inside walls of that part of the building leased to the defendant. No reference is made to such use of the walls in the lease. That right, as above stated, follows from the grant, conveyed by the lease. It in no manner affects the separate and distinct privilege to place a sign or signs upon the roof, which is not leased to the lessee of the basement and first floor.

There is no room in this case for the application of the doctrine of estoppel, even if such right could be obtained by parol. Neither the complainant nor her agent had any knowledge of the intention to erect this sign until it was in process of erection. Her agent, in passing the building, discovered what was being done. He at once applied to complainant’s attorney for the construction of the lease, and was informed that defendant Gorman had no right to erect or permit the erection of the sign. Defendant Gorman was so informed. He did not inform complainant of his intention, or of his contract with the defendant Walker & Co., but acted in opposition to her rights under the lease. And when her agent accidentally discovered the sign in process of erection, Gorman did not inform him that he claimed the right, under his lease, to permit the erection of this sign, or that he was to receive any compensation from Walker & Co. for it. He is not in position, therefore, to raise the question of estoppel.

The decree is affirmed, with costs.

Blair, C. J., and Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    SCOTT v. SULLIVAN.
    1. Contracts — Construction—Logging Agreements.
    In a permit to out timber, clauses conveying the right to cut and remove the timber for fifteen years, for the use of the grantee, iron»the lands of the grantor, and to have and “to hold the same for the period aforesaid to the use and benefit ” of the grantee, the contract designating the parties as licensor and licensee, constituted a license to cut and remove the timber, title to which would pass after it should be cut and removed.
    2. Same — Conditions Precedent — Performance.
    Under a condition in such contract that a failure to pay certain taxes should operate as a surrender, cancellation or abandonment of all rights under the contract, and time should be of the essence of the agreement, a failure for three successive years to pay the taxes within the time limited terminates all rights under it as for a breach of a condition precedent.
    3. Same — Inconsistent Theories — Election of Rights.
    A party who insists that no forfeiture has taken place may not claim relief by amended pleadings, upon the inconsistent theory that equity will relieve from a forfeiture upon the tender of performance within the terms of the contract.
    A Same — Forfeiture—Relief in Equity.
    No meritorious case warranting equitable relief from the forfeiture of rights under the agreement is made by testimony showing that the party in default forgot the time allowed to him under his license, and delayed performance after notice of his default, because it would be inconvenient to make the required payments.
    Appeal from Ontonagon; Cooper, J.
    Submitted October 20, 1909.
    (Docket No. 130.)
    Decided December 30, 1909.
    Bill by Emmet H. Scott against Thomas G. Sullivan and others for the foreclosure of a mortgage. W. B. Blake and others intervened, claiming title by virtue of certain tax deeds. From a decree for complainant, said interveners appeal.
    Reversed, and decree entered for interveners.

      A. B. Eldredge and A. E. Miller, for complainant.

      William 6r. Fitzpatrick, for defendant Sullivan.

      Ball & Stone (A. W. Lamson, of counsel), for appellants.
   McAlvay, J.

The bill of complaint in this case was filed for the purpose of foreclosing a certain mortgage given by defendant Sullivan to complainant November 8, 1905, upon 2,040 acres of land of which he was owner in fee, and the timber on 3,520 acres of other land. All of this land was situated in Ontonagon county. The Prather Engineering Company and Edward W. Glynn, trustee, were made defendants, being second mortgagees. W. B. Blake and the other intervening defendants, claiming title in fee to these lands last described and the timber thereon, petitioned and were allowed to intervene, and filé their answer and cross-bill. The complainant, and defendant Sullivan answered this cross-bill. The defendants Prather Engineering Company and Glynn, trustee, answered the original bill. Glynn, trustee, demurred to the answer and cross-bill of the intervening defendants, and also to the answer of Prather Engineering Company, which by. amendment asked affirmative relief against intervening defendants. The original bill was taken as confessed against defendant Sullivan. The various issues joined upon the above pleadings were heard together, and a decree was rendered in favor of complainant and defendant Sullivan, granting foreclosure of the mortgage, and denying the relief prayed by the intervening defendants in their answer and cross-bill. The controversy relates to the timber claimed by Sullivan through assignments hereinafter described,' and is the timber included in the mortgage to complainant.

On September 9, 1902, the Wilmot Mining Company, a Michigan corporation, which was the owner of lands described in the pleadings, having theretofore sold all of the pine timber thereon to Charles F. Button with the right to cut the same within a certain time, made, executed, and delivered to John .Burns the following instrument in writing:

“Know all men by these presents, that the Wilmot Mining Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, party of the first part, for and in consideration of the sum of seven thousand five hundred and forty ($7,540.00) dollars, to it in hand paid, the receipt whereof is hereby acknowledged, has bargained and sold, and by these presents does bargain, sell, grant and convey to John Burns, of the city of Ashland, State of Wisconsin, party of the second part, the right to cut and remove for his own use, during the term of fifteen years from the date hereof, all the timber, down and standing, alive and dead, during said period, excepting the pine which has been sold to Charles F. Button, now on the following described lands situated in the county of Ontonagon and State of Michigan, to wit: [Here follow descriptions of all the lands contained in the answer and cross-bill of said intervening defendants. ]
“ To have and to hold the same for the period aforesaid to the use and benefit of the said party of the second part, his heirs, executors, administrators and assigns, and said party of the first part hereby covenants and agrees to and with the said party of the second part that it will warrant and defend the said timber unto the said party of the second part, his heirs, executors, administrators and assigns forever against the lawful claims and demands of all persons, except for public taxes for the period covered by this instrument, one-half of all of which are hereafter payable by the party of the second part, except the taxes for the year 1902.
“ And the said ‘ Wilmot Mining Company’ further, by these presents, licenses said party of the second part to enter and re-enter upon and pass over and across said premises as often as may be necessary during the aforesaid period, subject to the conditions of the sale of the pine timber thereon, njade June 23, 1902, to Charles F. Button, for the purpose of cutting, hauling, removing and otherwise using said timber, and to make and maintain such logging roads as may be necessary for such purpose. But this license shall not justify any unnecessary injury to other timber, or authorize any fences, buildings or other structures that now are or hereafter may be put on said premises by said ‘ Wilmot Mining Company,’ its agents or assigns, to be in any way injured or interfered with.
“Provided, however, and it is hereby expressly agreed, that time is of the essence of this contract, and these presents are upon the express conditions that said party of the second part shall pay one-half of all taxes and assessments of every kind whatsoever which shall be imposed upon said premises, commencing with the year 1903, and continuing until the surrender by said second party of this license, except as to increased value of any description by reason of improvements mad e by said first party, and shall on or before the first day of March of such years deliver to said first party a proper official receipt for one-half of the taxes so levied, assessed or imposed on said premises, as well as said timber, for each of such years, and a failure to pay such taxes as aforesaid, and deliver the receipts as aforesaid shall, without any action taken in reference thereto, by or on behalf of said Wilmot Mining Company, its successors or assigns, be deemed to be a surrender by said licensee of all rights hereunder, whether at law or in equity, and a cancellation or abandonment thereof.
“It is further agreed that all timber covered by this license not removed from said premises during the life of this license shall be and remain the property of said Wilmot Mining Company, its successors and assigns, as fully and absolutely as if this instrument had never been executed.
“In witness whereof, the party of the first part has caused these presents to be signed by its president, and countersigned by its secretary, and its corporate seal to be hereunto affixed, this 9th day of September, A. D. nineteen hundred two,” etc.

On November 3, 1902, Burns sold “all his rights and interests ” in the timber given by the foregoing instrument to Dennis J. Norton, who, on December 3, 1902, sold the same to defendant Sullivan for a consideration of $8,800. On October 3, 1904, the Wilmot Mining Company, by warranty deed, sold all of said lands upon which the timber stood to appellant W. B. Blake, which deed contained the following reservation:

“Excepting and reserving therefrom all the minerals underlying said herein described lands, and excepting and reserving all of the timber now on said described lands, with the right to enter upon said lands and employ all necessary means for the removing of said minerals herein reserved and removing said timber herein reserved.”

On July 16, 1906, Blake conveyed to defendants Gates and Johnson an undivided three-fourths of all of said lands with the same reservation. Neither Burns nor any assignees claiming under him paid the taxes on these lands, as required by the terms of the license to him. On September 16, 1907, the Wilmot Mining Company executed a deed to Blake, Gates, and Johnson, which recited all of the transaction relative to this timber with Burns and the terms of the writing given him; the assignments from Burns to Norton, and from Norton to Sullivan; the former deed to Blake and his conveyance to Gates and Johnson; the fact that neither Burns nor any of the parties succeeding to his rights had paid the taxes on one-half of said lands and timber according to the terms of the writing under which they held, declaring and determining that the license had become forfeited and abandoned; and also reciting that the true intent of the parties when the former deed was given to Blake was to grant to him the lands, together with the timber, subject only to the rights of Button and Burns, under the agreements mentioned. Therefore the grantor conveyed to Blake, Gates, and Johnson in their proper proportions all of said timber, subject only to the rights of Button in the pine.

It was admitted that neither complainant nor any of the original defendants nor Burns or Norton had paid any of these taxes subsequent to the year 1903 ( except taxes for 1907, upon a half of one section of land, was paid by complainant). Tax receipts were produced, showing that Blake had paid the taxes on an undivided half of said lands for the year 1904 and the same for the year 1905, except one 40 acres, on September 24,1906, and it was admitted that these taxes were assessed against said lands for said years, and were returned unpaid and delinquent. Taxes for the years 1906 and 1907, which also had been paid by the intervening defendants, we think the record shows were paid to the auditor general after this suit was commenced and issue joined. Complainant’s claim against defendant Sullivan was not disputed. The evidence of appellants was first introduced, and was entirely matters of record and in writing. Evidence was then introduced by complainant and the original defendants, by way of defense, to the answer and cross-bill of the intervening defendants, which will be noticed later. Then complainant and defendant Sullivan asked, and were allowed, subject to the objection of the intervening defendants, to amend their answers to the cross-bill of the intervening defend-, ants, to allege and show the reasons and excuse of defendant Sullivan and complainant for failure to pay taxes in accordance with the contract, on account of Sullivan’s lack of money, and that he had forgotten the requirements of the contract, and to allege that under the contract it was necessary for the Wilmot Mining Company to take some action declaring a forfeiture under the contract, and that they took none until September 27, 1907; that in the meantime all taxes had been paid; that as to taxes of 1907, the intervening defendants paid them before the time stipulated in the contract had expired, and thereby prevented Sullivan and complainant from paying them. They further denied that a forfeiture had occurred or been properly declared, and asked that, if the court should find that there had been such a forfeiture, they have relief therefrom upon paying all of the taxes, with interest, and any sum which the court may find equitable that should be paid by them by reason of expenses incurred, and for general relief. A decree of foreclosure was entered as to both the land and the timber against Sullivan. The interveners were denied relief, the decree providing that the taxes paid by them which Sullivan should have paid constituted a lien on the timber superior to the lien of complainant and others. The interveners have appealed.

The principal question in the case to be determined is, under the writing entered into between the "Wilmot Mining Company and Burns, what interest, right, or title Burns acquired, and whether the effect of the default of Burns and his assignees to pay taxes as provided in the writing operated as a surrender of all rights thereunder and a termination of such interest. It is contended by complainant and defendant Sullivan that by this writing title to the timber passes, in prcesenti, to Burns. A reading of this writing discloses that it is designated as a license, and the parties are called licensor and licensee, and the granting clause is a bargain and sale to Burns of “the right to cut and remove for his own use during the term of fifteen years from the date hereof all the timber, down and standing, alive and dead, during said period * * * now on the following lands,’’etc. The habendum clause reads, “To have and to hold the same for the period aforesaid to the use and benefit of said party of the second part,” etc. The finál paragraph of the writing provides:

“ It is further agreed that all timber covered by this license not removed from said premises during the life of this license shall be and remain the property of said Wilmot Mining Company, its successors and assigns, as fully and absolutely as if this instrument had never been executed.”

The character of an instrument is not to be determined by any particular language in any particular part of the instrument, but upon the consideration of the whole instrument and the purpose and object which is sought to. be accomplished. The language of the whole instrument, fairly interpreted in connection with its purpose and object, must always be the foundation of all interpretation and construction. The parties were dealing with reference to the timber remaining on 3,520 acres of land at a nominal price of $2 per acre, which indicates to any one having the slightest knowledge of the value of standing timber at that time, and as the record indicates, that these were cut and burned lands, with little value left either in land or timber, and were so dealt with by the parties. Our conelusion is, in view of the clear and unmistakable language of this instrument, that we cannot hold that a present title to this timber passed to Burns. It was a license, for a valuable consideration, to cut and remove this timber, under certain expressed conditions, during the term limited.

Complainant, in his contention that a present title to the timber passed under this contract, relies upon Hodges v. Buell, 134 Mich. 162 (95 N. W. 1078), and French v. Lumber Co., 135 Mich. 424 (97 N. W. 961). These cases, and the cases cited and quoted in them, and upon the authority of which they were decided, are all cases in which title to timber was conveyed in terms by deed or contract, with the limitation as to the time of removal, or cases in which land was sold reserving certain timber to be removed within a certain time, and are distinguishable from the case at bar, where a license was given “to cut and remove for his own use,” during the period limited, “all of the timber, down and standing, alive and dead, * * * now on the following described lands.” Our construction is that under this contract title passed only when the timber was “cut and removed.” The cases relied upon could have no applicability to the construction of this license, except when a question arose as to whether the timber had been “ cut and removed ” within the term limited, a question not in this case. The parties contending in the present case are in exactly the situation of the original parties to the agreement. The intervening defendants have all the rights of the Wilmot Mining Company, and complainant and defendant Sullivan represent the rights and interests of Burns.

The paragraph of the contract containing the conditions referred to, which the licensee undertook and agreed to perform in order to insure his rights thereunder to cut and remove the timber during the time limited, on account of its importance and for the purposes of convenience, is here repeated:

“Provided, however, and it is hereby expressly agreed, that time is of the essence of this contract, and these presents are upon the express conditions that said party of the second part shall pay one-half of all taxes and assessments of every kind whatsoever which shall be imposed upon said premises, commencing with the year 1903 and continuing until the surrender by said second party of this license, except as to increased value of any description by reason of improvements made by said first party, and shall on or before the first day of March of such years deliver to said first party a proper official receipt for one-half of the taxes so levied, assessed or imposed on said premises, as well as said timber, for each of such years, and a failure to pay such taxes as aforesaid, and deliver the receipts as aforesaid shall, without any action taken in reference thereto, by or on behalf of said Wilmot Mining Company, its successors or assigns, be deemed to be a surrender by said licensee of all rights hereunder, whether at law or in equity, and a cancellation or abandonment thereof.”

The record shows that taxes for the years 1904, 1905, and 1908 were not paid by defendant Sullivan or the complainant, as required by the above provision.

The appellants contend that the instrument was self-operating ; that, although affirmative action was táken to declare the license canceled and terminated, it was not necessary, and that the relief asked by them is a declaration by the court of the effects which follow the default and forfeiture, and not an application to the court to declare or enforce a forfeiture.

Complainant, insisting that title passed, urges that this provision is a mere security and a condition subsequent, from the effect of a violation of which equity will not relieve where compensation in money is adequate, and that equity will never intervene affirmatively to enforce a penalty or forfeiture. If our construction of the contract were in accord with complainant’s contention, the logical sequence would be to adopt the propositions last above stated, but we have passed his first position by the construction already given. The condition relative to taxes was a condition precedent. The license being a grant of privilege to be exercised upon the conditions agreed upon, the performance of which was necessary to protect the title of the grantor, then such license could be exercised only upon the performance of such conditions, and a neglect to perform the conditions was stipulated to be an abandonment of the license. The time for such performance of the conditions was made by the express terms of the contract essential. For three successive years the conditions to pay these taxes were not performed. By the terms of the contract, these defaults operated as an abandonment and surrender of the license and all rights thereunder. 1 Pomeroy on Equity Jurisprudence (3d Ed.), § 455; 2 Warvelle on Vendors (2d Ed.), § 807; Detroit, etc., Plank Road Co. v. Railway Co., 103 Mich. 585 (61 N. W. 880). The same rule is applied in all cases where options are given on conditions to be performed within a certain time.

The theory of the intervening defendants’ answer and cross-bill was that, by the agreement the licensee having defaulted, the license was forfeited, annulled, and canceled, and the prayer was that this be so declared by the court, and the license, complainant’s mortgage, and the subsequent mortgages be declared clouds upon their title to said timber, etc. Complainant and defendant Sullivan, under amendments to that effect offered and allowed under objection at the close of the proofs, while insisting that no forfeiture had occurred, asked that, if the court should find that the nonperformance of the conditions of the license operated as a forfeiture of their rights, they might be relieved therefrom by such payment as the court might decree. Without deciding whether these amendments were timely or not, we are satisfied that the evidence furnished, as bearing upon the reasons why relief should be granted, shows that Sullivan’s excuse was that he had forgotten the time payment should have been made, and that it would have been a matter of inconvenience for him to pay; that he asked the complainant to pay, and he said he would wait until after foreclosure. Sullivan always had knowledge of the conditions in the license, and complainant testified that, through an abstract furnished early in April, 1906, by Sullivan, he understood that one-half of the taxes should be paid by Sullivan. He filed his bill in April, 1907, and made no tender until about the 1st of October following. No meritorious case was made out warranting the court in granting such relief, if the case were one where the question could be properly considered. We think the question was not open to the parties, who from the beginning had insisted there was no forfeiture, and so insist in this court.

The supreme court of Massachusetts said:

“ We have not considered the plaintiff’s argument that there was no forfeiture of the lease. We are of opinion that, in a bill in equity to be relieved from a forfeiture at law [whichis the position of complainant and Sullivan in this case under their cross-answers], it is not open to him to make the contention that there is no forfeiture at law. ” Gordon v. Richardson, 185 Mass. 492 (70 N. E. 1027, 69 L. R. A. 867).

So in the case at bar, the positions taken by complainant and defendant Sullivan were inconsistent. Upon both contentions we do not agree with them, as appears from our conclusions herein set forth. By nonperformance of the conditions of the license all rights under it had terminated, and the intervening defendants were entitled to have the court so declare. The court was in error in not so finding and in decreeing that the claims of defendant Sullivan and complainant and the other defendants were clouds upon their title to said timber, and granting the relief asked by them.

The decree of the circuit court is reversed, and a decree will be entered in accordance with this opinion, with costs of both courts to appellants.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    SCHMIDT v. MICHIGAN COAL & MINING CO.
    1. Trial — Appeal and Error — Directing Verdict — Evidence of Negligence.
    In an action for injuries caused by defendant’s alleged negligence, the court, in reviewing a judgment on a verdict directed for defendant, must give to the plaintiff’s evidence the most favorable construction it will bear in his favor.
    2. Negligence — Duty to Licensees or Trespassers — Invitation to Enter upon Premises — Questions of Law and Fact.
    Where a miner, injured in an explosion, had applied for work to defendant’s pit boss, who told him to return on a subsequent day, when he again went and made application to defendant’s superintendent who referred him to the pit boss, whom he then attempted to find on defendant’s premises, it is a question of fact for the jury whether an express or implied invitation to be on the premises might not be inferred from the conversation.
    3. Same — Duty to Trespassers or Licensees — Workman Seeking Employment.
    After the owner of premises is aware of the presence of a trespasser or licensee, or if, in the exercise of ordinary care, he should know of his presence, it is his duty to use ordinary care to prevent injury to him arising from active negligence.
    Error to Bay; Collins, J.
    Submitted October 19, 1909.
    (Docket No. 125.)
    Decided December 30, 1909.
    Case by George Schmidt against the Michigan Coal & Mining Company for personal injuries. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Reversed.

      Elbert V. Ingersoll, for appellant.

      Weaclock & Duffy, for appellee.
   McAlvay, J.

This suit was brought by plaintiff against defendant company to recover for personal injuries received by the explosion of a compressed air tank located in tbe tipple at defendant’s mine, claimed to have been caused by the negligence of defendant’s agents and representatives. Plaintiff is a miner, and went to defendant’s mine on Saturday, July 7, 1906, seeking employment. He saw Joseph Watton, the pit boss, at the tipple, which is the building or construction over the mouth of a mine shaft supporting the cables which operate the cages up and down into the mine, and asked him for work. He was told that the old men had not yet all returned; that he did not know whether or not there would be a place for him; that the mine would start up on Monday following, and requested him to return at that time when he could tell him more about it. The pit boss had charge of the men in the mine, and it was the custom at the mines in Bay county for men seeking employment to see the pit boss as to whether there was employment to be had. Plaintiff returned on Monday following, arriving at the company’s office about half past 3 in the afternoon. He asked the superintendent as to his prospect of getting work. He was told by him substantially the same as the pit boss, Mr. Watton, had told him on Saturday, and added, “I couldn’t tell you unless some one has quit, then I could give you a place; ” that he did not know how it was down below; that Mr. Watton was taking care of that. The superintendent and plaintiff were the only persons present and left the office at about the same time. Plaintiff went to the tipple for the purpose of seeing Watton, and seated himself on a keg near the shaft to wait for him as he came up at 4 o’clock. While he sat there the superintendent came in there near him. The engineer, the superintendent’s son, and other employes of defendant were in and out the tipple, during which time three car loads of coal were hoisted out, and some bags of oats for the mules were let down into the mine. In the tipple there was an air tank or receiver, in which air for use in operating the cutting machines in the mine was compressed by an engine in the engine room, which was under the control and operation of the engineer. At about 4 o’clock an explosion at this air receiver apparatus occurred which tore out all its connections and threw it over. Plaintiff was struck by a piece of pipe, on his left arm, which was mangled, and the forearm torn off, and on account of these injuries his arm was amputated. The negligence alleged in the declaration, and which plaintiff claims was shown by the testimony, was the improper regulation of the safety valve on the compressed air tank; the failure of the engineer to shut off the compressed air apparatus 5 or 10 minutes before quitting time; and negligence of the engineer in leaving the engine room at quitting time and assisting in loading the oats. It appeared from the testimony that the machines in the mine, called cutting machines, which were run by compressed air, were usually stopped from 5 to 10 minutes before quitting time, and then the engineer would shut down the engine running the compressor.

At the close of plaintiff’s case defendant moved that the court direct a verdict upon the grounds, among others, that plaintiff had shown no invitation, express or implied, to come upon these premises at this place, and was a trespasser or a mere licensee, and could not recover. The court granted the said motion upon these grounds, and a verdict was directed, and a judgment entered accordingly. These are the questions argued by counsel and discussed in .the briefs before us. Plaintiff contends that the direction of this verdict was clearly against the evidence in the case, and that the action of the court was erroneous.

The court said in his decision upon the first ground:

Now, upon, the point upon which I charge you, there is not a dispute in the evidence. I take the evidence just as the plaintiff gives it, and under that evidence I am bound to say to you that, as a matter of law, the plaintiff is not entitled to recover.”

The court further found that plaintiff was in the tipple as a licensee, on his own business and not on any business of the company, and therefore he could not recover.

Plaintiff is entitled to have the evidence presented by his case given the most favorable construction it will bear in his favor, where a verdict has been directed against him. We are not able to say that, as a matter of law, there was no evidence of an implied invitation to go to the tipple on the day of the accident to consult the pit boss. A custom was shown that the usual thing for miners to do, at the Bay county mines, when seeking employment, was to go to the. pit boss. Plaintiff had sought him out and was requested to return on Monday. On that day he went to the office, and from the evidence related by him relative to his conversation with the superintendent, it appears that the pit boss was the one who furnished the information when men were needed in the mines. There was evidence to submit the question to the jury whether an express or implied invitation to go to the tipple and ascertain from the pit boss, might not be inferred from what the superintendent said. There is abundant authority to sustain the contention that where there is evidence, though contradicted, from which an invitation might be inferred, it is a question for the jury. Pelton v. Schmidt, 104 Mich. 345 (62 N. W. 552, 53 Am. St. Rep. 462); 21 Am. & Eng. Enc. Law (2d Ed.), p. 472; Mallock v. Derby, 190 Mass. 208 (76 N. E. 721); Banderob v. Railway Co., 133 Wis. 249 (113 N. W. 738).

There is another question necessary to be considered. The court held that plaintiff was a licensee, and could not recover, as a matter of law. That question may be before the trial court again upon the new trial.

There was evidence in the case to go to the jury upon the question whether the superintendent knew that plaintiff was at the tipple. The superintendent testified that he was there at least once after plaintiff was at the office. Pláintiff also testified upon the question. The weight of authority would appear to be that after the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence. 21 Am. & Eng. Enc. Law (2d Ed.), p. 473, and cases cited; Herrick v. Wixom, 121 Mich. 384 (80 N. W. 117, 81 N. W. 333); Brown v. Railroad, 73 N. H. 568 (64 Atl. 194); 29 Cyc. p. 443. No evidence was offered by defendant. We are satisfied that, from this record as here presented, plaintiff was entitled to have the case submitted to the jury.

For the reasons stated, the judgment is reversed, and a new trial is granted.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    WALSH v. GIBSON.
    1. Evidence — Reputation—Good Character Immaterial — Trespass for Assault.
    In an action of trespass for an assault with, intent to ravish, any error which may have been committed on the trial, in admitting evidence of the defendant’s good character, is cured by subsequently striking out the testimony and charging the jury that it was withdrawn from their consideration.
    2. Same — Provino Reputation by Specific Instances.
    Repeated questions, on cross-examination of the plaintiff, having a tendency to prove her evil reputation by specific instances of misconduct, were not reversible error, where the trial court excluded the evidence, and counsel for the plain tiff stated that he did not object to such evidence and had previously admitted similar testimony without objection.

      Error to Wayne; Mandell, J.
    Submitted October 22, 1909.
    (Docket No. 41.)
    Decided December 30, 1909.
    Trespass vi et armis by Anna M. Walsh against Fred Gibson. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      A. Gr. Shepard (George F. & Peter J. Monaghan, of counsel), for appellant.

      James H. Pound, for appellee.
   McAlvay, J.

Plaintiff brought an action for damages for an assault with intent to ravish made upon her, claimed to have been committed at her home, in the city of Detroit, in the month of July, 1906., She was a married woman in good health and about 40 years of age, living with her husband in a house which he purchased upon a contract from defendant several years before. Payments had been made from time to time upon this contract to defendant, who was accustomed occasionally to call at the house for such payments, sometimes each month, or once in two months, previous to the year 1906, when the claimed assault occurred. Plaintiff offered proof tending to show: That defendant came to her house about the middle of June of that year, seized her by the neck, and pulled her upon his lap as he sat down in a chair, asking her repeatedly to kiss him, holding her with one hand on the back of her neck and the other on her right breast; that she escaped from him, went out upon the porch, and met a neighbor who was going by, and conversed with her about half an hour, saying nothing whatever about this incident; that during this conversation defendant came out of the house and requested her to tell Mr. Walsh he would call again on that business. Proof was also offered by her tending to show that on July 9th, about three weeks after the foregoing occurrence, defendant came to her house again, and into the room where she was, and after some preliminary statement that he had left her husband as his guest at St. Clair flats, and had promised to return that evening, he said that if she would go to his house that night he would not go back until morning. She claims she ordered him to leave the house; that he tried to explain, and after some conversation he suddenly closed the door between the room they were in and the dining room and committed the assault complained of; that the assault was violent; that her clothes were torn, and she was severely injured; that she screamed, and a woman who was washing for her came to her assistance, when defendant desisted.

Defendant is of the age of 49 years, and of less weight than plaintiff. He has been entirely deaf for 24 years, and during the trial testified through an interpreter. The evidence on his part denied plaintiff’s claim that an assault was made upon her by him at any time. He testified that he was there on July 2d and saw Walsh and his wife; that his business was to collect interest. He was there next on July 9th, when plaintiff made a payment. She complained of being ill, and apparently fainted, and he caught her to prevent her falling. On his part evidence was admitted attacking the general reputation of plaintiff for chastity and morality as bearing upon the question of damages. The above is a very brief statement of the case, but is sufficient to indicate the issue made, in view of the errors assigned by plaintiff. The case was of considerable length. About 60 witnesses testified. The jury returned a verdict against plaintiff of no cause of action. A motion for a new trial was made and denied. A bill of exceptions was then settled and errors assigned.

Plaintiff’s contentions before this court are:

(1) That it was reversible error for counsel to persist in .asking questions regarding specific acts of claimed misconduct upon the part of plaintiff, after the court had excluded the questions and had warned counsel to desist.
(2) That the court erred in permitting evidence as to defendant’s good character.

In considering these errors assigned, we will reverse their order. It appears that the testimony admitted as to defendant’s good character, as far as we are able to find from the record, was given by witness Malcomson, who testified that defendant’s general reputation for virtue and chastity was good. This was objected to generally as incompetent. We find later that defendant was asked:

Q. I will ask you if you have had any charge made against you or been arrested in your life ? (Objected to.)
“The Court: I will admit it. Note an exception.
“A. I have not.”

Counsel for plaintiff then said:

“ I object to it. A question of that kind cannot be answered unless something was introduced on the other side of the proposition.
“The Court: Note an exception.”

Later witness Dayman was asked relative to defendant’s general reputation in that neighborhood. Plaintiff’s counsel then stated fully the reasons for the objection. After such statement, from which it appears the court had already asked for the production of authorities, the court refused to allow witness to answer the question, and on motion of plaintiff’s counsel struck out such testimony of former witnesses. In his charge the court said:

“ I instruct you that previous good reputation of the defendant is no defense in this action, and testimony on that subject that was introduced, and was afterwards stricken out, is not to be taken into consideration by you in arriving at a verdict. Your verdict must be based on the evidence that is legitimately in the case, and on any logical inference that might be drawn therefrom, and upon nothing else.”

The court in his final ruling upon the question and striking out this testimony at plaintiff’s request, and in his charge to the jury, above quoted, removed any cause for complaint on the part of plaintiff.

The complaint made of the conduct of defendant’s counsel as constituting reversible error in persistently asking questions regarding specific acts of misconduct on the part of plaintiff, after similar questions had been excluded by the court and counsel warned, is treated by both parties as the serious question in the case. The contention on the part of plaintiff is that this was an attempt to show plaintiff’s general reputation by proving specific instances of misconduct on her part. The court so ruled and excluded all testimony so offered, sustaining plaintiff’s objections. That counsel for defendant was persistent and repeatedly asked questions of the same character is amply shown by the record, and he was warned and cautioned by the court for so doing. Plaintiff’s counsel rely upon the following cases as supporting their contention: Proctor v. Houghtaling, 37 Mich. 41; McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21). A reading of all this testimony shows that, in several of the instances complained of, defendant was, by showing where plaintiff had been and what she had done, undertaking to contradict plaintiff’s claim that she was seriously injured and disabled, and, when the court and defendant’s counsel finally came to an understanding, no further difficulty occurred. Whether the rule laid down in the cases relied upon by plaintiff is applicable to cases of the kind now under consideration, is not necessary to discuss. Early in this trial, which was a long one, counsel for plaintiff in effect invited and challenged defendant’s counsel to the line of investigation now so strenuously objected to. On cross-examination of plaintiff she was asked relative to a certain suit brought against her and her husband in Clinton county. This was excluded on the objection of plaintiff’s counsel, who, during the discussion, in claiming that it was immaterial and irrelevant, said: .

“We are not prepared to go into it; but anything connected with this woman, on occasions of this kind, we do not object to, and we give them ample opportunity to bring anything.”

Afterwards evidence relative to specific instances of misconduct of plaintiff was introduced by defendant without objection, which, if true and believed by the jury, warranted the inference that she was a person of tainted character. This continued on cross-examination throughout plaintiff’s case and on examination of some of defendant’s witnesses before objection was made. Then, after the jury had been dismissed, defendant’s counsel made an extended statement as to what he proposed to show, which included many specific instances of questionable conduct on the part of plaintiff. On the return of the jury the case proceeded. All objections of plaintiff were sustained by the court. The court, at the time of excluding this class of evidence, after objection was made, and in his charge, did all he could to protect the rights of plaintiff. We do not think plaintiff should be allowed to complain of this class of evidence under the circumstances. Evidence of the character of that complained of was in the case without objection, and the right to object had been waived.

The court, upon denying the motion for a new trial, considered both of the points now raised before this court, upon their merits, and held that in his opinion the error committed in allowing good reputation of defendant to be shown was cured by the charge, and that, in view of the instructions given in the charge to the jury and cautions given at the time, the conduct of defendant’s counsel did not constitute reversible error.

“The theory upon which defendant resisted the suit whs that the charge was a sheer fabrication by the plaintiff and her husband to extort money.”

The above quotation is applicable to the case at bar. We think that the conclusion upon the facts, submitted by the court in his charge, and as found by the jury, was a correct one, and we quote further from the words of Mr. Justice Graves in the same case:

“ The general inquiry is whether any mistakes so far serious were committed as to render it necessary to disturb the result.” Mawich v. Elsey, 47 Mich. 10, at page 12 (8 N. W. 587, 10 N. W. 57).

We find no reversible error in the case.

The judgment is affirmed.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    AUDITOR GENERAL v. McCALL.
    1. Judgments — Res Adjudioata — Drains—Taxation.
    A decree in equity determining the validity of a drain tax is res adjudicata in subsequent proceedings for the sale of the land for unpaid taxes, when the same ground of objection to its validity was set up by the owner in his pleading in the prior suit.
    2. Same — Conolusiveness as to Defenses.
    A party is concluded by a judgment determining the validity of a tax with respect to all reasons which he might have urged against it.
    Appeal from Eaton; Smith J.
    Submitted October 22, 1909.
    (Docket No. 149.)
    Decided December 30, 1909.
    Petition by Oramel B. Fuller, auditor general, against Lyman H. McCall for the sale of certain land delinquent for taxes. From a decree dismissing the petition, petitioner appeals.
    Reversed, and decree entered for petitioner.

      Bussell B. McPeeJc, for petitioner.

      Garry O. Fox and Lyman H. McCall, for defendant.
   Montgomery, J.

The petition of the auditor general for a decree ordering the sale of lands for delinquent taxes, filed in February, 1909, included a prayer for a sale of the lands of the defendant for delinquent drain taxes amounting to $427.20. The defendant, the owner of these lands, objected to the tax on the ground that the notice of letting the contracts for the construction of the drain was insufficient, as 10 days had not elapsed before the last date of publication of notice of letting the contracts, and as proof of such publication was not before the drain commissioner on the date of letting. It appears that the defendant appeared before the drain commissioner on the date of letting, and objected to the proceedings. Subsequently a bill was filed by defendant and another to restrain the completion of the drain. Among the grounds set up as sustaining the complainant’s claim was the following :

“They say that they nor neither of them was served with any notice whatever of the time when and the place where said jobs were to be let, nor the time when or the place where the assessments of benefits for the alleged completion of said drain were to be reviewed. But having learned of such attempt on the part of the commissioner, your orator, Samuel Pollock, appeared before said commissioner by his solicitor, Garry O. Fox, your orator, Lyman H. McCall, appearing in person.”

The different methods of service are pointed out by the statute. Where the party resides in the township, personal service of notice is required, and, as to nonresidents, a published notice is required. It is very clear that this averment in the bill negatived any legal service of notice whatever. That case was tried through to a conclusion, and a decree rendered dismissing the bill. It is now contended that this determination is res adjudicata, and that defendant is not in a position to again raise the questions presented by that bill of complaint. We think this contention should prevail. Not only is it the rule that a party may not split his cause of action, and should include in his suit all the reasons which he has to urge against the validity of a tax when he assails it (Sayers v. Auditor General, 124 Mich. 260 [82 N. W. 1045]), but we find that this precise objection was, under proper averment of the bill, made a ground of complaint, namely, the want of notice. As before stated, the averment that no notice whatever was served was as to the nonresident complainant in that suit, the defendant in this, a sufficient averment that proper notice had not been given by publication. It averred the very matter which is now asserted as a defense here. It must be held that the defendant has had his day in court, and that he cannot now relitigate that question.

The circuit judge, while expressing doubt as to his conclusions, held this tax void. That decree will be reversed, and a decree entered here for the amount of the tax, and the case remanded for further proceedings.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.