text:
    LADD v. GERMAIN.
    1. Trial — Instructions — Requests — Refusal — Negligence — Passing Teams.
    In an action for a personal injury, caused by defendant’s negligence in overtaking and passing the carriage in which plaintiff was riding, the defense being that plaintiff’s driver suddenly turned as defendant was about to pass, and caused the collision, a request to charge, presenting defendant’s theory, examined, in connection with the evidence and the charge as given, and held, that its refusal furnished defendant no ground for complaint.
    2. Same — Gross Negligence — Definition in Instructions — Invited Error — Questions Considered.
    Where the court adopts a definition of gross negligence proffered by defendant and charges in accordance, this court, on review, is not concerned whether there is evidence of gross negligence as properly defined, but the question is, whether there is evidence of gross negligence as defined by defendant.

      Error to Saginaw; Gage, J.
    Submitted April 12, 1906.
    (Docket No. 56.)
    Decided July 23, 1906.
    Case by Mary Ladd against Edward Germain for personal injuries. There was judgment for plaintiff, and defendant -brings error.
    Affirmed.

      Weadock, Purcell & Weadock, for appellant.

      Frank E. Emerick, for appellee.
   Moore, J.

The plaintiff recovered a judgment in the sum of $500. The defendant has brought the case here by writ of error.

This litigation grows out of the same state of facts as Herbeck v. Germain, 144 Mich. 157. The plaintiff and tlie defendant in each of the cases make substantially the same claim. A reference to the case as reported will make a long statement of the questions involved in this case unnecessary. Error is assigned because of certain questions put to the defendant on the cross-examination. What we said upon that phase of the case in Herbeck v. Germain will apply equally well here. Error is assigned upon the refusal of the court to give the following request:

“If you find from the evidence that if plaintiff’s son-in-law had continued to drive his horse and carriage straight ahead the collision would not have occurred, then the plaintiff cannot recover.”

It was the claim of plaintiff that she was injured while she was riding in a Concord buggy, going south on Washington avenue, at the rate of five or six miles an hour, the said carriage being driven within 12 or 14 inches of the west curb; the street at this point being unobstructed and the paved portion thereof 40 feet wide, by the defendant driving a team at the rate of 10 or 12 miles an hour (the team not running away, but being under control of the defendant, and in broad daylight), that under these conditions the defendant drove his team into the back of the Concord buggy in which plaintiff was riding, tearing up the seat and destroying both wheels of the buggy on the east side, so that the hubs were on the sidewalk. According to the claim of the' plaintiff there was upwards of 30 feet of unobstructed paved street between the buggy in which she was riding and the east curb. There was testimony tending to support this claim.

The judge charged the jury as follows:

“If from the evidence in this case you find that the plaintiff’s son-in-law upon hearing the approach of the defendant’s horses, suddenly turned his horse to the left and brought the carriage in which plaintiff was riding, immediately in front of the defendant’s horses as they were turning to the left and attempting to pass the carriage in which she was riding, and if you find that the defendant was exercising such a degree of care and caution to avoid a collision, as a person of ordinary prudence would commonly use to avoid a collision, and that the collision followed as a result of plaintiff’s son-in-law thus turning the •carriage in front of defendant’s horses and thereby the plaintiff was injured, this plaintiff cannot recover because if there was injury resulting from the collision under such circumstances the result of the negligence of the plaintiff’s son-in-law in such case would be imputed to her and would prevent her from recovering for any injury which she may have thereby sustained. * * *
“ It was the duty of the defendant in this case as he approached the conveyance in which plaintiff was riding to use and employ ordinary and reasonable care, diligence, prudence and caution in driving, guiding, managing and controlling his team to avoid running into or colliding with the conveyance of the plaintiff, and if he desired to pass by the conveyance in which plaintiff and her son-in-law were seated it was his duty with like prudence, diligence, care and caution and in such seasonable time and •distance as a prudent man would exercise under all the circumstances and conditions then existing, to have turned, guided and driven his team to and by the side of the buggy so as to pass the same safely and without collision. That is, it was his duty in so approaching or attempting to pass the conveyance in which plaintiff was riding, to use such care, skill, diligence, prudence, and caution as a man of ordinary care, diligence, prudence, and caution would use under the same or similar circumstances.”

The defendant has no just cause of complaint because of the way this phase of the case was submitted.

The judge defined gross negligence as requested by defendant, as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of consequences without any effort to avoid them.” The claim is made that there was no evidence to bring the case within the definition laid down in Labargev. Railroad Co., 134 Mich. 139. We are not called upon to consider whether there was evidence of gross negligence as properly defined. The question is whether there was evidence of gross negligence as defined by defendant. The trial court, having accepted that definition, owed no obligation to defendant to see if there was evidence according to another definition. In other words, defendant cannot complain because the trial court assumed that definition to be correct. He cannot rely on an error resulting from the acceptance of his own theory. Farnsworth v. Fraser, 137 Mich. 296. It is sufficient, therefore, to say, in answer to defendant’s objection to the charge respecting gross negligence, that the definition of gross negligence was given at his request, and according to that definition there was evidence warranting the submission of the question to the jury. A careful examination of the record leads us to say there is no reversible error.

Judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    PITTSBURGH & OHIO MINING CO. v. SCULLY.

    1. Sales — Contract — Construction— Time of Delivery — Evidence.
    In an action for the price of certain cars of coal, rejected by defendant because of delay in delivery, evidence examined, and held, sufficient to authorize the jury to find that a telephone conversation between defendant and his agent was heard and assented to by plaintiff’s secretary and became a part of the contract of sale.
    3. Principal and Agent — Contracts of Agent — Ratification.
    Before it can be said that a principal has ratified a contract made by his agent beyond the scope of his authority, it must be shown that the principal had knowledge of the terms of the contract at the time the acts relied upon as a ratification were performed.
    8. Sales — Delivery—Waiver of Delay.
    Acceptance of coal not promptly shipped does not waive the claim that other coal bought at the same time was not promptly delivered as provided by the contract.
    Error to Wayne; Rohnert, J.
    Submitted April 11, 1906.
    (Docket No. 53.)
    Decided July 23, 1906.
    Assumpsit by the Pittsburgh & Ohio Mining Company against Walter J. Scully for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Dwight G. Bexford, for appellant.

      James McNamara and Frank G. Gook, for appellee.

       Rehearing denied November 7, 1906.

   Carpenter, C. J.

On the 30th of December, 1902, the parties to this suit entered into a contract whereby the plaintiff agreed to sell and the defendant to buy 66 cars of coal. Part of this coal was delivered and paid for; the balance defendant refused to accept on the ground that it was not delivered promptly in Detroit. Plaintiff brought this suit to recover damages for said refusal. The trial was had before a jury, and resulted in a verdict and judgment in defendant’s favor. We are asked to reverse that judgment, because the trial court permitted the jury to find that plaintiff was bound to promptly deliver the coal in Detroit. Plaintiff contends that this was erroneous for several reasons, which we will state and discuss:

1. It is contended that there was no evidence tending-to prove that the contract of sale obligated plaintiff to promptly deliver the coal. The contract was oral. It was made in Cleveland by the plaintiff’s secretary and by the deféndant’s agent. Plaintiff’s secretary testified that' he agreed, on the part of his principal, that its best endeavors should be used to make prompt shipments; that it did not agree to make prompt delivery. Defendant’s agent was not produced as a witness because at the time of the trial he was in plaintiff’s employ. There was evidence, however, that this agent, while the contract was being negotiated, and while in plaintiff’s office, had a conversation over the long distance telephone with defendant who was then in Detroit. In that conversation the agent told defendant that plaintiff ‘ ‘ had spot coal which it could get out and deliver at Detroit promptly;” that plaintiff also had coal at the mine which it could ship and deliver immediately. He also stated the amount of the coal and the terms of sale. Defendant replied that if plaintiff “was in shape to make a delivery of that coal promptly to take it.” There is also evidence that plaintiff’s secretary heard this conversation. Plaintiff insists that the jury had no right to find that this conversation was a part of the contract. We think they were justified in so finding. They could very properly find that plaintiff by its secretary assented to the conditions stated in said conversation.

2. Plaintiff contends that the evidence conclusively proves that defendant ratified the action of his agent in making a contract which did not obligate plaintiff to make a prompt delivery in Detroit. To justify this claim it must appear that at the time of the alleged ratification defendant knew that his agent had made the contract^ which plaintiff claims was made. Hurley v. Watson, 68 Mich. 531. The evidence fails to show such knowledge. In this connection we notice the contention of plaintiff that such evidence is furnished by letters written by defendant in which he says that coal was bought “ for prompt shipment.” It is a complete answer to this contention to say that it is apparent from these and other letters written by defendant that in using the term “ prompt shipment ” he meant “prompt delivery.”

3. It is claimed that defendant waived his right to insist upon prompt delivery of the coal. This claim is based on two grounds: (a) That defendant received and paid for coal that was not promptly shipped; and (6) that he received and paid for coal several days after he had notified plaintiff of his refusal to thereafter take coal. The first of these grounds is answered by saying that the receipt of coal not promptly shipped would not waive the claim that the coal was not promptly delivered. As to the second ground it is to be said that the only evidence that defendant received and accepted coal after his refusal is to be found in a letter written by him to plaintiff. It is to be inferred from this letter that part of the coal therein referred to was delivered before defendant refused to accept the coal, and that the balance was accepted because defendant supposed it to be coal shipped by other parties. Clearly this evidence does not prove that defendant waived his right to insist upon prompt delivery.

No other question demands discussion. The judgment is affirmed.

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


author: Grant, J.

text:
    TRI-STATE MILLING CO. v. BREISCH.
    1. Sales — Contract—Correspondence—Construction.
    In an action for damages for failure to deliver flour in accordance with, a contract of sale, correspondence consisting of letters and telegrams between the parties examined, and held, that a letter by the sellers in which they state that they are “ clear on everything contained in” a letter of the buyer except a specification concerning certain sacks, was an acceptance of the terms of payment contained in the letter of the buyer referred to, and closed the contract.
    2. Same — Waiver of Breach.
    It being the duty of the buyer to furnish sacks for the flour, a shipment of sacks was refused by the sellers because the transportation charges were not paid thereon, whereupon the buyer notified the sellers that the carrier had been instructed to turn the sacks over to them free of charges. Later the sellers proposed to take the sacks and ship the flour on certain terms as to payment. Held, that the proposal constituted a waiver of the seller’s right to a tender of the sacks free of charges.
    8. Evidence — Admissibility — Damages — Failure to Deliver Flour — Market Price.
    In an action for failure to deliver flour at Lansing, a miller having testified that the price of wheat governs the price of flour, and that the price of wheat in Detroit governs the price in Lansing, issues of a daily newspaper published in Detroit and showing the market quotations on wheat are admissible.
    Error to Ingham; Wiest, J.
    Submitted April 10, 1906.
    (Docket No. 36.)
    Decided July 23, 1906.
    Assumpsit by the Tri-State Milling Company against Christian Breisch and Robert W. Langenbacher, copartners as Christian Breisch & Company, for breach of a contract for the sale of flour. There was judgment for plaintiff, and defendants bring error.
    Affirmed.
    Plaintiff sued defendants to recover damages for breach of contract for the sale of four carloads (800 barrels) of flour. Defendants’ liability depends entirely upon correspondence by letter and telegram, which passed between the parties; plaintiff residing in Nashville, Tenn., and the defendants, manufacturers of flour, residing in Lansing, Mich. The correspondence, as far as material, is as follows:
    “ Nashville, Tenn., Sept. 16, ’03. “C. Breisch & Co.,
    “ Lansing, Mich.
    “ Dear Sirs: If you will mail us samples promptly of your best patent 95 per cent, patent and extra fancy we can probably do some business with you. Quote in bulk f. o. b. your track per 196 lb. we furnishing cotton or jute sacks.
    “ We pay net cash for all our purchases and refer you to the Fourth National or Merchants Banks of this city, to whom we would like for you to write concerning us.
    “Yours truly,
    “J. S. Tri-State Milling Co.” “Sept. 18, 1903.
    “ Tri-State Milling Co.,
    “Nashville, Tenn.
    “ Gentlemen: We are in receipt of your fayor of the 16th and under special cover we have mailed you a sample of our strictly straight or in other words a 95 per cent, patent. However this is a straight run with 5 per cent, low grade, out, and based on today’s market, we can offer same at $3.30 per bbl., f. o. b. Lansing, bulk. Trusting to hear favorably from you, we remain,
    “Yours truly,
    “ Christian Breisch & Co.”
    September 21, 1903, plaintiff replied by the following • telegram:
    ‘ ‘ Offer three twenty bulk Lansing two cars like sample.”
    “Lansing, Mich., Sept. 21, 1903.
    Tri-State Milling Co.,
    “ Nashville, Tenn.
    “ Gentlemen: Accept offer three twenty bulk two cars.
    “Christian Breisch & Co.”

      “Sept. 21, 1903.
    “Tei-State Milling Co.,
    “Nashville, Tenn.
    “ Gentlemen: Without repeating wires exchanged between us, we have boobed you two cars of our straight, equal sample mailed you at $3.20 per bbl., bulk, f. o. b. Lansing, and now await your sacks.
    “ The market has declined a cent since we quoted you. a price at $3.30, but in order to start'business with you, we have decided to accept your offer of $3.20, on usual terms, bill of lading attached to sight draft, which w© trust will be satisfactory.
    “Yours truly,
    “Cheistian Beeisch & Co.” “Nashville, Tenn., 9, 22, 1903.
    “ Messrs. Cheistian Beeisch,
    “ Lansing, Mich.:
    “Please ship us at once the following flour: * * * Routing per L. & N. Ry. at Cincinnati, Ohio. Time of shipment. Please rush, rush, rush. We are expressing you the cotton sacks for above. All charges will be prepaid. Instruct all drafts through Fourth National Bank of Nashville, and they will be promptly paid on arrival of goods. Make separate drafts and bills of lading for each car. Observe routing instructions carefully, as some expense bills are more valuable to us than others for reshipping.
    “Respectfully,
    “Tei-State Milling Co.” “Nashville, Tenn., 24, 1903.
    “ C. Beeisch,
    “No. Lansing.
    “ Market closed much lower. Offer three fifteen, same conditions, three cars. Oct. shipment. Quick wire.
    “Tei-State Milling Co.” “Lansing, Mich., 24, 1903.
    “ Tei-State Milling Co.,
    “ Nashville, Tenn.:
    “Three twenty two cars best can do Oct. shipment.
    “Cheistian Beeisch & Co.” “Nashville, Tenn., Sept. 25.. “Cheistian Beeisch ■& Co.,
    “ Lansing, Mich.:
    “ Book the two cars.
    “ Tei-State. 12:30 p. m.”

      “Sept. 24, 1903.
    “Tri-State Milling Co.,
    “Nashville, Tenn.
    “ Gentlemen: We are in receipt of your shipping instructions of the 22d. We are entirely clear on everything of your order of 324 with the exception of the 100 19 lb. sacks. Is this correct ? Do you want flour packed in 19 lb. sacks ? We note this order as you have it figured out will make 199 bbls. 146 lbs. We have no tube for packing twelve pound sacks and if we had known that you were going to give us a mixed car we would not have accepted the order at the price we sold you. We supposed from the correspondence that it would be in jute and cotton halves. However, we will fill your order as soon as the sacks arrive, but we wish you would state whether you want the eights and 12-lb. sacks tied or sewed. We can hardly afford to tie the small sacks, but will tie the larger ones.. Kindly inform us on this point, and oblige,
    “Yours truly,
    “Christian Breisch & Co.” “Nashville, Tenn., Sept. 26, 1903. “Christian Breisch & Co.,
    “Lansing, Mich.
    “ Sew all the sacks. Trade here will not have tied sacks.
    “Tri-State Milling Co.” “Nashville, Tenn., Sept. 26, 1903. “C. Breisch & Co.,
    “Lansing, Mich.
    “ Gentlemen: We have yours of the 24th inst. and have wired you not to tie any of the sacks shipped us. Our customers will reject the flour if the sacks are tied, and we will simply have to do all of this work over again when the cars reach Nashville. Will not send you any more sacks smaller than 24 lb. This was a special order, and we did not want to bring the car into our sidetrack. Give us quick shipment, and oblige,
    “Yours truly,
    *“ Tri-State Milling Co.” “North Lansing, Mich., Sept. 28, 1903. “Tri-State Milling Co.,
    “ Nashville, Tenn.
    “ Gentlemen: We are in receipt of your favor of the 25th, also shipping instructions for the two cars of flour sold you same date. We accepted this order on condition that it would be shipped some time during Oct. It will be impossible for us to get these two cars out as you have ordered them. You will have to allow us to ship these two cars when it is convenient for us during October or cancel same on receipt of this letter. The sacks that you claim that you expressed us on the 22d have not yet arrived, and we have other orders that must go forward during the month, as our capacity is only 150 bbl. a day, and we have a customer who is using the year around from 50 to 80 bbl. of flour each day. You will see that we are well sold at all times. We should have had one of your cars go forward today or Tuesday if the sacks had arrived. You had better send tracer for them and get them here promptly. You would better advise us what to do in regard to the two cars for Oct. shipment. It will be impossible to send them as ordered.
    “Yours truly,
    “Christian Breisch & Co.”
    “North Lansing, Michigan, Sept. 28, ’03. “Tri-State Milling Co.,
    “Nashville, Tenn.
    “ Gentlemen: We have your favor and noted. The express company delivered to us, today, two bales of sacks, but asked us to pay charges of $17.93. We refused to accept the sacks and advance the charges. We sold you the flour f. o. b. Lansing, and you were to furnish sacks free of charge to us. Therefore you had better turn the sacks over to some of the other mills in the city that have orders from you as we do not care to accept the sacks and sew the 16ths, nor do we care to ship our flour to the South, payable on arrival, therefore, we hereby cancel the orders for the four cars.
    “Yours very truly,
    “ Christian Breisch & Co.” “Nashville, Tenn., Sept. 30, 1903.
    “ C. Breisch & Co.,
    “ Lansing, Mich.
    “ Dear Sir: Replying to yours of the 28th inst., beg to say that it will be satisfactory for you to ship us the last two cars at any time during October. Please get them out as soon as possible, however, and you will very greatly oblige.
    “Yours truly,
    “Tri-State Milling Co.”

      “Nashville, Tenn., Sept. 30, 1903.
    “Messrs. C. Breisch & Co.,
    “Lansing, Mich.
    “ Gentlemen: We have yours of the 28th inst., and replying, beg to say that we prepaid expressage on the sacks sent you, amounting to $14.14. We hold their receipt for this amount, and have requested them to telegraph the agent at Lansing, to deliver you the sacks immediately without collecting anything.
    “ Regarding the 12 lb. sacks, beg to say that you not specify any minimum size when you sold this flour. We made a fair and square trade with you, and shall insist upon getting every pound which we bought. The 16th’s are somewhat troublesome to pack, hence will allow you 5 cents per barrel extra on this size. Since we bought from you soft wheat markets have advanced 10 cents or 15 cents per bushel. If you wish to pay us 10 cents and the express charges by us on the sacks, we will permit you to cancel the order, but otherwise we cannot do so.
    “ If you had any objections to make, you should have specified them before we traded. You can send your drafts through Fourth National or Merchants National Bank of this city, and we will honor them promptly on arrival of each car. If you wish us to give you references, we will furnish any number in your own State as well as other States. Let us hear from you fully by return mail, and oblige.
    “ Yours truly,
    “Tri-State Milling Co.”
    “ Lansing, Mioh. Oct. 1, 1903. “Tri-State Milling Co.,
    “Nashville, Tenn.:
    “Will accept sacks and ship flour as fast as possible terms sight draft with bill of lading wire if you accept these terms.
    “Christian Breisch & Co.”
    “Nashville, Tenn. Oct. 2. “Christian Breisch & Co.,
    “Lansing, Mich.:
    “ We want flour on terms bought see letter of today.
    “Tri-State Milling Co.”
    Other correspondence followed in which each party presented their views as to their rights. The court instructed the jury that a valid contract was made by which the defendants agreed to sell the flour to the plaintiff, that defendants had committed a breach thereof, and left to the jury only the question of damages.
    Thomas, Cummins & Nichols, for appellants.

      Black & Beasoner, for appellee.
   Grant, J.

(after stating the facts). 1. It is insisted by the plaintiff that a valid and binding contract was made, while defendants contend that none was made, because no terms of payment were assented to. Plaintiff gave evidence showing that when flour is sold by sample the usual terms are sight draft with bill of lading attached, to be paid when goods arrived, and are found equal to the sample. Defendants admitted that they had heard of such custom, but that they had never done business that way. The court, however, eliminated the question of custom from the case. The secret understanding of parties to a contract cannot control its terms. Is it clear from the correspondence that the minds of the parties met on the essential features of a contract for the sale and delivery of the flour ? The offer in defendants’ letter of September 18th to sell at “$3.30 per barrel f. o. b. Lansing;” the telegram of plaintiff on the 21st, offering “ three twenty bulk Lansing two cars like sample,” and the defendants’ reply telegram “ Accept offer three twenty bulk two cars,” were evidently understood by the parties as making a contract. Defendants on the same day wrote plaintiff that they had accepted the offer “ on usual terms, bill of lading attached to the sight draft.” In the absence of any custom or agreement, the offer contained in the letter of September 18th would mean cash on delivery on board cars at Lansing. On the 22d, before plaintiff had received the letter of the 21st, it wrote defendants, stating that it had expressed the sacks to be used for shipment, that all charges would be prepaid, and wrote “ Instruct all drafts through the Fourth National Bank of Nashville, and they will be paid promptly on arrival of .goods.” To this defendants replied on the 24th, saying "that they were clear on everything contained in that letter with the exception of the 100 19-lb. sacks. That letter is a clear acceptance as to the terms of payment, and closed the contract. Meanwhile, a second order for another carload had been made by the plaintiff and accepted by the defendants on the same terms as the former order. On the 28th defendants again wrote plaintiff, asking for further time on the last two cars, in which they refer to the flour as sold on the date of the 25th, and stating further that the sacks had not arrived. On the same day, but ■evidently after the letter above referred to was written, the sacks came and were delivered to defendants with •charges thereon of $17.93. They refused to accept the sacks and advance the charges, and wrote plaintiff that it had better turn the sacks over to other parties as they did not care to accept the sacks, and sew the 16ths, or to ship their flour payable on arrival, and canceled the order for four cars. It was the duty of the plaintiff to furnish the sacks. It had done so, but through no fault on its part the express company presented a bill to defendants for the .amount of the expressage, which the plaintiff had paid. Defendants were under no obligation to pay. Plaintiff promptly did all in its power to correct the mistake by requesting the express company at Nashville to telegraph the agent at Lansing to deliver the sacks immediately without charge. Whether this was done we can only infer. On the following day defendants telegraphed plaintiff:

“ Will accept sacks and ship flour as fast as possible; "terms sight draft with bill of lading. Wire if you accept these terms.”

It seems evident from this that there would have been no difficulty in delivering the sacks if defendants had chosen to keep their contract.

2. Counsel for defendants urge that there was no proof •of delivery or tender of the sacks to the defendants by the plaintiff free of charge; and notwithstanding the cancellation of the contract by the letter of September 28th, it was still the duty of the plaintiff, if it insisted upon the performance of the contract, to tender the sacks. The objection made by the defendants on September 30th to the delivery of the sacks was withdrawn the very next day when they wired plaintiff:

“Will accept sacks and ship flour as fast as possible; terms sight draft with bill of lading. Wire if you accept these terms.”

This clearly indicated that defendants were satisfied with the tender of the sacks (perhaps the express company had in conformity with plaintiff’s request withdrawn its demand that defendants pay the shipping charges). From this time there was no other obligation upon plaintiff respectihg these sacks than to leave them where they were in the express office at Lansing, so that, defendants could use them if they chose to perform their contract. As there was no evidence that these sacks were moved, it is to be presumed that this obligation was performed.

3. It is. conceded that the court below correctly instructed the jury that the difference between the contract price and the market price of the goods at the time and place of delivery was the measure of damages. It is, however, claimed that there was no evidence of market price of flour at Lansing. There was evidence tending to show that Detroit was the nearest controlling market. Mr. Thoman, a miller in Lansing, testified that the Detroit markets controlled the Lansing wheat market, and that the price of wheat indirectly controlled the price of flour. The quotations of the market price of flour in the city of Detroit, as reported in the Detroit Free Press, a daily newspaper published in that city, were introduced in evidence. This testimony was admissible. Sisson v. Railroad Co., 14 Mich. 489; Aulls v. Young, 98 Mich. 234. Plaintiff also gave testimony showing that the average price of the grade of flour contracted for in Michigan at the time was not under |3.45 per barrel.

We cannot agree with counsel that there was no evidence in the case upon which the jury might find the market value of flour in the city of Lansing.

The judgment is affirmed.

Carpenter, C. J., and McAlyay, Blair, and Moore, JJ., concurred.


text:
    KENNEDY v. STATE BOARD OF REGISTRATION IN MEDICINE.
    1. Statutes — Partial Invalidity — Effect on Remainder of Statute — Physicians.
    The argument that those parts of subdivision 6 of section 3 of Act No. 191, Pub. Acts 1903, providing for refusal of a certificate and the revocation of one already granted a practitioner in medicine for unprofessional and dishonest conduct of a character likely to deceive the public, are unconstitutional because failing to advise the practitioner in advance what acts may be a violation of their provisions, presents no reason for declaring invalid that part of the subdivision giving the board of registration authority to revoke a certificate for inserting an advertisement in a newspaper relative to venereal diseases.

      2. Constitutional Law — License to Practice Medicine — Revocation — Judicial Act — Validity of Statute.
    Subdivision 6, section 3, Act No. 191, Pub. Acts 1903, giving the State board of registration in medicine power to revoke the certificate of a practitioner for publishing certain advertisements, is not unconstitutional because conferring judicial powers upon the board, nor because not specifically providing for a review of the acts of the board by a court.
    Appeal from Wayne; Mandell, J.
    Submitted April 12, 1906.
    (Docket No. 61.)
    Decided July 23, 1906.

      Bill by James D. Kennedy against the State board of registration in medicine to enjoin the revocation of complainant’s certificate of registration as a physician and surgeon. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Alex. J. Groesbeck and Seward L. Merriam, for complainant.

      John E. Bird, Attorney General (Charles W. McGill and George S. L'aw, of counsel), for defendants.
   Carpenter, C. J.

Complainant is a licensed physician and has been engaged in the practice of his profession in the city of Detroit in this State for several years. The individual defendants are the members of the State board of registration in medicine. That board was created by Act No. 237 of the Public Acts of 1899. On the 30th of December, 1903, defendants notified complainant that he was “charged with having inserted or caused to be inserted under date of Septémber 19, 1903, a certain advertisement in the Evening News, a newspaper printed and published in the city of Detroit, Wayne county, State of Michigan, a copy of said advertisement being hereto annexed, relative to venereal diseases, and containing matter of an obscene and offensive nature derogatory to good morals,” and ordered him to show cause on January 21, 1904, at 3 p. m. “why your certificate of registration as a physician and surgeon * * * should not be revoked under and pursuant to subdivision 6 of section 3, Act No. 237 of the Public Acts of 1899, as amended by Act No. 191 of the Public Acts of 1903.” Complainant instituted this suit in chancery, charging that defendants, are prejudiced and have prejudged his case, and that subdivision 6 of section 3 of Act No. 191 of the Public Acts of 1903 was unconstitutional, praying that defendants be enjoined from revoking his certificate. Defendants answered. The case was heard in the lower court upon testimony taken in open court and a decree therein entered ■dismissing complainant’s bill. From that decree complainant appeals to this court.

We agree with the learned trial judge — whose carefully prepared opinion is a part of the record in this case — that “the testimony “adduced at the hearing utterly failed, to •sustain said first contention,” viz., the contention that defendants are prejudiced against complainant and have prejudged his case. The only question remaining for our consideration relates to the constitutionality of said subdivision 6 of section 3. That subdivision reads:

“The board of registration in medicine shall refuse to issue a certificate of registration provided for in this section to any person guilty of grossly unprofessional and dishonest conduct of a character likely to deceive the public, and said board shall, after due notice and hearing, revoke a certificate issued subsequent to the date of the passage of this act, or subsequent to the date of the passage of Act No. 237 of the Public Acts of 1899, for like cause or for offenses involving moral turpitude, habitual intemperance, the drug habit, or for fraud or perjury in connection with obtaining of a certificate of registration or for a certificate obtained or issued through error, when such offenses shall have been legally established in a court of competent jurisdiction: And provided further, after the passage of this act, the board may at its discretion revoke the certificate of registration, after due notice and hearing of any registered practitioner who inserts any advertisement in any newspaper, pamphlet, circular, or other written or printed paper, relative to venereal diseases or other matter of any obscene or offensive nature derogatory to good morals.”

In support of his contention that this section is unconstitutional, complainant cites several cases. Matthews v. Murphy, 23 Ky. Law Rep. 750 (54 L. R. A. 415); Ex parte McNulty, 77 Cal. 164; Hewitt v. Board of Medical Examiners, 148 Cal. 590. The strongest and best reasoned of these cases is Matthews v. Murphy. That case alone will receive consideration because the grounds upon which it is held inapplicable makes all the others inapplicable. In that case it was held that a statute giving the State board of health authority to revoke a certificate to practice medicine on proof that the holder was guilty of “ grossly unprofessional conduct of a character likely to deceive or defraud the public,” was unconstitutional upon the ground that the statute does not advise the physician—

“In advance what act or acts may be in violation of its provisions. * * * He might do an act which he regarded as entirely proper, which neither violated moral law nor involved turpitude, still such acts might, in the opinion of the State board of health, amount to unprofessional conduct, and which in its opinion did or was calculated to deceive or defraud the public. * * * The legislature, in effect, has attempted to commit to the State board of health the right, after the physician has done some act, to determine what its effect is to be, and, if in its judgment he should be deprived of the right to practice his profession, it can inflict the punishment upon him by revoking his license.”

This reasoning presents no, argument for declaring unconstitutional that part of subdivision 6, under which defendants are proceeding to try complainant, viz., that giving them authority to revoke his certificate because he inserted an advertisement in a newspaper relative to venereal diseases. Indeed, in deciding Matthews v. Murphy, the court recognize the constitutionality of such a law. This is shown by the following quotation from its opinion, viz.:

“If the legislature desires to declare for what acts or conduct a physician’s license to practice medicine shall be revoked it is competent to do. so, and to vest in some tribunal authority to investigate and try the charge which may be made under such a statute.”

Is the law which authorized defendants to revoke complainant’s certificate' on the ground that he inserted an advertisement in the newspaper relative to venereal diseases unconstitutional ? Complainant contends that it is and advances many reasons in support of that contention.

It may fairly be said that all those reasons rest upon the assumption that the revocation of that certificate is an exercise of judicial power. All of complainant’s objections to the constitutionality of the law are completely answered by saying that this assumption is unfounded. This is shown so clearly by the opinion of the supreme court of Minnesota in State, ex rel. Chapman, v. Board of Medical Examiners, 34 Minn. 389, that we make the argument in that opinion a part of this:

“The radical fallacy in this chain of argument is the assumption that the revocation of such a license is the exercise of judicial power. ‘Due process of law,’or ‘the law of the land’ (which means the same thing), is not necessarily judicial proceedings. Private rights and the enjoyment of property may be interfered with by the legislative or executive, as well as the judicial, department of the government. When it is declared that a person shall not be deprived of his property without ‘ due process of law ’ it means such an exercise of the powers of government as the settled maxims of law permit and sanction, under such safeguards as these maxims prescribe for the class of cases to which the one in question belongs. Cooley on Constitutional Limitations (7th Ed.), p. 506. This constitutional guaranty, which is as old as Magna Charta, as it is found in this or an equivalent form in every American Constitution, is intended to secure the citizens from the arbitrary exercise of the powers of government, unrestrained by the established principles of right and distributive justice. The validity of a statute which interferes with a man’s enjoyment of his property is to be tested by those principles of civic and constitutional protection which have become established in our system of laws. Bank of Columbia v. Okely, 4 Wheat. (U. S.) 235; Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (U. S.) 272; Davidson v. New Orleans, 96 U. S. 97; Cooley on Constitutional Limitations (7th Ed.), p. 505.
“ Taxation, in one sense, takes a man’s property, yet it was never suggested that proceedings to enforce and collect a tax must be judicial. So, the exercise of the general police power of the State often materially interferes with or restricts a person’s enjoyment of his property, yet it was never heard that, for that reason, it was the exercise of judicial power, or that, if not exercised by judicial proceedings in court, it was not ‘ due process of law,’ or ‘the law of the land.’
“ It has never been held that the granting, or refusing to grant, such a license as this was the exercise of judicial power, and in fact this is not claimed in this case; and there is no possible distinction in this respect between refusing to grant a license and revoking one already granted. Both acts are an exercise of the police power. The power exercised and the abject of its exercise is, in each case, identical, viz., to exclude an incompetent or unworthy person from this employment. Therefore the same body which may be vested with the power to grant, or refuse to grant a license, may also be vested with the power to revoke. The statutes of all the States are full of enactments giving the power to revoke licenses of dealers, innkeepers, hackmen, draymen, pawnbrokers, auctioneers, pilots, engineers, and the like, to the same bodies, boards, or officers who are authorized to issue them, such as city councils, county commissioners, selectmen, boards of health, boards of excise, etc. The constitutionality of such laws, as a valid exercise of the police power, has often been sustained, and, indeed, rarely questioned. Cooley on Constitutional Limitations (7th Ed.), pp. 399, 890, and cases cited.”

This doctrine is supported by other authorities. See Meffert v. State Board of Medical Registration, 66 Nan. 710 (1 L. R. A. [N. S.] 811); State, ex rel. Burroughs, v. Webster, 150 Ind. 607 (41 L. R. A. 212); Dent v. West Virginia, 129 U. S. 114, and, so far as we have been able to discover, there is no authority against it.

Complainant insists that these cases are not authoritative because ■the statutes there upheld provided for “the right of appeal to a competent court, * * * so that if any

constitutional right has been invaded the act was merely preliminary and subject to correction in a trial court.”' As I understand this argument, it is not contended that such statutes are unconstitutional unless they contain a provision for a review by a court of whatever the board or investigating tribunal is authorized to do, and if that contention were made it is answered by the reasoning quoted from the Minnesota case. The proposition upon which the argument rests is that a statute cannot deprive one of the right to seek redress in a court for the invasion of a constitutional right.- This proposition is sound and receives our assent, and is not violated by the statute in question. If that statute is observed, it follows from what has already been said that no one will be deprived of a constitutional right, and in that case a provision for an appeal to a court is not essential. If, through nonobservance of the statute, complainant or any other physician is deprived of a constitutional right, there is nothing therein which prevents his obtaining adequate redress in a court. -

The decree dismissing the bill is affirmed.

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


author: Blair, J.

text:
    HEWS v. HEWS.

    1. Equity — Chancery Practice — Special Appearance — Rights Conferred.
    A special appearance does not entitle defendant “to notice of all further proceedings in the cause,” under Chancery Rule 5, and default may be entered and decree pro confesso taken against him without notice, notwithstanding a special appearance.
    2. Judgment — Default Decree — Opening Default — Effect of Order. -
    Pending a motion by defendant, appearing specially, attacking the .-jurisdiction of the court, his default was entered and decree pro confesso taken against him, and subsequently his motion was overruled and an order entered giving him five days in which to appear generally, should he choose to do so, in which case the decree should be set aside. Held, that the effect of the order, so long as it remained in force, was, upon a compliance with its terms being shown, to open the default and vacate the decree.
    3. Same — Amendment of Order.
    By making an order opening a default and vacating a decree on terms, the court does not exhaust its authority over the subject, but may modify the order thereafter as equity requires.
    4. Same — Time to Move.
    A claim that an order modifying an order opening a default on terms is unauthorized, because the motion upon which it is based was not made or entered at the same term as the modified order, is not founded in fact, where it appears that, though the motion papers were apparently filed the second day of the term, they were served several days before, and, the matter being before the court, it was continued by consent to the second day of the term, without which continuance the party would have been in default under the unmodified order.
    5. Equity — Consent Orders — Modification.
    Even a consent order may be modified or vacated where it' does not express the real intent of the parties, and this though the mistake be unilateral.
    6. Judgment — Order Opening Default — Modification — Propriety.
    Where, on the -understanding that defendant desired to contest the cause on its merits, his default was set aside in case he desired to appear generally in the case, and he was allowed time to plead, and pending such time he procured a decree in another State pro confesso and attempted to plead it in bar of the suit in this State, the order opening the default was properly modified so as to be conditional on his having the foreign decree set aside and the suit there discontinued.
    f. Appeal — Record—Silence—Statements of Trial Court.
    In the absence of an official record showing all that transpired upon the argument of a motion, this court must accept the statement of the trial court, notwithstanding it is denied by counsel.
    8. Same — Questions Considered — Objections not Made Below.
    An objection that an order modifying an order opening a default on terms was not authorized because not based on affidavit is untenable where such objection was not made below, and it appears that the facts upon which the order was founded were all before the court at the time of making a consent order continuing the hearing on the motion, and were laid before the court by counsel for the objector a week before the order was made.
    Appeal from Saginaw; Beach, J.
    Submitted April 10, 1906.
    (Docket No. 40.)
    Decided July 23, 1906.
    Bill by Mary E. Hews against Howard E. Hews for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      James H. Davitt, for complainant.

      John F. O’Keefe ( Whitman & Horner, of counsel), for defendant.

       Rehearing denied November 7, 1906.

   Blair, J.

On the 24th day of March, 1905, the above-named defendant, a resident of Illinois, filed his bill of complaint against the above-named complainant, a resident of Michigan, in the superior court of Cook county, 111., praying for a divorce on the ground of desertion. On the 8th day of August, 1905, the solicitor for Mrs. Hews entered his and her special appearance in the Illinois suit, “ only for the limited and special purpose of filing the necessary pleadings and making the necessary motions therein for challenging the jurisdiction of the court in the above-entitled cause.” On the 16th day of August, 1905, Mrs. Hews filed her plea in abatement, “under special and limited appearance,” setting up proceedings in her suit in the circuit court for the county of Saginaw, in chancery, hereafter referred to, culminating in a pro confesso decree for divorce, as res adjudicata between the parties. On the first day of September, 1905, the superior court held that the special appearance and plea in abatement constituted a general appearance, overruled the plea in .abatement, and on September 11th at 10 a. m. ordered the defendant therein, Mrs. Hews, “to plead in bar, answer or demur to said bill by 2 o’clock in the afternoon ” of said day. At 3 o’clock in the afternoon of said 11th. day of September, 1905, Mrs. Hews not having complied with the order of the court, the hearing of the- case was proceeded with and a decree of divorce pro confesso was entered, giving the custody of two of the children, Ed-son L. and Arthur N. Hews, aged, respectively, 6 and 4 years, to the complainant, and of the other child, Mary Elizabeth Hews, aged 1$ years, to the defendant.

On March 27, 1905, Mary E. Hews, the complainant in this suit, filed her bill of complaint in the circuit court for the county of Saginaw, in chancery, praying for a divorce on the grounds of extreme cruelty and failure to support. On July 27, 1905, defendant appeared specially, and entered a motion attacking the jurisdiction of the court upon certain technical grounds, noticing the motion for hearing on September 11, 1905.

On the 7th day of August, 1905, the usual order was entered, taking the bill as confessed, and on the 8th a decree was made by the court upon the bill taken as confessed and upon proofs taken in open court, granting a divorce to complainant with custody of all of the children till they should attain the age of 14 years, or the further order of the court. By agreement of counsel, defendant’s special motion was argued on August 14, 1905, and thereupon the court made the following order:

‘ ‘ It is ordered:
“ 1. That said motion be, and it is hereby, denied.
“2. That if defendant desires to appear generally in this cause, he shall be given five days from this date in which to do so, in which event the decree heretofore entered shall be set aside.
“3. That if defendant enters his appearance generally in this cause within the above period he shall have 15 days-to answer complainant’s bill after a copy of the same has been served upon his solicitor, John F. O’Keefe.
“ 4. That if the defendant so appears, this cause shall stand for trial without being noticed at the September, A. D. 1905, term of said court.”

On August 19th defendant filed and served notice of his general appearance in the suit. On August 21st complainant’s solicitor served a copy of the bill of complaint on defendant’s solicitor, and on the 25th served notice of hearing for the September term of court. On the 23d day of August complainant filed a petition for alimony pendente lite and noticed the same for hearing on August 28th. On August 28th complainant moved for an order modifying the order of August 14th, which motion was noticed for September 2d. On the 2d of September the court made the following order:

“By consent and at the request in open court of the solicitors for the respective parties to this cause, it is ordered that the hearing of the petition for temporary alimony, and the hearing upon the application for the modification of the order entered herein on the 14th day of August be, and the same are hereby, adjourned until September 12, 1905, at 8:30 o’clock in the morning.
“ And it is further ordered that the time of the defendant in which to plead to or answer the bill of complaint filed herein be, and the same is hereby, extended to the 12th day of September, 1905, at 8:30 a. m. of said day.-”

On the 8th of September defendant made-and served a motion “to vacate, set aside and hold for naught the order pro confesso and the decree of August 8, Á. D. 1905,” for various reasons assigned. This motion was noticed for September 12th. On September 12th defendant filed his answer, setting up, among other things, the record, proceedings, and decree in his suit in the superior court as a final and binding adjudication of the rights of the parties. On September 19th the court made an order containing, among others, the following provisions:

“ 1. That said decree of August 8, 1905, has not been set aside and shall not be set aside until and unless the defendant, Howard E. Hews, complies with the requirements of this order.
“ 2. That if defendant cause to be vacated, annulled and set aside the decree obtained by him in the superior court of Cook county, 111., and discontinue said suit, then upon filing in this court due proof that said decree has been vacated, annulled and set aside, and said suit discontinued, and that there is not pending any action brought by him against complainant in any court for the purpose of obtaining a decree of divorce from her and the custody of said children or any of them,' or for any of those purposes, and upon filing this answer in this cause upon the merits, no part of which answer shall set up, rely upon, or claim any benefit or advantage from the decree so rendered in the superior court of Cook county, an order, upon proper application, will be made in this cause, setting aside the aforesaid decree of August 8th, and allowing the defendant to appear and defend said cause upon the merits thereof.”

At the time of entering this order, the court filed an opinion stating his reasons at length. The following are excerpts from this opinion:

“ The special motion made by the defendant to he heard September 11th was finally brought on for hearing by consent of the solicitors for complainant and defendant on August 14th. The special motion was overruled, allowing defendant to appear generally within five days from the date of August 14th and within 15 days to file an answer after being served with a copy of complainant’s bill. It was stated at that time that the defendant desired to appear generally and contest the case upon its merits.
“No formal decree or order has been made setting aside the decree of August 8th, but the court stated that an order would be made setting aside the decree, the defendant appearing in said cause. It was understood at that time by the court that the defendant desired to appear and contest the divorce case upon its merits. * * *
“At the time the special motion was argued in this court, the court was given to understand, or at least did understand, that the defendant, Howard E. Hews, desired to defend the cause in this court upon its merits, and not upon the ground that a decree had been rendered in his favor in Chicago; that at the time when this order was made allowing the defendant to enter his appearance and plead to said bill, no decree had been rendered; and if this court now sets aside the decree of August 8th, giving the complainant custody of the children and giving her a decree of divorce, and allow the defendant’s answer to stand, the only proof that would be necessary upon his part would be a certified copy of tbe decree of the Chicago court, giving him a divorce and custody of the two children.
“ Ought this court to set aside this decree so as to give the court of another State jurisdiction, where a decree was made in this case over a month prior to the decree being made by the court in the other State ? In justice to the complainant in this case, it ought not to be done, as she was not present and took no part in the trial in Chicago, but did submit her proofs in this court, which show that she was entitled to a decree; and the law of this State gives to her the custody, control, care, and education of the minor children until they arrive at the age of 12 years, unless she is an unsuitable person; and the testimony before me shows her to be a suitable person for such purpose.”

Defendant appeals to this court from the pro confesso decree of August 8, 1905, and also claims the benefit of an appeal to the Supreme Court from the final order rendered in said cause by said court upon the 19th day of September, A. D. 1905.

Defendant’s appearance, being special, did not “entitle him to notice of all further proceedings in the cause,” under Chancery Rule 5, and his default was properly entered.

The decisive question for determination in this case is: Whether the circuit judge exceeded his authority, as claimed by defendant’s counsel, in modifying the order of August 14th, which granted leave to the defendant to appear and answer ? I think that the effect of the order of August 14th, upon a compliance with its terms being shown, was to open the default and vacate the decree so long as it remained in force. The court, however, by making this order, did not exhaust his authority over the subject thereof.

“Every court of superior jurisdiction has, in the absence of statutory limitations, power to control its own orders and to direct when and under what conditions they shall be operative. * * * During the term at which the order was made, this power of the court is plenary and undoubted and it has been held that the power exists and may be exercised at any time, even after the expiration of the term, provided the proceedings are still in fieri and no final judgment or order has been entered putting the case out of court. ” 15 Enc. Pleading & Practice, p. 349 et seq.

See, also, Hurt v. Blount, 63 Ala. 327.

It is claimed by counsel for defendant that the motion upon which the modifying order was based was not made nor entered at the same term as the order of August 14th and it is argued that:

“ After the expiration of the term, the court loses control of its judgments rendered during that term, and no longer has the power to vacate or modify them or set them aside, unless steps be taken during the prior term by motion or otherwise to set ¿side, modify or correct them ”— citing 1 Black on Judgments, § 306.

The basis of this contention is the filing of the papers apparently on September 12th, the day after the opening of the next term. It appears, however, that the papers were served upon defendant’s counsel on August 28th and it is manifest from the order of September 2d that the matter was before the court on that' day and the hearing continued till September 12th. This order was consented to by defendant’s counsel and, except for the order extending the time for filing his answer, he would have been in default several days before the entry of the Illinois decree. The defendant’s contention in this regard has no foundation in fact. Even a consent order may be modified or vacated where it does not express the real intent of the parties, and this though the mistake be unilateral. Oldershaw v. King, 26 L. J. Exch. 384; Wilding v. Sanderson, 66 L. J. Ch. 684. In the present case, the circuit judge affirms that at the time he made the order it was stated “that the defendant desired to appear generally and contest the case upon its merits” and that that was the understanding of the court, and the fair inference from! the opinion is that the court would not have opened the default except for the purpose of enabling the defendant to controvert the facts alleged in the bill of complaint.

Defendant’s counsel contends that the statement of the circuit judge is incorrect, but in the absence of an official record showing all that transpired upon the argument of the motion, this court must accépt the statement of the trial court. Myers v. Myers, 143 Mich. 33. It is apparent from the court’s opinion that he understood there was to be a hearing before him in the usual way, and it is quite inconceivable that complainant’s solicitor should have had any different understanding. I think the court was fully justified in this understanding. At the time the default was opened, there was no decree in favor of the defendant and the court would naturally infer from the statement that the defendant desired to “contest the ■case upon its merits,” that the defendant desired to submit the controversy as one to be determined by the court, not as one to be governed by the determination of some ■other court. Under Chancery Rule 7 defendant could only have procured the vacation of the default by proffering a sworn answer showing a defense on the merits. This has always been the rule in Michigan. Stockton v. Williams, Har. Ch. (Mich.) 341. If complainant’s ■counsel had insisted upon defendant’s making the showing required by law, he could only have answered upon the merits as interpreted by the circuit judge. The consent of complainant’s solicitor that the default might be set aside after the statement that defendant desired to contest the case upon the merits must be deemed to have been made with the same understanding, unless we are to regard him as deficient in understanding or oblivious of the interests of his client and her little children. I think it is quite certain that the complainant’s solicitor consented to, and the court made, the order setting aside the default upon the understanding that the defendant in that event would go to a hearing in the usual way and that the court had authority to modify the order. In the race of diligence between these parties, the complainant had obtained a prior decree, giving her the custody of her children, which the court considered, and I think, properly, upon the testimony produced before him, a lawful and just decree. The court did not intend, and it stands to reason that her counsel did not intend, to deprive her of the benefit of this decree, unless it should appear upon a-full .and fair trial in open court that she was not entitled to it. If this was the understanding of defendant’s counsel, he cannot complain that the court insisted upon its being carried out; if it was not his understanding, then the order was granted by mistake, and the court was authorized to set it aside.

“If an order made by consent is, through mistake, capable of an interpretation contrary to therealmtention,' it will be amended by the court so as to make it plainly and clearly represent that intention.” Oldershaw v. King, supra.

It is further contended that there was no showing made by affidavit or otherwise as a basis for the order modifying the order of August 14th. So far as the record shows, no objection appears to have been made upon this ground. The principal facts were before the court at the time of the consent order for continuing the hearing, without which order defendant could not have filed his answer later than September 6th, and they were all brought before the court by defendant’s counsel on the 12th of September, a week before he made the order. Under such circumstances, the objection has no merit.

It is further contended that the pro confesso decree is not supported by the proofs. I am satisfied that the proofs justify the decree upon the ground of extreme cruelty. It would serve no useful purpose to discuss the testimony in detail.

The question of res adjudicata, to which considerable attention is devoted in defendant’s brief, is not before the court. Under the defendant’s answer, the issue was tendered and would have arisen later on if the court had not modified the order of August 14th.

The order of the circuit court, modifying the order of August 14th, is affirmed, with costs of both courts to complainant.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


text:
    TRUSTEES OF HILLSDALE COLLEGE v. WOOD.

    1. Wills — Construction—Precatory Trusts.
    The essence of the doctrine of precatory trusts is that the words creating them, while in form the expression of a request, wish, or recommendation on the part of the testator, are, in fact, intended by him as a positive direction or command obligatory upon the person to whom they are addressed ; and the doctrine has no application to a case where a husband, through an intermediary, deeds property to himself and wife in entireties, and makes a will providing that the bulk of his property shall go to a certain charity in case he survives her, and requesting, in case she survives him, that she shall, by gift before death, or by will operating after death, dispose of the property in accordance with the terms of his will.
    2. Trusts — Establishment—Evidence—Sufficiency.
    On the issue whether there was an oral agreement between testator and his wife that, in consideration of his conveying > property to himself and her jointly, she would, in the event of her surviving him, dispose of the property thus conveyed in accordance with the terms of his will, evidence examined, and held, insufficient to establish such agreement.
    Appeal from Ingham; Wiest, J.
    Submitted April 12, 1906.
    (Docket No. 55.)
    Decided July 23, 1906.

      Bill by the trustees of Hillsdale College against Clark O. Wood, executor of the last will and testament of Jesse C. Ferris, deceased, and others, to obtain a construction of said will. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      F. A. Lyon, for complainants.

      Edward Cahill, for defendants.
   Blair, J.

The bill of complaint in this case was filed to obtain a construction of the will of Jesse C. Ferris, deceased, and of deeds whereby, through defendant Clark Cv Wood, as intermediary, Mr. Ferris conveyed his home in Lansing to himself and Harriet M., his wife, as tenants by entireties, and praying, among other things:

“That the said Clark C. Wood, as executor of the estate of the said Jesse C. Ferris, may be held and decreed to hold said property, including said real estate, as a trust fund to carry out the provisions o'f the will of the said Jesse C. Ferris.”

' Mr. Ferris, who was a retired minister of the gospel, had lived with his wife in Lansing for many years. They were both active and zealous members of the Free Will Baptist Church. Mr. Ferris owned the home in which they lived, appraised after his death at $3,000, and a moderate amount of personal property. Mrs. Ferris owned a farm of 75 acres, appraised at $3,750. In accordance with a long-cherished desire and plan, approved of by his wife, Mr. Ferris executed a will June 5, 1889, giving to his wife a life estate in his property and, after her death, giving a small amount to his church and the bulk of the property to Hillsdale College. March 7, 1899, Mr. and Mrs. Ferris each executed a will. Mrs. Ferris’ will gave the use of all her property to her husband during his life and after his death bequeathed $1,000 to her church and various sums to other legatees, but made no provision for Hillsdale College. Mr. Ferris’ will gave his property to his wife for life and after her death the bulk of the property to the Lansing church and to Hillsdale College. Neither Mr. nor Mrs. Ferris, who was his second wife, had children, and Mr. Ferris had no near relatives. On the 23d of June, 1900, the will and deeds in ■question in this suit were executed. Defendant Wood testified:

“Mr. and Mrs. Ferris were both present, and Mr. Ferris told me what he wanted to go into the will, according to my best recollection. I also drafted the will of Harriet M. Ferris, dated the 7th day of March, 1889. On the 23d of June, 1900, the date that I drafted the will for Mr. Ferris, I also drafted a deed from Mr. and Mrs. Fewis to myself of some real estate belonging to Mr. Ferris. I cannot say who was present when Mr. Ferris directed me to draft that deed. He gave me that direction substantially at the same time he directed me to draft his will. * * * I have had a great many con-
versations regarding the disposition of this property, and at which particular one these directions were given I am unable to say. * * *
Q. Had Mr. Ferris at that time any other real estate than such as he there described in this deed ?
“A. As I learned after his death, but did not know at that time, he still held the legal title to a lot in North Lansing which had been sold on a contract.
Q. Can you tell how this [second will] came to be made, why he was not satisfied with it and wanted to draw another one ?
“A. Yes. Mrs. Ferris had always a great fear that she might be left dependent in her old age, and after the will was drawn, giving her a life lease of the property, they reached the conclusion, I judge by what they told me afterwards, that the life use of the property might not answer her purposes. There was at the same time in her mind, too, another will dispute that they had been in previously, and a great dread of courts in regard to wills, a dispute that arose over a relative of hers who had died, and between the two of them they came to me and told me they wanted to give that property absolutely to her, and wanted me to tell them how they could make an arrangement to do that and make as little for the courts to act on in the matter as possible. Of course, I am only giving, in a general way what they said to me. So I told them that, if they wanted to make sure that in case Mrs. Ferris survived him the property and real estate went to her, if they chose, they could take the estate by entireties and bind it in that way, then it would become at once the property of the survivor. Then we discussed the changes that would be necessary in the will itself to dispose of any other property that there might be, and they were made accordingly, so that the bequests to all the other legatees under the will he had conditioned on his surviving her. And then this deed was made to me by them, and I deeded it back to them as husband and wife. * * *
Q. Then these deeds were made simply to make sure that she would have the use of that property ?
“A. No, sir.
Q. What was it for ?
“A. To give her the absolute ownership of that property. I recognized that simply and purely as a request and not intending to be binding or conclusive upon her in any shape or manner.
“ Q. Did they say so ?
“A. Yes, sir; over and over again in their discussions. Not at this particular time, but in talk at other times both prior to and at the time the will was drawn had they told me to put it in in that way. * * *
Q. Did she ever speak to you afterward about making a will to carry out that ?
“A. No, sir.
Q. It was the understanding that she would, wasn’t it, at that time ?
“A. Nothing except what is stated right there. There was no further discussion that I know of. I don’t know that there was another word ever said about it.
“ Q. Wasn’t it agreed by her that she would make that m the will ?
“A. No such agreement that I ever heard of.
“ Q. It was her intention to do it at that time, wasn’t it?
“A. I don’t know, I didn’t know it was. She never said anything of the kind to me.
Q. Do you recollect of having some conversation with Mr. Kelley about the matter ?
“A. Yes.
Q. Didn’t you tell him she had lost her mind and could not make a will, but if she recovered again you would see to it that she made that will ?
‘‘A. I don’t know that I ever said I would see to it. I scarcely would have told him that I would see to making a will. I might have said that I would see that it was brought to her attention.
Q. Why were you going to see to it that it was called to her attention if there wasn’t any understanding that she should make that in the will ?
“A. Because her husband’s request was there and I would think it no more than proper at least, as executor of his will, and for another reason, that all matters relating to his property should be brought to her attention.
Q. Didn’t you say to Mr. Kelley in that conversation that that was their understanding that she should make a will and dispose of whatever there was left ?
“A. I don’t know. I have no recollection of exactly what I did say to him.
Q. You would not say that you did not say that to him ?
“A. No. I would not say that I did not say that — that that was my idea of their understanding.
‘ ‘ Q. And didn’t you also tell me that the first time I talked with you about it ?
“A. It is possible.
Mr. Cahill: That is your understanding of it yet, isn’t it ?
“A. That is my understanding of it yet.”

The will of June 23, 1900, contained the following provisions, among others, viz.:

“After the payment of all my just debts and funeral expenses, I give, devise and bequeath to my beloved wife, Harriet M. Ferris, should she survive me, all my real and personal property of which I may die possessed, of every hind, name and nature whatsoever.
“Should my wife, Harriet M. Ferris, not survive me, then it is my will that my executor dispose of all my property, both real and personal, and apply the proceeds thereof as follows:
‘ ‘ First. I given and bequeath to George Baken, of Leslie, Ingham county, Michigan, the sum of one hundred dollars ($100).
Second. To Delia Havens, of Gratiot county, Michigan, I give and bequeath the sum of one hundred dollars ($100).
Third. To the First Free Will Baptist Church of the City of Lansing, Ingham county, Michigan, also known, as the ‘Park Free Baptist Church,’ I give and bequeath the sum of one thousand three hundred dollars ($1,300), provided that the First Free Will Baptist Church shall deliver up for cancellation a certain note given by me and held by it.
Fourth. All the rest, residue and remainder of my estate I give and bequeath to the trustees of Hillsdale College, in the city of Hillsdale, county of Hillsdale and State of Michigan, said sum to be held and invested by the trustees as a perpetual fund, the principal of which shall forever keep inviolate and the income thereof shall be used under the direction of said board of trustees for the purpóse of aiding needy and deserving young men who are studying for the work of the ministry in the Free Baptist Churches and other evangelical churches. * * * Should my wife, Harriet M. Ferris, survive me, then, as hereinbefore stated, all of the foregoing bequests shall be held to be null and void and my entire estate, both real and personal, is hereby given and bequeathed absolutely to her, but it is my request that she shall, either before her death by gift, or in such other manner as she shall deem proper or after her death by will, transfer, grant and give to the foregoing-legatees the sums and amounts hereinbefore set forth out of whatever may remain of the proceeds of my property, real and personal, over and above what she may have used, or desire to use, during her lifetime, for her own maintenance, or for other purposes to which she may desire to apply it.”

Mr. Ferris died July 21, 1901, aged about 80 years. A few weeks before the death of her husband, Mrs. Ferris became mentally incompetent and so continued till the time of her death on June 2, 1904. The circuit judge, after hearing the proofs in open court, entered a decree dismissing the bill, but filed no opinion, and we are therefore not informed as to his reasons. Complainants have appealed from the decree to this court.

Complainants’ counsel contends that complainants were entitled to a decree for the following reasons:

1. That the will of Mr. Ferris creates a precatory trust in favor of his legatees.

2. That the will and the deeds are contemporaneous writings, parts of one transaction to be construed together as though contained in the same instrument, and, construed in the light of the surrounding circumstances, they create a precatory trust in favor of the legatees. ■

3. That the deeds were made upon express contract that, in consideration thereof and of the will, Mrs. Ferris would dispose of the property, or so much thereof as remained at the time of her decease, in favor of her husband’s legatees.

There is no sufficient basis under the proofs in this case for the application of the doctrine of precatory trusts to the real estate in question. The real property was not disposed of, nor intended to be disposed of, by the will, except in the event that the testator survived his wife. The very purpose of the deeds was to avoid a contest of her title which might arise in case she derived her title from her husband’s will. A present interest was conveyed by the deed and. the parties actually intended • that their effect should be that which the law impressed upon them. The essence' of the doctrine of precatory trusts is that the words creating them, while in form the expression of a request, wish, or recommendation on the part of the testator, are, in fact, intended by him as a positive direction or command obligatory upon the person to whom they are addressed. In the case before us^ the testator had no legal authority, independent of contract, to direct by will wiiat disposition should be made of this real estate. Mrs. Ferris was not a party to the will and had no control over it. Mr. Ferris could have changed it or revoked it at any time regardless of her wishes, and it is manifest that if he intentionally gave her a title to this property by deed, he could not, without an agreement on her part, change that title by his will.

It is contended, however, that there was an oral agreement between Mr. Ferris and his wife that in consideration of the deeds Mrs. Ferris should dispose of such portion of her husband’s property as remained at the time of her death, in accordance with his will. The burden of proof was on the complainants to sustain their contention in this regard, and for this purpose they called the defendant Clark C. Wood as a witness in their behalf, whose testimony on the subject of the agreement has been hereinbefore quoted. The testimony of Mr. Wood does not support the contention that an agreement was made. On the contrary, he testifies that the deeds were made to give Mrs. Ferris the absolute ownership of the property in case she survived, and that the request in Mr. Ferris’ will was not intended to be binding upon Mrs. Ferris, as they both repeatedly told him. The most that can be claimed for his testimony is that he told complainants’ counsel and Mr. Kelley that he had an idea that they had an understanding that she would carry out his request and that he still had that idea or understanding. But he expressly testified that he never heard of any such agreement, and we cannot treat his conjecture or understanding, not derived from the parties or based upon facts disclosed, as overthrowing his positive testimony. The evidence disclosed by the record indicates that Mr. Ferris relied upon his wife’s affectionate regard for his wishes rather than upon a binding agreement. Doubtless, if she had retained her mental faculties, she would have complied with his request. Unfortunately, her mind failed before the time arrived for action on her part.

The decree of the circuit court is affirmed, with costs of this court.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


text:
    LORF v. CITY OF DETROIT.
    1. Highways and Streets — Personal Injuries — Action by Married Woman — Damages.
    In an action by a married woman against a city for personal injuries received on a defective street, it is error to instruct that she can recover nothing for lost time or medical expenses because her husband has his action for that.
    3. Same — Municipal Corporations — Liability for Injuries.
    In an action for injuries received on a defective street, it is error to instruct that if the city ordered an officer to make repairs it had a right to rest upon the presumption that the repairs were made as ordered.
    3. New Trial — Grant—Condition—Increasing Damages.
    On a motion for new trial for inadequacy of damages, the court has no authority to grant the motion unless defendant pays a further sum, fixed by the court, as a condition of letting the judgment stand.
    Error to Wayne; Donovan, J.
    Submitted April 10, 1906.
    (Docket No. 31.)
    Decided July 23, 1906.
    Case by Ida G. Lorf against the city of Detroit for personal injuries. There was judgment for plaintiff for an insufficient amount, and she brings error.
    Reversed.

      Charles Kudner (M. J. Lehmann, of counsel), for appellant.
    P. J. M. Hally ( T. E. Tarsney, of counsel), for appellee.
   Blair, J.

Plaintiff, a married woman, brought this action to recover damages for injuries alleged to have been occasioned by a fall upon a defective sidewalk. The testimony on behalf of plaintiff tended to show negligence ■on the part of defendant and injuries of a somewhat serious character. Defendant’s proofs tended to show that the plaintiff and her witnesses exaggerated the seriousness of her injuries. The jury found a verdict in favor of plaintiff for six cents damages. Afterwards plaintiff moved for a new trial upon the ground that the damages, were inadequate. The decision of the court upon the motion was as follows:

“ This is a motion for a new trial, claiming that six cents is inadequate damages under the proofs and cnarge. No objection is claimed on any part of the trial or charge of court, but solely on the ground first stated. It is not quite clear why the verdict was only six cents, unless in the charge it was stated that a married woman could only recover for her own injury — not for doctor’s bills and lost time, as these elements were for the husband, and not for the wife. The jury was told that they should first find the city guilty or not guilty; then, if guilty, what damages has she personally suffered; that for a mere accident alone there could be no recovery. This was very nearly such an accident, which made a compromise verdict.
“ As the proof showed quite an outlay for doctor’s bills, and the statute allows only for personal injuries in this class of cases, I will grant a new trial, unless the defendant shall elect to pay $100 in settlement of the case, with actual costs of court and witnesses.”

Plaintiff declined to accept the determination of the court and has removed the case to this court by writ of error, assigning error upon certain portions of the charge, upon rulings of the court upon the trial, and upon the decision upon the motion for a new trial.

Assignment 12£ complains of the following instruction,, viz.:

“ And if you should find guilty, you will remember that a married woman, living with her husband, gives her time to her husband. She is not entitled to recover anything for lost time whatever. She gives her services, her work, to her husband, and is not expected to, or cannot, recover anything for that. She cannot collect a penny. He might start a suit. She has no claim against the city for doctor’s, bills. She would not be entitled to any hired help — for washing, or household, or anything of the kind, even though she employed two or three servants. That would be for the husband to collect.”

The trial judge was apparently of the opinion, as disclosed in his decision of the motion for a new trial, that this instruction might have affected the determination of the damages by the jury. "We think his conclusion in this respect was correct, but think that the error was cured by proper instructions as to the plaintiff’s measure of damages. As we have heretofore held, the instruction was erroneous. Roberts v. City of Detroit, 102 Mich. 64 (37 L. R. A. 573).

The court also erred in instructing the jury in substance that, if the city ordered an officer to make repairs, it had a right to rest upon the presumption that the repairs were made as ordered.

We are also of the opinion that the court erred in the disposition made of the motion for a new trial. We concur in the conclusion that the damages were inadequate and against the weight of the evidence, but we do not think the action of the court was warranted in requiring the plaintiff to accept f 100 as her damages. The rule is well settled that in case of excessive damages the court may grant a new trial, conditioned upon the plaintiff’s remitting that portion of the damages in excess of such portion as the court would not regard as excessive. But in such cases the jury has actually awarded damages, and the court does not attempt to award damages itself, but merely to- determine what portion of the damages so awarded it would not regard as excessive, and then to give the plaintiff the option to avoid a new trial by remiting the excess or take the verdict of a new jury upon the subject. In the case before us, however, the jury has not awarded any damages, and the court itself must fix the damages upon conflicting testimony-without any option on the part of the plaintiff to refuse the court’s award. We have been unable to find any case sustaining this holding, and we think it was unauthorized and erroneous. See Gardner v. Tatum, 81 Cal. 370; Schultz v. Railway Co., 48 Wis. 375; Hintz v. Railroad Co., 133 Mich. 305. In the case of Belt v. Laws, L. R. 13 Q. B. Div. 356, cited by defendant’s counsel, the question, though mooted, was not determined. We do not deem it necessary to consider the other assignments, since the alleged errors, will probably not arise upon another trial.

The judgment is reversed, and a new trial ordered.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


author: Blaik, J.

text:
    RUSSELL v. PHILLIPS.
    I. Accounting — Fiduciary Relations — Burden of Proof.
    On a bill for an accounting of the proceeds of real estate deeded by complainant to defendant, the fact that the parties are father and daughter does not establish such fiduciary relations as will shift the burden of proof and compel the daughter to justify what has been done.
    3. Same — Fraud—Undue Influence — Sufficiency of Evidence.
    On a bill by a father against his daughter to establish a lien on certain real estate on the ground that it was purchased with the proceeds of land the deed to which was obtained from complainant by fraud and undue influence, evidence examined, and held, insufficient to warrant relief.
    Appeal from Kalamazoo; Adams, J.
    Submitted April 11, 1906.
    (Docket No. 47.)
    Decided July 23, 1906.
    Bill by Richmond S. Russell against Anna Phillips and Sarah A. Hutchinson for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Barnard & Lewis {Benton & Adams, of counsel), for complainant.

      Knappen & Flansburg, for defendants.
   Blaik, J.

Complainant, a colored man over 80 years of age, is the father of defendant Phillips, and some time in 1901 executed and delivered to defendant a warranty deed of his homestead of 20 acres of land in Allegan county. It is claimed by complainánt that the consideration for this deed was an agreement on the part of defendant to pay a mortgage on the premises amounting, with interest, to $160, and “to give your orator a life lease of said land and premises.” Defendant admits that she agreed to pay the mortgage, and this she did, but denies that she agreed to give a life lease of the premises and “charges the truth to be that she did agree to give the complainant and his wife the use of an acre of land as long as they desired to make that their home, upon which acre of land was a house where they made their home.” Soon after getting the deed, defendant rented the premises, aside from the one acre, but complainant made trouble with the tenant and he moved off. About four years after the deed was made, the house burned down, and defendant, about a year afterwards, sold the premises for $325, and, with the money thus acquired, bought another place for $500, paying $300 down and giving a mortgage for $200 to the defendant Sarah A. Hutchinson. Prior to selling the land, defendant had offered to give complainant a lease of the one acre, which he refused, and demanded a lease of the entire tract. Defendant refusing to give a life lease of the property, complainant filed the bill of complaint herein, praying that the defendant Anna Phillips (1) be required to account to him for the moneys received from the sale of the 20-acre tract and that he be given a lien upon the premises purchased therewith, subject to Mrs. Hutchinson’s mortgage; (2) be required to give him a life lease of the premises last above mentioned. After hearing the proofs in open court, the circuit judge entered a decree dismissing the bill of complaint. Prom this decree complainant appeals.

The bill, which is sworn to by complainant, alleges that complainant, “ being of the age of 80 years and upwards, and being feeble in body and mind, was induced by his said daughter to make and execute a warranty deed of the premises,” etc.; and complainant’s brief opens with the contention that “the complainant in this case is the father of defendant Anna Phillips; therefore, there is a fiduciary relation existing between the parties, and, where there is a fiduciary relation existing, the burden of proof shifts to the defendant to show that she can justify what has been done.” There must be something besides mere blood relationship to create such fiduciary relations as will shift the burden of proof. In the case before us there are no facts disclosed by the record to justify the application of the doctrine invoked. On the contrary, the complainant’s own testimony negatives every fact of the allegation above quoted, except that. relating to his age. His testimony clearly shows that he was neither feeble in mind nor in body, for his years; but, on the contrary, though unable to read or write, was a shrewd, intelligent man for one in his station in life, and as competent as his daughter to take care of himself in dealings between them. There is no evidence whatever of any fraud, overreaching, or undue influence. His daughter did not induce him to make the contract, but he induced her to . enter into it. She was not a member of his household, lived in another county; only saw him once a year, and had no charge of his affairs; nor, so far as this record discloses, did he ever consult her about his affairs. As he states the transaction, the mortgagee was “ crowding ” him for his money, he tried to get the money and failed, and then asked his daughter to help him out, and the only question in the case is whether she agreed, as he claims, to give him in consideration of the deed a life estate in the 30 acres or in the 1 acre. There is nothing in this case to take it out of the ordinary rule, and the burden of proof was upon the complainant to sustain the case made by his bill.

The testimony of the parties is in irreconcilable conflict. The defendant testifies that complainant talked with her at Grand Rapids by telephone, and the arrangement was made in that way; that complainant made out the deed, and sent it to her by mail, and she did not see him till after she had received the deed. The complainant testifies that the bargain was made at his house when defendant was there on a visit, but though he, perhaps, implies, he does not testify distinctly, that the deed was executed while she was there nor does he deny her statement that he made out the deed and sent it to her by mail. A wit■ness to the deed was called by complainant, who testified "that he had a talk with defendant at her father’s house in November, “six years ago,”in which “she spoke of giving her old folks a life lease of the place.” This witness ■does not state that defendant was present when the deed was made, nor when nor where it was made. The date assigned by him for the talk with defendant would be two years before the deed was made. If defendant was present when the deed was made, it is singular that some witness who was also present should not have said so, and it is equally singular that the deed should not have been then and there delivered. Furthermore, defendant’s mother must have known about this transaction. The ■deed of the homestead had to be signed by her, and she .had an equal interest with her husband in the life lease. In fact, although the bill alleges that defendant ‘ was to :give your orator a life lease of said land,” which is followed in the prayer for a lien, complainant testifies that “she agreed to give me and her mother a life lease of these premises, and Butler, the witness to the deed, testifies: “Why she spoke of giving her old folks a life lease of the place.”

No reason is assigned for not calling the mother, who would naturally have been called if she could have helped •complainant’s case. But regardless of the failure to call the mother, which may have been for some good reason not disclosed by the record, there is an entire absence of proof that this contract was made by complainant with ^defendant at his home in Allegan county at the time the deed was made. She swears that she was not there when Butler witnessed the deed, and no witness swears that she was. I am satisfied that defendant’s statement that this contract was made by telephone is correct, and it logically follows that her statement as to the subject-matter of the agreement ought to be accepted. At all events, it cannot be held that complainant has established his allegations as to the contract by a preponderance of the evidence.

The decree of the circuit court is affirmed, with costs of both courts to defendant.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


text:
    SAWYER v. VILLAGE OF MANTON.
    1. Health — Contagious Diseases — Services—Audit of Claims.
    Since the passage of Acts Nos. 7 and 101, Pub. Acts 1903, no action lies against a village for services performed in caring for persons sick with a contagious disease at the request of its board of health, the claimant’s remedy being to present his claims, properly itemized by the board of health, to the board df supervisors of the county for audit and allowance.
    2. Same — Duty of Board of Health — Itemizing Claim — Mandamus.
    Where a village council, acting as its board of health, refuses to furnish an itemized statement of services rendered at its request in caring for persons sick with a contagious disease, claimant’s remedy is by a mandamus to compel action, and not by assumpsit against the village.
    Error to Wexford; Chittenden, J.
    Submitted April 12, 1906.
    (Docket No. 58.)
    Decided July 28, 1906.

      Assumpsit by Clara Sawyer against the village of Mantón for services rendered in caring for persons sick with a contagious disease. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    J. C. Wheeler, for appellant.

      Fred S. Lamb, for appellee.
   Blair, J.

This is an action of assumpsit, brought by the plaintiff to recover for services alleged to have been rendered by her at the instance of the health officer of defendant’s board of health in nursing diphtheria cases quarantined by him. The circuit judge held that the acts of the health officer created a contract which bound the village, citing Township of Cedar Creek v. Board of Sup’rs of Wexford Co., 135 Mich. 129, and that the only’ •question for the jury was the value of plaintiff’s services. To reverse the judgment rendered against it under this ruling, defendant prosecutes this writ of error.

Among other contentions, defendant’s counsel insists that a verdict should have been directed in its favor for the reason that liability to pay for the services, if any such existed, rested upon the board of supervisors. The defendant is organized under the general village incorporation act of 1895 (Act No. 3, Pub. Acts 1895), and has made no provision for a board of health. In the absence of such provision, the act provides (§ 53):

“The council shall have-and exercise all the powers and authority conferred upon boards 'of health by the general laws of the State, so far as the same are applicable.”

The services sued for in the present case were rendered after the taking effect of Act No. 7, and Act No. 101, of the Public Acts of 1903, and, as said in Township of Cedar Creek v. Board of Sup’rs of Wexford Co., supra, these amendatory acts have made radical changes in the law.” By Act No. 101 the provision that “the board of health shall establish his salary or other compensation, and shall regulate and audit all fees and charges of persons employed by them in the execution of the health laws and of their own regulations,” was amended by the addition of the words: “ except as hereinafter provided in section fifteen hereof with regard to dangerous communicable diseases.” Section 15, as amended by Act No. 7, Pub. Acts 1903, provides for the presentation of an itemized statement, required to be kept, to the board of supervisors by filing the same with the county clerk:

‘ ‘ And the said board of supervisors shall as soon as may be proceed to audit the said bill, and if found that the expenses were necessarily incurred, the services actually and necessarily performed, and the amounts claimed for such expenses and services are severally just and reasonable under the circumstances, the said board of supervisors shall allow the same or such parts thereof as the majority of the members-elect of said board shall deem just and provide for their immediate payment by the said county, and in auditing such accounts, said several boards of supervisors shall have full power to examine into the merits of all claims presented to them in accordance with the provisions herein contained, and may subpoena witnesses and take any other measures necessary to arrive at the truth of the same; and the said board of supervisors is hereby empowered, if necessary, to issue orders or borrow money on the faith and credit of the county to pay all such necessary bills and expenses, and to include’the same in the next appropriation of money to be. raised by taxation in said county.”

By these amendments, the power to audit and allow such claims for services was taken from the board of health and conferred upon the board of supervisors, with full powers for hearing, determining, and paying them. It follows that the plaintiff’s remedy was to present her claim, properly itemized by the board of health, to the board of supervisors for allowance, as prescribed by the statute. If the board of health should refuse to furnish an itemized statement or to certify to a properly itemized ■statement, as it is claimed they did in the present case, mandamus to compel such action would he the proper remedy, and not a suit against the municipality.

The judgment is reversed.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.