text:
    SPENCER v. SIMMONS.
    1. Breach of Promise of Marriage — Damages — Evidence_ Pecuniary Condition.
    In an action for breach of promise to marry, it is error to admit evidence of the amount of property owned by the father of the defendant.
    2. Same — Trial—Remarks of Counsel.
    An argument by the plaintiff’s attorney, unsupported by any evidence of seduction or improper treatment, to the effect that the defendant tried to trifle with his client’s affections and was a regular libertine, and had trampled plaintiff under his feet, was prejudicial error, not cured by the instruction of the court to disregard the remarks.
    3. Same — Damages — Aggravation — Trial — Instructions to Jury — Res Ad judicata.
    A charge to. the jury that the notice filed with defendant’s plea, accusing the plaintiff of having an immoral character, unless it was given in good faith, and the attempted defense in accordance therewith, might be considered by the jury as an element of damage, is erroneous, since the jury might well infer that the defamatory charges would warrant an additional assessment in damages, whereas a judgment in the action could not be held to bar a further action for slander.

    Error to Van Burén; Des Voignes, J.
    Submitted February 15, 1910.
    (Docket No. 142.)
    Decided March 5, 1910.
    Assumpsit by Nettie Spencer against Elgy Simmons for breach of promise of marriage. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Edward J, Anderson and Thomas J. Cavanaugh, for appellant.

      Barnard & Lewis, for appellee.

       As to evidence of character for chastity, in action for breach of promise, see note to State v. Roderick (Ohio), 14 L. R. A. (N. S.), 748.

   Stone, J.

This is an action for damages for breach of promise to marry. The plaintiff had a verdict and judgment for $1,141.66 in the court below, and the case is brought here for review by the defendant, who has assigned many errors. Many of them relate to the admission of evidence, some to the conduct of plaintiff’s counsel in the argument of the case to the jury, and some to the charge of the court. We shall not find it necessary to consider them all. The following is complained of:

(1) Upon the cross-examination of the defendant, after asking how much property he owned, the plaintiff’s attorney asked the following questions:

“Q. What interest, sir, have you got in the 400 acres that your father owns ?
“A. I haven’t got a cent in it.
“Q. Do you swear you haven’t F
“A. Yes, sir.
“Q. Your father owns 400 acres there ?
“Mr. Cavanaugh: Well, how is that material? His father’s property can only be shown when it is shown he has an interest in it.
“The Court: Of course, it depends upon to what extent.
“Mr. Anderson: We take an exception.
“A. My father owns the property that is the home farm.
“Q. Your father and you do business together there, don’t you ?
“A. Why; yes, sir.
“Q. And always have in common?
“A. Since I was of age.”

We think that the admission of this testimony was erroneous. Evidence as to the financial condition of defendant’s relatives was inadmissible. 5 Cyc. p. 1014; Miller v. Rosier, 31 Mich. 475.

In the case cited this court said:

“It is also alleged for error that the plaintiff was allowed to show the value of the farm belonging to the defendant’s father as something the jury might consider in estimating damages. The only ground on which it is claimed this evidence was admissible was, that from other evidence it had been shown defendant had made statements to plaintiff that his property was invested in this farm. How much was thus invested he did not state, nor was there any evidence tending to show that he then had any legal interest whatever in the farm, or, if he had, that it was anything more than nominal. We think the court correctly held that evidence of defendant’s pecuniary circumstances might be put in by the plaintiff, but this evidence only went to show the father’s circumstances, which were wholly immaterial to the case on trial.”

In view of this record, and of the result of the trial, we think it was prejudicial error to allow this evidence to go to the jury.

(8) In the course of his argument to the jury, plaintiff’s counsel made many extravagant statements. Some of them were not excepted to. The following, however, were excepted to, and error is assigned upon them:

“ Oh, Cavanaugh, he just paws the air here because we have not produced a lot of witnesses. Here is a poor woman. She has not got a wad of money behind her—
“Mr. Cavanaugh (interrupting): Wait a moment. I object to that statement. There is no testimony in this record that she is a poor woman.”

Again he said:

“ This thirteenth defense they have got — you see they have 118 defenses in this case and this thirteenth one (reads plea). Now listen to that! In that plea he wants you to believe she was asking him to marry her, and, gentlemen of the jury, they spent over an hour’s time to show that she wouldn’t marry him. * * * I asked him if she ever asked him to marry her, and he said she didn’t. (Reads from plea). What do you think of that ? Why, gentlemen of the jury, that villain never done any such thing, and we have ‘ got the goods on him.’
Mr. Anderson: We take exception to those epithets.
The Court: Yes; I think that is not proper.
“Mr. Barnard: Gentlemen of the jury, a man that will set up a plea of that kind, and then go on the witness stand, he either lied once or the other, and you cannot get away from it.”

Again, in speaking of the defendant, counsel for plaintiff said:

“ He has tried to trifle with her affections, and, gentlemen of the jury, when they are talking about illegitimate children, and talking about this female’s reputation, I ask you, when they are talking about going in his pockets and taking money, are you going to say, gentlemen of the jury, that a libertine can go through the world in that manner, that men can trifle with women’s affections and be a regular libertine, and then pass them up and it is all right, and they are not entitled to damages.
“Mr. Cavanaugh: I take exception to that remark. There is no testimony in this case that Mr. Simmons is a libertine.
“The Court: Yes; I think that should be eliminated from the talk and the jury should not consider that.”

Mr. Barnard continued:

“ Gentlemen of the jury, are you going to say that men who take liberties with women in that manner, and then scoff at and ridicule at, gentlemen of the jury, and tramp them under their feet, is entitled to all of the sympathy in this case ? ”

We think that this was very extravagant and prejudicial language, especially in this case where there was no claim that the defendant had seduced or illtreated the plaintiff. As was said by Justice Grant of similar language, in the case of Reed v. Louden, 153 Mich. 522 (116 N. W. 1073):

“We think that the record in this case does not justify the use of extravagant language, intended to inflame the prejudices of the jury, A jury is perhaps naturally prejudiced against a man who breaks an engagement to marry. He is, however, entitled to the unprejudiced judgment of a jury, and to an assessment of damages which is not increased by unjustifiable and extravagant language on the part of an attorney.”

The above language and other similar to it is so intemperate that we cannot say it was not prejudicial, notwithstanding the court directed it should be eliminated, and not be considered by the jury. This court has in many cases expressed its opinion upon this subject. Smith v. Jennings, 121 Mich. 393 (80 N. W. 236); People, ex rel. Esper, v. Plank Road Co., 125 Mich. 366 (84 N. W. 290); Johnson v. Railway Co., 135 Mich. 353 (97 N. W. 760); Thompson v Railway Co., 91 Mich. 255 (51 N. W. 995); Hillman v. Railway, 137 Mich. 184 (100 N. W. 399); Whipple v. Railroad Co., 143 Mich. 41 (106 N. W. 690); Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656 (108 N. W. 1092, 116 Am. St. Rep. 319); Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981); McNetton v. Herb, 158 Mich. 525 (123 N. W. 17). Many other cases might be cited to the same effect. It would seem that after so many admonitions of this court counsel would begin to appreciate the point that this court will not allow a judgment to stand which has been obtained by the use of improper argument that has been prejudicial to the opposite party and not cured.

(3) It is also urged by appellant that he was prejudiced by the charge of the court upon the question of damages. It appears from the record that with his plea of the general issue the defendant gave notice that he would show that the plaintiff was a woman of bad character. Upon this subject the court gave the plaintiff’s 13th request to ■charge, which was as follows:

“ If you believe from the evidence that the defendant in this case has attempted to prove that the plaintiff was a lewd or base woman, and was immoral and was of bad character, and that he failed to establish and prove the same by a preponderance of evidence, and that such attempt was not made in good faith, or was made without any reasonable hope or expectation of establishing such fact, then such charge and failure on the part of the defendant may be taken in consideration of the damages in this case, providing, of course, the jury find the issues for the plaintiff.”

And upon its own motion the court also charged upon the extent of the recovery the plaintiff would be entitled to should the jury find for her, as follows:

“She is entitled to recover for her pecuniary loss and the disappointment of her reasonable expectation of material and worldly advantage resulting from such intended marriage, her wounded feelings, mortification, and pain, and for harm done to her prospects in life, public disgrace, together with any other circumstances belonging to the wrongful act. And in fixing the amount you have a right to take into consideration the nature of the defense set up by the defendant, and if you believe from the evidence that the defendant promised marriage to the plaintiff, and then refused to carry out the promise, and if the defense set up by the defendant in this case is not sustained by the evidence, not made in good faith, and that defense being injurious, if you find it so, to tbe reputation of the plaintiff, then you may take that into consideration as an element of damage.”

The infirmity in this part of the charge is that, after stating the elements of damage, and instructing the jury to consider all of the circumstances belonging to the wrongful act, it gives them a new element of damages by reason of the defamatory language of the defendant in his pleadings and upon the trial. This subject was dealt with by this court in Roberts v. Druillard, 123 Mich. 286 (82 N. W. 49), wherein it was held that, in an action for breach of promise of marriage, evidence that defendant, in giving his reason for breaking the engagement, made certain false and slanderous statements concerning the plaintiff is admissible to show wantonness and malice by way i of enhancing the damages for the breach of promise; but | such defamation cannot properly be made the basis of an | independent award of damages in such action. In our ' opinion the charge was not sufficiently guarded upon this point. The jury might well have understood, from the language used, that they would be at liberty to award full damages for these slanders and defamatory charges to the same extent as would have been permissible had the various slanders been counted upon in an action for defamation. Reference is made to the interesting discussion of this subject by Justice Hooker in the case above cited. It certainly cannot be held that an action of slander is barred by a judgment upon the breach of promise, and yet such would be the logical result of permitting the jury to make an independent award of damages for the language and charge of the defendant.

For the errors above considered, the judgment of the circuit court is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ENSLEY v. COOLBAUGH.
    1. Taxation — Assessment Roll —Figures Without Dollar Marks.
    Tax assessments being administrative and not judicial proceedings, tbe roll is not in the nature of a judgment which would be void for failure to indicate by dollar marks or words the meaning of the figures.
    -2. Same — Duty of Mortgagee to Pay Taxes — Obtaining Title by Tax Purchase.
    It is not a violation of the mortgagee’s duty to the mortgagor, to purchase at tax sale premises which have been sold to the mortgagee on foreclosure of the mortgage, the duty and the relation having ceased to exist.
    3. Deeds — Conveyancing—Parties—Name—Idem Sonans.
    A deed to the correct grantee under the name of Ansley instead of Ensley, conveys title to the premises.
    4. Same — Names—Variance in Spelling.
    Proper names, though spelled differently or pronounced with a slight variation, are regarded as the same, if they sound substantially alike.
    5. Taxation — Purchase of State Bids — Payment of Taxes Due.
    Failure to pay taxes due which have become a lien on the premises, at the time of a tax purchase, avoids a deed from the auditor general to the purchaser. 1 Comp. Laws, § 3907.
    6. Same — Notice to Redeem — Separation of Descriptions and Amounts.
    Notices of the purchase of State tax lands, which do not describe the several parcels deeded to the purchaser, and the amounts due for each, axe fatally defective.
    7. Ejectment — Prior Possession — Ouster.
    A plaintiff, in ejectment to recover possession of vacant property, claiming a prior possession and ouster by the defendant, must show actual or constructive possession to the time of the wrongful intrusion, and must show that he had not abandoned the premises at such time.

      Error to Newaygo; Palmer, J.
    Submitted February 17, 1910.
    (Docket No. 82.)
    Decided March 5, 1910.
    Ejectment by Ann Janette Ensley against Benjamin Coolbaugh. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      Maher & Barnard, for appellant.

      George Luton, for appellee.
   Stone, J.

This is an action of ejectment in which the plaintiff seeks to recover the two subdivisions constituting the west half of the northwest quarter of section 9, in town 13 north, range 12 west, being in the county of Newaygo. The plaintiff claims ownership in fee under separate deeds from her father, the late William J. Harris. The defendant’s claim to the premises is based upon a quitclaim deed from George A. Day, to whom the auditor general made separate deeds of the two forties on February 25, 1903. For convenience of reference the two forties will be designated as the “north forty’’and the “south forty,” respectively. The cause was tried by the court without a jury, and judgment was rendered in favor of the defendant. Findings were made and filed, and there were certain amendments to the findings. There is some confusion in the record, and it is difficult at times to distinguish the amended findings from the requests to find. Exceptions were filed to the matters of law embodied in the findings, and also to the refusal of the court to make findings of fact upon certain evidence relating to the occupation and improvement of the north forty, the last of which, under our holding, it will not be necessary to consider. A bill of exceptions was settled, error was assigned to the rulings excepted to, and the case is here for review on writ of error.

The lands in question constitute a part of the land grant of the Grand Rapids & Indiana Railway Company, and were conveyed by that company and others to David Kelly December 28, 1876. His deed was recorded January 8, 1877, and there is no recorded evidence of any conveyance having been made by said Kelly of any part of said lands. Both forties were sold in one parcel for the taxes of 1878, and were conveyed by the auditor general on January 4, 1881, to Henry Ferguson and Hezekiah Sailors. This deed was recorded January 29, 1881. The circuit judge held this deed void for the reason that in the tax roll of 1878 the items of State taxes, county taxes, interest, collection fees, charges, expenses, and amounts sold for are in figures without dollar marks or any word or sign to indicate what the figures mean except that a line appears upon the blanks to the left of the last two figures. This ruling is covered by exception and assignment of error. We think that this ruling constituted error. A tax roll does not operate as a judgment. Tax assessments are administrative and not judicial proceedings, and no record made by an administrative officer concerning his own accounts is operative as a judgment.

The distinction between judgments and administrative proceedings in tax matters has been clearly pointed out in the decisions of this court. Thus in Millard v. Truax, 99 Mich. 157 (58 N. W. 70), it is said:

“It is well settled that a judgment is void which is given in figures merely.”

While in Muirhead v. Sands, 111 Mich. 487, 494 (69 N. W. 826, 829), where the dollar marks did not appear in the petition and published notice, but the figures were divided in such a manner as to indicate a place for dollars and cents, and the same were sufficiently designated in ihe judgment, the court said:

“We held, in the case of Millard v. Truax, that a judgment entry was insufficient if it failed to show any dollar marks or anything in terms to indicate that money was intended. This rule * * * should not apply to other proceedings in the course of taxation.”

In other cases it has been expressly ruled, both before and since the institution of judicial proceedings for tax sales, that dollar marks or other monetary designations are unnecessary in tax rolls. Bird v. Perkins, 33 Mich. 28-31; First Nat. Bank of St. Joseph v. Township of St. Joseph, 46 Mich. 526-528 (9 N. W. 838); Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881).

The said tax deed being therefore valid upon this record, it appears that title to the north forty was conveyed, to William Harris as follows: Warranty deed dated October 16, 1882, from Henry Ferguson and wife to Hezekiah Sailors, recorded May 21, 1887. Quitclaim deed, dated May 14, 1887, from Hezekiah Sailors and wife to-Charles Nichols, recorded October 15, 1888.

On July 23, 1889, Charles Nichols and wife mortgaged to William J. Harris, recorded September 5, 1889. This mortgage was duly foreclosed by advertisement, and sold by the sheriff, and deeded to William J. Harris on February 3, 1891. It also appears that on August 5, 1893,. the auditor general conveyed said north forty to William J. Harris for the taxes of 1889. The circuit judge, in his original findings, held this deed for taxes of 1889 void for the reason that there tvas no record in the office of the-county clerk of any proceedings taken by the auditor general for the sale of said lands. This ruling is covered by exception and assignment of error. In his additional and. supplemental findings, however, the circuit judge said:

“ The proceedings for this sale were all regular and in accordance with the statute.”

And this conclusion was not excepted to by the defendant. We shall not further consider this question, more than to say, in passing, that the plaintiff contends that' the records in the county treasurer’s office are complete, and show the petition of the auditor general, the order of hearing, and due- proof of publication thereof, with a certified copy of the decree, which is in due form.

It is claimed, however, that William J. Harris was precluded from, acquiring title to the premises, because he> had been a mortgagee of the same when the taxes accrued. This claim is not supported by the authorities cited. They relate to the conditions where the relations of mortgagor and mortgagee existed at the time of the tax purchase. In the case at bar the relation had ceased before the tax sale. . '

As already appears, William J. Harris received a sheriff’s deed on foreclosure of mortgage February 3,1891. He purchased the premises at the tax sale May 2, 1892. The right of redemption, under foreclosure, had expired February 2, 1892, three months before the tax sale. The reason for the rule invoked by the authorities cited by defendant’s counsel had then ceased to be operative. Mr. Harris then had a right to buy in any outstanding title or claim for the purpose of strengthening his title to the property in question. William J. Harris being therefore the owner of the north forty, he conveyed the same by warranty deed to the plaintiff by the name of “Ansley,” instead of “Ensley,” on February If, 1896. Upon this question of the name of the grantee in the deed, the circuit judge found as follows:

“ The plaintiff herein was intended to be named as the grantee in said deed. By reason of the similarity in sound, she was sometimes called and addressed in writing by the name of ‘ Ansley,’ as well as of ‘Ensley.’ After receiving said deed, she had control of the last above described premises, and leased the same from time to time to tenants, who occupied under her, until the buildings thereon were burned in the fall of 1900, and the plaintiff continued to use and cultivate a portion of said premises in the summer and fall of 1901.”

Yet the circuit judge found that this was not a conveyance to the plaintiff because of error in the name. This finding was excepted to, and error is assigned by plaintiff.

We think that there was error in this holding. The law does not regard the spelling of names, so much as their sound. If two names, although spelled differently, sound alike, they are to be regarded as the same. Great latitude is allowed in the spelling and pronunciation of proper names, and in all legal proceedings, whether civil or criminal, if two names, as commonly pronounced in the English language, are sounded alike, a variance in their spelling is immaterial. Even slight difference in their pronunciation is unimportant. 29 Cyc. pp. 272-274; 21 Am. & Eng. Enc. Law (2d Ed.), pp. 306, 315, 317; Kinney v. Harrett, 46 Mich. 87 (8 N. W. 708); Brown v. Quinland, 75 Mich. 289 (42 N. W. 940); People v. Gosch, 82 Mich. 22 (46 N. W. 101); City of Detroit v. Macier, 117 Mich. 76 (75 N. W. 285). Many other cases might be cited from our own decisions.

In Andrews v. Dyer, 81 Me. 104 (16 Atl. 405), a deed naming “Mercy A. Andrews” as grantee was delivered to “Melissa A. Andrews,” and it was held a good conveyance to the latter. The court said:

“ The only question of law is, whether Melissa, the demandant, must go to the equity side of the court for a correction of the mistake iri. the name, or whether she can establish her title under the deed as it is, by showing that she is the person to whom it was delivered, and for whom it was intended.
“ It is, of course, common learning that parol evidence should not be received to contradict or vary the terms of a written instrument. It is equally well settled, however, that parol evidence must often be received to identify the persons or things named in a writing. We think the question here is one of identification, and not one of meaning or terms.
“ The demandant, Melissa, produces the deed. * * * She does not offer to prove that she is the person intended to be the grantee in a deed made out and delivered to another person by mistake. She offers to show, rather, that the name written in her own deed, delivered to her, was intended for a noting or description of herself as grantee, that she is the person referred to by the name of Mercy A. Andrews. Such evidence is clearly admissible, and makes out her title.”

So, in Staak v. Sigelkow, 12 Wis. 234, a deed for ee Arnold Staak” named the grantee as “Louis Staak,” and was held a good conveyance to Arnold Staak.

We are of opinion that the plaintiff showed a good title to the north forty in question.

We reach, however, a different result as to the south forty. The plaintiff offered in evidence a deed of the south forty from the auditor general to William J. Harris, dated November 9, 1897, for the taxes of 1893. The land was sold under decree dated September 20, 1895, and was bid in by the State. Harris purchased the State bid, or title, January 9, 1896, but did not pay the taxes of 1895, which were then a lien upon the land. This is shown by reference to the deed itself and by the finding of the court, where it was found that on February 25, 1903, the auditor general made a tax deed to George A. Day of the southwest quarter of northwest quarter of section 9 in town 13 north, range 12 west, for the taxes of 1895, 1896, and 1897. From this it plainly appears that the taxes of 1895 were a lien upon this land on January 9, 1896, when Harris purchased from the State under the provision of Act No. 154 of the Public Acts of 1895 (1 Comp. Laws, § 3907).

In Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134), it was said, under a similar statute:

“ The auditor general has no authority to sell and deed State lands, except upon receiving the price required by law, and this the purchaser is bound to know. The taxes become a lien upon the land early in December — a fact that is known to the auditor general, and of which the purchaser must take notice. Before the auditor general is authorized to part with the title of the State, he must be paid all taxes which remain a lien upon the land. After the time that taxes have become a lien, both purchaser and auditor general are aware that taxes have become payable which have not been returned.”

It is not necessary to inquire further concerning this deed. This south forty was deeded by William J. Harris to the plaintiff by a quitclaim deed bearing date April 18, 1896, and the same was recorded August 29, 1896. We thus see that the plaintiff acquired no title to the south forty.

The defendant’s claim of title to these premises will be readily disposed of. On February 25, 1903, the auditor general deeded the southwest quarter of the northwest quarter of section 9 to George A. Day for the delinquent taxes of 1895, 1896, and 1897. On the same day the auditor general deeded the northwest quarter of the northwest quarter of section 9 to George A. Day for the delinquent taxes of 1897 and 1898. It clearly appears that the two forties were assessed, taxed, sold, and deeded separately for separate and distinct sums. The tax notice attempted to be served by George A. Day was fatally defective in many particulars, one of which only will be noticed. The notice described the property as a whole, the west half of the northwest quarter of section 9, in town 13 north, range 12 west. It stated that the amount to be paid was $58.55, the gross sum.

As was said by Justice Hooker in Jackson v. Mason, 143 Mich. 355, 357 (106 N. W. 1112, 1113):

“Where, however, as in this case, there are various descriptions separately sold, the amount paid for each should be given in the notice, failing in which, the notice is not a compliance with law.”

See, also, Duncan Land & Mining Co. v. Rusch, 145 Mich. 1 (108 N. W. 494); G. F. Sanborn Co. v. Johnson, 148 Mich. 405 (111 N. W. 1091); Haden v. Closser, 153 Mich. 182 (116 N. W. 1001).

On November 16, 1903, George A. Day deeded by quitclaim to the defendant, who took possession of both forties about May 1, 1904, and has continued to occupy the same. Neither the deed to him nor the deed to Day gave any right to possession of the premises. This suit was begun February 21, 1907.

The plaintiff contends that she was entitled to a judgment for both forties, for the reason that she had been in prior possession of both pieces, claiming title, and that she could rest upon that showing, as a prima facie case. The defendant does not discuss that question in his brief. It appears from the finding of the circuit judge that the plaintiff was not in possession of the premises after 1901. The record is silent as to payment of taxes, or claim of the plaintiff between 1901 and February, 1907, when suit was brought. One of plaintiff’s witnesses testified that the premises had been a kind of commons for some time before the defendant went into possession. It would seem, therefore, from this record, that there was no actual ouster of the plaintiff by the defendant when he went into possession. The plaintiff’s attorney cites the following Michigan cases in support of his position: Covert v. Morrison, 49 Mich. 133 (13 N. W. 390); Cook v. Bertram, 86 Mich. 356 (49 N. W. 42); Jennings v. Dockham, 99 Mich. 253 (58 N. W. 66); Gamble v. Horr, 40 Mich. 561; Shaw v. Hill, 79 Mich. 86, 91 (44 N. W. 422).

As we understand these cases, there was an actual ouster, and the possession was disturbed by the trespass, and we had supposed the rule in Michigan to be that a plaintiff could not recover because of a prior possession unless he shows an actual ouster. Plaintiff cites Louisville, etc., R. Co. v. Philyaw, 88 Ala. 264-269 (6 South. 837), which seems to support his position that there need be no actual ouster shown. The weight of authority seems to be to the effect that, unless plaintiff’s right of entry is preserved by constructive possession, his prior possession should be continuous to the ouster, or at least not abandoned; as prior possession may be lost by abandonment. 15 Cyc. p. 35, citing Spurlock v. Dougherty, 81 Mo. 171; Pendo v. Beakey, 15 S. Dak. 344 (89 N. W. 655); Wilson v. Palmer, 18 Tex. 592; Sabariego v. Maverick, 124 U. S. 261 (8 Sup. Ct. 461); Pierce v. Stuart, 45 Cal. 280; Thompson v. Burhans, 79 N. Y. 93; Taylor v. Telle, 45 La. Ann. 124 (12 South. 118).

In Sabariego v. Maverick, supra, the Supreme Court of the United States, in discussing the question of plaintiff’s right to recover on prior possession, says:

“The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property.”

And that court in its opinion quotes the following language of the supreme court of Texas in Wilson v. Palmer, 18 Tex. 592:

“The evidence must show a continuous possession, or at least that it was not abandoned, to entitle a plaintiff to recover merely by virtue of such possession.”

And it proceeds further as follows:

“That is to say, the defendant’s possession is in the first instance presumed to be rightful. To overcome that presumption, the plaintiff, showing no better right by a title regularly deduced, is bound to prove that, being himself in prior possession, he was deprived of it by a wrongful intrusion by the defendant, whose possession, therefore, originated in a trespass. This implies that the prior possession relied on by the plaintiff must have continued until it was lost through a wrongful act of the defendant in dispossessing him. If the plaintiff cannot show an actual possession, and a wrongful dispossession by the defendant, but claims a constructive possession, he must still show the facts amounting to such constructive possession. If the lands, when entered upon by the defendant, were apparently vacant and actually unoccupied, and the plaintiff merely proves an antecedent possession at some prior time, he must go further and show that this actual possession was not abandoned; otherwise he cannot be said to have had even a constructive possession. To the same effect are the cases of Jackson v. Walker, 7 Cow. (N. Y.) 637; Jackson v. Denn, 5 Cow. (N. Y.) 200; Smith v. Lorillard, 10 Johns. (N. Y.) 338.”

From this record it appears that the south forty was vacant property for about three years, during which time there is no evidence that the plaintiff paid taxes, or did any act or asserted any claim to indicate that she had not abandoned the premises, or that she had even constructive possession. Upon this record we cannot say that she had any standing in the court that would entitle her to recover as to the south forty.

The plaintiff having shown title to the north forty, she should have been given judgment therefor, under the statute. 3 Comp. Laws, § 10974.

For the errors pointed out, the judgment will he reversed, and a new trial granted.

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


text:
      In re MILLER'S ESTATE. In re CLAIM OF BENNETT.
    1. Intoxicating Liquors — Civil-Damage Action — Evidence — Death.
    In an action, under the law regulating the sale of intoxicating liquors, against a deceased saloonkeeper’s estate, to recover damages sustained in plaintiff’s contractual rights by reason of the death of her brothers, evidence of the condition and mutilation of the bodies is admissible to show the intoxicated condition of decedents, though the death is admitted by defendant.
    2. Same — Damages—Evidence—Contracts.
    On the trial, for the purpose of sustaining claimant’s theory that she was injured in her property rights by the death of her brothers who had agreed for a consideration to support her for life, a memorandum book showing the amount of money expended during the year prior to their death is competent to show what it cost to support the claimant during the period covered.
    3. Same — Damages—Instructions to Jury — Trial.
    It is not improper to instruct the jury, on such trial, that they might take into consideration what the deceased could earn during their expectancy and hers; the contract obligation being limited by the length of the lives of the parties.

      4 Same — Trial — Conduct of Counsel — Propriety of Argument.
    Any impropriety which may have been committed in the argument of counsel for claimant, in urging the jury to enforce the liquor law, was cured by the interposition of the court and its statement that the question was not one of enforcing the law.
    5. Pleadings — Declaration—Sufficiency—Definiteness.
    Pleadings and evidence which tend to show that the contract between claimant and her brothers provided for her support during her life, show a sufficiently definite agreement, in an action for damages against a liquor dealer who contributed to the death of the brothers.
    6. Intoxicating Liquors — Liability for Death — Knowledge of Habits of Deceased.
    The right to damages in a civil-damage action is independent of any knowledge that the liquor dealer may have had concerning the habits of the purchaser, if, in fact, the latter was in the habit of becoming intoxicated.
    7. Same — Judgments—Recovery by Another.
    A claim for damages against a liquor dealer for selling to persons in the habit of becoming intoxicated is not barred by a recovery in a separate action for the same wrong, by another injured person.
    Error to Kalamazoo; Knappen, J.
    Submitted February 16, 1910.
    (Docket No. 47.)
    Decided March 5, 1910.
    Case by Dell Bennett against the estate of Henry B. Miller, deceased, under the civil-damage act. A judgment for plaintiff, on appeal from a disallowance of the claim by the commissioners, is reviewed by defendant on writ of error.
    Affirmed.

      Jesse B. Gropsey and Boudeman, Adams & Weston, for appellant.

      Harry C. Howard, for appellee.
   Stone, J.

This proceeding originated in a claim which was presented by Dell Bennett as claimant against the estate of Henry B. Miller, deceased, which was being administered in the probate court of Kalamazoo county. The claim was disallowed by the commissioners on claims, and the claimant appealed to the circuit court. A brief statement may aid in an understanding of the claim. In the year 1906 Henry B. Miller was engaged in the retail liquor business in the village of Vicksburg, and, to enable him to engage in the business, he gave a bond with sureties as provided by law, which was approved by the common council of the village, and was filed with the county treasurer. This was for the year commencing May 1, 1906. On December 24, 1906, and while said Miller was engaged in such business, William Munger and Henry Munger, twin brothers, who were about 41 years of age and who resided at Schoolcraft, about five miles west of Vicksburg, visited the last-named place, and it was claimed that said Miller there furnished them with liquor which contributed to their intoxication, and that they there became intoxicated, and that they were persons in the habit of becoming intoxicated, and that while they were on their way home to Schoolcraft, in an intoxicated condition, the same evening, they were both killed by a Grand Trunk railroad engine, both being struck while on the railroad track between Vicksburg and Schoolcraft. Henry B. Miller having died subsequently, the claimant, who is a sister of said William and Henry Munger, presented her claim for $15,000 damages, claiming that she had been injured in her means of support by reason of said deceased having furnished intoxicating liquors to her said brothers as aforesaid.

After claimant appealed to the circuit court, and by stipulation and agreement, a declaration was filed in behalf of the claimant, to which the representative of the estate pleaded the general issue, and gave notice of special matter. Upon the trial of the case, and before the claimant rested her case, the declaration was amended so as to broaden it on the matter of the alleged agreement between the claimant and her brothers at the time she went to live with them. By this amendment the claimant averred that at the time she left her husband — some 16 years ago— she made a contract with her said brothers, William and Henry Munger, that if they would provide and furnish her means of support, including board and clothes for herself and child, and continue to provide her means of support, board, and clothing so long as she might live, she would grant the said brothers the right to live in the family home at Schoolcraft, which home she owned, and that she would go to said home to live with them herself and do all the domestic work, including caring for their clothes, doing their mending and repairing, attending to their room work, cooking their meals, and doing all in her power to make for them a pleasant home; that she accordingly went to live with her said brothers, under the terms of said contract, about 16 years ago; and that she faithfully performed all the terms of the contract on her part to be performed from that time to the death of her said brothers, and that her said brothers did likewise perform all the terms thereof on their part to be performed from the time she so went to live with them until they were killed by the wrongful act of said Miller as hereinbefore set forth; and that, because of the death of her said brothers in the manner aforesaid, she was caused to suffer and endure the loss of her rights under said contract, including her support, board, and clothing, all to her damage, etc. There was a jury trial, resulting in a verdict and judgment for the claimant in the sum of $704. The defendant sued out a writ of error, assigning upwards of 60 errors of the trial court, some relating to rulings upon the introduction of evidence, some in refusing to charge as requested, and some to parts of the charge.

We shall first consider the alleged errors discussed by defendant’s counsel upon the oral argument in this court.

The first, second, third, fourth, fifth, eighth, tenth, and thirteenth assignments of error relate to questions put to witnesses touching the condition of the bodies of the Munger boys after the accident. The defendant had admitted the death of these men, and it is claimed that it was prejudicial error to describe the mutilated condition of the bodies to the jury. There is nothing in the record showing that defendant had admitted the intoxicated condition of the men when killed, and claimant contends that the fact that these men were lying on the railroad track before they were hit by the engine, and that they had been furnished liquor a half hour or so before, tended to show that they were intoxicated, and that the evidence of the undertaker and deputy sheriff, complained of, tended to show the position in which the bodies were when struck by the engine. Some of this evidence related to bottles of whisky found on the bodies of the men, the odor of whisky on the bodies, and the number of bottles there found. A somewhat similar question was before this court in Michigan Paper Co. v. Electric Co., 141 Mich. 48, 55 (104 N. W. 387, 389). The court there said:

“ Defendant’s counsel then offered to concede that plaintiff notified defendant of its claim that defendant was infringing upon its rights upon the day when such infringement took place. Notwithstanding this concession, the court permitted the evidence to be introduced. The court committed no error in this regard. The plaintiff not only had a right to show that it notified the defendant at the beginning of the injury, which it claimed was caused by defendant’s conduct and management of its dam, but what its notice contained, not as substantive proof of the facts stated, but as notice of what it claimed the facts were as bearing upon the defendant’s negligence in not remedying them, if the jury should find that they were facts.”

Counsel for defendant argues that the effect of the evidence complained of was to inflame the passions of the jury, and was introduced for that purpose. We hardly think that this claim is warranted by the -record. No complaint is made of the argument of counsel for the claimant on this branch of the case, nor does the size of the verdict indicate that the jury were led astray. On this point the court on defendant’s request charged the jury as follows:

“ I instruct you in this case, if you find the claimant entitled to recover anything whatsoever, that you cannot allow anything whatever because of the manner in which these boys were killed, or on account of the way their bodies were injured. This suit is only for actual damages, and not for anything else, not for mental suffering, shame, mortification, or anything else but actual money loss under the contract alleged in this declaration or claim of the plaintiff in this case. How much has she lost in her means of support under this contract, if you find one existed ?”

We think there was no error in this regard.

Appellant next argues the 18th and 19th assignments of error, and claims that they raise the question as to the admissibility of evidence which tended to show what amount the brothers had previously contributed to the support of claimant. A reading of the record where this question is said to have arisen fairly shows that the objection was made to testimony of the nature offered under the declaration. Claimant had there testified that the brothers had contributed for her support and maintenance during the year before their death $500 or $600. The cross-examination shows that defendant’s counsel had procured from claimant her memorandum book wherein were set down several items for groceries, provisions, and sundries which claimant claimed had been purchased from money furnished by her brothers beginning March 4, 1904, and extending to and including March, 1906, amounting to $1,006.84. This book was offered in evidence by defendant. Appellant contends that this was no evidence of what it was worth to support claimant. We think it was some evidence of what it had cost to support claimant during the period covered. She gave evidence tending to show that the brothers had agreed to support her during her life. The evidence was material as tending to support her claim, in connection with the other evidence in the case.

Counsel for appellant next complains of the charge of the court wherein reference is made to the joint lives of claimant and her brothers. That part of the charge is as follows:

“If, under the evidence, you find that the claimant is entitled to a verdict, she will be entitled to recover such actual damages as by the evidence it appears she is suffering by reason of the death and loss of her brothers, resulting, if it did, in her loss of support, and no other damages whatever. In estimating these damages you should consider simply the amount of loss of her means of support, and award to the claimant such sum as you find will fairly compensate for her loss in that regard from the time of their death and for such length of time thereafter as you may find her expectancy of life to be, taking into consideration the amount these boys would earn during her expectancy, and their expectancy, and have furnished, under the proofs in this case, considering the chances of the boys’ death and possible loss of work, and everything else relating thereto.”

The ages of the brothers, as well as the age of the claimant, were in evidence. The brothers were 41 and claimant 45 years old, and the mortality tables had been offered, and the jury had been instructed thereon. It was the claim of the claimant that she was to have been supported by her brothers during her life. She was the older person. They would not be presumed to support her beyond the period of her life, nor beyond the period of their lives, or expectancy. We do not think that the court erred in calling attention to the expectancy of the lives of the brothers. There was evidence in the case tending to show their manner of life — that they were persons in the habit of becoming intoxicated. The jury may have believed that the expectancy of their lives would thus be affected. The fact that the jury awarded a verdict of $704 may be some proof that they believed from the evidence that the brothers were shortlived men, and would not have lived to support the claimant many years.

The only other matter discussed by appellant in his argument relates to the language of claimant’s counsel in his argument to the jury. During the argument he said:

‘ ‘ These laws, men, are good laws. They are good laws, and they regulate the evil as much as it could be regulated, and as much as it is possible to regulate a thing of that kind. They regulate it so far as it is possible. Now, if you don’t enforce the liquor laws—
Mr. Adams: I think I will take an exception to that argument, your honor. This is a case which we contend is based upon a contract, and it is not a question, so far as the jury is concerned, or the court, whether the liquor law is enforced or whether it is not.
The Court: No; I do not think so.
Mr. Adams: I don’t think it is proper argument for a jury.
The Court: The question whether the law was enforced or not is not the question in this case, but the question is whether the proof under these pleadings is sufficient to entitle the plaintiff to recover.
Mr. Howard: If I establish the fact that there was a contract, I am entitled then to ask, if they find that fact, to enforce that law, am I not ?
The Court: Yes; but they would have to enforce the law, because that is clear under the statute under which the pleadings are drawn.
Mr. Howard: Then that is what I meant by my argument, and I will disclaim anything else. I am not trying to appeal to anything else except to enforce the law in this case.
The Court: No; there ought not to be.”

The objection to .the argument was not made until counsel had said: “ Now, if you don’t enforce the liquor laws —” This is probably the objectionable language complained of. We think that this was not very extravagant language, but whatever of error there was in it was cured by the court. The court stated in the presence of the jury that there was no question about the law, but the only question was whether, under the pleadings and evidence, the claimant was entitled to recover. Counsel for claimant disclaimed any intention of violating the rules of court, and the result does not show that the passions of the jury had' been inflamed by the argument. This court has recently reviewed the cases in this court upon the subject of the arguments of counsel, and we must say here, as there, that we do not think the case should be reversed upon that ground. Person v. Shingle Co., 159 Mich. 1 (124 N. W. 522).

Another position of defendant is that the contract counted upon in the declaration is uncertain. No demurrer was filed to the declaration, or to the amendment thereto, and counsel for defendant spent much time in the examination of the claimant upon this subject. Her claim was, and she seemed to persist in it, that by the agreement she was to be supported by her brothers during her natural life. This seems to be as definite as such a contract could well be.

Counsel also argues the proposition that the judgment should be reversed because Miller did not know that the Munger men were persons who were in the habit of getting intoxicated. There was evidence showing that these men were in the habit of becoming intoxicated. We think that this question has been settled by this court. In McMahon v. Dumas, 96 Mich. 470 (56 N. W. 14), it was said:

‘c The learned counsel for the defendant insists that there can be no recovery in such cases without proof that the defendant knew that the person was in the habit of becoming intoxicated. The statute does not predicate the right of recovery upon such knowledge on the part of those selling intoxicating liquors. It gives an absolute right of action against those who have caused or contributed to the intoxication which results in injury.”

In Radley v. Seider, 99 Mich. 433 (58 N. W. 366), this language was used;

“ There was abundant evidence that the husband was an habitual drunkard, and it was unnecessary to show that the defendant knew it.”

The proposition that there can be but one recovery on account of any injury arising under the statute is urged by appellant in connection with the fact that it appeared that the mother of these men had recovered a judgment against Miller. We do not think it necessary to discuss this point in view of our decisions. Friend v. Dunks, 37 Mich. 25, 28; Rosecrants v. Shoemaker, 60 Mich. 4, 7 (26 N. W. 794); Larzelere v. Kirchgessner, 73 Mich. 276 (41 N. W. 488); Johnson v. Schultz, 74 Mich. 75 (41 N. W. 865); Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088); Boyden v. Haberstumpf, 129 Mich. 137 (88 N. W. 386).

We have examined the other assignments of error as well as the record, including the charge of the court. We find no reversible error, and the judgment of the circuit court is affirmed.

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


author: Hooker, J.

text:
    BAKER v. TEMPLE.
    1. Sales — Contracts—Questions of Law and Fact.
    In an action for breach of a contract of sale of a boat, one party claiming that the price was to be paid in four weeks, the other that it should be paid after his return from a trip to Georgian Bay, the question is one for the jury whose finding is conclusive.
    2. Same — Evidence—Principal and Agent.
    Testimony concerning a conversation with defendant’s agent who had closed a deal between the parties by conversation over the telephone with the defendant, is incompetent when it took place after the making of the sale and was not shown to have been within the agent’s authority.
    3. Same — Damages—Evidence.
    On cross-exammatioiiof the defendant, it was incompetent to show by him the price he paid several years previously for the boat, which had been subsequently used and damaged.

      4. Same — Evidence—Contradictory Proof.
    It was prejudicial error to exclude proof that the intervening purchaser of the boat wrote plaintiff offering the property for the same price agreed upon, although plaintiff testified that he did not receive the letter.
    5. Same — Damages—Value—Evidence.
    To affect the question of value, evidence was admissible to show that the boat could not be run profitably.
    6. Depositions — Evidence—Practice—Cross-Examination.
    Where evidence is excluded on defendant’s objection as to certain testimony contained in a deposition, the cross-examination upon the same subjects should not be received over the objection of defendant.
    Error to Muskegon; Sessions, J.
    Submitted February 14, 1910.
    (Docket No. 140.)
    Decided March 5, 1910.
    Assumpsit by John D. Baker against Ansel F. Temple for breach of a contract for the sale of a boat. Judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      William Carpenter, for appellant.

      Cross, Vanderwerp, Foote & Boss, for appellee.
   Hooker, J.

Defendant was owner of a steamer known as the “Rudolph.” While she lay sunk at a dock in Muskegon, plaintiff made an agreement of purchase for $800. He paid $25 down, and was to pay the remainder at a later date. The parties disagree about the time for the payment; defendant claiming that he was to pay within four weeks, plaintiff that it was to be after his return from a trip to Georgian Bay. Some six weeks later one' Moiles purchased the boat from defendant for $800. On learning this, plaintiff tendered defendant the remainder of the price agreed upon by them. Defendant offered to show that, a few days later, Moiles offered to sell plaintiff the boat by letter addressed to him at Detroit, where plaintiff resided, and later he wrote a similar letter to him addressed in the care of his brother, a prominent business man at Detroit. These letters had notice to return if not delivered upon them, and were prepaid and were never received by the writer. This testimony was excluded. Plaintiff testified that he received neither of these letters, but admitted that two or three months later the defendant offered to deliver the boat to him as contracted, and he refused to take it, saying that he had gone into other business, and did not need it. The plaintiff’s declaration made (no claim for special damages, and the court left to the jury upon this subject only the question of the difference between the price and actual value of the boat. The jury rendered a verdict for the plaintiff for $1,225. Judgment followed, and defendant has appealed.

At the threshold of the case is the question: What was the contract ? If it was agreed that plaintiff should return and pay the consideration not earlier than one week nor later than four weeks from the day of the agreement, the plaintiff had no right to complain, for it is apparent that he did not return and offer to pay until August 10th, which was a month and seven days, about five weeks and a half. On the other hand, if the agreement was that he should pay upon his return from the trip to Georgian Bay, there was a right to a reasonable time after his return. This was a question for the jury, and they must have accepted the plaintiff’s version of the contract, which, of course, we cannot review.

In connection with the proof of the contract, error is assigned upon the admission of certain testimony of the plaintiff. The testimony in the case shows that the contract was made through Dake, who communicated over the telephone, between the plaintiff, who was in his presence, and the defendant, who was at his home, the negotiations, offers, and conclusions of the parties. It culminated in the agreement, the payment of $25, and the giving of a receipt therefor, reading as follows:

$25.0C/ 7/3/1907.
“Received of J. D. Baker twenty-five dollars on account purchase of steamer Rudolph, total price to be $800, balance to be paid when taken.
“A. F. Temple, F. C. W.”

Of this transaction plaintiff testified:

“ I came to the office, and they said Mr. Temple wasn’t there, that he was home, and he wasn’t feeling well, and didn’t think he would come down, but, if I came to submit an offer, that they would call him up on the phone. I says: ‘ I got an offer.’ They says: ‘ What is it ? ’ I says: ‘$800.’ Mr. Dake says: ‘I don’t think he will take that, but,’ he says, ‘I will call him up anyway.’ I says: ‘Yes; no harm done,’and so he called him up. Mr. Dake says: ‘ Mr. Temple said that is pretty small, but he would take $1,000.’ I says: ‘ No, sir; I won’t give $1,000. I will just give you $800. My first offer is the only offer.’ So he talked to Mr. Temple over the phone again and told him what I said, and he said Mr. Temple said over the phone that he would take $800. ‘ Now,’ I says, ‘hold on before you ring off there.’ I says: I haven’t got any money with me, but I will pay $25 down to apply on the purchase price to bind the bargain. I have got to go to Toledo. My boat is there, and maybe I will load in Cleveland, maybe Toledo, maybe Sandusky, and go to Georgian Bay and lumber down, and, as soon as I get down and unload the boat, I will be up and take the Rudolph. ’ He says: ‘ How long will that take you ? ’ I says, ‘ I can’t tell you. The last trip I was delayed three weeks, delayed for a tow. That is the reason I was buying the Rudolph, so I won’t have those delays.’ I says that to Mr. Dake, I says: ‘ I can’t tell you exactly.’ So the gentleman behind the desk that is right there took the money. Then they says: ‘ We will make out a receipt for $25 to apply on the purchase price, and the balance to be paid when taken.’ He says: ‘That will cover it, so you won’t get any limit of time.’ I says, ‘ That is good enough for me,’ so he made out the receipt which you have got there.”

The plaintiff was then asked:

“Q. After you received the receipt, did you have any further talk with Mr. Dake or any one there in the office?
“Mr. Carpenter: I don’t see that any talk he had with Mr. Dake after he completed the bargain would be material or competent here. It appears Mr. Dake’s authority was very limited.
f4 The Court: I think you may answer the question.
Mr. Carpenter: Save an exception.
“A. Mr. Dake walked out to the street car track. I believe that turns around there, and he says, ‘You can’t tell much about what time it will be, then, when you get back on the trip.’ Isays: ‘No; but, just as quick as I get back, I will come right up here and take the Rudolph.’”

The only value of this last testimony is in the inconsistency of this alleged inquiry of Dake with his claim that the money was to be paid within four weeks. The contract was concluded, and this testimony was inadmissible; Dake’s authority being limited to the transmission and communicating conversations by telephone. He is not shown to have had any authority to reopen negotiations, and he had no authority to make any admissions, express or implied, and could not bind defendant by anything he might say. It was effective testimony for the plaintiff, and it was clearly injurious to the defendant. The following cases cited .by counsel sustain this ruling: North v. Metz, 57 Mich. 612 (24 N. W. 759); Maxson v. Railroad Co., 117 Mich. 218 (75 N. W. 459); Beunk v. Valley City Desk Co., 128 Mich. 562 (87 N. W. 793); Mott v. Railway Co., 120 Mich. 127 (79 N. W. 3); Butters Salt & Lumber Co. v. Vogel, 135 Mich. 381 (97 N. W. 757).

The plaintiff’s' counsel asked defendant, on cross-examination, what he paid for the boat. The record shows that the defendant had purchased the boat several years before, that she had been repaired, and had been run, and had suffered very serious damage after he bought her, so serious that after raising her Moiles found her of little value. The testimony was not admissible. French v. Fitch, 67 Mich. 492 (35 N. W. 258); Showman v. Lee, 79 Mich. 653 (44 N. W. 1061).

We are of the opinion that it was error to exclude the proof relating to the letters written by Moiles. It raised a presumption that the plaintiff received them, and it was for the jury to decide whether plaintiff’s statement was true, in view of other facts in the case. Rauch v. Insurance Co., 131 Mich. 281 (91 N. W. 160); Long-Bell Lumber Co. v. Nyman, 145 Mich. 477 (108 N. W. 1019, 116 Am. St. Rep. 310); Rosenthal v. Walker, 111 U. S. 185 (4 Sup. Ct. 382).

It was also erroneous to preclude defendant from proving that the Rudolph could not be run at a profit, as it tended to show that she was less valuable than as though she could be run profitably. The propriety of receiving plaintiff’s testimony as to the value of the steamer is open to serious question, as he could see only a portion of the boat, which was nearly submerged. Michaud v. Lumber Co., 122 Mich. 305 (81 N. W. 93); Grabowsky v. Baumgart, 128 Mich. 267 (87 N. W. 891).

A deposition was taken in Detroit in plaintiff’s behalf, which, when offered in evidence by his counsel, was excluded so far as the direct examination was concerned, but on cross-examination was admitted. This was error, as it was used as evidence of the very facts that the plaintiff sought to show by the direct testimony.

It is unnecessary to consider other questions.

The judgment is reversed, and a new trial ordered.

Moore, Me Alva y, Brooke, and Stoke, JJ., concurred.


text:
    McLEAN v. SANDUSKY LUMBER & BOX CO.

    1. Contracts — Loos and Logging.
    Under the terms of a contract providing for towing logs and for holding the defendant liable for safe delivery, it was improper to state in the charge that a cyclone or like disaster would relieve plaintiffs from the responsibility, in the absence of a claim by plaintiffs that they were so relieved.
    2. Same — Navigation—Season—Logs and Logging.
    A contract stipulating that the plaintiffs should tow all logs of the defendant, at the time and from the place which the defendant should direct, would not bind the plaintiffs to tow logs in the face of dangerous weather.
    8. Evidence — Judicial Notice — Seasons.
    The court will take judicial notice that logs cannot be towed in weather which would not prevent the operation of steamers and sailing vessels, and that the towing of logs may have to be abandoned before the close of navigation.
    4. Same — Customs and Usages — Logs and Logging.
    A local custom of closing the season for towing logs before the end of navigation may be considered in construing such towing contract.
    5. Negligenoe — Logs and Logging — Towage Contract.
    Where the party towing logs which were lost in a storm brought an action to recover the compensation agreed upon, and the defendant claimed recoupment, it was error to refuse a request to charge that the plaintiffs should have used all diligence to secure the logs again.
    Error to Chippewa; Steere, J.
    Submitted February 17, 1910.
    (Docket No. 69.)
    Decided March 5, 1910.
    Assumpsit by Alexander B. McLean and another against the Sandusky Lumber & Box Company for work and labor. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Reversed.

      Warner & Sullivan, for appellant.

      John W. Shine, for appellees.

       Rehearing denied May 7, 1910.

   Hooker, J.

The parties to this cause made a written contract, as follows:

c< This agreement, made and entered into this 26th day of April, 1908, by and between A. B. McLean, of Sault Ste. Marie, Ontario, first party, and Woolworth Land & Lumber Company, of Sault Ste. Marie, Michigan, second party, witnesseth: In consideration of the mutual promises hereinafter contained, the parties hereto agree as follows : The first party agrees to tow all timber and boxwood on Canadian shores owned by second party and deliver same into booms of second party at the mill at West Neebish owned and operated by second party. First party shall furnish all towing booms at his own expense. Second party shall deliver timber into towing booms of first party wherever such timber may be found, and it is hereby mutually agreed, if there is not sufficient timber at one point for a tow, first party shall move to other places where timber is located and make all necessary moves to fill towing booms and without additional expense or charge to second party. First party shall be held responsible for the safe delivery of timber into booms belonging to second party at mill at West Neebish. Second party shall pay to first party thirty cents per cord for all timber and boxwood towed from Canadian points and delivered into booms at West Neebish; payment to be made on or before the 15th day of each month for all timber delivered the preceding month. First party shall do all towing at the time and from the place as directed by second party. In witness whereof, this contract has been executed in duplicate the day and year first above written.”

The plaintiffs claim to have performed this contract and delivered the lumber with the exception of the last tow, and that this got away from them through the breaking of the boom in a storm; that they were ready to. tow it after it was collected again, but defendant did not allow it, and had it done by others. Defendant asked compensation therefor by way of offset or recoupment. Defendant also claimed, and plaintiffs disputed, that some of the boxwood was not recovered, and the former asked compensation for this. The plaintiffs also claimed that this last tow Was withheld until past the towing season, and therefore the towing was at the risk of the defendant so far as the vicissitudes and dangers of navigation are concerned. We understand from the argument that plaintiffs offered testimony of a custom, which they assert to have been within the contemplation of the contract.

Defendant submitted two requests to charge which were refused. Three questions are argued by counsel for appellant, viz.:

“First. The charge of the court permitting the jury to exonerate the plaintiffs from responsibility for the loss of timber ‘ through some great catastrophe, * * * some cyclone,’ or something of that nature.
“Second. The refusal of the court to give defendant’s request to charge No. 6, or to define the duty of plaintiffs with reference to the lost raft.
Third. Leaving to the jury, under the contract, the question as to what constitutes a towing season, and submitting as a question of fact whether or not the parties, in making this contract, contemplated a shorter towing season or the entire season of navigation.”

The first question arises upon the following instruction :

“The contract also provides that the first party shall be held responsible for the safe delivery of the timber into the booms belonging to second party at the mill at West Neebish. Now, that provision, in effect, makes the plaintiffs insurers of the delivery of this timber. The language is plain, the parties are presumed to have entered into the contract fully understanding it, and, in the opinion of the court, that holds the plaintiff responsible for the safe delivery of this timber into the booms belonging to the second party; the plaintiff assuming all the ordinary hazards of navigation and of towing logs in the sheltered waters in which the operation was to be carried on. It is quite likely, under the broad principle of law, which we have, that no person can be held responsible for failure and misfortune which comes through acts of God and public enemies; that if some great catastrophe had befallen this enterprise, if some cyclone had swept over one of these rafts and scattered it, if something of that nature had arisen against which all human effort is powerless, the plaintiff would be exonerated from this responsibility, but, in the absence of that, that is, in effect, a guaranty to deliver this timber safely into the boom at West Neebish.”

We are of the opinion that, in the last paragraph, the court added an unnecessary limitation on his construction of the obligation to deliver, from which the jury might find that plaintiffs were exonerated from the loss by the breaking of the boom in a storm. So far as we can discover, there was no claim of this kind in the case. The jury would be likely to think the instruction was to have some bearing on the case, and there is reason to fear that it may have been injurious to defendant’s case.

Counsel contend that the writing explicitly gave the defendant the right to arbitrarily require the plaintiffs to tow logs at any time while navigation is open. Counsel himself, by this very statement, recognizes the necessity of recognizing a limitation upon the unqualified right to require towing, at a season when towing cannot be done by reason of ice, and we have no reason to believe that such right would be limited to a time when it was barely possible. Certainly the contract was not intended to give him the right to require plaintiffs to attempt to tow logs in the face of a dangerous gale, or in weather so threatening as to make it foolhardy to attempt it. We may take judicial notice that there is much weather when steamers and sailing vessels may be operated with safety when it would be futile to attempt to tow logs, and that there may be a time before navigation, is usually abandoned when the towing of logs would be hazardous, and after all attempts to tow logs have been abandoned. Upon proof of a general and uniform custom in that regard in the locality, a jury might well find when that time is, and conclude, as the court should do on undisputed facts, that the contract was intended to recognize such a limitation.

In 2 Parsons on Contracts (9th Ed.), p. 688, it is said:

“ A custom which may be regarded as appropriate to the contract and comprehended by it, has often very great influence in the construction of its language. The general reason of this is obvious enough. If parties enter into a contract, by virtue whereof something is to be done by one or both, and this thing is often done in their neighborhood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that way. The reason for this supposition is nearly the same as that for supposing that the common language which they use is to be taken in its common meaning. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence an established custom may add to a contract stipulations not contained in it, on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it. * * * So custom may control and vary the meaning of words; giving even to such words as those of number a sense entirely different from which they commonly bear, and which indeed by the rules of language and in ordinary cases would be expressed by another word.”

To this we may add that, the more unnatural and unjust a strict construction of the contract, the more probable the intent that a prevailing custom which avoids the hardness of the contract was in contemplation, and such custom may be held a part of the contract, unless the express terms of the contract clearly negative the intent.

In Hinton v. Locke, 5 Hill (N. Y.), 437, Bronson, J., said:

“Usage can never be set up in contravention of the contract; but, when there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties.”

The effect in this case would be to add to the provision “first party shall do all towing at the time and from the place, as directed by second party,” the words “during the season for towing logs.” We are of the opinion, therefore, that it was proper to prove the custom as to the season of navigation, and to hold that the contract was made in contemplation of performance within the season commonly devoted to the towing of logs, which may be shorter than that for general navigation. It was proper, therefore, to leave that question to the jury, and not error to refuse the fifth request.

The sixth request certainly stated the correct rule, and we think that the charge as given did not fully state it, though it was doubtless so intended, and was probably so understood.

If we could say with certainty that the last tow occurred after the close of the towing season, and, as plaintiffs claim, could also say that the plaintiffs attempted it only upon the consent of defendant to assume the dangers of navigation, we could treat the reference to cyclones, etc., as harmless, and the sixth request as properly refused, and affirm the case; but we cannot say, from the record, that these things were conclusively established, the evidence not being returned, and the charge failing to so state, and, on the contrary, treating these as disputed questions.

The judgment is reversed, and a new trial ordered.

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

       6th Request: “It was their duty to use all diligence to secure the wood again.” — Reporter.


text:
    ADDISON FLOURING MILL CO. v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Damages — Continuing Injury — Waters and Watercourses —Prospective Injury.
    Damages are not recoverable as for a permanent injury caused by the construction of an embankment in a lake, and the diminution of the flow of water to a mill, separate actions being maintainable from time to time as they accrue.
    3. Same — Rentals—Measure—Value.
    Decrease in the rental value of the flour mill is riot recoverable in addition to the increase in cost of steam operation caused by the obstruction.
    3. Same — Profits.
    Lost profits for which the injury was not shown to be the reason are not recoverable.
    Error to Lenawee; O’Mealey, J.
    Submitted February 18, 1910.
    (Docket No. 94.)
    Decided March 5, 1910.
    Case by the Addison Flouring Mill Company against the Lake Shore & Michigan Southern Railway Company for damages caused by an obstruction to certain water power. A judgmentfor plaintiff for an inadequate amount is reviewed by it on writ of error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      Herbert B. Clark, for appellee.
   Hooker, J.

Devil’s Lake is a lake of some size, and the plaintiff has for many years relied upon it as a storage pond for water for its mill. In bringing it to its mill it has utilized Bean creek for about two miles. In that distance the overflow of the creek has made three ponds, called “ Upper,” “Middle,” and “Lower’’pond, all of which are of some value for the storage of water. The attached diagram will serve to illustrate the situation.

Between the lake and the upper pond are two highways. The water from the lake passes these in iron pipes, two under each highway. The upper highway has one 48-inch and one 45-inch pipe, an aggregate capacity of 24 square feet. The next lower highway has one 48-inch and one 42-inch pipe, aggregating 22 square feet. A highway also crosses the creek between the upper and middle ponds, and this was provided with two similar pipes, 4 feet and 3 feet six inches, respectively; the capacity not being stated, but aggregating about 20 square feet. Plaintiff’s mill is shown below the lower pond. The defendant constructed its track many years ago across the lower end of the upper pond, upon a trestle. Three years ago, finding the trestle inadequate to support its trains with safety, it filled in the trestle and made an embankment, leaving an opening 75 feet wide at the top and 35 or 30 feet at the water’s edge. The weight of the fill caused the bottom of the pond, which was of muck, to rise, south of the track, and it is plaintiff’s claim that this impeded the flow of water to the mill, and the jury must have so found, for they found a verdict for the plaintiff, from which the plaintiff has appealed as inadequate.

Plaintiff maintains that this is a permanent injury, which has lessened the value of its property, which entitled it to sue for and collect past and prospective damages, once for all. Defendant asserts, on the other hand, that this is a continuing injury, from a cause which is not necessarily permanent, and may be abated, for which continuing injury plaintiff may have successive actions. The learned trial judge took the latter view, and allowed plaintiff the cost of supplying power to his mill up to the time of beginning the action.

The authorities are at variance as to what the rule is by which it is determined whether the right is to original or continuing damage. Valuable contributions to this subject are to be found in the cases of Harvey v. Railroad Co., 129 Iowa, 465 (105 N. W. 958, 3 L. R. A. [N. S.] 973, 113 Am. St. Rep. 483; Town of Troy v. Railroad Co., 23 N. H. 83 (55 Am. Dec. 177); City of Chattanooga v. Dowling, 101 Tenn. 342 (47 S. W. 700); Uline v. Railroad Co., 101 N. Y. 98 (4 N. E. 536, 54 Am. Rep. 661). We do not feel called upon to discuss the question at length, the court being committed to the doctrine relied upon by the learned circuit judge, by the case of Phelps v. City of Detroit, 120 Mich. 447 (79 N. W. 640). This was foreshadowed in the case of Hoffman v. Railroad Co., 114 Mich. 316 (72 N. W. 167). The cases of Harper v. City of Detroit, 110 Mich. 427 (68 N. W. 265), and Keyser v. Railway Co., 142 Mich. 143 (105 N. W. 143), which may seem at variance with the other cases cited, turn upon statutes.

Counsel urge that the court erred in its instruction regarding the measure of damage. The plaintiff claims that it should be entitled to the diminution in rental value of the premises for the period, and also loss of profits. It has suffered no injury from a diminution of rental values because it has occupied the mill. It is possible that this fact might not be controlling, but it has apparently been able to supply the diminished power, by the use of steam, with which the mill was provided before the embankment was made. It proved and was allowed to recover the cost of supplying the power. Manifestly itshould not recover both that and a diminished rental value, while to add to that a loss of profits would be unjust; it being apparent that there was no reason for loss of profits if it was able to supply the power.

Complaint is made of an alleged limitation of expense in supplying the diminished power to the items of fuel, oil, waste, and repairs on the engine. We find no such limitation in the charge.

The judgment is affirmed.

Moore, MoAlvay, Brooke, and Stone, JJ., concurred.


author: Montgomery, C. J.

text:
    WINNIE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Negligence — Railroads—Crossing—Giving Warning.
    An employé of the defendant who was crossing its tracks after working hours, in a place where the company maintained danger signs marked “No Thoroughfare,” in its yards, cannot recover for injuries sustained by being hit by an engine, on the theory that the company owed a duty to the traveling public to use lights on its engine and to give a warning signal.

    Error to Lenawee; Chester, J.
    Submitted November 11, 1909.
    (Docket No. 32.)
    Decided March 19, 1910.
    Case by Albert Winnie against the Lake Shore & Michigan Southern Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Herbert E. Clark, for appellant.

      Smith, Baldwin & Alexander, for appellee.

       As to duty of railroad company to keep lookout for trespassers on track, see note to Frye v. Railway Co. (Mo.), 8 L. R. A. (N. S.) 1069.

   Montgomery, C. J.

The plaintiff in this action recovered a judgment for personal injuries received in the railroad yards of defendant at Adrian, Mich. The facts, briefly stated, are that the defendant’s railroad passes through the southerly part of the city of Adrian in an easterly and westerly direction. North of its tracks and yards, and extending in an easterly and westerly direction, is Michigan street. The first street south of the tracks and yard is Treat street. The next east and west street south of Treat street is Beecher street. Between Treat street and Beecher is a tract of platted land built up and populated. The defendant’s passenger station is on the north side of its tracks, the south side of Michigan street, and directly east of Tecumseh street. The street south of this track extending north and south which would clearly intersect Tecumseh street if extended is James street. The first street east of this is Tabor street. The first .north and south street west of Tecumseh street is Center street, which is about 30 or 40 rods west of the passenger station. The first public road crossing the defendant’s tracks east of the station is some three-fourths of a mile distant. The factories where many of the men living south of defendant’s tracks worked were north and east. The business portion of the city is also north of defendant’s tracks. The school children and laboring men who worked in these factories had to cross the tracks, and in so doing either had to go west to Center street and then east on Michigan street, or pass from James street to Michigan street over the tracks of defendant. The railroad company maintained warning signs in its yards, to notify people that there was no thoroughfare, that no trespassing was allowed, and that the place was dangerous. Notwithstanding this, people had, as the evidence showed, quite generally been passing over the tracks of the defendant from Treat street to Michigan street, but whether at the precise point at which plaintiff received the injury there was some doubt. But it would appear that tracks had been worn by people passing over these tracks frequently.

The plaintiff had been in the employ of the defendant for many years. On the day in question, he had been at work unloading lumber, and had used for that purpose a scaffolding near one of defendant’s tracks. He quit work between 4 and 5 o’clock and went home to his supper. It appears that a freight conductor, a Mr. Sigsbee, boarded at plaintiff’s house, and he went to the station, as he testifies, to ascertain when Mr. Sigsbee’s train would likely be in. He strolled over from there to the car laborers’ shanty, which occupied a place between two diverging tracks in the yard, and engaged in conversation with Mr. Molloy, the car repairer. He testified that he then bethought him that this scaffolding which had been left near the tracks might project and cause injury to some one, and he thought it was his duty to go and remove it. He gave testimony that one of the defendant’s employés, Mr. O’Neil, had told him to look after the interests of the defendant at all times, and to look after anything that might result in danger or injury to any of defendant’s employés, and it was in pursuance of this direction that he went to remove the scaffolding. While crossing one of the tracks in this direction, an engine which was being taken to the roundhouse, and which had no light upon it, and was run without the ringing of the bell or blowing the whistle, ran against him and caused the injury. The plaintiff had three theories: One was that the defendant was grossly negligent in running its engine without lights and without bell or whistle. This theory was not submitted to the jury. The second theory was that the plaintiff was rightfully there as a part of the traveling public, and that the defendant owed him the duty of a traveler. Third, that the plaintiff was rightfully there as an employé under the master’s orders to look after defendant’s affairs, and that James Hamilton, who ran the engine upon him, was not a competent man to do the work assigned him, and for that reason the fellow-servant rule did not apply.

The case was submitted to the jury upon the two last-named propositions, the circuit judge instructing the jury, in effect, that if the public had traveled over these tracks to such an extent that the defendant company knew or ought to have known of the custom, and had not stopped it, and had been accustomed to use lights and give warnings, the failure to use the lights and give the warning on this occasion would be a breach of duty to the plaintiff, and he would be entitled to recover. The court also submitted the case to the jury upon the theory that the plaintiff was engaged in his duties as a workman for defendant at the time, and that while the act of Hamilton would be that of a fellow-servant, and therefore no recovery could be had for his negligence, except upon the theory that he was incompetent and known to be so by the company, or employed under such circumstances as would impute knowledge of the fact of his incompetency, yet if such knowledge was shown, or the circumstances were such as to impute the knowledge of his incompetency, the fellow-servant rule would not obtain, and if the company was negligent in the particulars named — a failure to have lights and give warning — a recovery could be had.

We think the case should not have been submitted to the jury upon the first question. It is difficult to conceive what more this company could have done to give warning to the general public that this was a place of danger. The evidence tended to show that a fence had been maintained which had been torn down from time to time. The yard was very plainly devoted to railroad tracks, in which cars and engines were frequently moving back and forth and were of themselves a warning of danger, and, with the notices posted as they were, the public who saw fit to pass over these tracks did so with full knowledge of the danger. Except by stationing men at the highway along the track, it is impossible to conceive how the company could have more effectively warned the public that this territory was not a thoroughfare. The case upon this point is very similar to that of Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535).

As the case must be reversed upon this ground, it is not necessary to discuss the other question raised, further than to say that the testimony that the plaintiff was acting in pursuance of a duty he owed to the railroad company in the line of his employment is so meager as to make it hardly believable that the jury rested its verdict upon any such theory of the case.

We think error was committed in submitting the case upon the theory first stated, and that the judgment should be reversed and a new trial ordered.

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


author: McAlvay, J. Ostrander, J. Hooker, J.

text:
    JONES v. PENDLETON.
    Amendment — Testimony at Former Trial — Identity of Issues —Evidenoe—Cause of Action.
    In an action for broker’s commissions, in which the court excluded testimony of the deceased plaintiff given on a former trial, prior to the amendment of his declaration so as to count on a promise to pay the commissions if the land should be sold by other parties, the issues are sufficiently alike to warrant the reception of the rejected proof. Jones v. Pendleton, 151 Mich. 443 (115 N. W. 468). Hooker, J., dissenting.
    Error to Wayne; Murfin, J.
    Submitted December 14, 1909.
    (Docket No. 172.)

    Decided March 19, 1910.
    Assumpsit by Clarence R. Jones, administrator de bonis non of the estate of James A. Jones, deceased, against Edward W. Pendleton for commissions on the sale of real estate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Lehman, Biggs & Lehman, for appellant.

      William C. Stuart (Leo M. Butzel, of counsel), for appellee.
   McAlvay, J.

No general statement of facts or of the history of this case is necessary. Both may be found in the former opinions handed down when it has been before us for consideration. To these decisions reference is had: Jones v. Pendleton, 134 Mich. 460 (96 N. W. 574); Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692); Jones v. Pendleton, 148 Mich. 544 (112 N. W. 1140); Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468). Plaintiff, Jones, died soon after the first trial of the cause in which an issue was joined upon the original declaration. The cause was revived and subsequent proceedings have been conducted in his name. Upon this first trial plaintiff was produced as a witness and his testimony was taken. The suit was brought upon a claim for certain commissions claimed to be due from defendant upon a sale of real estate. A judgment for plaintiff was reversed because of a modification appearing to have been made in the original contract, and which was not counted upon in the declaration. It was held by this court that an amendment of the declaration was permissible, and the court said:

“ Here the plaintiff has but one cause of action. He failed to properly describe it. The question here is whether the court has power to permit'plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration. We think it is clear that he [it] has that power — [citing authorities].” Jones v. Pendleton, 151 Mich. 444 (115 N. W. 469).

A new trial was granted. Upon such new trial, plaintiff, in order to sustain his contention, offered in evidence the testimony of his decedent given as a witness upon the first trial of the case; that being the only testimony he could produce. Defendant objected upon the ground that the issue before the court was a different issue from that before the court under the original declaration, that the amended declaration set forth a different cause of action, and the testimony was therefore incompetent and not admissible. The court so held, and, upon motion by defendant, directed a verdict in his favor. Exceptions were taken and errors assigned upon such ruling and the direction of a verdict. The case upon a writ of error presents this question alone.

The holding of the court in this case, as last above cited, turned upon the question that this was “the precise cause of action for which suit was brought;” but that it had not been properly pleaded, and upon that ground alone an amendment was allowed. In that case counsel for defendant contended for that doctrine, insisting that the amendment asked was not the precise cause of action for which suit was brought, and, although the court held that it was, it is insisted again upon this argument that it was not. This argument is based upon certain language of the court used in that opinion. That language was used with reference to what was stated in the pleading, not as to the determination of the court upon the crucial question in the case. Defendant relies upon the authority of Schindler v. Railway Co., 87 Mich. 414 (49 N. W. 670). There had been three trials in that case. The witness whose testimony was sought to be introduced on the third trial of the case by defendant had testified upon two trials; on the first, and also on the second trial after an amendment had been allowed to the declaration, charging that the negligence of the defendant’s servants was gross and wanton. Defendant offered the testimony taken upon the first trial. Plaintiff objected, claiming that the testimony taken on the second trial was admissible, but that taken on the first trial was not. The trial court so held, and the testimony taken on the second trial was read in evidence. This court held that this was not error, and stated that the issue made by the amended declaration was quite different, and further speaks of full cross-examination. But that was not the controlling reason for the holding. The court said:

“We have looked into the record here containing the testimony of Luke Sweet on the first trial, and are satisfied that the defendant was not prejudiced by the court ruling it out. The testimony given by him on the second trial was as favorable to the defendant as that given on the first trial. In fact, it is substantially the same.”

The case is distinguishable from the case under consideration. The refusal to admit this testimony was highly prejudicial. Under the holding of the court that this was the precise cause of action for which suit was brought, it follows that the testimony should have been admitted.

The court was therefore in error in excluding it. The judgment is reversed and a new trial ordered.

Blair and Stone, JJ., concurred with McAlvay, J.

Ostrander, J.

I concur upon the ground that the controversy last tried and the one formerly tried is the^ same.

Montgomery, O. J., concurred with Ostrander, J.

Hooker, J.

(dissenting). I am unable to concur in the reversal of this cause, for the reason that the testimony sought to be introduced was given upon another and different issue than the one on trial. The plaintiff’s action was assumpsit, and his claim declared on was that the defendant had promised him certain commissions upon his making sale of certain lands belonging to defendant. The proof upon the first trial showed that he did not make such sale, and therefore did not perform said contract. He recovered, however, and this court reversed the judgment, notwithstanding the fact that plaintiff offered to prove another and “new agreement” to pay commissions to plaintiff if a sale should be effected by other parties. It is to be noticed that this decision treats the two contracts as different and distinct contracts, as they clearly were. It was the issue raised upon the earlier one which was tried on the first trial of the case, and not the issue raised by the later contract. Thereupon plaintiff was denied the privilege of amending his declaration by the addition of a count upon the second contract. This decision was reversed.

In reversing this order, and allowing said amendment, this court did not hold that the two counts charged the same cause of action, but expressly held that they did not. Mr. Justice Blair said in Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468), that:

“ Under our previous decisions in this case, the cause of action stated in the proposed amended declaration is a different cause of action from that stated in the original declaration-, and if at the time of Judge Mandell’s order the statute of limitations had run against the cause of action, he did not err in refusing to allow the amendment, and his order must be sustained.”

Had the amended declaration not sought to count upon a different cause of action, the question of the statute of limitations would have been unimportant, it being only upon the theory that it is the introduction — i. e., the commencement of a new cause of action — that the statute could be relied on as a defense. Again, Mr. Justice Blair says:

“ It is also said that one cannot, by amendment, introduce a new cause of action. * * * Here the plaintiff has but one cause of action. He failed to properly describe it. The question here is whether the court has power to permit plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration. We think it is clear that he has that power.”

What power ? Manifestly the power to allow the introduction of a count upon a new cause of action by amendment, provided the statute of limitations has not run against it, and provided that the amendment should set up the precise cause of action for which he brought suit. It is clear that the first declaration was not made the test of the “cause of action for which the suit was brought,” because we held in Jones v. Pendleton, 134 Mich. 460 (96 N. W. 574), that it did not count upon such cause of action as is now relied on, and, in view of the fact that the action was begun by declaration, we must infer that the intention of the party in bringing his action was to be considered, and that the court was able to find from the record that the plaintiff intended to sue upon the second contract, instead of the first, and merely failed to properly describe it. It cannot be said, upon the various records of this cause, that the precise cause of action tried on the last trial was the identical and precise cause of action tried on the first trial, and all that it can be claimed that we decided in 151 Mich., is that it was the precise cause of action for which plaintiff brought suit, which is a very different matter, and which the majority of the court in that case thought and necessarily held was a different matter.

The issue first tried was clearly defined by a good declaration, and, although this court has since been able to say that it was a misdescription of “the cause of action for which he (the plaintiff) brought suit,” that was the issue which was then tried. Afterwards the misdescription was corrected by a count charging another different contract and its breach, and the new and different issue has been tried. The first was whether plaintiff was entitled to commissions for the performance of his contract to sell land, the second, whether at a later date the defendant had made a contract to pay certain commissions to plaintiff in case some one else should thereafter sell the land. We do not overlook the contention of counsel that this testimony was admissible because the issues were substantially the same, and because defendant cross-examined the witness. We have said that the issues were not substantially the same, and counsel do not agree that the defendant’s counsel cross-examined upon the issue raised by the amendment. The contrary is asserted, and there is nothing in this record to show that he did so, if such a collateral issue could be permitted.

I am of the opinion that the learned circuit judge was not in error in excluding this testimony, and it follows that the verdict was properly directed.

The judgment should be affirmed.