text:
    DETROIT TRUST CO. v. HUNRATH.
    1. Interpleader — Definition—Nature.
    A bill of interpleader is a bill filed for the protection of a person from whom several persons claim, legally or equitably, the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter.
    2. Same — Landlord and Tenant — Leases.
    A landlord, who leased premises and subsequently made a second lease, subject to the first, providing that the subsequent lessee should have possession on default of the first, may not maintain a bill of interpleader against the tenants because the subsequent lessee claims that the prior tenant has violated the terms of his lease by subletting without stipulated written consent of the landlord.
    . 8. Same — Descent and Distribution — Parties.
    The guardian of one of the landlord’s heirs has no greater right to file such bill than had the ancestor.
    4. Equity — Jurisdiction—Multiplicity of Suits — Bill of Peace —Adequate Remedy at Law.
    Nor may a landlord, who has successively leased the same premises to different persons, compel them to answer a bill in equity on the ground that it would avoid a multiplicity of suits.
    5. Same — Guardian and Ward — Instructions of Court.
    Nor is the guardian of one of the heirs succeeding to an interest in such premises entitled to litigate the rights of the respective tenants as joint defendants in equity, on the theory that such guardian is entitled to instructions from the court.
    Appeal from Wayne; Hosmer, J.
    Submitted February 24, 1911.
    (Docket No. 164.)
    Decided May 8, 1911.
    Rehearing denied March 30, 1912.
    Bill of interpleader by the Detroit Trust Company, as guardian of Alvin J. Seller, against Otto Hunrath, the State Street Land Company, Louis M. Knauss, Anna P. Beller, Jessie B. Haldi, Marion B. Rennie, Alexander Beller, and Frederick Beller. From a decree sustaining a demurrer to complainant’s bill, it appeals.
    Affirmed.
    Beaumont, Smith & Harris and Charles F. Del-bridge (Orla B. Taylor, of counsel), for complainant.
    Stevenson, Carpenter & Butzel (Alex. J. Groesbeck, of counsel), for defendant Hunrath.

      Henderson, Martindale & Grose, for defendants Beller.

      Bichard G. Kirchner, for defendant State Street Land Company.
   Hooker, J.

The complainant’s bill alleges that Jacob Beller made several leases of certain premises which came to the ownership of one Knauss. Apparently these are not important. It also alleges an agreement between Beller and Knauss made November 10, 1900, reciting the making of a lease of the same day to Knauss, and the holding of the premises by Richter under a lease to him expiring in 1910, the actual occupancy of the premises by Knauss under an agreement with Richter, and providing other and new covenants as to repair. The bill alleges, further, that in 1904 Otto Hunrath bought the interest of Knauss in the leases and premises under an agreement in writing and has paid rent to Beller; that said leases to Richter and the extension thereof expired May 1, 1910. It is alleged, further, that on June 6, 1907, Jacob Beller and wife made a written contract with some men named Moebs agreeing to sell to them the premises, subject to the “conditions of the leases and agreements,” copies being attached, and—

“ Subject also to whatever rights one Otto Hunrath, an occupant of said premises, may have therein by virtue of a sublease from said Knauss or otherwise; it being understood and agreed that said parties of the first part have not consented in writing to the sublease or assignment to said Hunrath of the leases herein referred to; and said first parties agree forthwith after the full payment by the said second parties of the purchase money at the time and in the manner hereinafter mentioned, and the performance of all the conditions herein specified to be both done and performed, to execute and cause to be executed and delivered a good and sufficient warranty deed for the said premises, and also to deliver or cause to be delivered to the said parties of the second part, their heirs, executors, administrators, or assigns, possession of the said premises on the first day of May, A. D. 1920, free and clear from all liens, incumbrances, leases, taxes, both ordinary and extraordinary and any and all other claims upon said property.” Also:
“It is further mutually agreed that in case default shall be made in any of the covenants of any of the leases or agreements hereinbefore referred to, by the respective lessees, or their heirs, personal representatives or assigns, then said parties of. the first part shall immediately take possession of said premises and shall immediately execute a lease thereof to the parties of the second part for the unexpired portion of the term of the lease, or leases, so in default, said lease to be upon the same terms and conditions as those contained in the lease or leases so in default, and to deliver the possession of said premises to said parties of the second part under said lease. And said parties of the second part agree to immediately execute such lease or leases for said unexpired term, as lessees, and to perform all the terms and conditions thereof on their part to be performed as such lessees.”

Jacob Beller having died on June 12, 1909, William and George Moebs, the vendees, assigned to the State Street Land Company. The bill alleges that an agreement was made on April 13, 1910, between all of the defendants, except Knauss and Hunrath, being then the wife and children of Beller, and the complainant, as guardian of Alvin J. Beller, a minor grandchild of Beller, whereby the complainant was constituted and appointed guardian of said minor for purposes set forth in the agreement, some of which are stated therein; the agreement not being set forth in the bill or record.

The purposes stated are the collection by the complainant of the rents, interests, and income to become due upon certain leases, note, and contracts including those herein-before mentioned, and, after compensating itself, dividing the remainder between the other parties to that agreement. The estate of Beller has been probated, and the residue of the estate assigned by an order of the probate court. The bill alleges, further, that the State Street Land Company now claims to be owner of the premises, and on May 14, 1910, served on complainant as agent the following notice:

“Detroit, Michigan, May 13, 1910.
“ Detroit Trust Company, Agent,
“Detroit, Michigan.
Gentlemen:
“ The State Street Land Company hereby gives you as agent of and for the heirs of Jacob Beller notice and demands: That said heirs of Jacob Beller take possession of and execute a lease of the premises described in a certain land contract entered into on the sixth (6) day of June, A. D. 1907, between Jacob Beller and Anna Paulina Beller, his wife, parties of the first part, and William D. C. Moebs and George Moebs, parties of the second part, according to the terms of said contract.
“Very truly yours,
“State Street Land Company,
“ By W. Brooks.’

It alleges further:

“ That said State Street Land Company avers that, by the terms of the lease to Louis M. Knauss, said Louis M. Knauss could not sell, assign, or transfer the same without written consent of Jacob Beller. That such written consent was never given. That said Louis M. Knauss has executed an assignment of said lease and delivered possession to Otto Hunrath. That said Otto Hunrath is now wrongfully in possession of said premises. That by the terms of the contract of sale, from Jacob Beller and wife to William D. C. Moebs and George Moebs, being Exhibit P hereto attached, said widow and heirs at law of said Jacob Beller are bound to evict said Otto Hunrath and take possession of said premises and execute a lease thereof to said State Street Land Company as assignee of said William D. C. Moebs and George Moebs according to the terms of said contract (Exhibit F), and said State Street Land Company, having served the foregoing notice upon the Detroit Trust Company as agent of said widow and heirs at law of said Jacob Beller, deceased, now threatens to sue said widow and heirs at law for damages for breach of the terms of said contract (Exhibit E), provided said widow and heirs at law do' not at once evict said Otto Hunrath and take possession of said premises, and execute a lease thereof to said State Street Land Company.
“(21) That on or about the 28th day of April, A. D. 1910, said Otto Hunrath delivered to said Detroit Trust Company as agent for said widow and heirs at law of said Jacob Beller, deceased, a check for the sum of six hundred sixty-six and -/¶¶ dollars ($666.67) as rent for said premises from May 1, 1910, to June 1, 1910.
“ (22) That on the 30th day of April, A. D. 1910, said Detroit Trust Company as such agent returned said check to said Otto Hunrath, together with a letter in the words and figures following:
“ ‘April 30, 1910.
“ ‘Trust No. 808.
“ ‘Mr. Otto Hunrath,
“ ‘11 State St.,
“ ‘Detroit, Michigan.
‘Dear Sir:
“ ‘We have your letter of April 28th, 1910, enclosing check to our order as agent for the sum of §666.67, intended as rental of the premises occupied by you from May 1st, 1910, to June 1st, 1910. We also have a proposed surety bond signed by Julius Stroh to insure the performance of the terms of a certain lease executed on November 10, 1900, between Jacob Beller and Louis M. Knauss, and which lease you now claim to own. The authority received by us from all the members of the Beller family, of which you have had notice, authorizing us to collect rent, is not broad enough to permit us to accept this rent in such a manner as to recognize any rights you may have under the lease above referred to. Under the terms of the agency agreement referred to we would not have power to bind the members of the family.
“ ‘ We, therefore, return herewith the surety bond and the check and must decline to accept the same until we have been so instructed by the various parties in interest. It will be impossible to get instructions in less than three weeks by reason of the fact that Mrs. Haldi resides in British Columbia. We will, however, immediately correspond with all the parties in interest and obtain instructions from them at as early a date as possible as to what they wish to have done in the premises.
“ ‘As guardian of Alvin J. Beller, a minor, we shall also have to present the matte,r to the probate court for instructions.
‘ ‘ ■ The fact that you are allowed to remain in possession while we are obtaining instructions from all of the members of the Beller family is not to be considered in any way as a consent to your holding over, or a waiver of any of their rights.
“ ‘Yours respectfully,
“ ‘ Detroit Trust Company,
“ ‘ J. A. B., Asst. Secretary.’
“ (23) That thereafter said Otto Hunrath again delivered to said Detroit Trust Company said check for said May rent.
(24) That thereafter said Detroit Trust Company as such agent communicated with said widow and heirs at law of said Jacob Beller, deceased, but was unable to obtain authority from the widow and heirs at law of said Jacob Beller, deceased, to accept said rent from said Otto Hunrath in such a manner as to recognize any rights which he might have under the leases above referred to.
“(25) That on or about the 31st day of May, A. D. 1910, said Otto Hunrath delivered to said Detroit Trust Company as agent for said widow and heirs at law of said Jacob Beller, deceased, a check for the sum of six hundred sixty-six and dollars ($666.67) as rent for said premises from June 1,1910, to July 1,1910, and this complainant is informed and believes, and therefore charges the fact to be, that said Otto Hunrath will continue from month to month to tender said rent for said premises to said Detroit Trust Company as such agent.
“(26) That said Otto Hunrath avers that he is the owner of the lease (Exhibit D) by assignment thereof from said Louis M. Knauss, and that by virtue thereof he is entitled to the possession of said premises until May 1, 1920.
“ (27) That this complainant is unable to determine whether said State Street Land Company or said Otto Hunrath, or either of them, is correct in its or his claims, and complainant fears that by recognizing the claims of one, or by authorizing said Detroit Trust Company as such agent to recognize the claims of one, it will lay itself or its minor ward, Alvin J. Beller, legally liable to damages to the other.
‘ ‘ (28) That this complainant represents to this court that on behalf of Alvin J. Beller, its minor ward, it is and always has been ready and willing to accept the proffered rent from said Otto Hunrath or to authorize said Detroit Trust Company as such agent on behalf of said minor heir to accept said rent from said Otto Hunrath, and to recognize his tenancy of said premises and his right of possession thereof under said leases and the assignment thereof or on behalf of said Alvin J. Beller, a minor, to take or authorize the necessary proceedings to be taken for the regaining of possession of said premises from said Otto Hunrath, and to execute on behalf of said minor a lease of said premises to said State Street Land Company as provided for in the above-mentioned land contract between said Jacob Beller and wife and said William D. O. and George Moebs, but fears that without the order of this court, after a just and fair interpleading of the various parties in interest so that their rights in connection therewith may be determined, that either action would lay this complainant or its minor ward liable for damages, but this complainant stands ready and willing to do and perform such things in regard thereto as shall by this court be deemed lawful and proper upon the determination of the various claims and interests of the parties made defendants hereto.
“ (29) Complainant further represents that it does not in any respect collude with either of the said named defendants touching the matters in controversy in this cause, nor is it in any manner indemnified by the defendants or either of them, nor has it exhibited this its bill of inter-pleader at the request of the defendants or either of them, but merely at its own free will and to avoid being molested, vexed, and harassed touching the matters contained herein and to avoid being held liable for damages, either personally or as guardian of said minor liable to damages, and that the order of this court may be obtained so that complainant may properly and safely perform its trust as guardian of said minor.
“ (30) That the amount involved in said controversy is more than $100 and that complainant has no full, complete, and adequate remedy at law, and therefore prays for the following relief in equity.”

The bill prays:

“(a) That the above-named defendants appear and answer this bill of complaint, but not under oath; their several answers under oath being hereby expressly waived.
“(b) That the defendants may severally set forth their various claims in connection with the matters set forth in the foregoing bill of complaint, and how in particular they make out their said claims.
“(c) That the defendants may interplead and settle and adjust their said demands between themselves, complainant being willing and desirous and agreeing to abide by the determination of this court in respect thereto and to recognize the claims of whichever defendant this court shall deem are right and lawful.
“(d) That the rights of all parties hereto be adjudicated by this court and that this complainant be instructed by this court as to his duties in connection with the matters involved in this controversy, so that complainant may properly and safely perform its trust as guardian of said Alvin J. Beller, a minor.
“(e) That if the court should find that Otto Hunrath was not rightfully in possession of said premises known as Nos. 11 and 13, State Street, Detroit, Mich.; then that said Otto Hunrath may be decreed to vacate, give up, and surrender the possession of said premises to the complainant as guardian of said Alvin J. Beller, and to the other heirs of said Jacob Beller, deceased, and that a decree may be entered canceling the lease of said premises from said Jacob Beller to Louis M. Knauss, the term of which said lease extends from May 1, 1910, to April 30, 1920, or the assignment thereof from Louis M. Knauss to said Otto Hunrath, or both such lease and assignment, and that said Otto Hunrath and said Louis M. Knauss be required to pay to complainant guardian of said Alvin J. Beller and the other heirs of Jacob Beller, deceased, rent for the use and occupation of said premises from and after May 1, 1910, until said Otto Hunrath shall vacate said premises as aforesaid.
“ (/) That in case the court should find that there had been no breach of the covenants of the lease from said Jacob Beller to said Louis M. Knauss, the term of which lease extends from May 1, 1910, to April 30, 1920, and that said Otto Hunrath was rightfully in possession of said premises under said lease, then that the said defendant, the State Street Land Company, may be forever restrained by an order and injunction of this court from in any way interfering with the payment by said Otto Hunrath and the acceptance by said heirs of Jacob Beller, deceased, of any rent due from said Otto Hunrath to said heirs of Jacob Beller, deceased, and from making any claim against the said heirs of said Jacob Beller, deceased, to the possession of or for a lease of said premises during the occupancy thereof of the said Otto Hunrath for the term of said lease from May 1, 1910, to April 30, 1920.
(g) That complainant may have such other or further relief in the premises as shall be agreeable to equity and good conscience.”

Three defendants being heirs of Jacob Beller have answered, and asked the same relief that is asked in the bill. Two heirs and Hunrath and the State Street Land Company have demurred to the bill, upon the following grounds:

“(1) That the complainant has a full, complete, and adequate remedy at law.
“(2) That the complainant has not shown any right to compel interpleading of the defendants.
“ (3) That complainant has such an interest in the subject-matter of the suit that it has no right to compel the defendants to interplead.
“(4) That there is no such privity between the parties as would entitle the complainant to compel the defendants to interplead.
“(5) That the subject-matter of said suit results from the voluntary actions of the complainant and Jacob Beller, through whom it holds, and therefore complainant is not entitled to compel defendants to interplead.
“(6) That complainant and the parties by, through, and under whom it claims are under contractual relations with the defendant Hunrath which are independent of any contract complainant has with any of the other defendants.
“(7) That under such independent contractual relations with Hunrath the duty of the complainant and the other Beller heirs might be determined without a decision of the controversy between the defendant Hunrath and the other defendants claiming a duty from the complainant.

The demurrer was sustained in the circuit court, and complainant has appealed.

Under the allegations of this bill we must conclude that Beller reserved the right to the rent to be collected from Hunrath so long as his (Hunrath’s) rights should not be forfeited, and from the State Street Land Company, under an exactly similar lease to be given to them in case of such forfeiture, after the execution of its contract. Hunrath claims that his lease has not been forfeited, and, so far as we can learn from the bill, no steps have been taken to declare it forfeited, whether Hunrath’s covenants have been broken or not. On the other hand, we are informed by the bill that the State Street Land Company claims that it is entitled to the lease upon the ground that Knauss executed to Hunrath an assignment of his leases without the assent of Beller, and put him in possession of the premises, whereby Hunrath is unlawfully in possession, and- it threatens to sue the widow and heirs of Beller for damages for breach of Seller’s contract to evict Hunrath, and execute a lease to the State Street Land Company. Now Hunrath is making no complaint. On the contrary, he has regularly tendered performance by paying rent and holding his possession. In fact, it does not appear that complainant or any of the defendants have demanded possession or ever claimed a forfeiture. Complainant has refused to accept rent, but only to prevent its being said that it has recognized Hunrath’s title. We cannot fail to see from the prayer that the main object of the bill is to settle a triangular dispute and obtain a decree giving relief between all the parties, so that the complainant and those defendants in sympathy with him may be protected against being defeated by both Hunrath and the State Street Land Company. We understand that Hunrath will claim, should proceedings to convict him be brought, that, although Beller did not consent in writing to the lease made by Knauss, he waived his right to a forfeiture by recognizing him as- a subtenant entitled to the premises, and repeatedly received rent from Hunrath, and that he has always kept the covenants of the lease to Knauss. On the other hand, we understand the position of the State Street Land Company to be that its contract was an agreement that Hunrath’s sublease, not being assented to in writing by Beller, was subject to forfeiture at any time, that Beller agreed to forfeit it and evict Hunrath, and that it (the land company) had a right of action against the Beller heirs for damages for the failure to do these things.

Three grounds are given as a justification for filing this bill:

(1) That it is proper as a bill of interpleader.
(2) It will avoid a multiplicity of suits.
(3) The guardian needs and asks instruction as to its management of the ward’s estate.

Interpleader. Were Beller living, a bill of interpleader would not lie in this case. We understood counsel to concede this, but whether he intended to do so or not the case of Sprague v. Soule, 35 Mich. 35, settles that question. Each of these two defendants — i. e., Hunrath and the land company — is claiming express contract rights from Beller, who would be in no proper sense a stakeholder. The definition of “a bill of interpleader,” as given by Adams’ Equity, p. 202, is as follows:

“ A bill of interpleader is a bill filed for the protection of a person from whom several persons claim legally or equitably the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter. The equity is that the conflicting claimants should litigate the matter amongst themselves, without involving the stakeholder in their dispute.”

The author adds:

“It is apparent from the definition already given that, in order to originate the equity of interpleader, three things are essential, viz.: (1) That the same thing, debt, or duty be claimed by both the parties against whom relief is asked; (2) that the party seeking relief have incurred no independent liability to either claimant; and (3) that he claim no interest in the matter. *. * * The party seeking relief must have incurred no independent liability to either claimant.”

See Stephenson v. Burdette, 10 L. R. A. (N. S.) 758, note III, for a discussion of this subject. Thus in Stanley v. Roberts, 8 C. C. A. 305, s. c. 59 Fed. 836, the court said:

"The reason for, and the necessity of a strict enforcement of, the second rule is obvious. Parties claiming title to the thing in dispute ought not to be, and cannot properly be, compelled to litigate any rights but those in controversy between themselves. If the holder of the subject-matter in dispute has placed himself under an independent personal obligation to one or more of the claimants, by which his liability to deliver the thing or pay the debt in question may be determined without a decision of the controversy between the claimants, it is plain that no litigation between the latter can ascertain the rights of the holder or debtor upon his personal obligation. . Nor does the fact that the latter claims that his personal agreement was obtained by the fraud or misrepresentation of the obligees relieve the embarrassment, or except the case from this rule. The question presented by such a claim arises entirely between the parties to the personal obligation of the holder or debtor. It is nothing to the other claimants, nor were they interested in, or proper parties to, the litigation over it. It would be a monstrous proposition that one who makes agreements with two persons to sell and deliver the same article to each of them could bring the article into court and compel the two purchasers to litigate the question which had the better right to the thing, before either could recover it of him, or that a tenant of the owner could take a second lease of the same premises from one claiming title to them, and then compel the real owner and the pretended owner to litigate, not only the title to the premises, but the validity of the leases the tenant himself had taken, before either lessor could recover his rent. If such a proposition could be sustained, any tenant might treat his landlord to as many lawsuits as he could obtain leases of his premises.”

The foregoing quotations appear to us to sufficiently show that a bill of interpleader would not lie at the suit of Beller. The fact that the rights of Beller are now divided among several heirs who do not agree as to the policy to be pursued by the Beller interests against Hunrath and the land company should make no difference, and Hunrath has a right to make his defense against eviction without the embarrassment of a complication growing out of a possible breach of contract on the part of the Bellers, should he prevail, and, on the other hand, the State Street Land Company’s claim of a breach of contract might suffer if in any way dependent upon a forfeiture of Hunrath’s rights under the lease. Neither party should be subjected to the annoyance, expense, and danger of litigating claims of others against the Bellers growing out of different contracts.

Multiplicity of Suits. We have said that the avoidance of a multiplicity of suits is one ground given for the filing of this bill, which is perhaps too broad a statement. It may be more accurate to say that counsel argue it'as a reason for filing the bill. That the avoidance of many suits may in certain kinds of cases justify the filing of a “bill of peace” is undoubted. We fail in an effort to find the subject of multiplicity of suits treated under any other head in Adams’ Equity, and “multiplicity of suits” is not mentioned as a title in the index; but on page 199 the subject is mentioned, as follows:

“A bill of peace is a bill filed for securing an established legal title against the vexatious recurrence of litigation, whether by a numerous class insisting on the same right or by an individual reiterating an unsuccessful claim. The equity is that, if the right be established at law, it is entitled to adequate protection.
“ Bills of peace of the first class are those where the same right is claimed by or against a numerous body, as, for example, where a person claims tithes against his parishioners, or the parishioners allege a modus against the parson, where the lord of a manor claims a right against the tenants, or the tenants claim a common right against the lord, or where the owner of an ancient mill claims service to his mill from all the tenants of a particular district. In all these cases the only form of procedure at common law would be that of a separate action by or against each parishioner or tenant, which would only be binding as between the immediate parties, and would leave the general right still open to litigation. In order to remedy this evil, a suit may be sustained in the court of chancery, in which all parties may be joined, either individually, or as represented by an adequate number. If any question of right be really in dispute, it will be referred to the decision of a court of law, and, when the general right has been fairly ascertained, an injunction will be granted against further litigation. If particular individuals have special grounds of claim, those claims will be left untouched.
“In order to originate this jurisdiction, it is essential that there be a single claim of right in all arising out of some privity or relationship with the plaintiff.
“A bill of peace therefore will not lie against independent trespassers, having no common claim, and no appearance of a common claim, to distinguish them from the rest of the community, as, for example, against several booksellers who have infringed a copyright, or against several persons who, at different times, have obstructed a ferry. For, if a bill of peace could be sustained in such a case, the injunction would be against all the people of the kingdom.”

Also:

_ “Bills of peace of the second class are those where a right, claimed by an individual, is indefinitely litigated by him without success. The necessity for bills of this class originates in the nature of the action of ejectment, which is based on a fictitious dispute between fictitious parties, so that the rights of the real litigants are only indirectly tried. The consequence of this is that the result of the action is not conclusive, but that fresh actions may be repeatedly brought, and the successful party harassed by indefinite litigation. In order to remedy this oppression a jurisdiction has been assumed by the court of chancery, and a bill will lie, after repeated trials at law and satisfactory verdicts, to have an injunction against further litigation. The right to this jurisdiction was formerly much questioned. Lord Cowper, in a celebrated case, where the title to land had been five times tried in ejectment, and five uniform verdicts given, refused to exercise it;but his decision was overruled by the House of Lords.”

Also:

“No bill of peace will lie where the rights and responsibilities of the defendants neither arise from nor depend upon, nor are in any way connected with, each other. Randolph v. Kinney, 3 Rand. (Va.) 394. See Miller v. Grandy, 13 Mich. 540;. Wilkerson v. Walters, 1 Idaho, 564. An allegation that the defendants have fraudulently confederated to harass the plaintiff with suits will not uphold an injunction when the defendants claim adversely to each other. McHenry v. Hazard, 45 Barb. (N. Y.) 657. An injunction to restrain a multiplicity of suits will not lie when the court of law is competent to give relief by consolidating them. High on Injunctions, § 62; Washburn's Appeal, 105 Pa. 480.”

This bill shows that the Beller heirs are liable to litigation against two different persons arising upon two different contracts not necessarily in any way dependent upon each other. They are apprehensive that they may suffer successive defeats in these, and this bill is apparently expected to enable the complainant to safely recognize Hunrath’s lease, or, on the other hand, obtain a decree for his eviction, and thereby enable it to carry out its contract with the State Street Land Company and avoid a suit for damage. We have already seen that the latter’s right to damages for the breach of its contract does not necessarily depend upon complainant’s right to enforce a forfeiture, and if a bill of peace would be otherwise appropriate— which we do not intimate — the same reason exists for denying its use here, that we have given with regard to a bill of interpleader. These parties have a right to try their claims separately, and have them decided on their own merits without reference to the others’ rights under the separate and respective contracts.

Instruction to the Guardian. It is conceded by counsel that equity will entertain an application from a trustee for the construction of writings in certain cases. It is a common practice to file bills for the construction of wills, but we are not asked to construe any writing. What complainant evidently seeks is to get a decision between Hunrath and the State Street Land Company, and between the Beller heirs and them, which shall bind all, and would require the determination of fact as well as law. We have not been referred to any case which justifies the practice that we are asked to sustain in this case, nor have we been able to find one which supports complainant’s claim.

The order is affirmed, and cause remanded for further proceedings.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    NATIONAL COAL CO. v. CINCINNATI GAS COKE, COAL & MINING CO.
    1. Process — Appearance as Waiver — Service on Nonresidents — Foreign Corporations.
    By a voluntary appearance and by consenting to a stipulation extending the time to plead in an action of assumpsit, on a claim that accrued outside of the State, a foreign corporation whose president was served with process while temporarily within the State waives its right to question the validity of such service, and submits itself to the jurisdiction of the court.
    2. Same — Appearance—Extension oe Time — Plea.
    The object of such stipulation extending the time to plead is consistent only with a general appearance.
    Certiorari to St. Clair; Tappan, J.
    Submitted April 11, 1911.
    (Docket No. 33.)
    Decided June 2, 1911.
    Assumpsit by the National Coal Company against the Cincinnati Gas Coke, Coal & Mining Company. An order overruling a motion to quash the service of process is reviewed by defendant on certiorari.
    Affirmed.

      Walsh & Walsh, for appellant.

      May & Dingeman, for appellee.
   Hooker, J.

The parties to the action are foreign corporations; the plaintiff being a Maryland, and the defendant an Ohio, corporation. This action is assumpsit brought on a contract made by correspondence between their home offices. An ordinary summons was issued from the office of the clerk of St. Clair county on the 20th day of June, 1910, and was served personally on defendant’s president in said county on the same day. On that day an affidavit in garnishment was filed in said office. Service of the writ of garnishment was duly made, and on July 13th a disclosure was filed. A declaration was filed in the main case on July 2, 1910. On July 21, 1910, the defendant, through its counsel, filed in said original cause a notice that Walsh & Walsh had been retained as attorneys for the defendant in said cause, and served a copy thereof on plaintiff’s attorneys. On July 30, 1910, said attorneys and plaintiff’s attorneys joined in a written stipulation that the defendant’s time to file a plea and notice should be extended to September 10th.

On September 7, 1910, counsel for defendant filed in said cause a motion to quash the proceedings on the ground that the court did not obtain jurisdiction over the defendant. This motion was denied, and is here on certiorari, allowed on application of the defendant.

That a nonresident corporation may not ordinarily bring suit in this State against another nonresident corporation upon a contract which is neither made nor to be performed in this State, appears to be conceded by counsel, who cite Grand Trunk R. Co. v. Wayne Circuit Judge, 106 Mich. 248 (64 N. W. 17). That exact question was not raised in that case. It was there held that no provision was made by statute for the service of process upon a foreign corporation in an action brought by a resident of this State upon a cause of action which accrued in Canada.

The only question argued by counsel for the appellant appears to have been that, as no statute of this State provided for service of a summons upon a nonresident corporation, the service upon defendant’s president conferred no jurisdiction of the defendant, and it is to this point only that the case cited is in point.

Assumpsit is a transitory action, and, the court having jurisdiction over that class of actions, it had jurisdiction of the subject-matter, and we understand that this is not disputed. See 11 Cyc. p. 669; Thompson v. Benefit Association, 52 Mich. 522 (18 N. W. 247); Daniels v. Railway Co., 163 Mich. 468, 476 (128 N. W. 797), and cases cited. Should it be conceded that this was not a good service, or even that there had been no service, and could be no valid service by which a defendant nonresident corporation could be forced to submit to the jurisdiction for the reason given, it does not-follow that jurisdiction cannot be obtained by its consent.

By a voluntary appearance and by consent to a stipulation extending the time within which the defendant should plead, defendant submitted itself to the jurisdiction in this instance, as the rule applies to nonresidents as well as residents. 3 Cyc. p. 516, notes 4, 5; Thompson v. Benefit Association, supra. We held in that case:

“A nonresident waives his exemption from the process of even a local court of general jurisdiction if he does not object seasonably. The circuit courts of Michigan are courts of general jurisdiction, and can take cognizance of suits on contracts, irrespective of the locality of their origin, provided the parties by service of process or otherwise are before them.”

See, also, Cofrode v. Wayne Circuit Judge, 79 Mich. 332-338 (44 N. W. 623, 7 L. R. A. 511); Ferguson v. Oliver, 99 Mich. 161 (58 N. W. 43, 41 Am. St. Rep. 593).

The notice of retainer filed and served was general in its nature, no limitation appearing in it. 3 Cyc. p. 504 (4), pp. 511-513. The object of the extension of time is consistent only with a general appearance. 3 Cyc. p. 507.

We think it unnecessary to discuss the claim of jurisdiction based on 3 Comp. Laws, § 10629.

The order of the circuit court is affirmed, and the cause remanded for further proceedings.

Ostrander, C. J., and Bird, Blair, and Stone, JJ.s concurred.


author: Stone, J.

text:
    NATIONAL COAL CO. v. CINCINNATI GAS COKE, COAL & MINING CO.
    1. Sales — Contracts—Damages for Breach — Performance — Coal.
    The term “West Virginia Smokeless coal,” used in a contract for the sale of a quantity of coal, was, under the undisputed evidence, a trade term used to describe coal mined in a certain district, and defendant could not recoup for plaintiff’s failure to deliver a literally smokeless coal if the coal delivered corresponded to the description.
    2. Same.
    It was a proper question for the jury, under conflicting evidence, whether or not the coal delivered conformed to the contract on which plaintiff brought suit.
    8. Same — Profits—Quality—Recoupment.
    Upon defendant’s notice of recoupment, it was entitled to recover the difference between the contract price and the price at which coal of a similar quality could be, purchased in the open market, and without proper pleaditffs and proof that
    , defendant could not purchase the same coal elsewhere and had no opportunity to furnish a substitute, it could not recover the profits lost.
    4. Trial — Cross-Examination—Statutes.
    Plaintiff was authorized, under Act No. 807, Pub. Acts 1909, to subpoena and call for cross-examination an agent of defendant who, at the time of the sale, was in defendant’s employ.

      Error to Kent; Perkins, J.
    Submitted April 13, 1911.
    (Docket No. 77.)
    Decided July 5, 1911.
    Rehearing denied March 30, 1912.
    Assumpsit by the National Coal Company against the Cincinnati Gas Coke, Coal & Mining Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      George O. Brown, for appellant.

      May & Dingeman, for appellee.
   Stone, J.

The plaintiff is a miner, and wholesale shipper and dealer in coal, having its offices in Baltimore, Md. The defendant is also a wholesale coal dealer, having its offices at Cincinnati, Ohio. This action is brought to recover $380.21, and interest, the balance claimed by plaintiff to be due it from defendant for coal sold to defendant under a written contract, consisting of correspondence, for coal shipped by plaintiff directly to defendant’s various customers, or on orders therefor being received from the defendant. The correspondence leading up to the contract was as follows: On April 27, 1907, the defendant wrote the plaintiff the following letter:

“Cincinnati, O., April 27, 1907.
“National Coal Company,
“Baltimore, Md.
Gentlemen:
“Will you kindly advise, as soon as possible, your very best inside figures on contracts, until April 1, 1908, on your steam grades; also the tonnage of each grade you wish to contract for, until the above mentioned date ?
“Hoping to hear from you by return mail, we beg to remain,
" Very truly yours,
“ The Cincinnati Gas Coke,
Coal and Mining Co.,
[Signed] “ P. A. Kain, A. M. E. D.”

To which letter the plaintiff replied as follows:

“Baltimobe, Md., May 2, 1907.
“The Cincinnati Gas Coke, Coal & Mining Co.,
“Traction Bldg.,
“Cincinnati, O.,
Gentlemen:
“We can quote you on our mine run Fairmount coal 90c., f one dollar, and West Virginia Smokeless mine run 85c. per tons of 2,000 lbs. f. o. b. cars at mines. Can offer you for immediate acceptance 25,000 tons of each of the above grades, on contract until April 1, 1908, at the figures quoted for shipment in equal monthly proportions. Will be pleased to hear further from you.
“ Respectfully yours,
“National Coal Company,
[Signed] “A. J. Ryan.”

To which letter the defendant replied as follows.

“Cincinnati, O., May 14, 1907.
“National Coal Company,
“Baltimore, Md.
“Gentlemen:
“Referring to your favor of the 2nd inst., wish to advise that we hereby accept your proposition on 25,000 tons each of Fairmount run of mine coal, at $0.90 per net ton, and f at $1.00 per net ton, and West Virginia Smokeless run of mine, at $0.85 per.net ton, all f. o. b. cars mines, for shipments made between now and April 1, 1908, and will immediately commence to send in orders in equal monthly proportions.
“ Our object in writing this letter is to have you reserve the above mentioned tonnage for us.
“ Very truly yours,
“ The Cincinnati Gas Coke, Coal & Mining Co.
[Signed] “P. A. Kain, A. M. E. D.”

The plaintiff replied to this letter as follows:

“ Baltimobe, Md., May 16, 1907.
“The Cincinnati Gas Coke, Coal & Mining Co.,
“ Traction Bldg.,
“Cincinnati, O.
* Gentlemen:
“Tour letter of May 14 to hand. We will accept proposition, subject to car supply, strikes and other accidents beyond our control. Tou to take the coal in equal monthly proportions, in any kind of equipment, steel hoppers, wooden hoppers, and steel and wooden gondolas, whichever are available.
“Very respectfully yours,
“National Coal Company,
[Signed] “ John F. O’Meara.”

Prior to entering into this contract, the plaintiff had shipped the defendant a car load of coal represented to be West Virginia Smokeless coal. About 4,000 tons of coal were shipped under the contract, amounting to about $3,450, all of which had been settled for except the claimed balance here sued for.

The declaration was on the common counts in assumpsit. The plea was the general issue, with notice of recoupment by reason of inferior quality, poor preparation, and contracts with third parties canceled, and damages sustained thereon by defendant by reason of the coal not being smokeless coal, as was contracted for. On the trial defendant’s recoupment was limited to the contract made by it with Fleischmann & Co., of Cincinnati, Ohio, to deliver certain of the coal contracted to be furnished by the plaintiff.

The principal question arising upon the trial was whether the plaintiff had complied with its contract by shipping West Virginia Smokeless coal on orders received therefor from defendant, it being claimed on behalf of the plaintiff on the trial that the term “West Virginia Smokeless” coal was a trade or commercial name, meaning any coal mined on the Grafton & Belington Branch of the Baltimore & Ohio Railroad. On the part of the plaintiff there was positive and direct evidence that “ West Virginia Smokeless” is the name attributed to all that coal on the Grafton & Belington Branch of said railroad; that it is known commercially as “West Virginia Smokeless ” coal; and that that was the kind of coal shipped by the plaintiff upon the defendant’s orders from the district named; and plaintiff’s evidence tended to show that it had performed its contract.

After the plaintiff’s case was closed, and while defendant was offering evidence, the following occurred between court and counsel:

The Court: Pardon me. It seems to me, Mr. Brown and Mr. May, that this case must stand or fall upon the proposition as to whether or not the coal furnished was West Virginia Smokeless coal, and as to whether or not West Virginia Smokeless coal, as shown by the trade, is gotten from these mines on the Baltimore & Ohio Branch between Grafton and Belington.
“Mr. May: I do not think there is anything else to the case, if your honor please, I never have thought so.
Mr. Brown: No question about that being the basis bf the case at all.”

We have read this record very carefully, and it appears very clearly to have been the claim of the plaintiff, supported by testimony, that “West Virginia Smokeless” coal is the name attached and given to the coal mined and shipped on the Grafton & Belington Branch of the Baltimore & Ohio Railroad; that the same is known commercially as “West Virginia Smokeless ” coal, and that all of the coal in question furnished by the plaintiff was taken from mines located on said branch. There was some evidence on the part of the defendant tending to question the claim of the plaintiff, and tending to show a breach of the contract by the plaintiff.

The trial judge refused to direct a verdict in the cause, but submitted the case to the jury under what appears to have been a very full and fair charge. The claims of the plaintiff were stated in the charge, in substance to be, that in each instance it claimed that the shipments made by it of the coal ordered by the defendant were in accordance with the terms and conditions of the contract as to the kind of coal shipped; that West Virginia Smokeless coal is a name known to the trade, and includes coal mined from the several mines on the Grafton & Belington Branch of the Baltimore & Ohio Railroad, in West Virginia. That it was claimed by plaintiff that the defendant knew, at the time the contract was entered into, where the coal covered by this contract was to come from, and from what particular mine; and, that later, during the transaction between them, the plaintiff claimed that the defendant learned through correspondence and otherwise, where the coal delivered under this contract came from, and was to come from in the future; and, after such knowledge, continued to place orders for coal to be delivered under the contract; that the defendant, from time to time, paid various amounts falling due under this contract for coal delivered, without complaint, until finally, after making a payment of $1,000 in January, 1908, it refused to pay the balance sought to be recovered in this action. That plaintiff further claimed that the contract was complied with on its part as to the kind and quality of coal to be delivered thereunder, and which was actually delivered thereunder.

The jury was also informed of the claim of the defendant in that it denied that the coal delivered under the contract by the plaintiff company was West Virginia Smokeless coal, as that coal is known to the trade; but insisted in its defense that other coal was delivered of a cheaper and inferior grade than that called for by the contract, and that, by reason of the failure on the part of the plaintiff to deliver the coal contracted for, it claimed to have suffered certain damages, which it sought to recoup against the plaintiff in the action.

After giving certain instructions as to the rules of evidence to be observed by the jury, the court used the following language, which is covered by defendant’s eighth assignment of error:

“ The question arises as to what constitutes, under the evidence in this case, West Virginia Smokeless coal. It is apparent that the term is but a trade-name, applied to a certain class of coal secured from a certain locality, and that the term ‘smokeless,’ does not technically mean that the coal will not emit smoke when burned; all coal, I apprehend, produces more or less smoke. As applied to this case, I instruct you that under the undisputed evidence in the case, West Virginia Smokeless coal, as the term was used in the contract between these parties, is such coal as was mined on the Grafton & Belington Branch of the Baltimore & Ohio Railroad, in West Virginia, and if you find that the coal furnished and delivered by the plaintiff to defendant, or on its order under this contract, was coal mined in the district named, your verdict will be for the plaintiff, for the amount claimed, with interest.”

In the same connection, the court charged the jury, that if they found that the plaintiff in its performance of this contract, delivered coal from other mines than those upon the Grafton & Belington Branch of the Baltimore & Ohio Railroad, when the order called for West Virginia Smokeless coal, then, and in that case, if they so found, such delivery would not be in accordance with provisions of the contract; that if they failed to find that the coal delivered by the plaintiff was West Virginia Smokeless coal, as the contract provides, then they should consider the question of recoupment, and the defendant’s damages. And upon the subject of recoupment the court, in charging the jury, used the following language, which is made the basis of defendant’s ninth assignment of error:

“Where the coal was purchased as West Virginia Smokeless coal for resale, as is shown in this case, and it is not disputed, and where it is resold with the like representation as to character and kind, if you should find that it was resold by the defendant company to Fleischmann & Co., with the like representation as to character and kind, then and in that case, the defendant may recover the direct and natural loss it may have sustained, which loss would be the difference between the value of the coal it was entitled to under its contract, and the value of the coal the evidence shows the defendant actually received. In other words, the measure of defendant’s damages will be the difference between the value of the coal delivered, and the value of the coal that should have been delivered, under the contract, at the place of delivery.”

The seventh assignment of error is that the court erred in refusing defendant’s second request to charge, which, was as follows:

The damages defendant would be entitled to recover on the cancellation of such contracts, would be the difference between the cost of the coal to defendant, and the price it was receiving under such contracts with third parties.”

The jury returned a verdict for the plaintiff for the full amount of its claim, with interest; and the defendant had brought the case into this court upon a bill of exceptions.

Recurring to the eighth assignment of error, defendant claims that the charge of the court, “that under the undisputed evidence in the case West Virginia Smokeless coal, as the term was used in the contract between these parties, is such coal as was mined on the Grafton & Belington Branch of the Baltimore & Ohio Railroad,” was erroneous. It is very evident that counsel seeks to have the court construe the term “smokeless” literally, but we think, from a careful reading of the record, that it may be said to be undisputed' that the term “West Virginia Smokeless ” coal, had a commercial and trade significance and application, well known to the trade, and specifically known, as this record shows, to the agent of the defendant at the time the contract was entered into.

While it is true that some ether grades of coal mined in West Virginia are sometimes designated as smokeless coal, the record fails to show that there is any coal characterized in the trade as “West Virginia Smokeless” coal, except that which was handled and sold by the plaintiff from the district named. All of the coal shipped bore a uniform freight rate, which indicated that it was mined at or near the same locality, and evidently upon the same branch of railroad, from which West Virginia Smokeless coal derives its name, as claimed by plaintiff. We think that the question was properly and fairly submitted by the trial judge to the jury; that the court did not err when it stated what the undisputed evidence in the case showed, and that the question of fact was properly left to the jury.

Referring to the seventh assignment of error, based upon the refusal to give defendant’s second request, it should be borne in mind that there was no claim on the part of the defendant that, at the time of entering into the contract with the plaintiff, the latter had any knowledge of the subcontract, or any of the terms thereof, with Fleischmann & Co.

In any event, had it proven plaintiff responsible for the breach, the measure of damages would have been the difference between the price at which plaintiff agreed to sell coal of this particular character, and the price at which it could have been secured in the open market at the time and place of delivery. There is no evidence that the defendant was not able to get coal of the same quality elsewhere, and that it did not have an opportunity to furnish a substitute. We recognize the rule contended for by the defendant, but do not think that either by its pleadings or proof it is in a position to invoke the rule. The rule is that the measure of damages for failure to deliver goods sold, where they can be obtained in the open market, is the additional cost of the goods; where they cannot be obtained in the market, the purchaser is entitled to recover the profits lost through the fault of the seller. F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich. 44 (92 N. W. 788, 102 Am. St. Rep. 378); Den Bleyker v. Gaston, 97 Mich. 354 (56 N. W. 763); Thomas Iron Co. v. Jackson Iron Co., 131 Mich. 130 (91 N. W. 137). We think the charge of the court upon the subject of recoupment was as favorable to the defendant as it could have asked under this record. The jury found no occasion to apply any rule of damages on the subject of recoupment, as they found no breach of contract by plaintiff.

We have examined the other assignments of error, both as to the examination of the witness Kain and the refusal of the court to grant a new trial, but we discover no error in the manner in which the questions involved were disposed of by the trial court. The right of the plaintiff to call the witness Kain for cross-examination under Act No. 307, Pub. Acts 1909, cannot be questioned, it appearing that said witness was “ a person who at the time of the happening of the transaction .out of which such suit or proceeding grew was an employé or agent of the opposite party.”

The judgment below will be affirmed.

Ostrander, C. J., and Bird, Hooker, and Blair, JJ., concurred.


author: Brooke, J.

text:
    ANDERSON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Rises Assumed — Railroads—Roadbed and Tracks.
    There was no evidence tending to show that a derailment of a freight car, which collided with a pile of lumber near defendant’s switch, killing plaintiff’s decedent, was the proximate result of the switch being built on made ground on low land near the river, in an action for negligent death under the survival act, wherein it merely appeared that the rails at the joint near the place of derailment settled about two inches when a car passed over them; but in any event decedent, who had known the condition of such ground for several years, assumed any risk arising from that mode of construction.
    2. Same.
    Nor was there any evidence to warrant the trial court in submitting to the jury the questions whether the track was properly ballasted, or the joints.thereof were upon a reasonably firm foundation.
    3. Same.
    Any lack of evidence that defendant claimed appeared in plaintiff’s case upon the issue of the existence, at the time of decedent’s injury, of defects discovered by plaintiff’s witnesses a week later, was supplied by defendant’s showing that when the track was repaired, after the accident, no change was made in the track, that it was merely restored to its previous condition.

      4 Same — Track—Gauge.
    It was for the jury to say whether or not it was negligent for defendant to construct the track of the switch from one-half to nine-sixteenths of an inch narrower than the standard width upon the curve where decedent was killed.
    5. Same — Railroads—Lumber Piled Beside Rails — Switches.
    Where lumber was piled at the usual and convenient distance from the switch and could not reasonably have been piled at such a distance as to have prevented collision with a derailed car, no negligence could be predicated upon the location of the lumber pile.
    6. Same — Contributory Negligence — Personal Injuries.
    The question of plaintiff’s contributory negligence, in riding on the side of the car at the forward end upon the outside of the curve so that he was invisible to the engineer or fireman, was for the jury.
    7. Same.
    And it was for the jury to say whether the derailment occurred by reason of the car’s running over a piece of scantling that was afterwards found beside the track and bore marks of a car wheel.
    Error to Bay; Collins, J.
    Submitted June 12, 1911.
    (Docket No. 35.)
    Decided September 29, 1911.
    Rehearing denied March 30, 1912.
    Case by Anna M. Anderson, administratrix of the estate of Louis E. Anderson, deceased, against the Michigan Central Railroad Company, for the negligent injury and death of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Humphrey, Grant & Baker, for appellant.

      Hall, Defoe & Henry, for appellee.
   Brooke, J.

Plaintiff’s decedent, a man of 49 or 50 years of age, had been employed by the defendant company as brakeman and switchman for upwards of 20 years, and as switchman in defendant’s yards at Bay City for 18 years. Along the river, in the vicinity of Bay City, the banks are exceedingly low. Where those banks have for many years been occupied by lumber manufacturing plants, it has been the custom to deposit slabs, edgings, and other mill refuse upon the banks of the stream, thus raising the level of the bank, and making ground upon which the product of the sawmills was piled. Over the ground thus filled in, defendant laid sidings into many Bay City mills, for the purpose of delivering logs to the mills and removing the manufactured lumber. therefrom. The ground about the Richardson Lumber Company plant was thus filled in many years ago, and about the yard are several tracks and switches laid upon this so-called “made ground.” The track upon which plaintiff’s decedent lost his life was constructed in November, 1907.

On April 3, 1909, plaintiff’s decedent was a member of a switching crew which had been handling cars over this track for many months. On that day the crew attempted to move a car, partially loaded with lumber, from where it stood upon a curve, to another position in the yard. The switch engine, after making a coupling, came to rest, and, while it was standing still, plaintiff’s decedent walked forward to the front end of the car and climbed up into the stirrup, holding onto the ends of the boards, which were piled unevenly to a height of about 10 feet from the top of the flat car. He took this position on that side of the car, on the outside of the curve, where he could not be seen by either' the engineer or fireman. The conductor and the other switchman remained on the inside of the curve. The engineer started to push the car forward in the usual manner, but had gone but a few feet when the front wheels of the front truck climbed the right-hand rail on the outside of the curve, and, after running from 4 to 7 ■feet, with the flange on top of the rail, it dropped off to the right and ran along on the ties for a few feet, until the front right-hand corner of the car came in contact with a pile of lumber alongside the track. As plaintiff’s decedent was standing in the stirrup on this corner of the car, he was crushed between the lumber on the car and the pile alongside the track, receiving injuries from which he died the same day.

Plaintiff charged the defendant with negligence in the following particulars:

“ (1) In that it omitted to provide, keep, and maintain in such yard a reasonably safe side track for such locomotive and cars to operate upon.
“ (2) In that it omitted to provide, keep, and maintain in such yard a side track having a reasonably safe substructure for such locomotive and cars to operate upon.
“ (8) In that it constructed and maintained said side track with the curve therein having sudden and abrupt departures from a uniform line.
“(4) In that it omitted to construct and maintain said side track with the outer rails of the curve thereof of a reasonably regular and established elevation.
“(5) In that it omitted to place, keep, and maintain ballast upon the surface and under said sidetrack to make the same reasonably firm and solid.
“(6) In that it omitted to construct and maintain the rails of said side track of a reasonably uniform gauge.
“(7) In that it omitted to construct and maintain the joints in the rails of said side track upon a reasonably firm and solid foundation, so that they would not unduly depress when the said locomotive and cars were run over the same.
“(8) Having provided, constructed, kept, and maintained such side track with its substructure unsafe for locomotives and cars to operate upon, with a curve therein having sudden and abrupt departures from a uniform line, with the outer rail wanting in a reasonably regular and established elevation, without ballast or uniform gauge, with the outer rails of an irregular elevation and the joints therein having a foundation wanting in firmness and solidity, in that it omitted to require said lumber company, in piling its said lumber, to place the same at such reasonable distance from the rails of said track that when the cars thereon would mount and leave the same they would collide with such piles.”

The son of plaintiff’s decedent, in describing a portion of the track which the car passed over before it left the rail, testified in part as follows:

“ I noticed the condition of the track and rail at a point about- 400 feet east of the switch track on April 4th. There had not been any change in. the track with reference to the rails and ballast when I went down there to take measurements on the 10th, a week from the accident.
“Q. Is this the time you saw cars being moved in, at one time ?
“A. Yes; it is.
“Q. Did you notice on this day, also, the condition of the rails with reference to any joints, or joint, rather?
“A. I did. There was a joint in this track just before you got to the lumber pile, west from it. It was the inner rail. That would be the south rail. As you go in on the track, it first curves to the right; then it curves to the left. I made measurements to see how far this joint was from the switch where I started. It was 396.4 feet, as I remember it. That joint was a couple of inches lower than the rail opposite or across the track. That joint came between two ties. I measured the gauge or distance between the rails where that joint was, and found it was 4 feet 8tV inches. The track did not keep that gauge as it went east. At a point a foot and one-half east of the joint the gauge was four feet nine inches and three-sixteenths. It was three-quarters of an inch wider at that point than a foot and a half back. I noticed marks on the left-hand rail, beginning east of the joint, 411 feet from the switch. That was where it left the rail. The mark was about 7 feet long and began 404 feet from the switch. That was the mark on top of the rail made by the flange leaving the rail. I followed that mark, and it led right to where the wheel had passed off the track. The marks on the ties show where the wheel passed off. The mark commences on the inside of the left-hand rail and travels about 7 feet diagonally across and towards the outside part of the rail. I measured and found the distance from the switch to where the lumber pile begins was 418 feet. The lumber pile was about 12 feet wide, so that it lay between a point 418 and 430 feet from the switch. When I was there on the 10th, I saw several cars pushed in there over this joint. They were pushed in by the locomotive, so that the locomotive was on the west end. Some of those cars were loaded. I would not say they all were. The first car farthest from the engine was loaded with logs, When that car passed over the joint, I stood just south of the joint opposite it, and about six or eight feet from the track. There was nothing between me and the joint to interfere with seeing what took place.
“Q. As the right-hand front wheel or trucks would pass over the joint, did you notice the effect on the opposite truck?
“A. They had a tendency to raise.
“Q. How much did the track settle at the joint as the car of logs passed over it ?
“A. We had no way of measuring it, but I should say a couple of inches, two or three inches. * * * They fixed that track in there since the accident. I do not claim there is any different ground on the rail under the rail next to the river than there is under the east rail. It is just about the same — the same material. I say the outside rail raised and the inside one went down. It may have gone down, and it may have been stationary for all I know; but I know the train swayed when they went in there, which gives me the idea that the outside rail did not go down as far, or it did not go down at all as the inside rail; the inside rail went down the farthest.”

Plaintiff offered no testimony tending to show that the existence of the alleged low joint or of a track gauge of 4 feet 8x^ inches would tend to cause the derailment. Upon cross-examination of one of defendant’s witnesses, however, it appeared that the proper gauge upon a straight track was 4 feet 8£ inches, and upon a 10-degree curve (such as the one in question) 4 feet 9 inches. This witness testified further:

“ On a curve anything up to a 10-degree curve can be carried around on 4 feet 8£ inches with safety. We do not on a curve ever reduce the gauge below 4 feet 8% inches. It would not be prudent to construct a standard-gauge railroad on a curve with the gauge less than 4 feet 8£ inches at any place in it. If it were constructed of a narrower measurement than 4 feet 8£ inches, it would bind the drivers of the engine, and the consequence would be that it would either turn the rails over or the engine would go off the track. The engine would not have sufficient gauge to carry it. The engine would go off from the rails spreading more than any other reason, with the proper flange. I do not know of anything that might contribute to make it go off, other than the rails spreading.”

It appeared affirmatively that the siding in question was built upon the same kind of “ made ground ” as were many others in the vicinity, and that plaintiff’s decedent was thoroughly familiar with this fact. It further appeared that the track was ballasted in the ordinary way for such tracks. Plaintiff offered no proof tending to show that the pile of lumber with which the car collided was piled too close to the track; in fact, the record conclusively shows that-it was piled at a safe distance from the track, in the ordinary operation of the road. Defendant’s motion for a directed verdict at the close of plaintiff’s case was denied. It then showed that the track in question was properly constructed and of the proper gauge at the point in question, when constructed.

The record showing the foregoing facts, the court charged the jury in part as follows:

“ It is alleged by the plaintiff in her declaration in this cause that it is the duty of defendant:
“(1) To keep and maintain a reasonably safe side track for its locomotives and cars to operate on.
“(2) To provide, keep, and maintain side tracks having a reasonably safe substructure for the locomotives and cars to operate on.
“ (3) To construct and maintain its side tracks without curves having sudden and abrupt departures from a straight line.
"(4) To construct and maintain side tracks with rails or curves of a reasonably regular and established elevation.
“ (5) To keep and maintain the ballast on said side track in a reasonably firm and solid condition.
“ (6) To construct and maintain the rails of its side tracks of a reasonably uniform gauge.
“ (7) To construct and maintain the joints and rails of the side tracks upon a reasonably firm and solid foundation.
“(8) To require lumber companies in piling lumber to place the same á reasonable distance from the rails of the side track, so that when the cars would mount or leave the rails they would not collide with the piles.
“ A breach of each one of these several allegations of duty is alleged in the said declaration, and I charge and instruct you that the plaintiff, having the affirmative of the case, assumes the burden of showing that, as a matter of law, these duties are imposed upon and assumed by said defendant, and also to prove by a preponderance of the evidence in the case a breach of one of these duties, and that the breach of such duties so imposed by law was the proximate cause of the accident resulting in the injury and death of plaintiff’s decedent.”

We think the court was in error in submitting to the jury the question of defendant’s negligence as to points numbered 5, 7, and 8. Not only is there no evidence tending to show that any alleged insufficiency in the foundation of the track caused or intended to cause the derailment, but plaintiff’s decedent, through his long experience, had become thoroughly acquainted with the fact that all, or at least many, of the side tracks in this vicinity were built upon this so-called “made ground,” and he must be held to have assumed the risk, if any, which arose from this character of construction.

It is urged by defendant that there is no evidence that the claimed defects in the track existed at the time of the accident. It is true the measurements sworn to were taken a week after the accident, but defendant itself offered proof to the effect that in repairing the track after the accident no change had been made, but that it had only been put back in the condition it was at the time of the accident.

We think under the evidence as it appears in this record the question of defendant’s negligence in permitting a gauge of less than 4 feet 8£ inches upon this curve was properly submitted to the jury. Whether in fact it did permit such a gauge was for the jury, and, if it did exist at the time of the accident, was that fact the proximate cause of the derailment.

No negligence on the part of defendant can be predicated upon the location of the lumber pile with which the car collided. It was piled at the usual and convenient distance from the track, and plaintiff’s decedent had worked beside such piles for many years. It would be obviously impossible to hold that lumber should be piled at such a distance from the track that a derailed car could not collide with it. The car in question was 40 feet long, and it is possible that it might have been so operated as to come in contact with a pile of lumber that distance from the track.

We are asked to hold that plaintiff’s decedent was guilty of contributory negligence, as a matter of law, in assuming the position he took upon the car. We cannot so hold. In the light of the actual occurrence, it is clear that he selected the only place upon the car where there was possibility of injury, but when he took that position it was one of apparent safety, and but for the derailment, which we do not think he was bound to anticipate, it would have remained safe. No duty called him to this particular spot on the car, but the record shows that in switching in the yards switchmen customarily ride wherever it is handiest to get on. The distance to be traveled is usually short, and the movement of the cars slow. A prudent man situated as was plaintiff’s decedent might have selected a safer place, but his negligence must be determined by the jury.

Defendant urges that it offered the only intelligent solution of the question as to what caused the derailment. The finding of a piece of scantling alongside the track, at the point of derailment, bearing marks indicating that the car wheel had passed over it, is indeed persuasive evidence that this stick was the proximate cause of the accident. That theory was, however, submitted to the jury 'and apparently rejected. The cause of the derailment is a question of fact.

The judgment is reversed, and a new trial ordered.

Ostrander, O. J., and Bird, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    DILLON v. CRAIG
    1. Assumpsit — Case — Counts — Declaration — Misjoinder — Actions.
    A count in a declaration purporting to be in case, charging that defendants, some of whom were creditors of plaintiff, as such, agreed that if plaintiff would permit a certain firm of adjusters to adjust plaintiff’s loss by fire with several insurance companies that had issued policies to him, plaintiff might deposit the proceeds in a bank named by them, that instead of depositing the funds as agreed, the defendants, wilfully intending to injure plaintiff and deprive him of his policies of insurance, procured and permitted said adjusters to appropriate to their own use $10,000 of the funds collected, stated, in the absence of a demurrer, a sufficient cause of action in assumpsit instead of trespass on the case.
    2. Same — Fraud.
    A second count, charging similar facts and alleging false pretenses, stated a cause of action for fraud, sufficient if not demurred to.
    3. Same — Election.
    The misjoinder of causes of action should be raised by an appropriate pleading, but upon a motion to require an election between the counts, made at the commencement of the trial and again at the close of plaintiff’s case, plaintiff should have been required to elect between them.
    4. Estoppel — Debtor and Creditor — Duty to Speak.
    As to creditors of plaintiff with whom a compromise of his debts was effected, and from whom he concealed the fact that he intended to bring an action against certain of them for participating in the alleged wrongful conversion of the insurance funds, plaintiff was estopped from making the claim that they were liable to him, since they were entitled to full information concerning his assets, including such claim.
    5. Trover and Conversion — Fraud—Insurance Funds.
    There was evidence sufficient to present a question of fact as to one of the defendants who took charge of plaintiff’s insurance matters, advised him to employ the defendant insurance adjusters to settle the amount of plaintiff’s loss, and who turned over to the ádjusters, against plaintiff’s protest, an excessive amount as compensation for their services out of the proceeds of the insurance money, in contravention of plaintiff’s agreement with his creditors.
    6. Same — Ratification.
    It was not a ratification of any alleged wrongful acts that plaintiff, after learning of the payment to the adjusters, indorsed over to them, in pursuance of his agreement with the creditors, other checks and drafts received.
    Error to Wayne; Mandell, J.
    Submitted March 1, 1911.
    (Docket No. 67.)
    Decided November 3, 1911.
    Rehearing denied March 30, 1912.
    Case and trover by Hugh Dillon against Frank D. Craig and others. A judgment for certain defendants on a verdict directed by the court is reviewed by plaintiff on writ of error. Affirmed as to a part of the defendants.
    Reversed as to defendant Fixel.

      Sloman & Sloman (James H. Pound, of counsel), for appellant.

      Bernard B. Selling, for appellees Fixel, Krolik and others.

      Geer, Williams, Martin & Butler, for appellees Burnham, Stoepel & Co.
   Blair, J.

In the language of plaintiff’s brief—

‘ ‘ Plaintiff brought this action of trespass on the case and trover against the defendants jointly to recover damages for unlawfully depriving him of certain policies of insurance, and of ten thousand ($10,000.00) dollars of money, etc., received by the defendants upon the adjustment of a fire loss thereunder.”

The first count in the declaration, after reciting that plaintiff was engaged in the retail -dry goods business, that on the 5th day of February (1907) a fire occurred, which destroyed a greater part of his stock, etc., that he had certain insurance policies covering said stock, etc., the loss upon which was afterwards adjusted at $20,000, that Craig, Wright & Walker were engaged in the business of adjusting insurance losses, that Burnham, Stoepel & Co. and A. Krolik & Co. were engaged in the wholesale dry goods business, and were creditors of plaintiff, alleges—

“ That shortly after the fire aforesaid, said defendants, Burnham, Stoepel & Co. and A. Krolik & Co., the former' acting by their agent, George A. Corwin, and the latter by the defendants Adolphus Fi^el and said Craig, Wright & Walker, agreed with plaintiff that if plaintiff would permit the defendants Craig, Wright & Walker, who had adjusted the fire loss under said policies, to collect (among other policies) the moneys due and owing thereon under their direction, that said moneys so collected would be deposited to the account of plaintiff in the Old Detroit National Bank in the city of Detroit. That, relying upon said agreement and understanding, plaintiff, on or about the 16th day of February, 1907, placed said policies of insurance, upon which there was then owing plaintiff the sums aforesaid, in the possession of the defendants Craig, Wright & Walker, to collect, under the supervision and control of said defendants Burnham, Stoepel & Co. and A. Krolik & Co., in order that the moneys collected therefrom should be deposited and placed to the credit of plaintiff in said bank.
“ Plaintiff avers that on or about February 23, 1907, the moneys so due and owing upon said policies, respectively, were paid to the defendants Craig, Wright & Walker, and that it then and. there became the duty of said defendants to deposit or procure the same to be deposited in said bank to said plaintiff’s credit and account. That said defendants wholly neglected their duties and obligations in this regard, and did not deposit said moneys in said bank to the account and credit of plaintiff, but, wilfully intending to injure and harass plaintiff and deprive him of the said policies and the moneys owing thereon and so paid over to said defendants Craig, Wright & Walker, and acting in concert with said defendants Craig, Wright & Walker in relation thereto, caused, procured, and permitted the said defendants Craig, Wright & Walker to appropriate and convert to their own use the sum of ten thousand ($10,000) dollars of the said insurance moneys so paid over to them on account of said policies as aforesaid, whereby said plaintiff has sustained great loss and damage,” etc.

The second count, in substance, follows the first down to the statement of the alleged grievances, which is as follows:

“ That shortly after the fire aforesaid said defendants Burnham, Stoepel & Co. and A. Krolik & Co., the former acting by their agent, George A. Corwin, and the latter by the defendant Adolphus Fixel, acting in concert with the defendants Craig, Wright & Walker, and wrongfully intending to injure and harass the plaintiff and deprive him of his money and property, under the guise and pretense of befriending, aiding, and assisting him in conserving and protecting his interests, in that he might more easily and readily pay his creditors to whom he was then indebted, and to collect the moneys on the policies of insurance hereinbefore mentioned, and procure the deposit of the same to his credit and account in the old Detroit National Bank of the city of Detroit, then and there, to wit, February 16, 1907, while thus acting in concert with the defendants Craig, Wright & Walker, and having lulled said plaintiff into a false sense of security by sundry wiles and subtle devices, caused, procured, and induced plaintiff to place the policies aforesaid with the defendants Craig, Wright & Walker to collect and receive the money thereon, and which moneys the said defendants then and there assured and represented to plaintiff, when so collected or paid over to the defendants Craig, Wright & Walker, would be promptly deposited by said defendants in the old Detroit National Bank to the credit and account of said plaintiff.
“That in furtherance of said wrongful purposes to deprive plaintiff of his said moneys and property as aforesaid, the said defendants Burnham, Stoepel & Co., by their agents aforesaid, then and there acting in concert with said defendants Craig, Wright & Walker, and on or about the 33d day of February, 1907, caused and procured plaintiff to indorse and deliver to said Craig, Wright & Walker the checks and drafts given by the respective insurance companies in payment of their respective policies of insurance aforesaid, which were payable to plaintiff’s order, and aggregated the amount of, to wit, $30,000. That by reason of the premises, the said defendants Craig, Wright & Walker came into the possession of said policies of insurance and the money owing and due thereon as aforesaid, and the drafts and checks given by said companies, respectively, in payment thereof.
“And the plaintiff avers that in further pursuance of said wrongful purposes, and wickedly intending then and there to wrong and deprive plaintiff of his said policies and the money due and owing and paid thereon, and the drafts and checks aforesaid delivered in payment thereof, the said defendants then and there failed and neglected and refused to deposit the moneys, checks, drafts, etc., so collected by and paid over to said defendants Craig, Wright & Walker in the said Old Detroit National Bank to the credit and account of the plaintiff, except a small portion thereof, and then and there caused, procured and permitted the said defendants Craig, Wright & Walker to retain, keep, and convert of said moneys the sum of, to wit, $10,000. That by reason of the premises said moneys so retained, kept, and converted by said defendants Craig, Wright & Walker became and were wholly lost to plaintiff, whereby he has sustained great damage,” etc.

The third and fourth counts of the declaration are in trover, alleging, respectively, the conversion of the policies and the conversion of the drafts and moneys received thereon. The defendants pleaded the general issue alone, except Craig, Wright & Walker, who gave notice under their plea that the $10,000 was paid them for services rendered in adjusting the losses referred to in the declaration, pursuant to an express agreement.

Before any testimony was given, defendants requested the court to compel the plaintiff to elect upon which counts he expected to recover, alleging that the first count was in assumpsit and could not be joined with the counts in tort. This request was refused, without prejudice to renewing it when the proofs were in. Upon the conclusion of plaintiff’s proofs, upon motion of defendants’ counsel, the court directed a verdict for defendants Burnham, Stoepel & Co., A. Krolik & Co., and Adolphus Fixel, and ordered the case to proceed as to Craig, Wright & Walker.

The grounds upon which the verdict was directed were, as stated by the court:

“ I find and determine that the evidence shows that, the plaintiff secured, through his authorized agent, a settlement which' was advantageous to himself, and involving a loss to these defendants, at a time when he entertained a secret and purposely undisclosed intention of subsequently claiming damages for wrongs which he seeks in this suit to recover. By his silence he sought to gain advantage, and, under the approved doctrine that one cannot be permitted to gain an advantage by remaining silent when it is his duty to speak, the plaintiff is now estopped from urging his further claim, and from denying that the settlement effected was of all outstanding claims against the defendants. Defendants are not shown to have known of the contemplated claims, and there is no reason given why they should have known. On the contrary, every legitimate inference is that they did not know or suspect until long after accepting 90 cents on the dollar of the claim. It cannot be successfully urged that this claim is of a different class than the one compromised by the plaintiff at 90 cents on the dollar, or that each claim was independent of the other, for the reason that the amount of assets plaintiff was able to marshal in order to compromise his obligations was material to the determination by defendants of how much or how little they would be willing to accept in payment of their claims, and the intentional concealment of the asset of $10,000 worked a disadvantage to the defendants as well as to the other creditors of the plaintiff. This would dispose of the case against these defendants, but I think in view of the character of the charges they are entitled to a ruling by the court upon the other charges.
“To repeat what I said a moment ago about the charges generally, these defendants are charged, to speak in a general way, with having joined with the defendant firm of Craig, Wright & Walker, in an unlawful conspiracy to fraudulently deprive the plaintiff of some $10,000; and, second, with the unlawful conversion of insurance policies, drafts for insurance moneys, and insurance moneys. There is no positive proof that there ever was a direct undertaking between the defendants to commit a fraud upon plaintiff, but plaintiff claims that such an undertaking is established by inference from the acts and conduct of the defendants. It would profit nothing to enter into a detailed discussion of the evidence that it is claimed establishes the charges in the declaration. Suffice it to say, I find and determine that the evidence construed most favorably against these defendants fails to raise a presumption against them under the charges and wording of the declaration, and the jury would be unwarranted in holding them guilty under the evidence presented.”

Judgment was entered upon the directed verdict, to review which plaintiff prosecutes this writ of error.

On February 5, 1907, a fire occurred in the plaintiff’s store, which caused great damage to his stock of goods. He had his stock of goods insured in different amounts by a large number of insurance companies; the total amount of insurance being about $76,000. At the time of the fire, plaintiff was indebted to about 100 creditors in the amount of $70,000 to $75,000.

Mr. Geo. A. Corwin was the secretary and credit man of Burnham, Stoepel & Co., and Adolphus Fixel was the credit man of A. Krolik & Co. As such credit men, Cor-win and Fixel had charge of the collection of the indebtedness due from plaintiff to their principals, amounting, in the case of Burnham, Stoepel & Co., to the sum of $14,000, and in the. case of A. Krolik & Co., to $10,000. The declaration proceeds upon the theory that the principals acted only through their agents, and there is no testimony in the record indicating, either directly or indirectly, that the principals specially authorized the payment of the $10,000 to Craig, Wright & Walker, or ratified the payment after knowledge of the facts. Neither is there any evidence tending to show that the principals conspired in any way to defraud or injure plaintiff, or indicating any desire to take advantage of his necessities or to do anything inconsistent with fair treatment. So far as the record discloses, no part of the $10,000 went to them, but, on the contrary, its payment diminished the amount which they received. Their liability, if any, must rest upon the doctrine of /respondeat superior. The defendants put in no testimony.

In our opinion, the first count should be treated as stating a cause of action in assumpsit, and, in the absence of a demurrer, the second count sufficiently states a cause of action in trespass on the case for fraud. Storrs v. City of Grand Rapids, 110 Mich. 483 (68 N. W. 258).

Although the misjoinder of causes of action ought strictly to have been raised by an appropriate pleading, still we think that the election insisted upon by defendants at the outset and again at the close of plaintiff’s proofs should have been ordered. Haines v. Beach, 90 Mich. 563 (51 N. W. 644); Doyle v. Pelton, 134 Mich. 398 (96 N. W. 483).

Does the doctrine of estoppel apply ? Plaintiff arranged with Mr. Joseph L. Hudson to obtain a settlement with his creditors, which Mr. Hudson secured at 90 cents on the dollar. Plaintiff did not inform Mr. Hudson that he had any claim against the defendants to recover the $10,-000, and he knew nothing of such claim. Acting under the advice of his attorney, plaintiff intended to bring suit on the present cause of action against Burnham, Stoepel & Co. and A. Krolik & Co. as soon as the settlement was made, and not to disclose such intention; and the important question is, Did the circumstances require him to disclose such intention ? Plaintiff and his wife repeatedly testified that the understanding with Corwin and Fixel was—

“That all drafts and all moneys that come back through the insurance policies would have to be deposited in the Old Detroit National Bank in Hugh Dillon’s name for the benefit of his creditors.”

Plaintiff further testified that he signed a paper to that effect.

“ I didn’t read it myself. I signed one that money was to be all deposited in the Old Detroit National Bank for the benefit of my creditors.”

Plaintiff’s wife testified that she and plaintiff attended one meeting of creditors at the Old Detroit National Bank, and it is inferable from her testimony that the amounts derived from and paid out of the insurance fund were considered, and that she and her husband said nothing of their claim. It is further apparent that plaintiff must have known that the creditors were acquainted with the state of that account, and were treating the $10,000 as properly paid out of moneys deposited for their benefit, and which otherwise would have come to them. Their excuse for not enlightening their creditors at the hank meeting was:

“We were acting under our attorney’s advice. We knew we were to make a claim; we kept our mouths shut and asked for further time, and subsequently accepted terms at 90 cents on the dollar.”

We think the circumstances called upon the plaintiff to open his mouth and acquaint the creditors with his claim, and, not having done so, we agree with the circuit judge that he is now estopped to prosecute such claim against defendants Burnham, Stoepel & Co. and A. Erolik & Co., and a verdict was properly directed in their favor.

As to defendant Fixel, the case is different. The verdict having been directed, we must give to plaintiff’s proofs the utmost probative force of which they are reasonably capable. So considered, the proofs tended to show that Fixel, having the confidence of plaintiff, induced him to transfer the collection of his insurance from Yan Antwerp, with whom he had arranged, to Craig, Wright & Walker, and to turn over the whole conduct of his affairs to Fixel and Corwin; that, knowing that plaintiff had made no agreement whatever with Craig, Wright & Walker as to their compensation, and in contravention of the agreement as to the deposit of the collections, Fixel, without the knowledge or consent of plaintiff, paid over to or authorized Craig, Wright & Walker to take $10,000, which he knew to be a grossly excessive sum for such compensation.

Mrs. Dillon testified:

“ Mr. Fixel brought me up this memorandum, and told me he had deposited that much money in the bank— $9,151.50. The statement from the Old Detroit National Bank that I produced here shows a credit on that date of that amount. Fixel says: ‘ Now, we can write out some checks.’ And I said: ‘Mr. Fixel, there was more drafts than that come back, and Mr. Dillon said he signed a whole lot of drafts.’ And he said: ‘Well, I give Craig, Wright & Walker $10,000.’ And I said: ‘My God, did you give our money away ? I thought we agreed you .were to put all the money in the Old Detroit National Bank for the benefit of our creditors, and that Mr. Dillon was to sign those checks?’ He said, ‘Well, I give them their money,’ and he sneered at me in his way, and walked out of the office and down the stairs and outside. The amount of the policies that had been paid on that day was $19,151.50; the amount of the deposit, as appears by that slip is $9,151.50.”

Mr. Dillon testified:

“On the 6th of February, about that time, Mr. Fixel told me straight, ‘Don’t go near no attorney;’ and, he says: ‘You take my advice; just keep my instructions, and leave it to us; don’t go near any attorney.’ * * * I let them go ahead and do as they saw fit. * * * After the inventory was taken and after the checks began coming back, or the drafts, whichever they were, Mr. Fixel came over to our house and wanted us to turn over our lease. The following day he came up to the second floor of the store, and he wanted Mrs. Dillon to write out a check for their company (A. Krolik & Co.) and for Burnham, Stoepel & Co., and she says, ‘I am busy now.’ And he says: ‘Well, I am busy, too; I want you to write out two checks.’ And he says: ‘ You have money now; there is money in the fund, and I want those two checks.’ And so she says: ‘ Well,’ she says, ‘ to tell you the truth, Mr. Fixel, I won’t write any more checks without the consent of my attorney.’ And so he says: ‘ Your attorney! Have you an attorney ?’ And she says, ‘ Yes, I have.’ ‘ Well, he says — he shoved his fist to her nose— ‘ I will tell you right now, woman, I will leave you without a dollar, and,’ he says, ‘I will take the rings from your fingers, and leave you without a dollar if you take an attorney into this case. And what attorney did you get ?’ And she says, ‘ Mr. Sloman.’ And I says: ‘ Mr. Fixel, look here. You have robbed us long enough, and I took you for a friend. You acted as a friend to me all along,’ I says. ‘ I took you for a friend, and, instead of that,’ I says, "you gave $10,000 of my money away, and my goods is gone, and I have done everything to please you because I depended upon you. Now I have nothing to pay 100 cents on the dollar with, which I wanted to do, and which I intended to do right along,’ I says. ‘ It will be different now. We will do as our attorney tells us from this on.’”

It is apparent, therefore, that, before the settlement, Fixel knew that plaintiff was not acquiescing in his turning the $10,000 over to Craig, Wright & Walker, but, on the contrary, was characterizing such act as robbery. The fact that plaintiff, in accordance with the written agreement, indorsed other drafts and checks over to Craig, Wright & Walker, after knowledge of the wrongful payment, no more affirmed its legality as to Fixel than as to Craig, Wright & Walker. Plaintiff complained to Fixel himself; he was under no obligation to him to complain to any one else. Plaintiff owed no duty to Fixel as an individual wrongdoer; he had full knowledge of all the facts; and we find no basis for an estoppel as to him.

The judgment is affirmed as to defendants Burnham, Stoepel & Co. and A. Krolik & Co., and reversed and a new trial ordered as to defendant Adolphus Fixel. Defendants Burnham, Stoepel & Co. and A. Krolik & Co. will recover costs against plaintiff, and plaintiff will recover costs against defendant Fixel.

Ostrander, C. J., and Bird, Steers, Moore, Mc-Alvay, Brooke, and Stone, JJ., concurred.