text:
    AMERICAN SEED CO. v. COLE.
    1 Evidence — Cross-Examination—Conclusion.
    In an action by a corporation against its former secretary for a claimed balance due on account of errors in the keeping of books and omitted charges against his account and other items, the trial court did not err in permitting plaintiff’s president to testify on cross-examination that no demand was made on defendant at an annual meeting of plaintiff corporation.

      2. Same — Corporate Meetings.
    Nor was it error to sustain an objection to testimony of the same witness that a certain meeting of the board of directors that defendant claimed was held, in fact never took place, when the point was subsequently developed at length and plaintiff was permitted to cross-examine the witness fully on that subject.
    3. Same — Bias.
    Evidence offered by plaintiff to show that the witness was biased against it, for the reason that a suit had been brought by defendant against witness and the corporation for the specific performance of a certain contract to sell stock, was rightly excluded, where the suit had been afterwards dismissed, and the fact was immaterial to any issue in the case.
    4 Same — Books.

      Held, also, that plaintiff was not prejudiced by the admission of testimony of plaintiff’s bookkeeper as to the charging of an important item on the books that defendant claimed should not have been charged to him, but was advanced to and disbursed by him for necessary expenses of a trip for plaintiff’s benefit.
    5. Same.
    And where defendant claimed that his salary had been raised by the board of directors of the corporation, which denied it,, contending that no such action was taken, defendant was entitled to prove that the books showed a credit of the disputed amount although plaintiff’s witnesses testified that the entry was made by mistake.
    6. Same — Directed Verdict.
    Under conflicting testimony, the plaintiff was not entitled to a directed verdict as to everything but the amount due.
    7. Same — Burden of Proof — Account.
    It was not error to refuse a request to charge that the burden of proof rested on defendant to show that he had repaid the money he received from plaintiff where he had not received money as agent of the plaintiff, and claimed that the several items were improperly charged against him.
    8. Same — Trial—Charge.
    Plaintiff was not entitled to complain of a charge which was more favorable to it than the testimony justified, where no requests on the specific point were made by plaintiff’s counsel.
    9. Same — Burden of Proof.
    The court also correctly instructed the jury that the burden of proof rested on plaintiff as to each, item of its bill of particulars.
    10. Same.
    As to the one issue involved in the alleged increase of salary, the burden was on defendant.
    11. Same.
    And as to other items of defendant’s claim, disallowed by the jury, as a set-off, plaintiff suffered no prejudice from failure of the court to charge that the burden was on defendant.
    12. Same — Charge.
    It was also proper to charge that the preponderance of the evidence was not to be determined by the number of the witnesses and if the jury believed any witness had testified falsely on a material point, they might disregard the entire testimony of the witness.
    13. Same — Trial—Bill of Particulars.
    The conduct of defendant’s counsel in requesting that the jury might take to the jury room plaintiff’s bill of particulars, which appellant’s attorney later consented might be done, was not harmful or improper.
    Error to Wayne; Codd, J.
    Submitted June 6, 1912.
    ( Docket No. 32.)
    Decided March 20, 1913.
    Assumpsit by the American Seed Company against Charles E. Cole in justice’s court for money had and received. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.

      M. Hubert O’Brien {William G. Fitzpatrick, of counsel), for appellee.
   McAlvay, J.

Plaintiff, a Michigan corporation, brought suit in assumpsit before a justice of the peace in the city of Detroit and recovered judgment. Defendant appealed to the circuit court, where the trial resulted in a judgment in his favor. From this judgment the plaintiff has brought the case to this court for review upon a writ of error.

Prior to incorporation, this business was carried on as a copartnership. The business was incorporated in 1901, and all the partners, including defendant Cole, became stockholders therein and have so continued.

In August, 1907, defendant left his employment with D. M. Ferry & Co., of Detroit, which had continued for a period of 20 years, and entered plaintiff’s employment as its secretary and treasurer, which continued for a period of about one year, until the annual meeting in 1908, when he was elected to the office of secretary only, and so continued until the annual meeting in 1909, when he was not re-elected a director. The dispute in this case arises out of a claim on the part of plaintiff that while defendant was in its employment, by overdrawing his account and not charging certain items against himself, he became indebted to it.

The original bill of particulars furnished by plaintiff of its claim against defendant in justice’s court, and which was used upon the trial in the circuit court, could not be found to be incorporated in the bill of exceptions; and, by stipulation entered into between counsel, a copy of the same was agreed upon and was used for that purpose. This bill of particulars charges against defendant certain items of various amounts aggregating $347.11, and he is credited with certain items aggregating $227.95, showing a balance in favor of plaintiff of $119.16, being the entire claim of plaintiff at that time, which, with interest for two years at 5 per cent, added, would make the exact amount recovered by plaintiff in justice’s court.

While acting as secretary and treasurer óf the plaintiff, defendant, who was not a bookkeeper, made the original entries in plaintiff’s business in a daybook, called the cashbook record, and he did not make entries in any other of the plaintiff’s set of books. Plaintiff also drew checks and filled out check stubs of such checks as he drew. During this time, an expert bookkeeper and accountant, named Lockwood, was employed to keep these, and it was his duty to post the entries made by defendant in plaintiff’s books. For this purpose he visited plaintiff’s office at least once a month. He took off trial balance, which required checking up the bank book and all the other books. Mr. Lockwood had been engaged on plaintiff’s books from the time of its organization.

In 1908, before the annual meeting, the president of the company directed this accountant to examine its books during the previous year, when defendant had acted as treasurer. He did this and reported that he had found certain discrepancies against defendant. Defendant was first informed that there was some claimed irregularity in his account either just before or during the annual meeting in 1908. It was at this meeting that one of the other directors was elected treasurer, and defendant was continued.* as secretary, for the following year. While there is no dispute between these parties as to the facts above stated, there is a sharp dispute upon the subject-matter in controversy in this suit. The contention on the part of plaintiff is that, as treasurer of the company, certain funds came into his hands which he has not accounted for, but has appropriated to his own use; that the record shows that he admits that he has received all of the items charged against him in the bill of particulars; that the burden of ^ proof is on him to show that he has accounted for them; that the court should have directed a verdict for plaintiff, leaving the jury to determine only the amount of such verdict. On the other hand, the contention of the defendant is that all of these items, with the exception of a few of the smaller ones, were improperly charged against him, and are disputed by him; that the large item of $146.36 charged was for expenses incurred for plaintiff during a trip he made, having been sent as a traveling salesman to the Upper Peninsula to secure to the plaintiff that trade, and had been paid to him as such with the knowledge and consent of the president of the company. The record shows considerable heat, caused by friction between the president of the plaintiff company and defendant.

Numerous errors are assigned, and all of them are discussed. The assignments of error are based upon rulings on the admission or exclusion of testimony; the refusal to give certain requests of the defendant to charge; and the charge of the court. They will be considered in the order presented.

The first assignment of error relates to a question asked on cross-examination of witness Pinten, plaintiff’s president, when witness was being examined relative to the occurrences at the stockholders’ meeting of September 1, 1908, when defendant was relieved of the office of treasurer. Defendant’s counsel it appears was claiming that the officers of the plaintiff had the report of the accountant relative to claimed discrepancies against him and yet continued him in the office of secretary. The question objected to was: __

iCQ. Was there any demand made upon Mr. Cole for payment of this money ? * * * At the time of this meeting, yes or no ?
“A. No demand was made at the time of the meeting.”
The objection made was:
“I object because the facts already stated are practical evidence of a demand. There have been other things to show that. He has received a statement. A demand is a conclusion. I submit it is immaterial.”

This was cross-examination, and there is a dispute in the record as to whether at that time defendant had received a statement of this claim upon which plaintiff has brought suit. The answer was allowed by the court as “ admissible as regards any transactions occurring at the time of this annual meeting.” It was not error to admit the question.

The second assignment of error relates to a question on redirect examination of the same witness, asked and answered before any objection was interposed:

”Q. Will you tell the jury whether there was ever any such meeting ?
“A. There was no such meeting ever held.”

This relates to a directors’ meeting held April 10, 1909.

The court, in sustaining the objection, gave as his reason that this introduced a side issue, and the examination should be confined to the issues. Counsel for the plaintiff then said, “ I cannot say anything against that remark at all.” Later in the case testimony concerning this directors’ meeting was introduced on the part of defendant for the purpose of showing an increase of the salaries of the officers of the defendant at the meeting referred to in this question, under which defendant claimed a credit of $75 on account of the raise in salaries. Mr. Pinten was afterwards examined at length upon this matter, after the testimony of defendant had been admitted. The court was not in error in the ruling at the time. Plaintiff later had the benefit of a full examination of this witness upon the question.

Objection was made and sustained on the ground of immateriality to the introduction of testimony on the part of plaintiff relative to a certain chancery suit brought by defendant against plaintiff, impleaded with John Pinten, to enforce performance by Pinten of an oral agreement for the sale of 200 shares of plaintiff’s stock, wherein the bill was afterwards dismissed. No offer was made showing that this was material to the issue; and it is only claimed that it was for the purpose of showing the bias of the witness. The court properly excluded the testimony.

Defendant testified at length as to the circumstances and character of the expenditures claimed by him to have been made for the benefit of plaintiff, which go to make up the item of $146.36 charged against him, and which he received upon salary voucher August 31, 1908, to which reference has already been made; that such expenses were incurred on this Upper Peninsula trip where he was in competition with his former employer, the D. M. Ferry Seed Company, represented by its strongest man, and that he gave the circumstances on his return in detail to the company’s president, who agreed to present it to the other members for allowance; that the first he heard that it was claimed against him was at or about the time the present suit was commenced (September 10, 1910). This item consisted of money which he advanced and charged as incidental expenses on that trip, and entered the items in the usual way in his expense book as a traveling salesman, which book was turned over by him to their expert accountant and bookkeeper, and was never returned to him.

The only portion of this testimony which we find from the record on this subject that was objected to by counsel for plaintiff was at its close, when witness testified:

“Q. At the time of this expense of $146.36, where were you?
“A. I was in the Upper Peninsula, away from the city.
“Q. Was that money spent?
“A. Yes, for incidental expenses in entertaining the trade, in getting the trade lined up for new business. I went up there to secure a line of business, and I faced conditions that compelled me to spend the money.”

Counsel for plaintiff said:

“I object to this testimony as incompetent, immaterial, and irrelevant. Objection overruled. Exception for plaintiff.”

Upon this, error is assigned. This in reality is the most important item in dispute in the case; and the testimony in regard to it was offered by defendant upon his theory that it was in fact money advanced by him in plaintiff’s interest, which was the usual custom of the business; that the account was given to the bookkeeper who, in the usual manner, entered it upon the books, and no question was ever raised about it until about the time this suit was commenced. Upon this matter the bookkeeper, Lockwood, who had kept the books of the plaintiff from the time of its organization, testified as follows:

“Q. I call your attention to the salary voucher of the 31st day of August, 1908. Explain it.
“A. When the travelers are on the road they are permitted to draw against their salaries, to make out a receipt, and send it in to the house, which goes in as cash.
“Q. So they will have ready money to pay their expenses with ?
“A. Yes, they draw cash.
UQ. Go ahead with the explanation.
“A. Mr. Cole was on the road and made a draft of that sort. I am taking this from the books. It shows Mr. Cole was on the road, the expense book.”

The testimony in regard to this matter was both material and relevant and properly admitted upon the theory of defendant that the item was improperly charged against him.

Defendant also claimed that, by the action of the directors of plaintiff corporation, the salaries of its officers were increased $25 per month each at a certain meeting held for that purpose. He was the secretary and offered testimony tending to show that he made the minutes of such meeting, as was his custom, on loose sheets of paper, and later transcribed the same into the minute book of the corporation, which record was offered and received in evidence. The president, Pinten, was called and denied that any such meeting was ever held, and that his salary for 1908 was $1,200 per year. Being shown the entry in the ledger, dated May 31, 1909, of $275 in his salary account, he admitted that it was credited to him, and presumed it was due. He also testified that there was a charge of $100 per month for each month of said year over and above the $275 charge, and admits that it was credited for some reason, but he did not know what the item was, but denied that it was for back salary.

Director Gillespie was recalled by defendant and testified that the matter of increasing the salaries $25 per month was talked over when Mr. Pinten was present; that Mr. Latham’s salary was raised to $1,500 for ten months, while in the South, to cover his moving expenses; that the matter of raising his salary and the other salaries was discussed, but no action was taken or record made on the books. His attention was called to the ledger account showing a charge of $275 salary to Pinten, and the same to himself, and admitted that it was a charge to salary account in each instance; but he said that the items were not drawn from the business, although the books showed it; that it was all a mistake; and later, by mistake, he told the bookkeeper to credit their accounts for $275 each. To this testimony counsel for plaintiff objected on the ground that it was incompetent and immaterial, and error is assigned on the action of the court in admitting it. This was the claim of defendant’s set-off; and this testimony was introduced to prove and corroborate his own testimony. It was properly admitted, and was a question of fact to be submitted to the jury.

Errors are also assigned on the refusal of the court to give defendant’s requests to charge. Eleven of these requests were presented, and none of them were given in the language of counsel. Error is assigned upon the refusal of the court to so give each of these requests. An examination of the charge of the court shows that the substance of each of the first five of these requests was contained in the charge of the court as given. The same may also be said of the eighth, ninth, and tenth.

The sixth was a request to direct a verdict for the plaintiff, leaving only the amount to be determined by the jury. This was properly refused.

The seventh request was based upon the theory that defendant had admitted the itemé charged against him as having been received, and that it followed that the duty devolved upon him to repay the same, and, if he had not done so, it was the duty of the jury to find for the plaintiff for such sum as the evidence of the plaintiff showed was not satisfactorily accounted for by defendant. This was properly refused for the reason that it was based upon a false premise.

The eleventh request asked the court to charge that the burden of proving, to the satisfaction of the jury, that he had repaid the money he received from plaintiff was upon him. This request is based upon the theory that where a defendant, in an action for money had and received, admits the receipt of the money as agent for plaintiff, but claims to have paid it over to plaintiff, the burden is upon him to prove such payment. This rule does not apply to the case at bar. There is no admission made in this case by defendant that he received these items as plaintiff’s agent, or that he paid the items charged against him over to the plaintiff. His contention is that the most of these items in plaintiff’s bill of particulars, for which this suit was brought, were improperly charged against him; that the item of $146.36, advanced by him while traveling on the road for plaintiff as incidental expenses, was credited to him according to the usual custom in plaintiff’s business. He admits that a few minor items were not entered and charged in his account by mistake. The remaining assignments of error relate to portions of the charge as given by the court.

The twenty-fourth assignment of error is the first which relates to the charge of the court, and is not a criticism of the charge as given; but error is claimed because the court omitted to charge as counsel desired. This paragraph was given upon plaintiff’s theory of the case, and is of considerable length, and need not be quoted. Suffice it to say that, upon the matter which appellant claims the court should have included in this paragraph, no requests were presented. Further, this paragraph, in our opinion, was more favorable to the plaintiff than the case warranted.

The next assignment of error (the twenty-fifth) relates to the charge of the court upon the matter of increased salaries, claimed by defendant to have been voted by the directors. No requests to charge were presented which cover the matter. It would appear that the argument is directed against the authority of these directors, who held all of the stock, to increase their salaries, and is an argument upon what counsel for appellant claims are facts shown by the record, and not upon a question of law. In our opinion, the charge of the court was proper and without error.

The next assignment of error (the twenty-sixth) upon the charge has already been considered in this opinion in discussing the error assigned upon the refusal to give plaintiff’s seventh request to charge.

The twenty-seventh error assigned relates to the charge of the court relative to the item of $146.36, claimed by defendant to have been expended by him for plaintiff. We have already discussed at length this item and the contention of defendant relative thereto. The court properly submitted the question of fact to the jury for its determination.

The twenty-eighth assignment of error relates to the charge of the court upon the matter of increase of salaries, which has already been discussed at length in this opinion, based upon the assignment of error as to receiving this testimony, and also upon the error assigned relative to the charge of the court thereon.

The twenty-ninth assignment of error is a complaint upon the following charge given by the court as to the burden of proof:

“ The law rests upon the plaintiff the burden of proof. He must prove to the jury those things which he claims against the defendant by what is called a preponderance of evidence; unless he has done that he cannot recover.”

The court was correct in giving the portion of the charge above quoted, which is the portion complained of specifically. The burden of proof was upon the plaintiff to establish every item in his bill of particulars charged against defendant. The question was properly submitted to the jury by this charge.

The one matter of set-off, on the part of defendant, which is presented by this record is the matter of increase of salary, which he claimed he should be credited with, and upon that item the burden of proof rested upon defendant.

The charge of the court imposed the burden of proof upon the plaintiff only in so far as its bill of particulars was concerned; and we do not find in the charge alike statement relative to this item of set-off. There was no specific request to charge to that effect; and we think that its omission was not prejudicial error, as it is evident from the verdict of the jury that the item for claimed increased salary was not allowed defendant.

The balance claimed by plaintiff against defendant in its bill of particulars was $119.16, which, as already stated, was the amount of the judgment recovered by plaintiff in justice’s court, with a small amount for interest added. The disputed item of $146.36, if credited to defendant, would leave plaintiff indebted to him in the sum of $27.20, which was the exact amount of the verdict found by the jury in his favor.

The two last assignments of error upon portions of the charge remain to be considered. The first of these relates to a part of the language of a long paragraph of the charge of the court to the jury relative to the preponderance of evidence, the province of the jury, and its duty relative to weighing and considering the evidence in the case, in which he said, among other things, that the preponderance of the evidence was not determined by the number of witnesses, and that, if the jury believed any witness had falsely testified in any material point, it would have the right to disregard the entire testimony of such witness. This was not erroneous. As to the second, counsel has already discussed it under the twenty-ninth assignment of error and the sixth and seventh requests to charge, which we have already considered and passed upon against the contention of appellant.

The next assignment of error relates tó a request made by defendant’s attorney that the jury be permitted to take plaintiff’s bill of particulars into the jury room. This, at the time, was objected to by counsel for plaintiff and refused. It is contended that this request of defendant’s counsel was prejudicial conduct. We do not agree with counsel. Such a request is not unusual in the trial of jury cases; and later in this case this bill of particulars was, by consent of appellant’s counsel, submitted to the jury before verdict.

Error is also assigned upon the charge of the court given to the jury, upon a return for additional instructions after being out for a time. These instructions cover a page of the record; and part of it is a repetition of the substance of the charge already given, the objections to which have all been passed upon. We find no prejudicial error in this charge.

The other errors assigned all relate to the refusal of the court to grant a new trial. This motion being founded upon the contentions of plaintiff, as set forth in the assignments of error which have been discussed in this opinion, it follows, from our conclusions already expressed, that the court was not in error in denying the motion for a new trial.

As we find no prejudicial error in the case, the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    HEINTZEN v. GAULT.
    1. Dismissal and Nonsuit — Dismissal of Actions — Failure to Notice Case for Trial.
    Since the adoption of Circuit Court Rule 13, authorizing either party to notice cases for trial, the reason for dismissing actions for want of prosecution upon failure to serve notice of trial, no longer exists.
    2. Same —Excuses for Delay — Summary Proceedings —Justices of the Peace — Appeal.
    Following judgment of ouster in summary proceedings before a justice, defendants appealed, and the complainant filed a bill in chancery to declare the lease under which defendants held possession forfeited. No notice of trial was served in the appeal case during several terms of court, and until after a decree was entered in the chancery case. Also, complainant did not enter her appearance in the circuit court until about nine months had elapsed. Ten days after she entered her appearance, defendant-appellants noticed the cause for trial. Held, that whatever delay occurred was chargeable to complainant’s proceedings in chancery, and, on the merits, a motion to dismiss the appeal in the summary proceedings for want of prosecution was erroneously granted.
    Error to Wayne; Donovan, J.
    Submitted October 15, 1912.
    (Docket No. 88.)
    Decided March 20, 1913.
    Summary proceedings by Ida B. Heintzen against Frank Gault and another for the recovery of possession of real property. From a judgment for complainant, defendants appealed. The circuit court dismissed the appeal for want of prosecution.
    Defendants bring error. Reversed.

      George W. Coomer, for appellants.

      Frank W. Atkinson and Ari E. Woodruff, for appellee.
   McAlvay, J.

Complainant filed her complaint before a justice of the peace of the township of Ecorse, Wayne county, under the statute authorizing summary proceedings for such purpose to obtain possession of certain premises, consisting of a farm of 100 acres, held by defendants under a written lease from complainant, averring that they were unlawfully holding the premises, contrary to the terms of said lease, and that she was entitled to possession. Upon this petition the usual summons was issued, and the case was heard before the justice’s court June 7, 1910, and a judgment rendered in favor of complainant against the defendants. On June 11th following, defendants appealed from such judgment, as provided by statute, and furnished the statutory bond in the penal sum of $1,000, which said appeal, together with said bond, was duly returned by said justice and filed in said circuit court June 25, 1910. An appearance for complainant was not filed and entered in the circuit court until March 21,1911, and on the 31st day of the same month the cause was listed for trial by defendants. ' Between that date and April 15th following (the exact date does not appear), a motion in the nature of a petition was filed by complainant, which was not sworn to, to dismiss the appeal for want of prosecution. No affidavits were filed in support of this motion. The motion was resisted by defendants upon the affidavit of one of their attorneys in the case, showing, among other things, that on June 10,1910, after judgment in justice’s court and before the appeal was returned to the circuit court, complainant filed her bill of complaint in the circuit court for the county of Wayne, in chancery, against defendants, wherein she prayed as part of the relief sought that the court declare defendants to have forfeited the lease of the premises in question, which is involved in the instant case; that defendants demurred to such bill of complaint, and the demurrer was sustained in so far as the prayer for cancellation of the lease was concerned, and the bill allowed to stand as an injunction bill. Thereupon defendants’ attorneys listed the instant case for trial.

On the hearing of such motion, over the objection of defendants, complainant was allowed to testify at length relative to the land, what property defendants had there, that they had vacated the farm, and that she, with a small boy 10 years old, looked after and cared for the premises, to which the court allowed no cross-examination. Her testimony contradicted the statement in her petition that defendants continued in possession of the premises. The result of such hearing was an order and judgment dismissing the appeal for want of prosecution, and the court held that they had abandoned the land and violated the terms of the lease, and remanded the case to the justice’s court for further proceedings. From this judgment the defendants have, by writ of error, removed the case to this court.

Although several errors are assigned, the appellants confine themselves to the proposition that the court erred in dismissing the appeal, and that the final order and judgment of the court is not in accordance with the law.

The defendants had perfected their appeal from justice’s court, and filed the bond required by statute in the penal sum of $1,000. No claim is made that in making such appeal there were any defects or irregularities affecting the jurisdiction of the circuit court. The only ground for the motion of which this court will take cognizance is the claimed failure to prosecute said appeal. In the petition of complainant and her testimony, which the court admitted, but upon which no cross-examination was allowed, and also in the opinion and order and judgment much matter appears which has been presented, but, as it is entirely foreign to the question involved, it requires no consideration.

The question has been passed upon by this court, and it has been held that since the adoption of Circuit Court Rule 13, authorizing both parties to notice cases for trial, the reason for dismissing a case for want of notice no longer exists. Abe Stein Co. v. Wood, 151 Mich. 657 (115 N. W. 1046). See, also, Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495 (87 N. W. 641).

Upon the merits of the motion, it appears that whatever delay occurred is chargeable to complainant by her proceedings on the chancery side of the court. After the demurrer was sustained relative to the cancellation of the lease, and she caused her appearance to be entered, defendants immediately noticed the case for trial. The motion was entirely without merit. The court was therefore in error in dismissing the appeal.

The order and judgment of the circuit court is reversed, and said appeal reinstated.

Steere, O. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    FREEMAN v. LOWELL SPECIALTY CO.
    1. Appeal and Error — Demurrers—Multifariousness. A demurrer to a biE in equity on the ground of multifariousness is special and no appeal lies from an order overruling it.
    2. Partnership — Accounting—Fraud—Corporation. Where complainant and a partner were the owners of a valuable patent which they desired to manufacture and promote, and in order to do so interested two others in the business under a partnership agreement providing for a division of profits, and where two of the partners, after running the business for a time and buying out one of the original owners, proceeded to organize a corporation of the same name as the partnership, transferring to it the patent rights, business, good will, machinery and other assets of the copartnership, without complainant’s knowledge or consent, and where they continued the business, making a profit and increasing its value by the use of the patent, complainant was entitled to an accounting and to recognition of his interest in the corporate assets and business.

      3. Same — Patents—License to Manufacture.
    Patent rights may be held in partnership like other property, the mutual rights and liabilities of the partners being determined by the agreement between the parties and the general law of partnership.
    Appeal from Ionia; Davis, J.
    Submitted October 17, 1912.
    ( Docket No. 126.)
    Decided March 20, 1913.
    Bill by Alonzo O. Freeman against the Lowell Specialty Company and others for an accounting. From a decree for complainant overruling a demurrer to the bill, said Lowell Specialty Company appeals.
    Affirmed.

      Walker & Fitzgerald, for appellant.

      R. A. Hawley, for appellee.
   McAlvay, J.

This is an appeal in chancery of the Lowell Specialty Company, one of the defendants, from an order overruling its demurrer. The facts stated in the bill of complaint and admitted by the demurrer are somewhat complicated. They will be as briefly stated as is possible for an understanding of the case.

On December 10, 1900, complainant and Clarence W.Parks, of the village of Lowell, Kent county, Mich., were the owners as copartners of a certain patentable invention of a new and useful sprayer, known as a fountain- compressed air sprayer, for which there was then pending in the United States patent office an application for letters patent. These parties, being desirous of engaging in the manufacture and sale of said sprayer, but not having the necessary funds for that purpose, entered into a contract in writing with Watts and Look, two of the defendants herein, to form a copartnership with them for that purpose, under the firm name and style of Lowell Specialty Company. This contract reads as follows:

“This agreement, made this 10th day of December, 1900, by and between William A. Watts, Dexter G. Look and Clarence W. Parks, of Lowell, Kent county, Michigan, and Alonzo O. Freeman, of Ionia, Ionia Co., Michigan, witnesseth: That the said parties hereto do hereby form and enter into a copartnership under the name and style of the Lowell Specialty Company for the period of the life of the patent hereinafter mentioned for the purpose of the manufacture and sale of the Fountain Compressed Air Sprayer and the Large Compressed Air Sprayer for fruit trees, invented by the said Clarence W. Parks and in which said Freeman now owns a one-half interest, and upon which invention application has been made for letters patent, which application is now pending, and for the manufacture and sale of any other article that may hereafter be invented and patented by said Clarence W. Parks upon the terms and conditions herein provided.
“Said Watts and Look are to furnish and contribute whatever funds and capital they may deem necessary to the proper conduct, handling and pushing of said business, and they are to have the full control and management of said business and of the manufacture and sale of said sprayer without interference or hindrance from said Parks and Freeman, or either of them; and they are to conduct and push the same as to them shall seem best; and it is expressly agreed that said Parks and Freeman nor either of them, shall make any contracts nor incur any obligations or do any business for or on behalf of said firm without the written consent of the majority of the interests of said firm upon the basis hereafter provided; and in case they, or either of them, disregard or violate this provision, their interests in said patents assigned to said firm shall be held by said firm to protect and reimburse it for any loss, liability or damage to which said firm shall be subjected on account, and their share of the profits to be applied to the same thereof; and as between the parties hereto said Watts and Look shall be solely responsible for the payment of. all obligations incurred by said company; said Parks and Freeman are to furnish and contribute said inventions and patents, and they are and hereby agree to assign to the parties hereto as members of said firm said patents when issued in proportion to their respective interests in the firm hereinafter designated ; the interests of said parties in said partnership are to be and are hereby divided: William A. Watts, twenty-five and one-half per cent. (25£%);. Dexter G. Look twenty-five and one-half per cent. (25£%); Clarence W. Parks twenty-four and one-half per cent. (24£%); and Alonzo O. Freeman twenty-four and one-half per cent. (24J%); and the proceeds accrued upon said partnership and its business shall be divided as follows: (1) The operating expenses of every kind and nature made or incurred in the conducting of said business shall be paid; (2) the cost of building and fitting up an office in case the same shall be determined upon by said firm; (3) any salary or compensation to any of the copartners which may be hereinafter agreed upon and provided; (4) the moneys and funds contributed from time to time by said Watts and Look or so much thereof as shall not then be invested in stock, accounts or notes receivable shall be paid back subject to the agreement upon their part hereinbefore made to contribute such funds and moneys as they shall deem necessary for the conduct of such business ; (5) after the payment of expenses and other moneys as herein provided, the profits remaining and accruing from said business shall be divided among the members of said copartnership in proportion to their respective interests therein, as hereinbefore specified, said profits to be ascertained and said division made at the close of each year’s business and on or as near as may be the first of January of each year.
“It is agreed by said Clarence W. Parks that any inventions that he may make during the life of this agreement or such of them as said firm shall determine may be manufactured and gold by said firm, and he will assign to said Watts and Look at their request 51 per cent, of his right, title and interest in and to said inventions and the letters patent that may be granted therefor; and that the manufacture and sale of the same shall be carried on and conducted by said firm upon the same terms and conditions herein provided except that the said Alonzo O. Freeman is to have no interest therein; and that said Parks is to have 49 per cent, interest in said business and the profits thereof, and said Watts and Look fifty-one (51) per cent., and in all other respects the manufacture and sale of said new inventions are to be conducted in the same manner as herein provided for said sprayer. It is agreed, however, by said company, that they shall pay the necessary expenses for the making of the models and the obtaining of the patents for such of said inventions as they may choose to handle upon the terms aforesaid. And the said Alonzo O. Freeman does hereby expressly consent to the said Lowell Specialty Company manufacturing and selling said new inventions and conducting the necessary business therefor under said name and style as herein provided, and waives all interest in or to that portion of said business or the proceeds thereof.
“It is expressly agreed that all differences and questions that may arise between the members of said firm or any of them with relation to this contract and the matters growing out of the same and the conduct of said business shall be governed and determined by a majority vote of the interests of the parties hereto, each member voting his interests upon the basis and according to the per cent, herein given; and it is further authorized that any of said parties shall have the right to authorize any other party hereto to act as his proxy in voting his interest upon such questions. And said Parks and Freeman, each for himself, do hereby give and grant to said company, its successors and assigns, the exclusive right to manufacture and sell said sprayers within the United States and every State, territory and part thereof, including Cuba, Porto Eico and the Philippines for and during the term of life of the patent or patents to be granted upon said invention, and of any patents that may be hereafter granted upon the same, or any improvement thereof, and the said Clarence W. Parks doth hereby give and grant to said firm a like exclusive right in such of said inventions hereinafter made and patents hereinafter obtained by him as said firm shall choose to manufacture as hereinbefore provided. Said Watts and Look reserve, and they are hereby given the right to discontinue and go out of the manufacture and sale of said sprayers and said other inventions and articles in any year at the time of the annual accounting and settlement provided for in this contract, and in case they shall determine so to do, then said Parks and Freeman and both of them shall be thereby released from this contract, and shall thereafter have the right to handle and dispose of and sell said sprayers and said patents as they may see fit, and said Watts and Look will thereupon reassign to them or either of them, their representatives and assigns, all right and title that they may have in and to said patent. Said Parks and Freeman to have a proportionate interest in any fixtures, buildings or property paid for out of the net profits of said company.
[Signed] “William A. Watts,
“Dexter G-. Look,
“Clarence W. Parks,
“Alonzo O. Freeman.”

The parties, in pursuance of this contract, at once entered upon its execution as a copartnership according to its terms. Upon the application above mentioned by complainant and Parks, letters patent were issued to them December 8,1901, and a copartnership interest in said letters patent was thereupon assigned and transferred by complainant and Parks to Watts and Look, according to the copartnership agreement. Watts and Look had the entire and sole management of the business of the copartnership, kept all the books in relation thereto, and had entire control thereof, rendering no account of said management and control or of the profits to complainant and Parks until June 30, 1903, at which time they claimed that, after payment of all costs, charges, and expenses of the management of the business, including a salary to each of them of $1,500, there was a net profit of $380; that complainant and Parks objected to the payment of salaries, but these defendants exacted the same from the concern against their protest.

On October 13, 1903, Clarence W. Parks, as was contemplated by the contract in writing made on that date between Watts, Look, and the complainant, withdrew from said copartnership, selling out his interest to defendants Watts and Look, and thereafter he ceased to be a member of said firm and to have any interest therein. This contract reads as follows:

“ The agreement made this 13th day of October, 1903, by and between William A. Watts and Dexter G. Look, of Lowell, Michigan, and Alonzo O. Freeman, of Ionia, Ionia county, Michigan, witnesseth: That whereas said first parties are about to purchase from Clarence W. Parks, of Lowell, all of his right, title and interest in and to the copartnership known as the Lowell Specialty Company and in and to the patent of the Fountain Compressed Air Sprayer and the Large Compressed Air Sprayer mentioned in the annexed agreement, and all of his right, title and interest in and to certain other inventions and patents. And whereas the said Watts and Look are to continue the business of said Lowell Specialty Company under the same name and style: Now, therefore, this agreement witnesseth that the said Alonzo O. Freeman, the second party hereto, doth hereby consent to the purchase by said Watts and Look of all rights, interests and titles of said Parks as aforesaid, and to the continuance of said business under the said name and style as aforesaid, and doth further consent to the manufacture or sale on commission or otherwise by said Lowell Specialty Company of other kinds and lines of articles and manufactures such as said Watts and Look shall from time to time see fit to add to or take on in said business of said company, without the participation or sharing by the said Freeman in the proceeds or profits of said company or the manufacture or sale of said articles, except that the said Freeman retains his interest in said patent of the Fountain Compressed Air Sprayer and in the patent therefor and of the profits and proceeds in the manufacture and sale thereof by said company to the same extent as provided for in said annexed contract of date of the 10th day of December, 1900. In witness whereof we set our hands and seals to the above written.
[Signed] “ William A. Watts. [L. S.]
“Dexter Q. Look. [L. S.]
“Alonzo O. Freeman. [L. S.]”

After this agreement was entered into, said copartnership known as the Lowell Specialty Company, composed of complainant and the defendants Watts and Look, continued the manufacture and sale of these sprayers and built up a large business from which large profits accrued to said firm during the years ending June, 1904, and June, 1905; that the two defendants named had sole and entire management thereof and kept all the books relating thereto, but both of them since June 30, 1903, refused to account to complainant for his share in the profits of the business and have refused to permit him or any person for him to examine the books of the firm to see the condition of the business. Since that time they have also refused and neglected to pay him or any one in his behalf any money whatever as profits upon said business, and still refuse so to do, and they have made false statements relative to the condition of said business, with intent to cheat and defraud complainant.

The bill of complaint further shows: That on June 24, 1905, without the knowledge or consent of complainant, and against his will when he became aware of the fact, defendants Watts and Look proceeded to organize and did organize defendant corporation known as the Lowell Specialty Company, of Lowell, Mich., and filed articles of association on that date with the secretary of State, as provided by law; that the business of said corporation, as expressed in its articles of association, among other things, was:

“ To carry on a general manufacturing and mercantile business, including the manufacture and sale * * * of sprayers * * * and to purchase, own or lease any and all real estate, buildings, plant, machinery, offices, and other property proper for the conduct of said business.”

This business was to be carried on and its principal office kept at the village of Lowell, Kent county, Mich. Its capital stock was $40,000, divided into shares of $10 each, of which defendants Watts and Look each owned and held 1,100 shares, being a majority of such stock. The amount of the capital stock paid in, as stated in its articles of association, was $20,850, of which $1,800 was cash and $19,050 in other property, consisting of real estate valued at $5,500, patent on cream separators, valued at $2,200, and “machinery, tools, fixtures, benches, office furniture as per inventory of the Lowell Specialty Company (a copartnership), of Lowell, Michigan, including the good will, at the value of $11,850.” The appellee further alleges that this corporation, its officers and agents, well knew and were chargeable with knowledge of the fact of the copartnership agreement between complainant and Watts and Look, and of complainant’s rights and interest in said copartnership and in the business of manufacturing said Fountain Sprayer, and the profits arising therefrom, and in the patent; nevertheless the corporation and defendants Watts and Look immediately commenced, and ever since have continued, the business of the manufacture and sale of these sprayers and have derived large profits therefrom and still continue so to do; that a large part of the business of the defendant corporation and a large portion of its profits are derived from such manufacture and sale of these sprayers.

The bill further shows that, since the organization of the corporation defendants Watts and Look have entirely abandoned said copartnership known as the Lowell Specialty Company, against the will and without the consent of complainant, entirely ignoring his rights under the copartnership contract, and claiming that he has no right as against them under said contract, and have refused to assign and transfer to him the patent for the said Fountain Compressed Air Sprayer, as provided in the co-partnership contract, and have refused, and still continue to refuse, to account to him in any wise for the profits of the manufacture and sale of such sprayers by the corporation or to give him any information relative to the profits, claiming that he has no right to any information in regard thereto; that he has from time to time made application to the officers and agents of said corporation for information as to the number of such sprayers manufactured and sold and the profits accruing to it therefrom, but that he has always been refused any information in that regard and any opportunity to examine the books of said corporation to ascertain such facts. He alleges that, if all of these defendants were to account for their receipts in respect to said copartnership transactions and all the profits since the commencement of such copartnership, it would show that large profits had been made during the years 1903, 1904, and 1905, and during each year since the organization of said corporation from the manufacture and sale of these sprayers; that a large balance is due complainant from all the defendants for his share of said profits.

The bill prays for an accounting of all copartnership dealings and transactions from its commencement in respect to the manufacture and sale of such sprayers with the defendants Watts and Look, and also with the defendant corporation, the Lowell Specialty Company, since its incorporation, and that they be decreed to pay him whatever an accounting between these parties will show should be paid to him. There is also a prayer for an injunction restraining the defendants, and each of them, from manufacturing, selling, or offering to sell any such sprayers, or sprayers of like character, and from selling, disposing of, or assigning or attempting to sell and dispose of, or using or attempting to sell, dispose of or use, the letters patent for said Fountain Compressed Air Sprayer or any interest therein. There is also a prayer for general relief.

All of the defendants to the bill of complaint filed separate demurrers which were overruled. The Lowell Specialty Company alone appeals to this court from the order overruling its demurrer. Such demurrer is based upon two principal grounds: First, that the bill is multifarious ; and, second, that the bill discloses upon its face that the defendant corporation, the Lowell Specialty Company, manufactured and sold such sprayer, if not as a part owner, as licensee in law and in fact of the co-owners of the sprayer patent Watts and Look, and that as such licensee said defendant is not liable to account to complainant, the other co-owner of said patent.

A demurrer on the ground of multifariousness is special. The statute which made provision that an appeal could be had from an order overruling a demurrer was limited in terms to orders overruling general demurrers, and therefore no appeal lies from an order overruling a demurrer for multifariousness. Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059); Case v. Longyear, 168 Mich. 434 (134 N. W. 459); Graham v. Graham, 171 Mich. 307 (137 N. W. 153).

The remaining contention upon this demurrer is that this defendant is not liable to account to complainant because the manufacture and sale of these sprayers by it, if not made as a part owner, of the patent, was made as licensee in law and in fact of Watts and Look, who were part owners.

In considering this contention the fact must be kept constantly in view that all of the material allegations contained in the bill, which are well pleaded, are admitted by this demurrer. Therefore no further investigation of the case is necessary than to ascertain whether or not a cause of action against these defendants is stated in the bill of which a court of equity would take cognizance.

We find early in the bill of complaint the statement that on the 10th day of December, 1900, complainant and Clarence W. Parks were the owners as copartners of a certain patentable invention of a new and useful sprayer known as a fountain compressed air sprayer. It appears that this is the sprayer upon which these parties later received letters patent, «and the sprayer and letters patent are both the subject-matter of the contract which was entered into on that date. In that contract, which was a contract of copartnership, to be carried on, under the name and style of the Lowell Specialty Company, for the period of the life of the patent, upon which an application was pending, complainant and Parks agreed to furnish and contribute such invention and patent to said copartnership and to assign to the parties as members of such copartnership such patent when issued in proportion to their respective interests, which were designated as follows: William A. Watts, 25%%; Dexter G. Look, 25%%; Clarence W. Parks, 24%%; and Alonzo O. Freeman, the complainant, 24%%. That the patent issued and a copartnership interest in the letters patent was duly assigned and transferred by complainant and Parks to the defendants Watts and Look, in accordance with the terms and provisions of the copartnership agreement, Watts and Look reserving the right to withdraw in any year at the time of the annual accounting and agreeing that if, as provided in the contract of copartnership, they desired to withdraw, they would reassign to the complainant and Parks, or either of them, their representatives or assigns, all the right and interest they might have in and to said patent.

The relations of Parks and complainant toward each other in this patent, which was issued to them, was that of copartners, and as such copartners they assigned and conveyed to defendants Watts and Look a partnership interest as members of the copartnership, known as the Lowell Specialty Company, composed of these four individuals. It further appears by the later agreement of October 13, 1903, that complainant consented to the purchase by defendants Watts and Look of the interest of Parks in and to the copartnership known as the Lowell Specialty Company and his interest in and to the patent for the sprayer; Watts and Look to continue the business under the same name and style, the complainant to retain his interest in the patent and in the profits and proceeds arising from the manufacture and sale of sprayers by the copartnership, as provided by the original partnership agreement of December 10, 1900, annexed to the second agreement. Thereafter Parks ceased to be a member of the copartnership or to have any interest in the business and profits arising therefrom. By this transfer Watts and Look acquired the interest of their copartner Parks in the patent, and thereafter there existed between them and complainant the same relationship as formerly existed between complainant and Parks in their relation to the patent and their rights under it, thereby emphasizing their obligations and duties towards complainant as copartners.

Later, without the knowledge or consent of complainant, defendants Watts and Look organized this corporation, of which they took a controlling interest. They gave it a name the same as the name of the copartnership of which they were members. In the articles of co-partnership it is stated that the capital stock paid in was the sum of $25,850, and this defendant corporation, among other things, received “machinery, tools, fixtures, benches, office furniture as per inventory of the Lowell Specialty Company (a copartnership) of Lowell, Michigan, including the good will, at the value of $11,350.” All of this property, which is more than half of the entire amount of the capital stock paid in, belonged to the copartnership. This demurring defendant will not be permitted to say that it had no knowledge of the existence of the copartnership, or that this property was not received by it and retained as its property.

This corporation was organized by two of the members of the firm, who had full knowledge of both of the contracts, and the corporation has taken, without authority, the copartnership property of great value, and has manufactured and sold these sprayers, which was a right which the copartnership possessed as partnership property, and profited thereby. Complainant had a valuable interest in all of this property taken over by the defendant corporation, and in the good will of the partnership and its business. Under this state of facts, we do not hesitate to say that complainant is entitled to an accounting with this defendant by reason of the fact that this patent as well as all the other property was partnership property, which came into the possession and use of this defendant, and for which no accounting has been made to complainant by any of the defendants.

It is well settled that:

“ Patent rights may be held in partnership like other property, the mutual rights and liabilities of the partner being determined by the agreement of the parties and the general law of partnership.” 22 Am. & Eng. Enc. Law (2d Ed.), p. 416; citing Freeman v. Freeman, 136 Mass. 260; s. c., 142 Mass. 98 (7 N. E. 710).

See, also, Noble v. Joseph Burnett Co., 208 Mass. 75 (94 N. E. 289).

Complainant by his bill of complaint has stated a cause of action against all of the defendants, which entitles him to relief in a court of equity.

The order and decree of the circuit court in overruling this demurrer is affirmed, with costs. This defendant will be given the time provided for by rule to answer the bill of complaint.

Steere, C. J., and Moors, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    SQUIRES v. MILLER.
    Error to Ingham; Wiest, J.
    Submitted October 11, 1912.
    (Docket No. 33.)
    Decided March 20, 1913.
    Case by Clyde Squires by his next friend against the Michigan Bonding & Surety Company for the unlawful killing of plaintiff’s father while under the influence of intoxicants sold by a liquor dealer for whom defendant was surety. Judgment for defendant. Plaintiff brings error.
    Reversed.

      William M. Smith, for appellant.

      A. F. Bunting, for appellee.
   McAlvay, J.

The questions involved in this case are identical with those passed upon by this court in the case of Squires v. Miller, reported in 173 Mich. 304 (138 N. W. 1062).

The judgment is therefore reversed, and the case remanded to the trial court, with directions to enter judgment in accordance with the conclusions in the opinion in that case.

Steers, C. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: McAííVAY, J.

text:
    GARLINGHOUSE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Railroads—Negligence.
    Plaintiff as car repairer in defendant’s service was injured while making repairs on cars on defendant’s tracks and brought suit claiming that, on the occasion in question, he had objected to doing the particular work because it was dangerous, and the foreman had assured him he would be taken care of, that he relied on the assurance of the foreman, understanding that a man would be sent to act as a lookout and to warn him of the approach of any engine. His testimony showed that he knew the place was dangerous, that no one was in fact sent to protect him. A rule of defendant required car repairers not to work between cars where injury might occur without displaying a blue flag by day or blue lights by night. He violated the rule but claimed it had not been explained to him although his signature was exhibited upon a statement that it had been read and explained to him and a copy left in his possession; plaintiff denied that he read it or received a copy. Defendant presented a request to charge, which was given, covering the facts as presented in plaintiff’s testimony and charging that if plaintiff was willing to' assume the risk, knowing of the foreman’s failure to furnish the promised protection, he could not recover. The court modified the effect of this instruction by further stating that if the jury found the facts as claimed by plaintiff, and that he relied on the assurance of the foreman, the doctrine of assumed risk would not apply and plaintiff could recover if he was free from negligence unless the danger was obvious and a prudent man would not have incurred it under the same circumstances. Held, that the modification was contradictory of defendant’s request which stated the correct theory applicable to the case.

    2. Same — Fellow-Servants—Trial—Directed Verdict.
    The court erroneously refused a request of defendant that the foreman was a fellow-servant of plaintiff where he had supervision of car repairers with power to discharge them, sometimes worked with them and his duties were of a delegable character.

      3. Same — Violation of Rules.
    Since there was no evidence on plaintiff’s part that defendant’s officers having the management or the making of rules, knew that the rule had been habitually violated, the trial court erred in leaving to the jury the question whether defendant had enforced the rule governing the display of a blue flag.
    Error to Washtenaw; Kinne, J.
    Submitted April 15, 1912.
    (Docket No. 151.)
    Decided March 20, 1913.
    Case by Frank W. Garlinghouse against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      J. F. Lawrence {T. D. Kearney, of counsel), for appellant.

      A. J. Sawyer & Son and Arthur Brown (E. B. Sunderland, of counsel), for appellee.

        Volenti non fit injuria as a defense, see note in 48 L. R. A. 542.

       Vice principalship considered with reference to the rank of the superior servant, see note in 51 L. R. A. 513.
      Vice principalship as determined with reference to character of act causing injury, see note in 54 L. R. A. 37.

   McAííVAY, J.

Plaintiff brought suit against defendant to recover damages for injuries received while he was in the employ of defendant in its railroad yards at Jackson as a car repairer, resulting in the loss of his right hand. Such injuries were claimed to have been caused by the negligence of defendant. A trial resulted in a verdict in favor of plaintiff of $10,319.89, upon which judgment was rendered. The excess of this judgment over $10,000, stated in the ad damnum clause of the declaration, was remitted by plaintiff. Defendant has brought the case to this court for review upon writ of error.

Before considering the errors assigned and relied tipon by the appellant, a brief statement of the material facts in the case is required for a proper understanding of the questions discussed.

Plaintiff, at the time he was injured, on October 25, 1907, was 31 years of age. He had attended the ward schools in Ann Arbor for about eight years, and one year in the high school. After leaving school, he worked for the Michigan Milling Company for four years. His first work about defendant’s business was voluntary work done in the repair sheds at Detroit for a few days for the purpose of learning how to do repair work, during which time he watched and assisted in making repairs upon cars. From there he went to Ann Arbor and was employed by defendant from October, 1901, to October, 1903, as a car repairer and car inspector. He then worked at the University of Michigan for three years, doing pipe fitting and plumbing, and later worked for a cement block company in Jackson. His next work for defendant followed an application he made early in October, 1907, to Mr. Downs, car foreman at Jackson, Mich., in which he stated that from his experience he considered himself competent to act as a car inspector. He was employed by Downs as a car repairer until a place as car inspector would be open for him. His signature to a special notice to foremen and car repairers, given below, fixes the date as October 4, 1907. He entered upon such employment and so continued until the date of his injury, which occurred October 25, 1907; such work being carried on upon what is called in the record “ the repair tracks.” On the day last mentioned, a string of 25 or 30 cars was standing on one of the tracks in the yard of defendant. Plaintiff was requested by Downs, car foreman, to look the cars over and see if any of them had broken safety devices.

Plaintiff claims that he objected to doing this work upon the tracks in the yard because it was dangerous, as he had often seen 25 or 30 engines working in the yards switching cars from one track to another; that trains were made up there, and flying switches were made with cars; he further claims that the car foreman told him that he would see that he was taken care of; that he relied upon his statement that he would be protected; that he understood that this protection meant that the car foreman would send a man or men with him to stand alongside the cars and notify him of the approach of an engine with cars ■which would put him in danger by moving the cars where he was working. He testifies that he went to the cars as ordered; that no one went with him, and he saw no one at or near the cars to protect him; that he proceeded to inspect these cars and found on one of them a broken knuckle lock; that he then went back on the tracks and found a lock with which to replace the one broken; that he went in between the two cars, which were about eight or ten inches apart, and, while at work fixing the knuckle lock, an engineer backed some cars down the track upon which he was working and bumped into the car and injured him. According to plaintiff’s testimony, Mr. Downs, the car foreman, had charge of the car repairers, and had authority to hire and discharge men.

At the time of his hiring, plaintiff signed, at the request of the car foreman, the following special notice:

“To Foremen and Car Repairers: Car repairers and other employes of this department, who have occasion to work on (or) about cars, are strictly forbidden to commence work on any car, the nature of which might require them to place themselves in a position on, under or about the car, whereby its movement on the track could result in injury to them, without first properly protecting said car with a blue flag or flags by day, or blue lights at night. Any empíoyé disobeying the above order will be liable to instant discharge. Foremen are instructed to rigidly enforce the above order, and to keep a supply of blue flags and lanterns for that purpose constantly on hand. Foremen are also instructed to provide each of their car repairmen with a copy of this notice, to fully explain it to them and to procure their acknowledgment thereof on this blank.
“D. R. MacBain,
“ Acting Sup’t Motive Power.
“ The above notice has this day been read and explained to me by J. T. Downs and a copy of it left in my possession. I agree to observe carefully the instructions contained therein. Signed at Jackson this 4th day of Oct. 1907.
“ Frank W. Garlinghouse. ”

Plaintiff admits that he signed this notice, but denies that a copy was given to him, or that it was explained or read to him, or ever read by him. There is evidence in the case which sharply contradicts plaintiff upon this proposition, and also upon his claim that the car foreman promised to protect him when he went to work on these cars.

The first contention of appellant is upon the question of the assumption of risk and contributory negligence on the part of plaintiff, under which are grouped several assignments of error. It is claimed by defendant that plaintiff was an intelligent and experienced man, and to a certain degree acquainted with work of the kind to which he was assigned on the day of his injury, although it is not claimed, nor does the record show, that he had before worked in yards as extensive as those of defendant at Jackson. Defendant contends that, from plaintiff’s own testimony, he thought, when directed to do this work, that this was a dangerous place, knew that there were numerous engines handling cars in the yard, and knew that nobody went with him or was present at the track, upon which these cars stood, to protect him from injury which might arise if the cars were disturbed while he was at work. Therefore, under such circumstances, he assumed the risk and was guilty of contributory negligence.

It is insisted that the circuit judge erred in coupling with a request of defendant, which he gave, other instructions which were contradictory of such request and erroneous. The request was as follows:

“ The plaintiff has sworn that Mr. Downs, the car foreman, agreed to protect him in his work in the yards. He also swore that the protection which should have been furnished him was to have had a man near by him to have notified him of the approach of any cars from either west or east. The plaintiff’s testimony shows that no such man was present, and he knew it, and, even though Mr. Downs had promised the protection that plaintiff claims, nevertheless, if the plaintiff was willing to assume, and did assume, the risk, knowing that the proteotion was not furnished, he was guilty of negligence and cannot recover.”

Following this the court stated at length the claims of plaintiff according to a request claimed to have been presented by plaintiff, and continued by giving the portion of the charge claimed to be contradictory to the defendant’s request already given, as follows:

“ It is the further claim of the plaintiff that his case •does not come within the purview of the doctrine of the -assumption of risks, but that he had a right to rely for a reasonable time, and to a reasonable extent, upon the statement of Mr. Downs that he would take care of him, or that he would be taken care of, and that it was just as safe to do the work where directed as upon the repair track. And in this connection, with regard to this claim of the plaintiff, I instruct you that, if you find from the evidence in this case that the facts are as claimed by the plaintiff, then the doctrine of assumption of risks does not apply, and the defendant will not be excused from responding to the plaintiff for the damages that he has sustained upon the ground that the plaintiff assumed the risks of his employment, provided you find that plaintiff was not guilty of contributory negligence, and that he was otherwise free from fault on his part, or unless you find from the evidence that the danger was so obvious and apparent that a man of plaintiff’s experience ought to know of it and refuse to put himself in the position that he was in when hurt.”

This request of defendant was based upon the testimony of plaintiff from the facts claimed by him to exist at that time. The portion of the charge last quoted is contradictory to the request of defendant already given. It was error to give this portion of the charge objected to.

Error is assigned upon the refusal of the court to give the following request to charge:

“Under the testimony in the case, J. T. Downs, the car foreman at Jackson, was a subordinate and was serving the same master and working under the same control and deriving his authority and compensation from the same common source as the plaintiff, and though his grade and the grade of the plaintiff might be slightly different, nevertheless the plaintiff and Mr. Downs were fellow-servants, and the plaintiff cannot recover.”

The record shows that Downs was a car foreman, having control of the car repairers, and, according to plaintiff’s testimony, hired and discharged men, which we may assume to have been the fact, as it is not contradicted. It would appear that he had the supervision and charge of car repairers upon the yard tracks as well as on the repair tracks, and that he sometimes worked with them. His duties, as far as shown by the record, were delegable duties of a limited character. He is one of the class mentioned in the notice to foremen and car repairers, above given, being an employe of the company under the superintendent of motive power, car department, of the defendant company. Under previous decisions of this court, plaintiff and Downs were fellow-servants; and taking the testimony of plaintiff as true, relative to the neglect of Downs to keep the promise given to him to protect him while at work, such negligence would be the negligence of a fellow-servant. McCauley v. Railroad Co., 167 Mich. 230, 236 (132 N. W. 510), and cases cited. The court erred in refusing to give this request of the defendant.

There was evidence in the case on the part of plaintiff tending to show that the rule given in the “ notice to foremen and car repairers,” relative to protecting the car with a blue flag by day and a blue light by night, had not been complied with to a considerable extent by the workmen; and the court charged the jury that, in case the defendant had not enforced the rule in relation to placing flags for the protection of workmen, plaintiff would be entitled to recover. Upon this charge, error has been assigned. There is no evidence that the defendant’s officers, who manage or make the rules, knew or. ever heard of the violation of this rule. The evidence in the case did not warrant the instruction given. Jones v. Railroad Co., 168 Mich. 1, 9-14 (133 N. W. 993). By reason of our conclusions already given, it is not necessary to discuss the further questions presented.

The judgment of the circuit court is reversed, and a new trial ordered.

Steere, C. J., and Moore, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.