text:
    CONANT v. STONE.
    ■1. Wills — Conditions Precedent — Devise in Restraint of Marriage — Public Policy.
    A devise of a life estate to testator’s son, with the use of the income of testator’s estate for life, or so long as the son continued to live with his wife, but in case of her death or a legal separation the son to have the fee simple, created a life estate, which terminated with the death of the son who continued to live with his wife, until his decease, and the title in fee simple never vested, for the reason that the condition was not complied with.
    2. Same — Estates of Decedents.
    Whether the condition was void as against public policy, or valid, the terms of it were not fulfilled and the estate did not pass by the will.
    3. Same — Life Estate — Descent.
    Where testator made no gift of the fee in case the son continued to live with his wife, the remainder vested in his heirs as a part of decedent’s estate, and the son, being sole heir, took the fee: nor was this result prevented by the fact that decedent indicated by his will that he purposed to aid his son but not the wife, and having made no attempt to convey the fee to his grandson or any one else on breach of the condition, title could not be held to have vested in- the only grandchild of testator.
    4. Same.
    And a clause requiring the executors to convert the estate into income bearing securities within seven years, not having been acted upon, became inoperative after the decease of testator’s son within a few weeks following his own death.
    Appeal from Osceola; Withey, J.
    Submitted October 11, 1912.
    (Docket No. 50.)
    Decided September 30, 1913.

      Bill by David W. Conant and others against George P. Stone and others for the construction of the will of Milton L. Rice, deceased. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      J. J. Tweddle, for complainants.

      George P. Stone and McCall Bros., for defendants.
   Bird, J.

The complainants filed the bill of complaint in this cause to secure the aid of the court in construing the last will and testament of Milton L. Rice. The testator executed his will on the 14th day of April, 1911, and passed away on the 20th day of May following. The will was admitted to probate without objection. The testator left him surviving one son, George Willey Rice. The son died a month later. The son left him surviving a widow, Lizzie Rice, and a son, Rex R. Rice, by a former wife. The estate left by the testator consists of real estate of the value of $5,000 and upwards and a small amount of personal estate. The personal estate will be exhausted in the administration of the estate and the payment of legacies. The questions presented for construction arise in the third, fourth, and ninth paragraphs; no question being raised to the other bequests. These paragraphs are as follows:

“Third. I give, devise and bequeath to my son, George Willey Rice, of Park Lake, Mich., the use and income from my estate after all debts, expenses and special bequests as provided for in this will are paid and discharged. My said son to have the use and income from said estate so long as Lizzie Rice, his present wife, remains as his legal wife, but in case of her death or in case of a legal separation and divorce, from my said son, I then give, devise and bequeath to my said son and to his heirs and assigns forever, said above mentioned interest in my estate.
“Fourth. I further provide and direct that my son above named, shall not assign or transfer the income from my estate as above provided, but that the money therefrom shall be used by him for his personal needs and benefit as the same shall become due, and in case my son assigns or transfers said income from the respective shares of my estate as above provided for, that immediately thereupon, all further rights, title and interest that he might then have under the provisions of this will, or that might afterwards become vested, shall cease and be cut off entirely. Said income to be paid to my son by executors once each year.”
“Ninth. I further provide that any and all real estate that I may die possessed of, shall be sold by executors on or before seven years from the time of my death, and the proceeds invested in several securities so that the income from all my property may be secured to the best advantage for my son above named.”

The real contest is between the widow, Lizzie Rice, and the son, Rex R. Rice. The complainants contend that, under these provisions of the will, the son, George Willey Rice, received a life interest only, with a fee simple in expectancy based on the contingency of his living separate from his wife, Lizzie. As he never ceased living with her, the estate in fee never vested in George but fell upon Rex by implication under the will.

It is the claim on behalf of the defendants that the condition annexed to the devise of the fee was void as being against public policy, and. therefore the entire estate passed at once to George upon the death of the testator. It is further contended that, if the fee did not vest in George by virtue of the will, it became intestate property, and he as sole heir took title thereto under the statute. If either one of these contentions prevail, the widow, Lizzie, is entitled to her dower interest in the real estate.

The question as to whether the condition annexed to the gift of the fee was void by reason of its holding out an inducement to George to separate from his wife, is one with which we need not concern ourselves. Had the gift of the fee been a present devise with a subsequent condition annexed thereto, it would have been of more importance, and the case of Conrad v. Long, 33 Mich. 78, would have been helpful in settling the law of the case. But the devise of the fee under consideration was not a present one; neither was the condition annexed a subsequent one. It was a condition precedent, a condition that was to be complied with before the fee would vest in George: A separation by death or divorce must take place before the fee would vest in George, according to the terms of the will. If it were a condition precedent, it would be of no importance that the condition was void. Whether void or valid, the fee would not vest until the condition was complied with. 2 Pomeroy’s Equity Jurisprudence (3d Ed.), §933b; 1 Story’s Equity Jurisprudence, § 289; 16 Cyc. p. 607; Phillips v. Ferguson, 85 Va. 509 (8 S. E. 241, 1 L. R. A. 837, 17 Am. St. Rep. 78); Ransdell v. Boston, 172 Ill. 439 (50 N. E. 111, 43 L. R. A. 526).

Pomeroy’s Equity Jurisprudence, supra, states the rule as follows:

# “It is ordinarily said that all conditions annexed to gifts which prohibited marriage generally and absolutely are void and inoperative. This, however, is a very inaccurate mode of statement, since a condition precedent annexed to a devise of land, even if in complete restraint, will, if broken, be inoperative and prevent the devise from taking effect. With this limitation all conditions in general restraint are void.”

The testator made no gift over of the fee in the event that the condition was not complied with. Inasmuch as the condition was not complied with, it follows that the fee went into testator’s estate and must be disposed of by the statute. George being his sole heir, the title thereto would pass to him. Southgate v. Karp, 154 Mich. 697 (118 N. W. 600).

The testator gave evidence in the provisions of his will that he was desirous of aiding his son George, but that he wanted to effectuate that desire in such a way as not to aid Lizzie, the wife. From this and the further fact that the testator must be presumed to have known that, if the condition was not complied with, he would die intestate as to such part of his property, and it would pass to his grandson, Rex R. Rice, it is argued that the fee passed to Rex under the will by implication. In view of the fact that the testator does not even mention Rex in his will and that he made no ineffectual attempt to dispose of the fee to Rex or to any one else in the event that it failed to vest in George, we think that argument must fail. In re Donges’ Estate, 103 Wis. 497 (79 N. W. 786, 74 Am. St. Rep. 885). Our conclusion is that George took a life estate by the will' and that the fee was cast upon him under the statute.

Since no step was taken by the executors to exercise the power conferred by the ninth paragraph before the decease of George, that paragraph has now become inoperative.

The decree of the chancellor will be modified in accordance with this opinion. The defendants will recover their costs out of the estate.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEQUIGNOT v. GERMAIN.
    Master and Servant — Contributory Negligence — Infancy— Statutes.
    Evidence that plaintiff was 16 years old at the time he was injured, that he had been employed in work at the saw which caused the injuries on numerous occasions previously, that the saw was guarded but the guard had been left up so it did not protect plaintiff, that although it was not necessary to bring his hand, nearer than three inches from the saw, in pushing a piece of soft lumber through it, he received an injury to his hand which, his testimony tended to show, resulted from the saw striking a knot and from plaintiff’s failure to release the pressure in time to avoid having his hand forced against the saw, required the direction of a verdict for defendant on the ground that plaintiff was guilty of negligence contributing to his injuries.

    Error to Saginaw; Gage, J.
    Submitted April 9, 1913.
    (Docket No. 11.)
    Decided September 30, 1913.
    Case by Willard Pequignot, by his next friend, against Edward Germain for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Weadock & Weadock, for appellant.

      A. Elwood Snow, for appellee.

       The question whether one employing child under statutory age may rely on contributory negligence to defeat liability for personal injury to latter, is treated in notes in 12 L. R. A. (N. S.) 461 and 20 L. R. A. (N. S.) 876. And as to presumption and burden of proof as to capacity of minor servant to comprehend and avoid danger, see note in 29 L. R. A. (N. S.) 487.

   Moore, J.

The plaintiff, a minor, by his next friend, brought suit under Act No. 220 of the Public Acts of 1911 (2 How. Stat. [2d Ed.] §4017 et seq.), prohibiting the employment of male persons under the age of 18 years at hazardous employment, to recover damages for the cutting off of the first and second fingers of his right hand at about the middle joint. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

At the conclusion of plaintiff’s testimony, and again at the close of all the testimony, defendant asked for a directed verdict, which was refused. Counsel for appellant in the brief say:

“The errors complained of are because of rulings on the misconduct of plaintiff’s counsel in arguing the case, refusal to take the case from the jury at the conclusion of plaintiff’s case and at the end of the whole evidence, in refusing to give defendant’s written requests to charge, and to the charge as given. There are 24 assignments of error, upon all of which defendant relies, excepting the first, fourth, fifth, sixth, and eleventh, which are abandoned as not sufficiently prejudicial to justify reversal.”

The accident happened December 7, 1911. The plaintiff was born January 22, 1896, and was given an employment permit under section 10, Act No. 285, of the Public Acts of 1909, dated December 29, 1910. Photographs of the saw and table where the injury occurred were offered in evidence, and show that a guard was on the table, and when in position came down over the saw, so as to be as effective as a guard could well be. The board which plaintiff was holding when hurt is in evidence. It is a soft pine board, with a hard knot in it about two inches in diameter, through which the saw passed. The plaintiff pushed the board through to the end, cutting off a strip about two inches wide.

In our view of the case it is desirable to quote freely from the testimony of the plaintiff. He testified in part as follows:

“I am the plaintiff in this case. On the 7th day of December, 1911, I was employed by Mr. Germain, the defendant in this case, in the cutting room in Ger-main’s factory on Holland street in the city of Saginaw. I was working on the rip table on the 7th day of December, 1911. I had been working on that rip table about two days. I first went to work on the rip table the day before. * * * Two fellows were cutting up lumber. I was taking it and ripping it up into most any size, to get the best out of it. The size of this particular piece that I was sawing at the time of the injury must have been about 12 inches wide, about 18 or 19 inches long, an inch and a half or quarter thick, or an inch and a half. I was required to rip off the worst. * * * The guide was about 2 inches from the saw. I had little sticks to place in between the guide and the saw, and place the board up against when I pushed in here. By that adjustment I could saw off any width piece off the board I wanted to. I took the board; laid it so. I wanted to work off the piece. It was about 12 inches wide. I wanted to rip a 2-inch slab off it. The saw choked. I gave it a shove. It choked. I shoved it, and my hand got on the saw and cut a couple of fingers off.
“Q. How did you place the board there?
“A. Thumb on the back, two fingers and the thumb on the back of the board, two fingers on the back, two on the side, and pushed it down at the same time, and shoved this through. It choked up, and the board jumped up. It came and shoved it over, and knocked my hand over some way, and my hand got in the saw. It happened so quick I don’t hardly know how it did it. It cut a couple of fingers off.
“Q. Show them to the jury. (Witness does as requested.) They were cut off at about the middle joint, two fingers, first and second on my right hand.
“Q. State how the saw was worked at the time of the injury, at the time you were ripping this particulSri* bo9<rd.
“A. Why, I put the board on the table, and was going to rip off a piece 2 inches. The saw started to choke and jump. The board throwed my hand over off the board. At the time this injury happened, the board jumped up and down. I held it down, shoved it through.
“Q. Explain how you came to get your fingers taken off.
“A. It happened so quick, I couldn’t say just how it happened; but I know that the piece I ripped about 12 inches wide. I ripped off a piece 2 inches. I started to rip it; ripped a little way; it started to jump; the board jumped up and down; I stood there; it gave a jump; it went right over; it jumped all the way over. I don’t know just exactly how it jumped up, and my fingers was cut off. I was paying attention to my business at the time. There was a spreader on here, a guard, I think a half an inch, here below the board it would be 9 or 10 inches, and then there was a spreader in there. It is kept on there to keep from closing in on the top, and the spreader, there is a guard about a half an inch wide, sort of a guard. It is supposed to come from the top here. It is about a half an inch from the top of the saw. The guard on the saw I was working on was up about 5 or 10 inches from the saw. It wasn’t put down where it belonged.
“Mr. Weadock: I object to that; no allegation as ' to that.
“The Court: You don’t claim anything about furnishing proper guard fpr the saws?
“Mr. Snow: No; only to guard the machine.
“Mr. Weadock: I object to that as wholly incompetent and immaterial under the declaration.
“The Court: As long as counsel says he doesn’t claim anything for it, I don’t see how it is improper. He says he doesn’t claim anything about furnishing the proper guards for the saw.
“Mr.- Weadock: It might be prejudicial when it goes to the jury.
“The Court: So far as the question of the saw being properly guarded, I now instruct the jury that they should not consider this testimony.
“Q. Did you, before you worked on this particular saw, work on a ripsaw?
“A. I worked on one ripsaw. Ripped organ parts about a week, but not steady. It might have been more than a week; it might have been less. I didn’t keep track of the time. I didn’t keep track of it. I worked a day or so, and then back on the other place where I belonged. Maybe I would go back again and work a half a day or so.
“Q. Was it a saw similar to this one you happened to be injured upon?
“A. The table was higher and bigger. Instead of having a guard or the board you had one you could move any place you wanted to rip the board. At the time when I went to work on this saw it was running. I don’t know I couldn’t say how fast it would revolve.
“Q. How long had you been employed by Mr. Ger-main? How long had you worked there?
“A. Pretty close to 2 years and perhaps 8 months. I went to work in vacation.”

He modified this statement later, to the effect that he did not work all the time. On cross-examination he said in part:

“I attended school a little over eight years. I went through the eighth grade, a couple of weeks in the ninth grade. While I did attend school, I attended practically all the time. When I left the eighth grade, I was promoted to the ninth grade. * * * .
“Q. The manual training school?
“A. Yes.
“Q. Did you attend the manual training school part of the time?
“A. Yes.
“Q. How long were you at the manual training school?
“A. Two or three weeks is all. I didn’t keep track of the time.
“Q. You were a member of the ninth grade manual training school?
“A. Yes.
“Q. You commenced taking what course?
“A. Machinist. It is a mechanical course. * *
* I quit school in 1910.
“Q. And you applied to the inspector, the factory inspector, for permission to go to work?
“A. I was working there at Germain’s — it was a little time before Christmas.
“Q. You remember going and getting a certificate?
“A. After I worked in the factory, he asked me how old I was. I told him, and then he sent me for one in December, just before Christmas. * * * I took it to Germain’s mill. I didn’t know who I gave the paper to. I took it in the office. I filed it in the office of Mr. Edward Germain, and this is my signature here. I remember that, because there is a blot.
“Q. At the time this was delivered to Mr. Ger-main, your height was'5 feet 6 inches?
“A. They measured me.
“Q. Your weight was 186 pounds?
“A. That is what I weighed then. I am now 5 feet 8I/2 inches tall.
“Q. Mr. Pequignot, what did you first do at Mr. Germain’s mill in 1910?
“A. Worked at the box factory; did a little of everything; took away from the cut-off saw, and done sawing on the ripsaw.”

He then testified in detail as to the work he did, showing that he worked on a ripsaw at various times.

“Q. How long did you work at this particular ripsaw you were hurt at?
“A. Oh, I should judge a day and a half or two days.
“Q. It was like the other ripsaws you had worked on?
“A. Same as a ripsaw.
“Q. This one you were hurt at, was there a guard on it?
“A. No, sir; there was one there, but about 9 or 10 inches from the top of the table. There was a guard on it, while I was working on it.
“Q. And the other machine that you were working on?
“A. Why, all that could be done to them; yes.
“Q. You are now shown what purports to be a picture. Look at that, and see if that is not a good representation of the ripsaw that you were injured on.
“A. It is the same saw, but the' hood is down. That was standing almost up and down on the saw. Ever since, while I ran it, it was leaning up that way. The fellow that ran it before I did left it that way. I did not know how to put it down. It was fixed up that way when I started on it. I didn’t know how it was to be. This picture shows the same saw. It is down on that. * * *
“Q. That picture shows substantially the correct position of the operator when he is at work here, doesn’t it? (showing Exhibit ‘B’ to witness).
“A. Why, it is all right. It is hot the way I always do it. I had my hand on top of the board, flat. I said' something about the saw getting choked at the time of my accident. The piece of board that I was sawing was pine, and was less than 2 inches. It was over an inch and a quarter; less than 2 inches. I am sure it was no less than an inch and no more than 2 inches. When I was operating on this board, the saw would be in the middle, the guard on this side, 2 inches from the saw. It is only about 2 inches square, so it would be here possibly 2 inches from the saw. I would put the board like that; shove it through there. If there was a small notch on the edge, you p.ut that against your saw. You shove the board away from, you all the time.
“Q. All you had to do was to hold the board in its place until the saw went through it?
“A. Hold the board down; hold it against your guard and shove it through.
“Q. You done that by holding the board steady?
“A. ■ Yes, and one hand on it.
“Q. And the guard protected it on the other?
“A. Yes, and to shove it up against the guard.
“Q. So there was only one hand on the board when you pushed it through?
“A. Yes; I pushed it in that way I illustrate.
“Q. If you see that it clogs, what do you do then?
“A. Why, if I was feeding the boards too fast, I wouldn’t shove it through so fast. The only way it became clogged is by shoving it too fast or if the saw gets dull.
“Q. If you shove it too fast, you restrain it, and if it strikes about sometimes?
“A. Yes.
“Q. Then the way to do that is to start it again and go easy until its gets through the knot? This board you had that day do you think had a knot?
“A. Yes; I am sure it did. That is why I ripped a 2-inch piece off to get the knot off. I tried to get rid of the knot. I didn’t look at the board to see if I got it ripped off or not. If I don’t do it, I would take it off afterwards.
“Q. You had sawed through the knot before you got hurt? That knot was about a third or a half way of the board?
“A. In the middle or a third across there.
“Q. Near the middle?
“A. I didn’t notice. I noticed a knot in the board. I don’t remember just where that knot was. It wasn’t in the end of the board, I know.
“Q. Did you finish ripping this board when you got hurt?
“A. Yes, sir.
“Q. Now, as a matter of fact, the saw was neither choked nor into a knot at the time you were hurt, isn’t that true?
“A. If it ripped through the board, and yet going as fast as it could go, it wasn’t choked down.
“Q. The saw was neither choked nor in a knot at the time you were hurt?
“A. No, sir; it was not in a knot.
“Q. 1 It wasn’t choked ?
“A. It wasn’t choked. * * *
“Q. You don’t know how you got your finger hurt, do you?
“A. No, sir.
“Q. Now, I show you a board, and ask you to look this over, and ask you whether or not that is not the same beard you were working at at the time you got injured.
“A. Well, that is the same kind of a board. * * *
“Q. Just show the jury how you put that board through.
“A. This is the guard. Standing as I am, the guard is on the left-hand side. I pushed the board towards the saw as it goes through it until it gets clear to the end.
“Q. Then you take off your hands?
“A. Like this, up like this.
“Q. Your hand, at the time you got your fingers cut, were on the end?
“A. No, sir.
“Q. Where that stain is?
“A. No, sir; my hand was right here. The last time that dropped off there.
“Q. How it was dropped off you don’t know?
“A. That jumped when it struck that knot.
“Q. You had gone through the knot at the time of the injury?
“A. Yes, sir.
“Q. After you got through the knot, it sawed right along just as it had before it came to the knot, without any jump?
“A. Yes.
“Q. You see it doesn’t show any jumping at all on the edges?
“A. That is as—
“Q. If it jumps, it makes an extra dig?
“A. Yes; there is where it runs.
“Q. If it chokes, it makes a bigger nick?
“A. Yes.
“Q. Look at that carefully, and tell us if it is not true that that board was in just that condition when it went through the saw, just like that.
“A. I don’t know whether that was-the top of the board or not.
“Q. Now, your fingers were not necessarily, in the operation of the saw, in any way connected with or touching that saw?
“A. No, sir.
“Q. And it was not intended that, in running the board through, your fingers would come near the saw?
“A. It was sometimes, and sometimes it was not.
“Q. In the regular operation, your fingers would not come near the saw?
“A. No, sir.
“Q. You may have slipped at the time you got injured. May not your foot slipped or something?
“A. No, sir; I am sure Í didn’t slip anyway, my foot, nor nothing.
“Q. You don’t know now how you got your fingers connected with the saw?
“A. No more than what I just said, no more than that.
“Q. How many 'different times did you work on the ripsaw, like this one that you were hurt on, while you were there? Fifty different times?
“A. No, sir. I wouldn’t try to say how many times it was, I am sure. I never worked on a ripsaw. It wasn’t over a week or a week and a half.
“Q. You knew how, of course, how to run this ripsaw?
“A. Yes. * * * What I was doing at that time was making pieces about 2 inches wide. The entire length of this board is 18 or 19 inches.
“Q. Was this guard turned back, or was it standing up in the air?
“A. I couldn’t say if it was turned back. Somebody stuck it up that way; it was sticking up in the air.
“Q. You knew what the guard was for?
“A. Yes.
“Q. And how it could be put down from the air?
“A. I couldn’t tell. All the others I have worked on it was put down.
“Q. You said nothing about it being up that way?
“A. No, sir; a man worked on it, I thought it would be all right; he told me to. * * *
“Q. You were running ripsaws for a number of days before you were hurt?
“A. From time to time. I know Mr. William Duboi.
“Q. Do you remember applying to him to permit you to work on the ripsaws?
“A. I never asked him for a job; no.
“Q. Didn’t you tell him some weeks before you were hurt you could do that work, you wanted a chance to run the ripsaw, and he did then permit you to, and from that time on until you got hurt you did run it?
“A. I don’t think so.
“Q. Would you say you didn’t ask Mr. William Duboi for permission to run ripsaws?
“A. That is the way I generally worked on it. I don’t remember. The first I remember of working for him on the saw, there was nothing to do in our place. I went over there to work for him. I don’t know just why I come to go over there.
“Q. How long before you were hurt was that?
“A. I couldn’t say how long it was. It must have been over a month before.
“Q. The work you then asked him to do was on the ripsaw?
“A. Yes.
“Q. From that time until you were hurt you had from time to time worked on ripsaws?
“A. Yes, sir.
“Q. You knew that that hood or guard that was put over the ripsaw was for the purpose of protecting the man that was running it, didn’t you?
“A. Yes, sir.
“Q. You said yesterday that when you went to the ripsaw at which you were hurt that this guard was kept upright?
“A. Yes.
“Q. I now show you a guard. That is the kind of a guard that was on this saw that you were at work on that day, wasn’t it?
“A. About the same; yes.
“Q. That guard as it now is on the board is in the position it would be when the operator was running it?
“A. That is the correct way.
“Q. When a man is running the board through it, and when it is operated on? When you said yesterday you couldn’t move the guard, you mean this piece, the upright guard?
“A. I don’t know how they moved that. The saw was running. I didn’t fix up the table.
“Q. When, if at all, the top part, the part that extends out over the saw, is moved, it is done by pushing it up that way?
“A. The other guard was somewhere—
“Q. It stood up substantially the same way this did?
“A. Yes.
“Q. If the operator wanted to push it back, he would do it in that way?
“A, Yes.
“Q. Is that the position in which this guard was when you were operating this saw?
“A. Yes, sir.
“Q. You knew that you could put it down that way?
“A. You could not put it down.
“Q. Did you try to?
“A. I don’t remember it.
“Q. You knew that that guard was up there for the purpose of protecting the employees?
“A. Yes.
“Q. When you went there to it, it was standing
“A. Yes.
“Q. And you didn’t try to put it down?
“A. Yes.
“Q. You knew, when the operator was using this saw without the guard, there was more chances for his getting his hands cut than there was with the guard down?
“A. Yes.
“Q. And you continued to operate the saw for those days with that knowledge?
“A. Yes.
“Q. And the difference was, when the guard is down, the whole saw is covered, isn’t it, and the only space between the guard and this board that the board you are ripping rests on is as shown here, 1% inches, perhaps?
“A. Yes.
“Q. The only chance for one to get his hands in would be under the top end of this guard?
“A. That is about the only way.
“Q. There would be no chance at all to get struck on the top of the saw when the guard is down?
“A. No, sir;
“Q. You knew in the operation of the cutting of the board that the saw worked towards you all the time?
“A. Yes.
“Q. Now, then, when you were putting this board through the saw, the same was revolving towards you very fast?
“A. Yes. * * *
“Q. You knew, as you pushed this board through, that cut the board, of course?
“A. Yes.
“Q. When you pushed the board through, as you illustrate, your hand would be on the right-hand corner of the piece, away from the saw?
“A. Yes.
“Q. And that is the only place you touched your hand on the board?
“A. Yes.
“Q. The small piece being sawed was being held in place by the guard on the side?
,fA. Yes.
“Q. You simply put the board through by pushing by one hand until it was sawed through?
“A. Yes. * * *
“Q. Having this board in mind, that it was the one that you were on at the time, the saw having gone clear through this board, your hand, I suppose, was how many inches from the saw?
“A. Oh, it might be, it couldn’t have been any more than two inches away.
“Q. How about the two fingers, six inches away, wouldn’t they, from the saw?
“A. About that; yes.
“Q. And your thumb would be nearer the saw, of course?
“A. Yes.
“Q. You knew the danger of sawing this board on that ripsaw that morning with the guard up? You knew there was danger in it?
“A. Yes.
“Q. And you continued to saw those boards the same way that two or three days you were there?
“A. Yes, sir.
“Q. With the knowledge of the danger?
“A. Yes.
“Q. And the danger with the guards up was what? How would the danger be?
“A. You would get your hand on the saw through there.
“Q. With the guard down you couldn’t get your hand on the saw unless you ran it under the guard?
“A. That is all, about.
“Q. You couldn’t do that unless you done it purposely?
“A. I don’t know about that.
“Q. As the board went through, in order to get your hand or finger on the saw, you had to get in below the guard for 2 or 3 inches, wouldn’t you?
“A. Yes.
“Q. So you had to shove your hand under in some way?
“A. Yes.
“Q. And that, of course, you wouldn’t do. Now, then, you neither tried to put down the guard— You didn’t try to put down the guard?
“A. No, sir.
“Q. You didn’t say anything to anybody that the guard should be down?
“A. No, sir.
“Q. Simply went on and done that work with the knowledge of the danger? You were liable to have your fingers cut with operating the saw with the guard up?
“A. Yes.”

Redirect examination:

“Q. Is this guard here offered for illustration similar to the other one?
“A. Yes.
“Q. Does it operate the same as the other?
“A. I don’t know. It had a screw to the hood; that is all I know of. I do know that the guard is kept in place by a bolt running through there.
“Q. That is identically the same as the one you worked upon?
“A. As far as the hood is concerned.
“Q. That was on hinges up and down?
“A. Yes, sir. That other one must have been broken, because there was a piece of wood in there. It was right in the hinge. That is why I didn’t do anything about it. It looked as though they put it up there to hold it there. I didn’t try to put it down in any event. Mr. Chapman directed me to work on this ripsaw. It wasn’t Mr. Duboi. He told me to go over and work for Chapman in the cutting room. I don’t know that Mr. Wm. Duboi worked on that machine that day before I did. He wasn’t the last man to work upon it.
“Q. You don’t know of your own knowledge?
“A. I am quite sure. Mr. Chapman didn’t go with me to this ripsaw. He said I should go over there and rip on this ripsaw, and that is all the directions he gave me about it.”

The guide on the left hand was 2 inches from the saw, and allowed a strip 2 inches wide to be cut from the board. The other portion of the board was 7% inches wide. When the board had passed the saw, the standard which came up through the table and to which the guard was attached entered the kerf made by the saw, and acted as a spreader between the wide part of the board and the strip which was being taken off. The board also passed under the joint in the guard, and this would be true whether the front part of the guard is lifted or not. It is clear that to push the board through it was not necessary to get any portion of the hand within 3 inches of the saw.

A reading of the testimony of the plaintiff indicates that he does not know how the accident happened. An examination of the board and of the photographs gives rise to a fair, inference that the saw did its work readily as it entered the soft pine until it struck the hard pine knot, which made it necessary to exert much more strength to push the board forward until the knot was sawed through, when, if the pressure was continued, the saw would cut the remaining portion of the soft pine very rapidly, and if the fingers of the plaintiff were in the line of the saw they were likely to be cut off. It is not a far-fetched inference to say that this is what probably happened. If the guard had been down, the hand could not have reached the saw. If the board had been properly pushed through, the injury could not have happened. If plaintiff had not himself been negligent, he would not have been hurt. We think, in principle, the case is controlled by the case of Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609), and the many cases cited therein.

The verdict should have been directed in favor of defendant as requested. This makes it unnecessary to discuss the other assignments of error.

The case is reversed, and a new trial ordered.

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


text:
    BITTNER v. HOWIE ROOFING CO.
    Master And Servant — Scaffold—Materials Furnished — Duty to Supply Suitable Lumber.
    In the construction of a scaffold for the erection of a building, it is the master’s duty to provide suitable material: evidence that plaintiff was hurt by the breaking of a weak board containing a knot, that other men had refused to work on the scaffold because they considered it unsafe, that there was not sufficient good lumber at hand when the scaffold was built to construct a safe one (although defendant produced testimony to the contrary), warranted the court in submitting to the jury the question whether suitable material had been supplied.
    Error to Wayne; Hally, J.
    Submitted April 10, 1913.
    (Docket No. 23.)
    Decided September 30, 1913.
    Case by Gustave Bittner against the Howie Roofing Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      Florian, Moore & Wilson, for appellee.
   Moore, J.

Plaintiff was injured on February 9, 1911, while in defendant’s employ, upon a scaffold. The writ of error is brought in this case to review a judgment obtained in his favor.

It is the claim of the plaintiff: First. That suitable and sufficient scaffold building material was not furnished on the job by the master before the accident. Second. That the foreman employed to supervise the erection of the scaffold was an iron worker and was not a judge of different varieties of wood and was not competent to supervise the erection of a scaffold.

The plaintiff was not familiar with the English language. He was about 30 years old, had been a painter, and had followed other callings. He testified:

“When I came on the job in Wayne the scaffold had already been up and a part of the work had already been done. I assisted in moving the scaffold from place to place on the first two days. I had never acted as a carpenter nor as a wood worker. I know nothing about the strength of different timbers.”

The defendant was erecting a building in Wayne, having a steel frame and a corrugated iron covering, for the good roads commission. The plaintiff was a helper. The day he was hurt he stood upon a platform under the roof, holding a block under a rivet while the man upon the roof hammered the rivet. In the scaffold were one or more planks 2x6 inches. The plaintiff stepped upon one of these. It broke and he fell to the ground more than 20 feet below and received severe injuries. It is claimed the plank broke because it had a large knot in it. Many witnesses were sworn on the part of the plaintiff. One was sworn on the part of the defendant.

The judge charged the jury in part as follows:

“In considering the question whether defendant had performed its duty in supplying suitable material for its scaffold, it makes no difference whether the material on hand belonged to defendant or whether it belonged to the good roads commission or any other person so long as Keen understood that he had permission, expressed or implied, to use such material. It is immaterial whether the plank which broke belonged to defendant or not. The important and only question for you to consider is whether, at the time the plank was taken for use in the scaffold, there was on hand, subject to the use of Keen and his men, other lumber from which they might have selected good plank for the purpose. If you find from all the evidence that there was sufficient material on hand at the time the scaffolds were built from which the men could select suitable material, and that the accident happened because the scaffold was constructed in an improper manner, your verdict will be for the defendant. Even if you think there was no other material on hand for Keen and his men to select from when the scaffolds were put up, nevertheless if from the evidence you should find that, at the time the scaffolds were moved and rebuilt within a day before the accident, there was lumber on the premises which the men could have used to replace any defective timber, then your verdict will be for the defendant.
“You will not find defendant liable in this action on any theory that it did not perform its full duty to plaintiff except only by deciding against defendant’s contention the specific propositions, as explained to you elsewhere in the court’s charge, that the defendant did not place at the disposal of Keen and the men sufficient lumber from which Keen and the men could have made a selection of good material with which a safe scaffold might have been built.”

Counsel for the appellant contend, and we quote from the brief:

“By its assignments of error the defendant and appellant raises in this court the sole question whether, upon the entire record, a verdict should have been directed in favor of the defendant. The exceptions taken upon the trial, which do not bear upon this proposition, have been waived, and, if the court does not agree with us on this proposition, we ask that the judgment in the court below be affirmed.”

Counsel urgently contends that there was' a suffix cient supply of suitable material to make the scaffolds. That, if defendant did not own it, it had permission to use material belonging to the good roads commission, for whom defendant was doing the work. On the part of the plaintiff counsel call attention to testimony that indicates there was not an adequate supply of suitable material, and that two men had declined to work because they did not regard the scaffold as safe. It would profit no one to set out this testimony in detail. We shall content ourselves with saying that we think there was enough of it to justify the charge of the court to the jury. See Thomas v. Railroad Co., 114 Mich. 59 (72 N. W. 40); Carnell v. Halpin, 159 Mich. 42 (123 N. W. 578).

Judgment is affirmed.

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


text:
    ISBERG v. MILLER.
    Reformation of Instruments — Mistake—Contracts—Equity— Restraint of Trade.
    A decree reforming a contract between complainant and defendant for tbe sale of defendant’s grocery stock so as to include a provision against defendant engaging in tbe business for two years on a street mentioned, held, to be sustained by evidence of mutual mistake in drafting tbe instrument.
    Appeal from Wayne; Hally, J.
    Submitted April 11, 1913.
    (Docket No. 47.)
    Decided September 30, 1913.
    Bill by Samuel Isberg against Louis H. Miller and Julius Goldman for reformation of a written contract and other relief. From a decree for complainant, defendants appeal.
    Affirmed.

      Arthur E. Fixel and Max H. Finkelston, for complainant.

      Edward Pokorny, for defendants.
   Moore, J.

Complainant filed his bill of complaint to reform a written contract which provided for the sale of real estate and contents of a grocery store.

The claim of the complainant is that Mr. Miller during the negotiations personally agreed to remain out of the business of keeping a grocery store for a period of two years between Thirtieth and Thirty-first streets on Michigan avenue, and that he now proposes to violate his agreement, and that this agreement was inadvertently left out of the written agreement. The plaintiff speaks and understands English very imperfectly.

The bill of complaint concludes as follows:

“(11) Your orator further shows that he will suffer great and irreparable loss and damage if said Louis H. Miller continues to conduct said business at 1465 Michigan avenue, and that said Louis H. Miller should be restrained from operating said business at 1465 Michigan avenue, from managing the same, or participating in its management, conduct, or ownership, directly or indirectly.
“(12) Your orator shows that the purchase price of the stock in trade and good will of the said Louis H. Miller’s business at 1464 Michigan avenue involved a consideration of, to wit, seven thousand dollars, on which account moneys and property were paid to said Louis H. Miller by your orator, to the amount of, to wit, fifty-seven hundred dollars, and that the balance on said purchase price of seven thousand dollars is not yet due.
“Your orator is without remedy, except in a court of equity, and therefore prays:
“(1) That the said defendants, Louis H. Miller and Julius Goldman, make full, true, direct, and perfect answer to this your orator’s bill of complaint.
“(2) That the said contract for the sale of the business of Louis Miller at 1464 Michigan avenue, under date of December 16, 1911, may be reformed so as to contain a provision prohibiting said Louis H. Miller from engaging in the grocery, crockery, or tinware business on Michigan avenue, between Thirtieth and Thirty-first streets, in Detroit, Mich., for a period of two years from and after December 16, 1911.
“(3) That the court issue an injunction restraining said Louis H. Miller from participating in any manner in the management, conduct, or ownership of the business at 1465 Michigan avenue, Detroit, Mich. That said injunction likewise prohibit said Louis H. Miller from interfering in any manner with the free enjoyment of the good will of the business formerly conducted by him at 1464 Michigan avenue, Detroit, Mich., which business and the good will thereof were purchased by your orator.
“That your orator may have such and other relief as to the court may seem proper. That the court may award your orator such damage as it may be found on the hearing your orator sustained by reason of the wrongful conduct of said Louis H. Miller.”

The negotiations covered a considerable period of time, and many papers were drawn in connection therewith, which were changed, interlined, and modified before a contract was finally signed. Each party employed a lawyer, and the lawyers had trouble in understanding and putting in shape the views of the parties.

There is much testimony to the effect that an agreement was made as stated in the bill of complaint, and that it was by mistake left out of the written contract. The attorney for Mr. Isberg swears positively to this, and says he dictated the agreement to his stenographer, and supposed it was put into the contract, and takes the blame for not discovering it was left out. His draft was afterwards submitted to the attorney for defendant. This attorney was not present at some of the interviews. He was sworn as a witness by the defendant. In his testimony appears the following:

“Q. You say that Mr. Isberg insisted that tinware and crockery be added to that paragraph?
“A. Yes.
“Q. Following that request or demand of Isberg, did you follow that up by saying that this option should be put in there regarding the forfeiture?
“A. I don’t know which preceded which. We discussed paragraph by paragraph, and frequently one or two of us gentlemen would leave the room, and the talking would continue just the same. I couldn’t tell you in what order we took it up.
“Q. Now, Mr. Butzel, there was a great amount of talk back and forth, wasn’t there, regarding this contract, before it was finally whipped into shape and signed?
“A. As to the details, yes; but the deal was going through earnestly desired by all parties. There never was a question about that. Sometimes, you -know, you get into a deal, and you will find that something will fall short, something of that sort; but I don’t think anybody had a notion that the deal was not going through. It was just a question of doing the fair thing in regard to the small details. Whenever Finkelston and I said, That is all right,’ that that was the right thing, why, there was no kick on anybody’s part, and he and I could usually agree without much trouble. In fact, I am fair to say that I protected Mr. Isberg on a few things as much as I did Miller, and I think Mr. Finkelston was equally fair in the matter.
“Q. Mr. Butzel, when this contract was finally prepared in the shape it is now in, will you say whether or not that included all of the agreements between the parties ?
“A. That I couldn’t say; it is all that I think of.
“Q. You think there is anything left out?
“A. I don’t know; I don’t know how much the original draft included, or what the talk was that preceded my first meeting there. * * *
“Q. With reference to that paragraph, the restriction clause, on the last page of Exhibit 3, it states there that Miller is to be prohibited from the use of his real estate between Thirtieth and Thirty-first streets on Michigan avenue. Do you recall any talk regarding the tenants Miller had in the store next to 1464, about the tenant possibly changing his business and going into the grocery business ?

“A. I don’t recall that; no. I know that Isberg was troubled; he was terribly afraid of competition; he wanted to be very sure there would not be any grocery next to him, and insisted — he was very insistent on that point.

“Q. That there would not be a grocery store next to where he was, to what he was buying from Miller?
“A. Yes, sir; he realized it was quite a profitable undertaking that he had there.
“Q. Is that how that paragraph came to be in there?
' “A. It was put in previously.
“Q. Put in previously?
“A. I think it was.
“Q. As modified in those two particulars?
“A. Yes.
“Q. I will ask you, Mr. Butzel, whether at any time while you were present in Finkelston’s office, and Isberg and Mr. Miller were present, if you heard Isberg demand that Mr. Miller be personally prohibited from going into business?
“A. I don’t think I did; I don’t remember it.
“Q. Don’t you think you would have heard it, if Isberg had personally demanded .that Mr. Miller be prohibited from going into business himself?
“A. I would have heard it; whether I would remember it or not is another question.
“Q. Did—
"A. It might have happened when I was out of the room. I went out of the room to dictate to the stenographer several times. Once in a while they would get around me and talk so much that I went to the next room to take a little rest.
“Q. Did you submit that paragraph to Mr. Miller and explain what it meant, ask him for his approval?
“A. Well, that never was necessary. If I read anything to Miller, he was a very good, clear-headed, business man; he would understand it right off the bat. He had splendid command of every feature of the situation. He was a very satisfactory client. I felt constantly that I was sharing the responsibility. _ You had to explain the thing to Isberg four or five times, and then he wasn’t sure he got it right; but Miller understood it right away, was a very good man to work for.
“Q. Well—
“A. Isberg couldn’t get it through his cranium; Miller understood it right off.
“Q. Now, Mr. Butzel, can you recall the day the contract was signed?
“A. Well, I wasn’t present when it was signed.
“Q. You were not present?
“A. No. * * *
“Q. The only discussion you recall you had was regarding the addition of that clause of putting in of tinware and crockery part, and then the addition regarding the option?
“A. We all had a very strong impression — where it came from I don’t know — that Miller simply was not going into business.
“Q. Was it discussed?
“A. No. Miller spoke of future plans and things of that sort, and the atmosphere seemed to be that he wasn’t going to go into business; but he made no distinct promise. I don’t know of any demand that was made on him at all.
“Q. Do you remember any distinct promises?
“A. No, no.
“Q. That is all.”

Cross-examination, by Mr. Fixel:

“Q. Then there was a kind of general tone or understanding there that Miller was not going back in business for a while, at any rate?
“A. I had that general impression.
“.Q. Did you gather that from the conversation that was had generally among these people?
A. No, more from Mr. Miller’s own conduct, his own attitude, than any particular thing. I didn’t think they seemed to insist on it. It seemed to be Miller’s intention. I don’t think the matter came up.
“Q. You were absent from a great many of the meetings, weren’t you, or from some of them, but you heard about that later on?
“A. I was absent from all meetings previous to the first time, when I was called in. There had already, been prepared a contract, at least, the one I mention.
“Q. You had a copy of it at your office?
“A. That was brought to me by Miller. That is before I made any appearance. What took place before that time I don’t know. I didn’t ask Miller. He handed me this.
“Q. It was á carbon copy of it?
“A. Yes. Then I went there several times, and the parties were assembled before I came. I knew about how tardy they were coming over there. Miller was usually fairly prompt. I always said, ‘Let me know when they are there.’ When I came over they were assembled; they were all there, were all pretty busy talking things over.
“Q. You never were out at the store, No. 1464?
“A. Never. I don’t know where it is. * * *
“The Court: Mr. Butzel, now that this is somewhat fresh in your mind, can you remember any remark, can you remember what was said, about this man not personally engaging in business for two years?
“A. I don’t think that was said in my presence.
“The Court: Was it said to you by anybody?
“A. By anybody? I don’t think there was any such promise given while I was around. As I say, the only thing was that Miller had quite a number of pleasant plans and so forth; the atmosphere was created that he was leaving the business, that he was tired out and wanted to get out of business, and so forth. I do not think the necessity of binding him to that entered anybody’s head. Possibly a provision of that kind, a provision of that sort, might have been made by him before I ever came in or before they had the paper drawn; but while we were there that idea was there, simply taking it for granted — I don’t think there was any reference to it.
“Q. That is, in your presence, as far as you know?
“A. In my presence, as far as I know.
“Q. That is all.”

The case was tried in open court. The testimony was very voluminous. The record contains upwards of 350 pages. At its conclusion the trial judge who saw the witnesses said:

“I find that it was expressly understood between Samuel Isberg and Louis H. Miller that the defendant was not to engage in á similar business on Michigan avenue, between the streets named, for a period of two years, and that by an inadvertence this clause and proviso was omitted from the written instrument which was drawn to express the will of the parties.
“Not only was this mistake made in drawing the contract, but the defendant, by his conversation with others, and by his conduct in opening the new store, for a considerable time believed the bargain he had made restricted him. He subsequently learned of its omission, a,nd gave as his excuse the omission of the restriction from the written instrument. This is, in my judgment, sufficient to establish the two essentials to give equity jurisdiction, to wit, the making of a mistake, and both parties, at least for a time, admitting that a mistake had been made; the defendant’s admission being clear to me from his conduct, and the testimony produced.
“The contract will be reformed in accordance with the prayer of the complainant, who is entitled to the relief prayed for, except as herein otherwise specified.
“Some testimony was offered as. to the damages sustained. This testimony was not entirely satisfactory. A court of equity is not an advantageous place to present such an issue, and, considering the time which has elapsed since the case was submitted, I cannot see how full justice could be done to the parties in this proceeding. This issue should be presented to the law side of the court. Complainant will have costs and a decree in accordance herewith.”

We have stated some of the testimony. It would profit no one to quote fully the details of the testimony. A careful reading of it satisfies us that the conclusion reached by the trial judge was correct.

The decree is affirmed, with costs.

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


text:
    PEOPLE v. WORGES.
    1. Criminal Law — Evidence—Population—Census—Estimate.
    Testimony that the population of a township had increased since the last census, and that in the judgment of the witnesses, being officials and others, the population was more than 1,000 at the time the township board passed a resolution authorizing respondent to keep his saloon open until 11 p. m., was properly excluded in the absence of an actual enumeration of the inhabitants.
    2. Same — Trial—Admitted Facts — Trial by Jury — Directing Verdict — Instructions.
    It was not error for the trial court to advise the jury, after they had been out some time, that they ought not to have any difficulty in reaching a verdict of guilty, but that they must pass on the question, permitting the jury to retire and bring in a verdict against respondent who had admitted the fact of keeping his saloon open after 9 p. m.
    3. Same — Good Faith.
    The fact that a retail liquor dealer kept his saloon open after 9 p. m., relying in good faith on a resolution of the township board permitting him to remain open until 11 p. m., was no defense to a prosecution in which it was not proved that the population of the township, shown to have been 721 at the last census, had thereafter increased above 1,000. Act No. 291, Pub. Acts 1909, § 17 (2 How. Stat. [2d Ed.] § 5071).
    Exceptions before sentence from Bay; Collins, J.
    Submitted April 17, 1913.
    (Docket No. 126.)
    Decided September 30, 1913.
    Frank C. Worges was convicted of violating the liquor law.
    Affirmed.

      Grant Fellows, Attorney General, and James L. McCormick, Prosecuting Attorney, for the people.

      Curtis E. Pierce, for respondent.
   Moore, J.

The respondent, a regularly licensed retail dealer in liquors in the village of Mt. Forest, Mich., was informed against for keeping his saloon open after hours on the 20th day of April, 1912. Defendant pleaded not guilty. Upon the trial of said cause by a jury, respondent was convicted and sentence deferred pending appeal to this court.

Mt. Forest is not an incorporated village. The respondent runs a hotel there in connection with his saloon business. The village of Mt. Forest has no police protection outside of one or two constables elected and residing somewhere in the township of Mt. Forest. The population of Mt. Forest proper would not exceed 25.

James P. Hartley, a witness for the people, testified that the saloon was open at 9:25 p. m. and again at 9:40 p. m. Other witnesses on the part of the people testified to the same effect. Later the respondent admitted the saloon was open as stated. The county clerk produced the United States census report for the census of 1910, which showed that the population of the township of Mt. Forest, which includes the village, was 721.

On the part of the defense the following occurred:

“Q. The population of the township has increased since 1910?
“The Court: You need not answer that question. (Defendant excepted.)
“The Court: Just a moment. Mr. Pierce are you proposing to show any enumeration made by anybody as to the number of people or the amount of the population of that township in the year 1912?
“Mr. Pierce: The best I can do on that subject is to show by resident officials of the township that there has been a remarkable increase in population since the time of this census and that the population in 1912 and 1911 exceeded 1,000. I will have evidence upon that branch of the case.
“The Court: I knew you would have evidence on that branch of the case, and you have not answered the question that I asked. Are you proposing to prove an enumeration made by somebody on that subject during the year 1912?
“Mr. Pierce.: We have employed nobody to make an enumeration. There has been none made, official or otherwise, that I know of. I don’t know how far that goes — no accurate enumeration, no counting nose by nose of the population, but an estimate based upon examination of conditions and the census and school reports.
“The Court: That is, you propose to prove by inference and by estimate?
“Mr. Pierce: We propose to show by creditable testimony that the opinion of these witnesses is from an examination they made that the population is over 1,000. Of course, there has been no actual enumeration either official or otherwise.
“The Court: Since the last ruling I have examined the liquor statute. The statute for certain purposes fixes the last United States census as the guide as to the amount of population. Now it is a matter of law that there is no State census taken, and it appears in evidence in this case, or it has been stated by counsel for defendant, that there is no claim of any official enumeration of the township since the United States census of 1910. I understand counsel to say that he does not propose to offer any unofficial census or enumeration. Is that right, Mr. Pierce?
“Mr. Pierce: No actual enumeration.
“The Court: If there was an actual census or enumeration offered unofficially, I would consider that question, but inasmuch as none is proposed to be offered I will not pass on that. »* * *
“Mr. Pierce: The court might not be aware of the fact, but it is a fact, which we propose to establish by competent evidence, that the township board passed a resolution authorizing the—
“The Court: I will admit that in evidence when we reach it.
“Mr. Pierce: Then I would like to interrogate the witness as to the time of the passage of that resolution, if, in his judgment, the population did not exceed 1,000 as referred to in the statute.
“The Court: That I would hold as incompetent. That is covered by my previous ruling. You may have an exception to all of the ruling I have made on the subject.
“Mr. Pierce: Then, as I understand it, the court overrules my offer to show by this witness that at the time this resolution was passed the township population exceeded 1,000.
“The Court: I exclude the witness’ opinion as to what the population was.
“Mr. Pierce: I take an exception.
“The Court: I wish you to have the benefit of the situation fully. I hold that, on an important question like this as to the amount of the population, the legislature never intended it to be proved by a matter of opinion; that the only competent proof of it that there could be on that subject would be an actual official or unofficial enumeration or census, and that any other testimony on that subject would be incompetent. I hold that the State census or the last United States census or the last State census would be material. I do not know just exactly how I would hold if an official township census of some kind were shown or if an unofficial township census were shown. There is no proof that either of those have been taken, so I withhold my opinion on that, and yet I am strong of the opinion that the law intends to refer the census matter to the last United States census in every case.”

Mr. Ashley G. Rolfe, being duly sworn for the defendant, testified in substance as follows (examined by Mr. Pierce) :

“I have resided in Mt. Forest township for about 17 years. I was highway commissioner for several years of the township of Mt. Forest until this spring, when rny term expired. In my capacity as highway commissioner, my duties called me about the township and in different portions of it.
. “Q- Has there been an increase in population there since 1910 or otherwise?
“Mr. Hitchcock: I object to that as irrelevant.
“A. There is a large—
“The Court: The objection is sustained. * * *
“Mr. Pierce: We offer to show by this witness that the population of Mt. Forest at the time the resolution was passed by the township board, changing the hours from ‘7 o’clock in the forenoon until 9 o’clock in the afternoon,’ that at the time that resolution was passed by the township board, giving Mr. Worges upon his petition the privilege of keeping his saloon open ‘from 6 o’clock in the forenoon until 11 o’clock in the afternoon,’ that the population of the township of Mt. Forest was upwards of 1,000 people.
“The Court: Proceed with your testimony. I have understood from you plainly and clearly that you did not propose to offer any census of that, any enumeration.
“The Court to witness: How do you know that the population is more than 1,000 up there?
“A. I know what the population was, and I know how many settlers about have come into the town and about what their families are.
“The Court: You never have taken any census of the town?
“A. I have written their names up of the whole township three or four times for different firms.
“The Court: All of the people in the township?
“A. Yes, sir.
“The Court: You may proceed with the examination.
“Q. Has there been an increase in the population there since 1910 or otherwise?
“Mr. Hitchcock: I object to that as incompetent, calling for an opinion. It is not a census or enumeration.
“The Court: In so far as it is a matter of opinion, it is objectionable. He may state any facts he has in reference to the matter.
“Q. What would you say at that time the population was?
“Mr. Hitchcock: Same objection.
“The Court: That calls for an opinion, and it is not competent.
“Mr. Pierce: Your honor asked him some questions, and, having answered the questions, I thought you had modified the ruling.
“The Court: I modified it as to facts and only as to facts, not as to opinion.
“Q. How many people at the time the resolution was passed in 1911 would you say the township of Mt. Forest had; what was the population of the township ?
“Mr. Hitchcock: Same objection.
“The Court: Same ruling. I have already ruled on that.
“Mr. Pierce: We take an exception to the ruling of the court.”

The township clerk was sworn and produced the records of the meetings of the township board.

“The Court: The record may be read in evidence, and it may be made a part of the record in the case, and the whole matter will be covered by a ruling later.
“It appears from the record that, prior to the time respondent went into business at Mt. Forest, communications were had between him and the township board of Mt. Forest, and that he made an application to the township board for a liquor license; that at a meeting of the town board of the township of Mt. Forest, held on the 14th day of April, 1910, the full board being present, it was resolved:
“ ‘That the application of F. C. Worges for retailing liquor in the village of Mt. Forest be accepted, providing that he puts up a good cement building and keeps a good general hotel.’
“On the 13th day of September, 1911, at a meeting of the township board of Mt. Forest township, the following motion was put to vote and carried:
“ ‘Motion made by C. Heppner, supported by F. Stevens, that the petition of Frank C. Worges to keep his saloon open from 6 o’clock in the forenoon until 11 o’clock in the afternoon, standard time.’ ”
“Q. The Frank C. Worges referred to in that resolution is the defendant in this case, is that right?
“A. Yes, sir.
“Q. I will ask you whether or not, at the time that resolution was passed, the population of the township of Mt. Forest exceeded 1,000?
“Mr. Hitchcock: Same objection. (Objection sustained, and defendant excepted.)
“The Court: You never made any census of the town, did you, Mr. Quigley?
“A. No, sir; all I had was my school census I make every year.
“Mr. Pierce: I think that about the only point to pass upon is the point of law. I will concede that the defendant on the 20th day of April, 1912, at the time alleged in the information filed against him in this case, kept his saloon open at the time sworn to by the people’s witnesses, I think that is all.
“The Court: I presume that your client justifies under the resolution of the town board. Is that a part of your case?
“Mr. Pierce: Yes, I was going to swear the defendant.
“The Court: You may if you wish.
“Mr. Hitchcock: If Mr. Pierce wants to have that statement appear in the record, it may be put in to save time.
“The Court: Yes, your client is entitled to that presumption in the case.
“Mr. Pierce: Yes, acting on this resolution, the defendant in this case in good faith and honestly thought he had the right to keep his saloon or place of business open up to the hour in the afternoon, to wit, 11 o’clock, indicated in said resolution.
“The Court: Those presumptions are reasonable, in favor of the defendant, that he acted on that theory.”

The respondent preferred the following requests to charge:

“First. If you find from the testimony that the defendant honestly and in good faith considered that he had the right to keep his saloon open from 6 o’clock in the forenoon until 11 o’clock in the afternoon, and that this privilege was granted him by the township board of Mt. Forest township, and you further find from the evidence that defendant’s saloon was closed at or before 11 o’clock, standard time, on the 20th day of April, 1912, I charge you that defendant should be acquitted and your verdict should be not guilty.
“Second. The general rule prevailing in criminal cases is that a defendant cannot be convicted of a crime unless he had a criminal intent, and I charge you that if you find from the evidence in this case that defendant believed that he had the legal right to keep his saloon open until 11 o’clock in the afternoon, and that he did not intend to violate the law, then you should acquit the defendant.”

Defendant duly excepted to the refusal of the court to give these requests. He charged the jury in part as follows:

“The Warner-Cramton liquor law of this State, § 17, says in substance that all saloons and all other places where liquors mentioned in the act are sold or kept for sale, shall be closed at certain times, and in mentioning the times it says, ‘and on each week day night from and after the hour of 9 o’clock until 7 o’clock of the'morning of the succeeding day; so that the general law makes the broad statement that saloons shall be closed from 9 o’clock on until 7 o’clock the next morning. The law goes on further and says, ‘It shall be the duty of sheriffs, marshals, constables and police officers to close all saloons,’ etc. It further says, ‘The word “closed” in this section shall be construed to apply to the back door or other entrance, as well as to the front door; and in prosecutions under this section it shall not be necessary to prove that any liquor was sold: Provided, that in all cities, incorporated villages and townships of not less than 1,000 population, exclusive of villages, where there is police protection, the common council or board of trustees, or council, or township board, may by ordinance allow the saloons and other places where said liquor shall be sold to open at 6 o’clock in the forenoon and to remain open not later than 11 o’clock in the afternoon.’ That makes an exception to the general law which I have stated to you, and that exception can only be effective by the action of the township. * * *
“Now, assuming to act under that provision of the law, the township board passed a resolution authorizing the defendant to keep his place of business open from 6 in the morning until 11 in the evening, and the defendant claims, and it is not questioned, that, relying upon that law, he kept his saloon open during the times from 6 until 11. The question comes up as to whether the case presents any legal right for him to have taken this step. * * *
“First, as to the population, it appears by the census of 1910 that the population of the township was between 700 and 800. In another place the Warner-Cramton law refers to the last census as a guide in determining population, and I think that is reasonable, because I think that there must be some definite statement of populatioh.
“Now, there has been no census taken since then. Possibly the question might be a little more clear if some person had made an enumeration by the counting of the population and had been ready to testify to that, but there was no testimony of that kind in the case. You have heard the testimony that was offered, and I hold that under the situation in this case no testimony was offered and none produced showing that the population was 1,000, so that this defendant did not have that proposition in his favor when the township board acted, and the township board does not assume to have expressed any opinion on the question of population, and there is nothing to prove that they considered that question at all, but on that account, and for the reasons that I have stated, the population was not shown to be more than 1,000 when the resolution was passed, and it is not shown by any competent testimony to be 1,000 up to the present time.
“There is another much more important question in the case. You will observe that one of the conditions which would be necessary before the board could legally act upon would be this: This could only be enacted where there is police protection. Now I hold as a matter of law, under the testimony in this case, that the township board was not authorized to act upon that proposition because there was and is no showing that the township at that time had any police protection. The showing is that there were some constables elected, but I do not believe that the office of constable equals that of the office of policeman. I do not believe under the law that the fact that there are constables in a township affords the police protection required by the statute. That is practically made to appear in one clause here, ‘It shall be the duty of sheriffs, constables, marshals and police officers;’ the statute itself making the plain distinction between constables and police officers. * * *
“In .cases of this kind, notwithstanding the fact that there is no dispute about the testimony, it is the duty of the jury to pass upon the question and report to the court whether the defendant is or is not guilty. So you may retire to your jury room and bring in your verdict. If the defendant had his place of business open after 9 o’clock on the evening in question, he is guilty. You may retire, gentlemen.”

Thereupon the jury, haying been out for a time, were brought into court and the following took place:

“The Court: Have you agreed upon a verdict, Mr. Foreman?
“The Foreman: We have not.
“The Court: Does there seem to be any difficulty in understanding the charge of the court?
“The Foreman: No, there does not seem to be no misunderstanding, only some of them vote, but they don’t say anything, and we voted, and I tell them to think it over a little bit and we vote again.
“The Court: There is no dispute in the testimony in the case, gentlemen. The testimony of the people shows that the saloon was open after 9 o’clock. The defendant did not introduce any testimony, so that it is proved that the saloon was open after 9 o’clock and not disproved. The court instructed you that, if the saloon was open after 9 o’clock on the day in question, it was your duty to bring in a verdict of guilty. The fact that the town board passed a resolution is no protection to the defendant in any way. It is no defense. So far as the law is concerned, that resolution of the town board was worth no more than the resolution of anybody anywhere in the State. It is no protection whatever. The case appears to be clear, and I should think you would have no difficulty in at once reaching a conclusion that the defendant was guilty. In criminal cases the jury, however, must finally pass upon the question. You may retire.
“Thereupon the jury retired, and having been out for a time, they returned and rendered a verdict of guilty as charged against respondent.”

Because of the questions raised by counsel for respondent, we have deemed it necessary to quote all of the material parts of the record. We quote from the brief of counsel:

“Defendant claims that there is error in this record, and we consider the several assignments of error upon which we rely under the following synopsis:

“(1) The court erred in excluding defendant’s offered testimony as to the population of Mt. Forest township.
“(2) The court erred in his instructions to the jury upon the question of police protection and in charging that defendant was not protected in any way by the resolution of the township board enlarging the time of keeping open defendant’s saloon from 6 a. m. to 11 in the afternoon.
“(3) The court erred in recalling the jury while deliberating upon its verdict and directing a verdict of guilty.
“(4) The court erred in refusing defendant’s first and second requests to charge.”

Groups 1 and 2 may be considered together. A reference to the record which we have quoted shows that in response to an inquiry by the court, counsel said:

“Mr. Pierce: We have employed nobody to make an enumeration. There has been none made, official or otherwise, that I know of. I don’t know how far that goes — no accurate enumeration, no counting nose by nose of the population, but an estimate based upon examination of conditions and the census and school reports.”

The record also shows that the judge informed the counsel that he was simply excluding estimates, opinions, but would allow facts to be presented:

“Mr. Pierce: Then I would like to interrogate the witness as to the time of the passage of that resolution if, in his judgment, the population did not exceed 1,000 as referred to in the statute.
“The Court: That I would hold as incompetent. That is covered by my previous ruling. You may have an exception to all of the ruling I have made on the subject.
“Mr. Pierce: Then as I understand it the court overrules my offer to show by this witness that at the time this resolution was passed the township population exceeded 1,000?
“The Court: I exclude the witness’ opinion as to what the population was.
“Mr. Pierce: I take an exception.
“The Court: I wish you to have the benefit of the situation fully. I hold that on an important question like this as to the population, the legislature never intended it to be proved by a matter of opinion; that the only competent proof there could be on that subject would be an actual official or unofficial enumeration or census; and that any other testimony on that subject would be incompetent. I hold that the State census or the last United States census or the last State census would be material. I do not know just exactly how I would hold if an official township census of some kind were shown, or if an unofficial township census were shown. There is no proof that either of those have been taken, so I withhold my opinion on that, and yet I am strong of the opinion that the law intends to refer the census matter to the last United States census in every case.”

No actual counting, made officially or unofficially, was shown or offered to be shown. There is nothing to show that the question of population was presented to the township board when the resolution was passed, or that they were actuated by the matter of population. We agree with the circuit judge that there was no competent testimony offered that when the resolution was passed the township had a population of 1,000 people. This makes it unnecessary to pass upon the question of whether the population must be shown by the last official census. It also makes it unnecessary to pass upon the question of whether the judge was right in what he said in relation to police protection.

3. Did the court err when it recalled the jury and after making inquiries again instructed them to bring in a verdict of guilty? Counsel say:

“When a trial court goes further, and on his own motion recalls the jury, and says among other things: T should think that you would have no difficulty in at once reaching a conclusion that the defendant was guilty.’ ‘In criminal cases the jury, however, must finally pass upon the question.’ ‘You may retire’— then we contend that the verdict became that of the court, and defendant’s constitutional right to a trial by jury was denied. People v. North, 153 Mich. 612 [117 N. W. 63]; People v. Doyle, 160 Mich. 423 [125 N. W. 358].”

In the case at bar the facts are not in dispute. They were admitted by respondent. The jury retired to the jury room before bringing in their verdict. The cases cited, so far as they are applicable at all, sustain the action of the trial judge.

4. Did the judge err in declining to give defendant’s requests to charge? Counsel say:

“Now, if the defendant acted in good faith and honestly thought he had the right to keep his saloon open until 11 o’clock in the evening, then he had no intention of violating the law, and the question of good faith and criminal intent were questions which should have been submitted to the jury, and defendant’s first and second requests should have been submitted to the jury; and the court’s refusal to give these requests, we insist, is error.”

This contention is not sustained by the rulings of this court. In cases of this nature good faith is not a defense to illegal sales of intoxicating liquors. People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); People v. Blake, 52 Mich. 566 (18 N. W. 360); People v. Minter, 59 Mich. 557 (26 N. W. 701); Wolcott v. Judge of Superior Court, 112 Mich. 311 (70 N. W. 831); People v. Snowberger, 113 Mich. 86 (71 N. W. 497, 67 Am. St. Rep. 449); People v. Gordon, 156 Mich. 237 (120 N. W. 578, 21 L. R. A. [N. S.] 136). We find no reversible error.

The case is affirmed and will be remanded for further proceedings.

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