text:
    FELT v. FELT.
    1. Deeds — Setting Aside — Undue Influence — Fraud—Inoompetenoy — Consideration.
    On a bill to set aside a deed on the grounds of undue influence, fraud, incompetency, and failure of consideration, evidence examined, and held, not to sustain the allegations of the bill.
    2. Same — Delivery—Intent of Parties — How Determined.
    Whether title passes upon delivery of a deed to a third party is to be determined from the intent of the parties at the time of such delivery; and when, at the time of the execution of the deed, the parties entered into an agreement in writing plainly showing that they erroneously supposed that the grantor could retain the control of the deed and that title would pass upon its delivery after the grantor’s death, the deed was void for want of delivery.
    8. Same — Partition—Equity—Specific Performanoe.
    Where, on a bill for the partition-of real estate, the evidence is conclusive that defendant is entitled to a decree for the specific performance of a contract to convey, which had failed for want of delivery of a deed, the bill will be dismissed upon the ground that complainant has no equitable title, leaving defendant to take such proceedings to perfect his title as may be open to him.

      Appeal from Wayne; Donovan, J.
    Submitted November 13, 1908.
    (Docket No. 154.)
    Decided December 21, 1908.
    Bill by William E. Felt against Zara L. Felt and Lizzie Felt to set aside a deed on the ground of fraud, and for a partition of certain real estate. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Samuel W. Burroughs, for complainant.

      James H. Pound, for defendants.
    Noah Felt, an old man, executed a deed to Zara L. Felt, his son, of 60 acres of land; the consideration stated therein being “one dollar and other good and sufficient considerations to him in hand paid.” This deed was an ordinary warranty deed, signed and witnessed, dated September 19, 1905, and acknowledged on September 31, 1905. It was recorded January 9, 1906. It covers the land in controversy in this cause, consisting of two parcels, one of 50 and the other of 10 acres. Noah Felt made another warranty deed of two parcels, one of 50 acres and one of 40 acres of land. This deed was dated on September 31, 1905, and on the same day was acknowledged before the same notary, and was witnessed by the same witnesses, who, respectively, took the acknowledgment and witnessed the former deed mentioned. It stated the sum of “$3,600 to him in hand paid” as the consideration and was recorded September 33,1905. Zara L. Felt and other witnesses testified that he made an agreement with Noah Felt, his father, with reference to buying this property; that he paid his father $3,600 in cash for the property described in the two deeds and promised to support him during life; that he would not have made this purchase of the parcels described in the last-mentioned deed had he not been able to purchase the property described in the other deed; that the agreement was that he was at first to give his father $3,600 for all of this land, and to give him a life lease back upon the 60 acres described in the first deed hereinbefore mentioned. Upon consulting counsel, his father preferred to omit the life lease, but to have said deed of the 60 acres deposited with the right to reclaim it in case Zara L. Felt should refuse to take care of him; thereupon the consideration, $3,600, which was then stated in the deed, was erased therefrom, and that hereinbefore stated was written. Thereupon the following writing was executed by the parties:
    “Whereas, Noah Felt and Zara L. Felt have entered into a certain agreement in regard to the deeding to said Zara L. Felt certain real estate to take effect after the death of said Noah Felt, said real estate being the same as is described in a certain deed .recorded in the register’s office, Wayne county, Michigan, March 2d, 1901, in liber 548 of deeds, on page 531. Said parties hereby agreed in case said Zara L. Felt shall build or make other improvements on said real estate, or expend money or labor or furnish board for said Noah Felt in consideration of said deed, said Noah Felt sháll repay said Zara L. Felt for said buildings or improvements on said real estate or for money furnished or board or labor, in case said Noah Felt shall take from the possession of the Wayne Savings Bank said deed. That being the place where said deed is to be deposited.
    “ Noah Felt.
    “Z. L. Felt.
    “September 21st, 1905.”
    The deed mentioned second was delivered to Zara and recorded. The other deed was put in an envelope and delivered to the Wayne Savings Bank as a depository. The envelope was indorsed as follows:
    “ At the death of Noah Felt to be delivered to Zara L. Felt. Provided, during the life of Noah Felt, said Noah Felt is to have possession of within at his request any time.”
    The agreement above set forth was delivered to Zara, who thenceforth provided for his father as he had agreed to do. He was corroborated in this testimony by other witnesses, and we have no doubt that it is a truthful statement of the arrangement then made. Noah Felt died on or about December 1, 1905, and the envelope and deed were afterwards delivered to Zara, who called at the bank for them. This suit was brought by a younger brother against Zara L. Felt and his wife, who reside upon said 60 acres, alleging that the deed was obtained by undue influence, and that, when executed by Noah Felt, he was incompetent, and that the deed was therefore fraudulent. The bill prays that the deed be set aside and declared void, as against the rights of complainant, as heir of Noah Felt, to an undivided half of the premises, and as a cloud upon his rights of ownership, control, and possession of an undivided half thereof, and that it be decreed that said deed be delivered up and canceled. It also prayed for partition by division or upon sale under the order of the court after determination of the respective rights of the parties. The cause was heard upon pleadings and proofs taken in open court, and the learned circuit judge held that the deed to said 60 acres was void. He decreed that this deed was void; that there was no sufficient delivery ; that there was not a sufficient consideration, and was inequitable and should be set aside; that the complainant is entitled to his full share in one-half of the farm value before the improvements made by defendant Zara L. Felt, amounting to $1,500, which sum with costs should be made a lien upon the 60-acre farm in favor of complainant to stand like a mortgage, said sums to be due and payable on or before four years from March 10, 1908, with interest at 5 per cent, payable annually. The decree further provided that, in case of nonpayment of any part of the principal or interest as aforesaid, complainant or his legal representative or assigns might sell and deed the premises, etc., in accordance with provisions in said decree similar to those commonly found in a decree of foreclosure of a mortgage, which need not be set forth at length here. Costs were afterwards taxed at $104.50. The defendants appealed.
   Hooker, J.

(after staling the. facts). Our examination ■ of the testimony has failed to convince us that this deed was obtained through fraud or undue influence, or that* it was made by an incompetent person or without consideration. A more important question, though one not raised in the bill, is whether the title passed under the deed. This point was raised by the learned circuit judge upon the hearing, and he held that the delivery was not such as to vest the title in Zara L. Felt.

To determine this question, we must ascertain the intent of the parties. If we can say that it was the design that the title should immediately pass to Zara by the delivery to the bank, the learned circuit judge was wrong in his conclusion; while, if it was the intention that the title should remain in Noah until his death, he was right in saying that the deed was testamentary in its character because subject to revocation under the rule of Culy v. Upham, 135 Mich. 131. This intent must be determined from the contract, and it seems obvious from the provisions of the writing on the envelope and those of the agreement, when viewed in the light of the transaction, that Noah Felt attempted to retain the title so long as he lived, erroneously supposing that the deed could become effective to pass title by delivery after his death. We must hold therefore that the title vested in the two brothers, William and Zara L. Felt, upon the death of their father.

It does not follow that complainant’s claim is a just one. The testimony shows that defendant Zara L. Felt was put in possession under a contract by which he was to receive the title to this land, provided he should support the grantor during life. He did this, and meantime he has put expensive improvements upon the land. He should therefore be entitled to a- specific performance which could be enforced on these proofs under the statute in a proper proceeding. His counsel suggests something of the kind as a reason for holding this deed valid. We cannot well do that, nor can we decree specific performance on these pleadings, but we can refuse partition upon the ground that complainant has no equitable title, leaving defendant to take such proceedings to perfect his title as may be open to him.

The bill will be dismissed, with costs of both courts.

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


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    R. L. POLK PRINTING CO. v. SMEDLEY.
    1. Evidence — Contracts—Parol Evidence — Admissibility.
    Where, in an action against the guarantors of the payment of a promissory note, it conclusively appears that the agreement is contained in a letter from plaintiff to defendants stating their understanding of an oral agreement, and defendants’ letter of guaranty, parol evidence is inadmissible to vary its terms.
    2. Same — Question eor Jury — Bills and Notes.
    The question of whether a note of one of the parties had not been accepted in place of the note guaranteed by defendants, the evidence being in conflict, should have been submitted to the jury.
    Error to Wayne; Mandell, J.
    Submitted November 16, 1908.
    (Docket No. 68.)
    Decided December 21, 1908.
    Assumpsit by the R. L. Polk Printing Company against John H. Smedley and Wilbur W. Murray as guarantors of the payment of a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Reversed.

      Maybury, Lucking, Emmons & Helfman, for appellants.

      George W. Bates, for appellee.
   Blair, J.

This action was brought upon the following guaranty:

“Detroit,- Mich., March 1, 1905.
“R. L. Polk Printing Co., Ltd.,
“65-67-69 West Congress Street,
“Detroit, Mich.
Gentlemen: In regard to the ninety-day note given you on January 14th in part settlement of the Sail and Sweep Publishing Company’s, account, it is understood that same may be renewed at the expiration of the ninety-day period, but that within oneyear same shall be materially reduced if not entirely paid. The undersigned guarantee the payment of the above twenty-eight hundred dollar note. It is understood that you are to give each of us ten days’ notice in writing by mail at the expiration date of the note in order that we may make arrangements for partial payment of same or renew it.
“Yours truly,
[Signed] “John H. Smedley.
[Signed] “W. W. Murray.”

The Sail & Sweep Publishing Company was a corporation engaged in the publication of a monthly magazine known as Sail & Sweep. The defendants were directors thereof. Mr. Glidden was its secretary and Mr. Van Fleet was its editor and business manager. The actual work of printing was done by plaintiff. Mr. C. W. Lloyd was its secretary. He died in April, 1906, prior to the trial. Mr. Goering was bookkeeper for plaintiff in 1905 and 1906. On January 14, 1905, the Sail & Sweep Publishing Company was indebted to plaintiff in the sum of $3,313.87. On the trial, plaintiff introduced in evidence the following letters:

“February 4, 1905.
“J. H. Smedley, Esq.,
“c/o Parke, Davis & Co.,
“Detroit, Mich.
Dear 8ir: We are this morning in receipt of a check for $163.87 which we enclose herewith for your signature. The note for $2,800.00 which you send us we had received some two weeks ago and we return this to you to be destroyed. Please return the check to us properly signed, and also hand us the letter guaranteeing the final payment of the note, as you agreed. We hope to have your reply by the next mail, in order that we may get this straightened out.
“ Yours truly,
“R. L. Polk Printing Co., Ltd.”
“January 16, 1905.
“John H. Smedley, Esq.,
“Detroit, Mich.
Dear Sir: Agreeable to our conversation with you on Saturday we enclose herewith a statement of your account showing balance due up to the amount of $3,313.87, for which you are to send us the enclosed note properly signed for $2,800 and a check for the balance of the account. It is understood that the Sail & Sweep Company may renew this note at the expiration of a ninety-day period, but that within one year the same shall be materially reduced if not entirely paid. It is also understood that from this date we are to receive check for our monthly bills within a period of ten days after statement of account is rendered, and there is to be no further requests for credit or extension of the ten-day limit for payment of the month’s account. We agree to send letter to both you and Mr. Murray ten days before the three months’ note is due in order that you may have sufficient time to take care of the renewal. Agreeable to your promise, please write us a letter guaranteeing the final payment of the $2,800 note. It is understood the note and check for the balance of account and the guarantee are to be sent us during the present week. Above is the understanding or agreement as we talked it over Saturday, which we trust you will find correct.
“Yours truly,
“The R. L. Polk Printing Co., Ltd.”

Defendants gave evidence tending to prove that the actual agreement referred to in the letter of January 16, 1905, included a promise by Mr. Lloyd, as testified by Mr. Glidden:

“ If it was necessary and we needed the amount to give us credit to an equal amount that he had on his books, and we were to have credit for that amount if we needed it. What Mr. Lloyd said was this': That, if it was necessary to give us additional line of credit, he would do it up to $2,800 for the coming year, if it was necessary. I don’t know whether it would be necessary or not, for he put us out of business before we could tell. * * * We were about going into our busiest season, and, having been through our slack season, was short of funds, and Mr. Lloyd at a conference at the Russell House agreed to accept $2,800 note, and we pay the difference in money or its equivalent, and he was to carry us for an additional $2,800 if we needed it.
“Q. He was to carry you for an additional $2,800 ?
“A. Yes, sir; for a year. It was in pursuance of the arrangement that the note of January 14th was given by the Sail & Sweep Company. It was in pursuance of that guaranty that the subsequent guaranty offered in evidence in this case was given by Mr. Smedley and Mr. Murray. * * * I saw the original of the letter of January 16th offered here in evidence, and marked ‘Exhibit 9,’ in the R. L. Polk Printing Company, in Mr. Lloyd’s possession. It had not at that time been mailed. I called his attention to the fact that it was in direct violation of the understanding at that time the agreement was made. Mr. Lloyd upon my pointing out to him the part that was not in accordance to the agreement, he said he didn’t think it would do any hurt to incorporate it, and I said I would not ask Mr. Smedley to sign such a thing as that and it was in direct violation of our agreement, and he took it back and wrote another letter which he sent over to our office. I supposed the letter, copy of which I hold in my hand, was destroyed. The substitute for it sent over to our office. It was sent back. That letter was sent back to Mr. Lloyd as soon as we read it. * * * It was practically the same as this except the clause with reference to the payment ■ of the monthly bills after 10 days and no further requests for credit. That was stricken out, and otherwise the letter was practically as this was. That was the letter that was finally sent to Mr. Smedley. The consideration for Mr. Smedley and Mr. Murray sending of the letter of guaranty was this agreement of Lloyd to continue to give us credit, if we needed it, for one year up to the extent of $2,800. That is referred to in the letter of guaranty.”

Mr. Van Meet testified:

“ I was not present in the Russell House at the conference described yesterday by Mr. Glidden in January, 1905, * * * but about that time I had a conversation with Mr. Lloyd concerning the matter. * * * Mr. Lloyd submitted the copy of a letter, Exhibit 9, which I believe was submitted yesterday. It was written January 16th. I would not be sure of the date.- I remember discussing the copy of the letter, and we objected to the clause of the extension of credit, and Mr. Lloyd admitted" that it was not in the agreement, but he thought it ought to be in, and he thought it was a good thing to put it in, and he was putting it in and would put it up to Mr. Smedley, and see if he would sign it, and Mr. Glidden and I objected, and later in the day he sent over a copy of another letter, and in that talk Mr. Lloyd went over what occurred at the meeting. He stated that day that the agreement was as set forth in the letter with the exception of the clause that we objected to, stipulating that there should be no further extension and credit and the bills should be paid.
“Q. What was the agreement about the extension to the Sail &; Sweep Publishing Company of credit for the next year ?
CIA. The proposition was that we had been on the R. L. Polk Printing Company’s books for $3,000 and over, which was practically cleared up by a note and subsequent paper transaction which appears on the books, and I remember that Mr. Lloyd made the remark at that particular discussion, that, having gotten that where he was sure of it he thought he could take some further chances on us, if it was necessary, and the understanding was—
“Q. He was stating to you what the understanding was ?
“A. I can’t state what he said exactly, but the substance of what he said was, if we needed it, but you will bear in mind we did not think we would need it at all. We thought we had our affairs straightened up, but the substance of his understanding was that, if we needed it, we were to have an extension of credit, and he thought he could go in as heavy as before. * * * The Polk Printing Company got $350 through Mr. Murray and credited it to us. They got the note of $2,800 and this $350, making $3,150 at that time. And Mr. Lloyd said, having gotten that out of the way, he would take his chances on our paper, if necessary. * * * I certainly do adhere to the proposition that there was a proposition on the part of Mr, Lloyd if we gave him $2,800, the $2,800 note, guaranteed by Mr. Smedley and Murray, that he was to give us credit for $2,800. . We were on the books at that time in the sum of $3,313.87. According to the agreement, the $2,800 note and the remainder was to be paid. The majority of it was paid in the paper deal and the little balance evidently not paid, but the balance of $160 I think was not paid, and consequently the amount which would be guaranteed by these men outside of their official capacity of the company was $2,800. I mean to say in addition to the $2,800 note, which had been guaranteed, that we were to have a further credit of $2,800 if it was necessary within a year.”

Defendants further put in testimony tending to prove that on July 20, 1905, when the Sail & Sweep note fell due, plaintiff accepted in place of such note the individual note of Mr. Murray, as follows:

“$2,800. Detroit, Mich., July 20, 1905.
‘1 On demand after date I promise to pay to the Polk Printing Company or order $2,800 at the Old Detroit National Bank at six per cent, interest.”

Also:

“He stopped the presses and the work on the magazine three or four times during the publication of that number, and my recollection is that the first form was on the press, being run, the first time he stopped the work. The first trouble come on when the magazine was in the press being printed and he objected to printing it. I don’t xemember the language he used, but he stated one or two little things. The general proposition was that Smedley was no good financially, and we had'to show him something or some one should take Mr. Smedley’s place or he would not go on. * * * He asked Mr. Glidden in my presence if Mr. Murray would shoulder that note himself, because he did not consider that Mr. Smedley was financially responsible. * * *
“Q. Did you have knowledge that Mr. Murray subsequently did go and clear the matter up personally by giving his own note ?
“A. Yes, sir.
“Q. Did you discuss it afterwards ?
“A. Mr. Lloyd told me that he'had Mr. Murray’s note.
“Q. Mr. Lloyd did tell you that he had Mr. Murray’s personal note for the old paper of Smedley and Murray ?
“A. Yes, sir. * * * I was present at the time when W. W. Murray gave the demand note. That was in the Polk Printing Company office. * * * It was given to replace the Sail & Sweep Publishing Company note, and Mr. Lloyd refused to accept the note that Mr. Smedley was on.
“Q. Mr. Lloyd refused to accept anything further from Mr. Smedley ?
“A. Yes, sir.
“Q. What did he say ?
“A. He said that Smedley was worthless, and his name was no good, <and he should have nothing further to do with it.”

At the close of the testimony, the court directed a verdict for plaintiff. Defendants bring the record to this court for review, assigning as errors:

(1) That the court erred in holding that evidence of the alleged oral contract to extend credit to defendants for $2,800 for another year, if needed, was incompetent, as tending to vary the terms of their written contract.
(2) That the court erred in not submitting to the jury as a question of fact whether plaintiff accepted the Murray note in place of the Sail & Sweep note, and thereby released the guarantors thereof.

1. We are of the opinion that the court did not err in refusing to consider the oral agreement as to an extension of credit. It appears from the undisputed evidence that plaintiff mailed, and the Sail & Sweep Company received, a letter on January 16th stating plaintiff’s understanding of the oral agreement entered into by them. Plaintiff’s bookkeeper testified that the letter was mailed as above printed. Defendants’ witnesses testified that the letter mailed “was practically the same as this, except the clause with reference to the payment of the monthly bills after ten days and no further requests for credit. That was stricken out, and otherwise the letter was practically as this was.” Plaintiff’s letter, as amended, stating its understanding of the contract, and defendants’ letter of guaranty, construed together, expressly purport to contain all of the elements of the agreement theretofore made, and are not subject to change by parol testimony. R. K. Carter Co. v. Weber, 138 Mich. 576.

2. We are of the opinion that the court erred in refusing to submit to the jury the question of fact raised by the conflicting testimony as to the substitution of the Murray note for the Sail & Sweep note guaranteed by defendants.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Grant, C. J.

text:
    R. L. POLK PRINTING CO. v. SMEDLEY.
    1. Guaranty— Contracts —Ambiguity — Parol Evidence — Admissibility — Future Accounts — Directing Verdict.
    Where a contract of guaranty is ambiguous, parol evidence is admissible to explain it; and where the undisputed evidence showed that the guaranty was made to cover a future indebtedness, the trial court properly directed a verdict for the amount unless it appeared upon the record that it had been paid.
    2. Payment — Application—Running Accounts — Guaranty.
    Where payments are made and credited generally upon an account, they will, in an action against a surety, be applied upon the indebtedness in the order of the creation of the several items; and, where the evidence shows that plaintiff kept a running account with the firm, an item of which ac- ' count had been guaranteed by defendant, and that subsequent payments had been made more than the item sued upon, the defendant was entitled to a judgment in his favor

      Error to Wayne; Mandell, J.
    Submitted November 16, 1908.
    (Docket No. 69.)
    Decided December 21, 1908.
    Assumpsit by the R. L. Polk Printing Company against John H. Smedley on the guaranty of the payment of a printing contract. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed, and no new trial ordered.

      Maybury, Lucking, Emmons & Helfman, for appellant.

      George W. Bates, for appellee.
    The plaintiff conducted a printing business in the city of Detroit. The Sail & Sweep Publishing Company published a magazine known as “ Sail & Sweep.” The printing was done by the plaintiff. The plaintiff had an unpaid account against the Sail & Sweep Publishing Company on June 15, 1904, amounting, as is claimed, to $2,888.55. The Sail &• Sweep Publishing Company desired plaintiff to print its July magazine. Some negotiations at this time were entered into between Mr. Lloyd, the manager of the plaintiff, and the defendant Smedley, looking to some security for the account. Lloyd died before this suit was tried. Consequently under the statute Mr. Smedley cannot testify to what took place between them. The result of the negotiations was that on June 15, 1904, defendant Smedley sent to plaintiff the following letter:
    “Mr. Charles W; Lloyd,
    “ Detroit, Mich.
    “ Dear Sir: Mr. Van Fleet this morning spoke to me concerning the Sail & Sweep Publishing Co.’s account with your firm. At present the directors of the company have a plan under way for taking care of your account, but we will be delayed for a short time because of the absence of Mr. Franklin H. Walker, of this city. In the meanwhile, in order that you may not feel alarmed, I, personally, will guarantee the account, although I presume you know that your account is fully covered by stock liabilities of the stockholders of the company.
    “Very truly yours,
    “John H. Smedley.”
    After this letter was written, plaintiff printed the July magazine, the cost of which was $486.24. It continued to publish other numbers into 1905. On January 14, 1905, the indebtedness of the Sail & Sweep Publishing Company to plaintiff being $3,318.87, the Sail & Sweep Publishing Company gave plaintiff a 90-day note, guaranteed by defendant Smedley and one Murray, which note is now in suit pending in this court. The court, upon the ground that the contract was ambiguous, permitted parol evidence to show the intention of the parties; the plaintiff contending that it was a continuing contract covering the past and future accounts, the defendant contending that it covered only the cost of publishing the July number of the magazine. The court directed a verdict for this amount, with interest. ' -,
   Grant, C. J.

(after stating the facts). It is urged on the part of the plaintiff that this was a continuing guaranty, covering both past' and future indebtedness, that such is the plain intent appearing upon the face of the guaranty, and that therefore parol evidence of conversations at and prior to the time of its execution and of the surrounding circumstances is inadmissible as tending to change the plain terms of the contract. This contention cannot be maintained. The contract is ambiguous. It is impossible to tell to what account it referred. If the-guaranty included solely a pre-existing account, it was without consideration and void. 1 Brandt on Suretyship & Guaranty (3d Ed.), § 97, and authorities cited; Walrath v. Thompson, 4 Hill (N. Y.), 200. If it referred to a future account, or if it included the past and also a future account, there would be a valuable consideration for the promise of guaranty. Parol evidence was therefore admissible to explain the ambiguity, and determine what account was intended to be covered by the guaranty. Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385; Walrath v. Thompson, supra; White’s Bank of Buffalo v. Myles, 73 N. Y. 335; 1 Brandt on Suretyship & Guaranty (3d Ed.), § 97. The mouths of the two persons, Mr. Lloyd and Mr. Smedley, who made the contract, being closed by the death of one, we must look to find other evidence of what the parties intended. Persons are presumed to know the law, and we cannot, therefore, assume that the parties to this contract intended to include only an account wholly pre-existing, and thus make a void contract.

One Fred Van Fleet was at the time of the transaction connected with the Sail & Sweep Publishing Company. He saw Mr. Lloyd, the manager of the company, about the publication of the July number. He testified that Mr. Lloyd asked to be secured, not for the old account, but for the expense of publishing the July number, before he published it; that witness went to see Mr. Smedley; that while in Mr. Smedley’s office Mr. Smedley had a telephonic conversation with Mr. Lloyd; and that, after this conversation, Mr. Smedley agreed to take care of the bill for publishing the July number. This is the only testimony of any probative force to show the intent of the parties, except that the plaintiff in January following took a guaranty for $2,800 from Smedley and Murray. There is nothing in the record to impeach or cast discredit upon the testimony of Mr. Yan Fleet. We think, therefore, that the trial judge was correct in holding that the guar- • anty covered only the expense of the July issue, and that he was correct in directing a verdict for that amount, unless the record showed that the amount had been paid. Was it paid ? The answer to that question depends upon how payments subsequently made should be applied. Plaintiff made no election. It kept a running account with the Sail & Sweep Publishing Company, charging it in the continuous account for work done, and crediting it on the same account with payments. Such was the status when this suit was commenced. We held in Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112, that, where payments are made and credited generally upon an account, they will, in an action against a surety, be applied upon the indebtedness in the order of the creation of the several items. See, also, Gard v. Stevens, 12 Mich. 292.

. Applying this rule — and we see no occasion to depart from it — the plaintiff’s account, guaranteed by the defendant, was paid, and he was entitled to have a verdict in his favor. For this reason, the judgment will be reversed, and no new trial ordered.

Blair, Ostrander, and Brooke, JJ., concurred. Montgomery, J., concurred in the result.


text:
    BLADECKA v. BAY CITY TRACTION & ELECTRIC CO.
    1. Street Railroads — Personal Injuries — Disoovered Peril-Question for Jury.
    In an action for personal injuries, where the evidence warrants the inference that defendant’s motorman recklessly ran his car into plaintiff’s vehicle which was standing in a place of danger, the question of defendant’s negligence after discovering plaintiff’s danger was properly submitted to the jury.

    2. Evidence — Opinion' Evidenoe — Admissibility.
    A witness who had had 17 years’ experience as motorman and conductor, was familiar with the place of injury and the car in question, and was informed as to the weather conditions on the day of the injury, was competent to testify in regard to the distance in which a car, running at various rates of speed, could he stopped.

      3. Same — Appeal and Error — Harmless Error.
    Testimony of said witness that the place of injury was frequently congested by travel, if erroneously admitted, was not so prejudicial as to justify a reversal.
    Error to Bay; Collins, J.
    Submitted November 17, 1908.
    (Docket No. 85.)
    Decided December 21, 1908.
    Case by Harriet Bladecka against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weadock & Duffy (L. N. Sharpe, of counsel), for appellant.

      Pierce & Kinnane, for appellee.

      As to doctrine of “last clear chance,” see note to Bogan v. Railroad Co. (N. C.), 55 L. R. A. 418.

   Blair, J.

This is an action to recover damages for injuries received through a collision with one of defendant’s electric cars. The collision occurred on the same bridge approach', and in nearly the same place, as that in the case of Daniels v. Electric Co., 143 Mich. 497, where the place of the accident, the location of the tracks, distances, and other surrounding physical facts are fully stated. Prior to the accident, plaintiff and her husband were driving east on the south side of the street, intending to cross the Third street bridge. At a point about 158 feet west of the bridge Bladecka looked back towards the west, where he could see about 1,000 feet, saw no car approaching, and did not look in that direction again. As he neared the bridge, he saw three rigs approaching on the north side thereof, but did not at first see that a west-bound car was following the rigs. When plaintiff and her husband got within a few feet of the bridge, the rigs going west crossed over to the south side to get out of the way of the west-bound car, and blocked the way in front of their horse and wagon. Mr. Bladecka stopped the horse, and remained in the same position for half a minute or more, where, owing to the nearness of the coping to the track, a collision was inevitable, if a car attempted to pass. While still standing in this position, one of defendant’s east-bound cars, of whose approach plaintiff and her husband were ignorant, collided with their wagon, and caused the injuries for which damages are sought. Defendant’s motorman testified:

‘ ‘ When I got within say 250 feet of the bridge, for at this time the wagon was on the .track, and that is why I let the car float, and rang the gohg so as to give this man a chance to get off, and it appeared to me that the man looked around and drove off the track. There is a little bit of a rise there near the bridge, and he was clear then, clear of the track, you might say, about two feet or three feet. There his wagon would be clear of the car, but he kept on going on á walk then, and got a little closer again to the track.. When I got within about 60 feet of him the car was running pretty slow, and I almost came to a stop, but did not stop. What I mean by almost stopping would be probably at the rate of a mile an hour. That is pretty slow. Then this man got clear of the track again and stopped his horse. When I saw that he had stopped —me being almost to a stop and on this little bit of a rise ■ — I put the power back onto the ear. That is, I thought I would-go by him, but I was not going over at the rate of from about three miles an hour, and then it appeared to me again — you see at that time I was within about, well, I would say 15 or 12 or 15 feet behind his rig — and it appeared to me that this man was going to cross the track ahead of me with his horse, then I shut the power off entirely and set the brake. * * * I presume likely they thought I was going to go a little too far, and these people began to pull back on the lines, and the horse being turned toward the track, and he backed up the wagon, and by the time the car got stopped the car was right opposite the hind wheel of the wagon, and the wagon came with a crash on the walking board of the car, right opposite the vestibule where I was standing. * * *
Q. Now, I understand you that this whole thing occurred, and this damage was done, by their backing the wagon into the car when the car was standing still ?
“A. Yes, sir.”

The court submitted the case to the jury, who found a verdict for plaintiff, and defendant brings the case to this court for review upon writ of error alleging that the court erred: First, in not directing a verdict for defendant; second, in the admission of testimony; third, in overruling defendant’s motion for a new trial.

1. The court instructed the jury that plaintiff was guilty of imputed negligence in getting into the dangerous position which she occupied at the time of the accident, but further charged as follows:

‘ ‘ If you find that the rig in which plaintiff was riding was, at the point claimed by her, near the west end of the Third street bridge, and close to the retaining wall, that her further passage onto and over said bridge was blocked by teams and other traffic thereon, and that the retaining wall prevented her from moving to a safe distance from the railway track, and if your further find that her dangerous position and situation was apparent to the motorman in charge of the defendant’s car, for a sufficient length of time to enable said motorman to stop his car and avoid running into plaintiff, and that said motorman, instead of stopping his car, negligently allowed the same to run upon and into said plaintiff while she was in the position aforesaid, and injured her, then the defendant is liable in this case, even though you should find that the plaintiff or her husband were originally negligent in driving into said dangerous position.”

Taking the most favorable view which the testimony warrants in plaintiff’s behalf, defendant’s motorman, having full knowledge of plaintiff’s predicament, and with full control of his car, recklessly ran into the wagon. This is not a case of a vehicle traveling parallel with the track and suddenly attempting to cross, and the cases applying to such situations cited by defendant’s counsel are not in point. This is the case of a standing vehicle maintaining its position of rest to the full knowledge of the motorman. The case is much stronger for plaintiff upon the facts than was the case of Daniels v. Electric Co., supra. We think the charge of the trial judge in this respect was clearly correct. It is not necessary to determine upon this record whether the circuit judge was justified in instructing the jury that plaintiff was guilty of negligence as a matter of law.

2. That the court erred in permitting the witness McKenzie to testify: (a) To the distance within which a car could be stopped at the bridge approach, running at various rates of speed, because the questions did not embody the conditions as they existed, nor the size or weight of the car. McKenzie testified that he had had 17 years’ experience as motorman.and conductor, was familiar with the west approach of the Third street bridge and with the car in question, and that his answers applied to that car. He was informed by a question that it was a dry, sunny day, in the middle of the afternoon. We think there was no error in admitting his testimony. (6) That the west end of the bridge approach is frequently congested with travel. If ’there was any error in admitting this testimony, which we do not determine, it was not so prejudicial as to justify a reversal of. the case.

The foregoing are the only questions which require consideration, and the judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    UTLEY v. UTLEY.
    Divorce — Separate Maintenance — Alimony—Modification of Decree.
    Charges of acts of personal violence and threats todo complainant personal injury, the effects of which are to make her nervous and constantly afraid, being sustained, a decree for separate maintenance is modified so as to grant an absolute divorce and a disposition of the property which-avoids the necessity of further personal relations. And where the testimony leaves uncertain the amount of money of which defendant is possessed, complainant is given leave to move for a modification of the decree for alimony.
    Cross-appeals from Lapeer; Smith, J.
    Submitted November 17, 1908.
    (Docket No. 140.)
    Decided December 21, 1908.
    Bill by Lucy Utley against Edwin Utley for a divorce. From the decree rendered, both parties appeal.
    Modified and affirmed.

      B. E. Reed, for complainant.

      Geer, Williams & Halpin, and Earl I. Heenan, for defendant.
   Ostrander, J.

The parties to this suit are each of them more than 60 years of age, have been married more than 40 years, and have two children, a son, 39, and a daughter, 35, years of age. The bill of complaint charges defendant with repeated acts of extreme cruelty, some of them acts of violence to the person of complainant, many of them occurring years ago. They have very little property, unless it is true, as charged, that defendant has a considerable sum of money, which he has usually carried on his person. The bill of complaint as originally drawn prayed for a divorce a vinculo and for alimony. An amendment to the bill, made, as the record recites, by order of the court, added a prayer for separate maintenance. The court decreed a separate maintenance with a division of property, and required defendant to pay a small sum to complainant, monthly, in advance. In this court, complainant asks for a decree of divorce and for a modification in her favor of the order for alimony. Defendant asks that the decree be set aside — in any event, that the order for alimony be modified to his advantage.

We agree with the learned circuit judge in finding that the charges of cruelty are sustained. These are charges of personal violence and of threats to do complainant personal injury, the effects of which are to make her nervous and constantly afraid. We are impressed that the parties should be relieved entirely of the relations entered upon with their marriage, and that a disposition of the property should be made which will render personal relations of any kind unnecessary and unlikely to occur. The decree below gives complainant title to the home, but it also gives to defendant the use, for his life, of the barn situated upon the premises and such use of the land as will serve his purpose in going to and from the barn. A careful reading of the record leaves us in doubt concerning the amount of money defendant 'has. We are not so well satisfied that he has any considerable amount of money that we feel warranted in ordering him to pay to complainant a sum in gross. We are not so well satisfied that he has not money, not discovered, that we feel warranted in denying to complainant the right to move hereafter, upon the footing of the decree to be entered, for a modification of the decree in this respect.

The decree of the circuit court will be so modified as to grant to the complainant a divorce, so as to relieve the real estate set off to her from any claim or right, of use or otherwise, on the part of defendant, and so as to increase the sum to be paid complainant $1 a week. In other respects, the decree of the court below is affirmed. Neither party will recover costs of this court as against the other.

Grant, C. J., and Blair, Montgomery, and Brooke, JJ., concurred.


text:
    PHILLIPS v. VILLAGE OF ARMADA.

    Municipal Corporations — Torts—Discharging Sewage — Damages — Evidence.
    In an action against a village for damages arising from the deposit of sewage in an open ditch adjacent to plaintiff’s home, and from the ditch into a stream flowing past his property, where there was no evidence from which the jury could determine the damage done by the sewer complained of and other sewers emptying into the same stream, the trial court should have eliminated the pollution of the stream from the consideration of the jury and limited plaintiff’s recovery to damages done by the open ditch.
    Error to Macomb; Erskine, J.
    Submitted November 17, 1908.
    (Docket No. 114.)
    Decided December 21, 1908.
    Case by Austin H. Phillips against the village of Armada for injury to property from the deposit of sewage. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      William, T. Hosner and Seth W. Knight, for appellant.

      James G. Tucker and Lynn M. Johnston, for appellee.
    The defendant village is a municipal corporation, organized under Act No. 3, Pub. Acts 1895. It is situated upon the banks of Deer creek, in Macomb county. From its source in St. Clair county, it flows through a well-settled farming community. The farming lands slope towards the creek, and the drainage from them naturally flows into the creek. On March 22, 1907, 2,500,000 gallons of water passed a given point near the village each hour. Plaintiff’s farm is located just south of the corporate limits of the village. Deer creek flows along its southerly edge. He has the usual farm buildings for housing his stock. A quarter of a mile above plaintiff’s house is located a slaughterhouse, draining into the creek. This creek flows through the village, entering it at the northerly side and flowing out at the southerly side. The village established a system of waterworks in 1903. It had sewers draining into the creek prior to and since the organization of the waterworks. Fulton street sewer was constructed in 1899. It is the southerly sewer of the village, and is of the same size as other sewers. It is about three-quarters of a mile in length and provided with catch basins for draining the surface water from the street. Before reaching plaintiff’s premises, it empties into an open ditch, about 10 rods in length, which empties into the creek. This ditch runs along the westerly side of the highway and a short distance from the plaintiff’s house on the east side of the highway. The kitchen sink of the village hotel and that of the village butcher shop were connected with this sewer. After the construction of the waterworks three house closets were connected with it in 1903, one in 1904, and two in 1905. Plaintiff gave evidence tending to show that this creek in very dry seasons becomes nearly or quite dry, except in the deep pools. Plaintiff claims an injury to his property from the deposit of the sewage in the ditch and into the creek from the ditch. For this injury he brought suit, and recovered a verdict and judgment.

       Rehearing denied March 3, 1909.

   Grant, C. J.

(after stating the facts). The record in this case is of unnecessary Jength. It contains all the testimony given upon the trial. There was a sharp conflict of evidence as to noxious and offensive vapors and smells arising from the open .ditch from the mouth of the sewer to the creek; the clear preponderance of evidence being in favor of the plaintiff upon this point. The condition of this open ditch is the gravamen of the plaintiff’s case. Counsel for defendant state in their brief the substance of the testimony of the witnesses who testified that in passing along the road they discovered no noxious smells. They do not quote the testimony to the contrary. This is not a suit in chancery in which this court determines the facts. A page or two of the record would have been sufficient, in stating what each side gave evidence tending to show upon this point. That filth was deposited along and in this open and level ditch is clearly shown by the witnesses for the plaintiff. Its deleterious effect is also clearly shown by the evidence on behalf of the plaintiff. Counsel for the plaintiff in their brief say:

“He (plaintiff) did complain of the pollution of Deer creek, and did insist that said creek was no suitable or proper outlet for the sewer; but the creation of a cesspool practically in his front yard was the cause of the most of the damage he asked compensation for.”

Plaintiff made no complaint and claims no damages resulting from the flowage of the other sewers of the village into the creek. He gave no evidence tending to show to what extent the water of the creek above the Pulton street sewer was polluted by the sewage into it, either by the village or the inhabitants above the village. For such damage clearly the defendant was not liable, and the court so instructed the jury. Under all the authorities, which we need not cite, the defendant possessed no right to dump its sewage into an open ditch by the plaintiff’s residence, which gave forth obnoxious and offensive odors. If the case had been submitted to the jury upon this, the chief cause of action, the judgment might be sustained. If this sewer had been constructed across this low ground with pipe and covered up, probably this suit would not have been brought.

It is very doubtful whether the sewage into the creek by the defendant is not, under the decisions, a reasonable use of the stream. The question is one of great importance to cities and villages located upon the rivers, creeks, and lakes of this State. The use of a stream reasonable at one time and one place may become unreasonable at another time and at another place. The reasonable use of a stream must be determined in the light of increased population, of proper sanitary measures, and the general welfare of the communities affected. The sewerage of villages and cities has become an absolute necessity for the public health. It is not enough to condemn a use as unreasonable because such a use may pollute to some extent the waters of the stream below. Its use by the upper riparian owners may be such as to render it unfit for domestic purposes by man, and yet such use may be reasonable. This subject is very fully discussed and many authorities cited and quoted from in People v. Hulbert, 131 Mich. 156 (64 L. R. A. 265). It is not essential to again cite them. After reviewing the authorities in that case, through Justice Moore, we said:

It is very clear from these cases that the lower proprietor has no superior right to the upper one, and may not say to him that, because the lower proprietor wants to use the water for drinking purposes only, the upper proprietor may not use the water for any other purpose. Each proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm, even though such use may in some degree lessen the volume of the stream, or affect the purity of the water. (Citing authorities.) This right is not affected by the fact that the lower proprietor is a municipality instead of an individual. (Citing authorities.) ”

We also said, after speaking of the use which the inhab- . itants make of the streams and lakes:

“ It is also known that, as a rule, the supply of drinking and cooking water is obtained from springs or wells.”

We are not prepared to say that the pollution of a stream by sewage from a municipality into a stream which renders the water below unfit for the use of man is unreasonable and may be enjoined. Neither are we prepared to say that, if such pollution rendered its use unfit for domestic animals, it is unreasonable and may be restrained. Probably no man would be permitted in these days to sell milk from cows who drink polluted water. Pollution which will carry disease to man will likely also carry disease to dumb animals. We refrain from further discussing this important question. The question is barely referred to in the brief of counsel for the plaintiff, and its decision is not essential to a determination of this case. It is sufficient to say that the plaintiff failed to give any evidence from which the jury could determine how much damage was done to him by the pollution of the water in the creek above the Pulton street sewer, and how much by the sewer itself. For this reason, upon this branch of the case, the court should have eliminated the pollution of the creek from the consideration of the jury, and limited plaintiff’s recovery to the damage done by the open ditch.

Judgment reversed, and new trial ordered.

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


author: Brooke, J.

text:
    KINGSTON v. GUCK.

    1. Adverse Possession — Separate Deeds of Contiguous Tracts — Dominion Over Part of Tract — Subsequent Conveyances.
    Where the same grantor conveys to the same grantee two separate descriptions of land, contiguous to each other, by separate deeds, which are thereafter used, dealt with, and deeded by the grantee and his successors in title as one description, acts of dominion over any portion of the land covered by the entire description are referable to the whole, in any event, after the two descriptions are merged in one.
    2. Same — Trespass—Acts of Ownership — Possession Consistent with.Character of Land.
    Where defendant and his immediate predecessors in title, in 1893 entered into possession of certain land, under color of right and assertion of ownership, and exercised acts of dominion over it consistent with its character without objection from the holder of the paper title until 1907, his title will be deemed established by adverse possession.
    Appeal from Keweenaw; Streeter, J.
    Submitted November 17, 1908.
    (Docket No. 92.)
    Decided December 21, 1908.
    Bill by John W. Kingston, receiver of the American Mining Company, against Frederick K. Guck, Edmund Bruneau, and others, to set aside a sale of land delinquent for taxes, and to remove a cloud from the title to said land. Defendants Bruneau filed an answer in the nature of a cross-bill claiming title to said land by adverse possession. From a decree for defendants, complainant appeals.
    Affirmed.

      Kerr & Petermann {Frank E. Robson, of counsel), for complainant.

      Hanchette & Lawton (D. H. Ball, of counsel for defendants.
    The complainant is the receiver of the American Mining Company, whose charter expired in 1894, appointed September 10, 1906, in proceedings pending in the Keweenaw circuit court in chancery, to wind up its affairs. Prior to 1877 the American Mining Company was the owner of the E. of section 11, town 57 north, range 32 west, in Keweenaw county, obtaining title under sundry conveyances, commencing with patents of the United States. The land in question was sold, as delinquent for the taxes assessed thereon for the year 1877, in two parcels. John Senter purchased the same from the State of Michigan as follows: The N. E. J of section 11 by tax deed dated August 5, 1880, and recorded August 13, 1880, and the S. E. i of section 11 by tax deed dated May 21, 1880, and recorded April 7, 1884. Senter also obtained tax deeds for each of the two parcels mentioned for the taxes of 1878, each of these deeds being dated May 16, 1906. Senter conveyed the E. £ of section 11 to Albert A. Brockway by deed dated May 24,1886, recorded November 28, 1888, and Brockway conveyed the same parcel to defendant Edmund Bruneau by warranty deed dated July 15, 1895, which deed was duly recorded. Mary Bruneau is the wife of Edmund. When the bill was filed (July 20, 1907) Frederick K. Guck was the recorded owner under a deed from Bruneau and wife, dated February, 1906, and defendant Faucett appeared to have some interest under a power of attorney acknowledged December 4,1906, and recorded. Guck and wife reconveyed to defendant Bruneau after the filing of the bill, July 30, 1907, and filed a disclaimer. Defendants Faucett and wife and Bruneau and wife answered, claiming by the chain of title from Senter and the tax deeds above mentioned and by adverse possession. The American Mining Company ceased business about 1877, and practically abandoned its lands. It had no officers or overseers in control or in charge of its property in Keweenaw county. Neither the stockholders, directors, nor officers took any action in caring for its property until 1906, when stockholder Fisher filed a bill to wind up the corporation. The case was heard on pleadings and proofs in open court in the Keweenaw circuit court in chancery. Bruneau, by his answer, as well as on the argument in the court below, relied upon both the 10 and 15 year statute of limitations. Subdivisions 2 and 3, § 9714, 3 Comp. Laws.
    The acts of adverse possession relied upon by the defendant Bruneau of himself and his grantors may be condensed as follows;
    Acts of Senter: May to September, 1883, and November, 1883, to March, 1884, between 700 and 800 cords of wood cut and sold to the Cliff Mine, and between 18 and 20 cords to families living at the Cliff Mine and vicinity. 1885: Between September, 1885, and March, 1886, pine timber amounting to upwards of 1,100,000 feet removed by Thomas Nester under deed from Senter covering the entire E. £ of section 11. 1886: 185 cords of wood cut and sold off the land. In May, 1886, the land was deeded to Albert A. Brockway as one tract.
    Acts of Brockway: In 1886 Brockway cut and sold 61 cords of wood. Between March and August, 1887, he cut and sold 389 cords of wood; also sold $5 worth of hay. In 1888 he sold hay off the premises to the value of $20. In 1889 he cut and sold 15|- cords of wood, and $20 worth of hay. In 1892 sold $6 worth of hay. In 1893 sold $4 worth of hay, and 3 cords of wood. In 1894 sold 3 cords of wood. In addition to these acts, the record shows that during each year of the ownership of Brockway he cut from the land in question wood for his own use in his residence (and in his store up to 1890), and that during each of the years of his ownership he either cut or sold the hay growing on the land. During one of these years — probably 1888 — Brockway went on the land with several men and cleared up a patch of ground several acres in extent, and caused it to be seeded, planting about a bushel or a bushel and a half of seed.
    Acts of Bruneau: 1895: Took possession of two tons of hay which had been cut on the land by a trespasser. Removed from the land wood which had been cut by Brockway during his ownership. 1896: Out about 75 cords of wood. 1897: Cut from 60 to 70 cords of wood. 1898: Cut hay and wood — about 60 to 70 cords. 1899: Built shanty for convenience of woodchoppers; also cut a few cords of wood. 1900: Cut about 1,000 cords of wood for Phoenix Company. 1901: Wood cut — a little less than 1,000 cords. 1902: Wood cut and sold — a little more than 1,000 cords. 1903: About 400 cords of wood cut and sold. 1904: Wood cut and'sold. 1905: Deeded strip to Keweenaw Railroad Company, and received therefor $300. From 1895 to 1905 cut hay every year, with the exception of one year, when it was burned over. The shanty has been occupied, with a few intermissions, since its erection, either by men working for Bruneau in the taking out of ties and cordwood, or by others, with his consent, who were working in the vicinity. From the year 1878 to the year 1903, inclusive, the taxes on the property in question were paid first by Senter; next by Brockway and finally by Bruneau, amounting in all to about $1,300.
    The finding of the lower court was in part as follows:
    “ I do not understand the rule of actual occupancy to mean that the one who claims to own and occupy the premises must be upon them every month or every year, but that his use of the premises must be such as the situation of the premises, their character, their adaptability for different purposes, may require in order to show an exclusive and continued possession. The premises in question were not adapted for farming purposes. So far as the surface was concerned, almost the entire value was in the timber and wood growing upon the land. It is claimed, on the part of the complainant, that all the acts shown to have been done by Senter, Brockway, or Bruneau are mere trespasses. Had these acts been done without claim of right, that might be true, but the undisputed testimony shows that from the time that Senter recorded his deeds when .he entered upon the lands and cut and sold wood therefrom, when he deeded the most valuable part to Nester, when Nester lumbered the tract, when Brockway cut wood and sold the right to cut hay, or cut hay himself upon the tract, when Bruneau continued in the same method of dealing with the premises, each one acted in all that he did as the owner of the premises, and each act was done as the act of the owner. For more than 20 years no act of ownership was performed by the American Mining Company nor by any person in its behalf. For more than 20 years no one attempted to disturb the possession of Bruneau, Brockway, or Senter, nor questioned his right to such possession as he asserted and maintained. There can be no doubt, under the testimony, that the possession of Bruneau and his grantors was actual, visible, open and notorious, distinct and hostile. I think under the decisions in this State there can be no doubt that the possession was also continuous. Taking into account the character of the land, the neighborhood in which it was situated, the intermittent demand for its. products, I have no hesitancy in deciding that the testimony establishes that the occupation was continuous. In Murray v. Hudson, 65 Mich. 670, on page 675, the court says:
    “ ‘ The possession of land cannot be more than the exercise of exclusive dominion over it. This possession or dominion cannot be the same or uniform in every case, and there may be degrees even in the exclusiveness of the exercise of ownership. The owner cannot literally occupy a whole tract. He cannot stand upon all of it, or hold it all in his hands. His possession must be.indicated by other acts; and these acts must vary according to the circumstances of each case.
    ‘ ‘ ‘ When one enters upon land under color of title and with claim of ownership, any acts of user which are continuous, and indicate unequivocally to the neighborhood in which the land is situated that it is appropriated exclusively to the individual use and ownership of the person making such entry, are sufficient to render the possession adverse.’
    “I find that every element necessary to constitute adverse possession has been established by the testimony in this case, and that all these elements existed for more than 15 years before the beginning of this action. It follows, then, that the bill of complaint should be dismissed, with costs to the defendant Bruneau, and a decree entered quieting the title of defendant Bruneau to the lands described.”

       Rehearing denied February 2, 1909.

   Brooke, J.

(after stating the facts). It is the claim of the complainant that all the a'cts relied upon by defendants, taken together, constituted nothing but an intermittent trespass upon the land, and cannot be held to amount to an adverse possession, as against the owner of the paper title. It is further the contention of the complainant that, because Senter acquired his apparent right to enter by virtue of two separate tax deeds from the State, one covering the N. E. ¿ and the other the S. E. \ of section 11, therefore it was incumbent upon the present owner to show continuous, separate, and distinct acts of dominion and locate them upon each quarter separately. We are unable to agree with this view. Where the same grantor conveys to the same grantee two separate descriptions of land, contiguous to each other, by separate instruments, which are thereafter used, dealt with, and deeded by the grantee and his successors in title as one description, we are of the opinion that acts of dominion over any portion of the land covered by the entire description are referable to the whole, in any event, after the two descriptions are merged in one. In 1885 Senter by his deed to Nester conveyed as to the pine timber the entire east half of the section, and in 1886 he sold it as one parcel to Brockway. There is no doubt that under the license thus granted Nester took off all the pine timber from both quarter sections. Brockway deeded to Bruneau as one parcel in 1895. It is apparent from the record that the acts of dominion of Brockway and Bruneau in taking out ties and the cutting of cordwood were committed indiscriminately upon all parts of the east half. The principle of law controlling this case is' clearly and correctly stated by the supreme court of Minnesota (Murphy v. Doyle, 37 Minn. 113), speaking through Mitchell, J., as follows:

“ The general doctrine of the courts in the United States is that, where the occupant or those under whom he claims enter into possession under claim of title, founding such claim upon some written instrument as being a conveyance of the premises in question, and there has been continued occupation of some part of the land included in such conveyance, he or they will be deemed to have been in the adverse possession of the whole of such premises if not in the adverse possession of anyone else.”

See, also, Morris v. McClary, 43 Minn. 348, where the court says:

“ If one has a deed or color of title to one entire tract of land, as to one whole lot or farm, which is uninclosed, and he is in actual possession of a part, the remainder not being actually occupied by any one, his deed or color of title will, ordinarily, extend his possession to the entire tract for the purpose of showing adverse possession.”

See, also, 1 Cyc. p. 1128, and cases there cited.

Much stress is laid upon the claim of complainant that mere acts of trespass cannot be held to sustain a title by adverse possession. This is unquestionably true. That, however, is not this case. From the time of the entry upon the land by Senter in 1883 to the filing of the bill in this case, operations of very considerable magnitude were carried on upon the land, openly and notoriously, and under a color of right and assertion of ownership, by Senter, Brockway, and Bruneau. During that period several thousand cords of wood have been cut and sold from the property, and upwards of 1,000,000 feet of pine taken therefrom and disposed of, to say nothing of the clearing and seeding of several acres and the annual removal of hay. The record is silent as to the final disposition of the pine in question, but the cordwood for upwards of 20 years has been taken in large quantities by Senter and his successors in title, and disposed of entirely in thegimmediate vicinity of the property, without objection from the holder of the paper title, who, from the year 1877 to the time of the filing of the bill, seemed content to allow Senter and his grantees to continue in possession of its property under the tax deeds, which are conceded to have been invalid. The title to the entire east half of the section, from 1883 to the time of the filing of the bill of complaint, was, by local reputation, first in Senter, then in Brock-way, and last of all in Bruneau. The case at bar is clearly distinguishable from Lasley v. Kniskern, 152 Mich. 244. In that case for a period of 10 years — from 1889 to 1899 — the defendant, claiming title by adverse possession, did nothing whatever upon the land. This court said:

“ It is not enough that a party sets up a hostile claim, and that that claim is known to the original owner. He who seeks to obtain title by adverse possession must not only have a hostile claim, but he must be able to point to a possession under it which is hostile to the original owner.”

Considering the character of the land, its general unfitness for cultivation, and the fact that Senter, Brock-way, and Bruneau, though none of them lived upon it, made such use of it as was consistent with its character and with their successive ownerships of it, we find no difficulty in agreeing with the conclusions of the learned circuit judge.

Decree affirmed.

Grant, O. J., and Blair, Montgomery and Ostrander, JJ., concurred.


text:
    DETROIT FREE PRESS v. PATTENGILL.

    Guaranty — Notice of Acceptance — When Required.
    Notice of acceptance is essential to bind as guarantor a person who, in response to the request of the principal, signs a guaranty for the payment of papers to be furnished him for sale, where the offer of the guarantee to furnish the papers was conditional upon its approval of the guarantor. De Oremer v. Anderson, 113 Mich. 578.
    Error to Ingham; Wiest, J.
    Submitted November 18, 1908.
    (Docket No. 143.)
    Decided December 21, 1908.
    Assumpsit by the Detroit Free Press against Henry R. Pattengill on a guaranty of the performance of a contract for the sale of certain papers. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Tuttle, McArthur & Dunnebacke, for appellant.

      Paudabaugh & Person, for appellee.

      In November, 1899, Mrs. M. A. Clarkson was constituted the circulating agent at Lansing of the Detroit Free Press; Mrs. M. B. Ferrey signing the customary guaranty-required by the Free Press company. On December 31, 1900, a lease of the agency was executed by Mrs. Clark-son to Mr. Willis M. Kimmel. This lease included the furniture and other appurtenances belonging to the agency, and was to continue in force one year, and, to secure its performance on the part of Kimmel, a bond was given to Mrs. Clarkson; the defendant, Pattengill, becoming Kimmel’s surety. The. Free Press, however, continued to .recognize Mrs. Clarkson as the agent of the company, and all communications from the Free Press office with respect to the agency continued to be sent in her name. This arrangement was found to be productive of confusion, and, to obviate the difficulty, Mr. Kimmel brought about an arrangement whereby the business of the agency should be conducted in his own name. Mr. Gillespie, circulation manager of the Free Press, came out to Lansing, and arrangements were completed; Kimmel agreeing to give security directly to the Free Press in place of Mrs. Clarkson, her connection with the business of the agency thereupon to cease. On Gillespie’s return to Detroit he sent to Kimmel a blank undertaking, accompanying the same with a letter, which reads as follows:
    “We inclose a bond, which, if signed by some good surety, responsible for the amount, and returned to us, will be accepted in place of the bond furnished by Mrs. Clarkson at the present time in payment of the account. We shall be very glad to send the papers direct to you as soon as the bond is on file at our office. When returning same, please make mention of this fact, so that the clerical force of thó office will understand it, provided the writer happens to be absent from the city.”
    The bond mentioned in the letter is the undertaking in suit. It was a printed form, the upper or contract portion of which had been crossed off with a lead pencil at the Free Press office before being sent out to Kimmel. It was presented to Mr. Pattengill by Mr. Kimmel shortly after its receipt by the latter, and was as follows:
    “December 31, 1891 (1901).
    “To The Detroit Free Press Go.,
    “Detroit, Mich.
    “You are hereby authorized to furnish W. M. Kimmel, of Lansing, Mich., with copies of the Detroit Free Press for sale, the undersigned hereby agreeing to become responsible to you for the prompt payment of all bills for such papers to the amount of $500.
    “The undersigned also agreeing to become responsible for any loss to the Free Press Co. not exceeding $300.00 in the event of the nonperformance of section six of the above agreement.
    [Signed] “ Henry R. Pattengill,
    “Surety, of Lansing, Mich.”
    After the paper was signed by Mr. Pattengill, it was returned to the Free Press office. Mr. Gillespie testified that it was sent to the Free Press office, and he presumes it came from Mr. Kimmel, but that there is no correspondence at the office to show whom it came from. Neither Mr. Pattengill nor Mr. Kimmel undertakes to say in what manner it was returned to the Free'Press. No notice of the receipt or acceptance of the undertaking was given by the Free Press to either Mr. Pattengill or Mr. Kimmel, other than thenceforward the business was done in Mr. Kimmel’s name, or, as Mr. Gillespie puts it, the bond was filed and the service given. Matters continued thus until 1906; Mr. Kimmel being regularly supplied with papers, and the lease between Mrs. Clarkson and Kimmel being continued in force by oral arrangement from time to time, except as-to the amount of rental. In December, 1906, the agency was terminated by the Free Press and the distribution of the papers at Lansing placed in other hands. A demand was made upon Mr. Pattengill in May following, and upon his refusal to settle, suit was brought. At the trial it was stipulated by counsel for the respective parties that the amount due and owing to the plaintiff'for papers furnished to Mr. Kimmel was the sum of $432.93. It is apparent from the record that Kimmel paid for all papers delivered to him by the Free Press during the years 1901, 1902, 1903, 1904, and 1905, and that the agreed balance was for papers delivered wholly in the year 1906. At the close of the proofs each party moved the court for a direction of a verdict. There being no disputed question of fact, after due consideration the court directed a verdict for the defendant.

       Rehearing denied May 35, 1909.

   Brooke, J.

(after stating the facts). It was the contention of the plaintiff in the case that the undertaking in question, its execution and delivery being admitted by the defendant, rendered the defendant liable to plaintiff in the amount of the conceded balance. The defendant urged: (a) That the undertaking was no more than an offer on the part of defendant to become surety for. Mr. Kimmel, and that, before the defendant could be bound, it was necessary that the Free Press company should notify him of its acceptance of him as guarantor; and (6) that, in any event, the amount of the defendant’s liability was limited to the sum of $500, and inasmuch as Kimmel paid for all the papers sent him in 1901, 1902, 1903, 1904, and 1905, a sum largely in excess of $500, the defendant’s liability under the guaranty was canceled. If, as contended by the plaintiff, the writing sued upon is not a collateral but an original promise, it is entirely obvious that the defendant’s liability thereunder is limited to the sum of $500, and inasmuch as Kimmel bought and paid for several thousand dollars’ worth of papers since the execution of the undertaking, his liability thereunder would clearly be at an end. We think the true construction of the undertaking is that it is a collateral guaranty. The situation of the parties indicates that it was the desire of the Free Press to have security from Kimmel for the payment of such papers as it should sell him (Kimmel). It was Pattengill’s object to furnish such security. The undertaking therefore must be construed as a guaranty, and, under the rule laid down in De Cremer v. Anderson, 113 Mich. 578, can only become binding upon the guarantor after notice of acceptance.

Was there such notice in this case? A careful examination of the record fails to disclose either notice or knowledge on the part of the defendant of the acceptance of his undertaking. It is true that he knew that Kimmel was receiving papers from the Free Press Company, and it is likewise true that for a time he received a copy of the Free Press gratuitously from Kimmel; but we do not think that either of these circumstances is sufficient to constitute notice to him of the acceptance of his undertaking. In the case of Davis Sewing Machine Co. v. Richards, 115 U. S. 524, it is said:

‘ ‘ If the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them except future advances to be made to the principal debtor, the guaranty is, in legal effect, an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract.”

We are unable to see in what particular the undertaking here sued upon differs from the guaranty described above. It was not signed by Pattengill at the request of plaintiff, no consideration passed from the plaintiff to Pattengill or was acknowledged in the undertaking, it was not accepted by the plaintiff at the time it was given, the Free Press company did not accept it until it had satisfied itself of the responsibility of Pattengill, and no notice of its acceptance was ever given Pattengill., nor, under the facts of the case, is he chargeable with knowledge of its acceptance.

Judgment is affirmed.

Grínt, O. J., and Blair, Ostrander, and Hooker, JJ., concurred.


text:
    BOLLENBACHER v. REID.
    1. Sales — Contracts—Requisites^-Meetinu of Minds.
    Plaintiff, a contractor and broker, after preliminary negotiations, made an offer to defendants to furnish cut stone for a “court-house and jail.” Other following correspondence isolated to furnishing stone for one or the other of the buildings but not for both. In reply to an inquiry from plaintiff as uo whether or not he was to furnish the stone, defendants telegraphed : “ We'accept your bid for cut stone for court-house and jail here,” confirming the telegram by a letter. Held, there being no doubt what proposition defendants accepted, the minds of the parties met and the contract was fully executed.
    2. Same — Contracts—Requisites — Time of Delivery — Time of Payment.
    A contract of sale, made by proposal and acceptance thereof, is binding and valid although it omitted to specify the time of delivery and payment; since the law implies a delivery within a reasonable time, and fixes the time of payment to he upon the delivery of the goods.
    3. Same — Contracts—Formal Contracts — Certainty.
    Where, in a contract of sale made by proposal and acceptance thereof, no mention is made of the execution of a formal contract and the furnishing of a bond for the amount thereof, a demand therefor does not qualify its terms, since the parties were bound by the contract made.
    Error to Wayne; Rohnert,~J.
    Submitted November 18, 1908.
    (Docket No. 118.)
    Decided December 21, 1908.
    Assumpsit by George W. Bollenbacher against Edward W. Reid and Wallace B. Reid, copartners as E. W. Reid & Co., for breach of contract for the sale of certain stone. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Maybury, Lucking, Emmons & Helfman (Harry V. Blakeley, of counsel), for appellant.

      Geer, Williams, Martin & Butler, for appellees.
    The plaintiff is a contractor and broker, residing in Bloomington, Ind., dealing in Bedford stone. Defendants are contractors and builders, who had secured a contract for the erection of a court-house and jail in the city of Flint, Mich. The contract called for the use of Bed-ford stone. Plaintiff claims that he made a contract with the defendants to furnish the stone, and that the defendants repudiated the contract. He instituted this suit to recover profits lost by reason of the repudiation. The contract is in writing, and, if made, was made by correspondence between the parties. The negotiations were commenced by a letter from the defendants to the plaintiff, dated July 27, 1903, asking for prices on balusters, columns, etc. On July 28th plaintiff replied, quoting prices, stating that he could not give a price on capitals without sketch showing amount of carving and asked for sketches, saying that he would then name his lowest prices. July 30th defendants wrote a letter, inclosing ■sketch of columns with turned bases and carved capitals and carved pilaster caps. They also asked prices on dimension stone. On August 3d plaintiff replied quoting prices. On August 12th defendants wrote plaintiff as follows:

      “Dear Sir: We have contract for court-house and jail here. There will be about 4,000 cu. ft. of cut stone in this work. There will be considerable carved work and some moulding and plain; also some turned columns and balusters. We would like to know if we send you the plans and specifications if you can give us a lump bid on this work, all cut and ready to put in the building ? Please advise us by return mail.”
    August 14th plaintiff replied, requesting them to send plans and specifications, and saying that he would make a lump bid. August 18th the plans, specifications, and details were sent. In the letter defendants asked figures on all cut stone work cut for building f. o. b. Flint. On August 25th plaintiff wrote defendants:
    “ Gentlemen: In reply to yours of the 24th, we beg to say that I am returning by express today your plans of court-house and sheriff’s residence. I will furnish all cut stone for court-house that is specified Bedford stone for the sum of $7,800.00 f. o. b. Flint,.Mich., cut ready to set. I will furnish all the cut Bedford stone ready to set for the sheriff’s residence and jail for the sum of $454.00 f. o. b. Flint, Mich. Trusting these figures will meet your views and I shall hear from you soon, I am,” etc.
    August 26th defendants wrote plaintiff as follows:

      “Dear Sir: Please advise us by return mail whether you intend to do the carving for this work at the quarries, or if the stone will be shipped here and carved at the building. In case you intend, to carve the stone at the quarries, state whether it will be crated there or not, and whether there would be any extra charge for crating. Also state whether the stone would be all jointed to the right length. We want to know just what cutting we would have to do here, if any. Also state whether you intend to water-rub the stone as is. specified.”
    On August 27th plaintiff replied as follows:
    “ Replying to yours of the 26th, beg to state that we are undecided whether or not we will do the carving at the quarry or in the building, if the former we will crate it without extra charge. The stone-will be cut and rubbed ready to set in the wall as shown by plans and specifications. If awarded the contract, will place it with a responsible stone company. Hoping to hear from you soon, I am,” etc.
    August 29th defendants again wrote plaintiff:
    “Will you please quote us price on cut stone, finished ready to set in building, except the carving. We want the carved blocks for pilasters, columns, and keystone sawed four sides, and balance finished complete on cars here.”
    August 31st plaintiff answered:
    “ Replying to yours of the 29th, beg to say that I will furnish the Bedford stone all cut ready to set in the wall for the sum of $6,840.00, as shown on plans and specifications for the Genesee court-house, except that it does not include carving and the blocks for pilaster, columns, and keystones to be sawed 4 sides and balance finished complete f. o. b. cars, Flint, Mich. I want to hear from you at once, for the reason that mills are crowded with work. Hoping to hear from you soon, I am,” etc.
    September 4th plaintiff wrote defendants:
    “ I have been expecting to hear from you by each mail. If I am to do the work I want to know as soon as possible as mills are being crowded with fall work.”
    To this defendants replied by telegram September 9th:
    “We accept your bid for cut stone for court-house and jail here.”
    Simultaneously with that telegram the defendants wrote the following letter:
    “We will accept your bid of $8,254.00 for all of the Bedford stone for the court-house, sheriff’s residence, and jail here. All cut and carved and finished ready to set in the building f. o. b. cars Flint. And have telegraphed you to that effect this morning. We will want the stone for the sheriff’s residence and jail first. We will want it all by the 15th of October. And we will want the stone for basement of court-house, including water table, about November first. And the balance of stone on or before April 10th, 1904. We have plenty of room here for the stone, and can take it all at once if convenient for you. We will forward you the plans and specifications by express today. We will also send you contract. And ask that you furnish us a surety company’s bond for the amount of the contract. ”
    On the same day, after receiving the telegram, plaintiff wrote defendants:
    “ Your wire awarding me the contract for the cut Bed-ford stone for court-house and jail received. As soon as you send me the plans, specifications, and fullest details will commence on same. I have sublet this contract to South Side Stone Go., of this city, a responsible firm. Awaiting your further commands, I am,” etc.

      On the 18th plaintiff wrote defendants as follows:
    “Plans and specifications here. The South Side Stone Co. will commence on cut stone work as soon as full size details reach us. In regard to security company bond, will say that we have never given a bond, but can do it. I have been selling stone for ten years and have never failed in delivering the stone. You can retain 80 per cent, of every invoice of stone until all stone is delivered. Our terms are cash in 30 days from date of invoice. The South Side Stone Co. is responsible and will give you the stone and workmanship called for in the plans and specifications. Send F. S. D. at once.”
    On September 14th defendants wrote plaintiff, inclosing a contract which they requested him to sign and return with a surety company’s bond for the amount of the contract, saying:
    “We do not question your ability in the least to complete this contract, but, as we are obliged to give bonds to secure labor, material, and also to complete the work, we consider it only a matter of business to ask you to furnish us a bond for your part of the work.”
    On September 18th defendants wrote plaintiff:
    “ We believe we are wasting time fooling with you. Please return plans and specifications at once, and oblige.”
    Other letters passed between the parties, but we do not think them material. When the plaintiff had rested, the court directed a verdict for the defendants, holding that there was no completed contract, because the telegram did not state to which proposition it was in reply — that is, that it might apply to the proposition contained in the letter of August 85th, or to that contained in the letter of August 31st — and for the further reason that the defendants inclosed the contract in the letter of September 14th “apparently with the idea of having the terms of the contract definitely defined in a writing, and not left undetermined upon the letters so far as written.”
   Grant, C. J.

(after stating the facts). 1. That the defendants intended by thoir telegram to accept a definite proposition made by plaintiff to them is beyond doubt. They did not say:

“We accept or will accept one of your two propositions.”

Such a telegram would have been absurd. They said:

“We accept your bid for cut stone for court-house and jail here.”

That telegram of acceptance referred only to one proposition, and was clearly intended to be so understood by the plaintiff. Both understood the proposition to which it referred. This is evidenced by the terms of the letter of plaintiff and the telegram of defendant and letter sent by them just after the telegram was sent. There was no room for misunderstanding. If defendants had intended to leave a doubt as to which proposition their telegram referred, they would have used language appropriate to express that purpose. They knew from plaintiff’s letters the importance of haste in the matter, and the necessity urged by plaintiff for a determination at once. The proposition in the letter of August 25th proposed to furnish stone for the court-house and jail, two separate buildings. ' It was the only letter of the two using the terms “court-house and jail.” The telegram used the same words. That proposition included the carving. Four days later defendants asked a proposition to furnish the cut stone without the carving for the Genesee courthouse, not the court-house and jail. The first proposition referred to two buildings, the latter to one. There being no doubt what proposition the defendants accepted, the minds of the parties met and the contract was fully executed.

2. Was the contract made by the proposal and acceptance sufficiently definite and clear in its terms to make a binding contract? It contained all the essentials of a complete contract, to wit, the amount “all cut stone for court-house and sheriff’s residence and jail.” It fixed the price and place of delivery. It omitted to specify the time of delivery, but this was not essential. Where no time for delivery is fixed by the contract, the law implies delivery within a reasonable time. Stange v. Wilson, 17 Mich. 342; Bolton v. Riddle, 35 Mich. 13. It fixed no time of payment. The law fixes the time of payment under such a contract to be upon the delivery of the goods. Lamont v. LeFevre, 96 Mich. 175. The execution of a formal, written contract was not mentioned in the correspondence; neither was one required. The contract was not qualified by the subsequent letter of the same date requesting a bond, nor by the request for a formal written contract. Culton v. Gilchrist, 92 Iowa, 718; H. H. King & Co. v. Dahl, 82 Minn. 240; Turner v. McCormick, 56 W. Va. 161 (67 L. R. A. 853); Sanders v. Fruit Co., 144 N. Y. 209 (29 L. R. A. 431); 9 Cyc. pp. 290, 291; Hubbell v. Palmer, 76 Mich. 441; Farrow v. Bresler, 108 Mich. 564. There is nothing in the correspondence to indicate .that the parties understood that they were making a merely preliminary agreement, and that a contract complete in all its terms was to be subsequently executed. Either party was at liberty to refuse to execute a formal agreement, relying upon the written agreement already established by the correspondence. Even if there had been an understanding that a contract was to be executed and one of the parties had afterwards refused to sign it, he would still be bound by the contract established by the correspondence. Sanders v. Fruit Co., supra.

The judgment is reversed, and new trial ordered.

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