author: Moore, J. Grant, J.

text:
    OUELLETTE v. MICHIGAN ALKALI CO.
    Master and Servant — Defective Appliances — Inspection — Question for Jury.
    Plaintiff, an employé of defendant, was injured while at work on a 'derrick, by the giving way of a board of which he was obliged to take hold, and which his testimony tended to show was rotten. The derrick was a comparatively frail strc c^ure, exposed to the elements, and had been erected about four years. There was no evidence of any inspection by the master. Held, that the case was one for the jury. Grant, J., dissenting.
    Error to Wayne; Hosmer, J.
    Submitted December 12, 1901.
    Decided March 4, 1902.

      Case by John E. Ouellette against the Michigan Alkali Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gray & Gray and L. 8. Trowbridge, Jr., for appellant.

      Thomas A. E. WeadocJc, for appellee.
   Moore, J.

The plaintiff recovered a judgment for personal injuries received by him while in the employ of defendant. The defendant has brought the case here by writ of error. The accompanying sketch will aid in understanding the situation.

When the accident occurred, the plaintiff was standing upon a crosspiece one inch by eight or ten inches wide, at a point where the lower star is. He was holding on at a point where the upper star is, with one of his hands, to a board one inch by six inches wide. His work required him to go to all parts of the derrick, supporting himself by standing upon and holding to any of the crosspieces in the derrick where he happened to be needed. His statement of the accident is as follows:

“March 19th, the day I was hurt, was a sort of cloudy day. I was sent up the derrick, and I was getting hold of the block, the single block, to pull it out of the derrick, —that is in the derrick, — and send it down to the ground to pull up some pipe in through the slot; and while I was holding on the derrick and reaching for my hook, with the other hand reaching for my hook, that board came away that I had hold Of, causing me to fall to the roof of this building. From there I slid down and struck the ground. I fell from the roof of the building to the ground. I should judge it was about 15 feet from the place I fell to the roof of the building, and about 10 feet from the roof to the ground.”

He also says the board which broke looked as if it was old,- — -as if it was rotten. His testimony, also, was that he had no knowledge of this defect until the accident happened.

On the trial a different version from that of the plaintiff as to how the accident occurred was given on the part of defendant by Mr. Gettleman, who said:

“At the time of the accident, I was running the engine myself. Ouellette went up the ladder until he got to the roof. Then he got onto the block, — gives himself a swing, so that, in getting up, he could land himself near the slot. He went from the roof onto the pulley block. The pulley was being raised into the air, going up slowly, and he went up with the pulley. He went up until his hands .were about the top of the slot. He was swinging himself at the same time, so that he could take hold of that brace, and carry that or swing the block out through the slot and down to the ground. In swinging, he miscalculated his distance, and in grabbing for this girth he did not get it. He got below, and got hold of this brace, and pulled it off, and came down, — came down onto the roof, and onto the ground. When he came upon the braces, he came with a drop of about nine feet before he struck it, and the brace broke off, and then he fell to the roof.”

In his charge to the jury the circuit judge told them, if they believed Mr. Gettleman’s version of the transaction, plaintiff could not recover. He also told them if plaintiff, in going up and down the derrick, had seen the condition of the board, and knew or ought to have known of the risk he assumed, then he could not recover. He also charged the jury as follows:

“While the derrick in its inception was unquestionably fit and proper for work and for its employés, it may have become, by reason of the elements or by reason of something of that nature, unfit for the purpose and the safety of the employés. Now, you have heard the testimony in this case. You have heard the testimony of the plaintiff, who says he climbed up the ladder, and, from climbing up the ladder, he then went around to the slot, where he was to operate and put ijhe block through the slot to take a pipe into the derrick itself. You have heard his testimony as to his taking hold of one of these crosspieces, — I don’t know the technical term for them, — and that he took hold of that crosspiece, and, leaning out to reach for the rope, that the crosspiece came away, and so that he himself was thrown down to the roof of the shanty in the bottom of the derrick, and from thence fell to the ground. Now, from that testimony, gentlemen of the jury, I think you may find that the company has not exercised that reasonable diligence that a company should exercise in the supervision of its structure, and that in their failure to discover a defect in the board you may find that they have been negligent, and that through this negligence, without fault on the part of the plaintiff, he received the injury in question.”

It is said this was error, and that a verdict should have been directed for defendant. The record discloses the derrick was put up in 1896. It does not show that from then until the time of the accident any inspection was made of it for the purpose of determining whether the braces or other pieces of timber had become rotten and decayed, so as to make the structure unsafe for the employ és whose duties required them to climb about the derrick. In Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298), it is said:

' “As between the employer and his employes, it is the duty of the master to furnish suitable machinery, and see that it is kept in repair, and he is bound to exercise reasonable care to prevent accidents; which care necessarily has relation to the parties, the business in which they are engaged, the wear and tear upon the machinery, and the varying exigencies which require vigilance and attention, conforming in amount and degree to the circumstances of each particular case.
“It is not necessary, in order to recover for injuries resulting from defective machinery, that the master had actual knowledge of such defects, but it is enough to show such facts and circumstances to exist that, if he had exercised reasonable care and diligence, he would have ascertained its true condition by examination and inspection.”

See, also, same case in 82 Mich. 453 (46 N. W. 733); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572), Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Tangney v. J B. Wilson & Co., 87 Mich. 453 (49 N. W. 666); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645).

Since writing the foregoing I have been handed the opinion of Justice Grant. I do not think the testimony warrants the inferences he draws from it. In the record the testimony appears in the narrative form, and not by questions and answers. I think it fairly appears from the testimony of the plaintiff that, when the accident occurred, the board was rotten and defective. Unless this court is to undertake to pass upon the credibility of witnesses, an issue of fact was raised between the plaintiff and the witnesses for the defendant, which should be settled by the jury, and not by this court. The record also shows this derrick, like all derricks made for the same purpose, was a comparatively frail structure, without any 'cover over it, exposed to the winds and rains, and subjected to the strain incident to the use of such a structure. -Under such circumstances, unless the repeated decisions of this court are to be overruled, I do not think it can be said, as a matter of law, the time had not yet come for an inspection. Indeed, if the version given by the plaintiff is true, it is apparent that an inspection ought to have been made, making it clearly a case for the jury. I do not see how a case could more nearly come within the doctrine an-, nounced in Johnson v. Spear, supra, and the cases there cited, than is this case. The trial judge carefully guarded the interests of the defendant, and I think the judgment should be affirmed.

Hooker, O. J., and Montgomery, J., concurred with Moore, J

Grant, J.

(dissenting). The duty of the defendant towards the plaintiff is alleged in the declaration to have been to furnish him a safe place in, which to work. The negligenoe charged is that “the derrick had become rotten, unsound, ■ and unsafe, and that its condition was known to the defendant.” Plaintiff had been in the employ of the defendant from April 6, 1899, to March 19, 1900, except for a portion of the latter part of the year 1899. He had been constantly at work in climbing on this derrick from January to March 19, 1900, when the accident occurred. He was employed for that purpose. The derrick had been erected only four years. It was painted red. The brace broke near the middle. The pieces did not fall, but remained attached. Plaintiff testified: “After I struck the ground, I looked up in the derrick, about 30 or 35 feet, and saw that the brace was broken. After I went back to work there (May 28th), I saw that it was broken off.” On redirect examination he testified: “The board that broke looked as if it was old, — as if it was rotten.” If this statement refers to its appearance as he looked up from the ground after he fell, where he lay with a broken ankle and injured back, it is not entitled to any credence. If it refers to its condition before he fell, he could not, of course, recover; for it would then have been his duty to call the attention of his employer to its condition. Failing in this, he would have assumed the risk. If it refers to the time he returned to work, — Wo months after the accident,— there is no testimony to indicate under what circumstances he saw it. or what examination he made. Whether the pieces were still hanging to the derrick, 35 feet in the air, or whether they had been taken off and were lying on the ground, exposed to the storm, weather, and dirt, or whether he made any examination at all, is left to conjecture. ' There is nothing in this testimony to bring home to the defendant knowledge that the brace was defective or that an inspection was required. Whether this rotten appearance appeared upon the outside, or whether it was only discoverable at and by the breaking of the brace, is also wholly, conjectural. The mere fact that the brace broke is therefore the sole basis to support a finding of negligence. To hold that such indefinite testimony as to the appearance of the brace is sufficient evidence to show negligence would be a reproach to the law. Parties cannot be deprived of their property upon such worthless testimony.

If the testimony on the part of the defense as to the manner of the accident was true, the breaking of the brace is easily accounted for. This, however, would not be sufficient to entail liability upon defendant. It was incumbent upon the .plaintiff to show, not only that an inspection would have disclosed the defect, but that the time between its erection and the accident was such that defendant might have expected decay and weakness. There is no evidence to show any such condition. No complaint is made, and no testimony was introduced to indicate, that this derrick was not properly constructed, and with sound material. The evidence adduced by the defendant shows that it was constructed in the usual manner, and of apparently sound material, and that, according to experience, the structure could be expected to last for several years longer without danger, The court instructed the jury that no fault could be found with the construction of the derrick; that it was erected in accordance with the usual pattern, and was similar to all the derricks in that vicinity; and that there was no evidence that, at the time of its construction, the material used was not reasonably fit for the purpose for which it was used. Employers are not called upon to make an inspection until experience has shown that the time has come when an inspection is reasonably necessary to insure safety. Plaintiff, under his testimony, was doing the work in the usual way. He had been doing the same work for months, — climbing about over this derrick, at the same place, and evidently frequently having hold of the same brace. He had seen nothing to indicate weakness or decay. For some reason, wholly unexplained, it broke. This is not a case of machinery which is wearing out. It is a case of a structure which is conceded to have been erected of sufficient strength and material to accomplish the purpose for which it was erected. The brace was a permanent one, and the defendant had no more reason to anticipate dry rot, or a hidden defect, than would a farmer expect to find such a condition in a brace to his barn, four years after he erected it. The authorities cited in my Brother’s opinion involve the duty of inspection when inspection becomes necessary. They have no bearing, in my judgment, upon a case where common experience in like matters has shown that the time has not come within which decay may be looked for, and thereby inspection rendered necessary. For this reason I shall not attempt to analyze them.

This case is, in my judgment, controlled by Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240). There two large pieces of timber were placed over a chasm in a mine, for men to walk over. The timbers had been in use, and on the very day of the accident men had frequently walked over them. "While the plaintiff was walking across, one of the timbers broke, in consequence of which he fell into the chasm and was seriously injured. The timbers had been in place five years, in a mine, where decay is more rapid than when situated above the ground, and covered with paint. The evidence on the part of the defendant showed that the timber disclosed no defect when put in, and that five years was not time sufficient to cause dangerous decay or weakness. The timberman had made only a casual examination, and had not applied the simple and usual tests. Why the timber broke was wholly unexplained ; and the court said:

“The mere fact of such injury is no evidence of such fault. * * * The case affords no safe ground for anything beyond conjecture; and if the master can be held liable under the circumstances which the record discloses, on mere guesses or inferences respecting the existence of fault somewhere, the rule that an employé assumes the ordinary risks of his employment will be wholly done away with.”

Wherein does that case differ in principle from this? There was no evidence to show that the mining company had not exercised due care in the selection of the timber. Experience had shown that the time for decay and weakness had not come. Whether there was a concealed knot, or a space of concealed dry rot, not apparent upon examination, or whether it broke from some other defect, was wholly a matter of conjecture.

Where a machine failed to respond to the release of a lever, in consequence of which plaintiff was injured, it was held that this created no presumption of negligence; and Quincy Mining Co. v. Kitts was cited with approval. Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004). In Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850), plaintiff sought to recover upon the sole proof that pieces of a boiler, upon which he was at work, fell upon him. The claim of plaintiff was that the accident showed that the boiler was not properly secured in position. In Robinson v. Charles Wright & Co., 94 Mich. 283 (53 N. W. 938), an elevator fell because the key or pin which held the wheel on the axle had come out, and the eye of one of the balance ropes had slipped off the hook. It was held in the above cases that there was no evidence of negligence.

In my judgment, the above cases in principle and reason control this case. It seems to me that to sustain this verdict would make every owner of a structure an insurer of the soundness of the materials used in its construction.

I think the judgment should be reversed, and no new ’ trial ordered.

Long, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J. Grant, J.

license: Public Domain

text:
    HOLLIDAY v. SNOW.
    1. Mortgages — Debts Secured.
    A note previously indorsed by H. for W. is within a mortgage to secure an existing indebtedness and “any and all accommodation indorsements made” by H. for W. up to the sum of §3,000, to which extent H. “agrees to indorse for W. * * * as from time to time required,” the total of said indorsements in no event to exceed said sum of §3,000.
    2. Same — Foreclosure—Release op Personal Liability — Subrogation.
    W., to secure his indebtedness to H., assigned to him contracts made by W. for the sale of land, gave him deeds of the land, and assigned to him certain mortgages. Then, as collateral security for the payment of such indebtedness out of said contracts and mortgages, W. gave H. a mortgage on other lands, which lands W. afterwards deeded to S., W. agreeing to pay and discharge the mortgage thereon. Thereafter H., with knowledge of the deed to S., took surrenders of all but one of the land contracts from the vendees, and foreclosed the other contract and the mortgages assigned him, bidding in the lands in his name, all under an arrangement with W. that he was not to take the property as against W., and that the amounts bid on the foreclosure should not bind him as the amounts to be credited on his claim. Held, that while such arrangement was good as against S., and while he could not insist that H. should exhaust all personal remedies before resorting to the lands deeded to S., he had a right, in a suit by H. to foreclose all the securities for his claim,'to have the property other than that so deeded sold first, and to have credit to the extent to which he may have been prejudiced in his right to be subrogated to H.’s security by the release of responsible vendees or mortgagors from their personal liability. Grant, J., dissenting from the last proposition; there being nothing to indicate bad faith on the part of H. or W.
    3. Same — Appeal—Remanding Record por Evidence.
    Where the amount chargeable against defendant’s land depended on whether those primarily liable for the debt, who had been released by the creditor, were financially responsible, as to which there was no proof, the case was remanded therefor, notwithstanding the law presumes solvency. Grant, J., dissenting.

      Appeal from Wayne; Frazer, J.
    Submitted November 14, 1901.
    Decided March 4, 1902.
    Bill by William P. Holliday against Mary A. Snow and others, impleaded with Robert J. Wilson and wife, to foreclose a mortgage. From a decree for complainant, •defendants appeal.
    Case remanded for further evidence.

      Barbour & Bexford, for complainant.

      Walker & Spalding, for defendants.
   Hooker, C. J.

On March 1, 1894, Robert J. Wilson ■sold and assigned to the complainant nine contracts upon lands which he had sold to different persons, at the same time giving to the complainant warranty deeds of the premises covered by them. He also sold and assigned two mortgages upon real estate, in Grand Rapids and Green-ville respectively. The aggregate amount due Wilson upon these was upwards of $17,000. The Grand Rapids mortgage was subject to a prior mortgage.

On November 1, 1894, Wilson gave the complainant a mortgage upon real property in Detroit, called the “ Coronado Flats.” It was expressed to be a collateral security for the payment to complainant, out of the contracts and mortgages aforesaid, of the sum of $16,675, with interest from March 1, 1894, and security also for “any and all accommodation indorsements made by him for said Wilson, up to the sum of $3,000; to the extent of which sum said Holliday [complainant] agrees to indorse for said Wilson negotiable bank paper in such sum or sums as from time to time required by said Wilson, but in no event shall the total of said indorsements exceed said sum of $3,000.”

In February, 1895, Wilson sold and conveyed the Coronado property to Snow, agreeing with him that he would pay and discharge of record the Holliday mortgage thereon within six months. The complainant learned of this sale soon after it occurred. He afterwards obtained possession of the premises covered by eight of the land contracts, through the surrender of the contracts by the respective vendees therein. The other contract, called the “Tomlin-son Contract,” and the two mortgages first mentioned, were foreclosed, and the premises were bid in by him, under an arrangement with Wilson whereby he was not to take such property as against Wilson, and the amount bid was not to bind complainant as the amount to be credited on his claim. He paid no money in the transaction upon his bids. It does not appear that Snow knew anything about the surrenders or foreclosures, or the bidding arrangement between complainant and Wilson, and it is claimed that there is no evidence as to whether or not the vendees in the land contracts were pecuniarily responsible. *

Snow died in October, 1897, and this suit was brought to foreclose the interest of Wilson in all of the parcels, and the mortgage on the Coronado Flats. The widow and three minor children of Snow, and his executor, defend. Wilson allowed the bill to be taken as confessed. It prays for the sale of the several parcels in a specified order, the Coronado Flats being last. The circuit court made a decree in substantial conformity to the prayer of the bill, and the defendants, with the exception of the Wilsons, have appealed.

The claim of the complainant includes the sum of $1,500, which he asserts that he paid upon a note indorsed by him. The fact of payment does not seem to be denied, but defendants claim that this note is not within the provision of the mortgage upon the Coronado Flats. The clause of the mortgage applicable to this question is as follows:

“It is understood and agreed that this mortgage shall also stand as security to said William P. Holliday, party of the second part herein, for any and all accommodation indorsements made by him for said Robert J. Wilson, up to the sum of $3,000; to the extent of which sum said Holliday, in accepting this mortgage, agrees to indorse for said Wilson negotiable bank paper in such sum or sums as from time to time required by said Wilson, but in no event shall the total of said indorsements exceed said sum of $3,000.”

The mortgage was dated November 1, 1894. The note in question was dated March 1, 1894, which wah the date of the assignment of the land contracts and mortgages to the complainant. The date of payment is in dispute. We are of the opinion that the learned circuit judge placed the correct construction on this provision, in view of the circumstances under which the mortgage was given. That construction does no violence to the language used, and we feel justified in inferring that the complainant was taking security for all his claims, and that the parties did not intend to make an exception of this note.

The effect of the warranty deeds and assignments of the land contracts was to create equitable mortgages on the interest of Wilson in the lands, subject to the equitable title in the vendees. The assignment of the mortgages amounted to a mortgage of the same, or, under our rule that a mortgage does not convey a title, at least a pledge of the mortgages. So far as the land itself was concerned in either case, there was a limitation on Holliday’s claim, which, at most, covered the amount due Wilson upon the respective instruments; i. e., the mortgages and contracts. If the amount due him was less than the value of the land, or if the mortgagors and vendees were irresponsible, Holliday would be benefited by the surrender of the contracts and the foreclosure of the mortgages. That seems to have been the view taken by Wilson and Holliday, the latter being willing to permit the foreclosures and surrenders to be made in his name (title being in him), with a view to putting the titles where Wilson could realize upon the lands and pay Holliday’s claim. We think this should be looked upon, not as an attempt to foreclose his securities for the purpose of extinguishing his debt, but to foreclose and cut off the equities of the mortgagors and vendees for the benefit of Wilson, and the increase of his own security. We think that there can be no doubt of Wilson’s right to redeem these lands at any time, notwithstanding such proceedings, and the only important question in the case is whether the defendants may complain.

By his purchase of the Coronado Flats, it became important to Snow that Holliday should secure his pay from Wilson directly, or through the other securities, to the end that none of the burden should fall upon the Coronado Flats. We understand that his counsel do not contend that Holliday might not have foreclosed upon the Coronado Flats first, and it is clear that, upon payment of the debt, Snow might have been subrogated as to all of the securities; but it is contended that he did not do that,— i. e., foreclose upon the Coronado Flats first, — and, having attempted to foreclose the other mortgages, and taken a surrender of the land contracts, he must apply such securities to their full amount upon his debt, to the relief of the Coronado Flats, whatever his rights may be as against Wilson.

We think that the foreclosures and surrenders should not be construed as an attempt to collect Holliday’s debt, and that defendants’ claim in that particular is not well founded. If they have a right to any credit growing out of those transactions, it is because Holliday had some tangible security over and beyond the land covered by .said contracts and mortgages. Their counsel claim that Holliday, as the pledgee of the mortgages and assignee of the contracts, had security to the extent of the personal liability of the several and respective mortgagors and vendees, and that they, the defendants, suffered injury through their release by the surrender of the contracts, and the failure to collect deficiencies arising upon the foreclosure of the mortgages.

The complainant’s bill attempts to foreclose all of the securities for his claim. While we think that the defendants have a right to have other parcels sold before the Coronado Flats can be disposed of, we are not satisfied that they have a right to insist that complainant shall exhaust his remedies for the collection of the debt, against not only the debtor himself, but against the several and respective mortgagors and vendees referred to, before he can sell the flats. We know of no authority for such a rule, and understand the general practice to be to sell the mortgaged premises in the proper order, leaving subsequent purchasers and incumbrancers to pay and reimburse themselves through subrogation if their property is threatened. This view does not justify the complainant in impairing his security to the injury of Snow’s right of subrogation, and, if it is made to appear that he has actually done so, the defendants would be entitled to a corresponding credit.

We have seen that the complainant has foreclosed two mortgages and one land contract, and bid in the property practically for Wilson. So far as saiil lands are subject to sale upon this foreclosure, the defendants have not been deprived of a remedy against them by subrogation. It is obvious, however, that the amount of such bids may have lessened the extent of the mortgagors’ personal liability, and if the lands were worth less than the amount bid, and will not produce such amount, the personal liability has been disproportionately reduced. That is very clearly shown in the case of the Grand Rapids mortgage, where the entire title was cut off by the subsequent foreclosure of a prior mortgage, and in the Greenville mortgage, where, by the mutual consent of Wilson and complainant, land bid in for $4,200 was sold by complainant for $2,300, making a net loss on that transaction of $1,900. Th¿ Same question arises on the land contracts which were surrendered. By accepting these surrenders, the complainant has released the vendees from their personal liability upon their respective contracts. If such liability exceeded the value of the lands, there was, theoretically at least, a lessening of the security, to which the defendants might have claimed a right of subrogation. They should receive credit upon the amount that is chargeable against their land, if it appears that they have been injured.

We are of the opinion that the defendants cannot insist that the complainant’s claim be reduced by the amount of the bids at foreclosure sales of the mortgages and land contract. Nor can they complain of a failure to collect, or attempt to collect, deficiencies arising upon such sales, for they may be subrogated to the complainant’s rights by paying the debt, and may enforce collection by appropriate proceedings. Where, however, there has been a voluntary release whereby the security has been actually lessened, we think they are entitled to credit, if there be any such. This raises questions of fact; e. g., were any of these mortgagors or vendees financially responsible, so that their contracts could have been enforced? It is said that we have no proof on this subject, and each party insists that the burden of proof is upon the other. We understand that the law presumes solvency, not insolvency. Yet we fully appreciate the probabilities indicated by the action of Wilson and the complainant in attempting to cut off outstanding equities upon the property mortgaged and contracted. Few men release a personal liability if valuable. But this is not evidence to overcome th.e presumption of solvency. We have here a claim of $24,000, which we are asked to wipe out, so far as defendants’ liability is concerned. How much may be realized from the other lands we cannot tell, but apparently a large sum is chargeable upon the Coronado Flats, unless the complainant has done an improbable thing, viz., surrendered valuable security. We are reluctant to permit this to be decided upon a bare presumption, when proof is probably attainable. Again, it is alleged in the bill that the course taken by complainant was with the consent of Snow.

We feel justified in remanding this record to the circuit court, with leave to the parties to take proofs upon these subjects, and direction to the circuit judge to hear, settle, and return the same, together with the cause, with his opinion thereon, with all consistent speed. The costs will abide the further order of the court. It is so ordered.

Moore and Montgomery, JJ., concurred with Hooker, C. J. ,

Grant, J.

(dissenting). I see no reason why this case

should be remanded for further testimony. Even if it should have been found that some of the vendees in these land contracts were responsible, still, in the absence of bad faith or an attempt to defraud Mr. Wilson’s grantee, Snow, 3 do not think the proceedings are open to this controversy on the part of Mr. Snow’s heirs. The testimony establishes the fact that Mr. Wilson and Mr. Holliday considered it for the. best interest of all concerned that these contracts be surrendered without further expense. Upon the neglect or refusal of the vendees to carry out their contracts, the vendor has three remedies: (1) Bills for specific performance; (2) suits at law to recover the purchase price; (3) repossession of the property, and suits to recover damages for a breach of the contract. Mr. Wilson was personally responsible to Mr. Holliday. Mr. Snow was not. Mr. Snow had taken Mr. Wilson’s personal obligation to pay the mortgage debt. It seems to me to have been clearly understood, under these circumstances, that Wilson and Holliday controlled the securities conveyed to Holliday by these mortgages and contracts, bound of course to exercise the utmost good faith to realize from them in reduction of the debt due from Wilson to Holliday. Mr. Wilson was of the opinion that it would be better for him and for all concerned to take back the land, and not to take proceedings against the vendees to enforce these contracts. He was the man most interested. Were he and Mr. Holliday under obligations to get the assent of Mr. Snow to these proceedings ? Suppose Mr. Snow had refused, would Mr. Holliday have been compelled to resort to legal proceedings against the vendees, when both he and Wilson were satisfied that it would be better to take the property and sell it in discharge of the mortgage ? I think not. There seems to be no claim that Holliday and Wilson did not act in good faith, and, having done so, I think the decree should be affirmed. In all other respects I concur in the conclusion reached by my Brother Hooker.

Long, J., did not sit.

       Subsequently, on stipulation of the parties, the decree below was affirmed, with costs to complainant.


author: Grant, J.

text:
    SAX v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Written Contracts — Parol Evidence.
    Where no fraud or mistake is claimed in making a written contract, and it contains no ambiguity, parol evidence of the conversations and negotiations prior thereto is inadmissible.
    2. Master and Servant — Contract op Employment — Construction — Railroad Brakeman.
    Where plaintiff, who had been injured while in defendant’s, employ as a spare brakeman, entered into a written contract, with defendant whereby, in consideration of his re-employment for such time as his services and conduct should be satisfactory, he released all claims for damages, the term “reemployment” means the same service as that in which he was formerly employed; and a lay-off because of the discontinuance of the services of a brakeman on his trains was not a breach of the contract.
    3. Same — Breach—Damages.
    Under a contract for the employment of a brakeman for such time as his services and conduct shall be satisfactory, by which he is liable to temporary suspension of employment' without pay, and is under no obligation to remain in such employment, a discharge contrary to the terms of the contract would entitle the employé to nominal damages only.
    4. Same — Trial—Authority op Agent — Directing Verdict.
    Where, in an action against a railroad company for the breach of a contract of employment, it conclusively appeared that the officer who made the contract had no authority to make it, the court should have directed a verdict for defendant.
    Error to Shiawassee; Smith, J.
    Submitted January 7,. 1902.
    Decided March 4, 1902.

      Case by William J. Sax against the Detroit, Grand Haven & Milwaukee Railway Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The following contract was executed between the defendant and the plaintiff:
    ‘‘ Chicago & Grand Trunk Railway Company. Detroit, Grand Haven & Milwaukee Railway Company. Toledo, Saginaw & Muskegon Railway Company. Cincinnati, Saginaw & Mackinaw Railway Company. Grand Trunk Railway, Michigan Division.
    “ Whereas, on the 30th day of September, 1895, I, William Sax, was an employe of the Detroit, Grand Haven & Milwaukee Railway, and as such employé was engaged as freight brakeman; and Whereas, I, the said William Sax, received certain injuries, as follows: While coupling G. T. car No. 2,579 and M. D. T. 4,434, at HoHy, had my left hand badly crushed between drawbars of above cars; and Whereas, the said company denies any negligence on the part of itself, its officers, agents, and employés, and denies any legal liability for the injuries so as aforesaid by me received, but is nevertheless willing to compromise and settle the claim on the terms following:
    “Therefore, for the purpose of fully ending and determining the question, and of compromising and settling all claims on my part, I, the said William Sax, for and in consideration of the premises, and of my re-employment by said company for such time as my services and conduct shall be satisfactory to the officers of said company in whose department I may be employed, do hereby waive and relinquish all claims which I may have against said company for damages, and do hereby release said company from all claims for such damages.
    “Witness my hand and seal this 17th day of January, A. D. 1896.
    “William J. Sax.
    “E. Wykes, F. Brown, Witnesses.”
    Plaintiff was permitted to testify to conversations with certain officers of the defendant in regard to his employment, had before the above contract was executed. He was put to work as brakeman on passenger trains known as Nos. 41 and 42. He testified that, after working three or four months, he was “laid off.” Defendant admitted on the trial that plaintiff was laid off, for the reason that the services of the brakeman on those trains were dispensed with. The only evidence that he afterwards sought employment with defendant is his own testimony that:
    “On Saturday before July 4th I had a conversation with Mr. Cooper, the train-master. He says, ‘ Monday is the 4th; I will write you Tuesday.’ I have been waiting ever since for that letter. ”
    Testimony was introduced showing his age, and wages he received as brakeman.
    . The court instructed the jury that the claim of the plaintiff was that defendant agreed to ‘ ‘ give him re-employment so long as his services and conduct were satisfactory. * * *
    “If you find that the defendant entered into a contract with the plaintiff to give him employment as passenger brakeman so long as plaintiff’s conduct and services were satisfactory to the company, and afterwards laid him off on account of discontinuing the services of a brakeman on certain trains, and that such laying off amounted to a discharge, then plaintiff is entitled to recover such damages as he has suffered, and as he will suffer in the future, from the breach of the contract; * * * and in estimating such damages you may consider what he was earning and what he was likely to earn while he was actually employed and likely to be employed under the contract.”
    The jury rendered a verdict for plaintiff for $2,613.75.

      E: W. Meddaugh (Geer & Williams, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Grant, J.

(after stating the facts). 1. No fraud or mistake is claimed in making the contract. Its terms are explicit. It contains no ambiguity. Parol evidence of the conversations and negotiations prior thereto was therefore inadmissible, and should have been excluded.

2. The term “re-employment,” used in the contract, means the same service in which he had formerly been employed, namely, that of a “spare brakeman,” — liable to be laid off when no brakeman was needed, and to be re-employed when one was. Phares v. Railway Co., 20 Ind. App. 54 (50 N. E. 306). The fact that he had been employed regularly for three or four months, either on passenger or freight trains, did not constitute him a regular brakeman. His services were discontinued because they were not needed. Such discontinuance is expressly provided for in the contract. If, therefore, he was permanently discharged, it was by the act of the train-master in not writing a letter as he promised to. It is, however, unnecessary to determine this question.

3. The first judgment in this case was reversed because we held that the contract was not one for life, and that the trial court therefore erred in admitting the mortality tables. 125 Mich. 252 (84 N. W. 314). The other questions now presented were not then determined. The main question now is, Is this contract one for the violation of which future damages can be recovered ? What basis is there for the determination of such damages ? If there be no basis, the judgment cannot stand. Upon the first trial the case was submitted to the jury upon the theory of a life contract. The mortality tables then furnished some basis for the determination of the damages, which the jury fixed at $1,950. Upon the second trial, with this basis eliminated, and the jury instructed that it was not a life contract, they have increased the former verdict by nearly $700, and found the damages even to the odd cents. Plaintiff did not bind himself to remain in the employ of the defendant for a day. He could leave at any time without violating his contract. Defendant could discharge him at any time by saying to him, “Your services and conduct are not satisfactory.” His employment was not to be continuous, but was liable to interruption if a brakeman was not needed. During the time of the interruption he was not entitled to pay. In order to reach a verdict, it was necessary for the jury to fix the time when the contract would be terminated. That being fixed, and his age and monthly wage being found, the present value of his services could be determined. The jury must then determine the time of the interruption, and the difference between the two amounts would be the amount of the judgment. Upon no other theory can the verdict be sustained. But the record contains no evidence upon these points, and, in the very nature of things, none could be produced. There is no foundation for even a guess by a jury upon either question of fact, because either could terminate the contract at will, and it was equally impossible to tell how much of the time he would be employed. The jury were turned loose into a field of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances, none can be assessed. Pulliam v. Schimpf, 109 Ala. 179 (19 South. 428); Bolles v. Sachs, 37 Minn. 315 (33 N. W. 862); East Line, etc., R. Co. v. Scott, 72 Tex. 70 (10 S. W. 99, 13 Am. St. Rep. 758, 38 Am. & Eng. R. Cas. 21); Louisville, etc., R. Co. v. Offutt, 99 Ky. 427 (36 S. W. 181, 59 Am. St. Rep. 467). No such question was presented in Brighton v. Railway Co., 103 Mich. 420 (61 N. W. 550), where the contract was for lifp. If the plaintiff was discharged by defendant in violation of the agreement, he could recover, at most, only nominal damages. If he was not discharged, but only laid off because his services were not needed, he could not recover. In either event his action must fail.

It is urged that this point was determined by the former opinion, and therefore is res adjudicata. "Whatever may be our views on this question, we find it unnecessary to determine it. The former case was submitted to the jury upon the theory of a parol life contract. It now conclusively appears by this record that the officer of the defendant with whom plaintiff claims his contract was made had no authority to make it, and the court should have so instructed the jury, and directed a verdict for the defendant.

Reversed and new trial ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Hooker, C. J.

text:
    VETTERLY v. McNEAL.
    1. Trespass — Title—Possession—Instructions.
    In trespass quare clausum, a request to charge that title alone, even if found in plaintiff, would not entitle him to recover, was sufficiently covered by an instruction that plaintiff could not recover unless found to have been in actual possession.
    2. Same — Right of Entry.
    One cannot be held liable in trespass for peaceably entering on his own land in the wrongful possession of another.
    3. Taxation — Description of Lands.
    A description of land in a tax deed as the “west fractional half ” of a given section is identical in effect with that of the “west fractional quarter”, of such section, which was employed in the anterior proceedings, where the land borders on one of the Great Lakes, and lies wholly south of the extended quarter line.
    4. Same — Certificate of Error.
    Where a certificate of error issued by the auditor general purported to cancel a tax deed because the property was returned delinquent, advertised, and bid off to the State under one description, while the sale' and deed were made under another description, and, seven days after the certificate was issued, the auditor general issued a deed of the same premises under the description first mentioned, it will be presumed that the certificate was not based on any other defect than the alleged misdescription.
    5. Same — Validity—Collateral Attack.
    A certificate of error issued by the auditor general purporting to cancel a tax deed, if judicial, is the act of a limited tribunal, and if it shows affirmatively on its face that it was issued on a supposed defect, which was clearly not such as a matter of law, it will be treated as void in any proceeding.

      6. Same.
    Whether such certificate, to be valid, must set out the errors relied on for its issuance, — qucere.
    7. Same.
    A certificate by the auditor general to. the effect that a deed of State tax lands for the taxes of certain years, including 1885, was erroneously executed, for specified x'easons not applicable to the tax of 1885, does not operate to cancel the deed so far as it relates to the title for that year.
    Error to Berrien; Coolidge, J.
    Submitted January 8, 1902.
    Decided March 4, 1902.
    Trespass quare clausum fregit by August Vetterly against James W. McNeal. From a judgment for plaintiff, defendant brings error.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Hooker, C. J.

This action was trespass quare clausum, begun in justice’s court, and certified to the circuit court upon plea of title, where the plaintiff prevailed, and the defendant has brought error; the judgment being based upon the verdict of a jury of $4.87 in plaintiff’s favor. The locus in quo is a governmental fractional subdivision of section 18, which lies contiguous to Lake Michigan, and, according to the plat, contains 56.70 acres. The accompanying drawing shows the situation. The plaintiff owns the land on section 19, lying south of it, and has for some years been in possession thereof. He claimed to own the premises in dispute, and offered testimony to show title under various tax deeds. On the other hand, the defendant claimed to have been in the actual possession, and that the alleged acts were not trespasses for that reason, and for the further reason that he owned the fee under tax deeds from the State. The court instructed the jury that “the real and only question for consideration in this case is which of these parties had the actual possession of the lands in controversy on the 24th of August, 1900.”

Under the charge, the jury must have found that the plaintiff was in actual possession, and that the defendant was not, as that is the only theory upon which the verdict is reconcilable with the charge. Counsel for the defendant say that it was error to permit the jury to find that the plaintiff was in either actual or constructive possession. As he did -not leave the latter question to the jury, we need not consider questions relating to the plaintiff’s title in this connection.

In connection with the claim that the question of plaintiff’s actual possession should not have been left to the jury, counsel for the defendant allege error upon the refusal to direct the jury to find that the defendant was in actual possession. We are of the opinion that the record contains evidence which makes these disputed questions of fact, and therefore the court committed no error in leaving them to the jury.

It was not error to refuse to instruct the jury that the title alone, even if found in the plaintiff, would not entitle plaintiff to recover. It was covered by the instruction that plaintiff could not recover unless he was found to have been in actual possession.

Actual possession by the plaintiff being made the crucial question in the case, and being determined by the jury, other questions become unimportant, except as-they relate to instructions regarding what constitutes actual possession, or themselves present a controlling principle superior to that of actual possession by the plaintiff. Thus, the court instructed the jury that the defendant’s deeds were void, and conveyed no title. If it can be said that title in the defendant would constitute a defense notwithstanding plaintiff’s actual possession, we must investigate the questions relating to such title. It is the general rule that a defendant owning the title to land cannot be found guilty of trespass for peaceably entering upon the same. Smith v. McAdam, 3 Mich. 506. See, also, 26 Am. & Eng. Enc. Law, pp. 600, 601, where numerous authorities are collected.

The defendant claimed title upon two grounds — First, under the deeds from the auditor general; second, by adverse possession. It is not necessary to discuss the latter, as the jury must have found that there was no such title in determining that plaintiff was in possession. Under the proof of paper title, a legal question was presented. This was evidently so understood by the trial judge, and he decided it by holding it void. To understand this question, a further statement of fact is required. The defendant received two auditor general’s deeds for taxes of the years 1885 to 1894, inclusive, dated May 8, 1899, at which time he paid the delinquent taxes for the years 1895 to 1898, inclusive. On March 3, 1900, the auditor general issued two certificates of error purporting to cancel these deeds for the following reasons, viz.: The deed for the taxes of 1891 for the reason that only the west fractional one-quarter of section 18 was returned delinquent, advertised, decreed, and bid in to the State, while the sale was made of, and deed issued for, the west fractional one-half of said section. The other deed was canceled for the following reasons, viz.:

“ Southwest fractional quarter of section 18, town 8 S., and range 21 W., Berrien county, was erroneously sold and deeded for said years’ taxes, for the following reasons: Sale for taxes for 1886 invalid for the reason it contained a reassessed tax of 1883, the items being in fact the taxes rejected for the year 1884; sale for taxes of 1887 and 1888 was invalid, there being no dollar mark in the decree for either year; sale for taxes for 1889 and 1890 was invalid for the reason there was no report of sale in either year; sale for taxes of 1892 and 1893 and 1894 was invalid for the reason held as State tax land for taxes assessed for the year 1901, and also for other jurisdictional reasons; sale of 1894, no proof of publication; sale for taxes of 1892 and 1893, decree entered without jurisdiction.”

It is contended by counsel for the defendant that the description west fractional quarter of section 18 is identical, in effect, with that of west fractional half of section 18. This we think is so, as will be seen from the plat. It is claimed that the deeds issued to defendant were not void for the reason stated, and that a cancellation upon that ground is void, and, as that is the only reason given for the cancellation of the deed for the tax of 1891, defendant’s title is complete under the deed for the tax of that year; also under the deed for the tax of 1885, which is said not to have been canceled. On the other hand, it is urged (1) that the certificate of error cannot be collaterally attacked; and, (2) if it could be, there is no presumption that there were not other defects than the one mentioned in the deed for the taxes of 1891.

We think the latter contention may be disposed of by saying that the record shows that, seven days after issuing the certificate of error, a deed was issued of the same premises to the plaintiff under the description west fractional quarter of section 18. We feel justified in assuming that the auditor general would not have done this if his certificate of error had been based on any defect not therein stated.

The certificate of error, if a judicial act, is one of a limited tribunal, whose jurisdiction should, under ordinary rules, appear upon the face of its proceedings; and whether or not the failure of a certificate to affirmatively show the jurisdiction, by stating the error acted upon, would be fatal to the certificate, — which we need not decide, — we are of the opinion that in any proceeding a certificate which shows affirmatively that it was issued upon a supposed error or defect, which was clearly not such as a matter of law, should be treated as void. That being the case here, the court should not have instructed the jury that the defendant had no title, as on the face of the proceedings he had title under his deed for the tax of 1891, which was not affected by the certificate of error or the subsequent deed to plaintiff.

Again, the certificate of error does not purport to cancel the tax of 1885 or the deed for the tax of 1885. Had such title been deeded by a separate deed, it could not be claimed that it was affected. Being included with taxes for other years in a common deed, it is said that the certificate goes to the whole deed. This is not a necessary conclusion from the act. The deed might be annulled in part by the certificate, and not in toto, if the errors did not affect all of the titles covered by it, which apparently they did not.

Some questions are raised over the nature of the evidence to prove possession and adverse possession; but we do not discuss them, thinking that our former decisions are a sufficient guide for future proceedings.

The judgment is reversed, and a new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Hooker, O. J.

text:
    MOORE v. PEAR.
    Trespass — Municipal Corporations — Possession—Estoppel.
    In trespass quare clausum against the servants of a village, the fact that the village authorities have assessed the premises for taxation in the name of plaintiff, and have collected the taxes from him, does not estop defendants to deny his possession at the time of the alleged trespass.
    Error to Allegan; Padgham, J.
    Submitted January 9, 190%.
    Decided March 4, 1902.
    Trespass quare clausum fregit by Horace D. Moore against John H. Pear and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Charles Thew (Wilkes & Hoffman, of counsel), for appellants.

      W. B. Williams & Son & Thompson (Dallas Boudeman, of counsel), for appellee.
   Hooker, O. J.

This action is trespass quare clausum. The locus in quo is wild land, unimproved except as the village of Saugatuek has fitted and used it for a part of its park. The defendants are its servants, who removed the plaintiff’s tent by direction of the village council, and they defend upon the ground that the village had title and was' in possession. Upon the other hand, the plaintiff claims to have been in possession at the time of the alleged trespass. Each party claimed title under tax and other deeds and by adverse possession. The learned circuit judge did not submit the question of title to the jury, or pass upon it, but directed a verdict for the plaintiff upon the ground that, inasmuch as the village authorities had assessed and collected taxes against the plaintiff up to and including 1899, it was estopped thereby from denying his occupancy, and consequently the defendants were estopped from denying their guilt. The view taken is made plain by a discussion preliminary to the charge. The judge said:

“Now, it is admitted on the part of the defendants — at least it is not controverted — that the village of Saugatuck had assessed this property to Mr. Moore since '1896. I think Mr. Moore’s testimony was that he had paid the taxes to the village of Saugatuck every year since 1885, except two years, — 1887 and 1891, — in which he said it was not assessed to him or anybody, as he could find. I say it is not controverted that the records from the village show that it has been asssessed to Mr. Moore continuously since 1895. That is shown by the records themselves up to 1899, I think, — last year. His last assessment and receipt for taxes was 1899.
“Now, while counsel claim that the question of estoppel is settled and decided in this State by the case of Hayes v. Livingston, in 34 Mich. 384 (22 Am. Rep. 533), I am unable to see the application of that case to the facts in this case. In that case it was an estoppel*» pais. There was no writing regarding that estoppel. It was simply the,say-so, as against them, as to whether he did not say that a certain man owned the deed. In other words, it was attempt to make a conveyance by parol, which, of course, could not be done i,n this State; and the doctrine was settled at that time that an estoppel in pais cannot be used where the title to realty is in question. But, in my judgment, it is not necessary that any conveyance should be worked from one party to the other, or that it should work any conveyance. It is not necessary that the title to this property in this ease should be settled, under the evidence in the case. The question is, Can the village take a position, or such a position, by taxing this property upon their rolls, and the board of review and the president and secretary or clerk of the village certify that this property has been properly assessed, and take the money for it, and then afterwards say that Mr. Moore, on this occasion in July last, was not entitled to the possession of that property ? It is not necessary that they should say, ‘ We have got a title, and can be allowed to put in that title against Mr. Moore’s.’ It is not necessary to go to that extent. But if Mr. Moore was in possession of that property on the 3d of July last, and had been for three or four days in possession, peaceably, under the circumstances could the village undertake by force to put him out of possession ? That is all there is of it. So it goes to the possession, and not to the title, really, and in that way the •case of Hayes v. Livingston would not apply.
“The way I view the law is this: That the village having assessed this property, and having acknowledged by its solemn records that Mr. Moore was the occupant of this property, in 1895, 1896, 1897, 1898, and 1899, can they be heard now to turn around and say, when they attempt to remove him from the premises, ‘We didn’t lead you to believe that you should occupy, as you have been, these premises, and we shall remove you by force ? ’ ”

We are unable to concur in this. If we may assume, for the purpose of the argument, that the village really had title, it certainly could not be devested by the acts of the assessor and collector in assessing the premises belonging to the village in the name of the plaintiff and receiving taxes from him. The village cannot convey title to land through those officers, but must act through its council. Not having power to convey, their acts could not estop the village, even if a title to land could be conveyed by estoppel, which it could not, even if, as counsel contend, the assessment was the act of the council by reason of its being the board of review. This being so, we are unable to see that the fact that Moore was permitted to pay taxes throws any light upon the question of who was actually in possession. It may, standing alone, indicate good faith on the part of Moore, and therefore, in a sense, characterize his act as a bona fide attempt to get possession, as contradistinguished from an intentional and willful trespass. But the motive is not controlling. It was held by this court in the case of Newcomb v. Love, 112 Mich. 117 (70 N. W. 443), that trespass to real property can never be maintained “when the possession of the property was in the defendant.” Here is a claim that it was in the defendants, or, what was equivalent, in their master; but the court, notwithstanding the fact that much, if not the practically undisputed, proof showed that the village was in open possession and control, declined to permit the question to go to the jury, upon the theory that by receiving taxes it was precluded from insisting that the plaintiff’s entry was an invasion of its rights of actual possession, and that it was therefore wrongful, but was bound to treat him as in actual possession, although his only evidence of possession was the recent erection of' a tent, and although his entry was for„the very purpose of an ouster. As indicated in Newcomb v. Love, supra, title and possession are not always in the same person. If they were, there would be little use for the action of ejectment. They may be separate and distinct; and, in our opinion, it was erroneous to hold that, although plaintiff did not show title, and admittedly entered upon the’ possession of the village by force, he must be presumed to-have been in actual possession, because of the assessment and collection of taxes, the village’s actual possession and bona fide claim of title to the contrary notwithstanding.

We have no occasion to discuss the question arising-upon the claims of title, and the deeds, and other evidence-relating thereto. As was intimated by the circuit judge,, it is rarely advisable to attempt to make the action of trespass a substitute for the more appropriate one of ejectment. The litigation is so far practically fruitless, because we must decide the case upon an unimportant and inconclusive incident, leaving the parties to try their titles — the really meritorious question — when they get ready to do so.

The judgment is reversed, and a new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    CHICAGO BUILDING & MANUFACTURING CO. v. YELL.
    1. Pleading —Notice of Special Defense-r-Appeal'from Justice’s Court.
    Notice under a plea of the general issue in justice’s court, that defendant will show “fraud and misrepresentation” in securing the instrument sued on, will be treated as sufficient, where no objection was raised thereto until evidence was sought to be introduced under it on the trial at the circuit.
    2. Fraud — Evidence.
    It is competent in an action on a subscription, under a defense of fraud, to show that defendant was uneducated, and that, on his insisting that his name be taken off, the persons Obtaining his subscription gave him a letter to his wife, saying that if she would keep quiet, and give them a chance to do so, they would get some one to take another share, and then not collect from defendant.
    Error to Emmet; Shepherd, J.
    Submitted January 10, 1902.
    Decided March 4, 1902.

      Assumpsit by the Chicago Building & Manufacturing Company against John Yell upon a subscription for stock. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Clare J. Le Roy, for appellant.

      W. A. Seegmiller, for appellee.
   Hooker, C. J.

The plaintiff brought an action before a justice of the peace to recover the sum of $100 upon defendant’s subscription to a creamery project. The defense was made under the following notice, appended to a plea of the general issue:

“To the Above-Named Plaintiff — Sir: Please take notice that on the trial of the above cause the defendant will give in evidence and insist on as a defense:
“1. Fraud and misrepresentation used in securing the subscription.
“3. Written release from the obligation of the purported contract.
“ 3. Knowledge of the said fraud and misrepresentation and of the said release on the part of the above-named plaintiff before its purchase of the said purported contract.”

We are not advised that any question was raised over the sufficiency of this notice until proof was offered in support of it at the trial in the circuit court. The subscription was obtained by one Darrah, acting for an alleged firm of R. E. Sturgis & Co.; and according to the testimony of the defendant, who stated that he could not, read, his name was written by Darrah, upon the understanding by him that he was stating the number of cows or amount of milk that he would keep to furnish milk for the projected creamery; that he was asked to go with Darrah to get others to sign, and did so, and in the course of talks with such men his suspicions were aroused, and, after talking with his wife, he, upon the next day, saw Darrah and Sturgis, who were in Petoskey, and insisted on having his name taken off. They said they could not do that, but finally gave him a paper writing, which reads as follows:

“Petoskey, Mich., December 17, 1900.
; “ Mrs. John Yell,
“Petoskey.
Dear Madam: In regard to the share of stock subscribed by John to the Petoskey Butter Factory, if you will keep quiet, and give us a chance to do so, we will get some one to take another share of the stock, and then not collect from Mr. Yell when it comes due.
“John E. Darrah.”

This was given by direction of Sturgis. The plaintiff claims to have purchased the subscription, which amounts to a contract between Sturgis & Co. and the subscribers to build a creamery. Upon the trial the learned circuit judge declined to permit the jury to find a release, but submitted the question of fraud, and admitted the alleged release as evidence bearing upon that question. The jury found a verdict for the defendant, and the plaintiff appealed.

The important assignments of error relied upon are: (1) That it was error to admit proof of fraud for want of sufficient notice; (2) that there was no evidence tending to prove fraud. The notice was not full, but it was a justice’s court pleading, and the first trial must have fully apprised the plaintiff of the defendant’s claim. Pleadings made up in justice’s court are treated leniently, and where, as in this case, a plaintiff, with knowledge of the informality and of the defense made in justice’s court, chooses to go to trial without objection to the pleading, he will not be permitted to take advantage of the informalities of the notice by preventing the introduction of proof under it. An amendment would be a matter of course in such a case. The plaintiff has suffered no injury, and the case should not be reversed on this ground. Farmers’ Mut. Fire-Ins. Co. v. Crampton, 43 Mich. 421 (5 N. W. 447); Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 533 (45 N. W. 977). In the latter case it was said that the notice was very general, but that it fell within the rule above stated; and, inasmuch as the record contained no intimation that the plaintiff was surprised by the testimony introduced under it, the notice would be considered sufficient. Both of these cases were commenced in the circuit court, and the rule has an added force in cases like the present.

The court could not have done otherwise than submit the question of fraud to the jury; and, if the plaintiff could have rights as a bona fide purchaser under a contract of this kind in any case, the undisputed evidence created a strong inference of notice, if it would not have justified the inference that the plaintiff and Sturgis & Go. were co-operators in the entire scheme. The judge did not err in refusing to recognize such a claim. It was competent to show that the defendant was not an educated man, and the alleged release was admissible as a part of the transaction.

We find no error, and the judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    RICE v. WILSON.
    1. Guardian and Ward — Accounting—Sureties—Liability.
    An order settling a guardian’s final account is binding on his sureties, in the absence of fraud, though they have no notice of the proceeding; the bond being conditioned that the guardian shall render such account, and pay over the amount found due thereunder.
    2. Same — Discharge.
    Under S Comp. Laws, § 9501, providing that any surety on a probate bond may, upon his petition to the probate court, be discharged, if the court, after due notice to all persons interested, deems it proper, the discharge of a surety on a guardian’s bond is void where it is made without notice to the ward or his next of kin, and without examination of the guardian’s account, but merely on the verbal application of the surety and the consent of the guardian.
    Error to Jackson; Peck, J.
    Submitted January 10, 1902.
    Decided March 4, 1902.
    William J. Rice presented a claim against the estate of John C. Bader, deceased, on a guardian’s bond. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, May E. Wilson, administratrix of said estate, brings error.
    Affirmed.

      This case was tried before the court without a jury, and a finding of facts and law made. The facts found are substantially as follows: The father and mother of claimant, William J. Rice, were killed in a railroad accident in 1879. Suit was brought against the railroad company, and a large verdict obtained One Mary C. Rogers, an aunt of William, was appointed his guardian. On December 23, 1879, the amount of the judgment was turned over to her, and a bond filed, with four sureties, named Buyse, Casey, Bader, and Carey. The bond is in the usual form. Bader signed the bond upon condition that the assets be turned over to Carey for management. This was done. William at that time was four years old. The value of the assets was $14,700, which Carey took, managed, and controlled until his death, July 26, 1892.
    All the probate files in the estate of said William prior to January 7, 1896, are lost. Only the calendar entries are preserved, which show on May 8, 1891, a request in writing by Bader and Casey to have the guardian file her account, citation issued, and an account for the years 1889 and 1890 filed May 21, 1891. The probate records show an order, dated June 6, 1891, that the guardian file within 30 days a new bond in the sum of $20,000, and that, on the filing and approval of such bond, Casey and Bader be released from all further responsibility. Carey never accounted to Miss Rogers for the moneys received by him, and she knew nothing as to the condition of the estate except what Carey told her, and she signed the accounts rendered upon the assurance of Carey that they were all right. The account for the years 1889 and 1890 commences with the following item: “To amount of personal property, as per report filed December 31, 1888, $10,972.-28.” It contains an account of receipts and expenditures, and closes with the statement, “Total amount on hand December 31, 1890, $11,961.77.”
    After Carey’s death, the only property found in his hands or in his name belonging to said ward was a house and lot and one mortgage of $1,725. August 25, 1892, Buyse was appointed executor of the last will of Carey. Miss Rogers, as guardian, presented a claim against Carey’s estate for $10,027.78, which was allowed by the commissioners, less amounts paid since the death of Carey by his executor. From that allowance no appeal was taken. Buyse filed an account as executor July 16, 1894, but died April 2, 1895, without any hearing being had thereon. TTia executor, one Elson, filed Buyse’s final account on November 22, 1895Í which was duly allowed. Among the credits allowed in favor of the guardian was one of $1,875.10, paid by Buyse to her. One Harrington succeeded Buyse as executor of Carey’s estate, and paid to William $1,982.86, to apply on his claim allowed against the Carey estate.
    June 6, 1891, Casey, Bader, Carey, and Miss Rogers went into the probate court, and Casey and Bader verbally asked to be released upon their bond for said guardian. She consented, and thereupon the order of release as above stated was made, and a new bond given by Carey and Buyse, the two other sureties upon the old bond, and approved. No notice of the application of said sureties for the release or of the hearing thereon was given to the ward or his next of kin.
    January 6, 1896, Miss Rogers resigned as guardian. Her resignation was accepted, and one Birney appointed guardian, and duly qualified. February 25, 1896, Birney filed a petition. in the probate court asking that Miss Rogers be cited to render an account. A citation was issued, returnable March 4th, and duly served. On February 28th she filed a sworn answer, stating that she turned over the entire assets of said estate to Carey; that they were managed and controlled by him as her agent; that she had rendered no account, — had been unable to do so, because she had no knowledge of the condition of the estate, except as was obtained from Carey, and that not in detail; that on two occasions Carey had prepared accounts, and requested her to sign them, and that she did so without any knowledge of the matters therein contained; that the greater part of the assets of said estate was squandered by Carey; that she had presented a claim against the estate of said Carey, which was allowed, as above stated; and that she had no property in her hands or under her control belonging to said minor’s estate. On March 4th, the return day of the citation, Miss Rogers appeared in the probate court, was sworn and examined, whereupon the court made a computation finding that Miss Rogers was accountable for the moneys which came into her hands, and interest thereon, amounting to $32,042.64, and gave her credit, with interest thereon, amounting to $11,630.94, leaving a balance of $20,411.70, which the court ordered her to pay over to said Birney. No date was fixed for hearing the account of Miss Rogers, and no notice of said proceedings given, except the service of the citation upon her.
    Bader died September 30, 1897, and the contestant, his daughter, was appointed administratrix of his estate. William, who had then become of age, presented a claim against his estate, claiming that he was responsible on the bond of his aunt, Miss Rogers. The commissioners disallowed the claim, and an appeal was taken to the circuit court.
    No part of the moneys in the hands of John Carey was paid to Miss Rogers. Prior to the proceedings by Bader and Casey for their discharge, eight mortgages were recorded, amounting to $8,172, taken in the name of John Carey for William J. Rice, and had been discharged. After the death of Buyse, Mr. Birney, as guardian for William, presented a claim against that estate identical with this, except in the name of the deceased. This claim was allowed by the commissioners, an appeal taken by the executor of Buyse’s estate, and, before trial, was compromised by William, who was then of age, for the sum of $6,350.
    The court held that claimant was entitled to a judgment of $7,518. The court made the following findings of law:

      1. The order of the probate court fixing the amount due from the guardian, Mary C. Rogers, was binding upon the sureties on her bond.
    2. The order discharging the sureties Bader and Casey was irregular, and did not operate to release and discharge them from future liability.
    3. It was competent for claimant to prove that, before the attempted release and discharge of the sureties, the guardian had misappropriated a larger amount of his estate than the aggregate claim allowed in this case, and that the sureties are liable for that amount, though released and discharged by the order of June 6, 1891.

      Richard Price, for appellant.

      Wilson & Cobb, for appellee.
   Grant, J.

(after stating the facts). 1. The law did not require notice of the final hearing of the account of Miss Rogers as guardian to be given to the sureties. The judgment rendered by the probate court is conclusive and binding upon them, in the absence of collusion or fraud. The bonds of executors, administrators, and guardians are placed by the courts upon a different basis from those given by sheriffs, treasurers, etc., for the performance of their duties. The distinction is probably based upon the theory that the former are intrusted with estates which are -under the control of the courts; that they must render accounts to such courts, and have them determined and the amount fixed before suit upon the bond. One of the conditions of the bonds is that they shall render accounts, and, if such guardians, etc., do not pay the judgments found against them by the court, the sureties will. These bonds stand on the same basis as do bail and appeal bonds in suits at law. In each case there must be a judgment against the principal before the bail can be sued. Not so, however, with bonds of sheriffs, treasurers, etc. It is no condition of their bonds to pay any judgment that courts may render against them. The universal method pursued is to sue the principal and sureties in the same suit. 2 Brandt, Sur. § 638, where the rule and the reason therefor are well stated, and authorities cited; Meyer v. Barth, 97 Wis. 352 (72 N. W. 748, 65 Am. St. Rep. 124). The Wisconsin statutes appear to be the same as our own. 2 Chat. Prob. Law, § 2781.

2. The discharge of Bader and Casey was wholly irregular and void. The proceedings to procure a discharge are regulated by statute.

“Any surety may, upon his petition to the probate court, be discharged from all further responsibility, if the court, after due notice to all persons interested, deems it reasonable and proper, and the principal may thereupon be required to give a new bond.” 3 Comp. Laws, § 9501.

The probate court can only act upon a petition filed by the surety who desires to be released, and a notice to all persons interested. The guardian in this case appears to have been utterly irresponsible financially. Her ward at that time was 16 or 17 years of age, and, under the law, entitled to choose his guardian. She had abdicated her entire duty under her own statement, and had intrusted the management of the estate to an agent, who squandered it, and evidently had squandered a large part of it at the time of the pretended release of these sureties. It is not improbable that this fact was known to Bader and Casey. An account had, at their request, been filed. They had contracted by their bond that that account should be correct. It was then not only their right, but their duty towards Miss Rogers’ ward, to have this account investigated before allowance. They did not even ask to have it allowed. No examination was made by the court, and the account was never passed upon. A notice served upon the ward himself, or upon his next of kin, might have prevented the discharge of the sureties until an accounting had been had, which should fully have determined the amount for which they were then liable. The statute is designed to prevent the possibility of collusive proceedings between the guardian or administrator and his sureties. The statute contemplates a hearing, from which a judge of probate must determine that such release is reasonable and proper.

These holdings render it unnecessary to discuss the other questions raised. The judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ,, concurred. Long, J., did not sit.


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    NATIONAL WALL PAPER CO. v. AMES.
    Collection Agent — Loss of Claim.
    No error being discovered, a judgment in favor of plaintiff for the amount of a claim sent to defendant for collection, and lost through his mismanagement of the business, was affirmed.
    Error to Emmet; Shepherd, J.
    Submitted January 10, 1902.
    Decided March 4, 1902.

      Assumpsit by the National Wall Paper Company against Robert C. Ames for a breach of duty as collection agent. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Halstead & Halstead, for appellant.

      Glare J. Le Boy, for appellee.
   Grant, J.

Plaintiff, a New York ^corporation, sent a claim for collection against one Mrs. Cole to Mr. M. W. George, an attorney at law at Petoskey, Mich. The defendant, a# real-estate and collection agent, had an office with Mr. George. George was absent on account of sickness. Defendant wrote plaintiff that he would take the claim, put it in judgment, and levy upon real estate mortgaged for about half its value. Plaintiff sent defendant $25 to pay expenses of suit, etc. Defendant brought suit, obtained judgment, levied upon the lots, and bid them in in plaintiff’s name. The mortgages were foreclosed, the defendant became the purchaser at the foreclosure sale, and the title to plaintiff upon the execution sale was cut off. Plaintiff instituted this suit upon the theory that the defendant had mismanaged the business, in consequence of which its claim was lost and plaintiff damaged. The case was submitted to the jury upon a fair statement of the theory of each party and a correct statement of the law applicable thereto. Errors are assigned upon the admission of testimony and the charge of the court. We find no error in the record. The questions of law raised are familiar to the profession, and a discussion of them would be of no benefit. It is undoubtedly just to the defendant to say that, under his construction of the letters written by the plaintiff to him, no bad faith is attributable to him.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


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    WALKER v. MACK.
    1. Appeal — Assignments op Error — Beieps.
    Assignments of error which are merely recited in the brief, without argument or a statement of the grounds on which they are based, will not be considered.
    2. Land Contracts — Parol Evidence.
    Parol evidence is inadmissible to vary the terms of payment prescribed in a land contract.
    Error to Wayne; Donovan, J.
    Submitted January 14, 1902.
    Decided March 4, 1902.

      Assumpsit by Frederick W. Walker and Samuel Daniel against Eliza Mack for the breach of a contract for the sale of land. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Plaintiffs recovered verdict and judgment for $467 for the violation of a contract executed between them and the defendant. The contract is as follows:
    “Articles of agreement made this eleventh day of February, 1899, between Eliza Mack, of the city of Detroit, Wayne county, Michigan, party of the first part, and Frederick W. Walker and Samuel Daniel, of the same place, parties of the second part.
    “The said first party hereby agrees to give to the said second parties a land contract on lots numbers eighty-one and eighty-two in Lowe’s subdivision of lot of quarter section forty-four of the ten thousand acre tract, according to the recorded plat in Liber 8, page 26, plats, Wayne county, Michigan, on the following terms: The said second parties agree to build two cellars, one on each of the above lots, and do all mason work on two dwellings, which are to be built on the above lots. Said cellars and mason work is to be as first payment for the purchase price of said lots and houses. Said cellars and mason work to be clear of all incumbrance, with receipted bills for all material and labor. On completion of said houses, the said first party is to give said second parties a land contract of said lots and houses for the sum of twenty-eight hundred dollars, to be paid as follows: Six per cent, interest from date of contract, and the sum of one hundred dollars or more after the first year, payable fifty dollars every six months until the sum of one thousand dollars is paid; then the said first party is to give warranty deed, and the said second parties are to assume a mortgage for eighteen hundred dollars at„'six per cent., payable semiannually.
    “The said second parties hereby agree to build two new houses, one on each lot, — each house to be two story high, and contain eight rooms each, — and also to build barn of 14x18, with shingle roofs, on the rear of each lot.
    “ The said first party agrees to furnish eighteen hundred dollars, to be paid as the work progresses, and on the payment of all bills for material and labor.
    “It is hereby agreed and understood that the material and labor on the said houses shall not be a lien on said lots, should the said second parties fail to build and complete said houses according to the plans and specifications made by Henry Reynolds.
    “It is also understood all bills are to be approved by Macklem Bros.”
    Immediately after the execution of the contract, plaintiffs let a contract to Reynolds for the erection of the buildings. Work was commenced, cellars dug, sewers put in, and the barns built. Defendant claims that, shortly after this contract was made, she sent her son to notify them that they must not proceed under it, because she had not been paid $200, which she insisted they were to pay in cash upon the. execution of the contract. Plaintiffs deny any such agreement, and say that the son told them not to go on with the work, as his mother had a better purchaser. Plaintiffs, however, proceeded with their work until the defendant absolutely refused to carry out the contract. They then ceased, and brought this suit for damages.

      W. C. Campbell, for appellant.

      Jonas B. Houck, for appellees.
   Grant, J.

{after stating the facts). The assignments of error number 42, and 24 points are made in the brief of appellant. Most of these points contain no argument, but are simply assertions that the court erred. Two of these points are thus stated:

“The defendant took an exception to the introduction of the contract, plans, and specifications, which was granted by the court.”

“The. court erred in admitting the specifications as a part of the said contract, to which exception was taken.”

Assignments of error thus stated, but not argued, will not be considered by the court. It is the’ duty of counsel to at least state the reasons upon which they rely to support their allegations of error.

The court refused to permit the defendant to show that there was a parol agreement to pay $200. No fraud was shown to have been practiced upon the defendant in executing the contract. Its terms are not ambiguous. It was therefore binding upon her, and parol evidence was not admissible to vary its terms. The court’s ruling was correct upon this point, and the judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


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    VAN ROSSUM v. GRAND RAPIDS BREWING CO.
    Easements — Artificial Water-Course — Joint Ownership.
    M. and K., being joint owners of two lots, conducted water through a wooden pipe from a reservoir on one lot to a storage tank on the other, as part of a water-supply system for the city. They afterwards sold the system and leased the lots to a water company, under an agreement not to reengage in the water business. Subsequently the lots were divided without mention of water rights, M. becoming the sole owner of the lot on which the tank was located; and thereafter, the water company having abandoned the premises, the pipe leading to M.’s lot was cut off with her apparent acquiescence. She subsequently conveyed the lot by a deed not mentioning water rights. Held, that her grantee could not insist on a continuance of the flow of water to the lot as an easement appurtenant thereto.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted January 28, 1902.
    Decided March 4, 1902.
    Bill by Peter Van Rossum and Cornelius Van Rossum against the Grand Rapids Brewing Company and Fritz C. Jehle to enjoin interference with certain alleged water rights. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      J. T. Preston, for complainants.

      H. J\ Felker (Knappen & Kleinhans, of counsel), for defendants.
   Hooker, O. J.

The accompanying plat will aid in making plain the controversy in this case.

Complainants now own lot 213 of the Kent Plat, and •defendant Jehle owns lots 214 and 215, all abutting upon Kusterer alley, in the city of Grand Eapids. The Grand Eapids Brewing Company owns a brewery situate south ■of East Bridge street, at the corner of Ionia. Lots 213 .and 214 were owned jointly by John Mangold and Christopher Kusterer in 1869. At that time Mangold owned in severalty lot 228, and had the legal title to lot 215. It is, perhaps, not clear who claimed title to lot 226 at that time. The complainants assert that lots 228 and 226 were then called the “Mangold Lots.” Counsel agree that at that time the lots east of Kusterer alley were springy, spongy, and marshy, and that previous to 1862 water overflowed from lot 226 or 228, or both, the bulk of which water flowed northwest. There is testimony that convinces us that some of it went down Bridge street, which lay to the south. At that time little, if any, water found its way to lot 213, other than surface water, and that came from the northwest, and not from the lots east of the alley.

In 1869, Mangold and Kusterer, being then in control of all of these lots, constructed an artificial system of reservoirs and pipes for'the purpose of supplying the city with water. They built a reservoir on lot 214, and accumulated water in it from the springs on lot 226. There was on lot 213 a building, used as a cooper shop, which had under it a cellar built of stone in the ordinary way. This cellar formed the storage tank of the system, water being conducted to it through a wooden pipe, which they laid from the reservoir on lot 214. This was the only source of water on lot 213 after 1869, and no water reached Bridge street thereafter, except such as might overflow from that cellar. The enterprise of Kusterer and Mangold was interrupted by a suit brought in 1869 by Christ Bros., who then owned lots 216 and 217, and who filed a bill to enjoin the construction of the water system, and to prevent them from establishing a reservoir, upon the ground that it would divert an alleged subterranean stream from their premises, where it was alleged to come to the surface as a perennial spring. The existence of the spring and subterranean stream was denied, and the bill was finally dismissed. See Christ v. Kusterer, 25 Mich. 354.

Kusterer and Mangold carried on the water business until 1873, when Mangold died, leaving his interest in the property to his widow, Christina C. Mangold, who, with Mr. Kusterer, continued the business until 1874, when they sold to the Hydraulic Company all pipes, shut-offs, stop-cocks, and artificial construction of every kind connected with the system, and leased to them lots 213 and 214 until the end of 1885, at an annual rental. At this time Mrs. Mangold and Kusterer owned lots 213, 214, and 215 jointly, Mrs. Mangold having sold to Kusterer a half interest in lot 215 in 1877. In the same writing by which. they sold their pipes, etc., they agreed that, so long as the Hydraulic Company continued in the water business, they should not engage in the business of supplying water to the inhabitants of Grand Rapids. The Hydraulic Company occupied and made use of the premises until 1888 or 1889, when it abandoned the premises, though it continued, and still continues, in the water business. These reservoirs have never been used since in supplying the inhabitants with water.

Kusterer died in 1880, and his wife, Maria I). Kusterer, succeeded to his interest in the property.- In 1881 she sold her one-half interest in lot 215 to Mrs. Mangold, and in 1887 they divided their interests in lots 213 and 214; Mrs. Kusterer becoming sole owner of lot 214, and Mrs. Mangold sole owner of lot 213. In 1888 Mrs. Kusterer conveyed lot 214 to defendant Jehle, and in 1892 he purchased lot 215. Nothing was said in any of these deeds about water rights, and Jehle did not know of the existence of the reservoirs for a long time thereafter.

After the Hydraulic Company ceased to use the water, it accumulated and overflowed from the cellar, and ran west on Bridge street, and later Jehle discovered the reservoir on 214 through the repairing of his house, and in 1895 he made a contract with the Grand Rapids Brewing Company whereby the latter was given the right to use the water in the reservoir on lot 214 for five years, at $250 a year, with right of renewal for a similar term. This renewal was made after this suit was begun. The brewing company laid its pipes in the alley, near the east line, cut off the connection with the cellar on lot 213, and made connection with the pipe leading from the reservoir on lot 214, in the following manner: A wooden box was sunk and filled with material for filtration. The old pipe delivered the water into this box, and it was taken out by the pipe leading to the brewery. Mrs. Mangold, then the owner of lot 213, made no objection to this. In 1899 she sold lot 213 to the complainants, water rights not being mentioned. No water had passed between the lots for four years, and complainants knew of the arrangement with the brewing company.

The bill in this cause was filed in 1899. It claimed for the complainants a prescriptive right purchased from Mrs. Mangold to the flow of water through the pipe (which it calls an artificial channel) from lot 214 to lot 213. It alleged that since their purchase of lot 213 they had run a tile from the cellar to the east line of the lot, by means of which about 2,000 gallons of water was daily collected and conveyed to their cellar, and that the defendant was about to construct a concrete wall in said alley, to be builded upon the clay subsoil, extending north from its box or filter hereinbefore described to a point opposite the north line of complainants’ lot 213, whereby all water would be cut off from lot 213. An injunction issued, and the threatened trench has not been digged, nor has the wall been constructed. Upon the hearing the court found that no subterranean stream was alleged or proved; that no prescriptive right to the maintenance of an artificial water-course was shown; that, when bought, lot 213 had no such appurtenance as the alleged water-course; and that the defendants had no design to cut off percolating waters, or in any way interfere with complainants’ rights. The injunction was dissolved by the dismissal of the bill.

After this lengthy statement of the facts, but little remains to be said. We agree with the conclusions of the learned judge of the superior court that there was no proof that a subterranean stream existed, and that there was no attempt or design to interfere with percolating waters. It is unnecessary to determine whether the defendants are limited in their rights as to the appropriation of said waters. The wooden pipe between the two reservoirs was not the subject of adverse possession, as it was never held by any owner of lot 213 by a hostile title or use. It was not like a natural stream whose course had been changed and upon whose banks others had acquired rights. It was cut off from lot 213 with the apparent acquiescence of the owner of that lot, and when complainants bought the lot it was in no sense appurtenant to it. If complainants are right in their contention, they have a right to compel the maintenance of the reservoir on lot 214, to the end that their water rights be not diminished, and Jehle could not remove the reservoir and drain his premises for building or other purposes. The only semblance of a valid claim is that lands had been used by joint owners as one parcel for a long time, and that, when they divided them, each took his parcel with existing appurtenances, and that to lot 213 a water right was appurtenant. But it must be remembered'that at that time both had parted with the right to use the water for the purpose of supplying the city, and the reservoirs were abandoned. No tribute was ever afterwards exacted by Mrs. Mangold from the owner of lot 214, and, after Jehle’s discovery of the reservoir, she saw the brewing company divert the water without objection. We think the correct view to take of this case is that these reservoirs were temporary structures for the purpose of the owners’ business; that they never were treated as, nor understood to create, an easement, nor is there anything to indicate that there was any dominant or servient estate, but it would seem that the right of either to maintain them as a whole ended with their division of the lands. Hanson v. McCue, 42 Cal. 303 (10 Am. Rep. 299).

The decree of the superior court is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.