author: Hooker, J.

text:
    FLOYD v. MANN.
    1. Stipulations — Set-Off—Issues and Proof.
    Where, in an action against a partnership for the price of a carload of lumber, the parties execute a stipulation in writing that defendants shall have the right to set off any right of action one of them has had growing out of a contract between him and plaintiff and that no assignment of such right of action to defendants need be proved on the trial, the stipulation must be construed as permitting a counterclaim for non-fulfillment of the contract mentioned, though not otherwise admissible under any plea and notice that could be devised; and a contention that the effect of the stipulation was merely to permit proof of any claim well pleaded, without proof of assignment, is untenable.
    2. Sales — Contract—Essentials—Meeting of Minds.
    Certain letters and telegrams relied upon to show a contract for the sale of five cars of lumber examined, and held, to show a clear meeting of minds entitling the purchaser to the goods as claimed, notwithstanding a short delay in forwarding shipping directions and subsequent requests for slight variations not insisted upon.
    3. Evidence — Sales—Custom—Admissibility.
    On the question of damages for nondelivery of five car loads of lumber as agreed, evidence is. admissible to show of what a car load of lumber of the kind in question usually consists.
    4. Sales — Breach of Contract — Failure to Deliver— Dam: ages.
    For failure to deliver goods as agreed, the measure of damages is the difference between the contract price and the market value at the time and place of delivery.
    Error to Muskegon; Russell, J.
    Submitted October 10, 1906.
    (Docket No. 48.)
    Decided November 13, 1906.
    Assumpsit by John F. Floyd, doing business as the J. F. Floyd Lumber Co., against Robert K. Mann and Wil liam G. Watson, copartners as Mann, Watson & Co., for goods sold .and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Nims, Hoyt, Erwin & Vanderwerp, for appellant. .

      William Carpenter, for appellees.
   Hooker, J.

The plaintiff brought this action in assumpsit to recover the price ($152.98) of a car load of lumber purchased from him by the defendants. The defendants did not deny his claim for the car of lumber, but sought to set off against it a claim for damages, arising from a failure to deliver other lumber which the defendants claim to have been contracted for, by Robert K. Mann, one of their number. The learned circuit judge directed a verdict for the defendants, and judgment for $161.86 was rendered. The plaintiff has brought the case to this court by writ of error.

The questions argued are four:

(1) That the evidence offered to prove defendant’s claim was not admissible under the pleadings, for the reason that the claim was not a proper subject of set-off.

(2) That it was error to admit evidence that it was the custom to order lumber by car loads, and as to what constitutes an average car of lumber.

(3) That the court erred in his charge upon the measure of damages.

(4) That the evidence failed to establish defendants’ alleged contract.

The Stipulation. The plea was the general issue, with notice of a claim for damages from the failure of plaintiff to deliver to Robert K. Mann five car loads of lumber, which he had contracted to deliver to him, which claim and the cause of action therefor said Mann had assigned to the defendants.' It is conceded that this testimony was not admissible under this plea and notice standing alone, but it is said to have been properly admitted under the following stipulation, viz.:

“State op Michigan.

“ The Circuit Court for the County of Muskegon. “John F. Floyd,

“Plaintiff,

v.

“Robert K. Mann and

“William G-. Watson,

“Defendants.

“ It is hereby stipulated that on the trial of this cause the.above-named defendants shall have the right to setoff against the claim of the plaintiff any right of action which the defendant Robert K. Mann has or has had growing out of a contract alleged by him to have been made between him and the plaintiff, under the name of the J. F. Floyd Lumber Company, on or about the twenty-fourth day of December, 1900, for the sale to him of five car loads of pine lumber, and that no assignment of said right of action to the defendants prior to beginning of this suit need be proved on said trial.

“Dated February 21, 1905.

' “Walter I. Lillie,

“Attorney for Plaintiff.

“ Wm. Carpenter,

“Attorney for Defendant.”

The plaintiff’s counsel contend that this stipulation should be construed to mean that this right to set off the claim mentioned was to be qualified by an implied proviso that there was a proper pleading to justify it; or, in short, it is contended that this stipulation merely waived proof of the assignment of the claim. To so hold would be to treat all but the last three lines of the stipulation as surplusage. We are of the opinion that this stipulation was broad enough to permit the defendant to make a counterclaim of this item, although not otherwise admissible as a defense under any plea and notice that could be devised; it being the plain intent of the plaintiff to consent to the settlement of their differences in this one suit.

The Contract. The alleged contract is in writing, being contained in certain letters and a telegram. It was therefore proper for the court to determine whether they amounted to a contract or not. The plaintiff’s offer was contained in a letter to Mann, dated December 14, 1900. In substance, it offered one to five cars of lumber for shipment as fast as transportation could be obtained, in “ 1x6 to 1x12 inch assorted, good proportion of 1x8, 1x10, and 1x12. 10 to 16, proportion of 10 very small, 75 to 85 per cent. 1st and 2d clear, balance good 3 clear Arkansas kiln dried short leaf rough yellow pine finishing at $21 per 1,000, f. o. b. your station [Muskegon, Mich.], settlement as per terms printed above on arrival of each car. This quotation for immediate acceptance by return mail only.” An answer, dated December 19, 1900, declined the offer, but on December 20th, Mann wired, “Have sold the five cars finish lumber, per letter 14, consigned South Bend Indiana. See letter.”

December 21st, Mann wrote as follows:

“Dec. 21, 1900.

“'J. F. Floyd Lumber Co.,

“Texarkana, Ark.

“Dear Sirs: I wired you late yesterday afternoon stating that I had sold five cars finish lumber as per your letter of the 14th. Those are to be consigned to So. Bend, Ind. I figured this rate as being 26c which would make the lumber $1.00 less than what it would be if shipped to Muskegon. Did I figure it correctly ? I received word from there by telephone and they stated that the regular order would follow by mail. I have not received the same yet but will expect to so as to forward the same to you tomorrow.

“'■Trusting this to be satisfactory, I am,

“Yours truly,

“R. K. Mann.

“ P. S. All of the cars will not need to be shipped at once. You can do so at your convenience but I probably would want one or two of them to go as soon as possible.”

Plaintiff sent the following letter:

“12 — 22—1900.

“R. K. Mann,

‘ ‘ Muskegon, Mich.

Dear Sir: We have no objection to shipping the five cars of rough finish so that they will reach destination at intervals during the next 60 or 90 days, but each car must be settled for promptly on arrival.

“So many instructions have been received from you that we wish you would send us by return mail an order for the five cars of finish in accordance with ours of the 14th inst., the first car to be loaded at once, and the remaining four to go during January and February, barring all unavoidable delays.

“ Your car I. C. 84?9 passed Effingham 111. on Dec. 22nd, and should have reached you on the day of your letter.

“You understand this five car deal is between ourselves, and your South Bend customers. understanding with you, must have nothing to do with our trade with you unless submitted with order and agreeable.

“ Our finish is all right in every respect. We sell it in Detroit, Lansing, Kalamazoo, Toledo, and other places where it would not go unless it were well manufactured and dry.

“Awaiting your reply, we remain,

“Yours truly,

“ The J. F. Floyd Lbr. Go.,

“By E. J. K.”

Apparently this was not an answer to Mann’s letter of December 21st, for on December 24th plaintiff wrote:

“12 — 24—1900.

“R. K. Mann,

“Muskegon, Mich.

Dear Sir: Your favor of 19th and 21st inst. and telegram of 20th all .received, and enter your order for five car loads finishing lumber, in accordance with our quotations of the 14th inst., except that we make the price for delivery at South Bend $20.00 instead of $21.00.

“ We quote our finish in most of the principal Michigan, Indiana, and Ohio cities, but if you can furnish us orders for certain points we will not make quotations in conflict with yours. <

“ Our prices on dress finish do not correspond with special prices on car loads of rough stock. Thanking you for favors received, we remain,

“ Yours truly,

“The J. F. Floyd Lbr. Go.,

“By E. J. K.”

Here was a clear meeting of the minds of the parties upon the five cars of lumber, of the character described in plaintiff’s first letter, to be shipped to South Bend, Ind., at plaintiff’s convenience, one or two cars as soon as possible, at $20 per 1,000 feet.

On December 24th Mann wrote, stating that he would like to have one of the cars shipped to him at South Bend at once. He added that he had not heard from plaintiff in response to his telegram or letter, but presumed that everything was all right for the shipment of the five cars. On the 26th of December plaintiff answered that he was only waiting for empty car “to load the first of your five cars of finish to So. Bend.” It again called attention to the terms of the offer of December 14th, and expressed the hope that there were no instructions in Mann’s “regular order ” to conflict therewith. December 27th Mann wrote asking some delay in shipment of the five cars to accommodate South Bend customers.

On January 5th the following letter was sent by Mann:

“Jan. 5,1901.

“ J. F. Floyd Lumber Co.,

“ Texarkana, Ark.

Q-entlemen: Your favor of the 28th inst. is at hand. In regard to the orders for yellow pine would say that the one order is plain enough, and that is to ship to South Bend, Ind. I expect within the next few days to be in position to give the orders for the balance a little more intelligently than what I can do just at the present time. Kindly ship this one car as soon as possible, and I will try and send the other orders at least as soon as it will be convenient for you to ship the stock, which I trust will be entirely satisfactory. ”

What called out this letter is not clear, as letter of December 28th is not in the record.

Again plaintiff wrote:

“January 7th, 1901.

“ R. K. Mann,

“Muskegon, Mich.

Dear Sir: Your favor of the 5th inst. to hand. Regarding the proposed five car order, we quoted you five cars finish at $21, delivered your city, and you wired us that you had sold five cars in South Bend, following this by mail with questions as to time of shipment, and stating regular order would follow within a day or two.

‘ ‘"W e have no order from you in fact except one car to be shipped you at South Bend, at $20 per thousand. Have been waiting for settlement of the matter. Two cars can go forward at once as soon as empties are placed for them, but we do not wish to ship even one car until you advise fully by return mail whether you intend to order the other four cars, and, if so, within what time they may go forward. If we do not hear from you by return mail with order for the four additional cars to be shipped within sixty or ninety days, we shall have to refuse to make good the quotation, as we are now getting more money for our finish.

“ Yours truly,

“ The J. F. Floyd Lbb. Co.

“By E. J. K.”

Mr. Mann replied:

“Jan. 8, 1901.

“ J. F. Floyd Lumbeb Co.,

“Texarkana, Ark.

Gentlemen: Inclosed I hand you order for 20,000 ft. of clear finish lumber. I have made this up in two car loads, as 1 am desirous of having all of the order shipped, and thought it would be too much for one car; however, you can convenience yourself regarding same.

“ I trust you will be able to furnish the 5 and 6-4 as stated, and that prices are satisfactory.

“Will you kindly let me know if it will be possible for me to get lumber of this kind dressed from you there, and if prices would be the same on it ?

“ Regarding the other cars, I will know as to the shipping conditions of these within a day or two, and will advise you fully. Kindly acknowledge receipt of inclosed order, and oblige,

“ Yours truly,

“R. K. Mann.”

And again:

“ Jan. 9, 1901,

“ J. F. Floyd Lumbeb Co.,

‘ ‘ Texarkana, Ark.

Gentlemen: Your favor of the 7th is at hand this evening. I do not want you to feel any question but what I will take the five cars of finish lumber. I thought I had written you definitely about this, since you agreed to hold them 60 or 90 days. I expect to furnish the orders very soon. They may not all go to South Bend, but if I ship elsewhere I presume that it is all the same to you. My customer at South Bend expects to take them, but as I had thought they might not allow me to ship in time to suit you, I thought I might ask you to ship elsewhere one order for which I sent you last night to go to Jackson, Ohio. Concerning the car shipped to me, I am ready to send the check in settlement at any time, and have tried to get the railroad company to correct the expense bill today. My experience is that the best time to have this done is before the freight is paid.

“Yours truly,

“R. K. Mann.

“ P. S. The order mentioned above should be D. Jackson & Co., Barberton, Ohio, instead of Jackson, Ohio.”

The correspondence continued as follows:

“ 1 — 10—1901.

“R. K. Mann,

“Muskegon, Mich.

“Dear Sir: We return herewith your orders of the 8th inst., and regret to advise that we cannot accept them at the prices offered. The fact is we have all the finishing orders we can handle conveniently at present, and the proposed order for five cars must be placed with us by the last of this week, or the deal must be considered off. We thank you, however, for the tender of the present business, and hope you will succeed in finding the stock elsewhere.

“ Yours truly,

“The J. F. Floyd Lbr. Co.,

“By E. J. K.

“Mr. Mann: This one that was refused, the order of January 8th, was the Barberton car.”

“1 — 12—1901.

“ R, K. Mann,

“ Muskegon, Mich.

“Dear Sir: Your favor of 10th inst. at hand. The form of remittance would have been very satisfactory if your check had been signed. We inclose it herewith to you for signature — your number 1044, dated Jan’y 10, amount $113.46. We will put in claim with Vandalia line for the overcharge, but if your agent should refund the amount you may advise, and remit. Sorry to state that we cannot handle the bill of ceiling just now having considerable orders for common ceiling and not making 3" clg. Awaiting your reply with signed check, we remain,

“Yours truly,

“The J. F. Floyd Lbr. Co.” “Jan. 12, 1901.

“ J. F. Floyd Lumber Co.,

“Texarkana, Ark.

Gentlemen: Yours of the 10th inst. is at hand, with the orders returned, as stated.' One of these orders was sent on the basis of the five cars which I ordered. It varies only in the fact that it calls for 8, 10, and 12 inch. However, if you will fill this and insist upon putting in the proportion of 4 and 5 inch I would like to ask that you lay it out of this car and I will take it in another one. You can put it into the car which you are now shipping to South Bend. In regard to the five cars I presume you received my letter whereby it is explicitly stated that I will take them all in accordance with your letter if I ship them within the 60 or 90 days allowed. I will endeavor' to furnish orders to your entire satisfaction.

“Trusting the same to be satisfactory; I am,

“ Yours truly,

“R. K. Mann.”

“Jan. 14, 1901.

“ J. F. Floyd Lumber Co.,

“Texarkana, Ark.

Gentlemen: I am very sorry concerning the omission of the signature to this check. I return the same hereby duly signed.

“I note what you say in regard to the claim, and I will be governed accordingly. I note also what you say in regard to the bill of ceiling. I wish I could understand clearly what I might do with you in the line of yellow pine orders. I have business that is offered to me continually, but have been refusing it' on account of not knowing a way to handle it. I returned one of the orders to you, inasmuch as I thought that it could apply on the five car load order. I presume you are shipping the one car that is ordered to go to South Bend.

“ Hoping that you will get this out for me as quickly as possible, I am,

“ Yours truly,

“ R. K. Mann.”

“ 1 — 15—1901.

“R. K. Mann,

“ Muskegon, Mich.

“Dear Sir: Returning your order for Barberton, Ohio, would state that it cannot be accepted. It is not in any respect applicable on our quotation of December 14th.

“ If you want one car now in transit shipped to South Bend, we must ask you to furnish order for it by return mail, based on our quotation.of December 14th, and tins'* is all that we can furnish you on said quotation, which was made you for immediate acceptance by return mail. You have advised a time or two that you had sold stock which would enable you to give us orders for the five cars, saying that the orders would follow, but they have not been received, and in justice to ourselves we cannot hold the quotation open any longer.

“ Awaiting your reply, we remain,

“ Yours truly,

“The J. F. Floyd Lbr. Co., “ByE. J. K.”

“1 — 16—1901.

“ R. K. Mann,

“ Muskegon, Mich.

“Dear Sir: Your favor of the 14th inst., with check $113.46, is received, and the amount is credited to balance account.

“The situation with regard to yellow pine is this: The market is advancing, the mills are full of orders at good prices, and stocks are generally broken. We are not taking orders for anything low in stock, and have very little to offer just now.

“We wrote you yesterday in answer to one of your letters regarding the shipment of one car to South Bend, Ind. It may seem to you a lot of delay and correspondence about one car load of yellow pine, but we find that it is better for all parties concerned to have no misunderstanding where stock passes through two or three hands. Our quotation to you was for a percentage of third clear, and if you have sold first and second clear to your South Bend customer there might be some trouble. We noticed that the Barberton order called for clear rough finish.

“Yours truly,

“ The J. F. Floyd Lbr. Co.,

“ByE. J. K.”

“ 1 — 17—1901.

“R. K. Mann,

“ Muskegon, Mich.

“Dear Sir: Your South Bend car, as previously advised, has gone forward, and, not doubting that it will be all right, we inclose herewith invoice for the same. _ In the meantime we suppose you will have sent us the straight out order for the car. We think it is nicer stock than we shipped you at Muskegon.

“Yours truly,

“ The J. F. Floyd Lbr. Co.

“By E. J. K.”

“ Jan. 18, 1901.

“J. F. Floyd Lumber Co.,

“Texarkana, Ark.

“Gentlemen: Yours of the 15th inst. is at hand. I have not interpreted your letters to mean according to what you have stated. As I understand now, you are shipping for me one car of finish lumber to go to South Bend, Ind. If my letters have not been sufficiently plain to convey this meaning, I inclose a direct order herewith, to be shipped in accordance with the quotation you made me on December 14th. Kindly let me know if you can ship this one at once. I had sold the five cars in South Bend, but they did not want them shipped right away, but as you stated that you would ship them within 60 or 90 days I supposed it was settled. I do not understand why you want to return the order for Barberton, Ohio, as it is the same rate as Muskegon, and the only difference is that it specifies 8, 10, and 12 inch. I would not mind if you do put in- some 4 and 6 inch, and you can ship the same grade as you sent to me. I change the order in this respect and return it herewith, hoping that it will be satisfactory.

“Yours truly,

“R. K. Mann.”

“Jan. 19, 1901.

“ J. F. Floyd Lumber Co.,

‘ Texarkana, Ark.

Gentlemen: Yours of the 16th inst. is at hand. I presume that my letter of yesterday will make clear my present attitude in regard- to orders, and sincerely wish that what has been sent forward will be accepted on the basis of your letter of December 14, 1900, as stated. I do not wish to convey to you the idea that I would expect anything different from what you had written in that letter.

“trusting the same to be satisfactory, I am,

“ Yours truly,

“ E. K. Mann.”

“Jan. 21, 1901.

J. F. Floyd Lumber Co.,

“Texarkana, Ark.

Gentlemen: Inclosed I herewith hand you orders for the remaining cars of clear finish lumber, which you can ship at once or at your earliest convenience.

‘ ‘ One of my salesmen has just returned from a trip, and in seeing the customers they have arranged to take care of them now, or as soon as you can ship them. In their letters to me they stated they would take them inside of the 60 days, but, as they have agreed to have them come forward 'at this time, I trust you will see that they are .gotten off as soon as possible.

“ Yours truly,

“E. K. Mann.”

“ 1 — 21—1901.

“E. K. Mann,

“ Muskegon, Mich.

“Dear Sir: We inclose invoice herewith for your' South Bend car of finish, of which kindly acknowledge receipt.

“Your favors of the 18th and 19 th inst. are received with order for Barberton, Ohio, returned to us again. Now, it is not because we doubt your fairness that we do not want to ship the Barberton order, but because from your •own correspondence you are not familiar with yellow pine trade, and because you have sold your Barberton customer, •according to the original order, a car load of 1x8, 10 and 12 inch clear rough finish, whereas our offer is 1x6 to 1x12 inch clear, partly 1st and 2d clear and a proportion of 3d. clear. If we should follow your suggestion and put in stock not wanted by your customer, there would be dissatisfaction sure, not only because the grade was not as ordered, but on account of the 6 inch not ordered. If you guarantee us against claim for rebate, we will send the car to you at Barberton on a basis of quotation of Dec. 14th.

“ Awaiting your reply, we remain,

“ Yours truly,

“The J. F. Floyd Lbr. Co.,

“By E. J. K.”

“ 1 — 24—1901.

“R. K. Mann,

“ Muskegon, Mich.

11 Dear Sir: Notwithstanding what we wrote you, yours of the 21st is to hand with more orders for finish. We return them herewith, also the Barberton order, and will ask you to destroy or return our invoice for I. C. No. 15,950, which we have diverted en route.

“ Yours truly,

“The J. F. Floyd Lbr. Co.,

“By E. J. K.”

“Jan. 31, 1901.

“J. F. Floyd Lumber Co.,

“ Texarkana, Ark.

Gentlemen: I am in receipt of your letter returning the orders, as stated. You request also that I return the invoice for the car that was shipped, as you had diverted same in transit. Will you kindly let me know why you have done this? You must have some reason for it, and I have hardly expected this of you. Now if I am to return the invoice, I feel that I must demand of you what profit there is to me on the car. Do you mean that you have refused to fill this order, and have canceled the bill of lading, and sold the stock elsewhere ? Do you refuse to fill the order which I have already invoiced to my customer at South Bend, who certainly will look to me to ship the stock. Kindly let me hear from you in explanation.

“ I sent in the four orders because I thought you demanded that they should be in your possession, and I tried to make them out in accordance with your letter of December 14th, and with the view that I would take all the responsibility of any kicks, just so that you gave me lumber equally as good as what you shipped to me here.

“ Kindly let me hear from you, and oblige,

“ Yours truly,

“R. K. Mann.”

As we have already stated, we are of the opinion that the minds of the parties met upon the basis of the letter of December 14th, as modified by a change of destination to South Bend, and price to $20. The plaintiff had a contract right to ship to South Bend at any time, and, while he had the right to refuse to ship anywhere else, he was not released from his contract to ship to South Bend, nor did Mann’s short delay in sending shipping directions justify him in abandoning or refusing to perform the contract. Mann’s requests for variance from its terms were not a breach of the contract on his part. The letter of January 9th shows that Mann recognized his obligation to take lumber at South Bend if plaintiff insisted upon it, and this is reiterated in his letter of January 18th. He was entitled to performance of the contract, and, failing that, to damages if he sustained any.

Custom. It will be remembered that this contract was for five car loads of lumber. It was necessary to determine what was meant by a car load of lumber. There was no other way of ascertaining except to show what a car load of lumber of this kind ordinarily consisted of. We think that the objection to the evidence of the common usage was properly overruled;

Measure of Damages. Under a notice claiming damages for loss of profits, the defendant offered evidence of the value of the lumber at South Bend at the time he should have received it, and that he was obliged to pay that price to supply his customers. It is contended that the measure of damages should not have been the difference between the price he had contracted to pay to the plaintiff, and the market price at South Bend, but the difference between the price he had contracted to sell it for and the purchase price he had agreed to pay. No objection was made to the evidence, nor was any request to charge offered indicating any other rule than that claimed by the defendant.

It is said by counsel, by way of illustration, that it may be that defendant had contracted to sell this lumber for $21 per 1,000 feet, and in such case his damages would be only the difference between the purchase price (i. e., $20) and the contract price of sale (i. e., $21), This is fallacious, for if he was obliged to pay the market value, his actual loss would be the difference between $20 and the price he was obliged to pay* This contention is made to. rest upon the notice that alleges that he lost the profits that he would have made on a resale of the lumber. His right to recover damages does not, under this notice, depend upon his having or not having made a specific contract for this particular lumber. It does not predicate his claim upon an alleged sale, and limit it to that. Whether he had contracted it to some one else or not, he certainly did not deliver it, and whether this was due to the plaintiff’s failure to furnish or his own deliberate refusal to deliver, it must be clear that he could have sold the lumber to others, and presumably have obtained the market price.

We find no error in the record, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    LOFVANDER v. LOFVANDER.
    1. Divorce — Alimony—Wife at Fault.
    Under .section 8638, 3 Comp. Laws, a wife may be allowed alimony though the divorce is granted to her husband, where the divorce is granted for any cause ofher than adultery.
    2. Same — Sufficiency of Award.
    Where a wife of the age of 32 left her husband of 48 after 37 days of married life without reasonable cause and notwithstandr ing his efforts to please her, and within a few days thereafter' had a miscarriage, an allowance of $1,000 to her as alimony from his property of $7,000, to which she contributed nothing, is too liberal, and should be reduced to $500 alimony, and $100 solicitor’s fees.

      Appeal from Delta; Stone, J.
    Submitted October 10, 1906.
    (Docket No. 36.)
    Decided November 13, 1906.
    Bill by Anna Steverson Lofvander against Alfred Lofvander for divorce. Defendant filed an answer in the na.ture of a cross-bill asking for a divorce. From a decree awarding alimony, defendant appeals.
    Modified.
    After a married life of 37 days the complainant left her husband, and soon after filed this bill for a divorce, charging extreme cruelty. The defendant filed an answer, claiming the benefit of a cro^s-bill, charging extreme cruelty on the part of the complainant. All the testimony except that of the complainant and defendant was taken before a commissioner. The testimony of the parties was taken in open court. The court found that complainant had failed to substantiate her charge of extreme cruelty, and that the defendant had sustained his charge, and granted him a divorce, but provided that he should pay the complainant $1,000 permanent alimony. From the decree as to alimony the defendant has appealed. ‘

      A. H. Byall, for complainant.

      Yelland & Norblad, for defendant.
   Grant, J.

{after stating the facts'). 1. It is urged that when the wife is the guilty party, she is not entitled to alimony. This is true at the common law. The statute of Michigan (3 Comp. Laws, § 8638) provides:

“ Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate real and personal, to be paid to her in gross or otherwise, as it shall deem just and reasonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.”

We cannot agree with counsel in their contention that the statute does not authorize the granting of alimony to the wife when the husband obtains a divorce. The purpose of the statute evidently was to provide for such a decree. Its object was to change the rule of the common law. The decision of Reynolds v. Reynolds, 92 Mich. 104, is an authoritative declaration of the construction of this statute.

2. It is next contended that the amount granted was excessive. Complainant was a domestic, living in Chicago, and spent her vacations with friends in Escanaba, the home of the defendant. There he became acquainted with her, and that, acquaintance continued for seven years before the marriage. She was 32 and he 48 years of age when they were married. He was a baker, lived in rooms over his bake shop, and boarded his employes. She knew where and how he lived, and had visited his home. She brought nothing to the home, and contributed nothing to the property (about $7,000 in value), which the defendant, by his labor, had earned and saved. She at once became discontented and fault-finding, although he complied with her requests for furniture and other things for the house. She left him without cause, and is entitled to but very little consideration. Soon after she left him she had a miscarriage. This entitles her to some pecuniary consideration. We think $500 as permanent alimony, and $100 solicitor’s fee is the full extent of the pecuniary consideration to which she is entitled.

The decree will be modified accordingly. No costs of this court will be allowed either party.

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


author: Blair, J.

text:
    CITY OF DETROIT v. C. H. LITTLE CO.

    1. Eminent Domain — Grade Crossing — Separation op Grades— Damages — Leasehold op Railroad Property.
    The term of a tenant of railroad property is property for injury to which the tenant is entitled to compensation under sections 4329 et seq., 2 Comp. Laws, providing for the separation of railroad and highway grades, though the statute does not contemplate an award of damages to the railroad owning the property.
    2. Same — Measure op Damages.
    In proceedings by a city under sections 4329 et seq., 2 Comp. Laws, to enforce separation of railroad and highway grades, the court is not in error in refusing to adopt as the measure of damages for interference with a leasehold of railroad property for business purposes, the value of the term less the rent reserved, since the claimant is entitled also to compensation for the interruption of his business, losses incident to the enforced change of location, expenses of removal, and the like.
    3. Contracts — 'Validity—Public Policy — Railroads—Lease op Right op Way.
    A lease by a railroad company of a portion of its right of way to a dealer in heavy articles of merchandise, made with a view to increasing shipments, is not against public policy.
    4. Eminent Domain — Grade Crossing — Separation op Grades— Removal op Buildings.
    A city having permitted the work of tearing up streets to be  begun and the streets rendered impassable before taking the necessary legal proceedings for the separation of railroad and highway grades, and the owner of a leasehold, destroyed by the separation, having treated the city’s unlawful proceedings as lawful, and moved his building before legal proceedings were begun, the city cannot claim that he voluntarily moved his buildings and is therefore not entitled to damages.
    5. Evidence — Admissions—Attorney—Former Trial.
    In a proceeding for the assessment of damages to a leasehold caused by the separation of railroad and highway grades, an admission made by petitioner’s attorney for the purpose of expediting a former’ trial, to the effect that claimant’s witnesses, if called, would testify that claimant’s damages amounted to a specific sum, is properly rejected.
    6. Eminent Domain — Condemnation Proceedings — Trial—Misconduct op Counsel.
    The verdict of the jury in condemnation proceedings will not be set aside for improper argument of defendant’s counsel as to the damages recoverable where the court carefully gave to the jury the proper rules for the determination of the damages sustained, and instructed them to disregard the argument complained of, unless .it is probable that the argument affected the verdict.
    7. Same — Damages—Injury to Leasehold.
    A claimant of damages for injury to a leasehold caused by a separation of railroad and highway grades is entitled to compensation only for the damages due to the improvement on which his property abuts, the damages accruing to him from the improvement at other points, though greater than to other persons having occasion to use the same streets, being different from theirs only in degree and not in kind.
    Appeal from the recorder’s court of Detroit; Connolly, J.
    Submitted October 10, 1906.
    (Docket No. 40.)
    Decided November 13, 1906.
    Petition by the city of Detroit for the separation of grades and the abolition of grade crossings over certain railroads, in which the C. EL Little Company was permitted to intervene and claim damages to a leasehold. From the order confirming the verdict of the jury, both parties appeal.
    Affirmed.
    P. J. M. Hally, for petitioner.

      Willard E. Warner, for respondent.

       Rehearing denied March 6, 1907.

   Blair, J.

On July 3, 1903, the city of Detroit entered into an agreement with the Lake Shore & Michigan Southern Railway Company and other railway companies for the separation of grades at the intersections of the several streets in the district between Woodward and Michigan avenues, inclusive, with the rights of way of said companies. On November 3, 1903, the common council, by resolution, declared it necessary for the public benefit to make the separation of grades in accordance with the plan prescribed in the agreement. On December 16th, the city filed its petition as commencement of judicial proceedings for the separation of grades in accordance with the provisions of chapter 102, 2 Comp. Laws. Respondent was not mentioned in the proceedings, but, on its petition, was permitted to implead and present its claim for damages.

On the 19th of April, 1901, respondent entered into a lease with the Lake Shore Company, for the term of one year, covering a strip of land of 50 feet frontage on the south side of Michigan avenue by 220 feet depth upon the right of way of said company. The company’s warehouse fronted on Michigan avenue with its east side on the west line of Clark avenue. The lease provided for annual renewals, and was renewed on April 19, 1903. The lease provided that it might be terminated by the lessor at any time upon 60 days’ notice, and further provided that the lands leased should be held “ by said second party for the purpose only of receiving, storing, handling and shipping sewer pipe, cement or other freight coming to or shipped by the said second party over the railway of the said first party.”

The work of separating the grades at intersections of the Michigan Central right of way, some 600 feet east of respondent’s premises, was begun prior to respondent’s removal of its buildings and property, and Michigan avenue from Clark and Scotten avenues east was practically impassable at that time. The work adjacent to respondent’s premises under the Lake Shore contract was not begun, however, till September 22,1903, several weeks after such removal. A further statement of facts will be found in City of Detroit v. C. H. Little Co., 141 Mich. 637, in which case this court reversed the judgment of the recorder’s court rendered upon the first trial of this matter. A second trial has been had, resulting in a verdict and judgment for respondent of $474.76, and both parties have appealed to this court.

Counsel for the city insist that a verdict should have been directed in favor of the city for the reasons:

“(1) The statute does not contemplate an award of damages to a steam railroad, and, since in case of injury to a leasehold interest the damages are to be apportioned, the legislature has failed to provide damages for injury to the interest of a tenant of a railroad right of way.

“ (2) The measure of damages is the value of the term less the .rent reserved and there was no evidence of the value of the term.

“(3) The lease was against public policy, invalid, and respondent could obtain no rights under it.”

1. This point is disposed-of by our previous decision.

2. The court did not err in refusing to adopt as the measure of damages the value of the term less the rent reserved. Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390; Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466; Commissioners of Parks & Boulevards of Detroit v. Railroad Co., 91 Mich. 291; Same v. Moesta, 91 Mich. 149, 154; City of Detroit v. Brennan & Co., 93 Mich. 338.

3. This point is disposed of by Michigan Cent. R. Co. v. Bullard, 120 Mich. 416.

It was also contended by petitioner that, since respondent voluntarily moved its buildings before judicial proceedings were instituted to determine the necessity for the proposed separation of grades, it could recover no damages for such removal. Petitioner, having permitte’d the work of tearing up the streets to be begun and the streets to be rendered impassable before taking the necessary legal proceedings, is not in a position to object that respondent, in-good faith, treated its unlawful proceedings as lawful and moved his buildings to lessen the damages.

Respondent contends that the court erred:

‘ ‘ (1) In refusing to receive evidence of an alleged admission of the amount of respondent’s damages by petitioner’s attorney on the former trial.

“ (2) In permitting improper arguments tobe addressed to the jury by counsel for petitioner.

“ (3) In leaving the question to the jury whether or not the respondent was compelled to move by reason of the separation of grades.

‘ ‘ (4) In refusing to grant a new trial for the reason, among others, that the jury did not follow the uncontroverted testimony as to the amount of respondent’s damages.”

1. This point is disposed of by our previous decision. The admission was made for the purpose of expediting the trial, and was, in effect, that respondent’s witnesses, if called, would testify that the damages amounted to $1,807.40. The evidence was properly rejected.

2. We do not think the arguments of petitioner’s counsel, of which complaint is made, if erroneous, could have prejudiced the jury so far as respondent’s damages are concerned, in view of the charge of the court upon that subject, which respondent’s counsel concede was correct. We do not think that verdicts should be set aside in such proceedings upon the ground of improper argument as to the damages recoverable where the court has carefully given to the jury the proper rules for their guidance, and instructed them to disregard the argument principally complained of, as in this case, unless it seems probable that such arguments affected the verdict.

3. Among other things, the court instructed the jury as follows:

“You are to say whether or not, as reasonable men, they were compelled to move by reason of the separation of grades. If they were compelled to move their warehouse, by reason of the separation of grades, you are to say, as reasonable men, under the evidence, what damage, what cost they were put to by reason of their mo ving. Now, it is the claim of the petitioner here that there was no necessity imposed upon them by reason of the separation of grades to move at all from the old site; that is to say, they could have remained where they were and accommodated themselves upon the old site, to the new situation, and go on doing business there just the same. That is a proper element for you to consider in your award of damages, whether or not they were under the necessity of moving on account of the separation of grades, or of moving entirely to meet the expanding and growing needs of their business. What the statute contemplates is that they shall be justly compensated for any injury they may have received by reason of the separation of the grades, and by reason of nothing else than that.”

Respondent’s counsel contend.that the testimony of their witness Tucker, that “they were handicapped for room on the south side,” etc., is only subject to the interpretation that such testimony related to the situation as it would exist after the excavation in front of the premises and with the building moved back on Clark avenue. We do not regard this as a necessary view .of the testimony.

The jury viewed the premises, and we think the court did not err in leaving it to them to determine from such view, from the fact that they moved the building back on the lot before work began, in front of the premises, from the testimony of the witness and the surrounding circumstances, whether respondent did not move its buildings to meet the demands of its expanding business.

4. The items of respondent’s damages as claimed were:

To paid extra men under Torrey -..........-____________ §78 94
To paid extra man under Taylor ........................ 133 95
To value of double teams for extra time................ 1,236 09
To value of single wagons for extra time............. 484 49
To value of various items of expense .......... 210 01
To value of damage to building........................ 300 00-
Total ............................................§2,443 39

Interest on the above total from February 1st, 1904, the average date, $261.85, which, added to -the above, makes a total of $2,705.15.

The basis of the claim for damages “for extra time ” of teams was, as testified by the foreman of the south yard and the man in charge of the teaming:

“We kept an average of two double teams and one single wagon at that yard, and they would draw an average of six loads a day, each, from the south yard. After Michigan avenue became impassable, the hauls were much longer. From the south yard, we had to go south on Clark avenue to Toledo avenue, the first paved east and west street, then east or west on that avenue to the first paved street back to Michigan avenue and up that street to Michigan avenue again, making an extra distance of about two miles for each load. From the north yard we had to go north on Scotten avenue to Buchanan, the first paved east and west street, then east or west to the first paved street back to Michigan avenue, and down that street to Michigan avenue again, making an extra haul of about two miles for each load, just about the same extra distance on both sides of Michigan avenue. This extra distance for each load amounts to 12 miles extra travel for each team and wagon per day, or a loss of time which it takes the teams to go that extra distance. During the fall and winter of 1903-4 and the summer of 1904, Michigan avenue was in such shape that teams could not traverse nor cross it. We could not get from one yard to the other without going way around. * * *

“During the later part of the work of improvement, teams could drive through Michigan avenue on the south half of the avenue, but we could not cross it until it was completed, which was some time in September, 1904. * * *

“ The single wagons ordinarily haul from 2,000 to 3,000 pounds to a load, and the double teams from 3,000 to 5,000 pounds per load. The teams have to keep on the paved streets with such loads. A double team with a man is worth 50 cents per hour, and a single wagon with a man is worth 40 cents per hour, the man in each .case costing the same. In making deliveries from the south yard, bn the south side of Michigan avenue during the time that Michigan avenue was impassable, the teams had to go south on Clark avenue to Toledo avenue, the first paved street running east and west, then east or west on Toledo to the first paved street running north and south, then north on that street back to Michigan avenue. From the yard on the north side of Michigan avenue, the teams had to go north on Scotten avenue to Breckenridge street, the first paved street running east and west, then east or west on that street to the first paved street running north and south, then south on that street back to Michigan avenue. This made an extra haul of about two miles for each. load. A loaded team will not walk more than three miles per hour. Toledo avenue is just about the same distance south of Michigan avenue that Breckenridge is north of. it. The teams returned by the same routes as going.

“ To the south [of Michigan avenue there is a short street between Michigan and Toledo, but it is not paved, and between Michigan and Breckenridge there are some unpaved streets. Our teamsters take the same route on the return as going. I did not go with every load, but drove around from day to day in a carriage to keep track of the teams and men. They could not deliver as many loads per day, going around the long way, as out by the way of Michigan avenue. * * *

“I heard the testimony o'f Mr. Heiden as to the extra distances for the hauls and the extra time which it took, from which I have made the computations of the value of the teams and men for such extra time for an average of six loads per day for each team and wagon. For the double teams this amounts to the sum of $1,236. For the single wagons this amounts to the sum of $484.40. I have computed it for the period of one year, as it took that long at least when Michigan avenue was impassable for our teams; i. e., from the latter part of August, 1903, into September, 1904. It was a little longer than one year, but I have used that as a basis.”

This testimony is not very satisfactory. It does not appear how many loads were hauled during the year nor upon any given day, nor what route was traversed by any team, nor how far any particular team traveled, nor what the basis was of the witness’ statement of the average number of loads, nor the weight of load that any particular team, hauled, nor that all of the loads had to be drawn on paved streets, nor what time was consumed in returning with the empty wagons, nor what part of the extra haul was due to the separation of the Lake Shore grades alone, nor what effect, if any, the procuring of additional room upon the north side and the admitted expansion of the business had upon the number of loads hauled from the south side. None of the teamsters were called, and a part of the testimony, at least, upon this subject was based upon hearsay.

Respondent was not entitled to recover any compensation for damages due to the separation of grades at the intersections of Michigan avenue or any other streets with the Michigan Central and Grand Trunk rights of way, but only for the Lake Shore improvement, upon which his property abutted. As to the other improvements, while the damages may have been greater to respondent than to others having occasion to use Michigan avenue, the difference was one of degree and not of kind.

Respondent’s counsel admitted that they claimed nothing for loss of profits and it is fairly inferable from his statements that there had been no loss of profits. The judge who tried the case admitted it to the jury in a very fair, lucid, and comprehensive charge, and after considering respondent’s motion for a new trial, said:

“ The case was, in my judgment, fully and fairly tried by twelve intelligent and impartial jurors, and I can see no reason at this time to disturb their verdict.”

We are not prepared to say upon this record that his conclusion was erroneous. The judgment is affirmed.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    BENNETT v. CITY OF ST. JOSEPH.
    Highways and Streets — Defective Sidewalks — Actionable Defects — Municipal Corporations — Torts—Negligenoe .
    A depression in a cement sidewalk If inches deep, caused by one of the stones being allowed to settle that distance below the level of the one adjoining it, is not an actionable defect, making the city liable for an injury to a pedestrian caused thereby.
    Error to Berrien; Coolidge, J.
    Submitted October 11, 1906.
    (Docket No. 66.)
    Decided November 13, 1906.
    Case by Rebecca Bennett against the city of St. Joseph for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.
    The defendant city has 18 miles of cement sidewalks and 2 miles of board sidewalks. On one of its principal streets the cement walk was 10 feet wide, and was composed of two tiers of cement blocks or slabs, each block being five feet square. There was a depression in one place at the junction of the blocks, probably caused by the excavation of a sewer underneath, in refilling which the ground had not been solidly packed. The greatest depression was in the center of the walk, and was only, by actual measurement, l£ inches, and from the center approached to the level at the edge of the sidewalk. In her statement, filed with the common council, claiming damages, she stated that the depression was from 1£ to 2 inches in depth. The court was requested at the close of the evidence to direct a verdict for the defendant, which request the court refused.

      N. A. Hamilton, for appellant.

      Samuel H. Kelley, for appellee.
   Grant, J.

(after stating the facts). Municipalities are not required to keep their streets and sidewalks absolutely smooth. There have always been depressions and elevations in both. A condition of reasonable safety is all that the law requires. This court has repeatedly held that depressions equal to, and deeper than, this, and elewations constituting as great, or greater, obstructions than this depression, do not constitute negligence on the part of municipalities. Jackson v. City of Lansing, 121 Mich. 279, and authorities there cited.

One of the plaintiff’s witnesses, a physician, on his direct ■examination, testified that he had passed over this every day of his life and had never met with an accident.

“I lifted up my feet and stepped over it. It was not much of a step. A little notch there — any one going along and not looking might stub their toe, but I never stubbed my toe there.”

This disposal of the case renders a discussion of the •other questions immaterial.

Judgment reversed, and no new trial granted.

Blair, Montgomery, Ostrander, and Hooker, JJ., ■concurred.


text:
    JULIUS KESSLER & CO. v. LACKIE.
    Sales — Warehouse Receipts — Passing- of Title.
    This case, involving the validity and effect of certain warehouse receipts for whisky stored in plaintiff’s bonded warehouse, is ruled by Julius Kessler & Oo. v. Veio, 142 Mich. 471, and Same v. Zaeharias, 145 Mioh. 698, involving the same facts.
    Error to Clare; Dodds, J.'
    Submitted October 11,1906.
    (Docket No. 60.)
    Decided November 13, 1906.
    Assumpsit by Julius Kessler & Company against James Lackie and Colin McDonald for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Arthur J. Lacy, for appellants.

      C. W. Perry, for appellee.
   Grant, J.

This action was brought to recover on one of a series of notes given by defendants to plaintiff for a quantity of whisky purchased from plaintiff by defendants, and for which plaintiff delivered defendants a bonded warehouse receipt.

Aside from names, dates, and amounts, the warehouse receipt involved in this case is the same as those involved in Julius Kessler & Co. v. Veio, 142 Mich. 471, and Julius Kessler & Co. v. Zacharias, 145 Mich. 698. The purchase of the goods, the giving of the notes and of the receipts are the same as in Julius Kessler & Co. v. Zacharias.

The defense in this case is based upon the alleged non-negotiability of the warehouse receipt, under the statute of Kentucky, and upon fraud alleged to consist in the statement made by the plaintiff that the receipt given was a genuine warehouse receipt. These warehouse receipts were recognized as valid in the cases above cited. There was no fraud, as the court correctly found.. Defendants read the receipt and knew just what they were taking. They made a valid contract for the purchase of the goods. Under the decisions above cited title had passed to them, and all that remained was to pay the notes and take their goods.

The court of appeals of Kentucky has decided two cases which rule this. Under similar receipts in the hands of transferees the lien of the vendor was held valid as against the transferees. ' Western Bank v. Distilling Co., 9 Ky. Law Rep. 500; Pike v. Greenbaum, 12 Ky. Law Rep. 423.

Judgment affirmed.

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


text:
    CITY OF MUSKEGON v. HANES.
    Municipal Corporations — Ordinances — Violation — Prosecution — Appeal—Exceptions Before Sentence.
    Prosecutions for violation of city ordinances are not reviewable in this court on exceptions before sentence.
    Exceptions before judgment from Muskegon; Sessions, J.
    Submitted October 12, 1906.
    (Docket No. 71.)
    Decided November 13, 1906.

      Mary A. Hanes was convicted of violating a city ordinance.
    Proceedings dismissed, and court below advised to proceed to judgment.

      Gross, Lovelace & Boss, for appellant.

      James 'E. Sullivan, for appellee.
   Hooker, J.

This cause was brought to this court on exceptions before sentence from the circuit court for the county of Muskegon. We cannot consider it for the reasons stated by Mr. Justice Ostrander, in the case of People v. Smith, ante, 193.

The cause is dismissed, with directions to the circuit court to render judgment therein. 4

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


text:
    RIKERD LUMBER CO. v. HOERTZ.
    1. Saving Questions for Review — Necessity of Exceptions.
    Rulings of the trial court to which no exceptions were taken cannot be reviewed on error.
    2. Sales — Building Materials — Action for Price — Evidence— Materiality.
    In an action for the price of materials furnished on an oral contract to manufacture and furnish the inside finish for a building, testimony by plaintiff’s superintendent as to what he figured in figuring the work for plaintiff is immaterial, he having had no conversation with defendant with reference to the contract, and knowing nothing about the contract except what plaintiff’s president told him.

      3. Compromise and Settlement — Ineffectual Concessions — Effect.
    Concessions made in an ineffectual effort to reach a settlement are not binding.
    Error to Ingham; Wiest, J.
    Submitted October 12, 1906.
    (Docket No. 72.)
    Decided November 13, 1906.
    Assumpsit by the Rikerd 'Lumber Company against Charles Hoertz and William C. Hoertz, copartners as Charles Hoertz & Son, for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.
    Affirmed.
    Defendants, contractors, contracted to erect a building for the Michigan Agricultural College. They made an oral contract with the plaintiff to furnish the frames, sash, doors, and inside finish for $1,000. It furnished the material and defendants paid it all they conceded to be due. Defendants also purchased other material outside of the contract. Plaintiff brought suit, claiming $151.68. Prom this it was conceded should be deducted $31.84, leaving in dispute $119.84. The main controversy arises over certain items claimed by plaintiff to be extras, and by the defendants to have been included in the contract. The case was submitted to the jury, who rendered a verdict for the defendants.

      Frank L. Dodge, for appellant. .

      Lombard & Hext, for appellees.
   Grant, J.

{after stating the facts). 1. Seven errors are assigned upon the rulings of the court during the trial. To six of these rulings no exceptions were taken. They therefore cannot be considered. Selby v. Railway, 122 Mich. 311. The ruling to which exception was taken related to the testimony of plaintiff’s superintendent, who testified that he knew something about the plans of the building, and that he figured the work for the plaintiff. The question was then asked: “ Now, will you tell the jury what was figured in that work ?” The question was objected to as immaterial, the question being not what he figured, but “ what the contract called for.” The witness had had no conversations with the defendants, and knew nothing about the contract, except what the plaintiff’s president told him. The testimony was properly excluded.

2. Errors are assigned upon portions of the charge. The instructions completely covered the claims of both parties. The court fully and fairly stated the theory of each, and then instructed the jury that if the contract did not include the items in dispute, the plaintiff was entitled to recover $119.84; but that if they were included in the contract, it could not recover. There was no error in the charge read in its entirety.

3. After suit was commenced, negotiations were entered into for a settlement. Upon the theory that a compro? mise was agreed upon by which the defendants were to pay plaintiff $84 in settlement, they inclosed their check for that amount to the plaintiff. The plaintiff at once returned the check, denying that such a compromise was made. The court instructed, the jury:

‘ ‘ If you find from the evidence that these parties in an effort to adjust their matters met together, and went over their claims and agreed upon the terms of their contract, and what was included within the contract, then the agreement would be binding upon them, but if they met for the purpose of an adjustment and made concession, not because they admitted the contract required the concessions, but in order to reach a settlement of their matters, and a settlement was not consummated, then concessions made under those circumstances would not be binding upon eitheir party to the case.”

The instructions were correct. It was evident that the jury determined that no compromise was made.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    LEWIS v. CITY OF MARSHALL.
    1. Appeal and Error — Review—Directed Verdict — Propriety.
    In reviewing a judgment on a directed verdict, the court considers the testimony in the light most favorable to the plaintiff in error.
    2. Highways and Streets — Defective Sidewalks — Municipal Corporations — Liability for Personal Injuries — Contributory Negligence.
    In an action against a city for a personal injury caused by a fall on a defective sidewalk, evidence examined, and held, that whether plaintiff was, under all the circumstances, using proper care either in going upon the walk, or in her passage over it, was a question for the jury.
    Error to Calhoun; North, J.
    Submitted October 12, 1906.
    (Docket No. 75.)
    Decided November 13, 1906.
    Case by Eva A. Lewis against the city of Marshall for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      H. J. Courtright and Hatch & Page, for appellant:
    As the evidence clearly shows that the plaintiff did not know of the particular defect complained of, the court erred in holding, as a matter of law, that she was guilty of contributory negligence, even though she knew that the walk was in bad condition, and had that fact in mind at the time of the accident. Lowell v. Township of Watertown, 58 Mich. 568; Dundas v. City of Lansing, 75 Mich. 499-509; Oesterreich v. City of Detroit, 137 Mich. 415-418; Whoram v. Township of Argentine, 112 Mich. 20; Vergin v. City of Saginaw, 125 Mich. 499; Styles v. Village of Decatur, 131 Mich. 443; Barnes v. WestBay City, 138 Mich. 93.
    When the question of contributory negligence is not free from doubt, it should be submitted to the jury; Dundas v. City of Lansing, 75 Mich. 499-510; Graves v. City of Battle Creek, 95 Mich. 266-272.

      As the testimony of the plaintiff conclusively shows that she was in the exercise of at least ordinary care, the question of contributory negligence was for the jury. Laughlin v. Railway Co., 62 Mich. 220-228; Herring v. City of St. Joseph, 137 Mich. 480.

      William H. Porter, for appellee:
    Plaintiff’s negligence contributed to causing the injury of which she complains. Dittrich v. City of Detroit, 98 Mich. 248; Black v. City of Manistee, 107 Mich. 60; Grandorf v. Railway Co., 113 Mich. 496; Irion v. City of Saginaw, 120 Mich. 295; Vergin v. City of Saginaw, 125 Mich. 502; King v. Township of Colon, 125 Mich. 517.
   Ostrander, J.

Upon the case made by the plaintiff, the trial court directed a verdict for defendant, for the reason that plaintiff’s negligence contributed to her injury. The case for the plaintiff tended to prove that both east and west of the point where the injury occurred, the walk had been removed a year or more, and pedestrians walked upon the ground. Opposite to a gateway leading to private property, a portion of the walk, consisting of boards running east and west, remained, and at each end of this driveway, connected with it, there were a few boards running north and south, a part of the old sidewalk. Plaintiff, on the morning of August 11, 1905, while passing over this short piece of sidewalk, and when near the west end of it, was thrown down and injured. She either stepped in a hole made by a broken plank, or caught her foot under a plank. She was, at the time, carrying a few apples in her apron. Four weeks previously, in going over the walk with her husband, in the evening, she had caught her foot, on the north side of the walk, in a wire which was in use across the ends of the boards to keep them in place. Upon the occasion of her injury, she was looking for and seeking to avoid this wire. Pedestrians, to some extent, avoided this piece of walk and in doing so made beaten paths on the north and south sides of it. Plaintiff testified:

“ The fact that there was a pathway on each side had not attracted my attention, only I knew there was a walk, and a beaten path on each side. I am sure of that. I never walked on that path. * * * There was a path on each side of this piece of walk, a path that people walked around, had walked there. They was worn down so there was no grass there — down to the dirt — hard.

“Q. Do you know why they had done so ?

“A. I suppose because the walk was bad. I didn’t go around because I seldom walk on the ground'. I rather walk on the boards there where it ain’t dirty, as much as I can. It had not been raining any that day that I remember of.”

She also testified:

“ Q. Well, now, if there was a depression or hole in this walk, you could have seen it there if you had been looking, couldn’t you ?

“A. If I had been looking for a hole, yes, if I had known it was there, and I had been looking for a hole.

“Q. You knew before that the sidewalk was bad ?

“A. I knew about that wire, yes, I knew the wire was there, but I did not know the sidewalk was bad. I had never been over it very many times.”

It is unnecessary to set out more of the evidence. There is some of it which tends to prove that plaintiff did not exercise the care in the use of the way that conditions which were apparent and her previous acquaintance with those conditions enjoined. For the purposes of this case, her testimony and that of her witnesses must be viewed in the light most favorable to her. It cannot be said, in view of previous decisions of this court, that her want of due care is, as matter of law, established. We have had occasion recently (Hodge v. City of St. Louis, ante, 173) to review the cases, and to again distinguish those in which it has been held that the negligence of plaintiff is, as matter of law, made out. The cases are collected in the briefs of counsel. A careful examination of the record leads to the conclusion that it cannot be said that the public was not invited to use the walk in question, that the defect which caused the injury was obvious, or that plaintiff was not using care to pass over the walk in safety, giving especial attention to the particular defect therein of which she had knowledge. Whether she was, under all the circumstances, using proper care either in going upon the walk, or in her passage over it, was, upon this record, a.question for the jury.

The judgment is reversed, and a new trial granted.

Grant, Blair, [Montgomery, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    BARRIBEAU v. CITY OF DETROIT.
    Appeal and Error — Dismissal—Premature Issuance oe Writ —Jurisdiction.
    Where an examination of the return to the writ of error discloses that the case has not proceeded to judgment, this court is without jurisdiction, and the writ of error will be dismissed.
    Error to Wayne; Rohnert, J.
    Submitted October 12, 1906.
    (Docket No. 44.)
    Decided November 13, 1906.
    Case by Dulice Barribeau against the city of Detroit for personal injuries. Plaintiff brings error.
    Writ dismissed for want of jurisdiction.

      Charles McPherson and John C. Bills, for appellant.

      J. Walter JDohany and Denton Guinness (Timothy E. Tarsney, of counsel), for appellee.
   Per Curiam.

The printed record affords no evidence that a judgment in this cause was ever entered. An ex-animation of the return to the writ of error discloses the fact that the case has not proceeded to judgment. A verdict was directed, and a motion to set it aside and grant a new trial was denied. No further proceedings, except to settle a bill of exceptions, appear to have been had.

The writ of error is dismissed, with costs to appellee. Delaney v. Lumber Co., 144 Mich. 351.


text:
    SILVER v. HAMILTON TOWNSHIP BOARD.
    Schools and School Districts — Organization of Districts — Certiorari — Propriety.
    The issuance of a writ of certiorari being largely discretionary, and not permissible to accomplish a palpable injustice, a writ issued to review the sotting aside of the organization of a school district out of the territory of two others will be dismissed, where each of the three districts as so organized would be financially unable to support a school without imposing upon their residents a greater burden than they are able to bear.
    Certiorari by Warren S. Silver, Joseph W. Allen, and Robert Fisch, school board of district No. 5 of Hamilton township, to review an order of the township board of Hamilton setting aside the action of the board of school inspectors in organizing said school district.
    Submitted October 39, 1906.
    (Calendar No. 31,889.)
    Writ dismissed November 13, 1906.

      Cfeorge J. Cummins, for appellants.

      John Quinn, for appellee.
   Per Curiam.

A writ of certiorari brings before us for review the' proceedings of defendant, setting aside the organization of the plaintiff school district. That district was organized June 9, 1906, by the school inspectors of Hamilton township, Clare' county. It was composed of four sections, two of which were taken from district No. 2, and two from district No. 3 of Hamilton township. It appears from the return of defendant, which must be taken as true, that the property of the new district has an assessed valuation of $14,610, and that the effect of its organization will be to reduce the property in school district No. 2 from an assessed valuation of $29,760 to $24,020, and that of district No. 3 from $27,110 to $19,360. The organization was set aside by defendant because—

££ With this territory detached, said districts (2 and 3) will be unable to maintain their schools as they .should be, without imposing a greater burden upon the residents than they are able to bear, and the new district proposed to be formed * * * will be in the same condition, so that two good school districts are sacrificed for the sake of having three poor ones.”

Plaintiff in certiorari asks us to reverse the action of the township board because of various irregularities in its proceedings. If plaintiff had a legal right to have a court review those proceedings, it is possible that its claim of error would be allowed. But it has no such right. At least, it has not that right in this case. As heretofore stated, this case is brought before us by writ of certiorari. That writ, the issuance of which is largely discretionary, will not be permitted to accomplish a palpable injustice (West v. Parkinson, 130 Mich. 401, and authorities there cited); and it is clear for the reason stated by respondent that injustice would be accomplished by setting aside the order under consideration, and sustaining the organization of the plaintiff school district.

The writ of certiorari is dismissed.


author: McAlvay, J.

text:
    SAGINAW SUBURBAN RAILWAY CO. v. CONNELLY.
    1. Property — Ownership—Evidence—Sufficiency.
    On the issue as to the ownership of certain rails sold by the president of a suburban railway company in his individual capacity, evidence examined, and held, to support a decree establishing title in the corporation as against the claim of the president that they were his individual property.
    2. Same — Bona Fide Purchaser.
    A purchaser of railroad rails from the president of a railroad company in his individual capacity, the rails being in the possession of the company, fastened to the ties upon its roadbed, cannot claim title to the rails as against the company, on the ground that he is a good faith purchaser.
    3. Estoppel — Pleading—Necessity.
    An estoppel in pais must be pleaded.
    4. Appeal and Error — Review—Ruling Below.
    A case will not be reversed because a wrong reason was given by the trial court for a proper conclusion.
    5. Same — Discretionary Rulings — New Trial.
    A ruling of the trial court in a chancery case on a motion for a rehearing, on the grounds of surprise and newly-discovered evidence, will not be reviewed by this court unless an abuse of discretion clearly appears.
    Appeal from Genesee; Wisner, J.
    Submitted February 16, 1906.
    (Docket No. 187.)
    Decided November 13, 1906.
    Bill by the Saginaw Suburban Railway Company against John E. Connelly to enjoin the removal of certain rails. From a decree for complainant, defendant appeals.
    Affirmed.

      Black & Roberts, for complainant.

      James H. Davitt, for defendant.
   McAlvay, J.

Complainant, a Michigan corporation organized under the train railway act for the purpose of constructing a railway between Flint and Saginaw, filed its bill of complaint against defendant, setting forth, among other things, that, after its organization, it proceeded to construct an electric railway by making a certain amount of grade and putting thereon ties and steel rails; that, after this labor had been performed and expenditure for materials made, the work of construction was suspended; that in May, 1903, George Silsby was deposed from his office as president of said road and Arthur G. Bishop elected in his place; that on January-26, 1904, defendant John E. Connelly caused to be filed in the office of the city clerk of Flint a bill of sale executed by said Silsby in his individual capacity to said defendant January 6, 1903, purporting to convey to him 155 60-pound T rails, the property of complainant, a large part of which rails had already been laid in the track upon its roadbed in the townships of Genesee and Burton, Genesee county; that this sale was made without any authority whatever, and.without consideration to complainant ; that complainant had no knowledge that such bill of sale had been made until after it was filed as above stated; that defendant, claiming said property under said bill of sale, on May 24, 1904, entered upon the roadbed of complainant in the said townships, and proceeded to tear up and remove a large quantity of the railroad iron from said track and procured the same to be drawn to the Pere Marquette Railroad for the purpose of. shipping the same away; that defendant threatens to tear up and carry away all of said rails now on complainant’s roadbed and take the same from its possession and convert the same to his own use. An injunction was prayed for and issued, damages were asked to be assessed on account of tearing up and removing said steel rails, and a prayer for general relief added.

Defendant answered' and an issue was joined. Upon the hearing, a decree was granted complainant. Defendant seeks a reversal of this decree:

1. Because it was not supported by the evidence.

2. Because an estoppel could not be proved and a decree based upon it, without proper allegations of estoppel in the bill of complaint.

The entire dispute upon the facts relates to the question of the title to the steel rails and angle bases mentioned in the bill of sale. We find the following to be the facts established by the proofs: Mr. Silsby had promoted the organization of this road ^ without any considerable amount of money, expecting to interest others who would invest enough money to make sufficient showing so that the stock would be salable. Mr. Ode Russ, through previous arrangements made with Silsby on October' 9, 1901, induced Mr. W. H. Deubel of Ypsilanti to invest in‘ the enterprise. An arrangement was made whereby Deubel was to pay $2,-500, Russ to do work for his share amounting to ,$2,500, and the three men, Silsby, Deubel, and Russ, were each to own a one-third interest in the road, and afterwards stock was issued to Deubel and Russ on this understanding. Silsby became president, Russ, vice president, and Deubel, treasurer of the company. Deubel’s money was to be used to start the work and put the road in condition so that Silsby could finance it. Neither the company nor Silsby at that time had any money. Deubel and Silsby at once went to Chicago to buy rails. Deubel put $1,000 or $1,500 in one of the Chicago banks, and the rails in question were purchased.' They were shipped to Flint billed to Silsby as president of the Saginaw Suburban Railway Company. The rails were received and unloaded by Russ, who was superintending the work, and placed along the roadway from Flint towards Mt. Morris. Angle bars, plates, and spikes were also bought in Detroit with money furnished by Deubel.

Later Messrs. A. G. Bishop, D. D. Aitkin, and E. D. Black of Flint became interested and agreed to purchase a controlling interest in the road. One share of stock was issued to each of them, and 248 shares were issued to Clinton Roberts, trustee, by transfer from Silsby, Russ, and Deubel, making a majority of the stock, for which Bishop, Aitkin, and Black paid $7,800. Of this amount $3,000 was paid to Deubel for his interest in full, being the amount of cash he had paid in. When these parties were negotiating this purchase Silsby furnished them a statement in writing showing the assets and liabilities of the company, and among these assets were included the steel rails in question. This statement appears in the record. After this purchase by Bishop, Aitkin, and Black these rails were placed upon the ties which were on the roadbed. They were bolted together in a continuous line, and spiked to the ties, Silsby being present and assisting by furnishing the gauge and showing how it was to be used. The spiking was not completed nor was the roadbed ballasted. It was desired t'o make as much show as possible of a road under construction.

Mr. Silsby testifies for defendant that these steel rails were bought by him with the money Deubel paid to him for stock he sold him; that the rails never belonged to the company and were only allowed by him to be put upon the road for the purpose of appearances. He denies that he furnished the statement of assets and liabilities as claimed. Defendant Connelly testifies that he bought this property in good faith and paid $600 cash for it. There is a great preponderance of proof in this record to show that the steel rails were purchased as the property of complainant company, and that no sale or transfer of it was ever afterwards made or authorized. The stock of the concern at the time of the purchase had no value whatever. Deubel was not buying stock of Silsby. He was taking a third interest in this enterprise. His money was to go into the corporation for immediate use. It was expected to start the work, and Deubel’s money was to buy rails and pay the expenses of the construction, to make such a showing of actual progress that Silsby could finance the enterprise. There is no evidence in the case that any one claimed at that time that Silsby purchased and owned these rails. His bill of sale is the first intimation in the record of such claim. The memorandum of assets, furnished without doubt by Silsby, as testified to by Bishop, Aitken, and Black, supports the testimony of Deubél and Russ that the rails were bought for the company. It amounts to an admission on the part of Silsby of complainant’s contention. Complainant is entitled to its decree from this record upon the question of title to the property.

As against complainant the claims of defendant to this property as a good faith purchaser are not entitled to consideration. It was in complainant’s possession, fastened to the ties upon its roadbed, whether permanently or temporarily is immaterial. There was sufficient appearing from the location of this property and its possession by complainant to put a prudent man upon his inquiry as to its title.

The court, in the oral opinion given at the time, granted complainant relief upon the ground that Silsby was es-topped by his conduct from claiming title to the property, and that the condition of the property as it was located was notice to the public of some rights of complainant therein. It is urged that in this State in a court of equity estoppel must be pleaded, and that, under its bill of complaint, no basis of right by estoppel having been alleged, .complainant cannot be awarded relief upon that ground. The rule is recognized that, in equity in this State, “ an ■estoppel in pais must be pleaded where it constitutes the basis of a right to sue and ground of relief, or as relied upon as a defense.” Dean v. Crall, 98 Mich. 591-593, and cases cited. When this question was raised upon the hearing it was claimed by complainant’s counsel that the estoppel was specifically pleaded. An examination of the pleading shows that he was mistaken. From the record in the case we find that the property belonged to complainant and was never the property of Mr. Silsby. The court arrived at a right conclusion, and granted complain■ant relief. This court has repeatedly said that a case will not be reversed on account of a wrong reason given by a trial court for a proper conclusion.

A rehearing was asked on the ground that defendant was taken by surprise by the production in evidence of the statement of assets and liabilities claimed to have been furnished by Silsby, and newly-discovered evidence relative thereto. This motion was supported by affidavits of Silsby and Russ claiming that a large portion of the railroad ties included in that statement were not delivered until after the purchase by Bishop, Aitkin, and Black, and that they remembered that the statement was not made until April 3, 1903, for use in negotiating a deal with some Detroit parties. The motion was denied. It .is urged that this court should review that decision. The rule is that this court will not review the action of the trial judge upon such application except when it clearly appears that there has been an abuse of his discretion. An examination of these affidavits, and the affidavit of the bookkeeper of the company which sold the railroad ties to complainant company, opposing such motion, together with the statement of assets and liabilities furnished by Silsby, satisfies us that the action of the court was supported by the evidence 'offered, and the record of the case.

The decree is affirmed, with costs.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.