author: Stone, C. J. Brooke, J.

text:
    PEOPLE v. GANSLEY.
    Elections — Criminal Law — Purity oe Liquor Election — Local Option — Corporations—Donations.
    Act No. 109, Pub. Acts 1913 (1 Comp. Laws 1915, § 3841), provides that no sums of money shall be paid and no expense authorized or incurred by or on behalf of any candidate who has received a nomination to any office or position in excess of a stated amount; section 1 of the statute limits the money to be paid or expense incurred by or on behalf of any candidate to be paid by him in order to secure or aid in securing his nomination to office and that no sum of money shall be paid and no expense authorized by or on behalf of any candidate contrary to the provisions of the statute. Section 11 forbids any person not a candidate or treasurer of a political committee to. pay, give, lend or agree to pay, give or lend any money for election expense, unless given to a candidate or to a political committee. Section 14 provides that no officer, director, stockholder, attorney, agent or any other person acting for any corporation under the laws of this or of any other State, or foreign country, except corporations formed for political purposes shall pay money of the corporation to any candidate or political committee for the payment of any election expenses whatsoever. Held, that the statute applies to elections other than those at which candidates only are to be chosen, and applies to the payment of money by the director of a brewing company to a so-called “Personal Liberty League,” in a local-option campaign. Kuhn, Ostrander, Bird, and Brooke, JJ., dissenting.
    Exceptions before sentence from Ingham; Collingwood, J.
    Submitted October 28, 1915.
    (Docket No. 107.)
    Decided June 1, 1916.
    Jacob Gansley was convicted of violating the corrupt practices act.
    Affirmed.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney .General, and William C. Brown, Prosecuting Attorney, for the people.

      Warner, Raudabaugh & Person {Fred A. Baker, of counsel), for respondent.
   Stone, C. J.

This case is brought here upon exceptions by the respondent, after conviction, and before sentence, for an alleged violation of section 14 of Act No. 109, Pub. Acts 1913 (1 Comp. Laws 1915, § 3841), entitled:

“An act to regulate and limit nomination and election expenses, to define and prevent corrupt and illegal practices in nominations and elections, to secure and protect the purity of the ballot, and to require accounts of nomination and election expenses to bé filed, and providing penalties for the violation of this act.”

The accusation set forth in the information reads as follows:

“That heretofore, to wit, on the 1st day of April, A. D. 1914, at the city of Lansing, and in the county aforesaid, one Jacob Gansley, being then and there an official, director, and manager of the Lansing Brewing Company, a Michigan corporation, and acting for said Lansing Brewing Company, a Michigan corporation, did pay, give, and lend to a certain political committee, to wit, the Personal Liberty League of Lansing, Michigan, the sum of five hundred ($500.00) dollars, in money belonging to the said Lansing Brewing Company, for the payment of election expenses incurred in opposing local option at an election to be held and which was held on the 6th day of April, A. D. 1914, in the said county of Ingham, to ascertain the will of the electors of said county, whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said county, the said Lansing Brewing Company being then and there a corporation incorporated and existing under the laws of the State of Michigan and doing business at the city of Lansing in said State, and not being a corporation formed for political purposes; the said Personal Liberty League then and there being a. committee opposing local option at the election to be held and which was held in said county of Ingham on the 6th day of April, A. D. 1914, to ascertain the will of the electors of said county, whether or not the manufacture of liquors and the liquor traffic should be prohibited within the limits of said County — contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

Upon arraignment the respondent stood mute, but moved the court to dismiss the information for the reason: That it set forth no offense known to the law. That said section 14 is unconstitutional and void because :

(1) Said section is not within the title to the act, and is in conflict with the provision of the Constitution of this State requiring the object of an act of the legislature to be set forth in its title.
(2) That said section 14 is in conflict with the provisions of the Fourteenth Amendment of the Constitution of the United States, that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. That corporations are persons within the meaning of the Fourteenth Amendment of the Constitution of the United States, and said section 14 denies to all corporations, domestic or foreign, other than corporations organized for political purposes, the right secured to natural persons by section 3 of said act to make expenditures of money for nomination or election expenses.
(3) That the title of said act confines it to the nomination and election of candidates for office, and it can have no application to local option elections in the several counties of the State, under the local option prohibitory liquor laws of this State.
(4) That said section 14 is in conflict with section 4 of article 2 of the Constitution of this State.
(5) That the act is indefinite, uncertain, and vague, and the intent and meaning of the same cannot be interpreted.
(6) That it is class legislation, especially section 14 of the act.

The trial court overruled the motion, to which ruling respondent duly excepted, and thereupon a plea of not guilty was entered by order of the court. The assignments of error are to the effect that the court erred in overruling respondent’s motion to dismiss the information, which motion was made at the time said respondent was arraigned, and renewed after the evidence had been submitted; also in adjudging the respondent guilty, contrary to the objections to said information. In this court counsel for respondent argued the questions presented under the following heads:

(1) Whether the act has any application to elections under the local-option prohibitory liquor law.
(2) That section 14 of the act is unconstitutional and void, first, because it denies to corporations, as artificial persons, the right granted to natural persons to make the legitimate expenditures authorized by section 3 of the act; and, second, it denies to corporations the right to make such lawful expenditures as may be necessary to protect their interests in contests to be determined by the people at the polls.
(3) That section 14 is also in conflict with the provision of the Constitution of this State, which (section 4, art. 2) reads:
‘Every person, may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of such right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
(4) That the whole act should be declared unconstitutional and void.

It may be said at the threshold of this opinion that the construction and validity of the act in question, in so far as it affects the conduct of the respondent, are here involved.

1. As we understand the first position of counsel for the respondent, it is that this act, which is generally spoken of as the “Corrupt Practices Act,” has no application to what may be termed local-option elections; “that, looking at the title and body of the act together, neither should be construed as applying to local-option elections.” We have with some care made an analysis of this act, copying such sections as are particularly relevant, and, as this is the first time we have been called upon to examine the act, we include such analysis here:

Section 1 of the act (1 Comp. Laws 1915, § 3828) limits the sum of money to be paid, or expenses authorized or incurred, by or on behalf of any candidate, to be paid by Mm in order to secure or aid in securing his nomination to any public office or position in this State. It also provides that no sums of money shall be paid, and no expense authorized or incurred, by or on behalf of any candidate who has received a nomination to any such office or position, in excess of a stated amount; further, that no sum of money shall be paid, and no expense authorized or incurred, by or on behalf of any candidate contrary to the provisions of the act.

Section 2 (1 Comp. Laws 1915, § 3829) provides that every political committee shall appoint a treasurer, who shall receive, keep, and disburse all sums of money which may be collected or received by such committee, or by any of its members, for election expenses; and unless.such treasurer is first appointed, it shall be unlawful for a political committee or any of its members to collect, receive, or disburse money for any such purpose.

Section 3 (1 Comp. Laws 1915, § 3830) provides that no candidate, and no treasurer of any political committee, shall pay, give, or lend, or agree to pay, give, or lend, either directly or indirectly, any money or other valuable thing for any nomination or election expenses whatever, except for the 11 purposes therein specified. It also provides, that none of the provisions of the act shall be construed as relating to the rendering of services by speakers, writers, publishers, or others, for which no compensation is asked or given.

Section 4 (1 Comp. Laws 1915, § 3831) provides that every candidate and every treasurer of a political committee shall file within the time specified a full, true, and detailed account and statement of all money received or disbursed by him for nomination or election expenses, and specifies what such statement 'shall contain.

Section 5 (1 Comp. Laws 1915, § 3832) makes it unlawful to administer the oath of office, or to issue a commission or certificate of nomination or election, to any person nominated or elected to any public office until he has filed an account as required by the act, and provides that no such person shall enter upon the duties of his office until he has filed such account, nor shall he receive any salary or fees for any period prior to the filing of the same.

Section .6 (1 Comp. Laws 1915, § 3833) provides that such accounts shall be open to public inspection.

Sections 7, 8, 9, and 10 (1 Comp. Laws 1915, .§§ 3834-3837) relate to the statement, and what may be done in case it is not filed, or is not conformable to the statute.

Section 11 (1 Comp. Laws 1915, § 3838) is as follows:

“No person who is not a candidate, or the treasurer of a political committee, shall pay, give or lend, or agree to pay, give or lend, any money whether contributed by himself or by any other person, for any election expenses whatever, except to a candidate or to a political committee.”

Section 12 (1 Comp. Laws 1915, § 3839) provides that no money paid shall be credited to any person other than the one furnishing it.

Section 13 (1 Comp. Laws 1915, § 3840) makes it unlawful for any candidate, or treasurer of a political committee, or person acting as such treasurer, to disburse money received from any anonymous source.

Section 14 (1 Comp. Laws 1915, § 3841) is the section which respondent is charged with having violated. It reads as follows:

“No officer, director, stockholder, attorney, agent or any other person, acting for any corporation or joint stock company, whether incorporated under the laws of this or any other State or any foreign country, except corporations formed for political purposes, shall pay, give or lend, or authorize to be paid, given or lent, any money belonging to such corporation to any candidate or to any political committee, for the payment of any election expenses whatever.”

Section 15 (1 Comp. Laws 1915, § 3842) makes it unlawful for any employer to threaten employees, etc.

Section 16 (1 Comp. Laws 1915, § 3843):

“No publisher of a newspaper or other periodical shall insert, either in its advertising or reading columns, any paid matter which is designed or tends to aid, injure or defeat any candidate or political party or organization, or measure before the people, unless it is stated therein that it is a paid advertisement. No person shall pay the owner, editor, publisher or agent of any newspaper or other periodical to induce him to editorially advocate or oppose any candidate for nomination or election, and no such owner, editor, publisher or agent shall accept such payment.”

Sections 17 and 18 (1 Comp. Laws 1915, §§ 3844, 3845) deal with false statements against candidates, and penalties for violation of the provisions of the act.

We quote from section 19 as follows:

“Terms used in this act shall be used as follows, unless other meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intent of the law; * * * ‘Political committee/ or ‘committee/ shall apply to every combination of two or more persons who shall aid or promote the success or defeat of a candidate, or a political party or principle or measure.”

It is clear that while most of the provisions of the act relate to the conduct and duties of candidates and political committees, yet that it was intended to regulate and control all elections and election expenses, wherever the electors are called upon to decide any measure or measures that may be before the people to be voted upon, is, we think, equally clear. The statute (2 Comp. Laws, § 5420; 2 How. Stat. [2d Ed.], § 5024 [2 Comp. Laws 1915, § 7087]) provides that the registration of the qualified electors, the manner of voting, and of holding and conducting an election under the local-option provisions, shall be the same in every respect as in case of annual township elections, or the election of members of the board of supervisors, except as otherwise provided. In our opinion the voting upon a proposed constitutional amendment, or upon the question of local prohibition, is as much an election, as is the voting for candidates for office. The supposed abuse to be corrected is as apparent in one case as the other. The fundamental principle involved in construing a measure of this kind is to carry out the legislative intent.

To ascertain that intent, we should consider, not only the remedy expressed, but the evil sought to be reached. That partisan zeal and spirit are as intense, when canvassing and voting upon the question of local prohibition of the liquor traffic, as when canvassing and voting for candidates for office, is too evident to need discussion. The legislature probably deemed such reasons sufficient. The expression, “measure before the people,” in section 16, and the definition of “political committee,” in section 19, aid us in reaching the conclusion that the act was intended to apply, and does apply, to elections other than those at which only candidates for public office are to be chosen.

It is contended, however, that the matter of canvassing, discussing, and voting on local option cannot be regarded as acting with reference to “a political party or principle or measure,” and counsel say:

“The local option forces in any county are not political parties, and to vote for or against county prohibition is not to vote for a political principle or measure.”

We think this too narrow a view of the question. When the word “political” is used as it is in this act, even if held to qualify the words “principle or measure,” it is a narrow construction to hold that it applies to one or more of the recognized political parties only. The word has a much broader meaning, and often refers to matters of public policy. The first three definitions of the word as given by Webster are:

“1. Of or pertaining to polity, or politics, or the conduct of government, referring in the widest application to judicial, executive and legislative branches; of or pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs of State; as, political theories.
“2. Having, or conforming to a polity, or settled system of administration; as a political body or government.
“3. Of or pertaining to the exercise of the rights and privileges or the influence by which the individuals of a State seek to determine, or control its public policy; having to do with the organization or action of individuals, parties or interests that seek to control the appointment or action of those who manage the affairs of State; as, his political affiliations were with the Republicans.”

The word “political” is defined by Bouvier to be pertaining to policy or the administration of government. People v. Morgan, 90 Ill. 558, 563. See, also, Black’s Law Dictionary, defining “Political.”

The supreme court of New York, in the case of In re Lance, 55 Misc. Rep. 13 (106 N. Y. Supp. 211), in considering the corrupt practices act of that State, referring to the word “judgment,” said:

“The legislature must be presumed, in the framing of the statute, to have employed the word with knowledge of its meaning, and with intent that full effect be given thereto.”

We think that language is applicable here. See, also, upon this subject, the following cases cited by counsel for the people: Winspear v. District Township, 37 Iowa, 542, holding that a school district township is a political corporation, within the meaning of their constitution referring to political or municipal corporations. See, also, McConaughy v. Secretary of State, 106 Minn. 392 (119 N. W. 408), defining what is meant by “political” question; State v. Shanks, 178 Ind. 330 (99 N. E. 481) ; State v. Goodwin, 169 Ind. 265 (82 N. E. 459). The last two cited cases relate to the construction of statutes.

In State v. Patterson, 67 Fla. 499 (65 South. 659), the corrupt practices act of Florida (Acts 1913, chap. 6469, 6470), were before the court for construction. It was said:

“The object .of the law is to prevent corruption, fraud, and deception of all kinds, and the statutes should be enforced to accomplish the legislative purpose.”

This court has frequently stated the rule to be applicable in construing a legislative enactment. Whipple v. Circuit Judge, 26 Mich. 342; Board, of Regents v. Auditor General, 167 Mich. 444 (32 N. W. 1037); Rohde v. Circuit Judge, 168 Mich. 683, 689 (131 N. W. 523, 135 N. W. 457) ; Mackin v. Axle Co., 187 Mich. 8 (153 N. W. 49). No reason is suggested why local option elections should have been omitted. We are of the opinion that the safeguards established by the act were intended for the protection of all elections.

It is next urged by counsel for respondent:

“That local option elections and activities are not within the title of the act, and if the body of the act is construed to apply to them, it is to the extent of such application unconstitutional and void.”

We understand that counsel here invoke the first sentence of section 21 of article 5 of the Constitution of Michigan, which provides, that:

“No law shall embrace more than one object, which shall be expressed in its title.”

The specific objection seems to be that section 14 of the act is not within the scope of the title or germane thereto. The title is broad in its scope. It was plainly designed to safeguard and protect the ballot by forbidding certain acts and imposing certain regulations and requirements. Among other things, it was:

“To define and prevent corrupt and illegal practices in nominations and elections; to secure and protect the purity of the ballot.”

As counsel for the people have said:

“Under such title it was competent to include in the act any provision calculated to aid in accomplishing such object and thus carry out the purpose of the legislature. Presumably, it was the view of the lawmaking body that the practices indulged in by certain corporations of making contributions for campaign purposes had become objectionable, and subversive of good government, and consequently of .the public welfare. Therefore, and as incidental to the protection sought to be attained for the ‘purity of the ballot,’ such practice was prohibited.”

The courts in a long series of cases have enunciated the principle that the presumption is in favor of the constitutionality of a statute. This principle has been expressed in many different forms. It has been declared that in no doubtful case should the courts pronounce legislation to be contrary to the Constitution. It has been said that every intendment is in favor of its validity, and that it must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears. See collection' of authorities in 6 R. C. L. p. 97; Rouse, Hazard & Co. v. Circuit Judge, 104 Mich. 234, 239 (62 N. W. 359, 27 L. R. A. 577, 53 Am. St. Rep. 457) ; Sears v. Cottrell, 5 Mich. 251, 259. The clause of the Constitution here invoked has been repeatedly before this court. In Kurtz v. People, 33 Mich. 279, Justice Campbell, referring to this provision, said:

“It is a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills and matters foreign to the ostensible purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title.”

See, also, the language of Judge Cooley in the seventh edition of Constitutional Limitations, page 205; also, Conn. Mutual Life Ins. Co. v. State Treasurer, 31 Mich. 6; Mackin v. Axle Co., supra.

Our attention has been called to the case of State v. Paris, 179 Ind. 446 (101 N. E. 497). The corrupt practices act of Indiana (Acts 1911, chap. 121) is entitled:

“An act concerning corrupt practices at elections, caucuses and primaries, and the collection and disbursement of campaign funds.”

It was held in the case .last cited that such a title was sufficient to cover the criminal features of the act, within the provisions of the constitution of that State, which requires the subject of an act to be expressed in its title. We are of the opinion that this objection is untenable.

2. This brings us to the objections raised under the Fourteenth Amendment to the Federal Constitution. Respondent’s counsel urge that corporations are “persons” within the meaning of the words of this amendment that:

“No State shall deprive any person of life, liberty or property without due process of law; nor shall' any State deny to any person within its jurisdiction the equal protection of the laws.” '

They refer to Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 578 (17 Sup. Ct. 198), and Smyth v. Ames, 169 U. S. 466, 522 (18 Sup. Ct. 418), and claim that these cases are decisive of the instant case. They concede that:

“Classification for the purposes of legislation under the police power is permissible, provided all persons or things within the class are treated alike.”

We are dealing here with a statute relating to elections, and the exercise of the police power of the State. In Cooley on Constitutional Limitations (7th Ed.), ■p. 907, it is said:

“All such reasonable regulations of the constitutional right which seem to the legislature important to the preservation of order in elections, to guard against fraud, undue influence and oppression, and to preserve the purity of the ballot box, are not only within the constitutional power of the legislature, but are commendable, and at least some of them absolutely essential.”

No class of questions has ever arisen more difficult of solution than those concerning Federal limitations of the police powers of the State. Mr. Justice Clifford, in Tennessee v. Davis, 100 U. S. 257, 300, observed that this power in its widest sense comprehends the whole system of internal regulations by which the State seeks, not only to preserve the.public order and to prevent offenses against her authority, but also to establish for the intercourse of one citizen with another those rules of justice, morality, and good conduct which are calculated to prevent a conflict of interests and to insure to every one the uninterrupted enjoyment of his own, as. far as it is reasonably con-i sistent with a like enjoyment of equal rights by others.’ And he further said:

“Acts of Congress cannot properly supersede the police powers of the State, nor can the police powers of the State override the national authority, as the power of the State in that regard extends only to a just regulation of rights with a view to the due protection and enjoyment of all; and if the police law of the State does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State and its exercise for the regulation of the actions of the citizens can never constitute an invasion of national jurisdiction or afford'a basis for an appeal to the protection of the national authorities.”

Justice Brown, in Lawton v. Steele, 152 U. S. 133, 136 (14 Sup. Ct. 499, 500), said of the police power:

“It is universally conceded to include everything essential to the public safety, health, and morals.”

After citing many instances of proper restraint and interference, he said:

“Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. * * * To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”

The administration of justice, civil and criminal, within the State, is wholly under the control of the State, where there is no conflict with the Federal Constitution. The phrase “law of the land,” in a State, in this regard, means the law of the State, and due process of law in the State is regulated by the law of the State. The power of the State in dealing with a crime is not limited by the Fourteenth Amendment, provided that particular persons or classes are not deprived of equal and impartial justice. Regular administration in the State courts constitutes dué process, when operating on all alike. Leeper v. Texas, 139 U. S. 462 (11 Sup. Ct. 577). The extent to which the State may go under the police power, in declaring acts to be criminal, is very far-reaching, and is well illustrated in the following cases: Commonwealth v. Franklin, 4 Dall. (U. S.) 255; Moore v. State of Illinois, 14 How. (U. S.) 13; Cummings v. Missouri, 4 Wall. (U. S.) 277; Hawker v. New York, 170 U. S. 189 (18 Sup. Ct. 573).

The equality clause of the Fourteenth Amendment has received a broad interpretation by the courts. A classification of particular kinds of corporations, property, or trades is sustained provided it is reasonable in the view of the courts, and not merely arbitrary, and a wide latitude is allowed td the States- in respect of classification, without criticism, by the Federal Supreme Court. Bank of Redemption v. Boston, 125 U. S. 60 (8 Sup. Ct. 772); Palmer v. McMahon, 133 U. S. 660 (10 Sup. Ct. 324); Crowley v. Christensen, 137 U. S. 86, 91 (11 Sup. Ct. 13) ; Clark v. Kansas City, 176 U. S. 114, 119 (20 Sup. Ct. 284). The general principle is that equal protection is not denied where the law operates alike upon all persons, corporations or property similarly situated. Walston v. Nevin, 128 U. S. 578 (9 Sup. Ct. 192); Barbier v. Connolly, 113 U. S. 27, 32 (5 Sup. Ct. 357); Minneapolis, etc., R. Co. v. Herrick, 127 U. S. 210 (8 Sup. Ct. 1176); People v. Phippin, 70 Mich. 6 (37 N. W. 888) ; Kuhn v. Common Council, 70 Mich. 534 (38 N. W. 470).

A State may control a corporation which it has created, if constitutional provisions do not stand in the way, and in like manner it may control natural persons. Boston Beer Co. v. Massachusetts, 97 U. S. 25. Corporations, like the Lansing Brewing Company, are generally created under general' laws passed by the legislature, and providing for articles of association. The Federal Supreme Court observes that such articles .are in a sense ex parte, that their formation and execution frequently do not take place under the supervision of any official authority. Oregon Railway, etc., Co. v. Railway Co., 130 U. S. 1 (9 Sup. Ct. 409). The powers of such corporations have been considered and strictly construed by the same court, and it has been held that the powers are simply such as the statute confers, and that the enumeration of them implies exclusion of all others. Thomas v. Railroad Co., 101 U. S. 71; Pennsylvania R. Co. v. Railroad Co., 118 U. S. 290, 309 (6 Sup. Ct. 1094).

The charter of corporations so formed consists of the statute under which the corporation exists and the articles of association by which it is formed. Van Etten v. Eaton, 19 Mich. 187. The police power of the State is exercised over such corporations with great freedom for the general good. The development of the law touching the police power over corporations, and concerning the doctrine announced in Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, came under review in the decisions holding that there is implied in the grant to a carrying corporation of the right to construct and operate a railroad, a grant of right to collect such tolls as will enable the company to successfully operate and return some profits to the investors. That there is such an implication has been fully determined. Reagan v. Loan & Trust Co., 154 U. S. 362, 393 (14 Sup. Ct. 1047); Smyth v. Ames, supra.

But it does not follow that because a corporation is by statute prohibited from contributing' to a campaign fund that it is deprived of any property right. It has been held that a provision of a similar act, prohibiting persons at the polls from persuading any voter to vote or refrain from voting for any candidate or any political party, or on any measure submitted to the electors, should be liberally construed, with a view to its enforcement in the public interest, as tending to aid the purity of elections, and that the principle involved in the law was a salutary one, and that such statutes are closely connected with those prohibiting bribery. Nelson v. Gass, 27 N. D. 357 (146 N. W. 537, 541, Am. & Eng. Ann. Cas. 1915C, 796).

In Cooley on Constitutional Limitations (7th Ed.), p. 829, it is said:

“The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.”

While our republican government guarantees the right to preserve one’s own happiness, yet that government is charged with the duty of protecting others than appellant in the pursuit of their happiness, and hence the inalienable right to pursue one’s own happiness must necessarily be subject to the same right in all others. Hence when that right is asserted in such a manner as to conflict with the equal right to the same thing in others, it is not an inalienable right, nor a right at all, but is a wrong.

The instant case, in our opinion, does not present an instance of deprivation of property, nor of fanciful or unjust classification for purposes of regulation. The expenditure of the money of the Lansing Brewing Company for election purposes cannot be deemed to be a property right within the meaning of the Fourteenth Amendment. Such corporations have no right to participate in the elective franchise. We are not dealing with a measure that deprives a corporation of any of its property, or that impairs the value of that property. Neither are we dealing with the deprivation of any right or privilege granted by the laws under which such corporation was created and exists, as was the fact in the cases cited, and relied upon by counsel for respondent. In the case of Covington, etc:, Turnpike Co. v. Sandford, supra, the general assembly of Kentucky by an act made it unlawful to demand, charge, collect, or receive tolls in excess of certain rates specified, and it was held that the rates were unjust and unreasonable, and such as to work a practical destruction of rights of property of the company, and that such legislation was not due process of law, and the doctrine contended for by respondent’s counsel was announced. Smyth v. Ames, supra, was a suit by stockholders of the Union Pacific Railway Company and others, and dealt with the constitutionality of an act of the legislature of Nebraska to regulate and fix certain railroad freight rates. Both cases dealt directly with the property rights of the respective companies within the sphere and scope of their organization.

Not so in the instant case. The Lansing Brewing Company was created under our statute, for the purpose of manufacturing beer. The privilege was not conferred upon it of using its funds for the purpose of influencing public sentiment in connection with any election. It is probable that the legislature had in mind the fact that it is matter of history that corporations have in many instances used their funds (acting through and by their officers) to influence elections, and that body believed that such practice was an abuse and menace to good government, which it sought to remedy by this legislation. The record, in our opinion, is a justification for the legislation complained of. We agree with counsel for the people wherein they say:

“If the respondent in this case, or the stockholders and officers of the Lansing Brewing Company desired, as individuals, to contribute to the campaign fund, it was their privilege so to do, subject to the regulations imposed by the statute. This artificial person, however, that was created for the purpose of manufacturing beer, has no such right; and it lies within the power of the legislature of this State to say that its funds should not be used for such a purpose.”

It was for the legislature to say, in the exercise of the police power, whether such use of corporate funds opened the door to corruption and tended to destroy safeguards sought to be placed around elections to “protect the purity of the ballot.” Does the statute deprive the respondent of any property right without due process of law? We answer this question in the negative.

3. It is further claimed that section 14 of the act is in conflict with section 4, art. 2, of the State Constitution. The individual activities of the officers of corporations are not prohibited. They may freely speak, write, and publish their views as provided for in the last clause of section 3. Section 11 provides how they may make their contributions, thus distinguishing Louthan v. Commonwealth, 79 Va. 196 (52 Am. Rep. 626). The corporation is not embraced within the provisions of section 4, art. 2, of the State Constitution. That section, in our opinion, relates to natural and not to artificial persons, as does also the Fourteenth Amendment of the Federal Constitution in protecting the privileges and immunities of citizens from being abridged. Western Turf Ass’n v. Greenberg, 204 U. S. 359 (27 Sup. Ct. 384), and cases cited.

4. Finally, respondent's counsel contend that the whole act should be declared unconstitutional, that the act unduly and unreasonably restrains the political activities of the people, and “that it is one of those fool enactments that occasionally get through the legislature.” Of the wisdom or folly of this legislation we are not called upon to speak. Measures of this kind have been enacted by the legislatures of many other States. Believing that such an enactment is a reasonable and valid exercise of the police power, that property rights are not interfered with, and finding no error in the record, the conviction of the respondent is affirmed, and the court below advised to proceed to judgment.

Moore, Steere, and Person, JJ., concurred with Stone, C. J.

Brooke, J.

(dissenting). In approaching the discussion in this case, my Brother Stone treats the statute as remedial in character, whereas it is in fact highly penal. Section 18 of the act provides that upon conviction for a violation of any of its provisions the person so convicted may be punished by a fine of not more than $1,000, or by imprisonment for not more than two years, either or both, at the discretion of the court. We have held in a great number of - cases that penal statutes must be strictly construed; in other words, that the liberty or property of the citizen shall not be taken from him, except for the violation of a statute so plain in its provisions that “he who runs may read” — so plain that no citizen charged with its violation may with reason say, “True, I committed the act with the commission of which I am charged, but the legislature by the enactment in question did not intend to include me within its provisions.” Among the many cases where penal statutes have been strictly construed by this court are the following: Van Buren v. Wylie, 56 Mich. 501 (23 N. W. 195); People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578) ; Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124) ; Van Camp v. Railroad Co., 137 Mich. 467, 470 (100 N. W. 771) ; Robinson v. Harmon, 157 Mich. 272 (117 N. W. 664); Deloria v. Atkins, 158 Mich. 232 (122 N. W. 559); People v. Rice, 161 Mich. 657 (126 N. W. 981); Young v. Moore, 162 Mich. 60 (127 N. W. 29) ; People v. Blair, 183 Mich. 130 (149 N. W. 1039). See, also, 26 Am. & Eng. Enc. Law (2d Ed.), p. 658.

I have read the title and the entire act under consideration with great care, and I am convinced that it was not the legislative intent to include local-option elections within its provisions. If this is the impression created in my mind by a perusal of the title and the act, it seems entirely reasonable to believe that respondent may have honestly acted under a similar impression. No citizen should be. subjected to fine and imprisonment for the violation of a statute, the1 construction of which is open to so serious doubt as to its application as the one under consideration.

The judgment should be reversed, and the respondent discharged.

Kuhn, Ostrander, and Bird, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    BAXTER v. WOODWARD.
    1. Appeal and Error — Motions—Quashing Writ — Capias—Mandamus — Proper Remedy.
    Any error of the lower court refusing to quash a writ of capias in trover should be raised by mandamus or habeas corpus before pleading; after final judgment the motion is not subject to review.
    2. Same — Impeachment—Trial.
    The objection that no foundation was laid for impeaching questions at the trial could not be considered on error where the only objection made in the lower court was that the testimony was immaterial.
    3. Trover and Conversion — Wrongful Use.
    Defendant, who used an automobile that plaintiff left in his possession to sell, and, against the objection of plaintiff, drove the car about, finally meeting with an accident or collision and injuring the automobile, was liable to the owner in trover for the damage so caused, whether or not the collision was accidental.
    4. Same — Bailments.
    The general rule is that if a bailee, having authority to use a chattel in a particular way, uses it in a different manner, or to a greater extent than he was authorized to do, such unauthorized use is a conversion of the chattel, for which the bailor may maintain trover.
    5. Same — Demand—Actions.
    And, the evidence tending to show that there was a conversion, no demand was required.
    6. Same — Return»
    In case the car had been returned or tendered back to plaintiff the fact might have been considered in mitigation of damages, but not as a bar to the right of action.
    7. Rule of Damages.
    The court correctly instructed the jury. that the measure of damages should be the value of the car at the time of conversion, with interest.

      Error to Wayne; Cross, J., presiding.
    Submitted May 6, 1916.
    (Docket No. 112.)
    Decided June 1, 1916.
    Trover by William C. Baxter against Frank M. Woodward for the conversion of an automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cornelius & Ring, for appellant.

      Charles Bowles, for appellee.
   Stone, C. J.

This action was brought to recover damages for the alleged unlawful conversion of an automobile belonging to the plaintiff, which he, in May, 1913, placed in the possession of the defendant to be sold on commission. Both parties resided in the city of Detroit. Upon the trial it was the claim of the plaintiff that the car was of the value of $660, and that defendant was authorized to sell it for that sum and retain a commission of $60. The plaintiff further claimed that when the car was placed in the hands of the defendant it was the agreement that the car should be driven only so that prospective buyers could examine and demonstrate it. Later the plaintiff claimed that he learned and became aware of the fact that the car was being driven by defendant for his own purposes or pleasure, and for other than demonstration purposes, and he finally gave instructions to defendant not to drive the car under any circumstances except when the plaintiff was present and gave permission to take the car out, and that defendant agreed to this arrangement and promised to paint the tires with white paint and put the car in the front window for exhibition to prospective buyers. Plaintiff testified:

“In this way I couid see whether it had been driven, with the white paint on the tire.”

That defendant did not do as he agreed in that regard, but, on the contrary, on or about the 10th day of August, 1913, defendant drove the car to Ann Arbor without the knowledge or consent of the plaintiff, and upon his trip back to Detroit on the night of that day the defendant got the plaintiff’s car in a collision with another car and injured the plaintiff’s car, rendering it almost worthless. The plaintiff described said injuries as follows:

“The lights on one side were broken. The speedometer was gone altogether. The frame was bent in several places, and broken entirely in one place. The clutch that holds the springs onto the axle were sheared right off. The axles were bent back. One of the doors was torn, and — well, there were some minor things. The steering gear was wrong. There was a dent in the radiator. The steering gear was all bent up so you could not work it at all.”

That defendant admitted that he had received $200 for the injuries to the car from the man who ran into it. Plaintiff claimed that defendant said he would repair the car, but never did so, and the plaintiff brought this action in trover, and caused the arrest of the defendant upon a capias ad respondendum.

At the trial there was testimony tending to support the claims of the plaintiff. There was a sharp conflict in the evidence, the defendant claiming and testifying that he had permission from the plaintiff to use the car for demonstration purposes, and that he had express permission from the plaintiff to drive the car to Ann Arbor and exhibit it to a prospective buyer, and that the injury to the car was without fault on his part, and that plaintiff had agreed to a settlement, and that he had expended about one-half the money he received as damages to the car, towards its repair. The case presented a sharp issue of fact, the parties not agreeing upon a material question involved, unless it be that the car was never returned to, or tendered to, the plaintiff. At the close of the plaintiff’s testimony, defendant moved for a directed verdict upon the ground that the property was injured without fault of defendant, and that an action of trover would not lie for injury to, or destruction of property unless defendant was guilty of tortious conduct, or the accident was the result of wrongful conduct of defendant, and that there was no proof of a demand or refusal to return the property. The motion was denied and exception taken. Again, at the close of all the testimony, the said motion was renewed, with the further reason that, if there was any conversion of the property, it was waived by a subsequent agreement of the parties whereby the plaintiff agreed to accept the car provided it was repaired; and, if there was a failure on the' part of the defendant to repair the car, it was simply a breach of contract or agreement that constituted a complete waiver of any tort. This motion was also denied and exception taken. The case was submitted to the jury, and the trial resulted in a verdict and judgment for the plaintiff for $720 and costs.

The charge of the court, after stating the respective claims of the parties, was in substance, as follows:

“If you find from the evidence in this case that the defendant was driving the plaintiff’s automobile on the 10th day of August, 1913, contrary to and against the instructions of plaintiff, such act or use of the car by defendant would constitute an act of conversion, and defendant would be liable in trover to the plaintiff for the market value of his automobile at that time, and in such case your verdict should be for the plaintiff.^ The extent of the damage to the plaintiff’s automobile, or the question as to who was to blame for the collision in which it was damaged, has nothing to do with defendant’s liability in this case. The sole question for you to answer in determining the defendant’s liability is whether or not he was driving the plaintiff’s automobile on the 10th day of August, 1913, in violation of and contrary to the instructions of the plaintiff; and, if you find such to be the case, your verdict should be for the plaintiff for the market value of his automobile at that time with interest thereon to date at the rate of 5 per cent. * * * The plaintiff in this case cannot recover unless the plaintiff establishes by a preponderance of the evidence that a wrongful use was made of the car at the time of the injury. If you find from the evidence that defendant at the time the car was injured was driving the car while returning from a demonstration thereof, and that such demonstration was with the consent of the plaintiff, then your verdict must be no cause of action.”

The defendant has brought the case here upon writ of error, there being 20 assignments of error.

It appears that before pleading the defendant made a formal motion, in writing, to quash the writ of capias for insufficiency of the affidavit for the writ.' The motion was denied and exception taken on June 6, 1914. On September 30, 1914, the defendant pleaded the general issue, with notice of special matter.

The first assignment of error is that the court erred in overruling defendant’s motion to quash the writ. We must hold that this question is not before us upon writ of error, after judgment. The error, if any, in the ruling of the court in denying the motion to quash, should have been raised by habeas corpus or mandamus before pleading. It is not subject to review on writ of error after final judgment. Miller v. Rosier, 31 Mich. 475; Taylor v. Adams, 58 Mich. 187 (24 N. W. 864) ; Wiest v. Luyendyk, 73 Mich. 661 (41 N. W. 839); Graham v. Circuit Judge, 108 Mich. 425 (66 N. W. 348); H. J. Cheney Co. v. Allgeo, 165 Mich. 384 (130 N. W. 593); Reed v. McCready, 170 Mich. 532 (136 N. W. 488); 1 Stevens’ Mich. Practice, § 216.

The next 14 assignments of error relate to the alleged rulings of the trial court upon the introduction of, and refusal to strike out, testimony. Counsel for appellant says of them:

“While perhaps no one of these would be sufficient to reverse the case standing alone, yet the cumulative effect of all of them had a prejudicial effect upon the jury and would logically have a tendency to increase the amount of the verdict.”

There was no motion for a new trial, and the question of an excessive verdict is not before us.

We have examined each of said assignments of error, and are of opinion that no reversible error appears in any of said rulings. Some of them present questions which we cannot consider. For instance, assignments 11, 12, and 13 relate to the admission of certain testimony offered as tending to impeach a witness. The argument is to the effect that no foundation was laid for such impeaching questions. A reference to the record shows that no such objection was made at the trial. The questions were objected to as immaterial. The attention of the trial court was not called to the question discussed by counsel. We cannot consider an objection to evidence, not brought to the attention of the trial court, or based upon exception. Baker v. City of Detroit, 166 Mich. 597, 600 (132 N. W. 462).

The remaining assignments of error are discussed by appellant’s counsel under three he^ds, to the effect that a verdict should have been directed for the defendant, for the following reasons:

(1) That plaintiff showed no conversion of the property.

(2) That there was no demand.

(3) That the parties agreed between themselves to waive the tort, and that defendant should repair the car.

1. If the jury believed the testimony of the plaintiff, and they seem to have done so, they were justified in finding that' there was an unauthorized use of the car by the defendant that would amount to conversion.

The general rule is that ií a bailee, having authority to use a chattel in a particular way, uses it in a different way, or to a greater extent than authorized, such unauthorized use is a conversion of the chattel, for which the bailor may maintain trover for its value. It is a conversion for a bailee for hire, to apply the thing hired to a purpose other than that agreed upon in the contract of hire. This principle has been applied where a horse was killed or injured while being driven or ridden by the hirer to a place not mentioned in the contract of hire. Fisher v. Kyle, 27 Mich. 454; Daggett v. Davis, 53 Mich. 35, 38 (18 N. W. 548, 51 Am. Rep. 91); Wheelock v. Wheelwright, 5 Mass. 104; Hall v. Corcoran, 107 Mass. 251 (9 Am. Rep. 30); Collins v. Bennett, 46 N. Y. 490; Cartlidge v. Sloan, 124 Ala. 596 (26 South. 918) ; Palmer v. Mayo, 80 Conn. 353 (68 Atl. 369, 15 L. R. A. [N. S.] 428, 125 Am. St. Rep. 123). See note to this case in 12 Am. & Eng. Ann. Cas. 692. McCurdy v. Furniture & Carpet Co., 94 Minn. 326 (102 N. W. 873). See lengthy note to this case in 3 Am. & Eng. Ann. Cas. 470.

2. Was a demand necessary? There must be a demand or an act of conversion. If there was a conversion of the property by defendant, no demand was necessary. Hennes v. Hebard & Sons, 169 Mich. 670, 676 (135 N. W. 1073); Williams v. Rogers, 110 Mich. 418 (68 N. W. 240).

3. Whether there was a settlement, or the waiver of the tort, was a question of fact. In our opinion there was no competent evidence of a settlement. There was, at most, only talk of a compromise; but no settlement was reached, as appears from the record. Had the car been returned to plaintiff or tendered to him, that fact might have been shown in mitigation of damages, but not in bar of the action. There was no evidence of such return or tender. McGraw v. Sampliner, 107 Mich. 141, 143 (64 N. W. 1060).

The rule of damages stated in the charge was the correct rule. Hautala v. Dover, 176 Mich. 366 (142 N. W. 579).

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

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Moore, J.

text:
    MILLER v. DU VAL.
    1. Fraud — False Representations — Capias—Motion to Quash.
    'Defendant was arrested on capias ad respondendum for fraudulent representations made on the sale of his half interest in the business of securing claims and suits on commission basis, and moved to dissolve the writ, but did not attempt to review the decision of the trial court denying the motion. Held, too late to raise the question on error of the impropriety of denying the application.
    2. Same — Facts—Sale.
    A false representation that the seller of an interest - in a business had made a sum named out of it the year before, and had received an offer for it of a price named, was fraudulent and actionable, although the buyer might have verified the statements and discovered their falsity before he acted on them.
    Error to Wayne; Mandell, J.
    Submitted January 12, 1916.
    (Docket No. 127.)
    Decided June 1, 1916.

      Case by Hiram J. Miller against Frank A. Du Val for fraud and deceit. The suit was commenced by writ of capias ad respondendum. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Walter M. Trevor, for appellant.

      Berry & McCredie, for appellee.
   Moore, J.

This case was commenced October 2, 1912, by writ of capias ad respondendum. The affidavits of the plaintiff and three others were filed. A motion was made to quash the writ of capias for various reasons. This motion was denied. The record does not show that any effort was made to review this action of the trial judge. A declaration was filed claiming damages in the sum of .$1,000. October 28, 1912, the plea of the general issue was filed. The case was called before a jury in June, 1914. After the jury was sworn, a motion was made to quash the writ of capias, which motion was overruled. The defendant preferred seven written requests to charge. The record does not disclose that any of them were given. The trial judge gave a general charge to the jury which returned a verdict for $1,100 in favor of the plaintiff. A judgment was entered upon this verdict, for $1,000. The case is brought here by writ of error.

So many of the assignments of error relate to the charge, or the failure of the court to charge, that we quote from it as follows:

“Gentlemen of the Jury: The verdict in this case will be one of two, depending upon how you look upon the facts. You will find for the plaintiff in the sum of $1,000, with interest at the rate of 5 per cent, from the 18th day of April, 1912, until today, that is two years’ and two months’ interest at 5 per cent, bn $1,-000, or it will be. no cause of action. The theory of the plaintiff is, and he proceeds upon this theory, that he was swindled or overreached by the defendant. His claim is that the defendant some time in April, 1912, told him (the plaintiff) that the business that the defendant, Frank Du Val, was engaged in was a prosperous business; that the year preceding that year he had made out of it clear $12,000; and further that this business he could have sold to David Stott, a half interest in the business for $2,500, but that as David Stott was not going to take an active part in.the management of the business, that he would prefer to sell to the plaintiff, who would take an active interest in it, and preferred to sell to him for $1,000. Now there, gentlemen of the jury, are two statements of fact, that the business had yielded $12,000 the year previous to 1912, and the further statement of fact that David Stott had made an offer of $2,500 for a half interest in the business. The plaintiff contends that he relied upon these statements as being true, and that he trusted the defendant and believed him when he made those statements, and in reliance upon'the truth of those statements he gave him $1,000 in cash. There is no -denial that the $1,000 was paid, but the defendant states that he made no such statement as the plaintiff •claims that he did make, and therefore he says that -the plaintiff’s case must fall because he didn’t make the statement. So the first question that you will have to determine is whether or not the defendant actually made those statements, and then, if you find that he did not make those statements, the verdict will be for the defendant. If you find that he did make those statements, you will have to further find, before, the plaintiff can recover, that the statements were false, and, thirdly, that the statements were relied upon by the plaintiff when he parted with his money. There is the issue. It is entirely an issue of fact. The court cannot aid you at all because the determination of disputed questions of fact rests with the jury, and the responsibility of determining them must be assumed and carried out by the jury. Now this business, I was about to say unfortunate business, that they were engaged in, was, so far as I am advised, a regular business. It is a peculiar situation that is presented here. Here are two parties engaged in a business which foments lawsuits and brings cases into court and presents cases to the jury, and here these parties now are taking a dose of their own medicine. They are here today to have a jury determine in a matter of litigation of this kind whether or not the plaintiff was induced to enter into this business by fraudulent statements of the defendant. The case is here, and must be considered by you fairly and conscientiously, and if you find that these fraudulent statements were made, and if they worked their fraud by reason of being false, and if the plaintiff, was induced to part with his money by reason of reliance upon them, then the plaintiff is, entitled to get back his money. If you find the statements were not made, or if you find that they were made but were true, or further if you find that they were made but were not true, but that the defendant did not rely upon them, but relied upon something else when he paid over $1,000 to the defendant, then the defendant is entitled to a verdict of no cause of action. Your verdict must hinge and be determined entirely upon what you find the facts in the case to be, and you must find the facts from the evidence as it comes to you from the witness stand here.”

It is said that the court erred in denying the motion to quash the writ of capias. We have recited the condition of the pleadings. We think it too late, in view of what was done, to raise the question now. See Baxter v. Woodward, ante, 379 (158 N. W. 137).

A number of assignments or error relate to the rulings upon the admission of testimony. We have examined all of them. Without discussing them, we content ourselves with saying they are without merit.

It is said a verdict should have been directed because plaintiff had worked for defendant and might have verified the truth of the statements made to him, both as to the value of the business and as to the offer of Mr. Stott, and that he knew the business was speculative. The statements alleged to have been made were not simply matters of opinion, but were statements of fact, and the plaintiff, if he believed them, was justified in acting upon them. Mr. Stott denied he had made any offer for the business. Defendant admitted that he did not do anywhere near $12,000 worth of business the year before, but denied he had made the statements plaintiff attributed to him. This presented an issue of fact for the jury.

In relation to the errors assigned because of the refusal to give the requests to charge, it may be said that nearly all of them contained statements it would have been improper to give.

As to the other request, it was fully covered by the charge.

Error is assigned upon the part of the charge allowing interest. Inasmuch as the judgment was taken but for $1,000, the error, if there was one, was harmless.

Judgment is affirmed.

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


author: Person, J.

text:
    WHITE PINE LUMBER CO. v. MANUFACTURERS’ LUMBER CO.
    1. Contracts — Rescission—Meeting oe Minds — Recoupment.
    Where plaintiff furnished part of certain lumber culls contracted to defendant and failed to furnish the balance because he claimed defendant had rescinded the contract, in a suit for the purchase price of the culls furnished wherein defendant sought to recoup damages for breach of contract, claiming that what he said did not amount to a rescission of the contract, it was necessary to show a meeting of minds to establish the rescission; the issue was a proper one for the jury, as to whether the words employed in the conversation amounted to an absolute rescission as contended by plaintiff or included a condition as claimed by the opposite party.
    2. Evidence — Admissions—Contracts.
    Evidence of statements made and written after the alleged rescission, whereby the buyer attempted to explain or qualify his conversation relating to' rescission and to induce the other party to perform, was competent to show the real intent and understanding of the person or agent who made the attempt to rescind, and, held, to present an issue for the jury on the issue of the rescission.
    3. Same — New Trial — Verdict.

      Held, also, that the verdict of the jury finding a rescission was supported by competent evidence and should not be set aside on error.
    4. Same — Admission—Cross-Examination.
    After interrupting a witness in the act of answering and preventing a complete reply to the question, appellant was not warranted in claiming that the incomplete sentence was an admission in favor of the cross-examining party.
    5. Appeal and Error — Record—Transcript oe Testimony.
    A certified transcript of the evidence taken in shorthand , by the court stenographer, who died after trial, was properly used to prepare the record on appeal, where another stenographer, with the assistance of appellee’s attorney, was able to make a record satisfactory to the trial court, who certified to the correctness of the transcript, and a new trial was unnecessary.
    6. Same — Exceptions.
    The correctness of a bill of exceptions is to be determined by the trial judge and his certificate is ordinarily conclusive on the appellate court.
    Error to Wayne; McDonald, J., presiding.
    Submitted January 18, 1916.
    (Docket No. 26.)
    Decided June 1, 1916.
    Assumpsit by the White Pine Lumber Company, a corporation, against the Manufacturers’ Lumber Company, a corporation, and another, for the price of certain lumber. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Frank W. Atkinson (Moloney & Atkinson, of counsel), for appellants.

      Oxtoby Wilkinson, for appellee.

      In March, 1911, plaintiff made two contracts with the Manufacturers’ Lumber Company, one of the defendants, for the sale and delivery of certain lumber to that company. One of these contracts was for the sale of the culls that had been cut at plaintiff’s mill on Blind river, Ontario, during the year 1910, and the other was for the sale of such culls as had been cut and those' that were to be cut at the mill during the year 1911. Afterwards the Manufacturers’ Lumber Company assigned its interest in these contracts to the Yeomans-Diver Company, the other defendant. There does not seem to have been any dispute over the 1910 culls, but when the barge Ida Keith reached Detroit, some time in August, 1911, with the first consignment of the 1911 culls, a controversy over these did arise between the parties, with the result that the rest of the 1911 culls were sold by the plaintiff to other parties. The defendants claim that the controversy amounted simply to a complaint about the width of the 1911 culls; while plaintiff insists that it terminated in a rescission of the contract as to all of that year’s culls yet remaining at Blind river. This action was eventually brought by plaintiff to recover a balance of $4,683.74 remaining unpaid for such culls as were actually delivered, and it is admitted by defendants that such balance is due to plaintiff for those culls. But the defendants, in turn, denying any rescission of the' contract, seek to recoup damages to the amount of $3,196.96 for the failure of plaintiff to deliver the balance of the culls cut in 1911. The entire contest at the trial was in relation to defendants’ attempted recoupment, and this was made to depend upon whether the contract as to the undelivered culls had or had not been' rescinded. The jury found that there had been a rescission, and returned a verdict for the full amount claimed by the plaintiff. The defendants bring the case to this court."
   Person, J.

(after stating the facts). The controversy between the parties relates principally to the alleged rescission of the contract as to the undelivered culls. Such rescission, if it took place, grew out of a conversation over the telephone between Fred H. Yeomans, then vice president and general manager of the Yeomans-Diver Company, and Daniel E. Wells, vice president of the plaintiff company, and in charge of its Detroit business. The authority of these gentlemen to bind their respective companies to such rescission is not questioned, nor is the fact denied that they had the conversation referred to about the balance of the culls. It is also conceded that, following the conversation, Mr. Wells acted upon the assumption that the contract had been canceled, and sold the remaining culls to other parties. The defendants, however, contend that Mr. Wells had no right to give such construction to anything that Mr. Yeomans said, and that there was no evidence in the case from which the jury were authorized to find that Mr. Yeomans consented to, or intended, any rescission.

Testifying in the case, Mr. Yeomans says that his talk about canceling the contract as to the balance of the culls was merely conditional; that he was complaining to Mr. Wells about the width of this first shipment, and that—

“in my conversation with Mr. Wells he stated that if we did not like the lumber we could cancel our contract. I told Mr. Wells that lumber was not running wide width and we could not use that narrow stuff. He wanted to know if I wanted to cancel the contract. I told him that, if it all rim that narrow width, I certainly did.”

It seems to be conceded that these culls about which Mr. Yeomans was complaining were not a fair sample of the year’s cut, and that those remaining on complainant’s docks at Blind river averaged a greater width than those first brought down. Mr. Yeomans further says:

“I mean to state it this way: We would cancel if we had to take all five-inch; cancel, we never said we would cancel the contract, the lumber we were supposed to get; on the four-inch strips, yes, but not on that contract.”

Had the jury accepted this version of the conversation, they could not have found that it amounted to either a request or a consent that the contract be rescinded as to the balance of the culls.' It was conditioned upon the fact that those were as narrow as the culls- that had been brought down, and this was not true. The rescission of a contract as much requires the'meeting of minds as does the making of a contract. In a note to Bryant v. Isburgh, 74 Am. Dec. 657, it is said:

“All executory contracts may be rescinded by the parties to them if they continue interested until the agreement to rescind is made.” Johnson v. Reed, 9 Mass. 78 (6 Am. Dec. 36) ; Blood v. Enos, 12 Vt. 625 (36 Am. Dec. 363).
“It has been said that courts require as clear evidence of waiver of a contract by mutual assent as of the contract itself. Carolan v. Bratazon, 3 Jo. & Lat. 200; Dial v. Crane, 10 Tex. 444; Quincy v. Tilton, 5 Greenl. (Me.) 277. On the other hand, it is said that an agreement to rescind may be shown by such circumstances, or by such a course of conduct, as clearly evidences the intention of the parties that it shall so operate. Wheeden v. Fiske, 50 N. H. 125; Green v. Wells, 2 Cal. 584; Robinson v. Page, 3 Russ. 114; Murray v. Harway, 56 N. Y. 337.”

Mr. Wells, however, does not agree with Mr. Yeomans. as to what was said between them. He testifies:

“I think that Yeomans saw the narrow lumber coming first, and that he was discouraged on the width, and was afraid that the rest was going to be all the same size, so he called us up and said he wanted to cancel; the lumber was too narrow for his use. * * * As soon as Mr. Yeomans told me that he could not use any more of our lumber, I said: ‘All right, Fred; I will try to place it somewhere else. People have been wanting that lumber for some time, and I will see if they can use it and let you know.’ * * * He [Yeomans] said he could not use the lumber.”

If this rendering of the conversation is correct, there was a distinct request by Mr. Yeomans that his company be relieved of its obligation to take the balance of the culls; an offer, in other words, to rescind the contract as to such culls. And this offer was accepted by Mr. Wells, not in words at the time, but by an act, that of making another disposition of them in compliance with Mr. Yeomans’ request. Some light is thrown upon the probable nature of the conversation, and upon what both men understood its import to be, by their subsequent conduct, not only by that of Mr. Wells in making another sale of the lumber, but also by that of Mr. Yeomans. The latter, a few days after his conversation with Mr. Wells, called up Mr. Conely, the broker who had negotiated the contract between the parties, and Mr. Conely gives the talk which he then had with Mr. Yeomans, as follows:

“He called me up on the telephone and told me he couldn’t use that lumber; it was too narrow. I told him I didn’t think so. I had just come from the boat, and it was a good lot of lumber. There was a lot of short lumber on the Keith which made it look narrow —a lot of 1910 shorts. * * *
“Q. Did he say anything to you in regard to his canceling the balance of the contract? °
“A. I don’t know as he used the word ‘cancel,’ but he said he told Mr. Wells that he wouldn’t receive any more of the lumber.
“Q. What did you tell him?
“A. I told him that he had made a mistake. I had seen the culls at Georgian Bay, and they were a nice lot of mill culls.
“Q. And what other talk did you have with him?
“A. He told ,me to get hold of Dan and straighten the thing out.
“Q. Did you see Mr. Wells after that?
“A. No; X talked with him over the phone.
“Q. And what talk did you have with Mr. Wells over the phone? -
“A. I told him Mr. Yeomans didn’t want to cancel that order, and Mr. Wells told me that he had, optioned the lumber to Lowrie & Robinson, and that he was well ■satisfied to let Lowrie & Robinson have the lumber.”

Following this interview with Mr. Conely, and on the 21st day of. August, 1911, Mr. Yeomans, for his company, wrote Mr. Wells as follows:

“As per our telephone conversation, stating that we do not wish to cancel our contract with you for lumber this year, which was to be about 800 M ft. of 4/4, 500 M ft. of 5/4 and 300 M ft. of 6/4 and about 100 M ft. of 8/4, we trust you will reserve this lumber for us and be able to start delivery to us in about, three weeks.
“This order does not include 125 M ft. of 5/4, which we understand is now being loaded for us.”

At the same time Mr. Yeomans wrote Conely & Bailey, the brokers, that he had notified plaintiff that defendants did not wish to cancel the order for lumber. It is true that Mr. Yeomans does not admit in full the statements attributed to him by Mr. Conely, and he says that he wrote the letter to Mr. Wells “for fear they would make some excuse of the cancellation,” but the conversation and the letters had some bearing, on the question of Mr. Yeomans’ understanding of the import of his talk with Mr. Wells, and were for the consideration of the jury.

We think there was evidence justifying the trial court in submitting the question of rescission to the jury, and that their verdict should not be set aside as against the weight of the evidence.

In the course of the examination of Mr. Wells by counsel for the defendant the following took place:

“Q. Now, if Yeomans had canceled the contract, you would want your records at Blind river to show the facts, wouldn’t you?
“A. Well, Mr. Yeomans didn’t cancel—
“Q. Answer that / Yes’ or ‘No.’ Do you or do you not want your records to show the facts at your mills?”

Now, counsel for the defendants insist that we should accept this partial answer by Mr. Wells as a full and complete admission that the contract was not canceled. This we cannot do, as it is impossible to know what Mr. Wells’ completed answer .would have' been. It is hardly fair for counsel to interrupt &■ witness in the middle of a sentence and to then insist that the fragment of an answer be taken as a completed whole.

At the trial a . portion of the testimony was taken by a stenographer, who afterwards died without having furnished a transcript thereof. Before settling the bill of exceptions the notes of the testimony so taken were placed in the hands of Mr. Daniel, another court stenographer, who transcribed them, but with some help from the counsel for the plaintiff. Mr. Daniel makes an affidavit that he was able to read the: notes, and that he believes the transcript made by him' to be correct. This testimony was incorporated in the; bill of exceptions, and the circuit judge before whom the case was tried not only signed the bill, including such testimony, but certifies particularly that the transcript made from the notes of the deceased stenographer was true, complete, and correct. It is urged', by counsel for defendants that this transcript should not have been used, especially as counsel for plaintiff' assisted somewhat in its preparation, and that a new' trial should have been granted by the circuit judge because of the death of the stenographer who took the minutes. Counsel, however, do not point out nor suggest any mistake in the transcript, and the use of it was.not erroneous. The accuracy of a bill of exceptions is to be determined by the trial judge, and his certificate is ordinarily conclusive.

It being determined that the question of rescission was properly left with the jury, the other errors assigned become immaterial.

The judgment will be affirmed.

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


text:
    MONTGOMERY v. MONTGOMERY’S ESTATE.
    1. Executors and Administrators — Estates or Decedents — Claims.
    Where a son leased his father’s farm with the agreement that he was to hoard and lodge the father and mother, furnish the father his clothes, tobacco, and $50 a year; that he was to care for and feed the stock and work the farm, and in return was to have one-half the increase of the stock and receive all the proceeds of the farm, his labor upon the farm was for his own benefit and did not constitute the basis of a claim against the father’s estate.
    2. Same — Permanent Improvements — Contracts — Claims — Wills.
    But where the son expended money and labor in erecting a barn and an addition to the house, which enhanced the permanent value of the property, under an agreement that he should be secured in his father’s will, the security being intended to be absolute and not subject to the contingency of his dying before his father, his estate was entitled to an allowance against the estate of the father for the cost of the improvements, where the father's will was changed after the son’s death, without providing for reimbursement.
    3. Same — Appeal and Error — Instructions—Harmless Error— Statutes.
    While it was error for the court to instruct the jury that recovery might be had for labor of the son in the management of the farm, in addition to the cost of the permanent improvements, it was error without prejudice where the total amount allowed by the jury did not exceed the undisputed value of. the permanent improvements, and the provisions of Act No. 89, Pub. Acts 1915, providing that no judgment or verdict shall be set aside unless the error complained of has resulted in a miscarriage of justice, are clearly applicable to sustain the verdict.
    Error to Chippewa; Fead, J.
    Submitted January-17, 1916.
    (Docket No. 12.)
    Decided June 1, 1916.
    Claim by Florence Montgomery, as administratrix of the estate of Robert Montgomery, Jr., deceased, against the estate of Robert Montgomery, Sr., deceased, for services and for labor and money expended in permanent improvements. The claim was disallowed in the probate court and an appeal taken to the circuit court. Judgment for claimant. Defendant brings error.
    Affirmed.

      M. M. Larmonth, for appellant.

      John W. Shine, for appellee.
    This cáse grows out of a claim presented by the widow of Robert Montgomery, Jr., as the administratrix of his estate, against the estate of his father, Robert Montgomery, Sr. The facts upon which the claim is based are, in substance, as follows:
    In 1901, the father leased a farm of 80 acres, owned by him (it seems from the record that he had other lands), to his sons Robert and Samuel. Both were young men still living at home. The lease was for one year, or more, if satisfactory; and for the use of the farm the boys were to furnish the necessaries for the home, board and lodge their father and mother, furnish the father with clothes and tobacco, and pay him $50 per year. They were also to feed and care for the stock on the place and have one-half of the increase. The farm was worked, under this lease, without any written renewal up to the time of Samuel’s death, in 1903. . After that Robert continued to work the farm, receive all of the proceeds, and support his father and mother, substantially in accordance with the terms of the lease above mentioned. He seems to have been industrious, an excellent farmer, and very thrifty in his habits. Evidently he was able to accumulate some money for himself from the farm, while at the same time improving its condition. He was the only son living — there were four daughters — and the proofs tend fairly to show an oral agreement that he was to support his father and mother while they lived, and have the farm.
    In 1905, or perhaps earlier, the parties — that is, the father and mother and Robert — began to contemplate the building of a barn on the place. The fact that Robert was to put his own money and labor into the building of the barn, while the title to the place still remained in the father, seems to have made it evident to all that he ought to be secured in some way so that the investment would not be lost to him through any mischance. The first idea was to give him a deed of the place outright, and the father went to the judge of probate for the purpose of doing that. But upon the advice of the judge, instead of making a deed, he executed a will devising the land to Robert. The barn, however, was not begun until 1908, when the son did build it, at a cost to himself of from $1,500 to $2,000. The next year he married, and his wife, the presentadministratrix of his estate, took her place with the-family on the farm. Robert continued to manage the farm, have the proceeds, and support the old people, until the spring of 1911, when his health failed, and he found it necessary to look elsewhere for some better location. With this idea he went West and never returned, dying in Minnesota oh March 28, 1912. Before he left, arrangements were made that .a man by the name of Trim, who married one of the daughters, should work the place for a couple of years, and pay the father mohey rent for the same. There seems to be some dispute in the testimony as to whether Trim went on the place at the request of Robert, or by an arrangement wholly with the father. The administratrix of Robert’s estate claims that the services of Trim were secured by her husband so that some one might be on the place to look after the parents, and without any idea on the part of her husband or of his parents that the arrangement between them was to be abandoned or suspended. On the other hand, it is claimed in behalf of the father’s estate that the arrangement between Robert and his parents was abandoned, and that the lease to Trim was made by the father as superseding the arrangement with the son. This seems to be about the only point regarding which the testimony is contradictory. There is no dispute, however, that, before Robert left on his trip, he built an addition to the house for the convenience of Trim, at a cost of about $200.
    Robert, as has been stated, died on March 28, Í912, and almost immediately after his death, viz., on the 4th of April, 1912, the father revoked the will he had .previously made, and executed a new One by which the use of this farm was given to his wife, the mother of Robert, for life, with remainder in fee to the four daughters, all of whom are married. There was no provision in the will for Robert’s widow, the present administratrix of his estate, and Robert left no children. A little later and on July 14, 1912, the father died.
    The only testimony as to the present value of the. farm indicates that it is worth about $6,000 with the buildings upon it. The mother was 74 years of age' at the time of the tr,ial in December, 1913.
    The claim against the father’s estate, as presented by the son’s administratrix in the probate court, was for:
    10 years’ work and labor on the farm of said deceased, at $40 a month.................. $4,800.00
    For money advanced for nse of said deceased in building a barn on the Montgomery farm, and for material for the same, 1907, 1908, 1909 ...................................... 2,000.00
    To work and labor in building said barn...... 500.00
    To money advanced in building a kitchen to the house ................................. 200.00
    To work and labor on same........ 100.00
    In the circuit court a new declaration was filed, describing the nature of the claim somewhat more fully, but making no change in its character. The jury returned a verdict in favor of claimant for $2,068.60.
   Person, J.

(after stating the facts). The claim presented against the estate of Robert Montgomery, Sr., consists of two distinct items, or parts, the first for services in managing the farm generally, and the other for money used and labor expended in making permanent improvements on the farm, such as the barn and addition to the house. These subdivisions of the claim must be considered separately.

1. There seems to be no foundation whatever for any allowance in favor of the son’s estate because of his general management and cultivation of the farm. The claim in that behalf is not for damages because of the violation of the contract, but for the value of the services, on the ground that they were rendered for, and were beneficial to, the father. The answer is that in working the farm generally the son was not working for his father, but for himself. He managed the farm as he chose, and received, for his own benefit, all that the land produced. The farm was called the son’s, and treated as if the son owned it. It is true he supported his father and mother and gave to the father certain spending money; but his labor upon the farm generally was no more in the nature of service to the father than it would have been had he leased the farm for money rent, and then proceeded to cultivate it for his own benefit. The income which he derived from the farm is not given, nor is the expense of maintaining his father and mother. But the exact figures either way are immaterial; the fact that he cultivated the farm for his own benefit determines the question. That the use of the farm was fairly profitable to him is shown by the money he was able to accumulate therefrom and invest in the permanent improvements hereinafter mentioned.

2. That portion of the claim for money used and labor expended in erecting the barn and building the addition to the house stands upon a different basis. These were permanent improvements which enhanced the value of the property. The money which the son put into these improvements was his own, and so understood by everybody, although it had been obtained through the use of the farm. When it was contemplated that the son would invest his money in permanently improving the land, the title to which was still in the father, it was agreed that he should be secured against losing it. The security was clearly intended to be absolute and not subject to the contingency of his dying before his father did. His right to reimbursement could not be cut off by a change in his father’s will. There is no question made but that the value of the land was increased to the full amount of the cost of these improvements; and as much remains to the father’s estate after allowing that cost, as there would have been had the improvements not been made. The son’s estate was entitled to an allowance against the estate of his father for the cost of these improvements.

3. The instructions given by the trial court to the jury were not in accordance, fully, with the views above expressed. Those instructions permitted a recovery by the claimant, not only for the money and labor put into the permanent improvements, but also for the services of the son in the general management of the farm, less the value of the proceeds received by him. This was unquestionably erroneous. But it was plainly error without prejudice. The undisputed value' of the money and labor put into the permanent improvements, by the son, and which his administratrix was entitled to recover, equaled, if it did not exceed, the total amount allowed by the jury. There was practically no dispute in the testimony as to the cost of the improvements, their value to the father’s estate, of the understanding with which they were made; and it is fairly probable from the amount of the verdict that it was this portion of the claim which the jury allowed. It is provided by Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565) that:

“No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”.

There can scarcely be a situation where the requirements of this statute are more clearly applicable. The substance of all the- evidence taken upon the trial seems to have been included in the bill of exceptions, and the character of the assignments of error made it necessary that this should be so. After an examination of the entire cause, we cannot say that it affirmatively appears that the errors complained of have resulted in a miscarriage of justice.

The judgment is affirmed.

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


text:
    GALL v. DETROIT JOURNAL CO.
    1. Master and Servant — Independent Contractor.
    Where a person employed by a publishing company to deliver papers is not subject to control as to the method or means by which he produces the result contracted for, he is an independent contractor, and his negligence would not render the company liable, in an action on the same.
    2. Same — Right to Terminate Contract.
    Where the terms of the contract give the employer the right to terminate it at pleasure, he may, by assuming a control not warranted by the contract, make himself master and render him liable for the negligence of the employee.
    3. Same.
    But the posting up of notices warning the employee not to exceed the automobile speed limit fixed by lavy was not such an exercise of control as to violate the terms of the contract.
    Error to Wayne; Tucker, J., presiding.
    Submitted January 17, 1916.
    (Docket No. 25.)
    Decided June 1, 1916.

      Case by Thomas Gall against the Detroit Journal Company for personal injuries. Judgment for plaintiff. .Defendant brings error.
    Reversed, and no new trial ordered.

      Geer, Williams, Martin & Butler, for appellant.

      Lyle G. Younglove, for appellee.
    This action was brought against the Detroit Journal Company and one Albert Rebtoy to recover damages for a personal injury to the plaintiff. It was shown upon the trial that Rebtoy, while driving an automobile in the work of delivering newspapers for the company, ran against and upon plaintiff, injuring him severely. The negligence of Rebtoy is not denied, but upon the trial the action was discontinued as against him, and proceeded with against the company alone. It was plaintiff’s theory that the company and Rebtoy bore to each other the relation of master and servant, and that the company, as the master, was responsible for Rebtoy’s negligence. The company denied that Rebtoy was its servant, and insisted that, in delivering the papers, he was acting as an independent contractor. The relation of the parties was the real issue in the case. For the purpose of showing that Rebtoy was not its servant, and that in delivering the papers he was acting independently and upon his own responsib'ility, the company put in evidence the following contract :
    “This agreement, made this 6th day of December, 1912, between the Detroit Journal Company, of Detroit, Mich., of the first part, and A. N. Rebtoy, of the same place, of the second part: Witnes^eth: That for and in consideration of the mutual promises herein contained, the parties hereto agree as follows:
    “1. The said second party agrees to deliver and distribute from the Detroit Journal Building, to such persons and at such places and along such route or routes and on such regular schedule or schedules as may from time to time be designated and furnished to him by said first party, the time of and the routes and schedules for said delivery and distribution and the strict adherence thereto being the essence of this contract. In event contingencies render it apparently impossible for said second party to conform to said regular schedules or routes, he agrees to promptly notify first party by telephoning its mailing room, stating the facts and reasons therefor.
    “2. The said first party agrees to pay the said second party therefor the sum of $38.00 per week, less following sums as stipulated damages for defaults and failures of second party; for each delay or lateness of from two to five minutes, 25c; and from six to ten minutes 75c; for each time first party for any reason hires or procures another vehicle to replace or relieve vehicle of second party, $1.00 up to $3.00, this being dependent upon the price the said Detroit Journal Co. has to pay a third party for the service.
    “3. The said second party shall make such delivery and distribution according to his own means and methods of conveyance which shall belong to and be in the exclusive charge and control of said second party, and which shall not be subject to control or supervision by said first party excepting as to the results of said work; and it is hereby expressly understood that first party does not hereby hire or rent the use of the same or assume any liability for the use or method of use thereof.

      “4. This agreement may be terminated by either party at any time without notice.
    “5. The terms of this agreement shall not be changed, modified, altered or supplemented excepting in writing, signed by the parties hereto.
    “In witness whereof, the sáid parties have hereunto set their hands the day and year first above mentioned.
    “Detroit Journal.
    “By (Signed) George W. Thomas.
    “ (Signed) A. N. Rebtoy.”
    As it further appeared upon the trial, Rebtoy was the owner of the automobile used by him, through purchase from the company in November, 1912, although it was not fully paid for at the time of the accident. When he stopped delivering papers, he sold it to another party, who continued to use it in making deliveries for the company. The name “Detroit Journal” had been painted upon the car before Rebtoy bought it, and was yet on it at the time of the accident. Rebtoy kept the automobile at his home, took out the license in his own name, furnished his own gasoline, and made his own repairs. The newspapers, when received by Rebtoy, were wrapped in bundles, with labels thereon containing the names and addresses of the customers to whom they were to be delivered. After these were loaded into the automobile, Rebtoy proceeded to deliver them, driving upon any street he chose in doing so. The routes were changed from day to day, and stops added or taken off, as the company saw fit. The company never made any time schedule for Rebtoy’s observance, but it did post up in its mailing room notices in the form of “advice” to him and other drivers of automobiles, warning them against violation of the speed limit fixed by law. It was conceded by the company that upon the failure of any driver to heed this “advice,” advantage would probably be taken by the company of the clause permitting a termination of the contract. Rebtoy was not a drayman, had no drayman’s license, and had no employment other than that for the Journal Company. The relation of the company and Rebtoy was submitted by the trial court as a question to be determined by the jury, and the jury, finding that they were master and servant, returned a verdict against the company in the sum of $500.
   Person, J.

(after stating the facts). The contract between the Detroit Journal Company and Rebtoy constituted a very plain and simple arrangement for an employment of an equally plain and simple character. Omitting the provisions relating to default or failure in performance, it amounted to just this: Rebtoy was to deliver the papers to such persons, at such places, and on such time as the company should from day to day designate. Such delivery was the result to be obtained. And Rebtoy was to effect such delivery and obtain such result by any means and by any conveyveyance and in any way he saw fit. He could make the deliveries in person, or through others employed by him. It is shown by the evidence that those making deliveries for the company did occasionally employ others to do the work. He could use a horse, an automobile, or carry the papers on foot, provided he got them to the right persons, at the right places, and upon time. So far as the terms of the contract are concerned Rebtoy was certainly an independent contractor and not a servant. One whom the employer does not control, and has no right to control, as to the method, or means, by which he produces the result contracted for is an independent contractor. De Forest v. Wright, 2 Mich. 368; Riedel v. Moran, Fitzsimons Co., Ltd., 103 Mich. 262 (61 N. W. 509); Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495) ; Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816) ; Rogers v. Parker, 159 Mich. 278 (123 N. W. 1109, 34 L. R. A. [N. S.] 955, 18 Am. & Eng. Ann. Cas. 753) ; Larsen v. Telephone Co., 164 Mich. 295 (129 N. W. 894); Inglis v. Driving Ass’n, 169 Mich. 311 (136 N. W. 443, Am. & Eng. Ann. Cas. 1913D, 1174); Ripley v. Priest, 169 Mich. 383 (135 N. W. 258); McBride v. Shingle Co., 173 Mich. 248 (138 N. W. 1077); Bissell v. Ford, 176 Mich. 64 (141 N. W. 860) ; Bacon v. Candler, 181 Mich. 372 (148 N. W. 194); and see copious note to Richmond v. Sitterding, 65 L. R. A. 445.

Rebtoy did have a contract for a specific piece of work; that is, for the delivery of the papers. And it was none the less specific because the places to which the deliveries were to be made, and the persons to whom the papers were to be delivered, might change from day to day. The right, on the part of the company, to designate the persons and places was but a right to designate the result to be obtained, and did not give the company any control over the method for obtaining that result. Rebtoy was paid by the week, but so was the contractor in Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. SJ 816). Rebtoy was not a licensed drayman, but that would not prevent his taking an independent contract, so far as the Journal Company was concerned. All of these things might be important in determining the relation of the employer and employed in a doubtful case, but they are not controlling in the face of a definite contract which clearly defines the relation. No reason is seen why a man may not agree, as an independent contractor, to deliver all, or part, of the papers printed by a publisher, of the groceries sold by a groceryman, or of the goods sold by a merchant, if the method and means for doing so are left entirely to him without any right of control by the employer. In the instant case either party had the right to terminate the contract at pleasure. That might be a very important circumstance in some cases, but under this contract any threat by the employer, express or implied, to use the right, for the purpose of controlling Rebtoy as to the method or means of making deliveries, would have been in violation of the terms of the contract. So long as the contract was adhered to, Rebtoy was independent in all of the methods of doing the work.

But a contract may be abandoned in whole or in part, or may be disregarded. And where the employer has the right to terminate the contract at his pleasure, he may use that power so as to exercise a control not warranted by the contract. In all such cases the employer may assume the position of master, and make himself liable for the negligence-of the employee. It is urged that the company in this case did in fact assume a control of Rebtoy as to his manner of delivering the papers by posting up notices in.the mailing room for the control of the delivery men. But the only notice posted up, so far as we can gather from the record, was one requiring the delivery men not to exceed the speed limit fixed by law. This was really no exercise of control. It was, at the most, only a direction not to do a thing that the delivery men had no right to do. It did not assume to control any freedom of means and methods that the delivery men actually possessed.

As the evidence stood, we think the court should have directed a verdict for the defendant.

Judgment is reversed, and without a new trial, with costs to appellant.

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