author: Stone, J.

text:
    JOHNSON v. BURKE.
    1. Appeal and Error — Directing Verdict — Evidence.
    In reviewing, on a writ of error, a verdict directed against plaintiff, his evidence is to be considered in its aspect most favorable to plaintiff.
    2. Master and Servant — Violation of Rules — Risk Assumed— Abrogation of Rules.
    If a rule or notice is habitually violated by employés, with the knowledge or acquiescence of the employer, or is not enforced, it may be treated as abrogated.

    3. Same — Notices—Dangerous Elevator.
    Where notices of danger had been posted for several months, but were removed and employés permitted to use the defendant’s elevators by the direction of the employer, an employé did not assume the risk of the absence of a clamp necessary to prevent the elevator from falling, but which he knew nothing about, being ignorant of the dangerous condition of the elevator. (Distinguishing Bennett v. Butterfield, 112 Mich. 96 [70 N. W. 410], and Ballv. Hauser, 129 Mich. 397 [89 N. W 49]).

      4 Venue — Residence of Parties — Actions—Transitory Action —Waiver of Want of Jurisdiction.
    After defendant, in a transitory action, has pleaded in bar of the action, thus submitting to the jurisdiction of a court of general jurisdiction, he must be held to have waived the question of jurisdiction of the person, where it is raised on the ground that neither party resided in the county in which the action was brought. 3 Comp. Laws, § 10136.
    Error to Ingham; Collingwood, J.
    Submitted June 27, 1911.
    (Docket No. 108.)
    Reargued October 16, 1911.
    Decided November 3, 1911.
    Case by William Johnson against William Burke for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Henry R. Rathbone and Charles H. Goggin, for appellant.

      Thomas, Cummins & Nichols, for appellee.

       Duty of servant in regard to rules promulgated by his employer, see note in 43 L R A. 350.

   Stone, J.

This is an action on the case to recover damages for a personal injury received by the plaintiff while in the employ of the defendant. The plaintiff entered the employment of the defendant in September, 1909, and the injury occurred on April 2, 1910.

The defendant was engaged in constructing a high school building in the city of Lansing. At the time of the injury complained of, the structure was erected and inclosed, and it was being finished on the inside. The dimensions of the building were about 150 feet by 60 feet, and about 50 feet high. There was a basement with two floors above. The plaintiff was employed as a laborer in wheeling and handling material, and he appears to have assisted in the work as directed by his superiors. A double hoist freight elevator was placed and used in the building at the time, located in the center wellhole. It had earlier in the work been located in the south part of the building. This appliance was so constructed that while one elevator was going up the other would be coming down. These elevators ran between upright posts, which extended to the top story, and acted as guides. They were joined together by a continuous wire cable, which was coiled about a winch, and then ran over a pulley at the top of the building. One end of this cable was fastened to the framework of the north elevator, and the other end to the framework of the south elevator. The whole was operated by an electric engine, which an engineer controlled by means of a lever and brake.

Both ends of the cable had been secured, up to a short time before the accident, by clamps. This was done by running the end of the cable through an eye at the top of the elevator, doubling it back, and securing it by adjusting and screwing on the clamp or clip provided for that purpose. On the south elevator, this continued to be the method used for securing the elevator, but on the north elevator there was also another device, consisting of a horizontal spindle on top of the frame, around which the end of the cable was coiled, after having been passed through or around a hook at the end. At one end of the spindle, there was a small iron wheel with teeth, into which a metal dog dropped to prevent the cable from unwinding on the spindle, and thereby permitting the elevator to fall. The evidence of the plaintiff tended to show that if the dog was not tight, or did not fit properly, it could be thrown out of place by any slight jar, and that then the elevator would fall, because of the unwinding of the cable. The evidence on the part of the plaintiff tended to show that to prevent such falling a clamp had been also used on the end of the cable attached to the north elevator, as well as to the one attached to the other. Some three or four days before the injury to the plaintiff, however, a new cable had been installed, and, although the clamp had been put on the end of the cable at the south elevator, no clamp was attached to the end of the cable on the north elevator, and the hoist was continued in operation without this safety device.

These elevators were used continuously, not only for the transportation of material, but of the men who were handling it. A number of witnesses testified that the defendant was there every day superintending the work; that while he was there the men were in the habit of riding on the elevators; and that defendant never made any objection to their so doing. There was testimony that the plaintiff and other men had been directed by the defendant to ride on the elevator, when it was in the other part of the building. After such direction, the plaintiff and other employés continued to ride up and down on the elevators while about their work. This continued up to within a week of the accident, but for about that length of time before he was injured the plaintiff’s duties confined him to the basement of the building, where he was assisting the carpenters, and he had no occasion to ride, and he did not ride on the elevators during that week. The plaintiff testified that he did not ride on either of the elevators after the clamp had been removed and the new cable installed until the time when he was injured. He testified that he knew nothing about the elevators, or of their safety devices, had never worked on them before said employment, nor been warned of any danger by defendant personally, and that he did not even know of the change of cables, or of the clamp being left off, and that he had no reason or occasion to know of any danger.

It appeared in evidence that at one time there had been two cards posted on the guideposts of the elevators, on which were printed the words: “Danger. Keep off.” The evidence was that they were put there about Christmas, and continued until about March 1st, when they were removed. At no time thereafter were they again posted. It further appeared that the men rode up and down on the elevators, and used them as freely during the time that these signs were up as they did before and after, and this to the knowledge of the defendant. The cards had been removed for at least two or three weeks before the injury to the plaintiff.

It appeared in evidence that on the morning of the day of plaintiff’s injury the regular engineer, discovering that the dog was loose on the north elevator, was trying to fix it by putting on a clamp, when defendant came along and asked him what he was doing, and when told by the engineer of its condition, and that it was dangerous to run the elevator without a clamp, defendant ordered him to start it, and not longer delay the work. There was evidence that clamps are well-recognized safety devices, and in general use on elevators, and when properly adjusted with such devices that the elevators cannot become detached from the cable and fall.

Early in the afternoon of April 2, 1910, the plaintiff was directed by the carpenter whom he had been assisting in the basement for a week previous to go to the top floor for some nails. He took the elevator, went up, got his hat full of nails, and, starting to return, he stepped onto the north elevator, when it fell with him to the basement. The cable did not break, but simply unwound, became detached, and let the elevator drop. The plaintiff claims that as a result of the fall he sustained serious injuries, that the bones of both legs were broken, and both feet seriously and permanently injured.

The breach of duty alleged in the first count of the declaration was that the defendant negligently failed to furnish proper appliances for the safe operation of the elevator, and particularly a certain clamp to secure the cable, so as to prevent the elevator from falling. The third count was similar, except that it alleged negligence in maintaining the elevator without a clamp. In the second count, the failure of the defendant to warn and apprise the plaintiff of the danger arising from the absence of the clamp is set up, and in the sixth count his negligence in ordering the elevator to be used while in an unsafe condition is alleged.

At the close of plaintiff’s evidence, the trial court directed a verdict and judgment for the defendant, assigning as its reason for so doing that, inasmuch as the signs had been posted, which read: “Danger. Keep off”— the plaintiff used the elevator at his own risk, and that as matter of law he assumed the risk.

The plaintiff has brought the case here for review, and the only error assigned is that the trial court erred in directing a verdict and judgment for the defendant.

As we are dealing here with a directed verdict, we have set forth the claim and evidence of the plaintiff in their most favorable aspect.

We are of opinion that the trial court erred in directing a verdict and judgment for the defendant, and that the evidence presented a case which should have been submitted to the jury under proper instructions. We have repeatedly held that if a rule or notice is habitually violated by employés, with the knowledge and acquiescence of the master, or is not enforced, then the rule or notice may be treated as abrogated. Hunn v. Railroad Co., 78 Mich. 513-526 (44 N. W. 502, 7 L. R. A. 500); Ashman v. Railroad Co., 90 Mich. 567-576 (51 N. W. 645); Eastman v. Railway Co., 101 Mich. 597 (60 N. W. 309); Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W. 23); Id., 124 Mich. 482 (83 N. W. 149). See, also, 26 Cyc. pp. 1161, 1162. The question of assumed risk was at least one for the jury.

Counsel for defendant urge that the question of assumption of risk is controlled by the cases of Bennett v. Butterfield, 112 Mich. 96 (70 N. W. 410), and Ball v. Hauser, 129 Mich. 397 (89 N. W. 49). The above-cited cases are, in our opinion, readily distinguishable from the instant case upon the facts disclosed.

The point is made in defendant’s brief, but not urged in oral argument, that one of the grounds for the motion for a directed verdict was that, under section 10216, 3 Comp. Laws, the circuit court of Ingham county was without jurisdiction, as it appeared that plaintiff was a resident of Gratiot county, and defendant a resident of Muskegon county, at the time of the commencement of the suit, which fact first appeared upon the trial; and that the result reached by the trial court was correct, even if wrong in the reason given for the directed verdict. Counsel cite Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926), in support of the position. An examination of the case cited will disclose that the question was there raised by motion, supported by affidavit, before pleading. That the question should be so raised, or raised by a plea to the jurisdiction is, we think, very clear. After a defendant in a transitory action has pleaded in bar of the action, and thus submitted himself to the jurisdiction of a court of general jurisdiction, he must be held to have waived the question of jurisdiction of the person. We do not think the point a meritorious one.

For the error pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Ostrander, C. J., and Bird, Steers, Moore, Mc-Alvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    VAN LEUVAN v. ANN ARBOR RAILROAD CO.
    1. Master and Servant — Declaration — Railroads — Defective Apparatus — Variance.
    It was not error to refuse to direct a verdict for defendant rail- . road, in a personal injury case brought by one of its freight conductors who was hurt while coupling a car that he claimed was equipped with a broken and insufficient draw-head, where the declaration alleged that it was defendant’s duty, under 2 Comp. Laws, § 5511, to furnish safety coupling devices and to keep them in reasonable repair, that the coupling in question was defective and could only be operated by plaintiff’s putting his hand between the cars, that the draw-head of one of the cars had fallen down because of the broken and defective condition of the bolts thereof, that the bolts had been cracked and broken for a period of about three months, and where evidence showed that the bolts which held the drawhead were no part thereof and their defective condition was the proximate cause of the injury: since the defendant was not surprised by the alleged variance and was fairly notified that plaintiff claimed the bolts were defective.
    2. Same — Contributory Negligence.
    Nor was plaintiff per se guilty of contributory negligence because he put his arm between the cars to uncouple them; for he had a right to rely on defendant’s performance of its duty, and if it had performed the same his position would have been a safe one.
    3. Appeal and Error — Assignments — Saving Questions for Review.
    An assignment that the court erred in his charge to the jury is too general to be considered.
    4. Evidence — Usual Methods — Contributory Negligence — Personal Injuries.
    Testimony of plaintiff, in an action for personal injuries, that he uncoupled certain cars in the usual way, and the business of the railroad could not be conducted if the conductor waited to make a particular examination of each car, was not objectionable.
    5. Same — Rules.
    Nor was it erroneous to exclude from the evidence rules of defendant which required no more than the law in their absence required.
    Error to Shiawassee; Miner, J.
    Submitted June 21, 1911.
    (Docket No. 125.)
    Reargued October 17, 1911.
    Decided November 3, 1911.
    Case by Chase Van Leuvan against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Qustavus Ohlinger and Seth Q. Pulver (Alex L. Smith, of counsel), for appellant.

      Frank H. Watson and Odell Chapman, for appellee.
   Blair, J.

This action is brought by plaintiff to recover for a personal injury suffered while in the employ of defendant, on February 15, 1907.

At the time of the injury, plaintiff was 43 years of age, and had been in railroad service for about 24 years. He had held successively the positions of section foreman, brakeman, switchman, and yardmaster. At the time of the accident, plaintiff was serving as a conductor, and had held that position for about seven months. On the night of February 14, 1907, plaintiff brought into Cadillac a train of cars which he had picked up a few hours before at various points south of that station. The train was backed into the side track at Cadillac. The tracks run. north and south, and the train was headed north. Three cars had been set out on the side track, and then plaintiff discovered another car which was to be left at Cadillac, as to which he testified:

“ * * * And in this train, about the middle of it, I should think, when we came to it, was this car that I went to uncouple, and the latch was gone. The car was a gondola, a coal car, and the operating lever fits right onto the end of it. * * * You raise the handle up and shove it just a little bit forward, and there is a latch that is supposed to hold it so you can release, and it will unlock, * * * and the latch was gone. * * * That necessitated my going on the other side and uncoupling from the opposite side. The operating chain by which you draw the bolt was broken, and I couldn’t uncouple from that side. I held the lever up in my hand. That was the only way to do it. It was necessary to hold the lever up by my hand, so that it would stay unlocked, so that the drawbars would stay unlocked. When we were shoving down, we hit some cars that were behind us; that is, went into them. We were going along and uncoupling these cars that I was in between. The cars came together and caught my arm.”

This car was identified by initials and number as D. S. 9682. The train was backing upon the switch track. This car, as well as the one ahead of it, which was identified by the initials D. T. & I., was provided with the regular safety appliance couplings.

The collision came just as plaintiff, who was walking beside the car, was uncoupling, and the drawhead of the opposite car came out, because certain bolts were broken and let it drop down.

“Q. I wish you would describe the character of that break and its appearance, whether it was fresh or old ?
“A. Why, some of them were pretty near broke off, and there was two or three that was only half broke off, but they looked to be old, rusted; they were old breaks.
“ Q. Were those breaks there where they were pretty near off; where they were broken so they hung by a small portion ? State whether it was a new or old break.
“A, It was an old break.
“Q. So were the rest of them ?
“A. Yes, sir.”

Counsel for defendant and appellant ask for a reversal of the judgment upon the following grounds:

(1) Failure to prove the defect and negligence alleged; (2) contributory negligence of plaintiff; (3) error in the charge of the court; (4) error in admitting and rejecting evidence; (5) the weight of the evidence; (6) improper remarks of counsel in the presence of the jury and in argument.

The declaration, after alleging the duty of defendant, under section 5511, 2 Comp. Laws, to furnish safety coupling devices and keep them in reasonable repair, and the failure to perform such duty, proceeds as follows:

“ * * * But said defendant left said coupling in such defective manner that it could not be operated, except by raising up the lever and holding said lever in place by hand, which necessitated this plaintiff placing his hand and arm between the cars, there being no other way to perform said coupling; and, to wit, the date aforesaid, it became necessary, while in the yards at Cadillac, Mich., in switching said car having the coupling aforesaid, in and about the ordinary work of defendant’s business, to uncouple said car, and there being no other way to perform the work said plaintiff was compelled to hold up said coupling lever with his hand, and bring his arm between said cars and another car; and when said cars which were in use in the switching aforesaid were run against another car in the ordinary manner the drawhead in the car aforesaid named, which was equipped aforesaid, broke and came off on account of said drawhead, and the bolts thereof with which it was bolted to the car had become worn out, were cracked and broken, and had been so cracked and broken for a long space of time, to wit, three months, so that said break in said bolts had become rusty and corroded with rust, which on account thereof broke and dropped down on said car and permitted the car which plaintiff was operating and holding up said rod as aforesaid, and the end thereof collided with the car ahead of it, and the breaking of said drawhead allowed the end of the two cars to come together and thereby crushed the left arm of this plaintiff, rendering amputation at the elbow necessary, and plaintiff was thereby deprived of his left arm.”

The plaintiff testified that the bolts referred to were the bolts that held the drawhead in place. While, technically, these bolts were no part of the drawhead, and the drawhead itself was in good condition, and the portions of the declaration allege the failure of duty to be in furnishing a defective drawhead, we think the portion of the declaration quoted sufficiently apprised the defendant that plaintiff claimed the defective bolts to be a proximate cause of the accident, as necessary to the proper retention of the drawhead in its position. We are satisfied from the course of the trial that defendant was not surprised by the alleged variance between the testimony and the allegations in the declaration, and that there was no prejudicial error in refusing to direct a verdict on this ground.

The testimony tended to show, and the jury have found, that the work of switching was being done in the customary way; that, except for the defective bolts, the position of plaintiff with his hand on the lever was a safe position; that the defeots were not likely to be discovered by one performing plaintiff’s duty in the usual way. The plaintiff had a right to rely on defendant’s performance of its duty, in which event his position was a safe position, such as a reasonably prudent man might adopt, although there were other methods which, because of defendant’s negligence in the particular case, would have been safer. The court did not err in submitting this question to the jury. Hewitt v. Lumber Co., 136 Mich. 110 (98 N. W. 992) ; Gillespie v. Railway Co., 150 Mich. 303 (113 N. W. 1116).

The only assignment of error concerning the charge is as follows:

“ (35) The court erred in his charge to the jury.”

This assignment is manifestly too general and indefinite to require further consideration.

Under this head, counsel refer to the refusal to give their requests to charge, as follows:

“ The court further erred in refusing to give defendant’s requests to charge. We call attention particularly to requests numbers 7, 8, and 9. These, we submit, correctly state the law under the decision of this court in the Wight Case, 161 Mich. 221 [126 N. W. 414].”

The defendant’s fifth request was given by the court as follows:

“If you find from the evidence that the injury sustained could have been avoided if the plaintiff had stopped the train before attempting to uncouple the cars, or could have been avoided if he had signaled the train to stop before it hit the other cars on the track, and that an ordinarily prudent man, under the existing conditions and surroundings, and possessing the same knowledge of conditions which the plaintiff had would have adopted one of those courses of action, then your verdict will be for the defendant.”

The defendant’s fifth request to charge, which covered the ground of the seventh and eighth, contained a qualfication which was improperly omitted from the seventh and eighth. The ninth request was also properly refused as conflicting with the doctrine of the Hewitt and Gillespie cases above cited.

Complaint is made that plaintiff was permitted to testify, against objection, that the business of the road could not be transacted if the conductor stopped to make a particular examination of each ear, and that the switching was done in the customary way. We find no error in these rulings. The plaintiff was an expert railroad man of long experience, was familiar with the customary mode of doing the work he was engaged in at the time of the accident, and it was material and proper for him to show that he was performing his work in the usual way, which would not admit of his making a minute inspection of the draught rigging of each car. The exclusion of defendant’s rules 105 and 106 was not prejudicial error, since they required no more than the law would require in their absence. The question to the defendant’s witness, Watson, was proper on cross-examination.

We are also of the opinion that the court did not err in refusing a new trial on the ground that the verdict was against the weight of the evidence. There are no other questions presented by the brief which, in our opinion, require consideration.

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

Ostrander, O. J., and Bird, Steere, Moore, Mc-Alvay, Brooke, and Stone, JJ., concurred.


text:
    SILFVER v. DAENZER.
    1. Appeal and Error — Findings oe Law and Fact — Requests —Trial.
    In the trial of an action by the court without a jury, the questions involved were not saved for review on appeal by appellant’s filing a brief in which the questions were presented to the trial court but which was not made part of the record on appeal; no requests for findings of law and fact having been presented by appellant.
    2. Same.
    Nor is the defeated party entitled to rely on the requests for findings filed by the opposite party.
    3. Same — Pleading — Recovery oe Purchase Price — Common Counts.
    Recovery may be had on the common counts for money paid as a part of the purchase price of land under a contract subsequently rescinded, where a bill of particulars was filed showing the amount and nature of plaintiff’s claim; a special count on the oontraot is not required.
    4. Vendor and Purchaser —Rescission —Contracts —Title — Breach.
    The purchaser of land under a contract is not entitled to rescind before the time when the vendor is bound to convey for the reason that the vendor has a defective title which, however, he is in a position to clear up so as to convey a good title at the agreed time; though the contract provided that the purchaser might pay the entire consideration at any time.
    Error to Newaygo; Sessions, J., presiding.
    Submitted June 12, 1911.
    (Docket No. 36.)
    Decided November 3, 1911.
    Assumpsit by Oscar Silfver against George F. Daenzer for money bad and received. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Everett & Riblet, for appellant.

      William Carpenter, for appellee.
   Blair, J.

This is an action on the common counts to recover the down payment on a land contract because of the vendor’s defective title.

The following bill of particulars was filed:

Take notice that the following is a bill of particulars of the plaintiff’s demand in this cause, and for the recovery of which this action is brought, to wit:

1907. Sept. 27. Money paid to the defendant by the plaintiff as a part of the purchase price of the following described lands situated in the township of Sherman, county of Newaygo and State of Michigan, viz.: The east half (E. -J) of the N. E. ¿ of section 3; the north half of the S. W. ¿ and the S. W. J of the S. W. £ of section 11, all in town 13 N., range 13 W., under an executory contract for the sale thereof made between the defendant and the plaintiff on that date, which contraot was thereafter rescinded by the plaintiff for the reason that the defendant did not have, and could not furnish, a good marketable title thereto, and could not perform said contract in accordance with its terms..........-.....1400 00
1908. Jan. 25. Paid to ¥m. Carpenter for examination of title to said lands and opinion thereon at the request of the defendant..................... 15 00
To interest on the above items.

By the contract executed September 27, 1907, the defendant agreed to sell to plaintiff, for a consideration of $1,500, 200 acres of land in Sherman township, Newaygo county. The terms of the contract, in part, are as follows:

First party reserves all saw timber, and cedar, with privilege to remove for a period of three years from the first day of April, 1908, for the said sum of fifteen hundred dollars, which said party of the second part hereby agrees to pay to the said party of the first part, as follows: Four hundred dollars on delivery of this contract, receipt being hereby confessed and acknowledged, and three hundred dollars each and every six months until the full amount of the said fifteen hundred dollars is paid. Second party reserves the right to pay on or before the dates above mentioned, with interest on all sums at any time unpaid thereon at the rate of six per cent, per annum, payable with each payment. Said party of the second part also agrees to pay in due season all taxes and assessments, extraordinary as well as ordinary, that shall be taxed or assessed on said land, including the taxes thereon for the year 1907. It is agreed by the parties hereto, that the said party of the first part, on receiving payment in full of the said principal and interest at the times and in the manner above mentioned, and of all other sums chargeable in his favor hereon, shall and will, at his own proper cost and expense, execute and deliver to the said party of the second part, a good and sufficient warranty deed of said above described land, free and clear of and from all liens and incumbrances, except such as may have accrued on said land subsequent to the date hereof, by or through the acts of negligence of said party of the second part. It is also agreed by the parties hereto, that said party of the second part shall have possession of said land under this contract, on the 27th day of September, 1907.”

When the contract was offered in evidence, defendant made the following objections:

“We desire to at this time object to any evidence being received under the declaration, for the reason that its being based upon this contract must necessarily have a special count declaring specially upon the contract. We have here a simple declaration on the common counts, and not a special count upon the contract which is required under the rule of law, as we look at it, and for that reason we object to it as being incompetent. * * * And the further objection that they must aver in their declaration a tender of the purchase money in full and set forth a reason for the non-payment before he can recover back such of the purchase money as he may have paid on it.”

The objections were overruled and exceptions taken.

At the time of executing the contract, defendant told plaintiff that the title was good, and that he would send him the abstracts. Early in October, 1907, defendant mailed the abstracts to plaintiff at Peoria, 111., where he resided. Plaintiff submitted them to his attorney at Peoria, who advised him that the title was defective, and defendant was notified to that effect. November 4, 1907, defendant wrote to plaintiff, in part, as follows:

“ I received your letter a few days ago. I am also in receipt of a letter from T. A. Cameron with abstract for the land enclosed. I note also the objections he makes to title and I now suggest that you place the abstracts with a Michigan attorney for examination, the same to be at my expense if not found good.”

In accordance with this letter, the plaintiff caused the .abstracts to be submitted to Mr. William Carpenter, of Muskegon, for his opinion, which coincided with that of the Peoria lawyer. Prior to April 3, 1908, the abstracts and the opinions thereon were forwarded to defendant with a letter addressed to Mr. Daenzer, of White Cloud, Mich., stating that Mr. Silfver desired to call off the deal or rescind the contract which he had made for the purchase of these lands mentioned in this contract in evidence, and that he demanded the return of the money paid by him and of the payment of $15 which he had paid under an agreement with Mr. Daenzer to Mr. Carpenter; that he would not wait longer; that nothing had been •done towards perfecting the title thus far, so far as they knew; and that he would wait no longer, and wanted his money and interest upon his money.

On April 3, 1908, defendant wrote to the Peoria lawyer in part as follows:

“In reply to your last letter regarding Mr. Silfver money, I will not send it back to him, but I am going to carry out my part of the contract and straighten up the title. I have the abstracts, but my attorney has been out of town. He will return home tomorrow. * * * Please tell Mr. Silfver that I have not received the $300.00, with interest, which was due the 22nd of last month. Tell Mr. Silfver to carry out his part of the contract as it calls for. I will have the title straightened up as soon as possible.”

On April 16, 1908, defendant’s attorney wrote the following letter:

“ Mr. Fred Daenzer has handed me several abstracts of some land in Sherman township, this county, together with a letter addressed to you by Mr. Carpenter of Muskegon, this State. I am this day writing Mr. Daenzer with a view of getting this matter in hand and I believe that if you will have just a little patience with us that there will be no difficulty in convincing you that Mr. Daenzer has a marketable title and is in a position to convey it to your client.”

On March 6, 1909, plaintiff served formal notice of rescission of the contract, and demanded repayment of his money. This was refused, and in July, 1909, this suit was commenced. Upon the trial, defendant’s counsel made the following statement:

“We might state that we do not claim that the whole of these titles have been perfected up to this time, but I may state that our claim in that connection is that we are not obliged to perfect it; under our claim we have until the fulfillment of the contract on the part of Mr. Silfver in which to complete the perfecting of title, if there are any defects in it.”

Defendant testified:

“ I don’t now claim that I have the title all cleared, but pretty nearly all cleared up. I have proceedings pending in court to perfect a portion of the title. There was considerable done towards perfecting the title prior to March 6, 1909. I turned it over to Mr. Riblet two years ago this last March, and he went to work to clear up the title.

The lands in question were wild lands, and plaintiff never took actual possession thereof. Plaintiff testified:

“At the time I discovered the defects, I was willing to take the property if those defects were cured.
“Q. You were willing to allow Mr. Daenzer time in which to remedy these defects if it was necessary ?
“A. Yes.”

The abstracts of title were received in evidence as Exhibits C, D, E, and E, against defendant’s objection that they were—

“Immaterial and incompetent for the reason, first, that the plaintiff here cannot recover without first tendering the performance of the contract on his part, and tendering possession back to the defendant, Mr. Daenzer.

There is further reason that they are incompetent under the pleadings.

The Court: You mean because the declaration does not set forth the contract with the special count ?
“Mr. Eperett: That is one thing; yes.”

Exception was duly taken.

Defendant further excepted to the refusal of the court to strike out the testimony of Mr. Carpenter that he had never received notice of the perfection of the titles—

“ Eor the reason that it is immaterial under our view of the case; we will claim and now claim that plaintiff cannot recover, for the reason that he has not paid the entire purchase price stated in the contract, nor tendered it, and until that time he cannot recover, and for that reason any evidence with reference to this title is absolutely immaterial.”

The case was tried by the court, and after the close of ' the testimony and the argument, the plaintiff made and filed a request for findings of fact and law, and “ the defendant presented to the court such points of law as the defendant deemed material.”

The court entered judgment for plaintiff without filing findings of fact or of law. Defendant moved for an order vacating the judgment—

“So that the request of findings of fact and law now on file in this court may and will have legal effect, for the following reasons:
“ (1) Because to vacate and set aside the judgment for the purpose above mentioned will give the defendant the right to review said case in the Supreme Court of this State on all questions which would be open to him.
“(2) Because if said judgment was not set aside and vacated, and the defendant given the right to file the request for findings of fact and law prior to the entry of judgment, it would deprive him of right and justice.
“(3) Because said defendant believed that on account of the filing of request for findings of fact by the plaintiff’s attorneys in this case that findings of fact and law would be filed prior to the entry of judgment.”

This motion was denied and exception taken.

Defendant alleged various exceptions to tlie rendition of judgment, and brings the record to this court for review upon writ of error. The assignments of error raise the following questions:

(1) Did the court err in overruling defendant’s objection to any evidence being received under the declaration ?

(2) Did the court err in permitting Exhibits C, D, E, and F to be received in evidence ?

(3) Did the court err in denying defendant’s motion to strike out the answer of witness Carpenter to the question, “Were you ever notified by Mr. Riblet or Mr. George F. Daenzer of the perfection of those titles ? ”

(4) Did the court err in not filing findings of fact and law before entry of judgment ?

(5, 6) Did the court err in ordering judgment to be entered for the plaintiff ?

(7) Did the court err in denying defendant’s motion to vacate the judgment rendered herein ?

(8) Did the court err in allowing plaintiff to put in evidence concerning the title of the land described in Exhibit A?

The brief in which defendant claims to have presented the points of law deemed material in alleged compliance with Circuit Court Rule 26 is not made a part of the record, and is not therefore before us for consideration. The rule, however, as well as the statute, contemplates the filing of requests which shall apprise the court of the demand for such findings. Doubtless counsel in this instance relied upon the requests for findings filed by plaintiff, which, in our opinion, were of no advantage to him. Only the party whose requests are refused is entitled to complain. We are also of the opinion that there was no such abuse of discretion in denying the motion to vacate the judgment as to warrant the reversal of the order.

It follows that the only questions properly presented for our consideration are those raised by the assignments of error based upon exceptions to the rulings of the court upon the admission of testimony. Markey v. Insurance Co., 164 Mich. 350 (129 N. W. 694). We are of opinion that the court did not err in overruling defendant’s objection to the taking of any testimony under the declaration. Wright v. Dickinson, 67 Mich. 580 (35 N. W. 164, 11 Am. St. Rep. 602). Taken together, we think the assignments fairly present the main question in the case, viz.: Can the vendee in an executory contract for the purchase of lands rescind the contract and recover the portion of the purchase price paid because of defective title to a portion thereof in advance of the time when, by the terms of the contract, the vendor is bound to convey ?

In considering this question, it is to be borne in mind that this is not a case where the vendor had no title at all, and was not in a position to acquire title, but is a case of defective title to a portion of the land, which was susceptible of being perfected, and which, according to the undisputed testimony, would be perfected by decree in the case pending for that purpose. The fact that by the terms of the contract the plaintiff was entitled to pay at any time the entire amount due and demand a deed is of no importance, since he never undertook to avail himself of the right. At the time plaintiff brought suit, he, and not the defendant, was in default. It was not necessary that defendant should have had a perfect title at the time of making the contract. It is sufficient “that the contract is made by the vendor in good faith, and that he has such an interest in the subject-matter of the contract, or is so situated with reference thereto, that he can convey a good title at the proper time.” 29 Am. & Eng. Enc. Law (2d Ed.), p. 608; Dresel v. Jordan, 104 Mass. 407.

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Ostrander, C. J.

text:
    LORANGER v. CARPENTER.
    1. Judgment — Res Judioata — Taxation — Ejectment — Title Under Tax Sale — Partition.
    As against a claimant under a tax purchase, a judgment in ejeotment is res judioata of her interest and claim, where it appears in partition proceedings that in a prior action of ejectment between complainant and the grantor from whom claimant derived her tax title, the tax deed constituting the basis of her claim was offered in evidence, the defendant asked the court to charge that possession held under the deed was a defense to the action, that the court submitted to the jury the claim of adverse possession under the tax deed and the verdict determined the question adversely to defendant in ejectment, who later conveyed by quitclaim her interest to claimant.
    • 3. Partition — Ejectment — Equity Jurisdiction — Adequate Remedy at Law.
    A suit in partition is not defeated by a claim of title on the part of one of several defendants which is clearly so insufficient as to render a trial at law merely a useless formality.
    3. Same —Tax Title — Adverse Possession — Limitation of Actions — Notice to Redeem.
    Nor was it a defense to the suit that defendant had occupied the premises adversely under her tax title since the judgment in ejectment, in the absence of proof that the statutory notice to redeem had ever been served on the proper persons; wherefore no right of possession or of title could be claimed by the tax purchaser.
    4. Same — Duty of Cotenant to Pay Taxes.
    A cotenant of an undivided half interest in land, being under obligation to pay the taxes, could take no interest in a tax title upon the whole parcel purchased by another and conveyed to the tenant in common.
    Appeal from Wayne; Donovan, J.
    Submitted June 14,1911.
    (Docket No. 46.)
    Decided November 3, 1911.
    Partition by Melissa Loranger against Harriet A. Carpenter, Mary P. Ross (now Hislop), and others. Prom a decree for complainant, defendant Hislop appeals.
    Affirmed.

      Devine & Snyder, for complainant.

      Edward E. Kane, for defendant Hislop.
   Ostrander, C. J.

In March, 1905, Melissa A. Loranger, who is the complainant in the case at bar, instituted an ejectment suit against Harriet A. Carpenter and another (a tenant) for an undivided half interest in a certain parcel of land. In that action the defendant Carpenter claimed title to all the land by adverse possession. In that action, some time in the year 1906, the plaintiff recovered a judgment for an undivided half interest in the land, and that judgment was affirmed by this court. Loranger v. Carpenter, 148 Mich. 549 (112 N. W. 125). It appeared in the ejectment suit that Harriet A. Carpenter owned an undivided half of said property acquired by a devise from her mother, Sarah C. Cole; that said Sarah C. Cole was in possession thereof until her death in 1899; that the lands were sold for taxes in the year 1899, were bid to the State, and that Mary P. Ross, now Mary P. Hislop, purchased the land from the State March 23, 1903, and on September 23, 1903, obtained an auditor general’s deed for all the land. About seven months after she acquired the tax title, Mary P. Ross conveyed the land by a quitclaim deed to Harriet A. Carpenter, who later, on June 10, 1907, reconveyed by a quitclaim deed to Mary P. Ross, prior to which date, and on May 28, 1907, Mrs. Carpenter gave a quitclaim deed of an undivided half interest in the land to her son, James Bruce, and previous to that time she gave a mortgage for $200 to William Stevenson, covering the whole parcel. Melissa A. Loranger filed her bill in the circuit court for the county of Wayne in chancery for a partition of the land. Her second amended bill was filed January 26, 1910.

She sets up the source of her title, the judgment in the ejectment suit, and makes Harriet A. Carpenter, James Bruce, William Stevenson, and Mary P. Hislop, née Ross, parties defendant. As to defendant Bruce, she charges that he pretends to have some right, title, or interest in the land under and by virtue of the said deed executed to him by Harriet A. Carpenter May 26, 1907; that William Stevenson pretends to have some right, title, or interest in the premises under the said mortgage executed by the said Harriet A. Carpenter April 2i, 1907. What she alleged with reference to Harriet A. Carpenter’s interest in the original bill we do not know, but in the second amended bill, which is printed in the record, she alleges that the answer and disclaimer of said Harriet A. Carpenter shows that Mary P. Hislop pretends to have some interest in the premises under and by virtue of the said auditor general’s deed, dated September 23, 1903.

Defendant Stevenson answered, setting up and relying upon his said mortgage. Harriet A. Carpenter answered, averring that both complainant and said Carpenter lost all title and interest which they ever had in the property by virtue of the said tax sale, evidenced by the auditor general’s deed of September 23, 1903. She avers that on that date she was in open and notorious possession of the property, and surrendered said possession to Mary P. Hislop, and that the said Mary P. Hislop has held adverse possession of that property for five years and upwárds; that complainant never had possession of the property, and no attempt was ever made to disturb the possession of the said Mary P. Hislop, nor any attempt ever made by complainant to redeem said land from the said tax sale. She disclaims all present right and title to the land and every part of it.

The defendant James Bruce answered, setting up the title of his mother, Harriet A. Carpenter, the auditor general’s deed of September 23,1903, which, it will be remembered, conveyed the entire parcel sought to be partitioned, a conveyance by Mary P. Ross, the holder of said tax title, to Harriet A. Carpenter, which he says was October 7, 1903, by virtue of which conveyance he alleges that Harriet A. Carpenter became owner of the entire premises, the conveyance by said Harriet A. Carpenter to defendant of an undivided half interest in said land. He denies that complainant ever acquired any title to the land or any part of it. Defendant Mary P. Hislop answered, setting up that in March, 1903, she purchased the property from the State of Michigan, and on the 23d of September received a tax deed from the auditor general, which she recorded in the succeeding February. She asserts that immediately after purchasing the property, and on March 23, 1903, she served the statutory notice upon Harriet A. Carpenter, who was the person then in possession of the premises, claiming ownership, entered into negotiations with said Carpenter, and made an arrangement with her by which she surrendered possession of the property to Mrs. Hislop, but took charge of it for Mrs. Hislop and agreed to account to her for the rents of the property; that subsequently, to show the authority of Harriet A. Carpenter, a quitclaim deed was made of said property to said Harriet A. Carpenter; that, after the judgment in ejectment had been affirmed in the Supreme Court, the said Harriet A. Carpenter returned to Mary P. Hislop the deed she had received, which had never been recorded, and also executed and delivered to Mary P. Hislop a quitclaim deed conveying to her any and all interests she acquired under said deed. She further alleges that she has been in the open, notorious, adverse possession of the property since September 23, 1903, under the tax title, and is still in undisputed possession of the property, and that the auditor general’s deed of conveyance being a valid deed, and her possession having continued for five years and upwards, she owns the property.

The partition suit, the case at bar, proceeded to a hearing and decree. It is found and adjudged that complainant owns an undivided half interest in the premises, and that a partition and division thereof ought to be made; that defendant Bruce owns the other undivided half interest in the premises, subject to the mortgage interest of the defendant Stevenson; that neither defendant Carpenter nor defendant Hislop has any right, title, and interest in any of the premises. Three persons are named in the decree to make the partition. Mary P. Hislop has appealed from this decree, and she asserts, first, that the title to land is involved, for which reason she is entitled to have the issues which appear to be made on the face of the pleadings tried in a court of law in an action of ejectment, relying upon the familiar rule that legal titles to land cannot be litigated in equity where the defendant is in possession (Dolph v. Norton, 158 Mich. 417 [123 N. W. 13]), and, second, that titles to land cannot be litigated in partition proceedings. Warren v. Warren, 151 Mich. 95 (114 N. W. 867).

It is also asserted in the brief that while the judgment of this court in Loranger v. Carpenter, supra, determined that the title to an undivided half interest in the land belonged to complainant, that title, and it appears to be claimed that the judgment, was subject to the tax deed which has been mentioned "which was then redeemable and of which all parties then had notice,” that the court did not pass upon the validity of the tax deed in the ejectment suit.

Upon referring to the bill of exceptions in the case of Loranger v. Carpenter, it appears that Harriet A. Carpenter was sworn as a witness and testified, among other things, that she purchased the land from Mrs. Ross for the tax sale for 1899. It also appears that the attorney for the plaintiff offered in evidence a tax deed, dated October 7, 1903, recorded February 13, 1904, in liber 513 of deeds at page 129, to Mary P. Ross. Whether it was received in evidence does not appear. It does not appear to have been marked as an exhibit. It is not a part of the bill of exceptions. Counsel for defendant Carpenter requested the court to charge the jury that the possession of the defendant under the tax deed for the taxes for the year 1899 was a defense to the action. The court instructed the jury that it appeared that during the year 1899 taxes on the land were not paid, and that later they were bought from the State on the sale of the taxes for that year by Mary P. Ross, who by her attorney conveyed whatever rights she acquired to Mrs. Carpenter.

“This tax sale purported to convey to Mrs. Carpenter the title to these 13 acres.”

In another portion of the charge it is said, upon the subject of adverse possession as between tenants in common, that notice of hostile occupancy of land by a cotenant must be brought home to the other cotenants, stating—

“ That was just exactly what Mrs. Carpenter did when she recorded the tax deed for the taxes of 1899. She acquired that title in her own name, and it was notice to whoever had the record title at that time that her holding was adverse.”

We conclude that the tax deed was in evidence; that it was offered for the purpose of showing title in defendant Harriet A. Carpenter to the whole premises; that such effect for it was denied, and that the judgment in the ejectment suit is res judicata the legal effect of said tax title upon the title of the plaintiff in that suit, who is the complainant in this suit; and that, therefore, there was nothing to forbid the court from decreeing in the case at bar a partition of the lands.

It was said in Hoffman v. Beard, 22 Mich. 59, relied upon by appellant, that:

“ If the title, though of a legal character, be undisputed, or perhaps, though denied, if it appear to be so clear and incontestable as to admit of no reasonable doubt, and the court can see that a trial at law would be a mere formality, the bill will be maintained.”

See, also, Wallace v. Harris, 32 Mich. 380; Mertens v. Cook, 135 Mich. 35 (97 N. W. 47); Lucas v. King, 10 N. J. Eq. 277.

Taking up the other contention of appellant and examining it, we are bound to reach the same conclusion. It is said that the question of the claim of title under the tax deed was not raised and decided in the ejectment suit, and could not have been because it had not ripened into a title when that suit was begun. This contention is based upon the fact that, when the statutory notice was served upon Mrs. Carpenter, the period of redemption had not expired, and Mrs. Ross at that time had not yet received her deed from the auditor general. It is said that since the beginning of the ejectment suit the tax title has ripened into an absolute title. One answer to this contention is that it does not now appear that any statutory notice was ever served upon any one entitled to notice under the tax law, and that until such notice has been served and the lawful period for repurchase has elapsed the holder of the tax title can assert thereunder no right of possession or of title or interest in the land. Counsel for appellant, relying upon Hayward v. O’Connor, 145 Mich. 55 (108 N. W. 366), and like cases, says that it is too late for the complainant, who had notice of the sale of land for taxes at the time the ejectment suit was tried, to move to set aside the tax sale. The answer to this contention is that the complainant is not seeking to set aside the tax sale.

But we are not disposed to leave the question an open one. Either Mrs. Carpenter or the person from whom she obtained her title to an undivided one-half interest in the parcel of land in question was, as cotenant of the owner of the other undivided half interest, in duty bound to pay the taxes for the year 1899. Mrs. Carpenter did pay them when she obtained the conveyance of the tax title interest from appellant Ross. Mrs. Ross, it is plain, took nothing by the reconveyance by Mrs. Carpenter.

Upon any theory of the case, the decree of the court below was right, and is affirmed, with costs to complainant.

Bird, Brooke, Blair, and Stone, JJ., concurred.


text:
    SCHWARZSCHILD & SULZBERGER CO. v. CRYAN.
    1. Bail — Exoneration — Capias ad Respondendum — Special Bail-Bonds.
    Sureties who give special bail may surrender their principal within eight days after suit is begun on the bond. Begole v. Stimson, 39 Mich. 288; 3 Comp. Laws, §§ 10047, 10048.
    2. Same — Appearance Bail — Default—Surrender of Defendant.
    As provided by 3 Comp. Laws, § 10049, sureties upon a bond for the appearance of a defendant arrested by capias may surrender him in the same manner and with like effect as in case of special bail, and be exonerated after default in the terms of the bond and within five days after the commencement of an action upon the instrument.
    3. Same — Statutes—Principal and Surety.
    3 Comp. Laws, § 10035, does not apply to a case in which the surrender of defendant has been attempted and exoneration asked for; the fact that plaintiff lost a trial of the original action by reason of the default does not prevent the exoneration.
    Certiorari to Berrien; Coolidge, J.
    Submitted June 15, 1911.
    (Docket No. 61.)
    Decided November 3, 1911.
    Action by the Schwarzschild & Sulzberger Company against Edward Cryan, Monroe H. Morrow, and Edward Dwan, on an appearance bond. An order exonerating the sureties on the bond is reviewed by plaintiff on certiorari.
    Affirmed.

      Cady & Andrews, for plaintiff.

      George W. Bridgman, for defendants.
    The defendant Edward Cryan was arrested upon a capias tested July 11, 1910, upon which was indorsed an order to hold to bail in the sum of $2,000. On the same day (July 11, 1910) the said Cryan and the defendants Morrow and Dwan, as his sureties, made their bond to the sheriff of the county in the sum of $2,000, conditioned that the said Cryan should appear in the action by putting in special bail within 15 days, and by perfecting such bail according to the rules and practice of said court. To each of said sureties the said sheriff gave a bail piece, and defendant Cryan was released from custody. The return day of the writ of capias was August 8, 1910. Special bail was not given. The appearance bond was assigned by the sheriff to the plaintiff August 5, 1910, and on September 7th thereafter suit was commenced by summons upon the bond to recover the penalty thereof. Defendant Cryan and his sureties appeared in court September 12, 1910, and surrendered the principal defendant into the custody of the sheriff, and thereupon applied to the court to be exonerated from their liability as appearance bail. An order to show cause was issued and served upon the plaintiff, a hearing was had, and on September 28, 1910, the court made an order exonerating bail. This is the ruling complained about; and it is said that it is erroneous for the following reasons:
    “ First. That no appearance was made in the original action by putting in special báil as provided for in the appearance bond within 15 days after the service of the writ, and that, by reason of such default, there was left to the plaintiff herein one of two remedies, namely, a suit on the appearance bond, if the plaintiff was satisfied with the sureties, or a suit against the sheriff.
    “ Second. Because the said appearance bond was on August 5, A. D. 1910, duly assigned by the sheriff of the said county of Berrien to the plaintiff herein, and an action was commenced in the circuit court for the said county on the 7th day of September, A. D. 1910, by summons, and process was served on Monroe H. Morrow and Edward Dwan, as sureties on the said bail bond.

      “Third. That by virtue of said‘action at law on said bail bond the plaintiff has elected his remedy to proceed on the appearance bail.

      “Fourth. Because no costs incurred in the action on the appearance bail had been tendered or paid by the bail or his principal when the application for the order was made, and up to the time of the filing of these objections.

      “Fifth. Because of the default of the defendant by failing to put in special bail as provided for in the bond and the default of the sureties on the appearance bail in failing to require the said defendant to put in special bail according to the terms and’ conditions of the bond the plaintiff has now lost a trial in the September term of court, and according to section 10035 of the Compiled Laws of 1897 the time has expired for the surrender of the defendant and the exoneration of his bail.”
   Ostrander, C. J.

(after stating the facts). That the sureties who give special bail may surrender their principal within eight days after suit is begun upon the bond, is held in Begole v. Stimson, 39 Mich. 288. See Lyman v. Giddey, 96 Mich. 401 (56 N. W. 6); Umphrey v. Emery, 121 Mich. 184 (80 N. W. 14); 3 Comp. Laws, §§ 10047, 10048. The statute (3 Comp. Laws, § 10049) provides that, when a bail bond shall have been taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of his bail in the same manner before the same officers and with the like effect as in cases where special bail is given. In McNeal v. Van Duser, 142 Mich. 593 (105 N. W. 1109), exoneration of appearance bail was sustained where, as in the case at bar, the surrender was made after suit had been begun upon the bond. It is said by plaintiff in certiorari that in that case the attention of the court was not directed to the provisions of 3 Comp. Laws, §§ 10034, 10035, and that in the case at bar plaintiff lost a trial in the original action by reason of the default in not putting in and perfecting special bail. Section 10034 provides that proceedings in a suit on the bail bond may be set aside if irregular, or stayed on terms, in order that a trial may be had in the original action. Section 10035 provides that, if plaintiff has not lost a trial in the original action by reason of default in not filing and perfecting special bail, the court may stay the proceedings on the bail bond, upon the putting in and perfecting special bail, paying the costs of assigning the bail bond and of the' proceedings thereon, receiving the declaration in the action, and pleading issuably to the merits, so that the original cause may be tried at the same time if the plaintiff shall so elect, and, if the plaintiff has lost a trial by reason of such default, judgment shall be entered on th& bail bond as security. This section relates, it is clear, to proceedings where no surrender of the principal defendant has been attempted and no exoneration of the bail has been applied for. It does not qualify section 10049, which gives the bail the right to be exonerated upon certain conditions. It is not claimed that the enumerated conditions have not been complied with. The two provisions of the statute may stand together, and may be given effect according to the evident legislative intent. The case is ruled by McNeal v. Van Duser.

The judgment is affirmed.

Bird, Brooke, Blair, and Stone, JJ., concurred.