text:
    MUSHINSKI v. VINCENT.
    Injury to Employé — Assumption op Risk.
    An employé in a sawmill, who was injured by coming in contact with a circular saw beneath the table in which it ran, which saw he knew to be unprotected, was held to have assumed the risk, and to have no right of action against his employer.

      Error to Presque Isle; Emerick, J.
    Submitted October 9,1903.
    (Docket No. 39.)
    Decided November 9, 1903.
    Case by John Mushinski, by next friend, against Vincent D. Vincent, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      I. S. Canfield, for appellant.
    Gr. Covey, Jr., for appellee.
   Montgomery, J.

The plaintiff, who was at the time 19 years of age, was employed in the defendant’s sawmill. He had worked in the same position , two days under an earlier employment, and on a second employment had worked during the afternoon of May 22, 1900, and until 9 o’clock the next day, when he received the injuries in question. A description of the sawmill and the manner of the accident is as follows: The saw carriage runs east and west on a track, as is usual in such mills. On the north side, and near the west end of this track, is a large circular saw, hung in its arbor; and on the same side, beyond the east end of such track, is. the slab-saw table, while on the same side, and between the circular saw and the slab-saw table, are two other tables bearing rolls. There is a space of 22 inches between the slab-saw table and the next table to the west of it, in which the men stand while at work at the carriage. The east end of the carriage track terminates south of and opposite this space. The slab-saw table is 3¶ feet long, east and west, 2 feet and 7 inches wide, and stands upon four timber legs, 2 feet high above the mill floor. Under the table top and between the legs the space was open, except that there was a narrow board near the top on the west end. The slab saw is hung in bearings on an arm that comes up through the mill floor under the south side of this table. It is run by a belt from a shaft connected with a steam engine under the mill floor. In sawing slabs, the operator stands on the north side of the table, pulls the saw up through a slit in the top, makes the cut, and the saw drops back through this slit so that a very small portion of the saw only can be seen above the table top. The saw, 18 inches in diameter, is running all of the time the mill machinery is in motion. While assisting another employé in removing heavy plank from the mill floor to the saw carriage, plaintiff passed through the space between the slab-saw table and the table west of it, with his back to the slab saw, not then in use, and, in making the plank even at the ends on the saw carriage, his foot slipped, the right one came into contact with the unprotected saw under the table, and was cut off. The fact that the saw was not boxed in was open to observation. Indeed, one could not long work in the position which plaintiff occupied without knowing it, and he testified that he did know it. The plaintiff was not warned. The circuit judge directed a verdict for defendant on the ground that the plaintiff assumed the risk.

The plaintiff contends in this court that the question as to whethér the plaintiff appreciated the danger should have been submitted to the jury. We think, however, that the danger from coming in contact with this exposed saw was so obvious that it must be held as matter of law to have been within the comprehension of an ordinarily intelligent person of plaintiff’s age. The case is. ruled by Berlin v. Mershon, 132 Mich. 183 (93 N. W. 248).

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    HENNESSY v. MUSKEGON TRACTION & LIGHTING CO.
    Street Railways — Injury to Passenger — Negligence—Directions or Conductor — Question for Jury.
    The question of the negligence of a street-car conductor in directing a passenger to go upon the rear platform while the 1 car was still in motion is ordinarily for the jury.
    Error to Muskegon; Russell, J.
    Submitted October 9, ' 1903.
    (Docket No. 29.)
    Decided November 9, 1903.
    Cáse by Mary Hennessy against the Muskegon Traction & Lighting Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Turner & Turner and Cross, Lovelace & Ross, for appellant.

      Smith, Nims, Hoyt & JEmvin, for appellee.
   Hooker, C. J.

In this cause there is evidence tending to show that the plaintiff, a married woman, was riding on a street car in Muskegon on her way to the depot. As it approached or passed the place where it was customary to stop cars for passengers going to the depot, she told the conductor that she wanted to get off at the depot, and he rang the gong, and then motioned her to the rear door. She testified also that: “He rang the bell, and told me to go on, motioned to the door;” and again: “He rang the bell, motioned toward the door, and told me to go on. I went out on the platform, and stood there waiting for the car to stop. The car was slowing down then.” She testified further that, while she stood there, the car gave a sudden jerk, and she was thrown on the pavement.

This cause is clearly within the rule laid down in the cases of Bradley v. Railway Co., 94 Mich. 35 (53 N. W. 915), and Etson v. Railway Co., 110 Mich. 494 (68 N. W. 298), unless the fact that the conductor motioned toward the door and told her to go on while the car was in motion distinguishes it, and justifies the conclusion that this was negligence, or that permitting the car to jerk would be negligence under these circumstances, when it would not ordinarily be so, as held in those cases. There is nothing in the testimony justifying a conclusion that the jerk was due to negligence on the part of the motorman. The negligence of the defendant, if there was any, consisted in the act of the conductor in directing the plaintiff to get up and go on while the car was in motion. The conductor is in charge of his car, and his directions are usually followed by passengers. It would not be reasonable to require passengers to lightly disregard them, and they may reasonably believe that it will not be imprudent for them to follow them. We are not willing to say that such a direction as this is negligence in all cases, or that it might not be in others. Certainly a conductor who should send a child or a decrepit or weakly or drunken person to the platform while the car is in motion would be open to criticism, and a jury might, under some circumstances; be bound to find such an act negligence. Ordinarily, it is a question of fact to be left to the jury, and this should have been done in this case.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    SNYDER v. EAST BAY LUMBER CO.
    1. Timber — Conversion—Evidence—Estimates.
    In an action for the conversion of timber purchased by defendant from one who took it from plaintiff’s land, the testimony of defendant’s agent as to the amount of timber actually purchased was not conclusive, where plaintiff introduced the testimony of estimators who had examined the stumps, and who gave their opinions as to the amount of timber taken off.
    2. Same — Damages—Market Value.
    Testimony as to what timber was worth at mills distant 3 and 124- miles, respectively, from defendant’s mill, and that it was worth as much at one mill as another, was competent to enable the jury to arrive at its value at defendant’s mill.
    3. Trial — Instructions—Requests.
    It is not necessary to instruct a jury in the language of a request, where the subject is properly covered by the general charge.
    4. License — Revocation by Lapse oe Time — Removal of Timber.
    A gratuitous parol license to remove timber from land, when no time is fixed, will expire if not acted upon within a reasonable time.
    fi. Same — Reasonable Time — Question for Jury.
    '■Where no time was fixed for the removal of timber under a gratuitous license, what, under the circumstances of the case, would be a reasonable time, was a question for the jury.
    Error to Grand Traverse; Mayne, J.
    Submitted October 9, 1908.
    (Docket No. 43.)
    Decided November 9, 1903.
    Trover by William Snyder against the East Bay Lumber Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. H. Foster, for appellant.

      Thomas Smurthwaite, for appellee.
   Hooker, C. J.

Plaintiff sued the defendant for the conversion of a quantity of cedar logs purchased by it from one Brown, who removed them from plaintiff’s premises. Judgment went against the defendant, which has brought error. Brown claims to have taken the timber under a license. He gave testimony that the plaintiff tried to burn this timber, but did not succeed, when Brown asked why he could not take some wood and timber off, and plaintiff replied that, “the more you take, the less I will have to burn.” Some time later he took off cedar logs which the jury found to approximate 35,000 feet, and sold them to the defendant.

The following are the points relied on:

The plaintiff offered the testimony of estimators who examined the stumps, and gave their opinions as to the amount of timber taken off. The defendant’s agent testified to the amount actually purchased. It was claimed that the latter’s testimony was conclusive, and could not be contradicted by mere estimates. In view of testimony that all of the timber taken was sold to the defendant, we think the point not well taken. The jury were at liberty to find that defendant’s statement was not a true one in the light of the estimates.

The plaintiff called one Payn to prove the value of the timber. He testified that the logs were worth $8 per M. feet up the river 12$ miles distant from defendant’s mill, and that he was authorized to pay $8 for such timber at Traverse City, 3 miles from defendant’s mill, the preceding winter. Defendant’s president testified that the price paid at their mill was $6 per M., and that he paid that to Brown for the timber in question. It is contended that the measure of damages was the price paid at defendant’s mill, and that f 6 should have been the price, as no one contradicted Mr. Mahan. There was testimony that' cedar timber was worth as much at one mill as another, and there is nothing to indicate that there was any other buyer nearer to the defendant than three miles. If the defendant is correct in claiming that the value at East Bay is the measure, we think the testimony given was competent to enable the jury to arrive at such value.

There is no claim on the part of defendant that Brown paid anything for the privilege of taking timber. Under their claim of a license, they say that the court should have given the following requests:

“1. A license is a permission to do some act or series of acts on the land of the licensor without having any permanent interest in it. It is founded on personal confidence, and is not assignable. It may be in writing or by parol. It may be without consideration, and subject to revocation. It protects the licensee in regard to all trees cut under it. So if you find from the evidence that W. L. Snyder, the plaintiff in this suit, told Mr. Brown to go on this 40 acres of land in question, and take such timber as he wanted, then I charge you that this would be a license, together with an interest in such timber as was included in the license, and would protect Mr. Brown and the defendant in this suit for all timber taken under the license and included in it.
“ 2. That if you find from the evidence that Mr. Brown asked the plaintiff if he might go on this 40 acres of land and take stuff — timber or wood — such as he might want, this would amount to a license, coupled with an interest in such timber as he took under the license. What timber he was to take under the license is for you to determine from the evidence in the case; and if you find from the evidence that the plaintiff intended Mr. Brown to take any timber lying upon the ground, — cedar such as Mr. Brown took, — then I charge you that you must find a verdict of no cause of action.”

The court charged the jury as follows:

“As counsel have stated to you in the argument, a license is simply a permission or authority to do something; and in this case a license — if you find there was one— would be an authority or permission for Mr. Brown to go upon this land and cut and remove the timber specified, in the license. If you find there was a license, it will be necessary for you to determine just what timber was intended to be covered, — just what timber the parties had in view at the time of the conversation referred to. If you find that this conversation, as testified to by the witnesses, took place, and that the plaintiff granted the permission or authority to Mr. Brown to go upon the premises and cut and remove the timber, it will be necessary for you to determine just what timber the license covered.
“In this case it is not claimed by the defendant nor by Mr. Brown that he (Brown) paid anything for the license. It was therefore permissible for the plaintiff at any time to revoke it, and, in order to have the license effective, it was necessary for Mr. Brown to enter upon the premises within a reasonable time after the license was given him, and cut and remove the timber. The question for. you to determine, then, in this case, will be, Was there a license given? If so, what timber did it cover? And, after determining that the license was given and the timber that it covered, and finding that it covered the timber in question, then it will be for you to determine whether, within a reasonable time after the license was given, Mr. Brown entered upon the premises and cut and removed the timber. In other words, a license without consideration will expire without any act of the parties if the person to whom the license was given does not, within a reasonable time after the giving of said license, act under it. Now, it is for you to determine — provided you find there was a license, and that it extended to the'timber in question — whether Mr. Brown acted within a reasonable time, or whether the license had expired by reason of his not acting within such reasonable time. To determine what is a reasonable time, you should take into consideration all the facts and circumstances appearing in the case,— the location of the land, its character, the character of the timber, the market, the opportunities for getting it to the market, the relationship of the parties and their residence, the purpose for which the land was purchased and held; in fact, you should take all the evidence in the case, and from that determine whether the parties acted within a reasonable time.”

We think that the instruction given sufficiently covered the requests, if they were not objectionable for the statement that this was a license coupled with an interest.

Was it error to instruct the jury that the license would cease to protect without revocation ? The plaintiff’s counsel requested an instruction that,. under the circumstances of the alleged license, an omission to act under it for two years was an unreasonable delay. The court left the question of time to the jury." The defendant cannot complain of this. The nature of this license was inferable from the circumstances, and the rule is that, when a time is not fixed, a gratuitous parol license must be acted on within a reasonable time. See Hill v. Hill, 113 Mass. 103, 107 (18 Am. Rep. 455); Gilmore v. Wilbur, 12 Pick. 120 (22 Am. Dec. 410).

It was competent to leave to the jury the question whether the parties understood, and whether Brown had ■ the right to understand, that this was more than permission to take wood or timber for a limited time, and what time would be reasonably within the contemplation of the parties.

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

The other Justices concurred.


text:
    MERTENS v. COOK.
    1. Partition — Claim of Title — Demurrer.
    Where, by a demurrer to a bill for partition, defendant admits that the land is owned in common, complainant is entitled to relief in equity, notwithstanding an allegation that defendant claims title, and refuses possession and participation in the profits.
    2. Same — Parties—Heirs—Administrator.
    A bill for the partition of lands among heirs is not defective for failure to make the administrator of the estate a party, where it shows that the ancestor left no debts, or where it does not appear that the estate was administered.
    Appeal from Sanilac; Beach, J.
    Submitted October 9, 1903.
    (Docket No. 37.)
    Decided November 9, 1903.

      Bill by Emma Mertens and Ada Leathers against "William W. Cook for a partition. From" an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      E. C. Babcock, for complainants.

      Wilford Macklem, for defendant.
   Hooker, C. J.

This is an appeal from an order over- • ruling a demurrer to a bill in chancery for partition. The bill alleges that the complainants own a tenth interest in the premises as heirs at law of Susannah Leathers, one of ten children, and heirs of Samuel and Eva Cook, deceased, and that the defendant is the owner of the remaining nine-tenths by purchase from the other heirs of said ' Samuel and Eva Cook. It also alleges ownership in fee by Samuel Cook during his lifetime, a life estate by Eva Cook, his widow, and that said defendant has been in possession since the death of Eva Cook, and refuses to-permit complainants to enter or occupy the premises, or to account for the rents and profits, claiming title thereto. The grounds of demurrer are (1) want of equity on the face of the bill; (2) adequate remedy at law; (3) right of trial by jury to try title in an action at law; (4) allegation in bill that defendant claims entire title; (5) face of bill shows action at law is the proper remedy.

There is no substance in the grounds of the demurrer. If, as the bill states, the land is -owned in common, the-complainants have a right to partition, and equity is a proper forum to obtain it. The action of ejectment would not partition the premises. • While the bill states that defendant refuses possession and participation in the profits, if the bill states the truth this is a mere subterfuge, without substantial foundation. In the case of Hoffman v. Beard, 22 Mich. 59, it was held that purely legal titles are to be tried at law. There the case was heard, and the bill was dismissed. On review it was said that the trial “court might, in its discretion, have dismissed the bill, or suspended proceedings till complainants should have an opportunity to try the title at law.” Such a course was' taken in the later case of Fenton v. Mackinac Circuit Judge, in a case where the testimony showed that such a defense was made in good faith. See Fenton v. Mackinac Circuit Judge, 76 Mich. 405 (43 N. W. 437). In the present case there is no such defense. The demurrer admits (for the purpose of this hearing) the truth of the allegations of the bill. If they are true, defendant has not full and exclusive title.

We need not concern ourselves with the question' of accounting, or failure to make parties the administrators of Samuel Cook or Susannah Leathers, if there be such. The bill shows upon its face that Cook left no debts, and it does not show whether Mrs. Leathers’ estate was administered or not.

It is said that the bill omits to show that the defendant acquired the title of Abraham, one of Samuel Cook’s heirs, and that he is a necessary party. The bill states that William W. Cook did acquire such title, and owns it, but omits to state the fact or date of conveyance. Moreover, no such .ground of demurrer is stated, and the same may be said regarding the prayer for an accounting. The right to partition is a sufficient ground for filing this bill.

The court properly overruled the demurrer, and his ■order is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    MORRISON v. KENT.
    1. Counties — Claims—Superintendents op Poor — County Auditors — Poor Fund.
    Act No. 540, Local Acts 1903, § 7, providing that no bills against Saginaw county shall be audited or allowed in any other manner than provided in the act (i. e., by the board of county auditors), makes it obligatory upon the superintendents of the poor to have their expenditures audited by the board, notwithstanding subdivision 7 of section 4506, 2 Comp. Laws, authorizing them to draw upon the county treasurer for such expenditures.
    2. Constitutional Law — Introduction op Bills.
    A statute enacted after the adoption of an amendment to the' Constitution, upon a bill introduced before that time, and which could only be sustained under the amendment, was. valid, although the amendment was not adopted until after the expiration of the first 50 days of the session permitted for the introduction of bills.

      Certiorari to Saginaw; Snow, J.
    Submitted October-20, 1903.
    (Calendar No. 20,164.)
    Decided November 9, 1903.

      Mandamus by Frank Morrison to compel Fred W, Kent, treasurer of Saginaw county, to pay an order drawn by the superintendents of the poor. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Weadock & Purcell, for relator.

      John F. O'Keefe, for respondent.
   Montgomery, J.

The relator presented to the respondent, as county treasurer, ¿n order drawn in relator’s favor by the superintendents-of the poor of Saginaw county, and demanded payment thereof. Payment was refused for the reason that the relator’s claim had not been audited by the board of county auditors. On application to the circuit court, mandamus was granted, and the case is brought here for review.

At the spring election of 1903, section 10 of acticle 10 of the Constitution was amended so as to read:

“Sec. 10. The board of supervisors, or, in the counties of Saginaw, Jackson, Washtenaw, Kent, and Wayne, the board of county auditors, shall have the exclusive power to fix the compensation for all services rendered for, and to adjust all claims against, their respective counties, and the sum so fixed and defined shall be subject to no appeal.” Pub. Acts 1903, p. 453.

At tbe legislative session of 1903, Act No. 540, Local Acts 1903, was passed, establishing a board of auditors for Saginaw county, and prescribing their powers and duties. Section 1 of this act reads in part as follows:

“ No bills against the county of Saginaw shall be audited or allowed in any other manner than provided for in this act, except the bills of the county drain commissioner, and such expenditures as may be authorized by t-he board of supervisors of said county at any regular, special, or adjourned session thereof, where payment shall be provided for in the resolution authorizing the same.”

The circuit judge was of the opinion that this section did not abrogate the provisions of subdivision 1 of section 4506 of the Compiled Laws, which authorizes the superintendents of the poor to draw from time to time on the county treasurer for all necessary expenses incurred in the discharge of their duties, and directs the treasurer to pay such draft out v>f moneys placed in his hands for the support of the poor, and that, under this and other provisions of the act relating to the superintendents of the poor, full control of the funds, raised for the support of the poor by counties is given to the superintendents, and has not been withdrawn by the act of 1903; and it is contended in this court by relator’s counsel that the superintendents of the poor constitute a corporate body, whose powers are not affected by the act of 1903.

The fact that the superintendents may make contracts which bind the county does not necessarily establish that the bills for work performed under such contracts may not or should not be audited by a distinct auditing body. Indeed, such fixed allowances have been audited in many instances by the. boards of supervisors. People, ex rel. Bristow, v. Supervisors of Macomb Co., 3 Mich. 475; People, ex rel. Douvielle, v. Board of Supervisors of Manistee Co., 40 Mich. 589. The language of section 7 of the act of 1903 is very broad, and includes all claims against the county, excepting certain distinct claims. The inference is irresistible that the exceptions stated are the only ones intended. It follows that the claim in question is within the act.

The point is made in this court that, as the bill which was finally enacted into a law after the Constitution was amended was introduced at a time when its provisions would have been unconstitutional, the spirit of the provision requiring bills to be introduced within the first 50 days of the session was thereby violated. This contention cannot be allowed. The practice of the legislature has been in harmony with the action taken in this case for many years. To admit relator’s contention would work havoc in legislation which has stood unquestioned up to this time. We think it is enough to expect or require that a statute shall be constitutional when enacted.

The order of the circuit court is reversed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    VALADE v. MASSON.
    1. Subscriptions to Stock — Fraud—Gifts.
    ■ Fraud in obtaining subscriptions to stock is not shown by evidence that, after the execution of the subscription contract, the subscriber obtaining such subscriptions received from another subscriber an additional share of stock as a gift.
    2. Contracts — Discharge—Notes—Evidence.
    A contract for the purchase of a horse, executed by a number of subscribers for shares therein, provided that the purchase price should be secured by joint notes. Only a part of the subscribers signed the notes, and there was no evidence that they were received in satisfaction of the contract. Held, that an action for the purchase price might be maintained against a subscriber to the contract.
    3. Sale — Tenants in Common — Partnership.
    Where the owner of a horse sold to each of several subscribers •a one-sixteenth interest therein, the purchasers became tenants in common; and the fact that they intended to, and some ■of them did, subsequently form a partnership based upon the ■ownership of the horse, did not affect the character of the ■original contract of purchase.
    Error to Monroe; Lockwood, J.
    Submitted October 21, 1903.
    (Docket No. 51.)
    Decided November 9, 1903.

      Assumpsit by Jerome J. Valade against Joseph Masson ■upon a contract of subscription for the purchase of a horse. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Thirteen persons, including the plaintiff and defendant, entered into an agreement January 14, 1898, with Howe & Grindell, for the purchase of a certain stallion, said contract reading as follows:
    “Tartar, No. 19;755.
    “ Howe and Grindell agree to sell the above-named stallion for $1,600 to the other undersigned subscribers, who, wishing to improve their stock, agree to pay Howe and Grindell $100 for each share in said stallion.
    “Capital stock, $1,600; No. shares, 16.
    “Payment to be made cash; or one-third in one year, one-third in two years, and one-third in three years, secured by joint notes, with interest.
    “1st payment Sept. 1st, 1899.
    “2d payment Sept. 1st, 1900.
    “ 3d payment Sept. 1st, 1901.”
    Twelve shares of the stock were subscribed, two parties subscribing for a half share each, Howe & Grindell retaining four shares. This' contract was signed by Howe & Grindell and by the thirteen subscribers. On February 9th following, seven of the contractors, including plaintiff and defendant, executed to Howe & Grindell three promissory notes, aggregating $1,600, in accordance with the terms of the contract. Howe & Grindell immediately indorsed a payment upon them of $400, being the amount of the shares held by them. Plaintiff paid $100, and in the presence of the others his name was then erased from the notes. On February 12th following, eight of the original contractors and Howe & Grindell executed articles of copartnership under the name of the Newport Horse-Breeding Company. They elected a president, secretary, treasurer, manager, and board of directors, prescribed the duties of each, and provided for a division of the earnings. These articles of partnership were signed by two who did not sign the notes, and one who signed the notes did not sign the articles of copartnership; but all were subscribers to the original contract.
    The enterprise was not a success, and on May 6,1899, a paper was executed dissolving the partnership by mutual consent, except so far as it was necessary to continue it for the final liquidation and settlement of the business. This was signed by ten, including the parties to this suit and Howe and Grindell. On the same day another paper was executed, substantially to the same effect as the other, except that it directed one of their number (Rivard) to sell the horse, pay for his keeping and expenses, and divide the proceeds among the sixteen shares of stock. Rivard did as directed, sold the stallion, paid all the debts of the partnership, and divided the proceeds — a small amount —among the shareholders, including the defendant. This agreement was signed by nine. None of the agreements except the first states the amount of shares held by the makers. Sometime between the date of the original contract and the date of executing the notes or the articles of copartnership, plaintiff became the owner, by gift, of another share. . I find no evidence, except by inference, who gave him this share. In June, 1898, plaintiff purchased from Howe & Grindell the notes and contract, paid therefor $650, and took proper assignments. On April 16, 1900, plaintiff released one of the makers of the notes (John M. Beaudrie) from liability thereon. Defendant has paid nothing either upon the notes or his contract of subscription.
    Plaintiff declared upon the original contract of subscription, the notes, and the common counts. Defendant gave notice of several defenses, — among them, that (l) the relations between the parties were those of partners, that the partnership had never been settled, and that equity alone has jurisdiction; (a) the contract and notes were obtained by fraud. The court instructed the jury that there could be no recovery upon the notes, because the release of one of the makers changed the liability of the others, and vitiated the notes. Recovery was had upon the original contract; the court instructing the jury that the plaintiff was entitled to recover unless plaintiff was guilty of fraud in inducing defendant to believe that he had subscribed and paid for two shares of the stock, when in fact he had subscribed and paid for only one. The jury rendered a verdict for the plaintiff.

      Willis Baldwin and John O. Zabel, for appellant.

      O. A. Golden, for appellee.
   Grant, J.

(after stating the facts). Plaintiff subscribed for only one-sixteenth interest. The record is barren of any evidence tending to show any intended fraud by any one in subscribing for the stock. Plaintiff paid Howe & Grindell for his one share. That contract was made in good faith by the plaintiff and all the others. Afterwards, but the precise time is not shown, plaintiff became the owner of another share by gift, but who gave him this share does not clearly appear; neither is it material. It was before the articles of partnership were executed. There is testimony to show that when the notes were executed he stated that he owned two shares. The contract being valid, each subscriber was bound by it, and liable for the amount of his subscription. Any subscriber could thereafter dispose of his stock for whatever consideration he saw fit to receive, or without any consideration. The court might therefore with propriety have instructed the jury that there was no evidence of fraud on the part of the plaintiff in the execution of the contract. The question of fraud, however, was left to the jury, which determined, and we think properly, that the plaintiff was not guilty of any fraud. It follows that this case is not within the principle enunciated in Zabel v. Telephone Co., 127 Mich. 402 (86 N. W. 949); Comstock v. Howd, 15 Mich. 237; and Moore v. Elevator Co., 122 Mich. 48 (80 N. W. 1015).

The contract of subscription has never been canceled. There was no agreement, express or implied, at the time of the execution of the notes or of the contract of partnership, that this contract should be abandoned. In order to defeat recovery upon it, it must appear that the notes were received in payment and satisfaction of it. There is no evidence that they were so received. The contract itself provided that the consideration (that is, each one’s share subscribed) was to be secured by a joint'note, with interest. Furthermore, the notes were not executed by all the subscribers. This would be an additional reason on the part of Howe & Grindell not to receive the notes of part of the subscribers in payment of the whole subscription, and there is no evidence that they did so intend.

This contract was not a partnership affair. That the subscribers for this stock intended to subsequently form a partnership based upon the ownership of the horse did not make the original contract one of partnership. Howe & Grindell sold to each of the subscribers a one-sixteenth interest in the horse. By this means they became tenants in common of the horse, each subscriber owning an undivided interest to the amount of his subscription. That some of them afterwards formed a partnership to run the horse does not affect the character of, or the liability upon, the original contract.

Judgmont affirmed.

The other Justices concurred.


text:
    PEOPLE, ex rel. ANDERSON, v. BYERS.
    Elections — Ballots—'Writing in Candidate’s Name.
    An election ballot with a cross in the circle under the party name, and the name of a candidate thereon erased, and the name of a candidate for the same office on an opposing ticket written in, cannot be counted. Act No. 214, Pub. Acts 1901.
    Error to Van Burén; Carr, J.
    Submitted October 26, 1903.
    (Docket No. 220.)
    Decided November 9, 1903.

      Quo warranto proceedings by the People of the State of Michigan, on the relation of David Anderson, prosecuting attorney, against Charles W. Byers, to try the title to the office of supervisor of Hamilton township. From a judgment for respondent, relator brings error.
    Affirmed.

      Charles A. Blair, Attorney General, and David Anderson, Prosecuting Attorney (Lincoln H. Titus, of counsel), for appellant.

      Thomas J. Cavanaugh and L. A. Tabor, for appellee.
   Montgomery, J.

This is a proceeding by quo warranto to try the title to the office of supervisor of Hamilton township, Van Burén county. The case was presented to the circuit court upon an agreed statement of facts, judgment found for respondent, and. the relator brings error.

The sole question presented is whether a ballot with a cross placed under the party emblem or name, and from which the name of respondent was erased and the name of the candidate appearing on the opposing ticket written in, should be counted for such opposing candidate. The circuit court held that it should not be so counted.

The statute of 1891 (Pub. Acts 1891, Act No. 190, § 36) read as follows:

“Any elector may mark or stamp a cross in the space below the party name printed at the head of the ballot. If marked thus, such ballot shall be counted for all the nominees of such party whose names appear on the ballot in that column. If the voter shall have erased some name in the column, or marked a cross before the name of a candidate in some other column for the same office, or written in a name under the name of any candidate, the name of such candidate shall not be counted as voted for by such ballot, but, if the name of the candidate shall have been erased, such vote shall be counted for the candidate whose name in another column shall have been marked, or whose name shall be written under the name erased.”

We held that such a ticket should be counted for the person whose name was written in. Attorney General, ex rel. Scott, v. Glaser, 103 Mich. 411 (61 N. W. 648).

In 1901, however, the statute was amended by Act No. 314. Section 36 of that act contains the following provisions :

“ The elector shall then, and without leaving the room, go alone into the booth, which is unoccupied, and indicate the candidate or candidates for whom he desires to vote, as follows: If he desires to vote a straight ticket, he must make a cross in the circle under the name of his party at the head of the ballot. Nothing further need be done. Where only one candidate is to be elected to an office, and the elector desires to vote for a candidate not on his party ticket, he should make a cross in the circle under the name of his party, and also make a cross in the square before the name of the candidates for whom he desires to vote on the other ticket. * '* * If the elector wishes to vote for a candidate not on any ticket, he must write or place the name of such candidate on his ticket opposite the name of the office, arid make a cross in the circle under the party name. A ticket marked with a cross in a circle under a party name will be deemed a vote for each of the candidates named in such party column whose name is not erased, except those candidates where a cross is placed in the square before the name of some opposing candidate on the opposing ticket, or where a name is written or pasted on the party ticket of some candidate whose name is not printed as a candidate on any party ticket. * * * If the name of any person who is not a candidate on any ticket is written or placed on the party ticket opposite the name of the office, and there is a cross in the circle under the party name, the name so written or placed - shall be counted one vote for the person so mentioned, whether the original name on the party ticket is erased or not, excepting cases where there is a cross in the square before the name of some opposing candidate on some other party ticket.”

These provisions seem to be plain, and point out specifically the manner of voting for a candidate not on the voter’s party ticket; that is, if the name of such candidate appears on the ticket in another column, he may indicate his desire by placing a cross opposite his name; if the name does not appear on the ticket, it may be written in place of the name. We cannot assume that the amendment of this act was purposeless, and must infer that the legislative intent was to change the law as it existed before 1901. A similar statute was construed as contended for by respondent in Vallier v. Brakke, 7 S. Dak. 354 (64 N. W. 184).

Judgment is affirmed.

The other Justices concurred.


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    ROHDE v. MARQUIS.
    Agency — Money Had and Received.
    Testimony that defendant acknowledged drawing a contract and deed for the sale of lands, that the sale had been made by a real-estate agent who had always done her business, that she had great confidence in him, and offered to compromise-to avoid litigation, has no tendency to show that the real-estate agent acted as her agent in receiving payments on the-contract after she had sold the contract to him.
    Error to Wayne; Donovan, J.
    Submitted October 21,. 1903.
    (Docket No. 53.)
    Decided November 9, 1903.

      Assumpsit by Charles Rohde against Euphemia H. Marquis for money had and received. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      William E. Henze, for appellant.

      Stanton Clarice, for appellee.
   Hooker, C. J.

Plaintiff has appealed this cause.. Everding was a real-estate agent. The defendant earned some money by school-teaching, and Everding heard that she had it, and asked her to buy the lot over which this controversy arose. He said that he knew of a party who-had it for sale. She purchased the lot, and did not pay him a commission. Afterwards he came to her and asked if she wanted to sell the lot, and she replied that she did if she could make anything and could make his commission ; and he arranged a deal with some persons named Harwood, for which the defendant paid Everding a commission. She did not meet the Harwoods, the matter-being arranged through Everding, who brought to her the cash payment, $50. She then signed the contract in duplicate, retaining one copy and delivering the other to* Everding, who took it away, and it is inferable from what followed that he delivered it to the Harwoods. This contract was dated January 16, 1894. Subsequently the defendant received from Everding one payment of interest, which he received from the Harwoods. Defendant had not left the contract in his hands, nor had she authorized him to collect upon it, and she testified that she supposed that he brought the interest to her by Harwood’s direction.

On May 28, 1895, defendant executed a deed to Charles Rohde, the plaintiff, covering these premises. He testified that he had some money in the hands of an agent, one Saenger. Everding went to Rohde about this, and arranged for the purchase of the contract made by the defendant and the Harwoods, and he paid Everding $384 for the interest in the contract and a deed of the premises. He did not see the defendant, but Everding delivered to him the deed mentioned and the contract.

The defendant’s testimony shows that after selling the land to the Harwoods upon contract, and receiving one payment of interest as stated, Everding, who knew of another sale made by her, and that she had some money from that source, asked her if she did not want to buy a couple of lots in his subdivision. It resulted in a deal whereby she took the two lots, giving in exchange to Everding a lot on Fischer avenue, the Harwood contract, and $500 in cash. She passed the contract over to Ever-ding, and appears to have made a deed to Rohde, whom she did not know in the transaction, and delivered it to Everding. She gave no more attention to the matter until one day Everding called on her, and had a deed to the Harwoods,'which he asked her to sign, saying that they had paid up. This was a deed to the Harwoods, dated May 6, 1899. It was true that they had made full payment on their contract to Everding, and, while he had made two payments of interest to Rohde, it would seem that he had appropriated, or at least not paid over, the balance. Everding is now dead.

The only testimony that in any way supports the claim of the plaintiff that defendant has received money to his use is that of two persons, one an insurance agent and one a lawyer, who called upon defendant in plaintiff’s interest. They testified that she acknowledged drawing the contract and the deed to the Harwoods; that the sale had been made for her by Everding, and that he had acted for her in the transaction; that he had always done her business, and she had great confidence in him, and offered to compromise to avoid litigation. There is nothing in this testimony that tends to show that Everding acted as her agent in receiving payment from .the Harwoods after she had sold the contract to him, if he ever had authority to make collections for her. It is proper to say, therefore, that the uncontradicted proof shows that the plaintiff should not have been permitted to recover upon the money counts, of which the declaration consisted, and the bill of particulars filed with it, and, as there is no ground upon which a recovery could be had under the pleadings, it is unnecessary to discuss other questions at length. The charge was more favorable to the plaintiff than he had a right to expect it to be.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, O. J.

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    THORN v. MORGAN & WHATELEY CO.
    1. Sale — Action for Price — Recoupment.
    In an action to recover the purchase price of a part of the goods sold under a contract, defendant may recoup damages for a failure seasonably to deliver the balance of the goods ordered.
    2. Same — Pleading.
    Where defendant gave plaintiff an order for goods, and on a subsequent day canceled a portion of it, and gave a new order for goods in place of those canceled, he cannot, under a notice of recoupment referring to the original order, recover damages for a failure to deliver goods purchased under the second order.
    3. Same — Damages—-Failure to Deliver Goods.
    Where a purchaser can go into the market and procure the kind of goods contracted for, the measure of damages for nondelivery is the amount over the contract price necessary to replace the goods.
    4. Same — Goods Sold to be Manufactured. , •
    Where a seller of goods knows that they are purchased to be manufactured, and that prompt delivery is necessary to enable them to be manufactured and delivered to the trade, the buyer is entitled to recover, in case of non-delivery, if he cannot purchase them elsewhere, expenses incurred in taking orders under a bona fide expectation that the goods would be delivered in time to fill the orders, and prospective profits on orders actually and seasonably taken.
    Error to Wayne; Donovan, J.
    Submitted October. 21, 1903.
    (Docket No. 63.)
    Decided November 9, 1903.

      Assumpsit by William E. Thorn, executor of the last will and testament of William T. Garner, deceased, against the Morgan & Whateley Company, for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Buell, Culver & Shepherd (Craves, Hatch & Millis, of counsel), for appellant.

      Corliss, Andrus, Leete & Joslyn, for appellee.'
   Hooker, O. J.

The plaintiff, a wholesale dealer in New York, broüght this action to recover for goods delivered under several orders made by the defendant, bearing different dates. The defendant made the defense of recoupment, based upon an alleged breach of contract in the delivery of the goods; some not having been seasonably delivered, and some not delivered at any time. Plaintiff’s claim included items aggregating $1,685.53. The jury returned a verdict for $1,800 in favor of the defendant, and plaintiff has brought the case to this court by writ of error.

The notice filed with defendant’s plea claims damages for a breach of two contracts, — one made on or about March 22, and the other on or about April 26, 1901. A claim is made for some goods ordered on March 22d and April 26th, which were seasonably delivered, but not for all goods ordered on these dates. The defendant proved contracts made upon both dates, and damages growing out of a nonperformance of the same, and error is assigned on the rulings that admitted evidence of such damage, and permitting a verdict therefor.

The circumstances of the transaction of March 22d, as stated by the defendants witnesses, are as follows: It was engaged in the manufacture and sale of certain classes of garments, sold by samples, through traveling agents, from prints which it was in the habit of purchasing from the plaintiff and other dealers upon terms of payment understood by the trade and by them. On March 21, 1901, one Oruttenden, plaintiff’s traveling agent, called at the defendant’s place of business, and asked its manager if he wanted “to buy flannels for the fall trade,” and the latter answered, “Yes, I think I do, if you have the right stuff at the right price,” to which Oruttenden replied, “I think I have,” and said further, “The cards [i. e., samples of cloth on cards] will not be here until tomorrow morning.” The manager responded, “All right; we will think of it until then; ” and added, ‘ ‘ I have some goods in the meantime, I want you to take that order tonight ” (so that it might be ¡sent immediately), “and so he took the order of the 21st of March; and I says, ‘ You come in here tomorrow, and I will give you an order for the veloutines.’ He did not have the cards.” On the next day Cruttenden called, and an order was given for other goods. At a subsequent visit, on April 26th, Cruttenden received an order for further goods. It appears that a portion of the order of March 22d was canceled on June 14th, and a new order made for goods in place of those canceled, and that portions of both orders (March 22d and April 26th) were canceled on May 7th.

We understand that some of the items contracted for on March 22d and April 26th were delivered at once, and the price is sued for in this action, but that goods were then contracted which were not delivered seasonably, if at all. Counsel for plaintiff claim that there could be no damage as to the goods thus delivered, and that the rest are not involved in this action, and therefore defendant cannot recoup damages upon the contract of that date. This position, in the abstract, is not sound. The contracts of March 22d and April 26th are sued upon, which fact authorizes proof of damage as to all items of such contracts. The fact that items not sued upon were not due when the action was brought makes no difference, and we cannot sustain the claim that each article ordered constituted a separate contract. Benjamin v. Richards, 51 Mich. 110 (16 N. W. 255). In this connection we should allude to the transactions of May 7th and June 14th. No notice of recoupment was given as to transactions of these dates, but it is claimed that the orders were substituted for those of March 22d and April 26th; in other words, it was then agreed by the parties that items of the former dates should be canceled, and some other goods ordered. These were new and independent contracts, and the notice does not authorize a recoupment for items ordered on these later occasions. Knitted Mattress Co. v. Griggs, 154 Mass. 5 (27 N. E. 774). It follows that testimony concerning these transactions was not admissible.

The other questions that need be considered relate to-the subject of damages. The damages claimed are said to have been (1) amount over contract price necessary to replace the goods; (2) commissions paid defendant’s traveling men for soliciting orders, which defendant could not fill for want of goods; (3) loss of anticipated profits on orders which defendant could not fill; (4) loss and injury to defendant’s general business. The first is the common measure of damages, where one can go into the market and procure the kind of goods contracted for, and is fully adequate compensation usually in such cases. Where this cannot be done, another measure of damages is proper. It is shown in the case that many of these goods were ordered for the fall trade; that orders for garments had to be taken early, to give time for manufacture; and therefore that prompt delivery of samples and material for sample garments was indispensable. If, as claimed, the plaintiff knew and understood this, losses incurred by reason of nondelivery were recoverable, if the defendant could not have avoided such loss by purchasing goods elsewhere. Expenses incurred in taking orders under the bona fide expectation that the goods would be delivered in time to fill such orders would be recoverable, and prospective profits on orders actually and seasonably taken, which defendant was prevented from filling by plaintiff’s failure, might be considered. It should be understood, however, that expenses incurred after it became apparent that the orders could not be filled could not be recovered, and that prospective profits, beyond the rule above stated, would be speculative, and not recoverable. We understand that counsel for defendant disavow a claim of damages for injury to defendant’s general business.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    M’CURDY v. DANIELL.
    Arbitration and Award — Fraud—Estoppel.
    Where, through the fraud of defendant’s agent, a provision in an arbitration agreement for an award by two of three arbitrators was not stricken out before it was executed, the fact that complainants retained one of the original agreements, and might have discovered the error, did not estop them from having an award made by two of the arbitrators set aside in a court of equity.
    Appeal from Houghton; Streeter, J.
    Submitted October 23, 1903.
    (Docket No. 72.)
    Decided November 9, 1903.
    Bill by William M’Curdy and Alexander M’Curdy, co-partners as M’Curdy Brothers, against Susan Daniell, to set aside an award of arbitrators. From a decree dismissing the bill, complainants appeal.
    Reversed.
    The parties to this suit, having certain differences, agreed to submit them to arbitration. A contract was drawn providing for three arbitrators, one to be chosen by each párty to the controversy, and the two to choose a third. The award of any two was to be binding. Complainants objected to an award by two of the arbitrators, and insisted upon an award to be signed by the three. It is claimed by the complainants that this was agreed to, and that the provision for an award by any two of them was to be stricken from the agreement, and the contract left to provide for an award by the three. It is charged in the bill that the agent of the defendant erased this provision in two places in the contract, but not in a third one, and that all signed the contract with the understanding that this provision was stricken from it, and that the contract required a unanimous finding by the arbitrators. The award was signed by only two of them. This bill is filed to set aside this award because it is not in accord with the provisions of the contract. The circuit judge entered a decree dismissing the bill on the ground that the contract was signed in triplicate, was acknowledged b.y the parties, and a copy kept by the complainants until after the award was made, and that the mistake was entirely the mistake of the complainants, from the consequences of which the court cannot relieve them.

      Joseph F. Hambitzer, for complainants.

      Kerr & Petermann, for defendant.
   Grant, J.

(after stating the facts). There is no real dispute as to the facts. The evidence is overwhelming that it was agreed to strike out this provision of the contract, and that the complainants signed it with the understanding and belief that the defendant’s agent, who did the business for her, had erased it. He did in fact erase it in two places, but left it unerased in one. While it is true that the articles of submission were executed in triplicate, and that the complainants retained one, it is manifest that they rested upon the supposition that all the erasures had been made, and that the articles required a unanimous award.

We do not think the complainants are estopped to set up this claim by the fact that they retained one of the originals, and might have discovered the error. It was not entirely the mistake of the complainants. Defendant’s agent, who made the contract for her, was trusted to make the necessary erasures. His failure to do so was a fraud upon the complainants. It is immaterial whether he (the agent) so intended or not. He knew that the provision for an award by two was to be stricken out. He agreed and undertook to strike it out. He failed for some reason to do it. The contract under which the arbitrators acted was not the contract agreed upon. We think the complainants are entitled to the relief prayed for.

Decree is reversed, and decree entered in this court for the complainants, with the costs of both courts.

The other Justices concurred.


author: Carpenter, J.

text:
    SKINN v. REUTTER.
    1. Torts — Intervening Aot of Third Party — Damages.
    A person who sold hogs to a dealer, knowing them to be afflicted with a dangerous and infectious disease, was liable to one who purchased them of the dealer, and placed them with other hogs, for the value not only of the hogs purchased, but also of those which died from the contagion, where neither the original nor subsequent purchaser knew or had notice of their diseased condition.
    2. Same — Act Dangerous to Human Life.
    A tort feasor cannot escape liability because the act of an innocent third party intervened between his wrong and plaintiffs injury, where the wrong committed was one imminently dangerous to human life.
    Error to Ingham; Wiest, J.
    Submitted June 10, 1903.
    (Docket No. 59.)
    Decided November 17, 1903.
    C.ase by Joseph Skinn and another against Gottlieb Reutter and another for selling certain diseased hogs. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Black & Dolan, for appellants.

      L. B. & H. M. Gardner, for appellees.
   Carpenter, J.

The declaration in this case alleges that defendants unlawfully sold certain hogs to a firm of live-stock dealers, knowing that said hogs were “afflicted with a dangerous and infectious disease; ” that they did not notify said firm of this fact; that said firm, in ignorance of the fact that said hogs were so infected, sold and delivered them to plaintiffs, who, without negligence on their part, placed them in a pen with their sound swine, which contracted the disease and died. The defendants pleaded the general issue. The case came on for trial before a jury, and, after the plaintiffs had introduced some testimony, and offered to prove that the intervening purchasers ‘ ‘ were without knowledge of any diseased condition of the hogs,- and that there were no facts or circumstances that would have put them upon such notice, ” the trial court directed a verdict for the defendants upon the ground that the plaintiffs had no cause of action. The question in this case relates solely to the correctness of this ruling.

It is the contention of the defendants’ counsel, and it was the view of the trial court, that there could be no recovery, because the act of a third person intervened between de-'" fendants’ wrong and plaintiffs’ injury. Is such intervention a sufficient defense ? In considering this question it should be remembered that plaintiffs’ claim is not based upon the ground of a breach of defendants’ contract with the firm to whom they sold the hogs. It is based upon the theory that defendants committed a wrong in selling, as sound, hogs which they knew to be afflicted with a contagious disorder. Nor should we forget that the act. of the intervening third person was in no sense wrongful; because, as already stated, plaintiffs offered to prove that the intervening purchasers “ were without knowledge of any diseased condition of the hogs, and that there were no facts or circumstances that would have put them upon notice.” We cannot, therefore, apply in this case the rule often stated in text-books and decisions, that one is not responsible for consequences resulting from the wrongful act of another person. Griffin v. Jackson Light & Power Co., 128 Mich. 653 (87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496).

But it cannot be said that there is a general rule of law which exempts one from the consequences of a wrong merely because between the wrong and its consequences there intervenes an innocent human agency. It is true that many acts are wrong simply because they violate a duty to a particular person. If, for instance, the defendants in this suit had misrepresented to the purchasers the weight or breeding of these hogs, they would have incurred a liability only to those purchasers. See Necker v. Harvey, 49 Mich. 517 (14 N. W. 503). In such cases the wrong-doer is not liable for damages sustained by a third person; not because there intervenes a human agency between the wrong and the damages, but because the third person was in no sense wronged, or, for another and quite as correct reason, because the damages did not result from the wrong. On the other hand, there are wrongs naturally calculated, through the intervention of an innocent human agency, to injure third persons. In such cases both reason and authority hold the wrong-doer responsible for such injuries. The case of Craft v. Parker, Webb & Co., 96 Mich. 245 (55 N. W. 812, 21 L. R. A. 139), is such a case. There the defendant, which was engaged in the business of selling meats in the city of Detroit, sold plaintiff’s brother a roll of spiced bacon. The purchaser took it to the plaintiff’s house, where he boarded, and plaintiff’s wife cooked it for breakfast. The bacon was in fact spoiled, and unfit for food, and made plaintiff sick. On the assumption that defendant knew that the meat was purchased for consumption, and was negligent in selling it, it was held that plaintiff had a cause of action. See, also, Brown v. Marshall, 47 Mich. 576 (11 N. W. 392, 41 Am. Rep. 728); Thomas v. Winchester, 6 N. Y, 397 (57 Am. Dec. 455); The Nitroglycerine Case, 15 Wall. 524; Griggs v. Fleckenstein, 14 Minn. 81 (100 Am. Dec. 199).

In Filer v. Smith, 96 Mich. 355 (55 N. W. 1002, 35 Am. St. Rep. 603), this court, speaking through Mr. Justice McGkath, said:

“ The general rule of law is that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately brought about by intervening agents, provided such agents were set in motion by the primary wrong-doer, or provided those acts causing the damage were the necessary or legal and natural consequence of the wrongful act.”

Assuming, as contended by defendants (see, also, Thomas v. Winchester, 6 N. Y., at p. 410), that the principle which holds a wrong-doer liable for consequences, though human agencies intervene between the wrong and those consequences, applies only when the wrong committed is one imminently dangerous to human life, it is nevertheless applicable in this case. Defendants, in selling hogs known to be infected with a dangerous and infectious disease, committed a wrong imminently dangerous to human life (in recognition of this fact our legislature has made such sale a crime; see section 5638, 2 Comp. Laws); and it is settled (see Griggs v. Fleckenstein, supra) that, when one commits a wrong imminently dangerous to human life, the principle under consideration extends his liability to damages to property.

Were the damages sustained by plaintiffs a legal consequence of defendants’ wrong ? The rule by which it is to be determined whether or not a particular consequence results from a certain wrong, is a subject of dispute. It has been held that the wrong-doer is responsible for all consequences naturally resulting from his wrong, whether he could have anticipated those consequences or not. 1 Suth. Dam. § 16; Whart. Neg. § 77; Stevens v. Dudley, 56 Vt. 158. On the other hand, it is held that his responsibility is limited to such consequences as a person of average intelligence and knowledge should have anticipated. Pollock, Torts, p. 28. As the application-in this case of either rule leads to the same result, it is unnecessary to determine which is correct. As a natural result of the wrong done by defendants, the persons to whom they sold the hogs did, in ignorance of their condition, sell them to plaintiffs, and plaintiffs, relying upon their appearance, and without negligence, placed them where their other hogs became infected and died. The damage to plaintiffs was a consequence which defendants, as persons of average intelligence and knowledge, should have anticipated. They should have supposed either that the purchasers would themselves butcher these hogs, or that they would sell them to some person who would treat them as they appeared to be. *

If we are right in the foregoing views, plaintiffs, if they i establish their case as made in their declaration and opening statement, are entitled to recover from the defendants sufficient to compensate them for all the damáges resulting to them from defendants’ wrong. These damages include not only the value of the hogs purchased, but the value of those which contracted the contagion and died. See Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377).

It results from these views that the judgment of the court below should be reversed, and a new trial granted.

The other Justices concurred.


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    CHAMBERLAIN v. CITY OF SAGINAW.
    1. Municipal Corporations —Negligent Injuries — Notice — Repeal oe Statute.
    Section 17, tit. 6, of the charter of the city of Saginaw, providing for notice to the council of claims against the city for injuries sustained by reason of defective sidewalks, was repealed by the subsequent enactment of an additional section, covering the entire ground of the notice to be given in cases of negligent injuries.
    2. Waiver — What Constitutes.
    A waiver is the intentional relinquishment of a known right, or the intentional doing of an act inconsistent with claiming it.

      3. Municipal Corporations — Notice op Claims — Waiver.
    The mere act of a common council in referring to a committee an insufficient notice of a claim for personal injuries caused by a defective sidewalk is not a waiver of the requirements of the statute, or an admission of the sufficiency of the notice.
    Error to Saginaw; Beach, J.
    Submitted October 8, 1903.
    (Docket No. 13.)
    Decided November 17, 1903.
    Case by Emma O. Chamberlain against the city of Saginaw for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Henry E. Naegely, for appellant.

      E. E. Emerick, for appellee.
   Grant, J.

Plaintiff recovered a verdict against the defendant city for injuries received on an alleged defective sidewalk. The charter of the city of Saginaw was amended in 1901 by adding a new section (No. 46) to title 17. That section reads as follows:

“No action shall hereafter be brought against the city, or any of its boards or officers, for any injury alleged as the result of any negligence on the part of the city, or any board or officer thereof, unless the person injured shall serve or cause to be served, within sixty days after such injury shall have occurred, a notice in writing on the common council of said city, which notice shall set forth substantially the time when and the place where such injury took place, the manner in which it occurred, and the extent of such injury, as far as the same has become known, and that the person receiving such injury intends to hold the city liable for such damages as may have been sustained by him. All facts relating to such personal injuries shall be set forth in an affidavit made by claimant. Such affidavit shall also state the names and addresses of all of claimant’s witnesses, the name of the attending physician, if any, the amount of money, if any, expended for medical attendance, the loss of time and value thereof, and shall fully describe the nature and extent of the injury received,' and the amount of compensation claimed by reason of such damag¿ or injury. All claims for damages against the city, growing out of negligence or default of said city, or of any officer or employé thereof, shall be presented in the manner above provided, within sixty days after such damage has been sustained or received, and, in default thereof, shall be thereafter forever barred. But claims which have been presented to the common council prior to the passage of this act shall not be barred for failure to attach thereto a sworn affidavit of the particulars of such injury. No aetion shall be maintained in any case unless the same be brought within one year after such injury shall be received.” Act No. 419, Local Acts 1901.

It is conceded that no notice was giyen under this statute. A notice appears to have been given under section 17, tit. 6, of the charter as amended in 1899. Act No. 431, Local Acts 1899. The amendment of 1901 covers the entire ground of the notice to be given in cases of this character. It is in direct conflict with the provision of/ the former section, and repeals it. The two cannot stand together. The latter controls.

Counsel for plaintiff, in his brief, says: '

“ I further respectfully submit that the conduct of the council and its committee and officers has created a waiver of any defect or irregularity of notice of the claim, if any such existed.”

He does not cite the record or state the facts upon which this claim is based. We have examined the record, and find no evidence upon which to base a waiver under any decisions of this court. Plaintiff gave no notice under the charter then in force. 'The common council was under no obligation, legal or moral, to inform her of' the law. The records of the council introduced in evidence showed that the plaintiff’s petition and notice were received, and referred to the committee on finance and auditing. Naturally the council would not, on presentation of a claim, pass at once upon the sufficiency or legality of the petition and notice. The committee would examine this, and report to the council, if any report was necessary. No action upon the claim was ever taken by the committee. Plaintiff did not ask a hearing. The defendant did not offer her one. Both parties rested upon their rights until plaintiff brought this suit.

The only authority cited by counsel to sustain his contention is Lindley v. City of Detroit, 131 Mich. 8 (90 N. W. 665). That case forms no authority for this contention. The waiver there was based upon the facts that the notice was served upon the common council, was referred to its committee for investigation, the plaintiff appeared, testimony was taken, and a report made. Similar facts were held to be evidence of waiver in Griswold v. City of Ludington, 116 Mich. 401, 412 (74 N. W. 663).

In the case now before us the notice was void. The council took no action whatever, except to receive the communication and refer it to a committee. There was no waiver, unless it was the duty of the council to notify the claimant that such notice was void, point out wherein it was void, and give her an opportunity to present a valid one. Public rights are not, in my judgment, to be thus waived. The liability of municipal corporations for defective streets and sidewalks is purely statutory, and he who attempts to fasten that liability típon the municipality is bound to strictly comply with the statute. A waiver can only be predicated upon some duty of the corporation to act. No such duty is imposed by the statute, expressly or impliedly. After giving the notice, both parties may rest, if they choose, and as they did in this case, without further action until the claimant sees fit to plant his suit. We are cited to no case, and I find none, which holds that nonaction of a common council constitutes a waiver of the proceedings necessary in order to fasten liability upon the municipality. To waive means, in law, “to relinquish intentionally a known right, or intentionally to do an act inconsistent with claiming it.” In this case the common council had done nothing whatever to indicate to the plaintiff that it considered her notice valid, or that' it intended to waive any notice. She did not know or even inquire as to what the council had done with her claim.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


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    LOG-OWNERS’ BOOMING CO. v. HUBBELL.
    1. Replevin — Demand—Bona Fide Purchasers.
    Demand is not necessary to support an action of replevin for logs purchased by defendants from one whose only title rested on abandonment, and where defendants knew that the logs were claimed by others, and anticipated trouble.
    2. Same — Ownership—Right op Possession — Instructions.
    An instruction in an action of replevin that plaintiff must establish its ownership is not erroneous, where it is apparent that “ownership” was used in the sense of “right of possession,” and that the jury must have understood it in that sense.
    3. Logs and Logging —Abandonment—Forfeiture —Floating Logs.
    The owner of logs does not lose his title under 2 Comp. Laws, § 5098, providing for the disposition and forfeiture of logs floating upon lands adjoining streams, where the logs never were afloat, or where no steps were ever taken by the landowner to sell the logs according to the provisions of the statute.
    4 Same — Title by Abandonment — Intention and Relinquishment.
    Where defendants claimed title to logs by abandonment, it was necessary that both the actual relinquishment and the intention to abandon be shown.
    5. Same — Evidence—Question for Jury.
    Where defendants’ testimony tended to show that plaintiff’s logs had been left in a rollway from 20 to 30 years, had become imbedded in the sand, and overgrown by grass and bushes, and that the owner had run other logs past them for many years, and taken no steps to remove them, and plaintiff’s testimony tended to show that the owner placed the logs upon the roll way with the intent to convey them to places of manufacture and sale, and had taken logs from the rollway from time to time, it was proper to leave the question of abandonment to the jury.
    6. Evidence — Advice oe Attorney — Title to Logs.
    In an action of replevin for logs, testimony by a witness who sold the logs to defendants, that an attorney had advised him that he had a right to them, is incompetent.
    Error to Newaygo; Palmer, J.
    Submitted October 8, 1903.
    (Docket No. 21.)
    Decided November 17, 1903.
    Replevin by the Log-Owners’ Booming Company against Charles Hubbell and Fred C. Taylor. From a judgment for defendants, plaintiff brings error.
    Reversed.
    This is an action of replevin brought in justice’s court to recover a small amount of lumber cut from logs taken by the defendants from a rollway on the Muskegon river; plaintiff claiming the right of possession, but not ownership. Plaintiff was organized for the purpose of running, driving, booming, and rafting logs, etc., on Muskegon lake and river, and their tributaries. It claimed authority by contract from the log owners along this river to take possession of and run all the logs put in the fiver, or upon the bank of the river and on the railways, and deliver them to the various owners at their places of destination. Among such were the alleged owners of the logs in question, which were marked with marks claimed to be owned by two firms, — Alberts & Co. and Gow & Campbell. Defendants claimed ownership by bill of sale from one Dickinson, the owner by purchase of the land where the rollway, known as the “ Carmichael Rollway,” was situated. Some were wholly or partly exposed to view. Others were covered with sand and dirt, and grass and brushes had grown over them. Defendants claim title by ■abandonment; tbeir theory being that the original owners had left these logs in this rollway so long that they had lost title by abandonment, and that, when Dickinson bought the land, title to the logs passed with it. Plaintiff, upon discovering that the defendants had taken the logs, went to their mill, found the lumber manufactured therefrom, and brought this action to recover it. The issue was submitted to a jury, who found in favor of the defendants. Defendants waived the return, and asked judgment for the value.

      M. Brown (William Carpenter, of counsel), for appellant.

      E. L. Cray, for appellees.
   Grant, J.

(after stating the facts). No demand of possession was necessary before bringing suit. Defendants knew that these logs bore marks of other owners, and that the title which they would obtain by a purchase from Dickinson rested entirely upon abandonment. Dickinson did not actually claim title, but informed defendants that they could take whatever title he had. They admit-, fed that they knew the logs were claimed by others, and ■anticipated trouble. Under such circumstances, they were not bona fide purchasers.

Error is assigned upon the instruction of the court "that the plaintiff must establish its ownership of the property. It is manifest from the entire instruction that “ownership” was used in the sense of “right of possession,” for near the close of his instruction the judge ■said:

“I charge you that such prima facie ownership has been shown in the plaintiff, if you believe the testimony offered, as would give it a right, in the first instance, to take these logs as they might have along the river bank; that is, logs either afloat or intended to be put afloat.”

It would seem from this that the jury were instructed that the result of the case depended entirely upon ownership, and this was correct. The evidence was mainly directed to this question. If those under whom plaintiff claimed the right of possession did not own the logs, then plaintiff could not maintain the suit. It is improbable that the jury were misled by the failure of the court to instruct them that right of possession was sufficient.

The court instructed the jury as follows:

“It is also a rule of law that if the logs are afloat, and the owner or proprietor allow them to stay drifted upon the shore, or the property of any man who owns along the river, for 18 months, without doing anything by way of removing them, he would forfeit his right or his ownership in that property; that is the law.”

This instruction was evidently based upon section 5098,. 2 Comp. Laws, providing for the disposition of logs floating upon lands adjoining the streams, and for the forfeiture of all right thereto by the owners. It was erroneous for two reasons: (1) Because the logs, or at least part of them, were never afloat, and had never drifted upon the shore of the land of the owner; and (2) no steps were taken by the owner under the statute to obtain title according to its provisions. The statute does not mean that the title to the property is forfeited by allowing it to remain for 18 months upon the land. It is doubtful if such a provision would be constitutional. Such title is only lost when the landowner has taken proceedings thereunder to sell the logs. If this instruction of the court were correct, no proceedings would be necessary for a sale of the logs, and that part of the statute would be useless.

The main issue was title by abandonment. This issue was left to the jury, and we think correctly. Defendants gave testimony tending to show that these logs had been in this rollway from 20 to 30 years, that they had become imbedded in the sand and earth, and that grass and bushes had grown over many of them. If it be true that the owners had run other logs past them for many years, and had taken no steps to remove those imbedded in the rollway, or any of them, it would not be an unreason-able inference to draw that they were abandoned, because -ordinarily they would become decayed and worthless. On the other hand, plaintiff insists that the owners placed them upon the rollway, intending to convey them to places of manufacture and sale, and that, if any floated there and became imbedded in the sand, they were cut and placed in the water with the same intent, and that no intent to abandon, under such circumstances, is to be implied merely from lapse of time. This contention is sound, and is sustained by the authorities. The logs were not lost, for the owners knew that they had logs in this rollway partly buried, and the defendants knew it also. There is evidence that the original owners had taken logs therefrom from time to time. This was a circumstance for the consideration of the jury in determining the intent of the owners. The intention to abandon is essential to maintain defendants’ title. This may be inferred from the ■conduct of the owners and the situation of the property. If these logs were so situated that there was no danger of injury by decay or otherwise, and the owners had from time to time taken logs therefrom, as they annually drove the river, the intent to abandon could hardly be presumed from lapse of time. If the parties had abandoned logging upon the river, it is apparent that the intent to abandon would be more readily presumed from failure to remove for any considerable length of time. But the mere failure to exercise the act of removal would not operate as an ■abandonment, or proof of an intention to abandon. Both the intention to abandon and actual relinquishment must be shown. 1 Cyc. Law & Proc. 4, and authorities there •cited.

It is claimed by the plaintiff that some of the logs manufactured by the defendants were not taken from the Carmichael rollway. If this be the fact, the court, as to these logs, marked D and BD, should have directed a verdict for the plaintiff. If upon a new trial this conclusively appears, the plaintiff would be entitled to a verdict therefor.

Mr. Dickinson, a Witness for the defendants, was permitted to testify that he had consulted an .attorney about his right to these logs, and that he told the defendants that the attorney advised him that he did have a right to-them. This testimony was clearly incompetent.

There are many other assignments of error upon the-admission and rejection of testimony, but we do not deem them of sufficient importance to discuss, as they are not. likely to arise upon a new trial.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    LANE v. MICHIGAN TRACTION CO.
    1. Street Railways — Grant of Right of Way — Tracks—Trestle.
    A grant of a right of way to a street-railway company, authorizing it to operate a road as then maintained and required to be operated under a franchise granted to it by a certain city, which required the rails to be laid and maintained in such a manner as not to obstruct the free passage of vehicles, the upper surface to be laid flush with the surface of .the streets, and the tracks to conform to the established grade-of the streets, does not give it a right to construct a trestle-for its tracks.
    2. Same — Change in Grade of Steam Road — Damage to Landowner.
    Where a street railway crosses a steam railroad in a subway on the latter’s right of way, it is not liable in damages to an adjoining landowner for a slight depression of its tracks or the raising of the grade of the railroad, it appearing that the-steam road was constantly raising its grade at that point.
    3. Railroads — Grades—Estoppel.
    Complainants’ consent to the building of a railroad below grade at a point where it crossed the right of way granted by them to a street railway did not estop them from claiming-damages against the street railway for building a trestle for its tracks over the other road. v
    4 Street Railways — Right of Way — Trestle — Injunction — Damages.
    A suburban electric railway having a grant of a right of way requiring the laying of its tracks upon the grade of the land, having been refused permission by the State Railroad Commissioner to make a grade crossing with another road, will not be enjoined from building a trestle over such road on complaint of the grantors of the right of way, but will be required to pay such damages as are fairly chargeable to the erection of the trestle on their land.
    5. Equity Jurisdiction — Damages f.or Taking Land.
    Equity, having obtained jurisdiction of a suit to restrain a railway company from building a trestle, after denying the relief sought, may retain jurisdiction for the purpose of awarding damages.
    Appeal from Kalamazoo; Adams, J.
    Submitted October 21, 1903.
    (Docket No. 58.)
    Decided November 17, 1903.
    Bill by M. Henry Lane and Frank B. Lay against the Michigan Traction Company to restrain the construction of a trestle. From the decree rendered, both parties appeal.
    Modified and affirmed.

      E. M. Irish (Dallas Boudeman,' of counsel), for complainants.

      Alfred J. Mills, for defendant.
   Hooker, C. J.

The complainants own land in the southeasterly portion of the city of Kalamazoo, which is platted, and is called “Factory View Addition.” Our understanding is that the proof shows it to contain 9 acres, but, if the map is drawn to scale, the premises are about 1,000 feet long by 300 feet wide, making less than 8 acres. The north end fronts on Lake street (a good street), and the premises extend south to the track of the Grand Rapids & Indiana Railroad Company, which is upon an embankment 10 or more feet high at this time. In platting the premises, a street called “Fulford Avenue” was laid out lengthwise of the parcel, north and south; there

being a row of lots on each side, fronting said Fulford avenue. The land is low. The accompanying diagram will serve to show the situation as it now exists. Upon this diagram, Factory View addition is inclosed by a crooked line, thus On the east it includes the right of way occupied by the Chicago, Kalamazoo & Saginaw Railroad. It consists of 35 lots, 4 of which front on Lake street. Thirteen lie south of Washington avenue extension, 2 are devoted to said extension, and 20, including the lots fronting Lake street, lie north of Washington avenue extension. The complainants own also what is called the “Reed Farm,” lying principally southwest of the Grand. Rapids & Indiana track, and the Riverside addition, lying north of Lake street. Counsel say that complainants designed Fulford avenue to connect these two parcels.

The defendant is a corporation, and was engaged in building an electric suburban line from Battle Creek to Kalamazoo, and contemplated entering the latter city via Lake street, and had graded to and plowed beyond the point where its track finally left Lake street and entered Washington avenue extension as projected. The plat of Factory View addition shows Washington avenue extension as projected, with the suburban road thereon. One Hays, who was a member of the South Side Improvement Company, and interested in a proposed park to be called “Recreation Park,” conceived the idea of having the suburban road enter the city via Washington avenue, and negotiated such an arrangement with the suburban railway company, and ultimately secured deeds of a right of way for the railroad from landowners east of Cameron street, including the complainants’ right of way, over which the proposed extension of Washington avenue would naturally go. The complainants’ deed reserved the right to cross the defendant’s road with streets, and also reserved a right of way for a belt-line road. The defendant then constructed the railroad until it reached the Grand Rapids & Indiana embankment, which at that time was 4 or 5 feet above the adjacent land at the place of crossing. Meantime the Chicago, Kalamazoo & Saginaw Company acquired rights in the belt-line strip on the easterly side of the complainants’ Factory View addition, and made a cut 3 or 4 feet deep, which was afterwards bridged by defendant’s track temporarily. Soon after, the State Railroad Commissioner refused to allow any crossing of the three roads mentioned, at grade, in that vicinity; and ultimately a contract was made between the three railroad companies, by the terms of which the defendant was to build its road under the Grand Rapids & Indiana Railroad track, and over the Chicago, Kalamazoo & Saginaw track on a trestle, the cost to be apportioned according to the agreement.

The defendant thereupon constructed a subway under the Grand Rapids & Indiana track, and began the erection of an embankment east of the Chicago, Kalamazoo & Saginaw track, to connect with a trestle; and, when about to commence the trestle in front of Factory View addition, the complainants filed the bill in this cause to-restrain such building. A preliminary injunction issued, but was dissolved on defendant’s filing a bond, and the trestle was completed, and the road is in operation. On •the hearing a decree was made allowing complainants $6,500 damages for the depreciation of their property, arising out of a failure to build the road at grade and the erection of the trestle and embankment. The defendant claims that it had a right to build the trestle, under the deed, and, further, that the complainants are not injured by the subway under the Grand Rapids & Indiana Railroad, and that the trestle was made necessary by the cut made by the Chicago, Kalamazoo & Saginaw Railway Company by consent of the complainants.

"We are of the opinion that the deed upon which the defendant relies contains provisions which forbid the inference of an intention to grant a right of way for a railway above the grade of the street. This deed contains provisions that indicate an intention on the part of both parties that the track should be a surface road, to conform to the grade that should be established for the street when opened; e. g., it was authorized to construct, etc., and operate a road “substantially as the poles and trolley wires of said company are now erected and maintained on Washington avenue.” Again: “It is further understood and agreed that the party of the second part * * * shall be required to operate its electric railway over the right of way hereby granted substantially in the same manner as under the franchise granted to it by the city of Kalamazoo, and under which it operates its line over Washington avenue at present.” The ordinance referred to provides “that the * * * rails * * * shall be laid and maintained in such a manner as not to obstruct the free passage of vehicles over the same, and the upper surface of the same shall be laid flush with the surface of the' streets, and such tracks shall conform to the grade of the streets as now established, or as may from time to time be established.” Under the provisions of this deed quoted, the intention to limit the easement to a surface easement seems plain, and it cannot be construed to convey more than a right to build a road conforming to the street or surface. Counsel’s claim that the deed gave the right to build and maintain the trestle is untenable.

Contrary to the expectation of the parties, the railroad commissioner forbade- grade crossings. Thereupon the Grand Rapids & Indiana, raised its grade, making it feasible for the defendant to go beneath its track through a subway. We find nothing in the record that indicates that the Grand Rapids & Indiana Company had not a right to raise its grade at will. Its track was built upon its own private right of way, and there is testimony that it was constantly raising its grade at this point, in furtherance of a policy of its own. The contract by which it made the subway possible was one that the parties had a right to make, and complainants had no right to complain of it. Nor were their rights infringed by the failure to construct a subway wide enough to accommodate travel aside from defendant’s road. The highway then terminated west of the track, and, while the plat of Factory View addition indicated an offer of land for an extension of Washington avenue, it has never been accepted by the city. There seems to be no difficulty in widening the subway if the city shall ever care to do it. The slight depression necessary to get room for the passage of cars under the. Grand Rapids & Indiana track does not injure the complainants, but has rather benefited the property, and,as it is not upon the premises deeded by them, defendant’s right does not rest or depend upon their grant. It is apparent that the controversy does not depend to any great extent upon this subway, but rather upon the trestle.

Counsel for the defendant says that the complainants’ conduct has been such as to create an equitable estoppel against a claim that the trestle could not lawfully be built, inasmuch as they countenanced, if they did not authorize, the building of the Chicago, Kalamazoo & Saginaw and belt-line roads. It is true that they reserved a right to build a belt line. Of this the defendant cannot complain, for it accepted the deed subject to this right. It is also true that the record indicates a consent on the part of the complainants that the Chicago, Kalamazoo & Saginaw should cross the right of way that they had granted to the defendant, below grade, and this might j ustify an inference of a willingness that Washington avenue extension should be lowered to the grade of such cut at that point. • But this question is not here, and, if the order of the railroad commissioner is to be enforced, both complainants and defendant have been benefited by the cut made by the Chicago, Kalamazoo & Saginaw Railroad Company, because it lessens the height of the trestle that would otherwise be necessary.

We have, then, this situation: The defendant has lawfully and in good faith constructed and put in operation a permanent public improvement, and, without its fault, the police requirements of the State have made the erection of a trestle necessary. It is apparent that there is no other way of operating the road. The complainants, relying upon the letter of their deed, insist that defendant has no right there, and have come into a court of equity, asking that it be compelled to tear up its track and abandon its road. We think that they are not entitled to such relief. On the other hand, they are no more responsible for the condition of affairs than is the defendant, and are entitled to reasonable compensation for such damages as are fairly chargeable to the erection of the trestle upon their land. It is urged that they should be remitted to their remedy at law for these, and that this bill should be dismissed; but authorities are numerous to the effect that chancery, having entertained jurisdiction for one purpose, as in this case, may retain it for the purpose of doing complete justice in the premises. The authorities cited by counsel sufficiently show this, and need not be repeated in this opinion.

The complainants claim compensation for depreciation of value of the- lots upon Factory View addition, and make a similar claim as to the Riverside addition and Reed Farm. All of the former lies north of Lake street, and most of the latter south and west of the Grand Rapids & Indiana track. We think neither has suffered from the building of the trestle. The claim that Fulford avenue was to connect the two does not appeal to us, first, because Lake street is a much more natural approach to Riverside, and Washington avenue, as already opened, offers every facility requisite to Reed Farm; and, second, the Grand Rapids & Indiana Company had a right to raise its tracks, and its doing so has made the crossing of Fulford avenue safer and comparatively easy; and, third, the defendant is not liable for injury to Fulford avenue caused by raising the Grand Rapids & Indiana track. This street could also cross the suburban road by a subway without much difficulty, so that Reed Farm and Riverside are not seriously affected by the obstacles to the opening of Fulford avenue.

The claim of damages to Factory View addition is predicated upon the combination of circumstances which surround a portion of it on-three sides, by cut, fill, and trestle. The defendant is not to blame for the cut, or the embankment of the Grand Rapids & Indiana Company. Each had the right to make its cut or fill, and the defendant committed no actionable wrong when it arranged with the latter for a subway. It is responsible for its trestle and embankment, and for nothing more. Witnesses were called to give their opinions upon the amount of injury done to these lots in Factory View addition, to the Reed Farm, and to Riverside. They have also made the situation of the premises plain. The damages given by the learned circuit judge seem to include: (1) Damages for an embankment east of complainants’ premises, upon the land of others, who have consented to its erection, upon the theory that it precludes the future opening and use of Washington avenue extension. (2) That the trestle and embankment are rough and unsightly, and obstruct the view from the south part of Factory View addition to the north, and from the north part to the south. (3) That the trestle is so low as to prevent Fulford avenue passing it in a subway, and that Factory View addition and a portion of Reed Farm are damaged because of the practical impossibility of carrying Fulford avenue over or under the trestle and the Grand Rapids & Indiana track; and the court said that, although defendant should so arrange its trestle as to permit Fulford avenue to go beneath it, still the Grand Rapids & Indiana embankment is so high that the street could not be carried under it without almost unwarranted expense.

From the foregoing, we conclude that, of the $6,500 allowed as damages, a portion was for injury to Reed Farm, and a portion for the obstacles in the way of the extension of Washington avenue east of the Chicago, Kalamazoo & Saginaw track, if that should be desirable. No damages appear to have been given for injury to Riverside addition. We have no way of ascertaining how much of the amount decreed was given for one or another of these things. From the situation of these premises as shown by the map, and the description given by the witnesses, we are satisfied that no damages were suffered by reason of this trestle to Reed Farm or Riverside addition. Some damage was suffered by reason of the necessity.of depressing Fulford avenue at the trestle, and some depreciation -of lots south of the trestle, and the two lots adjacent to Washington avenue north of the trestle; and we think $2,000 ample recompense for these items. '

The decree of the circut court will be modified in the matter of damages as indicated, and otherwise affirmed. The defendant will recover costs of this court.

The other Justices concurred.