text:
    McDONALD v. YOUNG.
    1. Actions — Waiver of Tort — Assumpsit.
    The possession of a second-hand automobile by an automobile dealer originates in contract and not in trespass where he obtains possession lawfully in the course of a contract for the sale of another car whereby credit is to be given for the second-hand car, which is canceled by mutual agreement, and the dealer wrongfully withholds the second-hand car, and the tort may be waived and assumpsit maintained to recover the agreed price of the second-hand car.
    2. Principal and Agent — Knowledge of Agent.
    The knowledge of agents within the scope of their agency is the knowledge of the principal.
    3. Appeal and Error — Election of Remedies — Waiver.
    Recovery can be had for a tort under the common counts in assumpsit, and if no objection is made to the form of action until after all the evidence is in it will not prevail.
    4. Election of Remedies — Assumpsit—Trover.
    If no objection is made to the form of action in an action of assumpsit to recover a money judgment for the value of a second-hand automobile which defendant has wrongfully retained after cancellation of a contract for the exchange of a new car for the old car, both the question of title and right of possession may be tried as well as in an action of trover on defendant’s denial of ownership and possession.
    5. Same — Trial on Merits.
    There is an election of remedies precluding the bringing of an action of tort based upon the inconsistent theory that defendant was not the owner, but was in tortious possession of a second-hand automobile which he had turned in as part payment in an exchange for a new car, where the contract was canceled by mutual agreement and a deposit returned, and plaintiff maintains an action of assumpsit for the value of the second-hand car upon the theory that defendant became the owner of the car and was liable for the purchase price, and the case is tried on the merits and the judgment in defendant’s favor is not appealed from.
    Error to Wayne; Murphy, J.
    Submitted June 27, 1917.
    (Docket No. 63.)
    Decided December 27, 1917.
    Case in justice’s court by John E. McDonald against Mathew A. Young for the conversion of an automobile. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. 'Defendant brings error.
    Reversed.

      Barbour, Field & Martin (Henry C. L. Forler, of counsel), for appellant. :

      Charles L. Mann, for appellee.
   Steere, J.

In the spring of 1916, plaintiff, a resident of the city of Detroit, negotiated with an agent of, and contracted to purchase from, defendant, who was in the business of handling Reo an<i Mitchell automobiles in that city, a new Reo — 4 1916 car, the deal being evidenced in writing by the following order:

“Detroit, Mich., May 8, 1916.
“M. A. Young,
“Automobiles
“754-756 Woodward Avenue.
“You are hereby authorized to enter my order for one Reo — 4 1916 automobile with regular equipment.
“1 Yale lock; 1 extra casing, tube and cover, for •which I agree to pay the sum of eight hundred and seventy-five dollars. Terms: $25.00, and 1914 Reo touring allowed as $435.00 on the signing of this order.
“Balance of four hundred and fifteen dollars ($415.00) when car is ready for delivery.
“Date of delivery, on or about May 20,1916.
“J. E. McDonald, “Signature of Purchaser.
“1342 E. Lafayette, “Residcnc©
“M. A. Young, By F. H. Mutschler.”

Mutschler was one of defendant’s salesmen, and his authority is admitted. Indorsed thereon appear the words: “Canceled. Deposit returned.” At the time this contract was entered into, plaintiff paid defendant the $25. He claimed that about the same time he also delivered through his own authorized agent, or agents, to Mutschler, defendant’s authorized agent, the 1914 touring car referred to, which defendant denied. Such claim and denial resulted in this litigation between the parties. Owing, as defendant claimed, to inability of the Reo company to fill its orders promptly, the new car was not delivered to the plaintiff on or about May 20, 1916, and shortly after that time plaintiff commenced to press defendant for delivery. As time went on, he became more insistent, making inquiry by telephone and calling at defendant’s place of business, until on June 29, 1916, he visited defendant’s place and insisted that something definite be done. Being unable to get any assurances as to when his new car could or would be delivered, he states that he demanded his money back and they came to a definite understanding, that the $25 was returned to him, and he gave back his contract. He then left without saying anything about the 1914 touring car; but in a letter of the same date written by an attorney named Hoffman, of whom he claimed to have bought the car, a demand was made upon defendant in plaintiff’s name for $375, stated as the value of the car which it was claimed had been bought by and delivered to defendant in part payment for the new car according to the written agreement of May 8th. Defendant denied having the car or that he ever owned it.

On July 14, 1916, plaintiff commenced an action in assumpsit, claiming damages of $500 or under, specifying in his bill of particulars that the action was brought to recover • “purchase price of one Reo touring car, 1914 model, $435.” Defendant pleaded the general issue, and a trial was had ' in which, it. was shown, the testimony of plaintiff and his two principal witnesses, Hoffman and an attorney named Geiger, was in its main features as upon the trial of this case. Apparently that case was tried on its merits, but the ground on which it was then decided is not shown. The concluding entry in the justice’s docket states: “I thereupon render judgment in favor of the defendant and against plaintiff of no cause of action.” Plaintiff took no appeal from this judgment, but subsequently Hoffman, as plaintiff’s attorney, made demand upon defendant for possession of the car, and this action in a plea of trespass on the case was begun in justice’s court. A declaration was filed setting up the contract between the parties of May 8th, payment of the $25 and delivery of the 1914 car to defendant under it, his failure to deliver the new car, return of the $25, demand for return of the 1914 car, noncompliance with the demand, and that defendant wrongfully detained, converted, and disposed of it to his own use, to plaintiff’s damage of $500, etc. Defendant pleaded the general issue with notice, as special defense, of the former action for nonperformance of “the very same identical promises and undertakings,” trial whereof resulted in a judgment from which no appeal was taken, and which remained in full force and effect. From a judgment in favor of defendant, the case was removed by appeal to the circuit court of Wayne county, where it was retried by jury, resulting in a verdict and judgment in plaintiff’s favor for $379.68.

Upon the assignment of error presented here, defendant’s main contentions are that the court erred in refusing his request for a directed verdict on the ground that in the former action plaintiff elected his remedy, tried the case on its merits, took no appeal from the adverse judgment then rendered, which stands as res adjudieata, precluding him from maintaining this action; and on the further ground that plaintiff is not shown to have owned the car and cannot maintain this action because his tentative purchase of the car from a former owner to turn in as part payment for the new car purchased from defendant was contingent upon the deal for it going through, which by agreement of the parties, was canceled.

The first proposition turns upon whether in the former case plaintiff mistook or elected his remedy. That action was in assumpsit, and this is in tort. If he could and did waive the tort he now complains of and sued in assumpsit, he elected his remedy, and the former judgment standing against him precludes this action.

If, as plaintiff claims, defendant had possession of this car and wrongfully withheld it, he nevertheless obtained possession lawfully. The relation of the parties out of which the claimed tort grew had its inception in contract. Defendant’s possession did not originate in trespass. In such case, tort may be waived and assumpsit maintained. Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652) ; St. John v. Antrim Iron Co., 122 Mich. 68 (80 N. W. 998).

It is urged further in plaintiff’s behalf that there was no waiver in the former case, which was a straight suit on. an express contract to recover the agreed price of the old car claimed to have been sold and delivered to defendant according to the terms of a written agreement between the parties, as plainly shown by Hoffman’s letter to defendant and the bill of particulars filed in the case; that no demand for the car was made until late in August, 1916, following the former judgment, and no tort was committed until there was a demand and refusal. Plaintiff apparently adopted this theory as to time of the tort subsequent to filing his declaration in this case, for it charges that the car was “wrongfully detained, converted and disposed of” by defendant on or about June 29, 1916, which is the date when the contract was rescinded by mutual agreement of the parties and payment for the car demanded in writing by Hoffman as plaintiff’s attorney.

That it was then rescinded in its entirety there can be no question. Plaintiff was annoyed by delay .in delivery of the new car, says that they had “sort of made a monkey” of him, and, instead of insisting on performance, he demanded his money back, came to an understanding about.it, and when his demand was complied with he surrendered his contract to them. He then made no further claim, and left, without mentioning the old car, which he testified on cross-examination he never had possession of, had not paid for, did not know where it was stored, and, when asked if he ever owned the car, said, “I suppose that would be a question.” He stated that he agreed to buy the old car from Hoffman, and of the occasion said:

“I wanted to get a Reo car, and they (Hoffman and Geiger) asked me if I would buy this car — if I would I would trade it in, and in that way they would dispose of my car, if I got a new car.”

Neither plaintiff nor Hoffman ever had actual possession of this car. It was stored in a garage on Peterboro street belonging to a Mrs. Holmes during the time of these proceedings. As late as August 15, 1916, she offered through her attorney to deliver it to “the proper party” upon payment of $25 storage charges; it having been there for over five months. Prior to May 8th, Geiger had come into possession of the car as part of the assets of a bankrupt concern of which he was trustee and had it stored in Mrs. Holmes’ garage, being then responsible to her for the rent. No other party connected with the case as witness or otherwise is shown to have had any business relations with her. Hoffman had bid in the car, on Geiger’s suggestion, at an auction sale of the assets of. the bankrupt concern; Geiger testified that it was then out of repair, and he continued the rent of the garage intending to have it repaired' and then turn possession over to Hoffman. Hoffman apparently had not paid for it, as he testified that on a certain occasion after May 8th he asked Geiger if plaintiff had given him a check for the car, and he said, “No,” but he offered to give him a check and he did not take it. Geiger testified on cross-examination:

“I filed a praecipe in the case in justice court and started the suit, and when the case came up I was there as a witness.”

Which suit he had reference to is not stated. Some time before May 8th Hoffman decided he did not want to keep the car, and asked Geiger if he knew of any one who might buy it. Geiger introduced him to plaintiff, and it was arranged that he would take the old car at $100 less than the price he was to turn it in for, bn the new car. Hoffman and Geiger were present at plaintiff’s place when the contract of May 8th was made. They agreed to show Mutschler the car and deliver it to him. Geiger testified that he met Mutschler the next morning and took him to the door of the garage where this car was stored, unlocked the door, and pointed it out, another car being there also, and handed him the keys of the garage, requesting him to take it away that day, as rent was only paid up to that night, and he said he would do so at a certain time soon. Mutschler testified that he was shown the car and given the key of the garage by Geiger so he could get it, but he did not then go there to get it, and told Geiger he would do so soon; that the sales manager told him to wait until delivery of the new car; that he never took it away, or went back for it, or unlocked the door of the garage; and when the contract was canceled he returned the keys to Mrs. Holmes as directed by Geiger, who had told him he got them from her and to return them when he took the car out.

In any aspect of this case, plaintiff could not recover unless he was entitled to possession of the old car, and he was not entitled to possession of it unless he had legally purchased and owned it, which he with some reason “supposed” would be a question. It was personal property of over $50 in value, which he said he had never paid for or had possession of, did not know where it was, or whether it was ever moved from where it was stored. He had no memorandum in writing of its purchase from Hoffman, and neither of them, so far as shown, from Geiger, who was yet in possession of it when this oral and.suggestively contingent bargain was made for plaintiff to buy the old car to trade in on a new one. Conceding that by authorized acts of agency on' the part of Hoffman and Geiger a constructive delivery to defendant’s agent by Geiger operated intermediately to vest title in plaintiff, their knowledge within the scope of their agency was his knowledge, and they knew what the facts were if he did not.

Demand of payment for the car was made of defendant and refused before either action was brought. There was no room for misunderstanding as to plaintiff’s contract for a new car being canceled, or defendant’s denial and defense thereafter as to the old car. The object of both suits was the same — to compel defendant to pay for the car. Under the circumstances of this case, the second demand was in fact and purpose a repetition of the first, though made in different form to lay the foundation for a second action, in tort, which might have been tried out under the pleadings in the first, so far as this record discloses. The case was apparently tried on its merits, and no objection to the form of action is shown to have been made. Recovery can be had for a tort under the common counts in assumpsit, and if no objection is made to the form of action until after all the evidence has been introduced it will not prevail. Boston, etc., R. Co. v. Dana, 1 Gray (Mass.), 83.

Both actions were between the same parties over the same subject-matter, and the object of each was to recover a money judgment for the same property. Both the questions of title and right to possession could have been tried in that action as well as in trover on defendant’s denial of ownership and possession. In Jennings v. Sheldon, 44 Mich. 92 (6 N. W. 96), this court said of an action brought to recover the value of certain stone:

“It was clearly shown that the Dean suit was brought to recover for the value of the stone, and that Sheldon assumed the defense of it. It was immaterial that the suit was in assumpsit. It may be that the circumstances of the taking of the stone were such that assumpsit could not have been supported if objection had been made (Watson v. Stever, 25 Mich. 386); but the parties were not bound to take that objection, and the title could as well be tried in an action of assumpsit as in one of trespass or trover.”

If, as plaintiff asserts, the former proceeding was prosecuted by him through a trial to judgment upon the sole issue and theory that defendant was owner of the car and holden for its purchase. price, that claim is totally at variance with his present contention that defendant was not the owner, but in tortious possession. The two positions are inconsistent and contradictory. The assertion of one involves negation or repudiation of the other. Having, as appears by the record, advisedly elected to litigate his contention of ownership upon its merits to a final judgment in the former case, plaintiff is not now in a position to repudiate that contention and treat defendant as a wrongdoer because hot the owner. Nield v. Burton, 49 Mich. 53 (12 N. W. 906); Farwell v. Myers, 59 Mich. 179 (26 N. W. 328).

The judgment is therefore reversed, with costs, and a new trial granted.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    FLOKSTRA v. GRAND RAPIDS RAILWAY CO.
    1. Street Railways — Crossing Accidents — Contributory Negligence.
    The driver of a one horse loaded coal wagon which is struck by a street car is not chargeable with contributory negligence where it appears that he was walking on the side of the wagon opposite that from which a street, car was approaching from the south on the further track on the street he was crossing, and just between the wagon box and the horse where he could see, and he made a careful observation just before starting across the nearer track and noted a car coming from the south over a block distant, and, at the rate his horse was traveling, decided he could safely cross, and twice as far, before the car arrived, provided it was run at the lawful speed, and he exercised' the judgment of an ordinarily cautious and prudent man under like circumstances.

    2. Same — Excessive Speed — Question for Jury.'
    The question of speed of a street car is for the jury where the ' evidence as to the rate it is going when it strikes a wagon crossing the street is conflicting.
    3. Appeal and Error — Directed Ygrdict — tReview.
    Where an adverse directed verdict is contended for, the testimony introduced by plaintiff is to be taken as true and viewed in the light most favorable to his contention.
    4. Street Railways — Excessive Speed — Presumptions.
    The driver of a wagon proceeding across a street has the right to assume that the speed of an approaching street car does not exceed that allowed by law.

    Error to the superior court of Grand Rapids; Dun-ham, J.
    Submitted June 25, 1917.
    (Docket No. 42.)
    Decided December 27, 1917.
    Case by John Flokstra against the Grand Rapids Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Kleinhans, Knappen & Uhl, for appellant.

      *Hatch, McAllister & Raymond, for appellee.

       On duty to look and listen before crossing interurban electric railway on company’s own right of way, see notes in 15 L. R. A. (N. S.) 254; 23 L. R. A. (N. S.) 1224.

       On right of driver of vehicle to assume that motorman will give him time to cross track, see, note in 5 L. R. A. (N. S.) 1081.

   Steere, J.

Plaintiff had verdict- and judgment against defendant in the sum of $1,300 for damages sustained by him on the afternoon of February 19, 1916, in a collision between a coal wagon he was driving across defendant’s tracks and one of its northbound street cars. The accident occurred at the intersection of Pleasant street, along which he was driving east, and Lafayette avenue, along which defendant’s double track extended north and south.

In asking reversal on a record containing numerous exceptions and various assignments of error defendant’s counsel frankly and correctly center on the controlling issue, and say in their brief:

“The different assignments of error present but one legal proposition, which is that the plaintiff’s own testimony shows that he was guilty of contributory negligence, and that the trial court should have directed a verdict for the defendant at the close of plaintiff’s ease and at the end of the trial.”

Plaintiff was regularly employed with his single horse and coal wagon at cartage for the owner of a coal yard in Grand Rapids, and on the day in question had been sent to the city gas plant for a ton and a half of coke, which he had obtained, and was driving east along Pleasant street, walking on the north side of his loaded wagon, at the time of the accident. He could not see south over his load, but when just forward of it he .had a clear view in that direction between the rear of his horse and the front of the wagon, and says, “I walked just between the horse and coal box, so I could see everything,” although admitting that he was sometimes back of the front end of the wagon. He testified that as he came upon Lafayette avenue and approached the double car tracks he looked up and down that street from where he could see along it in both directions, saw no car was in view to the north, and, looking south, between his horse and wagon, observed there was a car coming from that direction over a block away and beyond Sycamore, the next street south of Pleasant, a distance estimated by him at between 500 and 600 feet; that his horse was then close up to the west car track, and there was no danger in proceeding, for he had time to spare, twice enough time to cross, and “no danger at all when the cars come at a common rate,” which he “figured on,” and so he drove along, his horse going 2% or 3 miles an hour, but the car came so that when he looked again it was within about 150 feet of him, and his horse’s legs, were then over the east track upon which the car ran; that the horse and front wheels passed safely over the east track, but before the wagon cleared it the car struck the back wheels and “knocked every spoke out of the hubs” and “smashed the wagon all to pieces.” His further description of the accident relates to the time after he “came to” and was “picked up,” in which he described the result of the collision to his person and property as he then and later saw and felt it, which need not be detailed, as no question is raised upon the measure of damages or amount of the verdict, if he was entitled to recover at all.

The negligence charged is excessive and reckless speed, failure to keep the car under proper control and “to operate the same at a careful and reasonable rate of speed,” etc.

Defendant’s chief contention is that plaintiff by his testimony is shown guilty of negligence in not looking again for the approaching car just before he entered on the east track; his previous observation having been before he drove upon the west track.

Across both tracks and the space between them was less than 15 feet. He had observed and noted the distance away of the approaching car when, as he states it, his walking horse was west of the west track “not more than 2 feet,” “just west of the west track,” “starting on the track then,” and his judgment was that with the car more than a block away running at the common, lawful rate of not more than 15 miles an hour, as he assumed it would, he had abundant time to cross that 15 feet, and was perfectly safe in proceeding. Even when he looked at the car the second time, within 150 feet of him, he yet thought .he would get over safely, because he did not then know it was running very fast, saying, “That is the reason I thought there was no danger.”

This is a case of plaintiff looking on reaching a crossing and seeing an approaching car over a block away exercising his judgment upon the safety of attempting to cross, not of failing to look.

The testimony of the motorman, called by defendant, tends in some particulars to justify plaintiff’s conclusion that the car was an apparently safe distance away for him to cross had it been running at a lawful rate of speed and under proper control, as he had a right to assume it was. He testifies in part as follows:

“When I was just at the north crosswalk of Sycamore I saw Mr. Flokstra’s horse and wagon. His horse’s head was headed east down Pleasant street. The horse was not exactly in plain view, but I could see that he was striking straight east and continuing all the time from the first I saw him. He was about 10 feet from the west track when I first saw him. I should judge it was about a minute or a minute and a half from the time I first saw the horse until I hit him. I was then a third of the way from Sycamore street. I saw the horse when his head came across the west rail of the east track, and knew that he had to get across before I got to him or I would hit him. -It was about ten seconds from the time when I first saw his head come over the west rail of the east track until I hit him. From the time I first saw the horse until I saw his head cross the west rail of the east track he had to travel about 18 feet.”

The conductor of the car, who was in the back vestibule, testified that when he heard the gong and saw the passengers up in front stretching their necks he looked out on the right (or east) side of the car, and at first did not see anything; “then I saw the head of the horse; then the body; then I saw the whole horse; then the front wheels; and then we hit. We were about a third of the block when I first looked.” A witness of defendant who made measurements, testified that the distance from the north line of Sycamore street to the south line of Pleasant is 468 feet. From the west track on Lafayette avenue to the west curb of that street is 11 feet and 8 inches.

The speed of the car between the two streets was squarely an issue of fact for the jury. Fritz, the motorman, who was then running as an extra, testified that he saw plaintiffs coal wagon and horse going east toward the tracks over the west crosswalk on Pleasant street at its intersection with Lafayette avenue as he left Sycamore street; that he was then running about 141/2 miles an hour, and cut off his current to coast, as it was down grade; that he was slowing down to stop for passengers waiting at Pleasant street, and When within about 200 feet of that street was going about 7 miles an hour, when he rang his gong and continued slowing down, but did not see or expect plaintiff was going to cross until he was within about 150 feet of him, when it was. impossible to stop in time to avoid striking him, and the car struck the wagon “on the rear rim of the front wheel.” A witness of defendant named Harris, who was a passenger and estimated the speed at “about 15 miles an hour,” testified of the collision:

“The wagon didn’t quite clear the track. Another instant and the wagon would have cleared it.”

A witness named Van Mourik, a contractor called by^ plaintiff, who was a passenger on the car, describes the accident in part as follows:

“I went into the front vestibule to smoke just as we turned from Hall street into Lafayette street and continued riding in the vestibule up to the time of the accident. When we passed Franklin street and turned into Lafayette, I was still in the vestibule. I saw Mr. Flokstra and his wagon as we came along there in the street car. At the time I saw him we were about 700 or 800 feet away from the accident, about two or three lots south of Sycamore street. When I looked down there and saw Mr. Flokstra I was standing pretty close to the entrance of the vestibule facing up to the front of the car. The first time I saw Mr. Flokstra the head' of his horse was about in the middle of the street, and at that time the street car was 600 or 700 or 800 feet from the horse, south from it, about two or three lots south of Sycamore street. * * * After we passed Sycamore street the car was going at least 30 miles an hour. I continued to look at the horse and wagon, but I didn’t pay much‘attention to it until we were pretty near up to it. When we got about 250 feet away I saw the horse and wagon were not going to clear the track. Up to that time the motorman had not slackened the speed of his car at all. When I saw the wagon was not going to clear the track, I hollered.
“Q. What did you say?
“A. ‘Stop the car.’ * * *
“Q. Up to that time had he done a single thing to slacken the speed of that car?
“A. No, sir;, not that I know of.
“Q. At that time when you hollered to him to stop the car did you notice what he was doing, from what you could see?
“A. The only thing that I would know there was a fellow standing in the vestibule, and he was talking to him.
“Q. Was he able to get the car under control at any time before he hit the wagon?
“A. No, sir.
“Q. From what you could see?
“A. No, sir; no man could get that car under control more.
“Q. Why?
“A. It was going too fast and we were too close to it when he tried to stop it.”

It has often been said, where an adverse directed verdict is contended for, the testimony introduced by plaintiff is to be taken as true and viewed in' the light most favorable to his contention. The question for decision here is not whether plaintiff was or was not guilty of contributory negligence, but whether the evidence carried that question to the jury.

Plaintiff was driving a horse-drawn conveyance. Accepting his testimony as true, he took careful observation just before starting over defendant’s closely adjacent tracks, and saw all there was to see which might threaten his safety. He noted a car coming from the south over a block distant, and at the rate his horse was traveling decided he would safely traverse the short space necessary to make the crossing, and twice as far, before the car would arrive, provided it was running at the customary and lawful speed, which he had a right to assume was the case. If he exercised the judgment of an ordinarily cautious and prudent man under like circumstances, he was not chargeable with contributory negligence.

We think this case falls within and is governed by the principles elaborated in the following decisions and authorities to which they make reference: Putnam v. Railway, 164 Mich. 342 (129 N. W. 860); King v. Railway Co., 176 Mich. 645 (143 N. W. 36); Prince v. Railway, 192 Mich. 194 (158 N. W. 861); Travelers’ Indemnity Co. v. Railway, 193 Mich. 375 (159 N. W. 528).

The judgment is therefore affirmed.

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


author: Steere, J. Moore, J.

text:
    MILLS v. WATERS.
    Railroads — Crossing Accidents — Automobiles — Negligence— Question for Jury.
    It was a question for the jury whether the driver of an automobile struck at a railroad crossing at night, was guilty of contributory negligence, where it appeared that the freight train which struck plaintiff’s car was running backward without lights or signal at the end, that the headlight of the engine was not visible at the crossing, that there’was a clear view except for the darkness for half a mile in each direction, and that plaintiff kept looking for trains and did not see any until he had crossed two tracks and was on the third and last one. Steere, Brooke, and Fellows, JJ., dissenting.

    Error to Gratiot; Searl, J.
    Submitted June 7, 1917.
    (Docket No. 5.)
    Decided December 27, 1917.
    Rehearing denied March 28, 1918.
    Case by James Mills against Dudley E. Waters and Paul H. King, receivers of the Pere Marquette Railroad Company, for personal injuries and damages to his automobile. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Charles H. Goggin, for appellant.

      Parker, Shields & Brown (John T. Mathews, of counsel), for appellees.

       As to care required of driver of automobile at railroad crossings, see notes in 21 L. R. A. 794; 29 L. R. A. (N. S.) 924; 46 L. R. A. (N. S.) 702.

   Steere, J.

On November 5,1915, plaintiff sustained injuries to his automobile and person in a crossing accident at Alma, in Gratiot county, at the intersection of Grover avenue' and Superior street, caused by a backing train of freight cars upon defendants’ track striking his automobile. , Charging the accident to defendants’ negligence, he subsequently brought this action to recover damages, and upon trial a verdict was directed by the court for defendants at the close of plaintiff’s testimony, on the ground that he was guilty of contributory negligence in failing to stop, look, and listen before attempting to cross defendants’ tracks.

It appears from plaintiff’s own testimony that he did not stop his car before attempting to cross, which has been held to be contributory negligence as a general rule; but it is claimed in his behalf that the facts shown here present a recognized exception to that general rule, entitling him to take the verdict of a jury under various authorities cited, Gorton v. Harmon, 152 Mich. 473 (116 N. W. 443, 15 Am. & Eng. Ann. Cas. 461), and Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33), being emphasized as particularly in point.

Whether a plaintiff was guilty of contributory negligence is concededly a question for the jury if his testimony, viewed in its most favorable aspect,, prima facie shows him free from negligence and raises an issue of fact upon that controlling question; and in considering the testimony where a verdict has been directed for defendant the appellate court will only seek to determine whether there is any testimony tending to sustain the burden imposed upon plaintiff to show that he exercised that degree of care and vigilance which a reasonably prudent and cautious man would and should do under like circumstances.

Plaintiff is a farmer, 42 years of age, residing about-3 miles north of Alma. On the day of the accident he had been attending the circuit court at Ithaca, the county seat, where he was serving as a regular juror for the term. While so serving he lived at home, driving to court daily in his automobile. His regular, route was through Alma along Grover avenue, which runs north and south, ending in Superior street just north of where it is crossed by three tracks of defendant. Superior street is the principal east and west business street of Alma, and a main thoroughfare for traffic into Alma from the east and Grover avenue, connecting with it from the south. At this crossing the three tracks of defendant running in a northeasterly and southwesterly direction cross both streets, Superior at an acute angle, and Grover nearly at right angles. The north track is the main line; the two tracks south of it being switch tracks leading to the Michigan Sugar Company’s factory, located a short distance to the southwest of the crossing. The two side tracks connect with the main line a little over 280 feet east of the crossing and north of Superior street. From the south rail of the main line in the center of Grover avenue to the south rail of the nearest switch track is 21 feet 11 inches, and .to the one farthest south 49 feet. Running from the center of the city easterly along the north side of the’railroad to this crossing, Superior street jogs somewhat to the southeast just where the railroad tracks cross it, and then turns more easterly again, running from that point on the south side of the railroad, so that one traveling north on Grover avenue would in passing over the crossing necessarily veer to the west into Superior street when passing over the tracks. Going from the crossing towards his home, plaintiff' would turn westerly on Superior street for a short distance, and then north again on a connecting north and south road.

Defendant’s line is comparatively straight through this section, and the country sufficiently level that from any point on this crossing a train is visible in daylight for at least half a mile looking east and from a half to three-quarters of a mile looking west. Plaintiff was familiar with the crossing, having passed over it many times, and had during several seasons crossed it in delivering beets from his farm to the sugar factory.

On the day in question court adjourned shortly after 5 o’clock, and plaintiff started home, accompanied by a neighbor, in his automobile, which was equipped with an electric self-starter, electric lights, service and emergency brakes, and other customary equipment for efficiency. He testified that it was getting dark when they left Ithaca, and he turned on his lights; that coming into Alma from the south on Grover avenue he was running at the rate of about 10 miles an hour, and as he approached the crossing it was so dark he could not see the forms of houses along either side of the street, but could see lights as he drove along, shining from residences and the sugar factory; being familiar with the crossing, he had it in mind, and as he approached it commenced to watch and listen for trains, slowing down his car, partially releasing the clutch with his right foot, and cutting down the feed of his gasoline, so that when he reached the south track he was going at about 4 miles per hour; that Grover avenue, approaching this crossing from the south, is slightly downgrade, so that he was practically coasting, with his car under safe control, and barely enough gasoline applied-to avoid being stalled; that under these conditions the wheels and chassis made no noise at all, and the sound of the motor was so slight as not to interfere with his hearing; that he continued to look each way, listening as he looked, saw and heard nothing, crossed the first track yet watching, and, neither hearing nor seeing any sounds or signals or lights indicating an approaching train, continued on. As he came almost to the main track after crossing the two switch tracks, and just as he swung his auto more to the west where the traveled way turned onto Superior street, a man appeared to him coming from the east on the north side of the main track, who “swung his lantern and hollered ‘Stop!’ ” which was the first plaintiff knew a train was coming, but he was then so near the track he could not do anything. The end car of the train, which was backing slowly, struck his auto just at the rear of the front seat, capsizing and dragging it along for some distance, completely wrecking it, spraining and bruising plaintiff, who fell under it, so that he required the services of a physician and was laid up for some time.

On cross-examination plaintiff testified that the top of his automobile was up, and the wind shield entirely closed; that he had probably slowed down to 5 miles an hour, and, going at that rate of speed, he could stop his automobile with the service brake in 5 or 6 feet; there was a space of 21 feet between the north switch track and main line where he could have stopped in safety and listened without getting out. His engine was making some noise, but not to amount to anything, and his reason for not stopping before going upon the track was:

“I didn’t think it was necessary, I guess, * * * because I did not see any train or anything.”

He further testified:

“I don’t remember that I saw anything after the man called me to stop. I did not see the train at the time it bumped into me, because I was not looking that way; at the time I was looking ahead to see where I was going. * * * As I approached that crossing my lights were shining ahead so that I could see plainly there were three railroad tracks at that crossing. I could not say positively whether I looked east before the front wheels struck the first south rail of the south track. I could not say how many seconds I looked east. I looked the same as a man would look. I could not see anything as I looked to the east there. I looked back and forth both ways as I was going across there. I couldn’t say where the car was when I looked east again after the first time. I will swear that I looked east again. I looked back and forth as I went across there, same as any man would crossing a railroad track where he knows that there is liable to be cars.”

It is undisputed that plaintiff’s automobile was struck by the rear car of a switch train consisting of a number of gondola cars and an engine which had gone from the sugar factory east on one of the switch tracks, over the crossing to switch onto the main track along which it was backing slowly westward, with no one stationed at the crossing and none of the- train crew upon the end car in the direction the train was moving, nor light or signal at that end. It was moving quietly along at the rate of from 4 to 6 miles an hour; with a brakeman walking on the north side of the rear car carrying a railroad lantern, but concealed by the car from any one approaching from the south along Grover avenue. The engine was some distance away, headed eastward, and its headlight reflected in the opposite direction was not visible at the crossing.

Defendant introduced no testimony. Plaintiff called several who happened to be in that vicinity at the time of the accident. While their testimony is to the effect that it was a dark evening, that the train was- moving slowly, not making much noise, and not plainly visible, it is not altogether in harmony with his claim that the train could not be seen and heard as-it approached the crossing. One witness testified to hearing the engine whistle and others to hearing or dimly seeing the train before the accident. A boy named Ellison, who was selling papers some distance from the crossing, approximated by him at 15 rods, testified that he could just dimly see the train and heard it rumbling as it approached.

It is very evident that, had the brakeman, who was on the ground behind the rear car, been where he ought to have been, this accident could not have occurred, and it is equally evident that, had plaintiff stopped, looked, and listened just before reaching this well-known, to him, danger line of the main track, as has been many times held to be the duty of the driver of an automobile when his vision is obstructed, he would have escaped injury.

That defendant was guilty of negligence by reason of failing to properly guard the rear of its backing train at the crossing there can be no question; but can it be said from plaintiff’s own testimony that there was no negligence on his part? The rule of comparative negligence does not obtain in this ¿State. To recover it was incumbent upon him to affirmatively show he exercised due care and was free from any negligence which contributed to his injury.

Plaintiff was familiar with this crossing, and knew frequent switching was going on there at that season of the year during the sugar beet campaign, and that his route took a right angle turn to the west just at this crossing, to be made in part upon the railroad tracks. He states it was so dark as he approached the crossing that he could see nothing, except by artificial light. His own lamps were lit and shining brightly along the highway before him. He naturally knew that watching the lighted way as he drove both diverted his attention from and blurred his vision to objects not in the light. He sat on the left side, driving his auto with the top up and windshield closed. His companion, who was not called as a witness, sat on his right towards the approaching train. His engine was running, and made some noise, which he minimizes. So situated, he says he looked and listened, and could neither see nor hear anything. . Others, his own witnesses, who were not so hampered, both heard and dimly saw the train a sufficient distance away within which he could have stopped in safety had he seen and heard as they did. He testified that his sight and hearing were normal, he was not in a hurry, and could have stopped his car in 5 or 6 feet, but he guessed it was not necessary, preferred to take the chance rather than the bother of stopping to make it sure, and says, “I was depending for my safety on getting across, I guess.”

It is urged for plaintiff that the two cases of Van Auken and Gorton against railroads, supra, are particularly-in point as precedent, because the controlling elements constituting exceptions to the general rule were there, as here, that the only obstruction to the traveler’s view was darkness of the night, the view being clear and unobstructed in the daytime, and, darkness not being a permanent obstruction, plaintiff could see and hear at all times the customary signals required to be given by trains at crossings, upon which he had the right to rely. In the Van Auken Case, containing four opinions, two of which are dissenting, Justice Hooker in a concurring opinion particularly points out that:

“The inference should not be drawn that absence of light excuses negligence.”

In the Gorton Case it was claimed that defendant ran its train through the country and across highways at 30 miles an hour without any headlight, which the court pronounced “a most unusual thing,” saying:

“It is a matter of common knowledge that trains” so running “almost universally have headlights” throwing “a powerful light ahead,” which “can be seen, where” no obstructions intervene, “for a great distance.”

While certain things said in deciding those cases may tend in the abstract to support plaintiff’s argument, we do not regard them as analogous to this case in their controlling features. They, with other cases of their class relating to accidents where horse-driven vehicles collided with trains, were before this court when the later cases of Colborne v. Railway, 177 Mich. 139 (143 N. W. 32), and Sanford v. Railway Co., 190 Mich. 390 (157 N. W. 38), were decided, in which this court, with abundant precedent, recognized the increased importance under present conditions of the simple and common sense general rule requiring travelers on highways to stop, look, and listen at railroad crossings in its application to automobiles, because of their capacity for great speed, and resultant speed mania, while they can at the given time be controlled and stopped with ease and certainty.

“The proper application of this rule for one driving an automobile is simple, and in concrete cases far less difficult than for the driver of horses.” Chase v. Railroad Co., 208 Mass. 137 (94 N. E. 377) ; citing Hubbard v. Railroad Co., 162 Mass. 132 (38 N. E. 366).

A wise, general rule as easily observed as this, particularly by automobiles, ought not to be undermined by exceptions in favor of automobile drivers.

The controlling principles involved here are fully discussed, with citation of authorities, and squarely decided, in the Sanford Case. Plaintiffs own evidence discloses that he failed to do the one sure thing to avoid accidents, and made chance the guaranty of his safety, neglecting the easily observed duty imposed upon him by law for both his own and others.’ safety.

The judgment should be affirmed.

Brooke and Fellows, JJ., concurred with Steere, J.

Moore, J.

I do not agree with the conclusion reached by Justice Steere. I think the instant case is clearly distinguishable from the cases which he cites, of Colborne v. Railway, 177 Mich. 139 (143 N. W. 32), and Sanford v. Railway Co., 190 Mich. 390 (157 N. W. 38). In the first of these cases the car of the defendant company was lighted, and the lights could have been seen had the plaintiff looked. In the last of these cases the accident occurred in the daytime, and the obstructions were physical, through which the plaintiff could not see had he looked. In the instant case there was no obstruction to the line of vision. If defendant had done its duty by properly placing its lights, the plaintiff would have seen the approaching train.

In Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33), Montgomery, J., speaking for the court, said in part:

“Our decisions have settled the law as follows:
“First. A railroad track is, in and of itself, a warning of danger, calling upon one about to cross to use his senses, and to look arid listen for approaching trains. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274.
. “Second. It is not incumbent in all cases for the driver to stop his team, if the track is clear, and he can safely rely on his sense of sight. Guggenheim v. Railway Co., 66 Mich. 158 (33 N. W. 161); Thomas v. Railway Co., 86 Mich. 504 (49 N. W. 547) ; Richmond v. Railway Co., 87 Mich. 380 (49 N. W. 621).
“Third. As to whether, in a particular case, the driver is justified in relying upon his sense of sight alone, must, we take it, depend upon the circumstances of the case presented. * * *
“In the present case there was no obstruction other than the darkness, which, of course, would not have prevented the plaintiff and her companions from seeing a headlight. The sense of sight was therefore as safe a guide as in the daytime, unless it be held that travelers are guilty of contributory negligence as matter of law in not anticipating that trains will be run in the open country without headlights. We think the law ought not to be so. It is most unusual and extraordinary for this to occur. And we think it should be at least a question for the jury as to whether a traveler is in fault in failing to anticipate and guard against such an unusual thing as the running of a train without a headlight.”

In Morgan v. Railroad Co., 162 Mich. 573 (127 N. W. 683), Bird, C. J., said in part:

“We cannot say that reasonably prudent men would not do likewise under similar circumstances.^ Had there been no willows or underbrush on the right of way, he could have observed the train from his wagon before he reached the track. Had the engine been facing the direction in which it was going, and its headlight lighted, plaintiff -might have seen the reflected light on the track in time to stop. Plaintiff had a right to assume that, if there were a train approaching, it would be operated in the usual and customary way; that is, that the customary warnings would be given, and that a headlight would signal its approach. . How far plaintiff was misled, if at all, by the failure of defendant to observe these customary methods of operation, we are unable to say. Therefore we think that the question of whether he should have stopped before attempting to go across was a proper question to .submit to the jury, together with all the other facts and circumstances in connection with it.”

In the ease before us the darkness was not an obstruction that would prevent seeing a light in the line of vision, and if the plaintiff took the precautions to which he testified, he would have seen the approaching train, if the trainmen had done their duty by placing proper lights, and no injury would have occurred.

The question of the contributory negligence of the plaintiff should have been submitted to the jury under proper instructions.

The judgment is reversed, and a new trial ordered, with costs to the plaintiff.

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


author: Fellows, J. Ostrander, J.

text:
    PELLSTON PLANING MILL & LUMBER CO. v. VAN WORMER.
    1. Execution — Right to Redeem — Statutes.
    The right to redeem from execution sales is a creature of statute.
    2. Same.
    The right to redeem from execution sale, in the absence of contract, continues during the period fixed by statute, and no longer.
    3. Same.
    The period within which the execution debtor may redeem is fixed at one year from the time of execution sale, by Act No. 314, Pub. Acts 1915, chap. 23, §§ 96, 97 (3 Comp. Laws 1915, §§ 12911, 12912), and is not extended by section 113, giving execution creditors 15 months to redeem.
    4. Same — Right to Redeem — Extension oe Time — Verbal Agreements.
    The right to redeem from an execution sale, being a right created by law, the time for its exercise may be prolonged by verbal agreement.
    5. Same — Redemption—Statutory Rights — Waiver.
    The statutory period of redemption from execution sale of one year is waived by a senior execution creditor where, after the expiration of such period, and before any junior execution creditor has acquired any rights, he accepts payment of his judgment.
    6. Appeal and Error — Chancery Appeals — Judicature Act Preserving Evidence Excluded por Review.
    The evidence in a chancery case will not be reviewed on appeal where it is not taken down nor returned pursuant to Act No. 314, Pub. Acts 1915, chap. 17, § 5 (3 Comp. Laws 1915, § 12493), relating to the exclusion of testimony by the trial court, and providing that the court may, in its discretion, if the excluded evidence is brief, permit the same to be taken down by the stenographer separate and apart from other testimony and to be returned to the appellate court under certificate of the trial court.
    7. Execution — Rights op Junior Execution Creditor — Redemption.
    The levy of a junior execution creditor upon land sold to a senior execution creditor is upon lands of the execution debtor and not upon the latter’s right of redemption.
    8. Same — Subrogation—Redemption.
    All rights of subrogation to the rights of the senior execution creditor by a junior execution creditor are barred where the senior levy is discharged after the period of one year from the sale and within the 15-months’ period by the acceptance of payment from the execution debtor. Ostrander and Stone, JJ., dissenting.
    9. Damages — Speculative Damages — Conjectural Damages.
    On a hill to set aside a sheriffs deed to an execution creditor, evidence of the loss of profits from the operation of a mill, held, too speculative and conjectural to be allowed.
    Appeal from Emmet; Shepherd, J.
    Submitted June 20, 1917.
    (Docket No. 92.)
    Decided December 27, 1917.
    Bill by the Pellston Planing Mill & Lumber Company against Austin H. Van Wormer to set aside a sheriff’s deed, to restrain defendant from entering or remaining on the premises, and for general relief. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      C. J. Pailthorp, for plaintiff.

      MesicJc & Miller, for defendant.
   Fellows, J.

December 10, 1914, the sheriff of Em-met county levied on premises of the present plaintiff, situated in that county, to satisfy an execution, theretofore issued out of the circuit court, upon a judgment rendered in justice’s court and duly transcribed, in favor of the Rockwell Manufacturing Company. On March 30, 1915, said premises were sold at execution sale to Roy A. Darling, for the sum of $130.14, and a certificate of sale was issued to him; on January 11, 1916, he assigned such certificate to the First State Bank of Petoskey; on March 30, 1916, the bank assigned such certificate to Arthur B. Weyant. It is alleged in the bill that at this time $36.05 was paid to the bank by plaintiff; that Weyant furnished the balance of the money and took the assignment as plaintiff’s representative, with an understanding that he should hold it for plaintiff’s benefit. On June 12th, the amount due was paid to Weyant by plaintiff and he executed a receipt, which we think sufficiently describes the judgment, and which receipt was filed in the office of the register of deeds.

On September 7, 1915, the present defendant recovered a judgment against plaintiff, in the circuit court for the county of Emmet, for the sum of $1,00.0 and costs, which were taxed at $67.30. ' On September 16, 1915, execution on this judgment was levied upon the same premises of plaintiff, as was the Rockwell Manufacturing Company’s execution, and, it is said, upon others. June 23, 1916, defendant paid to the register of deeds the amount of the Rockwell Manufacturing Company’s execution sale, together with interest, and presented to and left with such register all the papers required by section 112, chap. 23, Act No. 314, Pub. Acts 1915 (judicature act, 3 Comp. Laws 1915, § 12927). On July 1st, the sheriff executed and delivered to defendant his deed of the premises, purporting so to do by virtue of the sale on the Rockwell Manufacturing Company execution and the proceedings taken by defendant, and thereupon defendant took peaceable possession of the premises, or at least a portion thereof, in the name of the whole.

This bill was filed to set aside the sheriff’s deed, to restrain defendant from entering or remaining.on the premises, and for general relief. The regularity of the proceedings, upon which both executions rest, is not assailed. The bill was dismissed and plaintiff appeals.

It is the claim of plaintiff that it had a right to redeem at any time within 15 months after sale; that, however, within the year after the sale it made arrangements with Mr. Weyant to advance some of the money needed to take up the Rockwell Manufacturing Company’s claim and hold the certificate of sale as security; that it paid, and the holder of the certificate accepted, the full amount of the Rockwell Manufacturing Company’s judgment within the 15 months, and before defendant took the steps it did to redeem as an execution creditor; that the sheriff’s deed is void and should be set aside and defendant be required to respond in damages for the profits plaintiff might have made during the time defendant possessed the premises.

Defendant insists that the right of the plaintiff to redeem the premises from the execution sale ceased at the expiration of one year from the date of the sale; that thereafter the right to redeem existed exclusively in execution creditors having a levy, and that this right could not be taken away by any arrangement between the judgment debtor and senior execution creditors, or by payment and acceptance of the amount of the senior execution creditor’s sale; that, by the proceedings taken by him, pursuant to the statute, he acquired the right as redemptioner to have the sheriff’s deed issued to him; that it was in all regards valid and passed title to the premises; that plaintiff is not entitled to the premises, or to any damages for their being withheld.

The right to redeem from execution sales did not exist at common law but is a creature of the statute. An execution debtor has the right to redeem given him by the statute law of this State, and, so far as we have been able to find, by the statute law of all the States in the Union. As distinguished from his right to contract upon the subject of redemption, which we shall discuss later, and speaking only of his legal right to redeem, such right depends upon legislative action, and is controlled by it. His right to redeem continues during the period fixed by the statute, and it continues no longer. Youmans v. Loxley, 56 Mich. 197 (22 N. W. 282) ; Ross v. Mead, 5 Gil. (Ill.) 171; Cam-pau v. Godfrey, 18 Mich. 27 (100 Am. Dec. 133); Cameron v. Adams, 31 Mich. 426. By sections 96 and 97 of chapter 23, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, §§ 12911, 12912), which are the re-enactment of former legislation, this period within which the execution debtor may redeem is fixed at one year from the time when the execution sale was made. By section 113 of the same chapter (3 Comp. Laws 1915, § 12928) it is provided:

“The right and title of the person against whom the execution was issued, to any real estate which shall be sold thereby, shall not be divested by such sale, until the expiration of fifteen months from the time of such sale; but if such real estate shall not be redeemed as herein provided, and a deed shall be executed in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time of the sale on such execution, for the purpose of maintaining an action for any injury to such .real estate.”

By this section the right and title of the judgment debtor to the real estate is not divested until the full time within which both he and execution creditors may redeem, but the period within which his right to redeem exists is fixed by the sections above referred to, and that period is not extended by section 113. The fact that the statutory period within which execution creditors may redeem was fixed at 15 months does not, in any way, modify or change the statutory period fixed within which execution debtors may redeem, but furnishes a reason for the provisions of section 113. It was within the province of the legislature to fix one period for the execution creditor and another for the execution debtor. This it has done. We conclude that one year, and one year only, is given the execution debtor within which he may enforce his right to redeem.

But it is urged that the execution debtor and the execution creditor may make such arrangements with reference to the redemption of the premises, and may enter into such contracts with reference thereto, as they may see fit, and the contracts are enforceable. If they may contract and bind themselves with reference to the extension of time to redeem beyond the year, may they not, in the absence of an express contract in advance, after the year has expired, discharge the lien, if done before any junior execution creditor has acquired rights in it by taking the steps pointed out in the statute? We think it is clear they may. If parties may validly contract for the doing of a particular thing, they may validly do that particular thing without contracting in advance. The authorities are numerous, and we think substantially uniform, that the execution creditor and the execution debtor may bind themselves by an agreement to extend the time for redemption, and that such agreement does not fail by reason of the statute of frauds. Mr. Freeman, in his work on Executions (3d Ed.), § 316, vol. 3, p. 1859), lays down the rule in the following language:

“So, if any agreement is entered into subsequently to the sale, though by parol, the substance of which is that the purchaser, or other holder of the certificate of sale, will treat it as a mere security, or will give a definite time in which to redeem, it will be enforced. The effect of such an agreement is to prevent any effort on the part of the debtor to redeem within the time designated by the statute; and not to enforce it in his favor, when it had been the means of lulling him into inaction, would be to pervert it into a cruel and fatal decoy. This the courts will not permit, nor will they heed the plea that the contract cannot be received in evidence because within the statute of frauds.”

The rule finds support in numerous cases, among them see the following: Schroeder v. Young, 161 U. S. 334, 344 (16 Sup. Ct. 512) ; Turpie v. Lowe, 158 Ind. 314 (62 N. E. 484, 92 Am. St. Rep. 310) ; Vannoy v. Martin, 41 N. C. 169 (51 Am. Dec. 418); Burt v. Gamble, 98 Mich. 402 (57 N. W. 261); Smith v. Michigan State Bank, 102 Mich. 5 (60 N. W. 438); Combs v. Little, 4 N. J. Eq. 310 (40 Am. Dec. 207) ; Griffin v. Coffey, 9 B. Mon. [Ky.] 452 (50 Am. Dec. 519). In the last-cited case it is said:

“The right to redeem being a right created by law, the time for its exercise may be prolonged by the verbal agreement of the parties.”

If, then, the execution creditor may validly contract to waive the statutory period of redemption we think he may waive it, and does waive it when he accepts payment of his judgment.

There is an allegation in the bill to the effect that the redemption period was extended by an arrangement between plaintiff and Weyant, but the court excluded the evidence to this effect, and it was not taken down or returned pursuant to section 5, chap. 17, Act No. 314, Public Acts 1915 (3 Comp. Laws 1915, § 12493), and is therefore not before us. But, as we have indicated, the case must be controlled by the same theory, whether the redemption was pursuant to the terms of a pre-existing contract, or arrangements then made.

The levy of the defendant was upon the lands of the plaintiff. It was not a levy upon plaintiff’s right to redeem, or his right to contract with reference to such redemption. While the. second levy is frequently spoken of as a levy upon the equity of redemption, cases which have the question squarely involved hold that the levy is not a levy upon the right to redeem. Merry v. Bostwick, 13 Ill. 398 (54 Am. Dec. 434), Hamilton v. Hamilton, 51 Mont. 509 (154 Pac. 717) ; Watson v. Reissig, 24 Ill. 281 (76 Am. Dec. 746). Our statutes on the subject set the matter at rest. It provides that the defendant in the execution may redeem; his devisees, executors, and administrators, his heirs, his grantees, or his vendees of the right may redeem. Section 97, chap. 23, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12912). The right to redeem, therefore, passes by devise, descent, grant, or sale; and this, no matter how many executions have been levied. The parties given the right to redeem may redeem from any or all executions, and the second levy does not take away or create a lien upon such right. It therefore follows that when defendant made his junior levy it was upon the lands of the plaintiff, and not upon plaintiff’s right to redeem from the first levy; that right was still free and unencumbered after the levy.

But it is urged that when defendant made his levy he acquired rights of his own; that he acquired the right by taking certain steps to redeem from the senior levy. True, he did acquire such rights, and so long as such senior levy was in existence the defendant, by taking the steps provided by the statute, might become subrogated to all the rights of the senior execution, creditor. But he must do this when such rights were in force, before they were extinguished. This he did not do. After they were extinguished by payment, acceptance thereof, and discharged, no lien or rights longer existed and there were no rights to be subrogated to. Defendant had no interest, and could have or acquire no interest in the senior execution until, and unless, he took the steps for subrogation provided in the statute. In the instant case, when those steps were taken, the senior lien and the rights thereunder had been extinguished by payment, and by a payment which, we have shown, could lawfully be made and which operated as a discharge of the lien and the indebtedness secured thereby.

We are unable to find that the plaintiff is entitled to recover damages. The premises have not deteriorated. The claim for damages grows out of prospective profits. We are very doubtful upon this record, whether the mill is in physical condition to do a profitable business. We think that the prospective profits, under the testimony in this case, are too speculative and conjectural to be allowed, within the cases of Allis v. McLean, 48 Mich. 428 (12 N. W. 640), and Truman v. Machine Co., 169 Mich. 153 (135 N. W. 89).

It follows that the decree of the court below must be reversed and one entered here setting aside the sheriff’s deed to defendant and vacating the interest of defendant acquired thereby, but not affecting defendant’s lien under the execution issued upon his judgment. The plaintiff will recover costs of both courts.

Kuhn, C. J., and Bird, Moore, Steere, and Brooke, JJ., concurred with Fellows, J.

Ostrander, J.

(dissenting). The statute provision (Act No. 314, Pub. Acts 1915, chap. 23, § 101, 3 Comp. Laws 1915, § 12916), is that:

“In case the persons entitled as hereinbefore provided, shall omit to redeem the premises so sold, or any part of them, within the year above prescribed, then the interest vested in the purchaser by such sale may be acquired within three months after the expiration of such year, by the persons, and on the terms hereinafter prescribed.”

The thing which may be acquired is the interest vested in the purchaser by such sale. This interest, “the title of the original purchaser,” may be in turn acquired from his vendee or grantee by purchase by any other creditor who might have acquired it originally. Section 106 (§ 12921).

In this case the year expired March 30, 1916. The certificate evidencing the title of the original purchaser at execution sale was then held by Arthur B. Weyant, assignee of the State Bank of Petoskey, which was assignee of the purchaser at the execution sale. Left in his hands, no creditor seeking the right which the statute gave him, the holder of the certificate would have been entitled to a deed from the sheriff, and any junior levy on the premises would have been extinguished. There was no redemption by the owner of the land within the year. In consequence, the interest vested in the purchaser at the sale might thereafter be acquired by the defendant here, and it was acquired. No right of the plaintiff was thereby invaded. It$ right to redeem had expired. Undoubtedly, as between the purchaser at execution sale and his debtor, the owner of the land, an arrangement binding them only may be made, extending the time for payment of the debt. If the purchaser, during the year, agrees to accept his money after the year has expired, he ought to be bound. The reasons are stated by Mr. Freeman and set out by Mr. Justice Fellows in his opinion. But such an arrangement cannot affect the statute right of a creditor entitled, after the year, to acquire the interest vested in the purchaser at such sale. Otherwise, a right created by the statute is taken away by an arrangement between the execution purchaser and his debtor. The reasoning which will so defeat the right of junior creditors when payment of the debt is made after the year has expired will defeat it, if an arrangement to pay; not executed, is made by the execution purchaser and the debtor owner. The reasoning indulged by my Brother Fellows cannot be confined to a case in which payment is made after the year and before the junior creditor has exercised his right. The junior creditor’s right does not depend upon its exercise on a particular day during the three months’ period. His right is a right to acquire the title of the original purchaser at any time within three months after the expiration of the year.

In my opinion, the decree below is right and should be affirmed.

Stone, J., concurred with Ostrander, J.


author: Kuhn, C. J.

text:
    RAMSEY v. CHILD, HULSWIT & CO.
    1. Limitation of Actions — Fraudulent Concealment of Rights —Statutes—Applicability to Law and Equity.
    Act No. 314, Pub. Acts 1915, chap. 9, § 20 (3 Comp. Laws 1915, § 12330), providing that when a cause of action is fraudulently concealed from the knowledge of the party entitled thereto, the action may be commenced at any time within two years after discovery of the fraud, applies both at law and in equity, even though the cause of action is based on original fraud.
    2. Same.
    Act No. 314, Pub. Acts 1915, chap. 9, § 20 (3 Comp. Laws 1915, §12330), was intended not to curtail, but, when applicable, to enlarge, the six-year limit provided by section 13, and applies in an action at law only when it will in fact enlarge it, and hence an action at law is barred in six years from the commission of the act complained of, unless the fraudulent concealment section can be invoked to extend the time, and even theij, unless brought within two years from date of discovery of the cause of action.
    3. Same.
    There was no fraudulent concealment of a cause of action of fraud in the sale qf the bonds so as to make available the provisions of Act No. 314, Pub. Acts 1915, chap. 9, § 20 (3 Comp. Laws 1915, § 12330), where a purchaser of bonds from a bond house did not receive interest on her coupons at the time they were due and was afterwards informed that the enterprises were in serious financial straits, and the organization of bondholders’ protective associations was urged, and the associations were perfected and she otherwise received information which should have put her on inquiry, since the statute was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by the facts known.

    4. Same — Confidential Relations — Fraud—Notice.
    The fact that the relation of trust and confidence exists between a purchaser of bonds and a bondhouse officer cannot impair the legal effect of notice of fraud in the sale which should have put her on inquiry so as to render available the provisions of Act No. 314, Pub. Acts 1915, chap. 9, § 20 (3 Comp. Laws 1915, § 12330).
    5. Same — Public Policy.
    Statutes of limitations are based on public policy, are vital to the welfare of society and are favored in law.
    6. Same — Delay—Bar to Action.
    Mere delay extending to the statutory limit is itself a conclusive bar to the prosecution of an action.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted June 26, 1917.
    (Docket No. 75.)
    Decided December 27, 1917.
    Assumpsit by Cyanea H. Ramsey against Child, Hulswit & Company for money obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Swarthout & Master, for appellant.

      Butterfield & Keeney (Charles B. Blavr, of counsel), for appellee.

       On effect of running of statute of limitations of request not to sue or agreement not to plead the statute, see notes in 63 L. R. A. 193; 16 L. R. A. (N. S.) 645.

   Kuhn, C. J.

In this case an order was made sustaining a motion to dismiss plaintiff’s declaration.' The action is assumpsit to recover for alleged fraud and deceit in the sale of bonds, and the motion to dismiss is based upon the ground that the action, as appears from the face of the declaration, is barred by the statute of limitations.

Of the eight specific grounds alleged in the motion to dismiss, the seventh (which relates merely to matters of form) has been withdrawn from the consideration of this court by stipulation of the parties, and the remainder may be classified under two general heads, viz.:

(1) Because it appears that plaintiff paid out her money for the bonds in question more than six years before the commencement of suit, and that therefore the action is barred by the statute of limitations. Act No. 314, Pub. Acts 1915, chap. 9, § 13 (3 Comp. Laws 1915, § 12323).

(2) That the action is barred by the “fraudulent concealment section” of said statute (3 Comp. Laws 1915, § 12330); the claim being that the declaration discloses that plaintiff had the means of discovering and did discover her right of action, or did not use due diligence to discover it, and that the declaration does not sustain the claim that the cause of action was only discovered within six months of the date suit was brought, or at any time within two years prior thereto, nor show when or how the discovery was made, or why it was not made sooner, or that plaintiff, with ordinary care, could not have seasonably detected it, or that the concealment of the cause of action was brought about by any act of defendant, or that it prevented inquiry, but, on the contrary, shows that the defendant informed the plaintiff of all the facts on which the cause of action is based, at least as early as the year 1911.

The substance of the principal allegations of the declaration is as follows: That in the years 1909 and 1910 the defendant corporation, which represented itself to be a bank or investment bank and bond house, with a capital of a quarter of a million dollars, and maintaining large and expensive offices in Grand Rapids, placed on the market large issues of irrigation bonds of the Denver-Greeley Valley irrigation district and the North Denver irrigation district, in the State of Colorado, and the Big Lost River Irrigation Company, in Idaho. That defendant advertised these bonds extensively and in a manner calculated to deceive unsuspecting people, and particularly women, and urged investors to establish relations of confidence with a bond house of known high standing and consult it regarding investments, in order to secure the benefit of its experience and knowledge, through the mutual confidence thus established. That plaintiff, a maiden lady, upwards of 60 years old, had certain moneys on deposit in the City Trust & Savings Bank, of Grand Rapids, of which one Hugh Blair was cashier up to May 1, 1909, when he became a director and treasurer of the defendant corporation and its agent and manager in charge of the sale of stocks, bonds, etc. That said Hugh Blair was well known and highly regarded by plaintiff by reason both of his business and his family and social connections, and that she confided in and trusted him in business matters. That immediately after his connection with defendant, Mr. Blair began a course of persuasion to induce plaintiff to invest in the bonds of said irrigation districts. -That agents and bond sellers of defendant were sent to her home in a distant part of Grand Rapids, and she also began to receive large quantities of circulars and advertisements relative to defendant’s irrigation bonds. That representations were made to her verbally by Blair and other officers of defendant, as well as by its bond sellers and agents, and similar representations were made through the advertising matter sent her, concerning the character of the bonds and of the security and the lands upon which they were claimed to be a lien. These representations all were of a glowing character, and it is the claim of plaintiff that.she confided in and relied upon these representations and warranties, and was thereby induced to purchase, and did purchase the following bonds:

On May 20, 1909, bond No. 3376 of the Denver-Greeley Valley irrigation district, face value $500, interest at 6 per cent., semi-annually; amount paid therefor $505.

On November 5,1909, bond No. 1486 of the Big Lost River Irrigation Company, face value $1,000,- interest 6 per cent., semi-annually; amount paid therefor $1,-010.

On January 19, 1910, bond No. 1728 of the Big Lost River Irrigation Company, face value $1,000, interest 6 per cent., semi-annually; amount paid therefor $1,-010.

On January 10, 1910, bond No. 1522 of the North Denver irrigation district, face value $500, interest 6 per cent., semi-annually; amount paid therefor $505.

That at the time of the making of said representations and warranties, they were untrue, false, and fraudulent, and that plaintiff, confiding in said Blair and defendant and defendant’s agents, was deceived and defrauded by them.

The declaration further sets forth: That the defendant paid one or two of the first group of coupons maturing on plaintiff’s bonds, but that the interest coupons due December 1, 1910, on the bonds of the two Colorado companies and those due January 1, 1911, on the bonds of the Idaho company were not paid when due, and though plaintiff demanded payment of same, that defendant has neglected and refused, and plaintiff has been unable to secure payriient. * * * That during the six months preceding the commencement of this action, plaintiff learned that none of the irrigation projects was ever completed, the lands were never settled, the irrigation works never constructed, no farmers, were living on the lands to pay taxes and none could be collected, the projects were bankrupt and out of business, and that the bonds and interest thereon were entirely worthless. Further, that the lands and works were not .free from prior liens, but subject to prior mortgages amounting to upwards of $1,000,-000, on which default had been made and foreclosure threatened, and that there were claims for construction liens, amounting to $1,000,000, on which foreclosure proceedings had been instituted.

After stating that, until the early part of 1911, plaintiff had no intimation that said bonds or the interest would not be promptly paid according to their terms, the declaration sets out a series of notifications by defendant and others to plaintiff, beginning in the early part of 1911, which admitted the serious difficulties in which the irrigation project then found itself by reason of financial and other troubles on the part of the great irrigation systems on which the districts covered by these bonds depended for water supply, and urged the organization of “bondholders’ protective-committees” in connection with both the Colorado and Idaho enterprises, and after such organization was effected, further communications from defendant and from the committees (of one of which Ralph S. Child, vice president and director of defendant, was a member) urged plaintiff to deposit her bonds with said committees, assuring plaintiff that work already done “removes all probability of complete failure of the project;” that plaintiff did deposit her Idaho bonds, the deposit being made with the defendant, and her receipt therefor being signed by Child, vice president; that the committees asked for funds to complete the project, held out the hope that the principal of the bonds and possibly some of the interest could be saved, and one communication from the Chicago Title & Trust Company assured plaintiff “that the only penalty to be suffered by those who are unable to protect their present investment by taking some of the new bonds is the loss of interest on their present bonds until after January 1,1914that plaintiff accepted as true the statements and advice of Blair to her during 1911, as she alleges, up to the time in said year when he left Grand Rapids to take up a permanent residence in California, to the effect that the companies would soon pay their interest,- and that she relied on his statements and was thereby lulled to sleep and did not take other counsel or advice nor make investigation of the complicated matters and explanations contained in the communications received by her, and never understood the meaning of same nor the status of the irrigation matters until within the six months immediately preceding suit, when she learned that all of the projects had failed and her bonds were worthless. The theory of the declaration is stated to be that the formation of the bondholders’ protective committees and the procedure taken was designed to prevent plaintiff from investigating the complicated situation, and further that the whole scheme was devised by defendant and Trowbridge & Niver Company and others “for the purpose of foisting these spurious issues of bonds on the unsuspecting public;” that the bondholders’ protective agreements were a part and a continuance of the fraud, devised to keep the bondholders from bringing suits, and that this conduct has worked an estoppel against defendant, preventing it from pleading the statute of limitations, and has given to the original fraud and deceit a continuing character whereby defendant is deprived of the protection of the statute prior to the discovery of the fraud by plaintiff, which she claims occurred within the six months immediately preceding suit.

A second and third count are added to the declaration, the only variation in which that appears to call for special consideration as bearing on the questions involved in the motion to dismiss is that they allege in the alternative that defendant warranted the bonds and their securities and the conditions surrounding the issuance. These are followed by the common counts, and a bill of particulars was filed showing the exact dates of the plaintiffs purchases of bonds and the dates and amounts of unpaid interest installments.

After a hearing of the motion to dismiss, the court below filed a finding that the motion must be granted and entered an order giving plaintiff leave to amend her declaration within 15 days, in default whereof the declaration to be dismissed. After the expiration of the 15 days, plaintiff having failed to amend her declaration, final judgment was entered dismissing the suit.

The question before us. depends for its solution chiefly upon the construction to be placed upon the Michigan statute of limitations. The gravamen of plaintiff’s action is that she was induced by the defendant to purchase the four bonds in question through certain alleged false and fraudulent representations. The first of said bonds was bought on May 20, 1909, and the last one January 19, 1910, and this suit was commenced October 7, 1916. Section 13 of chapter 9 of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12323) is as follows:

“All actions in any of the courts of this State shall be commenced within six years next after the causes of action shall accrue, and not afterward, except as hereinafter specified.”

Under the ordinary rule, plaintiff’s cause of action accrued upon the purchase of the bonds, and if this section governs, clearly her action is barred.

The learned counsel for the appellant, however, have argued at some length, and cited many authorities claimed to sustain their position, that where fraud is charged as the foundation of a suit, the statute of limitations begins, to run, not from the date of the commission of the fraud, but from the time the fraud is discovered. The question when the statute begins to run in such cases is one as to which there has been much confusion and conflict of authority. The strict rule formerly obtaining in courts of law was that in all such cases the statute began to run from the time when the fraud was perpetrated. But it has long been the rule in equity that where relief is sought from a fraud concealed from the complainant, being himself free from neglect or fault in failing to discover the fraud, .the statute begins to run from the time the fraud is. discovered. In the absence of such concealment, however, equity usually followed the same rule as courts of law, and indeed some courts of equity applied the rule at law even to cases of concealed fraud, when the fraud was discovered a reasonable time before the expiration of the statutory period from the date of the fraudulent act. On the other hand, courts of law in a number of jurisdictions began to show a tendency to adopt the equitable rule, and early decisions may be found in both State and Federal courts to the effect that a replication of concealed fraud is a good answer to a plea of the statute of limitations. This doctrine, however, was by no means universal. As a result of the conflicting decisions, many of the States undertook to settle the question in their respective jurisdictions by statute, and the equitable rule above referred to has been embodied, in varying form and with greater or less scope of application, in the statutes of many of the States, most of which make the rule applicable at law as well as in equity. Michigan has long had such a provision, which, in its present form, appears as section 20 of chapter 9 of the judicature act (3 Comp. Laws 1915, § 12330) and is as follows:

“If any person who is liable to any of the actions mentioned in this chapter, shall' fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.”

This statute applies both at law and in equity. It will be observed that the legislature did not see fit to adopt the equitable rule to the full extent of allowing the six-year limitation period to be considered as beginning at the date of discovery of the cause of action, but chose rather to allow a period of two years from date of such discovery within which to bring suit, as a special right, when by the strict terms of the general rule the action would be barred before the expiration of such two-year period. Under the two sections above quoted, a plaintiff now has, in any case, the full period of six years from the date of the fraudulent act, or other act creating his cause of action, within which to institute suit, and moreover, where the defendant has fraudulently concealed from him his cause of action, he has, under any circumstances, not less than the full period of two years from date of discovery in which to bring his action.

The latter section of the statute was intended not to curtail, but, when applicable, to enlarge,, the time for action limited by the former, and it applies only where it will in fact enlarge it. Without attempting to discuss what may still be the inherent power of a court of equity in Michigan in exceptional cases to go beyond the terms of the statute, even as modified, and on equitable grounds to grant additional relief, it is certain that in a suit at law the statutory provisions govern and an action such as the present is barred in six years from the commission of the act complained of, unless the fraudulent concealment section can be invoked to extend the time, and even then, unless brought within two years from date of discovery of the cause of action.

Counsel for appellant insist that section 20 does not apply to cases where fraud is the ground of action, but only where some other cause of action has been fraudulently concealed, and that therefore in actions based on original fraud the equitable rule allowing six years from date of discovery of the fraud applies. It-is a sufficient answer to this contention to say that this court has consistently applied the rule of section 20 to-cases where fraud is the ground of action (see Tompkins v. Hollister, 60 Mich. 470 [27 N. W. 651] ; Stebbins v. Patterson, 108 Mich. 537 [66 N. W. 484] ; Allen v. Conklin, 112 Mich. 74 [70 N. W. 339] ; also Purdon v. Seligman, 78 Mich. 132 [43 N. W. 1045] ; First Nat. Bank of Ovid v. Steel, 146 Mich. 308 [109 N. W. 423], as have also the courts of other States in the application of similar statutes (see Walker v. Soule, 138 Mass. 570; Brackett v. Perry, 201 Mass. 502 [87 N. E. 903] ; also Wood v. Carpenter, 101 U. S. 135 [Indiana statute]).

But appellant further claims that her declaration, does in fact show a fraudulent concealment from her of her cause of action until within six months prior to the commencement of suit, and that if section 20 does apply, her action is saved thereby. In support of this claim counsel insist: First, that where fraud is the-gravamen of the action, mere silence will toll the statute; and, secondly, that the alleged payment by defendant of the first group of coupons on the bonds, the subsequent correspondence leading to the formation of the bondholders’ protective committees and the proceedings and communications of said committees, together with the advice and explanations of defendant-through Mr. Hugh Blair and others, were acts amounting to a fraudulent concealment from plaintiff of her cause of action. Under our view of the law above announced, it is unnecessary to discuss the effect of the payment of the first interest coupons, because both the period of six years from the purchase of the bonds and the period of two years from the first default in payment of interest had expired before this suit was begun, and plaintiff’s action would be barred under the provisions of either section. An analysis of the notifications and proceedings relative to the bondholders’ protective committees does not impress us that they were designed, or could have had the effect to conceal the cause of action, but rather to reveal it. The effort seems to have been to induce plaintiff, notwithstanding the ground for action revealed, to hold to her investment and take her chances in the ultimate outcome. This is by no means concealment. In view of the condition of affairs disclosed by the communications received by plaintiff beginning in the early part of 1911, even the statement in the letter of the Chicago Title & Trust Company of May 29,1911, that “the only penalty to be suffered by those who are unable to protect their present investments by taking some of the new bonds is the loss of interest on their present bonds until after January 1, 1914,” and the assurance claimed to have been given her by Hugh Blair in 1911 that “the companies would soon pay their interest” (upon which statements considerable stress has been laid), cannot reasonably be held to amount to a concealment of the fact that the original representations were untrue. To assure her that her loss would be small certainly does not tend to conceal the fact that the prior positive representations as to the absolute security of the bonds were false. We think the disclosures made to plaintiff in 1911, as set forth in the declaration, coupled with failure to receive the interest due on her bonds in December, 1910, and January, 1911, to say the least, should have put her upon diligent inquiry.

“The statute was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by facts known.” First Nat. Bank of Ovid v. Steel, 146 Mich. 308 (109 N. W. 423); citing Purdon v. Seligman, 78 Mich. 132 (43 N. W. 1045).

Appellant’s counsel raise the further point that the declaration shows a relation of trust and confidence between plaintiff and defendant; that there was accordingly a duty resting upon defendant to disclose the true state of facts to plaintiff; and. that in such case mere silence, unaccompanied by any affirmative act of concealment, will prevent the running of the statute until discovery. It is true this court has taken a liberal view as to what constitutes a relation of trust and confidence in such cases. Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); Comfort v. Robinson, 155 Mich. 143 (118 N. W. 943). There is also some authority for holding, under certain circumstances, that such a relation may exist with a corporation because of a special trust and confidence in an officer thereof. But under the circumstances of this case, we do not see how the establishment of such a relation can alter the result. It is not here a mere case of silence when there was a duty to disclose. We have already held that plaintiff had actual notice of the fraud, or at least such information as should have put her on active and earnest inquiry, and we do not think that the relation of confidence claimed in the declaration can be held to impair the legal effect of that notice. There were no such special circumstances as were present in the case of Comfort v. Robinson, supra, and the situation is not analogous.

We do not think there is merit in the contentions of the counsel for appellant as to the effect of the allegations of warranties made in the declaration. A careful consideration of this, aspect of the pleading fails to disclose anything that can be fairly construed as a valid warranty in futuro, as to which a cause of action accrued within the limits of the statutory period. Nor has any explanation been advanced as to the case intended to be set forth in the common counts attached to plaintiff’s declaration that seems to present any meritorious reason why the order dismissing the declaration should not be sustained.

While regretting the situation in which appellant now finds herself, we cannot escape the conclusion that Miss Ramsey, if not with positive knowledge of the falsity of the representations which she claims induced her to make her unfortunate investment, at least with an abundance of information which should have led to a prompt investigation, slept on her rights and chose rather to await the results of the efforts of the committees to save for the bondholders at least a portion of the face of their bonds; and that having been disappointed in the outcome of the course she elected to pursue, she now brings a belated action and seeks to induce the court to relieve her from the situation in which she finds herself by her own negligence. We think the attitude of the courts on this subject is well expressed in the following language of Justice Swayne of the Supreme Court of the United States in the case of Wood v. Carpenter, 101 U. S. 135:

“Statutes of limitations are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay extending to the limit prescribed is itself a conclusive bar. The bane and antidote go together.”

Under our view of the law as above stated, we are unable to find that plaintiff’s declaration sets forth any cause of action that is not barred by the statute of limitations, and the judgment must therefore be affirmed, with costs to the appellee.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.