text:
    LESH v. TAMARACK MINING CO.
    . 1. Master an» Servant — Mines and Mining — Negligence — Fellow-Servants.
    Where a trammer employed in defendant’s copper mine was engaged in cutting out ore from a stope which bad not been timbered, and the attention of tbe miners employed in tbe work of preparing tbe shaft for other laborers bad been called to a rock which other employees considered as dangerous, and they had replied that they would take care of it in about fifteen minutes, and advised decedent that it was safe to work below the rock, which, during ijhe delay, fell and injured decedent, the miners so engaged were fellow:servants of the trammers who assumed the risk of their negligence.

      2. Same — Assumed Risk — Proximate Cause — Negligence.
    Decedent assumed the risk of the obvious dangers connected with his employment, and where it was apparent to him and his co-employees that an overhanging rock in the stope in.which they were working was likely to fall, and decedent continued to work under it, relying on the promise of the miners to blast the rock in about fifteen minutes, the proximate cause of the injury was not the negligence of such miners but the act of decedent in remaining at his work subject to a known and imminent danger. ■
    3. Same — Promise to Remedy Danger — Assumed Risk.
    No promise of the miners that they would blast the rock which plaintiff complained about as dangerous could be treated as given in a representative capacity so as to be binding upon the defendant mining company; nor was a promise on fheir part' to remedy the existing danger sufficient to charge the defendant with liability for negligence.
    Error to Houghton; Cooper, J.
    Submitted' April 20, 1915.
    (Docket No. 42.)
    Decided June 7, 1915.
    Case by Louisa Lesh, as administratrix of the estate of George Maresich, deceased, against the Tamarack Mining Company for the negligent killing of decedent. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      Allen F. Rees {Rees, Robinson & Petermann, of counsel), for appellee.
   Stone, J.

Plaintiff, as administratrix of the estate of George Maresich, deceased, brought this suit to recover damages for fatal injuries sustained by deceased at about ll:50.p. m. on May 27, 1911.

Deceased was working for defendant as a trammer. • The injury occurred in the 14th level of defendant’s North Tamarack shaft in consequence of deceased being struck by a cone-shaped piece of rock weighing over six tons. This rock rolled down through a stope and mill, and struck deceased while he and two other trammers were engaged in loading another rock from the sollar -into a tram car in said level. Before this rock rolled down it had been standing on the foot wall and leaning against a battery in the stope, about 25 feet above the place where deceased was working when he was struck by it. It had been standing and leaning in that position for at least four days before the accident.

Plaintiff called for cross-examination under the statute Thomas Hosking,. defendant’s shift boss, and also deceased’s two trammer partners, who were the only witnesses sworn. At the close of plaintiff’s evidence, the trial court, on defendant’s motion, directed a verdict in favor of defendant, and a judgment accordingly followed. There was no motion for a new trial, and the plaintiff brings the case here on writ of error. This was a copper mine. The copper rock lay between two other slanting strata of rock, the upper of which is called the hanging wall, and the lower, the foot wall. These walls were composed of solid rock, and the general pitch of the vein is about 37 or 38 degrees from the horizontal. The shaft at this level was east from the foot wall. A crosscut was run west from the shaft through the foot wall to connect with the 14th level. This level ran north and south, and was about 20 feet wide and 16 or 18 feet high, and was a permanent passageway in the mine. The accident happened about 800 or 900 feet south from the intersection of the crosscut and level. The stope in front of which it happened, was the first stope south of the crosscut. The level ran about 800 feet south from this stope. The levels- are 100 feet apart, and the stopes when completed are nearly 100 feet high. In the stope where the accident occurred there were three rows of batteries, from 6 to 8 feet apart. It was a regular working stope in defendant’s mine, where drilling, blasting, and tramming were going on in the usual way. Two miners were working in it at the time. The stope was being developed by excavating all of the copper rock from between the hanging and foot walls. ' It was timbered and being timbered with large stull timbers, which extended from the foot to the hanging walls, about 25 feet from the level. In the level were permanent car tracks upon which tram cars (of 2% tons capacity) were operated in conveying the rock to the shaft. In mining out the copper rock from this stope by the miners, it was passed or thrown downward along the foot wall to the level, through places in the stope called mills. These mills were separated by the batteries. Three stulls placed close together, and put in at the pitch of the vein, ordinarily constituted a battery. These batteries were 2% feet or more in diameter. They were situate from 6 to 8 feet apart, up and down, and crosswise of the stope. No guards were provided to prevent rock rolling from the stope or mills into the level. In fact, the object was to get the rock down to the level. At the side of the car track, in the level at the bottom of the mills, sollars were constructed. A sollar is a place or platform, from which the trammers shovel or throw the rock into the car. Dynamite was used in mining and excavating the rock from the vein. When blasts were set off the vein rock would be blasted into chunks of various sizes. The mining and excavating of the rock were done by men called miners. The dynamite was kept under lock and key. The trammers were not furnished with, or permitted to use any dynamite. In referring to the miners’ duties, the shift boss testified:

“Sometimes, if the miners haven’t any drilling to do, or can’t do nothing on their machine, they would be running rock. If they are working up back in the stope, and blast, they don’t run that rock down to the sollar for the trammers to take from there. That’s the duty of the trammers to take it from the stope. If there isn’t any on the sollar — that is, further up — they go up and run it down themselves. And when I say the only thing they have to do was to shovel rock and push cars, I mean in addition to that, if it was necessary,- they had to go up stope and run this rock down to the sollar where they could get at it; they had to get their own dirt to fill the car. If, in doing that, any danger arose in running it down, it was up to them to see they didn’t get hurt. Not to my knowledge it never was the duty of the miners. The men running the rock down the rock pile could see the danger for himself. So when I said it was the miners’ duty in every respect to take care of the safety of the trammers, overhead, I meant I limit that to the hanging wall and the pile. That’s up to them, the trammers, running the rock down the sollar.”

Kosovac, one of the trammers, testified:

“Now our business as trammers was to take the rock the miners broke out there, and it was the miners’ business to drill and blast the rock out, so that we could take it away. * * * Yes; when there is lots of rock in the stope, and they [the trammers] shovel the bottom, the rocks come down themselves. When we get none on the sollar we go and roll it down with the shovel.”

In other words, as we understand the record, the trammers frequently went up into the stopes'to get down the loose rock lying on the foot walls; that was a part of their regular duty. Sometimes, as in this instance, large rocks would be blasted, and loosened from the vein, and would rest on the foot wall, and it would be necessary to blast and break them.

The places where the trammers worked were prepared by miners and their timber men. Deceased, a young man 23 years of age, born in Croatia, had been in this country three months, and was injured while working on Ms twenty-third sMft. He had not worked in a mine before. His associate trammers were men of experience in the work.

At about 15 minutes to 12 o’clock on the night of the accident the trammers placed a car for loading on the track in front of the mill. The rock which caused the injury was leaning against the third battery up from the level. It was about 4 feet thick and 9 feet long. The trammers noticed this rock. What took place is thus described by the trammer Kosovac:

“Maresich said that it wasn’t safe to work under that rock. He told me to call the miners and ask them whether it was safe to work under that; then I called the miners. I asked the miners whether it was. safe to work under, and they said, ‘Yes.’ I asked them to blast it, and they said they would blast it at midnight. And that would be our dinner time, on night shift. We trammers were down below the rock, and the miners were up above it. No, I couldn’t see the rock as well from under as the miners could from above. They were looking at it. No; they only said it was safe; that the rock was safe. Yes; they said they were going to blast at midnight. When I took the bar to bar it down, they told me to leave it alone. The miners said they were going to blast this block hole at midnight. When I told the miners — when George and I told the miners the rock would fall down, then they told us— George asked me to ask them whether the rock was safe. They said it was safe. They will blast that rock at midnight. I told George what they said to me. * * * Yes; I .did talk to these miners that night when we fetch out the last car. That rock, when we take that rock away from there, and I talk to George there, and I tell George that I am afraid of that rock; it is liable to come down. It was 14 minutes to 12. That was the time that I did talk to George. George told me to ask the miners. I tell the miners to go and look at that rock, because I am afraid ‘he’ ain’t very solid, and to go and blast it. * * * This accident happened just about 5 minutes after that. I did see ‘him’ up in the stope; that ‘he’ was standing up. I took the bar and went up in the stope and try to bar ‘him’ down; but the miners tell me not to do it — let it go. Yes; it looks to me that ‘he’ will come down, and we was afraid of it. Yes; I did tell George about it.
“Q, Now, anybody who went up in the stope and looked at that rock could see exactly what you saw, couldn’t he?
“A. Yes, it would be just the same. The miners told us it was safe, and we was work there. But nobody could see more than I saw who went up and looked at it. Miners couldn’t see any more than I could see.”

The record is entirely silent as to how the rock got away, and rolled down the stope and injured the deceased.

By separate assignments of error the entire charge, paragraph by paragraph, is claimed to be erroneous. The charge was as follows:

“The motion of the defendant to direct a verdict in favor of the defendant will be granted.
“I am of the opinion that this case is governed by the case of Petaja v. Mining Co., 106 Mich. 463 [64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505]. It seems to me that if one case ever fell directly within another case, this one does within the Petaja Casé. Just compare the two cases.
“The plaintiff in that case was a trammer, just as this decedent was. Justice Hooker, on page 466 [of 106 Mich., on page 335 of 64 N.-W.], •says:
“ ‘This ore was loaded upon cars and removed by common laborers, called “trammers.” ’
“So the Supreme Court considered them simply common laborers. Now the opinion in the record shows this to have been the situation in the Petaja Case. The miners drilled and blasted down the ore, and after blasting down the ore they pinched down the loose rock that was at the roof of the room and prepared that room so it would be safe for the trammers to come and work under them. Then these trammers, called common laborers, by Justice Hooker, came in, and all they had to do was to load the ore into the tram cars. The miners had looked after the safety of the room. After enough ore was loaded and trammed by the trammers' in the Petaja Case, so that another set of timbers could be put in, then it became the duty of the miners — not the trammers but the miners — to see to it that the timbermen were notified, and the timbermen would come in and put up a set of timbers. Just as soon as there was room, the mine was timbered as fast as there was room for timber, and the practice there would be after this set of timber was put up and the ore blasted down and taken away, then the miners would proceed to blast down another space. Now the trammers had nothing to do with whether another set of timbers would be put up. In fact, the Petaja Case shows they had nothing to do with the question of their safety. That was looked after by the miners and the timbermen and the shift boss. The shift boss, of course, was over all.
“Now, it seems in the Petaja Case the trammers saw what they thought was unsafe ground, an unsafe place there; they thought they saw rock which might fall and they went — they didn’t go to the miners, but went to the_ shift boss, who was the superior of all, and they said to the shift boss that they thought the place was dangerous and the shift boss went in and made an inspection and he assured them that it was safe and told them to go back to work, and they, relying on his superior judgment and his inspection, returned to work, and in about 30 minutes the plaintiff was injured by a fall of ground where he was afraid it would fall and where he notified the shift boss that it looked rather dangerous.
“Now the Supreme Court expressly holds that the miners in doing their work — now the work referred to was the work that was done by the miners, and that is, blasting down this rock and pinching down the loose rock after the blast and in notifying the timbermen when there was space for another set to go up, doing all that work, that’s the work the Supreme Court are passing on. The Supreme Court says the miners are the fellow-servants of the plaintiff, the trammer, and that the defendant is not liable.
“They also say that the timbermen in coming in to put in this timber are fellow-servants, and if there was negligence in the way that was done, it was negligence of fellow-servants.
“The Supreme Court goes further and says the shift boss, being called there to come in and inspect this room and look it over, he was acting as a fellow-servant and not as a vice principal. On page 467 [of 106 Mich., on page 335 of 64 N. W., 32 L. R. A. 435, 58 Am. St. Rep. 505] it says, the opinion reads (the testimony differs about the width of the roof) :
“‘There is evidence that it was not sufficiently cleaned out to permit of timbering at the time of the accident, and this does not seem to have been disputed. Some indications of danger were noticed by the trammers, who called the attention of the shift boss to it.’

“Now the record shows just what those indications were, falling ground.

“‘But, after looking at it, he told them it was all right, and to “quit monkeying” and resume work, which they did. The' accident occurred about 30 minutes later.’

“They show in the opinion that the shift boss was called on to inspect the place and he did and assured them it was safe.

“ ‘The undisputed testimony shows that the trammers and miners had not put the newly opened space in condition for the timbermen, and that the miners had not caused them to be notified that their services were required.’

“I leave out some that does not apply here.

“ ‘If there can be said to be culpable negligence, it was either in mining too large a space before cutting out the corners preparatory for the sets, or in failing to notify the timbermen ii sets could have been put in before the ore was still further removed. In either case, if the fault of the miner, it was the negligence of a fellow-servant under the plainest rules.’

“Now the opinion goes on:

“ ‘And the same is true, if it was through the failure upon the part of the shift boss to cause timbering to be done earlier. He was a foreman, who directed when and where blasts should be put in and where the men should work, and who was appealed to to settle questions arising as the work progressed.’

“Now he was appealed to in this case to go in and settle the danger of this place. He inspected it and said it was safe. If the shift boss is brought in and inspects the place and says-it’s safe, and is a fellow-servant, surely the miners under him were fellow-servants, and it is so held in the rehearing of the case on page 469 [of 106 Mich., on page 335 of 64 N. W.] :

“ ‘That the failure of the miners or boss to notify the timber-men that the place was in readiness was the negligence of fellow-servants of the plaintiff.’

“I should have read a little further:

“ ‘We are satisfied with the proposition enunciated — that the failure of the miners or boss to notify the timbermen that the place was in readiness was the negligence of fellow-servants of the plaintiff.’

“Now, right to the very last the court says:

“ ‘The following cases confirm us in our opinion that, as an incident or means of excavating the ore, the master has only the duty of furnishing competent men, and furnishing suitable materials for the use of those engaged in the common employment.’

“Now it very plainly appears that the miners were the ones — in the opinion the miners were the ones to notify these timbermen when it was time to put in another set of timbers. The miners were negligent and failed to notify the timbermen after there was room. The court expressly says that the miners, in looking after the safety of the trammers in that respect, were fellow-servants.

“Now it has been argued a good deal that this Petaja Case has been modified by other decisions, Hosking against the Cleveland Cliffs, and Danula against the Quincy, and Scendar against the Winona, but in all of those cases distinctions are drawn and there isn’t a word that it was the intention of the Supreme Court to modify this Petaja Case and this Petaja Case had been a leading case known to the mining district a number of years. If the Supreme Court intended to modify it, it would have said so, after citing it as the law of Michigan for so many years. I feel very Sure there was no intention to modify the law as laid down in that case and in all the cases which were claimed to be under the Petaja Case by which they found there was a question of fact to submit to the jury in the cases I have mentioned and some others. • The Supreme Court saw a distinction between those cases and the Petaja Case, and it was the distinction which permitted the case to go to the jury.

“We have here in this case, the decedent was a trammer. In carrying on this regular work, the miners were mining and he was tramming by loading the rock into the car. He saw, with his fellow workmen, a place that he thought looked dangerous, a large rock which he thought might fall and he went — he didn’t go to the shift boss as in the Petaja Case, but went to the miners and complained to them, and the miners gave them assurance of safety, said the rock wouldn’t fall. It seems to me if ever two cases were exactly alike in principle, it’s this case and the Petaja Case, and believing as I do that the Petaja Case is the law in Michigan now as much as it ever was, I believe it is the duty of the court to direct a verdict in favor of this defendant. I believe this case also comes within the case of Livingstone v. Plate Glass Co. [146 Mich. 236, 109 N. W. 431], but I feel very sure it is covered in its entirety by the Petaja Case. The cases are very similar all the way through, and I do not see any distinguishing features at all, and therefore, gentlemen of the jury, the court will assume the burden of deciding this case and will decide it upon the law as laid down- by the Supreme Court of Michigan. *

“The court has decided that there is no question of fact to submit to you, but that the defendant cannot be held liable under the law of this State, and you will therefore return a verdict in favor of the defendant under the law as directed by the court.”

Error is also assigned that the verdict and judgment are contrary to and not supported by the evidence, and are contrary to the • law. There is, as stated by appellant, but one main question involved, viz.: Did the court err in directing a verdict for the reasons stated in the charge?

It is claimed by appellant that neither the boss nor the miners were intestate’s fellow-servants under the evidence in the case. It is urged that under the evidence the defendant undertook to protect the trammers against injury from any large rock (too large for the trammers to load in their cars) becoming lodged on the foot wall and afterwards rolling down the stope. While there are some expressions in the testimony that might, upon a casual reading, justify this claim, an examination of the entire testimony of each witness will disclose that no such claim is justified by the evidence. The most that can be said of the duty of the miners, with reference to the large rocks, is that they were to blast such rocks when requested to do so by the trammers. Such request had been made, and the miners had said they would attend to that duty in 15 minutes. The rock was then where it had been for four days. Before the 15 minutes had elapsed, the rock, by some unknown cause, rolled down and did the injury complained of. Under the evidence the blasting of these large rocks was done by the miners for the safety of the trammers, because the latter were not possessed of sufficient ability <?r training to use explosives.

Counsel for appellant seek to distinguish the case from the Petaja and Livingstone Cases cited by the trial judge in the charge, and urge that the case is ruled by Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951), and kindred cases.'

In the Scendar Case loose rock fell from the overhanging wall, and Justice Bird said:

“The difference between the Petaja Case and the one under consideration lies in the proofs which tend to show that, as regards loose overhanging rock, the defendant relieved the trammers of the necessity of looking out for themselves and took upon itself the duty of making the place safe for them.”

We find no such evidence in the instant case, which we think is readily distinguished.

Counsel also cite: Minkkinen v. Mining Co., 169 Mich. 279 (135 N. W. 449). This was also a case of rock falling from a hanging wall, and under the evidence differs from the instant case, as does also Danula v. Mining Co., 166 Mich. 350 (130 N. W. 604).

Aftér again examining the authorities cited by counsel upon both sides, we are of the opinion that the trial court was justified in directing a verdict for the defendant for the reasons stated. The danger of working below this large rock was apparent, and readily comprehended by the trammers. As Kosovac testified:

“But nobody could see any more than I saw, who went up and looked at it. Miners couldn’t see any more than I could see.”

Being told by the miners that they would blast at midnight, the trammers continued their work, and the rock fell in 5 minutes after the conversation. The neglect of the miners, if it can be called neglect, not to blast instantly, when requested by .the trammers to do so, cannot be charged‘to the defendant, nor can it be said to have been the proximate cause of the injury. Manifestly, the miners were the fellow-servants of the trammers.

In our opinion the case is ruled by the following cases in this court: Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 82 L. R. A. 435, 58 Am. St. Rep. 505); Livingstone v. Plate Glass Co., 146 Mich. 236 (109 N. W. 431); Amoe v. Engineering Works, 151 Mich. 212 (114 N. W. 1010); Ritzema v. Brick Co., 152 Mich. 75 (115 N. W. 705); Bauer v. Car & Foundry Co., 132 Mich. 537 (94 N. W. 9); Kaaro v. Mining Co., 178 Mich. 661 (146 N. W. 149); Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699); Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Cribb v. Engineering Works, 167 Mich. 328 (132 N. W. 1020).

Particular attention upon the subject of fellow-servant is called to the recent case of Mesich v. Min ing Co., 184 Mich. 363 (151 N. W. 564). That any assurance by the miners of safe condition, or promise to blast, was not binding on defendant, see Guest v. Illuminating Co., 150 Mich. 438 (114 N. W. 226); Maxwell v. Cement & Lime Co., 157 Mich. 631 (122 N. W. 225).

In Koskell v. Mining Co., supra, the assurance from Johnson (one of the miners) 'that the place was safe, presented a stronger case for the plaintiff than do the facts in the instant case. Looking after the hang-' ing wall, in that case, was something the trammers could not do. Looking after and handling the broken rocks in the stope, was the trammers’ work in the instant case. Furthermore, the conditions of danger surrounding this rock were open and apparent to everyone, especially to the trammers.

The rule of law applicable to this class of cases is that a statement or assurance of safety is not deemed to be given in a representative capacity, unless the person giving it is a vice principal. It cannot, we think, be seriously urged that these miners were vice principals. Many more cases might be cited from this and other jurisdictions, but we deem it unnecessary.

We find no error in the charge of the trial court, and are of the opinion that it was warranted both by the evidence and the law.

The judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    REINHARDT v. SAGINAW-BAY CITY RAILWAY CO.
    1. Street Railways — Contributory Negligence — Unlawful Speed — Personal Injuries — Highways and Streets.
    Where plaintiff was driving alongside defendant’s track in a public street, and, because of certain piles of bricks placed beside and near the tracks and of other vehicles standing in the street, was compelled to turn his horses upon the track and drive along the same partly between the rails, and where plaintiff claimed that he looked and saw no street car behind him, and it appeared that the track was straight, the view of the motorman unobstructed and that the motorman knew the conditions existing at the place of the collision, and there was testimony tending to show excessive speed, the court did not err in submitting to the jury the question of contributory negligence.
    2. Same — Due Care — Operation of Car.
    The question of whether defendant’s motorman exercised ordinary care in observing the conditions and in main-' taming control of his car, became a question of fact under the evidence and the trial court did not err in submitting the issue as to the motorman’s negligence to the jury.
    Brooke, C. J., dissenting.
    Error to Bay; Collins, J.
    Submitted April -15, 1915.
    (Docket No. 55.)
    Decided June 7, 1915.
    Case by August Reinhardt against the Saginaw-Bay City Railway Company for the killing of plaintiff’s horse. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Weadock & Duffy, for appellant.

      Charles W. Hitchcock, for appellee.
   Stone, J.

Action on the case to recover damages for the alleged negligent killing of plaintiff’s horse, and injuring his vehicle, occasioned by collision with one of defendant’s cars which plaintiff claimed was being run at an unlawful rate of speed. Washington avenue, one of the principal streets of Bay City, runs north and south. The defendant has double tracks in this street from Center street on the north and beyond, to Columbus street on the south; the distance between the east rail of defendant’s east track and the east curb being 21 feet.

Along the east rail of the east track and south of Seventh street, at the time of the accident in question, the Bay City Gas Company had made certain excavations for repairs to gas mains. Due permission had been granted to said gas company to make such excavations. The bricks from the excavations had been placed alongside thereof in piles, 7 in number, all three feet from the east rail of the east track, and they ranged irom between 16 and 17 feet from the east curb of the street. The piles were all from 12 inches to 14 inches high. McKinley avenue (or Eighth street as it is sometimes called in the record) is the next intersecting street south of Seventh street, and the length of the block between said streets is 300 feet.

Between two and three o’clock of the afternoon of February 28, 1913, the plaintiff and his 19-year old son were driving north on Washington avenue on the traveled portion of the street in said block, east of the east car track, the son driving and seated in the front seat, the plaintiff sitting in the back seat. They had a team of horses, and the vehicle was a covered surrey, with the side curtains down. After they had passed the intersection of McKinley avenue the boy stopped the team and waited for a city street car to pass them (going in the same direction as they were). After the street car had passed, it is the plaintiff’s claim that the boy then turned the team to the left which placed one horse west of the east rail of the east street car track, and the other horse east of the rail; that before turning back into the traveled portion of the street, the horse that was west of the east rail was struck by one of defendant’s interurban cars running north, and following the said city street car; that the turning to the left was on account of the said piles of brick along the side of said east rail, and the vehicles and teams at the east curb. The day was clear, and from the point where the horse was struck, Washington avenue could be viewed several blocks t-o the south. Upon 'the trial plaintiff’s son testified that he looked before turning the horses onto the track and saw nothing.

It was uncontradicted that the motorman of the interurban car had made a stop at Ninth street, the next street south of McKinley avenue, and had let off a passenger there, and that as he was passing from McKinley avenue to Seventh street, he had received a signal to stop the car for Seventh street; the motorman testified that in response to such signal he threw off the power about 50' feet north of McKinley avenue, and that from this point to the time the horse was struck, the current on the car had not been applied, except to reverse the car after the plaintiff’s son had turned the horses in ahead of the car, at a distance of about 15 feet from the car. There was a conflict in the evidence as to the speed of the car; the evidence on the part of defendant being that as it passed the intersection of McKinley avenue the speed was about 7 miles per hour, while there was evidence on the part of the plaintiff that the rate of speed at that point was 16 to 20 miles an hour, and that the speed was not slackened until the collision. The motorman also testified that he first observed the team about the middle of the block between Seventh street and McKinley avenue; that it was on the right-hand side of the street, about six feet from the east rail of the track;, that as he approached the team he sounded the gong heavily, and that the gong had been sounded as he came along on Washington avenue, and right up until he saw the team start to turn in, about 15 feet ahead of him, when he blew the whistle and did all in his power to prevent the collision. The car went about the length of itself after hitting the horse, when it was stopped. The length of the car was 52 feet 5 inches.

The degree of care exercised by the plaintiff and his son in driving the team onto the track, as testified to by them, was as follows: The son, who was driving the team, testified on direct examination:

“Q. When you got down somewhere near where the accident happened, state whether or not there was a street car passed you?
“A. Why, we heard one and I slackened up and stopped the horses for about a second, I guess, or so, and waited until it was passed, and then I turned over, and I kind of looked on the side as far as I thought there would not be any danger, and I didn’t see anything in sight.
“Q. Which way would you say you turned?
“A. To the left.
“Q. When you turned to the left state whether or not that took you out on the car tracks?
“A. Why just the 'one horse was on the track and the other on the other side.
“Q. Why did you turn to the left?
“A. Why there were rigs tied in there crossways, and I couldn’t get through there.
“Q. What prevented you going through, if anything?
“A. Well, the piles of bricks, and the rigs tied there. * * *
“Q. What is the first thing you can tell us about the collision?
“A. All I know is it hit the horse, and that is all I - know, and pushed the horse down on its knees, and then the tongue broke, and then that ran into the horse, and then it broke off. * * *
“Q. What do you say as to the way you were driving the team that day?
“A. Oh, they was going slow like.
“Q. Were you paying any attention to your business and watching the team?
“A. Sure I was paying attention, so there would not be' any danger,, always.”

On cross-examination he testified:

“Q. The first thing you knew the horse had been struck?
“A. That is the first thing I knew. * * *
“Q. And you were sitting in the front seat and nobody with you?
“A. Sure, just us two. My father sat alone in the back seat.
“Q. The rig was covered, wasn’t it?
“A. Yes. * * *
“Q. It had a curtain in the back end, a drop curtain?
“A. Yes.
“Q. And curtains in the side?
“A. Yes. * * *
“Q. How far up to the front did they come?
“A. They commenced about the end of the seat.
“Q. And they started up from there and they went clear back?
“A. Yes, but they were open on the side — both sides.
“Q. How open?
“A. There is a place where you go in the back, in the double rig. * * *
“Q. And that was in the seat where your father would be sitting?
“A. Yes.
“Q. And up to where you were they came right straight up from the end of the seat?
“A. Yes. * * *
“Q. Where were you when that car passed you?
“A. Why just about 15 or 20 feet from the rigs.
“Q. Fifteen or twenty feet from the first rig that stood in front of the store?
“A. Yes.
“Q. Did you stop?
“A. I stopped. Stopped until the street car was passed, a second.
“Q. The horses stood until the car went by?
“A. Yes.
“Q. And then you drove on?
“A. Yes.
“Q. When you thought the car had passed?
“A. Yes, the car went past. * * *
“Q. And then you started to drive across the track where you would get more room, didn’t you?
“A. Yes.
“Q. And you turned the horses after the car went by, and drove right straight on across the street?
“A. I didn’t go across the street.
“Q. You started to go out to the left?
“A. Yes, I turned to the left.
“Q. After the car went by you, didn’t you?
“A. Yes, and I looked out on the side, and as I turned around to look back a little, and I couldn’t see nothing.
“Q. When you turned to the left that little window in the back would be pointing kind of not right straight back to the street, but off a little bit, wouldn’t it?
“A. Yes, I didn’t look out the back window, I looked out in front.
“Q. The curtains would shut off the street back of you, wouldn’t it? Which side did you lean out on?
“A. On the right-hand side.
“Q. And you looked back of you then?
“A. Yes.
“Q. And didn’t you see any car?
“A. I couldn’t see none. * * *
“Q. After this street car went by, you then turned a little bit to be out of the way of the brick piles on the road?
“A. The brick piles were along there, and I had to drive on the track to get around, I couldn’t drive through there.
“Q, You started to do that right after the car went by?
“A. Yes.
“Q, And you drove over to the left from where you had been driving?
“A. Yes.
“Q. And the horses got partly on the track?
“A. Yes, they did.
“Q. And you were turning off again?
“A. Yes.
“Q. When the car struck you?
“A. When the car hit.
“Q. When the car went by you thought it was the only car there, and it was safe to go by, isn’t that true?
“A. Well, I looked back first because I know lots of times I saw two of them coming, and I looked back.
“Q. You saw this car that went by you?
“A. Sure, that is the reason I stopped.
“Q. When it went by you drove ahead?
“A. Sure.
“Q. You didn’t know there was another car behind there ?
“A. No, if there was I wouldn’t have been fool enough to drive on there.
“Q. When this first car went by you felt it was safe to drive on the track and you did, didn’t you?
“A. Yes.
“Q. And you didn’t look again after that car went by you?
“A. Yes, I looked after the car went past by, and I went onto the track.
“Q. You didn’t look back?
“A. On the side of the curtain I looked back.
“Q. Did you look back to the south?
“A. Yes.
“Q. And you didn’t see a car?
“A. I didn’t see anything as far as I could see.
“Q. How far could you see?
“A. I could see — I couldn’t say how many blocks back.
“Q. And just as you were turning off, another car came along and struck the horse?
“A. Yes.”

The witness testified that he did not hear any gong or bell.

The plaintiff testified on direct examination as follows:

“Curtains were on the rig, and the front end of the curtain comes up- like buggy slanting, and I had the back curtain hanging down partly so I could see out. That was true on both sides. Just before the accident occurred I heard a street car. When the car came by my boy was driving, and as far as I can remember he slacked up and let the street car pass. He was driving along, and I looked out, and I noticed him looking kind of sideways, and looking back, in driving over after the street ear had passed, to get past the brick piles. I looked back also. I saw no car coming. * * * In driving out until we got onto the track the next thing I noticed a street car hit us.- * * * When I looked back after the street car passed, I didn’t notice anything. * * * A city car went by. We slacked up to let that go by. * * * We stopped at a standstill. We had to, to let the car go by.
“Q. Why couldn’t you stop and let the. other car go by?
“A, Because we didn’t see any reason to stop.
“Q. You didn’t see it?
“A. No, sir. From where I was I did look. I looked on the left-hand side oi my rig, lifted the curtain. I did that when the city car went by.”

Plaintiff testified that he did not hear any bell. There was testimony to the effect that the car was between McKinley avenue and Ninth street when the team went onto the car track, and .that the team traveled astride of the track about 75 feet before it was struck.

Ordinances of the city were offered in evidence, one to the effect that cars should be run at a rate of speed not to exceed eight miles an hour, schedule time, in the part of the city where the accident occurred; and another to the effect that a car should at all times be entitled to the right of way over all its tracks, and that every vehicle upon the track of the railway should turn out when a car approached so as to leave the track unobstructed.

At the close of the plaintiff’s testimony, and again at the close of all the testimony, defendant’s counsel moved for a directed verdict in its favor by reason of the contributory negligence of the plaintiff. This was denied and exception taken. The defendant requested the court to charge the jury that the conduct on the part of the plaintiff was contributory negligence, even though the car may have been running at an excessive rate of speed, prohibited by the ordinance of the city. That if the above request was refused, then defendant requested the court to charge the jury as set forth in 16 lengthy requests to charge. We have examined each of said requests, and are of the opinion that the charge of the court, as given, gave the substance of such requests as were proper, and properly submitted to the jury the questions involved in the case.

There was a verdict and judgment for the plaintiff for the value of the horse killed, and for damages to the vehicle. There was a motion for a new trial based upon the refusals to charge as requested, and for alleged errors in the charge. The motion was denied. In giving its reasons for such denial the court said:

“As to the portions of the charge pointed out as erroneous in the motion, and as to the requests refused, of which complaint is made therein, I have to say that I believe the charge sets forth the law correctly upon the points thus particularized.”

The reasons filed were duly excepted to, and defendant has brought the case here for review, assigning errors upon rulings of the court in the admission of testimony; in the charge of the court; and in overruling defendant’s motion for a new trial.

The assignments of error are upon the following parts of the charge:

“(9) This is the case of August Reinhardt v. Saginaw-Bay City Railway Company. This suit grows out of a transaction which occurred on the 28th day of February, 1913. There is no dispute about the date. The place of the occurrence is on Washington street between Seventh and Eighth streets in Bay City, and opposite what is known as the Hine Block or nearly so. At the time and place in question the plaintiff and his son were in a carriage driven by the son, going north on Washington street close to the street car, and at a certain time under certain circumstances they turned onto the street car [track], following which they were struck by an interurban car. These facts to that extent are practically undisputed, and the horse was killed as the result of the accident, and that is undisputed.” • /
“The question is as to whether or not the defendant has been guilty of such actionable negligence as to make it liable for this injury. The plaintiff claims that the defendant was so negligent,’ and is so liable, and this the defendant denies.”
“(10) Now, gentlemen, have in mind during this whole transaction this situation there on Washington street at the place in question, the street car tracks there, and it appears that certain excavations had been made along the side of the track and that holes were there, and the piles of substance at the side, and it is the claim of the plaintiff and not disputed that there were teams hitched along the east side next to the east- curb line of Washington street. I call your attention to these circumstances because ” you shall have them in mind, but I am not undertaking to accurately describe any condition there, for that is for you to consider and determine for yourselves.”
“(11) The defendant claims that the car was going north, interurban car; that just after or about the time it left Eighth street the motorman got a signal — after they left Eighth street, I think — to slow up for the next crossing, at Seventh street. That the car had slowed up, that the power was thrown off at the time and place in question, and that the car was going along at not to exceed six miles an hour, and that just before the horse was struck the plaintiff drove onto the track, and that after that had been done the defendant’s agent used all the power it could and did not stop the car, and that, therefore the defendant claims that the plaintiff was negligent and that the defendant was not negligent.” •
“(12) That I have already referred to and I did not intend to make it important by calling attention to it again, but give it because it gives another phase of the case.”
“(13) If you find from the evidence in this case that at the time the plaintiff drove onto this track the car was so close to him that he could have discovered that the car was approaching by the use of reasonable diligence — I will withdraw that and start in again on that. If you find from the evidence in this case that at the time the plaintiff drove onto defendant’s track the car was so close to him that he could have seen the car by the use of reasonable diligence and could have seen by the use of reasonable diligence that the car was approaching him, and that when he drove upon the track the motorman of the car could not, with the use of the means at his hands, stop the car in time to prevent an accident, then your verdict must be for the defendant.”
“(14) If you find from the evidence in this case that the plaintiff turned his horse from a place of safety in the traveled portion of the highway, even though he did so to avoid an obstruction in the street, and turned onto the defendant’s track in front of the car, which* by the use of reasonable diligence he could have plainly seen approaching from the rear, then I charge you that the plaintiff was guilty of contributory negligence, even though no bell was rung or whistle blown, and even though the car was run at a rate of speed prohibited by the ordinance in evidence.”
“(15) Now, gentlemen of the jury, it is your duty to go over this testimony carefully and consider all of the circumstances in the case, consider the testimony that has been placed before you by counsel, weigh the testimony of each witness which, as I have said in other cases in your hearing arid to you, you are the judges of the credibility of the witnesses in the case, and in giving your best judgment in weighing the testimony you have the right to believe or disbelieve the whole or any part of the testimony of any witness. I advise you first to take up the question as to whether or not defendant is liable at all, and that question depends upon the other questions which I have stated to you, and which I have undertaken to charge you upon.”

1. In our opinion the most' important question in the case is whether the court erred in not directing a verdict for the defendant on the ground of the claimed contributory negligence of the plaintiff. Upon that subject defendant’s counsel have cited and rely upon the following cases: Wood v. Railway Co., 52 Mich. 402 (18 N. W. 124, 50 Am. Rep. 259); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Davis v. Railway, 162 Mich. 240 (127 N. W. 323); Cardinal v. Railway Co., 165 Mich. 155 (130 N. W. 627); Measel v. Railway, 166 Mich. 688 (132 N. W. 453); Puffer v. Traction Co., 173 Mich. 193 (139 N. W. 19); Colborne v. Railway, 177 Mich. 139 (143 N. W. 32).

In the Wood Case plaintiff drove upon a street railway track, in front of an approaching car without looking around, until the car struck the vehicle. In the instant case there was evidence that " the driver did look around before driving upon the track, and saw no car approaching. But the defendant says the car was there, and he should have seen it.u Whether the car was there, or in the immediate neighborhood, or within view, is one of the controverted questions in the case. If the car was coming on at the rate of 20 miles an hour, as testified to by one witness, then it was traveling at the rate of one-third of a mile a minute. If' this was true, and it took the plaintiff only one-half of a minute to go upon the track after looking, the- car may have been more than two blocks away when he looked, and under such circumstances we could not say, as matter of law, that plaintiff was guilty of contributory negligence in going upon the track to get by the obstruction.

An examination of each of the above-cited cases will show that they are readily distinguished from the instant case upon the facts as claimed by the plaintiff. We are of the opinion that the trial court did not err in refusing to direct a verdict for the defendant.

2. We find no reversible error in the rulings of the court relating to the admission of testimony.

3. Was there error in the charge? In parts of the charge upon which no error is assigned the court called attention, to the ordinances of the city which were in evidence and said:

“If it is a fact that the car was running more than eight miles an hour, that is evidence that the company was negligent. It is not, however, conclusive evidence of negligence, because it must appear, before there is any actionable negligence, that the speed of the car was the cause of the negligence; but if the car was going at more than eight miles an hour, that is a circumstance to be considered by you as bearing upon the question.”

The court also charged the jury as requested by defendant as follows:

“The defendant company in the operation of the car in question had the right of way, and it was the duty of plaintiff to yield to the company the right of way on its tracks, and to not negligently place himself, or vehicle, in a dangerous position.”

The court then added the language upon which error is assigned in the twelfth assignment of error. We find no error in this remark. While defendant had the right of way on its track, it does not follow that plaintiff had not the right, under the circumstances as claimed by him, to drive upon the track. The evidence shows that the motorman knew^he conditions which existed at the place of the collision. He testified that that was his fifth trip that day, and that the piles of brick were there all of the time; he could not say how long they had been there, and that they extended as far south as the south side of the Hine building, which was the middle of the block. It was his duty to observe the conditions there, and to have his car under control. Whether he did perform this duty, became a question of fact under the evidence. After a careful reading of the entire charge we are of opinion that the case was fairly presented to the jury. As stated by the court in denying the motion for a new trial:

“In some parts of the charge the language is not as clear as it might be, but I think, taking the charge as a whole, upon such questions where it is not so clear, the charge did not mislead the jury.”

The court did not err in overruling defendant’s motion for a new trial.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred with Stone, J.

Brooke, C. J.

{dissenting). I am of opinion that plaintiff should be held guilty of contributory negligence as a matter of law under the cases cited-upon that' point in Justice Stone’s opinion.


author: Stone, J.

text:
    COBB v. BACKUS.
    1. Deeds — Setting Aside Instruments — Mortgages—Deed as Security.
    After extensive litigation over the title of certain farm lands, complainant entered into an 'arrangement to take the title to the property which he conveyed by deed to secure a loan from a bank sufficient to purchase the interest of the prevailing party in the litigation. Defendants gave to complainant several promissory notes maturing at different intervals indorsed by the other defendant as joint maker. The indorser later advised complainant to dispose of the property to satisfy the unpaid obligations. Complainant thereupon entered into a contract for the conveyance of the property upon the performance of the conditions therein set forth. The purchasers carried out their part of the agreement. The evidence showed that in making the purchase of the property under the land contract the vendee was acting as agent of the defendants whose tenant he had been. It further was established by the evidence that defendants supposed that the tenant had sold part of the stock belonging to the defendants and had paid the notes with the proceeds and that his purchase had been upon their account and in their behalf. There was a conflict of the evidence as to whether the vendee paid the money belonging to the other defendants, but it was undisputed that the statute of limitations had run against the notes executed by them. Held, that complainant’s deed trans-ferring title as security for the loan at the bank was in the nature of a mortgage but placed the legal title in his name, that he was authorized by defendants to dispose of the lands and reimburse himself and that a decree permitting the defendants to redeem from the purchaser and from complainant was as favorable as they were entitled to.

    2. Same — Mortgages—Redemption.
    A deed absolute in form may be decreed to stand as security for money loaned and the debtor be permitted to redeem upon the performance of such conditions as may be deemed equitable.
    Appeal from Alpena; Connine, J.
    Submitted April 21, 1915.
    (Docket No. 88.)
    Decided June 7, 1915.
    Bill by Joseph H. Cobb against Newton D. Backus and others to quiet title to real property. Defendants filed a cross-bill making Philip Curran and another parties defendant. From a decree allowing defendants to redeem upon the payment of an amount found to be due by the court, both defendants and cross defendants appeal.
    Modified and affirmed.

      Joseph H. Cobb, in pro. per.

      Albert MeClatchey, for defendants Backus.

      Henry R. MaeGillis, for defendants Curran.

       As to effect of debt becoming barred by limitations upon rights and remedies under conveyance absolute on its face but intended as a mortgage, see notes in 11 L. R. A. (N. S.) 825, 24 L. R. A. (N. S.) 840.

   Stone, J.

In this case the bill of complaint was filed against the defendants Newton D. Backus and Henry N. Backus to quiet complainant’s title to the northeast quarter of section 29, town 26 north, range 8 east, being in Alcona county. The proceedings leading up to this case were substantially as follows: Absalom Backus was originally the owner of this land. He had litigation in the circuit court of said county, and incurred an indebtedness to Nicholas Hartingh, the official stenographer, which he did not pay. Mr. Hartingh sued Backus, obtained a judgment against him, and levied upon this land. In the meantime Backus had conveyed the land to his wife, Sarah E. Backus. Mr. Hartingh by suit had this transfer set aside, the land was sold on execution, was bid in by Hartingh upon the sale, and, no one redeeming from the sale, the title became absolute in him. Philip Curran was in possession of the land at the time Mr. Hartingh’s deed became operative. Hartingh dispossessed Curran, and took possession of the land, and put one Fowler in possession as his tenant. After Hartingh took possession, the defendant Henry N. Backus, acting as agent for his mother, Sarah E. Backus, employed the complainant to bring suit to recover back the title to this land from Hartingh. A bill of complaint was filed, the case was heard, and decided in favor of Hartingh. After the decree, a settlement was reached with Hartingh; he agreeing to give up the title to the land for $600. It required, however, $948.05 to settle with Hartingh, pay back taxes, obtain an abstract, insure the property, and pay complainant’s fees or charges. An effort was made to raise the necessary money by giving a mortgage to the Alpena County Savings Bank. The bank, however, refused to make the loan upon that security, and it was finally agreed that complainant should take a deed of the property from Hartingh, give the bank a deed which it would not record, and make the loan upon complainant indorsing the notes of Sarah E. Backus and Henry N. Backus. This arrangement was carried out, and Hartingh deeded the land to complainant on August 21, 1905, which deed was duly recorded on August 26, 1905. In carrying out this arrangement, Sarah E. Backus, on August 24, 1905, gave complainant her four promissory notes, three for the sum of $237 each, and one for $237.05, due four, eight, twelve, and eighteen months from date. Henry NT. Backus signed the notes upon the back, and was a joint maker. When the first note became due, it was not paid, and it was protested. After writing numerous letters to Sarah E. Backus and Henry N. Backus, and after an interview with the latter in January or February, 1906, urging the payment of the past-due note, Henry N. Backus told complainant that, if he (Backus) could not raise the money to meet these notes by May or June following, complainant could sell the property and get his money out of it and fix up the notes. After further fruitless correspondence, and on August 1, 1906, the notes being unpaid, complainant sold the land on land contract to Philip Curran and Mary Curran for $1,050, being the face of the said notes, interest thereon, and some small expenses which had been incurred in connection with the property. The contract was made in the name of Nettie Cobb, complainant’s wife; he signing her name as her agent. The contract contained the following provision:

“If first party fails to obtain Mrs. Sarah Backus’ equities in said land, she is released from this contract, and all payments with interest to.be returned to second parties.”

The Currans at the date of, the contract gave a chattel mortgage to secure the payment of a part of the contract. There being no notary public present except complainant, and it being necessary that the statutory affidavit should be sworn to and annexed to the chattel mortgage, the complainant acted as the notary public, and this was the reason why the contract was made in the name of complainant's wife. The contract has been fully paid up by the Currans, but no deed has been made. The complainant paid the said promissory notes, and has possession of the deed given to the said bank as security, which has never been recorded. Said Sarah E. Backus having died testate, leaving the said defendants Newton D. Backus and Henry N. Backus as her sole legatees, and the latter asserting that said complainant wrongfully obtained a deed of said land in fraud of the right of said Sarah E. Backus and of said defendants, and claiming that said defendants were the rightful owners of said land, the complainant filed his bill of complaint on October 23, 1912, to quiet his title therein'; .the legal title of record being still in him. The cause being at issue, was partially tried, when said defendants asked leave to bring in Philip Curran, Mary Curran, and Nettie Cobb as cross-bill defendants. This leave was granted and an amended answer and cross-bill was filed, wherein it was claimed, among other things, that the taking of said deed by complainant in his own name was wrongful on his part, and that neither he nor any other person than said Sarah E. Backus obtained any title to said land; that said Philip Curran was the tenant of said Sarah E. Backus, and agreed to pay said notes, as they fell due for her, and that he subsequently informed her that he had sold some of the stock on the farm belonging to her, and had paid the notes in full; that they never had notice that said notes were unpaid; that complainant knew that said Curran in the fall of 1905 went into possession of said farm as the tenant of said Sarah E. Backus, and that he had remained there as such tenant ever since, under an agreement to cultivate the farm, care for the stock, and share the proceeds of said farm and stock; that defendants believing that said Curran had paid the said notes, and was acting in good faith toward them, had not pressed him for an accounting since the death of said Sarah E. Backus; that said Curran paid the said notes for and in behalf of the said Sarah E. Backus; but that after her death, for the purpose of defrauding defendants, he connived with the complainant and said Nettie Cobb to set up a claim that he had bought the farm, and that such payments as he had made were made on his own behalf, and that said contract was a mere pretense; and they prayed that said complainant, Nettie Cobb, and Philip Curran be required to execute and deliver to said defendants suitable conveyances to clear their title to said lands of any clouds growing out of such transactions. All of these allegations were denied by the cross-defendants, and Philip Curran expressly denied that he paid the said notes, or any part thereof, but claimed that he purchased the land under said contract in good faith; that said lands had since been occupied by him under such contract, which fact had been fully known to said defendants; and that he had fully paid the amount of purchase money provided for by said contract.

The cause, being at issue, came on for a hearing, and a large amount of testimony was taken. The trial court found that the original arrangement between complainant and Henry N. Backus under which complainant took the deed to himself from Hartingh constituted in law a mortgage, but, as said Backus told complainant to go ahead and sell the land and reimburse himself, Backus was estopped from attacking the title in complainant’s hands; that complainant sold to Curran on contract; and that the latter had paid the contract price in full. The court further found that when Curran bought this land he was a tenant under Sarah E. Backus, and Curran having testified in another suit that he was acting as the agent of Mrs. Backus when he bought the land from complainant, and that he held it in trust for and intended to convey it to defendants Backus, it must be held that Curran bought of complainant for Backus. It found that the claim of Backus that Cur-ran was to raise the money to pay complainant by a sale of stock from the farm was not supported by the evidence, nor did the evidence dispute the claim of Curran that he paid for the land with his own money; that, as between Curran and defendants Backus, the latter must be allowed to redeem the land from Cur-ran upon the payment to him of $1,630.85, with interest from the date of the decree, that being the amount which Curran paid to complainant; which sum, if paid within three months, should entitle defendants Backus to a quitclaim deed from Curran and wife of said land; and that, in default of such payment within said time, title to said land should be confirmed in said Philip Curran and Mary Curran.

A careful examination of the evidence satisfies us that the court was correct in finding that the evidence did not warrant the claim that Curran paid the money of defendants Backus in the purchase. The title of Hartingh was an absolute title. The statute of limitations had. run against the notes. Defendants Backus claimed title to the land without reimbursing either complainant or Curran. In this they were wrong. Whether complainant’s deed was a mortgage, or an absolute conveyance of title, it is very evident that it placed in him the legal title to the property. In either case he had the right to sell his interest, and reimburse himself, without the consent of Sarah E. Backus. We think that the decree below was as favorable to defendants Backus as the evidence would warrant, and, as the complainant has not appealed, we think the decree should be affirmed, with this modification:

As we understand the record, the complainant still holds the legal title to this land — the interest of the bank having been clearly that of a mortgagee. In case defendants Backus pay to Curran the amount decreed, complainant should convey his legal title to them. The defendants Backus should have three months from the date of this opinion in which to pay the said $1,630.85, with interest at 5 per cent, per annum from the date of the decree below; and, in default of such payment within said time, title to said land will stand confirmed in said Philip Curran and Mary Curran, and defendants Backus shall thereupon be foreclosed from any interest therein. Williams v. Bolt, 170 Mich. 517-528 (136 N. W. 472).

As thus modified, the decree below will be affirmed, with costs of both courts to complainant against all of the defendants.

Brooke, C. Jv and McAlvay, Kuhn, Ostrander, Bird,'Moore, and Steere, JJ., concurred.


text:
      In re SLOMAN’S ESTATE.
    Equity — Parties — Executors and Administrators — Estates oe Decedents — Partnership.
    Where the surviving partners of a copartnership were appointed executors of the estate of their deceased co-partner, it was unnecessary to vacate their appointment so that an administrator might be substituted in their stead to sue the firm for an accounting in behalf of the distributees of the estate under decedent’s will; for the legatees themselves might become parties complainant against the surviving partners, mating party defendant any legatee or other interested person who might refuse to unite with them in bringing suit.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted April 12, 1915.
    (Docket No. 37.)
    Decided June 7, 1915.
    Petition by Cora F. Sloman and others in the probate court for the county of Wayne against Samuel A. Sloman and another as executors of the will of Mark Sloman, deceased, to remove the said executors and to appoint an administrator for the purpose of commencing suit against respondents. From an order granting the prayer of the petition the executors aforesaid appealed to the circuit court, which affirmed the same, and respondents appeal.
    Reversed.

      James O. Murfin arid Sloman & Sloman, for appellants.

      Henry B. Graves, for appellees.
   Stone, J.

This proceeding originated in the probate court of Wayne county upon the petitions of the widow and children of Morris H. Sloman, a deceased son of Mark Sloman, deceased, and of Eugene H. Sloman, a son of said deceased, praying, for reasons therein stated, for the removal of Samuel A. Sloman and Adolph Sloman as executors of the last will and testament of Mark Sloman, deceased, and for the appointment of an administrator, with the will annexed, of said estate, for the purpose of representing said estate as complainant in proceedings in chancery, to be commenced to secure an accounting of the interest of said estate in the copartnership of M. Sloman & Co.

The deceased, Mark Sloman, died November 24, 1908, leaving a last will and testament in which his sons Samuel A. Sloman and Adolph Sloman were named as executors. At the time of his death, and for a considerable period prior thereto, he was a member of the firm of M. Sloman & Co., raw fur dealers, of the city of Detroit. This partnership consisted of the testator, Whiting A. Tillotson, and the deceased’s two sons,. Samuel A. Sloman and Milton M. Sloman. The will was duly admitted to probate, without contest. The testator left, surviving him, a widow, Amelia Sloman, and six children, and the issue of two deceased sons, viz.: Celia Frank, Pauline Wertheimer, Samuel A. Sloman, Adolph Sloman, Eugene H. Sloman (one of the petitioners here), and Milton M. Sloman. The deceased sons were Morris H. Sloman and Edward E. Sloman. The former left, surviving him, Cora F. Sloman, widow, Gladys S. Kopald, Herbert E. Sloman, Marguerita Z. Brown, and Dorothy Sloman (petitioners here). Edward E. Sloman left, surviving him, a son, Cheri M. Sloman.

The will gave the estate to his widow during her life. In case she did not survive him, he gave the same, and such as remained upon her decease, if she did survive him, to his children, and the issue of his deceased children, except that the share of his son Adolph Sloman was to be paid to his wife, the share of his deceased son Morris H. Sloman was to be paid to his widow and children, and the share of Cheri M. Sloman, only son of the deceased Edward E. Sloman, was not to exceed $2,000. The widow survived the testator upwards of a year; the record is silent as to the date of her death. Among other assets left by the deceased to be administered was his interest in the firm of M. Sloman & Co. This interest was scheduled in the inventory filed by the executors, and was appraised by the appraisers appointed by the probate court “at approximately $15,000,” The executors filed their final account November 1, 1911, in which they charged themselves as follows: Undivided interest in M. Sloman & Co., $14,465.29; interest November, 1908, to October 1, 1911, 5 per cent., $2,063.26 — and petitioned the court for its allowance for an order determining the shares of the respective legatees, an order of distribution, and for the allowance of their fees as executors. Due notice of hearing thereon was given to all concerned, and all of the legatees (excepting the widow and children of Morris H. Sloman) approved in writing Of the account as filed. Prior to the hearing, however, Eugene H. Sloman revoked his approval. These last-named persons filed objections to the two items above specified, the grounds being “that the same do not truly and properly represent the amount which the estate is entitled to in the premises.” The account was allowed by the probate court, excepting said two items, which the court did not consider, because the objectors contemplated proceeding against the firm to have the testator’s interest therein determined by proceedings in chancery.

The reasons stated in the petition for the removal of said executors were as follows:

“(4) That your petitioners are informed and believe, and in good faith, charge the fact to be, that the undivided interest of said Mark Sloman in the copartnership aforesaid was much in excess of the amount which the executors charge themselves with in said final account, and that said undivided interest since the death of said Mark Sloman remained in the business at the risk of the same, and tha,t therefore the estate of Mark Sloman, deceased, is entitled to a share of the profits of said business since his death.
“(5) That in order to ascertain the interest of the estate of Mark Sloman, deceased, in said copartnership, it is necessary to have an accounting from the surviving partners in a court of chancery in appropriate proceedings commenced and prosecuted in such court.
“(6) That the aforesaid Samuel A. Sloman, as one of the surviving partners, must be made a party defendant to such a proceeding and cannot act as complainant therein, and the aforesaid Adolph Sloman, as executor, by presenting the final account aforesaid, has expressed himself satisfied with the same, and is opposed to such accounting, and is, as your petition-era are informed and believe, pursuant to the provisions of said last will and testament, either at present interested in the firm of M. Sloman & Co. or is about to be interested in said firm, and for the foregoing reasons and each of them is not a proper party to be complainant in such proceedings and to have control of the same, and he has refused to permit your petitioners to control the same in his .name, although tendered complete indemnity.”

It appeared' upon the hearing that Adolph Sloman was indebted to the estate. An order was entered by the probate court removing said executors. They appealed to the circuit court. We do not deem it necessary to review the evidence upon the trial in the circuit court. It is sufficient to say that the order of the probate court in removing the executors was affirmed with costs. The findings of the trial court were duly excepted to, and amended findings' were proposed by the executors, which were refused, and such refusals duly excepted to. The case has been brought here' by the executors. The assignments of error, among other things, raise the point that upon the evidence and showing made the court was not warranted in removing the executors. Without discussing the many questions of practice raised by appellants, and treating the petition for removal as true, we are of the opinion that the showing was not sufficient to warrant the order and judgment of the circuit court.'

The court ought not to do an unnecessary thing. In our opinion there is no. legal necessity for the removal of the executors in order that the appellees may have a standing in equity. They have such an interest in the estate as will entitle them to file a bill in their own behalf against the surviving members of the firm, the executors, and such legatees as refuse to join them as complainants. The position of the surviving members of the firm, and of the executors, is such that appellees may file the bill themselves, and in their own names.

In the Second American Edition of Lindley on Partnership, vol. 2, at marginal page 613, it is said:

“Notwithstanding, however, the general rule that the separate creditors, legatees, or next of kin of a deceased partner have no locus standi against the surviving partners, this rule is by no means without its exceptions. Indeed there are cases to be met with which apparently warrant the inference that surviving partners may always be sued along with the executor or administrator of the deceased. But the authority of these cases has recently been called in question, and the better opinion now is that some special circumstances are necessary to justify such course. The special circumstances which have been held sufficient are collusion between the executors and the surviving partners; refusal by the former to compel the latter to come to an account; dealings which may have precluded the executors from themselves obtaining any account; the fact that the executors are themselves partners and liable, therefore, to account as partners to themselves as executors; and generally, where the relation between the executors and the surviving partners is such as to prevent a substantial impediment to the prosecution, by the executors of the rights of the persons interested in the estate of the deceased against the surviving partners, there, it has been said, an action may be instituted by those persons against the executors and the surviving partners” — citing many English, cases.

See, also, marginal pages 614 to 621.

It is elementary, in equity, that if a necessary party will not consent to be made a complainant, though his interest is on the same side as that of the complainant, he may be made a defendant. Story’s Equity Pleadings (10th Ed.), § 167 et seq. Upon the general subject of the right of legatees to bring suit, see Id. §§ 89, 104, 203, 204, 207. That this practice has been resorted to in similar cases in this State ap- . pears in our own reports. Frey v. Eisenhardt, 116 Mich. 160 (74 N. W. 501); Porter v. Long, 124 Mich. 584 (83 N. W. 601); McFarlan v. McFarlan, 155 Mich. 652 (119 N. W. 1108); Powell v. Pennock, 181 Mich. 588 (148 N. W. 430).

The fact that Mr. Tillotson is a surviving partner, but not a legatee, is a reason why proceedings in the probate court are not adequate, and why equity has jurisdiction.

• The order is reversed, with the costs of all the courts, and the petition dismissed.

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


author: Kuhn, J.

text:
      In re SLOMAN’S ESTATE.
    Executors and Administrators — Removal—Equity—Parties.
    Where petitioners, legatees under the will of a decedent, were entitled to file a bill in their own right for an accounting against the surviving members of a firm in which decedent had been a partner, who were joined as executors in testator’s will, it was unnecessary to enter an order removing the executors and granting the right to sue in the name of the executor in securing an accounting; the court of equity never undertaking to perform an unnecessary act, the court on appeal will vacate an order of the circuit court removing the executors and authorizing complainants to sue in the. name, of the estate in instituting proceedings.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted April 12, 1915.
    (Docket No. 36.)
    Decided June 7, 1915.
    Petition by Cora F. Sloman and others for an order of the probate court for the county of Wayne to permit petitioners to start a suit for accounting in the name of the executor of the estate of Mark Sloman, deceased, and for the appointment of an administrator for the purpose of defense. From an order granting the prayer of the petition, defendant estate appealed to the circuit court. The order was affirmed. Defendants appeal.
    Reversed.

      James O. Mur fin and Sloman & Sloman, for appellants.

      Robert E. Barber, for appellee Eugene H. Sloman.

      Henry B. Graves, for appellee Samuel A. Sloman.
   Kuhn, J.

This is an appeal from an order made by the circuit judge granting leave to use the name of Adolph Sloman, an executor of the estate of Mark Sloman, deceased, for the purpose of prosecuting chancery proceedings for an accounting against the surviving members of the firm of M. Sloman & Co., to ascertain the interest of the estate of Mark Sloman therein.

This cause was tried in the circuit court, together with the case of the appeal of Samuel A. Sloman and Adolph Sloman from an order removing the executors. Separate appeals in each case were taken to this court, and a statement of the facts giving rise to these appeals is found in the opinion of this court, written by Mr. Justice Stone, in the removal proceeding, and handed down herewith. Ante, 434 (152 N. W. 957).

As we concluded in that case that the appellees have a standing in equity, possessing such an interest in the estate as will entitle them to file a bill in their own behalf against the surviving members of the firm, the executors, and such legatees as refused to join them as complainants, .and being also of the opinion that the court should not do an unnecessary thing, the order removing the executors was reversed. In view of this conclusion, it follows that for the same reasons the order here involved should be reversed, with costs, and the petition dismissed.

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


text:
    TOLEDO SCALE CO. v. GOGO.
    1. Sales — Conditional Contract — Bills and Notes — Alteration.
    A contract in writing covering the purchase and sale of a set of scales and providing for payments in separate installments, reserving title in the vendor and authorizing it to declare the price payable at once in case of default, also to take possession of and remove the scales and providing in such case payments made by the vendee might be retained by the seller, also that in case the scales were defective or got out of order within two years the buyer might return them and the seller would make repairs; that the purchaser should hold the scales at his own risk until title vested in him and no loss or destruction of the scales should release him from the agreed price; to which conditions a promissory note was attached providing for monthly payments and containing the provision that the contract covers all agreements between the parties, operated in law as a conditional contract of sale, not .merely a promissory note with a security clause.
    2. Same — Alteration — Negotiable Instruments — Promissory Notes.
    Where a conditional contract of sale was so drafted that the portion signed could be torn from the remainder of the contract and it would then appear to be a promissory note, the detachment of the negotiable part of the instrument operated as an alteration and avoided the same in the hands of the original payee.
    Error to Mecosta; Barton, J.
    Submitted April 14, 1915.
    (Docket No. 87.)
    Decided June 7, 1915.
    Rehearing denied December 22, 1915.
    Assumpsit in justice’s court by the Toledo Scale Company against John E. Gogo upon a negotiable instrument. From a judgment for defendant there was an appeal to the circuit court. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Butler & Everett, for appellant.

      Broomfield & Worcester, for appellee.
   Kuhn, J.

This action, which was originally begun in the justice’s court, is brought by the plaintiff against the defendant for the purpose of recovering upon a promissory note. The transaction which gave rise to this controversy occurred on October 4, 1913, when an agent of the plaintiff company called on the defendant and endeavored to sell him a set of scales. After some negotiation the defendant told said agent that he would .take the scales known as “Blue No. 581, equipped with a tare beam/’ and the price was to be $140, and at the same time executed and signed the following writings, which, it is defendant’s claim, were attached together and formed one instrument, and were designated as an order:

“Form 245 Order Form for Scales
“City,----, County, Mecosta____State, Mich.
“Toledo G&Biputlng Scale Co., Toledo, Ohio.
“Date, Oct. 4, 1913.
“Ship to the undersigned at No.____Street, mailing address, Stanwood, as soon as possible____one ----of your style 581____Chart C____scales____ Blue _— finish. In consideration the undersigned will pay you one hundred and forty dollars ($140), price of scale f. o. b. Toledo, Ohio, on the following terms:
“A. $----, less 5 per cent., being full cash settlement. (No discount to apply on allowance for scales taken in trade.)
“B. Cash with order, $10.00: $100____in____10 ----monthly installments of $10.00 each and evidenced by installment note of the undersigned. $30 allowed for Dayton 124076____
“This scale will be used in the____business.
“The title to said scale shall remain in you until purchase price or judgment for same is paid in full.
“You are authorized to date above-mentioned note at such time as you may elect, and to insert such date either prior to or after the execution of such note.
“Should there be any failure to pay draft or other demand for cash payment, it is agreed that the full purchase price shall at once become due and payable.
“Should there be any default in the payment of any installment, it is agreed that all the remaining installments shall at once become due and payable, anything in the note to the contrary notwithstanding.
“In default of any payment, you, or your agent, may take possession of and remove said scale without legal process; and in such case all payments theretofore made by thé undersigned under this order shall be deemed and considered as having been made for the use of said scale during the time it remained in the possession of the undersigned, and shall be retained and kept by you as such payment; and for myself and my successors in interest I waive the benefit of all provisions of the lien law and any cause of action thereby given.
“It is expressly agreed that this contract shall not be countermanded, and in the event or refusal to accept said scale when tendered the full purchase price, less any previous payments, shall at once become due and payable as liquidated damages, not as a penalty. The signing and delivering of installment note shall not be deemed nor considered a payment or waiver of any term, provision, or condition of this contract.
“Should the scale, get out of order, from ordinary use, any time within two years from date of shipment, you agree promptly to repair same gratis, the undersigned paying transportation charges to and from your factory or nearest agency capable of making the necessary repairs; or, if repairs are desired made where the scale is located, the undersigned will prepay the expense of the repairman from and _ to your factory or nearest agency capable of making the necessary repairs. Any repairs made without your consent or contrary to your instructions or those of your representatives will be at the expense and risk of the undersigned. It is agreed that_ your guaranty does not extend to electric batteries or bulbs.
“The undersigned shall hold said scale at his own risk pending the vesting of title in him, and no injury, loss, or destruction of same shall release him from this absolute obligation to pay said purchase price.
“This contract covers all agreements between the parties hereto, and all the terms and specifications have been distinctly understood.
“Notice. — No scale placed on trial.
“Witnesses: [Signed] J. E. Gogo.
“Accepted Oct. 7, 1913.
“Toledo Computing Scale Co.
“___________________J. E. Gogo___________________
“By___________Notice to Agent: Print customer’s
name plainly on this line.
“City, Stanwood. County, Mecosta. State, Mich.
“Date, 10, 4, 1913 “10065
“For value received, I — we—promise to pay to the order of Toledo Gemputi-ng Scale Company, Toledo,
Ohio, one hundred____dollars ($100.00). Payable monthly from date at____ Send check direct---Bank, as follows:
Coll’n
Coll’n Due Due Date
No. Date Date Pd. Amount. Date Pd. Amount
12-1-13 1st month 10.00 2nd month 10.00 3rd month 10.00 4th month 10.00 5th month 10.00 6th month 10.00 7th month 10.00 8th month 10.00 9th month 10.00 10th month 10.00
“It is agreed that default in payment of any of the above installments shall at the option of the holder hereof render the unpaid balance of this note immediately due and payable.
“Name, J. E. Gogo,
“Stanwood, Mich. Street, Ave. J. E. Gogo.
“This space for customer’s signature. “To Agents: Print name of customer plainly in this space.”

It is the defendant’s claim that the instrument signed by Mm was subsequently altered by some person crossing off the word “Computing,” and thus changing the name of the payee, and also by adding a place of payment by adding the' words “Send check direct,” and also by separating the lower part, which is designated in the record as “Plaintiff’s Exhibit 1,” from the upper part of said contract, which is designated as “Plaintiff’s Exhibit 2.”

The defendant filed a plea of general issue, and also filed an affidavit denying the signing and execution of the note. A verdict was had for the defendant in the justice’s court, and upon appeal to the circuit court, at the close of the plaintiff’s proofs, counsel for defendant moved for a directed verdict because the instrument on which plaintiff sought to recover was not a promissory note, but merely a conditional contract of sale, and because the instrument had been altered in two respects:

First, the so-called note was drawn to the Toledo Computing Scale Company, and the word “Computing” was scratched out, hence changing the name of the payee.
Second, the so-called note was severed from the remainder of the contract.

This motion was at that time denied, but at the close of the defendant’s proofs, the motion being renewed, the trial court directed a verdict in favor of the defendant.

"Various questions as to the admissibility of evidence under the pleadings are raised by counsel for appellant in their brief, but, in view of the conclusion we have arrived at — that the court properly directed a verdict for the defendant — it will be unnecessary for us to consider the other questions.

It is undisputed that at the time that Exhibits 1 and 2 were signed by the defendant they were attached together, and in reality were one instrument. The material question therefore is whether or not the separation of Exhibit 1 from Exhibit 2, which made it on its face a negotiable promissory note, was a material alteration of the instrument.

We are of the opinion that the entire contract which is made up of these two exhibits must be said to have been a conditional contract of sale. An examination of Exhibit 2 shows that it contains an order for the goods in question, giving shipping directions and providing for the terms of payment — partly in cash and partly by turning over an old set of scales. It further provides that the title to the scales shall remain in the vendor until the purchase price or the judgment is paid in full; and, should there be any failure to pay drafts or other demands for cash payment, the full purchase price shall at once become due and payable. It also provides that, in the event of a refusal to accept such scales when tendered,'the full purchase price, less any previous payments, shall at once become due and payable as liquidated damages. And it further states that the signing and delivering of the installment note (Exhibit 1) shall not be deemed nor considered payment; and, further, that if the scales should get out of order within two years, the plaintiff will repair the same, and specifically states:

“This contract covers all agreements between the parties.”

We do not think that it can be said that it comes within that class of cases in which it is held that such a transaction is a promissory note, reserving title by way of security only, and it is not ruled by the case of Choate v. Stevens, 116 Mich. 28 (74 N. W. 289, 48 L. R. A. 277). It rather comes within the ruling of this court in Worden Grocer Co. v. Blanding, 161 Mich. 254 (126 N. W. 212, 20 Am. & Eng. Ann. Cas. 1332). See, also, 4 Am. & Eng. Enc. Law (2d Ed.), p. 127; 3 Ruling Case Law, under title “Bills and Notes,” p. 918.

We are also clearly of the opinion that by detaching Exhibit 1 from Exhibit 2, and thus creating a negotiable promissory note, which, when it was still attached, was a part of a conditional contract of sale, must be said to have been a material alteration of the instrument and to result in avoiding the instrument. The rule applicable is stated by Mr. Chief Justice Campbell in the case of Wait v. Pomeroy, 20 Mich. 425 (4 Am. Rep. 395). See page 427 of 20 Mich., where he said:

“If it formed á part of the original contract, it was a material alteration to detach the memorandum, and leave the note as if it had been absolute. And it is a principle well settled that such an alteration avoids the entire obligation.”

In the case of First National Bank v. Carter, 138 Mich. 421 (101 N. W. 585), an instrument was signed by the school officers which in form was a promissory note, and had attached to it a memorandum stating that the matter might be left to a vote of the district at the annual meeting, which memorandum was detached before the order was transferred. Mr. Chief Justice Moore, in writing the opinion for this court, held that this was a material alteration which avoided the instrument, and the rule announced in Wait v. Pomeroy, supra, was cited and approved.

The rule is thus stated in 2 Cyc. p. 177:

“As a general rule, the effect of any alleged change in an instrument depends, first, upon the character of the change; that is, whether it is material or immaterial. Any change in an instrument which causes it to speak a different language in legal effect from that which it originally spoke — which changes the legal identity or character of the instrument, either in its terms or the relation of the parties to it — is a material change or technical alteration, and such a change will invalidate the instrument against all parties not consenting to the change.”

So, in the instant case, the two exhibits together constitute a conditional order of sale, and the separation made Exhibit 1 a negotiable promissory note, and thus changed the legal identity and character of the instrument which was executed by the parties at the time that the contract was entered into.

Judgment is affirmed.

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


text:
    WEBER v. VAN BLERCK MOTOR CO.
    1. Landlord and Tenant — Lease—Assignment.
    If an absolute assignment is made by .a tenant to a third person under a lease providing that no assignment shall be made without the written consent of the lessor, and the assignment is made for the entire term, the assignee succeeds to all the rights and liability of the original lessee, and upon the entrance of the assignee and occupancy of the premises and recognition by the owner of his rights by accepting rent, or otherwise treating him as a tenant, the relationship of landlord and tenant is created.
    2. Same — -Assignment oe Lease — Rent.
    In an action for rent due, brought by a landlord against an alleged assignee of the original lessee, where it was claimed by defendant that it occupied the premises only temporarily, or from .month to month, and that no assignment of the lease was executed, the testimony being in conflict whether plaintiff had recognized the defendant as the absolute tenant, the court should have submitted the issue to the jury; the direction of a verdict in favor of the plaintiff being unwarranted by the record.
    Error to Wayne; Barton, J., presiding.
    Submitted April 13, 1915.
    (Docket No. 52.)
    Decided June 7, 1915.
    Assumpsit by Joseph F. Weber against the Van Blerck Motor Company for use and occupation. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Reversed.

      Stellwagen & MacKay (Hubert G. Haller, of counsel), for appellant.

      Jasper C. Gates, for appellee.
    The plaintiff was the owner of certain property situated on the Detroit river,, in the city of .Detroit, and on this land was a machine shop and a few outbuildings. Prior to the 15th of January, 1910, -'Joseph Van Blerck had leased the property under an oral agreement with the plaintiff. On January 15, 1910, a written lease was entered into by Mr. Van Blerck with Mr. Weber, renting the property for a term of five years at a rental of $25 per month payable in advance. The lease also contained the following clause:
    “Said lessee further covenants that this lease will not be assigned nor the premises sublet nor any part thereof.”
    In February, 1910, the defendant company was organized, of which company Mr. John S. Haggerty was secretary and treasurer, and which occupied and used the premises in question and itself paid the rent, in compliance with the terms of the lease, directly to the plaintiff. In July, 1912, a fire occurred on the premises, and thereupon the Van Blerck Motor Company moved out, and since that time no rent has been paid. This action was brought against the defendant company by the plaintiff to recover the rent due at the time of the trial, amounting to $225, and upon motion made by the attorneys for the plaintiff the court directed a verdict for that amount in favor of the plaintiff. The case is brought here by writ of error.
   Kuhn, J.

(after stating the facts). It is the claim of the defendant that there was no assignment of the lease, and that, according to the understanding between the defendant company and Mr. Van Blerck, they were simply to occupy the premises from month to month until such time as better quarters were found. There is no question with reference to the rule of law that, where an assignment is absolute and for the entire term, the assignee succeeds to all the rights and liabilities of the original lessee (Damnstaetter v. Hoffman, 120 Mich. 48 [78 N. W. 1014], and authorities therein cited); and, further, that, if an assignee has entered under an assignment and occupied the premises,- the relationship of landlord and tenant is created between the owner and assignee if the owner has recognized the assignee as his tenant by the accepting of rent, or otherwise, notwithstanding that the assignment was in direct violation of the terms of the lease. See note to Field v. Copping, 36 L. R. A. (N. S.) 488. The troublesome question about the situation here presented, however, is whether or not it can be said that the questions whether an assignment was actually made, and, further, whether it was consented to by the plaintiff, were not questions of fact upon this record, which should have been submitted to the jury.

It is denied by Mr. Haggerty, the officer of the defendant company, that an absolute assignment was made. He said that the occupancy by the company was simply a temporary arrangement made between it and Mr. Van Blerck, and color is given to this claim by the testimony of Thomas M. Weber, son of the plaintiff, who looked after the rents for the plaintiff, and who said that he never knew anybody other than Mr. Van Blerck in the matter of rents, and that no distinction was made between Joseph Van Blerck personally and the Van Blerck Motor Company, and that the bills for the rent, even just prior to the evacuation by the defendant, were sent to Mr. Van Blerck personally.

We are of the opinion that these questions, as to whether or not there was a good and valid assignment, and as to whether or not Mr. Weber assumed there was such an assignment and waived the requirement of the lease prohibiting such an assignment by accepting the checks of the Van Blerck Motor Company, were, upon the record here made, questions of fact for the jury, and should have been submitted to them.

The case will therefore be reversed, and a new trial granted.

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