text:
    SMITH v. WAALKES.
    1 Injunction—Bill for Divorce.
    Complainant filed a bill against her husband and defendant, alleging grounds for divorce, and also a conspiracy between her husband and defendant, whereby her husband’s property had been fraudulently transferred to the latter, and praying that, if it should appear to the court that complainant had not resided within the State a sufficient length of time to authorize her to maintain a bill for divorce, an injunction might issue restraining defendant from disposing of or incumbering his property until such time as she could legally maintain such bill. Held, that the bill was properly sustained as an injunction bill, although it failed as a bill for divorce.
    2. Same—Death op Party—Abatement op Suit.
    The death of the husband after the violation of the injunction by the defendant did not abate the suit, so as to relieve the defendant from liability to punishment for contempt.
    3. Same—Contempt op Court—Proceedings to Punish.
    Where the petition for an order to show cause why the defendant in an injunction bill should not be punished for contempt sets out at length the facts in the case, and the defendant, in his answer, does not deny the correctness of the material facts as stated, but interposes a defense the sufficiency of which is purely a question of law, the court may dispose of the proceeding without the framing of interrogatories or making an order of reference, especially where the defendant makes no request therefor.
    Appeal from Kent; Grove, J.
    Submitted January 14, 1896.
    Decided March 31, 1896.
    Bill by Jane Smith against Martin Waalkes, impleaded with Baltus Smith, for an injunction. Defendant appeals from an order adjudging him guilty of contempt, and awarding damages to complainant.
    Affirmed.

      Earle & Hyde, for complainant.

      C. O. Smedley (B. M. Corwin, of counsel), for defendant.
   Moore, J.

The complainant filed a bill in chancery against her husband, Baltus Smith, and this defendant. The bill shows that she and Baltus Smith were married in Kent county in 1873, and that they had been out of the State, in Kansas, Texas, Colorado, and California, and that neither had resided in the State but a short time immediately preceding the filing of the bill of complaint; that' they had lived together as husband and wife until August,^ 1894; that complainant had borne her husband seven children, three of whom were then living, their ages ranging from 16 to 8 years; that, in the spring of 1894, Smith and his family were living in California; that at that time Smith owned a real-estate mortgage for $1,600 upon the property of defendant, Waalkes, located in Grand Rapids; that that spring Waalkes came to the Smiths, in California, and tried to get Smith and his wife to discharge the mortgage, and let him make a first mortgage upon the property, and give them a second mortgage; that they declined to do that, and Waalkes became incensed at Mrs. Smith, and in a large measure obtained control of Smith, and began to insinuate to him that his wife was guilty of improper conduct with other men, and that Smith finally came to believe Waalkes’ statements to be true; that, While Waalkes was there in California, he took up a coal-mining claim, and about the 1st of August, 1894, induced "Smith to turn over to him the real-estate mortgage and other property, consisting of notes (all that he had) amounting to about $3,000, in pretended consideration of the transfer to him by Waalkes of the mining claim; that the mining claim was entirely worthless, and that the real purpose of the transfer was to get the property of Smith out of the reach of complainant and the children, and then to get Smith to desert his family; that about August 1, 1894, Smith and Waalkes left California, Smith pretending that he had a position in Kansas, where he was going; that complainant thereupon gave him two dollars to buy food on the journey, and bade him good bye; that, instead of stopping in Kansas, they came direct to Grand Rapids, and had, up to the time of filing the bill, re-, mained there; that, immediately upon their arrival, they stated to complainant’s father, mother, brother, and sisters, and to a large number of her friends, that complainant would not return to Grand Rapids, but had run away with another man, and had been guilty of abusing Smith, and had deserted him while he was sick, and that the children had conspired with complainant to abuse and ill-treat Smith, and that she was as bad as any prostitute on Waterloo street, and had stated that she would not return with her husband, but would remain with her paramour, and was waiting for her parents to die, to get some of their money.

The bill further alleges that when complainant was deserted by her husband she had no means, and could not return to Grand Rapids, and that Smith and Waalkes succeeded in making her relatives here believe the statements about her character, but that about the 20th of January her friends in Grand Rapids sent her money, and she came back February 2, 1895; that Smith and Waalkes conspired together to defeat her in recovering alimony, and to defeat any claim that she might have for herself and children in the property and money so transferred by Smith to Waalkes; that, after the return of Smith and Waalkes to Grand Rapids, Smith also turned over to Waalkes the household furniture belonging to complainant, and that she is entirely without means, and living upon the charity of her friends; that, every statement derogatory to the character of complainant made by Smith and Waalkes is absolutely false, and entirely without foundation; that the statements were made to defraud complainant, and defeat her claim for alimony. The bill further shows that Waalkes has real estate in the city of Grand Rapids, and a specific description thereof is set out; that Smith, after his return to Grand Rapids, discharged the $1,600 mortgage on Waalkes’ property; and that, unless Waalkes is restrained, he will dispose of his property, in order to hinder and defeat complainant.

The bill prayed that Waalkes be enjoined from disposing of or incumbering his property, and from disposing of the notes turned over to him by Smith; and also prayed for a divorce between the parties, and for alimony; and that the decree for alimony be a lien upon the real estate of Waalkes, and that he be decreed to pay alimony so to be awarded; and there was also a prayer for general relief. After this prayer came the following:

“14. Or, if it shall appear that, on account of the absence of your oratrix from the State of Michigan, she is not entitled to file a bill for divorce at this time, in this court, that the said Martin Waalkes may be enjoined and restrained, as prayed for above, until your oratrix may legally file a bill for a divorce against the said defendant, Baltus Smith, and obtain a decree therein for divorce and alimony as prayed for herein.”

Judge Grove ordered an injunction, and the same was properly served, and at the time the bill was filed a lis pendens was recorded in the office of the register of deeds. The injunction was served February 16, 1895. March 23, 1895, Waalkes executed a mortgage upon a portion of the property for $3,000, and the mortgage was recorded. Thereafter, and before the death of Baltus Smith, complainant filed a petition asking leave to amend the bill of complaint by making the children parties complainant, and also a further prayer for relief. On the 13th of April, 1895, Baltus Smith died. Two days later, defendant, Waalkes, demurred to the bill of complaint, after the death of Baltus Smith, and also after the petition to amend the bill had been filed, and while it was pend •ing. August 3, 1895, the suit was revived by-.naming complainant, who had been appointed administratrix of the estate of Baltus Smith, deceased, and the order provided that she should be classed as a complainant. Defendant, Waalkes, was required to show cause, August 19, 1895, why he should not be punished for contempt in violating the injunction by executing the -mortgage of March 23, 1895.

Waalkes filed his answer, setting forth that he was not guilty of violating the injunction issued in said cause; that Jane Smith filed said bill for the purpose of obtaining a decree of divorce from her husband, Baltus Smith, and for the purpose of obtaining alimony; that when Baltus Smith died the suit abated, and was entirely at an end, because the relief sought against Martin Waalkes was only ancillary to the suit for divorce; that the suit for slander commenced by capias by said Jane Smith against said Martin Waalkes was commenced simultaneously with the issuing of said injunction, and was -done for the purpose of preventing said Martin Waalkes from obtaining bail, because said injunction would hinder him in giving security to' his bondsmen; that what incumbrance he did place on his homestead was given for the benefit of said Jane Smith, because it was only a conditional mortgage, which provided for a payment to her if she was successful in her slander suit; that it was impossible for him to obtain bail without giving the mortgage, and that he would have had to go to jail if he had not put in said bail bond; that he had been imprisoned one day and one night, to wit, the 15th of February, 1895; that he appeared in said Cause, and filed a demurrer to the bill of complaint, and that the said demurrer had not yet been heard or disposed of.

Judge Grove fined the defendant $200 for his contempt, and ordered him to pay the sum to the complainant for her damages in the matter. No interrogatories were filed, and Judge Grove held that, inasmuch as a lis pen-dens was on record, the mortgagees obtained no valid lien upon the real estate as against complainant, and that her damage by reason of the injury done her by the giving of the said mortgage was $200.

Defendant appeals from the order convicting him of contempt in violating the injunction, and claims that the court had no jurisdiction, because the proceeding was one for divorce, that the complainant was not a resident of the State, and that the court had no right to issue the injunction, and for that reason to ignore it would not be a contempt of court.

It is not necessary to discuss whether, because of not residing in the State a sufficient length of time, the complainant could sustain the bill as a proceeding for divorce or not. She sufficiently alleged a conspiracy between her husband and the defendant to deprive her of property rights to authorize the court to issue a writ of injunction to prevent any further disposition of the property until she had lived in the State a sufficient length of time to authorize her to maintain a suit for divorce, and to have her interest in the property of her husband determined by the court. There is a sufficient statement of facts entitling her to relief, to sustain the bill as an injunction bill, upon the filing of which the court was authorized to issue a writ of injunction, which must be respected by the parties litigant. The following cases are suggestive of the principle followed by the trial court: Whipple v. Farrar, 3 Mich. 436; Jones v. Smith, 22 Mich. 360; Flanders v. Chamberlain, 24 Mich. 305; Miller v. Stepper, 32 Mich. 194; Dayton v. Dayton, 68 Mich. 437; Ireland v. Miller, 71 Mich. 119; Bush v. Freer, 91 Mich. 315.

It is also claimed that the death of Baltus Smith ended the suit wholly, so that the court was not warranted in entertaining the contempt proceedings. The bill authorized the court to allow the writ of injunction, which was issued and served. The defendant neither answered nor demurred to the bill nor moved to dissolve the injunction. He simply ignored the process of the court. If he is guilty of contempt at all, it is for acts done long before tbe death of Baltus Smith. If we are right in construing this bill as one containing sufficient allegations to warrant the issuing of the writ of injunction, the death of Raltus Smith would not abate the suit as to defendant, Waalkes. Seibly v. Ingham Circuit Judge, 105 Mich. 584.

The only remaining question to discuss is, was it necessary, before the court could dispose of the contempt proceedings, to frame interrogatories and take proofs? In answer to the petition that he be punished for contempt, Waalkes filed a sworn answer, in which he “ states the facts and circumstances in said cause to be as follows.” He then recites the facts, which do not differ materially from what was recited in the petition, but seeks to justify his action in the way hereinbefore stated. No request was made by defendant to have interrogatories framed, or for an order of reference. The case was heard and disposed of upon the pleadings and proceedings hereinbefore stated. There was no dispute about what occurred. The pleadings, including the sworn statement of defendant, Waalkes, show just what was done. They showed the issuing of the writ of injunction, its personal service upon Waalkes, its violation, the manner in which it was violated, the extent of its violation, and its effect upon the property rights of the' complainant. The defense in the contempt proceeding did not grow out of disputed facts, but was purely a question of law, in relation to which the defendant was mistaken. Judge Grove had all the facts before him which could have been brought- out by a reference to a commissioner. He was as well qualified to dispose of the proceedings without the framing of interrogatories as he would have been with them.

The case is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    FIFTH NATIONAL BANK OF GRAND RAPIDS v. DUNHAM.
    1. Banks and Banking—Trusts—Estoppel.
    A bank to which-a note is sent for payment upon request of its president, the indorser of the note, and which pays the same in accordance with his instructions, is estopped to assert, as against the holder of the note, that payment was in fact made from a trust fund created and placed in the hands of the president for the purpose of paying said note and certain other obligations held by the bank, which fund had proved inadequate to discharge the indebtedness in full.
    2. Same—Misapplication op Funds.
    A bank to whose president an insolvent debtor has transferred his property, by Sundry conveyances, to secure certain of his creditors, which bank is the sole beneficiary in one of said transfers, and a partial beneficiary in each of the others, and which knowingly permits the trustee to apply ■ upon the claims of other creditors moneys properly applicable to its claim alone, is estopped from insisting upon the return of any part of the moneys so paid, on the ground that the residue of the fund is insufficient to pay its claim in full, the subsequent conduct of such creditors having been materially influenced by the fact of said payments having been t made.
    Appeal from Kent; Adsit, J.
    Argued October 8 and 9, 1895. Reargued and submitted January 14, 1896.
    Decided March. 31, 1896.
    Bill by the Fifth National Bank of Grand Rapids against William Dunham, trustee, and others, for an accounting. From a decree for complainant, defendants appeal.
    Reversed.

      Wesley W. Hyde and Myron H. Walker, for complainant.

      Fletcher & Wanty, for defendants Fourth National Bank of Grand Rapids, Northern National Bank of Big Rapids, and First National Bank of Traverse City.

      Chainplin & Stone, for defendant City National Bank of Lansing.

      Kingsley & Kleinhans, for defendant Detroit National Bank.

      FitzGerald & Barry (Francis A. Stace, of counsel), for defendant T. Stewart White.
   Hooker, J.

The W. Steele Packing & Provision Company, of Grand Rapids, was indebted as follows: To Fifth National Bank (complainant), $10,000; to Fourth National Bank, $7,500; to Northern National Bank, $5,090; to First National Bank of Traverse City, $3',000. It owed $21,000 to others not interested in this proceeding. Mr. Steele, its manager, was indebted as follows: To Fifth National Bank (complainant), $10,000; to Northern National Bank, $5,000; to Detroit National Bank, $5,000. All of this indebtedness, except that due the complainant, consisted of negotiable paper indorsed by Dunham, who was president and manager of the complainant bank.

On August 28, 1889, both Steele and the packing company were insolvent and the following instruments were executed to Dunham as trustee: The packing company gave: (1) A chattel mortgage on substantially all of its personal property, including “allpersonal chattels and effects, goods, provisions, books, and book accounts, and choses in action, * * * located at its packing house in Wyoming township.” This may be designated the “Chattel Mortgage.” (2) A real-estate mortgage upon the packing-house property in Wyoming township, which mortgage, after describing the real estate, included the following, viz.: “Also all the buildings, machinery, improvements, and chattels situate upon said premises.” This mortgage will be designated the “Packing-House Mortgage.” At the same time, Steele executed the following upon his individual property: (1) A real-estate mortgage upon property in Ionia, called the “Ionia Mortgage.” (2) An assignment of 70 shares of stock in the Fifth National Bank.

The packing company mortgages secured packing company paper, as follows: The chattel mortgage secured: Complainant, $10,000; Fourth National Bank, $2,500. This mortgage, on its face, purported to secure other claims; but complainant admits them to have been col-' lateral to the $10,000 claim. The packing-house mortgage secured: Fourth National Bank of Grand Rapids, $5,000; Northern National Bank of Big Rapids, $5,000; First National Bank of Traverse City,' $3,000. A second clause in this mortgage becomes immaterial, as the property did not produce a sufficient sum to pay the items having priority. The Steele mortgage and assignment secured his individual paper as follows: The Ionia mortgage secured: Complainant, $10,000; Northern National Bank of Big Rapids, $5,000; Detroit National Bank of Detroit, $5,000. The assignment of stock secured the Steele paper held by the Fifth National Bank, and it is contended that it covered the $5,000 note of Steele held by the Northern National Bank, which. Steele testified that he supposed was held by complainant at that time; but we think that the weight of evidence is to the effect that it secured complainant only.

Had Dunham reduced all of the property to possession before disbursing it, no great difficulty should have been experienced in dividing it in conformity to the terms of the trust among those entitled to it; but he did not do this. On the contrary, he attempted to continue the business of the Steele Packing & Provision Company, opening an account in his own bank (i. e., the complainant), in, his name as trustee, and drawing upon the fund for the expenses of the business, and to pay paper falling due, and discounts upon renewals. Such renewals were made or indorsed by him personally. The bank stock was converted into money, and, instead of being used to pay the complainant’s notes against Steele, was, in part, at least, applied to other paper as it became due, or to discounts upon renewals. No serious difficulty is found in tracing the funds. Ordinarily, in such cases, those receiving-more than their legitimate proportions will be required to surrender the excess, upon a bill filed for an accounting; and the bill in this cause is filed for such purpose. Manifestly, the misconduct and mistakes of the trustee will not relieve a cestui que trust from his duty to account to his fellow beneficiaries; and in this case, if the defendants are to avoid contribution, it is because of facts which make it inequitable for the complainant to ask such relief.

Different reasons are assigned by the various defendants why they should be entitled to.retain the sums that they have severally received from the trustee. First, it is contended that the course of the trustee had the full approval and assent of the Fifth National Bank, and that, as the payments were made over its own counter, upon checks signed by Dunham as trustee, it cannot now be permitted to recall such assent, and recover from the defendants, especially as the defendants relied upon such payments, and Dunham was released in consequence, when he would otherwise have been held as indorser.

Dunham took possession of the property at once upon receiving the papers creating the trust. It will be remembered that each instrument was unlike the others, and no two secured identical obligations. A proper administration of the trust would have required the several funds received from the property covered by the respective instruments to be kept separate, and applied according to the terms of the various instruments. Dunham did not do this. He opened one account as trustee, and deposited moneys from the various sources therein. He paid notes and discounts upon renewals, as they became due, by drawing checks upon this fund. He carried on the business of the Steele Packing & Provision Company, including a retail meat market, paying the expenses, and, there is reason to believe,Barge losses, from this account, and, apparently, he used the Wyoming township real estate for the purposes of this business. About the first thing done by him was in relation to the note of $2,500, held by the Fourth National Bank, upon which he was indorser. It fell due the day following the creation of the trust. He telephoned the holder to send it through the clearing house to the Fifth National Bank, and it would be paid. It was so sent, and it was paid, by its application in the adjustment of that day’s business between these banks. It appeared upon the hearing that the Fifth National Bank carried this as a cash item for a time at Dunham’s direction, and that he subsequently paid it from the trust fund. Complainant now claims that, in the accounting, the Fourth National Bank should be charged with the amount of such note as though it had received payment from the trust fund, and that, as the fund proved inadequate to full payment of the debts, it should account for the excess with interest.

We may, perhaps, profitably dispose of this question at this point. We think that the Fifth National Bank was under an obligation to treat that note as sent to it for payment. It saw fit to receive it and settle for it upon an understanding with Dunham, which it was not authorized to do on behalf of the holder. If not paid, it should have protested it, and returned it without delay.. There is nothing to indicate that the Fourth National Bank expected it to be paid from the trust fund. It had been informed by Dunham that it would be paid if sent to the bank. Was it Dunham as trustee, or indorser, or president of the bank, who made this promise? Inasmuch as there was nothing to indicate that, as trustee, he had money to pay it, but, on the contrary, it quite clearly appears that he had not, it will not be unfair to assume that the direction was given as indorser, and that he arranged with his bank to pay the note and carry it for him. It cannot now shelter itself behind the claim that it relied on his promise as trustee, and carried the note as a cash item against the trustee. So far as this note is concerned, we think complainant estopped; and, for the purpose of any accounting with the trustee, it is to be treated as though it purchased that note, and became entitled to its proportion of the fund obtained from the chattel-mortgaged property.

The Fourth National Bank had another claim. . This was a packing company note of $5,000, with Dunham’s indorsement. It was apparently a renewal of the note secured by the packing-house real-estate mortgage, and was sold for full consideration to the City National Bank of Lansing. Previous to its sale, the Fourth National Bank had received, as discounts, upon successive renewals of this paper, the sum of $449.99. It is contended that this sum should be considered in the accounting. We pass the question, to be considered later, with others of like character, and follow the history of the note itself. On October 8, 1890, it was sent by the City National Bank to the Fourth National Bank for collection, but was not paid. A renewal was returned, with the sum of $103.33 interest, which was paid by a trustee check, signed by Dunham, payable to the Fourth National Bank. We do not discover that further interest was paid on this note, and on March 10, 1891, Dunham filed his bill in the Kent circuit court, in chancery, to foreclose the packinghouse real-estate mortgage. J. Edward Earle, who was a stockholder and an officer of the Fifth National Bank, was his solicitor, and the case was commenced upon the request of the City National Bank. It will be remembered that there was a second clause in this mortgage, which secured other creditors, among them, the complainant. The debts to be first paid were this $5,000 note, owned by the City National Bank, a $5,000 note - given to the Northern National Bank, which found its way to White (as will appear hereafter), and a $3,000 note owned by the First National Bank of Traverse City. A number of these beneficiaries asked leave to answer and file cross-bills, and this was permitted, nearly all doing so. The Fifth National Bank filed an answer and cross-bill, praying for an accounting, as follows:

“That the complainant should render a full and accurate account of all moneys by him received as said trustee, and from said securities, and of all acts by him done as such trustee, and asks the aid of this court in requiring from him a full and accurate account thereof, and of his disposition of the property that has come into his hands under the said trust, and of the proceeds thereof. This defendant asks the benefit of a cross-bill herein upon the facts alleged in this answer, under the rules and practice of this court permitting the same, and that it may have the same relief as though it had filed its cross-bill herein, and that the said complainant may come to a full and fair accounting of the said trust aforesaid.”

The City National Bank also asked accounting. Testimony was taken and proof was made concerning expenses incurred for taxes and insurance, and services of watchmen in protecting the property, by the Grand Rapids Savings Bank, a defendant. The decree adjudged that the Traverse City National Bank’s note of $3,000, the City National Bank’s note of $5,000, and the note of $5,000 owned by White, had priority of payment. It then determined the notes entitled to consideration under the second clause of the mortgage; but these need not be considered, as the property did not bring a sufficient sum to pay those having priority. It found due upon the City Bank note, $6,588.89; White note, $6,601.11; Traverse City Bank note, $3,924.62. It found that payments had been made to the Traverse City Bank amounting to $1,207.31, together with interest, and ordered this sum to be paid to the register; and, if the Fifth National Bank, which claimed that these amounts had been paid from the chattel-mortgage fund, should begin proceedings for an accounting with Dunham and the two banks and White within 30 days, it should be held .by the register to await the final decree in such proceeding; otherwise, it should be divided among the two banks and White. An allowance of $856.51 was made to the Grand Rapids Savings Bank for expenses. On appeal, this court affirmed the decree, the only change being an increased allowance for expenses. 100 Mich. 75. The decree was dated September 22, 1893, and was affirmed by decree of this court filed after this suit was begun. The bill in this cause was sworn to October 30, 1893. It is now contended that the- decree in said cause was conclusive between the parties, as to their respective shares in the proceeds of said mortgage, except as to the amount paid to the Traverse City Bank, which was specially mentioned and left open, and that the complainant should not be permitted to claim from the City National Bank the $103.33 and interest which it received. For the same reason it denies complainant’s right to recover from it a share of a further sum of $2,500 claimed by Dunham for expenses, services, etc., in managing and caring for this property, and of which the court allowed $2,285.85, the two items amounting, it is said, to over $900 against the City Bank.

T. Stewart White became owner of a note by purchase from Dunham, it being a renewal of the packing company note held by the Northern National Bank, indorsed by Dunham, who paid it, and, as stated, secured by the packing-house mortgage, and sold by Dunham to White. White, as already shown, was a party to the foreclosure case, and a decree was rendered against him for a portion of the sum of $2,285.85 allowed Dunham for expenses, etc. But, previous to the procurement of this note from the Northern National Bank by Dunham, and its transfer to White, the original note had been renewed several times, and interest to the amount of $309.99 had been paid, through the complainant, to whom the notes had been successively sent for collection, and the complainant seeks to recover this from the Northern National Bank.

The other note of $5,000, owned by the Northern National Bank, was also sent to complainant for collection, and $1,500 and interest was paid from the chattel-mortgage fund, and $3,500 and interest was paid from the proceeds of the bank stock. It will be remembered that this note was secured by the Ionia mortgage. Complainant asks to recover these amounts.

The Detroit note of $5,000 was sent to the complainant for collection. Payments were made, through complainant, as follows: February 7, 1890, $72.33; February 7, 1890, $1,000; April 22, 1890, $1,000; July 22,1890, $1,000.' On each occasion, time was given upon the balance, upon new paper, signed by Dunham; the original note being held until the new note should mature. It will be remembered that this note was, with others, secured upon Ionia real estate by a mortgage. This was foreclosed, and a decree was filed September 5, 1893. The property was sold to Welch, as trustee for the Fifth National Bank, the suit having been commenced at the request of Mr. Earle, a director of that bank. The decree found that the Northern National Bank had been fully paid, and the $3,000 paid to the Detroit bank was deducted from its claim, and a decree for $2,000 made on its behalf. The Fifth National Bank disavows all responsibility for this, saying that Dunham, and not the bank, was the party complainant, and that it was in no way responsible if the claim of the Detroit bank was reduced, that of the Northern National Bank wiped out, and itself permitted to absorb the bulk of the Ionia property, which it caused, or at least permitted, to be bid in to itself.

To recapitulate the amounts sought to be recovered by complainant:

1. Against the Fourth National Bank, a portion of the amount paid on the $2,500 note, and also the sum of $449.99 paid to the Fourth National Bank as interest on the $5,000 note subsequently sold to the City National Bank.

2. Against the City National Bank, $103.33 paid as interest on the $5,000 note, and about $800 which it is now claimed that Dunham expended in protecting the Wyoming township real estate, being a part of the $2,285.85 allowed by the circuit court.

3. Against the Traverse City National Bank, the amount of $1,207.31, payments made to it before foreclosure, being the amount deposited with the register, and also its proportionate share of the $2,285.85 mentioned.

4. Against T. Stewart White, for a proportionate share of said $2,285.85.

5. Against the Northern National Bank, $309.99 interest on note before its sale to T. Stewart White, and $5,000 and interest which complainant claims to have been paid from trust funds upon note secured by the Ionia mortgage.

6. Against the Detroit National Bank, payments of $3,072.33 upon note secured by the Ionia mortgage.

An examination of the testimony has satisfied us that the complainant was conversant with and assented to the attempt by Dunham to continue the business of the packing and provision company, and the payment and renewal of paper as it became due. It knew the terms of the trust, and the deposit of the fund, the drawing and payment of checks to the various creditors and others, which checks it paid, and in some instances received and applied such checks and the avails thereof upon the obligations. It knew that the bank stock was reissued to Dunham, and, although it alone was interested in it, seems to have not concerned itself with the disposition made of it or its proceeds. Its directors grumbled at the result of Dunham’s conduct of the business, but permitted it, and we are convinced that it understood that the real estate in Wyoming township was being used in the business instead of being closed out. Again, the course of the complainant in relation to the funds corroborates this. Allusion has already been made to its disregard of its legal rights in the bank stock. It was equally careless in respect to the chattel property, which, if the defendants are right in their contention, was in part covered by the packing-house mortgage. Upon the foreclosure of this mortgage, it seems not to have occurred to the complainant to make claim in its answer that the various defendants had been paid by its securities, though it prays general accounting by Dunham; and at the hearing it seems to have made no claim of that kind against any of the defendants except the Traverse City Bank. Again, upon the foreclosure of the Ionia mortgage, while not technically a party to the proceedings, its members and solicitors were connected with the case, and through Dun-ham it secured a decree that determined that the Detroit National Bank claim was reduced, by payment, to $2,000, and that of the Northern National Bank extinguished. Every defendant had reason to suppose that it was paid by the assent of complainant, and in furtherance of a program which Dunham, then its president, was carrying out. They permitted the real estate to be used for the business. They allowed the personal property to be sold without setting up a claim to it under the real-estate mortgage, which, in terms, covers some of it, and which, to say the least, might in the minds of some clearly include it. They granted extensions of time on partial payment, .accompanied by new promises to pay, until Dunham, the indorser, failed. They deferred foreclosure, and finally accepted their allotments under the decrees mentioned, upon the understanding that they had received payment. To now require them to reimburse the complainant would he to misapply the rule that, “of two, the least in fault should not suffer.” We are of the opinion that the facts shown amply support the contention that the complainant .should be estopped from asserting a claim to the moneys paid.

The decree of the circuit court against the appellants ■should be reversed, and the bill dismissed, with costs of both courts. Ordered accordingly.

The other Justices concurred,


author: Montgomery, J.

text:
    COOLEY v. KINNEY.
    1. Mortgages—Common Law—Survivorship.
    A mortgage executed to the mortgagees in lieu of their heir-ship interests in the mortgagor’s estate, which is conditioned upon the payment of a specified sum to each, does not, at the common law, create an estate in joint tenancy, so as to permit the survivor to foreclose for the full amount.
    2. Same—Construction oe Statute.
    2 How. Stat. § 5561, which excepts mortgages from the general provision of the statute (section 5560) that “all grants and devises of lands made to two or more persons shall he construed to create estates in common, and not in joint tenancy, unless expressly declared to he in joint tenancy,” does not operate to prevent the execution of a mortgage with covenants which are several, but leaves the rule as at common law.
    Error to Van Burén; Buck, J.
    Submitted January 16, 1896.
    Decided March 31, 1896.

      Assumpsit by Cora Cooley against Hiram A. Kinney to recover the agreed consideration for executing the discharge of a certain mortgage. From a judgment for plaintiff, defendant brings error.
    Reversed.

      L. A. Tabor, for appellant.

      T. J. Cavanaugh, for appellee.
   Montgomery, J.

The plaintiff sued to recover the agreed consideration for executing the discharge of a certain mortgage, alleging that the defendant recognized her right to and agreed to pay her for the discharge of the mortgage $350. Defendant denied this, and claimed. that he agreed to pay her but $150, the amount due her.

It appears by the testimony that in January, 1882, Oren Q-. Kinney, the grandfather of plaintiff, executed to plaintiff and her sister a mortgage, in consideration of natural love and affection and one dollar, with a condition as follows:

“Provided always, and these presents are upon this express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said parties of the second part, the sum of four hundred dollars, without interest, as follows: $200 on the 5th day of October, A. D. 1892, to be paid to Cora L. Hancock, tuithout interest, and the sum of $200 to be paid on the 12th day of September, A. D. 1890, without interest, to Lillie May Hancock. This sum is given to them in lieu of heirship interest in my estate, and, in the event of their decease, then this mortgage to be null and void. In case of such payments, then this mortgage to be void.”

Defendant is the uncle of plaintiff, and the son of the mortgagor, claiming under a deed made by him.

On the trial the plaintiff testified that her sister, Lillie May, died before reaching her majority; that, after her sister’s death; defendant told her that she was entitled to the $400; that in March, 1893,- defendant asked her to discharge the mortgage, and agreed to give his note for $350, she having previously received $50 of the amount; she therefore executed a discharge, in which she assumed to discharge the mortgage on her own account, and as heir of her sister, although it was known to both parties that plaintiff’s father was still living. This testimony of plaintiff was strenuously denied by defendant, who testified that he agreed to pay her but $150; and in this he was supported by the scrivener, and other testimony. The jury, however, found with the plaintiff.

Numerous questions are raised, but we think it will be necessary to consider but one. The circuit judge charged that—

“Where a mortgage is given to two persons, and one dies, the entire amount of said mortgage becomes due and owing to the survivor thereof; and as a matter of law, in this case, if you should find that this plaintiff, together with her sister, held a mortgage upon' the premises of Oren Gr. Kinney and wife, and that afterwards her sister died, she, being the survivor of the two, would have had a perfect right to foreclose the said mortgage for the entire amount owing upon the said mortgage.”

The covenants are several, and for the benefit of the parties severally. It is true that at the common law, as to a mortgage given to two or more jointly, the right of survivorship exists; at least, as to the remedy. See Martin v. McReynolds, 6 Mich. 70. And the statute (2 How. Stat. § 5560) providing that grants to two or more persons shall be construed to create estates in common is subject to the exception in the next section, which excludes mortgages. The effect of this legislation is not, however, as we think, to prevent the execution of a mortgage with covenants which are several. The sole effect is to leave the rule as at common law, and a mortgage which was not joint at the common law is no more so since this statute. ■ In this case there is no covenant to pay this plaintiff, either severally or jointly with her sister, any more than $200. The covenant to pay her sister, Lillie May, is distinct, and does not even name her heirs, representatives, or assigns. We think it clear that there was no survivorship in plaintiff entitling her to foreclose for the full amount. There is no trust relation established by the mortgage which entitles her to receive this sum in trust for any one entitled to take. In short, there is no covenant to pay it to her either individually, or to herself and another jointly. See Jones, Mortg. § 135; Burnett v. Pratt, 22 Pick. 556; Brown v. Bates, 55 Me. 520 (92 Am. Dec. 613); Gilson v. Gilson, 2 Allen, 115. In the case last cited the court, speaking of a provision like that contained in our section 5561, said:

“ Rev. Stat. chap. 59, § 11, it is true, has excepted mortgages from the broad provision that all conveyances made to two or more persons shall be construed to create estates in common, and not in joint tenancy; but this provision only operates to leave open the inquiry in each particular case as to the character of the mortgage. If the mortgage is given to secure a joint debt, it will be construed to be a joint estate; but if tbe mortgage is given to secure separate debts, obligations, or duties, each mortgagee is entitled to enforce his right in his own name.”

We think the circuit judge was therefore in error in instructing the jury that the plaintiff could have foreclosed the mortgage in her own name for the $400, and that on the death of one mortgagee the entire amount of the mortgage became due and owing to the survivor thereof.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    TYLER v. NELSON.
    1. Appeal—Sufficiency of Declaration.
    An. objection to the sufficiency of a declaration cannot be raised for the first time on appeal.
    2. Negligence—Evidence—III Will—Intent.
    In an action for damages susta’~ed by a collision on the highway, it appeared that the defendant, who was approaching plaintiff in a buggy on the opposite side of the road, drove across, and ran into and injured the plaintiff’s horse. Held, that evidence of defendant’s ill will towards the plaintiff, before and up to the time of the collision, was properly admitted, as bearing upon his intent or motive in so crossing the road.
    3. Same—Contributory Negligence—Law of the Road.
    The failure of a driver to exercise due care and caution in attempting to pass another upon the highway is not conclusively established by evidence that he did not observe the law of the road.
    4. Same—Gross Negligence.
    A driver who fails to exercise due care while attempting to pass another driver coming from the opposite direction is not precluded thereby from recovering for injuries to his property resulting from a collision, where the conduct of the other party is wanton and willful.

      Error to Van Burén; Buck, J.
    Submitted January 16, 1896.
    Decided March 31, 1896.
    Case by Sheridan Tyler against John Nelson for the alleged negligent killing of plaintiff’s horse. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. N. Cook and T. J. Cavanaugh, for appellant.

      A. H. Chandler'and Heckert & Chandler, for appellee.
   Moore, J.

This case was commenced in justice’s court, tried there, appealed to the circuit court, and tried there. A verdict and judgment were rendered for $40 in favor of the plaintiff. The defendant appeals to this court.

The declaration was in a plea of trespass on the case—

“For that, whereas, the said defendant on, to wit, the 7th day of November, A. D. 1894, at the township of Covert, in said county, with force and arms, drove a certain vehicle, to wit, a buggy, which he, the said defendant, was then and there driving in and along the public highway, with great force and violence upon and against a five-year-old mare of him, the said plaintiff, of great value, to wit, of the value of one hundred dollars, which said mare he, the said plaintiff, was then driving in and along the said public highway, and thereby, then and there, the said defendant drove the end of one of the thills of his said buggy into the side of said plaintiff’s said mare, whereby she was greatly wounded, and soon after, by reason of said wound, died.”

The plea was the general issue, with notice—

“That the defendant, on the trial of this cause, will give in evidence, and insist in his defense, that, at the time, mentioned in plaintiff’s declaration, of driving his horse an.d carriage, as in said declaration alleged, the defendant was driving north on the highway on a slow trot, and turned his horse to the right, when the plaintiff, who was driving on a slow trot towards the south, on meeting the defendant, suddenly turned his horse to the left, and crossed the road in front of defendant’s horse, before the defendant had time to hold up; that, if the plaintiff’s horse was injured by the thill of ■ defendant’s carriage, as alleged in his declaration, the same was done by plaintiff’s negligence or fault.”

It was the claim of the plaintiff, on the trial, that, while he was driving on the highway, going south in the east track of the highway, he saw the defendant coming towards him, from the south, in the west track of the highway ; that ‘ ‘ the defendant left the west traveled track of the highway, and drove almost directly across to the east traveled track, on which plaintiff was driving, and in a manner so sudden and unexpected that the plaintiff, in endeavoring to avoid a collision, turned his horse to the left, and drove into the ditch adjoining such east tract, but that the defendant, instead of so turning aside as to avoid a collision, drove his horse, in a grossly wanton, willful, and negligent manner, against the plaintiff’s horse, whereby said plaintiff’s horse was so wounded that it afterwards died.”

The defendant denied these claims of the plaintiff, and insisted that he was not responsible for the collision, nor for any injury which resulted therefrom. He claimed that, while he was driving on the public highway, and in the exercise of due care, he met the plaintiff, and that the plaintiff, instead of turning to the right, as defendant expected him to do, and as, in the exercise of due care, he ought to have done, turned to the left so suddenly that a collision occurred, and that, if damage resulted to the plaintiff, it was brought about, either wholly or in part, by the negligence of the plaintiff himself.

The first assignment of error is that the declaration is not sufficient, in law, to maintain this action. We think the declaration sufficient for a declaration in justice’s court. No objection was made, either in justice’s court or in the circuit court, to the sufficiency of the declaration. As we have repeatedly held, it is too late to raise a question of that nature in this court for the first time.

The second, third, and fourth assignments of error relate to the testimony that was allowed to go to the jury as to the feeling Nelson had towards Tyler before, and continuing up to the time of, the collision, and what he said about the collision. We think this testimony competent, as bearing upon the question of intent or motive of the defendant in crossing over from the west track to the east track in the manner in which he did. Detroit Daily Post Co. v. McArthur, 16 Mich. 452; Druse v. Wheeler, 22 Mich. 444.

All the other assignments of error relate to the refusal of the court to give defendant’s requests, and to the general charge as given by the court.

The testimony in the case was very conflicting. If the jury accepted the version given by the plaintiff and his witnesses, it is difficult to see how they could have avoided giving the plaintiff a verdict. On the other hand, if the jury had found the account of the transaction to be as claimed by the defendant and his witnesses, their verdict must have been for the defendant.

The learned trial judge gave, in his general charge, the substance of all the defendant’s requests to charge that were good law and applicable to the case.. So far as it is necessary to quote his charge, it is as follows:

“The burden of proof is on the plaintiff to establish the truth of the matters which he alleges by a fair preponderance of the evidence in the case. He is not bound to prove his case beyond a reasonable doubt, but he should prove the facts which he alleges by evidence which, in the mind of the jury, weighs more than the evidence given on the part of the defendant.
“And I instruct you, gentlemen, in several requests as presented me by the defendant, as follows:
“You are further instructed that the injury alone will not support an action on the case. There must be a concurrence of the injury and wrong, and if the act be not unlawful in itself, then, unless done in a manner, at a time, or under such circumstances as would render it wrongful or lacking in due regard for the rights of others, there can be no liability for the injury that may result.
“You are instructed that a highway is a public way, for the use of the public in general, for passage and traffic, without distinction, and the restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement; and inconveniences such as are only incident to a reasonable use under impartial regulations are not actionable.
“You are further instructed that the law of the road and regulation of public carriages is as follows: Whenever any persons shall meet each other on any bridge or road, traveling in carriages, cars, sleds, sleighs, or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the traveled part of such bridge or road, so that the respective carriages or other vehicles aforesaid may pass each other without interference.
“You are instructed that the traveled part of the road, referred to in the last instruction given you, means that part which is wrought by travel, and is not confined simply to the traveled wheel track.
“The burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary care and diligence on his own part; and, if you should find that he did not use ordinary care and diligence on his own part, and thus contributed to the injury, and that defendant was guilty of no more than ordinary negligence, you should return a verdict of no cause for action.
“The law of the road, as given you in the instruction just read, requires a traveler by any vehicle on the public highway, on meeting another vehicle, to turn to the right, instead of to the left. But the fact that a person turns to the left, instead of turning to the right, is not conclusive of the question of due care or negligence on his part. There may be cases in which due and proper care would require that he should turn to the left, instead of to the right, and in which it would be negligence on his part to turn to the right. If you, in view of all the circumstances, as you find them to have been, find that, in the exercise of due and proper care, the plaintiff should have turned to the right, instead of turning to the left, then his turning to the left would be negligence on his part; but if, under all the circumstances, it was apparently safer for him to turn to the left, and he did only what a man of ordinary prudence would have done under similar circumstances, then he had a right to disregard the law of the road in that particular, and his turning to the left would not in itself be negligence. If, on the other hand, you find that plaintiff, in the exercise of due care, could have avoided the collision by turning to the right, and that a man of ordinary prudence would have done so, and that, instead of so doing, he turned to the left, and thereby came into collision with the vehicle of defendant, then such conduct would be negligence on his part; and, if you should find that his negligence contributed to the injury received by the plaintiff, he cannot recover, unless you should find that the action of the defendant was wanton, willful, or so grossly negligent as to indicate a wanton disregard of the rights of the plaintiff.
“And I further instruct you, as requested on defendant’s part, as follows:
“You are further instructed that, though you believe, from the evidence, the injury complained of resulted from ordinary negligence on the part of the defendant, still this would not entitle the plaintiff to recover, if you also believe, from the evidence, that, by using reasonable and ordinary care and judgment, the plaintiff could have avoided the collision, and saved his horse from injury. I use the term ‘ordinary negligence,’ gentlemen, and I will further on instruct you as to the difference between what is called in law, ‘ ordinary negligence ’ and ‘-gross negligence.’ The purport of this instruction is that, if you find the defendant only used ordinary negligence,— that is, disregarded those rules of conduct that a man of ordinary prudence would have followed,—but was not guilty of any gross negligence, or wanton and willful disregard of the plaintiff’s rights, then, if the plaintiff himself was also negligent, he cannot recover; the rule of law being that, where two parties are careless, and no evil is intended by one against the other, and no gross negligence or wanton disregard by one of the rights of the other, then neither of the parties can recover for the injury.
“Also, as further requested by defendant, that, in order to entitle the plaintiff to recover damages for injuries sustained by reason of the collision, he must show the injuries to have been attributable to the misconduct of the defendant in this case, and under such circumstances as to exonerate himself (the plaintiff) from all contributory negligence on his part; and, unless such is apparent from the evidence in this case, it will be your duty to find a verdict of no cause for action. And I modify that, precisely as I did the former, by saying that would be true if defendant was guilty of nothing more than what is called ‘ ordinary negligence.’
‘ ‘ On the part of the plaintiff, I instruct you as follows:
“ If you should find, from the evidence, that the plaintiff was guilty of contributory negligence, yet, if it is further found, from the evidence, that defendant’s own conduct was wanton, willful, or reckless, whereby said plaintiff suffered injury, as he claims in his declaration, then said plaintiff can recover his damages as may be proved.
“The questions in this case, gentlemen, which might be naturally determined in their order, would be these: The first question: Was the defendant himself negligent ? Was he guilty of any wrong towards the plaintiff ? If he was not, then you should return a verdict, without making any further inquiry. If, on the other hand, you find that he was negligent, that his acts were not such as a man of ordinary prudence would have performed, then the next question would be the degree of negligence of which he was guilty.
“Ordinary negligence is a disregard, as I have already indicated, of those rules of conduct which would govern men of ordinary care and prudence. It is not required of a man that he should use the highest degree of care,— that he should be always as careful as it is possible for him to be. It is incumbent upon him only to be as careful as men of ordinary prudence and judgment would be under the same or similar circumstances. ' So that the first question would be, was the defendant lacking in this regard? Were his acts such as a man of ordinary care, prudence, judgment, and caution would not have done? Now, if he was not as careful as men of ordinary prudence would be, then that would be simply what the law calls ‘ordinary negligence;’ and, if his conduct was no more than this, then the next inquiry would be whether the plaintiff was himself free from negligence which contributed to the injury. That is, would the injury have been brought about if the plaintiff had been himself as careful as men of ordinary prudence would be? The same criterion should determine his conduct as that of the defendant. The plaintiff would not be obliged to use the highest degree of care in order to avoid injury to himself. He would only be required to use that degree of prudence and caution which men of ordinary prudence and caution would use under precisely or very similar circumstances as you may find them to have been from the testimony.
“ Now, as I have instructed you, if the defendant was only ordinarily negligent,—that is, if he was careless,—. and the plaintiff was careless too, and the injury would not have happened without the plaintiff’s carelessness, or if the plaintiff’s carelessness contributed in any degree to bringing about the injury to himself, then he cannot recover; the rule of law being, as I have indicated, where two parties are negligent, though the negligence be ordinary negligence, neither can recover from the other. If, however, you find, as you have already been instructed, that the plaintiff was himself not in the exercise of due and proper care, but that his conduct was negligent, still, if you find that the conduct of the defendant was wanton and willful, and if he drove his horse and vehicle purposely into plaintiff, or if, as plaintiff claims, he was trying to crowd him, and was doing that which showed a manifest recklessness and disregard of the rights of the plaintiff, and utter indifference as to whether the plaintiff should be Injured or not, then another rule would obtain,. and he would be liable for his conduct, even though the plaintiff himself may have been careless. So, as I say, it not only may be important for you to determine whether or not the defendant was negligent, but the degree of negligence of which he was guilty. And if you should find that he was guilty of wanton, willful, or gross negligence as I have defined it, then it would be no defense that the plaintiff himself was careless.
“In determining these questions, gentlemen, you are to be the sole judges. You are men of experience and intelligence and caution, men of affairs, and in the light of the testimony, looking at it just as you find it to be from the testimony in the case, it will be for you to say whether the parties were negligent, or whether they were in the exercise of due care, and, if the defendant was negligent, the degree of negligence, and the motive by which he was actuated, and what there is disclosed by his conduct at that time.”

The judgment is affirmed, with costs.

The other Justices concurred.


text:
    GOW v. COLLIN & PARKER LUMBER CO.
    1. Corporations—Corporate Existence—Estoppel.
    Where an association purports to be a corporation, recognized as such by the public authorities, its co: existence cannot be attacked, and its members held li: partners, by a creditor who has dealt with it as a corpc and is rporate able as ¡ration.
    3. Same.
    The owner of a mortgage pm-porting to be given by a corporation, by seeking to foreclose it, affirms the corporate existence of the mortgagor.
    8. Mortgage Foreclosure—Prior Incumbrance—Estoppel.
    The holder of a mortgage which recognizes prior incumbrances is estopped, in foreclosing the mortgage, from denying the validity of such prior liens.
    Appeal from Muskegon; Russell, J.
    Submitted January 17, 1896.
    Decided March 31, 1896.
    Bill by James Gow and another to establish the individual liability of the stockholders in the Collin & Parker Lumber Company for the payment of its debts, to foreclose certain mortgages, and for other relief. Prom a decreé dismissing the bill on demurrer of the defendant John A. Elwell, complainants appeal.
    Affirmed.

      Bunker & Carpenter, for complainants.

      John Vanderwerp {Frank H. Smith, of counsel), for ■defendant Elwell.
   Moore, J.

The complainants, James Gow and John ■Campbell, are copartners composing the firm of Gow & Campbell, engaged in a general lumber business at North Muskegon, where they own a mill. July 30, 1890, the defendants William W. Collin, Charles H. Parker, and John A. Elwell incorporated under the name of the Collin & Parker Lumber Company, for the purpose of “the purchase, manufacture, and sale of lumber, shingles, and other forest products, and carrying on a general lumbering bhsiness, and, incident thereto, to purchase and sell timber lands and timber,” and to that end executed and filed articles of association for the incorporation of said company. The capital stock of the company was $20,000, divided into 2,000 shares, of which Collin held 1,998, and Parker and Elwell held one share each. 'The articles of association filed with the clerk of Muskegon county state that the entire sum of the capital stock was paid in. August 30, 1890, the Collin & Parker Lumber Company increased its capital stock to $30,000. January 24, 1891, the company filed its annual report in the office of the clerk of Muskegon county, in which it was stated that the capital stock was divided as follows: “William W. Collin, 2,059 shares; Charles H. Parker, 60 shares; John A. Elwell, 1 share.” The report also stated that—

“The amount of capital stock is $30,000; the amount of capital actually paid in is $21,200; the amount invested in real estate is none; the amount of personal estate is $47,715.87; the amount of the debts of the corporation is $45,927.65; the amount of the credits of the corporation is $21,230.56.”

January 30, 1892, the company filed its second annual report, in which it was stated the division of the capital stock had not changed from that of the previous year, and that its liabilities and assets were as follows:

“The amount of capital stock is $30,000; the amount of capital actually paid in is $21,200; the amount invested in real estate is $3,000; the amount of personal estate is $54,586.84; the amount of the debts of the corporation is $53,630.32; the amount of the credits of the corporation is $26,509.30.”

The complainants allege that, relying on the statements in the articles of association and in the annual reports, and believing that the company had a capital stock of $20,000, subscribed in good faith and paid in, and that the company was doing a legitimate and profitable business, and that the stock in trade and assets of the company were increasing, and never having any information to the contrary prior to December 20, 1892, they, in the year 1891 and the early part of 1892, sold to said company large quantities of lumber, for which the company paid in full; that complainant Gow, on or about May, 10, 1891, and prior to the time when complainants made any sale of lumber to the company, made inquiries of Colon C. Billinghurst, cashier of the defendant the Lumberman’s National Bank, as to the financial responsibility of said company, in order to ascertain whether it would be safe for complainants to sell to the company on credit, and were assured by Billinghurst that the company was all right, and that it would be safe for complainants to sell to the company on credit; that August 1, 1892, Collin, in behalf of the company, applied to complainants to purchase a million feet of lumber; that complainant Gow, knowing that defendants Hovey & McCracken had had and were having deals with said company, applied to McCracken for information as to the financial strength and credit of the company, and was assured by McCracken that the company was all right, that its financial responsibility and credit were good, and that Hovey & McCracken had sold to said company $20,000 worth of lumber at a time, but that McCracken did not disclose to complainant that they had any security or guaranty for the payment of the same, and complainants were ignorant of that fact until December 20, 1892; that complainants, relying upon the financial strength and credit of said company as disclosed by its articles of association and annual reports, as well as upon the representations of McCracken, sold to the company, August 18, 1892, a million feet of lumber for $7,276.87, and delivered the same to the company from time to time, and took in payment therefor the notes of the company, described as follows: September 10, 1892, $3,000; September 26, 1892, $2,500; October 11, 1892, $1,776.87,—all payable to the order of complainants, 90 days after date, respectively.

December 20, 1892, the Collin & Parker Lumber Company executed and delivered to the Lumberman’s National Bank a chattel mortgage for $6,000, covering all the personal property of the company, its accounts, bills receivable, and books of account, which mortgage was recorded the same day as a first mortgage. , On the same day, defendant also executed and delivered a second mortgage on the above-described personal property, books of account, etc., to Hovey & McCracken, for $14,-425.39. Four other mortgages on the same property, except the accounts, bills receivable, books of account, etc., were also executed by the defendant in the following order, for the amounts specified: To complainants, Gow & Campbell, for $7,276.87; to Gray Bros. Manufacturing Co., for $1,302.26; to C. S. Bacon & Co., for $3,198.47; to James E. Austin & Co., for $531. All of the mortgages were executed subject to the lien of the mortgage or mortgages that preceded them. December 28, 1892, Bacon & Go. and Austin & Co. assigned their mortgages to the complainants.

The bill of complaint alleges that Collin and Parker, at the time of the incorporation of the Collin & Parker Lumber Company, were pecuniarily irresponsible, and that Elwell was and is a man of large means and excellent credit; that he is the father-in-law of Collin; that their incorporation was simply to procure a means of credit for Collin and Parker by lending the name and business standing of Elwell; that the statement made by them.that the entire capital stock was paid in was false; that the company has never had any capital stock or stock in trade other than the lumber acquired after their incorporation from other firms and corporations, except some lumber purchased by Collin from Hovey & Mc-Cracken, for the payment of which Elwell had become personally responsible; that this lumber was turned over to the company by Collin; that the agreement between Elwell and Hovey & McCracken has been twice renewed and is still in force; that no payment has been made to Hovey & McCracken for lumber so purchased or thereafter purchased from them by said company or said Collin or said Elwell, except from the proceeds of the sale of the stock acquired by said company; that the annual reports were false and misleading, and were filed for the purpose of enabling the company to extend its credit; that all the statements made by the company relative to its business standing were intentionally and designedly for the purpose of misleading, deceiving, and taking a fraudulent advantage of those who should sell it lumber; that. the defendants the Lumberman’s National Bank and Hovey & McCracken were cognizant of the ti*ue condition and status of the company; that, by reason of the premises, the Collin & Parker Lumber Company never existed as a corporation, and is not now/ and never was, a corporation, but now is, and since the date of its pretended incorporation has been, a copartnership; and that Collin, Parker, and Elwell are now, and since July 30, 1890, have been, copartners, and are jointly and severally liable as such. , ■

The bill also alleges that on December 20, 1892, the hank and Hovey & McCracken took possession of the company’s property by virtue of their mortgages, and proceeded to collect all outstanding accounts; that complainants were refused access to the books of the company, and claim there is yet sufficient assets to discharge the indebtedness due to them; that there is now due them ■on the mortgage executed to them by the company $5,500, with interest on $3,000 at the rate of 8 per cent, from December 12, 1892; that there is now due complainants on the mortgage given by the Collin & Parker Lumber Company to Bacon & Co. $1,900, with interest as follows: On $1,500 from December 19, 1892, and on $400 from December 25, 1892; that there is due complainants on the mortgage given by the company to Austin & Co. $531; that the remaining sums secured by said mortgages will become due as therein respectively stated; that no payments have been made on any of said mortgages, nor has any proceeding at law been had for the recovery of the debts, or any part thereof, secured thereby.

The complainants ask that the pretended incorporation of the Collin & Parker Lumber Company be declared to be void, and that the stockholders be decreed to be partners, and liable for the debt of the complainants, and that the court determine how much is due complainants; that the Collin & Parker Lumber Company, William W. Collin, Charles H. Parker, and John A. Elwell may be decreed to pay that amount, with costs; that the Lumberman’s National Bank and Hovey & McCracken be required to disclose the true status of their business relationship with the company, and to disclose if the company has given them other security than the first and second mortgages mentioned before; for a writ of injunction restraining the bank and Hovey & McCracken from disposing of any of the property of the company, and that they apply what they have received from the assets of the lumber company on their mortgages; for the appointment of a receiver for the Collin & Parker Lumber Company, and the application on complainants’ mortgages of the assets of the company; for a personal decree for any deficiency against Collin, Parker, and Elwell, and a prayer for general relief.

Defendant Elwell demurred to the bill, and the demurrer was sustained. Complainants failed to file an amended bill, and the court ordered the dismissal -of the bill of complaint. The case is brought here for review.

The complainants seek to have the corporation known as the Collin & Parker Lumber Company declared invalid and void, and its stockholders held to be partners, and liable for the indebtedness due the complainants. Are the complainants in a position to make that claim and to seek that relief? The company, in form, was duly incorporated, was recognized by the public authorities, and filed its annual reports, and did business as a corporation. The complainants dealt with it as a corporation, and accepted its mortgages, made as a corporation. In the case of American Mirror & Glass-Beveling Co. v. Bulkley, 107 Mich. 447, it was held that, where an association was recognized by the pnblic authorities as a duly-organized corporation, and did business and filed its annual reports as such, a creditor who dealt with it as a corporation could not attack its corporate existence, and hold its stockholders liable as partners. See Swartwout v. Railroad Co., 24 Mich. 389; Merchants & Manufacturers’ Bank v. Stone, 38 Mich. 779, and cases there cited. The case at issue must be governed in that respect by the above-mentioned cases.

The complainants urge that, if it be conceded that they cannot raise the question of the validity of the corporation, and that the defendant Elwell cannot be held liable on the complainants’ mortgage as a copartner, the'bill will still lie as against him. They urge that the bill is primarily one for the foreclosure of a mortgage, and an accounting, an injunction, and a receiver; that, as such, it was properly filed, and that Elwell is a necessary party if the complainants obtain the relief they are entitled to. They urge that the capital stock of the company, as between it and its creditors, should have been fully paid by its incorporators; that the creditors dealt with the corporation relying upon all its capital stock being paid in. They argue that, as the capital stock was in fact paid by the lumber furnished by Hovey & McCracken to the amount of $20,000, which was to be paid for by Collin with his notes, guaranteed by Elwell, the creditors have a right to say that those notes shall be paid by Collin and Elwell from other funds than the assets of the company. They further argue that, to allow the notes guaranteed by Elwell to be paid out of the assets of the corporation, would leave the corporation in the position of never having had in fact any capital stock. . They insist that upon the facts stated in the bill the complainants are entitled to call on Mr. Elwell to furnish the full amount of the guaranteed $20,000, to meet the claims of the’ creditors of the Collin & Parker Lumber Company, and that Elwell should be •compelled to answer. They cite, in support of their position, Doyle v. Mizner, 42 Mich. 332; Attorney General v. Hanchett, 42 Mich. 436.

In addition to the reason we have already mentioned, growing out of the fact that by their dealings with it the complainants have recognized the existence of the corporation, there are two difficulties in the way of this contention. One is that the facts stated in the bill do not necessarily establish the inference that the $20,000, or any part of it, which was to be paid to Hovey & Mc-Cracken for the lumber sold Collin, previous to the organization of the corporation, has been paid out of the assets of the corporation. The mortgage—which is a part of complainants’ bill—which Hovey & McCracken took from the corporation shows upon its face that it was given for some other debt than that of Collin. The notes, the payment of which is secured by the mortgage, bear date two years subsequent to the organization of the corporation, and the notes were the notes of the corporation, and were executed as such. The other difficulty is that the mortgages complainants are seeking to foreclose all mention and recognize the preceding mortgages. Can the complainants affirm the mortgages in part, as they seek to do by attempting to foreclose them, and dis-affirm them in important particulars, by asking this court to set aside the lien established by the prior mortgages, which liens are recognized in the mortgages sought to be foreclosed by the complainants ? It is a well-established principle of law that a party cannot affirm such parts of a contract as will inure to his benefit, and rescind that part which is disadvantageous. The rescission must be entire. The contract cannot be treated as valid for one purpose and void for another. Galloway v. Holmes, 1 Doug. (Micb..) 330; Jewett v. Petit, 4 Mich. 508; Sloan v. Holcomb, 29 Mich. 161; Thompson v. Howard, 31 Mich. 309; Dunks v. Fuller, 32 Mich. 242; Walsh v. Sisson, 49 Mich. 423; Rowley v. Towsley, 53 Mich. 329; Farwell v. Myers, 59 Mich. 179; Merrill v. Wilson, 66 Mich. 232; Button v. Trader, 75 Mich. 295. By seeking to sustain tbis suit as a proceeding to foreclose mortgages executed by tbe corporation known as the Collin & Parker Lumber Company, the complainants affirm tbe corporate existence of that company as a legal body, and tbe legality of tbe mortgages mentioned in tbe bill of complaint.

Tbe demurrer is sustained, with costs. •

Tbe other Justices concurred.


author: Grant, J.

text:
    HELLER v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Common Carriers—Transportation of Live Stock.
    A railroad company, in carrying live stock, is not chargeable with the common-law liability of a common carrier, but is only bound to transport with ordinary prudence, skill, and care, and with reasonable dispatch.
    2. Same—Custom—Care Taker.
    It is the custom of shippers of live stock to send a care taker with the stock, and, in the absence of an agreement on the part of the carrier to perform the duties of a care taker, a shipper assumes all • risks arising from his failure to comply with such custom.
    3. Same—Negligence—Burden of Proof.
    It is incumbent upon the plaintiff in an action for injuries to live stock during shipment to show what injury, if any, resulted after the act of negligence by the company upon which the' claim for recovery is based, where it appears that most, if not all, of the injury was done before such act.

      4. Same—Pleading—Sufficiency of Declaration.
    "Whether the plaintiff in such an action can recover for a specific negligent act, known to him at the time of bringing suit, without alleging the same in his declaration,—qucere.

    5. Negligence—Instructions to Jury—Duty of Court.
    "Where several grounds of negligence are alleged in the declaration, and there can be no recovery upon some of them, the court, in instructing the jury, should eliminate such from their consideration.
    Error to Saginaw; McKnight, J.
    Submitted January-28, 189G.
    Decided March 31, 1896.
    Case by Gustav Heller against the Chicago & Grand Trunk Railway Company for injury to cattle shipped over defendant’s road. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff’s firm, of which he is the survivor, purchased some cattle at the stock yards in Chicago. His agent • ordered a car from the defendant company in which to ship them. The car was furnished, and was 33 feet long and 8 feet wide upon the inside. Into this car were loaded 24 steers, weighing 25,800 pounds, or 1,075 pounds each. The defendant was not responsible for the loading. Plaintiff could put in as many or as few cattle as he chose. The car was to be shipped over the defendant’s road to Flint, Mich., and from thence over the Flint & Pére Marquette Railway to Saginaw. The usual time for the performance of the journey was from 24 to 32 hours. The loaded car was then delivered to the defendant for transportation. The train consisted of 24 cars, the others being loaded with hogs. The car left Chicago at 2:30 p. m., March 14th, and reached Saginaw at 4:15 a. m., March. 16th. Plaintiff furnished no man to accompany the cattle and take care of them on the route. The train was'supplied with air brakes, the same as are in use on passenger trains, so that stops and starts could be made with as little jar or jerk as possible. ■ On arriving at a station called “ Haslett Park,” toward noon of the 15th, the conductor discovered that three of the cattle were down, and that they all appeared restless and uneasy. He testified that the car was overloaded, that he wired the superintendent for a larger car, and asked for instructions. On arriving at Bancroft, 19 miles farther, about noon, in obedience to instructions, this car of cattle was sidetracked, the cattle taken out, watered, fed, and rested 11 hours, a larger car furnished, the cattle loaded in it, and the journey completed. Before arriving at Bancroft one steer had died. His body was removed, and it was reloaded in the large car with the other cattle, and shipped to Saginaw. The cattle were delivered in bad condition, their flesh bruised, some ribs broken, and one dead. Plaintiff brought suit to recover damages for the injury, and obtained a verdict of $150.
    The declaration contains six counts, some based upon the common-law liability of the defendant as a common carrier, and others based upon alleged negligence. The court, in its instructions, eliminated the counts as to the common-law liability, and left it to the jury to determine, under the first two counts, whether the defendant was guilty of negligence which caused the injury. These two counts are substantially the same. On account of the importance of the case, we quote the allegation of negligence in full. It is as follows:
    “Yet the said defendant, not regarding its said duty in that behalf, did not carry and convey said cattle in said car of said defendant from said Chicago to said Saginaw, with such reasonable dispatch and care, and did not feed, water, and properly care for the same, but whplly failed and neglected sc to do. That said cattle, after being so placed in said car at said Chicago at said time, to wit, 7 o’clock in the forenoon of the 14th day of March, 1893, were carried, and said car was hauled, negligently, and with such want of reasonable care and dispatch, by said defendant, from said Chicago to said Saginaw, that said car did not arrive at said Saginaw until, to wit, 10 o’clock in the forenoon of the 16th day of March, 1893; and that said defendant, contriving and willfully intending to injure and defraud the said Gustav Heller, surviving partner of Mary Hubert and Gustav Heller, as aforesaid, negligently and carelessly, and without reasonable dispatch,'hauled said car, containing said cattle, from said Chicago to said Saginaw, without devoting any care or attention to said cattle whatever, without food, water, change of position, or care. Said cattle had not been fed or watered since leaving said Chicago as aforesaid, and could not, owing to their position in said car, lie down. That the weather during all of said time was extremely cold; that said cattle were continuously in said car from said 7 o’clock of the forenoon of said 14th day of March, 1893, until 10 o’clock in the forenoon of the 16th day of March, 1893, without food, water, care, or opportunity to lie down, and without, adequate protection from the extreme cold, and, owing to their number, were during all that time in a cramped and uncomfortable position in said car; and that said cattle, by reason of such neglect and delay in transportation as aforesaid, and want of food, water, and care, and long confinement in said car in said cramped and uncomfortable position, and without any fault or negligence on the part of said Gustav Heller, surviving partner of the said Mary Hubert and Gustav Heller, suffered greatly thereby, and became, by reason of said cold weather, want of food, water, room, and care, sick, sore, lame, weak, bruised, jammed, gored, ribs broken, and disordered, and so remained for a long space of time, to wit, from thence hitherto, and became and were greatly reduced in value. And by reason of the neglect and delay of defendant in transporting said cattle as aforesaid, and the sickness and suffering occasioned by the delay, and by said cold and want of food, water, and care, as aforesaid, one of said cattle of and belonging to said Gustav Heller, surviving partner of said Mary Hubert and Gustav Heller, aforesaid, and of the value of $55, was found dead when said car arrived at Saginaw as aforesaid. Six other cattle were badly bruised all over, jammed, gored, and their ribs broken, and damaged to the extent of $180. Thirteen others were jammed, bruised, gored, and lacerated, and in a weak, damaged, and dying condition, and damaged to the extent of $135.”
    The fact is established beyond controversy that it is customary for shippers of live stock to send a man with the train to look after their cattle, to keep them upon their feet, and to attend to watering and feeding them. No neglect is shown in the management of the train, unless it is to be inferred from the fact of the injury to the animals. There was no collision, and those in charge of the train testified that it was run in the usual manner, and without accident, from Chicago to Mint.

      L. C. Stanley (E. W. Meddaugh and Geer & Williams, of counsel), for appellant.

      Ferdinand Brucker and Chauncey H. Gage, for appellee.
   Grant, J.

(after stating the facts). It is of importance to state what grounds of negligence are set forth in the declaration. They are as follows:

1. Delay in transit.

2. Failure to feed, water, and properly care for them.

3. In keeping them in the car from 7 o’clock on March 14th until 10 o’clock on March 16th, without food, water, care, or opportunity to lie down, and without adequate protection from the cold.

4. Placing them in the car in a cramped and uncomfortable position.

The declaration, in summing up the cause of the injury, states that it was “occasioned by the delay, and by said cold, and want of food, water, care, and room.”

Upon these allegations, or some of them, must rest the plaintiff’s right of recovery.

We will first note those which must be eliminated:

(а) Plaintiff suffered nothing by delay, and did not upon the trial, and does not now, ask recovery upon that basis.

(б) The cattle were not kept in the car, as charged, but were removed and fed and watered within the time required by the interstate commerce law of the United States. Rev. Stat. U. S. § 4386. They were properly watered and fed. Those in charge of the cattle at Bancroft so testified. There is no evidence to the contrary, and nothing to impeach the witnesses.

(c) He cannot recover for want of room. If the car was overloaded, .this was his own fault. Plaintiff conceded this, and claimed that the car was not overloaded. The court properly instructed the jury that, if overloading was the cause of the injury, plaintiff could not recover.

(d) Defendant was not responsible for any injury from the cold weather, nor was there any evidence that the cattle suffered from the cold.

There is, therefore, left only the question whether the defendant performed its duty in properly caring for the animals, for want of care is the only basis upon which a recovery can be had. It is not alleged or claimed that there was negligence in the management of the train. This brings us to the important questions: What risk did plaintiff assume? And what duty did defendant owe to plaintiff in the care of the property committed to it for transportation? The court instructed the jury that the defendant was not liable as a common carrier. Such has been the rule in this State for the last 25 years. Michigan Southern, etc., R. Co. v. McDonough, 21 Mich. 165. The able opinion in that case was written by the late Mr. Justice Chkistiancy, and is exhaustive in both its reasoning and the authorities cited. While it is usually sufficient to refer to the authority, yet the reason there given is so cogent and forcible in its application to this case that I am constrained to quote parts of it:

“Animals have wants of their own to be supplied; and this is a mode of conveyance at which, from their nature and habits, most animals instinctively revolt; and cattle especially, crowded in a dense mass, frightened by the noise of the engine, the rattling, jolting, and frequent concussions of the cars, in their frenzy, injure each other by trampling, plunging, goring, or throwing down; and frequently, on long routes, their strength exhausted by hunger and thirst, fatigue, and fright, the weak easily fall and are trampled upon, and, unless helped up, must soon die. Hogs, also, swelter and perish. It is a mode of transportation which, but for its necessity, would be gross cruelty, and indictable as such. The risk may be greatly lessened by care and vigilance, by feeding and watering at proper intervals, by getting up those that are down, and otheiwise. But this imposes a degree of care and an amount of labor so different from what is required in reference to other kinds of property that I do not think this kind of property falls within the reasons upon which the common-law liability of common carriers was fixed.”

The court further, in discussing what these carriers would naturally do if they were common carriers, or held themselves out as such, said that—

“They [the carriers] must employ a corps of men skilled in the care and management of stock, a business quite foreign in its character from that of operating a railroad, and they must make many other provisions to guard against injury and risk which are not required for other property generally transported by railroads.
“Now, we must shut our eyes to what is notorious to all business men, or we must take judicial notice, as I think we are bound to do, that this is not the mode, and such are not the principles, upon which this great and rapidly increasing business of transporting live stock to an Eastern market is generally, if at all, done upon the railroads of this State (if, in fact, in any other of the Western States).
“I think we are also bound to know that, if this business were done in this mode and upon these principles, and could be done in no other way, and the railroads were to be held responsible as insurers for all damages not caused by the act of God or the public enemies (which is strictly the common-law liability), or by the viciousness of some particular animal or animals in the mass, which would be a ludicrous distinction applied to a car load of cattle, or for all such as might be prevented by human agency, the railroad companies, to indemnify themselves against such risks and the extraordinary expenses of this mode of doing the business, must, of course, demand a much higher freight; and, if they can be compelled to carry at all in this way, they must provide themselves with all the conveniences I have mentioned^ and keep on hand a special corps of - experienced stockmen; and, being compelled to keep them, and having gone to the expense of the necessary conveniences, it would then be for their interest to charge the higher freight in all cases, and refuse to carry upon any other terms. And, in this manner, those who would prefer to take the care and risk upon themselves for a lower freight would be deprived of the opportunity.
“The law of common carriers is founded mainly upon considerations of public policy, and these considerations, therefore, should not be overlooked. On the other hand, if the drover, with a sufficient force of his own men, experienced in the proper management of the cattle, goes upon the same train free of charge, in a drover’s car, provided for that purpose, and has the entire charge, care, and management of the cattle, and the responsibility for care and injury incident to that mode of transportation, the company only furnishing the proper cars and motive power, and being responsible only for their sufficiency, and the proper mode, of making up and running the train, it is manifest there will be much less liability to injury or loss, and that the companies can afford to carry the cattle at greatly reduced rates. This, undoubtedly, is the mode, substantially, in which this branch of business is carried on generally upon the railroads of this State, and probably other Western States, so far as relates to the transportation of cattle to an Eastern market,—sometimes by special contract, setting forth the terms, as in a bill of lading, receipt, or ticket, and sometimes only by the uniform course of business as adopted by the company, and acted upon by their employers.”

Plaintiff assumed all the ordinary risks of transportation, and all injury which resulted from the cramped and crowded condition of the cattle, from their restiveness, viciousness, exhaustion, hunger, and thirst during their transportation, and also from the jars and concussions incident to starting and stopping the train.

The defendant owed the duty to transport the car and its contents with ordinary prudence, skill, and care, and with reasonable dispatch. It was understood, and was a part of the contract, that the car was to be transported within the usual time of from 24 to 32 hours, and that the defendant was under no obligation to unload, water, and feed the cattle if transported within that time. Upon ascertaining that plaintiff had no one in charge of the cattle, it would undoubtedly have been the duty of the defendant to unload and water and feed them when, from any cause, it was unable to, transport and deliver them within the usual time. The defendant, upon ascertaining the condition of the cattle (whether because the conductor found that he could not deliver them within the usual time, or not, is immaterial), unloaded and took care of the cattle in a proper manner. In doing this it performed its entire duty towards the plaintiff.

The court instructed the jury that the custom of the shipper to send a care taker was universal, that it was established beyond controversy, that it applied to this case, that it became a part of the contract, and that plaintiff was bound by it. The court failed to instruct the jury as to the effect of this custom. The plaintiff assumed all those risks and injuries resulting from his failure to comply with this custom to send a care taker. One of the principal reasons why some one should be employed to keep constant watch of animals, while in “these cars, is that it is dangerous for one to lie down. It is therefore necessary that all be kept standing, and, if one gets down, that he should be gotten up as soon as possible. The danger from one lying down is apparent. He is apt to be trampled upon, his flesh bruised and bones broken, and .he is also a constant menace to those that are standing. The plaintiff not only did not send such a care taker, but he did not request the defendant to assume such care, did not notify it that he was sending no care taker, nor request its agents in charge of the train to exercise any supervision or care over them. He therefore assumed all the risks from the failure upon his part to comply with the custom. 'This custom was recognized by this court as early as 1867. McMillan v. Railroad Co., 16 Mich. 109. The conductor and brakemen of this train had other constant and important duties to perform in its management. To impose upon them the additional duty of looking after 24 cars of live stock, and to see that the animals were kept in proper condition and position, would be unreasonable, and not a duty assumed by .this defendant. The rates of transportation are fixed with a view to the universal custom that the shipper must perform this duty, if he desires it to be performed, or make a special contract with the carrier to do so. Kimball v. Railroad Co., 26 Vt. 258. Now, it is evident that such a care taker could have watched these cattle, and prevented this injury, whether they were overloaded or not. For this neglect the plaintiff alone is responsible, and it bars his recovery. In German v. Railroad Co., 38 Iowa, 127, the defendant was held liable because it shipped some of the plaintiff’s cars without notice to him, and thus prevented him from accompanying them as he intended. The defendant was properly held liable for not taking the care which the owner would have taken, had he not been prevented from accompanying the train.

It is insisted by the defendant that this car was overloaded, that this caused the injury, and that such overloading was negligenceper se. As already shown, the plaintiff alone was responsible for the manner of loading. Nine witnesses, experienced in the transportation of cattle, testified that the car was overloaded. The plaintiff, his agent who shipped them, and two other witnesses gave their opinions that the car was not overloaded. The plaintiff admitted that it would have been impossible to get another animal into the car. One of plaintiff’s witnesses had had experience from 1871 to 1876, in the summer time, in shipping and driving cattle in the Indian Territory. His impression was that the cars which were then used were 33 feet long, but he said he might be mistaken. He would not say that even 27 cattle were too many to put in such a car. He also testified that it would be dangerous to ship cattle without some one in charge of them. The conductor, upon investigation, determined that the car was too small, and put his company to the expense of sending a larger one with which to complete the journey. Aside from the opinions of the witnesses, the fact is that, when these cattle were placed in the customary manner, crosswise of the car, each one had only 16 1-2 inches in which to stand, and that, whether standing crosswise or in any other manner, each animal had but 11 square feet of room. It requires the opinion of no witness to inform us that each animal was more than 16-¿- inches in thickness, and that they could not stand in this crowded condition without their ribs being compressed withjn a space less than their natural limits. Animals so situated are completely helpless, and the weaker ones must soon become exhausted, and fall down. One had died, and the two others which were down lay apparently lifeless, before they had been in transit 24 hours.. Speaking for myself, I do not hesitate to say that such loading was negligence per se, and, under the laws of this State, would be indictable as cruelty to animals. Inasmuch, however, as the determination of this question is not essential, and some of my brethren are of the opinion that there was a conflict of evidence, which was proper for the determination of the jury, we do not pass upon it. Under the case made by the evidence, the court should, as requested, have directed a verdict for the defendant.

It is contended that it was negligence for the defendant to place the body of the dead steer in the car at Bancroft, and that injury resulted from this act. It is evident that most of the injury was done before the original car reached Bancroft, and, as already stated, .the plaintiff was responsible for this. It is impossible to determine what, if any, injury was caused after the car left Bancroft. If this act was negligence, it was clearly the duty of the plaintiff to show what injury, if any, resulted therefrom. He could not, in any event, recover for an injury, part of which was caused by his own neglect, without showing that which, resulted from defendant’s subsequent negligence. No such act of negligence is alleged, and quaere whether he can recover without alleging it. Plaintiff knew the position of this dead animal in the car when delivered, and, knowing it, there is much force in the position that he should have alleged it.

In the event of a new trial, it is proper to note some other errors that were committed, upon the basis that a case may be made which should be left to the jury. The court failed to instruct the jury, as it should have done, what acts charged in the declaration should be eliminated from their consideration. The court left it to-the jury ■upon the general statement that the defendant was liable ‘ ‘ if it did not give that care to the cattle which it should have given, and did not handle them with that degree of care to convey them safely and without injury.” Where a declaration contains several grounds of negligence, it is the duty of the court to instruct the jury as to those upon which, alone, recovery can be based, and to eliminate the ■others. The court should, as requested, have instructed the jury that the defendant did not undertake to render the additional service of watching and starting the cattle up, so as to prevent any sinking down and getting under the feet of the others, or prevent their unduly crowding and injuring one another; that .plaintiff assumed any damage or loss that might be occasioned by want of an attendant, and also all that resulted from the nature, restiveness, and viciousness of the animals.

The judgment must be reversed, and a new trial ordered.

Long, C. J., Hooker and Moore, JJ., concurred with Grant, J. Montgomery, J., concurred in the result.