author: Moore, J.

text:
    PEASE v. JENNINGS.
    1. Evidence — Privileged Communications — Statutory Statements as to Assessable Property.
    Under the provisions of 1 Comp. Laws, § 3846 (1 How. Stat. [2d Ed.] §1791), making the sworn statement of a taxpayer received by supervisor or assessor, relative to assessable property privileged, and forbidding the use thereof for any other purpose, it was not erroneous on the trial of an action for converting assets of an estate to receive evidence of statements made orally by decedent to the supervisor as to his personal property subject to assessment; no written statement having been made by the taxpayer.
    2. Witnesses — Matters Equally Within Knowledse oe Decedent — Executors and Administrators.
    The testimony of children of a deceased son who, under the will, took their father’s part of the property of the estate bequeathed, were not opposite parties whose testimony was excluded by 3 Comp. Daws, §10212 (5 How. Stat. [2d Ed.] §12856), relating to matters equally within the knowledge of decedent.
    3. Evidence — Hearsay—Statements oe Decedent.
    On the issue whether defendant received certificates of deposit of decedent as a gift, statements of the testator showing a hostile feeling toward defendant, were not improperly admitted to show the relations between them and a state of feeling inconsistent with the claimed gift.
    Error to Hillsdale; Chester, J.
    Submitted October 7, 1913.
    (Docket No. 5.)
    Decided March 27, 1914.
    Rehearing denied December 19, 1914.
    Assumpsit by Albert A. Pease, as administrator of the estate of Charles Jennings, deceased, against Abner Jennings for the conversion of certain certificates of deposit. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      A. L. Guernsey and Fellows & Chandler, for appellant.

      Frankhauser & Cornell, for appellee.
   Moore, J.

The plaintiff sued the defendant for the conversion of two certificates of deposit, one for the sum of $1,000 and one for the sum of $50. The case was tried before a jury. From a judgment in favor of the plaintiff, the case is brought here by writ of error.

The family of Charles Jennings, Sr., consisted of himself and wife, his daughter Ella, and two sons Charles, Jr., and Abner. In 1875 Abner bought a farm of 40 acres near his father. The father and two sons worked both farms, and from the proceeds the 40 acres was paid for; the final payment being made about the year 1882. From then on the defendant worked his farm. Charles, Sr., and Charles, Jr., worked the home farm, which was the home of both of them. In 1888 Charles, Sr., made a will giving to Ella $600, Abner $100, and to Charles, Jr., his personal property and the home farm, subject to the life use of the widow, Rhoda Jennings. Between the time of making the will in 1888 and his death, Charles, Sr., accumulated upwards of $1,000 which he put in the bank, receiving therefor certificates of deposit payable to Charles Jennings, Sr. Charles Jennings, Jr., died in February, 1910, leaving a widow, Carrie Jennings, and four daughters.

In the spring of 1910, but after the death of Charles, Jr., Charles, Sr., went alone, using the horse and buggy of Abner, to the residence of John Mercer, and had him draw a will giving the west 18 acres of the home farm to Abner. He executed this will and left it with Mr. Mercer. On the 7th of June following he wrote Mr. Mercer and requested a return of both wills. Later the will of 1888 was delivered for safe-keeping to a Mr. Whitaker. Charles, Sr., died in April, 1911. The will of 1888 has been probated. After the death of Charles, Sr., the defendant presented to the bank issuing them the certificates of deposit in controversy here, and claiming to be the owner of them, had new certificates made, first to himself and wife, and later to himself alone. As before stated, this suit was brought for their conversion.

The first group of assignments of error relate to the admission of testimony. It is said the court erred in allowing Supervisor North to testify as to what defendant told him in the spring of 1911 about his personal property. The witness stated he was a supervisor; that he did not ask Mr. Jennings to fill out and sign a blank statement; that he did not require him to, but made it out himself.

“Q. When was it that you were there at his house to take this assessment?
“A. Now, I can’t tell the exact day, but it was in the first of May, from the 4th to the 8th, anyway.
“Q. Now, I ask you to tell what conversation and talk you had with him there, what questions you asked him, and what were his answers, as near as you can remember, as to his owning any personal property?
“Mr. Fellows: That we object to because it is privileged.
“The Court: Well, you may take the answer, and I will control it later.
“Mr. Fellows: Exception.
“A. Well, I asked him the usual question. Now, on the farms in the townships, we ask them in regard to their horses and cattle, and such things as is around on the farm, and then it’s on the statement, ‘Have you any bank stocks, mortgages, notes, credits?’ and so on. I read that over to the person I am assessing, and I did that to him. He replied to these questions that he had nothing only the personal property on the farm, the horses and cows. He told me about the team and the cows, and I assessed them at $300; $200 of this was exempt, and I put him on the roll in personal at $100. All I assessed was the stock and stuff on the farm, and he gave in no money or credits.
“Mr. Fellows: Your assessment is of the 1st of April; that is what property he had the 1st of April?
“A. Yes.”

It is insisted this is error, citing section 3846, 1 Comp. Laws (1 How. Stat. [2d Ed.] §1791), and Williams v. Brown, 137 Mich. 569 (100 N. W. 786).• Section 3842 requires:

“Every owner of property liable to taxation * * * shall make out and deliver to the supervisor or assessor on demand, a sworn statement of all the property owned or held by him.”

Section 3846 provides what shall be done with “all the statements herein required to be made and received by the supervisor or assessor,” and has this provision:

“But no such statement shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act.”

The case of Williams v. Brown, supra, construed that provision. In that case the tax statement required by law was, in fact, made by the taxpayer. The taxpayer was a witness, the tax statement was put in his hands, and he was cross-examined about it. In the instant case no such statement was made by the taxpayer. The witness was not the taxpayer, and we think the cases are distinguishable, and that the provision of the statute quoted does not apply.

The next group of assignments of error relates to the admission of testimony. We quote from the brief:

“Under the will of the decedent, his farm and personal property were given to his son, Charles, Jr. (the father of witnesses Lulu Hudnut, Lena Giddings, and Lila Jennings, and the husband of the witness Carrie Jennings), and to his heirs forever. It was urged by the plaintiff in the court below that, under the statute designed to prevent the lapsing of legacies (section 9288, 3 Comp. Laws), this property went to the issue of Charles, Jr. This, however, only becomes important in considering the testimony of Carrie Jennings, as it is conceded and insisted by the plaintiff that the children of Charles, Jr., take the property which is involved in this case, provided there is a recovery here. * * * If the plaintiff is correct, and this money is recovered, it will be paid into the hands of plaintiff as administrator, and will go to the four daughters of Charles under this will. Such being the case, we * * * urge upon this court that the case of Peirson v. McNeal, 137 Mich. 158 (100 N. W. 458), is upon all fours with the case at bar.”

Counsel also cite section 10212, 3 Comp. Laws. Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143) ; O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511); and Shepard v. Shepard, 164 Mich. 183 (129 N. W. 201).

It was not insisted very strongly in the oral argument, nor is it in the brief, that Carrie Jennings, the widow of Charles, Jr., is incompetent, and we will concern ourselves only with the claim that the testimony of the children of Charles, Jr., was incompetent.

Section 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856), reads as follows:

“When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person. * * * Provided, that whenever the words, ‘the opposite party’ occur in this section it shall be deemed to include the assignors or assignees of the claim or any part thereof in controversy.”

Counsel for appellee contend (we quote sufficiently from the brief to indicate the argument):

“We have always supposed, and do now, that it was the purpose of this statute to protect estates; to keep them from being depleted by those who pretend to have had dealings with deceased which had not been closed up before his death. * * * To state it in other words: We have always understood this to be a statute which was designed to put the living and the dead upon the same legal footing; death having closed the mouth of one, precluding him from giving his version of a controversy, the law benignly and justly closes the mouth of the other, so no advantage can accrue to him by the misfortune of the decease of the first. We have always understood that this statute closes the mouth of the one who is endeavoring to get something out of a dead man’s estate; to lessen it; to deplete it. We supposed that it applied to one who had a claim against an estate which we were seeking to establish as a debt against the estate, and thereby take from the property of the man who was dead and could not appear to meet his antagonist face to face. * * * The view we take of this situation is that the estate of Charles Jennings, Sr., is one party, and that the defendant here, Abner D. Jennings, is the other party; or it might, without any fear of confusion, be stated that the defendant here is arrayed against the estate and is the 'opposite party’ to the estate and to the deceased. * * *
“These heirs whose testimony is claimed to be incompetent, under this statute, are giving evidence in favor of the estate, and are not 'opposite parties’ to the estate. Their testimony is not incompetent as to matters equally within the knowledge of the deceased; for they are not seeking to deplete the estate, take something from it, to lessen it, but their testimony tends to preserve it, and keep it from being depleted. The incidental fact, if it be a fact, that, if the plaintiff •is successful here, they may or may not benefit from the judgment does not make them 'opposite parties’ within the meaning of the statute.”

We think it is within the principles stated in Pendill v. Neuberger, 64 Mich. 220 (31 N. W. 177); Hillman v. Schwenck, 68 Mich. 293 (36 N. W. 77); Latourette v. McKeon, 104 Mich. 156 (62 N. W. 153) ; and Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4) ; and that the court did not err in its ruling.

" The next assignment of error relates to the testimony of D. H. Carney who said (we quote from the brief):

“He [decedent] seemed to be rather bitter towards Abner in that respect. To use his conversation, he says: ‘We sent Ab $75 when he was West, and,’ he says, ‘by God, he has never paid it back, and I haven’t forgot it.’ He says ‘He has got all he will ever get’— is the conversation that he used.”
“This testimony was in the absence of the defendant, and was as to him pure hearsay. It is self-serving in character, and inadmissible. * * * ” Counsel citing Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671), and several other cases.

In allowing this testimony to come in, the court limited its use to showing the relations of the parties. There are many authorities sustaining the view presented by appellant, but it must be remembered that he is claiming these certificates were given to him. It is the common experience that gifts are ordinarily made only to those for whom the donor has a greater or less regard.

In Whitney v. Wheeler, 116 Mass. 490, it is said:'

“Gifts mortis cama, like testamentary gifts, express the state of mind and disposition of the donor towards the donee, and his purpose in regard to the bestowal of his estate. When there is any ground for doubt as to the intent with which a delivery of property was made,'or whether in fact its possession was obtained by delivery as a voluntary gift or in some other mode, evidence tending to show a continuous and apparently fixed state of mind and purpose, inconsistent with such alleged gift, existing previously thereto, may have a legitimate bearing upon the case to affect the inferences to be drawn from the facts and circumstances attending the transaction.”

In Whitwell v. Winslow, 132 Mass. 307, it is said:

“On the issue whether the gift of a promissory note was made, statements of the alleged donor, who died before the trial of an action on the note, at different times before and after the alleged gift and inconsistent therewith, are admissible to contradict the testimony of the donee, although not made in the donee’s presence.”

In Thornton on Gifts, § 222, it is said:

“So prior declarations of the donor in his favor are admissible if they tend to show a continuous and apparently fixed state of mind and purpose in him, inconsistent with the alleged gift to contradict the testimony of the donee.” Citing Sherman v. Sherman, 75 Iowa, 136 (39 N. W. 232), which case supports the text.

We think the situation disclosed by the record distinguishes the instant case from those cited by appellant. This brings us to the question of whether there should have been a directed verdict.

The judge charged, in part, as follows:

“The sole question for you to determine from all the evidence in this case is whether or not these certificates were the property of Charles Jennings, Sr., at the time of his death, or whether they were the property of Abner Jennings at the time Charles Jennings, Sr., died.
“And in this case, gentlemen, you are not to determine the question of whether Charles Jennings, Sr., was mentally competent or not, or the question of undue influence; for, under the evidence in this case, you are instructed that the evidence does not show mental incompetency or undue influence.
“Now, regarding the possession of these certificates by the defendant, if you find from the evidence that these certificates were indorsed by Charles Jennings, Sr., then the possession of these certificates by Abner Jennings is prima facie evidence of title in him (Abner), and creates the presumption that they were delivered to him, and that his possession is lawful; delivered to him in the lifetime of Charles Jennings, Sr. You are, however, to determine the question of whether or not his possession is lawful from all the evidence in the case, and find whether or not this presumption and this prima facie evidence is met and overcome by the testimony in the case bearing on the question of whether or not these certificates were given by Charles Jennings, Sr., to the defendant before the death of Charles Jennings, Sr., on April 18, 1911.
“The burden of proof, gentlemen, is upon the plaintiff in this case; that is, the burden of proving that these certificates were the property of Charles Jennings, Sr., at the time of his death is upon the plaintiff. It is his duty to prove this fact by a preponderance of the testimony; that is, there must be more evidence in favor of this claim that he asserts than "there is against it. This does not necessarily mean numbers of witnesses, but it means that testimony which carries conviction to your judgment.”

In view of the fact that decedent left a will giving to Charles, Jr., his personal property, the testimony of the supervisor which we have already quoted, what occurred on the visit of the judge of probate in the presence of the defendant, we do not think the trial judge would have been justified in directing a verdict.

The judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    T. W. SNOOK & SON v. MT. CLEMENS SUGAR CO.
    1. Sales — Acceptance and Receipt — Delivery—Inspection.
    Where plaintiff copartnership claimed that it offered to deliver a lot of barrels which had been ordered by defendant, and received instructions from defendant to store them, and that after having done so and some time later, defendant’s general manager looked over the barrels and indicated his approval or acceptance, an inadvertence of the court in charging the jury and assuming that he accepted the barrels before they were stored was not so prejudicial and erroneous as to require plaintiff’s judgment to be reversed.

      2. Same — Waiver of Inspection — Contracts.
    Evidence that the general manager was able to select good barrels when he saw them, that he saw them at plaintiff’s factory and made no objection, that they were sufficient to comply with the order and that a letter was sent to ' and received by plaintiffs advising them when defendant would be ready to receive the merchandise ordered, raised an issue of fact as to defendant’s waiver of the right to inspect, the testimony tending to show a long delay in completing the contract on defendant’s part.
    Error to Macomb; Tucker, J.
    Submitted October 10, 1918.
    (Docket No. 18.)
    Decided April 7, 1914.
    Rehearing denied December 19, 1914.
    Assumpsit by Thomas W. Snook & Son, a copartnership consisting of John R. Snook, the estate of Thomas W. Snook and others, against the Mt. Clemens Sugar Company for breach of a contract of sale. Judgment for plaintiffs and defendant brings error.
    Affirmed.

      Thomas A. E, Weadock, for appellant.

      Martin Crocker, for appellees.
   McAlvay, C. J.

This is an action of assumpsit brought by plaintiffs against defendant for the price and value of certain sugar barrels manufactured by plaintiffs for defendant, wherein plaintiffs recovered judgment.

Plaintiffs were engaged in manufacturing barrels at Mt. Clemens, and in 1905 defendant company, of the same place, requiring a large number of sugar barrels for the campaign of 1905-1906, asked plaintiffs for quotations on barrels, and by letters which passed between the parties a contract was entered into, as follows:

“Office of T. W. Snook & Son. Manufacturers of Staves and Heading.
“Mt. Clemens, Mich., June 24, 1905. “Mt. Clemens' Sugar Co.,
“Mt. Clemens, Mich.
“Gentlemen:
“Complying with your request for quotations on barrels, will say we will agree to furnish you during the coming campaign with 20,000 sugar barrels delivered at your factory at 44%c each. These barrels shall be standard sugar barrels made from thoroughly dry No. 1 30" elm staves, No. 1 19 %" basswood heading and hooped with four wooden and two steel hoops.
“Yours truly,
“T. W. Snook & Son.”
“Agricultural Department Mt. Clemens Sugar Company.
“Mt. Clemens, Mich., July 17, 1905. “Messrs. T. W. Snook & Son,
“Mt. Clemens, Mich.
“Gentlemen:
“Replying to your favor of June 24th quoting price of 44%c each on standard sugar barrels delivered at our factory during the coming campaign, barrels to be made from thoroughly kiln dried No. 1, thirty inch elm staves and No. 1, 19% inch basswood heading, hooped with four wooden and two steel hoops, barrels to be first class and acceptable to us. We herewith accept price quoted by you for between 15,000 and 20.000 sugar barrels and should we require more than this number you agree to furnish same at the same price. Confirming talk with our Mr. Weise we will advise you October 1st how many barrels, if any, over 15.000 will be required. Please favor us with an early reply confirming same.
“Yours very truly,
“Mt. Clemens Sugar Company,
“Geo. Elsey, Jr., Treasurer.”
“Mt. Clemens, Mich., July 18, 1905. “Mt. Clemens Sugar Co.,
“Mt. Clemens, Mich.
“Gentlemen:
“Replying to yours of 17th. We will make and deliver to your factory 15,000 to 20,000 standard sugar barrels in accordance with our letter of June 24, at 44%c each or we will make the number more than 20.000 if you require them, providing you advise us by Oct. 1st, how many more than the 15,000 you will require.
“These barrels shall be made of first class thoroughly dry material and are to be inspected and accepted by you on delivery at your factory. The above price per barrel shall not cover any nails or staples for fastening hoops in place nor shall it include head liners. Neither will we furnish hoops nor heads to take the place of those broken by your men, except we charge you the market price for same.
“Yours truly,
“T. W. Snook & Son.”

Plaintiffs entered upon the manufacture and delivery of these barrels as they were requested or needed during the months of October, November, and December, 1905, having delivered during that time 18,087 standard sugar barrels, which were received, inspected, and accepted at defendant’s factory. About January 1,1906, the balance of the barrels plaintiffs had manufactured under this contract not having been called for, one of the plaintiffs went to defendant’s factory and informed the superintendent, Mr. Weise, that the balance of the barrels were ready for delivery, and requested him to take them. The superintendent said that he had no room for them because the warehouse was full of sugar, but he would take them in as soon as he could get room, and requested plaintiffs to store them. Plaintiffs then stored the barrels in the upper part of their cooper shop, as requested.

There is no dispute in the facts in this case as far as stated. Defendant does challenge and dispute the authority of Superintendent Weise to give any instructions to plaintiffs relative to storing the barrels, and the parties do not agree as to what occurred between them when defendant’s general manager, Elsey, went to plaintiffs’ factory to examine the barrels in question.

The manufacture of beet sugar requires the operation of a factory less than one-third of the year, which season is called a campaign. It is begun in the autumn after the beet crop is harvested and freighted to the factory, and continues until December or January following.

On September 8th, before the campaign of 1906 began, plaintiffs wrote to defendant the following letter:

“Mt. Clemens, Mich., Sept. 8,1906. “Mt. Clemens Sugar Co.,
“Mt. Clemens, Mich.
“Gentlemen:
“How soon will you receive the barrels made for you last season?
“Yours truly,
“T. W. Snook & Son.”

Defendant answered as follows:

“Mt. Clemens, Mich., Sept. 10th, 1906. “Messrs. T. W. Snook & Son,
“Mt. Clemens, Mich.
“Gentlemen:
“Replying to your favor of the 8th instant, inquiring how soon we will be able to receive the barrels made last season. Captain Davidson is here today; we have had this matter up with the captain and he instructs us to write you that we will be ready to commence receiving the barrels October 1st, when you may deliver 1,000, and the balance, about 900 more, a little later. It is understood, of course, the price is to be the same as last year, 44 %c delivered.
“Yours very truly,
“Mt. Clemens Sugar Company,
“Geo. Elsey, Jr., General Manager.”

To which plaintiff replied:

“Mt. Clemens, Mich., Sept. 11,1906. “Mt. Clemens Sugar Co.,
“Mt. Clemens, Mich.
“Gentlemen:
“Your favor of the 10th is at hand and contents noted. We stand ready at any time to deliver the barrels and have been anxious all along to do so, as you were notified.
“Will deliver them at the contract price, viz.: 44%c but shall, of course, expect you to pay interest, storage, and insurance, while we have been carrying them for you.
“Yours very truly,
“T. W. Snook & Son.”

After the letter of September 8th was written by plaintiffs, and before the defendant answered it, defendant’s general manager, Elsey, went to plaintiffs’ factory where these barrels were stored, examined them, and was satisfied with such examination. Defendant never replied to the last letter from plaintiffs dated September 11, 1906. No portion of the barrels in suit was ever delivered. Some time before suit was commenced plaintiffs requested defendant to take the barrels. Plaintiffs claim they are entitled to the contract price of 1,900 barrels, with interest, and also for storage of the same after January, 1906.

At the close of plaintiffs’ case, and at the close of all the testimony, counsel for defendant asked for an instructed verdict, which was denied and exceptions were taken. The case was submitted to the jury, and a verdict was rendered in favor of plaintiffs. Defendant thereupon made a motion for a new trial for the reasons that the court erred in not directing a verdict, in not giving defendant’s requests, and because the verdict was contrary to the evidence. This motion was denied. Later a judgment was in due course entered upon the verdict. This court is asked to reverse the judgment upon errors assigned; upon exceptions taken during the course of the trial; upon the denial of the motions referred to; upon the refusal to grant a new trial; the refusal to give defendant’s requests; and to certain portions of the charge as given.

Appellant’s second and fourteenth assignments of error are combined and presented together, and with them is also considered assignment 13. These are the most important questions presented in the case.

Defendant’s second assignment of error is based upon the admission by the court of testimony of one of the plaintiffs relative to statements made by defendant’s general manager, Elsey, when, in September, 1906, he came to plaintiffs’ barrel factory to examine these barrels, which had been made under the contract with defendant and stored at that place since January, 1906, which was claimed by plaintiffs amounted to an acceptance of the barrels and waiver of inspection by defendant.

Appellant, in discussing these two assignments of error, combines with them the portion of the charge of the court which is covered by the thirteenth assignment of error as follows:

“Now, gentlemen of the jury, if you are satisfied by a fair preponderance of the evidence that these 1,913 barrels were ready for delivery by the plaintiffs in December, 1905, or January, 1906, that they were such barrels as plaintiffs were required by their contract to manufacture and furnish for the defendant, that they were looked over by a representative of the defendant authorized to represent the defendant,'and that the defendant company then and there agreed to take the barrels and requested the plaintiffs to keep the barrels for the defendant until the following season opened up, then if, as I say, you find these things by a fair preponderance of the evidence, then the barrels on hand at that time (December, 1905) became the barrels of the defendant company, and should have been paid for by them; and, under these circumstances, if these barrels were kept by the plaintiffs in their storeroom at the request of defendant, then the defendant would be liable to the plaintiffs for a reasonable sum for the storage of the barrels from the time that request was made until such time as they desired their delivery, and unless you are satisfied by a fair preponderance of the evidence that the defendant company by its duly authorized agent looked over the barrels and agreed to take them, and requested the plaintiffs to keep the barrels for them, your verdict must be for the defendant.”

The record shows that after the court had given this portion of the charge included in the thirteenth assignment of error, counsel for defendant, at the close of the charge, called attention to it, by saying:

_ “Mr. Weadock: I want to call your honor’s attention to the fact that you spoke of a representative of the company looking over the barrels, and it would seem that that would take the place of inspection. That was Mr. Elsey, and he looked at the barrels and made the remark that they seemed to have kept well, and that was in no sense an inspection, and could not be considered an inspection as a matter of law.”

In reply the court gave the portion of the charge covered by the fourteenth assignment of error, as follows:

“The Court: It is my view of the law that while the contract gave the parties the right of inspection at the factory, as I understand it, and required delivery at the factory, these matters are matters that could be waived, and unless you find they were so waived in the manner I have suggested, the defendant [will] be entitled to your verdict.”

Counsel for defendant at once, in the presence of the jury, excepted orally to certain portions of the charge, and, to the portion last above quoted, said:

“Defendant * * * excepts to the charge with reference to the barrels having been looked over or accepted by a representative of the company at the place where they were.”

It is the contention of appellant that the court confused the testimony of witnesses Snook, Weise, and Elsey in his charge, thereby incorrectly presenting the evidence to the jury. In the first paragraph of that portion of the charge above quoted, under the thirteenth assignment of error, it will be noticed that the court said to the jury:

“If you are satisfied * * * that they were such barrels as plaintiffs were required by their contract to manufacture and furnish for the defendant, that they were looked over by a representative of the defendant authorized to represent the defendant, and that the defendant company then and there agreed to take the barrels, and requested the plaintiffs to keep the barrels for the defendant until the following season opened up, then if, as I say, you find these things by a fair preponderance of the evidence, then the barrels on hand at that time [December, 1905] became the barrels of the defendant company. * * * ”

The testimony in the case upon which this portion of the charge is based was given by plaintiff Snook, who testified that Superintendent Weise, about January 1, 1906, when the barrels were ready for delivery and were offered to him at. the sugar factory by witness, told him there was no room for them, and to store them, which plaintiffs -did. The superintendent’s • testimony upon the matter, which was introduced, corroborated Snook. -Eight months later, between September 8 and 10, 1906, it is undisputed that General Manager Elsey examined these barrels in plaintiffs’ barrel factory, and at that time the statements were made by him which were urged by plaintiffs on the trial as an examination and acceptance of the barrels. It is evident that the court inadvertently confused the order of events, for there is no claim that the superintendent looked over, saw, or examined the barrels at the time he told plaintiffs to store them, nor is there any claim that the manager, Elsey, saw these barrels before September, 1906. There can be no question but that the record shows that the balance of the barrels were offered at the factory to the superintendent, who could not receive them for want of space, and they were stored by plaintiffs at his request, and that General Manager Elsey, from his testimony, had knowledge of that fact, or that the record also shows that the general manager knew that these barrels had been made under the contract, and in 1906, after receiving plaintiffs’ letter of September - 8th, supra, demanding to know when defendant would receive these barrels, went to plaintiffs’ factory for the purpose of discovering whether- these barrels were satisfactory.

Counsel for defendant now contends that this inadvertence on the part of the court in his charge was misleading to the jury and prejudicial. From the statement of counsel to the court at the time relative to this portion of the charge, the court’s attention was not called to this proposition, but directed only to the matter of the acceptance of the barrels without inspection. This was answered by the court in the words of the charge last above given, which was immediately followed by an exception taken by counsel “to the charge with reference to the barrels having been looked over or accepted by a representative of the company at the place where they were.” All of the testimony relative to ordering the barrels stored by the superintendent, and the visit later in the year of the general manager to ascertain the condition of the barrels in storage, is so clear and brief that in our opinion the portion of the charge of the court in relation thereto which defendant criticises did not confuse the jury and was not prejudicial to the defendant.

It remains to be considered whether the record shows there was evidence in the case upon the question of the acceptance by defendant’s general manager of the barrels at plaintiffs’ factory, and a waiver of the inspection provided for in the contract. From what has already been said relative to this matter, from the fact that the general manager testified that he knew a good barrel when he saw it, from the testimony of Mr. Snook as to what occurred at that' interview, and testimony of expert witnesses as to the condition of the barrels, and the fact that General Manager Elsey immediately answered plaintiffs’ letter of September 8th by a letter of September 10th, saying defendant would be ready for the delivery of 1,000 barrels October 1st, and the balance later at the contract price, our conclusion is that the question was one of fact, and not of law, which was submitted by the court to the jury under proper instructions.

The remaining contentions of defendant relied upon do not require consideration. We find no prejudicial error in the case.

The judgment of the circuit court stands affirmed.

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


author: Brooke, J.

text:
    EICHKERN v. PARK BREWING CO.
    Negiigence — Highways—Driving in Pubiic Way- — Infants.
    Where the testimony, in a negligence case, tended.to show that the decedent, a minor of about 7 years of age, attempted to climb upon the side of a loaded wagon driven ■by a servant of the defendant, that the conveyance was going rapidly, but the driver did not see the child trying to climb on the wagon and stopped the team as soon as he saw the deceased fall, that the team was going down hill and there was no evidence that he observed the dangerous proximity of decedent, the trial court properly directed a verdict for defendant.
    Error to Houghton; O’Brien, J.
    Submitted April 30, 1914.
    (Docket No. 87.)
    Decided June 1, 1914.
    Case by John J. Eichkern, as administrator of the estate of Olavi R. Wilhonen, deceased, against the Park Brewing Company for the negligent killing of deceased. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Burritt & Burritt, for appellant.

      Rees, Robinson & Petermann, for appellee.
   Brooke, J.

The plaintiff in this case, as administrator of the estate of Olavi Wilhonen, seeks to recover damages from the defendant growing out of the death of plaintiff’s decedent, which it is alleged was caused by the negligence of the defendant.

Plaintiff’s decedent on the day of the accident was a lad seven years of age. He with two companions, one 10 and the other 9 years of age, were playing at the side of the highway known as the Quincy road leading into the city of Hancock. At the point where the accident occurred the highway is about 20 feet wide, and going into Hancock there is a very considerable grade, about 7% or 8 per cent. A servant of the defendant was driving his team hitched to a wagon filled with boxes down this hill, and when immediately opposite the point where the three children were playing, near an adjoining house, plaintiff’s decedent ran out and attempted to climb upon the side of the wagon. He lost his footing, and the hind wheel of the wagon passed over his body,

Solomon Maki, one of the lads who was playing with plaintiff’s decedent, after an examination by the court, was permitted to make his statement, although not sworn. He testified in part as follows:

“I was playing with Olavi and my little brother. Just we three playing together before he got hurt. We were playing, my brother and Olavi were playing cowboys and Indians. We were all playing inside the yard. We were playing in our yard. That is on the road where the teams go between our house and the road. I didn’t live in the schoolhouse then. I lived across the street. Right across from the old schoolhouse, and we had a yard on the side of our house. It was in that yard I was playing with Olavi and my brother. We were about as far as the length of this room from the street. I saw the team coming. It was coming fast, about as fast as a horse goes on the road. About the usual way they go, the way they always go. That was the way it was coming. When I saw the team coming Olavi ran out to catch a ride and fell under the wheels and got hurt. That was while he was trying to catch on the wagon. That was the way it happened. There was one step on the side on the wagon, and he was trying to get on that step when he fell, and just as soon as he fell and got hurt then the wagon stopped. The wagon stopped as soon as the teamster could stop the wagon, and he got off the wagon and he picked Olavi up and stood him up; then Olavi walked in front of the schoolhouse. That would be about as far as that railing. He walked that far, then he got to the steps, and when he was on the steps he fell down. * * * I told the men that Olavi tried to get a ride on the wagon. They asked me if I see the boy when he got run over. I said, Yes. Leo first spoke about his catching on to get a ride, Leo Ponka. He was trying to jump on the wagon. He didn’t jump up high, and the wheel went right over. I saw it there when he tried to jump, and he jumped too low and he slipped. It was the hind wheel, the front wheel didn’t touch him at all, only of the back wheels. The horses were going pretty fast. They were walking fast. At the time Olavi got hurt my brother John and Leo were there. My brother is dead.”

Leo Ponka, the other boy who was present, testified in part as follows:

“I saw Olavi get hurt.

“Q. How did it happen, how did Olavi come to get hurt?

“A. With the wagon. ■ -

“Q. How? How did it happen?

“A. He jumped on the wagon to hang on the side there.

“Q. Where?

“A. On the side of the. wagon.

“Q. And what did he do?

“A. He fell down, he fell down and hurt his knee right there.

“Q. What went over him; did anything run over him?

“A. Yes.

“Q. What?

“A. The horse and the wheel.

“Q. Which wheel was it?

“A. It was the back wheel.

“Q. The back wheel?

“A. Yes.

“Q. What was Olavi trying to do, or what was Olavi doing? What did Olavi do first?

“A. We were playing first.

‘fQ. Whereabouts?

“A. By our house.

“Q. How did Olavi come to go up near the wagon?

“A. He went hanging on the wagon.'

“Q. Hanging on the wagon?

“A. Yes.

“Q. Whereabouts did he hang on the wagon?

“A. On the side there.

e‘Q. How was the wagon going, fast or slow?

“A. It’ was going pretty fast.

“Q. How fast? Were the horses running or walking or trotting?

“A. Running.

“Q. What did the man do? Did you see the man on the wagon?

“A. Yes. When Olavi was lying down on the ground he took him up then and walked by our house on the porch; then he fell down again.

“Q. Was he playing by the side of the road, or did he go out there?

“A. He was playing in the middle of the road and side of the road.

“Q. Did you say he tried to jump into the wagon?

“A. Yes.

“Q. How did he do that?

“A. He jumped on the side and then, fell down, then he tried to get out, and the wheel went on his stomach.

“Q. Tell us again how it was, how did it happen?

“A. He went on the side of the wagon, then he fell down, like this, then the back wheel went right on his leg, when he tried to get out, you know. He tried to get out, and the horse went on his stomach.

“Mr. Rees: You mean the wheel not the horse?

“A. Yes.”

While it is apparent from this portion of. this lad’s testimony that he agrees with the testimony of the witness Maki, the latter portion of his testimony indicates that he was somewhat confused, and in some places he testifies flatly that plaintiff’s decedent was struck first by one of the horses. In other portions he reiterates that he ran to the side of the wagon and attempted to get on and fell under the wheel. These two boys were the only eyewitnesses of the tragedy, There is the evidence of one witness who saw the team going down the hill, but did not see the accident, to the effect that the horses were going fast, and. in her opinion too fast. Upon the conclusion of the plaintiff’s case, the judge directed a verdict for the defendant in the following language:

“It is claimed upon the part of the defendant that there is no evidence in the case from which ajury can infer any negligence on the part of the driver, and also that the child was guilty of contributory negligence, which was the sole cause of his injuries.

“In my opinion the claimed contributory negligence on the part of the child is of no importance in this case, as the only ground upon which any recovery could be had against the defendant would be upon the ground of discovered negligence, or upon the ground of wilful, wanton, and gross negligence on the part of the'driver of the team, for which this defendant would be responsible.

- “There is no room for any inference of gross or wanton negligence, or even of discovered negligence, unless there is some evidence in the case from which a jury could infer that the teamster either saw, or could have seen, the child in a position of danger in time to have taken measures to avert the accident..

“After a close scrutiny of the evidence, I am of the opinion that there is no evidence in the case from which a jury- could, by any possibility, infer that the driver either saw or could have seen this child in a position of danger in time to have stopped his team and prevented injuring the child. All of the evidence seems to show that the child, on a sudden impulse, ran out and in front of the horses, or ran to the side of the wagon with the intention to steal a ride. There is no evidence from which a jury can infer that the driver saw this act of the child, or that he was in a position, or that the act happened at such a time and. under such circumstances that he could and should have seen this act of the child.

_ “While I personally would -hold a driver to the very highest degree of care in passing along a street where children are expected to be, yet even imposing that degree of care upon the teamster in this case, I cannot see that there is any group of facts to be drawn from the evidence in this case from which the jury could say by the most attenuated inference that the driver could have, after discovering the dangerous situation of the child, done anything to avert this accident. So under all the circumstances of the case I feel that it is clearly my duty to direct a verdict for the defendant.”

It is the contention of the appellant:

“That it was the duty of the driver, taking into consideration his knowledge of the situation, to drive his team with corresponding care, and in a manner reasonably safe under the circumstances, both as to speed and control. And if, under these circumstances, and such duty, the driver intentionally drove his team at what he knew was a high and dangerous rate of speed, not, indeed, intending to injure any one, nor wishing to injure any one, but in reckless disregard of consequences, and if, because thereof, the deceased was injured, then the defendant would be liable”— citing Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Bedell v. Railway, 131 Mich. 668 (92 N. W. 349).

There is no doubt of the correctness of the legal proposition stated by appellant’s counsel, but we have no hesitation in agreeing with the conclusion of the learned circuit judge that this record is barren of testimony which shows that at the time of the accident the driver either knew, or in the exercise of ordinary prudence should have known, of the dangerous proximity of plaintiff’s decedent, or of his attempt to climb upon the wagon.

The judgment is affirmed.

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


author: Steere, J.

text:
    MICHIGAN NATIONAL BANK v. HILL.
    1. Pleading — Equity — Demurrer — Appeal — Foreclosure oe Mortgages.
    On a demurrer to complainant’s foreclosure bill', tbe objection tbat a third defendant, who did not file a demurrer or join in that of the defendants, was improperly joined as a party, could not be considered, for tbe reason that tbe point concerned only tbe defendant who did not demur or object.
    2. Same — Special Demurrer — Appeal and Error.
    Tbe ground of multifariousness set up in a demurrer is special and no appeal lies from tbe order of tbe circuit court overruling it.
    Appeal from Kalamazoo; Stewart, J.
    Submitted April 27, 1914.
    (Docket No. 140.)
    Decided June 1, 1914.
    Bill by the Michigan National Bank against Sarah H. Hill and others to foreclose certain mortgages. From an order overruling a demurrer to complainants’ bill, defendants Sarah H. Hill and William E. Hill and Company appeal.
    Affirmed.

      E. M. Irish and C. H. Stearns, for complainant.

      Thomas J. Cavanaugh, for defendants S. H. and W. E. Hill.
   Steere, J.

This is an appeal from an order overruling defendants’ demurrer to a bill in chancery filed by complainant to foreclose six different mortgages, given by William E. Hill and Sarah H. Hill, and for an accounting upon matters connected therewith. Defendant Anthony S. Hill did not appear in said suit. Defendants Sarah H. Hill and William E. Hill Company appeared and interposed a demurrer, the essence of which is that the bill is multifarious, because it attempts to foreclose several mortgages on several distinct pieces of land given by different persons at different times and for different amounts, and is too indefinite and uncertain in the particular that it fails to sufficiently describe and properly set forth the nature and amount of indebtedness claimed due for advancements, discounts, .etc. The lengthy bill of complaint, consisting of numerous paragraphs covering many pages, outlined briefly as possible, is in its main essentials as follows: William E. Hill, who died in October, 1897, was for many years actively in business, in the city of Kalamazoo, under the name of Wm. E. Hill & Co., extensively engaged in the manufacture and sale of saw mill machinery and tools used in the lumber business. He was a regular customer and patron of complainant, doing his banking business with it and obtaining credit accommodations there from time to time. At his death he left his business and property to his wife, defendant Sarah H. Hill. Upon the death of her husband, said Sarah H. Hill took possession of the property and business, made financial arrangements with complainant, and continued to carry on said business under the same name (Wm. E. Hill & Co.) until March 22, 1912, doing her banking business with and receiving accommodations from complainant, as her husband had done. On that date she disposed of said business and all its assets, both real and personal, turning the same over to a corporation organized for that purpose under the corporate name of Wm. E. Hill Company.

The. mortgages sought to be foreclosed, though not all covering the same property, were given before this corporation was organized, by Mr. and Mrs. Hill only, are owing to the one complainant, closely connected with the affairs of and cover property turned over to the new corporation. They are as follows:

(1) A mortgage given on .the 24th of May, 1888, by Hill and wife to a man by the name of Eggleston for the sum of $3,500. This mortgage was partially paid and subsequently purchased by complainant.

(2) A mortgage of May 24, 1888, to complainant for $10,000, given to secure any indebtedness that-Wm. E. Hill and Wm. E. Hill & Co., being the same party, might owe said bank. This was in its nature a blanket mortgage to cover prospective credits as well as past.

(3) A mortgage similar to the last mentioned, executed by Wm. E. Hill & Co., dated May 13, 1896, to complainant for $10,000, being additional security.

(4) William E. Hill having died in 1897 leaving everything to his wife, Sarah H. Hill, she, to obtain “some present accommodations and forbearance,” and continue the business, on December 1, 1897, gave a chattel mortgage to complainant covering machinery, tools, stock, and other personal property connected with such business, for the sum of $10,000 and upwards, and assumed in writing all obligations of Wm. E. Hill & Co. to complainant.

(5) On July 7, 1897, said Sarah H. Hill gave a mortgage on certain property to complainant to secure a note of $5,000 given by her son, Anthony S. Hill, which note had been previously guaranteed by herself and William E. Hill. The mortgage was upon a piece of residence property belonging to her and not turned over to the new corporation.

(6) On November 11, 1910, said Sarah H. Hill gave a second mortgage on said residence property to complainant for the sum of $3,700.

The bill alleges a long course of transactions between the bank and Wm. E. Hill & Co., involving a varying and increasing indebtedness of the latter, arising from overdrafts, discounting paper, and other banking accommodations, all of which, amounting to near $45,000, was secured by blanket mortgages both real and chattel; that since the business has been transferred to the new corporation it has been poorly and inefficiently managed and has become insolvent, ■resulting in the chattel security of complainant becoming scant and inadequate. The bill prays for the appointment of a receiver, an accounting, and a decree of foreclosure of said mortgages for such amount as may be shown to be due complainant.

The demurrer of Sarah H. Hill and the Wm. E. Hill Company is as follows:

“These defendants say that complainant has not stated such a case in its bill as entitles it to relief in a court of equity for the following reasons:

“(1) Because it appears by the said bill that the same is exhibited against these defendants and another person mentioned in said bill for divers distinct matters and causes, in some whereof, as appears by said bill, these defendants are not interested or concerned and said bill is multifarious.

“(2) Because it appears by the said bill that the same is exhibited to foreclose divers and sundry mortgages made by several different persons on several different pieces or tracts of land for several different amounts in some of which these defendants are in no manner interested or concerned.

“(3) Because it appears in and by said bill that the said complainant is attempting to foreclose numerous mortgages assigned by different of these defendants on independent tracts or parcels of land and also a certain chattel mortgage or mortgages, and that the attempt to join the foreclosure of real estate mortgages and chattel mortgages signed by different persons in some of which these defendants are not interested, makes said bill multifarious.

“(4) That said bill is uncertain, indefinite, and does not sufficiently or properly set forth the evidences of indebtedness claimed to be secured by the said several real estate mortgages, nor does it set forth the amount that is due or claimed to be due for advancements or discounts under paragraphs 38, 39, and 40 of said bill of complaint.

“Wherefore, and for divers other good causes of demurrer^ appearing therein, these defendants demur to the said bill and pray the judgment of the court whether they shall be required to make any further or other answer thereto, and they pray to be hence dismissed with their reasonable costs and charges in this behalf sustained.”

It is to be observed that defendant Anthony S. Hill did not appear in this case nor join in this demurrer. He does not complain, and the two demurring defendants cannot be heard upon questions which might affect only his interests. Torrent v. Hamilton, 95 Mich. 159 (54 N. W. 634).

The main and most serious ground of defendants’ demurrer is that the bill is multifarious. There is but one complainant, a mortgagee and creditor, no misjoinder of claims against the mortgagor appears, and, so far as shown, all interested in the property mortgaged are made parties. If each party is interested in some material matters set out in the bill, and they are connected with others, it is not indispensable that all parties be interested in all matters involved. A careful reading of this bill leads to the impression that the various dealings of Mr. and Mrs. Hill, in their own names and in the business name adopted and used by both, with the bank, in borrowing from it and giving these securities, are so linked together as to indicate elements in the controversy forming an intrinsic connection between the subjects which would, or might, in one way or the other, affect and jointly require connected consideration of, the securities they had given.

But irrespective of this, we are satisfied that beyond the claim of multifariousness defendants’ demurrer contains little, if anything, requiring serious consideration. It is held in Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059), that a demurrer on that ground is special, and no appeal lies from an order overruling such a demurrer. The question is there well reviewed with reference to the rule, statute, and decisions in point; it is followed in Case v. Longyear, 168 Mich. 434 (134 N. W. 459), and Robinson v. Motor Car Co., 170 Mich. 163 (135 N. W. 897).

The order of the trial court overruling the demurrer is affirmed, with costs. Defendants are allowed 20 days to plead over as they may be advised.

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


author: Bird, J.

text:
    GEERDS v. ANN ARBOR RAILROAD CO.
    1. Railroads — Contributory Negligence •— Animals — Negligence —Defect in Cattle Guard.
    In an action for killing a cow of the plaintiff, which wandered over the cattle guard of defendant railroad company and was killed by its train, it was no defense to the plaintiff’s claim that the cattle guard was defective, that he was guilty of contributory negligence in letting the animal graze in the highway.

    2. Same — Evidence—Cattle Guards.
    The issue being whether the cattle guard had become filled with gravel and cinders, no error was committed in ruling out testimony offered in defense of the action that cattle would sometimes pass over guards which were in repair.
    3. Same — Evidence—Impeachment—Admission.
    Nor was it improper to permit the plaintiff to ask defendant’s section foreman, on cross-examination, whether he had not stated on the evening of the day on which the cow was killed that he knew the guard was not in good condition and the cow could walk over it, to discredit bis testimony, given on direct examination, that the guard was sufficient; tfie court having restricted the evidence to that purpose alone.
    '4. Trial — Argument—Special Questions.
    Where the jury returned into, court with a general verdict and omitted to answer certain special questions that the defendant had submitted, and the court instructed them to retire and answer them, and the jury asked for an explanation, and where the plaintiff’s attorney stated what he understood the question to mean, and defendant’s attorney participated in the proceedings, helá, that if what the attorney for.plaintiff said amounted to argument, it was not reversible error under the circumstances.
    Error to Missaukee; Lamb, J.
    Submitted April 30, 1914.
    (Docket No. 59.)
    Decided June 1, 1914.
    Case by Herman Geerds against the Ann Arbor Railroad Company for the negligent killing of a cow. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. F. Sawyer, for appellant.

      Gaffney, Miltner & Millington, for appellee.

       On the ' question of the effect of contributory negligence of owner of stock getting on railroad track through defects in cattle guards, see note in 36 L. R. A. (N. S.) 1000.

   Bird, J.

Plaintiff recovered a judgment for the value of a cow, which wandered over one of defendant’s cattle guards in Missaukee county, onto the right of way, where she was killed by a passing train. The negligence relied upon was the failure of defendant to properly maintain the cattle guard; the specific neglect being its failure to keep the spaces between the slats constituting the guard free from sand and dirt. The question as to whether the spaces were filled or were free at the' time the cow passed over it was the principal issue in the case. Several witnesses testified that they were filled nearly to the top of the slats with sand, dirt, and cinders. The section men testified that they were free. The issue .having been determined in plaintiff’s favor, defendant assigns error.

It is argued that plaintiff was guilty of contributory negligence, because he permitted the cow to graze in the highway. If we concede this, it would be no defense to the defendant, in an action like the present one, under the statute, for failure to keep its fences in “effective repair.” Flint, etc., R. Co. v. Lull, 28 Mich. 510; Grand Rapids, etc., R. Co. v. Cameron, 45 Mich. 451 (8 N. W. 99); Talbot v. Railway Co., 82 Mich. 66 (45 N. W. 1113); La Flamme v. Railway Co., 109 Mich. 509 (67 N. W. 556); Neversorry v. Railway Co., 115 Mich. 146 (73 N. W. 125); Hathaway v. Railway Co., 124 Mich. 610 (83 N. W. 598).

Defendant was denied the privilege by the trial court of showing that cattle will go over these guards when in perfect repair. This is assigned as error. This action is based upon the allegation that this particular guard was filled up, and thereby rendered- less effective, and it was frankly stated by plaintiff’s counsel that, if the jury found it was not, the plaintiff had no case. No complaint was made as to the plan or construction of the guards, but was aimed at defendant’s failure to maintain it in effective repair. It was testified to without contradiction that to allow the spaces to become filled would lessen the efficiency of the guard. It was therefore immaterial that cattle would sometimes go over them when they were in repair.

The section foreman testified that the guard was not filled up. On cross-examination, he was asked if he did not say to the plaintiff on the evening of the day of the accident that, “You were glad you were not on the section that day, that you knew it was not in good condition, that the cow could walk right over it.” Objection was made to this question on the ground that the admission of the section foreman could not bind the defendant. Counsel for plaintiff then stated that it was asked for the purpose of laying the foundation to attack his credibility. The trial court permitted the answer. Later, upon rebuttal, plaintiff was asked whether he had had such a conversation with the section foreman, and he was permitted, over defendant’s objection, to answer that he did; the court at the time making it clear to the jury that it was allowed for the purpose, only, of affecting the credibility of the section foreman. The testimony was competent for this purpose, and no error was committed in receiving it.

Two special questions were submitted to the jury, but they returned and announced their general verdict without answering the special questions. The following colloquy between court, counsel, and juror then took place:

“By the Court: Gentlemen, there is one part of your verdict that you have not announced. I instructed you that, if you found for the plaintiff, you must answer those two questions, ‘Yes’ or ‘No,’ all sign your names to it. So you will have to return to your jury room and answer these questions, as I instructed you, by ‘Yes’ or ‘No,’ and then each one of you sign it, and each of you will have to agree on the answers to these questions the same and on your general verdict.

“By a juror: For what reason, or for what cause, are we to answer these questions?

“The Court: These questions are essential parts of the case. Your general verdict you have already given, but these are specific questions bearing upon specific facts.

“Mr. Gaffney: This question, Did the cow come up on the railroad track between the rails the 7th day of May—

“Mr. Gaffney: Well, that is what it means.

“Mr. Sawyer: Why, of course. What else could it mean?

“The Court: That applies to and means the 7th day of May, gentlemen.

“Mr. Sawyer: Certainly, it couldn’t mean any other time.

“Juror: The question: Was it between the railroad rail and the fence on the cattle guard or between the fence and the cattle guard, that we are to decide upon.

“Mr. Gaffney: It is the claim of the plaintiff that the cow went upon the railroad track between the rails because the track indicated that, that was seen. Now counsel wants, you to answer: Did the cow go over the cattle guards between the rails of the railroad, or did it go upon the right of way between the rail and the fence? That is the question.

“Juror: I don’t see how we can decide that.

“Mr. Gaffney: From the evidence in the case.

“Mr. Sawyer: Well, now, I don’t think this is the proper place to discuss this. This jury was instructed by the court to answer these questions.

“The Court: Retire to your jury room, gentlemen.”

Error is assigned because plaintiff’s counsel instructed the jury how to answer the questions. We do not draw that inference from the record. The jury evidently did not understand what they were to do, and plaintiff’s counsel'merely attempted to assist the court in making it plain to them what was required of them. Defendant’s counsel also joined in this attempt. If it can be said that what plaintiff’s counsel stated in the presence of the jury was an argument, it does not amount to reversible error. Zucker v. Karpeles, 88 Mich. 413 (50 N. W. 373). In this case it was said:

“Counsel are not obliged to furnish special questions until after the arguments are closed, but if they do so, there is no reason why they should not be discussed if they relate to the merits of the controversy.”

The other errors have been examined, but we think there is no merit in them. The judgment of the trial court will be affirmed.

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


text:
    BUTCHER v. BURNS.
    Adverse' Possession — Trespass — Titee — Evidence—Boundaries.
    Evidence tending to show that- the plaintiff had occupied ,a parcel of land between his land and defendants’ as a wood lot for 40 years and upwards and that the line as claimed by him had been established by a survey some 40 years previous to the alleged trespass, and that later a second survey had been made by the same surveyor and acquiesced in by the person who then owned defendants’ premises made a prima facie case of adverse possession.
    Error to Hillsdale; Chester, J.
    Submitted April 17, 1914.
    (Docket No. 61.)
    Decided June 1, 1914.
    Trespass by John Butcher against Will Bums and others for cutting timber on the property of plaintiff. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Victor Hawkins, for appellants!

      Charles M. Weaver and Charles A. Shepard, for appellee.
   Moore, J.

This is an action of trespass. The damage alleged is for the cutting of two white oak and one red oak tree on land described as—

“The land of the plaintiff situate in the townsnip of Scipio, in said county, being the north half of the west seventy acres of the northeast quarter of section number twelve, town five south, of range three west, the same extending to a line oh the east surveyed and established by George A. Mark, surveyor, on to wit, December- 1, A. D. 1870, as the east boundary line thereon, and containing thirty-five acres of land, more or less.”

The defendants, who were workmen in the employ of Wells M. Spencer, engaged in clearing the east part of the above-described quarter section, admit cutting the three trees, but deny plaintiffs ownership of the land upon which the trees were situate. It is conceded that the three trees described in the proof were not situate upon the N. y% of the W. 70 acres of the N. E. *4 of section 12, town 5 S., range 3 W., but upon a strip of overrun lying east of and adjoining said description. The case was tried upon the theory that, while the plaintiff had not shown record title to the land upon which the trees stood, he might have acquired title thereto by adverse possession, and had made a sufficient showing to raise a question of fact. The jury returned a verdict against the defendants for the sum of $20, which was trebled by the court, and judgment entered for the plaintiff in the sum of $60 and costs. The defendants bring the case here by writ of error.

It is the contention of the defendants that plaintiff not only did not have title to the land, upon which the trees were situate, by deed, but that he failed to make prima facie case of title by adverse possession, and was not entitled to go to the jury upon that theory.

Counsel say, we quote from the brief:

“In the case of Yelverton v. Steele, reported in 40 Mich. at page 538, the court holds that:

“ ‘The legal conception of tliat adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, is expressed with singular completeness and accuracy by Mr. Justice Duncan, when he-says that it must be “an actual, continued, visible, notorious, distinct, and hostile possession.” ’

“We apprehend that this .clear and concise statement of the requisites of proof applies to the adverse occupant or claimant who seeks to mulct in damages those who go upon the land claimed. See Dummer v. Gypsum Co., 153 Mich. 622 [117 N. W. 317]. The ■cases above named have been repeatedly cited and approved in this State and unquestionably define with certainty and clearness the conditions precedent to an establishment of title by adverse possession. * * *

“These defendants and appellants now most respectfully submit to this honorable court that the plaintiff herein has utterly failed in his attempt to make a prima, facie case of title by adverse possession, and that his showing falls far short of that clear and cogent proof of the prescribed elements necessary to entitle him to have his claim submitted to a jury as a question of fact. They further submit that the trial judge erred in refusing their request to direct a verdict, and further erred in his refusal to grant a new trial for the reasons and upon the showing set up in their motion therefor.”

We cannot agree with counsel in his claim. The land in controversy was a wood lot. The record shows that the northeast quarter of section 12 was a fractional quarter, and was owned prior to 1870 by Jacob TC- Camburn. Mr. Conklin testified that Mr. Camburn divided the land between his two sons according to value, giving one the west 70 acres, and the other the east 90 acres. In December, 1870, the county surveyor was employed to establish a boundary line between the two parcels. Some of his testimony is as follows:

“Q. Now, I call your attention to the center line running north and south-and ask you if you surveyed that line at that time?

“A. I did not. I think we didn’t pay any attention to that. The idea was to lay off 90 acres and 70 acres. We found a surplus, and that surplus, east and west, was, by direction of somebody, equally divided between the west part and the east part, between the 90 and the 70; that is, after laying off 90 rods from the east line, we added a half of the surplus, and we put the Monument at those points, and then ran from one point to the other. We did that both on the north side of the quarter and on the south side of the quarter, and planted the monuments at the two ends of the line. My notes show that witness tree I had at the north end.”

It also appears by his testimony and that of others that stakes were set at intervals on the line between the two monuments.

On October 7, 1867, Jacob K. Camburn, who then owned both the 70 acres and the 90 acres, deeded the north half of the 70 acres to his son Fayette E. Cam-burn. Fayette E. Camburn died soon after the survey was made, and his son Wade Camburn inherited the land which had been deeded to him. Wade Camburn had frequent talks with his grandfather, and was told by him that the Marks survey made in 1870 was the boundary line between the 70 acres and the 90 acres. Mr. Wade Camburn testified that he always regarded that line as his east boundary line. There is testimony to the effect that there were trees cut on this woodland from time to time by the respective owners, and that the owners of the 90 acres were careful not to get west of this line, and the owners of the 70 acres were careful not to get east of the line. In December, 1872, Wade B. Camburn, as sole heir of Fayette E. Camburn, deeded the land he inherited from his father to the plaintiff in this action. He described the land in the deed as—

“The north half of the west seventy acres of the northeast quarter of section number twelve, town five south, of. range three west, containing thirty-five acres of land, more or less. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining with the appurtenances, unto the said party of the second part and to his heirs and assigns-forever.”

He testified in part:

“Q. Did he (the grandfather) tell you where it was located, or show it to you?

“A. I never went with him to locate the boundary line.

“Q. You merely learned from him that there had been a line run through there for a boundary line ?

“A. Yes, sir; the boundary line was mentioned between us at time of transfer. My grandfather had described this survey to me. He had described this survey that had taken place a long time before, and stated that there had been, I believe, proper stakes set, and that this survey in question marked my eastern boundary of this timber, which is described as the north 35 acres of the west 70 acres, and in conversation with Mr. Butcher this line was talked over in the presence of Mr. Lowry. * * * I intended to sell Mr. Butcher the land that I held, the land mentioned in the deed. I was not able to point out just where this boundary line was; but I expected it to be a survey which my grandfather had told me. I told Mr. Butcher my grandfather had told me that was my line. The land was all wood lot. The only timber taken from it was for fuel and perhaps for rails in fencing the property in Moscow township, and it was the older trees that were cut down. It was not inclosed by any fence on either side. My aunt, Lucinda Camburn, owned the wood lot on the east side of this land.

“Q. Now, I ask you whether or not you occupied that for that purpose and used it for that purpose covering all of the land up to the line that your grandfather told you about?

“A. Yes, sir.

“Q. Now, I want to ask you whether you put Mr. Butcher in possession of all the land that you had up to that old survey line that your grandfather told you about?

“A. Yes, sir; * * * grandfather used to talk about this survey through there, that it marked the line between the timber that was mine and the timber that belonged to my aunt, Lucinda Camburn. Now, that is my position and the understanding that I had in relation to this property that it went as far east as this survey. The two tracts were always referred to as the 70 and the 90 acres. The land west of that old survey that my grandfather told me about was always referred to as the 70, and east of that survey was referred to as the 90.”

Cross-examination:

“By Mr. Hawkins: I am 42 years of age. This entire tract was wood lot when I was a boy and at the time I sold it; I never saw the survey myself. I did not own any other land on the northeast quarter of section 12; I do not know that any wood was ever-taken from the overrun. We took up to a certain line, that is, until there was a stone that was supposed to mark the north end of this survey; that was the only part that I knew about. I think Mr. Butcher knew where the line was.

“Q. Now, you say that you talked about this survey. Why wasn’t it mentioned in the deed, do you know?

“A. For the reason that I didn’t care to give a description of the property other than that I had. Whatever I had I got from my father, and I felt that I was deeding only what I got from him.

“Q. I understand, Mr. Camburn, that you have no means of knowing that you ever took any timber, wood, or anything else from the strip which is in contention?

“A. I don’t remember specifically. I know that we used up to a line that was supposed to be from this stone across to — there was a line that was known as-the Bates fence, I believe, and we were particular to take nothing east of that.”

When Mr. Wells M. Spencer became interested in. the land, Mr. Mark, who made the survey in 1870, was employed by Mr. Spencer, by the plaintiff, and by-Mr. Bater, who owned the south portion of the 70 acres, to make a survey between the 90 acres and the 70 acres so-called. Mr. Mark found his survey of' 1870 and re-established the line there, and it is the claim of the plaintiff that Mr. Spencer expressed himself as satisfied. Several witnesses gave testimony to this effect.

The following appears in the record:

“Jonesville, Michigan, May 17, 1911.

“Mr. John Butcher,

“Jonesville, Michigan.

“Friend John:

“We are now building fence around the timber lot, and I would like to ask you which end of the fence you prefer to maintain. We expect to turn in some time within the next two weeks. If you wish to put up the same kind of fence as I do, I will furnish it at about wholesale price. Kindly let me know at once of your choice and oblige.

“Yours very truly,

“Wells M. Spencer.”

We do not pretend to quote all the evidence, and it is the claim of the defendants that the effect of what we have quoted was greatly modified by the cross-examination. We have quoted sufficiently to show that there were questions for the jury. The disputed strip was part of a wood lot, and it is the claim of the plaintiff, and he produced evidence tending to support that claim, that from the time of the survey in 1870 it had been regarded as part of the land now owned by the plaintiff, and that he and his grantors had occupied it in connection with the farm as wood lots are ordinarily occupied. See Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. 983); Chabert v. Russell, 109 Mich. 571 (67 N. W. 902); Henry v. Henry, 122 Mich. 6 (80 N. W. 800); White v. Peabody, 106 Mich. 144 (64 N. W. 41); F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251, 102 Am. St. Rep. 412); Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279).

We think there was a question for the jury, and that the case was fairly submitted.

Judgment is affirmed.

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


text:
    CROSS v. LEONARD.
    Partnership — Names—Fictitious Name.
    The name Cross Brothers, adopted and used by two brothers named Cross engaged in business as copartners, is not an assumed name that must be registered under Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626), requiring the filing of a sworn certificate of membership, etc., with the county clerk.
    Error to Wayne; Van Zile, J.
    Submitted April 20, 1914.
    (Docket No. 74.)
    Decided June 1, 1914.
    Assumpsit in justice’s court by William and Herman Cross, copartners as Cross Brothers, against George E. Leonard for money had and received. From a judgment for the defendant, plaintiffs appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.
    Reversed.

      John J. Gafill (Frederic T. Harward, of co'unsel), for appellants.

      George E. Leonard, in pro. per.

   Moore, J.

This action was brought by William Cross and Herman Cross, copartners doing business under the name of Cross Brothers, against the defendant, for money due amounting to $49.81, before one of the justices of the peace for the city of Detroit. The plaintiffs declared orally upon all the common counts, while defendant pleaded in abatement. The case was tried by the justice, who rendered judgment of no cause- of action because plaintiffs had failed to file a certificate, as is required by Act No. 101 of the Public Acts of 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), in the case of copartnerships or individuals doing business under an assumed or fictitious name. The amount involved being below $50, no appeal could be taken, because of the statute applying to justices’ courts in Detroit. The case was removed to the circuit court by writ of certiorari, and a hearing was had, whereupon judgment was duly entered, affirming the judgment of the justice of the peace. The case is brought here by writ of error.

The only question involved for the determination of this court is this:

“Is a copartnership, consisting of two brothers, doing business under their surnames, with the word ‘Brothers’ added thereto, required to file a certificate with the clerk of the county in which their business is carried on, as provided by Act 101 of the Public Acts of 1907?”

This court has had occasion to consider the question raised in the recent cases of Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), and Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422). We think the principles announced in those cases and the authorities cited therein are controlling in the instant case, and it is not necessary to repeat here what is said there.

The judgment is reversed, and a new trial ordered.

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


text:
    LANE v. AU SABLE ELECTRIC CO.
    1. Landlord and Tenant — Trespass — Eviction — Master and Servant.
    Evidence that plaintiff’s employer, after plaintiff had joined a strike, notified him to quit and surrender up the house and premises that he occupied as a part of his employment, and thereupon sent men to put him out, who, after advising him why they came, removed his furniture to the street, and that the plaintiff cautioned them against damaging it, hut they injured the furniture to the extent of $14.50, Held, to be insufficient to show excessive force or forcible entry and .detainer, although plaintiff’s judgment for the damage done by their neglect is allowed to stand.

      2. Same — Master and Servant.
    The relation of the servant was not that of tenant to landlord, where he occupied a house on the premises of his employer as a part of the compensation paid to him. It was an incident of his hiring and his right to the use of the premises ceased when he joined a strike and ceased to perform his duties.
    3. Same — Damages—Contract.
    Accordingly, plaintiff could not recover damages for being evicted and his goods set out of the house, upon his claim of excessive force, nor could he recover damages because of mortification, injured feelings, etc.
    Error to Muskegon; Sullivan, J.
    Submitted April 20, 1914.
    (Docket No. 84.)
    Decided June 1, 1914.
    Case by William Lane against the Au Sable Electric Company for an unlawful eviction. Judgment for plaintiff on a directed verdict for less than the damages claimed, and he brings error.
    Affirmed.

      Jerome E. Turner, for appellant.

      Cross, Vanderwerp, Foote & Boss (W. S. Westerman, of counsel), for appellee.
   Moore, J.

This suit is brought by William Lane to recover damages which he alleges he sustained by reason of an unlawful eviction of himself and family from ■certain premises located in the city of Muskegon Heights, owned by defendant.

The plaintiff was chief operator of the substation ■of the defendant at Muskegon Heights, when a strike ■came on. His testimony as to the occurrences which .gave rise to this litigation is, in substance, as follows:

“I lived there and operated the station, used the house as a dwelling house. The time of this strike was the 27th day of May, 7 o’clock in the evening. I don’t just remember how long I remained in the employ of the company — after the strike, after the boys walked out. I think it was until about 9 o’clock in the morning of the 28th, the next day. I did not have any talk at that time with any of the officers of this defendant; I don’t know that I did. On the 3d day of June, in the forenoon, we were still on the place and in ■possession of the dwelling house. On that day we were eating dinner. * * * We wasn’t up from the table, but we were through, and in come Mr. Stewart •and.Mr. Burton and asked me if I had received notice to vacate, and I told them that I had, and he asked me if I was going to move, I think. No, he said, ‘You have received your notice and you have not vacated yet.’ I said, ‘No.’ He said, ‘We will have to set your furniture out on the street.’ And he then asked me if I had any place to go, and I told him no, that I didn’t. * * * He said that he would take my wife and children to the hotel, but he didn’t say what hotel, or who was to pay the bill, and I told him, ‘No;’ that I could look after my wife; that it wasn’t necessary. And he and Mr. Stewart went out'of the house. I don’t think they were out over 20 minutes before in came these men and began to tear up and set things out. I can’t say that I counted them, but I would say that there was eight or nine men came in. They were strangers to me. It took them about an hour and a half to set our goods in the street. I was there myself all the time while this was being done; also my ■wife and children. * * * ”

On cross-examination:

“There is a passageway between the dwelling house and the substation, as shown there; it is sort of an alleyway, so that you can pass right from the dwelling house into the substation, or from the station into the dwelling house. It was used for convenience, or had been so used, in performing my duties there as chief operator. * * * Shortly before I came here the chief operator there at the substation died, and the position was offered to me. I was receiving $60 a month in Grand Rapids and provided my own place of living; the company didn’t furnish me a place to live in in Grand Rapids; so when I came over here my compensation was $55 a month and the use of this house, which Mr. Gilbert thought was worth $5 or $10 a month, and the company also furnished the lights and water, and there was a telephone in the house, which rental wasn’t paid by me. It was furnished for my use. _ There was also a telephone in the substation — the Citizens’ and Bell was extended from the house to the substation, and the private, the power company’s private, phone was extended from the substation to the house. * * * I performed the last of my duties there as chief operator on the 27th day of May, about 7 o’clock in the evening; then quit and went on a strike; in other words, I walked out with the other strikers. Did not send any notice to the compány. There were others at the station capable of performing my duties. One of the strikers, the operator that had been there with me, he talked out, too. I and my helper, or whoever operated there at the substation, walked out at night at 7 o’clock, without any notice to the company whatever. I continued to live in the dwelling house. That substation is supposed to be opened all night, a man on duty there all night; I locked up the station. We had the keys and returned them afterwards to the operator, Mr. Essex. I didn’t deliver the keys to anybody that night. When we walked out in that way it left the city and everything in darkness. I know that Mr. Stewart, the local manager here, and Douglas Erwin came out there and got in and turned on the lights; at the time I was down the street. I claimed that the company discharged me afterwards, not until after I had gone on a strike and quit of my own accord, and after I had gone out in this way, locked up the substation, nobody there to turn on the lights, and refused to vacate the house used in connection with the substation. I did not quit my employment there because I had any complaint myself against the company. I was in the Union and was in sympathy With the striking linemen. If you are a mind to call it so, it was sort of a compulsory matter with me. Had no personal grievance against the defendant at that time. Mr. Burton of the defendant company gave me no verbal notice to vacate that dwelling house. I was not asked to vacate on the 28th, the next- day after we went out, but I did get a written notice; it was served upon my wife on the 29th, when I got home she delivered it to me. That is the notice that was served:

‘To Wiliiam Lane:

‘Sir:

“ ‘You are hereby notified to quit and surrender up the dwelling house and premises which you have occupied incident to your employment by this company. Said dwelling house and premises being the dwelling house and premises situated on block thirty-seven (37) plat'B, village (now city) of Muskegon Heights, Michigan, the same adjoining the substation of this company on Peck street in said city of Muskegon Heights.

“ ‘Dated this 29th day of May, 1913.

“ ‘Au Sable Electric Company,

“By S. Stewart.’ * * *

“The Au Sable Electric Company did not have any local manager here that I know of. I did not get a verbal notice before this written notice was served on me to get out of that house. Mr. Gilbert called me on the telephone, I remember, and he asked me when I was going to move; that was all the notice that I got. He didn’t tell me to vacate it, I think it was the -morning of the 29th or 28th. I told him that I didn’t have any place to go, and that I would see what I could do. I had the intention of moving at the time. I did not consult a lawyer and conclude that I would stay, nor take any legal advice, before this notice was served upon me, or before my goods were taken out. I was told not to move, but not by a lawyer. It came from the Union. * * * I swear I didn’t hear any messages over the telephone. I heard messages, but not over the telephone — heard one side of the conversation, the man who was talking. I could hear through the corridor; the telephone switchboard is at one end of the corridor, and I could hear through the corridor. I have listened on purpose to hear what was going on and would report to the Union. * * * Notwithstanding whatever investigation I had made in regard to procuring a dwelling house elsewhere, I had made up my mind to stay right there in this little house, and I was doing that on the theory that I had a right to stay there. It was four days after I got this notice before I was set out. The goods were not actually set out until after dinner of June 3d. In the house at the time we took dinner was my wife and ■children and myself, that was all'. * * *

“Mr. Burton said to me he wanted to know if I had had notice to vacate. I told him I had. Well, he said that I hadn’t moved, and that they would be compelled to set my goods out on the street. He did not tell me that it would be a good deal better if I went on and moved out myself. I didn’t tell him anything. Mr. Burton turned to my wife and informed her that they had an automobile outside. We were not told that they would take my wife and children to the Occidental Hotel. He said to the hotel. I did not know what hotel he meant. My wife said ‘No;’ that she wouldn’t go. At all events both she and I declined the offer, and then the men came in and moved out the stuff. It took them about an hour and a half. They didn’t handle the furniture very carefully, I don’t think, the way it was scratched up. They damaged it to the extent of $14.50. They carried things out separately and set them down on the ground. I cautioned them myself to use care and not to do any damage. * * *

“I do not remember that Mr. Burton on the morning of the 29th of May, the day this written notice was served, or on the preceding day, May 28th, of Mr. Burton coming where I was at the rear of the substation, or at the rear of the building that I occupied, and having a talk with me about the situation. I remember Mr. Burton being there, but it wasn’t that day; it was after that, after the notice was served; it was while I was still occupying the house He did not offer me another job. He told me I could come back if I wanted to; that he was sorry that I had gone out. In that conversation I probably told him, ‘We have got just as good lawyers on our side as you have/ but I can’t recall it. At that time I had probably consulted lawyers. I personally hadn’t; somebody consulted a lawyer for me in regard to my rights to remain on those premises.”

At the close of all the testimony counsel for defendant conceded the plaintiff was entitled to a verdict for $14.50, and moved for a directed verdict in that amount. Under the direction of the court the jury rendered a verdict in favor of plaintiff for that amount. The plaintiff brings the case here by writ of error.

Counsel claim they had a right to go to the jury upon the question of whether excessive force was used, and also upon the question of damages because of mortification, humiliation, and injured feeling, caused by having his household effects put into the street in ' the presence of onlookers. The record is barren of proof of forcible entry or of the exercise of excessive force. It also shows that most of the onlookers were strikers or symoathizers with the strikers and the plaintiff.

The relation of landlord and tenant between the parties did not exist. It was the- relation of employer and employed; the plaintiff being in possession of property belonging to the employer by virtue of his employment. When the plaintiff voluntarily severed the relationship which entitled him to the use of the property, that moment he ended his right to its use. Suppose a maid servant was employed at a monthly wage of $20 and the use of a furnished room in the house of her employer, and should then go on a strike and refuse to do any work, could she still insist upon the right to use the furnished room? A statement of the proposition shows its unreasonableness, and yet it is like the instant case in principle.

The language used in Bowman v. Bradley, 151 Pa. 351 (24 Atl. 1062, 17 L. R. A. 213), is pertinent here:

“If the possession of the house be regarded as an incident of the hiring, the incident must fall with the principal. If it be regarded as part of the compensation for labor stipulated for, then the right to the compensation ceased when the labor was discontinued.

“Bowman had the same right to insist on the payment of the cash part of his wages as on that part which provided his family a place to live. His right under the contract of hiring was like that of the porter to the possession of the porter’s lodge; like that of the coachman to his apartments over the stable; like that of the teacher to the rooms he or she may have occupied in the school buildings; like that of the domestic servants to the rooms in which they lodge in the house of their employers. In all these cases and others that might be enumerated the occupancy of the room or house is incidental to the employment. The employee has no distinct right of possession, for his possession is that of the employer, and it cannot survive the .hiring to which, it is incidental, or under which it is part of the contract price for the services performed. * * * When his contract ended, his rights in the premises were extinguished, and it was his duty to give way to his successor. * * * The case seems to have been begun, and tried, by the plaintiff on- the theory that his right to the possession of the house was superior to his right to remain in the defendant’s service. * * * When the labor ceased on the 19th of July, the plaintiff ceased to pay for his occupancy. By ceasing to labor without remonstrance or objection he must be held to acquiesce in the defendant’s right to terminate the contract for labor. If that contract was rightfully terminated, then the plaintiff’s right to the house was at an end, and he could be lawfully put out of possession. * * It is not necessary that occupation of a house, or apartments, should be a necessary incident to the service to be performed in order that the right to continue in possession should end with the service. It is enough if such occupation is convenient for the purposes of the service and was obtained by reason of the contract of hiring.”

To the same effect is Heffelfinger v. Fulton, 25 Ind. App. 33 (56 N. E. 688), and Trustees v. Froislie, 37 Minn. 447 (35 N. W. 260).

Judgment is affirmed.

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