text:
    HETH v. SMITH.
    1. Equity — Demurrer—Pleading.
    The rule that facts clearly and distinctly stated in a bill are deemed true on demurrer does not extend to conclusions or contradictory statements.
    2. Specific Performance — Equity—Mutuality of Remedy.
    In equity, a parol contract to lease land for the life of the tenant who binds himself in lieu of rent to perform personal services of an indefinite nature, not to be completed in one act, and involving special knowledge, skill, judgment or integrity, or like qualities depending on individual ability, requiring tbe continuous performance of ■ duties, such that a court of equity could not well regulate, is not specifically enforceable.

    3. Same — Contracts—Landlord and Tenant.
    To entitle a complainant to specific performance there must be in the first instance a valid agreement, and also at the time of the suit a mutuality of remedies as well as of obligations.
    4. Same.
    Where complainant, who had for a number of years leased premises of defendant at an annual rental, arranged orally with his landlord to construct a house on the premises, which he should occupy as long as he lived, reserving certain rooms for the lessor, and thereafter managed the property, collected rentals, and attended to the sale of part of the premises, as a part consideration for the use and occupation, paying no rental in cash, being assured at different times by the lessor that the complainant might occupy the premises as long as he lived, and where complainant departed from the State for upwards of a year, leaving his son in possession of the premises, the bill alleging performance of the contract on complainant’s part and commencement of summary proceedings by defendant to dispossess the son, offering further performance of services of the nature described, a demurrer to the bill* of complaint should have been sustained on the ground that complainant’s promises contained in the agreement were not performed and could not be fulfilled until the end of his life, and that remedies were not mutual in equity, in favor of both parties to the contract.
    Appeal from Kent; Perkins, J.
    Submitted January 29, 1913.
    (Docket No. 88.)
    Decided May 28, 1913.
    Bill by Edward W. Heth against Charles W. Smith and Wansey Farm Realty Company for specific enforcement of a lease. From an order overruling a demurrer to complainant’s bill, defendants appeal.
    Reversed.

      Smedley, Linsey & Lillie, for complainant.

      Walker & Fitzgerald, for defendants.

      As to the enforcement of contracts of service by courts of equity, see note in 6 L. R. A. (N. S.) 1115.

   Steere, C. J.

This case comes before us on an appeal taken from an order of the circuit court of Kent county, in chancery, overruling defendants’ demurrer to a bill of complaint asking specific performance of a contract to give complainant a life lease of certain premises in the city of Grand Rapids and to restrain summary proceedings instituted to evict him from said premises.

The condensed portions of the somewhat lengthy bill of complaint material to an understanding of the issue are as follows: In 1866 defendant Charles W. Smith, a resident of Cooperstown, N. Y., then owning “a large farm” lying adjacent to the city of Grand Rapids, leased the same to complainant for a period of seven years, at an annual rental of $100 a year. At the time of said lease the farm was badly run down where cleared; 40 acres not being cleared and covered with oak grubs. The buildings were a one-story three-room house and a small barn without doors. Complainant immediately took possession of the premises, according to the terms of his lease, and proceeded to improve and cultivate the same. He added five rooms to the house, moved the barn and put a basement under it, cleared the 40 acres of oak grub land at a cost of $20 an acre, planted an orchard of 200 trees, hauled fertilizer from the city and enriched the impoverished portions of the land, getting the place in good condition in about three years’ time. In the fall of 1873, while on a trip to New York, he visited Smith at his home in Cooperstown and called attention to the fact that the lease of the farm would.expire the following March, and asked what Smith’s intentions were in that connection. Smith expressed himself as well satisfied with complainant’s services and said he desired complainant to continue in occupation on his own terms and enjoy the improvements which he had made, and “under that agreement your orator continued in possession of said premises.” Two or three years later defendant Smith, being in Grand Eapids, visited the farm, and in talking matters over suggested that a new house be built; Smith to furnish the material and complainant to do the work and occupy the house as long as he lived, with the exception of two front rooms, which were to be reserved for Smith. This was agreed upon, and they together planned a house and picked out the location where it should be built. “The house was built according to agreement.” The two rooms were prepared and reserved for Smith to occupy whenever he desired to do so, as it was contemplated he would, but he never occupied them.

Complainant with his family continued to reside upon said premises until March, 1885, at which time his wife died. His children had then grown up and made their homes elsewhere, and. it was therefore complainant’s intention to get a smaller place on which to spend the rest of his days, of which he informed Smith, who discouraged him, stating that when they built the house upon said premises it was agreed between them that complainant “should occupy the same as long as he lived,” and that he hoped some of complainant’s sons would continue to occupy it after complainant had departed this life; that he never intended to sell that part of the property where the house stood, bounded by South Division street, Stevens street, and the railway right of way. After this talk and these assurances from Smith complainant agreed with Smith to “remain on the place and continue to look after the property as long as he lived,” which he has always done and still continues to do, making said house his home, being the only homestead he has, and has kept it in repair and made various improvements on it, looking after the interests of Smith in the balance of the property he owned in that locality.

Prior to this time complainant had engaged in the business of truck farming on said land and regularly paid rent, but such use of the land was no longer possible, as the price of real estate had enhanced in the vicinity of said premises so that Smith leased and sold nearly all the adjoining property, except the lot upon which the house was situated, “and so, under agreement with said Smith,” complainant did not thereafter pay any rent in cash, but “your orator gave his attention to locating manufactories on the land of said Smith and making a long lease or sale of the same for him,” resulting in six factories and other institutions being located on the premises near the residence of complainant. In further elucidation of that subject the bill states:

“Your orator further shows unto the court that at this time he did not pay any rent in cash, as it was agreed between your orator and said Smith that your orator was to rent the property belonging to said Smith as much as he could,, to collect the rents thereof and remit the same to said Smith in lieu of cash rent, and that there has been no year during all this time that your orator has not remitted to said Smith from $100 to $200, which he has collected in rents from the people whom he got to locate upon the property of said Smith; and your orator offers to continue to act as agent and to perform the same duties he has heretofore performed for said defendant. * * * Since the making of the agreement heretofore set forth between said Smith and your orator, he has kept the premises in good repair and the house well painted, put into said house plumbing and a heating plant and bathroom at an expense of over $300, put a new roof on the barn and on part of the house, added stable room and sheds for the accommodation of Smith’s tenants who were renting pasture grounds on said premises, and generally cared for the interests of Smith as though they were his own, all of which things he did in pursuance of his contract and agreement with Smith, relying upon the promise that he should have possession and occupation of the premises described in the bill of complaint as long as he lived.”

In March, 1908, complainant went to Independence, Mo., to establish his two youngest sons in business there, leaving another son, Bert M. Heth, in possession of the premises. In May, 1908, Smith visited Grand Rapids, and while there told complainant’s son that the house needed repairs and painting, after which, in reliance upon the previous agreement that he was to have possession and use of the premises as long as he lived, complainant painted the house, made repairs, and put in sewer connections. In May, 1909, while complainant was absent in Missouri, Smith again went to Grand Rapids and “in violation of his contract and agreement with your orator” rented the premises to another party, demanding possession from complainant’s son, which was refused. Complainant returned in August, 1909, to Grand Rapids, as he had always intended to do, his absence being “only temporary,” and “again took possession of the premises described herein as his home,” and has ever since had possession thereof. Complainant alleges that, were it not for said agreement with Smith, he would not have devoted his time to caring for said premises nor built said house, nor made the other expenditures and improvements as before stated, and that said agreement that he should have a life lease was the consideration therefor. In April, 1909, Smith conveyed said premises with other property to the Wansey Farm Realty Company, of which said Smith claims to be the general agent, by deed which was duly recorded. On the 12th of May, 1910, said Realty Company instituted summary proceedings against Bert M. Heth, son of said complainant, to recover possession of the property.

Complainant alleges that he has never been compensated for his time and services, as stated, and avers—

“That he has fulfilled all of the terms of the agreement and contract with said Charles W. Smith whereby he obtained a life estate in said premises, and that he now offers for the term of his natural life to continue to fulfill and perform all the conditions of said contract and agreement.”

Also that—

_ “He cannot in the proceeding at law before the circuit court commissioner recover compensation for the improvements which he has made on the premises, worth $1,000, nor obtain in said proceedings his life estate in said premises.”

The prayer for relief asks specific performance of the contract by which complainant “was granted a life lease of the premises,” which are described at length, being a lot 40 by 60 with its appurtenances, known as 88 South Division and Stevens streets. An injunction restraining the proceedings at law instituted to evict his son and from commencing any other suit to recover possession of said premises is also asked.

Defendants’ demurrer is in 12 separate paragraphs, setting up as many reasons why complainant’s bill is insufficient. It is claimed that the contract was invalid because oral; that defendant Smith is not a proper party to this suit; that no sufficient and specific acts of performance on complainant’s part are stated; that the alleged contract is indefinite, ambiguous, and uncertain, not mutual in its terms; that complainant did not constantly recognize and at all times treat the same as binding upon him, but at various times violated and disregarded the same; that he has been fully compensated for his services, and, if not, damages can be recovered by him in an action at law; that his claims are inconsistent and repugnant; that the acts to be done and the services to be rendered by complainant, according to the allegations in the bill, were personal services to continue over an indefinite period of time, specific performance of which cannot be enforced against him, and therefore said contract is incapable of enforcement by decree in his favor for specific performance, the remedy not being mutual.

In considering the bill on demurrer, all facts clearly and distinctly stated are to be taken as true; such is not the case with conclusions nor with contradictory statements.

The bill in its general aspects states clearly that over half a century ago, in 1866, complainant rented a large farm lying near the city of Grand Rapids from defendant Smith and took possession thereof “according to the terms” of a written lease; the only terms of the lease given are that it was for seven years at an annual rental of $100 per year. After the expiration of the written lease complainant continued in possession, as a tenant, of all of part of said “large farm” to the time of filing this bill, under oral agreements with Smith. The first oral agreement was that he “could continue upon said place,” and “* * * that the terms could be made by your orator himself.” The terms he made are not stated, except by inference; but “under that agreement your orator continued in possession,” until 1885 when his wife died, and his children, having previously grown up, had moved away. This oral lease on his own terms, whatever it was, had been supplemented in 1875 or 1876 by an oral agreement for a new house on the place; the material being furnished by Smith and the labor by complainant, who “was to occupy the house as long as he lived.” No information is givén as to the size or cost of the house. Apparently considering his tenancy as optional, complainant was about to throw it up and leave after the death of his wife, when Smith called his attention to the agreement made when the house was built, said he would not sell the property the house stood on, and expressed the hope that some of complainant’s boys would live there after complainant was dead. Complainant then agreed to remain and look after the premises and the interests of Smith as long as complainant lived. After that time he paid no money rent and ceased to cultivate the land as a truck farmer, but “under the agreement with Smith your orator gave his attention to locating factories on the land of said Smith and making a long lease or sale of same for him.” He also collected rent, “as much as he could,” and remitted the same to said Smith “in lieu of cash rent.”

At the time his wife died he had occupied this large farm, put in good condition three years after he went there, for 18 years, paying $100 a year for seven years, and on terms “made by your orator himself” for 11 years, living one-half of the time in the house now in controversy. Except for the year and five months he was in Missouri engaged in starting two of his sons in business, complainant has, so far as disclosed by the bill, occupied the house 37 or 38 years and expended on it $1,000. From the story told in the bill we fail to discover any compelling equitable considerations to necessarily turn the balance in favor of specific performance, and now consider the more strictly legal aspect of the case.

Up to 1885, according to the statements in his bill, complainant regarded the oral contracts which had been made as in their nature unilateral or optional with him, and he had concluded, after his wife died and his children were gone elsewhere, that he would go also and “get a smaller place on which to spend the rest of his days.” Smith “discouraged the idea,” but made no new promises touching a life lease, except to call attention to the agreement made when the house was built and inform complainant he would never sell it, whereupon it is stated complainant himself agreed with Smith he would remain and look after the premises and Smith’s interest in the balance of the property as long as he lived. This is the final agreement treated by the bill as binding on both parties. By it his obligations were for personal service, “in lieu of cash rent.”

The bill states complainant faithfully performed those services at all times, and also states that he went to Missouri in March, 1908, and returned in August, 1909, during which time Smith visited Grand Rapids twice, finding complainant absent and his son Bert M. Heth in possession of the property; on the second visit Smith rented the house to another, demanding possession, not of complainant, who had been absent over a year, but of the son whom Smith found in possession. The summary proceedings instituted before the commissioner a year later to obtain possession of the premises were not against complainant, but the son. At that time complainant had returned from his “only temporary” absence and “again taken possession of the premises described herein as his home.” The bill fairly states that for nearly a year and one-half he was absent in another State, not in possession of the property nor rendering the personal services he had contracted to perform in lieu of cash rent. To the contrary of this the bill also avers that he has fulfilled all the terms of his agreement whereby he obtained a life estate in the premises, and “now offers for the term of his natural life to continue to fulfill and perform all of the terms' and conditions of said contract and agreement,” recognizing that there yet remains on his side personal services and continuous duties, running on contemporaneous with the lease.

Specific performance of these services at the instance of defendants could not be decreed. Contracts for affirmative personal service consisting of a succession of acts, the performance of which cannot be consummated in one transaction, but must continue for a time, definite or to become definite, and which involve special knowledge, skill, judgment, integrity, or other like personal qualities, the performance of which rests in the individual will and ability, and involving continuous duties which a court of equity could not well regulate, are not, as a rule, enforceable by decree for specific performance. Waterman on Spec. Perf. §§ 33-49; Pomeroy on Spec. Perf. §§ 307-310.

To entitle a party to specific performance there must, in the first instance, be a valid agreement, and also at the time of the suit a mutuality of remedies as well as of obligations. Waterman on Specific Performance of Contracts, § 196; 2 Pomeroy’s Equity Jurisprudence, §769. The rule is fully recognized by this court. Buck v. Smith, 29 Mich. 166 (18 Am. Rep. 84); Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142) ; Green v. Railroad Co., 158 Mich. 436 (123 N. W. 4).

While the doctrine of mutuality is firmly established in the courts of equity, it is to be recognized, as contended by counsel for complainant, that there are numerous exceptions and abundance of authority where, under the particular circumstances shown, an exception is declared, but the principles under which exceptions are recognized are not applicable to the facts made clear by complainant’s bill.

In this case complainant’s nonenforceable promises are not fully performed and cannot be until the close of his life; if he is granted specific performance against defendants, and then fails to perform on his part, they are remediless in a court of equity; giving relief to complainant would leave the defendants to the law court for relief, if anywhere. This is one of the tests which disposes of the so-called exceptions to the rule of mutuality, and under the conditions shown here the rule of mutuality applies. Upon that objection alone the demurrer should have been sustained. In this view of the case it becomes unimportant to consider the other grounds of demurrer.

The remedy by specific performance is inappropriate, and the order overruling defendants’ demurrer is reversed, with costs. A decree may be entered in this court sustaining the demurrer and dismissing the bill, without prejudice, of course, to any proceedings at law complainant may desire to take.

Mooee, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    BROCKWAY v. HYDRAULIC POWER & LIGHT CO.
    1. Waters and Watercourses — Riparian Rights — Flooding Lands.
    It was not necessary to aver, in a bill of complaint to enjoin flooding complainants’ lands, that defendant was tbe owner of the dam in controversy and land on which it was located, where the bill charged that defendant was in possession of the dam, and referred to it as defendant’s, and the defendant in answering likewise mentioned the dam as “its dam,” and charged that defendant had expended large amounts of money upon it.
    2. Same — Equity—Injunction.
    Although the damage to the owner of the dam may be greater than the loss to riparian owners whose land defendant’s acts flood, it is held, under the evidence, that the owners of several hundred acres injuriously affected by the raising of a lake may maintain suit to restrain the overflow beyond a height at which defendant by prescriptive right from long use was entitled to impound the water.
    8. Same — Prescription.
    Prescriptive rights arising from the maintenance of a dam cannot he increased by raising the crest of the dam or by maintaining a tighter and more perfect dam at the same height, thus forming a greater obstruction to the flow of water and increasing pondage.
    Appeal from Antrim; Lamb, J., presiding.
    Submitted January 24, 1913.
    (Docket No. 24.)
    Decided May 28, 1913.
    Bill by Samuel Brockway and others against the Hydraulic Power & Light Company to restrain defendant from flooding lands of complainants. From a decree for complainants, defendant appeals.
    Affirmed.

      Coveil & Cross and Thomas D. Meggison, for complainants.

      Fitch R. Williams (E. N. Clink and C. L. Bailey, of counsel), for defendant.
   Steere, C. J.

This is an injunction suit involving the alleged flooding of lands by damming. It was heard on pleadings and proofs, taken in open court, and comes here on an appeal from a decree of the circuit court of Antrim county in chancery in favor of most of the complainants, requiring the defendant to lower the wasteweir of its dam on Intermediate river 24 inches, and restraining it from maintaining said dam at any greater height. The bill of complaint is filed by 12 riparian owners whose lands, amounting to several hundred acres, have a water frontage upon Intermediate lake of several miles in extent. Complainant Brockway owns and has occupied for many years a small island, containing about 1% acres of land, located about a mile from the south extremity of Intermediate lake, on which he has erected various buildings and maintained a summer resort. This lake is long and narrow, its outlet being Intermediate river, which is one of the connecting links in a continuous chain of lakes and streams extending nearly across Antrim county, with an outlet into Grand Traverse Bay at Elk Rapids. Defendant, a Michigan corporation, maintains an electric lighting plant in the village of Bellaire, and obtains water power developed at a dam on Intermediate river located from 1% miles to 1 % miles below the lake and about 2% miles from Brockway’s island. Defendant’s predecessors erected a dam, in the year 1881, upon said river at the location of the present dam, constructed of sand and gravel, with a plank and timber curb at the spillway, with a height of eight feet of water at the dam and by cutting a tailrace across the neck of land at a lower point in the river secured a head of 9feet of water at the wheel-pit. About ten years before the trial of this cause repairs were made on the flume and race-weir of that dam so as to carry a head of 13 feet at the wheel. In 1904 the head of water is shown to have been 12 feet. In the year 1906 the dam in controversy was built upon the side of the old dam, and, by the use of an eight-inch dashboard at the spillway, together with dredging in the river below, a head of 16 feet 4 inches was obtained.

The bill of complaint was filed in this cause in 1908, and alleges, among other things, that this new dam, wasteweir, and flashboards erected within the preceding year and a half raised the water very materially above the level of the old millpond in the river and so high as to raise Intermediate lake above its normal level, causing it to overflow and seriously damage large areas of land owned by the complainants in and on the borders of said lake.

Defendant, answering, denies that the new dam was built any higher than the old, or that it retarded the flow of water from Intermediate lake and through, the river to any greater extent than did the old dam, or caused the water to rise and overflow the lands of complainants to any greater extent than formerly, and again raises the point, previously raised by a demurrer which was overruled, that the bill of complaint contains no allegation that defendant owned or controlled said dam.

It is now urged and argued in defendant’s brief, as a defect fatal to complainant’s case, that ownership of the dam by defendant is neither alleged nor proven. If ownership and title to the realty and technical proof of the same, were essential to the issue involved, this question might require - more serious consideration. Complainant’s claim of injury is not based on what defendant owned, but on what it did and is doing. The pleadings and proofs on both sides fairly present such issue. The bill of complaint alleges that:

“Defendant is possessed of a certain parcel of land situated in the village of Bellaire * * * upon which is located an electric light and power plant, with millpond, millrace, wasteweir, and the necessary equipment to operate the said electric light and power plant by water power. * * * Said dam is located on said river about one mile below said lake. * * * That the said defendant’s dam and the wasteweir therein has been built much higher than the old dam and wasteweir causing the waters of said stream to rise in the pond formed by defendant’s said dam to a height of five or six feet above the level of the waters of said old millpond, and the defendant’s said dam is so constructed that by the use of flash-boards, etc., * * * by reason of the construction and maintenance of said dam and the raising of the waters of said stream in said pond, as aforesaid, the waters of said Intermediate lake have been raised considerably above their normal level and caused to overflow and flood large areas of land lying along the border of said Intermediate lake which were not previously flooded,” etc.—
repeatedly throughout the bill of complaint designating the dam in question as “defendant’s dam” and stating what defendant had done in that connection.

Defendant, in its answer—

“Admits that the Hydraulic Light & Power Company is a corporation, etc., * * * that it is possessed of a certain parcel of land situated in the village of Bellaire; * * * but denies that upon said land so possessed there is a millpond, millrace, and wasteweir; admits that it has an electric light and power plant and necessary equipment to operate said light and power plant by water power; admits that the water power used to operate said plant is obtained by damming a stream known as Intermediate river which is the outlet of a body of water situated in' said county; * * * denies that it owns the land upon which said dam, millpond, millrace, and wasteweir are situated.”

And.—

“This defendant, further answering, alleges and so charges the fact to be that it has built, at the expense of many thousands of dollars, a large and up-to-date water power, electric power house, fully equipped with all necessary machinery for generating electricity; * * * that if defendant should be decreed by this court to lower its dam it would suffer a loss of many thousands of dollars through loss of power; * * * that it has carried a head of water not to exceed 16 feet at its present dam and, by so doing, with the amount of head obtained by dredging the stream below, and the normal level of Intermediate lake, has not raised the water of Intermediate lake, so called, as alleged by complainants in their bill.”

The respective pleaders appear to be in harmony in designating the dam, over which this controversy arose, as belonging to defendant and in applying their respective averments of what defendant did or did not do to this identical dam, and the proofs are along the line of their allegations. It is fairly shown by the pleadings and proofs that defendant is in possession of, maintaining, controlling, and operating the dam and water power which is the subject-matter of this controversy.

There is no claim of fight by purchase to flood complainants’ lands. What rights defendant has are prescriptive. It is conceded that defendant and its predecessors had gained by long usage, extending over the requisite statutory period, a right to maintain the waters above its dam, from season to season, at the head created by the old dam which preceded the construction of 1906. For the extent, if any, to which that would raise the level of the lake and flood complainants’ lands, defendant is not liable in damages.

The legal principles involved in this case have been well settled by numerous decisions of this court and other jurisdictions. The real issue presenting a ground for sharp contention is purely one of fact. The question involved is whether complainants have shown that defendant in the rebuilding of this dam in 1906 has, by raising its height, by tightening it against leakage, or by any other means, increased its impounding capacity to obstruct or restrain the natural flow of the river, and thus caused a greater overflow of complainants’ lands than had previously existed for the prescriptive period.

The original rights of the upper shore owners protected them against any manipulation of the waters injuriously increasing or diminishing the volume of natural flow so as to raise or lower natural levels. They were not required to deal with a level raised or lowered by artificial means. Hass v. McManus, 161 Mich. 372 (126 N. W. 462). Where prescriptive rights have arisen by the maintenance of a dam, they cannot be increased by raising the crest of the dam or by maintaining a tighter and more perfect dam at the same height, thus forming a greater obstruction to the flow of water and increasing pondage. Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243); Miller v. Bank of Belleville, 148 Mich. 339 (111 N. W. 1062).

Numerous witnesses were sworn on both sides. The testimony given by complainants and their witnesses was largely personal experience and observation from year to year, as to the height of the water and conditions resulting from different levels of the lake. Their testimony was strong and positive that since the construction of the new dam there has been a radical and permanent elevation of the waters of the lake. Their testimony as to the extent varied according to things which they had noticed and the times of observation. Their reasons and cause of remembrance were, in many instances, based on circumstances which especially attracted their attention, like the flooding of boathouses and docks, the killing of timber, extending of the waters back to different shore lines, the smothering of a spring which a witness had been using, the deepening of the water over and disappearance of a rapids which was formerly somewhat difficult of passage by boat on the river between the dam and the lake, and other like matters and incidents of special personal interest. Much of defendant’s testimony was by experts, hydraulic engineers, who made certain observations and measurements. There was also testimony introduced by defendant tending to show that the waters of the lake had often been as high before 1906 as subsequently, that the dam had not been raised, but increased head was obtained by dredging the tailrace. There was abundance of conflicting testimony upon the issue involved.

A review of the evidence as a whole shows that defendant’s testimony consists very largely of theoretical tests, while that of complainants is chiefly actual tests, or observations and matters of experience with physical conditions on the part of those dwelling in the locality and having occasion to note from time to time where the water stood and what effect it was having. Tests from observation and experience are held to be more satisfactory than measurements and theories and, as a rule, controlling when brought in conflict. Turner v. Hart, supra.

The circuit judge, who listened to the numerous witnesses testifying before him in open court and had the advantage of hearing and observing them as they testified, took the pains at the close of the testimony to make personal investigation and inspection of the premises, going with counsel for the respective parties to examine the dam, lake, and river, with their environments. In his opinion he states:

“From the testimony submitted, I am_ fully satisfied that the new dam, without regard to its height, retards the natural flow of the stream to a greater extent and for longer periods of time than the old dam. This conclusion is based on fact and not on theory. One physical fact alone — viz., that while the old dam was used there were rapids in the river a short distance above the dam and now those rapids are_ entirely obliterated — proves to me beyond any possible question that the new dam offers a greater obstruction to the flow of the stream than did the old. The further fact that the river is navigable from the dam to the lake now, when before the new dam was erected it was so only from above the rapids, shows very plainly that the above-mentioned condition is a continuing one. The test to be applied in such cases is not whether the new dam backs the water up farther at times of freshets, but that it holds the water back higher for longer periods of time, one season with another, than the old. In other words, that it establishes a new normal level, one season with another. * * * And, while the exact difference cannot be determined from the proofs submitted, I am satisfied from a careful consideration of the testimony that the normal level of Intermediate lake, at its outlet, one season with another, has been raised by the new dam to the extent of 24 inches above the normal level, one season with another, under the old dam. The effect of which is to impose upon the lands of all riparian owners above, a burden which, if permitted to ripen into a right, is so far reaching that, in my judgment, it should not be allowed if the complainants, or any of them, have any substantial grievance at this time.”

There was testimony that Brockway and eight other complainants did have a substantial grievance at that time, and the court found they were entitled to relief asked, to the extent granted. A careful reading of the entire testimony satisfies us that his conclusions are sustained and justified by the proofs, even should the testimony of Brockway, whose veracity defendant' particularly assails, be liberally discounted or even disregarded, and that defendant has exceeded its prescriptive right of fiowage to the extent stated.

It is urged in behalf of defendant that the damages are “so small to complainants and so great to defendant that an injunction as prayed for should not be granted.” In the early case of White v. Forbes, Walk. Ch. (Mich.) 112, in which a perpetual injunction to restrain the flooding of complainant’s land by damming was sustained, it was said:

“The extent of the injury, provided there be a substanial injury done, is of no very great importance. Every man has a right to the enjoyment of his property undisturbed by another, and to be protected in that enjoyment; and, what one may consider of little value, another may esteem very highly. The court will not, in cases of this kind, be governed by dollars and cents alone, but will inquire whether the injury is of such a nature that it can reasonably be supposed to lessen materially the enjoyment of property by its owner.”

We are aware that in certain cases, in view of the limited extent of the injury, the limited number of those who have a right to complain, the well-defined extent of possible future injury, laches in understandingly permitting or encouraging heavy expenditures which it could well be foreseen would result in the damage complained of, or other controlling equities, this court has deferred to the doctrine of comparative damages, and has either left complainants to their remedies in actions at law or granted relief only to the extent of awarding damages, where such were clearly ascertainable.

In this case there is no evidence that complainants countenanced or encouraged the work being done, or had any notice or knowledge that it would result in flooding their lands. It must be concluded that, in any event, defendant had the greater and more exact knowledge of what it was doing and the ultimate result. It gave no notice of what it was doing, or its intentions. It does not in any way appear that it was influenced or encouraged by any conduct or word of complainants. It is not in a position to raise the question of estoppel. Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423 (137 N. W. 305), and cases cited.

Intermediate lake is several miles in length and presents an extensive coast line. The number of shore owners who might be injuriously affected by raising the level of the lake and the acreage which might be flooded is unknown, but naturally suggested. There are 12 complainants, owning several hundred acres of land in this case, and their frontage is small compared with the whole. While the damage already done in individual cases may be comparatively small, it is continuing, and inevitably must increase as lands become more valuable and demands for various uses arise.

The following language of the court in Turner v. Hart, supra, is appropriate here:

“In view of the practical destruction of 300 acres of land or over, be its value what it may, and the consequent, and weekly, and perhaps daily, recurring injury to each of the complainants, for which they severally would have a right of action, presenting a multiplicity of suits and vexatious litigation, it appears to us to be just and equitable that defendants should be decreed to abate and remove the top of their dam so as to lower the structure 12 inches, and that they should perform such decree on or before the 1st day of December next, and that they should be enjoined from raising the water at their said dam so as to cause the water to set back and overflow the lands of complainants, or either of them, or to such height as will cause the water to set back and percolate through the soil of complainants, or either of them, to a greater extent than was customary or usual prior to the time repairs were made upon said dam in 1881.”

We think this case is in line with, and governed by, the principles involved and decided in A. P. Cook Co. v. Beard, 108 Mich. 17 (65 N. W. 518); White v. Forbes, supra; Turner v. Hart, supra; Miller v. Bank of Belleville, supra; and Sheffield v. Hydraulic Co., supra.

It is finally urged in behalf of defendant that, in any event, the form of decree is such that it should be modified to determine and specify the head of water to be carried at the dam, and the court should direct a suitable mark to be established and set at the dam to indicate the same. .

We are not satisfied that the physical conditions are such as to render any modification necessary to a proper understanding and execution of the decree; although it is possible that a slight confusion may arise in seeking to harmonize the different paragraphs of the formal decree as drawn, for the reason that in one paragraph it is required that the wasteweir and flashboards in the dam shall be placed not higher than 24 inches below the height at which the cement floor, or sill of said wasteweir or dam was constructed and maintained by defendant on the 7th of October, 1910; and another paragraph seems to provide that the water in the millpond formed by said dam shall be maintained at the same elevation. The decree should be so construed, and if necessary modified, that the defendant shall have the benefit of the full head of water that would naturally flow over the crest of the dam or weir reduced to the height specified in the decree.

The decree of the trial court is confirmed, with costs in favor of the nine prevailing complainants, treated as one in taxation thereof.

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


text:
    J. B. MILLET CO. v. ANDREWS.
    1. Fraud — Rescission—Evidence—Opinions.
    A notice of defense attached to defendant’s plea, in an action of assumpsit _ on a contract to purchase a set of books and a vacant lot on installments, alleging that plaintiff’s agent represented that the lot was in a suburb of New York city, that it was easy of access by steam and trolley lines, that only eight lots had been set apart for the city of which defendant was a resident, and seven had been sold to desirable customers, that the lots were valuable and rapidly increasing in value, charging, further, that the land was, in fact, difficult of access, not in a suburb, and worthless, and defendant signed the contract relying on the representations of plaintiff’s agent, and on discovering their falsity rescinded the agreement, sufficiently alleged the defense of fraud.
    2. Same — Facts Stated.
    Plaintiff’s claim that the statements made by the agent amounted to no more than puffing and did not constitute fraud was. untenable.
    3. Same — Evidence—Pakol Evidence.
    Testimony tending to prove fraud as a part of the inducement to enter into a contract is admissible in evidence to impeach the validity of the contract, and is not subject to the objection that parol evidence to vary or contradict its terms is incompetent.
    4. Same — Evidence oe Similar Transactions.
    Testimony relative to similar representations and statements made to a witness by plaintiff’s agent about the same time that the parties executed the contract, held, competent to show intent.
    5. Same — Delay—Laches.
    Where defendant gave notice of rescission soon after the contract was executed, stating his reason therefor to be because the binding of the books was unsatisfactory, and, subsequent to the commencement of an action against him, discovered the falsity of representations made to him by plaintiff’s agent, and filed a plea setting up fraud as a defense, he was not barred by laches from the right to rescind. ‘s
    6. Same — Instructions to Jury.
    Plaintiff was not prejudiced and had no ground to complain . of the charge of the court which advised the jury that the contract on which action was brought was valid and enforceable unless defendant established fraud by a preponderance of the evidence, that his own testimony alone was not sufficient to prove fraud, instructing the jury further that the contract was executed and if they found for plaintiff the verdict should be for the amount named in the writing.
    Error to Muskegon; Barton, J., presiding.
    Submitted January 13, 1913.
    (Docket No. 86.)
    Decided May 28, 1913.
    Assumpsit in justice’s court by the J. B. Millet Company against Willis W. Andrews on a contract in writing, specially declared upon.. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      R. J. Macdonald (William H. Simpson, of counsel), for appellee.
   Steere, C. J.

The plaintiff is a corporation organized under the laws of New Hampshire, and, according to its letter heads, “publishers,” located at Boston, Mass. In July, 1911, it brought suit in justice’s court for the county of Muskegon, Mich., on the following written order:

“Date 10 — 27—10.
“J. B. Millet Company,
“120 Boyleston street, Boston, Mass.:
“Please deliver to me one complete set (12 vols.) of Spofford’s ‘Historic Characters and Famous Events,’ in red buckram binding, for which I agree to pay you $48.00. Title of said books to remain with J. B. Millet Company until paid for in full.
“[Signature] W. W. ANDREWS, “[Residence] 157 Fourth street.
“Business address, 9 and 11 Second street, city of Muskegon, State of Michigan.
“Received on account $4.00.
“$4.00 per month.
“J. W.
“This order is unconditional and irrevocable, and no promises or representations have been made to me other than expressed herein. Make first, or cash payments, to agents; remaining payments to us or our representatives.
“In consideration of the payment of $48.00 under the terms specified in the above agreement, we agree to deliver to Willis W. Andrews, a warranty deed, free of all cost, for a building lot 25x100 feet,, situated at Middlesex Downs, Englishtown, N. J.
“It is guaranteed that these lots are high and dry and free from swamps and wet land.
“J. B. Millet Company,
“Per John Waters.”

This order was obtained from defendant by one John Waters, an agent of plaintiff’s, who approached defendant in Muskegon on the 27th day of October, 1910, and interested him by first introducing a real estate proposition claiming that he represented certain property in a suburb of the city of New York, owned by a company which was preparing to institute a campaign of selling lots to wage earners and salaried people who, by reason of their circumstances, were living in and around New York in tenements; that preparatory thereto some lots were being sold in certain cities of the West to select customers; that eight lots had been assigned to the city of Muskegon, seven of which had already been sold to desirable parties, and he now offered to defendant the last one as he was obliged to leave Muskegon that night. He represented that the lots were easily accessible and could be reached from New York City by steam and trolley lines in 40 minutes; that their value was rapidly increasing, and within a very short time they would have greatly appreciated. In the course of the conversation he produced a blueprint plat of the addition which he called “Middlesex Downs,” showing a railroad seemingly running diagonally across the plat. On this plat appeared a place marked Englishtown on one side of the railroad, and, Waters stated, Middlesex Downs, lying adjacent on the other side of the railroad, was within the corporate limits of Englishtown. After he had talked some time in regard to this real estate, arid defendant, becomirig interested in the proposition, was inclined to give it favorable consideration, Waters stated that the lots about which he had been talking could only be secured in connection with a set of books published by plaintiff, which he was also handling. After some further discussion defendant, relying on the representations made to him as to the lots, concluded it was a good investment and signed the order above given, paying thereon $4. He testifies that the land proposition only interested him, and the statement relative to the lots was the inducement which led him t<? sign the order.

In due time defendant received a communication from plaintiff, dated November 9, 1910, acknowledging receipt of the order, being in part as follows:

“We beg to acknowledge receipt of your order for one set of Historic Characters and Famous Events, purchase price $48, together with a building lot in Middlesex Downs property, for which we inclose a certificate.”

The certificate stated that on payment of $48 for the set of books plaintiff would give defendant free of further cost “a warranty deed of one building lot 25x100 feet, situated at Middlesex Downs, English-town, N. J. Land guaranteed to be high and dry and free from swamps and wet land.” Some time later defendant received the set of books referred to, cloth bound, 12 in number. After examining them he wrote plaintiff a letter on December 8, 1910, saying:

“The books recently ordered arrived a few days ago while I was out of the city. I am somewhat disappointed in them, as the binding is not up to my expectations. Have concluded that I would prefer to cancel the contract, and of course I realize that I will lose the four dollars already paid by so doing.
“Kindly advise me whether I shall return books to you, or what disposition you wish to make of them.”

In answer to a letter of plaintiff’s advising that it proposed to draw upon him, defendant stated that it was useless to do this as he would not honor the draft; that he had notified it on December 8th he preferred to cancel the contract and did not now intend to carry it out; also advising the plaintiff that the books were there in as good condition as when received, and suggesting that it order them returned and deliver up the contract. In reply to this plaintiff wrote defendant a letter of some length, in part as follows:

“This contract of yours was purchased outright from our agent just as we might have bought your promissory note; furthermore the books are in every way equal to the sample shown and were sold to you at the regular catalogue price. * * * You may or may not consider that the books are worth $48, but that is not the point. They were sold to you at the regular price and you agreed to pay $48 for them, which is the only point involved.
“Our hold upon you is based upon the contract in question, and that hold we can enforce through legal process, if necessary.”

Inclosed with this letter was a report, or legal opinion, made by certain attorneys as to the validity of the contract, which plaintiff advised defendant to read.

It is the claim of defendant that the contract or order signed by him is void because he was induced to sign it by deceit, misrepresentation, and fraud; that he took no particular interest in the books offered, and did not care for them, only considering the proposition by reason of Waters’ representations as to the desirability of the lots, which would have been a satisfactory purchase at the price proposed if those representations had been true; but that they were in fact false; that Middlesex Downs, so called, when traced out and finally located, proved to be a tract of land mostly swamp and unimproved, located in New Jersey about 68 miles from New York and three miles from a little village called Englishtown; that lots in said tract were then valueless as such, and had no prospective value; that there was no railway service between New York and said land, which was a remote, low, wild, and worthless swamp, excepting a small portion which was sandy and poor. In confirmation of the falsity of the representations made by Waters, a witness named Banninga, who resided in Muskegon and was engaged in the real estate business, testified:

“I first learned that the plaintiff had a deal with this man about January, 1911. I was in New Jersey on the 2d day of August, 1911. I knew that Mr. Andrews had a suit with this company then. I went to this land by electric line to Newark, N. J., from New York City. I left in the morning; then, going to Newark, N. J., there took a train for Jamestown Junction, on steam road; then took a freight line to Englishtown, arriving there at 2:05. There was a wait at each junction, at one place 2 hours, and another place 2% hours. I then went by horse and carriage to Middlesex Downs; it was from 3% to 5 miles from Englishtown, a sandy road without any improvement whatever. English-town is a small village of about 350 inhabitants, although they claim about 600. It is 69.7 miles from New York. There is no electric line from New York to Englishtown, or to Middlesex Downs, nothing nearer than Trenton, N. J., 25 miles distant. There is no town nearer to Middlesex Downs than English-town. The only way from Englishtown is by carriage. Middlesex Downs, according to the signs out there, is ■a tract of land I should think about 240 or 300 acres and fenced in by a rail fence. About one-third of it is a field, and the balance is swamp with uncut popples on it. Here is a high knoll of about 45 or 50 acres, possibly 60, upon which stands an old farmhouse, built 75 years ago and in a dilapidated condition. This land is not staked. The only improvement is that on the trees and on the fence posts here and there are nailed up street signs, named after Presidents of this country, Monroe, Washington, and Adams. This field has been sown to rye, but the rye had been cut off that year. The soil is very light sand, and absolutely worthless for farming purposes. It is all woods and swamp until you get to this hill.”

Witness further testified that he had some knowledge of the value of land in and about New York; that Middlesex Downs in tracts 25x100 feet was absolutely worthless; that it was worthless as a whole or in fractions;

“Isn’t worth the taxes. * * * There was no indication of the laying out of a plat, nothing more than the nailing up of the signs. If it hadn’t been for these signs and the sign telling that it was Middlesex Downs and lots for sale, I wouldn’t have seen the lots at all. I think they said that they were to apply to 142 Broadway, N. Y., to buy these lots. I went there and couldn’t find any place where there was any lots for sale. The plaintiff’s name was not attached to that sign; it was some real estate firm in New York City; it was the same number that this man Waters told me where he came from.”

During the progress of the trial timely objections were made and exceptions taken to raise and save all questions now presented in plaintiff’s assignments of error, which center on the proposition that a verdict should have been directed in its favor because it is undisputed that defendant signed the contract sued upon and plaintiff had delivered the books and faithfully observed on its part all requirements of said contract. At the conclusion of the evidence plaintiff’s counsel moved the court to strike out all the testimony claimed to have been erroneously admitted and instruct the jury to render a verdict for $44, being the balance shown to be its due according to the terms of the contract. This motion was denied, and the question of fraudulent representations was left to the jury, resulting in a verdict for defendant of no cause of action.

It is the claim of plaintiff that all testimony offered by defendant as to representations made by Waters before or at the time of signing the contract, and all proof as to the falsity of such representations, are incompetent and immaterial and their admission was error; that the contract was in writing and should govern, and no testimony tending to change or vary the terms of the written contract was competent. These objections are stated more specifically as follows:

“Because said testimony by parol evidence tends to vary, alter, and contradict an unambiguous written contract between the parties; because it is an attempt and would have the effect to extend a written warranty by parol evidence; because defendant’s notice under his plea of the general issue is insufficient to warrant a defense on the ground of fraud and deceit; because the defendant, having entered into a written contract with the plaintiff upon the face whereof appears the words, ‘No promises or representations have been made to me other than as expressed herein’; and the plaintiff having acted under said contract and in reliance thereon, defendant is estopped from claiming that any such promises or representations were in fact made; and, if the defense of fraud and deceit was ever open to defendant, he has waived it by his laches in failing to rescind the contract and return the books to plaintiff within a reasonable time after he discovered the same.”

As to the sufficiency of defendant’s notice under his plea of the general issue, it is said the representations alleged are unimportant and cannot furnish a basis of defense, and that nowhere in the pleadings is it stated that defendant was deceived by such representations.

The notice is quite lengthy, setting forth, amongst other things, that the contract was for the sale of a certain set of books and one city lot situated in a suburb of the city of New York contiguous to said city, of easy, quick, and inexpensive reach by steam and trolley railways every hour in the day; that plaintiff represented falsely and fraudulently, for the purpose of deceiving defendant into buying a set of books and a city lot, that only eight of said lots were allotted to residents of Muskegon; that seven had been sold and the sale to defendant must be made at once, if at all, as the agent was about to leave the city; that said city lots were rapidly increasing in value because of their proximity to the city of New York, and that they could only be sold to persons purchasing books in the same transaction; that the representations in that regard were relied upon and were the inducement governing the mind of the defendant in making the contract sued upon. Notice is given that upon the trial defendant will prove facts, which are stated in detail, absolutely to the contrary of the representations plaintiff is alleged to have made, and show that such representations were in fact false, untrue, and fraudulent; that defendant subsequently learned they were false, repudiated the contract, and offered to return the books which plaintiff had sent him, making no claim for the $4 which he had already paid.

The notice, taken as a whole, makes very plain defendant’s claim that he relied upon and believed a material statement of facts which was untrue; that he was deceived thereby and thus induced to sign the contract sued upon; that he was not then in a position to investigate as to the truth or falsity of such statement, and was led to believe that he must act promptly or the flattering opportunity to secure desirable property in close proximity to New York at a low price would be lost to him. The claim that these alleged false statements were no more than the expression of an opinion, or the ordinary “puffing” used by salesmen generally, is not tenable. Certain of them are distinct statements of physical facts and past events to which opinion and conjecture have no application within the meaning of the authorities relative to salesmen lauding their wares.

Plaintiff’s assignment of error and argument, in the main, are founded on the well-settled rule of law that parol evidence which tends tq vary, alter, extend, or contradict an unambiguous contract in writing between the parties is incompetent. Many authorities which are clear and unquestionable are cited in support of that doctrine, and it is contended that all testimony as to representations made by Waters at the time or before the order was signed, and as to the truth or falsity of such representations, was therefore inadmissible. Assuming that the contract sued upon was valid, this contention is sound; but the issue towards which such evidence was directed was the existence of a valid contract. It is claimed by the defense that the contract declared upon was void by reason of fraud in its inception, and the testimony objected to was introduced to prove the fraud. We think it was admissible on that issue and for that purpose only. If a fraud vitiating the contract was not shown, such testimony could not be considered further, and the written contract must speak for .itself and control the rights of the parties.

In the case of Phelps v. Whitaker, 37 Mich. 72, involving a written order for a windmill, it was said:

“The representations by Finch, and those contained in the printed circular, made to and shown defendant, during the negotiations for the sale, and which resulted in the order being given, were clearly admissible in evidence, and the written order of defendant did not constitute such a contract in this case as would exclude this evidence. Every principle, both of law and justice, should hold a party bound by, and responsible for, the representations, whether oral or written, which he holds out, and relying upon which a party gives an order, as in this case.”

In Peck v. Jenison, 99 Mich. 326 (58 N. W. 312), involving a written order for a cash register, which defendants afterward refused to accept and pay for, the court said, in affirming a judgment for-defendants, discussing the matter of oral representations and the trial court’s instructions relative to rescinding the contract by reason of them :

“It is contended by counsel for plaintiff that' the court was in error in these instructions, on the grounds: •
“That the contract provided that the order should not be countermanded, and also that 'all claims for verbal agreements not embodied herein are waived.’ It is said that the testimony given, and the instructions of the court thereunder, changed the terms of the written contract, and therefore the testimony was not admissible and the charge of the court was erroneous. The testimony was not offered or received for this purpose, and the court did- not submit the case to the jury upon that theory. The claim was that the order was procured by fraud, and, if so, the defendants would have the right to rescind on that ground.”

In Lyon v. Lindblad, 145 Mich. 588 (108 N. W. 969), involving a written agreement for purchase of certain jewelry, which the purchaser refused to accept and offered to return, it was said:

“The evidence to show fraud and misrepresentations in the sale was properly received, as was also the evidence tending to show the character and quality of the goods by expert witnesses.”

Defendant was allowed to introduce evidence by another witness of similar representations and inducements made to him by Waters when soliciting his order in Muskegon at about the same time, and this is assigned as error. In case of fraud a wide range of examination is allowed, and we do not think this examination went beyond the scope of inquiry recognized. In Stubly v. Beachboard, 68 Mich. 401 (36 N. W. 192), it is said:

“The question before the jury was, Were these things true which plaintiff claimed; had the defendants knowledge of the fact that all these lands were worthless, and the mortgages and notes no better than blank paper upon which they were written? We think the McCarl case was competent to show them engaged in a similar transaction with other parties about that time for the purpose of showing their fraudulent intent.”

In Cook v. Perry, 43 Mich. 623 (5 N. W. 1054), it is held that in an. action for fraud evidence is admissible to show defendant made the same representations to others, after the fraud complained of, as tending to identify the agency by which the fraud was perpetrated and show that plaintiff had not misunderstood or misrepresented the statements alleged to be fraudulent.

Plaintiff’s counsel contend that defendant is precluded by laches from interposing the defense of fraud under the rule of law that a buyer on receipt of goods must promptly return the same and give notice of rescission if he desires to avail himself of any reason he has therefor. It is in evidence that on receipt of the books defendant promptly gave notice of cancellation of the order and offered to return the property; that later, in response to notice from plaintiff of its purpose to hold him to the contract, he repeated his notice in emphatic terms, calling attention to his previous communication, again repudiating the contract; that he did not fully learn of the nature of Middlesex Downs and the extent of the imposition practiced upon him until this action was brought, when he entered his appearance, pleaded the general issue with notice of his special defense within the required time, and again tendered return of the books, in the notice under his plea. Plaintiff was early advised that defendant rescinded the contract and refused to perform on his part. We think under the facts shown he was not, as a matter of law, barred by laches from making the defense he relies on.

Error is assigned to the charge as a whole on the ground that a verdict should have been directed for plaintiff and against certain portions of the charge as unsound, prejudicial, and misleading. It is especially urged as error that the court “left it to the jury to construe the written contract and infer that the right of either party to a verdict depended upon the correctness of his theory as to whether the lot was a premium gift or otherwise”; the court having in the course of the charge stated it was the theory of plaintiff that the lot mentioned in the contract was a bonus or gift, while defendant claimed it was bought with the books and the consideration covered both. While this was perhaps immaterial, it did not, in the light of the charge taken as a whole, in any wise leave it to the jury to construe the contract. The construction of the contract was not an issue in the case, nor the issue submitted to the jury. By its terms it was unequivocal as to defendant — as strong and binding on him as legal phraseology could make it. If not vitiated by fraud, he had no defense. It sought, so far as possible, to exclude even that defense. The inherent infirmity underlying plaintiff’s case is not in the contract, but in the nature of the scheme to which the contract relates. It is indicated by the record that, to make this ingenious vending project successful, it must be pushed by prevarication. Though it may be difficult to conceive how the most inexperienced and simple-minded would err therein or be deceived thereby if the proposition was truthfully presented, yet, if such was the case and the order signed, the contract would be enforceable according to its terms.

The court throughout the charge recognized this contract as valid and enforceable unless obtained by deceit, false representations, and fraud, instructed the jury that they could only find in favor of defendant in case his claim of fraud was established by a preponderance of evidence, and specifically stated the amount of the verdict which they must render, as shown by the contract, if they found for plaintiff. Early in the charge the jury were instructed as follows:

“The contract was executed as is alleged by the plaintiff. „ Now, the defense being a special one, an affirmative defense, the burden is upon the defendant .to show to your satisfaction, by a reasonable and fair preponderance of the evidence, that he has been defrauded as he alleged.”

This principle was reiterated three times. Returning to that subject later, the court said:

“I charge you, gentlemen of the jury, that it is an elementary principle that he who imputes a transaction as fraudulent, which may or may not be so, is not sustained by his own assertion alone in case he is disputed, but he has the burden on him to make his allegation good by independent evidence, for he who alleges the transaction was fraudulent must prove it. He cannot be heard to say, after suit was brought in this case, that T will not pay you because in the original instance there was fraud,’ and by his own assertion prove that fraud. He must satisfy you by & fair preponderance of the evidence, exclusive of his own testimony, that such fraud existed at the time he alleges.”

If there is any error in this instruction it certainly is not prejudicial to the plaintiff. The only defense in this case which raises the one issue of fact is that the contract was void, at the option of defendant, because induced by false and fraudulent representations made by plaintiff’s, agent. We think the court clearly advised the jury that the case turned on that issue, instructing them as to the burden of proof, what facts were for them to decide, what rules of law they should bear in mind when passing upon the testimony, and what verdict they should render according to the facts as they might decide them. Considering the charge as an entirety, we find no reversible error.

The judgment is affirmed.

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


author: Moore, J. Ostrander, J.

text:
    PEOPLE v. FOURNIER.
    1. Municipal Corporations — Saginaw- Charter — Constitution.
    Pursuant to the provisions of the charter of the city of Saginaw empowering the common council to make and enforce such ordinances not inconsistent with the State Constitution and statutes as it may deem the public safety and welfare to require, the common council is authorized to enact an ordinance establishing a hoard of examiners for stationary engineers, and providing for a license fee and certificate of the qualifications of such licensed engineers. '

      2. Constitutional Law — Legislative Functions — Delegation.
    Legislative powers are not delegated by an ordinance vesting a discretion in a board of examiners to determine tbe qualifications of applicants for license as stationary engineers.
    McAlvay and Ostrander, JJ., dissenting.
    Error to Saginaw; Gage, J.
    Submitted November 15, 1912.
    (Docket No. 138.)
    Decided May 28, 1913.
    Joseph Fournier was convicted of violating an ordinance of the city of Saginaw providing for the licensing of stationary engineers.
    Affirmed.

      A. Elwood Snow, for the people.

      Snow & Snow and George W. Weadock, for respondent.
   Moore, J.

The following statement of facts is taken from the brief of counsel for respondent:

“The defendant is the engineer at the plant of Thomas Jackson & Co., Limited, a manufacturing establishment, and at the time of the trial had been so employed for five or six years. He is charged with violating an ordinance of the city of Saginaw, entitled ‘An ordinance to create a board of examiners for stationary engineers, and to provide for the licensing of stationary engineers in the city of Saginaw.’ The cause originated in the recorder’s court, and, upon conviction of the defendant, an appeal was taken to the circuit court. The cause came on for trial, and after faking the testimony the court instructed the jury to return a verdict of guilty, which was done. It is conceded that no engineer’s license has been issued to the defendant, and that he has never presented himself to the board of examiners or made application for such license. There is little question of fact in the record, and the only question involved is the validity of the ordinance. If the ordinance is valid, the defendant is guilty as charged in the complaint and warrant. At the conclusion of the proofs in the cause, counsel for the defendant made the following motion, which briefly sets forth the defendant’s contention with reference to this ordinance, viz.:
“ T move the court to discharge the defendant for the reason that the ordinance under which he has been arrested and sought to be convicted is unconstitutional as being in conflict with the Constitution of the United States, amendments 4, 5 and 14, and in conflict with the Constitution of the State of Michigan, which would be section 26 of article 6 — at least that, and perhaps others — because the charter of the city of Saginaw does not grant authority or authorize the ordinance in question; that whatever provision is in it was delegated to a board of examiners, and the common council did not fix the qualifications or conditions under which thei applicant was to be examined; that that power was delegated by the common council to the board and is therefore illegal and void; that the ordinance is indefinite, contradictory, and conflicting; that it is unreasonable, tyrannical, and absolutely without any qualification that recommends it as a legal or valid instrument or binding in any way upon this defendant; and, for another reason, which is this, that no ordinance is valid unless it secures or tends to secure the purpose for which it was enacted, and that this ordinance does not do that.’”

If the common council has authority to pass the ordinance, it is under the general welfare clause of its charter, which concludes as follows:

“And in addition to all other powers hereinbefore granted, may make and enforce all such other and further ordinances not inconsistent with the Constitution or the general laws of the State as they shall deem the public safety and welfare of said city to require.”

We quote only so much of the ordinance as is essential to an understanding of the case presented:

“Sec. 2. Any person desirous of being employed to take charge of or operate any steam engine or steam boiler or other steam generating apparatus except private dwelling houses and all pressure boilers for heating purposes, operated by a return gravity system, within the corporate limits of the city of Saginaw before taking charge or operating same, shall first apply to said examiners for a blank application which shall have been prepared by said examiners for stationary engineers; such applicants shall then apply to the said examiners to be examined for a license touching his qualifications for such employment, and if said examiners after having made an examination shall have found said applicant possessed of the necessary qualifications of said employment, they shall give said applicant a certificate to that effect. On presentation of such certificate to the city treasurer and on payment to the city treasurer of two dollars for the first issue of a license, and one dollar for each subsequent issue thereof, and upon payment to the treasurer of this fee said examiners shall issue to said applicant a license authorizing such applicant to take charge and operate a steam engine or steam boiler or horse power, subject to his qualifications for a period of one year: Provided, however, that said examiners shall issue no such license to any applicant who shall not have had at least two years’ practical experience in said employment as assistant engineer, oiler or fireman, and provided further, that any person who has been three years or more consecutively employed at any one plant, as an engineer, may apply in writing for a license to said examiners, and upon paying the regular license fee, may obtain a special license authorizing him to operate said steam plant.
“Sec. 3. Any engineer or person desiring to be examined in order to obtain a license for a larger horse power than his previous license calls, for, may do so at any time after the expiration of six months from date of said license, by standing a satisfactory examination and the examiners shall issue to said applicant the license he applies for. It shall be unlawful for any person or persons to take charge of or operate any steam engine, boiler, or other steam generating apparatus, except boilers and engines used in marine service, and locomotive boilers and engines used in transportation and in private dwelling houses, and as herein provided in section two of this ordinance, without having a license to do so as provided in said section two, which license shall be exposed to view in a conspicuous place in the room containing the boiler or engine of which such person is in charge or operating.”

Nearly all of the questions involved here were presented in the case of City of St Louis v. Manufacturing Co., 139 Mo. 560 (41 S. W. 244, 61 Am. St. Rep. 474), where it is said in the opinion:

“Nothing is more common than for the proper men or boards to be appointed whose duty it is to examine applicants for licenses to various avocations or professions, and the fact that some degree of discretion is necessary in order properly to examine the qualifications of the applicants, and to'discharge the duties of examiners, has never before been esteemed the delegation of legislative power. Such ordinances and examinations thereunder are in the nature of police functions. In St. Louis v. Knox, 74 Mo. 79, a similar ordinance was held valid, requiring application for a license for the sale of horses, etc., to be made through the board of police commissioners.
“So, also, in St. Louis v. Weitzel, 130 Mo. 600 (31 S. W. 1045), a similar ordinance was upheld which required that an applicant to the collector for license to haul garbage should first furnish to such collector a certificate of a certain character from the board of health.
“Nor is it true that in the case at bar the granting or withholding of such license rests in the whim or caprice of the board of engineers, since the ordinance in express terms provides that ‘no person possessing such qualifications shall be refused a license/ Even without such provision, if the boai-d of engineers abused its discretion and refused without reason to make the appointment, mandamus would lie to compel it to perform its duty. St Louis v. Weitzel, supra.
“Numerous instances occur in our statutes where physicians are required to be examined before being licensed (R. S. 1889, § 6871) ; where lawyers must be examined before obtaining license; dentists (section 6889) ; druggists (section 4614); embalmers (Acts 1895, p. 174, § 6).
“In relation to the licensing of dentists, this court recognized the validity of the statute. State, ex rel. Flickinger, v. Fisher, 119 Mo. 344 (24 S. W. 167, 22 L. R. A. 799).
“With regard to doctors, this court has sustained the legal force and effect of the statute. State v. Hathaway, 115 Mo. 36 [21 S. W. 1081],
“We take judicial notice of the dangers incident to the operation of steam engines and boilers when in inexperienced and unlicensed hands, and have no doubt as to the power of the city to take such measures as have been taken to provide by ordinances for the public safety. Such ordinances as the aforesaid merely prescribe regulations for the orderly conduct of a very necessary, and, if neglected, a very dangerous business in the large centers of population.”

See, also, McQuillin on Municipal Ordinances, p. 653; McDonald v. State, 81 Ala. 279 (2 South. 829, 60 Am. Rep. 158); In re Alexander, 167 Mich. 495 (133 N. W. 491).

The conviction and judgment are affirmed, and the case is remanded for further proceedings.

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

Ostrander, J.

(dissenting). Dissenting from the conclusion reached by Mr. Justice Moore, I find two reasons why the conviction of respondent should be set aside and he be discharged from custody. There is involved not merely the licensing of one engaged in a business, trade, or profession, the regulation of a business or calling, and the exercise of administrative discretion; there is also involved a determination of the status of a citizen who desires to pursue, as he has done for five or six years, his calling as a stationary engineer. Assuming that the legislature, in the exercise of the police power, may determine the qualifications of one desiring to pursue the calling, it has not exercised the power. It has not delegated its exercise to the common council of the city of Saginaw, in that portion of the charter relied upon by the people, which is the general welfare clause thereof. In other portions of the charter, power to grant licenses is expressly conferred. In no portion of it is there, expressly or by necessary implication, conferred power to determine the qualifications of stationary engineers, or of any others engaged in professional or mechanical pursuits. This is the first reason. The second reason is that, assuming it has the delegated power to prescribe the qualifications of those engaged in mechanical pursuits or callings, the common council has done no such thing. The local legislation (ordinance) does not purport to fix the qualifications of an engineer. It requires one who wishes to pursue the calling to be examined by a board, and, if the board finds him possessed of the necessary qualifications, to so certify. With such a certificate, a license may be procured. The only evidence of fitness prescribed is that the applicant shall have had at least two years’ practical experience as assistant engineer. The whole subject of necessary qualifications is confided to the board of examiners. And yet this is the vital thing, the essence of the attempted regulation. I assume that courts may not take judicial notice of what are the necessary qualifications of a stationary engineer, and, if they may not do so, by what standard will a court determine whether such a board of examiners has acted arbitrarily, or fraudulently? By what standard can it be determined whether the regulation is a reasonable one? The citizen must find limitations upon his right to pursue a calling in legislation, which means in some rule or rules established by legislative authority. If the limitation relates to necessary qualifications, they should be stated. Those charged with ascertaining whether he measures up to the standard, and he himself, would then have their rights and duties fixed by law, as they should be. The reasonableness of the regulation and the conduct of examiners could then be tested in the courts. It is needless to say that the common council of Saginaw can delegate no legislative power to a board of examiners.

McAlvay, J., concurred with Ostrander, J.


author: Kuhn, J.

text:
    SMITH v. CHASE & BAKER PIANO MANUFACTURING CO.
    1. Frauds, Statute of — Employment—Master and Servant— Void Contracts.
    A contract of employment for three years as superintendent of defendant’s factory, not In writing, was void under 3 Comp. Laws, § 9515 (4 How. Stat. [2d Ed.] § 11399, subd. 1), since it was not to be performed within one year.
    2. Same — Contracts—Compensation of Servant.
    Under such void contract, the hiring could not be treated as a hiring for or by the year, and plaintiff could only recover on it so far as it was performed although plaintiff had entered upon the third year’s employment at the time of his discharge.
    3. Pleading — Contracts—Implied Contracts.
    Having declared on a special contract, shown by the evidence to be void, plaintiff, who relied thereon, was not entitled to recover on an implied contract.
    Error to Oakland; Smith, J.
    Submitted April 11, 1913.
    (Docket No. 53.)
    Decided May 28, 1913.
    Assumpsit by John L. Smith against the Chase & Baker Piano Manufacturing Company on a contract of hiring. Judgment for plaintiff. Defendant brings error.
    Reversed.

      F. H. & G. L. Canfield, for appellant.

      Fred A. Baker, for appellee.
   Kuhn, J.

The plaintiff brought suit against the defendant to recover installments of salary for the months of May and June, 1912, which he claimed as superintendent and manager of the defendant’s factory at Holly, Mich., under a parol contract of employment made February 1, 1910, for at least three years from its date. The declaration contains a special count and the common counts, and the allegations with reference to the agreement in the special count are as follows:

“And the plaintiff avers that thereupon, to wit, on the 1st day of February, 1910, the said defendant entered into a special contract with plaintiff, in and by which contract it was mutually agreed that the plaintiff should become and be for at least three years the superintendent and manager of the piano factory of the defendant in Holly as aforesaid at an annual salary of $5,000 payable in monthly payments; that the plaintiff agreed to perform the duties of superintendent and manager of said factory for the period of three years, and, in consideration of such promise by the plaintiff, the defendant agreed to pay him an annual salary of $5,000 payable in monthly payments, to wit, at Holly, in said county of Oakland.”

The plaintiff was'the only witness sworn upon the trial, and stated that the contract of employment was made by.him with Jacob Heyl, the president of the defendant company. The following is from his testimony on direct examination:

“Q. What was said about your employment?
“A. Then I agreed to come into his employment and leave the Hobart M. Cable Company for not less than three years and at a salary of $5,000 a year.
“Q. How paid?
“A. Monthly.
“Q. What did he say?
“A. He agreed to that proposition.
“Q. He agreed to that?
“A. Also, I made a proviso he should give me par for my stock at the end of that time- when I was leaving the company.
“Q. As I understand it you were to take your stock out of the Hobart M. Cable Company?
“A. Yes, sir.
“Q. And put it in this company?
“A. Yes, sir; $25,000 of cash turned over.
“Q. And you were to remain there, you were to have employment for three years?
“A. Not less than three years.”

On cross-examination he testified as follows:

“Q. As I understand, Mr. Smith, this contract was made at an interview with Mr. Heyl, and was entirely in words ?
“A. Yes, sir.
“Q. There was no writing?
“A. No, sir.
“Q. You have stated to us the details of that contract?
“A. Yes, sir; what I call a gentleman’s agreement between him and I.
“Q. Recited it entirely, what you said and what he said?
“A. Yes, sir.
“Q. You remained at the factory in Holly until about the middle of May, 1912 ?
“A. Yes, sir.
“Q. And then left?
“A. Yes, sir; I was told my services wasn’t required any further.
“Q. And you were vice president and director of the company during that time?
“A. Yes, sir; I am still.”

He remained in the factory, until about the middle of May, 1912, and was notified on May 1, 1912, in writing, that he would be discharged, and a new superintendent was installed on or about the middle of May. His salary was paid up to May 1st, but the defendant now concedes liability for salary for the month of May.

The defendant offered no testimony, but under its plea, which properly raised the question, insisted that the contract pleaded and proved was void under the statute of frauds. The court directed a verdict for the plaintiff for $846.57, which was the salary for the months of May and June. The errors relied upon are stated as follows:

“(1) That the court erred in not instructing the jury that the contract pleaded and proved was void under the statute of frauds.
“ (2) That the court erred in directing a verdict for plaintiff for $846.57.
“(3) That the court erred in instructing the jury that plaintiff was entitled to recover salary for June, 1912.
“ (4 and 5) That the court erred in not instructing the jury that the plaintiff could only recover for the month of May, 1912, and no further.”'

The plaintiff, pending this appeal, died, and a brief has been submitted on behalf of the administrator of his estate.

The contract of employment sued upon and testified to being one not to be performed within one year, and not in writing, is void. 3 Comp. Laws, ,§ 9515.

It was the contention of plaintiff, and it is now urged, that the contract was a hiring by the year, and when the parties entered upon a new year, by the payment and acceptance of the salary, both parties are held to have made a contract for another year; and the cases of Scott v. Beecher, 91 Mich. 590 (52 N. W. 20); Sines v. Superintendents of the Poor, 58 Mich. 503 (25 N. W. 485), and Wright v. Iron Co., 129 Mich. 543 (89 N. W. 335), are relied upon. In these cases the original contracts were for a year and were held renewed by a continuation of the'employment or renting after the expiration of the term. In the instant case the original contract had not expired and was void. This was the contract sued upon, and the parties thereto were bound thereby so far as it was performed. Fuller v. Rice, 52 Mich. 435 (18 N. W. 204). The express contract being the one declared upon and relied upon, no recovery can be had on an implied contract. Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547); Shaw v. Armstrong, 88 Mich. 311 (50 N. W. 248) ; Swarthout v. Lucas, 101 Mich. 609 (60 N. W. 306) ; Ruttle v. Foss, 161 Mich. 132 (125 N. W. 790).

It follows that the judgment must be reversed and a new trial granted.

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


text:
    LAWSON v. JUDGE OF THE RECORDER’S COURT OF THE CITY OF DETROIT.
    1. Municipal Corporations — Ordinances—Moving Vans — Regulation.
    Draymen, truckmen, and drivers of moving vans being common carriers, are subject to regulation by the council of a municipality.

    2. Same — Reasonableness.
    An ordinance of the city of Detroit requiring drivers of moving vans, etc., to keep a record of the place from which and the place to which they transport household furniture, name of the owner, and to file weekly statements thereof with the police commissioner, is a reasonable regulation and supports a prosecution commenced under its provisions.
    3. Same — Common Carrier — Words and Phrases.
    A common carrier is one who undertakes for hire to transport the goods of such as choose to employ him, from place to place.
    4. Same.
    In determining the reasonableness or unreasonableness of ordinances, the court will consider all the circumstances and conditions of the particular city, the objects sought to be attained, and the necessity which exists for regulation; as provisions which may be proper for a large town might in a smaller place be oppressive or absurd.
    Mandamus by Richard I. Lawson, corporation counsel of the city of Detroit, against William F. Connolly, judge of the recorder’s court of said city, to compel respondent to vacate an order dismissing certain proceedings for the violation of á municipal ordinance.

      Submitted February 18, 1913.
    (Calendar No. 25,493.)
    Writ granted May 28, 1913.

      Thomas P. Penniman (Thomas J. Mahon, of counsel), for relator.

      Lodge & Brown, for respondent.

      On the question of character as common carriers of persons or corporations other than express companies that neither own nor operate transportation routes, but undertake to transport goods, see note in 42 L. R. A. (N. S.) 902.
      As to whether a cartman, etc., is a common carrier, see note in 21 L. R. A. (N. S.) 188.

   Kuhn, J.

Mandamus is sought to compel respondent to entertain a complaint made for an alleged violation of an ordinance enacted by the city of Detroit regulating the business of public moving vans. The section of the ordinance in question is as follows:

“Sec. 6. Any public moving van driver shall be entitled to receive the compensation provided in this ordinance immediately upon the transportation of his load. Each driver shall keep a record of the place from and the place to which he moves the household furniture of any person and the person for whom the same was moved; and on Monday of each week he shall file with the police commissioner a statement containing every such transaction of the previous week. The blanks shall be furnished free of charge upon application to the city clerk.”

The respondent refused to entertain the complaint, holding the section void as an unreasonable regulation because it placed a burden upon the companies for which no compensation is provided and was an unwarranted interference with their business. The sole question before us is whether the city of Detroit, by virtue of the police power, had the authority to enact the ordinance.

Persons who are engaged in the business of dray-men or truckmen for transportation of goods and merchandise within a city are held to be common carriers. A common carrier has been defined as “one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place.” 6 Cyc. p. 365. The business of a public moving van company clearly comes within this definition, and there can be no question that they carry on their business subject to the rules governing common carriers. The business being public in character, it has been repeatedly held by the courts that it is subject to reasonable public regulation.

“In the exercise of this control, it has been customary in the United States from its first colonization to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, and other similar employments, and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold.” Munn v. Illinois, 94 U. S. 113.

The business of the companies being of a class of business subject to police regulation, a clear abuse of such power must be shown in order to warrant the courts in setting aside and declaring void the legislative act. Dillon, in his work on Municipal Corporations (5th Ed.),-vol. 2, § 599, referring to the power of the courts to review the reasonableness of the legislative requirements, says:

“But in determining this question the court will have to regard all the circumstances of the particular city or corporation, the objects sought to be attained, and the necessity which exists for the ordinance. Regulations proper for a large and prosperous city might be absurd or oppressive in a small and sparsely populated town, or in the country.”

In the case of City of Grand Rapids v. Braudy, 105 Mich. 670, 675 (64 N. W. 29, 31, 32 L. R. A. 116, 55 Am. St. Rep. 472), where an ordinance requiring pawnbrokers to deliver daily to the chief of police a statement of their transactions of the previous day was being considered, this court said:

“Courts cannot interfere with legislative discretion, and are slow to declare ordinances invalid because unreasonable, when the power to legislate upon the subject has been conferred upon the common council. The council’s discretion, and not the court’s, must control. In such matters the city authorities are usually better judges than the courts.”

In the same opinion, on page 676, the court said:

“There is nothing unreasonable in requiring such persons to keep a record of their purchases, and to furnish a statement thereof to the police department. This provision is no more unreasonable, and certainly is as essential for the protection of society, as the law regulating druggists, which requires them to record in a book the names of all persons applying for intoxicating liquors, the date of sale, the amount and kind of liquor sold, and the purpose for which the same was to be applied.”

Counsel for relator say:

“It is a well-known fact that, in large and populous cities, tenements and their occupants are often breeding places for infectious and contagious diseases; that many times, because of the ignorance or poverty, or even fear of the tenants, such conditions are concealed from the public health officers, thereby endangering the health not of one but of many. The vehicle owners that have practically a monopoly of transportation should not be heard to complain of an ordinance which will assist our public health officers in the great work of sanitation and disease suppression. If it be contended that as a result of the enforcement of this ordinance merchants will know the whereabouts of ‘dead beats’ and undesirable customers, we may answer that such an argument only demonstrates that the ordinance is as well in the interest of promoting the morals as well as the health of the community, both of which are proper subjects of the exercise of police power.”

This statement is criticised by counsel for respondent, and it is urged that it is absurd to claim that the provision is in the interest of either the public health, safety, or morals. While it may be problematical how much the public health, morals, or safety are subserved thereby, it does not seem to us that the requirements of the section are so unreasonable as to warrant the court in overruling the legislative determination and holding it void.

We are therefore of the opinion that the ordinance is valid, and the respondent is directed to entertain the complaint and proceed with the trial as prayed for.

Writ granted.

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