text:
    GARMAN v. HAWLEY.
    1. Wills — Vested Interests.
    A clause in a will bequeathing to a son a one-third interest in testator’s real estate, followed by a clause directing the executor to keep the real estate together until the youngest granddaughter should arrive at the age of 21 years, rendering the net proceeds to the devisees according to their shares, unless he should think it would be better for all the heirs to make an earlier division, and providing that, if any heir should die before the youngest granddaughter should arrive at the age of 21 years, leaving no child, then his share should be divided equally among the surviving heirs, does not give the son a vested interest.
    2. Same — Interest of Devisee.
    A mortgage of his interest in real estate under such will by the son, who dies, without issue, before the youngest granddaughter arrives at the age of 21 years, cannot be foreclosed.
    3. Same — Powers—Mortgage.
    The clause in the will providing that the executor should keep the real estate together, unless he should think it better to make an earlier division, does not empower him to direct or consent to a mortgage on the undivided interest of a devisee.
    Appeal from Van Burén; Carr, J.
    Submitted January 9, 1903.
    (Docket No. 26.)
    Decided March 5, 1903.
    Bill by Henry Garman against Harriett B. Hawley and others to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Reversed.

      Thomas J. Cavanaugh, for complainant.

      Lincoln IT. Titus, for defendants.
   Montgomery, J.

This is a proceeding in equity to foreclose a mortgage upon an undivided one-third interest in land which constitutes a part of the estate left by Moses S. Hawley at the date of his decease. The mortgage was executed after the decease of Moses S. Hawley by Miles G. Hawley, a legatee named in the • decedent’s will, and was also authorized by the executor named in the will. The provisions of the will which are material to the inquiry before us are as follows: After describing the testator’s real estate, the will proceeds:

“I will and bequeath to my only son, Miles G. Hawley, one-third of the above-described real estate; one-third of • said land to my daughter, Harriett B. Hawley; one-sixth to my granddaughter, Mary L. Stewart; and one-sixth to ■ my granddaughter, Jane M. Stewart.” °

Here follow bequests of personal property, and the will then proceeds:

“ It is my will, after the payment of my just debts, that the personal estate be divided, or sold, and the proceeds of the sale thereof be divided, between the foregoing heirs, as shall appear by this will to be their due, within one year from my decease.
“It is my will and wish that the said- above-described real estate be kept together by the executor of this my last will and testament, and the net proceeds be rendered from time' to time to said heirs according to their respective shares, until my youngest granddaughter, Mary L. Stewart, who is now fourteen years of age the 26th day of last September, A. D. 1892, shall become twenty-one yeárs of age, when the whole may be divided, or sold and divided, between the said heirs, according to their respective shares, as herein designated.
“Unless matters should so shape that the executor of this will should think or thinks it would be better for all the heirs herein named to make an eai'lier division, then in that case it shall be the duty of the executor to see the division legally and properly done, and to see that each and every heir get their true share, according to the rendering of this will. (The expenses of production deducted.) If any of said heirs shall die before thq youngest granddaughter shall become twenty-one years of age, leaving no child, then in that case his or her share be and become the property of the surviving heirs, and it is my will that it be divided equally among said surviving heirs.”

Before Mary L. Stewart reached the age of 21 years, Miles G. Hawley died.

The questions presented are two: First, whether Miles G. Hawley took a vested interest in the real estate, not subject to be defeated by his death before Mary L. Stewart attained the age of 21; and, second, whether the authorization of the mortgage by the executor binds the surviving heirs. We think both these questions should be answered in the negative. The complainant’s counsel, in contending that the estate vested in fee in Miles G. Hawley at the death of Moses S. Hawley, invokes the rule that the presumption is in favor of a vested estate, and the further rule that a grant over of an estate following a grant in fee is void for repugnancy. Conceding full force to these rules, neither presents a serious obstacle to the ascertainment of the testator’s intent, nor to effectuating it. The first clause above quoted is not in terms a devise in fee. Whether it is to be so treated depends upon the remaining terms of the will. By these terms it is made clear that (except in a certain contingency) the testator designed that the estate should be kept together until the granddaughter attained the age of 21, the legatees being paid the income merely; and that, in the event of the death of any legatee before that date, the share which would otherwise go to such legatee should be divided among the others. It is clear that no fee simple was intended. No power of disposition is given, and a contingent remainder is created as to each aliquot part. True, a somewhat broad power is given to the executor, but we cannot find in this an intent to create a fee simple. While the question is one of construction, and is not ruled by exact precedent, cases having a bearing are Fitzhugh v. Townsend, 59 Mich. 427 (27 N. W. 561); Plant v. Weeks, 39 Mich. 117; Matter of Cramer, 170 N. Y. 271 (63 N. E. 279); Glover v. Reid, 80 Mich. 228 (45 N. W. 91). See, also, article by Prof. Thompson, Mich. Law Review, vol. 1, page 427.

As before stated, a somewhat broad power is given to the executor. Did it give him authority to direct or assent to a mortgage of Miles G. Hawley’s interest, which should extend to and cover a specific aliquot part of the real estate ? Clearly not. The power was authorized only when the executor should think it best for all the heirs. And that power was a power of division, not a power to-authorize incumbrances.

The decree will be reversed, and the bill dismissed, with, costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    MICHIGAN CENTRAL RAILROAD CO. v. CHICAGO, KALAMAZOO & SAGINAW RAILWAY CO.
    1. Corporations — Contracts—Railroads—-Use of Side Track —Notice.
    Where the president of a paper company, without authority from the board of directors, executed a contract with a railroad company for the rebuilding and use of a side track to the paper mill, the occupancy and use of such side track by the railroad for one year gave the paper company construe tive notice of the terms of the contract.
    2. Same — Ratification.
    Where a paper company accepted the benefits of a contract of which it had constructive notice, but which it did not authorize its president to make, it will be presumed to have ratified the act of its president in making it.
    3. Same — Statute of Frauds — Performance.
    Where, in reliance upon a contract executed by the president of a paper company, a railroad company has rebuilt a side track to the paper mill, and used such track for one year, there is such a performance of the contract as will, in equity, take it out of the operation of the statute of frauds, and neither the authority of the president nor a ratification of his act need be in writing.
    4. Same — Notice—Grantee.
    A grantee of such paper company, having knowledge of the side track and its location and ownership, is charged with constructive notice of the railroad’s rights under the contract.
    5. Contracts — Side-Track Agreement — Mutuality—Right to Terminate.
    A contract giving a railroad company the right to maintain and operate a side track “for and during such time as the business is carried on for the accommodation of which said side track is constructed ” is not void for want of mutuality because it gives the railroad “the right to remove said track whenever, in its judgment, said business is not sufficient to justify it.”
    6. Same — Valid and Invalid Provisions.
    A harsh and inequitable provision in a side-track agreement, to the effect that the mill owner should assume all risk of damage to persons or property by reason of the use of the track, is no answer to an attempt to enforce other and valid provisions of the contract.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 9, 1903.
    (Docket No. 19.)
    Decided March 5, 1903.
    Bill by the Michigan Central Railroad Company against the Chicago, Kalamazoo & Saginaw Railway Company and the Kalamazoo Paper Company to enjoin interference with certain side tracks. Prom a decree dismissing the bill, complainant appeals.
    Reversed.

      H. ,H. Steivart (Ashley Pond and Henry Russel, of counsel), for complainant.

      Howard & Howard, for defendants.
   Carpenter, J.

Complainant appeals from a decree of the circuit court for the county of Kalamazoo, in chancery, dismissing a bill of complaint in which it seeks an injunction to prevent defendants violating rights which it claims by virtue of the following contract:

“This agreement, made this fourteenth day of April, A. D. 1898, between the Wolverine Paper Company, hereinafter, for convenience, called the ‘first party,’ and the Michigan Central Railroad Company, hereinafter called the ‘second party,’ witnesses:
Whereas, the first party has requested the second party to construct and lay a side track one and one-half miles east of Kalamazoo station, to be connected with a side track of the second partjq on the south side thereof, extending southeasterly from the point of connection with the main track of the second party eight hundred (800) feet, of which thirty (30) feet will be laid on land of the second party and about 770 feet on land owned or occupied and controlled by the first party, substantially as shown on the plan hereto attached and made a part hereof; and
“Whereas, the second party has consented and does hereby consent to construct said side track as requested by first party, upon the terms and conditions hereinafter men-. tioned, and to which the first party hereby assents and agrees to perform, as follows, viz.:
“The first party hereby grants to the second party the right to construct, maintain, and operate said side track, substantially as shown on the plan hereto attached and made a part hereof, upon the land owned or occupied and controlled by the first party as aforesaid, for and during such time as the business is carried on for the accommodation of which said side track is constructed.
“The ownership of said track shall be vested in the second party, and it shall have the right to use, without cost or charge therefor, the whole or any part of said track, for other business than that of the first party, when the same is not actually occupied by cars which are being loaded or unloaded by the first party; and the second party shall have the right to take up and remove said track and appurtenances from said premises whenever the business of the first party, for the accommodation of which the same is laid, shall be discontinued, or whenever, in its judgment, such business shall not be sufficient to justify it in maintaining said side track.
‘ ‘ That the second party will maintain said side track at its own expense, except that, in case the freight which the first party shall receive at or forward from said side track over lines of railroad owned or operated by the second party shall amount, during each year from the date hereof,, to less than one car load for each foot of said track laid on land owned or controlled by the first party, as aforesaid, exclusive of cars that may be handled by the second party in the way of switching and in connection with shipments over other railroads, the second party shall bear only such. proportion of the annual cost of maintenance of the part of said track laid upon land owned or controlled by the first party as the number of cars of freight, as aforesaid, bear to the number of feet of track laid upon land owned or controlled by the first party; and the first party shall pay the second party the balance of said annual cost.
“The first party shall not erect any structure, temporary or otherwise, over or above said track, at a lower level than twenty-two feet above the track rails, nor nearer to the sides of the rails than five feet, without the consent of the second party in writing; shall not permit any other railroad company to connect its track with the side track so constructed; shall exercise the greatest care in the use of said track, to prevent cars or other obstructions from getting out upon or too close to the main or other tracks of the second party; shall secure the safe closing and locking of all switches on land of first party, and use such means and care as will tend to avoid accidents of any kind; shall pay and indemnify the second party for all damage to cars or contents by fire originating upon the premises of the first party, and which shall not be caused by the engines or servants of the second party, while such cars and contents are upon said track for the use of or in connection with any business of or for the first party; and shall and hereby does assume all risk and liability for all loss, injury, or damage to property or persons, other than the property of the second party (except to cars and contents as hereinbefore provided), and other than persons in the employ of the second party, that may occur or be caused at any time by reason of the use of said side track, or by the men, engines, cars, or other means and agencies employed by the second party in the use of the same,' in connection with any business of or for the first party, whether the same be caused by negligence or otherwise. That the first party shall, at equal rates, give the second party the preference, and as long a haul as possible, on all competitive traffic to and from said side track.
“In testimony whereof, the parties hereto have caused these presents to be executed in triplicate, the day and year first above written.
“Wolverine Paper Co.,
“ By C. N. Chase, President..
“M. C. R. R. Co.,
“By R. H. L’Hommedietj.”

When this contract was made, complainant owned and maintained a side track to the mill and on the premises of the Wolverine Paper Company. It was contemplated by the parties that the side track contracted for should be constructed by making changes in the one already existing. Accordingly, complainant made these changes, and said side track was used, as agreed in said contract, until a short time before this suit was commenced.

On or about April 14, 1899, said Wolverine Paper Company sold its plant and part of its personal property to the Kalamazoo Paper Company, one of the defendants in.this suit. In the fall of 1900, defendant the Kalamazoo Paper Company, desiring to have part of its freight carried by its codefendant, the Chicago, Kalamazoo & Saginaw Railway Company, requested complainant to remove its track from the south side of the mill, and let the defendant railway operate from that quarter, or to enter into an arrangement by which the two railroad companies should occupy and operate complainant’s tracks jointly; and threatened, in case of refusal, to tear up and throw out said tracks, and let defendant railway in. At the time this threat was made, both defendants were taking action indicating a purpose to carry it into execution. Thereupon this suit was commenced for the purpose of securing an injunction preventing such proposed action. A decree was made in the court below dismissing the bill, and enjoining the complainant from interfering with the proposed action of defendants, unless it signified in writing an acceptance of the proposition from the defendant railway company to sell one-half its side track at actual cost, and use the same in common.

The only questions presented in this case relate to the validity and construction of the written contract heretofore quoted. Defendants urge:

(1) That the contract in question is invalid, because executed only by the president of a corporation, who had no authority from its board of directors.
(2) That the contract, even though binding upon the Wolverine Paper Company, is not binding upon its grantee, the Kalamazoo Paper Company, defendant in this suit.
(3) That the contract is void on its face for lack of mutuality.
(4) That the contract is not such an instrument as a court of equity will enforce.

Let us consider each of these objections separately.

Is the contract void because executed by the president, without authority from the board of directors, of the Wolverine Paper Company? For the purposes of this opinion, it may be conceded that the president had, by virtue of his office, no authority to execute this contract, and that the board of directors never authorized, nor by resolution ratified, his action. It appears, however, that immediately after its execution the contract was performed by complainant, and that.the Wolverine Paper Company enjoyed its benefit for about a year, and until the sale of its mill to the Kalamazoo Paper Company, defendant in this suit. Complainant’s occupancy and use of its track gave the Wolverine Paper Company constructive notice of the terms of its contract. Detroit, etc., R. Co. v. Brown, 37 Mich. 533. Having accepted the benefits of this contract, of which it had constructive notice, the corporation may be presumed to have authorized or ratified the act of its agent in executing it. Davies v. Steel Co., 6 App. Div. 166 (39 N. Y. Supp. 791); Pittsburgh, etc., R. Co. v. Bridge Co., 131 U. S. 371 (9 Sup. Ct. 770); Jacksonville, etc., R. Co. v. Hooper, 160 U. S. 514 (16 Sup. Ct. 379); Scott v, Railroad Co., 86 N. Y. 200; 2 Cook, Corp. § 716. The decisions of this court which hold that, by reason of the statute of frauds, such authority or ratification must be evidenced by a writing, have no application, for here there was such a performance of the contract as to take it, in equity, at least, out of the operation of the statute; and, this being a suit in equity, the equitable rights of the complainant will be protected.

Was the contract binding upon the Kalamazoo Paper Company, defendant herein ? According to the contract, the right was granted to complainant — ■

“To construct, maintain, and operate said side track, substantially as shown on the plan hereto attached and made a part hereof, upon the land owned or occupied and 'controlled by the first party as aforesaid, for and during such time as the business is carried on for the accommodation of which said side track is constructed. ”

It is urged that the business referred to is the business carried on by the Wolverine Paper Company, though it appears that the defendant the Kalamazoo Paper Company carries on substantially the same business in the same place, and, until a short time before this suit was commenced, had the benefit of the use of the side track under consideration. It is sufficient to say of this contention that we are pointed to and can find nothing in the contract supporting it. The business referred to is the business carried on at the plant in question. It is insisted that this contract is not binding upon defendant the Kalamazoo Paper Company, because it had no notice of the same until after it had made its purchase from the Wolverine Paper Company, and until a short time before this suit was commenced. It was, however, chargeable with notice, and did know, of the existence, location, and ownership of these tracks. It was bound to infer, from this knowledge, some arrangement between the complainant and its own grantor. If it wished to know what that arrangement was, it had only to inquire, and obtain that knowledge. Clearly, the facts were such as to charge defendant with constructive notice of complainant’s rights. Detroit, etc., R. Co. v. Broivn, 37 Mich. 533. Nor is there, as defendant contends, anything in the case of Pontiac, etc., R. Co. v. Reed, 130 Mich. 661 (90 N. W. 658), inconsistent with these views. Indeed, that case proceeded upon the theory that the contract made by his grantor bound defendant.

Is the contract void for lack of mutuality ? The contract gives complainant—

“ The right to take up and remove said track and appurtenances from said premises whenever the business of the first party, for the accommodation of which the same is laid, shall be discontinued, or whenever, in its judgment, such business shall not be sufficient to justify it in maintaining said side track.”

It is urged that, because complainant is given the right to determine, under certain conditions, when its track shall be removed, the contract is so lacking in mutuality as not to bind the defendant. Defendants rely upon Davie v. Mining Co., 93 Mich. 491 (53 N. W. 625, 24 L. R. A. 357), and other like cases, which hold that the courts will not enforce, nor permit damages to be awarded for the breach of, executory contracts which may be terminated at the will of one of the parties. These cases are clearly distinguishable from the case at bar. The proposition that one has no right to damages for the nonperformance of an executory contract which he may terminate at pleasure is entirely different from the proposition that he has no rights whatever in an estate terminable at his will, and which he has acquired by the expenditure of a large amount of money. By the contract under consideration, complainant acquired an easement. Taylor v. Navigation Co., 105 N. C. 484 (10 S. E. 897). After its execution the agreement was no more void for lack of mutuality than is a lease for a definite term, terminable at the option of the tenant. It was clearly the intention of the contract to grant complainant the right to maintain and operate its track “for and during such time as the business is carried on for the accommodation of which said side track is constructed,” with “the right to remove said track whenever, in its judgment, said business is not sufficient to justify” its maintenance; and this intention should be given effect, unless it contravenes some principle of law. We can discover no such principle. The case of Pontiac, etc., R. Co. v. Reed, 130 Mich. 661 (90 N. W. 658), is not in point. The contract there did not, as does the contract here, grant to the railroad company the right to maintain and operate its track “ during such time as the business is carried on for the accommodation of which said side track is constructedbut it did contain an express provision giving the railroad company the right to remove the track after three years, and it was held that the proper construction permitted the maintenance of the side track as long as the owner “should desire, and no longer; subject, however, to the right of the company to remove after the expiration of three years.”

It is insisted that there are some provisions in this contract so harsh and inequitable that the contract should not be enforced. As an instance of these provisions, reference is made to the clause in the contract whereby the paper company assumes all risk and liability for loss, injury, or damage to property or persons, other than the property of complainant and persons in its employ, caused by reason of the use of said track. We are not called upon in this case to enforce, or even to uphold the validity of, this provision. Its invalidity affords no answer to the attempt to enforce other, and, in our judgment, valid, provisions of the contract.

The decree of the court below is reversed, and one entered here for complainant in accordance with the prayer of its bill. Complainant will recover costs of both courts.

The other Justices concurred.


text:
    SCULLY v. DETROIT IRON FURNACE CO.
    1. Contract of Sale — Proposal—Acceptance.
    Plaintiff offered to buy 5,000 cords of wood of defendant. In reply defendant wrote that it would “proceed to get out wood ” for plaintiff, providing certain changes in terms, which it proposed, were made, and that the balance of the terms were entirely satisfactory. By subsequent correspondence the proposed changes, which did not relate to the amount, were accepted. Held, that defendant, by writing, “The balance of the terms are satisfactory,” contracted to deliver 5,000 cords of wood.
    2. Same — Breach—Offer of Compromise.
    An offer by plaintiff to accept less than the amount of wood contracted for upon certain conditions, which were not fulfilled, did not relieve defendant from liability for not delivering all the wood contracted.
    Error to Wayne; Donovan, J.
    Submitted January 13, 1903.
    (Docket No. 30.)
    Decided March 5, 1903.

      Assumpsit by Walter J. Scully against the Detroit Iron Furnace Company for the breach of a contract for the sale of wood. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Alex. J. Groesbeck, for appellant.

      Wells, Angelí, Boynton & McMillan, for appellee.
   Carpenter, J.

By correspondence, the parties to this suit made a contract, whereby the plaintiff agreed to buy wood from the defendant. Only 64If cords of wood, which was all that defendant could procure, was delivered to plaintiff. Plaintiff, being compelled to pay for other wood more than the contract price, brought this suit to recover damages, claiming that the defendant had agreed to sell 5,000 cords. The trial judge decided, as contended by defendant, that it had made no such agreement, and directed a verdict in its favor. To determine the correctness of this decision, we must examine the correspondence which constitutes the contract.

On the 6th of December, 1898, plaintiff wrote defendant as follows:

“Referring to my telephonic communication with your Mr. Black today, and my interview with Mr. Calkins here in the office, Mr. Calkins made me a price of $1.60 a cord, 128 cubic feet, for hardwood beech and maple, at least 75 per cent, hard maple, * * * to be * * * piled alongside the track at Gaylord, subject to my orders. * * * Under this arrangement, you can proceed to get the wood out, * * * to the amount of 5,000 cords, you to guarantee the delivery to me of such wood as is measured, inspected, and paid for, and requested for shipment on my order. Kindly advise me as soon as possible when you commence operations.”

In response to this letter, defendant wrote:

“In the main, the terms of your letter are correct; but we cannot guarantee that at'least 75 per cent, of the wood will be hard maple. As Mr. Calkins stated to you, in his judgment it would run about that. We will proceed, without further delay, to get out wood for your account, providing this point regarding the hard maple is mutually understood. We will guarantee delivery to you of all such wood as you have measured, inspected, and paid for at Gaylord, when requested for shipment, with the exception that we will not be responsible for loss by fire. * * * The balance of the terms of your letter are entirely satisfactory. ”

To this plaintiff replied on the 7th of December:

“If you will have the wood run as near 75 per cent, hard maple as possible, it will be satisfactory. In regard to piling the wood, I hope you will have the same piled in a nice high and dry place. * * * As the matter stands now, I will have to run the risk on the fire question.”

Defendant answered the foregoing on the 8th of December, as follows:

“In getting out wood for you at Gaylord, we will endeavor to have it as near 75 per cent, hard maple as possible. Our Mr. Calkins has returned to Gaylord, and I have directed him to get out the wood for your account as soon as possible. I have also instructed him as to the piling of it, etc., in accordance with the terms of your letter. ”

We think the trial judge erred in deciding that the correspondence did not obligate the defendant to deliver 5,000 cords of wood. It is true that the defendant, in accepting the plaintiff’s proposition, did not expressly promise to furnish any particular quantity. It is also true that defendant stated in its letter of December 7th that, if an arrangement was concluded, it would “proceed to get out wood for your account.” But we must treat the concluding sentence of the letter, “The balance of the terms of .your letter are entirely satisfactory,” as an assent to the proposition contained in plaintiff’s letter of December 6th, “to get the wood out to the amount of 5,000 cords.” By the contract proved by the correspondence, we must, therefore, hold that plaintiff offered to buy and defendant agreed to sell 5,000 cords of wood.

The case of Toomey v. Atyoe, 95 Tenn: 373 (32 S. W. 254), relied upon by the defendant, is not in point. There the contract obligated Atyoe Bros. & Co., mill owners, “to saw such logs into lumber as are by the party of the first part [Toomey] furnished on the sawmill grounds, to the amount of 1,000,000 feet.” It was said:

“Atyoe Bros. & Co. obligated themselves in that agreement to saw such logs into lumber as Toomey might furnish, ‘to the amount of 1,000,000 feet,’ if he should deliver so much; but he did not contract that he would in fact furnish enough logs to make that amount of lumber.”

In the case at bar, as already stated, defendant, by accepting plaintiff’s proposition, agreed to “proceed to get the wood out to the amount of 5,000 cords.”

On the 7th of March, 1899, in answer to a letter from defendant informing him that nothing like the quantity of wood looked for could be obtained, plaintiff wrote:

“I am somewhat disappointed at the nondelivery of the wood, but if he [defendant’s agent] is able, in the early spring, to give me a large quantity of wood ready for fall shipments, this will answer very nicely.”

Defendant claims that this language “shows clearly enough that, to his mind, there was no agreement in the letters such as is now claimed. ” If it were true that this did clearly indicate plaintiff’s mind that no such agreement was contained in the letters, it would not destroy said agreement, if it was, as we think, actually made. This language does not, however, clearly indicate that, in plaintiff’s mind, there was no such agreement. It is open to the construction that he will, under certain conditions, accept less than his contract rights. Inasmuch as defendant did not comply with these conditions, that letter seems to us to be entirely without significance.

Defendant insists that, while it is obvious from the letters themselves that it did not obligate itself to deliver 5,000 cords of wood, this intent ‘,‘is made more clear when we consider that, at the time of the correspondence, both parties knew that the quantity of wood which could be had was wholly uncertain, ” It is not contended that we can consider what only one of the parties knew for the purpose of determining the meaning of correspondence which we do not find to be ambiguous. Without, by any means, deciding that we have a right to consider what both parties knew, it is sufficient to say that such consideration would not affect our conclusion; for, according to plaintiff’s testimony, while he knew that the amount of wood which defendant could get out was uncertain, he had reason to believe that that amount would be, and that defendant could safely agree that it should be, 5,000 cords.

Judgment will be reversed, and a new trial granted.

The other Justices concurred.


text:
    MORIN v. ROBARGE.
    1. Pleading — Common Counts — Work and Labor — Special Contract.
    A party may recover under tlie common counts for work and labor performed under a special contract fixing the price of the labor, where the contract is fully performed except to pay for the work and labor.
    3. Evidence — Witnesses—Impeachment.
    Testimony by plaintiff, on rebuttal, of a conversation between himself and defendant’s witness, objected to on the ground that the question had not been asked the witness, was not prejudicial, where its import was the same as that denied by the witness.
    3. Instructions — Statements op Fact.
    An instruction by the court that defendant admitted that a contract was made, upon which plaintiff entered and performed a large amount of work, was justified by the testimony of defendant’s witnesses, though he was not present at the trial.
    4. Appeal — Assignments op Error.
    A point not raised by an assignment of error will not be considered.
    Error to Cheboygan; Shepherd, J.
    Submitted January 14, 1903.
    (Docket No. 205.)
    Decided March 5, 1903.

      Assumpsit by James Morin against Benjamin Eobarge for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Cross & Harpster, for appellant.

      C. F. Hull and C. S. Reilley, for appellee.
   Carpenter, J.

Under the common counts in assumpsit, plaintiff recovered in the court below a verdict and judgment for $1,331.98. The testimony of plaintiff tended to prove that defendant owed him over $1,500 for manufactoring poles, posts, and ties, in pursuance of an oral contract. The testimony of defendant tended to prove that nothing was du® the plaintiff. Issues were raised by the testimony of the parties respecting both the terms of the contract and the amount of work done thereunder. These issues were submitted to the jury, who, as above stated, found for the plaintiff. We are asked to reverse the judgment on several grounds.

It is claimed that the plaintiff could not recover under the common counts,- because there was a special contract to pay a special price for the work in question. He relies upon the case of Beecher v. Pettee, 40 Mich. 181, which clearly is not in point, as it simply decides that damages for not being suffered to fulfill a contract cannot be recovered under the common counts. It is well settled by the decisions of this court that where a contract has been performed, and nothing remains to be done except to pay for work and labor or material furnished thereunder, recovery can be had under the common counts; and this is true though the value of the work or the material is fixed by a special contract. Howell v. Medler, 41 Mich. 641, 643 (2 N. W. 911); Fletcher v. Bradford, 45 Mich. 349 (7 N. W. 905).

Complaint is made because the court permitted the following question to be asked plaintiff: “What did he [ defendant’s inspector] say to you about the way or manner of inspecting these poles ?” This was objected to on the ground that no question had been asked the inspector, who was one of defendant’s witnesses, about his manner of inspection. Pie had, however, on cross-examination, denied that he told plaintiff ‘ ‘ he was doing the Robarges on the inspection,” and that “he was getting the advantage of them.” In answer to the question complained of, plaintiff stated that, during the inspection, the inspector said that “he had got him [Robarge] so jollied up that he could do with him just as he wanted to.” While this was not precisely what the witness had denied saying, its import was the same, and defendant was therefore not prejudiced.

In charging the jury, the court said:

‘ ‘ The defendant admits that the work was done, not to the extent claimed by the plaintiff, but that there was a contract made, upon which the plaintiff entered and performed a large amount of work.”

This is complained of, as we infer from the brief, because defendant himself was not present at the trial in the court below. The statement is, however, justified by the testimony of defendant’s witnesses.

It is also claimed that the plaintiff was improperly permitted to recover for doing work after the time specified in his bill of particulars. This point is not raised by any assignment of error, and- therefore will not be considered by this court.

It is urged that the court erred in not granting a new trial because of newly discovered evidence, and because there was no evidence tending to prove the amount of the verdict as rendered. The so-called newly discovered evidence was merely cumulative, and we think the trial judge was justified in saying that he failed to find therein anything that would change the finding of a jury on another trial. We agree with him, too, that the verdict was not greater than the evidence justified.

The other grounds upon which we are asked to reverse the judgment are also without merit, and their discussion would serve no useful purpose. We think the case was fairly tried, and submitted to the jury on a charge which fully protected defendant’s interests.

Judgment is affirmed.

The other Justices concurred.


text:
    SNYDER v. O’BEIRNE.
    1. Partnership — Failure to Perform Agreement — Profits.
    Where, under a partnership agreement for cutting and manufacturing timber, complainant was to furnish the timber, defendant to defray the expenses, and the proceeds were to be divided equally, and a large amount of timber was cut, defendant, who failed to make further advances, and forbade complainant to sell the lumber, cannot thereafter claim profits which might have resulted from the successful operation of the enterprise.
    2. Same — Accounting—Debts.
    On a bill for an accounting, unpaid accounts against a part, nership should be paid by the receiver out of the assets, and not charged to either party.
    3. Same — Harmless Error.
    A decree of the circuit court for complainant on a partnership accounting will not be decreased because of an error in giving complainant a credit, which is more than offset by an excessive credit to. defendant, due to a concession based upon a mistaken computation, though complainant has not appealed.
    4. Appeal — Decree—Amount.
    A decree will not be increased in amount in favor of a party who has-not appealed.
    Appeal from Clare; Dodds, J.
    Submitted January 15, 1903.
    (Docket No. 44.)
    Decided March 5, 1903.
    Bill by Amos W. Snyder against William O’Beirne for a partnership accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      C. W. Perry and O. H. Rose, for complainant.

      V. I~I. & H. jS'. Smith, for defendant.
   Carpenter, J.

This is a bill for a copartnership accounting. In the fall of 1899 the parties to this suit formed a partnership, by verbal agreement, to cut and manufacture into lumber the timber then standing upon land owned by complainant. Complainant agreed to furnish the timber, defendant to defray the expenses, and the net proceeds were to be divided equally between them. After about 300,000 feet of logs had been cut, and part of the same manufactured into lumber, a controversy arose between the parties as to the terms of the partnership agreement, and as to the performance of their respective obligations thereunder. This controversy resulted in the present suit, in which both parties agreed in asking for an ■accounting, but differed radically as to their respective rights. The testimony was taken in open court. The ■court below made a decree directing the receiver theretofore appointed to close up the affairs of the partnership, to pay ■complainant $17.16, the balance found to be his due, and to divide the remaining proceeds equally between complainant and defendant. From this decree defendant appeals, claiming the same to be erroneous in various particulars, which, so far as needful, will be discussed in this opinion.

Defendant claims that he should have been allowed on said accounting the amount of $1,975, as compensation for his interest in the timber uncut in the spring of 1900. It is a sufficient answer to this claim to say, as we shall endeavor to show, that the defendant released the complainant from all obligation to carry out the copartnership contract by failing to make the advances necessary to its success. It appears quite clearly from the testimony that in the month of March, 1900, after the timber had been cut and deposited in. a lake, defendant left the scene of operations in Clare county, and went to his home, in Ionia county, promising to return in a few days. He did not return until the 15th of the following November. He made no arrangement whatever for the sawing of the logs in the lake, though the copartnership agreement clearly ■contemplated that they should be sawed during that season. The complainant, acting within his rights, as we are bound to decide, let the contract to one Cline to saw said logs. August 23, 1900, after complainant bad advanced to Cline $108.71, he wrote defendant, “Unless I hear from you at once, I shall be compelled to offer the lumber at a loss.” Defendant, by letter of August 27th, forbade complainant selling any of the lumber, and on the 24th of September forbade both sawing and selling. Complainant being unable, from his own resources, to pay any more on the sawing account, the lumber was seized on an attachment to .satisfy the liens of laborers, and subsequently sold. Defendant was notified of this attachment, but took no action. When defendant came to Clare county in November, 1'900, he refused to reimburse complainant’s advances and to pay his account. As above indicated, we are clearly of the opinion that this conduct of defendant was a clear breach of his obligation. He failed to make the advances essential to the success of the undertaking, and thereby released complainant from all obligation to carry on the copartnership. He cannot now claim the profits which might have resulted from the successful operation of the enterprise.

Defendant objects to the action of the trial court in giving complainant credit for his own services, for hay furnished the copartnership, and for the unpaid accounts against the copartnership of William Walker and Arthur Pugsley; and he contends that complainant received an excessive allowance for the moneys advanced to Cline, and for milk furnished the copartnership. It is a sufficient answer to all these objections, except those which relate to the Walker and Pugsley accounts, to say that, in our opinion, the testimony clearly warranted the action complained of.

Complainant should not, however, have received credit for $12 due William Walker and $12 due Arthur Pugsley. These were unpaid accounts against the copartnership, and should be paid by the receiver out of the partnership, assets. Crediting these accounts to complainant did not discharge defendant or the copartnership from liability therefor.

In our opinion, however, the error of the court in giving this credit to complainant was more than offset by an excessive credit to defendant. The trial court, acting upon a concession of complainant’s counsel, which obviously resulted from a mistake in computation, assumed defendant’s total credits to be $535.15. This was, to say the least, more than $24 in excess of his actual total credits, as shown by complainant’s brief and by a careful examination of the record. While we would not permit counsel to repudiate such an admission for the purpose of unsettling a decision made thereon, it would obviously be unjust to reduce the amount of this decree, which is already too low, because of such mistaken concession. For the purpose of sustaining the decree of the court below, it would be inequitable to prevent complainant’s proving that the amount allowed him was too small.

Complainant, who did not' appeal from the court below, asks us to revise the finding of the circuit judge, and to increase the amount allowed to him. His failure to appeal gives us no right to increase that allowance.

The decree of the court below will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    WAGNER v. WAGNER.
    1. Husband' and Wire — Separate Maintenance.
    Where a wife obtains a decree for separate maintenance from her husband, the monthly allowance should cease with his death, and then she should be left to her interests in his estate according to law.
    2. Same — Appeal—Solicitor’s Fee.
    On an appeal by a wife from a decree for separate maintenance, she cannot complain because the amount decreed to be paid by the defendant to her former solicitor is excessive.

      Appeal from Wayne; Rohnert, J.
    Submitted January 15, 1903.
    (Docket No. 50.)
    Decided March 5, 1903.
    Bill by Susanna Wagner against John Wagner for a separation from bed and board and for maintenance. From the decree rendered, complainant appeals.
    Modified.
    Complainant filed a bill against the defendant, her husband, for a decree from bed and board, under section 8022, 3 Comp. Laws, and for separate maintenance, under section 8654. She obtained a decree in accordance with the prayer of her bill, but has appealed frcfm that part of the decree fixing the amount allowed her for separate maintenance, and directing her to release to the defendant all interest in the lands which stand in her name, and in which she has any interest of her own. It was conceded upon the hearing that the decree should be modified as to the property standing in her name.
    The decree allows her $600 a year, to be paid in monthly installments, of $50 each, so long as she cares for and maintains the youngest child of'said defendant and complainant, and until said child attains the age of 14 years. After that time she is to receive $480 a year, payable in installments of $40 per month. The defendant is ordered to deposit with one Johnson, as trustee, securities amounting to $10,000, to stand as security for the payments decreed to her. In lieu of this fund, the defendant was decreed • the option to furnish a fidelity bond of some responsible fidelity company, to be approved by the court, in the penal sum of $10,000, conditioned on the faithful performance of the acts of the defendant decreed to be by him performed; said bond to be deposited with the court. The complainant was further given a life lease of the premises then occupied by complainant and defendant as a homestead, retaining to the defendant the privilege of occupying free of charge the second story of the house situated on the lot. The provisions made for her support were to be in lieu of dower, and any interest she had or might have in his real and personal property. The court found that the defendant’s real and personal property was worth $62,145, and that his debts were $8,997.40; leaving him worth, over and above his debts, the sum of $53,147.60.-

      James H. Pound, for complainant.

      Brennan, Donnelly & Van De Mark, for defendant.
   Grant, J.

(after stating the facts). Whether, on a decree of separation and separate maintenance, the chancery court has the power to determine that allowance for support during the wife’s life shall be in lieu of all her other interests in her husband’s property, while living and after his death, we need not determine. We do not think it just or equitable that the allowance for support in such a case should cut off all interest in his property by virtue of her marital rights, which are not severed, but only suspended. According to the absolute terms of this decree, she would have no interest in his estate in the event of his death at any time, except that a fund should be set aside to secure to her the monthly allowance decreed. We think the decree for separate maintenance should end with his death, and that then she should be left to her interests in his estate according to the law. While the amount allowed by the decree is not what might be termed liberal, yet, under the terms of the decree, it may be changed at any time upon application of the complainant. The court may then increase her allowance as her own condition and the financial condition of the defendant require.

Complaint is made by the present solicitor for the complainant, who appeared in the case after the decree was rendered, of the amount decreed to her former solicitor. This amount does not concern • complainant, and the defendant has not appealed from it.

The decree will be modified as above stated, and the complainant will recover the costs of this court.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.


text:
    KREBS v. SENIG.

    Chancery Decree — Jurisdiction.
    A decree is not void for want of jurisdiction because the judge had previously filed an opinion stating that the testimony was conflicting, and not clear, and that the decree would remain open for further hearing upon matters to happen after the filing of the opinion, though there was no subsequent hearing.
    Appeal from Wayne; Donovan, J.
    Submitted February 20, 1903.
    (Docket No. 116.)
    Decided March 5, 1903.
    Bill by Charles Krebs against Sophia Senig to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.

      M. B. Breitenbaoh, for complainant.

      William E. Walsh (George Gartner, of counsel), for defendant.

       Rehearing denied April 10, 1903.

   Grant, J.

The bill in this case was filed to set aside'a deed made by the complainant to the defendant, his daughter, the consideration being his future support by her. The merits of the case are not before us, no evidence being returned. The defendant has appealed from the decree rendered against her, setting aside the deed, upon the ground that the court had no jurisdiction to render it.

After the proofs had been closed and the case submitted, the circuit judge, on February 10, 1902, filed an opinion in the case, stating that the testimony was conflicting, and not very clear, and “there is a defect in the support, which could be ‘remedied,” and specified what the defect was. He then stated that the complainant had had difficulty in living with another son-in-law; that he was not entirely without fault; and that “the decree will remain open in this case, and subject to further hearing and revision, and, if it shall turn out within 90 days or half a year that the old gentleman is misused, or hindered in his pursuit of happiness, without any fault of his own, then the matter will be further considered, and, unless he can be well used, the conveyance will be set aside.”

On March 19th complainant filed a petition that the court proceed to grant him a decree. Notice of this petition and hearing thereon on March 24th was served upon the defendant’s solicitor. The court could not attend to the case on that day, and no further notice was served. No answer was made to the petition. On June 12th following, a final decree, without further proofs, was entered, setting the deed aside. It is urged that the court, under these circumstances, had no jurisdiction to enter the decree.

While the proceeding was irregular, we think that the effect of the action of the court was, simply to defer rendering a decree, hoping that the parties might arrange matters between them. The effect was none 'other or different than it would have been had he simply taken the case under advisement. No decree was actually rendered until June 12th. The decree was not inconsistent with the opinion filed, and was based upon the evidence taken before the case was submitted.

We think the court had jurisdiction to enter the decree, and it is affirmed, with costs.

The other Justices concurred.


text:
    WREFORD v. CITY OF DETROIT.
    Municipal Corporations — Paving—Repaving—Assessment.
    Where, under a city charter providing that the cost of paving, but not repaving, shall be assessed upon the abutting property owners, a street, which has been paved, is paved again, including a portion of the street between the original pavement and the sidewalk, no part of the pavement can be assessed upon the owners of the adjoining property.
    Appeal from Wayne; Rohnert, J.
    Submitted February 3, 1903.
    (Docket No. 65.)
    Decided March 5, 1903.
    Bill by William Wreford and others against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of an assessment. From a decree dismissing the bill, complainants appeal.
    Reversed.
    Bagley avgnue, in the city of Detroit, formerly knbwn as “Macomb Avenue,” in 1876 was graded and paved, with a roadway 40 feet wide, the entire cost of which was assessed upon the abutting property, which includes that of the complainants. The street was wide, and a grass plot was left between the sidewalks and the 40-feet roadway, in which were set rows of trees, which stood there for 40 years. In 1899 steps were taken to widen this roadway by about 15 feet on each side, and to repave the street the entire width of the old roadway and extensions, — about 70 feet. Contracts were let, and the entire cost of the pavement outside of the old 40-feet roadway was assessed to the adjoining owners. This bill was filed to set this assessment aside. The court dismissed the bill.

      C. D. Joslyn, for complainants.

      Timothy E. Tarsney and John W. McGrath, for defendants.
   Grant, J.

(after stating the facts). The only question we need to discuss is, Can the abutting property owner, having once been assessed for grading and paving the street, be again assessed for paving extensions thereof ? The charter provides that “the cost of all repaving of streets shall be paid out of the repairing fund.” We held in Dickinson v. City of Detroit, 111 Mich. 480 (69 N. W. 728), that a change of the roadbed from one place, within the limits of the street, to another, even though the new roadbed be much wider than the old one, did not authorize the cost of the pavement to be assessed against the abutting owners. We there reserved our opinion upon the question now presented. Counsel for both sides have evidently made diligent search, and cite no authority exactly in point.- The most of the cases now cited will be found cited in Dickinson v. City of Detroit, supra.

The principle upon which abutting owners are charged with the expense of paving the street in the first instance is that their property is benefited by the pavement. After the improvement has once been made, its care belongs to the entire public; and it must be kept in repair and in condition, or widened or improved in any manner, by the public, and not at the expense of the owners. It is difficult to imagine what benefit accrues to abutting owners, where, as in this instance, their shade trees are cut down, the grass plots in front of their property removed, and the travel upon the street, with its dust and noise, brought nearer to their dwellings. Such improvements are clearly not for the benefit of private owners, but for the benefit of the public. We are of the opinion that when the authorities of the city laid out this street, and paved a roadway therein, suitable at the time for the use of the public, their power to assess such improvements upon abutting owners was exhausted. Where a statute required a petition of a majority of the property holders along the line of the street for the paving of a sidewalk, it was held that the sidewalk could not be widened without a new petition, because “the additional width of sidewalk for which the assessment was laid was a repavement.” In re Smith, 99 N. Y. 424 (2 N. E. 52).

Decree reversed, and decree entered in this court for complainants, with the costs of both courts.

The other Justices concurred.


text:
    LAMBTON LOAN & INVESTMENT CO. v. ADAMS.
    Land Contracts — Forfeiture—Summary Proceedings — Payment of Amount Due — Restitution.
    No writ of restitution can issue upon the judgment of a circuit court commissioner for the possession of land, based upon the forfeiture of a land contract for failure to pay money due, where the defendant, within five days after final judgment, pays the amount found due, and double the amount of costs awarded. 3 Comp. Laws, § 11177.

      Certiorari to St. Clair; Law, J.
    Submitted February 3, 1903.
    (Calendar No. 19,751.)
    Decided March 5, 1903.

      Mandamus by the Lambton Loan & Investment Company to compel Charles W. Adams, circuit court commissioner of St. Clair county, to issue a writ of restitution. From an order granting the writ, respondent brings certiorari.

    Reversed.
    The relator has the record and legal title to lot 13, block 23, White’s plat, city of Port Huron. The lot was formerly owned by Fred J. Wright, subject to a mortgage to relator, which was foreclosed, and the lot bought in by relator, and it became owner in fee. Afterwards, October 28, 1900, the relator and said Wright entered into a contract in writing for the sale by relator and purchase by Wright of the lot, to convey upon payment of $2,443.55, in installments of $25 a month; interest semi-annually until principal reduced to $1,500; then deed to be given, and mortgage back for balance. Payments were made for some time, up to the amount of $350. No further payments were made up to July 9, 1902, when about $500 had become past due. In the contract is the usual provision that time shall be of the essence of the contract.
    On the 9th of July, 1902, relator, by W. L. Jenks, its attorney, gave Wright notice of forfeiture of his rights under the contract by nonpayment of amount due, and demanding possession. Wright remained, and is still, in possession. December 9, 1902, relator made and filed the usual complaint to commence proceedings before the respondent, Charles W. Adams, a circuit court commissioner of St. Clair county, to regain possession under the statute in such case provided. The usual summons was issued to Wright, on the return day of which the parties appeared. Wright, the defendant therein, pleaded “Not guilty,” and the case was adjourned until December 17tb, when the parties again appeared and proceeded to trial, complainant relying upon the contract; and both parties agreed in open court that there was due upon said contract of purchase the sum of $2,865.65, and thereupon the commissioner ordered and adjudged that complainant have restitution, with costs, taxed at $7.83.
    On December 22, 1902, and within five days after the finding and rendition of judgment as aforesaid, Wright, the defendant in that suit, paid to the commissioner, for complainant, the amount so found due and payable on the contract, with interest, and double the amount of costs, amounting in all to the sum of $2,883.68; and the commissioner offered and tendered the same to P. H. Phillips, attorney for complainant, who refused to accept the same, and it is still in the hands of the commissioner, ready to be produced and paid to said' complainant or its attorney. Of the payment or manner of payment, no question is made. On the expiration of five days after the judgment, complainant’s attorney demanded the issuance of a writ of restitution, which was refused. Thereupon the relator petitioned the circuit court for a mandamus to compel the commissioner to issue the writ. The court made an order that the commissioner on December 31, 3902, show cause why such mandamus should not issue. The commissioner made return, stating the facts without the evidence. On the day named in the order, the parties appeared, and relator demanded a further return, showing what facts appeared or were in proof. Under objection, the court ordered such further or amended return, which was made January 2, 1903, when the parties appeared, and, after argument, the court overruled respondent’s objections, and entered an order that the writ of mandamus be issued, compelling the commissioner to issue the writ of restitution. Whereupon this writ of certiorari was applied for and granted.

      Phillips & Jenlcs, for relator.

      William T. Mitchell (Stevens, Graham & Stevens, of counsel), for respondent.
   Grant, J.

(after stating the facts). This is a proceeding brought under the statute providing summary proceedings to recover the possession of land. Sections 111G4-11181, 3 Comp. Laws. Section 111G4 authorizes this proceeding when one shall “hold over any lands or tenements after the time for 'which they are demised or let to him, * * * or contrary to the conditions or covenants of any executory contract for the purchase of lands, * * * or where rents shall have become due on any shell lease or agreement. ” Section 11168 provides that if it is claimed upon the trial before the commissioner, or upon appeal to the circuit court, that the complainant is entitled to possession in consequence of the nonpayment of any sum of money due as a part or portion of the purchase money of premises, the officer or the court or jury shall, in addition to the usual judgment for the complainant, ascertain and determine the amount due the complainant, and that such amount shall be stated in the judgment. Section 11177 provides that “no writ of restitution shall issue if the defendant shall, within five days after final judgment, pay the amount so found due, and double the amount of costs awarded to the said complainant.”

Three actions were open to the complainant upon the failure of the vendee to make payments, and the service of notice upon him declaring the contract forfeited: (1) A suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute. The first two actions exist independent of the statute. The third is purely statutory. The only violation of the vendee’s contract in this case was his failure to make payments. This brought him directly within the terms of the statute. He who seeks possession for violation of a lease or contract of sale for nonpayment of money due thereunder takes the remedy subject to the conditions imposed by the statute. The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default.

The judgment is reversed, and the writ of mandamus issued by the court below quashed.

The other Justices concurred.


author: Q-eant, J.

text:
    MERCHANTS’ EXCHANGE CO. v. WEISMAN.
    1. Sales of Merchandise — Date of Invoice.
    Where goods were sold with the privilege of exchanging them for other goods “ within 15 days from date of invoice,” the vendee had 15 days from the day they were shipped in which to exchange the goods.

      3. Same — Invoice Defined.
    An invoice, in commercial transactions, is a written account of the particulars of merchandise shipped or sent to a purchaser, with the prices and charges annexed.
    Case made from Clare; Dodds, J.
    Submitted February 4, 1903.
    (Docket No. 206.)
    Decided March 5, 1903.

      Assumpsit by the Merchants’ Exchange Company against Louis Weisman for goods sold and delivered. Plaintiff had judgment for less than the amount claimed, and assigns error.
    Affirmed.
    This case was tried before the court without a jury, and the facts agreed upon. Defendant gave a written order, dated July 30th, to the plaintiff, for goods, the material part of which is as follows:
    “Positively no goods on commission or open account.
    “Guaranty and exchange: Should any jewelry sold by us fail to wear satisfactorily, the same will be duplicated free of charge for five years. Jewelry can be exchanged for any new jewelry in stock any time in twelve months from date of invoice. Solid gold jewelry at wholesale prices will be given in exchange for filled or plated jewelry at original invoice prices. Terms: Two, four, six, and eight months if account is closed within fifteen days from date of invoice by notes without interest, payable at Iowa City, Iowa. Otherwise cash less 6 per cent, in 15 days.
    “Please ship goods mentioned on this order blank at your earliest convenience, and oblige.”
    The goods were shipped August 7th. A bill for the same — called an invoice — was dated August 3d. On August 8th plaintiff wrote defendant, informing him that the goods were shipped on the 7th inst., inclosing blank notes, should he desire to settle by giving notes, and informing him that, if he preferred to take advantage of the discount, he could do sol On August 14th defendant wrote plaintiff as follows:
    “In opening up goods I find that I cannot use that class of jewelry. However, if you will let me keep same for about three months and see what I can do with them, and if I think that I can use it I will keep same, and if not will have to return it. I hold same here subject to your order. Kindly let me hear from you as soon as possible, and oblige.
    “If you have a catalogue of jewelry, you can send me ■one, and if I prefer to exchange same for different kinds I ■can do so; as I cannot use that class of jewelry up here.”
    To this letter plaintiff replied August 16th, substantially refusing to comply with the defendant’s letter of the 14th. To this defendant replied August 19th:
    “I have selected from the amount of jewelry $69.60 worth, and return today by American Express $81.20. If you have a catalogue of jewelry you can send me one, and I will select different kinds to make up the $150 worth. I cannot use the jewelry you sent me, as it is impossible to sell it here. If you have not any catalogue, I will pay you the $69.60 as soon as I hear from you. That is the very best I can do. If this does not suit you, I will return the entire outfit.”
    To this plaintiff replied that the goods were shipped exactly as ordered, and that there was nothing in the contract to indicate that defendant was to have them on approval, and that plaintiff should insist on the agreement. Other correspondence followed, but it is immaterial to the issue. The court rendered a judgment for the plaintiff for $71.34, the amount admitted to be due, but found for the defendant upon the disputed amount.

      Arthur J. Lacy, for appellant.

      C. W. Perry, for appellee.
   Q-eant, J.

(after stating the facts). Plaintiff insists that the sale was an absolute one; that payment or settlement by notes within 15 days was a condition precedent to the right to exchange the goods after the expiration of the limit; that this limit expired on August 17th; that defendant did not comply with the condition, and therefore cannot maintain his defense, under Jenness v..Shaio„ 35 Mich. 20.

The defendant had 15 days within which to make payment or settle the account by notes. He clearly, also, had' the right to exchange at any time before the expiration of the 15 days. Plaintiff now claims that this 15-day limit began to run on the 2d of August, the date upon the face of the invoice. But the goods were not shipped until the 7th. This contract did not give plaintiff the right to antedate its invoices. An invoice, in commercial transactions, is defined to be “a written account of the particulars of merchandise shipped or sent to a purchaser, consignee, factor, etc., with the value or prices and charges annexed.” Cent. Diet. & Enc.; Bouv. Law Diet. If it be conceded that the letter of August 14th was not a valid offer to return any of the goods and to exchange them for others,, such valid offer was contained in the letter of the 19th,, offering to return some of the goods, and asking for a catalogue from which to select other goods in exchange. This letter was written within the 15-day limit. Defendant was not then in default.

Judgment is affirmed.

The other Justices concurred.


text:
    SMALL v. ROBARGE.

    1. Contract for Sale of Timber — Forfeiture.
    Where plaintiffs testator, who had sold defendant all the cedar timber on certain lands under an agreement that it should not be cut before the pine timber, which he was cutting for another person, and that all cedar not cut before a, certain date should revert to him, failed to cut the pine by the date mentioned, plaintiff could not enforce a forfeiture of' the cedar standing in the pine timber.

      2. Same — Nonseverable Contract.
    Neither could plaintiff in such case enforce a forfeiture of cedar not standing in the pine, and not cut on that date, as the right to insist on a forfeiture was not severable, and the performance of defendant’s obligation was conditioned on the performance of the obligation of plaintiff’s testator.

      3. Forfeitures — Construction.
    Stipulations for forfeiture are not favored, and will be strictly construed.
    Error to Cheboygan; Shepherd, J.
    Submitted February 4, 1903.
    (Docket No. 69.)
    Decided March 5, 1903.
    Replevin by Julia A. Small, executrix of the last will -and testament of Robert B. Small, deceased, against Middie E. Robarge. From a judgment for plaintiff, ■defendant brings error.
    Reversed.

      Cross & Harpster and Charles . JR. Henry, for appellant.

      Frost & Sprague, for appellee.

       Rehearing denied April 7, 1903.

   Carpenter, J.

On the 1st day of August, 1899, plaintiff’s testator and defendant entered into a written contract, whereby, -for the sum of $2,000, then paid, defendant purchased from said plaintiff’s testator “all of .the cedar timber now standing, lying, or being on ” certain .lands, described by their sectional location, and as “being the same land which first party [Small] is lumbering for the Cleveland Sawmill & Lumber Company.” Said contract contained this provision:

“It is expressly understood and agreed by and between the parties hereto that said cedar timber shall not be cut -on said land ahead of the pine timber, which is now being ■cut by first party [plaintiff’s testator] thereon, and that said timber shall be cut before August 20, 1900, and that all timber left standing at that time shall revert to said first party.”

Plaintiff’s testator had purchased this standing cedar on ■the 31st day of July, 1899, for the sum of $600, from said Cleveland Sawmill & Lumber Company, by a written agreement, which was silent as to when the same was to be removed, but which obligated him ‘ ‘ not to remove the cedar so as to endanger their white and Norway pine by fire.” Said Small was lumbering said land in pursuance' of a written'contract made October 11, 1898, by which McIntosh & Small (a partnership composed of plaintiff’s testator and one Anselm McIntosh) agreed with said Cleveland Sawmill & Lumber Company “to cut, haul, and deliver on cars * * * all of the white pine and Norway timber lying and being on ” the land in question, and to complete their contract “not later than the 20th day of August, 1900.” Said Robert B. Small died June 13, 1900, and consequently the work of cutting the pine timber was suspended for some time, and was not completed until April, 1901. Defendant, Robarge, did not-cut all the cedar on said land before the 20th of August, 1900. He proceeded after said date and cut a large quantity, some of which was standing among the pine, and some of which, apparently, was remote therefrom. On the claim that the standing cedar reverted to plaintiff on August 20, 1900, this replevin suit was instituted, and on May 10, 1901, cedar to the value of $4,38.1.45 was seized under the writ. Upon the defendant’s executing a bond, this cedar was returned to him. The learned trial judge in effect directed the jury to return a verdict for the plaintiff for all the cedar cut after August 20, 1900, leaving to them the question of value (which they found to be as above stated), and the question before us is whether or not this decision was correct.

The only question which we think necessary to consider is whether or not the cedar standing on said land August 20, 1900, ceased to be defendant’s property, though the pine timber thereon was not yet cut. It is manifest that the contract intended to transfer to defendant the title to all the cedar standing and lying on the land. While it required him to cut the same before the 20th of August, 1900, it prohibited that cutting ahead of the pine timber, which, it will be noted, by the contract between plaintiff’s testator and the Cleveland Sawmill & Lumber Company, was to be removed by the 20th of August, 1900. It surely was not intended that defendant should lose his cedar because plaintiff’s testator defaulted in his contract to remove the pine. It is therefore clear that cedar standing on said land August 20, 1900, -which, according to the contract, could not be cut, by reason of the failure of plaintiff’s testator to cut the pine, did not revert to the estate of plaintiff’s testator.

It is said that defendant should get no benefit from this construction, because the evidence shows that he did not regard the prohibition, but cut cedar ahead of the pine. It is a sufficient answer to this contention to say that plaintiff’s right to insist upon a forfeiture must rest entirely upon the contract. No departure from the contract would enlarge that right, or give an additional right. The construction of the contract, then, and not conduct violating it, will determine whether or not defendant has forfeited his cedar.

It remains to be determined whether the cedar uncut August 20, 1900, and not standing among pine timber, reverted to the estate of plaintiff’s testator. It is obvious that defendant was not prevented from cutting this cedar by the failure of plaintiff’s testator to remove the pine. It is, however, to be borne in mind that stipulations for forfeiture are not favored, and are to be strictly construed. Ortmann v. Bank, 49 Mich. 56 (12 N. W. 907); Sherlock v. Thayer, 4 Mich., at page 359 (66 Am. Dec. 539); Wilcox v. Allen, 36 Mich., at page 169; Miller v. Havens, 51 Mich., at page 485 (16 N. W. 865). It is altogether equitable that this principle should apply to this case, where the estate represented by plaintiff seeks to recover $4,500 for property which cost it only $600, and for which it has already received $2,000. It is impossible to find, in the agreement upon which the rights of the parties are based, any intent that there should be several forfeitures of this timber. Nothing in the contract indicates that part of the cedar should revert at one time and part at another. As we construe the contract, the parties intended that at a certain time all cedar left standing should revert, and that until that time it belonged to defendant. While the contract expressly obligated defendant to cut the cedar by August 20, 1900, it also, by necessary implication, obligated plaintiff’s testator to remove whatever pine must be removed to enable him to perform this obligation. The performance of defendant’s obligation was conditioned upon the performance of the obligation of plaintiff’s testator. Plaintiff could'not, then, insist upon a forfeiture until the obligations resting upon her testator had been performed. We conclude, therefore, that none of the cedar reverted, so long as any of the standing pine prevented defendant, under the terms of his contract, cutting any of the cedar sold to him.

Judgment will be reversed, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Moore, J., did not sit.


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    DAYTON v. STAHL.
    1. Mortgages — Foreclosure Sale — Redemption.
    Complainant was the owner of a parcel pf land covered by two mortgages. The first mortgage also covered two other parcels. Both mortgages were being foreclosed. Defendant purchased the property at foreclosure sale under an agreement with complainant that if he would bid in her parcel at the sale under the second mortgage, and bid the amount of the first mortgage for the two other parcels, the money advanced by him would be repaid. Held, that complainant, in order to compel defendant to convey to her the parcel owned by her before the sale, must pay him not only the amount bid at the sale of her parcel under the second mortgage, but also the amount paid for the two other parcels at the sale under the first mortgage.

      S. Same — Subrogation.
    Upon repayment to defendant of the amount paid by him for the two parcels under said agreement at the first-mortgage sale, complainant would be subrogated to the rights acquired by him in said property.
    Appeal from Ingham; Wiest, J.
    Submitted February 4, 1903.
    (Docket No. 68.)
    Decided March 5, 1903.
    Bill by Sarah M. Dayton against Jacob Stahl to declare a deed to be a mortgage, and to redeem therefrom. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Harry H. Hooker, for complainant.

      H. C. Chapin, for defendant.
   Carpenter, J.

Complainant brings this suit to obtain a decree declaring that a deed held by defendant is a mortgage, and to redeem therefrom. The case made by her bill and testimony may be stated as follows: In 1895 she owned the most northerly one of three terraces situated on the corner of Capitol avenue and Shiawassee street, in the city of Lansing. Her husband, George M. Dayton, owned the most southerly of said three terraces, and one Holland J. Cleland owned the middle one. There was a first mortgage, securing the payment of about $7,500, covering the three terraces. There was a second mortgage for about $1,325 on each of the three terraces, held by the Lansing State Savings Bank. After the middle and south terraces had been purchased by said Lansing State Savings Bank ■on proceedings taken to foreclose the second mortgage, .and just before a sale was to take place of the north terrace under proceedings to foreclose the second mortgage “thereon, and a few days before a sale was to take place under proceedings to foreclose the first mortgage on all of said terraces, a verbal arrangement was made by complainant’s husband and attorney, on her behalf, with said ■defendant, whereby defendant agreed to purchase at the foreclosure sale of the second mortgage said north terrace, and to take the title therefor in his own name, to hold the same a few days, until the money advanced by him should be repaid. It was agreed at the same time, as a part of the plan, that said defendant should attend the sale on the-foreclosure of the first mortgage, which was to take place-the next day after the foreclosure sale of the second mortgage on the north terrace, and bid on the south and middle terraces a sufficient amount to satisfy the entire indebtedness secured by said mortgage, with the expectation that the Lansing State Savings Bank would overbid him, take the property, and thereby leave the north terrace charged only with the amount bid at the foreclosure sale-under the second mortgage. It was agreed that, if the south and middle terraces should be purchased by said defendant on his bid, he should be repaid the amount he was compelled to advance therefor, in a few days. In accordance with this arrangement, defendant purchased the north terrace at the foreclosure sale of the second mortgage for the sum of $1,325, and took the title in his own name. He attended the foreclosure sale under the first mortgage, and bid for the south and middle terraces $7,400, which was $70 less than the entire amount secured by said mortgage. Said Lansing State Savings Bank did not, however, as expected, overbid him, and he became.the purchaser. He subsequently paid the $70 balance remaining-unpaid on said first mortgage. Complainant asks, in this suit, a decree compelling défendant to convey to her the north terrace upon the repayment to said defendant of the $1,325 paid by him and the $70 balance, together with interest thereon. The court below dismissed her bill of complaint, and she appeals to this court.

It is unnecessary for us to decide whether the arrangement made on behalf of complainant with defendant created a mortgage, as contended by complainant, or gave to defendant an absolute title, not subject to redemption, as contended by defendant. We are agreed that, if the same constituted a mortgage, this suit cannot be maintained. Under the arrangement upon which complainant relies, and in accordance with that arrangement, defendant invested $8,795 in these three terraces. Complainant seeks to redeem one of these terraces, which is not shown to be the least valuable of the three, on the payment of $1,395. She cannot take advantage of the arrangement made with defendant unless she performs the obligations which that arrangement imposed upon her property. To save her property, as she claims, defendant not only invested $1,395 therein, but he also invested $7,400 in the adjoining property. It was certainly contemplated that, if the defendant’s bid on the foreclosure sale of the south and middle terraces resulted in his purchase, the north terrace would not be redeeded until he was relieved from the obligation thereby resulting. Whoever seeks to enforce a contract must enforce it according to its terms. She has no right to insist upon the benefit of one part of it, and deny the binding force of the obligations found in another part.

It is said that defendant should abide by the consequences of his purchase of the south and middle terraces, because he blundered in his bid. By this is meant, as we understand, that he at once bid a high price, instead of starting at a low figure. This was a matter committed to his discretion, and there is nothing to indicate that the Lansing State Savings Bank would have bid a larger amount had he adopted another course.

It is said that complainant cannot redeem from the purchase of the'middle and south terraces, because she has no interest in that property. That is no answer. Under the claim she makes of a right to redeem from the purchase of her own property, she has a right to insist upon, and was bound to ásk, a subrogation to the rights acquired by defendant in said property.

The decree of the court below must be affirmed.

Grant and Montgomery, JJ., concurred. Hooker, O. J., and Moore, J., did not sit.


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    HYDE v. HAAK.
    New Trial — Weight of Evidence — Third Verdict.
    After two verdicts in favor of plaintiff liave been set aside as against tbb weight of the evidence, the court is justified in refusing to set aside the third verdict in his favor for the same reason, where there is substantial evidence to support it. Hooker, O. J., dissenting.
    Error to Cheboygan; Shepherd, J.
    Submitted February 6, 1903.
    (Docket No. 76.)
    Decided March 5, 1903.
    Replevin by Robert N. Hyde and others against Jacob A. Haak and others. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Frost & Sprague and Charles D. Barghoorn, for appellants.

      Cross & Harpster, for appellees.
   Grant, J.

This suit involves the value of 326 cedar railroad ties. Each party claims title. The title depends upon whether the ties' were cut from, and through a' trespass upon; the lands of the defendants, or upon other lands. If cut from the lands of the defendants, the title is in them. If cut from the other lands, the title is in the plaintiffs. There have been three trials before a jury, and each time a verdict has been rendered in favor of the plaintiffs. Twice the court below set the verdict aside, upon the motion of the defendants, on the ground that the verdict was against the weight of the evidence. After three verdicts, the court refused to grant a new trial. Defendants now ask that this action of the circuit court be reviewed.

It is unnecessary to review the testimony. There was substantial evidence in behalf of the plaintiffs. Three juries have believed the witnesses on the part of the plaintiffs, rather than those in behalf of the defendants. It is not contended that there is not a conflict of evidence, so that the question is a proper one for the jury. After three juries have passed upon it, we think the court below was justified in refusing a fourth trial.

Judgment affirmed.

Moore, Carpenter, and Montgomery, JJ., concurred with Grant, J.

Hooker, C. J. I think that a new trial and change of venue should be granted.


author: Montgomery, J.

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    CAMPAU v. HIGHWAY COMMISSIONER OF GROSSE POINTE. CAMPAU v. TOWNSHIP BOARD OF GROSSE POINTE.
    1. Constitutional Law — Highway Commissioners — Statutes.
    Act No. 303, Local Acts 1901, is not unconstitutional in abridging the functions of the highway commissioner of Grosse Pointe, a constitutional officer,' as the amendment of 1899 (Const, art. 4, § 49) authorizes the legislature to modify, change, or abolish the powers and duties of the township highway commissioner.
    2. Municipal Corporations — Paving—Change oe Grade.
    Under Act No. 303, Local Acts 1901, providing that, before paving a street, the town board shall declare the paving to be expedient, cause plans, specifications, and estimates of the coso to be made, submit to the electors the question of issuing bonds to defray the cost, and, with the highway commissioner, determine the details of the contract, the town board and highway commissioner may in good faith, after the election, issuing the bonds, and making the' contract, change the grade of the street pavement.
    Error to Wayne; Hosmer, Frazer, and Rohnert, JJ.
    Submitted February 25, 1903.
    (Docket No. 208.)
    Decided March 5, 1903.

      Submitted February 25, 1903.
    Decided March 5, 1903.
    (Docket No. 127.)

      Certiorari by Daniel J. Campau to review the action of the highway commissioner and township board of Grosse Pointe in changing the grade for the macadamizing of Jefferson avenue in said township. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Appeal from Wayne; Brooke, J.
    Bill by Daniel J. Campau and others to restrain the township board and highway commissioner of tírrosse Pointe, and others, from changing the grade for the macadamizing of Mack avenue. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Thomas A. E. Weadock, for plaintiff in certiorari.

      Orla B. Taylor, for complainants.

      James H. Pound, for defendants in both cases.
   Montgomery, J.

In the first case above entitled, the plaintiff sued out a writ of certiorari to review the action of the township board of Grosse Pointe and the highway commissioner in changing the grade of Jefferson avenue at a certain point, and in authorizing the macadam pavement provided for as hereinafter stated to be laid upon the highway at the changed grade. The second case is a bill in equity, filed by complainants, owners of land abutting upon either side of Mack avenue, in said township of Grosse Pointe, in which an injunction is sought to restrain the township board and the highway commissioner from departing from the original plans and specifications obtained by the board and commissioner under circumstances hereinafter recited. The history of the two cases may be given in one statement.

By Act No. 303 of the Local Acts of 1901, the township of Grosse Pointe was authorized to grade, pave, plank, gravel, macadamize, curb, and otherwise improve the highways known as “Jefferson Avenue” and “Mack Avenue,” and to issue bonds for the purpose of defraying the expense thereof. Section 2 of the act reads as follows:

‘ ‘ Whenever the township board of said township of Grosse Pointe shall, by resolution duly passed, declare that it is expedient to grade, pave, plank, gravel, macadamize, curb, or otherwise improve said Jefferson avenue and Mack avenue, or either of them, the said township board and the commissioner of highways of said township, acting together, shall cause to be made plans and specifications for the improvement of such highway in the manner declared to be expedient in the resolution aforesaid, and to cause estimates to be made $f the cost of such improvement or improvements. Prom such estimates said township board and highway commissioner, acting together, shall determine and fix the amount necessary to be raised for the purpose of such improvement or improvements, and the amount necessary to be raised by the issue and sale of bonds of said township for that purpose.”

Section 3, so far as it is important, contains the following provisions:

“The township board shall then submit to the electors cf said township at the annual township meeting, or at a •special meeting to be called and ordered by the township board in the manner provided by law, the question of issuing bonds for the purpose of defraying the cost and expenses •of the improvements declared by said township board to be expedient as aforesaid, to the amount determined by said township board and highway commissioner to be necessary therefor. The notice of such township meeting shall contain a true copy of the resolution of said township board declaring the expediency of the proposed improvement, and the manner thereof, and the amount determined by said township board and highway commissioner to be necessary for such purpose.”

Section 5 provides that, after the bonds shall have been sold, and the proceeds paid into the fund, the township board and highway commissioner shall advertise for bids for furnishing the material and doing the work of making the improvement declared to be expedient, “in accordance with the plans and specifications therefor as hereinbefore provided,” and shall let the contract therefor to the lowest responsible bidder. The successful bidder is required to give bonds for the furnishing of the material necessary and the doing of said work in accordance with said plans and specifications, and subject to the approval of said township board and commissioner of highways. The section further reads:

“The township, board and commissioner of'highways shall have the right to determine the details of the contract with such lowest bidder in respect of the time within which the work is to be completed, the method and time of payment, and in all other respects not hereinbefore provided for.”

It app'ears that, after this law was enacted, the township board duly passed a resolution declaring it to be expedient to macadamize both Jefferson avenue and Mack avenue. Plans and specifications were prepared, which showed, by careful attention to the details, a grade differing in Jefferson avenue quite materially, but in the case of Mack avenue only slightly, from the grade of the highway as it was at the time the work was undertaken. This grade is only shown by a map or profile and by the use of a graduated scale, or a close examination of the figures showing the relation of the surface in the street, as proposed to be improved, to the datum line. An estimate of the cost of the proposed improvement was made, and the question of bonding for the improvement was submitted to the people. The election was held under a notice which recited that the township board had, by resolution, declared it to be expedient to improve these streets; and also recited that plans and specifications had been drawn, and were on file with the clerk; that estimates had been made, showing the cost to be $165,000; and' stating the form of the ballot, etc. Contracts were entered into, and the work entered upon.

The board and highway commissioner, acting together, thereafter determined that a change in the grade as shown by the profile on Mack avenue, making the general level from five to seven inches higher than as shown, was desirable, and a somewhat more substantial change in the grade of Jefferson avenue was also determined to be desirable. The complainants in the chancery suit claim that such change as to Mack avenue damages their property by leaving it below the surface of the highway, requiring expensive filling. It is also claimed in the certiorari case that the change of grade of Jefferson avenue would prove injurious to the plaintiff’s property.

One question is made in the certiorari case which is not presented by the chancery record, but which is important to both cases, viz., whether the law is unconstitutional. It is contended that it is, and for the reason that it withdraws from the highway commissioner his functions, and that, as he is a constitutional officer, this cannot be done. Without expressing any view as to the validity of this act under the Constitution as it stood prior to the amendment of 1899 (section 49, art. 4), we think that section is a sufficient and complete answer to the plaintiff’s contention. It provides that the legislature may provide for the laying out, construction, improvement, and maintenance of highways, bridges, and culverts by counties and townships, and may authorize counties to take charge of any highways within their limits for such purposes, and may modify, change, or abolish the powers and duties of township commissioners and overseers of highways. Language could' not well be more plain, and we think it cannot be said that this constitutional amendment was intended exclusively to provide for a county road system. This may have been the prime object, but it in terms confers upon the legislature authority to provide for the laying out and maintenance of highways by townships as well as counties, and gives the broadest power to modify or abolish the powers and duties of township commissioners and overseers of highways.

The meritorious question, which is common to both cases, is whether the authority of the township board and highway commissioner is limited to constructing the highway in precise accord with the terms of the preliminary specifications and plans. The argument is made that the purpose of this act is to give the people the right to determine and pass upon the specifications', and that, having d.one so, the highway commissioner and township board become simply agents to carry into effect the expressed will of the people at the election.

It is to bfe noted that by section 2 the township board, in the first instance, is authorized to declare the improvement of the highway by paving, planking, graveling, macadamizing, etc., to be expedient. It is true that this is followed by a provision in the section that, after this is done, the board and highway commissioner shall cause plans and specifications to be made, and estimates of the cost of the improvement; and it is also provided that from these estimates they shall determine and fix the amount necessary to be raised for the purpose of the improvement. But by section 3 the board is required to submit to the electors the question of issuing bonds for the purpose of defraying the cost and expenses of the improvement declared by the township board to be expedient as aforesaid, to the amount determined by the township board and highway commissioner to be necessary therefor. A significant, thing, also, is the notice which is required. This notice is required to contain a true copy of the resolution declaring the expediency of the proposed improvement, and the manner thereof, and the amount determined by said township board and highway commissioner to be necessary for such purpose. The resolution declaring the improvement and the manner thereof, it will be noted, preceded the joint action of the commissioner and township board, and therefore “the manner thereof,” as here used, must relate to the manner as macadamizing, or graveling, or paving, rather than to the manner in detail as subsequently ascertained; for the resolution, preceding, as it does, such specifications and plans, cannot, in the nature of things, refer to them or include them. All that is further required is a statement of the amount determined to be necessary for this purpose. We think it clear, therefore, that it was not the intention that the -electors should pass upon the details of the plans and specifications, but that the question submitted to them should be the broad question of paving, macadamizing, etc., and the raising of a definite sum of money, ascertained or estimated in a manner prescribed by the statute. The question whether the hands of the board and commissioner were to be tied by these specifications and plans may be considered divorced from any thought that they are merely agents to register the will of the people in the matter of making a contract.

This does not avoid the whole difficulty, for it is provided by section 5 that the board and commissioner shall advertise for bids in accordance with the plans and specifications theretofore adopted. It is also provided that the bonds shall be to perform the work according to the plans and specifications, and subject to the approval of the township board and commissioner of highways. And it is provided that the board and commissioner “shall have the right to determine the details of the contract with such lowest bidder in respect of the time within which the work is to be completed, the method and time of payment, and in all other respects not hereinbefore provided for.” The question is, May such changes as a change in the grade of the highway be made, so long as good faith is exercised, and so long as the officials keep within the limit of expenditure fixed by the people ? We think this question should be answered in the affirmative. Any other construction of this statute would result in this: That any slight mistake or error in the original plans and specifications could not be corrected. An error once made is an error for all time. It is true it is urged that the board and commissioner, upon ascertaining that the plans and specifications were defective, might pausé, and do.nothing. The statute ■does not contemplate this. It is as imperative that they shall advertise for bids and proceed with the work as it is in any other part.

It was suggested by the circuit judges who wrote the opinion in the certiorari case that, if there is a real necessity for a radical departure from the plan under consideration at the time of issuing bonds, there must be power in the people to accept and authorize such change, but that without their assent there is no authority to make a material alteration. But the act contains no provision for a second submission of the question, and, as we have pointed out, it is not in contemplation of the act that each individual voter should pass upon the details of the plans and specifications, with a graduated rule or otherwise. The act does not provide for submitting these plans and specifications to the voters. If is doubtful whether the plans- and specifications provided for by this statute related to-the subject of grade at all. At all events, we are of the opinion that, under the authority of section 5, the board and commissioner, acting in good faith, may, in determining the details of the contract, provide that the highway shall conform to the grade which shall to them seem most practicable.

It follows from these views that the decree in the chancery case should be affirmed, and the judgment in the law case should be reversed, with costs in each instance to the' prevailing party.

Hooker, C. J., Carpenter and Grant, JJ., concurred. Moore, J., did not sit.