author: Blair, J.

text:
    TREND v. DETROIT UNITED RAILWAY.
    1. Master and Servant — Personal Injuries — Fellow-Servants — Incompetent Servant — Negligence—'Trial—Instructions.
    Where, in an action by a servant against an electric railway company for injuries caused by being struck by a car operated by an incompetent motorman, the only ground upon which recovery could be based was the negligence of defendant in retaining the incompetent servant in its employ with knowledge of his incompetence, it was error to instruct that the jury might fully consider the other claims of negligence in determining whether defendant retained in its employ an incompetent motorman whose negligence- caused the injury.

      2. Same — Evidence—Books—Admissibility.
    Books kept by defendant showing the records of conductors and motormen, and containing entries as to the alleged incompetent motorman, are admissible in evidence as to his record, not only for the purpose of showing notice to the company of his record, but also as prima facie evidence of any facts stated therein, and plaintiff is not limited in his use of the books to specific acts of incompetency otherwise shown,, except as he may have limited himself by his declaration.
    3. Same — Defenses—Demands op Union.
    Whether a servant suing his master for a personal injury caused by the negligence of an incompetent fellow-servant is estopped to rely on the negligence of the master in retaining such servant in his employ by the fact that such retention was due to the demands of a union of which plaintiff was a member, will not be decided on a record which does not show the agreement between the defendant and the union.
    Error to Oakland; Smith, J.
    Submitted June 21, 1907.
    (Docket No. 75.)
    Decided July 15, 1907.
    Case by Jacob A. Trend against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Andrew L. Moore, for appellee.
   Blair, J.

Plaintiff, a conductor in the employ of defendant, while in the discharge of his duties as such conductor, was struck and seriously injured by a car operated by another employ é of defendant, a motorman by the name of Dillon, operating said car upon an adjacent parallel track. There was evidence tending to show that Dillon operated his car negligently, that he was incompetent to perform the duties of his position, and that defendant had notice of such incompetence. Plaintiff recovered a verdict, and defendant has brought the record to this court for review. The points of error relied upon by appellant for a reversal are the following:

“1. The injury of which the plaintiff in this case complains was due to an accident, which was one of the risks which he assumed when he entered the employ of the company.

‘ ‘ %. Assuming for the sake of argument that the plaintiff did not assume the risk by virtue of his employment, then under his own testimony he was guilty of contributory negligence.

3. Since the injury was inflicted by a car operated by motorman Dillon, who was a fellow-servant of plaintiff, plaintiff cannot recover, even though Dillon was negligent. There was error in the admission of testimony as to the alleged incompetency of the motorman, Dillon: (a) In the admission of the books of the company. (6) In the testimony as to specific acts.

“4. Assuming that Dillon was negligent, his retention in the employ of the company was due to the demands of the union of which plaintiff was a member at that time, and which estops him from setting up the claim of negligence on the part of the company in retaining Dillon in its employ.

“5. The court was in error in giving as a portion of the charge the accumulative claims of the plaintiff.”

We are of the opinion that point 5 is well founded. The only ground upon which the plaintiff was entitled to have his case submitted to the jury was that of negligence of an incompetent fellow-servant, of whose incompetence defendant had, or was chargeable with, notice. After stating at length the several claims of plaintiff’s counsel as to the acts or omissions of defendant which constituted negligence, the court said:

“It is essential to review all of these claims, because most of them seem to have some bearing in this case either upon the question of whether the viaduct was a safe place to work, or whether the plug was located as it should have been, or whether the company was negligent in not refusing Dillon employment or in retaining Dillon, whether Dillon was a competent or incompetent motorman, and some of them have a bearing on the question as to whether or not the plaintiff himself was guilty of contributory negligence. * * * And I might as well say right here that if there was no evidence in this case except the claimed negligent acts of Dillon in running his car carelessly or too fast down through the viaduct, if there was no evidence of his incompetency, then it would be plain that the injury would have been caused solely by a fellow-servant, and, of course, one fellow-servant cannot recover from a company for the act of a fellow-servant, especially working in the same kind of employment, in the same class of service that he himself is employed in; but I have rehearsed these various claims, gentlemen, and they are full of your consideration.”

Holding, as we do, that the only negligent acts upon which a recovery could be justified were those of Dillon, it was error to instruct the jury that they might fully consider the other claims of negligence in determining the question whether the defendant retained in its employ an incompetent motorman whose negligence caused the accident.

The books referred to under point 3 were books kept by defendant containing the records of conductors and motormen, and contained entries as to ’motorman Dillon. The defendant was chargeable with notice of the entries contained in the books, and the record of Dillon was admissible, not only for the purpose of showing notice to the company of the record, but also as prima facie evidence of any facts stated therein, and plaintiff was not limited in his .use of the books to specific acts of incompetency * otherwise shown, except as he may have limited himself by his declaration. Furthermore, it is practically conceded by counsel for defendant, in their principal brief, that defendant recognized the incompetency of Dillon, and would not have taken him again into his employ after his discharge, except for the demands of the union.

“The contention of the defendant company is this; That the continuance of Dillon in the employment of the company, after the accident in September, 1902, was due solely to the demands and insistence of the organization of which the plaintiff at that time was a member and continued to be until the time of the accident in question.”

In support of their contention under point 4, counsel for defendant cite Farmer v. Kearney, 115 La. 722 (3 L. R. A. [N. S.] 1105). In view of our conclusion that a new trial must be had, for the reason above stated, we do not feel inclined to consider this important contention upon the record before us. While it appears from the record that some kind of an agreement existed between defendant and the union to which plaintiff belonged, whereby the “business agent” of the union had some voice in determining whether a member should be discharged, the entire agreement is not before us. According to the statements of counsel upon the oral argument, important provisions of the agreement, such as provisions for arbitration in case of disagreement between the business agent of the union and the defendant’s officers, are not contained in this record. We, therefore, must decline to consider the question presented until it comes be: fore us upon a record fully presenting the agreement between the defendant and the union.

The question of contributory negligence was for the jury, and the court did not err in so holding.

Judgment reversed, and a new trial granted.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Caspentes, J.

license: Public Domain

text:
    KELLEY v. SECRETARY OF STATE.
    1. State Legislature — Procedure — Resolutions — Statutes— How Passed.
    A resolution of the legislature requiring the secretary of State to take the necessary steps to submit to the electors of the State a question to be voted upon at a special election called for another purpose is legislation which might be accomplished by bill or joint resolution and therefore requires the votes of a majority of all the members elected to each house (Const, art. 4, § 19), notwithstanding it is denominated a “concurrent” resolution by the legislature.
    2. Statutes — Passage—Procedure—Constitutional Provisions —Tie Yote — Power of Lieutenant Governor.
    Section 19 of article 4 of the Constitution requires that at least 17 senators must concur in passing a bill or joint resolution before it oan become a law; section 14 of article 5, empowering the lieutenant governor to give the casting vote in cases of an equal division of the senate, being applicable only to resolutions not having the force of laws, assuming that there are such.
    3. Constitutional Law — Right to Instruct Representatives— Construction of Provision.
    Section 10 of article 18- of the Constitution, providing that the people have a right to instruct their representatives, authorizes a plebiscite, if authority be needed, on the question whether the people desire to nominate their candidates for United States senator by direct vote, but has no bearing on the question how the law submitting such question to the people shall be enacted.
    Mandamus by Patrick H. Kelley to compel George. A. Prescott, secretary of State, to submit a question to the vote of the people as provided by Concurrent Resolution No. 1, Pub. Acts 1907.
    Submitted July 13, 1907.
    (Calendar No. 22,389.)
    Writ denied July 15, 1907.

      Bollin H. Person, for relator.

      John E. Bird, Attorney General (Charles W. McGill and George S. Law, of counsel), for respondent.
   Caspentes, J.

Relator, the lieutenant governor of the State, seeks by these proceedings a mandamus compelling respondent, the secretary of State, to take the steps required by him to be taken in the following concurrent (so-called) resolution:

“Resolved by the senate (the house of representatives concurring) that there shall be submitted to the people of the State of Michigan at the election to be held on the seventeenth day of September, nineteen hundred seven, for choosing delegates to the constitutional convention, the question of nomination by direct vote of the qualified electors of the State, of the United States senator, governorvand lieutenant governor, the candidate of any party receiving the highest number of votes of such party for either of said offices, tobe the candidate for such party for such office, and the secretary of State is hereby required to certify the same to the clerks of the several counties, and give notice of the same to the sheriffs of the several counties of this State, and the sheriffs of the several counties of this State shall be required to give notice of the same to the several townships and wards in said State, in the manner required by law, and the said question shall be printed upon a separate ballot used at said election, as follows (we omit the description of the method of printing).

“Such ballots so prepared shall be sent out by the board of election commissioners at the samé time as the ballots to be used at said election.

“All votes cast on said question shall be taken, counted, canvassed and returned as provided by law for the election of State officers.” Concurrent Resolution No. 1, Pub. Acts 1907.

This resolution was duly passed by the house of representatives. In the senate — consisting of 32 members — 16 senators voted for it, and 16 voted against it. Thereupon the president of the senate, lieutenant governor, the relator, voted for the resolution and declared it adopted. It received the approval of the governor. Did the lieutenant governor, the president of the senate, have a casting vote on this resolution, and did such vote give it legal effect? is the constitutional question presented by these proceedings. Relator answers this question “Yes.” Respondent, acting under the advice of the attorney general •of the State, answers it “No.” This question, though important, is not difficult to determine. We are therefore able, as the exigency of the case demands, to determine it the second day after its submission.

In the judgment of thp court, this issue is to be determined by that portion of section 19 of article 4 which reads as follows:

“No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house.”

As a majority of the members elected to the senate — for concededly the lieutenant governor was hot one of those members — did not vote for this resolution, it is not effective unless one or the other of the two following propositions can be maintained: First, that the resolution.in question is not a bill or joint resolution within the meaning of the constitutional provision above referred to; second, that in case of an equal division of the senate a bill or joint resolution may become a law by the casting vote of the lieutenant governor, the president of the senate. We will consider separately each of these propositions.

First. Is the resolution in question a bill or joint resolution, within the meaning of the constitutional prowision:

“No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house”?

This language, according to sound principles of constitutional construction, applies to all laws which might be effected by the passage of a bill or the adoption of a joint resolution. Otherwise legislators might, at their pleasure, disregard its prohibition by calling the bill or joint resolution by some other name. It is therefore unimportant that the resolution in question is called a concurrent resolution. It is none the less a bill or joint resolution within the meaning of section 19 of article 4, if, assuming it to be valid, it is a law which might have been effected by the passage of a bill, or the adoption of a joint resolution. That the object of this resolution might have been so effected — that is, by the passage of a bill or the adoption of a joint resolution — is apparent and obvious. It certainly would have been competent for the legislature to have effected its object by the passage of a bill. Had it done so, we apprehend that no one would have claimed that its action was illegal or improper, because it had not called such a resolution a concurrent resolution. But it is contended that the resolution, assuming it to be effective, is not a law within the meaning of section 19 of article 4. The ground upon which this contention rests is that its object is to gather information to be used only in enacting subsequent lawh. But the resolution, if effective, is none the less a law. It is a law for the procurement of such information. If effective, it imposes legal duties upon the secretary of State (and, if it did not, relator is not entitled to relief), upon the clerks, sheriffs, and board of election commissioners of the several counties of the State, and upon all the canvassing boards in the State. It undertakes — and, if effective, it succeeds in that undertaking — to provide a legal election not otherwise provided for, and to surround the same with all the safeguards of law. It follows from this reasoning that, in our judgment, the resolution comes within the provision:

“No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house.”

Second. Can a bill or joint resolution become a law by the casting vote of the lieutenant governor without the concurrence of a majority of the members elected to each house ? Those who answer this question in the affirmative must and do base their answer upon section 14 of article 5 of the Constitution, which reads as follows:

“ The lieutenant governor shall, by virtue of his office, be president of the senate. In committee of the whole he may debate all questions; and when there is an equal division he shall give the casting vote.”

If the above language qualifies the provision:

“ No bill or joint resolution shall become.a law without the concurrence of a majority of all the members elected to each house”—

And those who answer the question under discussion in the affirmative must maintain that it does qualify it— some startling consequences result. In that event, whenever there is an equal division on the passage of a bill, the lieutenant governor, as president of the senate, will have a casting vote, and, if he casts that “vote in the affirmative, the bill will become law. No sound argument occurs to us by which it may be held that his right to give that casting vote would be limited to cases where 16 senators vote in the affirmative. If he has it where the vote stands 16 yeas and 16 nays, he would, by the same reasoning, have it when the vote stood 14 yeas and 14 nays. An argument leading to such consequences is not sound. Section 14 of article 5 does not say that the lieutenant governor shall have a casting vote for the purpose of making laws; neither is that the necessary construction to be placed upon its language. The most that can be said is this — that if the provision stood alone it is open to that construction. It is also open to the construction— and this is the construction placed upon it by the attorney general — that the right of the lieutenant governor to give a casting vote is limited to proceedings in the committee of the whole. And it is, perhaps, open to the construction that he also has the right to give the casting vote upon the passage of resolutions which do not have the force of law, if, as relator contends, there are such resolutions. On the other hand, the language of section 19 of article 4,-

“ No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house,”

Is, by no possibility of reasoning, open to the construction that a bill or joint resolution may become a law without the concurrence of said majority. We have then the task of harmonizing two provisions of the Constitution; one of which states explicitly that—

“ No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house,”

And another which is open to a contrary construction. By what principle shall we harmonize them ? Obviously this — the doubtful language must receive a construction in harmony with that which. is not doubtful. Indeed, in such a case a court is called upon to construe the doubtful provision only, for the explicit provision can have but one meaning and is not open to construction. Section 14 of article 5 must therefore receive a construction in harmony with section 19 of article 4, and it cannot be so construed as to permit the lieutenant governor to give a casting vote for the purpose of making a law. Whether his right to give such casting vote is limited to proceedings in committee of the whole, or extends to resolutions, if there be such, which do not have the force of law, is a question which is not before us and which we do not determine.' It results from this reasoning that the resolution in question is legally ineffective.

Before concluding this opinion, we deem it our duty to refer to section 10 of article 18 of the Constitution, which is called to our attention by relator. That section reads:

“The people have the right peaceably to assemble together, to consult for the common good, to instruct their . representatives, and to petition the legislature for redress of grievances.”

It has no bearing whatever on the legal question involved in this suit. It may afford justification, if justification were otherwise needed, for the enactment of a law like that attempted by the resolution before us; but it is quite sufficient to say that such a law must be enacted in accordance with the Constitution. It must receive a concurrence of a majority of all the members elected to each house.

The application for a mandamus is therefore denied.

McAlvay, C. J., and Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
    FYFE v. KENT COUNTY CLERK.
    Officers — State Legislature — Members — Eligibility to Oeeice — Delegate to Constitutional Convention.
    Under section 18, article 4, of the Constitution, a member of the legislature of 1907, which enacted the law providing for the constitutional convention of 1907, is ineligible as a deleegate to that convention, election as such delegate being a “ civil appointment ” from State authority as the quoted words are used in the section cited.
    Mandamus by Andrew Fyfe to compel Ralph A. Mosher, clerk of Kent county, to place relator’s name on the ballot for primary election as delegate to the constitutional convention.
    Submitted July 15, 1907.
    (Calendar No. 22,389½.)
    Writ denied July 15, 1907.

      Kleinhans & Knappen, for relator.

      John E. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   Per Curiam.

The legislature of 1907 passed an act providing for a convention for the purpose of making a general revision of the Constitution. (Act No. 272, Pub. Acts 1907.) It provides for 96 delegates, consisting of 3 from each senatorial district. The compensation provided is ten dollars per day. The relator, a senator of the legislature, presented the necessary petition to the respondent to place his name on the ballot for primary election as delegate to the constitutional convention. He declined to place his name on the ballot, upon the ground that he is a member of the present legislature which enacted the law, and is therefore ineligible under the Constitution. Relator applies for the writ of mandamus to compel the respondent to place his name on the ballot. The sole question, therefore, is: Is relator ineligible as a delegate to the constitutional convention?

The constitutional provision (section 18, art. 4) reads as follows:

“No person elected a member of the legislature shall receive any civil appointment within this State, or to the senate of the United States, from the governor, the governor and senate, from the legislature or any other State authority, during the term for which he is elected. All such appointments and all votes given for any person so elected for any such office or appointment shall be void. No member of the legislature shall be interested, directly or indirectly, in any contract with the State or any county thereof, authorized by any law passed" during the time for which he is elected, nor for one year thereafter.”

It is conceded that delegates to the constitutional convention are State officers. It is held in several decisions that the terms “appointment” and “election” are synonymous terms. This court said, speaking through Justice Christiancy, in People v. Hurlbut, 24 Mich. 44:

“The Constitution does not seem to have made any clear distinction between the ‘.election 5 and the ‘ appointment5 of officers; and in section 18, art. 4, the terms seem to be used as synonymous, and what is usually or more properly termed the election of a senator is there designated as an appointment.”

See, also, State v. Compson, 34 Or. 25; McPherson v. Blacker, 146 U. S. 1.

The duties of delegates to the constitutional convention relate exclusively to affairs of State. They have no other function to perform than a State function. The only question, therefore, is: Does such an officer receive his appointment or election from any other State authority than the three just previously mentioned ? If the framers of the Constitution meant to exclude members of the legislature from eligibility to other State offices, no language could be more comprehensive than that of “any other State authority.” These are State officers elected hy State authority. They receive a civil appointment from State authority. There are other provisions of the Constitution which show the intention to prevent members of the legislature from holding other civil positions during their term of office. Section 6, art. 4, provides:

“ No person holding any office under the United States [or this State] or any county office, except notaries public, officers of the militia and officers elected by townships, shall be eligible to or have a seat in either house of the legislature, and all votes given for any such person shall be void.”

The purpose of these provisions is "to preserve a pure public policy,” or, as we said in Ellis v. Lennon, 86 Mich. 468, speaking through Justice McGrath, “to prevent officers from using their official position in the creation of offices for themselves or for the appointment of themselves to place.”

We are all of the opinion that delegates to the constitutional convention come within the term “civil appointment,” as used in this provision of the Constitution, that they receive their appointment from State' authority, and therefore that members of the legislature which enacted the law and thus provided for the offices, fixing compen-. sation, etc., are ineligible as delegates. They are both within the spirit and letter of the law.

The writ is denied.


text:
    SIMPSON v. CRANE.

    1. Contracts — Misrepresentations — Evidence — Admissibility.
    Where plaintiffs declined to accept an agreement drawn on the basis of certain alleged misrepresentations of their agent to defendants, and proposed a new one which defendants accepted, and which pot only was not based upon or obtained by reason of the fraudulent representations, but was independent of, and in effect repudiated them, such new agreement became the entire agreement between the parties, and testimony as to the alleged fraudulent representations was inadmissible to avoid it.
    3. Sales — Contracts—Goods por Resale — Breach by Seller.
    Where a seller of goods for resale fails to perform his contract as to furnishing advertising matter and other aid to making sales, and such failure to perform is not waived, the measure ■of his damages in an action for the price is the contract price, less such amount of damages as the buyer can show he has suffered by reason of the seller’s default.
    3. Same — Inferior, Quality oe Goods — Recoupment oe Damages.
    Where a buyer of goods receives precisely what he ordered he cannot recoup any damages on account of the inferior quality or efficacy of the goods.
    Error to Eaton; Smith, J.
    Submitted January 9, 190?.
    (Docket No. 8.)
    Decided March 5, 1907.
    Rehearing denied July 15, 1907.
    Assumpsit by Henson S. Simpson, George H. Simpson, and T. Scott Simpson, copartners as the Acme Food Company, against William H. Crane and Elmer McGee, copartners as Crane & McGee, on certain promissory notes. There was judgment for defendants, and plaintiffs bring error.
    Reversed.

      Frank A. Dean, for appellants.

      Black & Beasoner and S. B. Boe, for appellees.

       The opinion filed on the original hearing in this oase was withheld from publication pending the rehearing.

   Blair, J.

Plaintiffs instituted suit against defendants by filing a declaration on the common counts in assumpsit with notice that on the trial they would give in evidence three promissory notes, dated November 19, 1903, for $300 each, and payable in four, seven, and ten months, respectively. Attached to each note, the following appeared in print, except the signature:

“We, the undersigned, agree with Crane and McGee, of Millett, State of Michigan, executing above orders as follows: You are expected and instructed to sell said Acme Food strictly on its merits as the guaranty provides, and to warrant and guarantee the said food to each customer if therein fed according to printed directions. And we agree in all cases where your customers have fed the food as aforesaid, and furnish us with their affidavit on printed form furnished by us, to ship to you, free of charge, F. O. B. on cars at your station, as many pounds not exceeding five hundred pounds to a single customer as shall appear by such affidavits to have been used by such customer. It is understood that this warranty shall cover in each case only the first sale made to each individual customer. All blank spaces and such affidavit must be filled in ink before same are executed; and the party executing same must clearly and explicitly state that he has fed said food in accordance with instructions, detail the manner of feeding same, and that his stock has derived no benefit therefrom, otherwise this warranty is of no force or effect. No agreement recognized unless in writing on this sheet.

“ Acme Food Company,

“188 East Madison Street,

“ Chicago, Illinois.

“ C. A. Hammond, Salesman.

“Form Á.”

The guaranty referred to was in print, and pasted on the receptacles containing the food. Defendants had purchased food of plaintiffs prior to giving the notes in question, and had been negotiating with them through their agent, Hammond, for larger quantities and more extensive territory. November 18, 1903, plaintiffs wrote to defendants a letter containing the following:

“We would be pleased to turn to you such dealers as may be possible in the way of assisting you in securing further subagents in the territory unoccupied, and would also guarantee to send you our salesman to work two or three days with such subagents as are established, as well as to give the same amount of assistance to each dealer that you establish, and thereafter to call upon you every thirty to forty-five days as nearly as is possible for the purpose of loaning you such assistance, and after your subagents have been assisted, you would thereafter drive with them from time to time and pull every and all strings possible to bring about the best possible results. By handling the Acme Food business on this basis, you would be able to handle several carloads a year. We have instructed Mr. Hammond to offer you the eastern half of Eaton county, less the territory tributary to Eaton Rapids, and'also the western half of Ingham county, providing you favor us with an order for a carload lot and are also in a position to favor us with sufficient information or security, so that we will be able to grant to you the credit favors which you may desire.

“ Should you desire to favor us with an order of that character, possibly it would be well for you to also favor us with a property statement on blank inclosed.”

On November 19th, defendants executed a written contract with the agent Hammond and forwarded it to the plaintiffs, along with the notes executed at the same time. Hammond had made various material representations to defendants as to the quantity of food in the proposed territory, the ingredients of the food, its efficacy, the number of subagents, and what the plaintiffs would do to .help make sales, etc. This contract was drawn in accordance with the terms “as he and I talked.” November 21, 1903, plaintiffs wrote defendants as follows:

“ Nov. 81, 1903.

“Crane & McGee, Millett, Mich.

“Gentlemen: We are today in receipt of your order for a carload of Acme Food, as well as property statements and. notes in settlement of the same, and wish to advise that the terms specified in the order are much longer time than we as yet have ever granted, and we feel that in justice to ourselves, with the notes drawn for longer time than a period of six months, that they should bear interest at the rate of at least 6 per cent.

“ In regard to the contract which you enclosed will say, that as yet we have never given any contract, and do not believe that the same should be necessary, and the only thing necessary is to have a thorough understanding,- and will state that we are willing to give you the north half of Eaton county, Michigan, including the city of Charlotte, also all of Ingham county, Michigan, as well as the town of Shaftsburg in Shiawassee county, Fowlersville in Livingston county, and Rives Jet., in Jackson county, Michigan, and to turn to you any and all dealers now established in that territory, for such time as at least one of your firm devote their entire time to the business, or have a salesman to do so, and we will also give you the assistance as provided in. our letter of Nov. 18th, 1903. Therefore if this will be acceptable to you, we then will make shipment of the goods and grant you the time which has been requested.

“We notice that you did not order any Acme Poultry Food, and believe it would also be to your interest to also favor us with at least ten cases of the 28 oz. and 5 lb. packages, as well as about 1,000 lbs. in 10 lb. pails. The list price on the 28 oz. packages is $5.50 per case, and the 5 lb. packages, $12 per case, and the 10 lb. pails, $7 per cwt. On the quantities offered in our letter of the 18th you will notice that a 10 per cent, discount is offered you, and on this Poultry Food we would be willing to grant you 120 days time.

“Car will be loaded next Tuesday, and unless we hear from you to the contrary the same will go forward according to the conditions herein named.

“Yours respectfully,

“Acme Food Co.

“Diet. G. H. S.”

November 23, 1903, defendants replied as follows:

“Crane & McGee,

“ Millett, Mich.

“ Acme Food Co.,

“ Chicago, 111.

Gentlemen: We are in receipt of your favor of 11-21, regarding the order for a carload of food and notes in settlement for same. We insisted that Mr. Hammond make payments according to notes sent you. Our reason for doing so was to protect ourselves. However, we can assure you that if we can dispose of the car this winter, all notes will be paid within six months; or we are willing to send you all bills for collection as fast as we ship the food out, but do not feel as though we ought to pay five per cent, on notes.

‘ ‘ In regard to the contract, we do not care very much about it; all we ask is that you do all you can for us to get us started; we have a large territory and it’s getting late in the season.

“We wrote you Saturday in regard to the Poultry Food. We will try and get all of our agents to.handle it, but do not want to order it now in 10 case lots. Will order later on if we can dispose of it.

“ Very truly yours,

“ Crane & McGee.”

The car of food was shipped by plaintiffs and received and accepted by defendants.

Defendants gave notice of special defenses under the general issue as. follows:

1. That plaintiffs had compromised and canceled their claim.

2. That the notes were obtained by fraud.

3. Failure of consideration and breach of contract.

At the close of the testimony, plaintiffs’ counsel, among other requests, requested the court to direct a verdict in their favor for the amount of the notes with interest. The court submitted the case to the jury, who returned a verdict for defendants, and plaintiffs have removed the record to this court for review upon numerous assignments of error. Counsel for defendants allege in their brief that:

“The question of compromise was not submitted to the jury except in accordance with the requests of the plaintiffs. See plaintiffs’ requests Nos. 31, 32, 33. * * *

“It was further charged in the special notice as a defense, that the notes in question were void for fraud; that the plaintiffs falsely represented that the animal food which was sold to the defendants, and for which the notes were given, was a useful and valuable food and medicine, containing ground flax seed, herbs, and medicinal materials. The plaintiffs also falsely represented that there were less than 6,000 lbs. of food in the territory which they were to allot to the defendants, in the hands of the agents or dealers appointed by the plaintiffs to dispose of the food, and the defendants were misled, and bought the stock food in reliance on such representations. The other allegations of fraud contained in the notice were not insisted on at the trial. * * *

“Defendants’ contention concerning the fraud in the quality and nature of the food was not submitted to the jury by the court; but only the question whether or not Hammond had falsely represented that there were only 6,000 lbs. in the territory. * * *

“The third division of the defendants’special notice alleged that the defendants were discharged from their obligations under the notes and contract by a material breach of the contract; that the plaintiffs agreed to furnish sufficient advertising matter; to send a salesman to aid for two or three days every 30 or 45 days in the sale of the food; to send a salesman to work for that time with all agents established by defendants, and to sell and dispose of all goods then in the defendants’ territory.

“The defendants allege that the plaintiffs failed to send advertising matter in sufficient quantities, and failed to send the salesman to work as stipulated, and neglected to dispose of the goods already in the territory.

“As appears in our statement, the main issues upon which the case was submitted to the jury were but two, viz.:

“First. Did the plaintiffs’ agent, Hammond, in securing the order of the car load of animal food practice deceit upon the defendants as to the amount of such food then in the territory assigned them ?

“Second. Did the plaintiffs perform their agreement in furnishing advertising matter and a salesman to aid as promised in the sale of the car load of food in question ?”

We think the circuit judge erred in admitting testimony of the representations of the agent, Hammond, to induce the giving of the notes and in submitting the question of fraudulent representations to the jury. The alleged fraudulent representations were made the basis of the agreement between the defendants and said agent. Defendant Crane testified:

Q. Now, witness, at that time you claim he agreed that what goods were in that territory should be taken up by the Acme Company ?

“A. I testified they would unload them, that they would dispose of them themselves; Mr. Hammond agreed to that.

‘ ‘ Q. He said it didn’t make any difference how much there was there, they would sell them out before you begun?

“A. Yes, sir, he said they would unload them. I think that was included in the contract. * * *

“Q. Whatever you agreed to between themselves, you undertook to place in the original contract sent you to sign ?

“A. Yes, sir: Mr. Hammond dictated most of the contract and I wrote it.”

Plaintiffs déclined to accept the agreement made as the agent and defendants had talked, but proposed a new agreement, which defendants accepted and which, thereupon, became the only agreement and the entire agreement between the parties. The last agreement was not only not based upon or obtained by reason of the fraudulent representations,, but was independent of them, and, in effect, repudiated them.

Aside from the claim that there was no evidence of plaintiffs’ default in that regard, we understand plaintiffs’ counsel to concede that the question of plaintiffs’ compliance with the agreement-to assist defendants by sending their salesman to work with subagents, etc., was properly submitted to the jury. While defendants’ letters and conduct indicate very strongly that this part of the agreement was performed to their satisfaction, we cannot say that there was no evidence to the contrary for the consideration of the jury.

Plaintiffs seem to have construed the agreement as requiring them to furnish sufficient advertising matter to aid in making sales of the food, and to have undertaken to do so. Whether they carried out this undertaking was a question for the jury.

We do not understand counsel for defendants to con-

tend that there was any competent evidence of a settlement, but that such evidence “was not submitted to the jury as a defense, but only as bearing upon the necessity of tender in case a fraud was found to have been perpetrated by the plaintiffs’ agent.” As we have held that the evidence of fraudulent representations by the agent was improperly received, there was no basis for this testimony.

In case the jury should find, upon another trial, that plaintiffs had not performed their contract as to furnishing advertising matter and other aid to making sales, and that such assistance had not been waived by defendants, plaintiffs’ measure of damages would be the contract price, less such amount of damages as defendants should show they had suffered by reason of such default on the part of plaintiffs. Defendants are not entitled to recoup damages on account of the quality or efficacy of the food, they having received precisely what they ordered.

Judgment reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


author: Moore, J.

text:
    NOWLEN v. HALL.

    Appeal and Error — Second Appeal — Law of the Case.
    Where a defendant in ejectment, after affirmance of a judgment for plaintiff, takes a new trial under the statute, and the evidence on the second trial differs only in respect to a ■ misdescription of the land in one of the deeds, and the question whether the mistake can be shown in an action of ejectment is not raised on the second trial, the decision on the former appeal controls the case.
    Error to Berrien; Coolidge, J.
    Submitted January 17, 1907.
    (Docket No. 50.)
    Decided March 5, 1907.
    Rehearing denied July 15, 1907.
    Ejectment by Albert R. Nowlen against Charles W. Hall and others. There was judgment for plaintiff on a verdict directed by the court for an undivided one-half o£ the property involved, and defendant Hall brings error.
    Affirmed.

      H. S. Whitney, for appellant.

      Plummer & Plummer (George W. Bridgman, of counsel), for. appellee.

       The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

   Moore, J.

This is an action in ejectment. The case has been here before. It is reported in 128 Mich. 274. Defendant, taking advantage of his right under the statute to another trial, brought the case on for a second trial, this time before a jury. Counsel for defendant conceded in open court that his client had no claim to the city lots, and consented that plaintiff take judgment for them. After hearing the evidence the court instructed the jury to find that the undivided one-half of the acreage propertv belonged to plaintiff and an undivided one-half to defendant Charles W. Hall. The jury found accordingly, judgment was so entered, and from this judgment the defendant comes to this court on writ of error. ' In the opinion handed down when the case was here before there is a detailed statement of facts. A reference to that opinion will give an understanding of nearly all the questions involved here. Upon the second trial the matter of the tax deeds and tax titles was regarded as settled by the opinion to which reference has just been made. In the opinion, Chief Justice Montgomery, in referring to the acreage property, said:

“We find that, while the adverse possession found by the court had the effect to cut off the Miller title, it did not defeat the Boughton title, which subsequently vested in the defendant. The commissioner’s deed on foreclosure of the Boughton mortgage did not cover this land at all. The title, therefore, derived through Lewis, was vested one-half in plaintiff, and one-half in defendant.

“ Our conclusion is that the judgment should be affirmed as to the city property, and modified as to the acreage property, so called. The plaintiff is entitled to recover one-half of the latter.”

The only evidence upon the second trial which casts doubt upon this conclusion is the description contained in the deed, dated January 33, 1861, from Martin Green, by Lucius A. Willard, attorney, and Mary F. Green, wife of Martin Green, and Lucius A. Willard and his wife, to Belmont C. Lewis. The land conveyed therein is described as follows:

“ Conveying all that part of the northwest quarter of the northeast quarter of section twenty-four, town four south, range eighteen west, aforesaid, lying south of Territorial Road, twelve acres.”

It will be observed that the range mentioned in this conveyance is range 18 west, while the land in controversy is in range 19 west. It was shown that, when this deed was made, the grantors therein had no land on section 34, township 4 south, range 18 west, but were the owners of land in section 24,. township 4 south, range 19 west. It was further shown that there was no 12 acres of land south of the territorial road in range 18 west. The record also discloses that Mr. Lewis went into possession of the land in range 19 west, and on November 6, 1869, conveyed an undivided one-half interest thereof to Curtis Boughton, which title, by mesne conveyances, was acquired by defendant. It is very clear that a clerical error was made in writing the word “eighteen ” when it was intended to write the word “nineteen.” We have no occasion to decide whether this mistake can be shown in an ejectment suit. That question was not raised.

Judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


text:
    FIRST NATIONAL BANK OF DURAND v. SHAW.

    1. Bills and Notes — Action—Pleading—Notice of Defense-Sufficiency.
    In an action on a promissory note against several, a notice of special defense, supported by the affidavit of one of the defendants denying the execution of the note, is sufficient to justify the requirement that plaintiff must show the execution of the note before it can be offered in evidence, and to admit the defense of forgery as to some of the signatures.
    2. Same — Joint and Several Note — Forgery in Part — Effect.
    Though a part of the names purporting to be signed to a joint and several note are forged it is valid in the hands of a bona fide holder as against those who actually signed it.

      Error to Presque Isle; Emerick, J.
    Submitted January 18, 1907.
    (Docket No. 57.)
    Decided March 5, 1907.
    Rehearing denied July 15, 1907.
    Assumpsit by the First National Bank of Durand against Thomas E. Shaw and others on a promissory note. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      John T. McCurdy (Lyon & Moinet, of counsel), for ' appellant.

      Charles B. Henry, for appellees.

       The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

   Moore, J.

This action was brought upon a note reading as follows:

“$600.00 Onaway, Mich., Nov. 18th, 1901.

• “ On September 1st, 1903, after date, for value received, I promise to pay to Comstock & Crawford, or order, six hundred dollars at the Onaway Banking Company office in Onaway, Mich., with interest at 6 per cent, per annum, interest payable annually.”

Signed by Thomas E. Shaw and 19 others.

Plaintiff purchased this with two other notes, aggregating $2,000, and claimed to be a bona fide holder thereof. Defendants pleaded the general issue with notice that the note was procured by fraud on the part of the payees; that the names of a number of the signers of the note were forged; that some of the'makers signed the note with the understanding and agreement that before the note was to be delivered certain others should also sign it, which was not done; that the note in question was given as the purchase price of a certain stallion; and that’the horse did not comply with the representations made by the payees of the note. A copy of the note in question was embodied in the declaration by which the suit was commenced. Thomas Shaw, one of the defendants, made and filed an affidavit, denying the execution of the note. The case was tried before a jury which rendered a verdict in favor of defendants.

Inasmuch as the jurors were instructed that the plaintiff was a bona fide holder of the note, it will be unnecessary to discuss many of the questions presented by counsel. There are, however, two important questions which call for consideration. The first of these is, Was the notice sufficient to justify the requirement that plaintiff must show the execution of the note, before it could be offered in evidence, and to admit the defense of forgery as to some of the signatures ? We think the judge was justified in holding the notice to be sufficient, by the following authorities: McCormick v. Bay City, 23 Mich. 457; Wren v. McLaren, 48 Mich. 197; Haight v. Arnold, 48 Mich. 512; McRobert v. Crane, 49 Mich. 483; Thompson v. Village of Mecosta, 127 Mich. 522.

The important question in the case is presented by those portions of the charge to the jury reading as follows:

“ Here was a club of 20 men, as is conceded, organized for the purpose of purchasing this horse. Those 20 men were willing to sign notes which would bind them for the payment for that horse. The paper which they did sign— that is, those of them who signed it — is a joint and several note. The language of the note is: ‘ On September 1st, 1903, after date, for value received, I promise to pay to Comstock & Crawford, or order, six hundred dollars.’ And the other notes, each of them for $700’, are of the same tenor and purport. It is not only a joint note, of 20 defendants, but it is a joint and several note, upon which any one of these defendants might be sued alone and held for the full payment of the face of that note. And those men, gentlemen, when they signed that note, had the right to have it signed by 19 other men, whose signatures should not be forgeries, but should be the genuine, binding signatures of the men whose names purported to be upon the instrument. It seems to me that that would be common sense. It seems to me to be common sense. It sounds to me as though it would be common fairness, and honesty, and it is the law.

“The question in this case, gentlemen of the jury, for your consideration is whether these claims of these men that they hevpr signed this note, or authorized it, are true.' Mr. Gillis, Mr. Curtis, Mr. Irwin, Mr. Deitrich, and Mr. Thomas assert they never signed this paper. * * *

‘ ‘ I charge you as the law, that if those five men, or any one of them, did not sign this note — if those five men or any one of them, did not sign this note, or authorize it to be signed for them, but that their names were forged without their consent, it would invalidate the note as to every one of these defendants, and your verdict would be no cause of action. That is the law of this case in a nutshell. * * *

“ If you do not find that fact by a fair weight and preponderance of the evidence, you will find a verdict for the plaintiff for $736.02.”

Counsel for the defendants insists the court properly instructed the jury upon this phase of the case. We quote from his brief:

“The note in question contained 20 signatures. Five of the men whose names appear on .the note allege their names are forged. When the payees procured this note, it was with the understanding and agreement, expressed and implied, that genuine names should be signed to the note of responsible men to the number of 20. Witness Chandler was the last man to s gn the note. There were 19 other names on the note at that time. Mr. Chandler testifies that when he signed the note, the last man to sign it, he did not question the other signatures. At that time he was asked by the payees of this note, who brought it to him, to sign the note, which note, at the time it was so brought to him by the payees, contained from on© to five forged names. As soon as the payees obtained Mr. Chandler’s name to the note, they retained possession of it, and seek to maintain that it is good in the hands of an innocent purchaser. We contend that it was a forged note and void as against every signature, even in the hands of an innocent purchaser. * * *

“ The evidence in this case shows that the payees took the note from man to man, securing the signatures of the makers. To every maker who actually signed the note, there was a forgery before or after his signature. If it was before his signature he was defrauded as much as though it was after his signature. * * *

“If those five names had been signed by the parties themselves, the other 15 signers would have less to pay. They were therefore prejudiced in any view we may take of it, by the forgery of the names in the note; and, as held in Searles v. Seipp, 6 S. Dak. 472: ‘ Under the modern authorities, such a note is held void in toto.’”

There can be no serious doubt that forgery of a negotiable instrument, or the indorsement thereon, except in case of ratification or estoppel, nullifies the instrument as to all parties against whom the forgery is committed. Norton on Bills & Notes (3d Ed.), p. 254, and this is true of paper which is altered in a material part. 2 Parsons on Notes & Bills, pp. 571, 580. It has been held that the destruction of a memorandum written under a promissory note, and qualifying it, vitiates the note in the hands of a bona fide holder, having no knowledge of the alteration. Wait v. Pomeroy, 20 Mich. 427; Holmes v. Trumper, 22 Mich. 429; Bradley v. Mann, 37 Mich. 1; First Nat. Bank of Cassopolis v. Carter, 138 Mich. 421, and the many cases there cited. These cases are not conclusive of the question involved here. An examination of the cases will not show one where part of the signatures were genuine and part forgeries, which had been placed thereon before the note was executed and delivered. Nor will they show a case where the alteration was made before the note was delivered. We think this is an important distinction.

Counsel for plaintiff contend that while the charge of the court might be good in a controversy between the original parties to the note, that it is not good law when-applied to a bona fide holder of the note. They urge that as the note is joint and several, that even though some of the makers could not be held because their names were forged that this would not be true of those whose signatures are genuine, citing many cases.

Selser v. Brock, 3 Ohio St. 302, was a case where Mr. Briggs signed after two other signatures that were forged, though he supposed at the time they were genuine. In disposing of the case the court said:

“The relation between a surety and the holder of a promissory note, is, in many respects, similar to that which exists between the indorser and the holder; and we learn from Story on Promissory Notes, p. 153, that the obligations which exist between the indorser and every subsequent holder of a promissory .note, are similar to that which exists between the drawer and the payee of a bill of exchange. And one of the consequences of a doctrine that a negotiable instrument, after indorsement, will pass by mere delivery, is, that if it should, after indorsement, be lost or stolen, or fraudulently misapplied, any person who should subsequently become the holder of it, bona fide, for a valuable consideration, without notice, would be entitled to recover the amount thereof, and hold the same against the rights of the owner, at the time of the loss or theft. This arises from the peculiar rights and obligations of negotiable paper, and the nature of the functions which it performs in commercial transactions. There is, therefore, great justice and propriety in the rule, that the payee or indorsee of negotiable paper takes it free from any of the conflicting equities existing between the several makers or obligors, of which he had no notice.”

In Bigelow v. Comegys, 5 Ohio St. 256, it was held that a surety to a replevin bond was not relieved of liability because the name of the other surety on the bond was forged.

To the same effect in relation to the bond of a cashier is Franklin Bank v. Stevens, 39 Me. 532.

In York County Mut. Fire-Ins. Co. v. Brooks, 51 Me. 506, it was held no defense that the surety to a bond was induced to sign by the promise of the principal that he would obtain other signatures before the bond was delivered, which promise was not performed, if the obligee had no knowledge. It was also so held where the surety signed, supposing a forged name thereon was genuine, the obligee being ignorant of the facts surrounding the giving of the signature.

In Veazie v. Willis, 6 Gray (Mass.), 90, the guarantor of a note indorsed by B., C., and D. was held liable where the signatures of the maker and of B. were forgeries. In the opinion it is said :

“The ground of objection to the maintenance of the action is, that the contract, on the part of the defendant, was made upon the assumption that all the names borne on the note were genuine signatures, and that he intended only to guarantee the solvency and ability of the parties to pay the same, treating all the names thereon as liable, as parties to the note. But, it appearing, upon the facts stated, that the defendant guaranteed the payment of this particular note, and thereupon the plaintiff concluded his agreement to purchase the note, both parties being equally innocent as to any fraud, misrepresentation, or concealment, the court are of the opinion that, upon the nonpayment of the same at its maturity by the parties whose names were borne thereon, the defendant, under his guaranty, became liable to pay the same to the plaintiff, although it now is made to appear that the names of the maker of the note and one of the indorsers were forgeries.”

In Stoner v. Millikin, 85 Ill. 218, a surety was held liable though he had refused to sign unless another person first signed, and the principal maker of the note, instead of obtaining the signature of the other as promised, forged his name. In the opinion, it is said:

“Why should this forgery operate in discharge of Stoner, and entitle him to have his property exempted from sale on the execution ? It may have been a wrong toward him, and have caused him to incur a greater extent of liability than he expected; and the supposed obtaining of the execution of the note by John Lee may have been the sole condition upon which he signed his name to the note. Yet, on satisfactory evidence to himself, in that respect, he did place his name unconditionally to the note as a maker thereof, and left it with Thomas Lee to deliver to Miliikin & Co., knowing that on the faith of his (Stoner’s) promise to repay it, they would part with their money to Thomas Lee. There is no just reason why this promise to Millikin & Co. should not be kept.

‘‘ Whatever of wrong there was to Stoner, was perpetrated by his co-maker, Thomas Lee. Millikin & Co. were wholly innocent in the matter. They had no notice of anything which had been transpiring among the makers of the note, as between themselves. Nor was it incumbent upon Millikin & Co. to exercise care over the interest of the surety in the note, look to the inducement which led him to become such, and see that it should not fail. They had but to watch over their own interest, and see that the security offered was a sufficient protection for them. • For the lack of the vigilance they failed to exercise in this respect, they suffer the full consequence in the loss of the security of the name of John Lee. Whatever of fraud and deception the co-makers of the note' practiced toward one another, was their own sole concern, and the consequence, so far as may affect them in their relation to each other, should be borne by themselves alone. There is no justice in requiring Millikin & Co. to assume the risk of such conduct, and no sound principle upon which they should be made to suffer loss because of it, not being privy thereto.

‘ ‘ York County Mut. Fire-Ins. Co. v. Brooks, 51 Me. 506, and Selser v. Brock, 3 Ohio St. 302, are direct authorities to the point that such a forgery of the name of a prior surety will not discharge a subsequent surety. See Young v. Ward, 21 Ill. 223. We regard the language of Lord Holt, in Hern v. Nichols, 1 Salk. 289, as applicable, that ‘ Seeing that somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser,’ than a stranger.’”

In Deardorff v. Foresman, 24 Ind. 481, A executed his note, payable to the order of B, and induced C and D to sign as sureties upon the promise that A would procure other persons named by him to sign as sureties. He did not do as he agreed but delivered the note to B. In a long opinion in which a large number of cases are discussed it is held that C and D were liable. See State, ex rel. McCarty, v. Pepper, 31 Ind. 76; Carr v. Moore, 2 Ind. 602.

In Helms v. Agricultural Co., 73 Ind. 325, a surety was held liable though some of the signatures were forged. In the opinion it is said:

“The doctrine of the instructions given is expressed in the following proposition, namely: When the name of one of two or more obligors in a bond, note, or other writing obligatory, has been forged, the supposed co-obligor, though a surety only, and though he signed in the belief that the forged name was genuine, is nevertheless bound, if the payee or obligee 'accepted the instrument without notice of the forgery. This doctrine is supported either directly or in principle by the following authorities: Veazie v. Willis, 6 Gray (Mass.), 90; York County Mut. Fire-Ins. Co. v. Brooks, 3 Am. Law Reg. (N. S.) 399 [51 Me. 506]; Franklin Bank v. Stevens, 39 Me. 532; Stoner v. Millikin, 85 Ill. 218; Selser v. Brock, 3 Ohio St. 302; Bigelow v. Comegys, 5 Ohio St. 256; Hagar v. Mounts, 3 Blackf. (Ind.) 57; Harter v. Moore, 5 Blackf. (Ind.) 367; Carr v. Moore, 2 Ind. 602; State v. Van Pelt, 1 Ind. 304; Deardorff v. Foresman, 24 Ind. 481; State, ex rel. McCarty, v. Pepper, 31 Ind. 76; Craig v. Hobbs, 44 Ind. 363; Brandt on Suretyship and Guaranty, § 358.

“The appellants insist on a contrary doctrine, relying mainly for authoritative support upon the case of Seely v. People, 27 Ill. 173. That case goes full to the extent claimed for it, but it was confessedly decided without citation or knowledge of any supporting authority, and has recently been expressly overruled by the case of Stoner v. Millikin, supra, which, besides a citation of adjudicated cases, is supported by reasons much more satisfactory and cpnclusive.”

This case is cited with approval in Hunter v. Fitzmaurice, 102 Ind. 449, where it was held that when the name of one of two or more obligors on a note is forged the co-obligor though only a surety who signed in the belief that the forged name was genuine, is nevertheless bound, if the payee accepted the note without notice of the forgery. In the case at bar a joint and several note, purporting to have been signed by 20 persons, is before maturity put afloat.' There is nothing in its appearance to cast doubt upon any of the signatures. A bank becomes a bona fide holder of the note. It turns out that some of the signatures are forged. If we apply the principles of law stated in the cases to which we have called attention, is it not clear that the signers whose signatures are genuine are liable ? We think the answer must be in the affirmative.

Judgment is reversed, and new trial ordered.

McAlvay, O. J., and Carpenter, Grant,' and Hooker, JJ., concurred.


text:
    KAESS v. TIVOLI BREWING CO.

    1. Saving Questions for Review — Estoppel to Allege Error —Aooeptanoe of Court’s Theory of Case.
    An admission by counsel, in answer to a question put by the court, that the testimony did not show negligence in a certain particular, evidence offered on that theory having been excluded, and failure to object to the statement in the charge that plaintiff withdrew any claim of negligence in that behalf, do not estop plaintiff from relying in this court on the exceptions taken to the exclusion of the evidence offered in support of that theory, it not being clear that counsel did not misunderstand the position of the court in stating his theory of the case.
    2. Master and Servant — Personal Injuries — Unsafe Appliances— Negligence — Evidence—Admissibility.
    In an action for the death of a servant caused by inhaling ammonia gas blown out of a pipe joint claimed to have been packed with an improper gasket, evidence that other gaskets of the same material, placed at the same time, and subject to the same influences, had been removed because of deterioration, is admissible as showing a duty to inspect.
    3. Same.
    It appearing that oil had a softening effect upon the gaskets, testimony tending to show the presence of oil in the pipes, and the impossibility of entirely avoiding it, is admissible.
    4. Witnesses — Examination — Leading Questions — Reluctant Witness.
    Where plaintiff, in a personal injury case, is obliged to call de’f endant’s engineer to make his case, counsel should be permitted to put leading questions to him and introduce his contradictory statements.
    5. Master and Servant — Personal Injuries — Unsafe Appliances — Negligence—Question for Jury.
    In an action for the death of a servant caused by inhaling ammonia gas blown out of a pipe joint claimed to have been packed with an improper gasket, evidence and rulings on evidence examined, and held, that it could not be said, as a matter of law, that, with evidence which the plaintiff might have produced except for erroneous rulings, the cause of the accident would appear to be entirely conjectural, or that the case presented would be one devoid of evidence that a previous inspection would have been of value.
    Error to Wayne; Rohnert, J.
    Submitted October 11, 1906.
    (Docket No. 67.)
    Decided March 12, 1907.
    Rehearing denied July 15, 1907.
    Case by Libbie Naess, administratrix of the estate of Gottlieb Naess, deceased, against the Tivoli Brewing Company for negligently causing the death of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      James McNamara and Frank C. Cook, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.

       The opinion filed on the original hearing in this case was withheld from publication pending the rehearing.

   Blair, J.

Plaintiff brought this action to recover damages for the death of her husband while in the employ of defendant, occasioned by inhaling the vapor of ammonia, alleged to have occurred through defendant’s negligence. Defendant owned and operated a brewery at the city of Detroit, and, in connection therewith, on March 10, 1902, operated a refrigerating plant, using a system of pumps, coils, and pipes, through which liquid ammonia was forced for refrigerating purposes. The entire refrigerating plant, including the pumps, pipes, joints, and gaskets all complete, was made in Detroit, and was installed in defendant’s brewery in 1898. About 1,000 pounds of anhydrous ammonia was used to charge the refrigerating machine. From the machine the ammonia is pumped through pipes and coils through the cellar, is compressed, expanded, and then cooled and returned to the machine to be used again. These pipes when they leave the machine are three-quarters of an inch in diameter and run from the engine room into the cellar. As they pass into the cellar, is placed an expansion cock three-quarters of an inch in diameter, and beyond this expansion cock the pipes are two inches in diameter. This expansion cock is barely opened from its seat, so that the point of a needle can just about be put through it. At the time the plaintiff was injured, there was a pressure of 165 pounds to the square inch on the pipe between the machine and the expansion cock, and a pressure of about 25 pounds to the square inch on the farther side of the expansion cock. Henry Heuge was defendant’s engineer, and had charge of the refrigerator plant, including the machinery, pipes, and coils generally, and the gaskets.

Plaintiff’s intestate was employed at general work around the brewery, and about 11 o’clock a. m., on March 10, 1902, he was cleaning out some beer tanks in the cellar when a rubber gasket blew out from between the flanges of a joint located behind the door leading from the cellar into the engine room, and the ammonia vapor escaped from the pipes. The joint where the gasket blew out was a flange joint. The gasket fits into a circular depression or channel in the nature of a countersink in the flange; the other flange having a corresponding projection from the face of the flange fitting quite closely the depression in the former, thereof and thereby inclosing and including the gasket within iron walls when the four bolts at the corners are screwed up tight. '

The declaration charged that plaintiff’s intestate was injured by reason of defendant’s negligence in failing to provide a safe place to work, in failing to keep its plant in a safe condition; in failing to use lead gaskets, in using rubber gaskets, and in failing to properly inspect the pipes and gaskets, and in using the same without any proper inspection. At the close of plaintiff’s testimony, the court directed a verdict for defendant, on the ground that no negligence had been shown on the part of defendant. Plaintiff assigns error upon the direction of the verdict and upon rulings of the court as to the admissibility of testimony. Did plaintiff establish a prima facie case of negligence on the part of defendant ?

Henry Heuge testified that in about five minutes after Kaéss came out, he went into the cellar and found that the gasket between the flanges of a certain joint behind the door between the cellar and the engine room was blown out. It was a rubber gasket about two inches in diameter on the outside, and the joint was a flange joint —an ordinary iron flange.

“I did not examine the condition of this gasket that had been blown out. I took a knife and scraped it off and put in a new one and bolted it up.

“Q. How much did you scrape off?

“A. About half or a little over.

Q. The rest was blown out ?

“A. It must have been somewhere. I couldn’t find it.

“Q. Did you see it ?

“A. No.”

This joint was so located that the door referred to, if opened wide, would strike it; but there was no evidence that the door ever had struck the joint.

“When the gasket is put into the female and the male is on top of it and screwed up tight, that flattens the gasket that is put between them. The idea of having the gasket between them is to make a joint tight, and to keep up the pressure. If the pipe were put together with a gasket which was not tight and the machine started, the ammonia would leak through the crevice where it did not fit tight, and the object of the gasket between the male and the female is to stop up the opening and make everything tight. Both rubber and lead gaskets aro used. Practically more rubber than lead. * * *

“Q. Did you ever make any inspection of these gaskets or these joints ?

“A. No, sir. * * * I walked through there and looked around to see if everything was safe and tight. That is all the inspection I made.”

Rubber gaskets and lead gaskets were used interchangeably, some preferring one and some another. The witness had been in the cellar about 10 minutes before Mr. Kaess was injured. When he scraped off the gasket, it felt soft to the point of his knife, which might have been occasioned by a little oil getting in there.

“We have to keep the cylinder oiled when it is under such high pressure. It is pretty hot when the compresser presses the ammonia. * * *

“Q. What is the effect of the oil left in the ammonia and circulating through the pipes upon that rubber gasket ?

“A. It will soften it on the inside. It will soften it.”

Oscar Lamsens, a witness sworn on behalf of .the plaintiff, testified: That he had been connected with the Stroh and the American breweries, and was connected with the Tivoli brewery from October, 1901, to April, 1902, during which time he took the place of the brewmaster while he was absent in Europe.

“ During my experience in different breweries, I have become acquainted and familiar with the process of using ammonia in the refrigerating machines. I have had practical experience for the last 3% years, and have had a technical knowledge for the past 10 years. I acquired my technical knowledge in a brewing school in connection with the university at Berlin, which I attended for two years. They used refrigerating machines there, and I studied them. I had practical experience with the refrigerating machines at the Stroh, the Tivoli, and the American breweries.”

That a special oil is always used. They pump it into the system, and it goes over the cylinder and into the oil trap. The rest of it-goes into the system and comes back.

Q. What is the effect of the oil upon rubber used for making rubber gaskets ?

“A. I think as long as the gasket is tight between the two flanges, it could not affect it at all. * * *

Q. Do you know what kind of gaskets were ordinarily used in joints in' systems connected with a refrigerating pla^t at f^e time of the accident ?

“A. Wi only used lead; but I know some other firms that use rubber. * * *

The Court: You have never seen the effect of rubber or lead gaskets except at the American P

“ A. JNo, sir.

The Court: Do you use any rubber out there ?

‘-‘A. No.

“Q. Then you don’t know the effect upon a rubber gasket when it is used upon the joints of an ice machine ?

“A. No. * * * Ammonia is dangerous to handle, and the danger increases with the increase of the pressure. The purpose of the bolts in the" holes of these flanges is to hold them and to tighten them up. It is necessary to have the joints tight. If a joint was made with the male and the female joints and the bolts were to be loose, the joint would leak. If the flange is tight, it does not leak. If the gasket is properly put in and the bolts are tight, it will not leak.

The Court: Do you know the character of ammonia, whether it is penetrating or not, ammonia fumes ? If this was not absolutely tight, would not the ammonia leak out ?

“A. Yes, sir.

The Court: In other words, if it was not absolutely tight, then there would be sufficient leakage so that it would indicate a leakage without danger to life.

“A. Yes, sir; I could smell it.

The Court: In other words, you would discover it by the smell ?

“A. Yes, sir; I could smell the leak.

“ Q. Would you consider that a gasket would blow out from a small leak ?

‘A. It would be a big leak. The rubber adheres to the face of the flange when it is screwed up. It sticks on there.

Q. How is it removed when they break the joint and take it out ?

“A. With a knife.

Q. Does it cling hard ?

“A. Generally you go around with a knife and clean it off with a knife.

Q. When a gasket is once put in the joint and it is tightened up, what, if anything, is necessary to do with the bolts afterwards to keep it tight ?

“A. When the gasket is once tight, it generally stays tight, unless by changes in the temperature or something of that kind it becomes loosened. The higher the temperature, the more it will loosen up. If it loosens up, you tighten it.

‘ Q. What do you call following up a bolt ?

“A. Taking them up, one after the other, tightening them up, one at a time. If you have a joint tight in the first place, you do not go over it until you smell a leak. It is not necessary.

“ Q. Could a lead gasket blow out of that joint such as there was there, if it was tight ?

“A. I know that the lead gasket would not blow out, in my judgment.

The Court: Have you ever seen an instance where a gasket has blown out ?

“A. That is the only one.

“ The Court: The only one you ever heard of ?

“A. Yes, sir.

“ Q. As I understand it, the inspection you made of these machines when they are tight, if the joint is tight, you go through there and nothing is done with the joint unless you smell ammonia ?

“A. Yes, sir. * * * Ammonia, when it comes under high pressure, is liquid and is compressed, and, when it is released, it vaporizes instantly, and forms fumes. If it were turned into this room, it would go all over, and that property of expansion is very fast; awfully fast. * * *

Q. You never examined the joint, did you?

“A. No, sir.

“ Q. Did you examine it after it was blown out ?

“A. No, sir.

Q. So far as you know, it had never leaked ?

“A. No, sir.

“Q. And the fact that it had not leaked would be an indication to cause you or any engineer to think that that joint was in proper condition ?

“A. Yes, sir'.

“ Q. The first signal of danger that you would get would be the smell of the liquid ?

“A. Yes, sir.

Q. And that experience would apply to all machines ?

“A. Yes, sir.

“ Q. And you consider that a signal ?

“A. Yes, sir. * * *

Q. I will ask this question: If that joint had been screwed tight, and the gasket had blown out with 165 pounds pressure on it, could it have blown out with 165 pounds on it, if the joint had been screwed up tight ?

“A. I don’t know the condition of the gasket. * * * The flange might have something to do with it. If the female did not fit on the male, it would not be possible to make a tight joint.

“The Court: If that joint was drawn up tight with a rubber gasket in it, what pressure would blow it out, if you know ?

“A. I cannot tell you that. * * *

“Q. Can you tell approximately ?

“A. Yes, I judge 200 pounds; not over that.

“Q. 200 pounds would not blow it out ?

“A. No, sir; it would not blow it out. * * *'

“Q. Now, I ask you when the plant is installed and properly set up, whether or not the inspection that is made by the person who is running the plant to ascertain whether or not these joints need attention, comes from a small leakage or small ammonia gas and from a leak in the joint — isn’t it true that that is the only time that you give them any attention ?

“A. Yes, sir. We screw them up then. * * *

There is no plant that don’t have some leaks. A hole was punched through one of the pipes down there. It was quite small. We did not determine how much of a hole it was, but if you could put the smallest needle into it, it would be enough to fill the room with ammonia inside of a minute. ”

Page Eaton, a witness for plaintiff, testified:

“ I looked at' the place where the ammonia came through the pipe as soon as the ammonia got out so that we could get in there. I should judge that was about 15 minutes after the accident. Before that time the engineer had a hose in the cellar to scatter the water and to condense the ammonia. In the place where the ammonia came through, the gasket was blown out. This was behind the door. A little past the door. * * * I saw a piece of the gasket that blew out. It was on the floor, I believe, near the joint. The engineer had it, if I remember right, when I saw it. He showed it to me, we were looking at it. It seemed to be rotten and old. I don’t just remember how it did look.”

Charles Tart, a witness for plaintiff, testified:

“Q. Now, will you state if that joint which blew out was made with a rubber gasket such as this joint is, with a rubber gasket inside of it and having bolts which would go into the four corners and which were screwed up tight, whether that gasket could have blown out ?

“A. No, sir.

“Q. At 165 pressure ?

“A. No, sir.”

In the course of the trial, plaintiff’s counsel stated his theory of the case, as follows:

“My theory is that the door had been striking this joint for four years, and had loosened it, and the oil run down through there and rotted it, and a rubber gasket is an improper gasket to use in that place. I intend to show that if this joint was properly made, it was impossible for it to have broken, regardless of whether rubber or lead was used. I will not leave it to any inferences.”

At the close of the testimony the following occurred:

“The Court: It is your claim that the accident happened because the flange was not screwed up tight ?

“Mr. Cook: Yes, it was not screwed up tight. It sets in there three-sixteenths of an inch, and if it had been screwed up tight, the gasket could not have come out. It would be up against the face of the flange, and it could not have blown out unless the flange had been separated somewhat. My claim is that this joint became loosened in some way, and that no inspection had been made to discover the condition, and that is negligence.

iiThe Court: Then you make no claim that by reason of rubber gaskets there was negligence ?

“Mr. Cook: I will admit that the testimony does not show that.”

No requests to charge, so far as the record discloses, were presented by either side. In the course of the charge, the court said to the jury:

“ The attorney for plaintiff withdraws any claim that there was negligence by reason of an imperfect gasket, and plants his case upon the theory that this accident could not have happened unless the bolts which held the flanges together were loose, and that the duty which the defendant owes the plaintiff under those circumstances was an inspection of those things which would reveal the loose condition.”

It is claimed by counsel for plaintiff that this was an incorrect statement of his position, and that the effect of his statement with reference to the gaskets was to admit that the testimony admitted by the court did not show that there was any negligence in consequence of using the rubber gaskets instead of the lead gaskets, and that having taken proper exception to the rulings of the court upon evidence which might have substantiated his position, he is still entitled to insist upon his exceptions. We cannot say that there is nó support for the position of plaintiff’s counsel and that he may not have misunderstood the position of the court in stating his theory of the case. He may have supposed that the court was .stating this theory with reference to the casé as left by the rulings of the court, and, in view of previous admonitions, was not inclined to interrupt. There is also room for the conclusion that his admission quoted above was limited to the case presented under alleged erroneous rulings of the court. We think that testimony which might have been very important was excluded by the court. Plaintiff’s counsel sought to show that prior to the injury to the plaintiff’s intestate certain gaskets on this same high pressure side of the expansion cock had been removed from other joints than the one in question and replaced with others, but the court refused to permit questions with this purpose to be answered, and this forms the basis of the plaintiff’s first assignment of error.

Inasmuch as the gasket is absolutely essential to the tightness of the joint, and inasmuch as the gaskets were all originally put in at the same time in 1898 and the gasket in question had never been inspected from that time until the time of the accident in 1902, the fact that it was found necessary to remove other gaskets and replace them, in joints subject to the same pressure as the joint in question, if it appeared from the answers that such removal was made necessary by the deterioration of such gaskets, would have a very important bearing upon the question whether or not it was the duty of defendant to inspect such gaskets from time to time to ascertain their condition.

Plaintiff’s counsel also propounded a question to the witness Heuge, who had testified that they drew off all of the lubricating oil circulating through the • pipes which they could get out in the oil traps, as follows:

“Q. Isn’t it a fact that you cannot draw it all out?

“ This question was objected to, and the court said: ‘ If you cannot draw it out, you cannot help it being there.’

“Mr. Cook: But if I show that it has been there for years—

“The Court: I don’t want .any argument now, Cook. We are talking of the difference of conditions when they draw off all they can through the cock. That is the testimony. They try to have it all drawn off, if possible, through the oil cocks. That is the testimony. Now proceed.”

The further question was put by plaintiff’s counsel:

“Q. What is the effect of oil upon rubber used in making rubber gaskets ?

“A. I think as long as the gasket is tight between the two flanges it couldn’t affect it at all.

“Q. What effect would it have if the gasket was not tight?”

The answer to this question was excluded by the court. It is apparent from some of the testimony which was permitted that oil has a softening effect upon the rubber gaskets, and there was also testimony that the gasket in question was soft and appeared old and rotten. As the tightness of the joint depended to a large extent upon the condition of the gasket, it would seem that, if the effect of the oil necessarily used in the pipes was to soften and disintegrate the rubber, and perhaps make it pervious to the ammonia under its high pressure, the jury might infer from this a duty on the párt of the company to occasionally inspect the gaskets, for the purpose of ascertaining their condition, and this inference would be strengthened if it should appear that other gaskets subject to the same pressure, and under similar circumstances, were found to be defective and removed for that reason. It seems apparent that the sense of smell may not be a sufficient notification, as illustrated by this very case, and that even though the joint was tight in the first instance, the deterioration of the gasket, even though the bolts remained in the same position, might eventually render the joint loose. While the court was perhaps justified in understanding the position of counsel for plaintiff, as he stated it, still, in view of the fact that the counsel for plaintiff may not have appreciated the effect of the statement of the court, we are inclined to hold that counsel is not foreclosed from any of his exceptions in consequence of not having called the court’s attention to the inaccuracy of his statement. The duty of inspecting the gaskets is asserted in the declaration; evidence was offered to prove that duty, which was, as we think, erroneously rejected, and it is undisputed that the duty, if found to have existed, was not discharged. We also think that, in view of the relation of witness Heuge to the case and of the apparent necessity imposed on plaintiff of calling him as her witness, plaintiff’s counsel should have been permitted to put leading questions to him and introduce his contradictory statements, if any. Furthermore, we are of the opinion that the presence of oil in the pipes and its effect upon the rubber gaskets was competent. We do not think it can be said, as a matter of law, that, with evidence which the plaintiff might have produced except for the erroneous rulings, the. cause of this accident would appear to be entirely conjectural, or that the case presented would be one devoid of evidence that a previous inspection would have been of value. Warren v. Railway Co., 141 Mich. 298; Schoepper v. Chemical Co., 113 Mich. 582; O’Neill v. James, 138 Mich. 567 (68 L. R. A. 342); McLean v. Railroad Co., 137 Mich. 482; Stowell v. Standard Oil Co., 139 Mich. 18.

The judgment is reversed, and a new trial granted.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
      In re EMERY.
    1. Contempt — Statutory Provisions — Application to Criminal Proceedings.
    Chapter 301, 3 Comp. Laws, relates to "Proceedings as for Con-tempts to Enforce Civil Remedies,” and does not apply to ^ contempts in criminal proceedings.
    2. Same — Criminal Contempts — Power to Punish.
    Section 1098, 1 Comp. Laws, relating to criminal contempts, does not confer upon the circuit court the power to punish for contempt an interference with the people’s witnesses on a . preliminary examination pending before a justice of the peace, but by its terms excludes such authority.
    3. Same — Cause Depending in Court — Criminal Examination.
    • A preliminary examination before a magistrate on a criminal charge triable in circuit court is not a cause or matter depending or triable in circuit court such that an interference with the witnesses therein may be punished by the circuit court as a contempt under its general constitutional jurisdiction.
    Certiorari to St. Clair; Law and Tappan, JJ.
    Submitted July 2, 1907.
    (Calendar No. 22,331.)
    Decided July 17, 1907.
    Thomas Emery was found guilty of contempt, and sentenced to pay a fine of fifty dollars, or in default thereof to imprisonment in the county jail not exceeding thirty days.
    Reversed, and proceedings quashed.

      John M. Kane and John L. Blach (William T. Mitchell, of counsel), for petitioner.
    P. II. Phillips, for respondents.
   Blair, J.

Plaintiffs in error were found guilty of conspiring together to induce one John McIntyre, a material witness for the people, to remove himself from the jurisdiction of a justice’s court of the city of Port Huron, in which was pending an examination upon a complaint charging one David Murphy, a saloonkeeper, with furnishing and giving intoxicating liquors to the said John McIntyre, a minor of the age of 15 years. Thomas Emery is an attorney at law and appeared for the respondent Murphy as his attorney in the criminal proceedings.

The sole question for our. consideration is whether the circuit court had jurisdiction to entertain the contempt proceedings. It is unnecessary to consider the questions raised as to the power of the circuit court to punish for contempts committed against itself. Such questions have been fully settled by this court. Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich. 187.

But plaintiffs in error contend that in the present instance the contempt was not committed against the circuit court or any of its officers, nor in any matter concerning that court. On the other hand, it is claimed that the proceedings constituted “a cause or'matter depending or triable ” in the circuit court, and that the power to punish for a contempt therein is expressly conferred upon the circuit court by subdivision 4 of section 10891, 3 Comp. Laws. Chapter 301, containing the section in question, relates to Proceedings as for Contempts to Enforce Civil Remedies,” and does not apply to contempts in criminal proceedings. City of Eaton Rapids v. Horner, 126 Mich. 52; In re Osborn, 131 Mich. 118.

Section 1098, 1 Comp. Laws, relating to criminal con-tempts, does not confer the power to punish for a contempt such as the present, but by its terms excludes such authority. It has been held, however, that this section does not apply to the' circuit courts, and does not limit their inherent and exclusive constitutional powers over contempts. Nichols v. Judge of Superior Court of Grand Rapids, supra. If, therefore, the pending examination was a cause or matter depending or triable in the circuit court, we are satisfied that that court under its general constitutional jurisdiction would have power to punish the alleged contempt. Was the examination a matter depending or triable in the circuit court ? We think not. At the time of the commission of the alleged, contempt, the matter was not triable in any court; but the object of the examination was to determine whether an offense had been committed which would be triable in the circuit court, and, until, the examining magistrate committed the defendant for trial, there was no case depending or triable in the circuit court. The functions of justices of the peace in holding such examinations are referred to by Justice Campbell, in his opinion in Allor v. Wayne County Auditors, 43 Mich. 76, as follows :

“The power to examine and commit persons charged with crimes beyond the cognizance of justices to try is also intrusted to justices of the peace in common with various judges, judicial officers, and city officers. 2 Comp. Laws 1871, chap. 259. This power is not exercised by those officers as courts, and it is not in the proper sense of the term ‘judicial power.’ It may be vested in other persons than courts, as well as in courts. It belongs to the duties of conservators of the peace; and the Constitution has made supreme and circuit court judges, as well as justices of the peace, such conservators. Article 6, § 19. The difference between this power and that of trying offenders is referred to, among other cases, in Daniels v. People, 6 Mich. 381, and In re Farnham, 8 Mich. 89.”

The power to punish for such contempts as the present has not been committed to the circuit court by any statute, and we are of the opinion that such power is not inherent in the court.

Order vacated, and proceedings quashed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.