text:
    SCHOEPPER v. HANCOCK CHEMICAL CO.
    1. Personal Injuries — Unknown 'Cause — Balancing oe Proba-, bilities.
    The rule that where an injury occurs that cannot be accounted for, and the occasion of it rests wholly in conjecture, the case may fail for want of proof, will not be extended so as to-deny a right of action to an injured person where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon his theory than upon that of the defense.
    2. Same — Explosion op Nitroglycerine — Evidence — Question por Jury.
    Whether the inference suggested by plaintiff’s theory as to-the cause of an explosion of nitroglycerine, whereby her intestate had been killed, was the correct one, or whether it was sufficiently rebutted, was a question for the jury, upon evidence that the explosion occurred a few hours after an attempt had been made to change the method of conveying the compound, by employing for the purpose a rubber hose; that, upon its appearing that the plan was impracticable, the hose bad been permitted to remain attached at one end to a tank, and filled with so much of the compound as failed to escape at the open end; and that the compound contained acids which would generate, gases and cause an explosion; and evidence in rebuttal that nitroglycerine explodes at 380 deg. Fahrenheit, and that hose of the size employed would not stand the pressure occasioned by the generation of that degree of heat.

    Error to Houghton; Hubbell, J.
    Submitted April 16r 1897.
    Decided July 13, 1897.
    Case by Augusta Schoepper, administratrix of the estate of Fred Schoepper, deceased, against the Hancock Chemical Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Keversed.

      J. F. Hambitzer and Ball & Ball, for appellant.

      A. R. Gray (C. R. Brown, of counsel), for appellee.

       Negligence in the manufacture and storage of explosives is the subject of a note to Judson v. Giant Powder Co., (Cal.) 29 L. R. A. 718.

   Montgomery, J.

The plaintiff’s intestate met his death while in the defendant's employ, and the question involved in this case is whether his death was caused by actionable negligence of the defendant. The defendant is engaged in the manufacture of nitroglycerine in the county of Houghton, and, prior to the injury complained of in this suit, had been engaged in that business for 10 or 12 years. The method of manufacturing nitroglycerine at the defendant’s works is as follows: 1,200-pounds of sulphuric acid is first mixed with 1,650 pounds of nitric acid, after which 1,700 pounds more of sulphuric acid is added, and all is mixed up in a tank called the “agitator.” The agitator is an iron tank having about it a water jacket, through which cool water is caused to flow continually while the mixing process is going on, in order to keep down the temperature. After mixing the acids, the oil, or sweet glycerine, is run in slowly, and cold water kept running through the water jacket, so as to keep the temperature down; otherwise, it is liable to explode during the process of manufacture. It is considered necessary to keep the temperature down to about 80 deg. Fahrenheit. In this manner about 515 to 515 pounds of glycerine is introduced into, and chemically combined with, the quantity of nitric acid above mentioned. After mixing, the compound is allowed to stand and settle from one to two hours. The nitroglycerine, being lighter than the acids, rises to the top as it forms. Only.about 70 per cent., or less, of the nitric acid, has combined with the glycerine; about 15 per cent, remains mixed with the glycerine, but not chemically combined; and the remainder passes off in fumes. The sulphuric acid and whatever of the nitric acid is not mixed with the glycerine settles to the bottom of the agitator, being heavier than the nitroglycerine. The sulphuric acid, being heavier than either, is at the bottom. None of the sulphuric acid combines with the glycerine, and does not enter into the composition of nitroglycerine. It is used because of its strong affinity for water, and it absorbs or takes up the water that is formed by chemical action in the combination of the nitric acid with the glycerine. After the mixture has settled, the sulphuric acid is drawn off through a pipe to tanks some distance away, called “settlers.” In these settlers the nitroglycerine which becomes mixed with the sulphuric acid rises to the ■ top, and is skimmed , off, and washed like the other nitroglycerine, and the sulphuric acid is saved for another process. After the sulphuric acid, or most of it, is drawn out from under the nitroglycerine, the glycerine, together with the nitric acid mingled with it, and whatever of sulphuric acid remains, is drawn through a 2-inch pipe into a tank of water about 5£ feet deep, called the “drowning tank.” The specific gravhy of nitroglycerine is about 1 0-10, and, with whatever of nitric or sulphuric acid is mixed with it, it sinks directly to the bottom of the drowning tank. The drowning tank is not stirred or agitated except by a stream of water running into it from the cold-water jacket, which runs in part of the' time while the nitroglycerine is falling into and lies in the drowning tank. The substance that goes into the drowning tank is mainly nitroglycerine, but has mixed with it a quantity of free nitric acid and some sulphuric acid. Immediately after the mixture is dumped into the drowning tank, they commence to draw it off into pails, and carry it to the wash-house, about 200 feet distant, where it is washed in two or three waters, and finally in soda water, until the acid is entirely eliminated or neutralized. The bottom of the drowning tank has a slope of 10 inches towards the faucet where the nitroglycerine is drawn out into pails, and also towards the faucet where an attempt was made to draw it out through a hose.

On the 16th of May, 1895, the defendant endeavored to change the method of conveying the nitroglycerine from the drowning tank to the wash-house, or vault, as it is called. A rubber hose three-quarters of an' inch in diameter was procured, and laid so as to run on a level from a faucet in the drowning tank to the vault, a distance of about 200 feet. The hose had a drop of about 5 or 6 feet in the vault, so as to convey the glycerine into the bucket or other receptacle. Between 9 and 10 o’clock (the superintendent says half past 10) the faucet was opened, and the glycerine started to run. At first, for a few minutes, it ran somewhat freely, but very soon it began to run very slowly, and only drizzled. After trying about 15 minutes to run the glycerine through the hose, it was given up; and, by orders of the superintendent, the faucet at the drowning tank was closed, and the nitroglycerine immediately stopped running out of the hose. During this time only one, or, at most, two, pails of the compound had run through the hose. The employés were at once set to work carrying the nitroglycerine in pails, as they had done before; but the hose remained attached to the faucet at the drowning tank, and very little, if any, of the nitroglycerine that was in it, ran out. The hose lay in that condition, containing so much of the nitroglycerine as had not run out, until about 20 minutes after 1 o’clock in the afternoon, at which time the nitroglycerine remaining in the hose, and about 1,200 pounds more, stored in the vault or wash-house, exploded, and Fred Schoepper was thereby killed. The negligence imputed to defendant was the use of this hose in the manner in which it was used, and permitting the compound to remain in the hose until, by chemical action of the ingredients, an explosion occurred, which resulted in the death of the plaintiff’s intestate.

At the conclusion of the evidence, the learned circuit judge directed a verdict for defendant, on the ground that the plaintiff had not shown that the explosion was caused in the manner indicated in the declaration. This is the only question that need be considered, for, while the defendant makes the point that the plaintiff failed to show that the deceased was not guilty of contributory negligence, it is enough to say that, in addition to the presumption of due care which obtains in cases of death resulting from an injury, it is plainly apparent that deceased had nothing whatever to do with the work of running.this compound through the hose in question, and was in no> way responsible for its being left there ± and it follows that, if the explosion was caused by these acts of defendant, the deceased in no way contributed to the result.

Defendant’s counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we take to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no> such rule obtains in civil cases. It is true 'that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283; Redmond v. Lumber Co., 96 Mich. 545. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing-reasonable inferences better supported upon one side than the other. In this case there was no direct proof of any other probable producing cause of the explosion than such as was offered by the plaintiff.

It is true that defendant offered testimony to the effect that washing the nitroglycerine with very hot soda would be dangerous. But there was no evidence that deceased was engaged in washing this nitroglycerine in hot soda. It is true, one witness swears that on one occasion he was in the vault when the soda water that Schoepper was going to use was too hot. He testifies that he told Schoepper that it was too hot, and that Schoepper replied, “Let it stand awhile, and it will cool off.” Another witness gave similar testimony. But this does not show (certainly not conclusively) that on the day in question deceased was using soda water which was too hot. It was further in evidence that deceased had been known to drive a wooden faucet into a nitroglycerine barrel, and there is testimony that under certain conditions, if foreign substances were present, this might cause an explosion. But it further appeared that deceased had been told not to do this, and, since being so instructed, had not been known to do it. On the other hand, the testimony on the part of the plaintiff (and, in determining this case, the question must be whether the testimony of plaintiff was sufficient to make a prima facie case for the jury) was, in addition to the facts above stated, furnished by an expert witness, one Dr. Wheeler, and by a Mr. Johnson, who had had practical experience in the manufacture of nitroglycerine. Dr. Wheeler testified that, from his experience, he would not consider it safe to permit the compound to remain in the hose in the manner in which it was for the length of time that it was permitted to remain there; that the result would be that gases would form, and that it would be dangerous, — would result in an explosion, — and that he would not consider it safe to leave it there in that condition at all, unless it was running. He also testified that, when this compound leaves the drowning tank, the percentage of free acid is about 5 or 6 per cent.; that, the greater the per cent, of acid, the more dangerous it would be, but that any amount of free nitric acid in a compound is dangerous if the compound is stationary, and not running a steady stream, even 1 per cent.; that he would consider it dangerous to leave this compound, as it leaves the drowning tank, in a rubber hose 150 feet long, any length of time without running. “I wouldn’t want to experiment by leaving it there three hours, and I would consider it dangerous if it was unwashed nitroglycerine, containing 1 per cent, or more nitrous acid, because the gases would form there, and their pressure would cause an explosion.”

It is true that defendant’s testimony would tend to show that the pressure upon the hose, before the heat was generated sufficient to cause an explosion, would be greater than the hose would bear, and that the degree -of heat necessary to cause an explosion is supposed to be 380 deg. Fahrenheit, while the hose would stand no such pressure; and it is argued from this, as well as from the fact that the hose was open at one end, that, before the degree of heat that was necessary to cause an explosion could be generated, the compound would escape. But Dr. Wheeler testified that it might not escape at the open end of the hose, and that, with one end of the hose open, he would still consider it dangerous; and, further, that, if the hose was closed at both ends, a pressure sufficient to explode the pipe would probably explode the nitroglycerine. And he further testified that if the hose described was open, and a pressure of something like 500 gallons of water on one end of it, and the pressure was not sufficient to force the mixture through the hose, this would indicate that there must have been some obstruction; and, further, that he didn’t think that it was necessary, in order that nitroglycerine should explode, that the vessel should stand 375, pounds pressure to the square inch; that he didn’t think that it would be necessary to have anything stand such pressure to explode it. One William A. Dunn, who had had practical experience with nitroglycerine containing free acids, testified to actual explosions which had taken place of the material in squai’e tin cans, of ordinary sheet tin, and testified that such explosions occurred even though the cans would stand very little pressure, as” there was simply a cork put into them, and any small pressure would blow out the cork.

It is true, defendant’s theory and expert testimony is opposed to that offered by the plaintiff. It is the peculiar province of the jury to weigh this testimony. If the testimony offered in behalf of the plaintiff is credited, we have a case in which, on the first occasion on which an attempt was made to use this hose in the manner in which it was used, an explosion followed upon such a use of the hose as experience teaches is careless and unsafe. Under such circumstances, we think the question of what was the cause of this injury was one for the jury. Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 613; Barnowsky v. Helson, 89 Mich. 523. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Railway Co., 58 Mich. 458; Hagan v. Railroad Co., 86 Mich. 615; Woods v. Railway Co., 108 Mich. 396.

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

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    GRATOPP v. VAN EPS.
    Justices op the Peace — Abolishment op Oppice — Constitutional Law.
    A justice of the peace in a city cannot be legislated out of office before the expiration of the term for which he was elected under article 6, § 17, of the Constitution, by an act reincorporating the city, and reducing the number of justices therein.

      Mandamus by Frederick Gratopp to compel Arthur E. 'Van Eps, a justice of the peace, to issue an execution.
    Submitted May 4, 1897.
    Writ granted July 13, 1897.
    The relator obtained a judgment under one Salisbury, a justice of the peace of the city of Mt. Clemens, in August, 1894. At the spring election of 1895 the respondent was elected the successor of said Salisbury. The city at that time had four justices of the peace, the respondent being elected for a full term. The city of Mt. Clemens was reincorported under Act No. 215, Pub. Acts 1895; the reincorporation taking effect January 1, 1896. In the reincorporation only two justices were provided. Two justices were elected, qualified, and entered upon the discharge of their duties. The respondent refused to turn his books and records over as the law requires a justice to do when his office is vacated, and also refused to issue an execution to the relator. The reason for his action is his doubt as to his tenure of office. The purpose of this proceeding is to settle that question.

      Byron B. Erskine, for relator.

      Fred A. Maynard, Attorney General, for respondent.
   Grant, J.

(after stating the faots). A justice of the peace is a constitutional officer. The Constitution provides that he shall he elected, and shall hold his office for four years, and until his successor is elected and qualified. Const, art. 6, § 1?; Brooks v. Hydorn, 76 Mich. 273. The legislature cannot depi’ive constitutional officers of the powers and duties conferred upon them by the Constitution. Averill v. Perrott, 74 Mich. 296. It appears to be well settled that, where the term of office of a constitutional officer is fixed by the Constitution, the legislature cannot remove him by abolishing the office, unless the power so to do is expressly given by the Constitution. People v. Garey, 6 Cow. 642; Garey v. People, 9 Cow. 640; State v. Friedley, 135 Ind. 119; Foster v. Jones, 79 Va. 642 (52 Am. Rep. 637); King v. Hunter, 65 N. C. 603 (6 Am. Rep. 754); People v. Bull, 46 N. Y. 57 (7 Am. Rep. 302); 19 Am. & Eng. Enc. Law, 562m. We are not dealing with a case where the officers of a municipality have been legislated out of office by the repeal of its charter and the destruction of its identity, but with a case where the name, identity, and territorial limits remain the same. In the latter case the charter has simply been reorganized or amended, but no jurisdiction destroyed. In such case constitutional officers whose terms are fixed by that instrument cannot be legislated out of office by such reorganization or amendment. The respondent having been elected for a full term, the act of reincorporation of the city did not operate to legislate him out of office. He should therefore have proceeded to issue the writ of execution.

The writ of mandamus will issue accordingly.

The other Justices concurred.


text:
      In re SCHULZ’S ESTATE.
    Wills — Widow’s Election — Distribution or Estate.
    A testator bequeathed to his wife all of his household goods, and gave her a life estate in the residue of his property, real and personal. Specific bequests were made to five persons, who were also made residuary legatees in proportion to the sums-bequeathed to them. It was further provided that, if any of said legatees should be dead at the time of the decease of the wife, the heirs of such deceased legatee should take the legacy bequeathed to him. The widow elected to take under the law, and not under the will. Held, that the legatees were entitled to an immediate distribution of the estate.
    Case made from Wayne; Adams, J., presiding.
    Submitted June 8, 1897.
    Decided July 13, 1897.
    The petition of a legatee under the will of Martin F. Schulz, deceased, for the distribution of the estate, was granted by the probate court, and Herman Kleinow, administrator with the will annexed, appealed to the circuit court-. The order of the probate court was reversed in the circuit, and the legatees assign error.
    Reversed.
    Martin F. Schulz died testate. By his will he bequeathed his household goods to his wife, and all the rest and residue of his estate, both real and personal, to his said wife for life. By the third clause he provided that his executor should, as soon as convenient after the decease of his wife, sell and convey all his real estate for the purpose of paying expenses and “the legacies hereinafter bequeathed by me.” By the fourth clause he bequeathed certain amounts to five persons, and by the fifth clause made these five persons the residuary legatees in propor tion to the sums bequeathed to them. By the sixth clause he provided that, if any of the said legatees be dead at the time of the decease of his wife, the heirs of said deceased legatee should take the legacy bequeathed to him or her. The widow elected to take under the law, and not under the will. Dower was assigned to her. The real estate was sold by the administrator with the will annexed, under the order of the probate court; and, after paying the debts and the widow’s portion, there remained in his hands about $2,500. The administrator made report to the probate court, and asked for an order of distribution under the terms of the will, if the legatees were entitled thereto. One of the legatees also petitioned for such distribution. The probate court directed the distribution of the estate. Upon appeal to the circuit court this order was reversed, and it was held that the estate could not be distributed until after the death of the widow.

      William E. Henze, for appellants.

      Morse Rohnert, for appellee.
   Grant, J.

(after stating the facts). The judgment of the circuit court was wrong. The clear intent of the will was to secure to the widow the use of the entire estate for life, and that upon the termination of the life estate the legatees mentioned in the fourth and fifth clauses should take. The life estate in the widow was as effectually terminated by her election as it could be by her death. The will makes no provision for the care and control of the estate in the event that the life estate should be terminated by the election of the widow. It is conceded that, but for the sixth clause, the legatees named in the fourth clause would be entitled to receive their legacies at once. But it is insisted that the right to receive is limited upon the death of the wife. The clear intent of the testator was to create a life' estate, and it probably never occurred to him that his wife would take under the statute, and thus terminate such estate. It is equally clear that he intended that upon the termination of that estate his property should he distributed at once to his legatees. In re Woodburn’s Estate, 151 Pa. St. 586; Coover’s Appeal, 74 Pa. St. 143; Small v. Marburg, 77 Md. 11. Dean v. Mumford, 102 Mich. 510, has no application to this case.

Judgment reversed, and the case remanded to the probate court of Wayne county for further proceedings in accordance with this opinion.

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


author: Grant, J. Montgomery, J.

text:
    RATHBUN v. PARKER.
    1. Pleadings and Proofs — Amendment to Declaration.
    Plaintiff in an action to recover damages for fraudulent representations as to the value of a patent right was properly-permitted to amend his declaration, after the testimony- was closed and arguments had, to meet the proof in respect to a particular false representation to the effect that a certain prominent and wealthy person had purchased a small amount of territory for a large price. Grant, J., dissenting.
    2. Trial — 'Verdict—Special Questions.
    A general verdict should not be received without compelling an answer to special questions, involving important and material testimony.
    Error to Shiawassee; Wisner, J., presiding.
    Submitted June 9, 1897.
    Decided July 13, 1897.
    Case by Bethuel D. Rathbun against George A. Parker for fraudulent representations. From a judgment for plaintiff, defendant brings error.
    Reversed.
    We are favored with no brief on the part of the appellee. We must therefore assume that he is content with the statement of facts made in the appellant’s brief, which we adopt:

      ‘ ‘ Plaintiff, in'the fall of 1892, was the owner of a small ■store in the village of Bancroft, Shiawassee county, Michigan. The defendant at that time lived on a farm near the village of Bancroft, was postmaster and justice of the peace, and also was buying potatoes in the village of Bancroft, and selling them in the city of Detroit. The 25th of November, 1892, the defendant was in Detroit, and stopped at Rice’s Hotel, where he casually met one O. F. June. June was showing a patent window screen patented by one S. U. Tierney, and gave defendant some ■circulars describing the patent. That evening, after Parker arrived home, and while in the post-office, he was showing the circular to some mechanics and other citizens of Bancroft, when plaintiff came in, and took part in the conversation, borrowed a circular, and took it home with him. Plaintiff wrote June the next day the following letter:
    “‘Bancroft,Mich., Nov. 26, 1892.
    ■“‘Mr. O. F. June, Esq.
    ‘ ‘ ‘ Respected Sir: Mr. George Parker, of this town, has called my attention to Tierney novelty window screen, and tells me that you are desirous of selling territory. From what I see of it and am able to judge from the cut, I am quite favorably impressed with it, and shall be pleased to hear from you further. I have a grocery stock and shoe shop in my place here, which I inventoried at nearly $4,000, which I would like to turn into some such enterprise. If you can think of entertaining such a proposition, please reply by return mail. Should you have one ■or more States entire left, I desire to have you estimate thereon, but more especially the counties near by Bancroft. Please be prompt, and oblige,
    “ ‘Yours respectfully,
    “ ‘B. D. Rathbun.’
    “On the 2d or 3d of the following December, 1892, plaintiff and defendant went to Detroit together, and there met June, and the plaintiff examined the screen. On the 5.th of December, 1892, June came to Bancroft to sell them some territory, and there he made a bargain with Rathbun and Parker. He deeded the plaintiff and defendant the entire State of Wisconsin, and all of Michigan, except 16 counties, for which Rathbun gave June a bill of sale of a stock of goods, and Parker claims to have given June a note of $200 against a third party, and two notes of his own, amounting to $800, for his share of the patent right. June stayed in Bancroft a week or 10 days, and finally sold the goods to Charles Parker for $800, and then returned again to Detroit. Parker and Rathbun visited some manufacturers in Owosso,> Ovid, and some-jobbers in Saginaw and Detroit, for the purpose of seeing about selling the screens in case they were manufactured. They bought a few of the castings manufactured, but were unable to get any great quantity at what they considered a fair price. June represented to them that Campau & Fox were going to start a factory in Birmingham, and it would be better to get them there. But this they were unable to do; so they visited Detroit at different times, and went to Monroe, to try and get the castings, and finally they bought 25 pounds at Ft. Wayne, Ind., but they proved to be of a very poor quality, and they failed to find any one who would manufacture the castings. This took them -to nearly spring, and Parker claims that they agreed to postpone doing anything further until fall; at least, nothing further was ever done in the way of manufacturing the screens, either by the plaintiff or defendant. In the spring of 1893 defendant went to Chicago, and engaged in a small business there. He took plaintiff’s son with him, and took him into his employ, but discharged him after a short time. Soon after his discharge, and on the 22d day of May, 1893, plaintiff commenced this suit against defendant, claiming conspiracy between him and June and Tierney to cheat and defraud him, the said plaintiff. Plaintiff recovered verdict and judgment for $725.61.”
    The declaration contains two counts. The first alleges that plaintiff exchanged his stock of merchandise with one S.p U. Tierney for a deed of letters patent on this screen to himself and defendant, with the right to manufacture it in the States mentioned, in consequence of the false and fraudulent representations by defendant that he, “the said Parker, knew where there was a good and profitable patent window screen, known as the ‘novelty screen; ’ that the patent of the same was very valuable, and all could be readily sold that could be made of said screens; that he (the said Parker) knew this because he had seen them, and had investigated the same; that said patent was worth the sum of $7,000 for the right to manufacture and sell the same in the States of Wisconsin and Michigan; and that, if he (the said Bethnel Rathbun) would purchase a one-half interest in said patent, he (the ■said Parker) would purchase the other one-half, and that they would manufacture said screen.” The second count alleges a conspiracy between defendant, Tierney, and June upon the same representations as those stated in the first count. Both counts allege that the patent was worthless. The plea was the general issue.

      Selden S. Miner and Frank F. Bumps, for appellant.

      Watson & Chapman, for appellee.
   Grant, J.

(after stating the facts). After the testimony was closed and the arguments had, the court permitted the plaintiff to amend his declaration by adding thereto that defendant ‘ ‘ represented that Daniel J. Cam-pan, a politician, and chairman of the Democratic State Central Committee, had purchased a small amount of territory for a large price, and had paid therefor $10,000, and that he was a millionaire, and would not have gone into it if it had not been a good thing.” I do not think that the original declaration stated a cause of action. The sole representation was as to the value of a patent right, coupled with a promise by defendant to buy a half interest, and to enter with plaintiff into the business of manufacturing. It was a statement of a mere opinion, and the declaration fails to state — what the proof shows —that plaintiff examined the screen before buying, and Avas as competent to judge of its value as was the defendant. Defendant was entitled to know before proceeding to trial what the representations were upon which he was to be held liable for the value of plaintiff’s goods, none of which he had received, and from the sale of which he had derived no benefit. The learned circuit judge allowed the amendment upon the theory that the record disclosed that all those who were shown to have heard the representations had been witnesses in the case. The question was raised as to the competency of this testimony under the original declaration when the first witness was upon the stand. Plaintiff did not then ask to amend, but waited until the court was proceeding to instruct the jury. I do not think the amendment should have been permitted at this stage of the case.

Two special questions were submitted to the jury: (1) “Did Parker give any valuable consideration for his share of the patent, and did it equal the amount paid by Rathbun?” To this question 10 jurors voted “No,” and it does not appear that the other two jurors voted. (2) “If you answer ‘Yes’ to this question, did Parker get it back again, or any part thereof, without paying for it?” To this one juror voted “Yes,” and one voted that Parker paid $700 for his two notes of $400 each. It does-not appear how the other 10 voted. No objection was made to the submission of these questions. They bore upon the good faith of defendant. It would be difficult to understand how a jury would find defendant liable if he fulfilled his agreement with plaintiff, and paid his full share of the purchase price. Men are not in the habit of making false and fraudulent representations for the purpose of defrauding their neighbors without receiving a consideration. The testimony presents some very peculiar features, not necessary to note, and these questions involve very important and material testimony. It was error to receive a general verdict without compelling an answer to these special questions.

When the defendant was testifying, counsel for the plaintiff objected to a question, in the following language: “ Objected to. They must first show that the man has a conscience.” Since the case must be reversed for other reasons, we refrain from commenting upon this language. Its use is not likely to occur upon a new trial. Carter v. Hill, 81 Mich. 280; Sullivan v. Deiter, 86 Mich. 404; Clink v. Gunn, 90 Mich. 140.

Several questions are raised upon the admission and rejection of testimony, but it is not necessary to discuss them.

Judgment reversed, and a new trial ordered.

Montgomery, J.

I concur in the result, but do not think the amendment to the declaration was error.

Long, C. J., and Moore, J., concurred with Montgomery, J. Hooker, J., did not sit.


text:
    HOUGHTON v. BRADLEY.
    Contracts — Insurance—Agent’s Commissions — Custom.
    A custom in the life-insurance business to allow general agents a permanent interest in the insurance secured by them in the form of a percentage on the renewal premiums does not affect or modify the provision of a contract which expressly limits commissions on business secured by the agent to the continuance of the agency.
    Cross-appeals from Wayne; Adams, J., presiding.
    Submitted June 9, 1897.
    Decided July 13, 1897.
    Bill by Spencer L. Houghton against Alonzo E. Bradley and the State Mutual Life Assurance Company for a partnership accounting. From the decree rendered, all parties appeal.
    Reversed.

      Jasper C. Gates, for complainant.

      George W. Radford, for defendants.
   Grant, J.

The issues involved in this case are succinctly stated in 110 Mich. 308. The case was then before us on demurrer to the bill. The defendants answered, proofs were taken in open court, and decree entered for the complainant against the defendant Bradley for $1,338.95. The court found that the defendants terminated the agency of complainant arbitrarily and without just cause, and that complainant is entitled to future renewal commissions upon all premiums which fell due before July 1, 1897. It was decided in the former opinion that complainant and Bradley were, partners. No period of duration was fixed in the articles of copartnership. It was conceded upon the hearing below that either party could terminate the partnership at will. It appears therefore to be immaterial, in the determination of the question involved, whether the partnership was terminated with or without just cause. If it were material to decide that question, we should reach a different conclusion from that found by the learned circuit judge.

For some reason, which we need not consider, complainant, for about two years before his discharge, had been a failure as an insurance solicitor. During the last six months of 1894 he had secured only $14,000 insurance, and in one month (August) did not secure a single policy. During the same time another solicitor, named Yan Tuyl, had secured $149,000. During the first five months of 1895 complainant’s record is as follows: January, nothing; February, $1,000; March, $4,000; April, $3,000; May, nothing. During these same months Mr. Yan Tuyl had secured as follows: January, $19,500; February, $15,000; March, $27,000; April, nothing; May, $33,500. And during these same months Mr. Bradley, who had the general charge of the office, wrote $40,000. It is difficult to understand why this record was not sufficient to justify both the defendants in discharging complainant from their employ. If this were so, his right to the renewal commissions would have ceased with his discharge. Phœnix Mut. Life Ins. Co. v. Holloway, 51 Conn. 310.

Complainant commenced to work for Bradley July 7,, 1890, in the interests of the company, under a written contract, by which he agreed to work for one year from July 7tli. Bradley guaranteed commissions to be at least $50 a month and traveling expenses. Before January 1st following, he secured about $100,000 insurance. There was a verbal understanding that, if complainant were successful as a solicitor, some other arrangement should be entered into. His success was deemed sufficient to justfy entering into the contemplated agreement. Thereupon Bradley, on December 9, 1890, wrote to the company the letter found in paragraph 2 of the former opinion. In that letter was this significant and unequivocal language:

“I have made arrangements with him [Houghton] to give him one-half interest in the renewals on all business secured after January 1, 1891, as long as he remains with the company, under the firm name of ‘ Bradley & Houghton, General Agents.’”

Complainant read this letter before it •was sent, and was fully aware of its contents. In the reply by the company, set forth in paragraph 3 of the former opinion, it said:

“We note that on and after January 1, 1891, you have, agreed to give him one-half interest in all the renewals on all business secured after said date, as long as he continues with the company.”

The company assented to the agreement. This letter was also read and its contents understood by complainant. Complainant and Bradley then made the agreement found in paragraph i of the former opinion. That agreement contained the following language:

“I [Bradley] agree to give him [Houghton] one-half of ■the renewal commissions on all new business secured and placed on the books of this agency from and after January 1, 1891, as long as he remains with this agency; also, fhe full first year’s commission on all business secured by him.”

The bill was evidently drafted in recognition of the force and meaning of the unequivocal language of the agreement, and sought to avoid its effect by alleging that there was a “custom of the business of life insurance, as between life-insurance companies and their general agents, that such general agents have a permanent interest in the' insurance secured by such agents, which interest is in the-form of a percentage of the renewal premiums on the' policies which represent such insurance, which interest is-called ‘renewal commissions,’” and that said agreement was entered into ‘ ‘ under and with reference to said custom and such usage.” Complainant entered upon his proofs-upon this theory, and his first witnesses were several general agents of other companies, introduced in the attempt to establish this custom. The testimony failed to show any such custom or usage, and the court so found. If, however, such a custom were proven, it would not avoid the plain terms of the contract. Stagg v. Insurance Co., 10 Wall. 589; Iron Duke Mine v. Braastad, 112 Mich. 79. The language of this contract cannot be construed as giving complainant a permanent interest in these renewals, without doing violence to the common rules of construction. In fact, the language is so plain that it leaves no room for construction. Twice, in the letters written before the contract was made, the same language was used, and was read by and known to the complainant. In Stagg v. Insurance Co., supra, plaintiff’s contract read as follows: ‘ ‘ For your services as above, you will be allowed a commission of 10 per cent, on the first premiums (cash and notes), and 5 per cent, on all subsequent renewal premiums, so long as you continue the agent of the company.” It was held that his right to the commissions ceased with the termination of his agency. See, also, North Carolina, etc., Ins. Co. v. Williams, 91 N. C. 69 (49 Am. Rep. 637); Spaulding v. Insurance Co., 61 Me. 329. No other case better illustrates the wisdom of the rule that parties are bound by the plain terms of their contract, and cannot change them by parol testimony of a different one. The parties have agreed in writing, and in language susceptible of but one meaning, that complainant’s right to renewal commissions is limited to his term of service. It is sought to introduce into the contract, by parol, another provision, extending this right beyond the term of service. Upon this, the testimony is in direct conflict.

This disposes of the only question in the case which we think important to consider. Complainant was only entitled to the renewals up to the time of the dissolution of the partnership, which included what is known as “purchased insurance,” to the purchase of which he contributed.

The decree will be reversed, and the case remanded to the court below for an accounting and decree in accordance with this opinion. The defendants will recover the costs of this court.

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


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    SWANSON v. MENOMINEE ELECTRIC LIGHT, RAILWAY & POWER CO.
    1. Trial — Pleadings—Special Questions — Harmless Error.
    A special finding by the jury that a certain wire, with respect to the maintenance of which an electric light company was alleged to have been negligent, was a dead wire, as set forth in the declaration, cures any error in the submission of the case upon the theory that it was immaterial whether the wire in question was a dead or a live one.
    2. Negligence — Evidence—Notice—Question for Jury.
    The question whether an electric light company could have known, by the exercise of reasonable skill, that attaching a bracket and wire to a brick cornice would subject it to a strain which, by reason of its frail construction, would .render it liable to fall and injure pedestrians, was for the jury, upon evidence that the building was brick-veneered, that it had been built 22 years, that the front was cracked, and that it was otherwise in bad condition.

      Error to Menominee; Stone, J.
    Submitted June 10, 1897.
    Decided July 13, 1897.
    Case by Ada C. Swanson, administratrix of the estate of J. Sanfred Swanson, deceased, against the Menominee Electric Light, Railway & Power Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff’s intestate, while walking along the sidewalk of Main street, in the city of Menominee, was killed by the falling of a brick cornice from a two-story building known as “Nos. 416 and 418,” and belonging to one Bertholdt. Plaintiff charges that the accident was due to the negligence of the defendant. The declaration alleges that the defendant “carelessly and negligently maintained and continued to maintain in, along, and across said Main street and the sidewalk a heavy wire reaching from one of its poles to said building at or near the cornice on the front portion of the same, to which it was attached by a bracket or cleat, but not for conducting electricity into the building, and therefrom extending diagonally across said street to a standing post surmounted with a large number of cross-arms and wires strung thereon, to which said standing post said wire was there attached.” It is then alleged that the cornice was frail, and liable to break and fall if subjected to a severe or constant strain, and that it was subjected to such strain on account of this wire, which was swayed to and fro by the winds, and by its expansion and contraction, and by the ice and snow collecting upon it. It is unnecessary to state the other averments of the declaration. Plaintiff had verdict and judgment.

      Sawyer & Waite (B. J. Brown, of counsel), for appellant.

      Charles Line (H. O. Fairchild, of counsel), for appellee.
   Grant, J.

(after stating the facts). It is first ■urged on behalf of defendant that the declaration counts only upon a dead wire, — that is, one not used for conducting electricity, — and that the court erred in submitting to the jury the question of negligence in placing and maintaining this wire if it was a live one. This question becomes immaterial in view of the special finding of the jury upon a question submitted to them at the request of the defendant. Question: “Was this wire that was fastened to the Bertholdt cornice used for the purpose of conducting electricity into the Bertholdt building at the time of this accident?” To this question the jury answered “No.” They therefore found it was a dead wire. It follows that, if any error was committed, it was one without prejudice. Russell v. Insurance Co., 80 Mich. 407; Cook v. Canny, 96 Mich. 398.

Error is assigned upon the refusal of the court to direct a verdict for the defendant. This contention is based upon the claim that there is no tangible evidence upon the record that the defendant maintained a wire running from the pole in the street near the Bertholdt building to the bracket at or near the cornice. The claim of the defendant was that a wire ran along in front of the buildings to convey the electricity into them, and that no wire extended as claimed by the plaintiff. We think there was testimony to sustain both theories, and that the determination of the question belonged to the jury. There is direct and positive evidence to sustain the plaintiff’s allegation in this regard. The ordinance under which defendant was operating provides that it ‘ ‘ shall not run its wires over or upon any building within said city except as may be essential for conducting electricity therein for lighting purposes.” The attaching of this dead wire was, therefore, in direct violation of the city ordinance. But, aside from the ordinance, it was negligence to attach the wire to the cornice if the danger was apparent.

It is urged that there is “no evidence to show that the defendant could, by the exercise of reasonable skill, have known that there was any danger at the place of the accident.” Defendant’s employés attached the bracket and wire to this cornice. The building was brick-veneered. It had been built 22 years. The front was cracked. It was otherwise in bad condition. The defendant, through its employés, is chargeable with notice of apparent defects. There was sufficient evidence upon this point to submit the question to the jury.

Several errors are assigned upon the admission and rejection of testimony. We find no material error committed, and we do not think the points raised are of sufficient importance to be discussed. The same remark is applicable to the errors assigned to the charge of the court. The case was fairly submitted to the jury under proper instructions.

The judgment is affirmed.

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


author: Montgomery, J.

text:
      In re KING’S ESTATE.
    1. Executors and Administrators — Extraordinary Services— Extra Compensation.
    The case is one of “unusual difficulty,’’ within the meaning of 2 How. Stat. § 9015, providing for an extra allowance to executors in cases of unusual difficulty or responsibility, in which the executor is obliged to perform services not required of an executor in the ordinary course of his employment.
    2. Same — Defense of Will — Procuring Witnesses.
    Services rendered by an executor in hunting up witnesses for proponents upon a contest of the will, in bringing them to counsel, and in assuming the responsibility of procuring their attendance at court, may properly be classed as extraordinary.

      3. Same — Amount Allowed — Discretion of Court.
    The amount of an allowance for extraordinary services is discretionary with the trial judge, if there is evidence to support the claim.
    Error to Wayne; Haire, J., presiding.
    Submitted June ■S, 1897.
    Decided July 13, 1897.
    Rachel L. Doty appealed from an order of the probate court disallowing her claim for services as executrix of the last will and testament of Adeline King, deceased. From a judgment for claimant, the estate (represented by George W. Bates) brings error.
    Affirmed.

      Otto Kirchner, for appellant.

      Ervin Palmer, for appellee.
   Montgomery, J.

This is an appeal from an allowance of compensation to claimant as executrix of the will of Adeline King. The circuit judge made a finding of facts, among which are the following:

“That from and after June 20, 1892, said Rachel L. Doty, as executrix, performed extraordinary services, not required of an executor or administrator in the common course of his duty, in hunting up witnesses for proponents, and bringing them to counsel, and in talking with a large number of persons with a view of making them witnesses for proponents, and assuming the responsibility ■of procuring the attendance of said witnesses for proponents, and having them present in court when needed, and in bringing them to counsel for proponents for examination; that said Rachel L. Doty was engaged in performing said extraordinary services for the estate the most of the time from June 23, 1892, the date of the sale of her said interest, to the close of the second trial; and :said extraordinary services, and the responsibilities imposed upon her as executrix, were worth the sum of $1,500.”

As a conclusion of law the court found:

“That, in exercising the judicial discretion imposed upon him by statute, it is just and reasonable that the said Rachel L. Doty be allowed for her said extraordinary services and responsibility the sum of $1,500 and costs of this suit, to be taxed.”

This matter was before the court on an appeal by claimant at a former term, and the opinion of the court is reported in 110 Mich. 203. It was then held that claimant was entitled to compensation for services rendered in an attempt to probate the will; that an executor may elect to take compensation under either section 9015 or section 5959, 2 How. Stat.; and that, if he elects to take for actual services in lieu of the percentage fixed by law, he is limited to $1 per day, except in cases of unusual difficulty and responsibility.

It is claimed by the appellant that claimant charges the estate for her services as executrix, 59 days from April 1, 1893, to April 2, 1894; 35 days from April 3, 1894, to May 23, 1894; and for extraordinary services, responsibility, and service in preparation for the second trial of the will case, etc. And it is contended that she is, therefore, limited to $1 per day, unless her services were of unusual difficulty and responsibility, and it is said that there was no finding that these services involved unusual difficulty or responsibility^. We think the criticism of the finding too technical. There is a finding that claimant performed extraordinary services, not required of an executor or administrator in the common course of his duties. It would seem to follow that the care was of unusual difficulty or responsibility. The case is one of unusual difficulty in which the executor is required to perform extraordinary services, not required of an executor in the ordinary course of his employment.

It is also contended that, as a matter of law,- the services-are not of an extraordinary character; but we consider this question ruled against the contention on the former-appeal. See, also, Wisner v. Mobley's Estate, 74 Mich. 143.

It is also contended that the sum allowed is not justified by any evidence in the case. There was testimony tending to support the claim of the executrix, and when this is so the allowance is within the discretion of the trial judge. Mower’s Appeal, 48 Mich. 441.

It is contended that the circuit judge erred in refusing to find separately the amount allowed for ordinary and the amount allowed for extraordinary compensation. The answer to this is that all that was allowed was for what the circuit judge determined to be extraordinary services.

We discover no error in the proceeding.

Judgment affirmed.

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


author: Moore, J.

text:
    BOYDEN v. WALKLEY.
    1. Private Sewers — Authority to Construct — Clerical Error.
    A clerical error in a resolution of the common council granting permission to a lot owner to construct a private sewer in the street, whereby authority was given to construct the sewer upon the “westerly” instead of the “easterly” side of the street, as contemplated by all the parties, will not abridge the rights of the owner in a sewer constructed and maintained for several years upon the easterly side.
    3. Same — Municipal Corporations — Public Streets.
    A city having no sewer system of its own may grant to a citizen, under proper circumstances and restrictions, the right to construct a private sewer in the streets at his own expense, which may be used by him without interference by other citizens.
    3. Same — Bights oe Owner — Injunction.
    The owner of a private sewer, who has the exclusive right to use the same, may maintain a bill to enjoin its use by other citizens, who connect therewith without his consent, where such use results in clogging the sewer and flooding the owner’s house.

      Appeal from Ottawa; Padgham, J.
    Submitted June 10, 1897.
    Decided July 13, 1897.
    Bill by Charles Boyden and Jukie Boyden to enjoin Wyllis S. Walkley and John Juistema from depositing sewage in complainants’ private sewer. From a decree for complainants, defendant Walkley appeals.
    Affirmed.

      George A. Farr, for complainants.

      McBride & Danhof, for appellant.
   Moore, J.

Prior to 1884, complainants were owners and occupants of a residence and grounds in the city of Grand Haven, upon which they had expended about $20,000. The city had no system of public sewerage. A private sewer existed on Franklin street. Complainants, having arranged with the owners of that sewer to make a connection with it, obtained from the common council of the city of Grand Haven, in 1884, by resolution, permission to construct a private sewer, at their own expense, along Fourth street, to connect with the Franklin street sewer. They at once proceeded to construct this sewer at an expense of upwards of $224, and continued to use it until November, 1895, at which time the defendants sought permission from complainants to make connection with the sewer, and offered to pay for the privilege. Complainants, thinking the sewer not large enough to allow the defendants to make the connection, declined to let them. Defendant Walkley then had a talk with the majror and an alderman, and says he was advised by them to make the connection with the sewer, if he desired to do so. A sewer was then built from the residences of the two defendants towards Fourth street, upon which street the lots of defendants fronted, until they were merged into one sewer, which was then extended to and connected with the sewer built by complainants. The bill in this case was filed to enjoin defendants from using said sewer, and a decree was made according to the prayer of the bill, from which decree defendant Walkley appeals.

A number of questions are raised by the solicitors for •appellant, some of which we do not deem to be very important. The sewer was constructed, upon the easterly side of Fourth street. The resolution granting the permission provided for the construction of the sewer on the westerly side of Fourth street. It is claimed that, as complainants did not put the sewer where they were authorized to put it by the resolution, they have ho right at all to the sewer where it is. We do not think this claim has any merit. The use of the word “westerly” was evidently an error, probably a clerical error. There is everything to indicate this. To put the sewer on the westerly side of the street would make it necessary to cross Fourth street, when there was no good reason for doing so. After the adoption of the resolution, the sewer was constructed at once, and the municipal authorities liave never questioned its proper location.

The important question in the case is: Can a city or village, having no sewer system of its own, grant to a ■citizen, under proper circumstances and restrictions, the right to construct a private sewer, at his own expense, in the streets of the municipality, which, when constructed by him, may be used without interference by other citizens, without his consent? The charter of the city conferred upon the common council the power to make drains •and sewers, and to “compel the owners of all occupied lots within said city to construct private drains or sewers therefrom to connect with some public sewer or drain, and to prescribe the form, dimensions, and manner of construction of such private drains and sewers,” etc. Act No. 243, Laws 1871, § 89. In 2 Dill. Mun. Corp. § 688, it is said:

‘ ‘ The power of the public, or of the municipal authorities, representing by delegated authority the public, over streets, is not confined to their use for the sole purpose of travel, but they may be used for many other purposes required by the public convenience. * * * With respect to streets in populous places, the public convenience requires more than the mere right to pass over and upon them. They may need to be' graded and brought to a level, and therefore the public or municipal authorities may not only change the surface, but cut down trees, dig up the earth, and may use it in improving the street or elsewhere, and may make culverts, drains, and sewers upon or under the surface. Whether the municipal corporation holds the fee of the street or not, the true doctrine is that the municipal authorities may, under the usual powers given them, do all acts appropriate or incidental to the beneficial use of the street by the public; of which, when not done in an improper and negligent manner, the adjoining fee holder cannot complain.”

The case of Wood v. McGrath, 150 Pa. St. 451, is an instructive case. The borough council authorized a citizen to construct a private sewer along a public street, without the consent of an abutting lot owner. It was there, as here, contended that the council exceeded its authority when it did this. The court, after referring to cases which sustain the right of municipal councils to grant to an individual the right to lay a water pipe in the street, said:

“But it is too plain for argument that,if a borough has the power to grant to an individual the right to lay a water pipe in the streets for his exclusive use, it must also, by parity of reasoning, possess the entirely similar power to grant permission to a citizen to lay a drain pipe in the streets, to lead off the surplus or refuse water from his building. The objection in the latter case is that the streets can only be used for public purposes, and not for those which are private. * * * The conclusion of the court below was based upon the idea that the abutting owner is the owner of the fee of the land occupied by the street, and the laying of a drain pipe under the street without his consent is an invasion of his right as owner of the land. How fallacious this proposition is, is at once apparent when it is considered that the right of the public in the streets of cities, boroughs, and towns is far more ‘extensive than the mere right to use the surface of the land for the purpose of passage. * * * The argument, on the part of the plaintiff proves too much. It denies entirely the right of the borough to allow a private owner along a street which has no drain to connect with a drain on another street, unless the consent of all intervening owners be obtained. In many towns anij. boroughs of the Commonwealth, the pipes and drains and sewers are not laid on all the streets, but on a few of the principal streets. It follows from the contention of the plaintiff that all citizens owning properties on the side streets which have no pipes or drains cannot obtain their gas or water, and cannot connect with the sewers and drains, because the municipal authorities cannot give them. permission to do so. This certainly is not the law, * * * nor is there anjr good reason for holding such a doctrine. The streets and alleys of cities, towns, and boroughs are under the control and direction of these municipalities, and they have all the power over them that can lawfully exist. They are the universally recognized channels of communication between the different parts of the municipal territory, and no private interest in or ownership of the subsoil is permitted to interfere with the free use of both the surface and the subsoil by the municipal authorities, or by their delegated substitutes. * * * It does not lie with the adjoining owners to say they admit that the borough authorities can use them for all public purposes, but cannot permit their use for the same kind of purpose by a private citizen, because we have already decided they can do so; and if the use permitted is of the same kind to which the surface or subsoil of the streets may be devoted, they have no more right to object in the one case than in the other.”

See Smith v. Simmons, 103 Pa. St. 32 (49 Am. Rep. 113); Borough of Susquehanna Depot v. Simmons, 112 Pa. St. 384 (50 Am. Rep. 317); Stevens v. City of Muskegon, 111 Mich. 72.

The appellant says the council cannot give the exclusive use of the street to an individual. There has been no attempt to do so by the council. If the defendants desire to construct a private drain on this street, there is no doubt the council will give them the right, under proper restrictions, to do so.

It is said the council cannot relinquish its duty to ■supervise the sewers of the city. That question is not here, and there will be time enough to discuss it when it is here.

It is urged that complainants have not shown irreparable injury, and are not entitled to an injunction. The testimony is very conflicting as to the effect of the connection made by the defendants; the witnesses for the defendants testifying that, in their judgment, no injury is done. On the other hand, it is made to appear that the sewer worked perfectly for more than 11 years, and gave no-trouble until the connection was made, and that, within a short time after defendants began to use the sewer, it became clogged twice, so that the basement of complainants’ house was flooded with its contents, and the help of the* fire department was inquired to flush it, so it would perform its office again. Who that values the health of himself and family would put a money price upon the risk incurred in having a defective sewer coming into his-dwelling? In White v. Forbes, Walk. Ch. 114, an injunction was issued to prevent the flooding of land. In disposing of the question, the court said:

“ Every man has a right to the enjoyment of his property undisturbed by another, and to be protected in that enjoyment, and wliat one may consider of little value,, another may esteem very highly. The court will not, in cases of this kind, be governed by dollars and cents aloner but will inquire whether the injury is of such a nature that it can reasonably be supposed to lessen materially the-enjoyment of property by its owner. The complainant lives on the premises. They are his home. He places a high value on the land, and wants it for a meadow, and he is apprehensive that the flooding of it will generate disease, and render the atmosphere of his dwelling less salubrious.”

We have no doubt the common council had the right tb and did authorize the construction of this sewer. When constructed by complainants, at their own expense, they had a right to its enjoyment, free from the interruption or interference of private citizens.

The decree is affirmed, with costs of both courts.

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


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    MICHIGAN TRUST CO v. GRAND RAPIDS DEMOCRAT.
    1. Labor Debts — Insolvent Newspaper Corporation — Editors and Reporters.
    Debts owing by an insolvent newspaper corporation to its employés for the gathering of news items, the performance of editorial work, the preparation and correction of copy, and the reading of proof, are not debts for labor, within 3 How. Stat. § 8749m, making such debts preferred claims against the estate of an insolvent.

    2. Same — Mailing Clerks.
    ' But the amount due to a mailing clerk for getting out, addressing, and mailing the paper to the various subscribers is a debt for labor, within the meaning of the statute.
    3. Same — Foreclosure Proceedings — Interveners—Opening op Decree.
    Where a former employé of an insolvent corporation intervened in foreclosure proceedings against such corporation after the rendition of a decree therein providing for the sale of the mortgaged property, and of certain accounts and bills receivable assigned to S. by the mortgagor, and reassigned to the mortgagee, after the labor for which the intervener claimed had been performed, and directing that S. be paid out of the proceeds a specified sum, exceeding in amount the intervener’s claim, it was not necessary that such decree be opened or modified in order to enable the intervener to obtain relief, but his debt could properly be made a charge upon the fund apportioned to S.
    Appeal from Kent; Adsit, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.
    Bill by the Michigan Trust Company against the Grand Rapids Democrat to foreclose a chattel mortgage. M. Almy Aldrich and other employés of the defendant corporation severally filed petitions as interveners for preference as to their several claims for compensation. From a decree in favor of the interveners, complainant appeals.
    Reversed, except as to intervener Clarence J. Toot.

      Fletcher & Wanty, for complainant.

      Kingsley & Kleinhans, for defendant.

      Hatch & Wilson, for intervener M. Almy Aldrich.

      Peter Doran, for interveners Edwin J. Bulkley and William M. Hathaway.

      Stuart & Barker, for intervener Clarence J. Toot.

       On the question who are laborers, employés, or servants, within the meaning of statutes giving them preferences, there is a note to Tod v. Kentucky Union R. Co., in 18 L. R. A. 305.

   Moore, J.

The interveners were allowed certain claims, which complainant was directed to pay as preferred claims. It is the claim of the interveners that the claims were properly allowed as preferred claims, under the provisions of 3 How. Stat. §'"8749to, which provides that—

“All debts which shall be owing for labor by any person or persons or corporation at the time he, they, or it shall become insolvent shall be preferred claims against the estate of such insolvent debtor or debtors, and have precedence in the payment thereof over all debts owing by such insolvent debtor or debtors at the time of becoming insolvent which shall not have become a lien on such estate, or some portion thereof, prior to the performance of the labor for which such debts for labor shall be owing.”

The first petition of Aldrich states that—

‘ ‘ The nature of the work and labor performed by your petitioner * * * was the writing of editorials, and the performing of various kinds of editorial work, required to be done on the daily and weekly issues of the Grand Rapids Democrat, the newspaper published by the said defendant, the preparation and correction of copy for the printers, the direction of the make-up of the paper, including full charge of all branches of the mechanical department of said paper after the close of the business office each night.”

His second petition states the nature of the work to be the same, only adding that the editorial work was done under the direction of a superior. The petition of Ciar«nce J. Toot states that the nature of the work performed by him was that of mailing clerk, which consisted in attending to the getting out, addressing, and mailing of the newspaper to its various subscribers, and putting in appropriate packages, and delivering to the proper persons, the proper number of papers allotted to each. The petition of Edwin J. Bulkley says that the nature of the work performed by him was that of proof reading, and traveling around the city, gathering news. The petition of William M. Hathaway states that the nature of the work performed by him was that of reporting, going around to the ■different wholésale houses, collecting market reports, and assisting in editorial work and proof reading.

This statute has been repeatedly construed by this court, and, while the precise questions raised in this proceeding have not been passed upon, we think the logic of the decisions is against the decree found by the learned circuit judge. The labor performed by the petitioners, with one exception, was intellectual, rather than manual. It was the work of professional men, rather than the work of laborers, giving the word its ordinary acceptation, and is not such work as is intended to be covered by the statute. In re Clark, 92 Mich. 351; In re Sayles, Id. 354; Appeal of Clark, 100 Mich. 448. The exception mentioned is the work performed by Mr. Toot. His labor was mechanical and manual, and is clearly embraced within the terms of the statute. Appeal of Black, 83 Mich. 513.

It is said that, as the petition embracing the claim of Mr. Toot was not filed until after the decree was rendered, and the decree has not been reopened or modified, it is too late to give Mr. Toot any relief. The decree embraces items of accounts and bills receivable that were assigned after this work was done to Mr. Stevenson, and afterwards ■assigned by him to the complainant. This decree provides that the fund be brought into court, and apportions to Mr. Stevenson upwards of $2,00Q. As Mr. Stevenson’s claim is subsequent to that of Mr. Toot, we can see no great difficulty in providing for the payment of Mr. Toot’s-claim out of the fund, and it will be so ordered.

The decree, as to the other petitions, will be reversed, and petitions dismissed, appellant to recover costs, except-as to Mr. Toot, and Mr. Toot to recover costs.

The other Justices concurred.


text:
    DOUGLASS v. BOARDMAN.
    1. Injunction Bill — Parties — Diversity oe Interests — Multieariousness.
    A bill by the owners of separate lots, who derive their titles-from the same source, to enjoin one claiming a dower interest therein from instituting ejectment suits against them to recover such interest, and from prosecuting suits already instituted, is multifarious.
    2. Same — Dower—Fraud and Extortion — Evidence.
    An attorney’s assertion of his client’s claim of dower in certain lots in an amount greatly in excess of that which the owners-believe to be justifiable, and his threat that, if the amount is not paid, he will institute suits in ejectment, which would involve costs to an extent rendering it more expensive for the owners to litigate than to accede to his demands, is not such an indication of fraud as will justify a court of equity in enjoining the prosecution of the suits at law.
    Appeal from Kent; Grove, J.
    Submitted June 11, 1897.
    Decided July 13, 1897.
    Bill by Andrew L. Douglass and others against Mary L. Boardman and Clark H. Gleason to enjoin the prosecution of ejectment suits. From an order overruling their several demurrers to the bill, defendants appeal.
    Reversed.

      Siveet, Perkins & Judkins (Kingsley & Kleinhans, of counsel), for complainants.

      O. PL. Gleason and Arthur Loioell, for defendants.
   Moore, J.

The defendant Mrs. Boardman claims a dower interest in upwards of 250 lots in the city of Grand Rapids, owned by about 130 persons, who are now in the possession thereof. Mrs. Boardman has brought four ejectment suits to recover her dower, and threatens to bring others. The defendant Gleason is her attorney in the ejectment suits. Tht defendants in the ejectment suits and 87 other lot holders joined in filing a bill of complaint, in which they allege that they are owners in fee, and in possession, of their respective lots; that they get their title from one source; that the assertion of a claim of dower by defendant Mrs. Boardman constitutes a cloud upon the title of complainants, and affects them all in the same manner. The bill alleges that the defendant Mrs. Boardman is not now, and never has been, entitled to any dower interest in said lands. ' It also alleges that, when the husband of defendant Boardman died, the real estate was not of much value; that Mrs. Boardman knew of improvements 'of great value being put upon said lands, and made no claim of right of dower; that, if she is entitled to any dower, it would amount to no more than $3 or $4 in value on each lot, and that defendant Gleason, with full authority to act for his client, has offered to take a money compensation for the right of dower, varying from $15 to $45 a lot, and endeavors to get from complainants in that way $7,000 for what is worth not more than $700, and threatens to commence ejectment suits if Mrs. Boardman’s demands are not acceded to; that defendant Gleason asserts he could recover costs, amounting to from $40 to $50 in each ejectment suit, and that it would be cheaper for the complainants to settle upon his terms than to litigate; and that the purpose of now asserting a claim to a right of dower is to subject complainants to expense, in the way of costs, out of proportion to the value of the dower interest. The prayer is that defendant Boardman be decreed to have no right of dower, that she be decreed to relinquish her claim of dower, or, if the court should find that she has a valid dower interest, that its value may be determined, and a gross sum of money fixed in lieu thereof, and that both defendants be enjoined from prosecuting the ejectment suits already commenced, and from commencing others. The bill also contains a general prayer for relief. It does not ask the court to determine what proportion of the gross sum allowed in lieu of dower should be paid by each complainant.

Defendants demurred to the bill on various grounds. Those necessary to mention are: First. Complainants have a complete remedy at law. Second. Because defendant Boardman has a right to have her dower interest, and its value, determined at law, instead of at equity. Third. Because the bill shows that it is exhibited by said complainants for distinct and separate matters, in which complainants are not jointly interested. The demurrers were overruled, and defendants appeal.

The case of Winslow v. Jenness, 64 Mich. 84, was a case where a large number of complainants filed a bill to restrain the prosecution of 21 ejectment suits, brought by the defendant Gertrude Smith to recover an undivided one-third interest in the lands. The defendants in the several ejectment suits derived title from the same sources, and claimed they were affected in the same manner by the assertion by Mrs. Smith of her interest in the lands, and as to the principles involved the case was like this case. As that case is so accessible, it is not necessary to refer to it in detail. It was held that the bill was multifarious. See, also, Jenness v. Smith, 64 Mich. 91; Brunner v. City of Bay City, 46 Mich. 236; Barker v. Township of Vernon, 63 Mich. 516; 1 High, Inj. § 62. These cases should control the present one, unless it can be said that a different rule applies where ejectment is brought for dower than obtains where it is brought to recover an undivided interest. We have not had our attention called by the learned counsel to any cases making such a distinction.

2 How. Stat. § 7789, subd. 2, provides that ejectment may be brought by any widow entitled to dower, and she ought not to be deprived of that right unless it is made very clear that injustice will be done. Rea v. Rea, 63 Mich. 257. It is urged that, as Mrs. Boardman’s dower interest is small in value, while she claims much more than it is worth, and her attorney has urged complainants to settle, asserting that his client would be entitled to costs, in each case amounting to $40 or $50, and that it would be cheaper for them to settle, this operates as a legal fraud upon complainants.

We cannot arrive at the same conclusion reached by counsel. We draw from this statement the conclusion that complainants put one value upon the dower interest, and the attorney another, and that, as they did not agree, the attorney asserted that, if they could hot agree, he must bring suit, which would involve costs, and that it would be cheaper to settle than to litigate. We do not see in all this any such indication of fraud as would justify a court of equity to interfere with a proceeding at law. The demurrers should have been sustained.

The decree is reversed, and the bill of complaint dismissed, with costs of both courts.

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


text:
    TOWNSHIP OF MAPLE VALLEY v. FOLEY.
    Fraudulent Conveyances — Husband and Wife — Estoppel.
    A conveyance by a husband to his wife, without a present consideration, made at a time when the husband is sought to be held as surety upon the bond.of a defaulting township officer, and embracing property the title to which has stood in his name for 25 years, and which was included in his estimate of assets when he gave the bond and justified as to his responsibility, is fraudulent as to the township, even though the property was originally purchased under an arrangement entered into by the wife without the knowledge of the husband, and was paid for out of a common fund to which her earnings contributed.
    Appeal from Wayne; Carpenter, J.
    Submitted June 11, 1897.
    Decided July 13, 1897.
    Bill by the township of Maple Valley against James Foley and wife in aid of execution. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Avery Bros. & Walsh and E. C. Babcock, for complainant.

      T. E. Tarsney, for defendants.
   Moore, J.

Complainant filed a bill to set aside a conveyance made by James Foley to his wife, Mary Foley, and to subject the real estate described therein to levy and sale upon an execution obtained by the complainant against James Foley and others. In the circuit court the bill was dismissed. The complainant appeals.

In April, 1891, James Foley and another became sureties on the bond of the town treasurer for the township of Maple Valley. Mr. Foley at that time justified as to his responsibility, and declared himself worth $3,000 over and above all liabilities and exemptions. The township 'treasurer became a defaulter, and in October, 1892, Ms bondsmen were notified that the township would look to them for the deficiency. April 13, 1893, James Foley conveyed to his wife certain real estate on Porter street, in Detroit, without any present consideration passing between them. The bill seeks to subject that property to levy and sale, and also other property. The solicitors for complainant concede that they have not made such a case as to entitle them to reach the other property, and the discussion will be confined to the Porter-street property. A claim is made on the part of the defendants that the pleadings are so defective that complainant cannot recover, but the record is in such condition that we do not think the claim can now for the first time be urged.

At the time the bond was given, the defendants both lived in Sanilac county, and had lived there since 1880, upon a farm which was worth $3,000 at the time the bond was given. We think it is fairly established by the evidence that, if the Porter-street property was not included in his estimate when he gave the bond, the defendant James Foley was not worth, over and above his liabilities and exemptions, the sum of $3,000. The defendants were married in 1861, in Detroit, where they continued to live until they moved to Sanilac county. At the time of the marriage, James Foley owned 80 acres of wild land in Sanilac county, and had about $40 in money. His wife at that time had about $130 in money. It is claimed on the part of the defendants that the Porter-street property was bought by the wife, and paid for by what she was able to earn in taking in washings, taking boarders, and from the products of fowls and cows which she kept. It is also claimed that the making of the deed in April, 1893, was for the purpose of giving to the wife the legal title of what was already equitably hers.

It is shown by a preponderance of proof that both defendants were industrious people. James Foley was in the employ of a railway company. The wife, in addition to attending to her household duties, took in washing, and took some boarders, and also, at times, kept cows and hens, and sold butter 'and eggs. For a time after they were married, defendants lived in rented houses. Mrs, Foley tired of this, and, without consulting with her husband, arranged to buy the Porter-street property, which was sold upon credit. When told of what she had done, the husband said he had the 80 acres of land, and did not want any city property. The husband delivered to the wife his earnings, and the first $40 paid on the Porter-street lot was furnished by him. The other payments were made out of the common fund to which both had contributed. A house was built upon the property at an expense, including the painting, of nearly $400. This was also paid out of the common fund.

The deed to this property was made August 10, 1867, and was made to James Foley. Mrs. Foley did not read or write, but at the time the deed was brought home she knew it was made to her husband, and at that time it was talked that it should have been made to her. The deed was kept until June, 1878, when it was for the first time put upon record. In 1880 the defendants moved to Sanilac county, and the house on Porter street was rented. The rent was applied to the payment of the taxes, and the balance from time to time was sent in a registered letter to James Foley, in Sanilac county. It is claimed by defendants that the money was at once turned over to Mrs. Foley. After the removal to Sanilac county, James Foley often spoke of his Detroit property, and of his receiving rent from it, and of the taxes being high; and upon one or two occasions Mrs. Foley was present, and participated in a talk of like character with a store keeper who was selling Mr. Foley goods upon credit.’ At the time defendant Foley signed the bond and justified as to his responsibility, he said the valuable part of his property was the Detroit property. The property was assessed tO' Mr. Foley, and it was insured in his name. After the default occurred in the bond, Mr. Foley swears, he consulted a lawyer, and was advised by him to deed the Porter-street property to. his wife; that he then consulted his wife, who wanted the deed made to her to secure her; and that he then made the deed to her. The wife testified that the deed was recorded before she went to Sanilac county; that she left it that way until the township treasurer failed. She further testified:

“I got the deed because there was danger. The danger was this lawsuit pending. That was the reason I wanted him to give me the deed of the place.”

The record shows that Mr. Foley consented to his wife’s taking boarders and taking in washing and keeping the fowls and cows, but it does not show that it was agreed that she should have the proceeds. Mrs. Foley testified:

“There was no talk between myself and husband that what I earned taking in boarders and selling milk belonged to me.”

It is very evident that, while the purchase of the property was due to Mrs. Foley, it was paid for by the earnings of Mrs. Foley and her husband. The title was taken in his name, and held by him for more than 25 years. No attempt was made to put it in the name of anybody else until Mr. Foley became involved, and was likely to have a judgment rendered against him, and because of that fact the title was transferred from him to his wife. However innocent may have been the motives of the parties to the transaction, it was a legal fraud as to the creditors of Mr. Foley. 2 How. Stat. § 6203; Felker v. Chubb, 90 Mich. 24; Iseminger v. Criswell, 98 Iowa, 382; Carbiener v. Montgomery, 97 Iowa, 659.

The property is doubtless worth more than the amount of the debt. The defendants are given 90 days in which to pay the judgment, with interest and costs. In default of such payment, the deed will be set aside as to complainant, and the land be sold.

The decree below is reversed, and one will be entered here as indicated above.

Long, C. J., Grant ánd Montgomery, JJ., concurred. Hooker, J., did not sit.


author: Hooker, J.

text:
    COMSTOCK v. McDONALD.
    Partnership — Death op Partner — Receivers.
    A receiver of partnership property should not be appointed against the objection of surviving partners, at the solicitation of the representatives of a deceased partner, against whom a suit has been instituted by the survivors for an accounting and to enable them to purchase the share of the deceased, where the survivors are abundantly responsible, and able to do justice on a final accounting, and there is no tangible evidence that they are wronging the representatives of the deceased.
    Appeal from Alpena; Kelley, J.
    Submitted June 15, 189?.
    Decided July 13, 1897.
    Bill by Andrew W. Comstock and William B. Com-stock, surviving partners of the firm of Comstock Brothers, against George R. McDonald, administrator of the estate of Joseph B. Comstock, deceased, and others, for an accounting. From an order appointing a receiver upon
    the application of defendants, complainants appeal.
    Reversed.
    Previous to 1886, the complainants and one Bewick constituted a copartnership doing business at Alpena under the name of Bewick, Comstock & Co. Their business was extensive, and included lumbering operations (including the running of sawmills), banking, the ownership of vessels, etc. The defendants assert that an inventory of the property owned by this firm, or, more properly speaking, its successor, amounted in 1894 to the sum of $2,000,-000. In the year 1886 an agreement was made by which Bewick was to sell his one-third interest in this concern and its business to his two partners for the sum of $300,-000, from which we may infer that $1,000,000 was not far from the value of the assets at that time. At this time the complainants had a younger brother, Joseph B. Com-stock, who was not engaged in business for himself, but was in their employ as bookkeeper, and it was arranged that he should take one-ninth interest in the new copartnership to be formed and carried on under a fh'm name after the retirement of Bewick. Accordingly the three brothers purchased the interest of Bewick for $300,000. It is in connection with this transaction that one of the principal questions in the case arises, it being contended on behalf of the defendants that this sum of $300,000 was to be paid for by the partnership from its profits, while the complainants contend that each partner was to be charged with one-third of the purchase price, though it was to be paid for by the copartnership from its assets.
    In August, 1894, Joseph B. Comstock died, and Andrew W. Comstock was appointed administrator and guardian •of the children. William B. Comstock was appointed one of the appraisers, and aided in making the inventory mentioned, and an allowance of $200 a month was made by the probate court, which has been paid to the widow. Subsequently negotiations were had between the complainants and the widow with a view to the purchase by them of the interest of the estate of Joseph in the business and property, and an offer of $100,000 in cash was made. The parties were unable to agree, and A. W. Comstock báving resigned as administrator, and the defendant McDonald having been appointed as his successor, the complainants filed the bill of complaint in this cause, setting up the existence of the partnership, the character and •extent of its business and property, the death of Joseph, the appointment of the administrator, and the futile effort at a settlement, and alleging that the best interests of all •concerned, considering the stringency of the times, would be conserved if the assets of the firm should be offered for sale in some way that would permit the complainants to buy. The bill prayed for an accounting, and a decree that the real estate, which stood in the individual names •of the members of the firm, was partnership property, and that a receiver be appointed to take possession of all of the partnership property, and, under the direction of the court, to sell or dispose of the same, in mass or in parcels, and that the complainants be allowed to become purchasers. In this connection it should be stated that the bill alleges that the widow’s claim of value was excessive, and that she denied any liability on the part of the estate for the purchase of its share in the concern, and the bill prayed that this question might be settled.
    The answer of the administrator alleges that the widow and children have very little property, and therefore that it would be to their interest to have the property sold in parcels, and that a receiver should be appointed to take charge of the assets of the copartnership until the property can be sold. It proceeds to allege delay and fraud in settling the estate, to the injury of the widow and heirs of Joseph. Subsequently a petition was made alleging that the complainants were still carrying on the business of the copartnership, and had made no effort since filing the bill to determine petitioners’ interests, but ignored their interests, and continued the business with the assets, without endeavoring in any manner to close out said business, or determine the interests of the petitioners therein; that an examination of the books showed that they were treating the assets of the copartnership as their own. It also states in detail certain charges, which, in effect, debit the estate with amounts paid by the firm upon the purchase price of Joseph’s interest, with interest on the amount advanced by the firm; also that they have charged themselves with large sums which they have withdrawn from the business, and with these moneys have bought large tracts of valuable land, and that they have admitted one Jolly to an interest in the profits of the business. The petition, which was filed October 2, 1896, prayed the appointment of a receiver and an injunction. It was verified on information and belief by the widow, and counsel appended an affidavit that he had examined the books, and heard the testimony of the complainants, taken under the statute in behalf of the petitioners, and stating his conclusion therefrom to the effect that at some time, not stated, after the death of Joseph, the complainants opened a new set of books; that all moneys collected by them as survivors were appropriated by them, each being charged with one-half; that in January, 1895, they charged $99,000 to the estate of Joseph for which there was no consideration or transaction except a claim of complainants which antedated the charge more than eight years, and that at the same time said complainants, from the profits of the concern, took a credit aggregating more than $185,000, and that between November 19, 1895, and August 1, 1896, they took credits from the firm of over $150,000 more.
    Thereupon the court made an order- appointing the Union Trust Company of Detroit receiver of all of the partnership property (describing it), and requiring a just and accurate statement of all collections made and other transactions of said business since the .death of Joseph, within 20 days. From this order an appeal was taken to this court.

      Frank Emerick, for complainants.

      McDonell & Hall, for defendants.
   Hooker, J.

(after stating the facts). The evidence upon which this order was made was that of the complainants, taken by the defendants under the statute, certain documentary evidence from the probate court, and the testimony of Bewick and his son, taken by deposition on behalf of the complainants. The testimony is not voluminous, and the facts do not seem to be disputed, except upon the question of the intestate’s purchase. In this particular, upon the present record, we think the claim of the widow and administrator is not sustained. It is based on what they seem to claim was a gift by the complainants to Joseph of one-third interest in their two-thirds of the business and property on condition that Joseph would purchase one-ninth, and have it charged to him on the books, which charge, by the way, was not made. This claim is sought to be sustained by invoking the aid of the statute prohibiting the parties to testify, and by treating the testimony of the Bewicks as hearsay. This cause is not here upon final hearing, as we judge that it might easily have been, for it was, or might have been, at issue in December, 1895, and it is stated without denial that it had passed the September term, 1896, against the opposition of the complainants, and this petition was filed a month later.

To the contention that this was a consent order, the record is a complete answer. First, the parties were in court contesting it; and, second, the bill did not ask a preliminary order, but only after a full hearing and accounting, which apparently the complainants were willing to have taken. It is evident that this bill was filed- — ■ First, to settle this claim made on behalf of Joseph’s estate; and, second, to enable the purchase by the complainants upon some fair basis of a business which they-had built up by years of hard work, and which they might naturally desire to continue. We may well take notice of the difficulties of closing out a business of this kind, in the strict sense of selling and scattering its various assets, whose chief value consists in the fact of their aggregation, under competent management; difficulties which are intensified by the financial conditions which have prevailed for a few years past. We do not overlook the natural proclivity to purchase at a low price, and realize that surviving partners may have opportunities to perpetrate wrongs upon the representatives of deceased partners, but we think there should be more tangible evidence of it than there is in this case before taking away their control, and placing it in the hands of others. The complainants appear to be abundantly responsible, and no doubt can be made to do justice upon a final accounting. If wise counsel prevail, it would seem that the parties might adjust their rights upon a fair basis without the vexation and loss of protracted litigation. If they cannot, a fair ■accounting can doubtless be had through the courts.

The order appointing a receiver is reversed and set aside, with costs of both courts.

Grant, Montgomery, and Mocare, JJ., concurred. Long. C. J., did not sit.