text:
    TOWNSHIP OF LA GRANGE v. SUPERINTENDENTS OF POOR OF CASS COUNTY.
    1. Support op Poor —Adoption op Township System — Boards op Supervisors.
    A board of supervisors which has, by a two-thirds vote, adopted the distinction between township and county poor, as authorized by 1 How. Stat. §§ 483 (subd. 11), 484, has no authority, without the rescission of the resolution by a two-thirds vote, to direct the expenditure of county funds in the support of poor who have gained a settlement in any township or city.
    2. Same — Statutes—Construction.
    Such persons, under 1 How. Stat. § 1786, and the amendatory act of 1883 (3 How. Stat. § 1789); must be supported at the expense of the township or city where such settlements are had; and the provisions of 1 How. Stat. §§ 1762, 1793, 1794, for a removal to tlie county poor-house of persons found to be in indigent circumstances, and for a determination by the county superintendents as to their legal settlement, must be construed in connection with those statutes.
    Appeal from Cass; Coolidge, J.
    Submitted October 14, 1897.
    Decided December 7, 1897.
    Bill by the township of La Grange to restrain the superintendents of the poor of Cass county from expending county funds for the support of poor persons having settlements in particular townships. From a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.

      Harsen D. Smith, for complainant.

      M. L. Howell, for defendants.
   Long, C. J.

This bill was filed to restrain the superintendents of the poor of Cass county from paying out money belonging to the county for the support of certain poor persons having settlements in particular townships in the county; the board of supervisors having previously adopted the township system of supporting the poor of the county. The bill was demurred to, and the demurrer sustained. Complainant appeals.

It appears by the bill that the board of supervisors, by a two-thirds vote, passed a resolution which provided that “the distinction between township and county poor be, and is hereby, adopted, to take effect October 1?, 1896.” This action was authorized by 1 How. Stat. § 483, subd. 11, when the power is exercised by a vote of two-thirds of all the members elect. Id. § 484. It further appears by the bill that, after thus adopting the township system, the board, by less than two-thirds of all the members elect, passed another resolution, providing, in effect, that certain poor persons residing in several of the townships, including La Grange, and having settlements in such townships, should be supported by the county, instead of the several townships in which they had settlements; after which the board, by resolution, excepted from the operation of the last resolution all persons having settlements in La Grange township. The superintendents of the poor proceeded to support said poor persons having settlements in the said several townships from the county poor fund, and paid out something over $800 for such purposes.

It is contended that this last resolution was an attempt to again change the system from the township to the county system, and that this change could not be made except by a two-thirds vote of all the members elect of the board. Section 1786, 1 How. Stat., provides that— *

“In those counties in which the distinction between township and county poor shall not be abolished by the board of supervisors, the poor having a settlement in any township in such counties shall be supported at the expense of such township, and the poor not having such settlement shall be supported by the county in which they may be.”

By amendatory Act No. 110, Pnb. Acts 1883, it is provided in section 35 (3 How. Stat. § 1789) that—

“No person shall be removed as a pauper from any city or township to any other city or township of the same or any other county, * * * but every poor person shall be supported in the township, city, or county where he may be, as follows: First, if he has gained a settlement in any township or city in such county, he shall be maintained by such township or city; second, if he has not gained a settlement in the county in which he shall become poor, sick, or infirm, he shall be supported by the superintendents of the poor at the expense of the county; third, if such person be in a county where the distinction between township and county poor is abolished, he shall in like manner be supported at the expense of the county,” etc.

Under the resolution adopted by the board of supervisors October 17, 1896, the township system was adopted by the requisite two-thirds vote. That system being adopted, the superintendents of the poor had no authority to expend the funds of the county in the support of the poor who had gained a settlement in any township or city. Those persons, by section 1786, 1 How. Stat., as well as by the act of 1883, are to be supported at the expense of the townships where such settlements are had. Eckman v. Township of Brady, 81 Mich. 70.

But it is contended by counsel for defendants that the persons named as county charges, and recognized by the board of supervisors and the superintendents of the poor as county charges, were just as much county charges as those actually in the county poor-house; and that the allegation in the bill that such persons have a settlement in one or the other of the townships has no force, because the same may be said of those actually in the county-house. Counsel claims that inasmuch as, under the provisions of section 1762, 1 How. Stat., persons applying for i’elief to the superintendents of the poor or the supervisor may be removed to the poor-house if found to be in indigent circumstances, or, if so sick, lame, of disabled that they cannot conveniently be removed, may be aided at their place of residence, the superintendents of the poor have authority to provide for the persons specified in the bill. It is also contended that under the provisions of sections 1793 and 1794* 1 How. Stat., the decision of the superintendents of the poor in relation to the settlement of paupers is conclusive. We cannot agree with these contentions. The several provisions of the statute must be read together. It is apparent from these statutes that it was the intent of the legislature that, when the distinction between the township and county poor should be kept and maintained, any poor person who had gained a settlement in any township or city should be maintained by such township or city, and not by the county. The last resolution of the board not having been passed by the requisite two-thirds vote, the distinction is kept up in Cass county; and, that being so, the superintendents of the poor had no authority to maintain, from the county funds, persons who had gained settlements in any township or city.

The court below was in error in sustaining the demurrer. That order will be reversed, and the defendants given 15 days to answer the bill. Complainant will recover the costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FRISBEE v. CHICKERING.
    Sale — Fraud—Evidence.
    F. C., an. insolvent, organized the firm of F. C. & Co., with M. and H., who were worth from §50,000 to $75,000, as his co-partners. M. and H. lived in Ohio, and the principal office of the new firm was located in that State. C. continued to reside at G., in Michigan, and conducted business for himself in the name of C. & Co. C. ordered certain merchandise from plaintiffs, a Missouri firm, with whom he had had no prior dealings. The order was signed “ F. C. & Co.,” and was mailed from G. Plaintiffs, after consulting Dun & Co.’s reports, and finding the firm of F. C. & Co. in the G. list, rated at from $50,000 to '$75,000, filled the order. C. disposed of the merchandise, deposited the proceeds to -the credit of C. & Co., and refused to pay the purchase price. Plaintiffs sued in an action of deceit. It appeared that C. had been for years a subscriber to Dun & Co.’s reports, that he knew just how the firm of F. C. & Co. was rated, and understood that the rating would secure credit for the firm at the hands of strangers. Held, that he perpetrated a fraud in obtaining the merchandise, and in appropriating the proceeds, on the pretense that he was doing business for himself under the name signed to the order.

    Error to Kent; Grove, J.
    Submitted October 14, 1897.
    Decided December 7, 1897.
    Case by Orlando C. Frisbee and others against Frank Chickering for deceit. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      More & Wilson, for appellant.

      T. J. O’Brien and James H. Campbell (Herbert L. Hunt, of counsel), for appellees.

       On the question of fraud in obtaining credit by representations to commercial agencies or otherwise, there is a note to Childs v. Merrill, (Vt.) 14 L. R. A. 264.

   Moore, J.

This cause was commenced by capias to recover the value of two car loads of lumber, which plaintiffs claim were fraudulently obtained' from them. The case was tried by the court, without a jury. Written findings of fact and law were filed by the judge, and a judgment entered in favor of the plaintiffs. From that judgment the defendant appeals.

It is conceded that the findings of fact justify the conclusions of law, but it is contended by the defendant that there is no testimony in the case upon which to base a finding that he perpetrated a fraud upon the plaintiffs in obtaining the lumber. Prior to 1890, defendant had been engaged in business at Grand Rapids, in his own name, and had failed. In 1889 and 1890 judgments were obtained against defendant for upwards of $25,000, and in 1895 for upwards of $20,000. At the time of the transaction between the parties to this cause, those judgments were outstanding and unpaid. In 1892 the firm of Frank Chickering & Co. was organized, Its office was at Bucyrus, Ohio, and its principal business was near there. . The members of the firm were the defendant, who' was without means, and Mr. Monnette and Mr. Hull, who were worth from fifty to seventy-five thousand dollars. Mr. Monnette and Mr. Hull lived at Bucyrus, and Mr. Chickering continued to live at Grand Rapids. Mr. Chickering was not obliged to spend all his time with the Bucyrus firm, and he did business for himself at Grand Rapids, in his own name and in the name of Chickering & Co.; and he claims that he did business at Grand Rapids for himself in the name of Frank Chickering & Co.

The plaintiffs were residents of Dexter, Mo., where they were manufacturing hardwood lumber. The latter part of 1895, and early in 1896, the defendant ordered, by correspondence, two car loads of lumber from plaintiffs in the name of Frank Chickering & Co, The parties prior to this had had no dealing with each other. The plaintiffs were subscribers to Dun & Co.’s mercantile reports, and found the firm name of Frank Chickering & Co. rated in the Grand Rapids list as worth fifty to seventy-five thousand dollars. Relying upon this rating, they shipped the lumber in their own name to Grand Rapids, and sent an order to the railroad company to deliver the lumber to the order of Frank Chickering & Co. The defendant sold one car load of this lumber to the Oriel Furniture Company, and one car load to the Berkey & Gay Com.pany, without taking the lumber into his own possession, further than to indorse the order given upon the railroad company over to them. The two furniture companies paid for the lumber by giving short-time paper, which the defendant discounted, and had the proceeds placed to the credit of Chickering & Co., which he testifies was himself. The defendant did not pay for the lumber, and this suit was brought. Mr. Monnette and Mr. Hull testified that they had no knowledge of the transaction, and had not authorized it, and had received no benefit from it.

Upon the trial, the city directory of Grand Rapids for 1895 and 1896 was received in evidence. It contained the following entries:

“Frank Chickering (Frank Chickering & Co.), H. 257 Madison Ave.
“Frank Chickering & Co. (Frank Chickering, J. C. F. Hull, M. J. Monnette), Hardwood Lumber, 26 Tower Block.
“George Chickering, Student, Boards 257 Madison Ave.
“Chickeripg & Co. (Frank Chickering), Lumber, 26 Tower Block.”

The name of Chickering did not appear elsewhere, alone or in any connection.

The ratings of R. G. Dun & Co. at Grand Rapids were received in evidence. They showed:

“Grand Rapids, Kent County, Mich. Frank Chickering & Co., Hardwood .Lumber, D 2.
“Chickering & Co., Lumber, -.”

The rating “ D 2 ” was explained to mean worth fifty to seventy-five thousand dollars. The rating blank was explained to mean no rating. These were the only entries in relation to any business at Grand Rapids with which. Mr. Chickering was connected. No entry was made on these books of this firm in the Bucyrus, Ohio, list. The firm of Frank Chickering & Co. at Grand Rapids did not appear in Bradstreet’s reports, and it was shown by the superintendent of Bradstreet’s at Grand Rapids that, after the firm of Frank Chickering & Co. came into existence, Mr. Chickering saw the superintendent.

“He met me by accident, and called my attention to the fact that we did not rate the firm of Frank Chickering & Co. at Grand Rapids; that is to say, they were not printed in the Grand Rapids list. And he further stated that ‘ we are in business in Grand Rapids, doing business here right along.’”

It was also shown that Mr. Chickering had been for 14 or 15 years a subscriber to Dun & Co.’s reports, and, according to his own testimony, he knew as early as 1894 just how the ratings were in Dun & Co.’s reports. The defendant, in his correspondence with plaintiffs addressed them as follows:

“Some time ago you wrote us you could deliver us inch quartered white oak. * * '* If you can ship us * * * [Signed] F. C. & Co.”

It is the claim of the defendant that he had nothing to do with the rating in Dun & Co.’s reports, and that all the time from his failure until this transaction he was engaged in business in Grand Rapids in the name of Frank Chickering & Co., and that to keep silent was not a fraud, when he was not inquired of as to his financial standing. It does not appear from positive proof that defendant was responsible for the mercantile reports. It does appear, however, from his examination, that a representative óf Dun & Co. inquired of him about the standing of the firm of Frank Chickering & Co., and he referred him to Bucyrus, Ohio, for information. Reference has already been made to his interview with Bradstreet’s superintendent.

Mr. Chickering knew the use which was made of these reports. If it be admitted that he was doing business at Grand Rapids for his sole use, under the name of Frank Chickering & Co., he knew that one of the leading mercantile reports of the country was representing that firm as consisting of Mr. Chickering, Mr. Monnette, and Mr. Hull, and that they were worth a large sum of money.' He also knew that this report, so far as it related to the business of Frank Chickering .& Co., done for his sole benefit, was untrue, and was calculated to mislead, and might result in the consummation of frauds upon the persons who had a right to rely upon these reports, if they acted upon them. He also knew that there was no report in that list of the firm of Frank Chickering & Co., so far as it related to his sole business, and that, when he did business in the name of Frank Chickering & Co., the subscribers to Dun & Co.’s reports would naturally, and would have a right to, suppose he was doing business, not only for himself, but for Mr. Monnette and Mr. Hull, and that credit extended to the firm would be in the belief that it was extended to a responsible firm. To do business under such circumstances in the name of a responsible firm, for his own use, when he was hopelessly insolvent, was a fraud upon those with whom he did business, and to allow such a transaction to stand would not be very creditable to the courts.

It is true, as claimed by counsel, that in this country a man, although insolvent, - may lawfully buy on credit, even if he does not make his financial condition known to the vendor, if, at the time, he intends to pay. Wright v. Brown, 67 N. Y. 1; Zucker v. Karpeles, 88 Mich. 413. But if the purchaser knows he is insolvent, and makes the- purchase with the preconceived purpose not to pay, the purchase is void, even though.there may not have been at the time of the purchase any fraudulent representations. Shipman v. Seymour, 40 Mich. 274; Zucker v. Karpeles, supra. This was not a case of simply remaining silent when one was under no obligation to speak. The defendant knew, as already stated, that the firm of .Frank Chickering & Co., listed at Grand Rapids, was represented by a great mercantile agency as responsible and entitled to credit, and that this representation would naturally be relied upon when an order was sent in the name of that firm. Under such circumstances, it was his duty to speak when he came to deal with a person who was a stranger to him, and who, by the usual and known methods among business men, would be likely to consult the representation as contained in the mercantile reports. Lt is said in Cooley on Torts (475-477):

“Fraud is never presumed, and the party alleging and' relying upon it must prove it. This, however, is one of those rules of law which is to be applied with caution and circumspection. * * * Fraud is therefore as properly made out by marshaling the circumstances surrounding the transaction, and deducing therefrom the fraudulent purpose, when it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive. * * * In general, mere silence — a mere failure to apprise the party with whom one is dealing of facts important for him to know, for the protection of his own interest in the particular transaction — is no fraud. * * * Therefore, where, the sources of information are equally open to both parties to any dealings, and the one obtains an advantage of the other, without resort to any trick or artifice of concealment calculated to throw the other off his guard, or to any false presentation of facts, the advantage he gains is deemed legitimate, and the losing party must bear such loss as has resulted from his own want of vigilance or prudence. * * * Therefore, if one who is insolvent buys goods of another without disclosing his circumstances to his vendor, who is ignorant of them, but makes no inquiries, and is not deceived by misrepresentation or artifice, there is in law no fraud, although the vendor, when he sold, fully believed the vendee to be responsible and entitled to credit. In order to make out deception, it is not essential that false assertions should be made in words. A nod, a wink, a shake of the head, or a smile artfully contrived to induce the other party to believe in a nonexistent fact which might influence the negotiations, may have all the effect of false assertions, and be equally deceptive and fraudulent. So, one may accomplish a fraud by encouraging and taking advantage of a delusion known to exist in the mind of the other, though nothing is directly asserted- which is calculated to keep it up.”

"When the defendant gave this order for himself in the name of Frank Chickering & Co., he knew just how that company was rated upon the books of the mercantile agency. He knew that rating would be consulted as a rule by the average business man. He also knew that, with such a rating, a firm who were selling upon credit would not be likely to make further inquiries as to financial standing, and would be likely to fill an order for goods at once if the price and terms of payment were satisfactory. It is impossible to read this record without coming to the conclusion that the lumber was fraudulently obtained of the plaintiffs by the defendant. The purchase of this lumber, and the appropriation of the proceeds, under the circumstances disclosed by the record, cannot be justified either in morals or law.

Judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    SMITH v. JACKMAN.
    1. Wills — Construction—Intent.
    A will contained the following provisions: “I give and bequeath to my beloved wife, * * * in money, §3,000, to be paid in accordance with the following provisions, to wit: I will and bequeath all the residue and remainder of my personal property, and all of my real estate, to my only child, C., for her sole use and benefit during her lite, and at her death to her children: Provided, that the aforesaid payment of §3,000 be made to my wife, or the annual interest at the rate of 7 per cent, annually, as she, my wife, may elect; and, at any time when my wife may want any portion or the whole of said amount of §3,000, it shall be paid to her on three months’ notice, either verbal or written, or she may sell enough out of said real estate to pay said amount on the failure of my daughter to pay her after the aforesaid notice.” Held, that it was the testator’s intention to place the sum of §3,000 at the absolute disposal of his widow, without reference to her necessities.
    2. Same — Waiver.
    The widow, who was made executrix of the will, turned over all of the property to her daughter, who, for the period of three years, paid to her mother interest upon the sum of §3,000. Held, that, under the terms of the will, the reception of interest did not operate as a waiver of the right to the principal, or any part thereof, upon demand.
    3. Same — Legacy Charged on Realty.
    The effect of the last clause of the will was to give to the widow, by necessary implication, a lien upon the realty to-secure the payment of her bequest.
    4. Same — Power Coupled with Interest — Survival to Executor.
    The power- of sale, therefore, was not a naked power, but was one which related to the land, and as such survived to the legatee’s executor.
    5. Same — Enforcement of Lien.
    Chancery was the proper forum in which to enforce the lien.
    Appeal from Monroe; Kinne, J.
    Submitted October 14, 1897.
    Decided December 7, 1897.

      Bill by Jasper N. Smith, executor of the last will and testament of Jane Powlesland, deceased, against Caroline G.’ Jackman and others, to enforce a lien upon real estate for the payment of a legacy. From a decree for complainant, defendant Jackman appeals.
    Affirmed.
    Complainant is the executor of the last will and testament of Jane Powlesland, who was the widow of William Powlesland. Mr. Powlesland died, testate, July 17,1891, leaving a widow and one child, the defendant Caroline Jackman. He left real estate valued at' $10,000, and personal property valued at $6,000. His will was probated September 11,1891. It contained the following provisions:

      " First. I give and bequeath to my beloved wife, * * * in money, $3,000, to be paid in accordance with the following provisions, to wit:

      “Second. I will and bequeath all the residue and remainder of my personal property, and all of my real estate [describing it], to my only child, Caroline Georgiana Jackman, for her sole use and benefit during her life, and at her death to her children [naming them] : Provided, that the aforesaid payment of $3,000 be made to my wife, or the annual interest at the rate of 7 per cent, annually, as she, my wife, may elect; and, at any time when my wife may want any portion or the whole of said amount of $3,000, it shall be paid to her on three months’ notice, either verbal or written, or she may sell enough out of said real estate to pay said amount on the failure of my daughter to pay her after the aforesaid notice.”
    His widow was made executrix, rendered her final account, and was discharged May 3,1892. She turned over to her daughter all the real and personal property. She received from Mrs. Jackman interest on $3,000 until 1895. In March of that year, she demanded $1,000. On September 27, 1895, she, through her attorney, made a written demand for the payment of the $3,000. About the 1st of September, Mrs. Jackman paid $100. Mrs. Powlesland died November 23, 1895. Mrs. Jackman had paid none of the principal except the $100. Mrs. Powlesland made several specific bequests, and devised the residue, which was the greater part of her property, to two of her grandchildren. Mrs. Jackman contested the will, but it was duly probated. The purpose of this bill is to secure the payment of $2,900, by enforcing a lien upon the real estate, which, it is claimed, was given by the terms of Mr. Powlesland’s will. The learned circuit judge made the following finding:
    “I find that it was the intention of William Powlesland to place this sum of $3,000 at the absolute disposition of his widow, thus enabling her to keep the same at interest at the rate of 7 per cent, per annum, if she wished, secured by the real estate named, or at any time, on her own volition, to call in and secure payment of any part or the entire sum of $3,000. Prom the evidence, I find that, some time previous to her death, she exercised her right and privilege, and did call for and demand the entire sum remaining unpaid, which is conceded to be $2,900. I find that the real estate remained impressed with the burden of this money, and must respond to its payment.”
    Decree was entered in accordance with this finding.

      E. R. Gilday and Willis Baldwin, for complainant.

      Landon & Lockwood, for appellant.
   Grant, J.

(after stating the facts). What was the intention of the testator ? This is the first and paramount question in the construction of wills. If that intention can be derived from the four corners of the instrument, courts will enforce it, unless there is some insurmountable legal obstacle to prevent. We reach the same conclusion as did the circuit judge. It was the evident intention of Mr. Powlesland to provide a maintenance for his wife, and to place the fund absolutely at her disposal. Her wish, not her need, was the sole condition on which khe was entitled to receive the entire sum. She was entitled to a part or the whole as and when she chose. The moment that she demanded a part or the entire amount it was the legal duty of her daughter to pay it. Such provisions are not uncommon, and there is' no legal obstacle to their enforcement. The words ‘ ‘ give and bequeath ” import an absolute gift, to take effect upon the decease of the testator. Eldridge v. Eldridge, 9 Cush. 516. The second ■clause makes clear Mr. Powlesland’s intention, for he expressly reserves this bequest to his wife from the amount bequeathed to his daughter, and wills and bequeaths to the latter only the “residue and remainder.” “When the gift is absolute, and time of payment only is postponed, the gift vests at once.” Bishop v. McClelland's Ex'rs, 1 L. R. A. 551 (44 N. J. Eq. 450), note, and authorities there cited. See, also, McCarty v. Fish, 87 Mich. 48; Rood v. Hovey, 50 Mich. 395. Payment was postponed to such time as the legatee saw fit to demand it. There is no legal obstacle to such a provision.

Three objections are urged against the relief sought:

1. It is urged that the power to sell is a naked one, not coupled with an interest, was personal to her, and was revoked by her death. The intention of the testator is very clear. His will contemplated that his executrix, after the settlement of the estate, should turn the property, real and personal, over to his daughter. He sought to secure the payment of the bequest to his wife. He evidently understood the difficulty of securing her by a lien upon the personal property. He did not desire to leave her with the mere personal obligation of his daughter to pay. He therefore sought to make the amount a charge or lien upon the land devised. The power to enforce this lien was devised in language just as clear as that in which the bequest was made. It was not necessary to declare a lien eo nomine. It exists by necessary implication. It follows that the power was coupled with an interest. “Every power given in a will is considered, in a court of chancery, as a trust for the benefit of a person for whose use the power is made, and as a ■devise or bequest to that person.” 2 Washb. Real Prop. *323, •§ 27. ' “Where a power of attorney is part of a security for money, it is not revocable.” Walsh v. Whitcomb, 2 Esp. 565. The rule is thus stated in Bergen v. Bennett, 1 Caines, Cas. 1 (2 Am. Dec. 281):

“A power simply collateral and without interest, or a naked power, is where to a mere stranger authority is given of disposing of an interest in which he had not before, nor hath by the instrument creating the power, any estate whatsoever. But when power is given to a person who derives, under the instrument creating the power, or otherwise, a present or future interest in the land, it is then a power relating to the land.” ■

As already stated, it became the legal duty of Mrs. Jackman to pay on demand. She could not avoid her legal obligation or destroy the lien by neglecting to pay during the life of her mother. The power was not revoked by her death, but survived to her executor.

%. It is next urged that Mrs. Powlesland elected to take the interest, and therefore was not entitled to the principal. The reply to this is that, under the terms of the will, she might take the interest as long as she chose, and was empowered at any time to demand and receive the entire bequest. The reception of interest did not operate as a waiver of her right to the principal.

Counsel contend that the legacy did not unconditionally vest, but only after she had exercised her choice. If this be' accepted as the correct construction, it does not help defendant, for the legatee had exercised her choice by demanding the entire legacy, which became vested when the choice was exercised. Godshalk v. Akey, 109 Mich. 350, is cited, but the will in that case gave no choice to the legatee to take any part of the principal unless “the income was not sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need more than the interest,” etc. We held that the [bequest was of a life estate only, coupled with the privilege of using the principal if necessary. What the rights of the parties would be if Mrs. Powlesland had contented herself with the interest, making no demand for the principal, we need not discuss.

3. It follows from what we have already said that chancery is the proper forum in which to enforce the lien by which the payment was secured.

Decree affirmed, with costs.

The other Justices concurred.


text:
    BURKE v. DOUGLASS.
    1. Adverse Possession — Vendee Under Land Contract.
    Possession by a vendee under a land contract is not adverse until he has either complied with its terms, or has in some . way given notice to his vendor or the latter’s assignees that he claims to hold in hostility thereto.
    2. Same — Re-entry—Trespass.
    One who has succeeded to the rights of the vendor in a land contract, which provided for re-entry on condition broken, is not guilty of trespass as to the vendee in peaceably taking possession of the premises when unoccupied, where the vendee, who is in default, does not claim under the contract, but, without ever having given notice of such an intention, sets up an adverse holding. •
    Error to Ionia; Davis, J.
    Submitted November 3, 1897.
    Decided December 7, 1897.
    Trespass quare clausum fregit by William Burke against Dayton Douglass. From a judgment, for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    This suit was commenced in justice’s court. Defendant pleaded title, and the case was thereupon certified to the circuit for trial. Defendant owns the record title. Plaintiff claims title by adverse possession.
    May 17, 1879, Cora Soule (the then owner) and plaintiff entered into an executory land contract, by which he agreed to pay $32.50 for the lot, — $2.50 in cash, and the balance in monthly installments of $5. He took possession under the contract, leveled the lot, and erected a small barn upon it. Mrs. Soule died, and on October 30, 1880, one Rumsey purchased the lot at administrator’s sale,' and thus succeeded to all the rights of Mrs. Soule. Rumsey deeded to defendant, who, finding the lot unoccupied, went upon it, tore down the barn, «and claimed possession.

      Chaddock & Scully, for appellant.

      A. A. Ellis, for appellee.
   Grant, J.

(after stating the facts). 1. The court directed a verdict for the defendant. Whatever rights plaintiff, had were obtained solely from his contract. He entered under it, continued in possession under it, and never notified Mrs. Soule or her grantees that he claimed to hold adversely to it. His contract was not recorded. When Rumsey purchased, he had no knowledge of plaintiff’s rights. He asked plaintiff what they were, to which plaintiff replied that the lot was his. Rumsey then brought suit to eject him, whereupon plaintiff produced his contract with Mrs. Soule as the basis of his rights. He produced it upon the trial in this case, tendering it in evidence “for the purpose of showing how he went into possession, and not for the purpose of claiming any rights under it.” Plaintiff’s counsel seek to bring the case within Cook v. Hopkins, 68 Mich. 514; Cook v. Rounds, 60 Mich. 310. Their claim is that the right of re-entry for nonpayment arose in August, 1879, and that from that time on plaintiff’s possession was hostile and adverse, though nothing was said or done by him to indicate any denial of his vendor’s rights or title. Cook v. Hopkins was submitted to the jury upon the theory that “until Cook received notice or became informed that they repudiated his title, or held against it, their holding was subordinate to his, and the statute did not begin to run.” If, however, that case goes to the extent of holding that, upon the failure on the part of a vendee to comply with his land contract, the right of forfeiture and re-entry arose, and the statute of limitations then began to run, he has not brought himself within that decision. His own proof is conclusive that the right of forfeiture and re-entry was waived by payment upon the purchase price, and its acceptance by the vendor, after the right of re-entry accrued. After Rumsey’s purchase, he produced the contract, and relied upon it, and, according to Rumsey’s testimony, he permitted plaintiff to keep possession by paying the taxes, Rumsey having previously paid them. Possession by a vendee under a land contract is not adverse until he has either complied with its terms, or has in some way given notice to his vendor or his assignees that he claims to hold in hostility thereto. In re Department of Public Parks, 73 N. Y. 566; Heermans v. Schmaltz, 7 Fed. 577; Furlong v. Garrett, 44 Wis. 112; Brown v. King, 5 Metc. (Mass.) 173; Miller v. Larson, 17 Wis. 624; Adams v. Fullam, 43 Vt. 592; 1 Am. & Eng. Enc. Law (2d Ed.), 799. The court was right in holding that plaintiff had not established a title by adverse possession.

2. Plaintiff had not performed his contract, and claims no rights under it as vendee, but claims to hold adversely. Defendant had the legal title, and the right to re-entry for condition broken. The premises were unoccupied, and he took peaceable possession. The law justified him in so doing. If a party “may reclaim his own without committing a breach of the peace,” he is not a trespasser. Vial v. Hofen, 106 Mich. 160.

Judgment affirmed.

The other Justices concurred.


text:
    PEOPLE v. BAKER
    1. Ordinances — Hawkers and Peddlers — License Fee — Reasonableness.
    A city ordinance requiring hawkers and peddlers to pay a weekly license fee of five dollars is not unreasonable.
    2. Same — Peddlers—Who Are.
    One who goes from house to house, selling his wares, is a “ peddler,” within the meaning of such ordinance, although he does not cry or offer his goods for sale upon the street.
    3. Same — Defenses to Prosecution — Evidence.
    Evidence that police officers and city officials have been lax and discriminating in their enforcement of a municipal ordinance is. inadmissible upon the trial of one charged with a violation of such ordinance.

      Error to Ionia; Davis, J.
    Submitted November 5, 1897.
    Decided December 7, 1897.
    Gerry J. Baker was convicted of peddling without a license, contrary to the provisions of a city ordinance, and sentenced to pay a fine of $10 and costs of prosecution, and, in default, to be confined in the county jail until such fine and costs should be paid, not exceeding 15 days.
    Judgment affirmed.
    The charter of the city of Ionia empowers its common council to license and regulate hawkers, peddlers, etc. It enacted an ordinance that such persons should pay a weekly license of five dollars. Respondent was tried before the court, without a jury, and convicted of a violation of this ordinance.

      Maher & Salsbury, for appellant.

      John Nichol, City Attorney, for the people.
   Grant, J.

(after stating the facts). 1. The ordinance is attacked as unreasonable, and therefore void. Counsel cite and rely upon People v. Armstrong, 73 Mich. 288 (16 Am. St. Rep. 578); Chaddock v. Day, 75 Mich. 527 (13 Am. St. Rep. 468); Brooks v. Mangan, 86 Mich. 576 (24 Am. St. Rep. 137); City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32. In People v. Armstrong the ordinance was one of express prohibition, not of license or regulation. In Chaddock v. Day it was held that the ordinance was not intended as a regulation of hawkers and peddlers, but was passed in the interests of shop dealers in fresh meat. A general ordinance had been passed in regard to hawkers and peddlers. In Brooks v. Mangan the fee was, for foot peddlers, $10 for the first day, and $5 for each subsequent day. In City of Saginaw v. Saginaw Circuit Judge the ordinance was held void because it discriminated between residents and nonresidents. ^ Obviously, these cases do not control this. The validity of the ordinance is sustained by the following decisions: Kitson v. Mayor, etc., of Ann Arbor, 26 Mich. 325; People v. Russell, 49 Mich. 617 (43 Am. Rep. 478); City of Grand Rapids v. Braudy, 105 Mich. 670; City of Grand Rapids v. Norman, 110 Mich. 544; City of Duluth v. Krupp, 46 Minn. 435; In re White, 43 Minn. 250. Other authorities are oited in the above cases.

2. Respondent sought to show that the police officers Rad failed to enforce this ordinance in some cases; that one company had been permitted to work several men under one license; that, for less than the amount fixed by the ordinance, the city officials had granted licenses; and that the mayor had made a similar proposition to the company for which respondent was peddling. This testimony was properly excluded. It is certainly a novel proposition that the validity of laws and ordinances is to be affected by what police officers and city officials do or do not do in regard to their enforcement.

3. Respondent went from house to house, selling his wares. This constituted him a peddler. It was not necessary that he should cry or offer his goods for sale upon the street.

Judgment affirmed.

The other Justices concurred.


text:
    SMITH v. BOARD OF SUPERVISORS OF LIVINGSTON COUNTY.
    Drain Contracts — Notice op Letting — Sections.
    A drain commissioner who advertises that the job of cleaning out a drain will be “let by sections” has no right to insist upon letting it as an entirety, where no reason appears for not following the manner of letting announced in the notice.

      Mandamus by Timothy Smith, drain commissioner of Livingston county, to compel the board of supervisors of said county to order the spreading of a drain tax.
    Submitted November 5, 1897.
    Writ denied December 7, 1897.

      Claude A. Brayton, for relator.

      Louis E. Howlett, for respondent.
   Moore, J.

This is a proceeding to compel the respondent to reconvene, and order spread upon the assessment rolls of three townships a drain tax amounting to over $13,000. The return of the respondent shows that the proceeding was one for the cleaning out of a 'drain already established, 17 miles long, and that, though the contract has been let, no work has been done under it. The drain commissioner, in his notice of the letting, advertised that “said job will be let by sections; the section at the outlet of said drain will be let first, and the remaining sections in their order upstream, in accordance with the diagram.” The return of respondent shows that, at the time appointed for the letting 'of the contract, parties who were responsible were present, ready to bid for any sections that might be offered, and that the drain commissioner refused to receive bids for the construction of the drain in sections, and insisted upon letting it as an entirety. The commissioner claims that he offered to let the job in sections, but that there were no bidders, and that it was better for all the parties to let the job as an entirety, as it cannot be done in any manner except by a steam dredge. The return denies this, and claims, in addition to what has been stated, that the job can be done much more satisfactorily and much cheaper with scrapers and shovels than with a steam dredge, and that when the drain was originally dug no steam dredge was used. The return also alleges fraud in the letting of the contract. It also alleges that the petition only asks for the cleaning out of the drain, while the commissioner has undertaken to deepen, widen, and in some places'change the route of, the drain. The claims of the respective parties are supported by affidavits.

For the purpose of this proceeding, the return of the respondent must be taken as true. The relator relies upon Smith v. Carlow, 114 Mich. 67, and Brady v. Hayward, Id. 326, for his authority to let the job as an entirety. A comparison of the cases,-however, will show they were not at all similar. In the last-named case the job was let in sections, and in both cases the letting followed the notice of the letting, while in this case the notice stated the contract would be let in sections, while, according to the return, the commissioner refused to let the contract in sections, though there were persons ready to take it in that manner. In Smith v. Carlow it was made to appear that the only practicable way, and the cheapest way, was to let the job as an entirety. Here, according to the return, it was not only practicable to let the job in sections, but it was the most economical way to have it done. In the case of Smith v. Carlow the drain was completed, and an expense of $30,000 incurred, and the court held that it would be unjust to allow the taxpayers to take advantage of such an objection after the work had been completed. Here the work has not yet been entered upon. While we have held the statute to be directory, its provisions cannot be wholly ignored; and, when the letting has been advertised to be made in sections, there should at least be an offer to let it in sections before it is let as an entirety, and especially if it is made to appear that there is no reason for not following the manner of letling as announced in the notice of letting.

Under the record as made here, we deem it our duty to deny the writ.

.The other Justices concurred.


text:
    HINE v. BAY CITIES CONSOLIDATED RAILWAY CO.
    1. Street Railways — Action for Injuries —Motive Power — Irrelevant Issues.
    Whether a street-railway company was authorized, by the terms of its franchise, to operate its cars by electricity, cannot be raised in an action against the company for injuries sustained by being struck by an electric car.
    2. Same — Contributory Negligence — Instructions.
    An instruction, in an action for injuries to a child struct^ by an electric car, to the effect that a mature, adult person, under the same circumstances, would be guilty of contributory negligence as a matter of law, is not erroneous, where it is undisputed that, shortly before mounting her bicycle to cross the track, she saw the car which afterwards struck her, standing still three blocks away; that she did not look for it again, her attention being directed to a car coming from the opposite direction on an intervening track; and that, after . waiting for the latter car to pass, she mounted her bicycle, and attempted to cross, without paying any attention to the car which struck her.
    3. Trial — Conduct of Circuit Judge — Treatment of Counsel.
    The arbitrary conduct of the circuit judge in refusing to hear counsel, who, in an entirely courteous manner, were endeavoring to explain their position with reference to certain requests to charge, was criticised, but as the appellee, rather than the appellant, was the prejudiced party, the judgment was not disturbed.

      Error to Bay; Maxwell, J.
    Submitted November 3, 1897.
    Decided December 7, 1897.
    Case by Gustaves Hine against tbe Bay Cities Consolidated Railway Company to recover for moneys expended in effecting the cure of plaintiff’s daughter, alleged to have been injured through defendant’s negligence. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      George P. Cobb, for appellant.

      T. A. E. & J. C. Weadock, for appellee.
   Moore, J.

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

“Plaintiff resides in Bay City, at the southwest corner of Washington and Eighth streets. Washington street runs north and south, and Eighth street crosses it. Center street is north.of, and parallel to, Eighth street, and Seventh and Sixth intervene. Twelfth street is south of, and parallel to, Eighth, and Ninth, Tenth, and Eleventh streets intervene. On July 18, 1893, the defendant corporation had two parallel street-railway tracks on Washington street, about 4 feet apart, — one each side of the center line of the street, — on which, for a few months, it had been running electric street cars. Before electric cars were put on, horse cars had been running on the same street for several years. Plaintiff is the father of a girl, Dora Hine, who in July, 1893, was about 9 years old. She had always resided at the same place. On July 18, 1893, she had been out with another little girl, riding a bicycle; and returning, about noon, she came, down Eighth street from the east, and, on arriving at the corner of Washington street, stopped for a few minutes, talking with the other girl. Before mounting her wheel again, she looked up and down Washington street, and saw a car standing still at the corner of Center street, three blocks away. She did not look for it again, but seems to have had her attention attracted to a car coming down from the opposite direction, on the easternmost track. She waited a little for this car to pass, and then mounted her wheel to go home across the tracks. She did not see any other car at that time, nor hear the bell of any other. She seems to have had her attention fixed on this (north-bound) car, and to have been very careful to keep out of its way, and, as soon as it had vpassed, started to cross the track, close behind it, on her wheel; and when she had crossed that track and the space between the two tracks, and had just reached the other track, she was struck by a car coming on the other track, from the north, and seriously injured,— so seriously that her recovery was doubtful for a time,— and after recovery there was a permanent disfigurement of the face. She does not know whether the car first struck her or her bicycle. Until she was struck, she had no knowledge of the presence of the car that struck her. For her medical, surgical, and other care and attendance, and medical and surgical appliances, made necessary by this injury, the plaintiff expended $241.40, and for the recovery of that amount he brought this suit.”

In addition to what is contained in this statement, it should be said that Dora Hine could ride a wheel well; and she testified that, before she got on her wheel, she saw the car standing at Center street; that she crossed behind the car coming from the south, and did not see the car which was at Center street when she started upon her wheel; that she did not look to see if it was coming; that she had forgotten all about it; that if she had thought of it, and looked that way, she would have seen it.

The judge charged the jury as follows:

" Gentlemen of the Jury: If this suit was brought for the injury of a mature, adult person, I should take it away from you, and would not submit it for your consideration at all, because the Supreme Court has made certain decisions, one of which is that a man, before he enters upon the track to cross it, must look both ways to see that there is no danger; and a great many others substantially to the same effect. This girl, on her examination here, testifies that she looked to the north as she approached the track, before she started or got upon her wheel, and saw the car standing at the junction of Center and Washington streets. Now, the plaintiff cannot recover in this case, except upon one theory, and that I shall submit to you. If you find that this girl, who was then 9 years of age— You saw her in the court-room, you heard her answer the questions put to her, and you can judge as well as you can as to the condition of her mind then from what she says now. If this girl, who was then an infant about 9 years of age, as is testified by herself and admitted by counsel, was not of that mature mental development to know and appreciate the various ■dangers by this class of rapid transit that there is in this city, you may consider the matter further. If you think that she was bright enough, and well enough informed upon that subject, so that she knew substantially what ■everybody or older people know about it, you will find a verdict for the defendant. If she was not so maturely developed that she knew what mature people do understand in regard to such dangers, then you may consider the matter further, because, while the Supreme Court has ■decided just as I told you about the duty of a full-grown man or an adult person as to observation and care in crossing these dangerous tracks, it has decided right the Teverse in a case where a boy 8 years old was the plaintiff, and said that the question of the maturity of his mind was a question for the jury to determine. They have drawn no exact line as to when the mind generally or always is supposed to mature.
“At the common law, a witness could not be sworn in a court who was under 10 years of age; but that rule was long ago abolished. You may consider that question first of all, because, if you find her mind reasonably mature, there is nothing further to inquire about. But, on the contrary, if you find that her mind is, like the mind of a great many children, not fully matured, not competent to judge the dangers and of the duties while on the street in dangerous places; if you find that she was 'not sufficiently matured to be responsible like a grown person, — then the question comes up of carelessness. There can be nobody liable unless there is carelessness or negligence. Now, you have heard the evidence in the case. You have heard the testimony of the witnesses. Your recollection of what they testified to, I presume, is just as good as mine, and it is needless for me to repeat their testimony to you; but you may consider all the testimony, and the evidence of every witness. You may consider their relations, the interest they take, having been concerned in this accident. You may consider any interest you think exists because of their employment by the defendant. But treat the testimony of everybody fairly, and weigh it honestly; and if you find that the defendant or its employés were guilty of negligence or carelessness, and so partly the cause of this accident, you may find a. verdict for the plaintiff. The effect of the tender age of this child simply dispenses with thó rule of what we call ‘contributory negligence,’ that exists in the case of a mature person. If a mature person contributes by any carelessness or negligence on his part, whereby an accident occurs, then he cannot recover; but where the plaintiff, as I said, is an immature person, that condition of affairs dispenses with the effect of contributory negligence, or contributing to the accident by other negligence.
“Mr. Lyon: Is there any question on the burden of proof ?
The Court: No; not anything to charge on.
“Mr. Weadoek: I ask the court to instruct the jury on the question of the burden of proof, the weight of evidence, and also as to what would amount to negligence on the part of the defendant in this case.
“The Court: I don’t think I will add anything to the charge. I have looked over the requests, and have refused them all.
“Mr. Lyon: There is no objection on the question of burden of proof, except that we desire the jury should be instructed that any evidence in the case, whether given by the plaintiff or defendant—
“The Court: The jury understand that. One thing further: There is no contest, as I understand, as to the amount due in case there is any recovery ?
“Mr. Weadoek: No; I have not paid any attention to that.
The Court: In case there is any recovery, if you find for the plaintiff, you will find a verdict of $294.47. If you find for defendant, it is simply no cause of action.”

The jury returned a verdict in favor of defendant. Plaintiff appeals.

Some testimony was introduced in relation to the right of the defendant company to use electricity as a motive power in operating its car. The testimony was stricken out. It is urged upon the part of the plaintiff that the company had no right to use electricity, and therefore it is liable to the plaintiff in this action. We do not think this question can he raised in this proceeding. The fact was made to appear that the company did operate its cars by electricity, and for the purpose of this case the trial must proceed as though it had the right to do so. If the street-railway company is operating its road contrary to the terms of its franchise, the question could undoubtedly be raised by the city in a proper proceeding, but we do not think the question is involved in this issue.

Complaint is made of that portion of the charge where the court said that, if the suit was brought for the injury of an adult person, he should take it away from the jury. We do not think this statement was objectionable. It appeared from the testimony of the girl herself that she knew, before she got on her wheel to cross the track, that the car coming from the north was standing at Center street; that she passed behind the car which came from the south, without looking to see what had become of the car which was coming south; and that she could have seen it if she had looked. If an adult had done what this girl testified she did, he would have been guilty of such negligence that it would have been the duty of the court to take the case from the jury, and no injustice was done in so stating to the jury.

Complaint is also made-of the sentence, “You may consider that question first of all, because, if you find her. mind reasonably mature, there is nothing further to inquire about.” Counsel says:

“What is meant by ‘reasonably mature?’ Does it call for such maturity as may be reasonably expected at that age, or such maturity as a person of full age might reasonably be expected to exhibit ? The degree of maturity that would' make it proper at that age to charge her with the responsibility of an adult would be unreasonable, unnatural, out of the ordinary, course of nature, and there is no evidence of its existence.”

We think, if this sentence is taken in connection with the rest of the charge, it is not misleading; and, taking the entire charge upon this branch of the case, it was not unjust to the plaintiff.

Counsel for plaintiff says, “We think the court should have allowed Mr. Lyon to state his request, as he attempted to do at about the close of the charge, for a more full instruction.” . We do not approve of a trial judge being quite so arbitrary in the trial of causes as the record shows the trial judge was in this case. The lawyers are officers of the court. They are aids in the administration of justice, and when they are entirely courteous, as the record shows they were in this case, they ought to be heard, so that their position may be understood. But a reference to the record shows that Mr. Weadock had asked the court to instruct the jury in relation to features of the case about which he was entitled to an instruction, that the judge had refused to grant his request, and that Mr. Lyon was proceeding to say that he had no objection to granting Mr. Weadock’s request, when he was interrupted by the court. The prejudice done to the case by this action of the circuit judge, if the case was prejudiced, was one done to the defendant, and not to the plaintiff We do not think there is reversible error.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MORELAND v. STRONG.
    1. Tenancy in Common — Sale op Co-tenant’s Interest — Rights op Purchaser.
    A purchaser at foreclosure sale of the undivided interest of a tenant in common is at once entitled to enter and enjoy the premises, and the co-tenant cannot thereafter, directly or indirectly, lawfully monopolize the use of the land.
    2. Same — Lease—Validity.
    A tenant in common cannot make a valid lease of the entire premises.
    3. Same — Accounting Between Tenants — Growing Crops.
    The rule that a tenant in common, in possession by consent of his co-tenant, cannot be required to account to the latter for a share of the profits arising from his use of the premises, cannot be carried so far as to permit the tenant in possession to have the exclusive use of the premises, after entry or demand of possession, until growing crops are matured.
    4. Same — Partition—Equity.
    As to such crops, the co-tenant may be permitted to share the proceeds, upon an accounting in equity on a bill filed for partition, if justice requires it; but in such case, for the protection of the cropper, the cost of production should first be deducted.
    5. Same — Mortgages—Notice—Subsequent Mortgagee.
    A mortgage of the crops raised on land owned in common, given by the tenant in possession subsequent to the commencement of foreclosure proceedings on the interest of his co-tenant, and after Ms pendens filed, in no way affects the rights of the complainant; and the purchaser at the foreclosure sale is entitled to his undivided interest in the crops, free from the lien of the mortgage.
    6. Same — Stating op Account — Receiver’s Expenses.
    A cropper under a contract with a co-tenant who was in sole possession of the premises is chargeable with notice of the other co-tenant’s interest in the use of the premises, and can-hot complain if his interest under the contract is subjected to a proportionate share of the expenses incurred by the receiver appointed in a partition suit in harvesting and marketing the crop.

      Appeal from Hillsdale; Lane, J.
    Submitted November 4, 1897.

    Decided December 7, 1897.
    Bill by Robert S. Moreland and others against Robert D. Strong and Elijah Lindsay ( Chauncey F. Cook, intervening petitioner) for the partition of certain real estate, and a division of the crops. From a decree for complainants, defendants and intervener appeal.
    Modified as to defendants, and affirmed as to intervener.

      Watts, Bean & Smith, for complainants.

      E. I. Frankhauser and F. H. Stone, for defendants.

      O. J. Cornell, for intervener.
   Hooker, J.

The defendant Robert D. Strong and his brother, Homer N. Strong, were the owners in common of a farm of 360 acres, which came to them by purchase, subject to a mortgage to M. B.' Koon. On July 17, 1889, Homer gave a mortgage to the complainants, for $1,500, on his undivided half of the premises; and on July 2, 1890, he deeded his interest to his sisters. From the time that Homer went to Texas, soon after the purchase, Robert D. Strong occupied the premises alone; and in 1890 he made an oral contract with defendant Lindsay to work the place on shares for five years, under which the crops in dispute were raised. Complainants began foreclosure proceedings in chancery upon their mortgage, lis pendens being filed March 13, 1893. The defendants were not made parties. The land was sold under the decree, and complainants received a commissioner’s deed on June 29, 1894, upon a sale made June 1, 1894.

On the 15th day of August, 1894, the complainants filed the bill in this cause, claiming to own an undivided half of said premises, and that Robert D. Strong owned the other undivided half. It alleges that defendant Lindsay “has an interest in said premises as tenant for years, for a five years’ lease of said premises, which will expire April 1, 1896, by virtue of which he has one-third of all the crops and proceeds of said land; said Robert L. Strong furnishing everything enabling said Lindsay to operate and carry on said farm.” It alleges, further, that during the year 1894 there was raised upon the farm, by said Lindsay, a large quantity of produce, in which the complainants have a half interest, subject to the share and rights of the tenant, Lindsay, which the defendants denied. The bill prayed for a partition of the premises, and a division of the crops. A temporary injunction was issued, and a receiver appointed to take charge of the crops, and convert them into cash; and the defendants were required to deliver them over to the receiver, and also to resign to him the care and management of the premises. The case was heard on pleadings and proofs, and on January 14, 1895, the court made a decree, of which the following is the substance:

■ “Loth find that complainants are seised in fee simple of an undivided one-half interest, as tenants in common with Robert L. Strong, who is unmarried, of the premises described in said bill, and that said Elijah Lindsay has an interest in said premises as tenant for years under a five years’ lease on shares, which will expire April 1, 1896, which is not in writing; that the complainants acquired their said title on June 1, 1894, by virtue of a chancery sale under a decree of said court on foreclosure of mortgage made July 17, 1889, by Homer N. Strong and wife to complainants; that on the said 1st day of June, 1894, complainants asserted their rights to said premises, and to the crops thereon, and made their said claim known to said Robert L. Strong; also demanded a division of said land and crops by letter' of July 9, 1894, which letter was answered by said defendant Strong, July 17, 1894; that said defendant declined to recognize the rights of complainants in said premises, and the crops grown thereon; that the sale under said foreclosure proceedings was duly confirmed; that the allegations in the said bill contained are true; that a partition and division ought to be made as therein prayed.
“It.is therefore ordered, adjudged, and decreed by the court that the complainants, Robert S. Moreland, James H. Moreland, and Eugene W. Crane, John Berdan, Harry T. Sinclair, and Edwin Jackson, and the defendant Robert D. Strong, are each entitled to one-half of said premises, to wit [here follows the description of premises same as in bill of complaint]; and that division and partition of said premises be made; and that John M. Moreland and Thomas J. Lowery and Charles H. Roy, neither of whom appears to be connected with any of the parties by consanguinity or affinity, and who are entirely disinterested, be, and they are hereby, appointed commissioners to make partition of said premises; that each of said commissioners take and subscribe an oath or affirmation, as required by law, and honestly and impartially execute the trust reposed in them, make partition of the said premises, according to the rights and interests of the parties, and a true report make to the court; that the said commissioners shall go upon the premises and make partition thereof, allotting the several shares of the respective parties, quantity and quality relatively considered, according tó their respective rights and interests as hereby adjudged, designating their respective shares by posts, stones, and other permanent monuments, and that, if necessary, they employ a surveyor with necessary assistance to aid therein; and that they report their respective actings and doings, under their hands and seals, to the court, as soon as practicable; but the question as to whom the crops belong, and in what proportion, is expressly reserved, and not yet decreed by said court.
“Victor H. Lane,
“Circuit Judge.”

At this juncture, one Cook asued leave to file a petition in said cause, in which he alleged that on April 28, 1894, Robert D. Strong gave to him a mortgage upon his two-thirds interest in the wheat and oats raised upon said premises in 1894, for the consideration of, and to the amount of, $1,500, and praying that the receiver be directed to deliver up the said wheat and oats, and that the injunction be dissolved. Objections were filed to the filing of this petition:

“Now come the complainants, by Watts, Bean & Smith, their solicitors, and object to the filing of the petition of Chauncey F. Cook in said cause, for the following reasons:
“1. Because the notice in said cause is not properly entitled; does not show that said case is in chancery.
“2. Because said petition does not show said Cook to be entitled to any equities.
“3. Because the said petition does not show that said Cook has shown any diligence; does not show that he had not knowledge of the claimed facts set forth in his petition long before filing same.
“4. Because it does not show that the said claimed mortgage was placed on file with the town clerk where said property is situated, or where the mortgagor lived; and, in fact, the same was not filed until December 10, 1894.
“5. Because it does not appear from said petition that petitioner will be injured, and it does not appear that petitioner has not other security which is ample for his claimed debt.
“6. Because it appears from said petition that, before said pretended mortgage was filed, the receiver appointed by said court had possession of said property. -
- “7. Because petitioner, if he has any right, has a complete remedy at law.
“Dated January 26, 1895.
“Watts, Bean & Smith,
“Solicitors for Complainants.”

It does not appear that any further proceedings were had on said petition until April 9, 1895, when the following action was taken:

“This cause having been brought on to be heard on the petition of Chauncey F. Cook, who prays leave to file a petition in said cause, and after reading said petition and hearing the argument of counsel, and the court, being fully advised in the premises, doth order, adjudge, and decree that the said petition of the said Chauncey F. Cook may be, and hereby is, filed in said cause as of on the 28th day of January, 1895; and it is further ordered, adjudged, and decreed by the court that the relief therein prayed be, and the same is hereby, denied.
“Victor H. Lane,
“ Circuit Judge.”

On the same day a decree was made, approving and confirming the report of the commissioners, and requiring the complainants to pay one-half, and the defendants to pay the other half, of the costs; and a further hearing was had in relation to the crops, and a decree was made giving to the complainants one-half, and to the defendants the other half, of the proceeds of the crops, after paying the costs and expenses of handling and converting said property into money, and the costs of said suit, and the receiver’s reasonable charges, to be fixed and allowed by said court. The defendants and the petitioner, Cook, appeal, and the questions discussed relate to the crops, no controversy arising over the partition of the land.

The principal controversy is over the claim of the com. plainants that they are entitled to one-half of the crops raised by defendant Lindsay during the year 1894, some, if not all, of which were sown and planted befoie they took title under the commissioner’s deed, but all of which were put in by Lindsay, at the expense of himself and Robert D. Strong. The defendants contend that Robert D. Strong was in the rightful possession and use of the premises; that he never excluded his brother or the complainants from their rights to enter, occupy, and use said land with him; and they maintain that, under such circumstances, one cannot be required to account to his. co-tenant for a portion of the crops raised.

On the 29th day of June, 1894, the complainants became owners of the undivided moiety of said lands under their purchase at foreclosure sale, and entitled to all of the rights which Homer N. Strong had before such sale. They became at once entitled to enter and enjoy said premises, with Robert D. Strong, their co-tenant; and it is manifest that Strong could not lawfully monopolize the use of the land, either directly or through Lindsay. At the time the arrangement was made with Lindsay, Robert D. Strong could not make a valid lease of the entire premises, any more than he could make a valid sale and conveyance of the same. 11 Am. & Eng. Enc. Law, 1094, and note; Mee v. Benedict, 98 Mich. 263, 271 (39 Am. St. Rep. 543); Freem. Co-ten. §§ 183, 196, 205, 248. But we think it was not a lease. It was a mere contract, by which Lindsay undertook to perform certain services upon the land, Robert D; Strong furnishing seed, tools, and teams. It bears a close resemblance to tbe employment of a clerk,. to be paid for his services by a share of the profits of the business; and, as between themselves, they were tenants in common of the crops.

It is contended that the English rule should be applied, viz., that a person in possession by consent of his co-tenant cannot be required to account to his co-tenant for a share of the profits arising from his use of the premises; but we are of the opinion that this cannot be carried so far as to permit the co-tenant in possession to have the exclusive use of the premises, after entry or demand of possession, until the crop growing at the time of the entry or demand shall mature. As to such crops, the co-tenant may be permitted to share the proceeds, upon an accounting in equity upon a bill filed for partition, if justice requires it. See Freem. Co-ten. § 426; Gage v. Gage, 28 L. R, A. 842, 843 (66 N. H. 282), note; Gayle v. Johnston, 80 Ala. 395. And in such case the cost of production should first be deducted, which would amply protect the cropper. Early v. Friend, 78 Am. Dec. 668 (16 Grat. 21), note. Apparently, the complainants’ bill, when drawn, was intended to concede this.

If Cook was a party before the court to a sufficient extent to have the right of appeal from the order denying him the right to intervene, we should still be compelled to affirm the order of the circuit court as to him. He professed to have a mortgage on two-thirds of certain crops, taken after foreclosure proceedings were commenced and lis pendens filed. The record showed that Homer N. Strong, having title to an undivided half of the premises, had given complainants a mortgage thereon; and Cook must be held chargeable.with notice of that fact, and of the rule that a purchaser at a foreclosure sale takes the mortgagor’s interest in the crop, even against a tenant or assignee. Coman v. Thompson, 47 Mich. 22. The chattel mortgage was given on April 28, 1894, some three months after the decree was entered in the foreclosure case, and after the commencement of publication of the notice of sale. It was apparent that, before these crops could mature, some one would acquire the interest of Homer N. Strong in the premises, with all of his rights of possession and partition, which were necessarily incident. We must hold, therefore, that this chattel mortgage in no way affects the rights of the complainants; and, while it may be enforced against the interest of Robert D. Strong, it has nothing to do with this partition proceeding, and the „court properly refused to allow the petitioner to intervene.

Lindsay, as well as Cook, made his contract with notice of the complainants’ rights, and must be held to have known that the contract was subject to interruption. He cannot complain, therefore, if his one-third interest is subjected to a proportionate share of the expense of the receiver in harvesting and marketing the crop.

Complainants, on acquiring title, immediately demanded possession and a share of the crop, and were denied both. The court gave them one-half of the crops, apparently not taking account of the cost of raising the crop.' This cut Lindsay off without anything for his labor, except as he might obtain it from the share of Robert, and the decree also made him liable for one-half of the costs in the partition case. It gave nothing to Robert D. Strong for his expenses in raising the crops, and left him, after paying Lindsay the agreed share, but one-sixth. While there is some evidence in the record upon the subject, we cannot form an accurate opinion of the amount tha1¿ should be allowed to Robert D. Strong for his share of the expenses in raising said crop. We think that so much of the decree as relates to the crops should be modified by directing the allowance to Lindsay of one-third of the proceeds of the crop, less his one-third of the expenses of the receiver; that Robert D. Strong be allowed reasonable compensation for the use of teams, seed, and machinery, and the expenses reasonably incurred in raising, harvesting, and marketing the crop; and that the residue be divided equally. between him and the complainants, subject to the payment by each of one-third of the expenses, — the trial court to take further evidence, if it shall be by the judge deemed necessary, to ascertain the amount of said Strong’s allowance. The defendants, Strong and Lindsay, will recover costs of this court against the complainants, and the complainants will recover costs against Cook.

The other Justices concurred.


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    PEOPLE v. TICE.
    1. Criminal Law — Alibi—Instructions.
    An instruction in a criminal case that the jury should carefully scrutinize any evidence in relation to an alibi, for the reason that an alibi is a defense that is easily proved and hard to disprove, is not erroneous.
    3. Same — Trial—Impeachment op Witnesses.
    Upon a trial for arson, respondent’s wife was asked if, in a conversation in which E. participated, in the presence of J., she did not assent to certain statements made by E. She "denied the conversation, and' that she was present at the place mentioned on the occasion referred to. Thereupon J. was permitted to testify that in such conversation E. made a statement concerning respondent’s whereabouts on the night the crime was perpetrated, and that respondent’s wife agreed with E. Held, that J. ’s testimony was admissible.
    3. New Trial — Reasons por Denial — Failure to State.
    The failure of the court to file reasons for the denial of a motion for a new trial is not reversible error where no request therefor was preferred.
    Error to Cass; Coolidge, J.
    Submitted November 4, 1897.
    Decided December 7, 1897.

      Simeon Tice was convicted of arson, and sentenced to imprisonment for 16 years in the state prison at Jackson.
    Affirmed.

      Cassius M. Eby, for appellant.

      Charles E. Sweet, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the offense of arson, upon the testimony of one alleged to be an accomplice. Upon the trial, this witness first denied knowledge of the defendant’s guilt, and after a recess, during which time he had an interview with one or more of the officers, and with his mother and sister, changed his testimony, and stated that the defendant had committed the act in his presence. In his charge, the learned circuit judge discussed the conduct of the witness mentioned, at length, and the rules by which the jurors were to determine the value of his testimony, in connection with the unusual and peculiar circumstances under which it was given; and several assignments of error are based upon this part of the chai’ge. They x’aise the question whether the charge was prejudicial, in that it gave undue prominence to certain circumstances. Our examination has satisfied us that the charge was fair, and we deem it unnecessary to discuss the assignments in detail.

The defendant offered evidence tending to prove an alibi. Referring to it, the court said:

‘ T will say that, while the instruction given with reference to an alibi is true, — that this is the law, — you are to carefully scrutinize any evidence in relation to an alibi. An alibi is a defense that is easily proven and hard to disprove. Therefore you will be careful and cautious in examining the evidence in regard to an alibi.”

What was meant by the reference to “the instruction given with reference to an alibi ” does not appear. If, as is probable, it refers to a request to charge upon that subject, which may have been read to the jury for aught that appears in the i’ecord (the “voluntary charge” only being given), it may have been necessary by way of modification; and, if not) it was a proper caution to give to the jury, as it is notorious that an alibi affords the readiest avenue of escape from merited punishment, through false. testimony.

The testimony of the witness Jewell was admissible. The defendant’s wife, Ida Tice, was asked if, in a conversation in which Etta Jennings participated, in the presence of Jewell, she did not assent to certain statements made by Etta. She denied the conversation, and that she was present at the place mentioned on the occasion referred to. Thereupon Jewell was permitted to testify that in such conversation Etta Jennings said that “she knew Sim was not out, because she stayed there all night,” etc.; that Ida Tice was not three feet away, and all present were talking together, and Mrs. Tice said, “Etta stayed there that night, and Sim was not out.”

It is alleged that the cause should not have been submitted to the jury, for the reason that there was not sufficient evidence to sustain a conviction. It does not appear that the claim was made upon the trial, but, if it had been, the point is not sustained by the record, as' there was testimony showing circumstances which tend' to corroborate the story of Jennings. Counsel also claimed the right to review the denial of a motion for a new trial, notwithstanding the fact that the judge failed to state his reasons therefor. This point is ruled by the case of McRae v. Lumber Co., 102 Mich. 488. We are not prepared to hold that it is error for a court not to file reasons for the denial of a motion for new trial, where no request has been made that he do so. Such a request should have been filed or made previous to qr at the time of the hearing and decision of said motion.

The judgment of the circuit court is affirmed.

The other Justices concurred.


author: Montgomery, J.

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    PEOPLE v. JAPINGA.
    1. Intoxicating Liquors — Allowing Minors to Remain Where Sold — Statutes—Sufficiency of Title.
    The provision of the liquor law (Act No. 313, Pub. Acts 1887) making it unlawful to allow any minor to remain in any room where intoxicating liquors are sold (3 How. Stat. § 2283d8) is within the title, “ An act to provide for the taxation and regulation of the business of manufacturing, selling * * * intoxicating liquors.”
    2. Same — Class Legislation.
    The exemption from the statute of minors accompanied by their fathers or legal guardians does not amount to an unconstitutional discrimination against minors not so accompanied.
    3. Same — Constitutional Law — Privileges of Citizens — Police Power. *
    Section 1 of article 14 of the Federal Constitution, which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, etc., does not forbid police regulations in protection of the weaker members of society, such as legislation making it unlawful to allow minors in places where intoxicating liquors are sold.
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted November 5, 1897.
    Decided December 7, 1897.
    Abel Japinga was convicted of having allowed a minor to remain in his saloon where intoxicating liquors were sold.
    Affirmed.

      L. E. Carroll, for appellant.

      Fred A. Maynard, Attorney General, and Arend Visscher, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was convicted of a violation of section 2283d8, 3 How. Stat., in that he perxnitted one Jacob Japinga to be and remain in his (respondent’s) saloon where intoxicating liquors were being sold. It seems that the respondent employed the minor as a barkeeper. There is no doubt that the facts are such as to bring the respondent within the condemnation of the statute, if the statute is valid. This is not contested, but it is insisted by respondent’s counsel that the statute is unconstitutional, in that the purpose of this section is not expressed in the title. The title is, “An act to provide for the taxation and regulation of the business of manufacturing, selling * * * intoxicating liquors,” etc. (Act No. 313, Pub. Acts 1887), and it is said that the section in question is prohibitory. It might be said with equal force that any regulation of the traffic involves, of necessity, a prohibition of conducting the business in defiance of the regulations.

It is also said that the regulations discriminate in favor of a class of minors; the prohibition extending to that class of minors who are not accompanied by their fathers or legal guardians, respectively. This is not an unlawful discrimination against any person. In the wisdom of the legislature, it was not deemed necessary to throw the shield of this inhibition about minors who were accompanied by their parents. And this was purely a legislative question.

It is further contended that the section in question is in conflict with section 1 of article 14 of the Constitution of the United States, providing that:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any pei’son within its jurisdiction the equal protection of the laws. ”

It is argued that this provision excludes minors from entering on a lawful business. We think it is hardly necessary to enter upon an extended discussion or citation of authorities to demonstrate that this constitutional provision was not intended to prohibit police regulations in protection of the weaker members of society.

No error appearing, the exceptions will be overruled.

The other Justices concurred.


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    OSTRANDER v. CITY OF LANSING.
    Personal Injuries — Damages.
    The mere possibility that physical injuries disabling one from, engaging in manual labor may result in his being driven to enter another and more lucrative field of employment does not deprive him of the right to damages based on his diminished earning power in the vocation which he has followed.
    Error to Ingham; Person, J.
    Submitted November 6, 1897.
    Decided December 7, 1897.
    Case by George S. Ostrander against the city of Lansing for personal injuries. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles B. Collingwood, City Attorney, for appellant.

      Cahill & Ostrander, for appellee.
   Moore, J.

The plaintiff recovered a judgment of $2,000 for injuries received while at work upon a sewer'for defendant. Defendant appeals. The case has been here before. Ostrander v. City of Lansing, 111 Mich. 693. At that time the case was reversed because of the form of the verdict. Nearly all of the questions involved in the, case were fully discussed in the opinion of Mr. Justice Montgomery. The only question necessary to discuss now grows out of the charge of the court upon the question of damages, and his refusal to charge as requested by the defendant. That portion of the charge was as follows:

“If, under the law and the facts, you find the city liable for any injury sustained by Mr. Ostrander from the accident, then it will become pertinent for you to inquire into and determine the actual extent of such injury,— just what injury, if any, resulted from the city’s negligence, if it was negligent. If the plaintiff is entitled to recover, he is entitled to recover for just that injury, and no'other. The injury alleged by the plaintiff is a hernia, —a rupture. He says the rupture from which he is now suffering was caused by this accident. You are to determine, if you find the city responsible for the accident, whether the accident produced the hernia, or whether the hernia existed before the accident. If it came from the accident, and if the city is responsible for the accident, then you should award proper damages for the rupture. If the rupture existed before the accident, it should not be considered as, and cannot be, a subject of damages here. If the city is not liable in this action, it will not be necessary for you to consider the question of damages. If it is liable, you should give such damages as are just and fair between the parties.
‘ ‘ The rupture spoken of is the only injury considered in the arguments. If such rupture is the result of the city’s negligence, and if the city is liable, you should determine its character, nature, and consequences; and you should, in such case, award to the plaintiff any loss of earnings resulting therefrom, both past and prospective. You should allow compensation to him for any diminution of bodily power, and for such pain and suffering because of the injury as he has experienced, and will experience in the future. In determining any loss of earnings or earning power, you will remember his vocation and walk in life, and the compensation he has been receiving and would be fitted to receive. You will determine what his loss has been, if any, from the time of the injury to the present. You will also determine what his future loss will probably be, as you believe it from the evidence.
“The expectation of life for one of his present age, in good health, according to the life tables, is twenty-five and twenty-seven hundredths years. But you will take into consideration all the contingencies of life and of earning capacity, and that men do not at every moment, in, the natural course of things, find remunerative employment, and that most men of average good health have more or less sickness, and days when they are unable to work. . You will also remember that men work from day to day through life, receiving their compensation from time to time, as they earn it. A present sum in hand is much more valuable than a like sum to be received at some distant date in the future. In the one case the recipient has the use of the money from now on. In the other the use is to be enjoyed only in the future. Therefore any present judgment for future earnings must be determined by their present worth, based upon the time to elapse before their receipt, and the legal rate of interest, which is 6 per cent. The present worth of any sum of money to be' received at a future date is so much as, put at interest at the legal rate, will amount to that sum upon the expiration of the intervening period.
“ All these matters you will carefully bear in mind, and you will bear in mind, as you have heard talked here, that the twenty-five and twenty-seven one-hundredths years is the average duration of life of a normally well man of his age, but it does not absolutely show how long he would live. It is only evidence tending to show how long men of his age, and in good average health, will live; and you are not bound fixedly by it, but must determine as best you can, if you find it necessary, what will be the probability of his life. All these matters you will carefully bear in mind. No figures can be given you by which to determine damages for pain and suffering. Those, if any, must he determined upon your own good judgment. They should not all be by way of punishing the city, but only in the nature of compensation to the plaintiff. They should, like all damages, be simply fair and just. Damages must not, if given, be in any way fanciful or sympathetic. It is not a question of compassion or sympathy for either party, but a cool matter of business, to be based upon fairness and common sense. If you come to the question of damages, you will bear in mind the instructions I have given' you in that respect. If you do not find the city liable, of course the question of damages is immaterial.”

Complaint is made of that portion of the charge reading: “In determining any loss of earnings or earning power, you will remember his vocation and walk in life, and the compensation he has been receiving and would be fitted to receiveand of his refusal to charge as follows:

“1. I charge you that there is no evidence in this case upon which you can base a verdict for the plaintiff, for damages sustained by him as the result of his injury, for anything beyond the pain and suffering he has endured, or is liable to endure, from such injury.
“2. I charge you that there is no definite legal basis upon which you can find a verdict for the plaintiff for a pecuniary loss to him in consequence of his diminished ability to earn money, as the result of his injury.”

It is argued by counsel:

“It is possible that on account of the accident he might have secured work by which he would have earned more money than at his occupation as laborer. Many a man has, by an accident which deprived him of his physical powers, been driven to take steps to gain, and has gained, employment far more lucrative than he would otherwise have secured.”

Counsel cites Laird v. Railway Co., 100 Iowa, 336. This case does not sustain the claim made for it. The logic of the position taken by the counsel for the city is that if one engaged in physical labor has received a hurt which disables him from pursuing his usual calling, and is led to engage in intellectual pursuits, which ultimately may be more remunerative to him than his original calling, he cannot recover damages because he was disabled from following the calling in which he was engaged at the time he was hurt, because he may not suffer any loss because'of his injuries. We do not think such a position is tenable. The rule in relation to the measure of damages for a physical injury was very clearly stated in Geveke v. Railroad Co., 57 Mich. 589, which is in accord with the charge as given. The case was carefully and properly submitted to the jury by the trial court.

Judgment is affirmed.

The other Justices concurred.


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    BETTYS v. TOWNSHIP OF DENVER.
    1. Pleading — Defective Bridge —Sufficiency of Declaration —Demurrer.
    In an action for injuries due to a defective bridge, an objection that the declaration does not sufficiently specify the defects in the bridge should be raised by demurrer.
    3. Appeal — Assignments of Error — Objections.
    An assignment of error upon the admission of testimony is without force where no ground of objection was stated in the lower court.
    3. Witnesses — Competency.
    A bridge builder may testify as to the effect of the loosening of timbers forming a brace in a bridge.
    4. Townships — Bridges—Duty of Inspection.
    A township is bound to make a reasonable inspection of highway bridges maintained by it, and is liable for injuries resulting from the failure to observe that duty.
    Error to Newaygo; Palmer, J.
    Submitted November 6, 1897.
    Decided December 7, 1897.
    Case by Carrie Bettys against the township of Denver for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George Luton, for appellant.

      A. F. Tibbitts (Martin Bozema, of counsel), for appellee.
   Hooker, J.

The plaintiff was injured by the breaking down of a bridge, which gave way under the weight of a team and light wagon in which she was riding.

The objection that the declaration was not sufficiently specific in pointing out the defects in the bridge need not be discussed here, further than to say that, if there is any force in the point (which we do not intend to imply), it should” have been raised by demurrer. Snyder v. City of Albion, 113 Mich. 275. This ruling disposes of the first and fourth assignments of error.

The second assignment is without force, as no ground of objection was stated. The third was waived, as shown by the statement in the record that “counsel for the defendant waives all objection to the introduction of evidence relating to admissions made by the township officers in regard to the condition of the bridge, or the necessity for a new one being put in.”

We think the question put to the witness Cronk, who was a bridge builder, as to the effect of the loosening of timbers forming a brace, was proper. The ground of the objection was that it was a matter of common knowledge, and therefore for the jury.

The sixth assignment alleges error upon the refusal to direct a verdict for the defendant. It is contended that there was no evidence of actual notice, that the testimony conclusively negatives the claim of constructive notice, and that the case of Blank v. Township of Livonia, 79 Mich. 1, is substantially on all fours with the present case. We are of the opinion that the cases differ materially, and that there was evidence to go to the jury upon the question.

It is urged, further, that—

‘ ‘ The court erred in instructing the jury as follows:
“ ‘Did others see, and did others understand, that this timber was affected with dry rot ? And did this highway commissioner see, or did he understand— Did this highway commissioner make an inspection in order to understand— It was his duty to do so. And could he, by a careful inspection, have ascertained the fact whether or not this timber was affected with the dry rot, hence rendering the bridge unsafe or unfit for public travel ? Did he know of this dry rot, or could he, by inspection made, have ascertained that this dry rot existed ? ’ ”

The last sentence of this assignment is not found in the charge in connection with what precedes it, as the quotation would indicate. Nor do we discover that this sentence is a correct copy of what appears anywhere in the charge. As given, it appears to imply that if, by an inspection, the commissioner could have detected dry rot, the township was at fault. More than a page of the charge intervenes between this sentence and the remainder of the assignment (which precedes it in the charge), and the discussion concludes with the following, which includes the sentence referred to:

“Now, gentlemen, after all I have said to you, and after having read to you the instructions requested by both the plaintiff and defendant, the simple question for you to consider resolves itself into one or two questions of fact: Was the bridge reconstructed in the manner as claimed by this defendant in 1889? Did the highway com'missioner, in June, 1894, repair the bridge? Did he remove the plank therefrom ? Did he test the soundness of both of these outside stringers by pounding along on each side of them, as he claims, and hacking in with an ax all along the timbers, or, - in particular, the places where they broke, and did he do it in good faith, for the purpose of ascertaining their safe condition? Did he know of this dry rot, or could he, by the inspection made, have ascertained that this dry rot existed? Now, if he could not, and did as he claims he did, then the law will exonerate the township, and your verdict must be for the defendant.”

Obviously, instead of implying the necessity of an inspection, the judge was discussing the sufficiency of one actually made. We think that counsel should be careful not to put us to the trouble of finding such discrepancies. If different portions of the charge are to be grouped in one assignment of error, without showing fully the connection in which the respective quotations were used (a practice not to be commended), the fact should at least be indicated by the usual methods adopted by printers to indicate an omission. In the light of the remainder of the charge, we think his parenthetical remark, that “it was his [the commissioner’s] duty to do so” (i. e., make an inspection), meant no more than the duty of reasonable inspection, which, under the case of Township of Medina v. Perkins, 48 Mich. 71, rests upon the township.

We find the record free from error, and the judgment is affirmed.

The other Justices concurred.