author:
Stone, J.
      Bird, J.

text:
    HARRISON GRANITE CO. v. GRAND TRUNK RAILWAY SYSTEM.
    1. Carriers — Freight—Bill of Lading — Valuation — Damages for Negligence.
    In an action commenced by a granite quarrying company for damages in transit to a consignment of stone which defendant billed under a special and reduced rate upon plaintiff’s representation, as shown in the receipt, that the stone was building granite and that the parties agreed upon a valuation in case of loss of 20 cents per cubic foot, although the material was intended for the construction of a mausoleum and was highly polished and more valuable than building stone; it appearing also that plaintiff acknowledged by the terms of the bill of lading that a higher rate was open to it without any restrictions as to valuation, the damages were correctly limited by the charge of the court to the valuation of 20 cents per cubic foot, as fixed in the contract of shipment.
    2. Same — Estoppel.
    The shipper is estopped from recovering more than the agreed valuation in case the parties voluntarily contract as to the relative rate of transportation and value of the property; and except in cases of gross negligence on the part of the carrier the limitation of liability is effectual and valid.

    3. Same — Negligence—Contracts Limiting Liability.
    Such limitation as to value has not such a tendency to exempt the carrier from liability for negligence as to bring the contract within the rule forbidding contracts of that class. Bird, J., dissenting.
    4. Same.
    By the enactment of 34 U. S. Stat. 593 (U. S. Comp. Stat. Supp. 1911, p. 1307), Congress has assumed control of the subject of the liability of interstate carriers so as to supersede all State laws or regulations on that subject; under that statute contracts limiting the liability of the railroad to the agreed or declared value are valid.

      5. New Trial — Motions—Newly Discovered Evidence.
    Plaintiff’s showing of diligence to excuse failure In securing newly discovered evidence for the trial, being insufficient, a new trial was rightly refused.
    Error to Wayne; Rohnert, J.
    Submitted June 17, 1912.
    (Docket No. 112.)
    Decided May 28, 1913.
    Case by the Harrison Granite Company against the Grand Trunk Railway System and National Dispatch Great Eastern Line for damage to a consignment of freight. The court directed a verdict against the Grand Trunk Railway System for less than the claimed damages. Plaintiff brings error.
    Affirmed.

      Smith, Baldwin & Alexander, for appellant.

      L. C. Stanley, for appellee.

      As to the effect of limitation of liability in receipt prepared by shipper, see note in 28 L. R. A. (N. S.) 645.

   Stone, J.

The plaintiff and appellant is a Michigan corporation, having its home office at Adrian, its executive office at New York City, and its quarries at Barre, Vt. Its principal business is that of erecting vaults, mausoleums, and monuments.

In 1907 plaintiff and appellant had a contract for the construction of a large vault in a cemetery at Minneapolis, Minn., which required the shipment of 16 cars of stone from its quarries at Barre. On Octo-, ber 8, 1907, two cars were shipped over the Central' Vermont Railway on Central Vermont cars; one car carrying 13 pieces and the other 6 pieces. It was the claim of the plaintiff that these cars were in a wreck on the Grand Trunk Railroad, and that 11 pieces of the granite were lost, and the other 8 pieces were damaged to such an'extent that they were without value when they were delivered at Minneapolis, and were refused by the plaintiff. It was further claimed by the plaintiff, and there was evidence supporting such claim, that the total value of the granite shipped on the two cars at Barre was $3,085.52, and the freight on the same, which was paid by the plaintiff, amounted to $336, and the expense of plaintiff’s man at Minneapolis, waiting for the material to arrive, amounted to $537.37. There are two railroads at Barre, the Central Vermont Railway and the Montpelier & Wells River Railroad. The granite business is practically the only business at Barre, and from 40 to 60 car loads of granite are shipped over these two railroads daily. Before this shipment was made, plaintiff had considerable correspondence with the railroad companies in regard to rates, and a rate of 31 cents per hundred pounds from Barre to Minneapolis was finally agreed upon. This was made up of a rate of 18 cents from Barre to Chicago, and 13 cents from Chicago to Minneapolis.

The shipment moved from Barre to Chicago over the Central Vermont and Grand Trunk roads, and from Chicago to Minneapolis over the Chicago, Milwaukee & St. Paul. The Central Vermont Railway issued a shipping receipt, showing a through rate to be 31 cents per hundred. The shipping receipt contained the following, among other, provisions:

“It is mutually agreed, in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all conditions, whether printed or written, herein contained, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable.” “The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon, or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation.”

On this bill of lading there was stamped the following statement:

“The consignor of this property has the option of shipping same at a higher rate, without limitation as to value in case of loss or damage, but agrees to the specified valuation named, in case of loss or damage because of the lower rate thereby accorded for transportation. H. G. Co., Shipper.”

Also the following:

“No carrier’s liability under the Western classification shipment fully released. Valuation expressed by consignor not exceeding. 20 cents per cubic foot.”

The stone was described in the shipping receipt as “building granite.”

The plaintiff claimed that the shipment, so far as the Central Vermont Railway was concerned, was made under commodity rates, which' contain no restriction of valuation. In support of this claim the plaintiff introduced in evidence a letter addressed to it dated August 17,1909, signed by the general freight agent of the Central Vermont Railway Company, stating as follows:

“I beg to advise that so far as this company is concerned, the shipment to which you refer moved under commodity rates.”

The defendant claims that this letter does not prove the fact claimed, and if treated as an admission, having been made long after the shipment, and not shown to be within the authority of the agent to make, it was not binding upon defendant. It was undisputed that the above-quoted statement signed “H. G. Co., Shipper,” was actually signed on the bill of lading by Mr. Russell, the plaintiff’s superintendent and chief officer at Barre; that the bill of lading was made out by Mr. Russell and signed by the agent of the Central Vermont Railway Company. It further appeared that the stones, after being polished, cut, and otherwise finished for putting into place in the vault at Minneapolis, were covered with, one-inch boards, boxed throughout and banded with hoop iron, and some of them had 11/2-inch plank fastened to the bottom for additional protection. This boxing was done in the shop of the plaintiff, and when done the stone was loaded onto the car upon a side track which runs through the shop, and when the car was loaded the railroad company was notified, and the car was sent for and hauled out. Some of the stones were highly polished to the same degree of polish that is put on monuments. Some of the polished surfaces were very large. One was 8 feet 1 inch by 14 feet 6 inches.

At the close of the plaintiff’s evidence, the trial court directed a verdict and judgment for the plaintiff for $1,156.19, being at 20 cents per cubic foot for the stone lost and damaged, and also freight paid and expense of delay. The plaintiff asked to recover for the full value of the stone lost and damaged, also freight and expense by reason of the delay of the shipment. The plaintiff has brought the case here on writ of error.

The errors relied upon are:

(1) The ruling of the trial court holding that plaintiff’s right to recover was limited to the restricted value of 20 cents per cubic foot for stone lost and damaged, freight and expenses, and directing the verdict for that amount, instead of for the full value of the stone lost and damaged, with freight and expenses. (2) In refusing to submit the case to the jury under proper instructions, and in refusing to instruct the jury as requested. (3) In refusing to grant plaintiff’s motion for a new trial for the reasons stated in the motion.

The first two grounds of alleged error may well be considered together.

1. In determining whether or not plaintiff was bound by the clause stamped on the shipping receipt, restricting the value of the shipment to 20 cents per cubic foot, it becomes necessary to first determine un-

der what rate the shipment moved. It is the claim of the plaintiff that the evidence showed that the shipment was made under the commodity rate, and that, this being true, there could be no restriction of the value: We understand it to be the claim of the defendant that the shipment was made under the sixth class rate, and that before it was possible for plaintiff to ship under this rate it was necessary for it to fix the value of the stone at 20 cents per cubic foot, and that it was in consideration of this restriction that it was given the sixth-class rate. Much stress is laid by plaintiff’s counsel upon the statement in the record made by defendant’s counsel that “there is no restriction on the value of the commodity rate,” and that none of the correspondence leading up to the contract mentioned “restricted valuations.” It is further claimed by plaintiff that Barre takes the Burlington rate, and that by referring to the joint west-bound freight tariff, in evidence, it is found that the rate number of Chicago is 100. At page 21 of the commodity tariff, under No. 98, it appears that the shipments from Burlington points are governed by scale G, and by the same exhibit, under scale G and rate number 100, it is found that the rate is 18 cents per hundred pounds; and it is urged that at no other place will the rate of 18 cents on shipments of this nature between Barre and Chicago be found.

It is well, however, that we note what materials are embraced in No. 98. They are—

“Stone rough, or stone, building, common planed or sawed, dressed or rough dressed for building purposes (but not to apply to stone for monument or sarcophagus work), cobblestones, paving blocks, stone curbings, flagging, car loads. * * * Note: On stone including stone partly dressed or partly cut, for vault work, in car loads, 6th class rates apply.”

On the first page of this commodity tariff are the words: “Governed by official classification.”

It is claimed by the defendant that the plaintiff was not entitled to recover the full value of the stone lost and damaged, but was only entitled to recover on the basis on which the verdict was directed, namely, at the rate of 20 cents per cubic foot; that this question calls for a setting forth of the classification and tariffs providing for the shipment of “building granite,” which was the name of the article used on the bill of lading. There is no doubt that this building granite was to be used for a mausoleum or vault. That fact is testified to by at least three of the plaintiff’s witnesses, and is not disputed. In plaintiff’s brief it is said that it had a contract “for the construction of a large vault in a cemetery at Minneapolis.”

It appears from the record that there is an official classification to which the tariff known as the “class tariff” applies. In other words, all articles commonly made the subjects of transportation are classified according to weight, value, etc., into classes, first, second, third, fourth, fifth, and sixth; the first class being of the highest value, or most bulky in accordance with their value, the sixth class being of the lowest value, or least bulky in accordance with value. It also appears that commodity tariffs are issued, taking an article out of the regular class tariff, and treating it as a commodity by itself, usually, but not always, at a lower rate of transportation than is shown in the class tariff. It appears from'the record that, in the official classification applicable from the point of shipment to the point of destination, marble or granite, meaning the rough stone, in car loads, when rated over sixth class, but not higher than fifth class, would take a rate of 16 cents per hundred pounds to Chicago. Also, that marble, granite and onyx in blocks or slabs, when chiseled, polished, or dressed, and boxed, should go at fourth class, in car loads when the consignor’s valuation is not expressed, or when it is expressed as exceeding 40 cents per cubic foot; and when such valuation is expressed at not exceeding 40 cents it goes at fifth class. It also appears that, when the value is not to exceed 40 cents per cubic foot, the statement which appears, to be signed “H. G. Co., Shipper,” on the bill of lading in this case, must be entered in full on the shipping order and bill of lading, and signed by the consignor.

It also appears from the tariff quotation in the record that when the marble, granite, or onyx is rough quarried, and the consignor’s valuation *is not expressed, or is expressed at exceeding 20 cents per cubic foot, it goes at fifth class, and when expressed as not exceeding 20 cents it goes as sixth class, with the requirement of the same notation on the bill of lading which is found on the bill of lading in this case. The record shows that the sixth-class rate to Chicago was 22 cents per hundred, or 4 cents more than this shipment paid to the Grand Trunk lines.

If this shipment had moved at fifth class, the rate would have been 26 cents to Chicago, and at fourth class it would have been 31 cents to -Chicago.

It is the claim of the defendant that on this shipment, it having been stone fully cut for vault work, the sixth-class rate properly applied, and that this shipment should have paid to Chicago at the rate of 22 cents per hundred pounds instead of 18 cents; but taking into consideration the manner in which this granite had been boxed and covered, and the fact that it appears that the bill of lading had been filled up and prepared by the plaintiff’s superintendent, and the term “building granite” had been inserted, the defendant was induced to ship at a lower rate; that the commodity rate should not have been used because it does not apply to granite vaults; that while the plaintiff may have got a commodity rate, it did not ship commodity property; that it shipped fifth or fourth class property, and the plaintiff put a stamp upon the bill of lading which would have justified the acceptance of this property as rough quarried granite, sixth class, or granite for vault work, sixth class, but by reason of stating it to be building granite the plaintiff did better, and obtained a rate of 18 cents as though it had been building stone, common, plain rough, or rough dressed; that if there was anything knowingly illegal about this method of doing business, in which valuable granite was shipped as if it had been common stone, the* parties being in equal fault, the plaintiff is in no position to complain of the amount of the verdict.

It is the further claim of the defendant that the contract expressing the valuation was legal under the laws of Vermont, where it was made, and under the acts of Congress, and also under the laws of this State; that it is not an exemption from liability, but is a fair effort of the parties to ascertain the value to be put upon the property for shipping purposes; that the courts recognize the advantage of a value for shipping purposes, which may not be the same as the real value; that where, as in this case, the shipper has the option of shipping without restriction of value, no one is injured when he undertakes to save some freight by representing his property to be worth less; that it is done every day, and is simply a form of insurance ; and that the plaintiff having effectually concealed the real nature and value of its property, for a pecuniary benefit to itself, will not be heard to say now that its contract was in any wise illegal. Chicago, etc., R. Co. v. Kirby, 225 U. S. 155 (32 Sup. Ct. 648).

In any just view of the case as made by the evidence, we are of opinion that the plaintiff is in no position to complain of the amount of the recovery. The representation or acknowledgment by the shipper that there is available to him a higher rate without restriction of valuation is sufficient proof of the fact, but in this case we have the language of the tariffs giving that unrestricted opportunity. Freeman v. Railroad Co., 138 Mo. App. 322 (122 S. W. 1).

The tendency of the courts is to give effect to these voluntary contracts of the parties in reaching an understanding concerning the relative rate of transportation and value of property reciprocally. The action of the shipper affects the action of the carrier.

Such arrangements are held to be entirely distinct from those other contracts which exempt the carrier from the consequences of his negligence. These are held to be an adjustment beforehand of the damages which may result from negligence; and for that reason such arrangements are held to be good except in the event of gross negligence of the carrier. See Louisville & Nashville R. Co. v. Sherrod, 84 Ala. 178 (4 South. 29); Graves v. Railroad Co., 137 Mass. 33 (50 Am. Rep. 282). In the last-cited case it was held that the shipper was estopped to recover more than the agreed valuation.

A leading case is that of Hart v. Railroad Co., 112 U. S. 331 (5 Sup. Ct. 151), where it was held that the voluntary contract between carrier and shipper, in an effort to decide beforehand the extent of liability in the event of negligence, was a good contract, and was based upon good consideration; the consideration being the opportunity to ship at a lower rate than that called for by the unrestricted basis of shipment.

In Atkinson v. Transfer Co., 76 N. J. Law, 608 (71 Atl. 278), the court said:

“Having taken advantage of the lower rate, * * * the shipper is estopped from afterwards asserting that the value is greater. To permit him to reap the benefit of a lower rate in case there is no loss, and to repudiate the valuation upon which that rate was based, if there be a loss, would be repugnant to every principle of fair play.”

See, also, Perrin v. Express Co., 78 N. J. Law, 515 (74 Atl. 462, 28 L. R. A. [N. S.] 645); Pacific Express Co. v. Foley, 46 Kan. 457 (26 Pac. 665, 12 L. R. A. 799, 26 Am. St. Rep. 107) ; Humphreys v. Perry, 148 U. S. 627 (13 Sup. Ct. 711); Wunsch v. Railroad Co. (C. C.), 62 Fed. 878.

That the connecting carrier is entitled to the benefit of the limitation of value, see Mears v. Railroad Co., 75 Conn. 171 (52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192).

That this limitation as to value has no tendency to exempt from liability for negligence, see Baltimore & Ohio R. Co. v. Hubbard, 72 Ohio St. 302 (74 N. E. 214); Alair v. Railroad Co., 53 Minn. 160 (54 N. W. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588).

The fact that the receipt is prepared by the shipper, containing a limitation as to value, is evidence of his freedom of contract and his choice of rates. Such a contract fixes the damages, and does not limit the carrier’s liability, and is held not contrary to public policy. Mering v. Southern Pacific Co., 161 Cal. 297 (119 Pac. 80); George N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, 110 C. C. A. 645.

There was no evidence of gross negligence of the defendant.

We are of opinion that the trial court did not err in directing the verdict and amount of recovery in the case, and there was no error in refusing to submit the case to the jury.

In Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148), the United States Supreme Court decided, January 6, 1913, that the intent of Congress to take possession of the subject of the liability of a carrier under contracts for interstate shipment, and to supersede all State regulations with reference to that subject, so clearly appears from the Carmack amendment of June 29, 1906 (Act June 29, 1906, chap. 3591, § 7, 34 U. S. Stat. 593 [U. S. Comp. Stat. Supp. 1911, p. 1307]), as to invalidate, as applied to interstate shipments, the provisions of any State law nullifying contracts limiting the liability of a carrier for loss or damage to the agreed or declared value; and that a stipulation in a carrier’s receipt, limiting its liability to an agreed or declared value, made to adjust the rate, is not forbidden by the provisions of the Carmack amendment that “no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company, from the liability hereby imposed.”

2. What we have already said disposes of all the questions raised upon the motion for a new trial, except that of newly discovered evidence. The trial took place November 22, 1910. The record shows that as early as January 24, 1908, the plaintiff wrote a letter to the manager of the National Dispatch Great Eastern line stating that the two cars in question were wrecked at Trenton, Ontario, on the Grand Trunk Road, and on February 15, 1908, the said manager wrote the plaintiff to the same effect. It therefore appears that plaintiff had information or knowledge, as early as the first date above stated, that the cars were wrecked at Trenton, Ontario. An examination of the motion papers discloses that at Trenton all this information was in public records of an inquest, and that the plaintiff readily secured the same on going to that city soon after the trial. No excuse is shown for this delay, or want of diligence. We hardly need cite authorities to the effect that, in the absence of a showing of diligence, a new trial on account of newly discovered evidence is properly denied. Burke v. Electric Co., 147 Mich. 172-177 (110 N. W. 524).

We find no reversible error in the record, and the judgment of. the circuit court is affirmed.

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

Bird, J.

I am of the opinion that the contract in this case is a clear violation of the rule that a common carrier railway may not contract against its own negligence, and I concur therein only on the ground that the question is now controlled by the Federal law as construed in Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148).


source: Caselaw Access Project

author: Bird, J. Ostrander, J.

license: Public Domain

text:
    CAVANAUGH v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Proximate Cause — Negligence — Speed — Blowing Whistle.
    Evidence that plaintiff, driving a horse and milk wagon, stopped, looked, and listened before crossing defendant’s tracks, that he saw no train, and proceeded until his horse was on the rail, when he saw a train coming around a curve from the west, that he considered it safer to proceed than to back up and urged the horse forward, succeeding in almost crossing, but that the engineer blew the whistle sharply and frightened the animal, which began to prance and would not advance or back up, and the locomotive collided with the rear wheel of the rig and injured plaintiff, was insufficient to sustain a verdict for his injuries since the proximate cause of the accident was the blowing of the whistle whereby the horse became frightened, not the alleged unlawful speed of the train, and it was not negligence for defendant’s engineer to sound the whistle in approaching a crossing. Bird, Moore, and Kuhn, JJ., dissenting.
    Error jto Kent; McDonald, J.
    Submitted November 22, 1911.
    (Docket No. 168.)
    Decided May 28, 1913.
    Rehearing denied October 1, 1913.
    Case by Bert Cavanaugh against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Wilson, Wilson & Rice (Henry Russel and Frank E. Robson, of counsel), for appellant.

      Lombard & Hext, for appellee.

       As to the liability of a railroad company for frightening horse on highway by engine, car, etc., on or near crossing, see notes in 3 L. R. A. (N. S.) 111 and 42 L. R. A. (N. S.) 568.

   Bird, J.

(dissenting). The plaintiff seeks to recover compensation for injuries received at the intersection of Kalamazoo avenue with defendant’s tracks in the city of Kalamazoo. Kalamazoo avenue extends east and west, and is crossed by defendant’s tracks at an angle of about 45 degrees. From the intersection the tracks curve off to the southwest, and are soon lost to view behind buildings and other obstructions. The crossing is supplied with gates; but, as they were not in operation until 10 o’clock on Sunday mornings, they furnished no protection. Between 9 and 10 o’clock Sunday morning, April 24, 1910, the plaintiff was driving west on Kalamazoo avenue in his milk wagon. When 30 or 40 feet from the tracks, plaintiff stopped his horse, looked and listened, but neither seeing nor hearing anything he proceeded on his way toward the tracks. When his horse reached the first or eastbound track, he saw a train coming around the curve from the west. Thinking it would be safer to proceed than to attempt to back up, he urged his horse forward ; but before his wagon had cleared the track the engineer blew three blasts of the whistle so vigorously that it frightened the horse, and he began to prance, and plaintiff could neither get him forward nor back. While in this situation the locomotive collided with the rear wheel of the wagon and threw plaintiff out and injured him.

The negligence principally relied upon by the plaintiff was the operation of the train at a speed in excess of the 10-mile an hour limit allowed by the city ordinance. It was shown that the train was traveling from 20 to 35 miles an hour. The trial resulted in a verdict for plaintiff, and the defendant has assigned error in this court.

The defense most urged was that plaintiff was guilty of contributory negligence, and error is assigned because the trial court refused to direct a verdict for that reason.

It is claimed by defendant that the uncontradicted testimony shows that when plaintiff was 12 feet from the tracks he could see an approaching train 1,300 feet away, and its figures show that, had plaintiff seen the train when it was 1,300 feet away, he could have traveled 156 feet and been to a place of safety before the train reached the crossing, assuming that the train was traveling 35 miles and plaintiff 4 miles an hour. The difficulty with this reasoning is in assuming that plaintiff saw the train at the precise moment when it appeared around the curve. The plaintiff testified that he was looking and listening from the point where he stopped until he got to the track; but this testimony, fairly construed, would not justify defendant’s conclusion that he saw the train at the precise moment when it was first discernible from the point which he occupied. Again, defendant, in its computation, takes no note of the time the horse was prancing on the tracks, when he could not be made to move in either direction.

Defendant also insists that, had plaintiff looked, he could have seen the train when he was in a place of safety, and in attempting to cross he was guilty of contributory negligence. The plaintiff testified that his horse had reached the track before he saw the train, and that he thought he would have time to get across in safety. Subsequent events tend to verify his judgment, because, notwithstanding his delay on the crossing, he got so nearly across that the train only collided with his rear wheel. It is safe to assume, had he not been so delayed, he would have cleared it without injury. These considerations made plaintiff’s negligence a question for the jury.

In reliance upon plaintiff’s testimony that he could have reached a place of safety, had it not been for the whistling, the defendant requested the court to charge the jury that the whistling w;as not a negligent act, but was the proximate cause of the accident, and therefore no recovery could be had. Upon this branch of the case the trial court charged the jury as follows:

“As I said, it is disputed as to what caused the injury; the plaintiff claiming that it was caused, in part at least, by the negligence of the defendant in running its train at a'greater rate of speed than 10 miles an hour, and the defendant claiming that the proximate cause was the blowing of the whistle. The act of blowing the whistle was not negligence, as I have said, and if that act was the sole cause of the injury the defendant would not be to blame, and plaintiff cannot recover. _ If, however, the defendant was guilty of negligence in running its train at a higher rate of speed than 10 miles an hour at the time of the accident, and that fact, with the other fact of blowing the whistle, together produced the injury, the defendant would be liable for any such acts, and the running of the train at a high rate of speed would be the proximate cause. Stated in a brief, abstract way, the proposition is this: Where two concurrent acts, one of which is negligent, and the other is not, produced the injury, and it would not have been produced but for the negligent act, such an act is the proximate cause; that is, that the blowing of the whistle and the running of the train at a high rate of speed together concurring, they concurred in producing the injury. The negligent act, which would be the running of the train at a high rate of speed, would be the proximate cause. If the two acts did not concur in producing the injury, but it was produced by one or the other of them, it must appear, by a fair preponderance of the evidence, that it was produced by the negligent act, or the plaintiff cannot recover. As I said, in this case the negligent act would be the running of the train at a high rate of speed, and the innocent act, or nonnegligent act, would be the blowing of the whistle.”

This was a correct statement of the .aw and a proper application of it to the testimony, and was justified under the authority laid down in Selleck v. Railway Co., 93 Mich. 381 (53 N. W. 556, 18 L. R. A. 154). In Cooley on Torts (1st Ed.), at page 70, it is said that:

“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through, the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. * * * It is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption he must show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done” —citing Davis v. Garrett, 6 Bing. 716.

Counsel for defendant suggest that the situation is ruled by Stahl v. Railway Co., 117 Mich. 273 (75 N. W. 629). We think that case is clearly distinguishable from the present one upon the facts.

Error is also assigned because of the refusal of the trial court to submit three special questions to the jury. They were refused on the ground that the answers to them would not be controlling. We have examined them, and are satisfied that the trial court was right in refusing to submit them.

The judgment of the trial court is affirmed.

Moore and Kuhn, JJ., concurred with Bird, J.

Ostrander, J.

If plaintiff’s horse had been frightened by a newspaper blowing about its head or feet, or if the delay in passing over the track had been occasioned by any other cause not chargeable to a wrongful act, of defendant, the principle involved would be the same. Plaintiff claims that he took the proper and adequate precautions to cross the track in safety. He had ample time to cross the track in safety if he had proceeded. He did not cross it in safety because, having passed upon the track into a place of danger, his horse refused to proceed. It was the frightened horse and its performance, and not the speed of the train, which was the proximate cause of the plaintiff’s injury. I cannot distinguish the case at bar and Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479), and cases cited in opinion, Murphy v. Railroad Co., 107 Mich. 627 (65 N. W. 753); Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883), and Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215, 48 L. R. A. 644, 81 Am. St. Rep. 204).

The judgment should be reversed.

Steere, -C. J., and McAlvay, Brooke, and Stone, JJ., concurred with Ostrander, J.


text:
    PETTINGER v. ALPENA CEDAR CO.
    1. Appeal and Error — Exceptions—Trial—Review.
    Proper exceptions as well as a request for a ruling of the trial court are essential to review argument of counsel for the prevailing party on writ of error.
    2. Same — New Trial.
    The denial of a motion for new trial is not reviewable unless the reasons for such ruling are demanded or secured in the lower court.
    3. Evidence — Contracts—Credit Given.
    On the trial of an action for supplies furnished to one party on the credit of another, it was not erroneous to permit plaintiff's counsel to inquire of a witness for plaintiff, to whom was credit extended.
    4. Principal and Agent — Estoppel—Holding Out Person as Agent — Sufficiency of Evidence.
    Acts of an alleged principal during a long course of dealing or many successive transactions, recognizing the authority of another to act in the principal’s behalf, may raise against him an estoppel to deny the existence of an agency as to persons who have dealt with the agent in reliance on his apparent authority.
    5. Same — Evidence of Estoppel.
    Testimony on plaintiff’s behalf that he furnished supplies to a lumbering contractor at the request of one who assumed to act as agent for defendant corporation, directing plaintiff to present the account to defendant and it would be paid, that one account was approved by the alleged agent and was paid by defendant, that plaintiff believed that such agency existed and acted in reliance on the payment of the one account and on the fact that defendant had furnished the same person with blank orders to pay laborers in the contractor’s employ and such orders were honored by the corporation, that it had also delivered to him a check payable to his order and plaintiff had received the check on the account in litigation, presented a question for the jury on the ground of an agency by estoppel. Stone and Ostrander, JJ., dissenting.

      Error to Montmorency; Emerick, J.
    Submitted November 15, 1911.
    (Docket No. 125.)
    Decided May 28, 1913.
    Assumpsit by John Pettinger against the Alpena Cedar Company for goods and supplies furnished to another on defendant’s credit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Elmer G. Smith, O’Brien & Francis, and L. G. Dafoe, for appellant.

      I. S. Canfield, for appellee.
   Bird, J.

While one James H. Wade was lumbering certain lands in Montmorency county in pursuance of a contract with H. K. Gustin, of Alpena, he purchased his camp supplies from the plaintiff, who kept a general store at Atlanta. In January, 1907, the account had increased to $366.99, at which time plaintiff advised Wade that he could not carry him for a larger amount, and that he would have to make some arrangements about making payment of it. Wade then appealed to Gannon for assistance. Soon after this, Gannon, who had charge of Gustin’s lumbering interests in the woods, came to plaintiff’s store and approved the account and ordered plaintiff to send it to the Alpena Cedar Company and it would be cashed. Plaintiff complied with the suggestions and received a check from the Alpena Cedar Company for $366.99 in payment of the account. After Gannon approved this bill, he inquired of Wade if he intended to continue trading with plaintiff, and, upon being assured by Wade that he so intended, Gannon said to plaintiff:

“You will supply Mr. Wade with camp supplies such as he needs to go on and from time to time I will be here. I will be here oftener than Í have been and I will O. K. these bills and you may send them to the company and get your money.”

Following this conversation, and up to the latter part of March, plaintiff continued to furnish Wade with supplies, but charged them directly on his books to the defendant company. About this time some differences arose between Wade and Gustin, which resulted in severing Wade’s connection with the work. Up to this time the plaintiff had furnished Wade with supplies aggregating the sum of $405. The bill was approved by Wade and sent to the defendant, but was returned unpaid.

It was shown by the testimony that Wade was furnished two books containing blank labor orders of the Alpena Cedar Company, which were used by him in making payment of labor and other accounts, and that they were honored by defendant. Some of these orders were purchased by plaintiff from the men employed, and they were honored by the defendant. The defendant denied that it had any interest in the contract; that it was entirely a matter of Mr. Gustin’s; and denied that Mr. Gannon had any authority to bind the company for camp supplies or anything else. There was no proof that Gannon had any actual authority from the defendant to do what he did, but it was the claim of the plaintiff that defendant’s course of dealing with matters connected with the contract misled him into the belief that the defendant was interested in the contract and that Gannon was acting for it, and that by reason of such belief he was induced to part with his goods.

At the close of the testimony, the defendant requested the court to direct a verdict in its behalf, but, instead of so doing, the court left the question to the jury and instructed them in part as follows:

“If you believe from the evidence in the case, by a fair weight and preponderance of the evidence, that the transactions which I have enumerated would have produced in the mind of a man of ordinary intelligence, of fair decent business ability, and did produce in the mind of John Pettinger the belief that the Alpena Cedar Company was connected in some way with this transaction, in reference to the Wade lumbering job, so that they were willing to, in part at least, pay the bills for the expense of that job, and that this man Gannon, who had been connected with the job as the overseer and agent of Mr. Gustin, had its authority to promise to pay for the goods that should be furnished in the future, and that Mr. Gannon did so promise, did actually promise that for the goods which should be furnished in the future this company would pay, then the company would be liable for those goods that were thereafter furnished.”

The jury returned a verdict for the plaintiff for the amount of his claim, and the defendant has assigned several errors in this court growing out'of the rulings of the trial court in the admission and rejection of testimony; also on prejudicial remarks of counsel in the presence of the jury; also on the refusal of the court to direct a verdict in its behalf and on the refusal of the court to grant a new trial.

For the want of proper exceptions, and for the failure of defendants to secure a ruling upon its objections to the language of counsel, and for its failure to secure the reasons of the trial court for refusing a new trial, the only questions which can be considered upon this record are the following:

(1) Was it error to permit the following question to be answered on behalf of plaintiff: “Who did you extend credit to after that time?” (2) Was the trial court in error in refusing to direct a verdict for the defendant?

1. The plaintiff was seeking to hold defendant liable for merchandise which he delivered to another, and it was not only a pertinent but a proper inquiry as to whom he extended the credit. No error is apparent in its admission.

2. Inasmuch as there was no proof that Gannon had any actual authority to act for the defendant, the question here raised is one of agency by estoppel. 31 Cyc. p. 1219. This rule has been stated as follows:

“It is a general rule that when a principal by any such acts or conduct has knowingly caused or permitted another to appear to be his agent either generally or for a particular purpose, he will be estopped to deny such agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence dealt with the agent on the faith of such appearances. This rule is particularly true where the principal has knowingly by such acts and conduct recognized the agency through a long course of dealing or in many transactions.” 13 Cyc. p. 1237.

In Clark v. Dillman, 108 Mich. 625 (66 N. W. 570), it was said:

“It is undoubtedly the law that a person may be bound by the representations and acts of another, as agent, where there has been such a holding out as to reasonably lead one dealing with him to believe in the existence of such agency. But all of the elements of an estoppel must be present. There must be conduct calculated to mislead, and it must be under circumstances which justify the claim that the alleged principal should have expected that the representations would be relied and acted upon; and, further, it must appear that they were relied and acted upon, in good faith, to the injury of an innocent party.”

The plaintiff claims to have parted with his merchandise in the belief that the defendant was interested in the lumbering which Wade was carrying on, and that Gannon was acting for it, and that it would pay for such supplies as he furnished the camp. This belief was induced by the fact that Gannon had approved of an account which he held against Wade, and the defendant had paid it as he was advised by Gannon it would do. Another thing which tended to strengthen this belief was the fact that Wade had been furnished blank labor orders of the Alpena Cedar Company, and the men were being paid with them. Plaintiff bought some of these orders, and he knew of others who had bought them, and he knew that these orders were honored by the defendant. A check for $100, drawn by the Alpena Cedar Company to the order of Gannon and indorsed by him to Wade, was accepted by plaintiff as a payment on Wade’s account, and this check was honored by the defendant. This incident, in connection with the other evidence, helped to confirm the belief of plaintiff that Gannon was acting for the defendant. The testimony showed that some notice was brought home to plaintiff that Gustin was interested in the contract, but this notice was not very significant to plaintiff because of the fact that he knew that Gustin was president of the defendant company.

The case was a close one, but we think the testimony presented an issue for the jury. The trial court submitted the issue in a very clear and able charge, and we think the verdict was justified if the jury believed the testimony offered on behalf of plaintiff.

The judgment of the trial court is affirmed.

Steere, C. J., and Moore, McAlvay, and Brooke, 33., concurred with Bird, J.

Ostrander, J.

(dissenting). It is the general rule, apparently often forgotten, that:

“Every person dealing with an assumed agent is bound, at his peril, to ascertain the nature and extent of the agent’s authority. The very fact that the agent assumes to exercise a delegated power is sufficient to put the person dealing with him upon his guard, to satisfy himself that the agent really possesses the pretended power. If, having relied upon it, he seeks to hold the alleged principal responsible, he must be prepared to prove, if either be denied, not only that the agency existed, but that the agent had the authority which he exercised.” Mechem on Agency, § 706.

In this case it is not pretended that the agent Gannon had defendant’s authority to pledge its credit for goods to be’furnished by plaintiff to a third person, or that he was a general agent of defendant. There is no testimony tending to prove that defendant had knowledge that Gannon had ever before done such a thing, or knew that he did it in the particular instance. There is no testimony tending to prove that Gannon had ever before assumed any such authority. There is therefore no evidence of the authority alleged to have been assumed by Gannon; no evidence that his principal knew that he had assumed the authority; no ratification of the particular, or of any similar, act.

The judgment should be reversed and no new trial ordered.

Stone, J., concurred with Ostrandee, J.


author: Brooke, J.

text:
    DETROIT TRUST CO. v. GOODRICH.
    1. Corporations — Receiver — Creditors’ Suit — Impairment oe Capital — Statutes—Stockholders’ Liability.
    The remedy provided by section 7057, 2 Comp. Laws, enabling creditors to pursue the capital of a corporation, impaired by the unlawful payment of dividends to stockholders, exists also in favor of a receiver appointed in voluntary dissolution proceedings for the benefit of the creditors generally. Jacobs v. E. Bement’s Sons, 161 Mich. 415 (126 N. W. 1043, 137 Am. St. Rep. 508).
    2. Same — Stock and Stockholders — Dividends.
    So, also, one class of stockholders injured by impairment of the corporate assets by payment of unearned dividends to another class could compel the corporation to recover the funds unlawfully withdrawn.
    3. Same — Receivers.
    While the receiver represents the insolvent and stands in its place, he has such additional rights as' belong to the creditors to pursue property wrongfully diverted and to enforce all claims for fraudulent disposition of the corporate funds, under the authority conferred upon him by 3 Comp. Laws, §§ 9651, 10861 (5 How. Stat. [2d Ed.] §§13570, 14277).
    4. Same — Good Faith — Defenses.
    The good faith of the corporation in paying dividends that tend to impair its capital or of the stockholders in receiving such dividends, is no defense in a suit to recover them. American Steel & Wire Co. v. Eddy, 130 Mich. 266 (89 N. W. 952).
    5. Limitation of Actions — Equity — Stockholders’ Suit — Laches — Dividends Paid to Impairment of Capital.
    Under the statutes of limitation, a suit to recover from innocent stockholders of an insolvent corporation dividends illegally paid is barred after six years from the date of payment; that some claimants may hot have become creditors within that period is not a valid objection, for the right to enforce repayment of the funds received exists in some party at all times after the diversion.
    Appeal from Wayne; Hosmer, J.
    Submitted January 30, 1912.
    (Docket No. 26.)
    Decided May 28, 1913.
    Rehearing denied October 1, 1913.
    Bill by the Detroit Trust Company as receiver of E. Bement’s Sons, an insolvent corporation, against Louisa A. Goodrich and others for the recovery of dividends unlawfully paid out of capital to preferred stockholders of the insolvent. From an order overruling demurrers to complainant’s bill, defendants appeal.
    Reversed.

      Bernard B. Selling, for complainant.

      Hyde, Earle & Thornton, Wilkinson, Post & Oxtoby, Edward A. Barnes, Edwin S. Bartlett, Lucking, Emmons & Helfman, and Harrison Geer, for defendants.
    The bill in this case is filed for the purpose of compelling the defendants,' some 300 in number, to refund to the receiver certain dividends paid to them by the insolvent corporation, E. Bement’s Sons, on preferred stock of that concern, held by them severally.
    The allegations of the bill are, briefly: (1) That complainant, a Michigan corporation, was appointed receiver of E. Bement’s Sons, a Michigan corporation. That E. Bement’s Sons was incorporated under the laws of Michigan in October, 1897, with an authorized capital stock which was increased from time to time until in 1901 or 1902 it amounted to $750,000 preferred and $750,000 common. (2) That the common stock was issued and sold at less than par, and that the preferred stock when issued did not realize par to the corporation. (3) That prior to October 25, 1904, $750,000 par value of the common stock, and $649,000 par value of the preferred stock, had been issued. (4) That after January 1, 1902, the capital stock of E. Bement’s Sons was impaired, and that the corporation, subsequent to the said date, had no right to pay any dividends on its stock. That the payment of dividends after January 1, 1902, amounted to a withdrawal and refunding to the stockholders of assets of the company. That although the books of E. Bement’s Sons did not show the impairment of capital stock, yet the assets at no time after January 1, 1902, were equal in value to the sum of liabilities of the company and the par value of the stock issued and outstanding. (5) That defendants were and are the owners of preferred stock of E. Bement’s Sons and received in dividends thereon dividends from January, 1902, to July, 1904. (6) That the payment of such dividends was a fraud upon the creditors of E. Bement’s Sons, and that at the time complainant was appointed receiver there were $100,000 of claims of creditors which were not yet due from E. Bement’s Sons, and the owners of which were not in a position to assert at that time the invalidity of the payment of said dividends. (7) That complainant by its appointment as receiver, stands for and in place of all creditors of E. Bement’s Sons, whose claims were then in existence, and that the estate of the said corporation will not pay 40 cents on the dollar to the unsecured creditors. That there will be a deficiency of assets exceeding the amount paid in dividends. (The bill contains averments setting forth that there are upwards of 250 stockholders of E. Bement’s Sons, who have received dividends amounting in all to upwards of $75,000, and makes all these stockholders defendants.) (8) That the Supreme Court of Michigan has held that no creditor of E. Bement’s Sons can take a judgment against said company, but that they must proceed through your petitioner, the receiver. That in October, 1904, the board of directors of E. Bement’s Sons filed a petition praying for dissolution of said company and for the appointment of a receiver, in the circuit court of Ingham county, Mich., in chancery, under chapter 300 of the Compiled Laws of 1897. That complainant was in October, 1904, appointed temporary receiver, and in May, 1905, appointed permanent receiver by said circuit court. (9) The complainant prays that defendants be required to account to it for said dividends so received. The bill was filed subsequent to September 1, 1910.
    Many of the defendants interposed demurrers based upon the statute of limitations and laches. The demurrer filed by defendant Peters raises the following points: (1) That the complainant’s claim is stale and barred by lapse of time in analogy to the statute of limitations at law requiring an action on such claim to be commenced within six years after the cause of action accrued. (2) E. Bement’s Sons, a corporation, could not question this payment of dividends, and therefore complainant cannot. (3) Complainant represents no judgment creditor of E. Bement’s Sons, who has exhausted his remedies at law against said corporation. (4) Complainant has not pursued the proper remedy; a special, exclusive, statutory remedy by petition being proper for obtaining the relief prayed. All demurrers were overruled in the court below, and defendants were given 15 days in which to answer. From the order overruling the demurrers, defendants have appealed. /l*v-,¿

   Brooke, J.

(after stating the facts). The bill of complaint contains no averment of fraud on the part of the defendants, nor does it aver that the defendants or any of them received the dividends in question with knowledge or notice that, at the time of payment, the same were paid illegally. Under this pleading, there being no claim of a new promise on the part of the defendants, and more than six years having concededly elapsed between the time of the last payment and the date of commencement of suit, all the defendants urge that the statute of limitations should be held to be an absolute bar to the action.

It should, perhaps, be stated at the outset that this bill is filed following our decision in Jacobs v. E. Bement’s Sons, 161 Mich. 415 (126 N. W. 1043, 137 Am. St. Rep. 508). Jacobs, one of the creditors of the defunct corporation, sought in that case to reduce his claim to judgment with the ultimate purpose, probably, of pursuing his remedy against the holders of preferred stock, who had received dividends paid in impairment of capital. We there held that, the corporation being dead, his action could not be maintained. It was held further—

“That the receiver has full power to reach all assets of the dissolved corporation which could be reached by any creditor, and that such assets ought to be disclosed to such receiver by any creditor who has knowledge of them, for the benefit of all the creditors,” citing cases.

The receiver is now in court attempting to enforce stockholders’ liability for the benefit of all the creditors. 2 Comp. Laws, §7057, provides:

“If the capital stock of any such corporation shall be withdrawn, and refunded to the stockholders before the payment of all the debts of the corporation for which such stock would have been liable, the stockholders of such corporation shall be jointly and severally liable to any creditor of such corporation, in an action founded on this statute, to the amount of the sum refunded to him or them respectively.”

It will be noted that this section gives no right to the corporation itself or to its receiver to repossess itself of funds illegally paid out as dividends in impairment of capital, but is solely for the benefit of the creditor. Nevertheless there can be no doubt that such right exists at common law. It was said in American Steel & Wire Co. v. Eddy, 130 Mich. 266 (89 N. W. 952), that:

“We see no reason to doubt that such dividends could be reached, if there were no statute, as being a fraudulent disposition of assets.”

It is true the court was there considering the rights of a creditor to pursue such assets, but it seems obvious that if the capital of a corporation is depleted by the payment of unearned dividends to one class of stockholders to the injury of another class, any one of the latter class could by appropriate proceedings compel the corporation itself to recover the funds so unlawfully withdrawn.

As between the corporation and its stockholders, where all stockholders are upon the same footing, the doctrine of estoppel might be invoked, though even then, under the authorities, we think the action could be maintained by the corporation upon the theory of mistake. See Lexington Life, etc., Ins. Co. v. Page, 56 Ky. (17 B. Mon.) 412 (66 Am. Dec. 165).

It is said by counsel for defendant that the corporation could not itself maintain the action in this case, and, as the receiver represents and stands in the place of the insolvent, it is in no better position. We are of opinion that our holding in the case of Jacobs v. E. Bement’s Sons, supra, forecloses this question against such contention. While primarily the receiver represents the insolvent so far as the collection and conservation of its assets is concerned, in his hands all those claims become assets which were assets as to creditors as well as those which were assets as to the insolvent corporation. In Minnesota Thresher Manfg. Co. v. Langdon, 44 Minn. 37 (46 N. W. 310), it is said:

“Among the rights which pass to the receiver as the representative of the creditors is the right to recover property conveyed by the corporation in fraud of its creditors, or capital withdrawn and refunded to the stockholders without provision for full payment of the corporate debts. This right of the receiver does not depend upon any express statute granting it, but rests upon the general equitable doctrine that the capital of a corporation is a trust fund for the benefit of its creditors, and that those to whom it has been refunded will be held trustees for their benefit.”

This decision was rendered under a statute conferring express authority upon a receiver to prosecute an action against stockholders on account of any liabilities created by law. Although such authority in express terms is wanting in our statute, we think the powers enumerated in 3 Comp. Laws, § 9651 (5 How. Stat. [2d Ed.] § 14277) and § 10861 (5 How. Stat. [2d Ed.] § 13570), are sufficiently broad to confer the power now sought to be exercised by the receiver. Section 10861 vests in the receiver all the estate, real and personal, of the corporation, for the benefit of the creditors of the corporation and of its stockholders. It cannot be contended that money wrongfully paid out to stockholders as dividends in impairment of capital is not still an asset in a true sense of the corporation itself. The fact that it is a trust fund for the benefit of creditors in the hands of those to whom it has been so illegally paid does not, in essence, rob it of that quality. We have therefore no hesitation in affirming our former holding that the receiver may, by virtue of its appointment as such, and on behalf of the creditors, maintain the action quite independently of the statute. It is unnecessary here to determine whether the rights of the individual creditor to pursue the fund under the statute are suspended during the bankruptcy proceedings. That question is not now presented.

We think it is settled doctrine that the good faith of the corporation in paying dividends in impairment of capital or that of stockholders in receiving such dividends is no defense to an action for their recovery. American Steel & Wire Co. v. Eddy, supra, and cases there cited.

The meritorious question in the case is, therefore, to determine when the statute of limitations began to run in favor of these defendants. It will be remembered that the last of the dividends said to have been unlawfully paid were so paid in July, 1904, and the bill of complaint in this case was not filed until October 22, 1910. It is the contention of counsel for complainant that the cause of action did not accrue until the present creditors came into existence and acquired a standing to assail the unlawful payment; that the receiver in prosecuting the action acts as the assignee of, or successor to, the individual rights of each creditor under the statute; and that the time when the fraud was committed is not the period from which the limitation is to be computed, but the time at which the plaintiff acquired the right to attack. On the other hand, defendants urge that the statute commenced to run from the moment of payment; that from such time the money so illegally paid became an asset of the insolvent, recoverable by it in a proper proceeding; and that the receiver is proceeding, not by virtue of any statutory rights conferred upon creditors, but under well-recognized equitable principles to recover assets of the insolvent which have been wrongfully diverted.

The authorities upon the question are not harmonious, but we are disposed to accept the view presented by the defendants and hold that where unearned dividends are paid to innocent stockholders they cannot be recovered in an action brought more than six years after such payment. The question was carefully considered in Lexington Life, etc., Ins. Co. v. Page, supra, where it is said:

“Can the stockholders rely upon the statute of limitations to protect themselves against the recovery of these dividends? The only argument that has been urged against their right to avail themselves of the statute is, that the dividends were a part of a trust fund, and should be regarded as having been received by them as such, and held by them as trustees.
“The doctrine is well settled that such express and continuing trusts as are within the exclusive jurisdiction of courts of equity, and are not cognizable at law, are not affected by the statute of limitations.
“But here there was no express trust; if any existed, it resulted by implication, from the facts of the case. The money was received by the stockholders in their own right, as that to which they were legally entitled, and there is nothing which authorizes the inference that they ¿ver agreed to hold it in trust, or claimed it otherwise than as belonging to themselves.
“Besides, the corporation could have maintained an action at law, for the recovery of the money received by them; and a court of equity would have had no jurisdiction to have adjudged its repayment to the corporation.
“If, then, it constituted a trust at all in the hands of the stockholders, it was not an express trust, but received its character from legal implication, and was not such a trust as is within the exclusive jurisdiction of courts of equity, but was cognizable in a court of law, and consequently lacked the essential attributes of those trusts that are exempted from the operation of the statute” — citing Dudley v. Price, 10 B. Mon. (Ky.) 84.

Again, in the case of Hayden v. Thompson, 17 C. C. A. 592, 71 Fed. 60, Judge Sanborn, delivering the opinion of the court of appeals, said:

“This is a suit brought for the benefit of the creditors of this bank, by their proper legal representative, to recover $213,708, which was unlawfully taken out of a trust fund that was sacredly pledged to secure them, and distributed in various amounts among these appellees without consideration. It is a suit in equity to execute a trust, to undo a fraud, and to prevent a multiplicity of suits. * * * It is a suit to execute a trust, for the capital of a bank or other moneyed corporation constitutes a trust fund pledged to secure the payment of its creditors. It is a breach of that trust to divert any portion of this fund from the creditors of the corporation to pay dividends to its stockholders, when it is insolvent, and any funds so diverted may be followed by the creditors, or by their proper representative, and recovered from any one but a bona fide purchaser or a creditor, who has received them. * * * It is a suit to follow and recover a part of the capital of this bank which was wrongfully paid to and received by them. By receiving it they became liable to pay it back to the bank for the benefit of its creditors. This liability to repay this fund was an asset of the bank which passed to the receiver. Under the act of Congress he was vested with the right of the bank, and also with the rights of the creditors of the bank, to recover this fund for the purpose of an equal distribution among the latter. After his appointment he was the proper party to, and the only party who could, maintain a suit for its recovery. Bailey v. Mosher, 11 C. C. A. 304, 63 Fed. 488, 491; Bank v. Colby, 21 Wall. [U. S.] 609; Hornor v. Henning, 93 U. S. 228; Stephens v. Overstolz [C. C.], 43 Fed. 771; Bank v. Peters [C. C.], 44 Fed. 13. The act of Congress provides that, under the direction of the comptroller, the receiver shall take possession of the books, records, and assets of the bank, collect all debts, dues, and claims belonging to it, and that, upon orders of the courts, or if necessary, he may take certain other proceedings. The basis of this suit is a claim of the bank for a part of its capital pledged to, but diverted from, its creditors to these appellees. It was one of the primary duties of the receiver to collect all the dues and claims of the bank. The claim on which this suit is based was one of these claims. * * * This is a suit, we repeat, to recover diverted trust funds. It rests upon no statute or act of Congress. Its foundation lies deeper. It rests on the fundamental principle of equity that he who has received moneys impressed with a trust, without consideration, ought.to and must restore them. The right to recover such funds in chancery courts existed long before these acts of Congress were passed, and we find no intimation in them of any intention to destroy or curtail it. * * *
“By the statutes of Nebraska, an action for relief on the ground of fraud is barred in four years after the cause of action accrues, but the cause of action in such a case is not deemed to have accrued until the discovery of the fraud. An action for the recovery of this $120 on any other ground stated in the bill than fraud is barred in four years from the tiftie the cause of action accrues. Consol. St. Neb. 1891, §§ 4547, 4548,4552. This suit was commenced on July 6, 1894, more than seven years after defendant Hall received his dividend. He filed a general demurrer to this bill. • * * * By the terms of these statutes an action to recover this dividend from the defendant Hall was barred more than two years before this suit was commenced; but the counsel for the complainant seeks to escape from this conclusion on three grounds: First, that the stockholders who received unearned dividends are trustees of an express trust for the creditors of the bank, and the statute of limitations is inoperative against them; second, that the cause of action did not accrue until the fraudulent misappropriation of the dividend was discovered, and the bill alleges that the directors concealed it until the receiver was appointed; and, third, that the cause of action did not accrue until the receiver was appointed, and it was discovered that it was necessary to collect this, fund in order to pay the creditors of the bank.
“Express trusts are not within the statute of limitations because the possession of the trustee is presumed to be the possession of the cestui que trust. Prevost v. Gratz, 6 Wheat. [U. S.] 481, 497; Lewis v. Hawkins, 23 Wall. [U. S.] 119, 126; Railroad Co. v. Durant, 95 U. S. 576. But lapse of time is as complete a bar to a constructive or implied trust in equity as at law, unless there has been a fraudulent concealment of the cause of action. Speidel v. Henrici, 120 U. S. 377, 386 (7 Sup. Ct. 610) ; Dole v. Wilson, 39 Minn. 330, 333 (40 N. W. 161) ; Carrol v. Green, 92 U. S. 509; Streitz v. Hartman, 26 Neb. 33, 49 (41 N. W. 804) ; Insurance Co. v. Page, 17 B. Mon. [Ky.] 412, 447 [66 Am. Dec. 165]. The defendant Hall never held the dividend which he received under an express trust to secure the creditors of this bank. He never contracted to hold it for them or for that purpose. He received it as his share of the profits of the business of the bank, and held it as his own. The trust with which it is impressed arises from the fact that it was taken out of the fund held by the bank in trust to pay its creditors. The defendant, who was prima facie its owner, is converted into a trustee by the evidence of this fact, and the trust is an implied or resulting trust, created by operation of law, and not an express trust arising from contract or privity. The complainant cannot, therefore, escape the bar of the statute on the ground that it is inoperative against an express trust.
“Nor can he escape on the ground that the fraudulent misappropriation was not discovered until the receiver of the bank was appointed. * * * So far as this record shows, he received his dividend in good faith, in the honest belief that he was justly entitled to it. The reason of the rule that the time limited by the statute for the commencement of an action for fraud shall not commence to run while the defendant conceals it is that he ought not to be permitted to take advantage of his own wrong. Neither the reason nor the rule has any application to a cause of action which is fraudulently concealed from the parties in interest by third persons. The fraudulent concealment of the defendant alone will delay the running of the statute. * * * The result is that an action at law to recover this dividend of $120, which was paid to Hall in 1886, would have been barred before this suit was commenced, and by analogy this suit cannot be maintained against Mm. Nor can it be successfully maintained that the cause of action to recover any part of this fund first arose after the receiver was appointed, and when it was first discovered that the other assets of the bank were insufficient to pay its debts. When the fund was misappropriated, the wrong was done, and the right of recovery was complete. The assets of the bank were then insufficient to pay its creditors, if the allegations of the bill that the bank was then insolvent are true, and unpaid creditors might then have maintained a suit to recover back this fund.
“Our conclusion is that, in the State of Nebraska, a suit to recover from an innocent shareholder of a bank an unearned dividend which he has received in good faith, without notice of any fact that would lead a reasonably prudent man to learn that the dividend was not earned, is barred in four years from its receipt.”

We have quoted thus at large from the opinion of Judge Sanborn for the reason that it is not only supported by adequate authority, but because we think the argument conclusive of the question.

In Mills v. Hendershot, 70 N. J. Eq. 258 (62 Atl. 542), which was an equitable proceeding by the receiver to recover inter alia dividends paid in impairment of capital, it is said by Vice Chancellor Emery:

“Against defendant Downs there can be no recovery for dividends received more than six years prior to the filing of the bill. He was not an officer of the company, and there is no proof that at the time of the receipt of the dividends before that time he had notice that the dividends were paid out of the capital of the company, instead of the profits. The dividends, when received, were received as his own money, and the receiver can be entitled to their return only on the equitable doctrine that, being in fact paid from the capital, a fund held by the company in trust for the payment of debts, the money received for dividends, being in fact capital, was impressed with this trust. But this trust so raised by the doctrines of the court of equity belongs to the class of implied or construe-live trusts, and as to such trusts the general rule is that in the absence of fraud the statutes of limitation are applicable.”

We are convinced that, upon principle, as well as authority, the innocent stockholder to whom dividends are paid in impairment of capital should receive the protection of the statute. If his liability to return such dividends does not cease at the end of the statutory period (six years), when does it cease? Clearly not in 10 or even 20 years. He may have received his dividends upwards of 20 years before final insolvency of the corporation, and may even have sold the stock itself, and yet, under the theory of the complainant upon insolvency and the discovery of the fraud or mistake of the officers of the corporation in declaring dividends without having earned them, he could be called upon to refund the money for the benefit of the creditors who became such prior to insolvency. Such a condition would be intolerable and would tend to destroy confidence in corporate investments and to disorganize business. The stockholders, who in good faith receive such dividends, must still hold them as a trust fund for the benefit of creditors, but can only be called upon to refund them if the action is brought within six years from the date of payment.

The cause of action arises at the moment of payment, and the right to enforce repayment exists in some one at all times thereafter until the statute shall have run. The fact that some creditor may not have become such within six years of the unlawful diversion has no bearing upon the question.

The order overruling the demurrer is reversed, and the demurrer is sustained.

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


author: Bird,' J.

text:
    MERRILL v. BRANT. HILL v. BRANT.
    1. Mechanics’ Liens — Landlord and Tenant — Leasehold Interest — Contracts.
    If the owner of real property is to be held liable for liens under the mechanics’ lien law, it must be by virtue of some contract express or implied; his property cannot be taken to satisfy an indebtedness incurred by his tenants under an arrangement to , which the lessor was not a party. 3 Comp. Laws, § 10710 (5 How. Stat. [2d Ed.] § 13766).

    2. Same.
    Evidence that defendant, the owner of a hotel, leased it to tenants for a five-year term, one of them operating the bar, kitchen and cafe, the other having possession of the remainder, that although defendant consented to various alterations proposed by the tenants, he did not order them made, took no part in the supervision of the labor, nor directed its progress, that he at no time discussed the cost of the work with the claimants, that he allowed to the tenants the sum of $300 on rentals for the improvements, and that the tenants made what payments the contractors received, held, insufficient to establish a contract of the lessor expressly or by implication.
    Appeal from Berrien; Coolidge, J.
    Submitted June 18, 1912.
    (Docket Nos. 142 and 143.)
    Decided May 28, 1913.
    Bills by Levitt L. Merrill and others and by Richard Hill and others against Edward Brant and others for the enforcement of mechanics’ liens, the suits being consolidated by consent. From a decree for complainants, defendants appeal.
    Reversed as to Brant; affirmed as to remaining defendants.

      Cady & Andrews, for complainants.

      George W. Bridgman, for defendant Edward Brant.

      On the question' of the power of a lessee or vendee to subject owner’s interests to mechanics’ liens, see note in 23 L. R. A. (N. S.) 601.

   Bird,' J.

The bill of complaint in this cause was filed to enforce several mechanics’ liens against the Hotel Benton in the city of Benton Harbor. Certain changes and repairs were made in the interior of the hotel in February and March, 1910, involving an expenditure of about $1,000, in which the carpenter, the mason, the plumber, and the decorator participated. Failing to receive all their pay, they filed liens under the statute and are now seeking to enforce them in this suit. By stipulation of the parties, the cases were tried and disposed of as one, and it is stipulated that the same course may be followed in this court.

There was but one question raised in the trial court, and that was as to whether the defendant Brant, who owns the hotel, was liable for the claims. At the time the claims accrued, he was the owner of the hotel, but it was under a five-year lease to defendant Collins, his son-in-law. In February, 1910, the lease to Collins was modified to the extent of giving to defendant Ronegar a five-year lease, commencing March 1st, of three rooms on the ground floor, to be occupied as a saloon, cafe, and kitchen. Collins and Ronegar had arranged to change the hotel from the American to the European plan. Collins was to run the hotel and Ronegar the saloon and cafe, and the expenditures were made in furtherance of this plan.

It is the contention of the defendant Brant that he is in no way responsible for the labor and materials which went into the hotel; that he did not order the work done; that he never agreed to pay for it; and that no one of the complainants ever asked him to pay for it. He testified that when he made the lease to Ronegar, he agreed with him to allow him $100 toward the improvements in the dining room, and that later, when Ronegar complained that it was costing so much more than he had expected, he allowed him $200 more on the rent. The complainants claim that defendant Collins acted as the agent of Brant in ordering the work done, and nearly the entire testimony is devoted to an attempt to establish the agency of Collins. At the conclusion of the hearing, the trial court made a decree fixing the amount due to each claimant and decreeing the same to be a lien against the hotel and providing for foreclosure in the event of failure to satisfy the decree.

If defendant Brant is to be held liable to pay the liens, it must be by force of some contract express or implied. 3 Comp. Laws, § 10710 (5 How. Stat. [2d Ed.] § 13766). No one of the claimants testified that he made any contract with Brant, and no one of them testified that Brant agreed to pay him, and no one of them testified that he ever requested Brant to pay him. But it is said his son-in-law, Collins, acted for him. This appears to be based largely upon the fact of his being a son-in-law,.and that Collins acted for or with him when the lease was made to Ronegar. This has but little force with us from the fact that Collins was interested in the lease, and, if Brant was to execute a lease of the three rooms to Ronegar, Collins would have to release them. It is further said that Collins and Brant conferred about the work while it was in progress, but, when the witnesses were asked what Brant said, none of them could detail it; they saw them looking at the work and motioning, and they concluded they were talking about the work. It is further said that Brant was around the hotel nearly every day during the progress of the work, and that on one or two. occasions he made comments concerning it as to how well it would look when finished, and that it would cost considerable, but no one testified that he directed or attempted to direct the work in any way.

A study of the record convinces us that Collins and Ronegar set about to make these changes on their own account. Ronegar had a five-year lease and Collins had a five-year lease with the right of renewal in 1913, and they would therefore be the immediate beneficiaries of any improvements that might be made. Collins, by reason of his relation to Brant, undertook to and did get his consent to lease to Ronegar, and also his consent that the changes might be made, and further than to donate toward the cost of the improvement we are not impressed that defendant Brant took any part in it. The testimony, as a whole, does not read in a way that convinces us that the improvements were made by Brant personally or through the agency of Collins. It is said that Brant was in poor health and unable to give the work his personal attention, and therefore acted through his son-in-law. Later, when it was sought to charge him with notice that the work was being done, it was said he was at the hotel nearly every day. If the work were done in pursuance of a contract with Brant, it proceeded along rather unusual lines in that the mechanics were all set in motion without a word from Brant personally, and, notwithstanding the fact he was present nearly every day, he made no attempt to dictate how or when the work should be done. He discussed with the mechanics neither the work nor the cost thereof. If this were Brant’s contract, it is not clear to us why he should have paid Ronegar $300 instead of paying it to the mechanics, and just why Ronegar should have paid between $400 and $500 to the mechanics on Brant’s contract is not satisfactorily explained. And it would seem as though complainants would have asked defendant Brant to pay their claims before beginning suit if they had understood that he was obligated to do so. Defendant Brant’s property should not be taken to satisfy these claims unless a contract, express or implied, is established to which he was a party. Peninsular General Electric Co. v. Norris, 100 Mich. 496 (59 N. W. 151); Wagar v. Briscoe, 38 Mich. 587.

We think the testimony fails to establish such a contract, and for this reason relief must be denied complainants and the bill dismissed as to defendant Brant. The decree will be affirmed as to the other defendants. The defendant Brant will recover his costs in both courts.

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


author: Bird, J.

text:
    McBROOM v. B. SIEGEL CO.
    1. Master and Servant — Safe Place — Fellow-Servant—Personal Injuries — Negligence.
    The falling of an electric fan from the top of a show case which one of plaintiff’s fellow-servants was engaged in moving, was not such evidence of negligence as would charge the master with liability for injuries sustained by plaintiff, the place being safe except for the act of the fellow-servant.
    2. Same — Concurring Negligence.
    It could not be said that the negligence of the master and a fellow-servant concurred to cause the falling of the fan, which had stood on a show case for several months without falling, although the case had been moved several times; negligence could not be inferred from failure to fasten the fan to the show case which appeared to have been stable and capable of sustaining the load.
    Error to Wayne; Mandell, J.
    Submitted June 7, 1912.
    (Docket No. 39.)
    Decided May 28, 1913.

      Cáse by Julia McBroom against the B. Siegel Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error..
    Affirmed.

      George F. & Peter J. Monaghan, for appellant.

      Fred L. Vandeveer and James D. Clare, for appellee.
   Bird, J.

The plaintiff, Julia McBroom, was in the employ of defendant as a saleslady in charge of the fur department on the third floor, of its retail store in the city of Detroit. On the morning of February 24, 1908, while she was in a stooping position combing out some furs, an electric fan, weighing between 40 and 50 pounds, fell from a tall showcase and struck her on the neck near the collar line, severely injuring her. Compensation for the injury was demanded from the defendant on the theory that it had failed and neglected to furnish plaintiff a safe place in which to work. After plaintiff’s case had been presented to the jury, the trial court was of the opinion that the negligence which caused the injury was chargeable to a fellow-servant and not to the defendant, and therefore a verdict was directed for the defendant.

The electric fan was not in use at the time of the accident, but was sitting on one corner of a showcase where it had been placed by Mr. Siegel during the previous summer for the comfort of the employees. The showcase was constructed of mahogany and glass and was 9 feet high, 8 feet long, and 2% feet wide and sat with its back close to east front windows. On the morning in question, the janitor was preparing to wash the windows, and while Mr. Freed, the floor manager, was attempting to move the case away from the window so the janitor could reach it, the fan was jarred off and fell. It appeared that during the summer months the windows were washed once a month, in the cold weather “once in a while”; but whenever it occurred the showcase had to be and was moved. It also appeared that it was the duty of Mr, Freed to move or to assist in moving the furniture.

The particular manner in which defendant failed to make the place safe is stated in the declaration to be: (1) In failing to properly and safely fasten the fan upon the stand; (2) in failing to provide a safe and suitable base for the stand; (3) in permitting the fan to remain in an unsafe place. It is argued that the failure of the defendant in these respects was the proximate cause of the injury and that under the proofs the question as to the safety of the place was. one for the jury and not for the court.

The facts of this case, as disclosed by the record, are such that in my opinion the doctrine of safe place cannot be successfully invoked. It is true, as plaintiff' insists, that it is the duty of the master to provide a safe place for his servants in which to work, and it is also true that he cannot delegate this duty to another in such a way as to relieve himself from liability ; but, when the master has discharged this duty by making the place safe and it is subsequently rendered unsafe by the negligent act of a servant in carrying on the work in the place, the master is relieved of liability. This rule has been stated as follows:

“The duty devolving upon the master to furnish his servants a safe place to work in the first instance is one which cannot be delegated so as to relieve the master from liability, on the ground that the negligence was the act of a fellow-servant. So the master cannot escape liability by relying on the fellow-servant rule where the place of work afterward becomes unsafe and he knew or ought to have known of its unsafe condition, and failed to remedy it within a reasonable time, where a servant is injured by reason thereof. This rule does not extend, however, to negligent acts of a servant making a safe place unsafe, nor where the negligence relates to details of arrangement and execution in keeping a place safe.” 26 Cyc. p. 1321.

Mr. Justice Parsons, in discussing this rule, in the case of McLaine v. Head & Dowst Co., 71 N. H. 294 (52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522), observed that:

“When the danger arises not from .the place itself, but from the use of it for the work, and no special skill or experience beyond that involved in doing the work is required to maintain the safety of the place, the maintenance of such safety is the duty of the servant because it is a part of the work. The plaintiff cannot recover on the ground of the breach of the master’s obligation as to the place, because there is no evidence of negligence of the master in that respect.”

If we apply the rule to the facts in this case, it becomes apparent that the place in which plaintiff was assigned to work was made safe by the master and that the act which made it temporarily and for the moment unsafe was the act of Mr. Freed, a fellow-servant, in tugging away at the case without giving the fan any thought or attention.

But it is argued by counsel that the injury was the result of the concurring negligence of both master and fellow-servant. It is not unusual to set electric fans in some elevated position as was done in this case and to occasionally change their location in the room. It appeared that the showcase was substantially built and was amply able to carry the load, and while it appeared that the top of it was somewhat irregular and the floor somewhat uneven, it was not shown that the case rocked or was unsteady, nor was it shown that these conditions contributed to its fall. The fan had sat in that position for several months without falling notwithstanding the case had been moved several times. This would indicate that it was secure enough in that position when attention was given to it. The following testimony of Mr. Freed shows what made it fall:

“While jerking and shoving the case as I have described, the fan fell off.” “In moving the case the jar of moving the case knocked the fan off the case.”

We are of the opinion that the fault was Mr. Freed’s and that' there was no testimony from which a jury could have concluded that it was due to the negligence of the defendant.

The judgment is affirmed.

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


author: Bkooke, J.

text:
    BIALY v. BIALY.
    Divorce — Alimony—Suit Money — Decree.
    Where complainant in a divorce case appealed from the decree of the circuit court granting her alimony, from which order defendant likewise appealed and which the Supreme Court affirmed; and pending the appeal complainant secured an order awarding $2,500 to he paid to her without determining whether the payment should be deducted from the total alimony awarded or be treated as suit money in addition thereto, a final decree that omitted all reference to the point reserved, and that affirmed the decree of the lower court, could not be treated as an adjudication that the amount paid should be in addition to the permanent alimony, and it is held, that the payment so ordered and made should be credited to defendant as a payment of permanent alimony.
    Appeal from Bay; Collins, J.
    Submitted April 11, 1913.
    (Docket No. 52.)
    Decided May 28, 1913.
    Bill by Carrie A. Bialy against Robert C. Bialy for divorce. After affirmance on appeal, complainant applied for an attachment to enforce the payment of the decree. From an order fixing the balance to be paid, complainant appeals.
    Affirmed.

      Stoddard & McMillan, for complainant.

      C. E. Pierce and L. G. Beckwith, for defendant.
   Bkooke, J.

Complainant secured a decree of divorce from defendant together with permanent alimony in the sum of $100,000. From this decree complainant appealed. In the prosecution of said appeal complainant expended very considerable sums of money for expenses and counsel fees.

The decree of the lower court was affirmed by this court. Bialy v. Bialy, 167 Mich. 559 (133 N. W. 496, Ann. Cas. 1913A, 800). The concluding paragraph of the opinion states that:

“The decree is affirmed* without costs, except that each party will pay one-half the cost of printing the record.”

While complainant’s appeal was pending in this court, she made a motion for an order allowing her certain sums as alimony pendente life and for expenses and counsel fees incident to the appeal. This court carefully considered complainant’s application and made an order requiring defendant to pay to her or her solicitors the sum of $2,500. In making this order this court said:

“The question as to whether this sum shall be eventually charged to the defendant or to be allowed to him as a payment in part of the decree for alimony made by the circuit court for the county of Bay, in chancery, or by this court, is expressly reserved.”

This court in determining the main issue between the parties overlooked the fact that the question as to how the $2,500 paid under the order should be finally credited was reserved, and a formal decree of affirmance was entered without the attention of the court having been called to that fact.

Defendant has now paid the entire award, except $3,500, if he is not entitled to credit for the $2,500 paid upon the order of this court, and all except $1,000 if he is entitled to such credit. A precept for an attachment having been issued in the circuit court, the question was heard, and it was there determined that defendant should have credit for the sum in dispute, and that he should pay to complainant the sum of $1,000 and interest in full satisfaction of the decree. This sum ($1,100.56) the defendant has deposited with the register of the court. Complainant appeals from the order, contending that the allowance was made to meet the expenses of appeal and for her support during the pendency of the appeal.

Counsel say:

“The court was not asked in the motion for an order requiring defendant to make a payment upon the decree that had been appealed from, nor did this court make any such order. The money having been ordered paid as expense money and for temporary alimony, and this court not having decreed that complainant be charged and defendant credited with the amount upon the decree, he is not entitled to such credit. The affirmance of the decree by this court, without qualification, is equivalent to a finding and order that it should not be so credited. We do not know whether or not this court had in mind the order under which the $2,500 was paid when, by its decree of December 8, 1911, it affirmed the decree of the court below, nor is this fact material, for the legal effect of the decree of affirmance is that the $2,500 is not charged to complainant as part payment of permanent alimony awarded to her.”

A complete answer to this contention is to be found in the words of the order and in the fact that this court has never determined, nor been asked to determine, the reserved question.

We have no hesitation in agreeing with the conclusion reached by the learned circuit judge. It should be borne in mind that complainant took nothing by her appeal. Her permanent alimony was not increased, though that was the only Contention urged by her upon the appeal. We have already held that the award made was “reasonable and just under the circumstances.” We do not think defendant should be penalized because complainant believed the award too small and sought at large expense, though unsuccessfully, to establish the justice of her contention in this court.

The order appealed from will stand affirmed, with costs to appellee.

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