author: Montgomery, J.

text:
    Marie Rose De Mey and Edward B. Bagard v. Peter B. Defer.

      Bankruptcy — Deed from assignee — Bona fide purchaser — Mortgage foreclosure — Redemption—Improvements—Rents and profits.

    1. A deed from an assignee in bankruptcy, which on its face purports to convey only the “right, title, and interest” of the bankrupt, vests in the grantee the title to the land subject to all of the equities with which it was chargeable in the bankrupt’s hands.
    2. A married woman mortgaged her land to secure her husband’s debt. After her death, by agreement with her husband, the mortgage was foreclosed at law, and on the sale the land was bid in by a third party for the amount due on the mortgage and the expenses of foreclosure. The purchaser paid part of the purchase price by executing to the mortgagee a new mortgage for the principal sum secured by the old mortgage, and the remainder was -paid by the husband of the mortgagor. The purchaser then mortgaged the land to secure the claim of one of his creditors. He was afterwards adjudicated a bankrupt, and the creditor acquired by purchase from the assignee all of the interest of the bankrupt in the mortgaged premises, after which he paid the first mortgage and discharged his own mortgage. The heirs of the first mortgagor, who were infants at the time of her death, tendered to the second mortgagee the amount due on the mortgage so foreclosed, and, upon his refusal to accept said tender and execute to them a quitclaim deed of the land, filed a bill to redeem from the foreclosure. And it is held that the bill seems to have been filed in recognition of the validity of the claim of the first mortgagee, and asks that an account be taken of the amount due for principal and interest on the mortgage; that the entire transaction of substituting the second mortgage for the first one should be taken together, and it is not inequitable that the land should be charged with this indebtedness, which has never in fact been paid.
    8. The defendant contended that, if the bankruptcy sale did not vest full title in him, as the discharge of his mortgage was made under a mistake of fact, complainants should be required, as a condition to relief, to pay the amount of said mortgage, together with the amount paid on the first mortgage. Complainants met this contention with the claim that, as the mortgage was given to secure an antecedent debt, the defendant could not be treated as a bona fide purchaser. The pleadings were not so framed as to admit of this defense, but the question was litigated in the court below. And it is held:
    a — That as the defendant, upon the occasion of accepting the mortgage, which he did in good faith, and without notice of complainants’ rights, extended the time of payment of the amount secured, he must be held a bona fide purchaser, to the extent of his mortgage interest.
    b — That the case will be remanded, with leave to the defendant to amend his answer by setting up his claim under his mortgage; that either party may, within a reasonable time after the amendment, offer further proofs upon that subject; that, to determine the rights of the parties, an accounting shall be had; that on such accounting the defendant will be entitled to an allowance for the amount paid on the first mortgage, with interest, and, if the court shall so determine, for the amount of his own mortgage, with interest: that defendant will also be entitled to an allowance for the increased value of the land by reason of improvements by him made in the honest belief on his part, as appears from the testimony, that he had acquired title by his purchase from the assignee in bankruptcy; that complainants may offset the rents and profits of the land, but not the increase of rental value due to improvements, and will be entitled to redeem upon payment of the balance found due to defendant after deducting the rents and profits, and will recover costs of both courts.
    Appeal from Wayne. (Carpenter, J.)
    Argued October 2, 1894.
    Decided December 22, 1894.
    Bill to redeem from a mortgage foreclosure. Complainants appeal.
    Decree reversed, and record remanded for an accounting.
    The facts are stated in the opinion.

      George Gartner, for complainants.

      Moore & Moore, for defendant.
   Montgomery, J.

This is a bill filed to redeem from a foreclosure upon a mortgage executed by complainants* mother, Marie G. Bagard.

The facts of the case are that on the 1st of April, 1871, Marie G. Bagard was the owner of lot 3 of the subdivision of the St. Jean farm, being part of private claim 26 in the township of Grosse Pointe, Wayne county. On that day she executed to Maria D. Tracy a mortgage to secure the payment of $700 at the end of five years, with interest at the rate of 10 per cent, per annum, payable semiannually, according to the conditions of a certain bond collateral thereto. In October, 1872,' Marie G. Bagard died, leaving the two complainants, her children, and who are her sole heirs at law. The younger of these complainants became of age November 3, 1891, and this bill was filed shortly after. It appears that in 1874 there was due upon the mortgage one installment of interest, of $35, and Edward G. Bagard, the father of complainants, it is claimed, offered to pay such installment, and was also desirous of paying the principal sum, which was not yet due, but that lie was advised by the attorney of Mrs. Tracy that it would be more convenient, to control the property, to have a foreclosure upon the mortgage, and vest the title in a third party, and that this course was accordingly taken. The mortgage was foreclosed, and one John P. Hensien became the purchaser at the foreclosure sale for the sum "bf $840. The consideration was paid, $140 by Edward G. Bagard, and $700 by executing to Mrs. Tracy a new mortgage upon the same premises, payable in four years, with a like rate of interest, of 10 per cent, per annum. The title thus resting in Hensien, he, on the 31st of January, 1877, executed to Peter B. Defer, the defendant, a mortgage upon the property, conditioned for the payment of $3,000 within three years, with interest .at 10 per cent. This mortgage was given as security for moneys theretofore advanced, and upon' no new consideration, save that there was an extension of time upon the indebtedness to the date of the maturity of the mortgage "thus executed. On the 13th of April, 1878, Hensien went into bankruptcy, under the Hnited States bankruptcy :aet, and on the 18th of April the assignee in bankruptcy •of Hensien sold all the right, title, and interest of said Hensien in the property in question to Defer, the defendant, for the consideration of $18. Defer thereupon paid •off the Tracy mortgage, and discharged of record the .mortgage executed to him. On December 2, 1891, complainants tendered the sum of $2,300 in satisfaction of ¡the amount due upon the Tracy mortgage, with interest, :and requested the execution of a quitclaim deed from defendant, which was refused, and complainants thereupon filed the present bill. Hpon the final hearing the .bill was dismissed, and complainants appeal.

The theory of complainants is that the transaction by which Edward G. Bagard sought to vest the title to this property in Hensien, and to use it to satisfy his own debt, was a legal fraud upon the complainants, and that the •defendant occupies no better position than would Hensien, were he still the owner of the title. Defendant does not ■seriously contend that complainants are not equitably the ■owners of the land, as between them and Hensien, but he •contends — First, that, by virtue of the conveyance from the assignee in bankruptcy, defendant acquired the legal title to the property, divested of the latent equities in favor of the complainants, and subject only to the mortgages given to Mrs. Tracy and himself; and, second, that, even if it ■should not be held that defendant is entitled to the rights ■of a Iona fide purchaser by virtue of his purchase from the assignee in bankruptcy, he was at least a Iona fide mortgagee to the extent of the mortgage given by Hensien, and that, the mortgage having been canceled under a misapprehension of fact, he is entitled, in equity, to have the cancellation treated as of no effect.

Was the defendant, by virtue of his purchase from the assignee in bankruptcy, under the circumstances disclosed in this case, entitled to the rights of a Iona fide purchaser? The circuit judge was of the opinion that he was, and, if he was correct in this conclusion, it is an end of the complainants1 case. The authorities are not altogether harmonious upon this question. In Webb on Eecord of Title (section 213) it is stated:

“The rule of caveat emptor applies to bankrupt sales, and the purchaser takes the property subject to all the ■equities with which it was chargeable in the hands of the bankrupt;11 citing Fletcher v. Ellison, 1 Tex. Unrep. Cas. 662; Baker v. Vining, 30 Me. 121; Anderson v. Miller, 7 Smedes & M. 586.

There are, however, cases which hold the contrary doctrine. See Holbrook v. Dickenson, 56 Ill. 497; Moorman v. Arthur, 90 Va. 455. See, also, as sustaining the contention of complainants, Smith v. Perry, 56 Ala. 266.

We think it unnecessary to determine whether, on a conveyance by the assignee in bankruptcy, which on its face purports to convey the title, the grantee may be^ deemed a bona fide purchaser. In the present case the deed of conveyance is not produced. Its terms are to be gathered from the averments of the bill and answer. Tim bill alleges that—

“On the 18th day of April, 1878, the said assignee sold' all the right, title, and interest of the said John P. Hensien to Peter B. Defer.”

The answer, upon this point, is as follows:

“Defendant admits that he acquired all the rights of said John P. Hensien, and alleges that those rights were-the absolute title to said land.”

We cannot infer from these averments that there was any attempt to convey anything beyond the actual interest of the bankrupt, and the case comes distinctly within the-ruling of Smith v. Perry, supra. See, also, Eaton v. Trowbridge, 38 Mich. 454; De Veaux v. Fosbender, 57 Id. 579; Culbertson v. Witbeck Co., 92 Id. 469, 480.

It is contended that Mrs. Tracy acquired no rights by virtue of the mortgage executed to her by Hensien, and that defendant has no greater rights than Mrs. Tracy. It is, perhaps, sufficient to say that the bill seems to have been filed in recognition of the validity of the claim of Mrs. Tracy, and asks that an account be taken of the amount due for principal and interest on the mortgage. The whole transaction of substituting the second Tracy mortgage for the first should be taken together, and it is certainly not inequitable that the land should be charged with this indebtedness, which has never been in fact paid. Complainants seek to have the foreclosure sale set aside. It certainly would be inequitable to grant this relief without at the same time reviving the mortgage, which was only extinguished, if extinguished at all, by- such sale.

It is also contended that the defendant was chargeable with notice in fact of the complainants’ rights, or of sufficient to put him upon inquiry as to. those rights, before he became a purchaser or mortgagee. We have examined the record with reference to this question with care, and agree with the opinion of the circuit judge in that regard,— that the defendant is not so chargeable with notice in fact.

But defendant contends that he is entitled to further relief; that if it be held that the bankruptcy sale did not vest full title in defendant, as the discharge of his mortgage was made under a mistake of fact, complainants should be required, as a condition to relief, to pay the amount of such mortgage, together with the amount paid on the Tracy mortgage. If he occupies the position of a good-faith mortgagee, and the pleadings admit this defense, this contention should be allowed. But complainants contend that, as the $3,000 mortgage was given to secure an antecedent debt, the defendant cannot be treated as- a Iona fide purchaser. This would be true if the position of the mortgagee were unchanged, but, as before stated, the defendant, upon the occasion of accepting the mortgage, extended the time for the payment of the amount secured three years. He accepted this mortgage in good faith, and without notice of complainants’ rights. We think, under these circumstances, he must be held a Iona fide purchaser, to the extent of his mortgage interest. See 2 White & T. Lead. Cas. Eq. 33, 85; Boxheimer v. Gunn, 24 Mich. 379; Hanold v. Kays, 64 Id. 439; Cary v. White, 52 N. Y. 138.

But it is further contended that the pleadings do not admit of this defense. This is true. The question seems to have been litigated, however, in the court below, and we think ^defendant should not be wholly cut off from the opportunity to make the defense.

The case will be remanded, with leave to defendant to amend his answer by setting up his claim under this mortgage, and either party may, within a reasonable time after the amendment, offer further proofs upon the subject. To determine the rights of the parties, an accounting shall be had. On the accounting, defendant will be entitled to-an allowance for the amount of the Tracy mortgage, with interest, and, if the court shall so determine, for the amount, of the mortgage executed to him, with interest. Defendant will also be entitled to have an allowance for the increased value of the land by reason of the improvements.. We have not overlooked the complainants* contention that defendant had notice before the improvements were made-of the defect in the title, but we are convinced that these improvements were made in the honest belief on the part of defendant thqt he had acquired title by his purchase from Hensien’s assignee in bankruptcy. Complainants will be permitted to offset the rents and profits of the land, but not the increase of rental value due to improvements,, and will be entitled to redeem upon payment of the balance found due to defendant after deducting the rents and profits. Complainants will recover costs of both courts.

McGrath, O. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.

       Edward Gr. Bagard joined with, his wife in the mortgage and bond first executed to Mrs. Tracy, and the loan was made for his benefit.


source: Caselaw Access Project

author: Long, J. Hooker, J.

license: Public Domain

text:
    D. M. Osborne & Company v. Harvey Baker.

      Sale — Warranty—Authority of agent — New contract.

    Defendant ordered a harvesting machine through plaintiff’s general agent. The order provided that the machine was purchased and sold under a warranty and agreement thereinafter set forth, which no one had any authority to add to, abridge, or change in any manner, and that keeping the machine during harvest, whether kept in use or not, should be deemed conclusive evidence that it filled the warranty. The defendant, upon ascertaining that the machine did not comply with the warranty, refused to keep it under the contract, and the agent who took the order persuaded defendant to retain the • machine, and advised him that he might do so, and if he kept it beyond the harvest it would be all right, and the machine would be the plaintiff’s, and not the defendant’s. And, in a suit brought to recover the purchase price of the machine, it is held that the machine was retained by the defendant under this new arrangement, which the agent had a right to make, and that the defendant is not bound to pay for the machine because he held it over the harvest.
    Error to Jackson. (Peck, J.)
    Submitted on briefs, October 10, 1894.
    Decided December 22, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts; are stated in the opinions.

      Richard Price, for appellant.

      Lewis M. Powell,' for defendant.
   Long, J.

This action was brought to recover the, purchase price of a binder. The order for the binder is set out in the declaration, and is as follows:

“ ORDER POR OSBORNE HARVESTING MACHINE.

“Dated at Concord, July 9, 1892.

“ Messrs. D. M. Osborne & Co.,

“'Chicago, 111.:

“ I have this day ordered of Jacob Eosenbrook, your agent, one of your machines, described as ‘Number New Binder, 6 feet right-hand rear gear/ to be delivered at Concord, Jackson county, for which I agree to pay the sum of $105, and freight and charges from Chicago, 111., in manner as follows:

“An approved note, due October 1, 1892, $52.50, with interest at - per cent.

“An approved note, due October 1, 1893, $52.50, with interest at 7 per cent. Said notes to be made payable to the order of D. M. Osborne & Co., and to bear interest from the date of the delivery of the machine.

“ This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add too, abridge, or change in any manner:

“ ‘ All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty/

“This order is signed by me in duplicate.

“Harvey Baker.

“ Order taken by Jacob Bosenbrook, Agent.”

The defendant pleaded the general issue, and gave notice—

1. That the machine did not fill the warranty.

2. That, at the solicitation of the agent of the plaintiff, he took the machine on trial, with the express understanding and agreement of the plaintiff that if, upon trial, said machine did not work satisfactorily to the defendant, he should not keep or purchase it, and that the machine, after a fair trial, did not work well, nor satisfactorily to defendant, and that consequently he did not purchase said machine.

The testimony of plaintiff showed that the machine was delivered to defendant about a week after the order was given; that defendant commenced working it; that plaintiff’s ■agent called there two or three times while it was in use, bnt defendant finally refused to settle for it, claiming that it did not work satisfactorily. It is conceded that some parts of the machine were broken, but it is contended that plaintiff’s agent went there and fixed the machine up; that it was not returned before harvest, but was kept during the whole harvest. On the part of the defendant, it is contended that the machine would not do good work; that it was not properly constructed; that, after it was discovered that the machine was defective, defendant informed plaintiff’s agent of the fact, and that he would not keep it; that a new arrangement was then entered into between plaintiff’s agent and defendant, which was, substantially, that the defendant should go on, and try the machine further, and, if it did not then work satisfactorily, that it was to be plaintiff’s machine, and not defendant’s; that this is the reason why defendant kept the machine during the .harvest. This arrangement was denied by plaintiff.

The court charged the jury substantially that if the machine did come up to the warranty they must find for plaintiff; that if, on the other hand, the machine did not comply with the warranty, and plaintiff’s agent told ■defendant to go on and use it, and if it did not work all right it was the plaintiff’s machine, and not the defendant’s, and if defendant, in reliance upon this arrangement, did not return the machine as provided in the contract, but retained and used it as directed by plaintiff’s agent, they should regard that provision of the contract as waived by plaintiff, and defendant would not be precluded from insisting upon the breach of the warranty by his failure to return the machine as provided by the contract. The jury returned a verdict in favor of defendant.

It is contended that plaintiff’s agent had no power or authority to waive the terms of the written contract, and that, though the jury might find that the subsequent-arrangement was made as claimed by defendant, yet, he having kept the machine over the harvest, he was bound •to settle for it as provided in the contract. We think the court below was correct in submitting the case to the jury, and upon the question of the second arrangement. The agent with whom the defendant dealt was Jacob Rosenbrook. It was with him that the second arrangement was made. The jury, by their verdict, have settled the issues in favor of defendant:

1. That the machine did not comply with the warranty,

2. That defendant, when he ascertained this fact, refused to keep it under the contract.

3. That Rosenbrook then persuaded defendant to retain it, and advised him that he might do so, and if he kept it beyond the harvest it would be all right, and the machine would be the plaintiff’s, and not defendant’s.

It must be conceded that if it be true that the machine did not comply with the warranty, and that this was ascertained by the defendant before the second arrangement was made, he had the right at that time, under the terms of his contract, to return the machine to Rosenbrook. In order to avoid this, Mr. Rosenbrook made a new arrangement with defendant. While the court below may not have been correct in saying that this was a waiver of the stipulation in the contract as to time of return, yet the plaintiff was in no manner injured by that ruling. The contract provided that no one had any authority to add to, abridge, or change the warranty and agreement. The defendant was not asking any change or abridgement of the warranty or agreement. He proposed to comply with the contract, and refused to keep the machine, as it did not do good work. This surrender the defendant had a right to make at that time, and, that it was not made, Mr. Rosenbrook is responsible for. He was the general agent of the company. And we regard_ the new arrangement as the one tinder which the machine was held, instead . of the written order. If the machine had been actually delivered over to Rosenbrook, it could not be contended but that would have ended the controversy. The statement that defendant would not keep it and settle for it was tantamount to a return, as it was not the fault, of defendant that it was not returned. The machine being thus held under the new arrangement, the defendant is. not bound to pay for it because he held it over the harvest.

In Snody v. Shier, 88 Mich. 304, the new arrangement, made with the plaintiffs agent was treated and held by the trial court to be a waiver of the provisions of the contract, which stipulated that “keeping the machine during harvest, whether kept in use or not, without giving-notice as above, will be deemed conclusive evidence that, the machine' fills the warranty;” and it was also held by the court that, under all the dealings with the plaintiffs, agent and the plaintiff himself, the sale was rescinded. That contract also contained the clause: “All verbal contracts must conform to the above warranty.” The judgment of the court below was affirmed.

The first question here presented is whether the machine-was so defective as not to comply with the warranty. If' so, defendant had, by the terms of the contract, the right, to turn it back to Rosenbrook. The jury, by their verdict, must have found that it was. Under the second arrangement, there can be no doubt of the right to return it after harvest, and that the retaining of it during the harvest, would not make it the property of defendant.

Judgment affirmed.

McGrath, C. J., and Montgomery, J., concurred with Long, J.

Hooker, J.

(dissenting). The defendant received a harvesting machine from the plaintiff upon a written order-for the same given by him to an agent of the plaintiff named Bosenbrook. The order was as follows:

“ ORDER, FOR OSBORNE HARVESTING MACHINE.

Dated at Concord, July 9, 1892.

“Messrs. D. M. Osborne & Co.,

“ Chicago, 111.:

“I have this day ordered of Jacob Bosenbrook, your agent, one of your machines, described as ‘Number New «Binder, 6 feet right-hand rear gear/ to be delivered at Concord, Jackson county, on or before -, 18 — , for which I agree to pay the sum of $105, and freight and charges from Chicago, 111., in manner as follows: * * *

“This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge, or change in any manner:

“‘All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the office of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty/

“This order is signed by me in duplicate.

“Harvey Baker.

“ Order taken by Jacob Bosenbrook, Agent.

“Behove this Warranty, and Give it to the Purchaser.

Warranty. This machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add to, abridge, or change it in any manner: All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from 10 to 15 acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine received back from the purchaser at the offico of the agent from whom it was purchased, and the money or notes returned. Keeping the machine during harvest, whether kept in use or not, shall be deemed conclusive evidence that the machine fills the warranty.

Order taken by Jacob Rosenbrook.

“D. M. Osborne & Oo.”

The warranty, signed by Rosenbrook, was detached and delivered to the defendant at the time the order was given. The plaintiff shipped the machine to the defendant, who received it at the depot, and some days later Rosenbrook set it up and started it. The defendant cut his entire wheat crop, of 80 acres, with this machine. The defense made was that the machine did not equal the warranty, and that the plaintiff waived its right to insist that the keeping of the machine through harvest should be deemed conclusive evidence that the machine filled the warranty. The jury returned a verdict for the defendant, and the plaintiff appealed.

Counsel for the plaintiff claims that the defendant is bound by the conditions of the purchase, as set up in the warranty, of which the defendant admits that he had notice, and that the court erred in permitting the defendant to introduce testimony of the statements of the agent, Rosenbrook, to the effect that the clause about keeping the machine through harvest might be disregarded, and in charging the jury that the alleged waiver might justify a verdict for the defendant. No testimony tending to show the authority of the plaintiff’s agent, Rosenbrook, other than the order and warranty, appears. By these it is explicitly stated that this machine is hereby purchased and sold subject to the following warranty and agreement, and no one has any authority to add too, abridge, or change it in any manner.” It also provided that “ keeping the machine diiring harvest, whether kept in use or not, shall he deemed conclusive evidence that the machine fills the warranty.” tJnder the order and warranty the machine was received, those papers constituting the contract of sale. They informed the defendant that ■the agent had no authority to change the contract, and that by keeping the machine through harvest the evidence that it filled the warranty would be conclusive. That the defendant read his warranty is apparent from his statement to Bosenbrook (testified to by defendant and his son) that he was not allowed to keep the machine through harvest without having to pay for it. Here, - then, was not only notice, but his solemn contract as to the limitations upon the authority of the agent, which he now ■seeks to avoid. In the face of this, his counsel asks us to enforce the rules applicable to general agents, which manifestly cannot be done. Nothing is clearer than the proposition that the defendant expressly contracted against waivers, and in fact any changes in the contract. In face of this, defendant admits that he not only kept the machine through harvest, but that he cut all of his wheat, ■amounting to about 80 acres, with it. His only excuse for doing this is that when he told Bosenbrook that, according to the warranty, he had no right to keep it, Bosenbrook replied:

“If it don’t work, it is no matter how much you use the machine. If it don’t work right, it is our machine, and not yours.”

It is quite probable that the failure of the machine to work satisfactorily was an annoyance to the defendant, and that the agent who sold the machine may have expressed erroneous opinions about the defendant’s rights under his contract; but, as shown, the defendant knew that the agent had no right to change the contract, and he must be supposed to have understood that it was no part of the agent’s duty to interpret and state its legal effect. It was his duty, after finding that the machine was not as warranted, to return it to the agent, at his office. Instead, he elected to finish cutting his grain, and then attempted to rescind the contract..

This case is unlike that of Snody v. Shier, 88 Mich. 304, upon which defendant’s counsel relies. There was a warranty in that case quite similar to the one under discussion. It required the purchaser to lay aside and store the machine, and redeliver it when called for by the agent of the seller, and provided that keeping the machine during harvest, whether kept in use or not, without giving the notice [i. e., of his inability to make it perform according to the warranty],” would be deemed conclusive evidence that it filled the warranty. The findings of fact showed that the notice was duly given, and that the defendant laid the machine aside, and stored it, and finished cutting his grain by hand. In short, he performed his contract, and stored the machine in his barn, with the agent’s knowledge and direction, as he might have done under the contract at any time. ■ The agent left it there, and next year tried to make it work to the defendant’s satisfaction, but failed. Counsel says that this was a waiver of the clause ■in relation to keeping through harvest, but we think that would depend upon the power of the agent. It is unimportant, however, for it is apparent that the clause referred to cut no figure in the case. The defendant had a legal right to rescind upon notice, and storing the machine. He did not keep it during harvest without notice, hence such keeping lost it conclusive effect.

We are alive to the fact that agents who sell implements may be pertinacious in their attempts to satisfy customers, •and perhaps some of them may intentionally take advantage. On the other hand, the provisions of contracts such as this may have been found necessary to protect manufacturers from unscrupulous persons who would be glad to obtain the use of machines through harvest, and return them afterwards as unsatisfactory. However these things may be, the parties have deliberately executed a contract, by which the defendant is concluded in this case.

In my opinion, the judgment should be reversed, and a new trial ordered.

Grant, J., concurred with Hooker, J.


author:
Grant, J.
      McGrath, C. J.

text:
    Johann Nieman et al. v. The Detroit Suburban Street Railway Company.

      Street railways — Location of trades — T rails — Injunction—Parties.
    1. A bill by several land-owners to restrain the construction of a street railway in an adjoining street can be maintained only upon the theory that there is some grievance common to all, resulting in a damage common to all.
    2. An ordinary electric street railway may be constructed without proceedings to condemn the right of way; citing Detroit City Railway v. Mills, 85 Mich. 634; People v. Railway Co., 92 Id. 522; Dean v. Railway Co., 93 Id. 330.
    3. There is no authority for holding that a street railway may not be laid in any part of the public highway when so authorized by the franchise under which it is constructed and operated.
    4. The use of a T rail by a street-railway company does not establish the commercial character of its road.
    Appeal from Wayne. (Donovan, J.)
    Argued October 10, 1894.
    Decided December 22, 1894.
    Bill to enjoin the construction of a street railway along a certain highway. Complainants appeal.
    Decree affirmed.
    The facts are stated in the majority opinion.

      William Look and H. F. Ghipman, for complainants.

      Oharles M. Swift, for defendant.
   Grant, J.

The defendant is organized under chapter 95 of Howell’s Statutes, known as the “Street Railway Act.” Its purpose, as declared in its articles of association, was—

“To construct * * * and operate street railways in and through the streets of the city of Detroit and of the suburbs thereof, extending through the roads and streets of the townships of Hamtramck, Greenfield, Spring-wells, Grosse Pointe, Dearborn, Ecorse, Monguagon, and the city of Wyandotte, and through the streets of the villages in said townships.”

In March, 1891, the township board of the township of Ecorse granted to it a franchise for constructing and operating such railway through the township over what is known as the “Monroe” or “River” road. The rails were to be laid flush with the surface of the street, were to conform to the grade thereof, and to be so constructed as to least inconvenience or obstruct public travel. The space between the rails was to be kept in good condition, sufficiently hard and smooth to afford good ground for wagon travel, or paved with cobble stones, or planked, or laid with crushed stone, at the option of the defendant. The track was to be laid in the center of the highway, and so as to leave a driveway .on each side at least 14 feet wide. Defendant was to be allowed to use either motor or electric power to propel its cars. It was at liberty to lay any approved street-railway rail except a T rail. In November following, the franchise was amended by the town board, permitting the company to construct its road upon the east side of the highway, the center of the railway to be within 22 feet' of the east line of said highway, and the west rail to be 11 feet east of the center of said highway, to be determined by a survey made by a ■competent engineer at the expense of the company. The ■ends of the ties projecting outside the track adjacent to ■that part of the highway used for public travel were to be filled and packed hard, flush with the top of the ties, and the center of the track between the rails was to be ballasted flush with the rails, as near as could be done without interfering with the safe running of cars. It was also permitted to use a T rail, so laid as to least inconvenience public travel; and at all road, farm, and house crossings the tracks were to be planked flush, so as to leave no obstruction to foot or wagon travel. These are all the provisions of the franchise which it is necessary to mention. The Monroe road was an ordinary country highway, with ditches on each side of that portion provided for travel. The defendant was proceeding to construct its road, when the complainants, 18 in number, filed this bill, claiming irreparable damages to their property, and praying that the defendant be enjoined from constructing it.

The bill can be maintained only upon the theory that there is some grievance common to all, resulting in a damage common to all. The bill alleges, and there is evidence tending to prove, grievances and damages special to one or more of the complainants. Such bill cannot be maintained, and we need consider only those objections to the road which are common to all. These are:

1. That the franchise confers the right to construct an ordinary commercial railway, and that it is the intention to construct such road.

2. That the operation of the railway will irreparably injure the complainants’ property.

3. That the defendant is pecuniarily irresponsible.

Upon the filing of the bill, a preliminary injunction was granted. An answer was filed denying that the defendant intended to construct a commercial railroad, or any other than an ordinary street railway, such alone as it was authorized by the law to construct, and denying fully all the material allegations of the bill. Upon filing this answer the preliminary injunction was dissolved, and the defendant proceeded to construct its road. At the time of the hearing the railroad had been constructed and operated for a considerable time. For six months it used a motor. It then changed and equipped its road with the trolley system, with electricity as the motive power, and it is now the ordinary electric street railway, such as this Court has held to be authorized by the law, and which may be constructed without proceedings to condemn the right of way. Detroit City Railway v. Mills, 85 Mich. 634; Dean v. Railway Co., 93 Id. 330; People v. Railway Co., 92 Id. 522.

The right to grant this franchise for the construction of a- street railway such as this is was conceded by counsel for the complainants upon the argument. Their chief complaint is that it should have been laid in the center of the highway. We are cited to no authority holding that such railroad may not be located in any part of the the public highway. It seems clear that a road so located would better convenience public travel on a country highway than if placed in the center of the traveled portion thereof. It is not seriously contended that this is not so, but it is insisted that it is so near the frontage of some of the complainants’ premises as to interfere with the use thereof. The track may be so near the buildings of some of the complainants as to entitle them to a remedy, provided that they themselves have not encroached upon the public highway. The bill alleges that this highway varies in width from 44 to 66 feet. It is contended by the defendant that the road was laid out to a uniform width of 66 feet, and that such complainants have unlawfully encroached upon. it. We pass no opinion upon this, as it is ■a grievance common to but few of the complainants. The franchise specially and particularly provided for the construction of the road so as to afford proper ingress and egress to the owners of adjoining lands. Where the highway is 66 feet wide, ample space is left between the tracks and the line of land abutting on the highway for the construction of sidewalks and all other necessary and convenient purposes. This is a compliance with the law, because no one is deprived of the use of the highway, or of ingress and egress to his property.

The use of a T rail does not establish the commercial character of the road. The evidence shows that this rail can be used without serious trouble and inconvenience.

The proofs establish these facts:

1. The substantial compliance with the provisions of the franchise. The road is constructed on the grade of and flush with the highway, and was so done under the direction of the highway commissioner. The center between the tracks is filled as required.

2. The construction of this road is a great convenience to the public.

3. It has enhanced the value to a very great extent of the lands situated along its line, including those of the complainants.

4. Its removal or disuse would result in irreparable injury to the defendant and its assignees, which now owns and operates it.

It is claimed that this case is ruled by Nichols v. Railway Co., 87 Mich. 361. The distinction is so apparent, and will be so readily seen upon a comparison of the facts of the two cases, that we refrain from comment upon them.

The decree is affirmed, with costs.

Long, Montgomery, and Hooker, JJ., concurred with Grant, J.

McGrath, C. J.

(dissenting). I cannot concur with my associates in the conclusion reached herein. Defendant’s track is supposed to occupy a portion of the roadbed ordinarily devoted to travel. If so constructed as to ■exclude the public froin that part of the roadway used by ■ it, complainants have a right to complain. Street-railway use of streets or highways cannot be allowed to be exclusive. This railway is constructed upon a sandy roadbed, with a T rail. One of defendant’s witnesses describes it .as “a very deep, sandy road.” The roadbed was cut in some places and in others filled. It is conceded that at certain points the top of the rail is below the surface of ■other portions of the road, so that a «rain washes the sand upon the rail; and, as one of defendant’s witnesses says, the rails have to be brushed off in order that the electric ■connection may be made.

I think that it is the duty of defendant to restore the road to its former condition for the purpose of travel, and to so construct its road that the public shall not be excluded from that part of the highway. The only •difference between the surface of this road as constructed .at any point and that of the ordinary commercial road is that the space between the rails and immediately outside ■of the tracks is filled in, not with gravel or cinders or some substance that will carry wagon wheels, but with sand, through which the wheels plough until they reach the rails. Under the statute requiring, railroads to restore ■the highway, the space between the tracks, and for a .short distance outside the tracks, is planked or paved, so .as to admit of free passage over the tracks. It is contemplated that the portion of streets and highways occupied by street-railway tracks is to be used by the public with the other portions of the highway. I do not think that defendant .should be allowed to maintain or operate ■the road until this objectionable feature has been removed.


author: McGrath, O. J.

text:
    Peter Riedel v. Moran, Fitzsimons Company, Limited.

      Master and servant — Negligence—Independent contractor.

    Plaintiff was struck by a barrel of sugar, which was suddenly and without warning rolled out of the defendant’s warehouse upon the sidewalk in front by a truckman in the employ and under the control of a cartage company, which was under contract with the defendant to furnish it trucks, teams, and men to-do all its cartage at a certain price per year. The defendant simply pointed out the goods that were to be carted, and their-destination, and did.not control the manner in which they should be transferred to the trucks, nor the route that should, be taken in taking them to their destination. And, in affirming the action of the trial court in directing a verdict in. favor of the defendant, it is held that the case is governed by DeForrest v. Wright, 3 Mich. 868, in which the question is-well considered, the authorities discussed, and the correct rule-adopted.
    Error to Wayne. (Lillibridge, J.),
    Argued October 10, 1894.
    Decided December 22, 1894.
    Negligence case. Plaintiff brings error.
    Affirmed.
    The-facts are stated in the opinion.

      Lemuel H. Foster (Charles Flowers, of counsel), for-appellant.

      John G. Hawley, for defendant.
   McGrath, O. J.

On May 26, 1892, plaintiff was passing defendant’s place of business on Woodward avenue, city of Detroit, when he was struck by a barrel of sugar,, which was suddenly and without warning or notice rolled out of the defendant’s store upon the sidewalk in front. Plaintiff was seriously injured, and brings this action for-damages thus sustained.

Defendant’s warehouse has two doors opening on Woodward avenue. Plaintiff testifies that, as he passed the lower door, he saw men handling boxes, and, after he got past them, the sidewalk was clear; but,' just as he was opposite the other door, he was struck with this barrel. Witness saw Mr. Moran, the president of the defendant company, standing in the door, and he gave no warning until just as the barrel struck plaintiff, when he called out, “Where are your eyes?” The barrel was rolled out by one George Lutz, who was a truckman in the employ of the Sheddon Cartage Company, which company was under contract with the defendant company to furnish it trucks and teams and men to do all its cartage at a certain price per year. There was no stipulation in the contract for any particular men. The defendant did not hire the men, and had no power to discharge them. If the work was not satisfactorily done, defendant looked to the Sheddon Cartage Company under its contract. On the trial, after the testimony was in, the court directed a verdict for the defendant.

Plaintiff’s contention in the court below was, and the same claim is made here, that the testimony showed that defendant gave directions to the men how to handle the freight going out of the store for shipment, and consequently the- men were under the immediate charge and control of the defendant, and for any acts of negligence of the men the defendant became liable. The testimony does not support plaintiff’s contention. The defendant simply pointed out the goods that were to be carted, and their destination. It did not control the manner in which they should be transferred to the trucks, nor the route that should be taken in taking them to their destination. The case is governed by De Forrest v. Wright, 2 Mich. 368, in which the question is well considered, the authorities discussed, and a rule adopted which we think is the correct one. ,

The judgment is affirmed.

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


text:
    Timothy McMonegal v. William L. Wilson et al.

      Mechanic's lien — Sufficiency of affidavit — Excessive claim — Homestead.

    1. The affidavit of a claimant under the mechanic’s lien law of 1885 (Act No. 216) averred that the claimant furnished certain labor and material in and for building a house situated on a designated lot, in pursuance of a contract made with the owner of the lot, naming him; that there was due to the claimant therefor, from said owner, over and above all legal set-offs, the sum of $200, balance due on such contract, and the sum of $395, making the total sum of $595, for the value of extras done on said house under such contract, and damages suffered by deponent by reason of the failure of the owner to comply with said contract. And it is held that the affidavit leaves no room to infer that the claimant did not assert himself to be the principal contractor.
    2. The statement of claim required to be filed with the register of deeds was verified by two affidavits, one preceding and the other following an account of the items of said claim.' The first affidavit was sufficient in form, and was properly verified. The second affidavit was sworn to before an attorney at law, who was a member of the firm who acted as claimant’s solicitors in the attempted enforcement of the lien. And it is held that this fact did not invalidate the first affidavit, even if the second affidavit should be treated as void because sworn to before said attorney.
    3. The lien of a mechanic will not be invalidated by reason of his claiming too great a sum in his statement of claim, unless the misstatement is intentional.

      ■4. At the time of the making of a contract for building a house upon a lot owned by the contractee, and of the commencement of work under said contract, the contractee was the owner and occupant of a house in another portion of the same city. And it is held that he cannot avoid the lien of the contractor on the ground that the premises upon which the house was erected were his homestead, and the contract was not signed by his wife.

    Appeal from St. Clair. (Beach, J., presiding.)
    Argued October 12, 1894.
    Decided December 22, 1894.
    Bill to enforce a mechanic’s lien. Defendants Wilson appeal.
    Decree affirmed.
    The facts are stated in the ■opinion.

      Atkinson & Wolcott, for complainant.

      James L. Coe, for appellants.

       For cases bearing upon the 'question of the exemption from •execution of unoccupied lands because of their intended occupancy by the owner as a homestead, see Kaeding v. Joachimsthal, 98 Mich. 80, and note; Myers v. Weaver, 101 Id. 477.

   Montgomery, J.

This is a proceeding to enforce a •mechanic’s lien. The contract was made August 22, 1891, —prior to the date when the law of 1891 took effect. The case is therefore governed by the earlier statutes. Notice of lien was filed on the 25th of January, 1892. The complainant was granted a decree of $299.93 by the •court below, and defendants appeal.

Numerous objections are made to the proceedings. It is insisted:

1. That the affidavit is insufficient.

2. That complainant had debarred himself by claiming •an excessive lien.

3. That the premises are a homestead, that the defendant Wilson was a married man, and the contract was not .signed by his wife.

4. That the contract was not completed as per agreement, and that complainant has not, therefore, any standing on the merits of the case.

As defendants' counsel concedes that under the law of' 1885 no notice by a principal contractor was necessary (Kirkwood v. Hoxie, 95 Mich. 62; Lamont v. Le Fevre, 96 Id. 175), we are at a loss to understand the force of his objections to the form of the notice given.

It is said that the affidavit purports to be made by a-material man, and not by a principal contractor. The-affidavit, however, contains the following averments, which are inconsistent with defendants' claim, and wholly consistent with the bill of complaint:

££ That he [complainant] furnished certain labor and material in and for building a house situated on the following described land, to wit, * * * in pursuance of a. certain contract with William L. Wilson, the owner of said lot, * * * and that there is justly and truly due to-deponent therefor, from the said William L. Wilson, over and above all legal set-offs, the sum of $200, balance due on such contract, and the sum of $395, making the total sum of $595, for the value of extras done on said house-under such contract, and damages suffered by this deponent by reason of the said William L. Wilson failing to-comply with such contract.''

This affidavit leaves no room to infer 'that complainant, does not assert himself to be the principal contractor.

It is also claimed that the affidavit is void because sworn to before one of complainant’s solicitors. But the affidavit, from which we have quoted, and which is sufficient in form, was sworn to before another notary; and while the-affidavit which is attached was sworn to before Mr. Wolcott, who afterwards became one of complainant's solicitors, this does nob invalidate the first affidavit, even if we should treat the second affidavit as void.

It is also claimed that the complainant claimed more-than is found due him, and that this invalidates the lien-Included in the claim was a charge for extras, and, it would appear, $225 for damages for failing to furnish plans, and for carrying away plans, etc. On the face of the claim this last item was shown to be a mere estimate. The circuit judge found, as to these claims, as follows:

“The contention that the claim and statement are greater than any true amount which can be found due rests principally upon the claim for damages. The mechanic’s lien law does not seem to contemplate liens for anything except-material and labor, and these claims for damages cannot be considered, but it does -not appear that they were willfully or fraudulently made. The claim for-extras, while it must-be reduced, cannot be said to have been willfully or fraudulently made. It requires an examination and construction, of the specifications to determine how much of the claim for extras shall be allowed or disallowed, and the testimony of witnesses was also required upon this question; and, while the court disallows a part of such claim, I cannot-say that the claims for items and extras were not made in. good faith.”

Defendants rely upon Gibbs v. Hanchette, 90 Mich. 657. But in that case the complainants had every means of' knowing that the bill appended to their notice was excessive, — in fact, they had rendered a bill to the owner, with the items deducted, — and it was said: “It cannot be seriously contended that these complainants did not know that the claim, was too large.” But it has been frequently held that, where the person filing the certificate claims too great a sum, it will not invalidate his lien, unless his misstatement was intentional. See Phil. Mech. Liens, § 355; Lamont v. Le Fevre, 96 Mich. 176, 177; Allen v. Smelting Co., 73 Mo. 693; Hubbard v. Brown, 8 Allen, 593; Nichols v. Culver, 51 Conn. 180; Kiel v. Carll, 51 Id. 440.

As to the claim that the premises were a homestead at-the time that the contract was made and the work commenced, the fact appears that defendant was occupying a-house in another part of the city, which he owned. The* statute, in .terms, provides that the contractor shall have a lien upon the entire interest of such owner at the time work was commenced or materials begun to be furnished. Laws of 1885, p, 294. Whatever might be said if, at the time this lot was purchased and the labor commenced, the defendant had been without a homestead elsewhere, and the testimony showed that the lot in question was purchased for a homestead, no such liberality of construction of the homestead law is permissible as will entitle the party to two homesteads at the same time, — the one actual and the other potential.

On the merits of the case, an examination of the testimony satisfies us that the circuit judge was justified in reaching the conclusion which he did, and that, by reason cf the unjust and unreasonable demands of defendant, complainant cannot be said to be in fault for not completing the building in some minor details.-

The decree will be affirmed, with costs.

The other Justices concurred.

       Act No. 179, Laws of 1891.


text:
    Albert Tyler and Louis Hippach v. John K. Stack.

      Order — Acceptance—Mechanic's lien — Payment.
    1. A contractor gave an order on the contractee, for whom he was erecting a store building, for the payment to a subcontractor, who was to furnish the glass for the building, of the price of the glass when the same was duly placed and accepted in the building. The contractee wrote upon the order, “ Accepted as per above order, when A. H. Butts and William Wilson lien or garnishee is satisfied.” And it is held that the acceptance is subject to whatever sums the contractee is required to pay in order to extinguish the liens of the parties named therein.
    2. In arriving at the amount due on the order, the entire sum which the orderee is obliged to pay to satisfy the liens of said parties should be deducted from the amount of the order, notwithstanding, by reason of the insufficiency of the amount due the contractor to satisfy all liens upon the premises, the parties mentioned in the order are obliged, under the mechanic’s lien law, to pro rate with subsequent lien-holders.
    Error to Delta. (Stone, J.)
    Argued October 11, 1894.
    Decided December 22, 1894.

      Assumpsit. Plaintiffs bring error.
    Affirmed.
    The facta are stated in the opinion.

      Sawyer, Waite & Waite, for appellants.

      Mead & Jennings, for defendant.
   Montgomery, J.

John K. Stack was the owner .of a. lot in Escanaba, and made a contract with one Le Clair to furnish the material and build a brick store building. During the progress of the work, Le Clair gave to one J. M. Lebeau, plain tiff sJ assignor, an order as follows:

“Escanaba, Mich., October 4, 1890.

“John K. Stack, Esq.:

“You will please pay to J. M. Lebean the sum of six hundred forty-nine and 34-100 dollars ($649.34) for plate glass, when same is duly placed and accepted in your building, and charge the same to my account.

“David Le Odair,

“ Per J. A. Sloane, Attorney.”

Upon this order being presented to defendant, he wrote upon the same the following acceptance:

“Accepted as per above order, when A. H. Butts and ■William Wilson lien or garnishee is satisfied.

“J. K. Stack.”

This order was indorsed to plaintiffs, and they bring suit upon it.

It appears from the testimony that, upon receipt of this •order, Lebeau proceeded to furnish material to the amount •of the order, which was placed in the building; but that •defendant refused payment, on the ground that the Butts lien had not been satisfied. The evidence on the trial •showed that the Butts lien was foreclosed, and a foreclosure •decree taken, in which Butts was decreed a lien of $171.76, besides costs, which were taxed at the sum of $40.05, making a total of $211.81. The Wilson lien appears to have been satisfied, and is not in controversy here. On the trial, defendant was permitted to introduce testimony to show that there was due on the Butts lien $515.29; but that as there were other subsequent lien-holders, namely, •one Wallace and the Nicollett Sash & Door Company, and as, under the statute, these liens were deemed simultaneous mortgages, the total of which could not exceed the amount ■owing by Stack to the contractor, the amount was fixed in the decree at $171.76, as showing the relative portion of the whole which Butts in the lien suit was entitled to recover. The circuit judge admitted testimony to explain the ambiguity, and, upon this testimony, construed the •order and acceptance as constituting a contract on the part •of defendant to pay Lebeau or order the amount of the order after deducting the Butts lien and the Wilson lien, if any. The court took the view that the entire amount of the Butts lien was the basis, and subtracted that from the amount of the order, and gave judgment for the balance, $94, with interest. The plaintiffs appeal.

We think the circuit judge was right in admitting testimony to explain the ambiguity, and in the construction placed upon the order. It is evident that the parties intended that the acceptance should be subject to whatever sums the defendant was required to pay in order to extinguish the Butts and Wilson liéns. The plaintiffs’ contention is that the acceptance was only intended to postpone the time of the payment of the order, but we think the testimony makes it clear that it is not open to that ■construction. Ferguson v. Davis, 65 Mich. 677; Lynch v. Henry, 75 Wis. 631.

Was the oral testimony to show that the Butts lien was 'in fact $515.29 admissible, and did the court err in holding that the entire amount of the lien, although under the statute Butts was compelled to share it with the subsequent lien-holders, should be deducted from the amount ■of the order? In the decree fixing the Butts lien, the •court found that there was due from Le Clair, the contractor, to Butts, $1,500 oi*' more. Upon this state of facts, it is clear that Butts was entitled to a lien for all that remained unpaid by defendant Stack after deducting the expense of completing the building. But plaintiffs ■contend that the amount for which the decree was awarded was in fact $171.76 and costs, and that, therefore, this is .-all that the defendant can assert that he was entitled to deduct to pay the Butts lien. But it is clear that, as against defendant, the subsequent lienors could not establish a claim except by the right of priority derived through .Butts. They claimed to be entitled to be paid out of the .sum for which it was found that the land was subject to . a lien, pro rata with Butts, on the ground that, under the ..statute, their several liens were treated as simultaneous mortgages. While, as before stated, they were not, as .against the rights of defendant, Stack, entitled to a lien, the court, in the chancery proceeding, held that, as between themselves and Butts, he (Butts) could not claim priority over them, and that they were entitled to partici-pate. This was, in effect, participating in the Butts lien. ‘The defendant could not have discharged the Butts lien before decree without payment of the full sum of $515.29,. and, by the decrees, the Butts lien became merged in three-decrees, not in one, and it could not be discharged without payment of a like amount. The fact that Butts was-compelled to pro rate with subsequent lienors does not-affect the right of defendant to deduct the amount paid. The evidence was not offered to impeach the judgments or-decrees, but to show the basis of the decrees in favor of Wallace and the Nicollett Sash & Door Company. For this purpose the testimony was admissible. See Merchants’ Bank v. Schulenburg, 48 Mich. 102; Black v. Miller, 75 Id. 323; and Hewett v. Chapman, 49 Id. 4.

We agree with the circuit judge that there was no evidence tending to show that defendant ever purchased the-property of Lebeau, and agreed to pay for it, except as the agreement was embodied in the acceptance of the order.

The judgment will be affirmed.

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

       Le Clair, soon after giving the order, abandoned his contract, -and Stack was obliged to complete the building.


author: Grant, J. McGrath, C. J.

text:
    William H. Bowdle v. The Detroit Street Railway Company.

      Witnesses — Mental competency — Instructions to jury — Husband and wife — Loss of services — Damages—Negligence— Proximate cause.

      1. Upon objection being made that a witness is mentally incompetent to testify, it is the duty of the court to examine the-witness, and such testimony as is proper in regard to his-mental condition, and determine the question of his competency.

      2. In a suit by a husband to recover damages for the loss of the services and society of his wife, who was injured while alighting from one of the defendant’s cars, the wife was sworn as a witness for the plaintiff, without objection as to her mental competency to testify. The question was not raised while she was testifying, but during the trial testimony on that subject was introduced by the defendant. The court instructed the jury that the latter testimony was received for the purpose of showing them, or allowing them to judge, as to how long the plaintiff might be deprived of the society of his wife, or of her labor as a wife, in the discharge of her domestic duties, and for no other purpose; that they were at liberty to investigate all the proof offered on the subject; that, if they should find that at the time of giving her testimony the wife was without sufficient mental capacity to understand what was going on, they were not at liberty to consider her testimony at all, but if they should conclude that she was sane, and capable of knowing what she was doing and saying, and of remembering what transpired at the time of the accident, they should consider her testimony, and might also consider it in connection ' with the permanent character of the injury, and in weighing the testimony of the expert witnesses in the case, who, as the evidence tended to show, had testified on a previous occasion that the wife would be permanently insane. And it is held that there was no error in the instruction.
    3. The declaration averred that, because of the injury sustained, the plaintiff had since the accident been deprived, and would during the life of his wife be deprived, of the comfort, fellowship, society, aid, and assistance of his wife in his domestic affairs. And it is held that the plaintiff was properly limited in his recovery to the value of such services as the wife would have been likely to render in the discharge of her domestic duties.
    4. It appeared from the testimony that, after receiving the injury, plaintiff’s wife lived with her mother; that plaintiff was not living in the same house, but their separation, so far as the record showed, was not the result of domestic troubles, nor was it an abandonment, but by reason of the inability of the husband to get work in the city where his wife’s mother lived, and his consequent absence to find work elsewhere. And it is held that if, because of such injury, the plaintiff was not able to support his wife in her then condition, that fact would not defeat recovery for the loss of her services.
    5. Where, in an action for injuries sustained while alighting from a street car, the grounds of negligence alleged are that the car was started while the passenger was standing on the steps, and that a chain with a hook attached, which caught her dress and dragged her with the car, was permitted to hang near the steps, it is error to instruct the jury that the defendant is not liable if the hook was but recently displaced by a passenger, without further directing them that they must also find the hook to have been the sole or proximate cause of the accident in order to exonerate the defendant.
    Error to Wayne. (Frazer, J.)
    Argued October 12, 1894.
    Decided December 22, 1894.
    Case. Plaintiff brings error.
    Keversed.
    The facts are stated in the opinions.

      Moore & Moore, for appellant.

      Sidney T. Miller (.Brennan & Donnelly, of counsel), for defendant.
   Grant, J.

1. The principal question in this case arises upon the following instruction of the court to the jury:

“I allowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been offered to you as to whether this woman is sane or insane. I charge you that, if you shall find that now this woman is without sufficient mental capacity to understand what is going on, you are not at liberty then to consider her testimony in this case at all, for you are only at liberty to consider the testimony of a person who is compos mentis, or of sound mind; for a person who is without sound mind, capable of remembering or giving testimony in a case, is not to be allowed in a court of justice. One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy; but if you shall have arrived at the conclusion that she is sane now and capable of knowing what she is doing and saying, and of remembering what transpired at the time this accident occurred or this injury happened, then you are to consider her testimony, and you are at liberty to consider it in connection with the permanent character of this injury, and also in weighing the testimony of the expert witnesses who have been produced in this case, who, there is some evidence to show, testified on a previous occasion that this woman would be permanently insane.”

No question was raised as to the competency of this witness at the time she was sworn, nor at any time during the giving of her testimony. One of the grounds upon which recovery was sought by the declaration is that she had become “ completely and permanently insane.” If such preliminary question had been raised, it would then have been the duty of the court to examine her, and such testimony as was proper in regard to her condition, and determine whether she was competent to be sworn. Some authorities have said that the preliminary question in such cases is, “Is the witness capable when sworn of understanding the nature of an oath?” To this some authorities add that he must be able to understand the subject with respect to which he is required to testify. When this preliminary question is passed, and the court has determined that the witness is competent to testify, the entire controversy is then transferred to the jury. The court may not say to the jury that the witness is or is not entitled to credence. The jury may reject the testimony entirely or may attach whatever weight to it they choose. We are cited to no authority which holds that it is incorrect to instruct the jury that, if they shall determine from the evidence that a witness is so insane as not to comprehend or be able to understand what she is doing and saying, and to remember what has transpired in regard to the subject about which she is testifying, they should reject her testimony altogether. Such holding, in my judgment, would be a clear usurpation of the province of the jury. It would, in effect, be saying to them, “The witness is entitled to some credence, and it is for you to say how much.” ' The preliminary decision of the court means nothing of the kind. The court simply decides that the witness is competent to testify, upon testimony not introduced for the consideration of the jury, but of the court. Afterwards, as in this case, testimony is introduced as to her mental condition, and her own testimony and demeanor and appearance are before the jury, and the question of her competency must then be determined by them when the evidence is conflicting.

It is entirely clear that one clause of the instruction, standing alone, would be error, viz.:

“ One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy.”

The language following, however, restricts the above, and clearly conveys the meaning of the learned circuit judge, viz., that if she was then capable of knowing what she was doing and saying, and remembering what transpired at the time of the accident, then the jury were to consider her testimony. In determining the question the jury were further very properly told that they must consider all the testimony in the case, and, if they found that she was capable of understanding, they should give her testimony due weight; if they found, on the contrary, that she was not, then they should reject it. I think this states the true rule.

In Reg. v. Hill, 5 Eng. Law & Eq. 547, speaking upon this precise question, the court said:

“If his evidence had, in the course of the trial, been so tainted with insanity as to be unworthy of credit, it was the proper function of the jury to disregard it and not to act upon it.”

This is quoted in Coleman v. Com., 25 Grat. 876, and is recognized as the sound and reasonable rule. This is the rule to be deduced from the language of the court in Reg. v. Hill, 5 Cox, Cr. Cas. 259. In that case Lord Campbell, O. J., says:

The lunatic may be examined himself that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actually is; still, if he can stand the test proposed, -the jury must determine all the rest.”

To the same effect are City of Gainesville v. Caldwell, 81 Ga. 76, and Worthington v. Mencer, 96 Ala. 310.

The case of Mead v. Harris, 101 Mich. 585, is not in conflict with this rule. In that case the preliminary question was raised before the witness was sworn, and the court said that he would instruct the jury that, if they found that the witness was mentally incompetent, they should consider her testimony of no value; and the decision went no further than to hold that it was the duty of the court to determine, in the first instance, whether the witness was competent to testify, before the question could be submitted to the jury. I -do not wish to be understood as holding that it is competent to introduce testimony of insanity to impeach the credibility of a witness. That question is not involved. I find no error in this instruction of the court.

2. Two grounds of negligence were alleged:

(1) That the car was negligently started while plaintiff's wife was standing on the last step.

(2) That the chain with a hook at the end was negligently permitted to hang from' the platform near the steps.

The court instructed the jury that, if the hook was in the proper place when the car left the city hall, and was displaced by Mrs. Bowdle or some other passenger, and by hanging caught Mrs. Bowdle’s dress, then she could not recover. This charge would have been proper if the court had further instructed the jury that the defendant would not be liable if the hook was the sole or proximate cause of the accident. But the instruction left out the other1 negligent act, viz., the starting of the car while she was still standing on the steps. Possibly the hook might not have caught her dress if she had alighted upon the street before the car started. If the starting of the car was the cause of her falling and of her being caught by the hook, it would be no defense to the action that the defendant was not responsible for the position of the hook and chain.

Upon the other questions involved we agree with the Chief Justice.

For this error the judgment must be reversed, and a new trial ordered.

Long and Montgomery, JJ„ concurred with Grant, J. Hooker, J., concurred in the result.

McGrath, C. J.

A husband sues for loss of his wife’s, services, by reason of an injury received April 1, 1891, while alighting from one of defendant’s cars, and for expenses incurred by him in her treatment and care. In his declaration he avers that, solely because of the injuries, received by his said wife as aforesaid, he has continually, since said accident up to the present time, been deprived, and will for all future time during the life of his said wife be deprived, of the comfort, fellowship, society, aid, and assistance of his said wife in his domestic affairs, which he, said plaintiff, during all that time ought to have-had, and ought to have and otherwise might have had and should have.

The wife testified upon the trial that, after the street car had stopped, she attempted to alight, when the car started suddenly, throwing her to the ground, and that the hook of the chain used to cut off access to the car, and which hung from the dashboard, caught in her clothing, and she was dragged some distance. The fact that the hook caught in her clothing, and that she was dragged some distance, was not disputed. There was, however, testimony tending to show that the car was not started until she had alighted, and that the hook caught in her clothing after she had reached the ground. The wife was the only witness who testified to the sudden starting of the car while she was in the act of alighting. Her physicians testified that a miscarriage followed the injury, and that she was deranged at times during her illness; ■ and one of plaintiff’s witnesses who had testified that he had several times, within a few months after the accident, examined her with reference to her mental condition, and had found her deranged, on cross-examination testified as follows:

“ Q. Did you see her on the stand this morning?

“A. I saw her about three minutes.

Q. Did you think that she was insane this morning ?

“A. I did, most certainly.

“ Q. You would not believe her testimony?

“A. I would not.”

Complaint is made of that portion of the charge to the jury wherein the court said:

“You are at liberty to consider the permanent character of this injury or its lack of permanency. I allowed this testimony to be introduced as to the mental condition of this woman for the purpose of showing you, or allowing you to judge, as to how long her husband might be deprived of her society, or of her labor as a wife, in the discharge of her domestic duties in the household, and for no other purpose. You are at liberty to investigate all the proof in this case that has been offered to you as to whether this woman is sane or insane. I charge you that, if you shall find that now this woman is without sufficient mental capacity to understand what is going on, you are not at liberty then to consider her testimony in this case at all, for you are only at liberty to consider the testimony of a person who is compos mentis, or of sound mind; for a person who is without sound mind, capable of remembering or giving testimony in a case, is not to be allowed in a court of justice. One of the physicians here testified that she was insane now. If you shall come to that conclusion, then you are not at liberty to regard her testimony at all in this controversy.”

This was error. We held in Mead v. Harris, 101 Mich. 585, that the question of the competency of a witness is one for the court, and also that, if a witness who is mentally weak can give lucid, connected testimony, the question of the weight of such evidence is for the jury, under proper instructions. The witness in the present case was examined at length, and told when she boarded the car, who accompanied her, how she notified the conductor where she wanted to get off, and gave a lucid and connected story. Indeed, she is corroborated in her story throughout, except as to the sudden starting of the car before she had reached the ground. The rule laid down in Mead v. Harris, supra, is sustained by a conclusive array of authority. Tayl. Ev. (8th Eng. ed.) §§ 23, 1375; 1 Rice, Ev. p. 532; Coleman v. Com., 25 Grat. 865; District of Columbia v. Armes, 107 U. S. 519. Mr. Wharton says:

“It is now settled that in all cases either lunatic or idiot may be received, if, in the discretion of the court, he appears to have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a ■correct answer to the questions put. The question of ■competency is to be determined by the judge trying the case, upon the examination of the witness himself, or upon the testimony of third persons.” 1 Whart. Crim. Law (5th ed.) § 752, cited in Coleman’s case, supra. See, also, 1 Whart. & S. Med. Jur. § 242.

The subject is ably discussed, in the last case cited, by Mr. Justice Field, who cites an English case (Reg. v. Hill, 5 Cox, Cr. Cas. 259), where a patient in a lunatic asylum was held a competent witness.

In Hartford Ins. Co. v. Reynolds, 36 Mich. 502, the inadmissibility of the testimony was predicated upon professional relationship. The fact of the relationship was disputed. The trial court excluded some matters and received others. This Court held that while, on an intricate question of fact, the jury might properly be consulted, there was room for the claim that all of the intercourse was not confidential, and that too large a range of exclusion was left for the jury. In the present case the question was not an intricate one. The rule is that the person affected with insanity is admissible as a witness if he have sufficient understanding to comprehend the obligation of an oath, and be capable of giving a lucid account of such matters as are in dispute. This question is to be determined in the main upon an examination of the witness when produced.

The court was, we think, right in limiting the recovery to the value of such services as the wife would be likely to have rendered in the discharge of her domestic duties. The declaration covered such services only.

The court erred in instructing .the jury that—

“The jury must take into consideration the domestic relations of the plaintijf and his wife, and the fact that he is not able to support her, and that he does not live with her. The reason assigned that he does not live with her is that he cannot support her; and that is all the evidence on that subject that I know of. She said that, if he could support her, she would live with him; but they had not lived together for a certain time.”

There was some testimony tending to show that, for a short time after the marriage of plaintiff and his wife, he was in Colorado, but there was nothing to show that this separation was because of any domestic infelicity. It seems that after the injury the wife was taken to her mother's.. On cross-examination she says:

“Q. After the injury you stayed and lived with your mother. How long was he away from you after the injury, —after this accident?

“A. I don't know, I am sure. I guess he came to see-me when I was sick. I can't say.

“Q. Are you living together now?

“A. If he could support me; but he is sick, and not. able to support me.

“Q. So you are not living in the same house?

“A. No, sir; he was away trying to get work. There is. no work in Detroit for him, and he cannot get it to do.

“Q. This was in 1891. Have you lived with him at all since that time in the same house?

“A. He came up to my house — my mother's house— when I was sick, so they tell me.

“Q. But as a matter of fact you have not lived together in the same house since 1891?

“A. I believe not; not since they took me from him to-their home. He came there. That was his home as well as mine. We boarded there.”

If because of the injury the plaintiff was not able to-support his wife in her then condition, the fact would not-defeat recovery for loss of her services. If he was sick and unable to support her, and she had been well and assisted in his care and support, that fact certainly would not take away the right to recover. Their separation, so-far as this record shows, was hot the result of domestic-troubles, nor was it an abandonment.

The court gave the following instruction:

“If the jury believe that the hook was in the proper place when the car left the hity hall, and that it was displaced either by Mrs. Bowdle or by some other passenger, and by hanging caught Mrs. Bowdle's dress, then the plaintiff cannot recover, and your verdict must be for the defendant; that is, if this was done without any negligence on the part of the street-railway company, or any contributory negligence on the part of.Mrs. Bowdle.”

This instruction, and other portions of the charge,. practically took from, the jury the question of the negligent starting of the car before the injured party had alighted, and the error is not cured by other portions of the charge.

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

       The precise language quoted is from the case as reported in 20 L. J. (N. S.) 226.