author: Hooker, J. Moore, J.

text:
    SOMERVILLE v. WABASH RAILROAD CO.
    Principal and Agent—Unauthorized Act—Implied Ratification.
    A railroad company will not be field to fiave ratified tfie unauthorized hiring, by one of its local freight agents, of a person to assist in the detection of a thief who had stolen property in the hands of the company for transportation, by reason of the use by its detectives of information furnished by such person, leading to the arrest of the offender and the recovery of the property; such fact not constituting such an appropriation of the services of such person as to impose an obligation to pay for the same. Moore and Montgomery, JJ., dissenting.

      Error to Wayne; Hosmer, J.
    Submitted January 10, 1896.
    Decided May 19, 1896.

      Assumpsit by William Somerville against the Wabash Railroad Company for services rendered as detective. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Alfred Russell, for appellant.

      John Or. Hawley, for appellee.
   Hooker, J.

In the above cause the plaintiff relied upon a contract for detective services made with Tozer, a local freight agent, and recognition and co-operation by a special detective of the Wabash Railroad Company in detecting a thief who had stolen property in the hands of the company for transportation. This, and a failure to receive an answer to a letter, written by his attorney to the superintendent of the company, stating his employment by Tozer, the rendition of the service, and a demand for payment, constitute all the evidence upon which the verdict was based. It appears that neither Tozer nor Sollitt had authority to employ the plaintiff by virtue of their respective offices, and there was no evidence that they had special authority. The service performed appears to have been a communication of the fact that if the detectives of the road would find the owner of a certain white-faced horse they would find the thief, and that from this information the thief was apprehended and convicted.

It is a general rule that agency cannot be proved by the acts of the alleged agent, and there is nothing to indicate a ratification. If it is true that the detectives of the company made use of the information to arrest and convict the offender and to recover the property, which they succeeded in doing, those facts constitute no such appropriation of the services of the plaintiff as to impose an obligation to pay for his services. To hold otherwise would be to say that the act of the agent in availing himself of the information was more potent in the way of imposing an. obligation upon his master than his express promise would have been.

I think the judgment should be reversed, and a new trial, ordered. It is so ordered.

Long, C. J., and Grant, J., concurred with Hooker, J.

Moore, J.

(dissenting). The defendant, for a considerable time, had been suffering from the depredations of thieves. Plaintiff was a detective of 20 years’ experience, employed in that capacity by the Lake Shore Railway Company, said employment having extended over a period of 5 years. Somerville heard of the losses the Wabash Company was suffering, and went to the company’s local freight agent, one Tozer, and offered his services in securing the apprehension and arrest of the thieves. Tozer inquired what plaintiff’s services were likely to be worth, and was told that a fair estimate of them could not be made at that time, and it was agreed that the best way was to wait until the services had been rendered, and -estimate their value according to their degree of success. Tozer, however, told Somerville that the Wabash Company would pay him any reasonable claim if he should succeed in breaking up the gang of thieves. A day or two after this conversation, Somerville received a dispatch from Tozer, asking him to meet Mr. Ellis, a Wabash detective, and to co-operate with him. Somerville and Ellis met accordingly, and went to Tozer’s office, where the matter of 13 sacks of coffee, recently stolen, was talked over. The following day Ellis told Somerville that he had sent for Mr. Sollitt, another Wabash detective, who was Ellis’ superior, but not the head of the Wabash detective system; that position being held by Mr. Furlong. The record discloses that Sollitt took his orders from Division Superintendent Gould, or from Furlong. Sollitt came to Detroit, and, after talking with Somerville and Ellis, told the latter to stay and act under Somerville’s direction, and that he (Sollitt) would stand between him (Ellis) and any harm from the road, if he did just what Somerville told him. After Sollitt’s departure from Detroit, Somerville, who had received information of a new robbery of eight sacks of coffee, but not from any one connected with the railroad, communicated this fact to Ellis, and together they went to the superintendent of police of Detroit, and obtained the services of an experienced detective to act with Ellis in recovering this coffee and arresting the thief. Acting upon the information which Somerville furnished, Ellis and the other officer succeeded in discovering the coffee and arresting the thief, who was convicted, and sentenced to the state prison for three years. Somerville presented his bill for services to Tozer, but could obtain no settlement of his claim, and accordingly brought suit, and obtained judgment for $300. Defendant brings error.

The important question in this case is, was there sufficient evidence of contract relations between the plaintiff and the defendant to justify the judge in submitting the case to the jury ?

It is contended by the counsel for defendant that the plaintiff made no contract with any of the detectives of the road; that, if he had, it would not be a valid contract, for want of authority on their part to make it.. Counsel further claims that the only contract made by the plaintiff was made with Tozer, the local freight agent, who had no authority to make a contract of this character,' and that there has been no ratification of what either Tozer or the detectives may have agreed to with the plaintiff, and that the judge erred in not giving the several requests of the defendant and in not taking the case from the jury. He insists that it is a cardinal rule of law that full knowledge of the facts and circumstances must exist in order to find ratification, and that there is no testimony that the head of the defendant’s detective department had any knowledge of Tozer’s agreement with the plaintiff; and cites Hotchin v. Kent, 8 Mich. 526; Wells v. Martin, 32 Mich. 478; Danaher v. Garlock, 33 Mich. 295; Bond v. Railroad Co., 62 Mich. 643.

The case of Hotchin v. Kent decides that, in an ordinary commercial partnership, any act of one partner with innocent parties, within the scope of the partnership business, will usually bind the firm, yet any contract made without the scope of the business, with a person who knows, or is bound to know, that it is beyond that scope, will not bind the firm, of its own force, without some express or implied adoption; that an unauthorized agent cannot ratify and make valid his own void act.

The case of Wells v. Martin decides that the statement of an agent of a contractor, to a third person, that the contractor intended to pay a bill made by a subcontractor, is no evidence of a ratification by his principal of authority in the subcontractor to make the debt, so as to bind the contractor. To the same effect is the case of Danaher v. Oarlock.

In Bond v. Railroad Co. plaintiff sued to recover on an alleged verbal contract, whereby he was to have the building of 14 depot buildings, for which he made preparation, but which, he claimed, he was not allowed to complete. The record disclosed, and it was not disputed, that the defendant road had, prior to the time Bond had any talk with any one about constructing these buildings, made a contract with the New York, New England & Western Investment Company to build most of the road, including the depot buildings. There was nothing in the record to show that the person with whom Mr. Bond talked had any authority to act for the defendant road, or that it ever did anything to ratify any of the acts or agreements made with Bond. Under the facts in the case the court held a verdict should have been directed for the defendant.

We do not think, however, that any of these cases necessarily decide the case at issue in favor of the defendant. They are not in conflict with the doctrine that the unauthorized acts of an agent may afterwards be ratified by the principal, either expressly or by implication, so as to bind the principal.

If there was testimony sufficient to submit the case to the jury, none of the assignments of error are well taken.

It is true that no positive and direct evidence has been introduced by the plaintiff that he made a contract with one having authority to make it. Nor is there any positive and direct evidence that the contract made between him and Tozer, the freight agent, was ratified by the detective department of the defendant’s road, whose duty it was to look after crimes committed against the property of the road or property intrusted to its care. Suppose the station agent of defendant company had agreed with a farmer that, if he would furnish the road with a thousand oak ties, he should be paid what they were worth, and the agent introduced the farmer to a man who was said to be a tie inspector of the road, and the inspector informed the farmer about the lengths and sizes the ties should be and where to deliver them; that later the farmer, acting upon such instruction, delivered the ties, and they were put into the defendant’s, roadbed. Suppose, further, that the bill for the ties was never paid, and the farmer sued to recover for their value, and was unable to make direct and positive proof of the authority of the station agent and the inspector to buy ties for the road,—would counsel claim that his case must fail for that reason, and that there was no evidence, either of authority to make the contract or of its ratification by the company, and that the company should have the ties and not pay for them? There was evidence tending to show that defendant company was greatly annoyed by thefts of merchandise at Delray; that plaintiff was consulted by the station agent in relation to discovering the thieves; that Tozer undertook' to make an arrangement with Somerville by which the latter should contribute to the road his services, and should be paid what they were reasonably worth; that Somerville was introduced to detectives of the road, and was advised with by them in relation to the work the defendant road wanted done by him. There was also testimony tending to show that he did the' work he was employed to do; that it resulted, in connection with the work done by the detectives of the road, in accomplishing just what the company wanted done. It was claimed that the thieving in Delray was stopped; the defendant company recovered eight bags of coffee stolen; and the thieves were arrested, and one of them convicted, and sent to prison. If the jury found these to be established facts, do they not tend to show ratification by the company of the contract made with Somerville? Is it the law, or is it right, that the company should have these services, appropriate them to its own use, and' profit by them, and yet not be required to pay for them ? As we understand the law, it is to the effect that the authority of agents may be established by acts, facts, and circumstances, as well as by direct proof. Lyell v. Sanbourn, 2 Mich. 109; Van Vranken v. Union News Co., 78 Mich. 218; Peine v. Weber, 47 Ill. 41. It is also a rule of law that the acts of an agent assuming to have authority may be ratified, and this ratification proved by evidence that the principal has accepted the benefits of the contract made by the agent. Bacon v. Johnson, 56 Mich. 182; Heyn v. O’Hagen, 60 Mich. 150; Busch v. Wilcox, 82 Mich. 315.

The charge of the trial judge, bearing upon this portion of the case, reads as follows:

“The evidence in this case on the part of the plaintiff shows that the plaintiff, having received information that if a reward was offered he might procure information which would lead to the arrest of some party or parties who were thieving from the Wabash Railroad, communicated that fact to Mr; Tozer, the local freight agent at Detroit. He (Somerville) was bound to know at that time, or bound to ascertain, the position of Mr. Tozer, and was bound to know that there was no presumption of authority that Mr. Tozer might make a contract with bim with reference to that. And if, gentlemen of the jury, there was nothing more in this case than these facts, then I should charge you that your verdict in this case should be for the defendant. However, gentlemen, as I said before, corporations can act only through agents, and if a contract is made with an agent who has no authority, and is afterwards communicated- to those who are authorized to make such contract, there can be what we call in law a ‘ratification,’ and if a party making a contract without authority is afterwards recognized by those authorized to ratify the contract, and the contract is entered upon, the jury may imply such ratification. Now, in the case at bar I do not say, nor do I mean to intimate, that there is a ratification, but there is evidence to go to the jury upon which, I think, the jury may or may not infer, as they in their good judgment must determine, whether the unauthorized contract of Mr. Tozer was or was not ratified by the company. The evidence in this case shows that Mr. Tozer said, I think, that he would send for detectives, and afterwards wrote Mr. Somerville, or communicated with Mr. Somerville, to meet the detectives of the road. I think, gentlemen of the jury, that from these facts, if you find from the facts that the secret service or the detective department of the road—those in charge of that—Mr. Furlong, or whosoever was in charge of that, had a knowledge of what Mr. Tozer had done, and afterwards sent the detectives to carry out the arrangement that Mr. Tozer had made, there would he such a ratification of the contract as would enable Mr. Somerville to recover. But, of course, before you could imply a ratification, you must be satisfied from the evidence in this case that those who were authorized to make a contract of that kind had a full knowledge of what Mr. Tozer had done; because, gentlemen of the jury, there can be no ratification unless there is a full knowledge of that which is to be ratified.”

We think this charge was a correct statement of the law as applicable to the facts; that there was sufficient evidence to warrant the trial judge in submitting the case to the jury.

The judgment should be affirmed, with costs.

Montgomery, J., concurred with Moore, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LeBEAU v. TELEPHONE & TELEGRAPH CONSTRUCTION CO.
    1. Evidence—Maps.
    In á personal injury ■ case, there was proof that a map of the scene of the accident, which was offered in evidence, was approximately correct, and one witness stated that it was accurate. Held, that its admission was not error.
    2. Same—Scene oe Accident.
    It is competent, in a personal injury case, to show the entire surroundings of the place where the accident occurred.
    3. Personal Injuries—Evidence oe Physical Condition.
    In an action for personal injuries, the admission, upon cross-examination of the plaintiff, of evidence to show his physical condition for some time before the accident, and that he was drawing a pension for injuries received during the war, is not ground for reversing a verdict for the defendant, although it appears that the plaintiff was cured of such injuries before the accident.

      4. Trial—Instructions in Absence oe Counsel—Waiver.
    Where the court, in the absence of counsel for either party, sends an instruction to the jury room, in answer to a question by the jury as to the effect of contributory negligence, and subsequently calls the counsel into court and informs them of such action, the failure to object thereto before verdict is rendered waives any error.
    5. Contributory Negligence—Question for Jury.
    Whether one who, in passing along a sidewalk, and while absorbed in watching the workmen in an excavation being made from the street into an area under the sidewalk, walks into a manhole left open for the purpose of hoisting through it the material excavated from the area, without seeing a barrel which had been placed beside the manhole as a means of guarding it, is guilty of contributory negligence, preventing a recovery for the resulting injury, is a question for the jury.
    Error to Wayne; Lillibridge, J.
    Submitted April 7, 1896.
    Decided May 19, 1896.

      Case by McCurdy C. LeBeau against the Telephone & Telegraph Construction Company for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Philip T. Van Zile, for appellant.

      Keena & Lightner, for appellee.
   Moore, J.

On the morning of May 19, 1893, plaintiff walked down Clifford street, in the city of Detroit, on the way to his office. Near Park Place his attention was attracted to the workmen of the defendant company, who were engaged in tearing up the pavement preparatory to putting in underground wires. The plaintiff continued to watch the workmen, as he walked along, in their attempts to cut through the wall into the area at the corner of Clifford street and Washington avenue. At that corner, defendant’s workmen had been hoisting dirt through a manhole from the area below, and letting material down into the area, but were not so engaged when plaintiff came along. The manhole was also used to let in light to the woi’kmen. The sidewalk was of stone, 11¶- feet wide. The manhole was about 10 feet east of the westerly end of the walk, nearly in the center of the walk, and in line with the cross-walk across Washington avenue, and was 22 inches in diameter. It was open, and upon the east edge of it was a barrel. The iron cover of the manhole was on the north side of it. The work done by the defendant was under a permit by the municipal authorities. Plaintiff failed to see the hole, and stepped into it, and fell, striking upon his chin upon the edge of the barrel, receiving severe injuries. Plaintiff sued to recover $10,000 damages for the injuries received by him. The case was tried and submitted to the jury, who returned a verdict in favor of the defendant. Plaintiff appeals, and assigns error upon the admission of testimony.

A map was introduced in evidence, which plaintiff claims was not correct. There was proof, however, that it was approximately correct; and one witness stated it was accurate. Its admission was not error. Hoffman v. Harrington, 44 Mich. 184; Battishill v. Humphreys, 64 Mich. 494.

Proof was offered that the barrel could be seen from the other side of Washington avenue. This, it is said, is error. We think it competent to show the entire surroundings of where the accident occurred.

Counsel for defendant was allowed to show the physical condition of plaintiff for some time before the accident, and that he got a pension. It is said this is error, because he was cured of that trouble before the accident. This testimony occurred on the cross-examination of the witness, where a good deal of latitude is allowed, and, in view of the verdict, cannot be said to be prejudicial.

After the jury had retired, thejr sent a communication to the judge, inquiring: “If we find that both parties were negligent, then we have to find for the defendant. Was that your charge? Some of the jury understood you so.” In the absence of all the counsel, and without recalling the jury, the judge indorsed in writing upon the back of the paper, upon which was written the above question, the following: “Answer: If you find that the plaintiff was guilty of negligence which contributed to - the injury, and without which the injury would not have occurred, your verdict should be for the defendant.” The judge then sent the paper containing the question and answer to the jury room by the officer. Otherwise than as above stated, no communication passed to the jury while they were deliberating. The judge did not enter the jury room, nor did. he communicate with them directly. About 20 minutes after the paper was returned to the jury by the officer, they agreed upon a verdict. Before the verdict was received, and before the jury were brought from the jury room, the judge caused plaintiff’s attorney to be summoned, and, defendant’s counsel being also in court, the judge stated to them the facts as to the question of the jury and the answer thereto, and showed to counsel the paper on which was written the question and answer. After said explanation by the judge, and after counsel, in the presence of the judge, had read the paper, the jury were brought into court, and returned a verdict in favor of the defendant. At no time prior to the rendering of the verdict did counsel for plaintiff make any objection to said communication, nor to the rendering of the verdict, nor make any suggestion to the judge upon the facts connected therewith, and the verdict was received without objection from either party or their counsel. It is urged that this is error, and the cases of Fox v. Color Works, 84 Mich. 682, and Hopkins v. Bishop, 91 Mich. 334, are cited by counsel. In the case at issue, counsel made no objection to the course taken by the circuit judge until the verdict was rendered. It seems to be pretty well settled that, after one has knowledge of an irregularity, he cannot remain silent, and take his chances of a favorable verdict, and afterwards, if the verdict goes against him, base error upon it. 2 Thomp. Trials, p. 1976. If the action of the trial court was irregular, the irregularity was waived by making no objection until after the verdict was rendered.

The important question in the case relates to the law of negligence, and on the part of the plaintiff is fairly raised in his third and seventh requests, which read as follows:

“3. The plaintiff in this case was not bound to be looking out for danger while passing along the sidewalk, and he cannot be said to be negligent if he did not. The law does not require that extreme degree of mental diligence of persons making use of the public walk. Their thoughts may be employed upon subjects of interest or importance to themselves, or wholly diverted by observation directed to other persons making the same usé of the walk; and, if this be so, they are not guilty of negligence. It is a sound rule of law that it is not contributory negligence not to look out for danger where there is no reason to apprehend any. So every one has a right to presume that others, owing a special duty to guard against'danger, will perform that duty.”
“7. If you find, from the evidence, that on the morning of the accident, and at the time it happened, the defendant was at work, by its servants, in the area under the sidewalk, or had been, and had left the manhole partially or wholly uncovered, and that it was only guarded by a barrel which sat near it or even partially over it, and that the plaintiff, while walking along upon the sidewalk, had his attention attracted by men at work in a ditch along the side of the walk, and was not looking for danger, or for any hole or obstruction in the walk, and that, if he had looked, he could have seen the hole in the walk, and while so walking along, without warning in time from defendant’s servants, stepped into the manhole, and was injured,—in such a case I instruct you that the plaintiff is entitled to recover, and your verdict should be for the plaintiff.”

These were not given by the court as drawn by the counsel. Counsel regards this as error, and cites, in support of his position, Congreve v. Morgan, 18 N. Y. 84; Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667; Engel v. Smith, 82 Mich. 1; Sadowski v. Car Co., 84 Mich. 105; Davenport v. Buckman, 37 N. Y. 568; Jennings v. Van Schaick, 108 N. Y. 531; McGuire v. Spence, 91 N. Y. 303; Bowen v. Railway Co., 54 Mich. 496.

The charge given by the court upon the question of negligence reads as follows:

‘ ‘ The plaintiff in the case must prove two things by a preponderance of evidence. He must prove, first, that the defendant was guilty of negligence. That is the first thing. He must prove, secondly, that he himself was not guilty of negligence,—that the plaintiff was not guilty of any negligence on his part which contributed to the injury. That we call, in law, contributory negligence; and when I speak of contributory negligence, you will know I mean that the plaintiff was guilty of contributory negligence. I say the burden of proof is upon the plaintiff to show both of these propositions, and unless he has shown, and does in every action of damages show, that, your verdict must be for the defendant. That brings us down to the first question which is submitted for your judgment and consideration: Was the defendant guilty of negligence on the 19th of May, 1893, in conducting its work, and leaving that manhole open, as the testimony shows?' That is the first question that you have got to pass upon in this case. First, it has been claimed, and it is true,, that the defendant was lawfully there; that it was a lawful work that the defendant was engaged upon. He had a right to remove that manhole cover, but he must do his work in a lawful manner. * * * He must make his excavating, he must remove his manhole cover, if he does remove it at all, in a lawful manner. Was it in a lawful manner? That depends upon what his duty was under the law. It was his duty, in excavating that area, to remove the cover of the manhole, and to exercise care and precaution for the safety of the passersby, which an ordinarily careful and prudent man would have used, having regard to the work which it was necessary to do, and also having regard to the danger to passersby from the disregard of such care and prudence. I say that the care and prudence which the defendant was bound to exercise must be in proportion to the danger to passersby from the work, and the injury which was liable to happen to passersby from a disregard of such care and prudence. Now, you will see, gentlemen, that it follows that the care and prudence which an ordinarily careful and prudent man would exercise is a relative term. It depends on the danger which would happen to a passerby from a disregard of care and prudence. * * * So the danger to passersby is an important element for you to consider in estimating what is reasonable care. It is the care which an ordinarily prudent and careful man would have exercised under the circumstances, having regard to the work which was necessary to be done, and the danger from not observing that care. Now, then, this question is submitted to you whether, under all the circumstances of this case, the defendant, on the morning of the 19th of May, 1893, did exercise the care and precaution which an ordinarily careful and prudent man would have exercised in removing that manhole cover and placing it where it did. There is practically no dispute as to the situation or location of the barrel and of the cover, and of the circumstances which took place there. There is almost no dispute. And the question is submitted whether or not, under all the circumstances, the defendant did exercise the care, prudence, and precaution which an ordinarily prudent and careful man would have exercised in doing that work. Now, you are to take into consideration all the facts, all the evidence that has been introduced; the location, where it was; taking into consideration that it was at the intersection of two important streets in this city, — taking into consideration just where the manhole was. You recollect that the testimony shows that, as the man came down Clifford street, it was right in a line of the walk. In other words, without rehearsing or recalling it to you, gentlemen, I say you should place yourselves there by the testimony,—you should imagine yourselves there, by the testimony, that morning of the 19th of May, 1893,— and should look at the work as it was progressing, and look at that hole inches wide, and that barrel located on the easterly side of the hole, and the cover of the manhole on the north side of the hole; and the question is submitted for your determination whether the defendant was in the exercise of reasonable care. And I say, if you find the defendant did, at the time of the injury, exercise the care and precaution to prevent injury to passersby which an ordinarily prudent and careful man would have used, in view of all the circumstances, and in view of probable injury, then your verdict should be for the defendant.
V But if you find that it was not exercising reasonable care,—care and prudence which a reasonable man would have exercised, having in view the danger-to passersby,— then you will come to consider the other question. You remember the other question is: Was the plaintiff, or did the plaintiff himself exercise the care and prudence which an ordinarily prudent man would in passing along that street? What was the duty of the plaintiff? A person traveling on the sidewalk in this city has a right to expect that the walk will be in a condition reasonably safe and fit for travel. I do not say absolutely safe, so as to prevent all possibility of accident. There are many miles of sidewalk in this city, and many thousand owners of lots, who are constantly repairing sidewalks, and pulling them up for one cause or another. So that, to my mind, it is absurd to say that the law requires them to be in a condition of absolute safety. But a traveler on a sidewalk has a right to expect that the walk will be in a condition reasonably safe for travel. Now, it is the plaintiff’s duty, on his part, to exercise that care and prudence in passing along the sidewalk which an ordinarily prudent man would have used under those circumstances. Generally speaking, it was his duty to use his eyes and look ahead of him; but I do not say, gentlemen of the jury, that it is his duty to keep his eyes on the walk in front of him all the time. ■ As I said, a pedestrian has a right to expect that the walk is in a condition reasonably safe and fit for travel, and, if his attention is attracted for a moment or two to something going on in the street, he has a right to expect that he can continue to go forward a short distance with safety; but he must exercise the care and prudence which an ordinarily careful and prudent man would in passing along the street. Now, gentlemen, I do not know how to define the care which the plaintiff was bound to exercise in any other way. The law does not give us any other method. You must place yourselves there on the morning of that injury, and you must take into consideration all the circumstances as they existed, and you must pass upon this question whether the plaintiff, in going down there, did exercise the care and prudence which a reasonable and ordinarily careful and prudent man would have exercised. As I said, and I repeat it to you, generally speaking, we must use our eyes; and, I repeat, I do not say that a man must keep his eyes on the walk all the time; and, as I said before, he has a right to presume that the walk is reasonably safe for travel, and if he turns his eyes to one side or the other, or his attention is attracted by one thing or the other, he has a right to presume,—he has a right to be attracted to one thing or the other for a short time, and presume he can walk forward in safety. That question is submitted to you,. If you think, from the evidence,—and I want to say, here, you must take into consideration all the facts; that the plaintiff was going down that street; that his attention,—that a ditch was being dug beside this walk, as he testifies, and there is no evidence to the contrary,—that his attention was attracted to the workmen at work in the trench; that he walked along looking at those workmen. You will also consider the testimony as to the signal of a workman, that the man Lemon shouted out. Of course, gentlemen, if a warning signal was given to this man, that he understood in time to enable him to understand what it meant, and have avoided that injury, why, then, he was guilty of negligence in not avoiding it. That is a question,— whether you think the warning was such as he understood, and whether it was given in time for him to have avoided the injury. You heard all the evidence upon that. I believe the testimony—-and you will correct me if I am wrong—I believe the testimony of all the witnesses as to Lemon was that he shouted or called. Lemon says almost instantaneously with the fall. Isn’t that right? I thought Mr. Lemon stated that it was an instant or two before. Taking into consideration all these facts and circumstances, if you believe and if you find that the plaintiff was not exercising reasonable care in going down that street, then your verdict should be for the defendant. If you find, on the contrary, that he did, under all the circumstances, exercise reasonable care and prudence in walking down that street, having regard to all the facts and circumstances, and the work that was going on, then your verdict should be for the plaintiff. If you find that he was in the exercise of reasonable care, • you are then to come down to considering the question of damages. * * *
“As to the requests to charge, if you find, as a matter of fact in the case, that the defendant, the Telegraph & Telephone Construction Company, by its servants, on the day in question, was occupying the sidewalk where the accident happened, had removed the cover of the manhole into which plaintiff fell, and was occupying the area under the walk in and about its work, then, in that case, I instruct you that it was the duty of the defendant to exercise reasonable care to protect the opening of the walk, or otherwise warn passersby.
“The evidence in this case shows that the walk, through which the manhole was, was constructed over an area several feet deep below the walk; that the manhole was not next to the building, but out in the middle, or near the middle, of the walk, and in that part of the walk over which pedestrians usually traveled. It must be considered that a hole through this walk, like the one in question, was a very dangerous thing, if left open or uncovered, unless properly guarded. This fact makes it the duty of those who use it or maintain it to exercise reasonable cafe and prudence to properly guard it; and if it is not practical to guard it, the person in charge is bound to give actual notice of the danger to every person lawfully approaching the place; and, in default of such reasonable care and prudence to guard the manhole, it would be liable for all injuries resulting therefrom to persons passing by, in the exercise of reasonable care on their part. It cannot be said to appear conclusively in this case that the plaintiff was careless, because he failed to keep his eyes constantly on the walk before him. That is a question for the jury to determine from all the facts and circumstances of the case. * * *
“ Unless the jury find both of the following facts, viz.: (1) That the defendant was guilty of negligence, and (2) that plaintiff was not guilty of negligence,—your verdict will be for the defendant.
“The burden of proof in this case is upon the plaintiff, and he must prove, by a preponderance of evidence, both the negligence of the defendant, and the lack of negligence, or the exercise of due care, on his part.
“Under the pleadings and evidence in this case, defendant had a right to dig a trench and use the manhole in question. Even if the sidewalk was, by its use of the manhole and the excavation, rendered more dangerous to passersby than the sidewalk usually was, still the defendant would not be guilty of negligence unless, in doing the work in question, defendant failed to use such precautions to warn passersby as a reasonably careful and prudent person would have used under the same circumstances.
“The care required of plaintiff is that degree of care which a reasonably careful and prudent person would use under the circumstances; and if you believe, from the evidence in the case, that a person coming down Clifford street, at the time and under the circumstances as the testimony in this case shows, would have seen the obstruction on the sidewalk in time to avoid falling into the manhole, then your verdict will be for the defendant.
' “Where there are repairs going on, or where there are obstructions in the highway, greater care is required of a passerby than is called for when the highway is in the ordinary condition.
“If you believe, from the evidence in the case, that a reasonably prudent and careful person, who had been accustomed to pass over the sidewalk in question daily for a year or more, with building materials occupying at the time the space to the north of the sidewalk opposite the manhole, and who knew of there being manholes in the sidewalk between the Washington avenue curb and the alley beyond the Telephone Building, and who saw a trench being dug in Clifford street ending at the vault under the sidewalk, and who saw workmen making an opening through the wall of the vault, as in this case,—if you believe that a reasonably careful person would, under these circumstances, have looked ahead of him before walking as far as the open manhole, and would have seen the obstruction in time to avoid falling into the manhole, then your verdict will be for the defendant.
“Although a foot passenger on the sidewalk is not required to keep his eyes constantly on the walk before him, yet he must observe his general course on the street; and if he meets with an accident which could have been avoided by the exercise of ordinary care and prudence in observing his general course, he is guilty of contributory negligence.”

In Clifford v. Dam, 81 N. Y. 52, and Congreve v. Morgan, supra, the opening was made without the authority of the municipality. In Jennings v. Van Schaick, supra, the provisions of the ordinance authorizing the opening were not observed.

In New York, a different rule prevails from the cases above cited where the act done was authorized 'by the city, as in the case at issue here. See Wolf v. Kilpatrick, 101 N. Y. 149 (54 Am. Rep. 672); Nolan v. King, 97 N. Y. 565 (49 Am. Rep. 561). The last case discusses the New York cases cited by plaintiff’s counsel, and distinguishes them, and holds that, where a person, with authority from the municipal authorities, has removed the sidewalk and excavated to construct a vault, and builds a bridge over the excavation, it is his duty to build it with care and prudence, such as will make it safe for those who exercise on their part such ordinary care and prudence as the presence of the temporary structure requires. It was further held that the traveler is bound to observe its presence, and to exercise a care and prudence which might be unnecessary upon the sidewalk; and it was held error to charge that it was defendant’s duty to have the bridge constructed in such a manner that plaintiff would not be subjected to any more personal risk than if the sidewalk had been there instead of the bridge.

The case of Grand Rapids, etc., R. Co. v. Martin, supra, was one where the plaintiff was driving through a passageway which was not crossed by railroad tracks. A car was struck by a freight train, and driven forcibly enough to break its fastenings, and crash against Martin and his vehicle, injuring both of them. It was claimed by defendant that, as a matter of law, Martin was guilty of negligence. The court held that it was a question for the jury.

In Bowen v. Railway Co., supra, it was held that—

“ Every person having occasion to use the public streets is entitled to feel that he is absolutely safe, while exercising ordinary care, against all accidents arising from obstructions in the street, and no one has'the right, without special authority, to materially obstruct it or render its ordinary use dangerous. ”

It was stated in that case:

“In coming to the conclusion they did, the jury must have found, under the charge of the court, that the plaintiff was in the exercise of ordinary care, and did not contribute to the injury complained of.”

The case of Engel v. Smith, supra, which is the leading Michigan case relied upon by the plaintiff in this cause, was a case where the plaintiff walked into a trap door which was in front ©f the back door*, and only a foot and a half away from it. It was usual to keep the back door locked when the trap door was open. The court held that this opening was a dangerous one; that its close proximity to the door made it extremely difficult for one entering the door without notice that the hatchway was open to stop in time to save himself from falling; that the back door should have been kept locked, or some one should have remained on guard while the trap was open, —the court adding: “One or the other of these precautions was necessary, and ordinary care required the defendants and their employés to observe them.” The plaintiff had knowledge of the existence of this trap door, and the court regarded the question of plaintiff’s contributory negligence as one of great difficulty, and in disposing of it said:

“The controlling fact in the case seems to be, however, that the negligence of the defendants’ employés was active. The opening of the trap door was a circumstance which, of itself, called their attention to the duty of guarding it. It was a warning which, with their knowledge of the frequency with which the back door was used, they could not disregard, without being guilty of negligence as a matter of law. The plaintiff had no such immediate warning. Neither'did he have any reason to apprehend danger. It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any. Beach, Contrib. Neg. p. 41, and cases cited. * * * As we have said, the question is one of some difficulty, and is not free from doubt. We have held that in such case the facts should be submitted to the jury.”

■ It is not believed that a case can be found which holds that one traveling upon a sidewalk may be oblivious of his surroundings. He should exercise the care and prudence which an ordinarily careful and prudent man would in passing along the walk. We think the charge of the trial judge was a fair statement of the law of negligence as applicable to the facts in this case. See Butterfield v. Forrester, 11 East, 60; Abernethy v. Van Buren Tp., 52 Mich. 383; McCool v. Grand Rapids, 58 Mich. 41; Hutchins v. Priestly, etc., Co., 61 Mich. 252; Wakeham v. St. Clair Tp., 91 Mich. 15; Moore v. City of Richmond, 85 Va. 542, and cases there cited; Walker v. Reidsville, 96 N. C. 382; City of Plymouth v. Milner, 117 Ind. 324; Kelly v. Doody, 116 N. Y. 581; McLaury v. City of McGregor, 54 Iowa, 717; 2 Dill. Mun. Corp. § 1020, and note; 2 Beach, Pub. Corp. § 1537.

The judgment is affirmed, .with costs.

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


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    BEARCE v. FAHRNOW.
    1. Debtor and Creditor—Notice.
    A creditor who, having notice that money tendered by his debtor is in fact the property of a third party, applies the same upon the indebtedness, is liable to such third party in an action for money had and received.
    2. Same—Principal and Agent.
    Where a creditor accepts money from his debtor to apply upon the purchase price of cattle, and thereafter refuses to deliver the cattle, and attempts to apply the amount upon the prior indebtedness, a third party, whose agent the debtor was in making the purchase, and who furnished the money therefor, is entitled, upon such refusal, to recover the amount so paid, even though the creditor had no notice that the money belonged to such third party.
    Error to Kent; Adsit, J.
    Submitted April 8, 1896.
    Decided May 19, 1896.

      Assumpsit by Edgar C. Bearce against August E. Fahrnow for money had and received. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Sweet, Perkins & Judkins, for appellant.

      C. O. Smedley (B. M. Corwin, of counsel), for appellee.
   Moore, J.

Plaintiff claims that in July, 1894, he let

Alvin Cox have $100 to use in purchasing for him lambs, sheep, and cattle for use in his market; that a little later, on a Sunday, Cox bought of the defendant, Fahrnow, five head of cattle for $70, and paid him $48 of plaintiff’s money, and was to pay him the balance,—$22,—in a day or two; that Cox told defendant that the money was not his. Plaintiff claims that, after defendant got the $48, he refused to give it up; that on the next day he caused a tender of $22 and a demand for the cattle to be made, which demand was refused, and also that defendant refused to return the $48, and this suit was brought.

Defendant’s claim is that Cox was owing him an old debt of $55; that the $48 was paid to apply on the old debt, and not on the cattle, and that he (defendant) had no notice that the money belonged to any one but Cox until on Monday. He also claimed that the cattle were sold for $70, to be paid the next day; that, before the cattle were delivered, his son objected to letting them go until they were paid for, and for that reason they were not delivered. The jury returned a verdict for defendant.

The only questions necessary to discuss grow out of that portion of the charge of the court reading as follows:

“Now you see, first, you must find that that $48 was in fact the property of Bearce, in order to entitle him to recover at all. He is the plaintiff in this case, and, unless the property was his, of course he is not entitled to recover in any event. Then, if you find that the property, under the evidence here,—the $48,—the title was actually, as between Cox and Bearce, 'the property of Bearce, then, in order to entitle him to recover, he must further satisfy you, by a fair preponderance of the evidence, that, before that money was paid over to the defendant, the defendant had notice from Cox, or some one else, that the money did not belong to Cox, and that it was paid to him by Cox on that new deal,—that is, for the cattle that hé agreed to purchase that day. If that is true, then the passing of the money by Cox over to the defendant, the defendant knowing that it did not belong to Cox, and to be applied upon the purchase price of the cattle to be delivered that day, and not upon the old debt, would not divest the plaintiff, Bearce, if the money was his, of the title to it, and his right to recover in this action.”

This is equivalent to saying that, to entitle the plaintiff to recover, he must not only show that the money was his, and that defendant had notice it did not belong to Cox, but must show it was paid to apply on the purchase price of the cattle. We think he was entitled to have the jury instructed that, if defendant had notice that the money did not belong to Cox, and in fact did then belong to the plaintiff, he was entitled to recover. He was also entitled to have the jury instructed that, if the money belonged to the plaintiff, and the money was paid by Cox to the defendant as part of the purchase price for the cattle, and the defendant refused to deliver the cattle, the plaintiff was entitled to-recover, whether the defendant had notice that the money belonged to the plaintiff or not. The defendant could not receive the money for a purpose that would inure to the benefit of the plaintiff, and then apply it to a purpose that would be to the disadvantage of the plaintiff, without his consent.

The judgment is reversed, with costs, and a new trial ordered.

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


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    VAN ALSTINE v. KANIECKI.
    1. Trial—Remarks ok Counsel—Instructions.
    Statements of counsel not sworn as witnesses, to the effect that, from their acquaintance with one of the adverse witnesses, they believe certain things concerning his character, which, if true, would tend to discredit his testimony, are properly pointed out by the court, in his instructions to the jury, as being without weight in the case.
    2. Intoxicating Liquors—Civil-Damage Law—Medical Attend- . ANCE.
    It is not error to instruct the jury, in an action under the civil-damage law for the illegal sale of liquor to plaintiff’s son, who was injured by reason of his intoxication, that plaintiff cannot recover for any medical assistance furnished the son, where no proof has been made as to the doctor’s bills, the amount thereof, or who incurred liability therefor.
    3. Same—Evidence—Hearsay.
    In such case, evidence of statements made by the son, to the effect that he did not procure liquor from the defendant, is inadmissible, as hearsay, except for the purpose of impeaching the son as a witness.
    4. Same—Res Gestas.
    The fact that such statements were made immediately after the injury to the son does not bring the case within the rule that “declarations regarding personal injuries are admissible as part of the res gestae when there is a concurrence in point of time between the act and the declaration,” since the testimony does not relate to the injury itself.
    Error to Alpena; Kelley, J.
    Submitted April 9, 1896.
    Decided May 19, 1896.
    Case by Marilla Van. Alstine against Philip Kaniecki, a saloonist, and Patrick Culligan and Dennis J. Roach, his bondsmen, under the civil-damage act. From a judgment for defendants, plaintiff brings error.
    Reversed.

      Joseph Cavanagh (J. D. Turnbull, of counsel), for appellant.

      James McNamara (W. E. Depew, of counsel), for appellees.
   Moore, J.

Plaintiff brought suit against Kaniecki, a saloon keeper, and his bondsmen, under the provisions of Act No. 313 of the Public Acts of 1887.

Her declaration, in substance, was that defendant Kaniecki was in the saloon business, and the other defendants are his bondsmen; that Kaniecki sold to her son Lambert, who was intoxicated, and in the habit of getting intoxicated, intoxicating liquors, which he drank, and which increased his intoxication, and, while thus intoxicated, her son, on account of his intoxication, was unable to control his team, and they ran away, throwing him from his wagon, and permanently and greatly injuring him; that, at the time of the injury, plaintiff and her son were living together as one family, and her son was maintaining and supporting her, and would have done so the balance of her life; “that by means of said unlawful acts of defendants, and by said injury, she has been obliged, and will be obliged in the future, to expend large sums of money in doctoring, nursing, and maintaining her said son, and, by means of said illegal acts of defendants, she has been injured in her person, property, and means of support to her damage of $5,000.”

The defendants admitted that Kaniecki was keeping a saloon, and that the other defendants were his bondsmen, and that Lambert was at his saloon on this night, but denied that he was then drunk, or that he got any liquor whatsoever from Kaniecki upon this occasion, and produced evidence tending to prove this.

The jury rendered a verdict for the defendants. Several errors are assigned.

The court, in his charge to the jury, used this language:

“Now, I am asked to say to you, and I do say to you, gentlemen, in reference to a criticism made to the testimony of Le Vere, that he was a traveling dentist, or one who pursued dentistry in some of its branches, about the country, that this fact alone is no reason that you should discredit his testimony. Unless you find something more than that, the mere occupation of a man would be no reason for you to discredit his testimony. And I call your attention to the statement of counsel in this case as to this witness, that, from his acquaintance with him, he would be just such a man as would be likely to be sought after, and one that would make untruthful statements. The statement ought not to weigh in this case.”

This is alleged as error. We do not so regard it. If counsel had any statement to make to the jury relating to his acquaintance with the witness, he should have been sworn, and subjected himself to the rules of examination. In this connection, we desire to express our disapproval of the language used by counsel for the plaintiff in their briefs, filed in this court, when referring to witnesses in the case. Expressions found on pages 9 and 10 of plaintiff’s brief, and page 7 of the supplemental brief, do not serve any good purpose, and should be severely criticised.

The trial judge instructed the jury that plaintiff could not recover for any medical assistance furnished her son. This is said to be error, citing Clinton v. Laning, 61 Mich. 360, and Thomas v. Dansby, 74 Mich. 403. The claim of the plaintiff is that her son lived with her, and supported her. We do not find from the record any proof as to the doctor’s bills, the amount thereof, or who incurred liability therefor, and for that reason the assignment of error is not sustained.

Dr. Eakins was called as a witness for the plaintiff, and testified to his arrival on the scene soon after young Van A latino was hurt, and to his condition, and the extent of his injuries. On cross-examination the following occurred:

“Q. Was there anything said by Van Alstine as to whether he had been drinking or not?
“A. Some person asked him, made the remark, ‘ Where did you get your whisky?’—something to that effect, I ■don’t exactly remember what; and he said that he had some altercation with some, one down town, and he got full, or something to that effect. And some person said to him, ‘ Why, we saw you start away with your horses •on the run from this saloon, Kaniecki’s saloon.’ Well, he said he went in there to get a drink, but—■
“Mr. Turnbull: I object to any of this testimony at all. It has gone as far as it ought to have gone.
“ Attorney for Defendant: Let’s see what it is. You •don’t know what it is.
The Court: A statement of the injured man?
“Attorney for Plaintiff: Yes; a statement of the injured man.
The Court: As to where he got his liquor?
“ Attorney for Plaintiff: Yes.
“The Court: Why isn’t it competent?
“ Attorney for Plaintiff: If they wanted to impeach this man, they should have asked him the question when they examined him.
“The Court: They possibly—His deposition was taken and used in this case?
“ Attorney for Plaintiff: His deposition is here; yes. Now, then, they had a chance, if they wanted to ask him •any questions—
“The Court: You may take the answer.
“Mr. Turnbull: An exception.
“A. Well, he said that this Kaniecki told him that ‘no, he couldn’t, have any liquor; that, he was drunk now.’ And the statement was corroborated by Cronk, who was then standing by his feet.
“Mr. Turnbull: I move to strike that out.
The Court: That is not proper. Strike it out. He is only asking what the man said.
Attorney for Defendant: Strike out so far as what •Cronk said—■
“The Court: Strike out his statement as to Cronk’s ¡statement.”

The witness further testified that Van Alstine said that he did not get any liquor at Kaniecki’s; that he went ■there for the purpose of getting some; that Kaniecki would not give it to him; that he said he was “drunk now.”

“The plaintiff’s counsel then made a motion to strike out the evidence of Dr. Eakins as to what Lambert Yan Alstine said about not getting any liquor from the defendant Kaniecki that evening, for the reason that this evidence was only impeaching evidence, and, if it was not done, it would force plaintiff to bring Lambert in his critical condition to deny it. Motion overruled, and counsel for plaintiff excepts.”

This is alleged as error, as being hearsay, and not proper original testimony.

No foundation had been laid for this testimony as impeaching testimony. Young Yan Alstine had not at this time been sworn. His deposition had been taken, but his attention was not called in the deposition as to whether he had made the statements testified to by Dr. Eakins. It is urged by counsel for appellees in tlieir supplemental brief that this testimony was competent as impeaching testimony, inasmuch as young Yan Alstine was afterwards called, and contradicted it. It is urged that its admission simply relates to the order of proof, and that the case ought not to be reversed because of its admission; citing Rounsavell v. Pease, 45 Wis. 506, and Roux v. Lumber Co., 94 Mich. 607. These cases would control had this testimony been offered simply as impeaching testimony. An inspection of the record shows it was not offered or received as impeaching testimony, but as an admission which bound the plaintiff because of her relations to the witness who made the statements. It was so treated by the court and counsel when admitted, and in the motion for a new trial, and in the original briefs in the case. The jury must have understood from the way the testimony was treated that it was received as being in the nature of an admission which would bind the plaintiff. In referring to this testimony in his charge, the trial judge made use of the following language:

“ Now, there have been witnesses upon the stand here who have testified to statements made by the injured man soon after it was made; and I say to you, you have a right to consider that testimony. I refer now to the testimony of the two doctors, as to the statements that he made, the young man made, while in front of McSorley’s store, that he had received nothing to drink at Kaniecki’s, the defendant’s. You have a right to consider it with all the other evidence and all the surroundings in this case. You have a right to weigh it in the light of the probabilities of such statements being made at the time. You have a right to weigh and determine whether it strikes you, and meets your minds and consciences, as being probable and true, and, if you believe it, you have a right to act upon it; and I say to you here, if you find that such statements were made by the young man, under conditions when he was fairly in possession of his faculties, and knew what he was saying, it would be a circumstance strongly against him in this case, or the claim put forward here that he did purchase liquor there, because men are never supposed to make statements, when they are deliberately made, directly in opposition and opposed to their own interest.”

The test, then, should be whether this testimony could be received for any other purpose than impeaching testimony. Whatever right to sue in this action the plaintiff has is by virtue of 3 How. Stat. § 2283 e3. The right is personal to her. Young Van Alstine could not himself sue. Brooks v. Cook, 44 Mich. 618. The plaintiff’s right of action depended upon the facts, and belonged to herself, and was not derived from her son, though growing out of his acts. Kehrig v. Peters, 41 Mich. 478. We think this testimony was hearsay, and should have been received only for the purpose of impeachment. Catlin v. Railroad Co., 66 Mich. 364.

It is urged that this testimony is admissible as part of the res gestee, citing from 21 Am. & Eng. Enc. Law, 102: “Declarations regarding personal injuries are admissible as part of the res gestee when there is a concurrence in point of time between the act and the declaration.” The trouble with this contention is that the testimony admitted did not relate to tbe injury, but was an inquiry as to where Van Alstine got his whisky.

The judgment is reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    HAWES v. DETROIT FIRE & MARINE INSURANCE CO.
    1. Mortgage —Default in Interest — Option to Declare Principal Due—Notice of Election.
    Where a mortgage authorizes the mortgagee, at his election, to treat the principal sum as due in case of default in the payment of interest, the institution of foreclosure proceedings sufficiently indicates his election, and previous notice thereof is not necessary.
    ■ 2. Same—Foreclosure—Sale in Parcels.
    Mortgaged premises consisting partly of unplatted land, and partly of land platted by the mortgagor for the purpose of selling it as lots, which plat was recognized by the mortgagee, though not recorded, cannot be said to constitute a single farm; and a sale thereof as a single parcel, on foreclosure of the mortgage, is irregular.
    ■3. Same—Equity—Bill to Redeem—Parties.
    A bill to set aside a deed made on the statutory foreclosure of a mortgage, for irregularity in selling the property as a whole, instead of in parcels, is in effect a bill to redeem, to which the complainant’s wife should be made a party.
    4. Same—Decree for Resale.
    Complainant in such case must be prepared to make payment of the amount actually due, or, in default thereof, a resale in parcels will be decreed.
    Appeal from Kalamazoo; Buck, J.
    Submitted April D, 1896.
    Decided May 19, 1896.

      Bill by Josiah L. Hawes against the Detroit Fire & Marine Insurance Company to set aside a sheriff’s deed on foreclosure. From a decree for complainant, defendant appeals.
    Modified.

      Hawes & Luby (A. J. Mills, of counsel), for complainant.

      Moores & Goff, for defendant.
   Montgomery, J.

Complainant filed a bill to set aside a deed made on a statutory foreclosure of a mortgage executed by himself and wife. The mortgage contained a provision that in case of default in payment of the interest at its maturity, continuing for a period of 30 days, the principal sum, with all the arrearages of interest, should become due and payable immediately. The property mortgaged was described in the mortgage as follows:

“The southwest quarter, (160) one hundred sixty acres, and the southerly thirty (30) acres of the east half of the northwest quarter, section number nineteen (19); also, that portion of the north half of the southeast quarter of said section nineteen (19) lying west of the Comstock road (so called), and north of a private way, marked on the plat of the subdivision of said Hawes as lots numbers six (6), seven (7), eight (8), nine (9), ten (10), eleven (11), twelve (12), except the easterly half of said lots six (6), seven (7), and eight (8), and containing about thirty-one (31) acres; all in township two (2) south, range ten (10) west.”

At the time of the foreclosure of the mortgage, three installments of interest were past due; and the mortgagee, assuming to act under the option contained in the mortgage, claimed, in obtaining notice of sale, that the whole amount was due, and sold the property for the whole amount. The property was not sold in parcels, but as a whole. The two principal grounds of complaint made against the regularity of the proceeding are that there had been no previous notice of the intention to declare the whole amount due, and that the property should have been sold in parcels. The circuit judge sustained the claim of the complainant as to each of these contentions, set aside the sale, and decreed a sale of the premises in parcels to satisfy the amount of the interest due. Defendant appeals.

By the clear weight of authority, notice of election to treat the whole amount of the mortgage debt as due before proceeding to foreclose is not necessary. The procedure to foreclose sufficiently shows the mortgagee’s intention. Harper v. Ely, 56 Ill. 179; 2 Jones, Mortg. § 1182; 2 Ping. Mortg. § 1539, and cases cited; Johnson v. Van Velsor, 43 Mich. 208.

The mortgagor, when applying for the loan, proposed at first to include only that portion of the land not platted, but stated in the letter requesting a loan that, if thought necessary, he would cover the platted portion, which he held for sale. This was described in the correspondence as celery land. When the mortgage was made, an agreement permitting the mortgagor to sell this land, or any portion of it, at $80 per acre, was made. As a matter of fact, this description of land was not used in connection with the other portions of the farm, but was held for sale in parcels as platted. While this plat was not recorded,. it was recognized by the mortgagee, and the property was described by reference to it. We think, under these circumstances, it cannot be said to comprise, with the remaining poi’tion, one farm; and the sale must be said to be, for this reason, irregular.

It is contended by the defendant that the remedy of complainant is by bill to redeem. The practice in such cases is pointed out in Fosdick v. Van Husan, 21 Mich. 567, and Huyck v. Graham, 82 Mich. 357, and it rests upon the principle that he who seeks equity must do equity; and, as complainant asks relief in equity, he should either be prepared to make payment, or have a sale of the premises for the amount due. For this purpose the complainant’s wife should have been made a party. The case will be remanded, with leave to complainant to make his wife a party complainant, and on failure to do so within 30 days the bill will be dismissed. Upon her being made a party, a decree should be entered permit-1 ting complainants to pay the amount of the mortgage and interest within 60 days, and, in default thereof, decreeing a sale of the premises in parcels to satisfy the amount of the mortgage, principal and interest, and costs. Neither party will recover costs in the court below. Defendant will be entitled to recover costs in this court.

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


text:
    KRAUSE v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.
    Insurance—Waiver—Question for Jury.
    Whether the collection of a note given for premiums on a life-insurance policy constitutes a waiver by the company of an agreement between the parties substituting a new policy in place of the one for premiums on which such note was given is a question for the jury, to be determined by taking into consideration the denial of the company that it was intended to have such effect, together with the acts of the parties inconsistent with such denial.
    Error to Wayne; Hosmer, J.
    Submitted April 9, 1896.
    Decided May 19, 1896.

      Assumpsit by Samuel Krause, administrator of the estate of Benjamin S. Krause, deceased, against the Equitable Life Assurance Society of the United States, upon a life-insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Atkinson & Haigh, for appellant.

      Edward A. Gott (Alfred Bussell, of counsel), for appellee.
   Montgomery, J.

This case has been before the court on two former occasions, and the opinions are reported in 99 Mich. 401, and in 105 Mich. 329. Practically the,only question is whether, on the last trial, the circuit judge followed the opinion of Mr. Justice Grant in 105-Mich. 329. The circuit judge left it to the jury to say whether the new arrangement, by which the new policy was to take the place of the old, was perfected and complete, and whether it was waived by the company afterwards. We think these questions were properly submitted to the jury. It was said by Mr. Justice Grant in the former opinion that—

“The collection of the note cannot be held to have operated as a waiver of the new agreement, if there was one, and to have conclusively established the restoration of the first policy. It became, therefore, a question of fact for the jury to determine, whether, under all the evidence, such an agreement was made, and whether it was in force.”

The jury might well have found that the parties did not intend that the agreement for the new policy should take effect until the note was delivered up; and the collection of the note, while not a conclusive evidence of waiver, under the circumstances, was some evidence of it, unless the court be bound to accept the explanation given by defendant’s witnesses. But we think, when the acts of the parties are in any way inconsistent with their present testimony, and particularly when one of the parties to the transaction is dead, it is proper to allow the jury to determine whether such inferences are overcome by the testimony given.

The judgment will be affirmed.

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


text:
    CONNELL v. McNETT.
    1.. Breach of Warranty—Amendment of Bill of Particulars.
    An item for expenses in taking a horse to a neighboring town for treatment may be added to a bill of particulars, and does not enlarge the issue, in an action in assumpsit for breach of warranty on the sale of the horse, where the original bill set out the price of the horse, the amount paid for medical treatment, and the expense of care and keeping.
    2. Same—Evidence.
    Where, in such action, defendant testifies that he did not know at the time of the sale that the horse was unsound, his denial of an undertaking to deceive the plaintiff is properly excluded, as having no bearing upon the question at issue.
    3. Trial—Conduct of Counsel—Remarks of Court.
    In an action for breach of warranty of a horse, defendant offered to show that the day before the trial he had offered plaintiff for the horse the price she paid, and the amount of the doctor’s bill for treatment. Upon a statement that the proposition was one of compromise, the evidence was excluded. Defendant’s counsel thereupon insisted that it was admissible to show value, and on his own responsibility made an offer for the horse in open court, in the presence of the jury. Held, that the court was justified in remarking that he could not have the trial interrupted by horse dickers.
    4. Witnesses—Competency—Opinion Evidence.
    A witness who has shown himself to be possessed of a sufficient knowledge of the market value of horses to entitle him to speak upon the subject is competent to testify, in an action for breach of warranty of a horse, as to the value of the horse in question.
    5. Same—Hypothetical Questions.
    Hypothetical questions so framed as to call for answers (a) based “particularly upon the testimony” of designated witnesses, or (6) based upon “the testimony in the case,” which the witness says he has heard “to some extent,” are properly excluded.

      6. Evidence—Implied Admission.
    Evidence that, on a former trial in justice’s court of an action for breach of warranty, the defendant was present, and heard all of iilaintiff’s testimony, but made no denial thereof, is admissible.
    7. Same—Contradictory Statements—Impeachment.
    Evidence of statements made by a witness out of court, which tend to contradict his testimony, is inadmissible, where no foundation for impeachment has been laid.
    8. Breach op Warranty—Waiver—Instructions to Jury.
    In an action for breach of warranty on the sale of a horse, at the request of defendant, the jury were instructed that if, after plaintiff had paid part of the price, she was offered the return of the money, but refused it, and insisted upon the trade being carried out, and she had at this time discovered that the horse was lame and unsound, she could not recover. Held, that it was proper for the court to add, on its own motion, that if plaintiff saw the horse was lame, but supposed the lameness only temporary, this knowledge would not he inconsistent with her right to rely upon the warranty.
    Error to Ottawa; Padgham, J.
    Submitted April 10, 1896.
    Decided May 19, 1896.

      Assumpsit by Catharine Connell against Jacob B. McNett for breach of warranty. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      R. W. Boynton (Walter I. Lillie and Stephen H. Clink, of counsel), for appellant. • •

      George A. Farr, for appellee.
   Montgomery, J.

Plaintiff recovered a judgment in an action originally brought in justice’s court to recover damages for a breach of warranty on a sale of a mare. The mare was purchased by the plaintiff for a driving mare, and the price of $225 in cash paid. Plaintiff offered testimony tending to show that she incurred an expense of $18 in having the mare treated, and that the care and keeping of the mare was worth $10 per month, and that she had been so lame from the time when she was first delivered to her that she could not be put to any use, and that the lameness was the result of a permanent disease. The record contains a large number of assignments of error, but a discussion of a few of the alleged errors will dispose of all.

The bill of particulars in the justice’s court contained three items: The price of the horse, $225; paid for medical treatment, $50; care and keeping of the horse, $50. On the trial, the plaintiff was permitted to add an item of expense for taking the mare to Grand Rapids, where she was treated. This was objected to as a surprise, and, in addition, the claim is made in this court that the issue presented in the justice’s court was enlarged. We do not consider either objection sound. The cause of action in the justice’s court was a breach of warranty. The item added was within the declaration, and did not introduce a new cause of action, and the nature of the case was such that it could have been met without an adjournment.

The defendant was asked on the stand if he had undertaken to deceive the plaintiff. The action was not for deceit, but in assumpsit, and, as defendant had already testified that he did not know that the mare was lame, a negative answer to this question would in no way have tended to negative the fact of a warranty; for, if he did not know the mare to be lame, a statement that she was sound would not show any attempt to deceive.

Numerous assignments of error rest upon a proposition of defendant to show that, after the trial in justice’s court, and on the day before the trial in the circuit court, defendant had, through his wife, offered for the mare the $225 paid by plaintiff, and the doctor’s bill. In answer to a question by the court, defendant’s counsel at first stated that the proposition was one of compromise. After the testimony was ruled out on this statement, counsel insisted that the offer was admissible to show value. This was accompanied by an offer to make the proffer good, and counsel, on his own responsibility, saw fit to make an offer of $100 for the horse in court, and in the presence of the jury. The patience of the trial judge with this attempt to turn the court room into a horse market was certainly as great as the parties attempting it had any right to expect, and the remark of the court that the trial would have to go on, and could not be interrupted with horse-track dickers while the suit was being tried, was entirely justified.

We think that there was no error committed in receiving the testimony offered by plaintiff to show the value of the mare. An examination of the record shows that the witnesses possessed a sufficient knowledge of the market to entitle them to speak upon the subject.

Defendant called a witness who had known the mare, when sold, and he was asked:

“Now, from what you know about this mare, and what you have heard testified to in reference to her present condition by the witnesses here, particularly Palmer and Fant, what would you say was the present fair market value of the mare ?”

This question was properly excluded. It did not appear that the witness had heard all the testimony, and, if it were to be assumed that he had, a hypothetical question should not be based “particularly” on the testimony of a portion of the witnesses. Kempsey v. McGinniss, 21 Mich. 123. The same rule excludes the testimony of the witness Savidge, who was asked to base his opinion upon his knowledge of the mare 18 months before, and upon the testimony in the case, which he said he had heard “to some extent.”

The testimony that defendant was present in justice’s court, and heard the testimony in behalf of plaintiff, and made no denial of it, was admissible, within the rulings of this court in Mooney v. Davis, 75 Mich. 193; Cole v. Railway Co., 81 Mich. 156, 95 Mich. 80.

It was not error to exclude testimony as to what Kellogg, a witness for the plaintiff, had stated as to the value of the horse out of court, no foundation for impeachment having been laid.

The circuit judge, at the request of the defendant, charged that if, after plaintiff had paid $50 of the purchase price, she was offered-á return of the money paid, but refused it, and insisted on the trade going through, and that at this time she had discovered that the mare was lame and unsound, she could not recover. The court added on its own motion, in effect, that if plaintiff saw that the mare was lame when she went to Holland, and supposed that the lameness was only temporary, this knowledge would not be inconsistent with her right to rely upon the warranty. It is contended that there was no basis in the testimony for this modification of defendant’s request, but upon full consideration we think there was. There is no claim that plaintiff was told anything about the nature of the lameness. The testimony is confined to the statement that she saw that the horse was lame., This was denied by the plaintiff; but, if it be assumed that she did notice that the mare went lame, we think the jury had the right to take into consideration the fact, if they so found it, that the defendant had assured her that the horse was as- sound as a bullet, and determine what inference the plaintiff must have drawn from what she saw at the time, .in view of this statement of defendant.

No error to the prejudice of defendant was committed •on the trial.-

Judgment affirmed.

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


author: Hooker, J.

text:
    KELSEY v. PENDILL.
    Land Contract—Extension—Consideration.
    The vendee under a land contract, having assigned an interest in the same to third parties, suffered a forfeiture by failing to make the second payment. A new agreement was thereupon entered into, whereby the time for payment was extended, an option being granted to'the vendee and his assigns to receive a new contract for the purchase of the property by paying up, within a specified time, the full amount that would have been due under the old contract. The agreement further provided that the vendee should assign to the vendor a note held by him against the complainant, one of the assignees aforesaid, which note, when paid, was to be credited by the vendor “upon the sum so to be paid as the consideration for the new contract of purchase.” Before the expiration of the optional period, the vendor reduced the note to judgment, a part of which complainant paid, and secured the balance. The optional contract was also forfeited, and the original vendee gave to complainant a release of his rights under the note. Complainant sought to restrain the collection of the judgment, and to recover the part paid. Held, that he was not entitled to the relief prayed, it being apparent that the note was delivered as a part of the consideration for the optional contract, with the understanding that it should be applied upon the purchase price, when paid, if the vendee and his assigns should conclude to take the land.
    Appeal from Marquette; Stone, J.
    Submitted April 10, 1896.
    Decided May 19, 1896.
    Bill by Charles H. Kelsey against James Pendill and Merwin E. Asiré to recover back money paid upon a judgméht, and to restrain the collection of the balance of such judgment. From a decree for complainant, defendant Pendill appeals.
    Reversed.

      Hill & Rood (A. B. Eldredge, of counsel), for complainant.

      Clark & Pearl, for appellant.
   Hooker, J.

Pendill, being owner of 90 acres of land in tbe suburbs of Marquette, executed a contract to sell the same to his codefendant, Asiré, for $20,000, of which $5,000 was paid down; and the remainder was to be paid in installments of like amounts at the expiration of one, two, and three years, respectively. Asiré sold an interest to several others, who participated in subsequent dealings. Of these, Kelsey was one. The second payment, due September 8,1893, was not made; and Pendill sought to terminate the contract under the forfeiture clause, and gave notice accordingly. This resulted in a new agreement between Pendill, on the one hand, and Asiré and his associates, upon the other, a copy of which is appended to this opinion. The note given by Kelsey to Asiré was delivered to Pendill, according to the contract, payment of the same being guaranteed by Asiré, in writing, upon it, and, before the expiration of the optional period mentioned in the new contract, Pendill recovered judgment upon the note and guaranty, against both Kelsey and Asiré, upon which judgment Kelsey paid to Pendill the sum of $300. Asiré and his associates did not perform the conditions of the optional contract, and Pendill declined to extend the time. Kelsey, in the meantime, had given Pendill security upon certain stock, in consideration of his withholding execution upon the judgment; and, after the expiration of the optional contract, Asiré gave to Kelsey a release from further liability upon the note. And this bill was filed by Kelsey against Pendill and Asiré, praying that they account with the complainant, and that Pendill be restrained from prosecuting the collection of said judgment, and that he refund to him the sum paid. No relief was prayed against Asiré. The .bill was taken as confessed by Asiré, and Pendill answered.

articles of agreement referred to in the opinion.

Articles of agreement entered into this 20th day of December, 1893, by and between James Pendill, of Marquette, Michigan, as party of the first part, and Merwin E. Asiré, Gad Smith, Lydia E. Hager, James Dwyer, and Charles H. Kelsey, of the s amo''place, as parties of the second part, witnesseth, that whereas, on the 8th day of September, 1892, said party of the first part executed and delivered a contract, as party of the first part, to said Merwin.E. Asiré, as party of the second part, for the sale of lots numbered; one (1), two (2), and three (3), of section two (2), in township numbered forty-eight (48) north, of range numbered twenty-five (25) west, and containing together ninety-seven (97) acres of land, more or less, according to government survey thereof; and whereas, under said contract, it was agreed that the said Merwin E , Asiré should pay to the said James Pendill, as the purchase price of said land, the sum of §20,000, as follows: §5,000 on the execution and delivery of the said agreement; §5,000 on the 8th day of September, 1893; §5,000 on the 8th day of September, 1894; and §5,000 on the 8th day of September, 1895; and whereas, in said contract of sale it was agreed that if default should be made by the said Asiré, party of the second part, in any of the payments of the principal and interest, at the time, or at any of the times, hereinbefore specified for the payment thereof, and for 10 days thereafter, or in case the said Asiré, said party of the second part, should fail to keep and perform the said contract of purchase in any respect wherein the same is required to be kept and performed, in any such case that the said James Pendill should have the right immediately, in case of such forfeiture, to declare the said contract of purchase void and no longer binding, and also declare all payments forfeited to himself, and by such forfeiture tlie said land, with the buildings and improvements thereon, should revert to said Pendill; and whereas, .default has been made by the said Asiré and his assigns (who are hereinafter named) in the carrying out of the conditions of the said ■contract of purchase, as aforesaid; and whereas, the said James Pendill has. elected to declare the said contract of purchase void .and no longer binding, as provided by the said contract of purchase, by the service upon the said Asiré and his assigns (hereinafter named) of a written notice of such election on his part to so forfeit •the said contract; and whereas, the said Asiré and his said assigns (hereinafter named) claim certain equitable rights under said contract of purchase, of September 8,1892, in the land above described; and whereas, it appears that Gad Smith, James Dwyer, Lydia E. Hager, and Charles H. Kelsey have each an equal interest with, the said Merwin E. Asiré in the said contract of September 8, 1892, by .an agreement entered into by the said Asiré, Dwyer, Hager, Smith, and William O. Butler (which Butler has assigned his interests to Charles H. Kelsey), under an instrument also dated the 8th day of September, 1892:

It is hereby understood and agreed by and between the said James Pendill, as said party of the first part, and said Merwin E. Asiré, Gad Smith, Lydia E. Hager, James Dwyer, and Charles H- Kelsey, as parties of the second part, that the said parties of the second part will surrender, release, and forever quitclaim all right, title, and interest in the said land to the said party of the first; part, which quitclaim is this day made, by the said second parties ,to the said first party, simultaneous in date and in accordance with this agreement, in consideration of said party of the first part agreeing that if the said parties of the second part, then-heirs or assigns, shall, by the 1st of December, 1894, pay to said party of the first part the amount that was due to said party of the first part on September 8, 1893, principal and interest, under the conditions of said'contract of September 8, 1892, from said Merwin E. Asiré, together with interest on said sum so due until paid, and will also pay the sum of $5,000 that would have been due on the 8th of September, 1894, under the said contract of September 8, 1892, together with interest thereon from September 8, 1892, until paid, and’ also all interest which would have been due September 8, 1894, on the $5,000, the last payment mentioned in said contract of September 8, 1892, and will also pay all taxes that shall be assessed upon the said land, then said party of the first part will make a new contract of sale of the said land in question to the second parties, for a price equal to the amount of the last payment mentioned in said contract of September 8, 1892, to wit, $5,000, with interest thereon at 7 per cent, from September 8, 1894, and which consideration price in said new contract shall be payable on the 8th day of September, A. D. 1895, the date mentioned in the said old contract of September 8, 1892, for the amount of the last payment, as aforesaid, with interest, which new contract said party of the first part hereby promises to make -on or before December 1, 1894, if said second parties shall perform the conditions hereinbefore stated; it being the intent of the said party of the first part to this instrument to give to said parties of the second part an option to receive a contract of sale of said land from him upon the performing of the conditions above stated on or before the 1st of December, 1894, but with the express understanding and agreement that, in case of failure on the part of the said parties of the second part to perform such conditions as aforesaid, all right or claim under this agreement to any such contract from the said party of the first part as aforesaid shall terminate and end, without any notice upon the part of the party of the first part to said parties of the second part whatever; time being* the essence of this contract, and this agreement being intended as an optional right on the part of the parties of the second part to elect to so pay to said party of the first part the sum above stated, and perform all the conditions herein named, on or before December 1, 1894, and, in that case, receive a contract of purchase from said party of the first part of the land in question as aforesaid, but not otherwise.

It is further understood and agreed that, whereas, on the 21st day of December, 1892, the said party of the first part and the said Merwin E. Asiré made an agreement supplemental to the said contract of September 8, 1892, aforesaid, whereby said party of the first part granted to said Asiré the right to plat the said land into an addition to the city of Marquette, Michigan, and which was so platted into blocks and lots, said plat being called “Island Beach;” and whereas, said parties of the second part to this instrument are desirous of having the right to negotiate sales of lots in the said addi tion; It is hereby further agreed that they shall be allowed to do so, and to negotiate sales at prices not less than flOO a lot, and upon paying to said party of the first part the full price at which lots may have been sold prior to this date, or may be negotiated for sale hereafter, as aforesaid, said party of the first part agrees to make deeds thereof to said parties of the second part, or to such persons negotiating for the purchase of said lots, at the request of said parties of the second part, as desired, and also agrees to credit the amount so received upon the amount that is to be paid by the parties of the second part in order to entitle them to a further agreement of purchase of the said land as aforesaid.

It is further understood and agreed that the aforesaid Merwin E. Asiré shall assign to the said party of the first part a note which he holds against the said Charles H. Kelsey for §800, which, when paid, shall be credited by the said party of the first part upon the sum so to be paid as the consideration for a new contract of purchase as aforesaid of the.entire property as aforesaid, but the said note is not to be received itself as such payment, until the money shall be paid thereon; it being understood that no such partial payments, whether from lots or the note aforesaid, shall entitle the parties of the second part to such new contract of purchase of the entire property as aforesaid, unless the full amount that would have been due on December 1, 1894, to said party of the first part, under the old contract of September 8, 1892, if kept in force, shall be paid on or before December 1, 1894.

In witness whereof, the said parties hereto have hereunto set their hands and seals the day and year first above written.’ Executed in duplicate.

Jambs Pendill. Merwin E. Asiré. ;Gad Smith. Lydia E. Hager. James Dwyer. Charles H. Kelsey. 'seal 'seal' seal' SEAL 'seal' 'seal'

Signed, sealed, and delivered in presence of B. O. Pearl. F. O. Brown.

The complainant claims that, according to the terms of the contract, the note was received by Pendill, and, when paid, the amount received was to be credited to Asiré and his associates, and applied upon the purchase price of the land, in case they availed themselves of their right to purchase, and that, not having done .so, Pendill has no right to enforce the payment as to the amount unpaid, or to retain the sum paid by Kelsey. Upon the other hand, Pendill contends that the note was given and received as a part of the consideration for the optional contract, but with the understanding that it was to be applied upon the purchase price, if Asiré and his associates should take the property. He offered some testimony tending to show this, which was contradicted by Asiré. Kelsey admitted paying $100 upon the judgment after the expiration of the contract. The circuit court disregarded this testimony, holding that it was inadmissible, as it tended to vary the written contract, and disposed of the case upon.his construction of the writing.

The optional contract extended the time for meeting the payment due September 8, 1893, to December 1, 1894,—a period of nearly 15 months. There was testimony tending to show that, at the time this contract was made, a railroad was projected, which, if built, would be likely to enhance the value of the land. The contract itself shows a forfeiture of the former one, under which it was agreed that payments made should be forfeited. In the light of the circumstances, we think the more reasonable construction of the writing to be that the note was delivered as a part of the consideration for the optional'contract, with the understanding that it should be applied upon the purchase price, when paid, if Asiré and his associates should conclude to take the land. This seems the more reasonable, inasmuch as full payment of the amounts falling due before was a condition precedent to a new contract, which would leave no apparent inducement to Pendill to incur expense in collecting the note, according to tbe interpretation urged by counsel for the complainant.

The bill will therefore be dismissed, with costs of both courts,

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


text:
    KINGSLEY v. TOWNSHIP OF BLOOMINGDALE.
    Negligence—Proximate Cause — Absence of Railings from Bridge.
    Plaintiff, after safely crossing a bridge in defendant township, stopped to converse with a neighbor. His horse got the checkrein over one of the thills, began backing, and, disregarding both command and whip, backed the vehicle upon and off from the bridge. Held, that the absence of railings, conceding that it was the duty of the township to provide them, was not the proximate cause of the accident.
    Error to Van Burén; Buck, J.
    Submitted April 21, 1896.
    Decided May 19, 1896.
    Case by Eloyd Kingsley against the township of Bloomingdale for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      A. Lynn Free and T. J. Cavanaugh, for appellant.

      Titus & McNeil, for appellee.
   Hooker, J.

In this cause the plaintiff appeals from a directed verdict in favor of the defendant, a township, which was charged with the duty of maintaining a bridge. The plaintiff’s testimony shows that the bridge was 16 feet long, and was made of plank 14 feet long, laid upon stringers, and the bank joined the bridge at an elevation of about 3 feet above the bottom of the ditch which the bridge crossed. He had safely crossed the bridge far enough to bring the back wheels of his carriage 8 feet or more from the bridge, where he stopped several minutes, in conversation with a neighbor. His horse got the checkrein over the thill, and began backing, and, disregarding both command and whip, backed the vehicle upon and off from the bridge. It is claimed that the township was negligent in not providing a railing to the bridge.

We have held, in some cases, that circumstances might require railings, but in no case have we gone so far as to hold that a highway or bridge required fencing, except in cases of obvious danger. If, however, this is a proper question to leave to the jury, in ordinary cases, it appears in this case that the horse was not frightened or caused to back by any act or neglect of the township. It was caused by the checkrein pulling upon the horse, apparently leading him to think he was expected to back, and effectually taking the control of the horse from the master, so far as the guidance was concerned. Blows even did not affect him, and it is apparent that the lack of railings was not the proximate cause of the accident, but, if a cause at all, was the remote cause. This question has been before the court several times, and need not be again discussed. It seems closely analogous to the cases of Beall v. Athens Tp., 81 Mich. 536, and St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463.

The judgment will therefore be affirmed.

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